Mohamad Ahmed Ansari, J.:— The appellants before us are the 2nd, 10th, 12th defendants and the legal representatives of the 13th. These have appealed against the judgment by a learned single Judge of the High Court whereby the decree of the lower Courts were modified and the respondent has been held entitled to possession of half-shares in immovable properties, forming item 1 to 5 of Schedule B and item 6 of B-1 Schedule to the plaint. The respondent has filed cross-objection against the rejection by all the Courts of his claim to properties in C Schedule, which cover immovables in the name of the 1st defendant. The following pedigree would show the relation between the plaintiff and some of the defendants:

2. The plaintiff was the only male member, in the family when Kundeti Chanchayya chayya died. The deceased, who was a landholder of Netivaripalem had married three wives out of whom the second and the third had survived him. After the death of the first wife he had married Yellamma, who was then a minor of six years.

3. That perhaps had led to the marriage with Chinnammai, who was then sixteen years of age and had begun soon after to live with husband. He had no male issue by the first wife or by the third. The second gave birth to a son Ramaswami on July 25, 1928, but he lived only for about three years. It is common ground that about a year earlier to the plaintiff's birth the father had given a notice to his second wife, imputing desertion and unchastity and stigmatising the child born to her as illegitimate. The plaintiff was born on July 16, 1932. The plea of the plaintiff's illegitimacy put forward in the written statements of the contesting defendants in this case had been abandoned in the High Court and the findings of the two lower Courts are also in his favour. It is common ground that during the life time of the father the plaintiff and his mother had to leave the family house and were living at Maddulur. Indeed while the father was alive a notice on behalf of the minor son through the mother was given demanding a partition of his half-share in the family properties. This document is of February 24, 1933 and is Exhibit P-1. We would reproduce here the following extract from the notice in the judgment of the learned single Judge of the High Court:

“After marrying a third time, you, the father, had at the instigation of the third wife, beaten my client and his mother and driven them out. Besides, my client comes to know that you with the evil intention of seeing to it that no property whatever passes to the minor boy, have been making attempts to effect nominal transactions in respect of the ancestral property, some in favour of the third wife and some in favour of others and with the income from the family property you have been obtaining sale deeds in favour of the third wife………………My client has given me instructions requiring me to give notice to you at first and file a suit. Therefore within 15 days from the receipt of this notice, you should divide the movable and immovable properties of your undivided family into two shares and according to good and bad quality and deliver the half share of minor. Kotayya, my client and your son by your second wife. You are strictly informed that if you fail to do so, a suit for partition will be filed against you and my client's share together with costs shall be recovered.”

4. No suit for partition however was filed during the lifetime of the father and after the notice was issued the father had alienated several properties belonging to the joint family. In this appeal we are concerned with sales of only six items, which were in favour of the appellants and their predecessor-in-title. These are of items 1 to 5 of B schedule and item 6 of B-1 schedule. Taking first the several items of B schedule the several sales can be grouped under four heads:

(a) Items 1 and 4 of this schedule had been purchased by the 13th defendant in the case. The relevant sale deeds are Exhibits D-37 and D-41. Exhibit D-37 is dated 7th June, 1933 and shows item I as having been sold for Rs. 600. This price is proved to have been spent for discharging a debt due on an earlier pronote, which was therefore cancelled. Exhibit D-41 is the sale-deed for item 4 of the same schedule and is of 5th January, 1935. The sale price is Rs. 1,000 and out of it Rs. 339-13-0 had gone to discharge a pro-note, Rs. 550 to discharge a mortgage and Rs. 110-3-0 were paid in cash

(b) Items 3 and 5 of the B chedule were purchased by the and defendant, who is the husband of Lakshmamma, one of the daughters by the third wife. The sale deed in his favour is Exhibit D.18 is dated July 5, 1936 and the price is Rs. 400. This sum is found by the lower Courts to have been paid to a creditor of the father at his desire.

(c) Item 2 of the B Schedule had been purchased by the 12th defendant through two sale deeds. Acs 2-30 cents were sold through Exhibit D-15, which is dated August 15, 1938 and shows the transaction to be for Rs. 400. Out of this sum Rs. 105-4-8 were paid in the presence of the Sub Registrar and the remaining amount of Rs. 294-11-4 went to discharge the debt due to the 12th defendant under the earlier mortgage bond. Exhibit D-46 is the second sale deed in favour of 12th defendant and covers Acs 2-6 cents of the aforesaid item. It is of February a, 1949 and the sale price is found by the lower Courts to have been spent in discharging an antecedent debt. It appears that the father had applied to the Debt Conciliation Board for settlement, there was a compromise, some creditors had agreed to take some lands, one of the creditors however did not like to take land, he was paid by the 12th defendant and the same was the consideration of the sale

(d) We now come to the 6th item of B-1 Sehedule which was sold by the father to the 8th and 9th defendants in the case and to the deceased husband of the tenth. The relevant sale deed is Exhibit D-7 and is dated June 24, 1936. Defendants 8 and 9 later conveyed their interests under the aforesaid sale deed to the deceased husband of the 10th defendant by another sale deed which is Exhibit D-14 and is of September 10, 1938. The consideration for Exhibit D-7 is Rs. 675, out of which only Rs. 193 were paid in cash on the date of the sale deed and the rest had gone to pay the earlier debts. It will be useful to state at this stage that out of the prices for the sales covered by Exhibits D-41, D-15 and D-7 some money was paid in cash at the time of sales but these wereonly parts of the consideration for the sales.

5. In addition to the above transactions which have been challenged by the son as being fictitious there are certain purchases by the third wife, which the son also claims to be part of his family estate. These are contained in the C schedule to the plaint and consist of immovable properties purchased from third parties by the 1st defendant under the two sale deeds. Exhibit D-2 is the deed concerning items 1 and 2 of the aforesaid Schedule, is dated July 15, 1930 and recites that Rs. 1,060 were paid in ready money at the time of the sale deed, Rs. 760 were paid at the time of the registration and the 1st defendant had undertaken to pay vendor's debt to the extent of Rs. 580. These amounts together made up the total of Rs. 2,400 which is the consideration for the transaction. The 1st defendant had purchased items 3 and 4 of the Schedule for Rs. 50. The document concerning the transaction is Exhibit D-I and is dated February 14, 1939. The son claims all the four items as being part of the family estate.

6. The suit wherein these claims are made was filed on March 5, 1942, while the son was still a minor. He has thereby asked for possession from the 1st and 2nd defendants of the immovables and movables described in Schedules A, B, C and D: half shares from defendants 3 to 11 in the immovables described in B-1 Schedule and mesne profits as detailed in Schedule E after enquiry. The plaint alleges that the 1st defendant had manoeuvred and brought about dissensions between the father and the plaintiff's mother with the result that the plaintiff and his mother had to leave the family house and live at Maddulur, and that the father with a view to deprive him his lawful properties had made nominal alienations of the B schedule properties in favour of the 2nd, 12th and 13th defendants; but those properties continued in the enjoyment of the family and were in possession of the 1st and the 2nd defendants. The plaint further alleges that the plaintiff's mother had caused a notice of February 24, 1933, to be sent to the father demanding partition, that thereby division in status was brought about; hence the alienation made thereafter would not be effective as against the plaintiff's share, and that the father had no need to contract any debts and did not contract debts but made false recitals in sale deeds about the alienations being to discharge antecedent debts. The third important allegation in the plaint is that the C Schedule properties were acquired by the father with the help of the joint family funds for the benefit of the family, but the sale deeds were nominally in the name of the 1st defendant and that the plaintiff was entitled to them.

7. Some of the defendants entered into compromise and the trial Court passed a compromise decree on January 8, 1944, covering items 2 to 5 and 7 of B-1 Schedule. The position taken by the 1st defendant in her written statement is that Yellamma was not the lawfully wedded wife, her character was immoral, hence misunderstanding arose between her and the husband in consequence of which Yellamma lived in her mother's house ever since 1926, that there was no conjugal relation between her and the deceased husband and the plaintiff was not the legitimate son. These allegations were adopted by all the contesting defendants. In addition, the 2nd, 12th and 13th defendants have pleaded that the father had alienated the B shedule properties for proper consideration to discharge his antecedent debts; that the alienations were not nominal and that they have since been in possession of the properties. The case of the 10th defendant is that the alienations to him were made to discharge antecedent debts and were binding on the plaintiff.

8. The trial Court has found the plaintiff to be the legitimate son of the deceased and had further held Exhibit P-1 not to contain an unequivocal expression of the intention to divide. As regards the several sales the alienations of items 1, 3 and 5 of B Schedule have been upheld in their entirety. The sale of item 6 of B-1 schedule has been found to be binding except to the extent of Rs. 193 which part of its consideration was not shown to the satisfaction of the trial Court to be for antecedent debt, or for the joint family benefit or for legal necessity. Further the sale of item 4 of the B schedule has been upheld except to the extent of Rs. 110-3-0, which part of its price was not found by the Court to have been paid in order to discharge antecedent debt. The alienation of Acs. 2-30 cents out of item 2 of B Schedule has been found to be valid except to the extent of Rs. 105-4-8 which price was not established as having been for legal necessity or discharging any antecedent debt. The Court has therefore upheld the aforesaid three sales except to the extent their prices were found not to be for legal necessity or in order to discharge antecedent debts Finally the Court found the properties in C Schedule to be those of the 1st defendant. The lower appellate Court had sustained all the findings of the trial Court, but had partly modified the decree with the consent of the parties. It directed the 10th defendant to pay the plaintiff Rs. 96-8-0 with interest thereon at 6 per cent from June 24, 1938, till payment in lieu of the delivery of separate possession of 193/1350 shares of the 6th item of B-1 schedule. The second modification is that the 13th defendant was to pay the son Rs. 55-1-6 with interest at 6 per cent per annum from January 5, 1935 that being the date of the sale of the 4th item of B schedule till payment. Lastly, the 12th defendant was ordered to pay the plaintiff Rs. 52-10-4 with interest at 6 per cent, per annum from August 5, 1936, that being the date of the sale of the second item of the B Schedule till payment.

9. When the case came up for decision before a learned Judge of the High Court the dispute between parties had narrowed down to the sales of items 1 to 5 of the B schedule and item 6 of the B-1 schedule. Also the son still maintained that properties covered by C schedule were part of the family estate. The learned Judge has disagreed with the findings of the two lower Courts that Exhibit P-1, the notice, did not convey an unequivocal intention to separate. He has further found the partition to be for the benefit of the minor having regard to the facts that the father had driven him away and the mother, and was under the influence of the third wife. The learned Judge has 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. He has accordingly held that the son had separated from the father in 1932, that the father her after could not alienate more than his half-shares in the several properties and that therefore the son was entitled to recover his half-shares in them by partition. He has accordingly varied the deceee by the two Courts. Therefore 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 co-parcener and there be no suit fore partition by him. The other question is whether the 1st defendant is the owner of the properties in the C Schedule to the plaint.

10. We think the determination of the aforesaid question would become easier if we were first to state what points are established in the appeal. The views of the two lower Courts that the notice of February 24, 1932, did not disclose the unequivocal intention to separate have been rejected by the learned single Judge deciding the second appeal. He has held Exhibit P-1 as containing such an unequivocal expression of the intention to divide on the part of the minor through his mother, and we think the learned Judge was right in the view he has taken of the notice. Also the decision by the learned Judge is correct that the minor's mother was not a wayward woman and that there were justifications for making the claim for partition which was for the minor's benefit. The other points not disputed are that under the Hindu Law a partition during the minority of one or more of the co-parceners is binding, unless the minor succeeds in showing the partition to be unfair or prejudicial to his interests. If such be the case the minor co-parcener can on attaining majority and by proper proceedings have the partition set aside so far as he is concerned. It is equally well-settled that in a suit for partition by a next friend on behalf of a minor the Court has discretion in the matter and where it finds the partition to be for the minor's benefit and gives a decree, the disruption of the joint family is effective from the date of the suit. The converse proposition has also been decided in C. Sriramamurthi v. Official Receiver . 1957 I An W.R 216 which has held that if the Court were to dismiss the suit as not being beneficial to the minor no severance at all is effected. 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 a notice. It therefore follows the it a decree in favour of the minor co-parcener in his suit for the partition is a condition precedent for holding his having separated because of the earlier unequivocal expression of the intention made on his behalf to separate. It further follows that the learned Judge has erred in deciding that because in all the cases a suit for partition has been filed on behalf of a minor coparcener, it does not follow that a severance in status cannot take place as a result of notice of demand for partition unless the notice be immediately followed by the suit the Courts filed in the suit a division to be beneficial to the minor. Obviously the decree in the subsequent suit about the partition being beneficial or not has some effect; and its operation would not be such, and the separation become already effective because of the earlier notice or the plaint, as the case may be. Therefore Court's sanction appears to be a condition precedent and the authorities as we shall presently show do hold it to be so. The learned Judge has further erred in holding that the question of benefit to the minor might fall to be considered not only in a suit for partition following the issue of a notice but in other proceedings as well. He has held that if such a claim is put forward in any case, the Court is bound to decide whether there has been a division in status which would involve the consideration of the question of its being beneficial to the minor. No authority has been referred to, which does place such a duty on the Court. Indeed it would be going too far to hold that such a question can be decided without adjusting the equities which a bona fide purchaser from the, father could have claimed had a properly constituted suit for partition been filed. If the suit, from which this appeal arises, be a proper partition suit, the aforesaid observations are obiter. On the other hand if it be not, the equities which the purchasers from the father might have claimed in a partition suit, cannot be brushed aside without investigation. At any rate the son should not be given half-share in each property sold by the father without investigating whether any of the purchasers is not entitled to the entire property he had purchased as part of the father's share. With respect to the learned Judge, no authority goes so far and decides that the minor's benefit should be determined without adjusting the purchaser's claim. Indeed when the learned Judge was deciding the second appeal the Full Bench case of Rangasayi v. Nagaratnamma was available to him. In the case a suit for partition was filed by the infant through his mother as the guardian against his uncle, the son of the uncle and the minor's half brother. The allegations were that the defendants had misappropriated the minors share of the family properties and had refused to deliver his share though demanded. While the suit was pending the minor died and his mother applied to be brought on record as legal representative. The Subordinate Judge directed the mother to be brought on record. Against the order a revision petition was filed and a Division Bench referred the question whether a suit by a minor abated if he died before the Court found the partition to be for his benefit. The Full Bench held that such a suit did not abate, if the minor plaintiff dies before the Court has found the partition to be for his benefit and Ramesam, J., observed as follows at page 122:

“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 rinding. 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 rinding that it was for the benefit of the minor”

11. Anantakrishna Iyer, J. was more specific, at page 143:

“I respectfully agree that the logical result would he that even a notice given by such a person on behalf of a minor to the other members of the family would be effectual in working a severance of the joint status provided that the Court finds in the suit for partition that it was to the benefit of the minor.”

12. Cornish, J., also appears to contemplate a suit for partition as necessary, for at page 152 he says:—

“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……..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.”

13. It is clear that the Full Bench contemplated a decree in a suit for partition approving the demand for severance as essential in order to bring about the separation and that also is the view taken of the case by the Division Bench in Kotayya v. Krishna Rao. In this case the appeal arose out of a suit for partition filed by two minors through their mother against their grandfather, their uncle and their aunt. A notice demanding the partition had been served on the manager by the mother earlier to the suit. A decree for the partition was given and the defendants had appealed against the decision of the lower Court concerning a gift of two acres by the first defendant in favour of the third defendant being not binding on the family. The learned Judges held that where the mother of a Hindu minor acting as his lawful guardian gives notice on his behalf demanding partition of the joint family properties, severance in status takes place from the date of such notice if in a suit filed in pursuance thereof the Court decrees partition holding the partition to be for the benefit of the minor. Leach, C.J, after referring to the observations of the Full Bench already referred to, observed at page 713:

“A notice cannot of course be effective unless the Court holds that the partition is for the benefit of the minor. If it so holds, then the logical conclusion is that the severance must date back to the giving of the notice.”

14. It follows that notice alone is not sufficient unless it be followed by a suit for partition. The learned counsel for the respondent has relied upon a recent pronouncement of the Supreme Court in Peda Subbaiah v. Akkamma . 1959 S.C.J 138 as being helpful to him. This appeal arose out of a suit for partition of the joint family properties instituted on behalf of a minor against his father and his two step-brothers. The suit was decreed by the first Court. The Subordinate Judge remanded the case for trial on certain issues whereupon the District Munsif held that the sale of family properties and the purchase of certain items in the name of the stepbrothers having been anterior to the birth of the plaintiff, gave no cause of action for partition. In the result he dismissed the suit. There was an appeal against the judgment and the-finding of the District Munsiff which was affirmed and the appeal was dismissed. The plaintiff took the matter in second appeal to the High Court which granted a preliminary decree for partition. One of the arguments before the Supreme Court was that the plaintiff having died before the Court could decide whether the institution of the suit is for the benefit of the minor, the action abated and could not be continued by the minor's legal representative. Venkatarama Iyer, J., describes the legal position in these words.—

“In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status subject only to the Court deciding whether it is beneficial to the minor, and a suit on his behalf, if found to be beneficial, must be held to bring about a division in status.”

15. It appears to us that the Supreme Court has approved the view taken in the Madras Full Bench case Rangasayi v. Nagarathnamma referred to earlier in this judgment and removes doubts entertained by the other Courts concerning its correctness. The pronouncement therefore makes sanction of the Court necessary in order to make effective any unequivocal expression of the intention on behalf of the minor to separate. It also follows that the sanction must be given after proper adjustment of such rights as may have arisen subsequent to the expression. We do not see how that can be done unless a suit for partition is filed. It is not disputed that the plaintiff in this case had not asked for half-share in the several properties covered by B schedule. Indeed he had not even claimed in the plaint possession from some of the purchasers; for he has asked for possession of the immovables and movables described in Schedules, A, B, C and D after ejecting defendants 1 and 2. He had therefore not asked for any relief against the 12th and 13th defendants and the lower Courts have rightly refused to treat the suit as one for partition. In these circumstances we think the learned Judge had erred in allowing the second appeal and treating the suit to be one in which the sanction could be given to the earlier expression of intention to separate contained in the notice. The purchasers are rightly complaining that notwithstanding the sales in their favour having been upheld they have been denied the right of asking these properties to be allotted to the father, which they would have been entitled to do, had a proper suit for partition been filed. In these circumstances the view that the Court's sanction should be given in this case is not justified.

16. The learned counsel for the respondent has argued that so far as item 6 of Schedule B-1 is concerned, his client has claimed half-share in it from the purchaser and therefore the decree for such a half-share of the item should stand. This argument overlooks the legal basis on which the appeal is being allowed. The sanction is refused because of the injustice which would be caused to the several purchasers due to the absence of a proper suit for partition. That injustice would still be there even if the sanction be given for one item; for the sanction would then make effective the intention to separate and would sever the joint status. Therefore absence of a proper suit for partition is fatal to the plaintiff's case and the modification of the decree made in the second appeal must be set aside in its entirety.

17. Coming to the cross-objection we think there is no substance. It is well-settled that a purchase of the property being benami is a question of fact and there are concurrent findings about properties in C Schedule being of the 1st defendant. Therefore the objection fails on the short ground of the findings of fact being binding in second appeal on this Court. The result is that the Letters Patent Appeal is allowed, the decree of the lower Court is restored. Having regard to the circumstances of the case the parties will bear their own costs.

M.S.K

18. L.P Appeal dismissed.