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1964 Supreme(Mad) 492
Madras High Court
RAMAKRISHNAN
Nabisha Begum - Appellant
Versus
Arumuga Thevar - Respondent
Decided On : 12/17/1964
K. Rajah Iyer and K. Hariharan, for Appellant; T.S. Srinivasan and R. Ramamurthi Iyer, for Respondents.
The filing of a partition suit by a minor's next friend effects a severance in status among the coparceners of the joint family, and the dismissal of the suit on the minor's attaining majority does not undo the severance in status.
Headnote:
HINDU LAW - PARTITION - SUIT BY MINOR - EFFECT OF DISMISSAL OF SUIT ON MINOR'S ATTAINING MAJORITY - SEVERANCE IN STATUS - REUNION - RES JUDICATA.
Fact of the Case:
A minor, through his next friend, filed a suit for partition of joint family properties. A preliminary decree was passed declaring that the minor and his two brothers were each entitled to one-third share in the joint family properties. Subsequently, the minor attained majority and filed an application under O. XXXII, Rule 12 C.P.C. praying that he might be permitted to withdraw the suit, and the court dismissed the suit as not pressed. Thirteen years later, the minor's mother filed an application for restoring the partition suit to file and to appoint a Commissioner and divide the properties by metes and bounds as per the preliminary decree. The court dismissed the application on the ground that the dismissal of the suit on the minor's petition was binding on the mother, who was a party to it, and she could not treat it as a nullity. The mother then filed a suit for general partition, claiming a two-third share in the family properties as the heir of her two sons.
Finding of the Court:
The court held that the filing of the partition suit by the minor's next friend had the effect of bringing about a severance in status among all the coparceners of the joint family, that it was approved by the court, as beneficial to the minor, and the result was crystallised in the preliminary decree which decreed that each coparcener would take one-third share in the family properties. The court further held that the minor's application under O. XXXII, Rule 12 C.P.C. for abandoning the further proceedings in the partition suit after the passing of the preliminary decree did not undo the division in status that had already taken place, by the communication of his intention through a guardian to the other coparceners, followed by the approval by the court when the preliminary decree was passed. The court also held that the decision of the court in the mother's application for restoring the partition suit to file was not res judicata on the question of reunion, as the court had not considered the plea of reunion raised by the defendant in that application.
Issues: 1. Whether the filing of a partition suit by a minor's next friend effects a severance in status among the coparceners of the joint family? 2. Whether the dismissal of a partition suit on the minor's attaining majority undoes the severance in status brought about by the filing of the suit? 3. Whether the decision of a court in an application for restoring a partition suit to file is res judicata on the question of reunion?
Ratio Decidendi: 1. The filing of a partition suit by a minor's next friend effects a severance in status among the coparceners of the joint family, if the court finds that the suit is for the benefit of the minor. 2. The dismissal of a partition suit on the minor's attaining majority does not undo the severance in status brought about by the filing of the suit, as the severance in status is brought about by the communication of an intention to divide, which is independent of the suit. 3. The decision of a court in an application for restoring a partition suit to file is not res judicata on the question of reunion, if the court has not considered the plea of reunion raised by the defendant in that application.
Final Decision: The appeal was dismissed with costs.
The learned Subordinate Judge passed a preliminary decree for partition declaring that the minor plaintiff and his two brothers were each entitled to one-third share in the joint family properties. It was also declared in the preliminary decree that certain properties shown in Sch. I to the plaint in that suit and which were situated in Kodaganallur would be allotted to the mother Kanthimathi Ammal in lieu of her maintenance and the maintenance of a minor daughter until the time of the final decree. The quantum of maintenance payable to the mother and the daughter and the marriage and jewel expenses for the daughter were all reserved, to be considered at the time of the passing of the final decree. Subsequent to the passing of the preliminary decree minor Nelliappa Pillai came of age and his next friend was discharged in due course. Then, Nelliappa Pillai filed an application I. A. 110 of 1944 on 7-7-1944 under O. XXXII, Rule 12 C.P.C. praying that he might be permitted to withdraw the suit, and the learned Subordinate Judge of Tirunelveli, dismissed the suit O. S. 35 of 1941, as not pressed. This happened in 1944.
2. Thirteen years later, Kanthimathi Ammal filed I. A. 278 of 1957 before the learned Subordinate Judge, Tirunelveli under O. XXVI, Rules 13 and 14 C.P.C., for restoring the partition suit to file and to appoint a Commissioner and divide the properties by metes and bounds as per the preliminary decree. She alleged that Nelliappa Pillai had died in 1945, unmarried, that Ambalavana Pillai, the second son, had not been heard of for the past ten years and that as a result, she was entitled to the two-third share of Nelliappa and Ambalavana, in the family properties, as the heir of her two sons. The third son Velayutha strenuously contested the application. He pleaded that the preliminary decree was not carried into effect and there was a re-union as the plaintiff had abandoned the suit and lived as a member of the joint family. He also pleaded that the order of the court passed on 6-7-1944, dismissing the suit on the application of Nellayyappa on attaining majority was binding on all the parties including Kanthimathi Ammal and she was precluded from filing the application. The learned Subordinate Judge in an elaborate order canvassed several authorities, in regard to the effect of an application of a minor on attainment of age praying for the dismissal of the suit filed under O. XXXII, Rule 12 C.P.C. But the court relied for its decision, however, on the fact that the dismissal of the suit on the minor's petition was binding on the mother, who was a party to it, and she could not treat it as a nullity. The court also commented on the long delay of 13 years in filing the petition, and therefore, held that the delay would also be a ground for rejecting the application.
3. Thereafter, Velayudham Pillai sold the properties mentioned in the schedule to the plaint in O. S. 40 of 1960, one of the items of the joint family properties, by a registered sale deed on 25-7-1957
