A suit for partition of joint family property instituted by a minor does not abate on the death of the minor during the pendency of the suit and may be continued by his legal representative if the court holds that the institution of the suit was for the benefit of the minor.

Judgement

SHAH, J. : This appeal with certificate granted by the High Court of Andhra Pradesh is against the decree in appeal No. 64 of 1951 modifying the decree in Suit No. 111 of 1949 of the file of the Subordinate Judge, Cuddapah.

2. The following genealogy explains the relationship between the parties to the appeal:

Butchi Tirupati was one of the six sons of Bala Konda. Pulla Reddi and Ladshmama -son and widow respectively of Butchi Tirupati-instituted Suit No. 111 of 1949 in the Court of the Subordinate Judge, Cuddapah for partition and separate possession of their share in the property of he joint family to which they belonged and a fourth share in certain property devised under the will executed by Venkata Konda Reddy, on July 1, 1910. Pulla Reddy was at the date of the suit a minor and his mother Lakshmama acted as his next friend. Pulla Reddy died during the pendency of the suit and Lakshmama was shown in the record as his legal representative for the suit. The Trial Court held that the property devised under the will of Venkata Konda Reddy in favour of Pedda Venkata (D-1), Chinna Venkata (D- 2), Bala Venkata (D-5) and Butchi Tirupati had on account of blending with the joint family estate been impressed with the character of joint family property, and on that account Lakshmama was entitled to a fifth share in all the property in suit, the High Court in appeal awarded to Lakshmama a fourth share in the property devised under the will of Venkata Konda Reddy and confirmed the decree of the Trial Court awarding a fifth share in the property of the joint family. Defendant-2 Chinna Venkata, Defendant-3 Raju Konda and Defendant-4 Venkata Konda have appealed to his Court, with certificate under Art. 133(1) (a) granted by the High Court.

3. Two questions survive in this appeal :

(1) Whether Suit No. 111 of 1949 for partition of loins family property could, after the death of the minor Pulla Reddy, be continued by his mother Lakshmama. That question necessitates an investigation whether the suit was instituted for the benefit of the minor Pulla Reddy, because it is settled law that the Court will not grant a decree for partition of joint family property in a suit instituted by a Hindu minor through his next friend, unless the Court is satisfied that the partition is likely to be for the benefit of the minor by advancing or protecting his interest; and

(2) Whether the property devised under the will of Venkata Konda Reddy in favour of defendants 1,2,5 and Butchi Tirupati had, because of blending with their joint family estate, been impressed with the character of joint family property.

We will set out such facts as have a bearing on these questions.

4. It is common ground that at the date of his death in 1947 Butchi Tirupati was a member of a Hindu coparcenary consisting of himself, his five brothers and Pulla Reddy. After the death of Butchi Tirupati defendants 1,2,3 and 4 purported to partition the estate in their possession, and executed a deed of partition (Ext. A-3) on August 12, 1948, in which the minor Pulla Reddy was represented by the fourth defendant. By this deed certain properties were allotted to the share of the first defendant Pedda Venkata, but the deed was silent about the dissolution of the joint family qua other members of the family, and about allotment of shares to those members Thereafter Lakshmama instituted the suit out of which this appeal has arisen on behalf of herself and as next friend of her minor son, for a decree for partition of their share in the estate of the joint family and the property devised under the will of Venkata Konda Reddy, alleging that defendants 2, 3 and 4 declined to give to the minor Pulla Reddy his share in the estate and drove her and the minor away from the family house, and that with a view to prejudice the right of the minor in the property they had brought into existence a deed of partition which did not disclose the entire estate of the joint family. The first defendant substant