BHOLA NATH Vs. GHASI RAM

JUDGEMENT

(1.) This appeal arises out of a suit for partition instituted by a minor son against his father. In the plaint the plaintiff by his guardian assigned his reason for instituting the suit in paragraphs 8 and 9. He alleges that the defendant Ghasi Ram, wrongfully, in collusion with his brother, caused the name of his nephew Makhan Lal to be recorded in respect of one-third of the property in the village called Surajpur Shahbazpur, although he had no title to or concern with that property. In the succeeding paragraphs he states that Ghasi Ram was the lambardar of the village which I have mentioned and that he wrongfully misappropriates the income of that village. If this allegation be true, it would seem certainly to be for the interests of the minor plaintiff that the property should be partitioned and the interest of the plaintiff be thereby safeguarded. The learned Subordinate Judge, however, has dismissed the suit on the ground that no case of malversation was established. In the course of his judgment he observes: "Under the Hindu law the minor son could only sue for partition on the ground of malversation." Then he quotes the following passage from Mr. Mayne's work;--" A suit could not be brought by or on behalf of a minor to enforce partition, unless on the ground of malversation, or some other circumstances which make it for his interest that his share should be get aside and secured for him"--(Mayne, Section 400); and then the learned Subordinate Judge observes: "Here in my opinion there was no case of malversation." "Whether the learned Subordinate Judge intended by this to convey that no case of malversation had been alleged in the plaint we are unable to say. He evidently was of opinion that unless malversation was alleged and proved, the suit on behalf of a minor son for partition could not be maintained. He has overlooked the other circumstances which according to the authorities will justify the institution of a partition suit by or on behalf of a minor. These are such circumstances as in the interest of the minor render it advisable that his share should be set aside and secured for him. In other words, the question for the Court to determine is whether or not it is shown to be for the benefit of the minor that a partition of the joint family property should be effected. As this question does not appear to have been properly considered and the suit was dismissed on the sole ground that there was no case of malversation, we must allow this appeal. We set aside the decree, and remand the case under the provisions of Section 562 of the Civil P. C. to the Court below, with directions that it be reinstated in the file of pending suits and be disposed of on the merits, the important consideration for the Court being whether or not it is for the interest of the minor plaintiff that the family property should be partitioned.

(2.) Costs here and hitherto will abide the event. George Knox, J.

(3.) I agree, and only wish to add that if the matter were res integra I should feel bound to express a doubt as to whether the Hindu law on the subject has been rightly apprehended. So far as I know no test has yet been found which prohibits a demand for partition on the part of a minor, and it is upon this that the law at present proceeds. At the same time the idea of a minor in a Hindu joint family asserting a right to partition as against his father is something so strange that, but for the Courts having held as they have done, I should have ventured to question the decision.