1. There is an appeal by the defendants and a memorandum of cross-objections by the plaintiffs against the decree of the Subordinate Judge of Rajahmundry in the suit O. S. No. 126 of 1947 for partition. The first defendant is the father of plaintiffs 1 to 3. Plaintiffs 2 and 3 are minors represented by their next friend and brother the first plaintiff. They are the sons by the deceased first wife of the first defendant and the second defendant is the second wife of the first defendant. The third defendant is the son of the first defendant, born on 15-11-1947 during the pendency of this suit which was instituted on 13-3-1947. The suit was preceded by a notice of 1-12-1946, Ex. B. 1, issued on behalf of the plaintiffs by their pleader in which they claimed a partition of the family properties into four shares and for delivery of possession of three out of them to the plaintiffs. In the suit, the plaintiffs claimed a division of the properties specified in A, B, C and D schedules into four equal shares and for allotment of three shares to the plaintiffs and also for recovery of profits of Rs. 1360 for 1946. The first defendant, the father, claimed in the suit certain items of property comprised in A, B, C and D schedules as self-acquisitions in which the plaintiffs were not entitled to any share. Those items are specified in issue 4 in the suit. He further resisted the suit on the . ground, that the partition of the properties was not in the interests of the minor plaintiffs 2 and 3, and that the status of the family was not divided on 1-12-1946 the date of the notice and that it continued undivided till the filing of the suit.
2. It was found by the trial court that the items claimed by the first defendant as his self-acquisitions were in fact joint family properties, as they were acquired from out of the nucleus of the ancestral property which came into the hands of the first defendant consequent on the partition between him and his brothers in 1931, as evidenced by the registered partition deed, Ex. A. 1. He, however, found with reference to item 13 of D schedule, an outstanding due to the family, that it was a bad debt and therefore, it was not available for partition. On issue 2 he found that the interests of the father were undoubtedly adverse to that of the minor plaintiffs 2 and 3, and that in fact his whole conduct established that he was acting hostile to the interests of the minor plaintiffs. He, therefore, found that the partition of the family properties was undoubtedly in the interests of and for the benefit of the minor plaintiffs. These two findings were not challenged by the first defendant, in the appeal. The plaintiffs, however) claimed in their memorandum of cross-objections that even if item 13 of D schedule is a bad debt, the Subordinate Judge should have divided it and should have given a direction to that effect in the preliminary decree. As regards the division in status, as the first plaintiff was an adult coparcener on the date of Ex. B. 1, the learned Judge found that it had effected an immediate severance in status from 1-12-1946 so far as he was concerned. It was claimed by the first defendant that the third defendant who was born on 15-11-1947 during the pendency of the suit was in fact in his mother's womb even on the date of the notice, and that, therefore, even if there was a division in status so far as the first plaintiff was concerned which would take effect from 1-12-1946, it is of no consequence and that the property should be divided into five equal shares taking into consideration the right of the third defendant also. In the alternative, it was contended that even if he was not in his mother's womb on that date, the notice issued by the first plaintiff on behalf of himself and on behalf of his minor brothers, was in any event ineffective to bring about a division in status so far as plaintiffs 2 and 3 were concerned, as the first plaintiff was not the lawful guardian of plaintiffs 2 and 3, and such a notice even if it was subsequently found in the suit that the partition was in the interests of and for the benefit of the minor plaintiffs, could not effect a severance in status so far as plaintiffs 2 and 3 were concerned. The learned Judge did not accept the case of the first defendant, that the third defendant was in his mother's womb on the date of Ex. B. 1, as the period of gestation of a long period of 345 days was unusual and no extraordinary circumstances were disclosed in the evidence to accept the position, that in fact the third defendant was in his mother's womb on the date of the notice. He, however, felt that as there was no binding authority on the point that as the first plaintiff was not the lawful guardian of plaintiffs 2 and 3, the notice issued by him on behalf of the minors was ineffective to bring about a severance in status. The result was that he gave a one-fourth share to the first plaintiff, the major coparcener; but so far as the remaining three fourth share is concerned, he found that it continued to be joint family property until the date of suit, as meanwhile the third defendant was born, the three-fourth share should be divided into four equal shares and out of it the plaintiffs 2 and 3 should get two shares leaving the remaining two shares to defendants 1 and 3. The memorandum of cross-objections filed on behalf of the plaintiffs challenges the correctness of this position adopted by the trial Court.
3. In the appeal filed by the defendants, the only point of substance is whether the third defendant was conceived on the date of Ex. B. 1, This question can be easily disposed of, and it does not present any difficulty. The first defendant was married to 'the second defendant in 1945 and she joined her husband sometime in September 1945. In June 1946, a child was born but that child died immediately. in the reply notice which the first defendant gave. Ex. B. 2, there was a reference to the pregnancy of the second defendant, but that must have reference only to the pregnancy in 1946 when she was driven out of the house along with her husband according to the allegations in the notice. On the 23-12-1946; the first defendant filed a complaint before the District Superintendent of Police, Kakinada, Ex. B. 3, in which he asserted that by then the second wife was carrying three months, which will take the date of conception to September or October 1946. According to the evidence of She second defendant, examined as D. W. 3, the third defendant was in the womb for 11 months, and again, she stated that the child was born 10 months and 115 days after conception. To substantiate this statement, except her 'interested testimony, there is no other evidence on record. The birth of the first child was quite normal. If the evidence of the second defendant were to be accepted, the conception could not have been at or before the date of the notice, Ex. B. 1. It could only be subsequent to the notice. There is no special reason disclosed in the evidence why the period of gestation which was normal in the case of the first child should have been abnormal in the case of the third defendant. (After considering the evidence of a doctor, the judgment proceeds:)
His evidence is, therefore, of no value, and there is no reason to accept the case of the first defendant, that the third defendant was in existence in the eye of law even by the date of Ex. B. 1, i.e., 1-12-1946. The finding of the Subordinate Judge, therefore, must be accepted, the result of which will be that the appeal must be dismissed with costs.
4. There remains the memorandum of cross-ebjections filed by the plaintiffs. It raises two questions, first, regarding the disallowance of a share in item 13 of D schedule to the plaintiffs on the ground that it is a bad debt, and second, whether or not there was division in status by reason of the notice Ex. B. 1. even with regard to plaintiffs 2 and 3, and whether. the view of law taken by the learned Subordinate Judge on this question is correct.
5. On the first point we think it is but just that even if item 13 of D schedule was a bad debt, it should be the subject of partition. The proper direction in the circumstances would be to order that this item should be sold in auction between the parties and the highest bidder should get the debt assigned to him. The purchase price will be divided in proportion to the shares of the coparceners.
6. It is true that the third defendant died subsequent to the filing of the appeal, but if the position taken up by the first defendant were correct, he would get the advantage of the share of the third defendant. If, however, the view taken by the learned Subordinate Judge is wrong, plaintiffs 2 and 3 would also be entitled to a quarter share in the entire properties in the same manner as the first plaintiff. IE his view is correct the decree of the lower court in so far as it directed the division of the three fourth share into four equal shares win be legal.
7. It is now well established, that in order to bring about a disruption of the joint status of a member in a coparcenary it is not necessary that there should be an agreement between all the coparceners, though if there should be actual division and distribution of property such an agreement would be essential. Division. in status as opposed to physical division can be. brought about by a definite and unambiguous declaration of the intention, by one member to separate himself from the joint family, communicated to the other members. This declaration may be by a notice or by conduct or by institution of a suit for partition by an adult member. So much has been settled by the decisions of the Judicial Committee and also by the decisions of various High Courts. It is the exercise of the individual volition of the adult coparcener to get himself divided in status that determines the choice and justifies the exercise of discretion by him to get himself severed in status from the coparcenary. In the case of adults, therefore, it is the exercise of discretion by the adult member and his judgment that counts. If a suit is instituted by an adult coparcener claiming partition in such a case, the intention expressed in the plaint and communicated to the other corparceners who are defendants to the suit would effect a severance in status from the date of plaint. In the case of minors, however, as a minor is incapable of exercising any discretion by himself, it is recognised by decisions that this may be exercised on his behalf by his lawful guardian. The lawful guardian may either issue a notice or may institute a suit as a next friend. But in either case, it is subject to one qualification, that the division in status would be brought about only if ultimately it is found by the court that the partition of the properties is for the benefit of the minor and to his interest. If this is not found, the notice or the institution of the suit will be ineffective in law and insufficient to bring about a disruption of the status of the minor coparcener from the family.
In our High Court for some time there was a conflict of decisions whether in the case of a suit instituted on behalf of a minor coparcener by his next friend, the division in status dates from the date of the plaint or from the date when in the suit the decision is reached by the court that the division is in the best interests of the minor. This conflict was, however, resolved by the Full Bench in -- 'Rangasayi v. Nagarathnamma', 57 Mad 95. But in this case also, the guardian who acted on behalf of the minor as the next friend was the natural guardian, the mother. It is a case of a suit and no notice issued before suit. That the severance in status can be taken back even to the date of the notice issued anterior to the suit was laid down by a Bench in --'Kotayya v. Krishna Rao', ILR (1945) Mad 710. This is really the logical extension of the doctrine elaborately discussed and settled in --'Rangasayi v. Nagarathnamma', 57 Mad 95 (FB). If once it is conceded that a unilateral declaration of intention to sever exercised and intimated on behalf of a minor coparcener by a lawful guardian is effective in law to bring about a severance in status from that date if ultimately it is found in the suit that the physical division is in the interests of the minor, there is no reason for limiting the taking effect of: the division in status to the date of the suit itself, if such volition was exercised anterior to 'the suit. In such an event there is every justification to extend its operation even to the date of the notice and the logical extension of the principle, therefore, if we may say so with respect, was perfectly justified as found by the learned Judges in -- 'Kotayya v. Krishna Rao', ILR (1945) Mad 710. In that case, however, the question whether a notice given on behalf of a minor by a person other than a lawful guardian would have the same consequence if ultimately it was found in the subsequent suit for partition that it was in the circumstances not only justified but was to the positive benefit of the minor coparcener was left open as the learned Judges were not called upon to decide that point. It is this question that now arises for decision in the present appeal. . We are unable to see any difference in principle between the notice given by a lawful guardian on behalf of a minor and the case where the notice was given by a person other than the lawful guardian, as in the present case by the elder brother. Take for example this very case. The interests of the lawful guardian, the father, are adverse to the interests of the minor plaintiffs; the mother is no more; and the lawful guardian cannot act on behalf of the minors because it is not to his interests that there should be a division. On the other hand, he has been opposing tooth and nail such a division. In such a case, apart from the question of any anterior notice if the suit was instituted by a person other than the lawful guardian, the court would be called upon to try the question whether such a partition was or was not in the interests of the minor plaintiff.
In law there is no objection to a person other than a lawful guardian acting as next friend and institute a suit on behalf of the minor plaintiff subject of course, to the provisions of Order XXXII, Civil P. C. Under that Order as amended in Madras, any person of sound mind and who has attained majority may act as next friend of the minor. If there is a guardian appointed or declared by a competent authority, however, unless for reasons to be recorded the court appoints another person as next friend and permits him to act, he alone can institute the suit. A person who has an interest adverse to that of the minor cannot, of course, be appointed as next friend. Subject to these and other limitations imposed by the Code, a person other than the lawful guardian can always institute a suit on behalf of a minor plaintiff. If, therefore, a suit for partition was Instituted by a person other than a lawful guardian as" next friend of the minor and in such a suit it is found ultimately that the partition is for the benefit of the minor, according to the decision of the Full Bench in -- 'Rangasayi v. Nagarathnamma. 57 Mad 95, when there is a decree, for partition in the suit, the division in status takes effect from the date of the plaint. The fact that the choice was exercised by a person who is not the lawful guardian would not prevent the application of the rule in -- 'Rangasayi v. Nagarathnamma', 57 Mad 95 (FB), to such a case. If, therefore, a suit can validly be instituted by a person who is not the legal guardian of the minor members with a view to bring about a division in status, if it is established to the satisfaction of the court that such a division is in the interests of the minor, there is no reason in principle and there is no authority to the Contrary to make a distinction between the case of such a suit and a notice which preceded such Ea suit issued by a person, who is not the 'lawful guardian of the minor. In our opinion, the suit and the notice in such circumstances so far as the legal consequences are concerned must stand on the same footing subject, of course; to the same limitation in both the cases, viz., that it is ultimately found, by the court that the division was in the interests of the minor. The volition in either event exercised by the person who is not the lawful guardian always takes effect conditional on the court finding ultimately that the severance is-in the interests of the minor and for his benefit.
It must be remembered whether by a suitor by a notice issued on behalf of. the minor,. the division in status results not merely, by the. exercise of a volition by somebody on behalf. of the minor but by the ultimate sanction of the court and it is its imprimatur that brings about the result. It may be said that, this might encourage frivolous and vexatious suit by meddlesome persons purporting to act in the interests of the minor but really to serve their private ends. But this inconvenience was noticed by Ananthakrishna Aiyar J. in --'Rangasayi v. Nagarathnamma', 57 Mad. 95-(FB), and such suits as pointed out by the learned Judge may be stayed by the court during the course of the trial if it is satisfied that the object of the suit was not bona fide and the next friend may be penalised by being made to pay the costs personally. A notice would not have a legal effect by itself. It must ultimately be put in suit and the question, of the propriety of the partition in the circumstances of the case must be decided by the court. It is only then that the division in status is brought about. We, therefore, think that on principle there is no reason to limit the operation of the rule laid down in -- 'Kotayya v.. Krishna Rao', ILR (1945) Mad 710, to the case of lawful guardians alone. In the present case, the first plaintiff was the only other person who could have served the interests of the minors in the circumstances, and his action was found to be in the interests of the minors by the court. That finding was not challenged by the first defendant in the appeal. It, therefore, follows that plaintiffs 2 and 3 also became divided fax status on 1-12-1946 along with the first plaintiff. They would, therefore, be each entitled to a quarter share in the whole of the property and not merely a quarter share in the three fourth as decreed by the lower court. The result is the memorandum of cross-objections must be allowed and the decree of the lower court must be modified in the manner indicated above, As the plaintiffs have succeeded they are entitles to their costs in the memorandum of cross-