Kakumanu Peda Subbayya Andanother Vs.
Kakumanu Akkamma & ANR  INSC 74 (4 September 1958)
AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.
CITATION: 1958 AIR 1042 1959 SCR 1249
Hindu Law-Partition-Suit for Partition on
behalf of minor -Severance of joint status-Death of minor pending suitAbatement-Right
of legal representative to continue suit.
In a suit instituted on behalf of a Hindu
minor for partition of the joint family properties, the minor plaintiff died
during the pendency of the suit and his mother as the legal representative was
allowed to continue the suit as the second plaintiff, and the suit was decreed
as it was found that the defendants had been acting against the interests of
the minor and that the suit for partition was therefore beneficial to him. It
was contended for the appellants that the suit had abated by reason of the
death of the minor before the suit was heard and before the Court could decide
whether the institution of the suit was for his benefit.
Held, that when a suit is instituted by a
person acting on behalf of a minor for the partition of the joint family
properties, a declaration made by him on behalf of the minor to become divided
brings about a severance in status, subject only to the decision of the Court
that the action is beneficial to the minor. The true effect of the decision of
the Court is not to create in the minor a right which he did not possess before
but to recognise the right which had accrued to him when the action was
Rangasayi v. Nagarathnamma, (1933) I. L. R.
57 Mad. 95, Ramsingh v. Fakira, I. L. R.  Bom. 256 and Mandilprasad v.
Ramcharanlal, I.L.R.  Nag. 848, approved. Case law reviewed.
Accordingly, the suit did not abate and the
legal representative was entitled to continue the suit and obtain a decree on
showing that when the suit was instituted it was for the benefit of the minor.
Held, further, that the suit did not abate on
the ground either that the cause of action for a suit for partition by a minor
was one personal to him, because such a suit is one relating to property.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 326 of 1955.
1250 Appeal by special leave from the
judgment and decree dated April 10, 1953, of the Madras High Court in Second
Appeal No. 1815 of 1949, arising out of the judgment and decree dated January
28, 1949, of the Court of Subordinate Judge, Bapatla, in A. S. No. 188 of 1947,
against the judgment and decree dated December 23, 1946, of the District
Munsif, Ongole, in O. S. No. 139 of 1946.
M. C. Setalvad, Attorney-General for India
and R.Ganapathy Aiyar, for the appellants.
A. V. Viswanatha Sastri, M. R. Rangaswami
Aiyangar, T. S. Venkataraman and K. R. Choudhury, for the respondents.
1958. September 4. The Judgment of the Court
was delivered by VENKATARAMA AIYAR J.-This appeal arises out of a suit for
partition of joint family properties instituted on April 2, 1942, in the Court
of the District Munsif, Ongole, on behalf of one Kakumanu Ramanna, a minor of
the age of about 2 1/2 years by his material grandfather, Rangayya, as his next
friend. The first defendant is his father. The second and third defendants are
the sons of the first defendant by his deceased first wife. The fourth
defendant is the second wife of the first defendant and the mother of the
plaintiff-. The fifth defendant is the daugther of the first defendant by the
In the plaint, three grounds were put forward
as to why the minor plaintiff should have partition: (1) It was said that the
mother of the plaintiff was ill-treated, and there was neglect to maintain her
and her children. Both the District Munsif and the Subordinate Judge on appeal,
held that this had not been established, and no further notice need be taken of
it. (2) It was then said that there had been a sale of the family properties to
one Akkul Venkatasubba Reddi for Rs. 2,300, that there was no necessity for
that sale, and that its object was only to injure the plaintiff. That sale is
dated May 9, 1939. (3) Lastly, it was alleged that item 2 had been purchased on
June 1, 1938, and item 11 on June 14, 1939, with joint family 1251 funds, but
that the sale deeds had been taken in the names of the second and third
defendants with a view to diminish the assets available to the plaintiff. In
addition to these allegations, it was also stated in the plaint that the family
was in good circumstances, and that there were no debts owing by it. On June
20, 1942, the defendants filed their written statements, wherein they claimed
that the purchase of items 2 and 11 had been made with the separate funds of
the second and third defendants, and that the joint family had no title to
them. They further alleged that the family had debts to the extent of Rs.
2,600. Sometime in January 1943, the minor plaintiff died, and his mother who
was the fourth defendant was recorded as his legal representative, and
transposed as the second plaintiff.
The suit was in the first instance decreed,
but on appeal, the Subordinate Judge remanded the case for trial on certain
issues. At the rehearing, it ",as proved that the first plaintiff was born
on December 20, 1939. On that, the District Munsif held that the sale of the
family properties to Akkul Venkatasubba Reddi and the purchase of items 2 and
II in the names of the second and third defendants having been anterior to the
birth of the minor plaintiff, no cause of action for partition could be founded
thereon. The District Munsif also held on the evidence that the purchase of
items 2 and 11 was not shown to have been made with separate funds, and that
therefore they belonged to the joint family and further that the family owed no
debts and that the allegations contra in the statements were not made out. But
he held, however, that this did not furnish a cause of action for partition. In
the result, he dismissed the suit. There was an appeal against this judgment to
the Court of the Subordinate Judge of Bapatla, who affirmed the findings of the
District Munsif that items 2 and 11 belonged to the joint, family, and that
there were no debts owing by it. But he also agreed with him that as the sale
and purchases in question were prior to the birth of the minor plaintiff, the
suit for 159 1252 partition based thereon was not maintainable. He accordingly
dismissed the appeal. The second plaintiff took the matter in second appeal to
the High Court of Madras, and that was heard by Satyanarayana Rao J. who held
that as the defendants had falsely claimed that items 2 and 11 were the
separate properties of the second and third defendants, their interest was
adverse to that of the minor and that the suit for partition was clearly
beneficial to him. He accordingly granted a preliminary decree for partition.
The present appeal has been brought against it on leave granted by this Court
under Art. 136.
The learned Attorney-General who appeared for
the appellants advanced two contentions in support of the appeal: (1) that
there was a concurrent finding by both the courts below that the suit was not
instituted for the benefit of the minor, and that the High Court had no power
to reverse it in second appeal; and (2) that, in any event, as the minor
plaintiff had died before the suit was heard and before the court could decide
whether the institution of the suit was for his benefit, the action abated and
could not be continued by his mother as his legal representative.
On the first question, the contention of the
appellants is that it is a pure question of fact whether the institution of a
suit is for the benefit of a minor or not, and that a finding of the courts
below on that question is not liable to be interfered with in second appeal.
But it must be observed that the finding of the Subordinate Judge was only that
as the impugned sale and purchases were made before the minor plaintiff was
born, no cause of action for partition could be founded by him thereon, and
that, in our opinion, is a clear misdirection. The transactions in question
were relied on by the minor plaintiff as showing that the defendants were
acting adversely to him, and that it was therefore to his benefit that there
should be a partition.
It is no doubt true that as the plaintiff was
not born on the date of those transactions, the defendants could not have
entered into them with a view to injure him, though even as to this it should
be noted that in May and -June, 1253 1939 when the transactions were concluded,
the first plaintiff was in the womb, and the first defendant admits knowledge
of this, in his evidence. But assuming that there was no intention to defeat
the rights of the first plaintiff at the time when the transactions in question
were entered into, that does not conclude the matter. The real point for
decision is whether the defendants were acting adversely to the minor, and if,
after he was born, they used documents which might have been innocent when they
came into existence, for the purpose of defeating his rights to the properties
comprised therein, that would be conduct hostile to him justifying partition. Now,
what are the facts ? In the written statements which were filed shortly after
the institution of the suit while the first plaintiff was alive, defendants I
to 3 combined to deny his title to items 2 and I 1, and at the trial, they
adduced evidence in support of their contention that they were the separate
properties of defendants 2 and 3. Even in the Court of Appeal, the defendants
persisted in pressing this claim, and further maintained that the joint family
had debts, and both the courts below had concurrently held against them on
these issues. These are materials from which it could rightly be concluded that
it was not to the interest of the minor to continue joint with the defendants,
and that it would be beneficial to him to decree partition. In holding that as
the transactions in question had taken place prior to his birth the minor could
not rely on them as furnishing a cause of action, the courts below had
misunderstood the real point for determination, and that was a ground on which
the High Court could interfere with their finding in second appeal.
We accept the finding of the High Court that
the suit was instituted for the benefit of the minor plaintiff, and in that
view, we proceed to consider the second question raised by the learned
Attorney-General-and that is the main question that was pressed before
us-whether the suit for partition abated by reason of the death of the minor
before it was heard and decided.
The contention on behalf of the appellants is
that while in the case of an adult coparcener a clear and 1254 unambiguous
expression on his part of an intention to become divided will have the effect
of bringing about a division in status and the filing of a suit for partition
would amount to such an expression, that rule can have no application in the
case of a minor, as under the law he is incapable of a volition of his own. It
is conceded by the appellants that a suit for partition could be entertained on
behalf of a minor plaintiff, and decreed if the court decides that it, is in the
interests of the minor. But it is said that in such a case, the court exercises
on behalf of the minor a volition of which lie is incapable, that it is not
until that volition is exercised by the court that there can be a division in
status, and that, therefore, when a minor plaintiff dies before the court
adjudicates on the question of benefit to him, he dies an undivided coparcener
and his interest survives to the other coparceners and does not devolve on his
heirs by inheritance. The contention of the respondents, on the other hand, is
that a suit for partition instituted on behalf of a minor coparcener stands on
the same footing as a similar suit filed by an adult coparcener, with this
difference that if the suit is held by the court not to have been instituted
for the benefit of the minor it is liable to be dismissed, and no division in
status can be held to result from such an action. In other words, it is argued
that a suit for partition on behalf of a minor effects a severance in status
from the date of the suit, conditional on the court holding that its
institution is for the benefit of the minor.
The question thus raised is one of
considerable importance, on which there has been divergence of judicial
While the decisions in Chelimi Chetty v.
Subbamma (1), Lalta Prasad v. Sri Mahadeoji Birajman Temple (2) and Hari Singh
v. Pritam Singh(3), hold that when a suit for partition is filed on behalf of a
minor plaintiff there is a division in status only if and when the Court
decides that it is for his benefit and passes a decree, the decisions in
Rangasayi v. Nagarathnamma (4), Ramsing v. Fakira (5) and Mandliprasad v. Ramcharanlal
(6), lay down that when such a (1) (1917) I.L.R. 41Mad. 442.
(2) (1920) I.L.R. 42 All. 461.
(3) A.I.R. 1936 Lah. 504.
(4) (1933) I.L.R. 57 Mad. 95.
(5) I.L.R.  Bom. 256.
(6) I.L.R.  Nag. 848.
1255 suit is decreed, the severance in status
relates back to the date of the institution of the suit. While Chelimi Chetty
v. Subbamma (1) decides that when a minor on whose behalf a suit is filed dies
before hearing, the action abates, it was held in Rangasayi v. Nagarathnamma
(2) and Mandliprasad v. Ramcharanlal (3) that such a suit does not abate by
reason of the death of the minor before trial, and that it is open to his legal
representatives to continue the suit and satisfy the court that the institution
of the suit was for the benefit of the minor, in which case there would be, a
division in status from the date of the plaint and the interests of the minor
in the joint family properties would devolve on his heirs. To decide which of
these two views is the correct one, we shall have to examine the nature of the
right which a minor coparcener has, to call for partition and of the power
which the court has, to decide whether the partition in question is beneficial
to the minor or not.
Under the Mitakshara law, the right, of a
coparcener to share in the joint family properties arises on his birth, and
that right carries with it the right to be maintained out of those properties
suitably to the status of the family so long as the family is joint and to have
a partition and separate possession of his share, should he make a demand for
it. The view was at one time held that there could be no partition, unless all
the coparceners agreed to it or until a decree was passed in a suit for
partition. But the question was finally settled by the decision of the Privy
Council in Girja Bai v. Sadashiv Dhundiraj (4), wherein it was held, on a
review of the original texts and adopting the observation to that effect in
Suraj Narain v. lqbal Narain (5), that every coparcener has got a right to
become divided at his own will and option whether the other coparceners agree
to it or not, that a division in status takes place when he expresses his
intention to become separate unequivocally avid unambiguously, that the filing
of a suit for partition is a clear expression of such an intention, and that,
in consequence, (1) (1917) I.L.R. 41 Mad. 442.
(2) (1933) I.L.R. 57 Mad. 95.
(3) I.L.R.  Nag. 848.
(4) (1916) L.R. 43 I.A. 151.
(5) (1912) L.R. 40 I.A. 40,45.
1256 there is a severance in status when the
action for partition is filed. Following this view to its logical conclusion,
it was held by the Privy Council in Kawal Nain v. Prabhu Lal (1), that even if
such a suit were to be dismissed, that would not affect the division in status
which must be held to have taken place, when the action was instituted.
Viscount Haldane observed:
"A decree may be necessary for working
out the result of the severance and for allotting definite shares, but the
status of the plaintiff as separate in estate is brought about by his assertion
of his right to separate, whether he obtains consequential judgment or
not." The law being thus settled as regards coparceners who are sui juris,
the question is whether it operates differently when the coparcener who
institutes the suit for partition is a minor acting through his next friend.
Now, the Hindu law makes no distinction between a major coparcener and a minor
coparcener, so far as their rights to joint properties are concerned. A minor
is, equally with a major, entitled to be suitably maintained out of the family
properties, and at partition, his rights are precisely those of a major.
Consistently with this position, it has long
been settled that a suit for partition on behalf of a minor coparcener is
maintainable in the same manner as one filed by an adult coparcener, with this
difference that when the plaintiff is a minor the court has to be satisfied
that the action has been instituted for his benefit. Vide the authorities cited
in Rangasayi v. Nagarathnamma (2 ) at p. 137. The course of the law may be
said, thus far, to have had smooth run. But then came the decision in Girja Bai
v. Sadashiv Dhundiraj (3) which finally established that a division in status
takes place when there is an unambiguous declaration by a coparcener of his
intention to separate, and that the very institution of a suit for partition
constituted the expression of such an intention. The question then arose how
far this principle could be applied, when the suit for partition was instituted
not by a major but by a minor acting through his next friend. The view was
expressed that (1) (1917) L.R. 44 I.A. 159. (2) (1933) I.L.R. 57 Mad. 95.
(3) (1916) L.R. 43 I.A. 151.
1257 as the minor had, under the law, no
volition of his own' the rule in question had no application to him it was not,
however, suggested that for that reason no .suit for partition could be
maintained on behalf of a minor, for such a stand would be contrary to the law
as laid down in a series of decisions and must, if accepted, expose the estate
of the minor to the perils of waste and spoliation by coparceners acting
adversely to him. But what was said was that when a court decides that a
partition is for the benefit of a minor, there is a division brought about by
such decision and not otherwise. It would follow from this that if a minor died
before the court decided the question of benefit lie would have died an undivided
coparcener of his family and his heirs could not continue the action.
In Chelimi Chetty v. Subbamma (1), the point
directly arose for decision whether on the death of a minor plaintiff the suit
for -partition instituted on his behalf could be continued by his legal
representatives. It was held that the rule that the institution of a suit for
partition effected a severance of joint status was not applicable to a suit
instituted on behalf of a minor, and that when he died during the pendency of
the suit" his legal representative was not entitled to continue it. The
ground of this decision was thus stated:
" It was strongly argued by the learned
pleader for the respondent that as the plaint states facts and circumstances
which, if proved, would be good justification for the court decreeing
partition, therefore at this stage we must proceed on the basis that there was
a good cause of action and there was thus a severance of status effected by the
institution of the suit. This clearly does not amount to anything more than
this, that it is open to a person who chooses to act on behalf of a minor
member of a Hindu family to exercise the discretion on his behalf to effect a
severance. What causes the severance of a joint Hindu family is not the
existence of certain facts which would justify any member to ask for partition,
but it is the exercise of the option which the law lodges in a member of the
joint family to say whether he shall continue to remain (1) (1917) T.L.R. 41
1258 joint or whether he shall ask for a
division. In the case of an adult he has not got to give any reasons why lie
asks for partition but has simply to say that he wants partition, and the court
is bound to give him a decree. In the case of a minor the law gives the court,
the power to say whether there should be a division or not, and we think that
it will lead to considerable complications and difficulties if we are to say
that other persons also have got the discretion to create a division in the
family, purporting to act on behalf of a minor." This decision was cited
with approval in Lalta Prasad v.Sri Mahadeoji Birajman Temple (1), wherein it
" The effect, therefore, we think, of an
action brought by a minor through his next friend is not to create any alteration
of status of the family, because a minor cannot demand as of right a
separation; it is only granted in the discretion of the court when, in the
circumstances, the action appears to be for the benefit of the minor. See
Chelimi Chetty v. Subbamma (2)." In Hari Singh v. Pritam Singh (3), a suit
for partition instituted on behalf of a minor was decreed, the court finding
that it was for the benefit of the minor. The question then arose as to the
period for which the karta could be made liable to account. It was held,
following the decisions in Chelimi Chetty v. Subbamma (2 ) and Lalla Prasad v.
Sri Mahadeoji Birajman Temple (1), that as the severance in status took place
only on the date of the decision and not when the suit was instituted, the
liability to account arose only from the date of the decree and not from the
date of the suit. It may be mentioned that in Chhotabhai v. Dadabhai (4)
Divatia J. quoted the decision in Chelimi Chetty v. Subbamma (2) with approval,
but as pointed out in Ramsing v. Fakira (5) and by the learned judge himself in
Bammangouda v. Shankargouda (6), the point now under consideration did not
really arise for decision in that case, and the (1) (1920) I.L.R. 42 All. 461.
(2) (1917) I.L.R. 41 Mad. 442.
(3) A.I.R. 1936 Lah. 504.
(4) A.I.R. 1935 Bom. 54.
(5) I.L.R.  Bom. 256.
(6) A.I.R. 1944 Bom. 67.
1259 observations were merely obiter. It is
on the strength of the above authorities that the appellants contend that when
the minor plaintiff died in January 1943, the suit for partition had abated,
and that his mother had no right to continue the suit as his heir.
Now, the ratio of the decision in Chelimi
Chetty v. Subbamma (1)-and it is this decision that was followed in Lalta
Prasad's Case (2 ), Hari Singh v. Pritam Singh (3) and Chhotabhai v. Dadabhai
(4)-is that the power to bring about a division between a minor and his
coparceners rests only with the court and not with any other person, and that,
in our judgment, is clearly erroneous. When a court decides that a suit for
partition is beneficial to the minor, it does not itself bring about a division
in status. The court is not in the position of a super-guardian of a minor
expressing on his behalf all intention to become divided.
That intention is, in fact, expressed by some
other person, and the function which the court exercises is merely to decide
whether that other person has acted in the best interests of the minor in
expressing on his behalf ail intention to become divided. The position will be
clear when regard is had to what takes place when there is a partition outside
court. In such a partition, when a branch consisting of a father and his minor
son becomes divided from the others, the father acts on behalf of the minor son
as well; and the result of the partition is to effect a severance in status
between the father and his minor son, oil the one hand and the other
coparceners, on the other.
In that case, the intention of the minor to
become separated from the coparceners other than his father is really expressed
on his behalf by his father. But it may happen that there is a division between
the father and his own minor son, and in that case, the minor would normally be
represented by his mother or some other relation, and a partition so entered
into has been recognised to be valid and effective to bring about a severance
in status. The minor has no doubt the right to have the partition set aside if
it is shown to have been prejudicial to him but if that is not established, the
partition (1) (1917) I.L.R. 41 Mad. 442.
(3) A.I.R. 1936 Lah. 504.
(2) (1920) I.L.R. 42 All. 461.
(4) A.I.R. 1935 BOM. 54.
160 1260 is binding on him. Vide Balkishen
Das v. Ram Narain Sahu (1). And even when the partition is set aside on the
ground that it is unfair, the result will be not to annul the division in
status created by the partition but to entitle the minor to a re-allotment of
the properties. It is immaterial that the minor was represented in the
transaction not by a legal guardian but by a relation. It is true, as held in GharibUl-Lah
v. Khalak Singh (2) that no guardian can be appointed with reference to the
coparcenary properties of a minor member in a joint family, because it is the
karta that has under the law the right of management in respect of them and the
right to represent the minor in transactions relating to them. But that is only
when the family is joint, and so where there is disruption of the joint status,
there can be no question of the right of a karta of a joint family as such to
act on behalf of the minor, and on the authorities, a partition entered into on
his behalf by a person other than his father or mother will be valid, provided
that person acts in the interests of and for the benefit of the minor.
If, under the law, it is competent to a
person other than the father or mother of a minor to act on his behalf, and
enter into a partition out of court so as to bind him, is there any reason why
that person should not be competent when he finds that the interests of the
minor would best be served by a division and that the adult coparceners are not
willing to effect a partition, to file a suit for that purpose on behalf of the
minor, and why if the court finds that the action is beneficial to the minor,
the institution of the, suit should not be held to be a proper declaration on
behalf of the minor to become divided so as to cause a severance in status? In
our judgment, when the law permits a person interested in a minor to act on his
behalf, any declaration to become divided made by him on behalf of the minor
must be held to result in severance in status, subject only to the court
deciding whether it is beneficial to the minor; and a suit instituted on his
behalf if found to be beneficial, must be held to bring about a division in
status. That (1) (1903) L.R. 30 I.A. 139. :
(2) (1903) L.R. 30 I.A. 165.
1261 was the view taken in a Full Bench
decision of the Madras High Court in Rangasayi. v. Nagarathnamma (1), wherein
Ramesam J. stated the position thus:
" These instances show that the object
of the issue whether the suit was for the benefit of the minor is really to
remove the obstacle to the passing of the decree. It is no objection to the
maintainability of the suit. In my opinion therefore in all such cases the
severance is effected from the date of the suit conditional on the court being
able to find that the suit when filed was for the benefit of the minor."
The same view has been taken in Ramsing v. Fakira (2) and Mandliprasad v.
Ramcharanlal (3), and we agree with these decisions.
On the conclusion reached above that it is
the action of the person acting on behalf of a minor that brings about a
division in status, it is necessary to examine what the nature of the
jurisdiction is which the courts exercise when they decide whether a suit is
for the benefit of a minor or not. Now, the theory is that the Sovereign as
parens patriae has the power, and is indeed under a duty to protect the
interests of minors, and that function has devolved on the courts. In the
discharge of that function, therefore, they have the power to control all
proceedings before them wherein minors are concerned. They can appoint their
own officers to protect their interests, and stay proceedings if they consider
that they are vexatious. In Halsbury's Laws of England, 3rd Edn., Vol. XXI, p.
216, para. 478, it is stated as follows:
" Infants have always been treated as
specially under the protection of the Sovereign, who, as parens patriae, had
the charge of the persons not capable of looking after themselves. This
jurisdiction over infants was formerly delegated to and exercised by the Lord
Chancellor; through him it passed to the Court of Chancery, and is now vested
in the Chancery Division of the High Court of Justice. It is independent of the
question whether the infant has any property or not." (1) (1933) I.T.R. 57
(2) I.L.R.  Bom. 256.
(3) I.L.R.  Nag. 848.
1262 It is in the exercise of this
jurisdiction that courts require to be, satisfied that the next friend of a
minor has in instituting a suit for partition acted in his interest.
When, therefore, the court decides that the
suit has been instituted for the benefit of the minor and decrees partition, it
does so not by virtue of any rule, special or peculiar to Hindu law but in the
exercise of a jurisdiction which is inherent in it and which extends over all
The true effect of a, decision of a court
that the action is beneficial to the minor is not to create in the minor
proprio vigore a right which he did not possess before but to recognise the right
which had accrued to him when the person acting on his behalf instituted the
action. Thus, what brings about the severance in status is the action of the
next friend in instituting the suit, the decree of the court merely rendering
it effective by deciding that what the next friend has done is for the benefit
of the minor.
It remains to consider one other argument
advanced on behalf of the appellants. It was urged that the cause of action for
a suit for partition by a minor was one personal to him, and that on his death
before hearing, the suit must abate on the principle of the maxim, action
personalis moritur cum persona. But that maxim has application only when the
action is one for damages for a personal wrong, and as a suit for partition is
a suit for property, the rule in question has no application to it. That was
the view taken in Rangasayi v. Nagarathnamma (1) at pp. 137-138 and in
Mandliprasad v. Ramcharanlal (2) at p. 871, and we are in agreement with it.
All the contentions urged in support of the
appeal have failed, and the appeal is accordingly dismissed with costs.
The amounts paid by the appellants to the
respondents in pursuance of the order of this Court dated March 7, 1958, will
be taken into account in adjusting the rights of the parties under this decree.
(1) (1933) I.L.R. 57 Mad. 95.
(2) I.L.R.  Nag. 848.