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The second Plaintiff, being a minor, is incapable of exercising the intention to separate by himself. The next friend does it for him.

13. I there indicated my opinion that the next friend exercised the volition on behalf of the minor. Then I said:

If the Court thinks fit to allow partition on behalf of the minor, one can well say that the minor has become divided; but until the decree is passed one cannot say that the minor's interests are divided from the rest of the family.

14. All that I said in this sentence was that until the decree was passed one is not in a position to assert that the minor's interests are divided. I did not say that the minor's interests are divided only from the date of the decree. The decree gives us information enabling us to say that the minor has become divided. In my opinion there is nothing in the judgment against the contention of the legal representative in this case.

36. The decision in Chelimi Chetty v. Subbamma (1917) I.L.R. 41 Mad. 442 : 34 M.L.J. 213 directly holds that the death of a minor prior to decree causes such a suit to abate.

37. The learned Judges are, if I may say so, quite right in stating that it depends upon the (volition) discretion of a member of a joint Hindu family whether he is to continue the joint status or whether there should be individual separation. But when they proceed to infer from the same that "the member who exercises such discretion must be of an age capable of exercising discretion, in law," I think they have not paid due regard to the circumstances already mentioned by me, with reference to such a discretion (volition) of a minor being exercised on the minor's behalf by the minor's mother or possibly by other natural guardians of the minor, when partition is effected outside Court between the members of a joint Hindu family. If such a thing could be done on behalf of the minor by his mother, etc., outside Court when partition is effected by private arrangement, I do not see sufficient reason for holding that such a thing could not be done in a proper case on behalf of the minor when a suit for partition on behalf of the minor becomes necessary. No doubt, a partition by private arrangement outside Court could be impugned by the minor when coming of age on particular grounds, and it is open to him to file a suit with a view to get his proper share. But when a suit for partition on behalf of a minor is instituted, the Court takes care to examine the circumstances with a view to satisfy itself whether it is beneficial to the minor. Obviously it is inconvenient, if not against sound legal principles also, to have a decree for partition passed on behalf of a minor made the subject of complaint in a subsequent suit, when no fraud in the conduct of the suit is alleged but all that is complained of is' that the partition is not in the interests of the minor. To avoid such inconvenience, the Court before passing the decree examines the circumstances with a view to find out whether the partition claimed is to the benefit of the minor. But to hold, that, should the minor die before decree, the Court has no jurisdiction to examine the question and that the suit should be taken to have abated, would be to give undue prominence to a; subsidiary matter and allow subsidiary considerations to overlord and govern substantial rights. I think it is possible to give effect to the subsidiary incidental matters and at the same time to give effect to substantial rights if we were to hold that it is open to the guardian of a minor to exercise the discretion: or volition on behalf of a minor in, such a case prior to suit when proper circumstances exist to justify such an exercise, and also to institute a suit on behalf of the minor for partition. Neither the exercise of such discretion, nor the institution of the suit, nor both combined, could bring about severance in status of the minor, unless the Court was satisfied, that having regard to the circumstances, partition was to the benefit of the minor. But when the Court comes to such a conclusion, it would seem to follow that severance in status should be deemed to have taken place, at least on the institution of the suit. I say " at least," because, logically, it would seem to follow in a proper case, that the severance should be deemed to have taken place when the discretion or volition was exercised on behalf of the minor and the necessary communications made to the other coparceners prior to the institution of the suit. I may repeat that I am quite alive to the circumstance that it is open to any stranger to institute such a suit as the next friend of the minor; but in the view above stated, I do not think that there need on that account be any cause for alarm, seeing that the Court would take that circumstance also into account in coming to its conclusion whether the suit was for the benefit of the minor or not. The minor might have attained age of discretion in the sense that his opinion might be taken by the Court to be the result of intelligent discussion by him in his own mind of the pros and cons of the question. But the next friend might be the mother of the minor, and the partition might have been demanded against the step-brothers or other relations of the minor who are acting prejudicially to the minor. In all cases, it is necessary that the reasons alleged in the plaint and the whole of the circumstances of the case should be considered by the Court. The Court can also in proper cases stay the suit as frivolous or vexatious if brought by a next friend merely to satisfy his own personal grudge against the Defendants. These relate to considerations of matters of evidence. In considering the principle of law applicable, we should not forget that the ultimate approval or imprimatur is by the Court. If regard be had to all the considerations, the suggestion of "great hardship and inconvenience if it were left to the discretion of any person who chooses to file a suit on behalf of a minor to decide whether the family of which the minor is a member shall continue joint or become separate" should not be taken to be conclusive of the question. I respectfully agree that the logical result would be that even a notice given by such a person on behalf of a minor to the other members of a family would be effectual in working a severance of the joint status, provided the Court finds in the suit for partition that it was to the benefit of the minor. On the other hand, it needs no effort to imagine a case (not uncommon in practice) where a suit on behalf of a, minor Plaintiff is instituted by his mother, the Defendant being the minor's step-brother. It is possible that the step-brothers find it impossible to get on together peacefully, - the step-mother also finding it impossible to get on with the Defendant - the step-son. Again, the minor Plaintiff might have been married before suit. In the circumstances, the minor, so far as he could exercise his discretion in the matter, and his mother and near relations might well have come to the conclusion that partition is the only solution to put an end to misery and bring peace to the parties. Even if the minor should die before decree in such cases, it is possible that the Court might come to the conclusion that, in all the circumstances, it was for the benefit of the minor to have partition. I doubt whether one is confined to considerations purely personal to the minor, - minor's personal comforts or inconvenience--though that would naturally be a very material consideration. I only remark that considerations in relation to the minor's wife, minor's daughter, minor's mother, etc., may not be quite irrelevant. Again, a Hindu father might have left minor sons by different wives. The minors and their mothers might not have been able to get on peacefully at all. In such cases, if the respective mothers could arrange for a valid partition outside Court, why should they be helpless if litigation is found necessary. While I agree with the learned Judges that it must be left to the Court to decide whether there should be partition or not, I find myself unable to agree with their reasoning that the death of the minor has the result of causing the suit to abate.

38. It has been held in several cases by this Court that when once the Court comes to a conclusion on the evidence that the suit is for the benefit of the minor, then, the decree that is passed works out a severance of the status from the date of the plaint. See Krishnaswami Thevan v. Pulukaruppa Thevan (1924) I.L.R. 48 Mad. 465 : 48 M.L.J. 354. There the question arose with reference to the quantum of share to which the minor Plaintiff was entitled, when there were subsequent births of coparceners in the family after the date of the plaint. The learned Judges - Spencer and Devadoss, JJ. - held that "a suit by a minor for partition, if it ends in a decree for partition, has the effect of creating a division of status from the date of the plaint". Logically, I think that it must be said that the decision of the learned Judges in Krishnaswami Thevan v. Pulukaruppa Thevan (1924) I.L.R. 48 Mad. 465 : M.L.J. 354 is riot consistent with the principle of the decision in Chelimi Chetty v. Subbamma (1917) I.L.R. 41 Mad. 442 : 34 M.L.J. 213. It is not from the date, of the Court's finding that the suit is for the benefit of the minor, that severance is to be worked out, but from the date of the plaint at least. I respectfully agree with the considerations mentioned by the learned Judges, which induced them to hold that the date of severance should not be from: the date of the decision by the Court. If this view be accepted, then, the real basis, for the decision in Chelimi Chetty v. Subbamma (1917) I.L.R. 41 Mad. 442 : 34 M.L.J. 213 would have been greatly shaken.

Cornish, J.

52. Except for Chelimi Chetty v. Subbamma (1917) I.L.R. 41 Mad. 442 : 34 M.L.J. 213 no case covering the question referred to us has been brought to our notice. In that case it was held that on the death of the minor Plaintiff in a partition suit before decree a legal representative was not entitled to be brought on record to continue the suit. But there is no discussion of the topic in the judgment'. The judgment merely accepts the Respondent's contention that, as there was no partition, whatever rights the minor had in the coparcenary property survived to his coparceners. I think the explanation suggested by Venkatasubba Rao, J. in the referring order must be correct, that the contention put forward by the Appellant in that case was that, without anything more, a minor became divided in status from his coparceners at the moment of instituting his suit for partition. The judgment must be taken as proceeding upon and refuting that proposition. There can be no doubt upon the authorities that in the case of a minor suing for partition through his next friend severance of status is only accomplished if the suit is decreed, but the severance will be deemed to have taken place from the date of the plaint. The effect of the Court's decree is to affirm the minor's: right to separate from his coparceners. This seems to me to be the implication from what is said in Sriranga Thatha Chariar v. Srinivasa Thatha Chariar (1927) I.L.R. 50 Mad. 866 at 872 : 53 M.L.J. 189 that, "when the Court thinks fit on a consideration of the circumstances set forth in the plaint to decree partition, the imprimatur of the Court must be deemed to have been placed on the allegations in the plaint justifying the effecting of a partition." The question is, what is the position when the minor Plaintiff dies pending suit? If the suit is discontinued, the minor's undivided interest in the joint property will, of course, survive to his remaining coparceners. But the suit will only abate if the cause of action does not survive. A right of a coparcener to have his share defined and divided from the joint property is incidental to coparcener-ship. In the case of an adult coparcener the institution of a suit by him is regarded as such an unequivocal expression of an intention to separate that he is deemed to have become thereby divided in status, and should he thereafter die while the suit is pending his share is severed from the coparcenary property. If he is solely entitled to that share it will form part of his separate estate. In the case of a minor the assertion by suit of his right to separate is, as we have seen, an inchoate right until perfected by a decree of the Court. But whether the Plaintiff be an adult or a minor there is no distinction as regards the date from which divided status begins: Krishnaswami Thevan v. Pulukaruppa Thevan (1924) I.L.R. 48 Mad. 465 : 48 M.L.J. 354. Now, the minor's right to enforce a partition being solely dependent upon the approval by the Court of the circumstances alleged in the plaint for justifying a partition, I can see no reason why the justification should be treated as ceasing to exist with the subsequent death of the minor. Why should his death debar the Court from confirming his right to a partition? The interest or benefit of the minor which is said to be the guiding consideration with the Court in decreeing the suit is not simply an interest or benefit personal to the minor. It involves the existence of special rights to property. In my judgment the accident of the minor's death pending suit ought not to prevent the pursuit of those rights for the benefit of the minor's estate by his legal representative.