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Ganapathy v. Subramanyam Chetty And Ors.

Madras High Court

Jan 25, 1929

Judgment

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Factual and Procedural Background

The suit was instituted by the first plaintiff on behalf of himself and his minor sons for a partition. The first defendant was the father of the first plaintiff and the defendant by different mothers. Plaintiffs Nos. 2 and 3 were the minor sons of the first plaintiff and defendants Nos. 3 and of the second defendant. The first plaintiff had purportedly wished to effect a partition in 1915 or 1916, but no partition was effected before the suit was filed in 1920 and there was no shown separation in status.

During the pendency of the suit the first defendant (the grandfather) died on "26th October, 193," (as stated in the opinion). Subsequently the plaintiff (first plaintiff) died. The second plaintiff, who had attained majority, elected to continue the suit on behalf of himself and his minor brother the third plaintiff. At the end of the trial the mother of the third plaintiff applied to be made guardian of her minor son and stated that partition was not in the interest of the third plaintiff and that she did not want a partition so far as he was concerned. The third plaintiff was accordingly transposed as the thirty-first defendant.

The Subordinate Judge held that the third plaintiff was bound by the act of his father and could not withdraw from the suit; the Subordinate Judge decreed partition and allotted one-third share to the second plaintiff for himself and his minor brother (the thirty-first defendant). The thirty-first defendant (the minor third plaintiff) appealed. The central contested question in the appeal was whether the minor third plaintiff had been separated in status from the family by reason of his father's declaration/intention to be divided in status (via filing the partition plaint).

Legal Issues Presented

Whether the minor third plaintiff was separated in status from the family (and thus bound by his father's act) by reason of his father's unequivocal declaration of an intention to be divided in status by filing a plaint for partition.
Whether the Court is obliged and entitled to protect the interests of a minor and, if so, whether the Court can refuse to give effect to the father's declaration insofar as it prejudices the minor.

Arguments of the Parties

Appellant's Arguments

It was contended for the appellant that it was not in the third plaintiff's (the minor's) interest to be separated from the family.
The appellant argued implicitly (through the guardian's plea) that partition should be refused so far as the minor was concerned because separation at the earlier date would be prejudicial to his pecuniary interest.

Respondents' Arguments

The respondents contended that the question whether the minor remained a member of the joint family could not now be considered because the minor was bound by his father's declaration and had become separated from the date of filing of the plaint.
Respondents Nos. 11 to 18 (alienees from the first defendant) later argued that, when a partition is effected, properties alienated to them should, as far as possible, be allotted to the share of their alienor (the first defendant) and that they should be allowed to retain those properties because the alienation to them was binding on the first defendant.
Respondents Nos. 5, 6 and 21 contended (via a memorandum of objections) that they were unnecessary parties in the appeal and therefore should be allowed their costs; the Court observed they were necessary parties in the lower Court but were only formal parties in the appeal and no relief was asked against them.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kamakshi Ammal v. Chidambaram Reddi (3 M.H.C.R. 94)	Recognises that the Court is bound to look after the interests of a minor in litigation (authority dating back to 1866).	Used to support the view that the Court must protect the minor's interests and can interfere if the father is not acting for the minor's benefit.
Chelimi Chetty v. Subbamma (42 Ind. Cas. 860; 41 M. 442; 22 M.L.T. 432; (1917) M.W.N. 792; 34 M.L.J. 213)	Followed the principle that the Court must protect minors' interests in litigation.	Relied on as supporting precedent for the Court's duty to protect minors and not to hold them bound by their father's acts if contrary to their interest.
Palani Gaundan v. Kasi Goundan (50 Ind. Cas. 552)	Same effect: affirms the duty to protect a minor's interest in litigation.	Reinforced the general principle that the Court must protect minors in litigation.
Doraswami Pillai v. Thungasami Pillai (27 M. 377)	Held that a minor's interest must be protected by the Court.	Invoked to emphasize the Court's protective duty towards minors.
Ganesh Rao v. Tuljaram Row (19 Ind. Cas. 515; 36 M. 295; 17 C.W.N. 765; and others; (1913) M.W.N. 575; 25 M.L.J. 150; 40 I.A. 132 (P.C.))	Held that a compromise entered into by a father on behalf of his minor son without the Court's leave was not binding on the minor.	Applied to show that acts of a father (e.g., compromise) may not bind a minor unless the Court has sanctioned them, supporting the minor's protection.
Vemi Reddi Sesha Reddi v. Nallappa Reddi Raghava Reddi (57 Ind. Cas. 800; 11 L.W. 611)	Established that a plaintiff may withdraw a declaration of intention to divide and that such withdrawal prevents severance.	Used to show that the mere filing of a plaint does not necessarily effect a final severance because the declaration may be revoked.
Krishnaswami Naidu v. Perumal (83 Ind. Cas. 81; 20 L.W. 540; (1924) M.W.N. 742; A.I.R. 1925 Mad. 112)	Affirmed that withdrawal of a declaration may prevent severance of status caused by filing a plaint.	Supported the proposition that filing a plaint is revocable and does not inevitably create a final division of status.
Palani Animal v. Muthuvenkatachala Moniagar (87 Ind. Cas. 333; 48 M. 254; A.I.R. 1925 P.C. 49; and others)	Privy Council affirming that withdrawal of a declaration can prevent severance; discussed timing of withdrawal relative to trial/decree.	Cited to confirm that a declaration of intention to separate is subject to revocation and that the date of final decree, not merely the plaint, is determinative of irrevocable separation.
Palaniammal v. Muthuvenkatachala Moniagarar (43 Ind. Cas. 833; 33 M.L.J. 759)	Shows that withdrawal may occur during pendency of appeal and still prevent final separation.	Used to clarify that "before trial" in previous rulings means before final decree, reinforcing that withdrawal during appeal can affect separation status.
Ramdas Chabildas v. Chabil Das Lilloo (7 Ind. Cas. 131; 12 Bom. L.R. 621)	When partition has been actually effected (by decree or agreement) that partition effected by the father is binding on his sons (except on grounds such as fraud or collusion).	Distinguished: the Court noted that such authority shows binding effect only where partition is actually carried into effect by decree or agreement, which had not occurred before the father's death in the present case.
Alur Lakshmi Narasimha Sastrulu v. Venkata Narammma (52 Ind. Cas. 614)	Authority for holding that partition actually effected by decree or agreement by the father binds his sons.	Referenced to show that binding effect requires an actual partition, which was absent here.
Babar v. Khushalbhai Kevalbhai (2 Ind. Cas. 426; 11 Bom. L.R. 396)	Another authority on the binding effect of an actually effected partition by a father.	Noted as the line of authority that requires actual partition to bind minor descendants; not applicable in this case because no decree/partition was completed before the father's death.
Balabux Ladhuram v. Rukhmabai (30 C. 725; 30 I.A. 130; 7 C.W.N. 642; 5 Bom.L.R. 469; 8 Sar. P.C.J. 470 (P.C.))	Privy Council guidance that when one member becomes separate there is no presumption that the remaining members remain united, and no presumption that separation extends to one's descendants.	Used to explain that such presumptions are not conclusive and may be rebutted by circumstances; the Court considered these presumptions but found them rebutted (or at least inapplicable) on the facts here.
Jatti v. Banwari Lal (74 Ind. Cas. 462; 4 Lah. 350; A.I.R. 1923 P.C. 136; and others)	Privy Council decision to similar effect: lack of presumption that separation of one member separates remaining members or descendants.	Relied upon to show that separation of the father did not automatically or necessarily separate the minor third plaintiff from other family members.
Palani Ammal v. Muthuvencatachala Moniagar (87 Ind. Cas. 333; A.I.R. 1925 P.C. 49)	Privy Council holding that separation of one member does not necessarily create separation among all members; the decree must be examined to determine extent of separation.	Applied to underscore that the Court must look to facts and decree (or absence of decree) to determine whether the minor was separated — here there was no decree before the father's death.
Ramalinga Annavi v. Narayana Annavi (68 Ind. Cas. 451; 45 M. 489; A.I.R. 1922 P.C. 201; and others)	Privy Council observation that any statement that the father's separation effected separation of his branch must be read in connection with the facts; their Lordships were considering date of separation, not the factum of separation of junior members.	Invoked to support the proposition that whether a father's action separates his branch (including descendants) must be judged by the facts; here facts pointed against treating the minor as separated at the date of plaint.

Court's Reasoning and Analysis

The Court proceeded in a step-by-step manner:

The Court rejected the respondents' submission that it could not interfere to protect a minor from his father's acts. It relied on longstanding authority (cited authorities) that the Court is bound to look after a minor party's interest and may protect the minor even against the acts of his father.
The primary legal question was whether the mere filing of a plaint for partition by the father operated as an irrevocable severance of the minor from the family from the date of filing. The Court examined the authorities and principles on whether filing a plaint effects a final division.
The Court recognized that while the filing of a declaration of intention to separate may, if carried into effect by a subsequent decree, fix the date of separation as the date of the filing, the mere filing is revocable. Authorities (Vemi Reddi, Krishnaswami Naidu, and Privy Council decisions) establish that a plaintiff may withdraw his declaration or that withdrawal before a final decree prevents severance.
The Court distinguished cases where partition has been actually effected (by decree or agreement) — in such cases a father's partition may bind his sons, subject to fraud or collusion — from the present facts, where the father died before any decree was passed and thus before any irrevocable partition had been effected.
Additional contextual facts weighed against treating the minor as separated at the date of the plaint: the head of the family (the first defendant) was alive when the plaint was filed (weakening presumption that the son would bind his minor children), the minor third plaintiff could himself have maintained a separate suit, and no clear expression of intention to remain separate by the defendants had been made until much later in the proceedings.
The Court considered the minor's pecuniary interests and observed that separation effected before the death of the grandfather would be less beneficial (since separation after that date would have entitled the minor to a larger share). The mother/guardian's representation that partition was not in the minor's interest therefore had to be taken into account.
On these bases the Court concluded that the filing of the plaint by the first plaintiff did not necessarily effect a separation of the third plaintiff. Because effectuating partition at that stage would be prejudicial to the minor's interests, the Court held it must refuse to decree partition as to the minor in these proceedings.
The Court observed that a later declaration by the second defendant in response to the third plaintiff's refusal to continue the suit might have effected a separation, but that this later event occurred at a date much later than the plaint and could not be dealt with in these proceedings. Therefore, the third plaintiff was entitled to a finding that at the time the suit was filed he was not a divided member of the family.
On interlocutory and ancillary points, the Court held that respondents Nos. 5, 6 and 21 were unnecessary parties in the appeal context (although they had been necessary in the lower Court) and thus there was no reason to award costs against the appellant in respect of those parties. The Court also acceded to the alienees' (respondents Nos. 11–18) equitable plea that properties alienated to them should, as far as possible, be allotted to the share of their alienor (the first defendant); that equity was allowed without any special order as to costs.

Holding and Implications

Core Ruling: The Court modified the decree of the Subordinate Judge: it held that the third plaintiff (the minor) had not been separated in status from the family by reason of his father's filing of the plaint and that it would be prejudicial to his interests to decree such separation in these proceedings.

Specific Disposition and Immediate Consequences:

The decree was modified so that the share in question was given to the second plaintiff alone, leaving the other parties free to effect a partition with the third plaintiff as and when they thought fit.
Defendants Nos. 2, 3 and 30 were ordered to pay the costs of the appeal out of the estate.
Respondents Nos. 5, 6 and 21 were not to be awarded costs against the appellant in the appeal because they were unnecessary formal parties in the appeal proceedings (though necessary in the lower Court).
The equitable plea of respondents Nos. 11 to 18 (alienees) that properties alienated to them should, as far as possible, be allotted to the share of their alienor (the first defendant) was allowed; no order as to costs was made in that respect.

The opinion does not state that a new legal precedent was created; it rests on existing authorities and applies them to the facts to protect the minor's interest. The direct effect is the modification of the partition decree and the allocation of costs as indicated above.

Judges: Madhavan Nair, J. (opinion delivered and signed); concurrence noted ("I agree.")

Show all summary ...

1. In this suit the first defendant is the father of the first plaintiff and defendant, by different mothers. Plaintiffs Nos. 2 and 3 are the minor sons of the first plaintiff and defendants Nos. 3 and of the second defendant. The suit was instituted by the first plaintiff on behalf of himself and his minor sons for a partition. It is alleged that the first plaintiff wished to effect a partition in 1915 or 1916, but no partition appears to have been effected before this suit was filed in 1920, and it has been shown that there was any separation in status. During the Pendency of this suit first defendant died on 26th October, 193, and Plaintiff died On the second plaintiff who had attained majority elected to continue the suit on behalf of himself and his minor brother the third plaintiff. At the end of the trial, the third plaintiffs mother applied to be made guardian of her minor son, the third plaintiff, and Sated that the partition was not in the interest of the third plaintiff and that she did not want a partition so far as he was concerned. The third plaintiff was, accordingly, transposed as the thirty-first defendant.

2. The Subordinate Judge has held that it was not open to the third plaintiff to with draw from the suit as he was bound by the act of his father and has accordingly decreed the partition and allotted one third share to the second plaintiff for himself and his minor brother, the thirty-first defendant, The latter now appeals and the only question that arises for consideration is whether the minor third plaintiff was separated in status from the defendant by reason of his father's unequivocal declaration of an intention to be divided in status It is contended for the appellant that it is not to the third Plaintiff's interest to be separated from the family, but the respondents contend that this question cannot now be considered, because the third plaintiff is bound by the father's declaration and be- came separated from the date of the filing of the plaint. It is well settled that, in a litigation in which a minor is concerned, the Court is bound to look after the interests of such a minor, and this has been recognized so far back as 1866; Kamakshi Ammal v. Chidambaram Reddi 3 M.H.C.R. 94, which was followed in Chelimi Chetty v. Subbamma 42 Ind. Cas. 860 : 41 M. 442 : 22 M.L.T. 432 : (1917) M.W.N. 792 : 34 M.L.J. 213, Palani Gaundan v. Kasi Goundan 50 Ind. Cas. 552 is to the same effect. It was also held in Doraswami Pillai v. Thungasami Pillai 27 M. 377 that a minor's interest must be protected by the Court. In Ganesh Rao v. Tuljaram Row 19 Ind. Cas. 515 : 36 M. 295 : 17 C.W.N. 765 : 11 A.L.J. 589 : 18 C.L.J. 1 : 15 Bom. L.R. 626 : 14 M.L.T. 1 : (1913) M.W.N. 575 : 25 M.L.J. 150 : 40 I.A. 132 (P.C.) it was held that a compromise entered into by a father on behalf of his minor son without the leave of the Court was not binding on a minor. It is, therefore, clear that it is the duty of the Court to protect the interests of a minor party. The cases referred to were cases in which the minor was the sole plaintiff but this cannot affect the principle. Ordinarily, when a father sues on behalf of his minor son, it may be presumed that he is acting in the interests of that son unless there is anything to show the contrary. If, however, it does appear to the Court that a father is not acting in the best interests of his sod, on the principle set forth above, the Court is bound to protect that son's interest even against the acts of his father. I cannot, therefore, accept the contention of Mr. Ramachandra Ayyar, for respondents, that the Court cannot interfere to protect a minor from the act of his father. Taking that view we have now to consider whether the filing of the partition suit by the father did actually effect a separation not only of himself but also of his minor sons from the rest of the family, or whether it is open to the Court to refuse partition so far as the minor is concerned.

3. The first point to be considered is whether the filing of this plaint did constitute a final division in the family. When a declaration has been made of an intention to separate by the filing of a plaint for partition and such plaint has resulted in a partition decree, undoubtedly the date of separation would be the date of the filing of the plaint. But the mere filing of the plaint does not necessarily effect a final severance in status, for it has been held that a plaintiff may withdraw his declaration of intention and that then no severance is effected. Vemi Reddi Sesha Reddi v. Nallappa Reddi Raghava Reddi 57 Ind. Cas. 800 : 11 L.W. 611 and Krishnaswami Naidu v. Perumal 83 Ind. Cas. 81 : 20 L.W. 540 : (1924) M.W.N. 742 : A.I.R. 1925 Mad. 112. This has been affirmed by the Privy Council in Palani Animal v. Muthuvenkatachala Moniagar 87 Ind. Cas. 333 : 48 M. 254 : A.I.R. 1925 P.C. 49 : 6 P.L.T. 133 : 21 L.W. 439 : (1925) M.W.N 330 : 3 Pat.D.R. 126 : 27 Bom. L.R. 735 : 29 C.W.N. 846 : 23 A.L.J. 746 : L.R. 6 A.P.C. 143 : 52 I.A. 83 (P.C.). There is are mark in the judgment in the latter case to the effect that the withdrawal must be before trial, but that that means before a final decree is made clear by reference to Palaniammal v. Muthuvenkatachala Moniagarar 43 Ind. Cas. 833 : 33 M.L.J. 759, the same case before this Court, from the judgment in which it appears that the withdrawal took place during the pendency of an appeal. In this view it would be difficult to hold that a declaration of intention by the father, which is subject to revocation, must necessarily effect a separation of his sons from that date. There is authority for holding that when a partition has been actually effected either, by a decree, or by agreement between the parties, that partition effected by the father is binding on his sons and can only be questioned on some such ground as fraud or collusion. Ramdas Chabildas v. Chabil Das Lilloo 7 Ind. Cas. 131 : 12 Bom. L.R. 621, Alur Lakshmi Narasimha Sastrulu v. Venkata Narammma 52 Ind. Cas. 614 and limed. Babar v. Khushalbhai Kevalbhai 2 Ind. Cas. 426 : 11 Bom. L.R. 396. But that does not show that, if the intention to separate has not been carried into effect, the sons will be equally bound. In the present suit, before the intention could be carried into effect by the passing of a decree, the father died. It would, therefore, appear that on the date of his death the minor sons had not been irrevocably divided from the rest of the family. In the circumstances of the present case, the inference of non-division is all the stronger because when the suit was filed, the father of the whole family, viz., the first defendant, was alive and was the head of the family. When, therefore, the first plaintiff asked for a partition, the presumption that he would bind his minor sons by his actions is not so strong as if he were filing a suit against his brothers as the head of his own branch. The third plaintiff, as grandson, could himself have maintained a separate suit for partition, as also any one of the members of the first defendant's family. While, therefore, the filing of the plaint by the first plaintiff may be deemed to have effected his separation from the family because he did not revoke his declaration of intention, yet it does not necessarily effect a division between the third plaintiff and the other members. In Balabux Ladhuram v. Rukhmabai 30 C. 725 : 30 I.A. 130 : 7 C.W.N. 642 : 5 Bom.L.R. 469 : 8 Sar. P.C.J. 470 (P.C.) and Jatti v. Banwari Lal 74 Ind. Cas. 462 : 4 Lah. 350 : 21 A.L.J. 582 : A.I.R. 1923 P.C. 136 : 18 L.W. 273 : 45 M.L.J. 355 : (1923) M.W.N. 687 : 25 Bom. L.R. 1256 : 28 C.W.N 785 : 33 M.L.T. 283 : 50 I.A. 192 (P.C.), the Judicial Committee of the Privy Council has laid down that when one member of the family becomes separate, there is no presumption that the remaining members remain united, and further that when there has been a separation between the members, there is no presumption that there is a separation between one of the members and his descendants. These, however, are only presumptions, and such presumptions may be rebutted by circumstantial evidence or otherwise, as is evident from the decision of the Privy Council in Palani Ammal v. Muthuvencatachala Moniagar 87 Ind. Cas. 333 : 48 M. 254 : A.I.R. 1925 P.C. 49 : 6 P.L.T. 133 : 21 L.W. 439 : (1925) M.W.N 330 : 3 Pat. D.R. 126 : 27 Bom. L.R. 735 : 29 C.W.N. 846 : 23 A.L.J. 746 : L.R. 6 A.P.C. 143 : 52 I.A. 83 (P.C.), where it was held that a separation of one member did not necessarily create a division between all the members, and it was observed that the decree has to be looked to, to show whether the separation was only separation of the plaintiff from his coparceners or was a separation of all the members from each other. It does not, therefore, necessarily follow that, when the third plaintiff's father effected a separation between himself and his family, he effected a separation between his sons and their grandfather and uncle, and to decide this point one must consider the circumstances of this case. The observation of the Privy Council in Ramalinga Annavi v. Narayana Annavi 68 Ind. Cas. 451 : 45 M. 489 : 30 M.L.T. 255 : (1922) M.W.N. 399 : 26 C.W.N. 929 : 43 M.L.J. 428 : 16 L.W. 639 : 24 Bom.L.R. 1209 : 20 A.L.J. 839 : A.I.R. 1922 P.C. 201 : 37 C.L.J. 15 : 46 I.A. 168 (P.C.) that the separation of the father effect- ed a separation of his branch must be read in connexion with the facts of the case and of the fact that their Lordships were merely considering the question of the date of separation and not of the factum of separation of the junior members. It seems to me, on a consideration of all these authorities, that the filing of the plaint by the first plaintiff did not necessarily effect a separation of the third plaintiff as well. Before the partition was completed by a decree, representation was made to the Court that it would not be in the interests of the third plaintiff to become separated from the other members of the family, and in the interests of the minor third plaintiff, the Court is bound to take that plea into consideration. 80 far as the third plaintiff's pecuniary interest is concerned, it is obvious that a separation effected before the death of his grandfather would be less beneficial to him than separation after that date; for in the latter case he would be entitled to a larger share. It is pointed out that, when the third plaintiff declared his intention not to become separated, the other members of the family, viz., second defendant and his sons replied that they did not wish to remain united with the third plaintiff. Until that date, however, there had been no such expression of intention by the defendants. In fact, in the written statement, the defendants pleaded that the plaintiffs had not been excluded from a share in the family property. The third plaintiff being a member of the joint family must remain so until he becomes separated. If he did not become separated by the filing of the plaint, he remains an undivided member of the family until a separation is effected. There has been no such separation until the declaration by the second defendant at the conclusion of this suit, assuming that that was an unequivocal declaration of intention. That being so, the share to which the third plaintiff was entitled on that date is a larger share than that which has been allotted to the second plaintiff on his behalf and the order of the Subordinate Judge decreeing only one-third share to the second plaintiff and the third plaintiff jointly is prejudicial to the latter's interest. It is also difficult to understand how the order of the Subordinate Judge can be justified after he had allowed the third plaintiff to be transposed as the thirty-first defendant. Having allowed the third plaintiff's plea to that extent, it was not open to him to compel him as defendant to have a decree. As I hold that there had been no separation of the third plaintiff from the family by reason of the filing of a plaint by his father, and as it would be prejudicial to his interests to decree such separation, I must uphold his interest and refuse such a decree It may be true that the declaration of the second defendant in answer to the third plaintiff's refusal to continue the suit effected a separation, but that being at a much later date than the plaint, cannot be dealt with in these proceedings, and the third plaintiff is entitled to a finding that, when the suit was filed, he was not a divided member of the family.

4. The decree will, therefore, be modified by giving his share to the second plaintiff alone, leaving the other parties to effect a partition with the third plaintiff as and when so advised. Defendants Nos. 2, 3 and 30 will pay the costs of this appeal out of the estate.

5. A memorandum of objections has been filed by respondents Nos. 11 to 18 and the Advocate who appears for them appears also for respondents Nos. 5, 6 and 21. So far as respondents Nos. 5, 6 and 21 are concerned, it is contended that they are unnecessary parties in this appeal and, therefore, they should be allowed their costs. They were necessary parties in the lower Court and have been added as formal parties in the appeal but no relief was asked as against them and it was not necessary for them to be represented here. There is, therefore, no reason for awarding them costs against the appellant.

6. The plea put forward on behalf of respondents Nos. 11 to 18 who were alienees from the first defendant is, that when a partition is effected the properties alienated to them should as far as possible be allotted to the share of their alienor, the first defendant, and that they should be allowed to retain the properties, as the alienation to them was binding on the first defendant. This equity for which they ask is not opposed either by the second defendant or the third plaintiff and will be allowed, but in the circumstances it is not necessary to pass any order as to costs.

Madhavan Nair, J.

7. I agree.