A minor coparcener is entitled to partition of his share in the joint family property, even when his father is alive and the natural guardian, if the partition is in the minor's best interests.

Plaintiffs are the appellants in this second appeal. They filed a suit for partition as well as for recovery of maintenance. Plaintiffs are mother and son. The son being a minor, he is represented in the suit by his mother as his next friend. First defendant (first respondent herein) is the father of the minor.

2. The point for consideration is limited to the question whether the minor son is entitled to partition.

3. Both the Courts below have held that since natural guardian, father, is alive, she cannot compel a partition between father and son, but also held that the first defendant is liable to maintain them and that the plaintiffs are entitled to separate maintenance on the allegations put forth by them against the first respondent (first defendant). An amount of Rs.300 per mensem was awarded as separate maintenance for them.

4. The Courts below have also held that the minor plaintiff is entitled to one-fourth share in the properties and it was also found by the Courts below that all the properties are joint family properties. The dismissal of the suit was only on the ground that mother, not being a natural guardian, is not entitled to file a suit for partition on behalf of the minor son, especially when the father was the manager and guardian of the minor.

5. The following substantial questions of law have been framed in this second appeal at the time of its admission;-

“1. Whether Section 6 of the Hindu Minority and Guardianship Act (Act 32 of 1956) excluded undivided interest in the joint family property and hence the father is not the natural guardian in respect of such property?

and

2. Whether the mother can represent her minor son as guardian when father is alive, with regard to undivided interest in joint family property for partition of the same in view of Section 6 of the Hindu Minority and Guardianship Act, 1956?”

6. According to me, the Courts below have misconstrued the provisions of Order 32, C.P.C. and also the provisions of Sections 6 to 8 of the Hindu Minority and Guardianship Act, 1956. Having held that the properties are joint family properties and the family is still united, the Courts below should not have invoked the provisions of the Hindu Minority and Guardianship Act, in these proceedings.

7. In these proceedings, we are governed only by the first principles of Hindu Law as well as the right of a coparacener to claim partition.

8. In Mayne’s Hindu Law & Usage - 12th Edition - 1991, at page 743, it is said thus:-

“On the question whether the institution of a suit for partition by the next friend of a minor effects a severance in interest so as to make the minor coparacener divided in status from the other members, there is a conflict of decisions. In Rangasayi v. Nagarathnamma, AIR 1933 Mad. 890 a Full Bench of the Madras High Court has held that in all such cases, the severance is effected from the date of suit, conditional on the court being able to find that the suit, when filed was for the benefit of the minor; and if a minor dies pending the suit, his legal representative can bring himself on record and continue the suit for partition, subject to the decision of the court on the question whether the suit, when instituted was for the benefit of the minor”.

9. In Kakumanu Pedasubhayaya and another v. Kakumanu Akkamma and another, AIR. 1958 S.C.1042 their Lordships approved the decision of this Court in Rangasayi v. Nagarathnamma, A.I.R. 1933 Madras.890 (FB) and told thus:-

“The theory is that the Sovereign as parens patriae has the power, and is indeed under a duty to protect the interests of minors, and that function has develoved on the Courts. In the discharge of that function, therefore, they have the power to control all proceedings before them wherein minors are concerned. They can appoint their own officers to protect their interests, and stay proceedings if they consider that they are vexatious. It is in the exercise of this jurisdiction that Courts require to