A minor coparcener's right to avoid a partition made by the father during the coparcener's minority is a personal right and cannot be exercised during minority by the guardian.

Headnote:
PARTITION - MITAKSHARA LAW - FATHER'S RIGHT TO PARTITION - MINOR COPARCENER'S RIGHT TO AVOID PARTITION - PERSONAL RIGHT - CANNOT BE EXERCISED DURING MINORITY BY GUARDIAN - AWARD NOT MADE RULE OF COURT - VALID PARTITION - REGISTRATION SUFFICIENT - SUIT FOR PARTITION - MAINTAINABILITY - MINOR PLAINTIFF ATTAINING MAJORITY AFTER SUIT - NO AMENDMENT OF PLAINT - SUIT NOT MAINTAINABLE.
Fact of the Case:

Plaintiffs, including a minor represented by his mother, filed a suit for partition of ancestral properties, alleging that the previous partition under an Award was partial, unjust, and not equally divided. The defendant contested, asserting the validity of the partition under the Award and challenging the maintainability of the suit.
Finding of the Court:

The court held that the father had the right to partition during the lifetime of the coparceners, including minors, and that the partition under the Award was valid and binding on the parties. The court further held that the minor coparcener's right to avoid a partition made by the father during the coparcener's minority is a personal right and cannot be exercised during minority by the guardian.
Issues: 1. Whether a minor coparcener can avoid a partition made by the father during the coparcener's minority through a guardian? 2. Whether an Award not made a rule of the court can effect a valid partition?
Ratio Decidendi: 1. Under the Mitakshara law, the father has the right to partition the ancestral property among the coparceners, including minors, without their consent. The partition made by the father is valid and binding on the parties, subject to the right of the minor coparceners to avoid the partition on attaining majority if it is unfair or prejudicial to their interests. 2. An Award duly registered creates rights in the property, but those rights cannot be enforced until the Award is made a decree of the Court. However, as between the parties and their privies, an Award is entitled to the same respect as a judgment of a court of last resort. Therefore, an Award not made a rule of the court can still effect a valid partition.
Final Decision: The court dismissed the appeal, holding that the plaintiff's suit was not maintainable as the minor coparcener's right to avoid the partition was a personal right that could not be exercised during minority by the guardian.

Judgement Key Points

Certainly. Based on the legal document provided, here are the key points summarized:

A minor coparcener's right to avoid a partition made by the father during the minority is a personal right that cannot be exercised during minority through a guardian [judgement_subject].
Under the Mitakshara law, the father has the authority to partition ancestral property among coparceners, including minors, during his lifetime. Such a partition is valid and binding, but minor coparceners retain the right to challenge or avoid the partition upon attaining majority if it is unfair or prejudicial [judgement_subject].
An Award related to partition, if duly registered, creates enforceable rights in the property. However, unless it is made a court decree, it cannot be directly enforced. Despite this, an Award not made a rule of the court can still effect a valid partition, as it holds respect similar to a judgment of a court of last resort between the parties and their privies [judgement_subject].
A suit initiated by a minor to challenge a partition made during his minority is not maintainable if the minor has not attained majority at the time of the suit, because the right to avoid such a partition is personal and cannot be exercised by a guardian during minority [judgement_subject].
The court held that the partition under the Award was valid and binding, and the suit filed to challenge it was not maintainable due to the minor's inability to exercise the right during minority through a guardian [fact_of_the_case][finding_of_the_court].
The appeal was dismissed, affirming that the suit was not maintainable because the minor's right to avoid the partition could not be exercised during minority by the guardian, and the partition was legally valid [final_decision].
The court also clarified that a change in the plaintiff's legal status (attaining majority) after the suit's initiation does not automatically render the suit maintainable or allow the plaintiff to challenge the partition without proper amendments and evidence [judgement_subject].
Both parties were directed to bear their own costs, considering the circumstances of the case [final_decision].

These points encapsulate the legal principles, facts, and the court's reasoning as reflected in the document.

R. N. MISRA, J.

( 1 ) THE plaintiffs are in appeal against the judgment and decree of the learned subordinate Judge of Jeypore dismissing their suit for partition.

( 2 ) ONE Appudu Panda who died in August 1959 had married two wives. He begot a son Baidvanath through his first wife Kalandi. Baidvanath died in 1961 leaving behind his widow (defendant no- 4) and four issues (the defendants 2. 3. 5 and 6 ). The second wife Sunamani is the plaintiff No. 2. Through her Appudu had 6 issues who are the defendant No. 1. the plaintiff No. 1. and the defendants 7. 8, 9 and 10 respectively. The plaintiff No. 1 is a minor and his mother the plaintiff No. 2 represents him. There is no dispute that all the properties were ancestral, that is, of Appudu. During Appudu's life time and the minority of the plaintiff No. 1 and the defendant No. 1 the family properties were partitioned under an Award dated 31-7-55.-It is alleged that this Award is partial and uniust and did not equally divide the property. It is also contended that as the Award had not been made a rule of the court under the Arbitration Act it has no binding force. The plaintiffs have tried to avoid the previous partition evidenced by the Award in the aforesaid manner and have claimed a fresh partition.

( 3 ) THE defendant No. 2 alone contested. He contended that there had been a complete partition under the Award and as such the present suit was not maintainable. Other allegations were made with which we are not directlv concerned.

( 4 ) SEVERAL issues were framed by the learned Trial Judge. He found that the genealogy as given by the plaintiffs was correct; there had already been a partition under the Award dated 31-7-55 and the same was valid in law and binding on the parties. He further found that on the plea that the division was not equal and accordingly should not be sustained and a fresh partition should be granted the suit cannot be maintained by a minor through the guardian particularly in a case where the partition had been effected by the father during his life time. He accordingly dismissed the suit

( 5 ) THE short question that arises for determination in this appeal is about the maintainability of the suit. Mr. Ram-das does not dispute that the partition under ext. 1 was during the lifetime of the father, and he was a party to the proceeding. It is. therefore, concluded that the partition under Ext. 1 was at the instance of the father during his lifetime. Admittedly the plaintiff No. 1 who was born sometime in 1948 was a minor at the tune of partition. On the date of the suit he was also a minor. The learned Trial Judge has come to the conclusion that the father under the Mitakshara law had full right to bring about a partition and even minor coparceners were bound by the partition and upon attaining majority it will be open to the minor coparceners to dispute the partition and ask for avoidance in case of inequality of shares. That right of a minor coparcener to avoid a partition made by the father during the coparcener's minority is a personal one and cannot be exercised during his minority by the guardian. The trial court relied upon the division Bench decision in AIR 1951 Mad 506 Mewapna v. Commr. of Income tax. Madras. It was indicated by their Lordships of the Madras High Court in the said case: "under the Mitakshara law the father has the undoubted right and privilege of effecting a partition between himself and his sons, whether they are majors or minors, without their consent. He may divide the properties physically or may only bring about a division in status. This division may be between himself and his sons* or even between the sons inter se. The partition so made, however, must be fair and equal- If the partition is unequal and unfair it is open to the sons if they are majors, to repudiate the partition: but if they are minors, it is open to them to avoid that partition by appropriate proceedings after they attain majority. The partition, therefore,

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1971 Supreme(Ori) 52

HIGH COURT OF ORISSAR. N. Misra, J.GADADHAR PANDA - AppellantVersusGANGADHAR PANDA AND ORS. - RespondentFirst Appeal 55 Of 1965Decided On : April 28, 1971

A minor coparcener's right to avoid a partition made by the father during the coparcener's minority is a personal right and cannot be exercised during minority by the guardian.

Cases Referred (5)

HIGH COURT OF ORISSA
R. N. Misra, J.
GADADHAR PANDA - Appellant
Versus
GANGADHAR PANDA AND ORS. - Respondent
First Appeal 55 Of 1965
Decided On : April 28, 1971