1. In this suit the 1st defendant is the father of the 1st plaintiff and the 2nd defendant by different mothers. Plaintiffs 2 and 3 are the minor sons of the 1st plaintiff and defendants 3 and 30 are the minor sons of the 2nd defendant. The suit was instituted by the 1st plaintiff on behalf of himself and his minor sons for a partition. It is alleged that the 1st plaintiff wished to effect a partition in 1915 or 1916 but no partition appears to have been effected before this suit was filed in 1920 and it has not been shown that there was any separation in status. During the pendency of this suit, the 1st defendant died on 26th October, 1923, and in June, 1924, the 1st plaintiff died. On the,1st plaintiff's death, the 2nd plaintiff who had attained majority, elected to continue the suit on behalf of himself and his minor brother the 3rd plaintiff. At the end of the trial the 3rd plaintiff's mother applied to be made guardian of her minor son the 3rd plaintiff and stated that the partition was not in the interest of the 3rd plaintiff and that she did not want a partition so far as he was concerned. The 3rd plaintiff was accordingly transposed as the 31st defendant.
2. The Subordinate Judge has held that it was not open to the 3rd plaintiff to withdraw from the suit as he was bound by the act of his father and has accordingly decreed the partition and allotted one-third share to the 2nd plaintiff for himself and his minor brother the 31st defendant. The latter now appeals, and the only question that arises for consideration is whether the minor 3rd plaintiff was separated in status from the defendants by reason of the father's unequivocal declaration of an intention to be divided in status. It is contended for the appellant that it is not to the 3rd plaintiff's interest to be separated from the family but the respondents contend that this question cannot now be considered because the 3rd plaintiff is bound by the father's declaration and became separated from the date of the filing of the plaint.
3. It is well settled that in a litigation in which a minor is concerned, the Court is bound to look after the interests of such a minor and this has been recognised so far back as 1866 in Kamakshi Ammal v. Chidambara Reddy (1866) 3 M.H.C.R. 94 which was followed in Chelimi Chetty v. Subbamma I.L.R.(1917) M. 442: 1917 34 M.L.J. 213. Palani Goundan v. Kasi Goundan (1919) 50 I.C. 552 is to the same effect. It was also held in Doraswami Pillai v. Thungasami Pillai (1903) I.L.R. 27 M. 377: 1903 14 M.L.J. 159 that a minor's interest must be protected by the Court. In Ganesha Rom v. Tuljaram Row (1913) L.R. 40 L.A. 132: I.L.R. 36 M. 295: 1913 25 M.L.J. 150 (P.C.)it was held that a compromise entered into by a father on behalf of his minor son without the leave of the Court was not binding on a minor. It is therefore clear that it is the duty/of the Court to protect the interests of a minor party. The cases referred to were cases in which the minor was the sole plaintiff, but this cannot affect the principle. Ordinarily when a father sues on behalf of his minor son it may be presumed that he is acting in the interests of that son unless there is anything to show the contrary. If, however, it does appear to the Court that a father is not acting in the best interests of his son, on the principle set forth above the Court is bound to protect that son's interest even against the acts of his father. I cannot therefore accept the contention of Mr. Ratna-chandra Aiyar for respondents that the Court cannot interfere to protect a minor from the act of his father. Taking that view we have now to consider whether the filing of the partition suit by the father did actually effect a separation not only of himself but also of his minor sons from the rest of the family, or whether it is open to the Court to refuse partition so far as the minor is concerned.
4. The first point to be considered is whether the filing of this plaint did constitute a final division in the family. When a declaration has been made of an intention to separate by the filing of a plaint for partition and such plaint has resulted in a partition decree, undoubtedly the date of separation would be the date of the filing of the plaint. But the mere filing of the plaint does not necessarily effect a final severance in status for it has been held that a plaintiff may withdraw his declaration of intention and that then no severance is effected. Vemi Reddy v. Nallappa Reddy (1920) 11 L.W. 611 and Krishnaswami Naidu v. Perumal (1924) 20 L.W. 540. This has been affirmed by the Privy Council in Palani Ammal v. Muthuvenkatachala Moniagar . There is a remark in the judgment in this latter case to the effect that the withdrawal must be before trial but that that means before a final decree is made clear by reference to Palani Animal v. Mutkuvenkaiachala Moniagar : AIR1918Mad242 the same case before this Court from the judgment in which it appears that the withdrawal took place during the pendency of an appeal. In this view it would be difficult to hold that a declaration of intention by the father, which is subject to revocation, must necessarily effect a separation of his sons from that date. There is authority for holding that when a partition has been actually effected either by a decree, or by agreement between the parties, that partition effected by the father is binding on his sons and can only be questioned on some such ground as fraud or collusion. Ramdas v. Chabildas : (1910)12BOMLR621 , Alur Lakshmi Narasimha Sastrulu v. Venkata Narasamma (1918) 52 I.C. 614 and Umed Babar v. Kushalbhai (1909) 2 I.C. 426. But that does not show that if the intention to separate has not been carried into effect, the sons will be equally bound. In the present suit, before the intention could be carried into effect by the passing of a decree, the father died. It would therefore appear that on the date of his death the minor sons had not been irrevocably divided from the rest of the family.
5. In the circumstances of the present case the inference of non-division is all the stronger because when the suit was filed the father of the whole family, vis., the 1st defendant, was alive and was the head of the family. When, therefore, the 1st plaintiff asked for a partition, the presumption that he would bind his minor sons by his actions is not so strong as if he were filing a suit against his brothers as head of his own branch. The 3rd plaintiff as grandson could himself have maintained a separate suit for partition, as also any one of the members of the 1st defendant's family. While therefore the filing of the plaint by the 1st plaintiff may be deemed to have effected his separation from the family because he did not revoke his declaration of intention, yet it does not necessarily effect a division between the 3rd plaintiff and the other members. In Balabux v. Rukmabai and Musammat Jatti v. Banwari Lal the Judicial Committee of the Privy Council has laid down that when one member of the family becomes separate there is no presumption that the remaining members remain united, and further that when there has been a separation between the members, there is no presumption that there is a separation between one of the members and his descendants. These however are only presumptions, and such presumptions may be rebutted by circumstantial evidence or otherwise, as is evident from the decision of the Privy Council in Palani Annual v. Muthuvenkatachala Moniagar where it was held that a separation of one member did not necessarily create a division between all the members, and it was observed that the decree has to be looked to to show whether the separation was only separation of the plaintiff from his co-parceners or was a separation of all the members from each other. It does not therefore necessarily follow that when the 3rd plaintiff's father effected a separation between himself and his family he effected a separation between his sons and their grandfather and uncle and to decide this point one must consider the circumstances of this case.
6. The observation of the Privy Council in Ramalinga Annavi v. Narayana Annavi (1922) L.R. 49 LA. 168: I.L.R. M. 489: 1922 43 M.L.J. 428 (P.C.) that the separation of the father effected a separation of his branch must be read in connection with the facts of the case and of the fact that their Lordships were merely considering the question of the date of separation and not of the factum of separation of the junior members. It seems to me on a consideration of all these authorities that the filing of the plaint by the 1st plaintiff did not necessarily effect a separation of the 3rd plaintiff as well. Before the partition was completed by a decree, representation was made to the Court that it would not be in the interests of the 3rd plaintiff to become separated from the other members of the family and in the interests of the minor 3rd plaintiff the Court is bound to take that plea into consideration. So far as the 3rd plaintiff's pecuniary interest is concerned it is obvious that a separation effected before the death of his grandfather would be less beneficial to him than separation after that date; for in the latter case he would be entitled to a larger share. It is pointed out that when the 3rd plaintiff declared his intention not to become separated the other members of the family, viz., 2nd defendant and his sons replied that they did not wish to remain united with the 3rd plaintiff. Until that date, however there had been no such expression of intention by the defendants. In fact in the written statement the defendants pleaded that the plaintiffs had not been excluded from a share in the family property. The 3rd plaintiff being a member of the joint family must remain so until he becomes separated. If he did not become separated by the filing of the plaint, he remains an undivided member of the family until a separation is effected. There has been no such separation until the declaration by the 2nd defendant at the conclusion of this suit, assuming that that was an unequivocal declaration of intention. That being so, the share to which the 3rd plaintiff was entitled on that date is a larger share than that which has been allotted to the 2nd plaintiff on his behalf and the order of the Subordinate Judge decreeing only one-third share to the 2nd plaintiff and the 3rd plaintiff jointly is prejudicial to the latter's interest. It is also difficult to understand how the order of the Subordinate Judge can be justified after he had allowed the 3rd plaintiff to be transposed as the 31st defendant. Having allowed the 3rd plaintiff's plea to that extent, it was not open to him to compel him as defendant to have a decree. As I hold that there had been no separation of the 3rd plaintiff from the family by reason of the filing of a plaint by his father, and as it would be prejudicial to his interests to decree such separation, I must uphold his interests and refuse such a decree. It may be true that the declaration of the 2nd defendant in answer to the 3rd plaintiff's refusal to continue the suit effected a separation, but that being at a much later date than the plaint cannot be dealt with in these proceedings and the 3rd plaintiff is entitled to a finding that when the suit was filed he was not a divided member of the family.
7. The decree will therefore be modified by giving his share to the 2nd plaintiff alone, leaving the other parties to effect a partition with the 3rd plaintiff as and when so advised. Defendants 2, 3 and 30 will pay the costs of this appeal out of the estate.
8. A memorandum of objections has been filed by respondents 11 to 18 and the Advocate who appears for them appears also for respondents 5, 6 and 21. So far as respondents 5, 6 and 21 are concerned, it is contended that they are unnecessary parties in this appeal and therefore they should be allowed their costs. They were necessary parties in the Lower Court and have been added as formal parties in the appeal but no relief was asked against them and it was not necessary for them to be represented here. There is therefore no reason for awarding them costs against the appellant.
9. The plea put forward on behalf of respondents 11 to 18 who were alienees from the 1st defendant is that when a partition is effected, the properties alienated to them should as far as possible be allotted to their alienor the 1st defendant's share and that they should be allowed to retain the properties as the alienation to them was binding on the 1st defendant. This equity for which they ask is not opposed either by the 2nd defendant or the 3rd plaintiff and will be allowed, but in the circumstances it is not necessary to pass any order as to costs.
Madhavan Nair, J.
10. I agree.