Tukaram vs Gangubai

Srinivasachari, J.—One Nagoji left two sons by different wives. Tukaram, the appellant, is his son by his wife Thanubai while Gyanuba was his son by another wife by the same name Thanubai. Nagoji held a ''Kotwali Patelgi'' and other lands, seven in number. It is said that after Nagoji''s death there was a partition between Gyanuba and Tukaram, who were then minors and that they were represented by their respective next friends, Gyanuba was represented by his grand-mother Narmadabai and Thanubai acted as the next friend of Tukaram. It is said that according to this partition the ''Kotwali Patelgi'' and lands bearing Survey Nos. 6, 7 and 2 and half of survey No. 30 were said to have been allotted to the share of Gyanuba and he was in possession of the properties till his death. Gangubai his widow succeeded him. Gangubai brought the present suit against Tukaram, her husband''s brother stating that after Gyanuba''s death the ''viracat'' relating to the ''Kotwali Patelgi'' was granted in her name but later on in the Revenue Department the final Order was passed in favour of the defendant. She, therefore, prayed that it be declared that she, as the heir of Gyanuba, was entitled to the suit properties. In defence Tukaram denied the partition and also alleged that Gyanuba died a minor and therefore the partition could not have any force. Both the Courts held that the partition has been proved and they have decreed the suit of the plaintiff.

The learned Advocate for the defendant-appellant confined his arguments to the question of law involved in this case viz., that a partition by a minor or among minors does not affect a severance in status as would be in the case of an adult co-parcener and that until a suit for partition is filed and the Court decrees the suit for partition after satisfying itself that the partition is for the benefit of the minor, the partition cannot be said to have effect. It is a well recognised principle of Hindu law that a mere intention to sever has the effect of asking the status of the family a divided one. The declaration of an intention to separate may be express or may be inferred from conduct. It may also be by the intending party giving notice to the others of his decision to separate, or it may be by institution of a suit for partition. In the case of a minor co-parcener, the mere declaration of an intention to separate, by the minor''s next friend or the institution of a suit on his behalf by the next friend does not cause a severance in status. The declaration by the next friend cannot be regarded as a binding declaration. A minor cannot demand as of right a separation. It is only granted in the discretion of the Court when it appears to be for the benefit of the minor. Where a suit is filed for partition on behalf of a minor, the mere institution of a suit does not cause a severance in status as in the case of an adult co-parcener. In the suit, if the Court after examining the pros and cons, comes to the conclusion that a decree for partition would be in the interests of the minor then alone could it be said that there has been a partition of the minor''s share. Until then it cannot be said that there has been a disruption of the joint family.

Where, however, the Court decrees the suit for partition brought on behalf of a minor, the decree will relate back to the date of the institution of the suit for the purposes of determining the date of the severance of status. Although it is open to a minor co-parcener to file a suit for partition by his next friend the suit would not be decreed unless the Court comes to the conclusion that the partition would be in the interests of the minor. In the case before me the alleged partition between Gyanuba and Tukaram by their next friends was only an agreement, for partition could not be made binding on minors, it could not be said that partition took place. Their Lordships of the Privy Council in the case of ''Balkrishnadas v. Ramnarayan'', 30 Ind App 139 held that a valid agreement for partition no doubt could be made during the minority of one or more of the coparceners. In the case before their Lordships one of the partitioning coparcener was an adult coparcener and their Lordships expressed the view that having regard to the admitted right of a co-parcener to claim a partition the fact that there was a minor against whom a partition was sought could not dis-entitle the adult co-parcener from claiming a partition. In the case before me both the parties were minors. Inasmuch as the alleged partition during the minority of Tukaram has not been ratified or confirmed by him, the division of property cannot be held to be binding, and plaintiff is not entitled to the properties claimed. Plaintiff''s suit would stand dismissed. The appeal is allowed and the judgment of the Courts below are set aside. The appellant will have his costs of all the courts from the Respondent.