The dismissal of a suit for partition by minor sons does not amount to a severance of the joint family unless the Court decides that the partition was for the benefit of the minors.

VISWANATHA SASTRI, J. :- This is an appeal from the decree of dismissal of O. S. No. 8 of 1942 on the file of the Court of the Subordinate Judge of Vijayawada brought by the plaintiffs for the recovery of possession of a half share in the A schedule properties with mesne profits, or, in the alternative, for a half share of the amounts realised in Court sales in which the properties were sold, if the sales themselves could not be set aside.

2. Sitaramayya Garu, an affluent pleader of Bezwada, died in 1905 leaving an adopted son, the first defendant, who inherited his properties. By his first wife, Satyavatamma who died in 1919, the first defendant had two sons, the elder of whom is the third defendant, the younger Kesavarow having died before suit. By his second wife, Venkatalakshmamma who died on 12th April, 1934, the first defendant had four sons of whom one died an infant and another was adopted into another family; the remaining two sons are the plaintiffs. The first plaintiff was born on 18th June, 1922 and the second on 2nd February, 1925 and the suit was filed on 23rd January, 1941. The first defendant died on 14th November, 1945, pending the suit. During his lifetime, the first defendant acquired some properties and these, in addition to those inherited by him, were said to be valuable. He also started a commission agency business and a rice mill which ended in a loss. He was living in a comfortable style with his family in Bezwada. He was involved in litigations wherein he unsuccessfully claimed occupancy rights in certain mokhasa and shrotriem lands which he had purchased. He got into debts and was adjudged an insolvent on 27th April, 1931 on his own petition I. P. No. 6 of 1931 presented on 19th January, 1931, in the Sub-Court, Vijayawada. The Official Receiver was about to sell the properties of the insolvent on 4th September, 1931. On the previous day, the four sons of the first defendant by his second wife who were then in existence and who were minors represented by their maternal uncle as next friend filed O. S. No. 302 of 1931 on the file of the District Munsifs Court Bezwada, for a partition of their shares of the family properties and for an injunction restraining the Official Receiver from selling them except the 1/7th share of the insolvent therein. The insolvent father, the step-brothers of the plaintiffs, the Official Receiver and the creditors were all defendants in that suit.

The plaintiffs and their step-brothers entered into an arrangement on 1st December, 1953 among themselves regarding the division of the properties and debts. The suit however was dismissed by the Court on the ground that a partition was not in the interests of the minor plaintiffs. There was no appeal from the decree. Many of the creditors filed suits against the 1st defendant and his sons and obtained decrees.

O. S. No. 22 of 1931, O. S. No. 29 of 1934 and O. S. No. 37 of 1934 on the file of the Sub-Court, Bezwada were three such suits and decrees. In execution of these decrees, the shades of the sons in the family properties were sold and purchased by some of the defendants in the present suit, the Official Receiver having sold the one-seventh share of the insolvent. The decrees in O. S. No. 22 of 1931, O. S. No. 29 of 1934 and O. S. No. 37 of 1934 and the Court sales that followed them are now sought to be set aside by the plaintiffs.

3. Though it was alleged in the plaint that the debts of the father were illegal and immoral, the learned advocate for the appellants did not challenge the finding of the Court below which was adverse to the plaintiffs on this point. The main attack on these decrees is that the next friend of the plaintiffs in O. S. No. 302 of 1931, and their guardians-ad-litem in the suits of the creditors above referred to were guilty of gross negligence in conducting or defending the suits.

In spite of the dissent expressed in Krishna Das Padmanabha Rao v. Vithoba Annappa, ILR 1939 Bom 340 : (AIR 1939 Bom 66