Kakumanu Peda Subbayya Andanother vs Kakumanu Akkamma And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 326 of 1955

Decision Date: 4 September 1958

Coram: P.B. Gajendragadkar, A.K. Sarkar, VENKATARAMA AIYAR J

In this matter, the Supreme Court of India recorded the case title as Kakumanu Peda Subbayya and another versus Kakumanu Akkamma and another, with the judgment delivered on 4 September 1958. The bench consisted of Justice P B Gajendragadkar and Justice A K Sarkar. The petitioner was Kakumanu Peda Subbayya and another, while the respondents were Kakumanu Akkamma and another. The decision was reported in the citations 1958 AIR 1042 and 1959 SCR 1249. The case involved the application of Hindu law to a suit for partition of joint family property instituted on behalf of a minor, addressing the issues of severance of joint status, the death of the minor while the suit was pending, the question of abatement, and the right of a legal representative to continue the action.

The headnote summarised that the suit had been filed on behalf of a Hindu minor seeking partition of the family property. During the pendency of the suit the minor plaintiff died, and his mother, acting as his legal representative, was permitted to proceed as the second plaintiff. The Court ultimately decreed in favour of the plaintiffs, finding that the defendants had acted against the minor’s interests and that the partition suit was beneficial to him. The appellants contended that the suit should have abated because the minor died before the suit was heard and before the Court could determine whether the suit was for his benefit. The Court held that when a suit is instituted by a representative on behalf of a minor for partition, a declaration made on the minor’s behalf creates a severance in status that is subject only to the Court’s determination that the action benefits the minor. The decision does not create a new right for the minor but recognises a right that accrued at the time the suit was filed. The Court approved the precedents set in Rangasayi v Nagarathnamma (1933) I L R 57 Mad 95, Ramsingh v Fakira I L R 1939 Bom 256 and Mandilprasad v Ramcharanlal I L R 1947 Nag 848, confirming that the suit did not abate and that the legal representative was entitled to continue and obtain a decree by showing the suit’s benefit to the minor at its institution. Furthermore, the Court rejected the argument that the cause of action for a partition suit by a minor was purely personal, holding that the suit relates to property and therefore does not abate on the minor’s death.

The judgment was issued under civil appellate jurisdiction in Civil Appeal No 326 of 1955. The appeal arose by special leave from a judgment and decree dated 10 April 1953 of the Madras High Court in Second Appeal No 1815 of 1949, which itself arose from a judgment and decree dated 28 January 1949 of the Subordinate Court at Bapatla in A S No 188 of 1947, and ultimately from a judgment and decree dated 23 December 1946 of the District Munsif at Ongole in O S No 139 of 1946. The matter was decided by Justice T L Venkatarama Ai iar, with Justice A Iyyar also listed as a bench member.

Counsel for the appellants comprised the Attorney‑General for India, Setalvad, and R. Ganapathy Aiyar. Counsel for the respondents were A. V. Viswanatha Sastri, M. R. Rangaswami Aiyangar, T. S. Venkataraman and K. R. Choudhury. The judgment was dated 4 September 1958 and was delivered by Justice Venkatarama Aiyar. The appeal concerned a suit for partition of joint family property that had been filed on 2 April 1942 in the Court of the District Munsif at Ongole. The suit was instituted on behalf of Kakumanu Ramanna, a minor who was about two and a half years old at the time, and the minor was represented by his material grandfather, Rangayya, who acted as his next friend. The first defendant in the suit was the minor’s father. The second and third defendants were the sons of that father by his first wife, who had died. The fourth defendant was the father’s second wife, who was also the mother of the plaintiff. The fifth defendant was the daughter of the father by his second wife. The plaint set out three specific grounds for seeking partition of the joint family assets.

First, the plaint alleged that the plaintiff’s mother had been ill‑treated and that there had been neglect in providing for her and her children; the trial court and the Subordinate Judge on appeal found that this allegation was not proved and ordered that no further notice be taken of it. Second, the plaint asserted that the family property had been sold to one Akkul Venkatasubba Reddi for a consideration of Rs 2,300 on 9 May 1939, that the sale was unnecessary, and that its purpose was to prejudice the plaintiff. Third, the plaint claimed that an item identified as “item 2” had been purchased on 1 June 1938 and “item 11” on 14 June 1939 using joint family funds, but that the sale deeds had been placed in the names of the second and third defendants with the intention of reducing the assets available to the plaintiff. The plaint also stated that the family was in a sound financial condition and that it owed no debts.

On 20 June 1942 the defendants filed their written statements. In those statements they contended that the purchases of items 2 and 11 were made with the separate funds of the second and third defendants and that the joint family had no title to those items. They further alleged that the family was indebted to the extent of Rs 2,600. In January 1943 the minor plaintiff died, and his mother, who was the fourth defendant, was entered as his legal representative and was accordingly relabelled as the second plaintiff. The trial court initially decreed the suit. On appeal the Subordinate Judge remanded the matter for a further trial on certain issues. At the rehearing it was proved that the first plaintiff had been born on 20 December 1939. The District Munsif then held that the sale of the family property to Akkul Venkatasubba Reddi and the purchases of items 2 and 11 in the names of the second and third defendants had taken place before the birth of the minor plaintiff and therefore could not give rise to a cause of action for partition.

The District Munsif observed that the sale and purchase of items numbered two and eleven had occurred before the minor plaintiff’s birth, and therefore no cause of action for partition could arise from those transactions. He further examined the evidence concerning the acquisition of items two and eleven and concluded that the plaintiff had not demonstrated that those acquisitions were financed with separate funds. Consequently, the Munsif held that the two items formed part of the joint family property and that the family bore no outstanding debts. He also found that the allegations made in the defendants’ written statements were not substantiated by the record. Nevertheless, the Munsif reiterated that the absence of a cause of action for partition remained, and thus he ordered the dismissal of the suit. The aggrieved party filed an appeal challenging the Munsif’s decision, and the matter was subsequently heard before the Court of the Subordinate Judge of Bapatla. The Subordinate Judge affirmed the earlier findings that items two and eleven belonged to the joint family and that the family owed no debts. He also concurred that because the sale and purchase occurred prior to the minor’s birth, the suit for partition could not be maintained on that basis. Accordingly, the Subordinate Judge dismissed the appeal, leaving the original dismissal of the suit undisturbed. The second plaintiff then instituted a second appeal before the High Court of Madras, where the matter was heard by Justice Satyanarayana Rao. Justice Rao held that the defendants had falsely represented items two and eleven as their separate property, thereby creating an adverse interest to the minor. He concluded that the suit for partition was clearly intended to benefit the minor and consequently granted a preliminary decree of partition. The present appeal challenges that preliminary decree and was entertained by this Court on a certificate of leave under Article 136. Counsel for the appellants presented two primary arguments, the first asserting that both lower courts had jointly concluded that the suit was not instituted for the minor’s benefit. They further argued that the High Court possessed no power to reverse that conclusion on a second appeal. The second argument posited that because the minor plaintiff died before the suit was finally heard, the cause of action had abated and could not be pursued by his mother as his legal representative. The appellants contend that the issue of whether a suit is filed for a minor’s benefit is purely factual. Accordingly, they argue that a finding of the lower courts on that factual question should not be interfered with by a second appeal. The Court noted that the Subordinate Judge’s finding was confined to the observation that the contested sale and purchase transactions took place before the minor’s birth. From that premise, the Subordinate Judge concluded that the minor could not base a cause of action for partition on those transactions. The Court regarded that conclusion as a clear misdirection of legal principles concerning the basis of a cause of action. The transactions in question were relied upon by the minor plaintiff to demonstrate that the defendants were acting adversely to his interests, thereby justifying a partition. Thus, the Court indicated that the mere fact that the transactions preceded the minor’s birth did not bar a claim for partition if the defendants later used those documents to defeat his rights.

In this case the Court observed that, although the plaintiff had not yet been born at the time the alleged sales and purchases were completed, the defendants could not have entered into those transactions with the purpose of injuring him. The Court noted that the plaintiff was still in utero in May and June of 1939, when the transactions were finalized, and that the first defendant had expressly admitted this fact in his testimony. Nevertheless, the Court held that the absence of a deliberate intention to defeat the plaintiff’s rights at that earlier moment did not settle the issue. The decisive question, according to the Court, was whether the defendants later acted in a manner hostile to the minor’s interests. Specifically, the Court asked whether, after the plaintiff’s birth, the defendants employed documents that might originally have been innocent but were subsequently used to deprive him of the properties described in those documents. Such conduct, the Court explained, would constitute an adverse and hostile act justifying a decree of partition. The Court then turned to the factual record. It pointed out that, in the written statements filed shortly after the suit was instituted while the first plaintiff was still alive, defendants numbered one through three jointly denied the plaintiff’s title to certain items. At trial, those defendants presented evidence to support their claim that the disputed properties were in fact the separate possessions of defendants two and three. The Court further noted that, even before the Court of Appeal, the defendants persisted in maintaining this claim and also alleged that the joint family was burdened by debts, a contention that had been simultaneously upheld by both lower courts. From these materials, the Court concluded that it was not in the minor’s interest to remain in joint ownership with the defendants, and that granting a partition would be advantageous to him. The Court therefore held that the lower courts erred in concluding that, because the transactions occurred before the plaintiff’s birth, he could not base a cause of action upon them. That error, the Court said, misdirected the lower courts and provided sufficient ground for the High Court to interfere with their finding in the second appeal.

Having accepted the High Court’s determination that the suit was instituted for the benefit of the minor plaintiff, the Court proceeded to address the second issue raised by the learned Attorney‑General. The central question presented was whether the suit for partition was extinguished by the minor’s death before the suit had been heard and decided. The appellants contended that, while an adult coparcener’s unequivocal expression of intent to be divided can, by itself, bring about a change in status and render a partition suit effective, that principle could not be applied to a minor because, under the law, a minor lacks the capacity to make such a volitional statement. The appellants further argued that, although a partition suit may be entertained on behalf of a minor and decreed if the court finds it to be in the minor’s interest, the court’s exercise of a volition on the minor’s behalf does not constitute a change in the minor’s status until the court itself makes that determination. Consequently, they maintained that if the minor died before the court adjudicated the question of his benefit, he would die as an undivided coparcener, his interest would survive in the other coparceners, and it would not pass to his heirs by inheritance. The Court noted these submissions as part of the substantive discussion regarding the effect of the minor’s death on the continuation of the partition suit.

The parties acknowledged that a suit for partition could be instituted on behalf of a minor plaintiff, and that such a suit could be granted a decree if the court determined that the decree would serve the minor’s interests. The appellants argued that, because a minor lacks the capacity to exercise a volitional act, the court must itself exercise the necessary volition on the minor’s behalf. Consequently, they maintained that no change in the coparcener’s status could occur until the court exercised that volition, and that, as a result, a minor who died before the court rendered a decision on the benefit to him remained an undivided coparcener. In their view, the minor’s share would thus pass to the surviving coparceners rather than descend to the minor’s heirs by inheritance. The respondents, in contrast, contended that a suit for partition filed on the minor’s behalf should be treated in the same manner as a suit filed by an adult coparcener, apart from the condition that, if the court concluded that the suit was not instituted for the minor’s benefit, the suit could be dismissed and no alteration in status would arise. They further argued that a partition suit on behalf of a minor effected a severance of the minor’s status from the date the suit was filed, provided that the court subsequently held that the suit was instituted for the minor’s benefit. The issue raised therefore concerned a significant point of law about whether a partition suit on behalf of a minor creates a division in status and, if so, from what point in time that division is deemed to arise.

The Court noted that the matter had attracted divergent judicial opinions. Earlier decisions in Chelimi Chetty v. Subbamma [(1917) I.L.R. 41 Mad. 442], Lalta Prasad v. Sri Mahadeoji Birajman Temple [(1920) I.L.R. 42 All. 461] and Hari Singh v. Pritam Singh [(1936) A.I.R. 504 Lah.] held that a division in status occurred only when the court, after deciding that the suit was for the minor’s benefit, passed a decree. By contrast, decisions in Rangasayi v. Nagarathnamma [(1933) I.L.R. 57 Mad. 95], Ramsing v. Fakira [(1939) I.L.R. 256 Bom.] and Mandliprasad v. Ramcharanlal [(1947) I.L.R. 848 Nag.] laid down that, once a decree was issued, the severance in status was to be reckoned retroactively to the date of filing the suit. Moreover, while Chelimi Chetty v. Subbamma held that a suit filed on a minor’s behalf abated if the minor died before the hearing, the rulings in Rangasayi v. Nagarathnamma and Mandliprasad v. Ramcharanlal concluded that death of the minor prior to trial did not cause the suit to abate. Those latter cases permitted the minor’s legal representatives to continue the suit, provided they could convince the court that the suit had been instituted for the minor’s benefit, in which event a division in status would be recognized from the date of the plaint. The Court therefore needed to determine which of these competing views correctly described the legal effect of a partition suit filed on behalf of a minor coparcener.

The Court observed that the interests of a minor in the joint family property would ultimately pass to the minor’s heirs. In order to determine which of the two conflicting opinions was correct, the Court examined both the nature of the right that a minor coparcener possesses to demand a partition and the authority of the court to decide whether the proposed partition would be advantageous to the minor. According to Mitakshara law, a coparcener acquires a right to share in the joint family property at the moment of birth, and that right includes the entitlement to be maintained from the family assets in a manner appropriate to the family’s joint status, as well as the entitlement to seek partition and to obtain separate possession of his share if he so demands. Earlier jurisprudence had maintained that a partition could not be effected unless all the coparceners gave their consent or until a decree was issued in a partition suit. This position was ultimately overruled by the Privy Council decision in Girja Bai v. Sadashiv Dhundiraj (4), where, after reviewing the original texts and adopting the observation made in Suraj Narain v. Iqbal Narain (5), the Council held that each coparcener possesses an inherent right to effect a division at his own discretion, irrespective of the consent of other coparceners. The Council further held that a division in status occurs the moment the coparcener unmistakably and unambiguously expresses his intention to become separate, and that the filing of a suit for partition constitutes a clear manifestation of such intention. Consequently, the authorities (1) (1917) I.L.R. 41 Mad. 442; (2) (1933) I.L.R. 57 Mad. 95; (3) I.L.R. [1947] Nag. 848; (4) (1916) L.R. 43 I.A. 151; (5) (1912) L.R. 40 I.A. 40,45 together establish that a severance in status takes place at the moment a partition action is filed. Applying this principle to its logical conclusion, the Privy Council in Kawal Nain v. Prabhu Lal (1) held that even if the partition suit were subsequently dismissed, the division in status would remain effective because it had already occurred when the action was instituted. Viscount Haldane summed up the view by stating: “A decree may be necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains consequential judgment or not.” Having settled the law for adult (sui juris) coparceners, the Court then considered whether the rule operated differently when the coparcener filing the partition suit was a minor represented by a next friend. Hindu law, the Court noted, makes no distinction between a major and a minor coparcener regarding their rights to the joint property. A minor, like an adult, is entitled to be suitably maintained out of the family assets, and at the time of partition his rights correspond to those of a major coparcener.

The right of a minor coparcener to the family property was held to be exactly the same as the right of an adult coparcener. Consistent with that principle, the law had long recognized that a suit for partition filed on behalf of a minor coparcener was maintainable in the same way as a suit filed by an adult coparcener, the only distinction being that, when the plaintiff was a minor, the court had to be satisfied that the suit had been instituted for the minor’s benefit. The authorities referred to in Rangasayi v. Nagarathnamma at page 137 supported this view. Up to that point the development of the law had proceeded smoothly. Then the decision in Girja Bai v. Sadashiv Dhundiraj established that a division in status occurred when a coparcener made an unequivocal declaration of his intention to separate, and that the very institution of a suit for partition amounted to such a declaration. The question that subsequently arose was how far this principle could be applied when the suit for partition was instituted not by an adult but by a minor acting through a next friend. Some opinions expressed that, because a minor had no independent volition under the law, the rule concerning the creation of a division in status could not be applied to him. The cited authorities included (1917) L.R. 44 I.A. 159, (1933) I.L.R. 57 Mad. 95 and (1916) L.R. 43 I.A. 151. However, it was not suggested that this view meant a partition suit could not be maintained on behalf of a minor; such a conclusion would have contradicted a series of earlier decisions and would have exposed the minor’s estate to waste and spoliation by other coparceners. What was actually held was that when a court decided that a partition was for the benefit of a minor, the division was created by that decision and not by any other act. Consequently, if a minor died before the court resolved the question of benefit, the minor would have died as an undivided coparcener and his heirs could not continue the action. In Chelimi Chetty v. Subbamma, the court was directly asked to decide whether, on the death of a minor plaintiff, the partition suit instituted on his behalf could be continued by his legal representatives. The court held that the rule that the institution of a suit for partition effected a severance of joint status did not apply to a suit brought on behalf of a minor, and that when the minor died during the pendency of the suit, his legal representative was not entitled to continue it. The reasoning for this decision was summarized as follows: the learned pleader for the respondent had strongly argued that the plaint set out facts and circumstances which, if proved, would justify the court in decreeing a partition; therefore, at that stage the court should proceed on the basis that there was a good cause of action and consequently a severance of status.

The Court explained that the severance of status that results from the institution of a suit does not give any person who chooses to act for a minor member of a Hindu family a discretionary power to create that severance on the minor’s behalf. The Court stressed that what actually causes the severance of a joint Hindu family is not merely the existence of facts that would justify any family member in seeking partition, but rather the exercise of the option that the law provides to a member of the joint family to decide whether he wishes to remain a joint member or to demand a division. In the case of an adult, the law does not require the adult to provide any reason for asking for partition; the adult simply declares his desire for partition and the court is obliged to grant a decree. By contrast, in the case of a minor, the law confers upon the court the authority to determine whether a division should be ordered. The Court expressed concern that allowing other persons to exercise a discretion to create a division in the family while purporting to act for a minor would lead to considerable complications and difficulties.

This principle was later endorsed with approval in Lalta Prasad v. Sri Mahadeoji Birajman Temple (1). The Court in that case observed that an action brought by a minor through his next friend does not, of itself, alter the status of the family because a minor does not have an inherent right to demand a separation. A separation may be granted only at the discretion of the court when, under the circumstances, the action appears to be for the minor’s benefit, with reference to Chelimi Chetty v. Subbamma (2). The observation reinforced the view that the mere institution of a suit by a minor’s representative does not sever the joint family status.

In Hari Singh v. Pritam Singh (3), a suit for partition filed on behalf of a minor was decreed because the Court found that the partition was for the minor’s benefit. The subsequent issue concerned the period for which the karta could be held liable to render an account. Relying on the decisions in Chelimi Chetty v. Subbamma (2) and Lalta Prasad v. Sri Mahadeoji Birajman Temple (1), the Court held that the severance of status occurs only on the date of the Court’s decision and not on the date the suit was instituted; consequently, the liability to account arose only from the date of the decree. The Court also noted that in Chhotabhai v. Dadabhai (4) Divatia J. had quoted the decision in Chelimi Chetty v. Subbamma (2) with approval. However, as pointed out in Ramsing v. Fakira (5) and reiterated by the learned judge in Bammangouda v. Shankargouda (6), the specific point under consideration did not actually arise for decision in those cases, and the observations were merely obiter. (1) (1920) I.L.R. 42 All. 461. (2) (1917) I.L.R. 41 Mad. 442. (3) A.I.R. 1936 Lah. 504. (4) A.I.R. 1935

In this case, the Court noted that the observations recorded in Bom. 54, (5) I.L.R. [1939] Bom. 256 and (6) A.I.R. 1944 Bom. 67 were merely obiter. Relying on those authorities, the appellants argued that because the minor plaintiff died in January 1943, the suit for partition had abated and consequently his mother, as his heir, could not continue the suit. The Court then examined the ratio of the decision in Chelimi Chetty v. Subbamma (1) – a decision that was subsequently followed in Lalta Prasad’s case (2), Hari Singh v. Pritam Singh (3) and Chhotabhai v. Dadabhai (4). The Court held that the principle articulated in those cases, namely that the power to effect a division between a minor and his coparceners resides solely with the court and not with any other person, was plainly erroneous. The Court explained that when a court determines that a suit for partition is beneficial to a minor, the court itself does not create a severance in status. The court is not a “super‑guardian” that can, on the minor’s behalf, express an intention to be divided. Instead, that intention must be expressed by some other person, and the court’s role is limited to assessing whether that person has acted in the minor’s best interests in expressing the intention to be divided. To illustrate, the Court described what happens in a partition that occurs outside the court. When a branch comprising a father and his minor son is separated from the other coparceners, the father acts on behalf of his minor son, and the partition produces a severance in status between the father‑son pair on the one hand and the other coparceners on the other. In that scenario the minor’s intention to separate from coparceners other than his father is effectively expressed by his father. The Court further observed that a division may also occur between a father and his own minor son; in such an event the minor would normally be represented by his mother or another relative, and a partition entered into in that manner has been recognized as valid and effective in bringing about a severance in status. The Court affirmed that the minor unquestionably has the right to have a partition set aside if it can be shown to have been prejudicial to him; however, if no prejudice is established, the partition is binding on the minor. Accordingly, the Court referred to the authority in Balkishen Das v. Ram Narain Sahu (1). Moreover, even where a partition is set aside on the ground of unfairness, the effect is not to annul the severance in status that the partition created, but rather to entitle the minor to a re‑allotment of the properties. The Court emphasized that it is immaterial that the minor was represented in the transaction by a person other than a legal guardian.

In this case, the Court observed that a transaction concerning a minor’s coparcenary property may be undertaken not only by a legal guardian but also by another relative. The Court referred to the decision in Gharib- Ul-Lah v. Khalak Singh (2), which holds that a guardian cannot be appointed for the coparcenary properties of a minor member in a joint family because, under the law, the karta alone possesses the right of management over those properties and the authority to represent the minor in related transactions. The Court clarified that this rule applies only while the family remains a joint family. Once the joint status is disrupted, the right of a karta to act on the minor’s behalf no longer exists. Consequently, a partition entered on the minor’s behalf by a person other than the minor’s father or mother is valid, provided that the person acts in the minor’s interests and for the minor’s benefit. The Court then examined whether, if the law allows a person other than the father or mother to represent a minor and to execute an out‑of‑court partition that binds the minor, the same person may also file a suit seeking a division when the adult coparceners refuse to effect a partition. The Court asked why, if a court determines that such an action serves the minor’s interest, the suit should not be considered a proper declaration on the minor’s behalf to cause a severance in status. The Court concluded that whenever the law permits a person interested in a minor to act on the minor’s behalf, any declaration of division made by that person on the minor’s behalf inevitably results in a severance of status, subject only to the court’s determination that the action is beneficial to the minor. Accordingly, a suit instituted on the minor’s behalf, if found beneficial, must be deemed to bring about a division in status. The Court noted that this principle had been articulated in earlier authorities, citing (1) (1903) L.R. 30 I.A. 139 and (2) (1903) L.R. 30 I.A. 165. The view was adopted in a Full Bench decision of the Madras High Court in Rangasayi. v. Nagarathnamma (1), wherein Justice Ramesam explained that the purpose of examining whether a suit is for the minor’s benefit is to remove any obstacle to the decree, that the suit’s maintainability is not in question, and that severance of status is effected from the date of filing, conditional upon the court’s finding that the suit was filed for the minor’s benefit. The same reasoning was endorsed in Ramsing v. Fakira (2) and Mandliprasad v. Ramcharanlal (3), and the Court affirmed agreement with those decisions.

Having accepted that the act of the person who represents a minor is the event that creates a division in the minor’s status, the Court found it necessary to explore the nature of the jurisdiction exercised by the courts when they determine whether a suit is filed for the benefit of a minor. The prevailing theory holds that the sovereign, acting as parens patriae, possesses both the power and the duty to safeguard the interests of minors, and that this protective function has been transferred to the courts. In performing this function, the courts acquire authority to oversee all proceedings that involve minors. They may appoint officers of their own choosing to look after the minor’s interests and may suspend or stay proceedings if they deem them to be vexatious. The Court referred to a passage in Halsbury’s Laws of England, third edition, volume XXI, page 216, paragraph 478, which states: “Infants have always been treated as specially under the protection of the Sovereign, who, as 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.” (1) (1933) I.T.R. 57 Mad. 95. (2) I.L.R. [1939] Bom. 256. (3) I.L.R. [1947] Nag. 848.

The Court observed that in exercising this jurisdiction, the courts must be satisfied that the next friend of the minor, in instituting a suit for partition, has acted in the minor’s interest. Consequently, when a court determines that a suit has been filed for the benefit of the minor and subsequently decrees partition, it does so not by invoking any rule that is special or peculiar to Hindu law, but by exercising a jurisdiction that is inherent to the court and that extends to all minors. The effect of a court’s decision that the action benefits the minor is not to create, in the minor “proprio vigore,” a right that did not previously exist; rather, it is to recognize a right that accrued to the minor at the moment the representative instituted the suit. Accordingly, the severance in status arises from the next friend’s act of filing the suit, while the court’s decree merely gives effect to that severance by confirming that the representative’s action was for the minor’s benefit. The Court then turned to another argument raised by the appellants, which contended that the cause of action for a partition suit by a minor is personal to the minor and that, should the minor die before the hearing, the suit must abate under the maxim “actio personalis moritur cum persona.” The Court noted, however, that this maxim applies only to actions for damages and not to suits for partition, which are suits concerning property.

In this case, the Court explained that the maxim concerning personal actions applies only when a suit is brought for a personal wrong. Because a suit for partition concerns a right in property rather than a personal injury, the maxim did not govern the present action. The Court referred to the earlier decisions in Rangasayi v. Nagarathnamma, reported in the 1933 Indian Law Reports, Madras series at pages 137‑138, and in Mandliprasad v. Ramcharanlal, reported in the 1947 Indian Law Reports, Nagpur series at page 871. Both of those authorities held that a partition suit is a property suit and therefore the rule about personal actions was inapplicable, and the Court agreed with that view. After considering all the arguments raised by the appellants, the Court found that none of the contentions succeeded. Consequently, the Court dismissed the appeal and ordered the appellants to pay the costs of the proceedings. The Court also noted that the amounts already paid by the appellants to the respondents, pursuant to the earlier order of this Court dated 7 March 1958, would be taken into account when the Court adjusted the parties’ respective rights under the decree that had been issued. The citations to the earlier cases were reiterated as follows: (1) (1933) I.L.R. 57 Mad. 95, appeal dismissed; (2) I.L.R. [1947] Nag. 848.