THAVVA RANGASAYI Vs. THAVVA NAGARATHNAMMA

JUDGEMENT

(1.) The facts out of which this revision petition arises are as follows: - O.S. No. 36 of 1930 was filed for partition in the Subordinate Judge s Court of Ellore on behalf of an infant Plaintiff by his mother as next friend. The 1st Defendant is an uncle of the Plaintiff; the 2nd Defendant is his son and the 3rd Defendant is the Plaintiff s half-brother. The Plaintiff, his deceased father and the Defendants were members of a joint-family. The Plaintiff s father died on the 16th May, 1929, and the suit was instituted on the 29th October, 1929, on the allegation that the Defendants were misappropriating the Plaintiff s share in the family properties and that they refused to deliver the Plaintiff s share though demanded and turned him and his mother out of the family house in September, 1929. While the suit was pending the Plaintiff died on the 21st March, 1931. His mother then applied to be brought on record as legal representative. The Subordinate Judge passed an order directing that the Plaintiff s mother be brought on record as legal representative. He also directed that an issue be framed in the suit as to whether the suit was instituted in the interests of the minor and whether, had he survived, a decree for partition with effect from the date of the plaint at the latest ought to have been passed. Against this order the Defendants filed this Revision Petition. The Revision Petition originally came on for arguments before our brothers Venkatasubba Rao and Reilly, JJ., who differed and referred the following questions to a Full Bench:

(2.) Is it 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?

(3.) From the facts of the Privy Council decision in Balkishen Das v. Ram Narain Sahu (1903) L.R. 30 I.A. 139 : I.L.R. 30 Cal. 738 (P.C.) it appears that two of the parties to the ikrarnama in that case were minors represented by their guardian. It was held that the ikrarnama was binding on the minors. An adult member can separate from the family even if there are minors by communicating his intention to the other adult members and in the case of minors to some person properly representing them. The question therefore that arises before us is what is the effect of such a rule of practice conceived in the interests of minors? When it is said that the Court does not grant a decree for partition in favour of a minor unless it is shown to be required for his benefit, is it merely a limitation on the passing of the decree or on the maintainability of the suit? If until the Court actually applies its mind to the facts and passes a decree directing a partition the minor cannot be said to be separated from the family, how is it that there can be a private partition even without the machinery of the Court? If a guardian representing the minor can obtain a partition on his behalf or in other words if he can assert the right for a division on behalf of the minor outside the Court why can he not assert such a right by the filing of a plaint? In Soundararajan v. Arunachalam Chetti (1915) I.L.R. 39 Mad. 159 : 29 M.L.J. 816 (F.B.) the suit was filed on behalf of an illegitimate son for partition. The Subordinate Judge dismissed the suit on the ground that his paternity was not proved. On appeal the High Court found on the facts that it was proved and referred to a Full Bench the question of the quantum of his share. During the pendency of the appeal the Defendant (the legitimate son) died. At this stage it was contended on behalf of the minor that he was entitled to the whole property. It was held that he was not. It was also held by the Full Bench that he was entitled only to the share to which he was entitled at the time of the filing of the plaint. It was suggested both before the Division Bench and before us that the fact that the Plaintiff was a minor was overlooked by the Judges and the Counsel in the case and that that decision should not be regarded as an authority. The actual judgments make no reference to the fact of the Plaintiff being" a minor. But for this, the suggestion could not be made. Jackson, J. in Akkanna v. Rangaraju , thought that the learned Judges could not have overlooked the fact. I am inclined to agree with Jackson, J. s view. I cannot imagine that the very eminent Judges who dealt with the case and the eminent Advocates (Messrs. A. Krishnaswami Aiyar and S. Srinivasa Aiyangar) that appeared in it could have overlooked such a fact. In my opinion that decision is authority for saying that a suit having been filed on "behalf of a minor Plaintiff there being obvious differences in the family the Plaintiff being the illegitimate son and the Defendant the legitimate son and there being no question as to the desirability of a partition, the Plaintiff became separated by the filing of the plaint. However that was not the point referred to the Full Bench and as the point was not discussed, it is desirable to consider the point apart from the weight of that decision.