SRI RANGA THATHACHARIAR, LATE A MINOR BY NEXT FRIEND KOMALATHAMMAL, BUT NOW DECLARED MAJOR AND NEXT FRIEND DISCHARGED Vs. SRINIVASA THATHACHARIAR ALIAS SRINIVASA RAGHAVACHARIAR

JUDGEMENT

(1.) This is an appeal preferred by the minor plaintiff against the final decree for partition passed by the Subordinate Judge of Coimbatore in a suit for partition instituted by the minor plaintiff represented by his mother as next friend against the first defendant, who is his step- brother, and several others. The plaintiff is the son of the late Varadachariar, a resident of Coimbatore, by his third wife and the first defendant is the son by his second wife. Both the plaintiff and the first defendant were minors at the time of their father's death which occurred in November, 1913. The first defendant became a major in December, 1916 and since then he was acting as the manager of the family and the plaintiff is still a minor. The plaintiff's suit for partition was instituted on the 14 August, 1918 and a preliminary decree for partition was passed on the 7 April, 1921. One of the questions involved in this case is when did the plaintiff and the first defendant become divided in status? The determination of this question is necessary in order to fix the extent and nature of the liability of the first defendant to account for the management of the family properties and the income derived therefrom . The form of account to be ordered as against the first defendant as manager of the family till severance in status as between him and the plaintiff would be different from the form of account to be ordered against the first defendant after such severance. The learned Subordinate Judge held that it was the preliminary decree for partition passed by the Court on 7 April, 1921 that effected a division in status and on that basis he fixed the accountability of the first defendant. The correctness of that view is challenged before us in this appeal.

(2.) The contention which was strongly pressed before us by Mr. Varadachariar on behalf of the appellant is, that in a suit for partition launched on behalf of a minor, if the Court holds that a division is necessary in the interests of the minor and passes a preliminary decree for partition, it must be deemed that the divided status of the plaintiff dates from the plaint at least. it is now settled law that a clear and unambiguous expression of intention to become divided made by an adult co-parcener to the knowledge of the other members of the family effects a severance of the joint status so far as the person who expresses his individual volition is concerned. Girja Bai V/s. Sadashiv Dhundiraj (1916) ILR 43 C 1031 : 3l MLJ 455 (PC). in the Full Bench decision of this Court reported in Soundararajan V/s. Arunachalam Chetty (1915) ILR 39 M 159 : 29 MLJ 816 (FB), it has been held that the filing of a plaint claiming partition amounts to an unambiguous manifestation of intention on the part of the plaintiff within the meaning of the ruling of the Privy Council in Suraj Narain V/s. Iqbal Narain (1912) ILR 35 A 80 : 24 MLJ 345 (PC). In a later decision of the Privy Council in Kawal Nain V/s. Budh Singh (1917) ILR 39 A 496 : 33 MLJ 42 (PC) their Lordships reiterated this principle and observed at page 498: A decree may be necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains a consequential judgment or not.

(3.) That is the law as regards a major co-parcener filing a suit for partition. But if a minor co- parcener institutes such a suit by his next friend, it has been held by this Court in Chelimi Chetty V/s. Subbanuma (1917) ILR 41 M 442 : 34 MLJ 213, that the mere filing of a plaint on behalf of a minor would not ipso facto effect a severance of the joint family status, for in such a suit it is for the Court to determine whether the partition asked for will be beneficial to the minor. The same view has been followed in Lalta Prasad V/s. Sri Mahadeoji Birajman Temple (1920) ILR 42 A 461. If such a suit proceeds to the stage of a decree in the plaintiff's favour on the Court finding that the partition would conduce to the best interests of the minor, the further question is whether the severance of the joint status takes place only from the date of the preliminary decree or from the date of the plaint. On this question there is the direct authority of a recent decision of a Bench of this High Court Krisknaswami Thevan v. Pulukaruppa Thevan (1924) ILR 48 M 465 : 48 MLJ 354. It has been held in that case, distinguishing the decision in Chelimi Chetty V/s. Subbamma (1917)ILR 41 M 442 : 34 MLJ 213 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. In that case the question to be decided was whether the birth of another co-parcener in the family subsequent to the institution of the suit by the minor plaintiff and before the passing of a preliminary decree had the effect of diminishing the share which the plaintiff had on the date of the institution of the suit and for deciding that question it had to be determined whether the plaintiff became divided in status from the date of the plaint itself or from the date of the preliminary decree for partition. Spencer, J., in considering the effect of the decree for partition in such a suit stated at page 468: Therefore in my judgment the only sound principle will be to regard the prayer in the minor's plaint for division as a conditional request that, provided that the Court sees fit, it may declare the status of the minor divided as from the date of the plaint. It is true that there can be no division of status unless the Court sees fit to decree it, but there is no reason why the Court should not make its decree take effect from the date of the institution of the suit.