MANNAVA RAMA RAO Vs. MANNAVA VENKATA SUBBAYYA

JUDGEMENT

(1.) This is a suit for partition. The plaintiff is the son of defendant 1 by his first wife. Defendants 2 and 60 are his sons by the second wife. The plaintiff was born on 4 August 1908. He instituted the suit through his next friend on 3 October 1922. He attained his majority on 4 August 1926, and elected to continue the suit on 20 August 1926. Defendant 60 was born to defendant 1 on 4 August 1925 and was added as a party to the suit.

(2.) One of the questions in this case is, what is the share which the plaintiff is entitled to? If the rights of the plaintiff are to be determined as on the date of the plaint he would be entitled to one-third, but if it is to be determined as on the date when he elected to continue the suit or as on the date of the preliminary decree for partition in this case, he would be entitled to one-fourth. The lower Courts took the view that the plaintiff must be deemed to have been a member of an undivided family till he attained majority and elected to continue the suit, and he can only be given such share as he would be entitled to according to the state of the family on that date, and the family on that date consisted of four members including defendant 60, and he can only be given one-fourth share in the properties to which he was held entitled. It is contended before me by Mr. Kameswara Rao on behalf of the plaintiff, that that view is unsound. The recent Full Bench decision of the Madras High Court in Rangasayi v. Nagarathnaruma, AIR 1933 Mad 890 establishes that a suit for partition instituted on behalf of a minor operates as severance of his status from the joint family of which he was a member from the date of plaint if it ends in a decree and the suit does not abate on his death but can be continued by his legal representatives subject to the condition that the Court has still to find that circumstances existed on the date of plaint which rendered severance necessary in the interests of the minor. The ratio of the decision is that it is competent to a guardian of a minor to manifest the intention to separate on behalf of the minor, and the Court, if it comes to the conclusion that the partition is beneficial to the minor, may adopt the act of the guardian and the minor becomes divided in status as from the date of the plaint. Ramesam, J. observes: The cases show that the volition indicating a desire for separation and an unambiguous intention to separate cannot be expressed by the minor himself but must be exercised on his behalf by some other person, by a guardian in a private partition and by a next friend in the filing of a plaint. If in the case of a minor the option cannot be exercised by him but should be done by somebody else on his behalf, why should not the exercise of that option on his behalf effect a severance as in the case of an adult?

(3.) Referring to the following observation in Chelimi Chetti V/s. Subbanna AIR 1918 Mad 379: In the case of a minor the law gives the Court the power to say whether there should be a division or not, etc., Ramesam, J. remarks: As I said, this is a rule conceived in the interests of minors. It does not mean that the exercise of the discretion is totally inoperative until the Court records its finding. In such a case it seems to me that the proper way of describing the situation is that the exercise of the option on behalf of the minor effects a severance conditional on the Court finding that it was for the benefit of the minor.