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Gadadhar Panda and anr. Vs. Gangadhar Panda and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 55 of 1965
Judge
Reported inAIR1972Ori24
ActsHindu Law; Arbitration Act, 1940 - Sections 14; Code of Civil Procedure (CPC) , 1908 - Order 32, Rule 12
AppellantGadadhar Panda and anr.
RespondentGangadhar Panda and ors.
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateH.G. Panda and ;R.S. Parida, Advs.
DispositionAppeal dismissed
Cases Referred(Satish Kumar v. Surinder Kumar). Their Lordships
Excerpt:
.....in the sense that, if the condition of the partition being fair and equal is not satisfied, the power ceases to have operative force. the rule laid down in the madras decision referred to above seems to be upon good authority. it is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor's benefit. an exceptional event which happened after the institution of the suit may be takeninto account, such as......a partition, and (as has been said) if an agreement for partition could not be made binding on minors a partition could hardly ever take place. no doubt, if the partition were unfair or prejudicial to the minor's interests he might, on attaining his majority, by proper proceedings set it aside so far as regards himself.' the same position was restated by their lordships of the supreme court in air 1951 sc 280 (bishundeo v. seogeni rai). their lordships have stated. 'it is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor's benefit. it is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. even without a suit, there can be a partition between members of a.....
Judgment:

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, will be good until it is set aside. It is not void and is not without effect. This right of avoidance based on the inequality of the shares is personal right of the minors and cannot be exercised by others. The power is nota conditional power in the sense that, if the condition of the partition being fair and equal is not satisfied, the power ceases to have operative force.'

If this is the correct statement of the legal position the present suit when instituted was certainly not maintainable. Mr. Ramdas for the appellants seriously disputes the correctness of the legal position and seeks to place reliance upon certain observations of their Lordships of the Supreme Court in AIR 1958 SC 1042 (Pedasubhawa v. Akkamma). This decision had been cited before the learnedTrial Judge and he did not find any support for the plaintiffs. I also do not find any support for the plaintiffs from this decision. The question that arose for the determination of the Court in this reported decision is substantially different from what is in issue before us. The rule laid down in the Madras decision referred to above seems to be upon good authority. In (1903) 30 Ind App 139 (PC) (Balkishan Das v. Ram Narain Sahu) Lord Davey speaking for the judicial committee hadstated.

'The question upon which their Lordships have felt most difficulty is whether the document can be considered as binding the coparceners, who were minors at the date of it. But they think that in these proceedings they must treat it as binding upon them. There is no doubt that a valid agreement for partition may be made during the minority of one or more of the coparceners. That seems to follow from the admitted right of one coparcener to claim a partition, and (as has been said) if an agreement for partition could not be made binding on minors a partition could hardly ever take place. No doubt, if the partition were unfair or prejudicial to the minor's interests he might, on attaining his majority, by proper proceedings set it aside so far as regards himself.'

The same position was restated by their Lordships of the Supreme Court in AIR 1951 SC 280 (Bishundeo v. Seogeni Rai). Their Lordships have stated.

'It is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor's benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions (as in our case) where a minor can never be able to consent to the same in law if a minor on attaining majority is able to show that the division was unfair and unjust, the court will certainly set it aside.'

The Madras decision of 1951 was expressly approved by a later Division Bench of the Madras High Court in AIR 1966 Mad 266 (Venkatasubramania v. Easwara Iyer). At p. 294 of the Report it was stated.

'As the power of a father to effect division is subject to the distribution being equal, if the distribution effected by the father is unequal or there has been fraud in the division and is vitiated by undue favouritism, the partition effected would be reopened and adjusted. But the partition is not wholly void.'

After making these observations their Lordships quoted the earlier Madras decision with full approval. In AIR 1957 Hyd 29 (Chanam v. Naravan) a Division Bench of that Court also adopted a similar view. Mr. Ramdas has not been able to show any decision contrary to the view expressed by these authorities. I would accordingly hold that the learned Trial Judge was right when he said that the minor coparcener's right to dispute a partition effected by his father during his lifetime is a personal one and can only be exercised directly by him when he is legally competent to exercise the right all by himself and not during his minority when he acts through a guardian.

6. The next contention that was raised by Mr. Ramdas was that the Award did not effect a valid partition as it had never been made the rule of the court. This contention does not deserve any consideration as a similar plea has been directly negatived by their Lordships of the Supreme Court in AIR 1970 SC 833 (Satish Kumar v. Surinder Kumar). Their Lordships stated.

'The award does create rights in that property but those rights cannot be enforced until the award is made a decree of the Court. It is one thing to say that a right is not created, it is an entirely different thing to say that the right created cannot be enforced without further steps. For the purpose of section 17(1)(b) of the Registration Act. all that we have to see is whether the award in Question purports or operates to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immoveable property. If it does, it is compulsorily registrable.'

and where such an award has been duly registered, it certainly, brings about a valid partition and it is not necessary to make it the rule of the court. Their Lordships again stated.

'As between the parties and their privies, an award is entitled to that respect which is due to judgment of a court of last resort.'

7. Mr. Ramdas finally contended that though the plaintiff was a minor at the date of the suit he has now attained majority. As he desires to challenge the partition on the grounds indicated in the plaint in the present context the Question of maintainability loses importance. It is the settled practice that a suit is to be tried in all its stages on the cause of action as it existed at the date of its commencement. An exceptional event which happened after the institution of the suit may be takeninto account, such as. chanee of law or change of circumstances which render relief to the plaintiff impossible or bring about an event which would shorten the litigation or do complete justice between the parties. In the present case it would be difficult to accept Mr. Ramdas' contention. The plaint does not indicate the option of the plaintiff as an adult. It would require substantial amendment. The plaintiff will have to lead evidence in the suit and cannot rely upon the evidence of the guardian. In the circumstances it would not be proper to accept the contention of Mr. Ramdas and give relief to the plaintiff to carry on the suit.

8. The net result of the aforesaid discussion is that the plaintiff's suit was not maintainable and the trial court has taken the correct view in law. The appeal fails and is dismissed. In the circumstances of this case, however. I think it appropriate to direct both the parties to bear their own costs throughout.


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