JUDGMENT

Mackney, J - About October 1926 one Maung Salay died leaving a widow, Ma Chit Mai, and two minor children, Maung Kyi and Ma Yon. The widow remarried about a year later. Shortly after the remarriage it is alleged that the relatives of the minors requested Ma Chit Mai to make a partition of her husband's estate with the minors, for their protection and Ma Chit Mai consented to a partition and some 45 acres of land were allotted to the two children. Their names were entered in the revenue records as being owners of the lands. Thereafter the two children continued to live with their mother in the new household, and the mother managed these lands as if they were her own property. In fact, she admits that only a short time ago she effected a mortgage of about 9 acres of this property. As years went by Ma Chit Mai met with misfortunes and fell into debt. The land which she held in her own name has now passed into the hands of the P.R.V.S.P. Chettyar firm at an auction sale held in Execution Case No. 44 of 1932 of the Sub-divisional Court, Zigon, in execution of a decree held by that firm against Ma Chit Mai. Now the same firm, in execution of another decree against Ma Chit Mai, has attached the land which stands in the name of the two minors. The two minors by their next friend Mg Paw, were unsuccessful in obtaining a removal of the attachment. Mg Paw then filed Civil Regular Suit No. 29 of 1933 in the Sub-divisional Court of Zigon and prayed for a declaration that the suit properties which have been attached by P.R.V.S.P. firm belonged absolutely to the two minor children. The Sub-divisional Court of Zigon held that the partition was not proved, but that the children were clearly entitled to a half share in the property, as it was admitted that no part of this property was acquired by Ma Chit Mai after her remarriage. Accordingly the Court granted a decree declaring that the-two minor children were entitled to a half share in the suit property and that their interests could not be attached and sold by the first defendant firm in execution of its decree against Ma Chit Mai. Against this decree of the Sub-divisional Court Mg. Paw, as next friend of the minors, appealed to the District Court in Civil Regular Appeal No. 3 of 1934, The District Court differing from the Sub-divisional Court, held that there was a partition of the' estate of Maung Gale as alleged and that the lands in suit had been allotted as the share of the appellants. He therefore altered the decree of the lower Court by declaring that the appellants were entitled to all the lands in suit. Against this decree the P.R.V.S.P. Chettyar Firm has now filed a second appeal, the respondents being the two minors by their next friend Mg Paw, and Ma Chit Mai.

2. As regards the question whether there was or was not an intention to effect the partition I think that in view of the fact that mutation of names was effected in, the revenue registers and that the relatives have come forward to explain how this took place, it may be accepted that there was no intention to allot some of the estate to the two minor children. The question however as it will appear, is hardly relevant, for I consider that it must be held that in law no partition could have been effected because the two children were minors and they had no guardian appointed in accordance with law. In Civil First Appeal No. 151 of 1932 of this Court, a somewhat similar case, it was observed:

A minor is not a person within the meaning of Section 11, Contract Act, and where a minor purports to make a contract the alleged contract is void. Whether the alleged partition is regarded as an agreement entered into between the children themselves and their father or as an agreement entered into between Ma Nyein E on behalf of the children and respondent 3 it must necessarily be void.

3. A partition of property in the circumstances of the present case implied an agreement between the parties concerned. It is in effect a contract