Ramesam, J.
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:
1. Does a suit by a minor for partition abate if he dies before the Court has found that partition is for his benefit? or
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?
2. So far as an adult Plaintiff is concerned, it is now established law that the filing of a suit for partition amounts to a definite and unambiguous intention to separate vide Suraj Naraih v. Iqbal Narain (1912) L.R. 40 IndAp 40 : I.L.R. 35 All 80 : 24 M.L.J. 345 (P.C.). A member of a joint family can separate from the family even prior to a suit provided he declares a definite and unambiguous intention to separate and communicates it to the other members of the family vide Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 : M.L.J. 455 (P.C.). The question now arises how far are these principles to be applied to the case of a minor. If it can be said that a suit for partition can always be filed on behalf of a minor and there are no limitations as to the granting of a decree in such a suit, no difficulty arises. But while a suit on behalf of a minor can be filed by any person as next friend, Courts have laid down that in the case of a suit for partition the suit ought not to be decreed unless it is for the benefit of the minor. The reason for such a limitation imposed by the Courts is not that there cannot be a partition between a minor and the other members of the family but it is possible that the suit may not be for his benefit. When it is remembered that any person can sue on behalf of a minor as next friend it is easy to imagine cases where the partition is not for his benefit. If the property is not being properly managed or if his rights are denied, it is obvious that he should have a partition vide Kamakshi Animal v. Chidambara Reddi (1866) 3 M.H.C.R. 94. But where the property is being well managed and the minor is well looked after, there is no need of a suit for partition and it is possible that a meddlesome next friend without keeping in his mind the minor's interests may file a suit for partition on account of some misunderstanding of his own with the members of the family or some other motive. It is to avoid such a contingency that the rule has been observed by the Courts. In Nallappa Reddi v. Balammal (1864) 2 M.H.C.R. 182 a private partition in which the minor was represented by a proper guardian was held to be binding see also Chanvirappa v. Danava I.L.R. (1894)19 Bom. 593.
3. From the facts of the Privy Council decision in Balkishen Das v. Ram Narain Sahu 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 I.L.R. (1915) 39 Mad. 159 : 29 M.L.J. 816 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 : AIR1930Mad486 , 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.
4. In Chelimi Chetty v. Subbamma I.L.R. (1917) 41 Mad. 442 : 34 M.L.J. 213 the Court upheld the view now contended for by the Defendants. At p. 444 it is observed:
That prima facie implies that the member who exercises such discretion must be of an age capable of exercising discretion in law. That will not be the case with a minor at least if he is of an age when discretion cannot be imputed to him.
5. This rather suggests that if the minor is of an age capable of exercising discretion, then there may be severance. But that is not consistent with the cases. 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. At page 445 it is observed:
This clearly does not amount to anything more than this, that it is open to a person who chooses to act on behalf of a minor member of a Hindu family to exercise the discretion on his behalf to effect a severance.
6. This sentence clearly shows that it is not the minor's volition but the next friend's volition that matters. But the learned Judges further proceed to say:
What causes the severance of a joint Hindu family is not the existence of certain facts which would justify any member to ask for partition, but it is the exercise of the option which the law lodges in a member of the joint-family to say whether he shall continue to remain joint or whether he shall ask for a division.
7. 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? The learned Judges say:
In the case of a minor the law gives the Court the power to say whether there should be a division or not, etc.
8. 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.
9. In Krishnaswami Thevan v. Pulukaruppa Thevan I.L.R. (1924) 48 Mad. 465 : 48 M.L.J. 354 it was held that there was a division of status from the date of the plaint. There the suit was on behalf of a minor Plaintiff, and his prayer was described 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. But it was added 'It is true that there can be no division of status unless the Court sees fit to decree it'. This case is not conclusive either way.
10. In Sriranga Thatha Chariar v. Srinivasa Thatha Chariar I.L.R. (1927) 50 Mad. 866 : 53 M.L.J. 189 Coutts Trotter, C.J. observed:
When the Court thinks fit on a consideration of the circumstances set forth in the plaint to decree partition of the family properties, the imprimatur of the Court must be deemed to have been placed on the allegations made in the plaint justifying the effecting of a partition.
11. No doubt the preceding part of the sentence assumes that a severance in the status of the family could not be effected by the individual volition of the minor's next friend, still the latter part of the sentence seems to indicate that the decree operates only as 'guinea stamp' whereas the essential factor is the volition exercised on behalf of the minor. However this decision too is not conclusive.
12. In Rama Rao v. Hanumantha Rao I.L.R. (1929) 52 Mad. 856 : 57 M.L.J. 720 in which I delivered the judgment this point did not arise and our observations were made with reference to the actual contentions in the case. The major Plaintiff in that case claimed a two-thirds share on the ground that the share of his brother (the minor Plaintiff) came to him by survivorship. Merely saying that the minor Plaintiff was also divided from the rest of the family was not enough for the major Plaintiff. The major Plaintiff had to show not only that the minor Plaintiff was separated from his father but remained joint with the major Plaintiff. With reference to this claim the actual observations were made. I observed in that case:
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.
15. In Krishnamurthi Pillai v. Sundaramurthi Pillai I.L.R. (1931) 55 Mad. 558 : 63 M.L.J. 37 I observed at page 569:
In the present case, neither the father nor the Official Assignee has any power to deal with the son's share after 11th February, 1927.
16. From the facts at page 560 it appears that that was the date of the suit filed on behalf of the minor son. This seems to' indicate that there is a severance of the son's interest by the filing of the plaint. However the matter was not discussed.
17. It seems to me that the decision of the case depends upon whether the essential act on behalf of the minor is the volition of the guardian expressed on his behalf or whether it is the discretion exercised by the Court. This can be tested in the following way: - Suppose a suit for partition was filed on behalf of a minor of 17. By the time the case comes on for trial the minor attains majority and he continues the suit. In such a case is a finding by the Court necessary that the suit when filed was for the benefit of the minor? If in such a suit one Defendant dies prior to the Plaintiff attaining majority can the minor's share be augmented by that death or would it be limited to his own share? Now, if it is the Court's judgment that effects the severance in such a suit the Court has still to 'give a finding that when the suit was filed it was conceived for his benefit. If it was not conceived for his benefit though in the events that happened the suit proceeds the severance was not effected from the date of the plaint and the Plaintiff, would get the benefit of survivorship on account of the death of the Defendant. But if the suit was well-conceived at the date it was filed, then the Plaintiff becomes completely separated on the date of the plaint. I do not think that in practice in such a suit any Court addresses itself to the question whether the suit was for the benefit of the minor. Or again suppose in such a suit when the case comes on for trial there was still three months for the Plaintiff to attain majority. There is an issue in the case whether the filing of the suit was for the benefit of the minor. From the point of view of common sense the most obvious course would be to avoid the trial of that issue and adjourn the case for the remaining three months. Again let us take the case of a suit filed on behalf of a minor by a next friend and while the suit was pending the next friend retires from the case or dies and no other person comes forward to continue the suit as next friend. In such a case the suit cannot be dismissed. The strictly logical course in such a case is, if no other next friend can be found, to wait until the minor attains majority and then proceed with the suit or not according to the wishes of the quondam minor. Again, if a, suit is filed by a father for himself and his minor son for partition, is it necessary to decide the issue that the partition is beneficial to the minor? In such cases, except in special circumstances, the son follows the father. Both became divided from the Tiling of the plaint. The opposite view involves the anomaly that in the same suit, while the father became divided from the date of the plaint, the son becomes divided after the Court records a finding that the suit is beneficial to the minor. In such a case, the father and son are together severed from the rest of the family from the date of the plaint. These instances show that the object of the issue whether the suit was for the benefit of the minor is really to remove the obstacle in the passing of the decree. It is no objection to the maintainability of the suit. In the instances I have given the suits are perfectly maintainable. The condition is somewhat analogous to the production of a succession certificate before the decree is passed. In my opinion therefore in all such cases the severance is effected from the date of the suit conditional on the Court being able to find that the suit when filed was for the benefit of the minor. If so the legal representative can bring himself on record and ask for the decision of such an issue in the trial of the suit which is to be continued at his instance.
18. It is unnecessary to refer to the other decisions of single Judges cited before us.
19. In my opinion the view of Venkatasubba Rao, J. is correct and I accordingly answer the questions referred to us.
Anantakrishna Ayyar, J.
20. I agree. Sobhanadri and the 1st Defendant were undivided brothers. The 3rd Defendant is the son of Sobhanadri by his first wife and the minor Plaintiff is the son of Sobhanadri by his second wife. The 2nd Defendant is the son of the first Defendant. After the death of Sobhanadri, the minor Plaintiff, through his next friend his mother, instituted O.S. No. 36 of 1930 on the file of the Subordinate Judge's Court of Ellore for partition of the joint-family properties of the parties. The plaint contained certain allegations with a view to show that it was for the clear benefit of the minor that partition should be decreed. The plaint also stated that prior to suit in September, 1929, the Plaintiff's next friend declared to the Defendants that it was in the interests of the Plaintiff to separate, and asked the Defendants to partition the family properties, which the Defendants declined to do. The Defendants filed written statements denying the allegations in the plaint and contending that it was not in the interests of the Plaintiff to separate from the Defendants. After issues were framed, the Plaintiff died on 21st March, 1931, before the suit came on for trial. The Plaintiff's mother filed I.A. No. 352 of 1931 praying that she might be brought on record as legal representative of the deceased Plaintiff with a view to continue the suit. Her application was opposed by the Defendants. The learned Subordinate Judge by his order, dated 20th April 1931, observed that
if the present case be proceeded with, it was quite possible that the Court may hold, if the suit be tried in the circumstances as they stood on and prior to the date of the plaint, that the suit was beneficial to the minor Plaintiff; that, had the Plaintiff survived, a decree for partition would have been passed, and that therefore the Plaintiff must be considered to have become separated in status at least from the date of the plaint. If such a finding is possible, the Petitioner must, I think, be brought on record. I allow the petition; an issue will however 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 least would have been passed.
21. Against that order, the Defendants 1, 2 and 3 preferred a Civil Revision Petition to the High Court. When the Civil Revision Petition came on before me for final disposal having regard to the importance of the question, I referred the Revision Petition to a Bench for disposal. The learned Judges who ultimately heard the Revision Petition differed in their opinion, with the result that the following two questions have been referred to the decision of a Full Bench:
1. Does a suit by a minor for partition abate if he dies before the Court had found that partition is for his benefit? or
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?
22. Before proceeding to discuss the question, I must state that the decision of the Full Bench in Soundararajan v. Arunachalam Chetty I.L.R. (1915) 39 Mad. 159 : 29 M.L.J. 816 (Sir John Wallis, C.J., Justice Sadasiva Aiyar and Justice Seshagiri Aiyar) seems in effect to answer the exact questions now referred to us. The Full Bench held that a member of a joint Hindu family becomes separated from the other members by the fact of suing them for partition. It was brought to our notice that, as a matter of fact, the Plaintiff was a minor in that case, and that as that fact is clear, it must be taken that the Full Bench answered the question with reference to a minor Plaintiff suing for partition. Though very able Counsel argued that case, the opinions of the learned Judges given in answer to the Full Bench reference do not specifically refer to the fact that the Plaintiff was a minor. If the answer given by the Full Bench in Soundararajan v. Arunachalam Chetty I.L.R. (1915) 39 Mad. 159 : 29 M.L.J. 816 should be taken to be given with reference to the facts appearing in that case, where the Plaintiff was a minor, then, it goes without saying that, that decision prima facie binds the present Full Bench. However, as we have heard elaborate arguments from learned Counsel in this case, I proceed to consider the arguments advanced before us, and to state what, in my opinion, should be the answers to the two questions referred to us.
23. This question came directly for decision in Chelimi Chetty v. Subbamma I.L.R. (1917) 41 Mad. 442 : 34 M.L.J. 213 and the learned Judges decided that 'where a minor Plaintiff dies during the pendency of the suit, his legal representatives are not entitled to continue the suit'. The correctness of this decision has been questioned before us.
24. It has been held by the Privy Council that partition in the case of an adult coparcener in a joint Hindu Mitakshara family is the severance of joint status, that it is a matter of individual volition, and that a definite and unequivocal indication of his intention by a member of such a joint-family to separate himself from the family constitutes a partition in status; and, whether the others assent to it or not, there is in law an immediate severance of the joint status of such a member. There are various ways by which such intention may be evinced. Suraj Narain v. Iqbal Narain (1912) L.R. 40 IndAp 40 : I.L.R. 35 All. 80 : 24 M.L.J. 345 (P.C.) and Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 : 31 M.L.J. 455 (P.C.). Such a notice given by a coparcener may be withdrawn with the consent of all coparceners. The institution of a suit for partition against all the other coparceners would also be evidence of an expression of such an intention and would work division in status in the case of an adult Plaintiff. Kedar Nath v. Ratan Singh (1910) L.R. 37 IndAp 161 : I.L.R. 32 All. 415 : 20 M.L.J. 900 (P.C.) and Palani Animal v. Muthuvenkatachala Moniagar . The result of withdrawal of such a plaint is thus expressed by the Privy Council at p. 258 of I.L.R. 48 Mad.:
The fact that any member of a joint-family has separated himself from his coparceners may be proved by his suing for a partition of the joint-family property; and if the suit is decreed, the date of his severance from the joint-family will, if nothing else is proved, be treated as the date when the suit was instituted. In Kedar Nath v. Ratan Singh (1910) L.R. 37 IndAp 161 : I.L.R. 32 All. 415 ; 20 M.L.J. 900 (P.C.) a member of a joint Hindu family had filed a plaint claiming a partition but afterwards had withdrawn it and the Board held that no severance of the joint status resulted. Their Lordships see no reason to depart from that view, although such a plaint, even if withdrawn, would, unless explained, afford evidence that an intention to separate had been entertained, see Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 : 31 M.L.J. 455 (P.C.) and Kawal Nain v. Budh Singh .
25. Again, if the suit of an adult coparcener - Plaintiff - for partition is decreed, the date of his severance from the joint-family will, if nothing else be proved, be treated as the date when the suit was instituted. The question we have now to consider relates to a suit filed on behalf of a minor Plaintiff when the minor died before any decree was passed in the suit.
26. As observed by the Privy Council at p. 257 in Palani Ammal v. Muthuvenkatachala Moniagar 'that the coparceners in a joint Hindu family can by agreement amongst themselves separate and cease to be a joint-family, and on separation they are entitled to partition the joint-family properties, is now well-established law.' It is rarely that a joint Hindu family consists only of adult coparceners, without any minors. But, it has been held that a valid partition could be made outside Court by the members of a joint-family though some were minors at the time. In Balkishen Das v. Ram Narain Sahu the Privy Council observed as follows:
The question upon which their Lordships have felt most difficulty is-whether the document can be considered as binding upon the coparceners-who were minors at the date of it. But they think that in these proceedings they must treat it as binding upon them. There is no doubt that a valid agreement for partition may be made during the minority of one or more of the coparceners. That seems to follow from the admitted right of one coparcener to claim a partition; and (as has been said) if an agreement for partition could not be made binding on minors, a partition could hardly ever take place. No doubt if the partition was unfair or prejudicial to the minor's interests, he might, on attaining his majority, by proper proceedings, set it aside so far as regards himself. Some evidence was given to show that the mothers of the two minors were acting under the control and influence of Ramjiban. But as against this it may be pointed out that in the proceedings for a certificate which led to the execution of the ikrarnama they seem to have been acting independently of, and even adversely to, Ramjiban. For he can hardly be thought to have prompted a petition which contained an allegation that he was ready to waste the properly of the minors. It should also be said that the partition on the face of it was not unfair; and in fact the shares allotted to the minors were at least as large as, and perhaps larger than, they were strictly entitled to.
27. It is open to the adult coparceners to express their intention to separate from the others, and even though some coparceners were minors, such intention to separate may be communicated to the mothers or other natural guardians of the minors. A partition effected by the adult coparceners with the mothers or other natural guardians of the minor coparceners representing the minors would be a valid partition, and would be binding upon the minors. No doubt it would be open to the minors when they come of age to take steps to have such a partition modified if their proper shares of the joint-family property had not been secured to them; but they cannot impugn the partition on the simple ground that it ought not to have been entered into when they were minors. It is a right of the adult members, including the kartha or the manager, to claim partition with a view to have their shares separated. The result in such a case would be that the minor also is separated from the other members and his share ascertained and taken charge of by his mother or other natural guardian. The kartha or the manager of the whole family, when he himself is claiming separation from the minor, could not represent the minor's interests in such a partition. The practice in such cases is to have the minor's interests represented by the minor's mother or other near relation interested in the minor whose interests are not adverse to the minor. Such a practice has been approved by the Privy Council in the case reported in Balkishen Das v. Ram Narain Sahu and a partition arrangement in which the minors were represented by their mothers was held by the Privy Council to be binding on the minors in the absence of fraud, etc., when the proper shares of the minors were allotted and delivered to their mothers. It has not been considered, or felt in practice, that as the kartha or the manager who desires partition is the legal guardian of the minors of the joint-family, no partition outside Court could be effected for want of legal guardians for the minors. As already remarked, the minors' mothers of other natural guardians have been held entitled to represent the minors on such occasions. The Privy Council has held in Gharib-ul-lah v. Khalak Singh (1903) L.R. 30 IndAp 165 : I.L.R. 25 All. 407 (P.C.) that a guardian of the property of an Infant cannot properly be appointed under the Guardian and Wards Act in respect of the infant's interests in the property of an undivided Mitakshara family, such interest not being individual property and therefore not property with which a guardian if appointed would have anything to do. This circumstance has riot been allowed td stand in the way of the mother of the minor representing the minor in partition arrangements made outside Court among members of a joint Hindu family.
28. Thus, it will be noted that it. is open to an adult coparcener to become divided by the communication of his unilateral intention to separate from the other members of the joint-family; that the khrtha or the manager could do so far as he is concerned by communicating his intention to do so to the minor coparcener's mother; that a partition among coparceners would be valid though some coparceners are minors, if they were represented by their mothers and the arrangement be proper and bona fide; and that it is not correct to say that partition among members of a joint Hindu family sould be effected only by proceedings taken in Court.
29. The decision of the Privy Council in Balkishen Das v. Ram Narain Sahu is clear that a partition arrangement could be entered into among members of a joint Hindu family though some of the coparceners were minors. That the Privy Council has only recognised a long-standing practice existing in the country is clear from reported decisions. In Nallappa Reddi v. Balammal (1864) 2 M.H.C.R. 182 the minor's father died in 1835, leaving a minor three years old. The minor's mother entered into a partition with the paternal uncle of the minor in 1837. It was held there being no proof of fraud or that undue advantage was taken of the Plaintiff's minority, that the division was valid and binding upon the Plaintiff. In Chanvirappa v. Danava I.L.R. (1894) 19 Bom. 593 the partition took place in 1872, the Plaintiff being represented by his mother and natural guardian. The Court held that the partition made by the mother as the guardian of her minor son was valid but that the minor on coming of age will have a right to set aside the division if it can be shown to be illegal or fraudulent or even if it was made in such an informal manner that there are no means of testing its validity. See also Yechuri Ramamurthi v. Yechuri Ramamma (1915) 30 M.L.J. 308. This principle has been extended to cases arising under Marumakkathayam Law in force in Malabar where partition could not be had unless agreed to by all the members of the tarwad; but a partition arrived at when some members were minors, but were represented by their mothers, was upheld as binding on the minors, unless fraud or serious prejudice be shown Nanikutti Amma v. Achuthankutti Nair I.L.R. (1918) 42 Mad. 292 : 36 M.L.J. 529, in which case, the partition would be re-opened so far as the minors are concerned, so that they may be awarded the proper share which should have been set apart for them Veluthakal Chirudevi v. Veluthakal Tarwad Karnavan : (1916)31MLJ879 .
30. It is unnecessary to multiply instances found in law reports of private arrangements of partition in joint Hindu families made outside Court when some of the coparceners were minors represented by their mothers or other natural guardians.
31. Further, in the case of an adult coparcener the filing of a suit for partition by such a coparcener has been held to bring-about severance in status, and also that the decree in such a suit works out severance as from the date of the plaint. It is not necessary now to consider the effect of withdrawal of such a plaint. That being the law in the case of adult coparceners, what grounds are there to come to a different conclusion in the case of a minor coparcener, when the Court is satisfied that partition is for the benefit of the minor.
32. We have seen that a minor's mother may accept a communication from the adult coparceners expressing their intention to separate from the minor. The question arises whether she could not on behalf of the minor coparcener communicate a similar intention on behalf of the minor to separate from the adult coparceners, if it is proved to be for the benefit of the minor so to separate. Even in a proper case, when a minor's mother as his guardian expressed on behalf of the minor the intention to separate, and communicated the same to the other coparceners; it may happen that her request may not be granted by the other coparceners, and she may, as the next friend of her minor son, have to institute a suit for partition. No doubt, any person (not necessarily a mother, or in fact any relation at all of the minor) may institute a suit on behalf of a minor, as his next friend. A suit for partition may be similarly instituted by a stranger as next friend of a minor. Such a stranger might have, prior to suit, expressed such intention to the other coparceners. Is the minor necessarily to be bound by such acts and is the Court helpless in the matter? On the other hand, if the said acts be proved to be beneficial to the minor, is it, or is it not, open to the Court to give necessary relief to the Plaintiff in such cases? These are relevant considerations that arise in such cases.
33. It has been laid down by a series of decisions that a suit on behalf of a minor coparcener for partition will lie if the interests of the minor are likely to be prejudiced by the property being left in the hands of the other coparceners. See Kamakshi Ammal v. Chidambara Reddi (1866) 3 M.H.C.R. 94, Sriranga Thatha Chariar v. Srinivasa Thatha Chariar I.L.R. (1927) 50 Mad. 866 : 53 M.L.J. 189, Thangam Pillai v. Suppa Pillai I.L.R. (1888) 12 mad. 401, Palani Goundan v. Kasi Goundan (1918) 50 I.C. 552, Bachoo v. Khushal Das (1902) 4 Bom. L.R. 883, Bholanath v. Ghasi Ram I.L.R. (1907) 29 All. 373, Shadagopa Nayudu v. Tirumalaswami Nayudu (1915) 30 I.C. 272 and Mahadev Balvant v. Lakshman Balvant I.L.R. (1894) 19 Bom. 99. In fact, the Privy Council decision in Bachoo v. Mankore Bai (1907) L.R. 34 IndAp 107 : I.L.R. 31 Bom. 373 : 17 M.L.J. 343 (P.C.) is decisive on the point. The Court could not pass a decree for partition in a suit for partition brought on behalf of a minor coparcener unless it finds that the partition is for the benefit of the minor, as advancing his interests or protecting them from danger. It is clear that a decree for partition could not be passed unless the Court records a finding to the above effect. But is there any further peculiarity in a suit for partition instituted on behalf of a minor? This becomes important in cases like the present when the minor happens to die before a decree is passed in his favour in the suit.
34. The present is not a case of a personal action which is said to die with the person. - Actio personalis moritur cum persona. Nobody has contended before us that the present suit conies within the above principle. Right of partition is a right relating to property. Prima facie such a suit, if properly instituted, should not abate, but on Plaintiff's death his legal representatives should be in a position to carry on the litigation. The very same question which will have to be decided in the suit itself, namely, whether partition is for the benefit of the minor, will also decide whether his interests in property have passed by survivorship to the other coparceners or have passed to his (minor's) heir, widow, daughter, or mother, as the case may be. I am not able to see any insuperable obstacle or anything illegal in holding that the suit does not abate in such circumstances. The minor may die after the suit is dismissed after full trial and when an appeal on his behalf is pending, one of the questions raised in appeal being that the finding arrived at by the trial Court on the evidence that the suit was not for the benefit of the minor is erroneous. It is open to the appellate Court to come to a different conclusion on the evidence on that question.
35. It has been decided in Krishnaswami Thevan v. Pulukaruppa Thevan I.L.R. (1924) 48 Mad. 465 : 48 M.L.J. 354, Sriranga Thatha Chariar v. Srinivasa Thatha Chariar I.L.R. (1927) 50 Mad. 866 : 53 M.L.J. 189 and Ganapathy v. Subramanyam I.L.R. (1929) 52 Mad. 845 : 57 M.L.J. 374 that if a decree is ultimately passed in favour of a minor for partition, the status of division is created as from the date of the plaint, with reference to the quantum of the minor's share, and the date from which accounts should be taken, etc. If persons other than strictly legal guardians can represent a minor coparcener in a partition arrangement outside Court, and if no legal guardian could, under the Guardian and Wards Act, be appointed with reference to the minor's share in the joint-family property, it would be anomalous if the minor's mother or other natural guardian could not act on behalf of the minor in proper cases, in the matter of expressing intention to separate from the other coparceners, and in demanding partition, and also - if necessary - in instituting a suit for partition (if the same should become necessary) to enforce the just rights of the minor. I am assuming that proper circumstances exist for demanding such partition. It is clear that the kartha or the other legal guardians of the minor would not take any steps in the matter, as their interests would be adverse to those of the minor, and, according to the hypothesis, they are acting to the prejudice of the minor. In fact, it is their acts that are complained against, and it is from their wrongful acts that the minor is sought to be protected. I am not forgetting that any stranger could institute a suit for partition on behalf of the minor as his next friend, and such a person might have demanded partition outside Court and might have communicated to the other coparceners the intention to separate, on behalf of the minor. Is the minor necessarily to be bound by such acts of strangers? The answer seems to be that the Court has got control of the suit and the proceedings; and if it should find that the suit was instituted owing to malice or bad faith by the next friend to wreak his vengeance against the adult coparceners and out of pure private spite, the Court has got the remedies in its own hands. Question of benefit for the minor may not be confined to considerations purely and solely personal to the minor only. Considerations concerning the minor's own mother or widow or daughter, in relation to the minor, may have to be kept in view. The question is a rather novel one in which Hindu Law texts afford no help. Some English decisions are cited in Kamakshi Ammal v. Chidambara Reddi (1866) 3 M.H.C.R. 94 and also in Halsbury's Laws of England, Vol. 17, pp. 134-135, which show that the Courts have got power to control proceedings and to prevent vexatious suits from being proceeded with, and if necessary to order proceedings to be stayed. I am anxious not to say anything about the merits of the suit. It will depend upon the evidence and circumstances of each case. I am only now concerned to note that Courts have full powers in the matter to see that no injustice is done.
36. The decision in Chelimi Chetty v. Subbamma I.L.R. (1917) 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 I.L.R. (1924) 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 I.L.R. (1924) 48 Mad. 465 : M.L.J. 354 is riot consistent with the principle of the decision in Chelimi Chetty v. Subbamma I.L.R. (1917) 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 I.L.R. (1917) 41 Mad. 442 : 34 M.L.J. 213 would have been greatly shaken.
39. In the next case, Sriranga Thatha Chariar v. Srinivasa Thatha Chariar I.L.R. (1927) 50 Mad. 866 : 53 M.L.J. 189 decided by Sir Murray Coutts Trotter, C.J. and Justice Sundaram Chetty (not Srinivasa Aiyangar, J.) when a question arose as to the exact date of severance of status in a case where the Court passes a decree for partition, with a view to fix the date from which accounts had to be taken, the learned Judges held at page 872 as follows:
Accepting the principle that in a suit for partition brought by the minor it is for the Court to determine whether the partition would be advantageous, to the minor or not, and that a severance in the status of the family could not be effected by the individual volition of the minor's guardian or next friend, still, when the Court thinks fit on a consideration of the circumstances, set forth in the plaint to decree partition of the family properties, the imprimatur of the Court must be deemed to have been placed on the allegations made in the plaint justifying the effecting of a partition. That being so, the Court must be deemed to have determined that, even on the date of the plaint, it would have allowed a partition to be effected as it was beneficial to-the minor. Though the enquiry has necessarily to be made by the Court subsequent to the filing of the plaint, it is the state of affairs that existed on. the date of the suit that determine the exercise of the Court's discretion.
40. The principle of the decision in Krishnaswami Thevan v. Pulukaruppa Thevan I.L.R. (1924) 48 Mad. 465 : 48 M.L.J. 354 was therefore followed by the learned Judges in Sriranga Thatha Chariar v. Srinivasa Thatha Chariar I.L.R. (1927) 50 Mad. 866 : 53 M.L.J. 189. This also, in my view, is against the real principle of the decision in Chelimi Chetty v. Subbamma I.L.R. (1917) 41 Mad. 442 : 34 M.L.J. 213.
41. In Rama Raov. Hanumantha Rao I.L.R. (1929) 52 Mad. 856 : 57 M.L.J. 720 Ramesam and Jackson, JJ. held at page 859 as follows:
The 2nd Plaintiff, being a minor, is incapable of exercising the intention to separate by himself. The next friend does it for him. 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.
42. It was held by the Calcutta High Court in the case reported in Rai Charan v. Biswa Nath (1914) 20 C.L.J. 107 and by the Privy Council in the case reported in Palani Ammal v. Muthuvenkatachala Moniagar that if a suit for partition is decreed, the date of severance from the joint-family will, if nothing else is proved, be treated as the date when the suit was instituted.
43. It however seems to be logical to hold that severance should be considered to have taken place, if a decree for partition is passed, ordinarily from the date of the expression of the discretion or volition on behalf of the minor and communication thereof to the other coparceners before suit, in the absence of other circumstances.
44. Instances of the Court staying suits instituted on behalf of the minor when the same was considered purely vexatious, are mentioned in Kamakshi Animal v. Chidambara Reddi (1866) 3 M.H.C.R. 94 citing Da Costa v. Da Costa (1732) 24 E.R. 1003 : 3 P.Wms. 140, Fox v. Suwerkrop (1839) 48 E.R. 1068 : 1 beav. 583 and Sale v. Sale (1839) 48 E.R. 1068 : Beav. 586. This is ordinarily a sufficient safeguard to prevent vexatious suits. There is also jurisdiction in Courts to direct the next friend personally to pay the costs of the proceedings.
45. It may perhaps be useful to bear in mind the exact nature of the jurisdiction possessed by Courts with reference to suits and proceedings instituted on behalf of minors. While any person who is not himself incapable of instituting proceedings and who is not connected with the Defendant or otherwise interested adversely to the infant may file a suit on behalf of an infant as next friend, preference will be given to the father or mother or guardian or some other of the relatives or connections of the infant or their nominee. The next friend is an officer of the Court appointed to look after the interests of the infant and has the conduct of the proceedings in his hands. Upon the application of the Defendant, or of a next friend of the infant appointed for the purpose, the Court can, if it thinks fit, direct an inquiry whether the proceedings are for the benefit of the infant, and, if it appears that they are not, can deal with the proceedings as it thinks fit. See pages 134 and 135 of Halsbury's Laws of England, Vol. 17, Section 312.
46. Justice Bhashyam Aiyangar made similar observations in Doraswami Pillai v. Thungasami Pillai I.L.R. (1903) 27 Mad. 377 : 14 M.L.J. 159 that 'a suit relating to the estate or person of an infant and for his benefit has the effect of making him a ward of the Court; and no act could be done affecting the property of the minor unless under the express or implied direction of the Court itself.' See also the observations of Scott, J. in Karmali Rahimbhoy v. Rahimbhoy Habibhoy I.L.R. (1888) 13 Bom. 137 and Story's Equity Jurisprudence, Section 1353.
47. Having regard to the provisions of Order 32, Rules 6 and 7 - among others, of the Code of Civil Procedure relating to receipt, by next friend or guardian of a minor, of money or other movable property on behalf of the minor, and relating to an agreement or compromise by next friend or guardian of the suit, it is not generally deemed necessary for the Court to interfere with acts of next friends and guardians ad litem of minors at every stage of the suit in ordinary cases. The general principle of law is, as stated above, that an infant litigant becomes a ward of the Court and the Court has got the right and also the duty - to see that next friends act properly and bona fide in the interests of minors, and that no suits are instituted or carried on by next friends for their own benefit only - irrespective of the benefit of the minors. The Court would have jurisdiction in every case in which a minor is a litigant to see that proceedings are all carried on properly, and any suit instituted by a next friend which is proved to be not in the interests of the Plaintiff could be stayed by order of the Court. Having regard to the importance of partition suits to coparceners of joint Hindu families, Courts take particular care when such suits for partition are instituted on behalf of minors. By staying such suits or dismissing them on the ground that they are not for the minor's benefit, the Court is only exercising a part of its general jurisdiction with reference to minors generally. It seems to me that the exercise by the Court of its general jurisdiction over minors should not be taken to affect in any way the substantive rights of minors. It is a maxim of law that 'acts of Courts injure nobody'. In this view also, if the suit for partition on behalf of the minor is proved to have been for his benefit when instituted, the same should not be rendered ineffective simply because the minor should happen to die before the Court could satisfy itself of the beneficial nature of the action and that the action was properly instituted. Substantial rights of minors should not be prejudicially affected by the exercise by Courts of a jurisdiction which they possess in the interests of the minor and with a view to see that the rights of minors are not prejudiced.
48. When we consider what is happening outside Court when partition arrangements amongst coparceners of a joint Hindu family, some of whom are minors, are carried out as a matter of course, and when we consider the real nature of the jurisdiction exercised by Courts in suits in which minors are Plaintiffs, the conclusion is irresistible that the accidental death of a minor Plaintiff in a suit for partition should not have the result of abatement of the suit, if, otherwise, the suit would be decreed in favour of the minor had he been alive at the date of the decree.
49. There are no Hindu Law texts to which our attention was drawn which would govern the decision of the exact question now before us. Our attention was not drawn to any case directly deciding this question, excepting the case reported in Chelimi Chetty v. Subbamma I.L.R. (1917) 41 Mad. 442 : 34 M.L.J. 213, already referred to, and a decision of the Patna High Court in the case reported in Krishna Lal Jha v. Nandeshwar (1918) 4 Pat. L.J. 38 in which, however, a view contrary to the decision in Chelimi Chetty v. Subbamma I.L.R. (1917) 41 Mad. 442 : 34 M.L.J. 213 was taken.
50. On general principles by which we should be guided in such cases, I think the correct view to take is that the suit does not abate in such a case but that the Court should proceed with the trial of the suit; and if it should come to the conclusion on the evidence that the suit as instituted was for the benefit of the minor, it should pass a decree, the benefit of which will go to the legal heirs of the deceased minor.
51. The above line of reasoning has led me to answer the first question referred to us in the negative and the second question in the affirmative.
Cornish, J.
52. Except for Chelimi Chetty v. Subbamma I.L.R. (1917) 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 I.L.R. (1927) 50 Mad. 866 : 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 I.L.R. (1924) 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.