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Case Number

Second Appeal No. 70 of 1932.

Advocates

Messrs. G. Lakshmanna and G. Chandrasekhara Sastri for the Appellant.
Mr. P. Somasundaram for the Respondents.

Judges

Venkataramana Row, J.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is a suit for partition of a coconut garden (the "suit land") of about 6 acres 10 cents and for the recovery of one-third share therein with mesne profits. The first plaintiff is the son of the second plaintiff. The second plaintiff, the (late) father of the first defendant (Narayanasami) and the second defendant were brothers and members of an undivided Hindu family.

The brothers effected a family partition in December 1916. The plaintiffs allege that at that partition the suit land was not divided but was reserved for future partition; they allege the first defendant is in wrongful possession and refuses partition, claiming that the suit land was allotted to his father as jyeshtabagam. The plaintiffs contend that any allotment as jyeshtabagam is illegal under Hindu law and seek a decree for division into three equal shares and delivery of one share to the plaintiffs.

The defence is that the 1916 partition was a family arrangement acted upon by all members, that the suit land was allotted to the first defendant's father with the consent of the second plaintiff and the second defendant, and that the plaintiffs cannot now impeach the allotment after the lapse of 11 years. Evidence shows the family then possessed about 60 to 100 acres; properties were equally divided except that the suit property was given as an extra allotment to the first defendant's branch. Leases executed after the father's death (1917) and subsequently (including Ex. IX dated 30 September 1920 issued during the first defendant's minority, and Exs. II and V after his majority) were made to the first defendant to the knowledge of and attested by the second plaintiff and the second defendant.

Both lower courts found that the plaintiffs' claim that the property was reserved for future division was false and that documents recite the suit property was allotted as jyeshtabagam. The lower courts nevertheless held that allotment as jyeshtabagam is illegal under Hindu law and awarded the first plaintiff one-sixth share while holding the second plaintiff and the second defendant estopped by their prior assent. The present opinion reverses those decrees on Second Appeal and dismisses the plaintiffs' suit.

Legal Issues Presented

Whether the allotment of the suit property (6 acres 10 cents) to the first defendant's father as jyeshtabagam rendered the 1916 partition fraudulent or unfair so as to permit impeachment by the plaintiffs.
Whether a father, as head of his branch, is competent to represent his minor sons in a family partition and bind them by a bona fide partition arrangement (including extra allotment to his branch).
Whether the plaintiffs are estopped from impeaching the allotment by reason of their conduct and assent over an extended period (about 11 years) and related subsequent acts (leases, attestation).
Whether the first plaintiff (a minor at the time of partition) can obtain a distinct declaration/recovery (one-sixth share) without seeking to set aside the partition as regards himself or reopening the entire partition.

Arguments of the Parties

Plaintiffs' Arguments

The suit land was reserved at the 1916 partition for future division and was not legitimately allotted then.
The first defendant's claim to the land rests on an allotment as jyeshtabagam, which the plaintiffs assert is illegal under Hindu law and therefore impeachable.
The plaintiffs sought a decree directing division of the garden into three equal shares and delivery of one share to them (they framed the relief as recovery of a third share).

Defendants' Arguments

The 1916 partition was a bona fide family arrangement acted upon by all members and is binding.
The suit property was allotted to the first defendant's father with the consent of the second plaintiff and the second defendant, and the plaintiffs cannot now impeach the allotment after the lapse of about 11 years.
Subsequent deeds and leases (including a 1920 lease during the first defendant's minority and later leases after majority) were created to the first defendant with the knowledge and attestation of the second plaintiff and second defendant, demonstrating acquiescence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jamna Prasad v. Durga Dei, A.I.R. 1933 All. 138	Father is entitled and competent to represent his sons in a partition with his brothers; partition effected by him binds the sons unless fraudulent, unfair or prejudicial to their interests.	The court relied on this authority to support the proposition that a father can validly represent his minor sons in a partition and bind them if the partition is bona fide and not unfair.
Brijraj Singh v. Sheodan Singh (1913) 25 M.L.J. 188; L.R. 40 I.A. 161; I.L.R. 35 All. 337 (P.C.)	Where a father effected a division (by will) that was acted upon, the arrangement was upheld; acceptance by members binds their branches; a bona fide family arrangement may be upheld even if it gives extra share to one member.	The court invoked this Privy Council decision to show that bona fide arrangements giving extra shares to a member (here an extra allotment to one branch) may be upheld and are binding on family branches that accepted the arrangement.
Rajangam Aiyar v. Rajangam Aiyar (1920) 39 M.L.J. 382	Authority cited for the position that allotment of jyeshtabagam is illegal under Hindu law.	The court acknowledged this authority but contrasted the general principle with the present facts, holding that where members consensually give extra property bona fide the arrangement cannot be treated as illegal merely because it is described as jyeshtabagam.
Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400	Held that when a mother represented minor sons at partition, the allotment of an extra share to the eldest member was not binding on the minor sons (transaction could be regarded as a gift); the mother as guardian lacked representation power in this context.	The court distinguished this case on its facts: the mother's position differs from the father's. The father has the exclusive right to represent sons at family partition; a mother's consent as guardian is not equivalent.
Balkishen Das v. Ram Narain Sahu (1903) L.R. 30 I.A. 139; I.L.R. 30 Cal. 738 at 752 (P.C.)	If a partition was unfair or prejudicial to a minor's interests, the minor might, on attaining majority, set it aside so far as regards himself by proper proceedings.	The court cited this to note that a minor aggrieved could have, on attaining majority, challenged a prejudicial partition as to himself — but observed that the first plaintiff did not pursue that course and instead sought recovery on behalf of the whole family.

Court's Reasoning and Analysis

The court proceeded by identifying whether the extra allotment of the 6 acres 10 cents to the first defendant's branch rendered the 1916 partition fraudulent or unfair. The court accepted as a general principle (citing Jamna Prasad v. Durga Dei) that a father, as head of his branch, is competent to represent his sons in a family partition and that a partition effected by him will bind the sons unless it can be shown to be fraudulent, unfair or prejudicial to their interests.

On the facts the court found no proof that the 1916 partition was unfair except insofar as the suit property had been allotted to the first defendant's father. The family then possessed approximately 60 to 100 acres; the allotment in question deprived the plaintiffs' branch of about 2 acres 5 cents (the first plaintiff being deprived of half of that). The court concluded that, if the partition was otherwise fair and the extra allotment was bona fide, the father representing his branch could validly consent to the extra allotment and the sons could not later impeach it.

The court considered precedent holding that allotment as jyeshtabagam has become obsolete and would not be enforced, but held that consensual extra allotments between adult members, made bona fide, cannot be classified as illegal solely because they were denominated as jyeshtabagam or because they exceeded a member's nominal share. The court distinguished Venkata Reddi v. Kuppa Reddi (where a mother represented minors and lacked power to bind them) by emphasizing the distinct position of the father, who is the proper representative for sons in a family partition.

The court noted contemporaneous conduct of the family over a period of 11 years: the extra allotment was not questioned, leases were executed to the first defendant with the knowledge and attestation of the second plaintiff and second defendant, and there was no evidence of fraud or unfairness in the specific circumstances that led to the extra allotment. Given that conduct and the absence of a specific showing that the partition prejudiced the minor's interests, the plaintiffs' present attempt to impeach the arrangement was barred in equity and on the law as applied.

Procedurally, the court observed that the first plaintiff (minor at partition) did not seek to set aside the partition as to himself upon attaining majority, and the plaintiffs had framed their suit as recovery on behalf of the entire family rather than as a challenge to the partition affecting the first plaintiff alone. Because of this framing, the court found it was not possible to adjust the division in the manner the plaintiffs sought. The court therefore held that the lower courts erred in making a distinction between the first plaintiff and the second plaintiff and in granting a separate declaration in favour of the first plaintiff.

Holding and Implications

Holding: The court reversed the decrees of the lower courts and dismissed the plaintiffs' suit with costs of the appeal. The court directed that each party bear his own costs in the lower courts.

Implications:

Direct effect: The plaintiffs' claim for partition and recovery of one-third (and the intermediary relief awarded by lower courts to the first plaintiff) was denied; the prior allotment and subsequent acts of acquiescence and dealing (leases, attestation) were held sufficient to preclude the plaintiffs' present challenge.
On representation and family partitions: The opinion reaffirms that a father, when acting bona fide as representative of his branch, may bind his minor sons by a family partition unless the partition was fraudulent, unfair or prejudicial to their interests; the decision distinguishes the position of a mother acting as guardian (as in Venkata Reddi).
The opinion does not purport to lay down a novel general rule beyond the application of established principles to the facts; it does not indicate that it is establishing a new precedent beyond the authorities it applied and distinguished.

This summary is based exclusively on the text of the provided opinion and does not introduce facts or inferences not present in that text.

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Ragireddi Subba Rao v. Ragireddi Subba Rao And Others S

1. This is a suit for partition of the suit land of about 6 acres 10 cents in extent and recovery of one-third share therein with mesne profits. The first plaintiff is the son of the second plaintiff. The second plaintiff, the first defendant's father, late Narayanasami and the second defendant were brothers and formed members of an undivided Hindu family. The family was in possession of considerable property. In December, 1916, the brothers effected a partition and the properties which fell to each were being enjoyed by the respective branches ever since the said date. It is alleged in the plaint that at the said partition the suit land which is a cocoanut garden was not divided but was reserved for a future partition, that the first defendant is in possession of the same wrongfully refusing to effect a partition and delivery of the same on the ground that his father got the same as and for his jyeshtabagam at the partition between his brothers and that the allotment of any property which has been given to the first defendant's father as jyeshtabagam is illegal under the Hindu Law and the plaintiffs are therefore entitled to impeach the same. They accordingly prayed:

that a decree may be passed directing the division into three equal shares of the jerayati cocoanut garden situate in Mondepulanka village as per the A marked schedule filed herewith, regarding the same as the joint family property of the plaintiffs, and defendants 1 and 2 and directing that one share thereof be put in possession of the plaintiffs.

2. The defence was that the partition between the brothers was a family arrangement and was acted upon by all the parties and that the suit property was allotted to the first defendant's father at the partition with the consent of the second plaintiff and second defendant and it is not open to them now to impeach the same after the lapse of 11 years. It is clear from the evidence that the family at the time of the partition between the three brothers was possessed of nearly 60 to 100 acres of immovable property and that there was equal division of all the properties into three shares except with regard to the suit property which was given to the first defendant's branch in addition. It is also clear that this extra allotment to the first defendant, was never questioned by the family up to the date of the suit. In fact after the death of the first defendant's father in 1917 there were leases executed in favour of the first defendant to the knowledge of the second plaintiff and the second defendant and Ex. IX dated 30th September, 1920, was lease in respect of the suit property executed in favour of the first defendant during his minority after the death of his father and it was brought about by the second plaintiff and the second defendant. Exs. II and V are leases after the first defendant attained majority and they were attested by the second plaintiff and the second defendant. It is also concurrently found by both the lower Courts that the case set up by the plaintiffs that the property was reserved for future division was false and that in the said documents there are clear recitals to the effect that the suit property was allotted to the first defendant's father as jyeshtabagam. But both the lower Courts however held that as the allotment of any property towards jyeshtabagam is illegal under the Hindu Law, the first plaintiff is entitled to recover one-sixth share of the suit property though the second plaintiff and the second defendant will be estopped from recovering any portion thereof by reason of their assent at the time of the partition.

3. It is now contended before me in Second Appeal by Mr. Lakshmanna that the view taken by the lower Courts is not sound.

4. There can be no doubt that the father is entitled to and competent to represent his sons in a partition with his brothers and a partition effected by him will be binding on the sons unless it is shown that it was fraudulent or unfair or prejudicial to their interests. The fact that some of the members are minors would not prevent the father in virtue of his position as the head of his branch to represent them. Vide Jamna Prasad v. Durga Dei A.I.R. 1933 All. 138. There is absolutely no proof that the partition effected between the three brothers was in any way unfair or fraudulent save in so far as this suit property, was allotted to the first defendant's father. The question therefore is whether this allotment of 6 acres 10 cents is such as to render the partition fraudulent or unfair. The family was possessed of nearly 60 to 100 acres. The result of giving the suit property to the first defendant's father will be to deprive the plaintiff's branch of about 2 acres 5 cents and the first plaintiff can be said to have been deprived of half of it. It seems to me that if the partition is otherwise fair, it is open to the father as representative of his branch to consent to this extra allotment and if it was done bona fide it will not be open to his sons to impeach the same. In Brijraj Singh v. Sheodan Singh (1913) 25 M.L.J. 188 : L.R. 40 I.A. 161 : I.L.R. 35 All. 337 (P.C.) a father by means of a will purported to divide the family property between his three sons and awarded a double share to the eldest son and one-fourth share to each of the remaining sons, himself taking no share. The arrangement was acted upon for sometime and thereafter it was sought to be impeached on the ground that the father had no right to effect a partition of the joint family property by means of a will and that the allotment of a double share to the eldest son was invalid. But their Lordships negatived both the contentions and upheld the arrangement. Lord Moulton in the course of his judgment observed as follows at page 346:

But the property was ancestral and therefore Rao Balwant Singh, although head of the family, had no right to make a partition by will of that property among the various members of the family except with their consent. They had independent rights in it with which he could not interfere. The main question, therefore, is whether there is evidence sufficient to establish the consent of the plaintiffs Rao Karan Singh and Kunwar Sheodan Singh to this family arrangement. If they accepted it, their acceptance would bind not only them but also their sons, who are the remaining plaintiffs, as they would be representing in the transaction their respective branches of the family.

5. No doubt the question prominently before the Privy Council was in regard to the right of the father to effect a partition by a will but the principle upon which the arrangement is upheld will apply to every case where a bona fide partition has been effected by the father as representative of his branch (vide Mullah's Hindu Law, 8th Edn., p. 391). Mr. Somasundaram relied very strongly on two decisions of our High Court, namely, Rajangam Aiyar v. Rajangam Aiyar (1920) 39 M.L.J. 382 and Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400 for the position that the allotment of jyeshtabagam is illegal under the Hirfdu Law. It is true that the allotment of any property as jyeshtabagam has become obsolete and the Court would not enforce it. But if the members of a joint family agree in effecting a partition to give some extra property to their eldest member or even to one of them bona fide, such an arrangement cannot be considered to be illegal on the ground that a certain property was allotted as for jyeshtabagam or was given in excess of his legitimate share. It is contended it would be virtually an alienation by the father without any necessity and would be tantamount to a gift and therefore not binding on his sons. But in my opinion it is not accurate to regard partition as an alienation. No doubt in Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400 where a mother represented her minor sons at a partition the allotment of an extra share to the eldest member of the family was held not binding on the minor sons and it was held that the transaction may well be regarded as a gift. But in that case the minor himself was the representative of his branch and the mother was representing him as the natural guardian at the partition. As observed in Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400 the mother has no right of representation in respect of the family property. The position of the father is entirely different. The father is the only person entitled to represent his sons at a family partition, and 'it is only through the father that the sons take their share in the joint family property, whereas the position of the mother is only that of a natural guardian and her powers can only be adjudged in that capacity. And a guardian has no power to consent on behalf of the minor to any act which would deprive him of any portion of his property. In this case there is no evidence to show under what circumstances this extra allotment was made to the first defendant's father who died about 10 years ago. Both the second plaintiff and the second defendant are acting in violation of the arrangement which they have entered into. One must presume there must have been some consideration which prompted the adult members of the family to agree to the extra share being given to the first defendant's branch though no doubt the specific case that it was given to the first defendant's father for meritorious service done to the family has not been proved. In the face of evidence of the conduct of the family for over a period of 11 years it does not lie in the mouth of the plaintiffs to impeach this transaction. As has been already stated the fact that there are minor members of the family is no bar to the partition being effected and much more so when there is the father to represent his minor sons. As observed by the Privy Council:

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. Balkishen Das v. Ram Narain Sahu (1903) L.R. 30 I.A. 139 : I.L.R. 30 Cal. 738 at 752 (P.C.).

6. But that is not what is sought to be done in this case. The first plaintiff who was a minor at the time of the partition is not seeking to set aside the partition as regards himself, but both the father and the son are trying to recover this property on behalf of the entire family. If the first plaintiff was aggrieved by the partition effected by the father he ought to have filed a suit asking that the entire partition may be re-opened on the ground that it has prejudicially affected him making his father also defendant and claiming one-sixth share for himself. In such a case it would have been open to the Court to so adjust the division by allowing one-sixth share to the plaintiff and making the extra allotment divisible among the second plaintiff and the first and second defendant's branch. But it is not possible to do so owing to the manner in which the plaintiff has framed his case. The lower Courts were not warranted in making a distinction between the first plaintiff's and the second plaintiff's case. The first plaintiff does not impeach the partition as unfair and unprejudicial to him and he does not seek to recover any share so far as regards himself and it is not open to the lower Courts to make any declaration separately in his favour. I therefore reverse the decrees of the lower Courts and dismiss the plaintiff's suit with costs of this appeal. I direct each party to bear his own costs in the lower Courts.

Ragireddi Subba Rao v. Ragireddi Subba Rao And Others S

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' Arguments

Defendants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ragireddi Subba Rao v. Ragireddi Subba Rao And Others S

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