Madras High Court
Chinnamma And Anr. vs Gopal And Anr. on 24 November, 1995
Equivalent citations: 1996(1)CTC284
ORDER S.S. Subramani, J.
1. Plaintiffs are the appellants in this second appeal. They filed a suit for partition as well as for recovery of maintenance. Plaintiffs are mother and son. The son being a minor, he is represented in the suit by his mother as his next friend. First defendant (first respondent herein) is the father of the minor.
2. The point for consideration is limited to the question whether the minor son is entitled to partition.
3. Both the Courts below have held that since natural guardian, father, is alive, she cannot compel a partition between father and son, but also held that the first defendant is liable to maintain them and that the plaintiffs are entitled to separate maintenance on the allegations put forth by them against the first respondent (first defendant). An amount of Rs. 300 per mensem was awarded as separate maintenance for them.
4. The Courts below have also held that the minor plaintiff is entitled to one-fourth share in the properties and it was also found by the Courts below that all the properties are joint family properties. The dismissal of the suit was only on the ground that mother, not being a natural guardian, is not entitled to file a suit for partition on behalf of the minor son, especially when the father was the manager and guardian of the minor.
5. The following substantial questions of law have been framed in this second appeal at the time of its admission;-
"1. Whether Section 6 of the Hindu Minority and Guardianship Act (Act 32 of 1956) excluded undivided interest in the joint family property and hence the father is not the natural guardian in respect of such property?
and
2. Whether the mother can represent her minor son as guardian when rather is alive, with regard to undivided interest m joint family property for partition of the same in view of Section 6 of the Hindu Minority and Guardianship Act, 1956?"
6. According to me, the Courts below have misconstrued the provisions of Order 32, C.P.C. and also the provisions of Sections 6 to 8 of the Hindu Minority and Guardianship Act, 1956. Having held that the properties are joint family properties and the family is still united, the Courts below should not have invoked the provisions of the Hindu Minority and Guardianship Act, in these proceedings.
7. In these proceedings, we are governed only by the first principles of Hindu Law as well as the right of a coparacener to claim partition.
8. In Mayne's Hindu Law & Usage - 12th Edition - 1991, at page 743, it is said thus: -
"On the question whether the institution of a suit for partition by the next friend of a minor effects a severance in interest so as to make the minor coparacener divided in status from the other members, there is a conflict of decisions. In Rangasayi v. Nagarathnamma, AIR 1933 Mad. 890 a Full Bench of the Madras High Court has held that in all such cases, the severance is effected from the date of suit, conditional on the court being able to find that the suit, when filed was for the benefit of the minor; and if a minor dies pending the suit, his legal representative can bring himself on record and continue the suit for partition, subject to the decision of the court on the question whether the suit, when instituted was for the benefit of the minor".
9. In Kakumanu Pedasubhayaya and Anr. v. Kakumanu Akkamma and Anr., AIR. 1958 S.C. 1042 their Lordships approved the decision of this Court in Rangasayi v. Nagarathnamma. A.I.R. 1933 Madras 890 (FB) and told thus:-
"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 develoved 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. 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 minors. The true effect of a decision of an 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."
10. The Supreme Court further went on to say thus:-
"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 Prati ae 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, Vol. XXI, page 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".
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 minors. 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".
11. In AIR. 1963 S.C.1601 Lakkireddi Chinna Venkata Reddi and Ors. v. Lakkireddi Lakshmamma, the Supreme Court again had occasion to consider this question which arose in the earlier decision reported in Kakumanu Pedasubhayaya and Anr. v. Kakumanu Akkamma and Anr., A.I.R. 1958 S.C. 1062 Relying on the earlier decision, their Lordships held (in paragraph 7) thus;_ "Action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. The right claimed is in property, and devolves on his death even during minority upon his legal representatives. The Court, it is true, will direct partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the Court granting a decree for partition in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognise the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance."
12. In that case, the conduct of the elder coparceners was shown to be prejudicial to the interest of the minor and hence a partition decree was granted. That is clear from the statement in paragraph 6 of that judgment, which reads thus;-
"..If the conduct of the adult coparceners, or the claim made by them is prejudicial to the interest of the minor, the court will readily presume that it is for his benefit to divide the estate..."
13. In P.M. Ramaswamy Chettiar v. Raja Kuppa Chetti and Ors., A.I.R. 1962 Madras 81 the same principle was followed; Their Lordships held thus;-
"Under the Hindu Law there is no distinction between a major coparcener and minor coparcener, so far as their rights in the joint family properties so too can a minor coparcener. Where, however, a suit for partition is filed at the instance of a minor co-parcener, the court has to be satisfied whether it is in the interests of the minor that he should be divided or whether it would serve his interests better if he continued to be a member of the coparcenary. That has nothing to do with the rights of the minor; the court only decides what is best in his interests as he is incompetent to decide it for himself.
Without effecting an actual partition, a major coparcener has a right by an unilateral declaration on his part to effect a division in status in the family so far as he is concerned. This right is incidental to the right by birth which he has in the family properties. A minor coparcener would also have a similar right. By the very nature of it that right cannot be exercised in the same manner by him as by a major coparcener because a minor cannot be held to have a volition of his own. Therefore, a guardian or next friend acting on his behalf is allowed to exercise a volition on behalf of the minor subject to condition, that such exercise of volition should be approved of by the Court.
14. In Nabisha Begum v. Arumugha Thevar and Ors., AIR. 1974 Madras 273 a similar question came for consideration. Their Lordships held that a suit by a minor for partition of his share in the property is maintainable, provided the Court finds that it is for his benefit.
15. In Hindu Law by Mulla - 15th Edition - 1982, at pages 430 and 431 it is stated thus;-
"Minor coparceners;-(1) Where a suit is brought on behalf of a minor coparcener for partition, the court should not pass a decree for partition, unless the partition is likely to be for the benefit of the minor by advancing his interests or protecting them from danger.
In Pedasuhbayya v. Akkamma, AIR 1958 SC 1042 the Supreme Court pointed out that it is in the exercise of its jurisdiction over minors that the Court requires to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. It also pointed out that what brings about the severance in status is the institution of the suit by the next friend, the decree of the Court merely rendering it effective by deciding that what the next friend had done was for the benefit of the minor. In a later case the Supreme Court has reiterated that view.
Where an adult coparcener in possession of the family property is wasting the property, or sets up an exclusive title in himself, or otherwise denies the minor's rights, declines to provide for the minor's maintenance, it is in the minor's interest that the family property should be partitioned, and the minor's share set apart and secured for him. But if there be nothing to show that the partition would be for the benefit of the minor, the court should refuse to direct partition."
16. In N.R. Raghavachariar's Hindu Law Principles and Precedents - Eighth Edition, 1987 at pages 318 and 319, the learned Author has summarised the entire matter. The relevant portions read thus;-
"When a suit has been instituted for partition on behalf of a minor, what the Court has to find is whether the partition is for the benefit of the minor and if it is satisfied that a decree for partition is in the minor's interest the Court's duty is to grant a decree.... A minor's suit for partition does not abate if he dies before the Court has found that the partition is for his benefit and it is open to his legal representative to proceed with the trial and obtain a decree on his showing that when the partition suit was instituted it was for the benefit of the minor........If the conduct of the adult co-parceners of the claim made by them is prejudicial to the interest of the minor, the Court will readily presume that it is for his benefit to divide the estate... The Principle underlying this view is that it is open to the next friend of a minor to severe him from the joint family by the next friend's unilateral declaration on behalf of the minor...........
In Grandhi Ramakrishnayya v. Grandhi Atchutha Ramayya, I.L.R (1953) Mad. 891 (1952) 2 M.L.J. 515: 1953 Mad. 146, it was held that a notice of division issued on behalf of a minor by his next friend who is not the legal guardian and who subsequently brings a suit on behalf of the minor in which a decree is given on the footing that the partition is for his benefit brought about the severance in status from the date of the notice........."
So, in view of the above position of law, it is clear that the decision of the Courts below that the suit filed by the minor for partition of the family properties is not maintainable, is not correct.
17. The only other question that has to be considered is, whether the mother is entitled to act as next friend, and whether the partition is for the benefit of the minor. This is covered by a decision of a Division Bench of this Court reported in Grandhi Rama Krishnayya and Ors. v. Grandhi Atchutha Ramayya and Ors. AIR. 1953 Madras 146. In the said decision, their Lordships have considered the principles of Order 32, C.P.C. Portions that are relevant for our purpose are found in pages 148 and 149 of the said Judgment and they read thus;-
"In our High Court for some time there was a conflict of decisions whether in the case of a suit instituted on behalf of a minor coparcener by his next friend, the division in status dates from the date of the plaint or from the date when in the suit the decision is reached by the court that the division is in the best interests of the minor. This conflict was, however, resolved by the Full Bench in Rangasayi v. Nagarathinamma 57 Mad. 95. But in this case also, the guardian who acted on behalf of the minor as the next friend was the natural guardian, the mother. It is a case of a suit and no notice issued before suit. That the severance in status can be taken back even to the date of the notice issued anterior to the suit was laid down by a Bench in Kotayya v. Krishna Rao ILR (1945) Mad. 710. This is really the logical extension of the doctrine elaborately discussed and settled in Rangasayi v. Nagarathnamma 57 Mad. 95 (FB). If once it is conceded that a unilateral declaration of intention to sever exercised and intimated on behalf of a minor coparcener by a lawful guardian is effective in law to bring about a severance in status from that date if ultimately it is found in the suit that the physical division is in the interest of the minor, there is no reason for limiting the taking effect of the division in status to the date of the suit itself, if such volition was exercised anterior to the suit. In such an event, there is every justification to extent its operation even to the date of the notice and the logical extension of the principle, therefore, if we may say so with respect, was perfectly justified as found by the learned Judges in Kotayya v. Krishna Rao I.L.R. (1945) Mad. 710. In that case, however, the question whether a notice given on behalf of a minor by a person other than a lawful guardian would have the same consequence if ultimately it was found in the subsequent suit for partition that it was in the circumstances not only justified but was to the positive benefit of the minor coparcener was left open as the learned Judges were not called upon to decide that point It is this question that now arises for decision in the present appeal. We are unable to see any difference in principle between the notice given by a lawful guardian on behalf of a minor and the case where the notice was given by a person other than the lawful guardian, as in the present case by the elder brother. Take for example this very case. The interests of the lawful guardian, the father, are adverse to the interests of the minor plaintiff: the mother is no more: and the lawful guardian cannot act on behalf of the minors because it is not to his interests that there should be a division.
On the other hand, he has been opposing tooth and nail such a division. In such a case, apart from the question of any anterior notice if the suit was instituted by a person other than lawful guardian, the court would be called upon to try the question whether such a partition was or was not in the interests of the minor plaintiff.
In law there is no objection to a person other than a lawful guardian acting as next friend and institute a suit on behalf of the minor plaintiff subject of course, to the provisions of O XXXII, Civil P.C. Under that Order as amended in Madras, any person of sound mind and who has attained majority may act as next friend of the minor. If there is a guardian appointed or declared by a competent authority, however, unless for reasons to be recorded the court appoints another person as next friend and permits him to act, he alone can institute the suit. A person who has an interest adverse to that of the minor cannot, of course, be appointed as next friend.
Subject to these and other limitations imposed by the Code, a person other than the lawful guardian can always institute a suit on behalf of a minor plaintiff. If therefore, a suit for partition was instituted by a person other than a lawful guardian as next friend of the minor and in such a suit is found ultimately that the partition is for the benefit of the minor according to the decision of the Full Bench in Rangasayi v. Nagarathnamma 57 Mad. 95, when there is a decree, for partition in the suit, the division in status takes effect from the date of the plaint. The fact that the choice was exercised by a person who is not the lawful guardian would not prevent the application of the rule in Rangasayi v. Nagarathnamma, 57 Mad. 95 (FB) to such a case. If, therefore, a suit can validly be instituted by a person who is not the legal guardian of the minor members with a view to bring about a division in status., if it is established to the satisfaction of the court that such a division is in the interests of the minor, there is no reason in principle and there is no authority to the contrary to make a distinction between the case of such a suit and a notice which preceded such a suit issued by a person, who is not the lawful guardian of the minor. In our opinion, the suit and the notice in such circumstances so far as the legal consequences are concerned must stand on the same footing subject, of course, to the same limitation in both the cases, viz., that it is ultimately found by the court that the division was in the interests of the minor. The volition in either event exercised by the person, who is not the lawful guardian always takes effect conditional on the court finding ultimately that the severance is in the interests of the minor and for his benefit".
(Italics supplied)
18. In this case, the Courts below have granted a decree for maintenance on the allegations of the plaintiffs against the father having been proved to be true, namely, that he is having connection with some other lady and that the interest of the minor is not protected and that the plaintiffs have been deserted. In that event, the interest of the minor can be protected only by separating him from the father. As said by Mulla in his Principles of Hindu Law (at page 431) Where an adult coparcener in possession of the family property is wasting the property, or sets up an exclusive title in himself, or otherwise denies the minor's rights, or declines to provide for the minor's maintenance. It is in the minor's interest that the family property should be partitioned", and the minor's share set apart and secured for him" (Italics supplied). The said principal fully applies to the facts of this case.
19. In this connection, it is worthwhile to take into consideration a decision of the Karnataka High Court reported in Sharanappa v. Vellamma, I.L.R. 1988 Karnataka (Vol.38) page 1257. The decision was rendered by K. A. Swami J., as he then was. The appellant's counsel was none other than a learned Judge of this Court (Shivaraj Patil, J). In that case, the learned Judge considered the provisions of 0.32, C.P.C. and the provisions of the Hindu Minority and Guardianship Act, and held thus;-
"The provisions contained in Order 32, Rules 1 to 4 make it clear that there is a discretion vested in the Court to appoint the natural guardian or any other person as guardian or next friend of the minor as guardian-ad-idem. In addition to this, any irregularity in the matter of appointment of next friend or guardian unless it is demonstrated that it has caused prejudice to the minor does not vitiate the proceeding... The appointment of the next friend under the provisions of Order 32, C.P.C. does not in any way affect the power of the natural guardian either under the Hindu Minority and Guardianship Act or under Hindu Law...
20. In this case, we are not concerned as to whether the first defendant is competent to deal with the property of the minor after the same has been partitioned. We are only concerned with the question whether the minor is entitled to a partition when his father is alive.
21. In the result, the second appeal is allowed. There will be a preliminary decree for partition of the one-fourth share which the courts below have found as the due share of the plaintiffs. On receipt of records from this Court, the trial Court will depute an Advocate Commissioner on the application of the plaintiffs, to demarcate the plaintiff's share by metes and bounds. The other questions which are relevant for passing of final decree like mesne profits, division and other equitable considerations also will be considered by the trial court, while passing the final decree. No costs.