1. In the partition suit out of which this petition arises, there is a grandfather plaintiff, a son who remains ex parte, and two grandsons, the elder is ex parte, and the younger who filed a written statement claiming 1/6th share in consonance with the plaint, has died. In appointing his legal representative the learned Sub-Judge has held that there was severance in status at least from the date of filing the suit, and therefore the proper legal representative is the boy's mother. Defendants 11 and 12 seek to set aside this order, on the ground that in the case of a minor there can be no severance until the decree is passed. The point is not material, but I think the learned Judge should have said from the date of the written statement of the minor defendant. Possibly in certain circumstances he grandfather might have disrupted he family by his own authority, but the present plaint does not amount to such an act. The proper view upon which the argument must proceed is that the minor's written statement is tantamount to a plaint. The petitioners rely upon Chelimi Chetty v. Subbamma . [1917] 41 Mad. 442 where it is held that in a suit for partition instituted on behalf of a minor the filing of the plaint can effect no severance because it has been laid down that it depends upon the discretion of the Court whether to make a decree for partition or not, and, it would follow prima facie that the matter does not depend upon the option of the person acting on behalf of the minor. As authorities for the proposition that it depends upon the discretion of the Court: Bachoo v. Mankorebai . [1907] 31 Bom. 373 and Kamakshi Ammal v. Chidambare Reddi . 3 M.H.C.R 94., are cited.
2. In the Madras case it was held that a minor can sue for partition, and the cause of action need not necessarily be the malversation of the defendants. But a suit will not lie unless there is something clearly indicating that the interests of the minor will be advanced by partition and the Court might of its own motion require to be satisfied that the suit was really for the minor's benefit and generally so great a change in the condition of a minor as a partition operates ought not to be allowed to take place unless it is clearly for his benefit that it should be so. In the Bombay case the trial Judge on the original side refused to exercise his discretion in ordering a partition, and both the appellate Bench and the Judicial Committee approved his action.
3. In both these cases the question is, what action should the Court take when it is asked to effect a partition of a minor from the joint family. The question whether a minor through his guardian can himself effect the severance, and then merely apply for allotment of his share by Court decree was not under consideration. No doubt these cases lay down that a Court when applied to for partition on behalf of a minor has a discretion whether to order it or not but these cases do not lay down that the application must be made to the Court or that the person acting on behalf of the minor cannot effect severance without the Court's intervention. In the case of adult and minor alike there must be a definite and unambiguous indication of intention to separate. If the guardian without such definite indication confines himself to praying for partition, the Court will insist upon being satisfied that it is for the minor's benefit but if the guardian declares that there has been partition, and merely prays for allotment, can the Court then hold the partition in suspense? That is the question and I see no prima facie inference from these two authorities that the guardian has no option a point which was never considered in either case. If there were a clear statement of law that in the case of a minor the Court has power to say whether there shall be a division or not, this question would present no difficulty; but such a clear statement has not been brought to my notice. The Court has power to say, no doubt, that it will not of itself order a minor's partition but where has it been given the power to say that the minor through his guardian, cannot effect severance without resort to the Court?
4. Assuming that a Court is vested with no particular power in this respect, it remains to consider whether upon general grounds a Court can treat as void the severance of a minor by his guardian. It seems to be held in Chelimi Chetty v. Subbamma that as the severance depends upon the volition of the individual coparcener, there can be no severance by a minor who is incapable of volition. That resolves itself into the question how far the minor's guardian can exercise volition on his behalf, a point not discussed in the ruling beyond stating that a guardian who so acted might cause great hardship and inconvenience. I do not think it can be said that in a matter of volition nothing can be done till the minor comes of age. If that were so, and if to claim partition were peculiarly and essentially the right of the adult, it is difficult to see how the Court could interfere any more than the guardian because the Court in this matter only acts as a super guardian. But once it is assumed that the Court may act for the minor and vicariously exercise his volition, there is nothing in logic to prevent the guardian doing the same. It would be idle for a single Judge so closely to examine the decision of the Bench in Chelimi Chetti v. Subbamma were it not for the circumstance that, at least by implication, its authority is considerably shaken by other rulings. As candidly admitted in the case itself it runs directly counter to the general effect of the Full Bench ruling in Soundara Rajah v. Arunachlam Chetti . [1916] 39 Mad. 159. There a minor sued by his next friend for partition and it was held that the presentation of the plaint effected severance. The case is distinguished in Chelimi Chetti v. Subbamma because the question whether a minor's guardian could effect severance was never raised; but on the other hand it may be said that what a Full Bench takes for granted in law, cannot be lightly brushed aside. The learned Judges have written most copious judgments on a point which had already been settled by the Privy Council, and there is no doubt that they explored every feature of the case. Seshagiri Ayyar, J. states in terms that if the question were not concluded by the Privy Council he would have found the other way, and it is difficult to suppose in those circumstances that if the plaintiff's being a minor distinguished the case, his Lordship would have overlooked so obvious a point.
5. In Krishnaswami Thevan v. Pulukaruppa Thevan . A.I.R 1925 Mad. 717 there is no doubt a strong affirmation of Chelimi Chetti v. Subbamma,
“The learned Judges were perfectly right.” “There is no reason to doubt the soundness of the decision.”
6. Yet the conclusion in this latter case is that the minor has a divided share from the date of the suit. It was a case of a minor suing for partition and a brother being born in the course of the suit. It is held that the analogy of an alienation is applicable; just as the alienee takes his share as from the data of his alienation and not from the date of the decree so too does the minor take his share from the date of his plaint.
“On the date when the plaintiff filed his suit he was entitled to a half share, and supposing several members are added to the family during the pendency of the suit, is it reasonable to hold that the plaintiff should be deprived of his shire?”
7. An alienee gets his share from the data of the alienation because the alienation is an accomplished fact, and not a mere ground of claim; and if that analogy applies, it would seem that the plaint must also be regarded as an accomplished fact of severance and if on the date of plaint the miner is entitled to a half share in the sense that it was his separate property and not to be shared with any after-born brother, then for all practical purposes his plaint; has effected a severance. Unless there is an actual severance it is, difficult to see how the minor plaintiff can have a right to exclude the after-born. Courts carry their decrees back to the date of the plaint, when upon that date the plaintiff had a present right; and if in fact there is no severance until the date of the decree, it would be hard to justify the exclusion of the after-born by any rule of equity. They too might appeal to reason, and ask, in the words of this judgment, if there is no severance at the time of the plaint, is it reasonable that we should be deprived of our share? The short way out of this difficulty is to make no distinction between minors and adults in respect of this matter of unilateral severance, the course adopted by the Full Bench in Soundara Rajan v. Arunachalam Chetti and in terms by the Patna High Court in Krishna Lal Tha v. Nandeshwar . [1918] 4 Pat. L.J 38
“We are unable to accede to the proposition that, under Hindu Law a minor cannot express either himself or through his guardian an intention to do that which is clearly not against his own interests.”
8. It must be observed, however, that Chelimi Chetti v. Subbamma was never brought to the notice of that Court, and this ruling is dissented from in Krishnaswami Thevan v. Pulukaruppa Thevan. The conclusion to which this examination of the authorities points is that the law is by no means so clear that the leaned Subordinate Judge can be said to have acted with material irregularity in finding that there was a severance of status from the date of the suit, which is the assumption in Soundara Rajah v. Arunachalam Chetti and in my opinion the logical effect of Krishnaswami v. Pulukaruppa. Of course if ultimately he decrees partition (5) Krishnaswami v. Pulukaruppa will be direct authority for dating the severance from the plaint; and if he does not decree partition, the present petitioners will not be affected. Anyhow, if necessary this question will be fully reconsidered in the trial itself. The learned Subordinate Judge states that his order appointing the legal representative is not res judicata in regard to the actual issues of the suit, and there he is right. The matter has been decided by him almost summarily with no reference to authority, and cannot be said to have been substantially in issue. The petition for the above reasons is dismissed with costs.
P.R.S/V.S
9. Petition dismissed.