1. In this suit the first defendant is the father of the first plaintiff and defendant, by different mothers. Plaintiffs Nos. 2 and 3 are the minor sons of the first plaintiff and defendants Nos. 3 and of the second defendant. The suit was instituted by the first plaintiff on behalf of himself and his minor sons for a partition. It is alleged that the first 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 been shown that there was any separation in status. During the Pendency of this suit first defendant died on 26th October, 193, and Plaintiff died On the second plaintiff who had attained majority elected to continue the suit on behalf of himself and his minor brother the third plaintiff. At the end of the trial, the third plaintiffs mother applied to be made guardian of her minor son, the third plaintiff, and Sated that the partition was not in the interest of the third plaintiff and that she did not want a partition so far as he was concerned. The third plaintiff was, accordingly, transposed as the thirty-first defendant.
2. The Subordinate Judge has held that it was not open to the third plaintiff to with draw 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 second plaintiff for himself and his minor brother, the thirty-first defendant, The latter now appeals and the only question that arises for consideration is whether the minor third plaintiff was separated in status from the defendant by reason of his father's unequivocal declaration of an intention to be divided in status It is contended for the appellant that it is not ' to the third Plaintiff's interest to be separated from the family, but the respondents contend that this question cannot now be considered, because the third plaintiff is bound by the father's declaration and be- came separated from the date of the filing of the plaint. 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 recognized so far back as 1866; Kamakshi Ammal v. Chidambaram Reddi 3 M.H.C.R. 94, which was followed in Chelimi Chetty v. Subbamma 42 Ind. Cas. 860 : 41 M. 442 : 22 M.L.T. 432 : (1917) M.W.N. 792 : 34 M.L.J. 213, Palani Gaundan v. Kasi Goundan 50 Ind. Cas. 552 is to the same effect. It was also held in Doraswami Pillai v. Thungasami Pillai 27 M. 377 that a minor's interest must be protected by the Court. In Ganesh Rao v. Tuljaram Row 19 Ind. Cas. 515 : 36 M. 295 : 17 C.W.N. 765 : 11 A.L.J. 589 : 18 C.L.J. 1 : 15 Bom. L.R. 626 : 14 M.L.T. 1 : (1913) M.W.N. 575 : 25 M.L.J. 150 : 40 I.A. 132 (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 sod, 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. Ramachandra Ayyar, 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.
3. 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 Reddi Sesha Reddi v. Nallappa Reddi Raghava Reddi 57 Ind. Cas. 800 : 11 L.W. 611 and Krishnaswami Naidu v. Perumal : AIR1925Mad112 . This has been affirmed by the Privy Council in Palani Animal v. Muthuvenkatachala Moniagar . There is are mark in the judgment in the 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 Palaniammal v. Muthuvenkatachala Moniagarar 43 Ind. Cas. 833 : 33 M.L.J. 759, 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 Chabildas v. Chabil Das Lilloo 7 Ind. Cas. 131 : 12 Bom. L.R. 621, Alur Lakshmi Narasimha Sastrulu v. Venkata Narammma 52 Ind. Cas. 614 and limed. Babar v. Khushalbhai Kevalbhai 2 Ind. Cas. 426 : 11 Bom. L.R. 396. 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. 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, viz., the first defendant, was alive and was the head of the family. When, therefore, the first 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 the head of his own branch. The third plaintiff, as grandson, could himself have maintained a separate suit for partition, as also any one of the members of the first defendant's family. While, therefore, the filing of the plaint by the first 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 third plaintiff and the other members. In Balabux Ladhuram v. Rukhmabai 30 C. 725 : 30 I.A. 130 : 7 C.W.N. 642 : 5 Bom.L.R. 469 : 8 Sar. P.C.J. 470 (P.C.) and Jatti v. Banwari Lal 74 Ind. Cas. 462 : 4 Lah. 350 : 21 A.L.J. 582 : A.I.R. 1923 P.C. 136 : 18 L.W. 273 : 45 M.L.J. 355 : (1923) M.W.N. 687 : 25 Bom. L.R. 1256 : 28 C.W.N 785 : 33 M.L.T. 283 : 50 I.A. 192 (P.C.), 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 Ammal v. Muthuvencatachala 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 coparceners or was a separation of all the members from each other. It does not, therefore, necessarily follow that, when the third 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. The observation of the Privy Council in Ramalinga Annavi v. Narayana Annavi 68 Ind. Cas. 451 : 45 M. 489 : 30 M.L.T. 255 : (1922) M.W.N. 399 : 26 C.W.N. 929 : 43 M.L.J. 428 : 16 L.W. 639 : 24 Bom.L.R. 1209 : 20 A.L.J. 839 : A.I.R. 1922 P.C. 201 : 37 C.L.J. 15 : 46 I.A. 168 (P.C.) that the separation of the father effect- ed a separation of his branch must be read in connexion 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 first plaintiff did not necessarily effect a separation of the third 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 third plaintiff to become separated from the other members of the family, and in the interests of the minor third plaintiff, the Court is bound to take that plea into consideration. 80 far as the third 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 third plaintiff declared his intention not to become separated, the other members of the family, viz., second defendant and his sons replied that they did not wish to remain united with the third 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 third 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 second defendant at the conclusion of this suit, assuming that that was an unequivocal declaration of intention. That being so, the share to which the third plaintiff was entitled on that date is a larger share than that which has been allotted to the second plaintiff on his behalf and the order of the Subordinate Judge decreeing only one-third share to the second plaintiff and the third 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 third plaintiff to be transposed as the thirty-first defendant. Having allowed the third 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 third 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 interest and refuse such a decree It may be true that the declaration of the second defendant in answer to the third 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 third plaintiff is entitled to a finding that, when the suit was filed, he was not a divided member of the family.
4. The decree will, therefore, be modified by giving his share to the second plaintiff alone, leaving the other parties to effect a partition with the third plaintiff as and when so advised. Defendants Nos. 2, 3 and 30 will pay the costs of this appeal out of the estate.
5. A memorandum of objections has been filed by respondents Nos. 11 to 18 and the Advocate who appears for them appears also for respondents Nos. 5, 6 and 21. So far as respondents Nos. 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 as 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.
6. The plea put forward on behalf of respondents Nos. 11 to 18 who were alienees from the first defendant is, that when a partition is effected the properties alienated to them should as far as possible be allotted to the share of their alienor, the first defendant, and that they should be allowed to retain the properties, as the alienation to them was binding on the first defendant. This equity for which they ask is not opposed either by the second defendant or the third plaintiff and will be allowed, but in the circumstances it is not necessary to pass any order as to costs.
Madhavan Nair, J.
7. I agree.