The possession of a Receiver would be on behalf of the rightful owner if the title is established, and a partition between minors, represented by guardians, could be valid if not unfair or prejudicial to the minors' interests.

Krishnan, J.

1. The plaintiffs sue for a declaration that; they are entitled to the properties in the plaint A and B schedules and the value of the schedule properties. There was a dispute likely to lead to a breach of the peace, with reference to these properties, between the plaintiffs and the defendants and the matter was taken up by the Magistrate under Section 145 of the Code of Criminal Procedure. The Magistrates order, which was read to me, shows that, finding himself unable to say which party was in possession of the properties, he directed the properties to be attached under Section 146, Criminal Procedure Code, and placed them in the possession of a Receiver, pending the decision of the Civil Court, in favour of one or other of the parties. It is as a result of that order that this suit has been brought by the plaintiffs for an adjudication, as stated above, that they are the persons entitled to the properties.

2. It is objected in Second Appeal in limine that the suit as brought; is not maintainable, that plaintiffs ought to have sued for possession of the properties as well, and that they are not entitled to ask for a mere declaration, under Section 42 of the Specific Relief Act. On the authorities I do not think that this contention can be supported.

3. The Magistrate, by his order, has placed the properties in the possession of the Receiver and that Receiver must be taken to be in possession, on behalf of persons properly entitled to the properties.

4. If the plaintiffs can establish their title, then the possession of the Receiver would be on their behalf and they need not seek any further relief for recovering possession from the Receiver. This has been so laid down in the authority cited by the learned Subordinate Judge : The Administrator-General of Bengal v. Bhagwan Chandra Ray Chaudry (1911) 15 C.W.N. 758. This position is also supported by the ruling in Rajah of Venkatagiri v. Isakapalli Subbiah (1903) 26 Mad. 410 where the possession of a receiver was held to be the possession of the rightful party. Again, in Vedanayaya Mudaliar v. Vedammal (1904) 27 Mad. 59, it was ruled, in circumstances similar to this that, where a receiver is in possession, it was not necessary to sue for consequential relief, by way of recovery of possession, but that it was sufficient to sue for a mare declaration.

5. The learned Vakil for the appellant, has tried to raise a special point in this case, on the ground that at the time when the Magistrate ordered the attachment of the properties, the properties were not in the possession of the plaintiffs, but apparently lying fallow and uncultivated, the possession of the properties being in dispute. That can make no difference at all on the point of law.

6. As the receiver was appointed by the Magistrate to take possession of the properties, ha must therefore be taken to be in possession, and if his possession is that of the rightful owner, then the plaintiffs have only to establish that they are the rightful owners and no further reliefs need be claimed by them. The first objection therefore fails and must be rejected.

7. One point taken on the merits is that, in this case, the alleged partition between the deceased brother o the plaintiffs and defendants 1 to 3 was not a valid partition at all, because at the time of the partition, all the co-parceners were minors. The alleged partition is a partition, where the brothers of these various minors ware acting as their guardians. As the learned District Judge says, there is no rule that minors could not divide their properties among themselves, when they are properly represented by guardians in the transaction. No case has been brought to my notice, where all the co-parceners were minors : but it has been laid down that the fact that soma of the co-parceners are minors will not prevent a partition from being valid, if no advantage is taken of their minority to their loss : see the Privy Council decision in Balkishen Dan v. Ram Narain