(1) Roya Kuppa Chetti, the first defendant to the suit out of which this second appeal arises, and Krishnaswami Chetti (the second defendant), his grandson born of his deceased son, were members of a Joint Hindu family. Krishnaswami Chetti, still a minor, is under the care and protection of his mother Sundarammal, who has been impleaded as the 3rd defendant in the suit. Both of them are living in the house, which is the subject matter of this litigation. Roya Kuppa Chetti however did not take to them kindly; it has been found that his attitude towards his grandson was hostile. Being thus obliged by circumstances, the mother of the minor acting on his behalf, issued a notice on 22-12-1953, to his grandfather unequivocally expressing an intention to separate from the family and demanding partition. There was no response to the demand. Instead Roya Kuppa Chetti sold on 1-2-1954 the suit property to the plaintiff purporting to do so on behalf of the joint family consisting of himself and minor Krishnaswami chetti; the alienation was stated to be for discharging certain liabilities of the family but both the courts below have found that the debts were not genuine.
The alienee relying on the sale deed in his favour institute the suit out of which this appeal arises for recovery of possession of the property. Roya Kuppa Chetti filed a written statement supporting the case of the alienee; but he absented himself at trial and was set ex parte. The claim of the alienee was contested on behalf of the other two defendants on two grounds (1) as there was no joint family on the date of alienation in question, the minor having been divided in status from his grandfather by reason of the notice demanding partition, it was not competent for Roya Kupa Chetti to sell the entire house and (2) even otherwise, the sale was not for any necessity as the debts in discharge of which it was purported to be made were spurious. Both the courts have held that the notice dated 22-12-1953 issued by the minor's natural guardian was one conceived in his interests and that it validly effected a division in status between the two members of the coparcenary. They also held, overruling an objection on behalf of the alienee, that it was competent to the court in this litigation itself to find whether the notice was one issued for the benefit of the minor.
On the second question the trial court accepted the defendants' case that the alienation, though supported by consideration so far as the alienor was concerned was not for any necessity of the family. The learned Subordinate Judge, though he gave sufficient indication in the judgment that he was of the same view, did not record a definite finding to that defect. On the findings arrived at by the trial court, it was open to that court to have dismissed the suit which was one in ejectment, leaving the alienee who in the circumstances, obtained only his alienor's interest in the suit property, to file a separate suit for general partition. But that course was not adopted. Instead the court granted a decree for partition on the footing that the sale deed validly conveyed Roya Kuppa Chetti's half share in the suit property. The decree for partition was not challenged by the contesting defendants. The alienee, on the other hand, filed an appeal against the trial court's decree claiming that the joint family of Roya Kuppa Chetti and his grandson continued and that the sale was one which would bind the interest of the latter. That appeal failed.
(2) Aggrieved by the decree in so far as it declined to give him the entire properties the alienee has come forward with this second appeal. The only question argued on his behalf is that it was not competent for the court in this suit for possession to entertain the plea that there had been a division in status between the minor and his grandfather by reason of the issue of a notice as that could be done only in a suit for partition brought by him. In other words, the contention is that unless a declaration of an intention to divide expressed on behalf of a minor is followed up by a suit for partition at his instance, a court could not give effect to the same; and as the present suit is one for possession by an alienee, the court would have no jurisdiction to adjudicate the question as to existence of a division in status in the manner claimed.
We are by no means sure whether the appellant has realized that the acceptance of the contention, in the circumstances of this case, would result only in the dismissal of his suit. The suit is one for ejectment; it would be competent for the defendant to show that the plaintiff's title is defective. It would not be open to a court to refuse to entertain a plea of the defendant that plaintiff's title is defective and at the same time decree the suit. The suit could only be dismissed. It cannot be disputed that a plea that the authority of the manager of a joint Hindu family had ceased by reason of the disruption of the joint family and that the alienation of an item of family property would not be valid to convey the entirely of the interest therein goes to the root of title claimed by the plaintiff. If the defendant in such a suit is a major it is not denied that it would be open to him to plead that the plaintiff would not be entitled to claim his share as the alienating manager had ceased to represent him by reason of the division in status. There is nothing in law to deprive a minor coparcener from raising such a plea.
In Peda Subbayya v. Akkamma, , it was held that the
exercise of a volition on behalf of a minor by a person to get him separated in status form the joint family was really the act of the guardian and not the act of the court, though such a demand would be subject to approval by court. Therefore, the plea that there was a division in status by reason of the guardian or some person on behalf of a minor demanding partition can be raised on behalf of the minor. The court would be entitled to investigate the question whether there had been an anterior division between the minor and the other coparceners by reason of the notice of demand issue on his behalf as the issue raise in substance relates to the extent of title question is bound up with the further question whether the notice of demand was one made in the minor's interests and for his benefit. To hold that the court cannot consider the question of the division in status would mean that a decree could be passed against a minor in possession of the property without even a finding as to whether the plaintiff has obtained title to the entire property. Such a proposition cannot obviously be accepted.
(3) Learned counsel for the appellant contends broadly that a minor can never get himself divided in status from a joint family be means of a declaration made on his behalf expressing an intention to divide except where such declaration is followed up by a suit for partition and in that suit it is decided that expression of the intention made on the minor coparcener's behalf was one for his benefit. Support for this contention is sought in the decision of the Andhra Pradesh High Court in Ayyanna v. Kottayya, . It was held in that case
that a decree in favour of the minor coparcener in his suit for partition was a condition precedent for holding that he had separated because of an earlier unequivocal expression of the intention made on his behalf to separate, and that a mere issue of a notice demanding partition would not be sufficient to create a division in status unless it was followed by a suit for partition. That rule is mainly deduced on the basis of two propositions: (1) that an expression of an intention to divide on behalf of a minor in order to be operative should be sanctioned by court, and (2) that such sanction could be given only in a partition suit where alone the equities of the alienees could be worded out.
Before considering the view taken by the learned Judges it will be useful to refer to the facts of that case which are somewhat peculiar. One Chenchayya had three wives, the second of them alone having a son. The other two had only daughters. The second wife, purporting to act on behalf of her minor son, issued a notice to Chenchayya demanding partition of the ancestral properties. There was no response on the part of Chenchayya to this demand; he continued to enjoy the properties and sold certain of the items for discharge of his debts. No suit for partition was filed on behalf of the minor while his father was alive. After Chenchayya's death, his son filed a suit to recover possession of the properties left by him which were in the hands of the daughters of the deceased as well as with the various alienees. It is not however clear as to whether the plaintiff in the case claimed as the sole surviving coparcener or as on succession. The learned Judges in the course of their judgment observed.
"The question that arises for decision in this Letters Patent Appeal is whether a court can sanction a notice by a minor to separate when he be the 'sole coparcener' and there be no suit for partition by him" (italics (here in ' ') ours).
This would suggest that the claim was made by the plaintiff as the sole surviving coparcener; such a claim would hardly go with an inconsistent claim on the basis of an anterior division in status.
(4) Viswanatha Sastri, J., who dealt with the matter when it came to this court by way of a second appeal, held that the notice demanding partition issued by the minor's mother was one in his interests and that it created a division in status between Chenchayya and his son. The learned Judge also held that a suit for partition was not necessary to enable the court to determine whether the partition claimed by the son in the notice was beneficial to him or not, as that question could be decided in the litigation that was before the court. The decision was the subject matter of an appeal under Cl. 15 of the Letters Patent. The appeal was transferred to the Andhra Pradesh High Court after the reorganisation of the States. The learned Judges who heard the appeal did not agree with Viswanatha Sastri, J. The view taken, on appeal namely, that a notice demanding partition issued on behalf of a minor would be operative to effect a division in status only if such demand were approved by a court is rested on two considerations dealing with a suit for partition at the instance of the minor which can be best expressed in the words of the learned judges:
1. "It is also well settled that in the case of a minor suing for partition through his next friend severance in status may be effective from the date of the notice given earlier on his behalf if the court after consideration of the minor's benefit were to decree the suit. The converse proposition would also follow that if the court were to dismiss the suit, there would be no severance from the date of such notice. It therefore follows that a decree in favour of the minor coparcener in his suit for the partition is a condition precedent for holding him having separated because of the earlier unequivocal expression of the intention made on his behalf to separate.
2. As the equities of an alienee subsequent to the declaration of an intention to divide could be properly worked out only in a suit for partition the question as to whether a notice demanding partition issued on behalf of the minor was once in his interest or not could be decided only in such a suit."
(5) Taking the first of the two reasons, we cannot see how the mere fact that the validity of a demand for partition on behalf of a minor could be adjudged in a partition suit would show that it is only (that court) and no other court would have jurisdiction to sanction a division in status on behalf of a minor. Nor can we agree with the second reason that in determining the question as to the propriety of a guardian or next friend's exercise of a volition on behalf of the minor, considerations of the court's ability to adjust equities in favour of the purchaser are relevant. A purchaser of the interest of a member of a coparcenary has only a right to sue for general partition; and he has no right to interdict another member of the family from execising his rights like exercising a volition to separate or to impose as a condition thereto that his own rights should be worked out first.
(6) It is now well settled that under the Hindu law there is no distinction between a major coparcerner and a minor coparcener, so far as their rights in the joint family properties are concerned. A major coparcener can obtain by partition his share in the joint family properties. So too a minor coparcener. Where, however, a suit for partition is filed at the instance of a minor coparcener, the court has to be satisfied whether it is in the interests of the minor that he should be divided or whether it would serve his interests better if he continued to be a member of the coparcenary. That has nothing to do with the rights of the minor;; the court only decides what is best in his interests as he is incompetent to decide it for himself.
(7) Without effecting an actual partition, a major coparcener has a right by an unilateral declaration on his part to effect a division in status in the family so far as he is concerned. This right is incident to the right by birth which he has in the family properties. A minor coparcener would also have similar right. By the very nature of it that right cannot be exercised in the same manner by him as be a major coparcener because a minor cannot be held to have a volition of his own. Therefore a guardian or next friend acting on his behalf is allowed to exercise a volition on behalf of the minor subject to this condition, namely, that such exercise of volition should be approved of by the court. Neither the rule nor its reason indicates that the court should be one where a partition suit is pending. As we shall show presently the sanction of the court is sought only as the protector of the minor and not in any other capacity. Normally, the question whether a minor is divided form the joint family on the date of his notice would become relevant only in asset for partition. But that does not mean that an issue relating to an anterior division in status cannot be considered in any other suit. It is now necessary to examine the precise jurisdiction of the court in the matter of giving approval in order to see whether there is anything in that jurisdiction which could not be appropriately exercised in suits other than partition suits.
(8) In the Supreme Court has laid down that the
function of the court in such a case is merely to decide whether the next friend or guardian making the demand for partition on behalf of the minor had acted in the best interests of the minor and where it has acted in the best interests of the minor and where it has been found that the expression of intention to divide on behalf of the minor was one for the benefit of the minor, it is the act of the next friend or guardian that creates the division in status and not the sanction given by the court. The Supreme Court observed thus (page 146 of SCJ : at p. 1049 of AIR):
"The true effect of a decision of a court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which he did not possess before but to recognise the right which had accrued to him, when the person acting on his behalf instituted the action."
Thus, the only duty of the court to decide whether the person who makes the demand for partition on behalf of the minor has acted in the best interests of the minor in expressing on his behalf an intention to become divided. The question being one relating to the division in status cannot obviously be connected with the actual division of the properties or with the interests of other persons in such a division. Indeed the rule as to court's sanction is not one peculiar to partition suits. Under the law the court is invested with a special jurisdiction for the protection of the person and property of the minor. The origin of the rule is stated in Halsbury's Laws of England, Vol. XXI, page 216 thus :
"Infants have always been treated as specially under the protection of the Sovereign who, a parens patriae had the charge of the persons not capable of looking after themselves. This jurisdiction over infants was formerly delegated to and exercised by the Lord Chancellor; through him it passed to the court of Chancery, and is now vested in the Chancery division of the High Court of Justice. It is independent of the question whether the infant has any property or not."
It is a familiar principle that is the duty of the court in all proceedings before it to watch the interests of the minor parties. For example, a compromise entered into on behalf of a minor in a suit has got to be certified by the court as beneficial to the interests of the minor. Prima Facie, therefore, the question whether a notice demanding partition issued on behalf of a minor is one in his interest or not, can be decided by any court before whom an issue arises as to its character. As the Supreme Court has pointed out, the function of the court approving the exercise of a volition on the minor's behalf is merely supervisory it is the act of the next friend or guardian that effects a severance in status. Being a question of change of status, it cannot in principle be made to depend on the minor going to a particular court for the approval of the guardian's act or be compelled to seek a division by metes and bounds by filing a partition suit.
Once it is conceded that a division in status is nor integrally connected with a division of the properties by metes and bounds, it must follow that a minor coparcener who has a right to effectuate a division in status could do it without filing a suit for partition. The approval of court necessary to make the declaration by the guardian effective being only to safeguard the minor's interest must be obtainable in any court where the question or issue arises. To hold otherwise would mean that a minor could not obtain division in status without filing a suit for partition. This is undue restriction of his rights. We are unable with great respect to the learned Judges who decided to share their view. We can see no objection to the issue as to the binding nature of the notice of demand for partition made on behalf of a minor being decided in whatever suit that question may arise. There are therefore no merits in this appeal.
The appeal fails and is dismissed with costs.
(9) Appeal dismissed.