Sanjay Kishan Kaul, J. (Oral) CS (OS) No. 1136/2002

1. The plaintiff has filed a suit for partition against the defendants. The plaintiff has impleaded his father in the suit as defendant No.2. The plaintiff is a minor and has filed the suit through his mother. .

2. The defendant No.2, the father of the plaintiff, has filed an earlier independent suit being CS (OS) No. 432 of 2001. It is not in dispute that all the properties forming subject matter in the present suit also form subject matter of suit No. 432 of 2001.

3. The legal question was thus raised as to whether the present suit can be maintainable in view of the earlier suit filed by the father of the plaintiff being CS (OS) No. 432 of 200f. If such a suit is not maintainable then the suit is liable to be dismissed and the plaint rejected under Order 7 Rule 11 CPC being barred by law.

4. Learned counsel for the plaintiff states that since the properties in question are ancestral properties, the plaintiff has a right by survivorship.

5. In my considered view the plea cannot be accepted and the suit is not maintainable. The reason for the same is that all the properties forming subject matter of the present suit also form subject matter of suit No. 432/2001, which has been filed by the father of the plaintiff. So long as the line of the plaintiff is represented through his father in the partition suit there can be no question of a separate suit to be filed by the plaintiff. The fact that the plaintiff is a minor would make no difference in this behalf.

6. Learned counsel for defendant No.1 has brought to the notice of this Court a judgment of the learned single Judge of this Court in S. Jasdeep Singh v. S. Kehar Singh and others 111 (2004),DLT 441 : 2004 (74) DRJ 490. The learned single Judge has relied upon the judgment of the Division Bench in FAO (OS)No. 553/2001 titled Master Aditya Murgai v. Ashok Murgai decided on 1.11.2002 and referred to para 9 of the Master Aditya Murgai case (Supra). The Division Bench observed that it is. a settled law that on partition of a coparcenary property, the property falling into the share of each coparcener assumes a dual character. It becomes a separate individual property qua other coparceners with whom partition has taken 'place and for his lineal descendants it retains the .character of ancestral property and therefore a• son, grandson born before or after partition take a share in the property by birth. The question as to whether a minor son can seek partition and share in the coparcenery during the lifetime of his father is stated to have been settled by the Apex Court in Kakumanu Pedasubhayya and Another v. Kakumanu Akkama and Another, AIR 1958, SC 1042.

7. The observations made in para 9 of the said judgment of the Supreme Court are reproduced as under:

"The law being thus settled as regards coparceners who are sui juris, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend. Now, the Hindu Law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is equally wit~ a. major, entitied to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the Court has t6 be

satisfied that the action has been instituted for his benefit." (emphasis supplied)

8. A reference to the aforesaid legal position would show that there is no distinction between a major and minor coparcener and thus the rights of the plaintiff are not different from a major coparcener. The plaintiff will certainly get the share in the property to the extent the share devolves on defendant No.2. Thus on part

Click Here to Read the rest of this document