Whether a suit is instituted by an adult or a minor they stand on the same footing

Supreme Court in Kakumanu Peda Subbayya and Another Vs. Kakumanu Akkamma and Another, . Repelling the argument that an adult can bring about a division in status as he will be in a position to express his opinion clearly and unambiguously but a minor cannot express the same, the Supreme Court held that a suit filed by a next friend on behalf of minor would bring about a severance as effectively as it is done by a suit instituted by an adult plaintiff. The Supreme Court held as follows:

“In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the court deciding whether it is beneficial to the minor, and a suit instituted on his behalf if found to be beneficial must be held to bring about a division in status.”

The Supreme Court further held as follows:

“It is in the exercise of this jurisdiction that Courts require to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the Court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu law, but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a Court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action. Thus, what brings about the severance in status is the action of the next friend in instituting the suit, the decree of the Court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minor”.

This judgment of the Supreme Court was later followed in Lakkireddy China Venkatareddy v. L. Laxmamma AIR 1953 SC 1601. The Supreme Court has categorically held as follows:

“The effect of the decision of the Court granting a decree for partition in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognise the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance”.

The same view was taken in Krishnabai v. A.T. Nimbalkar AIR 1979 SC 1880. In the said case, it was held that even an intimation by a coparcenar of his intention to divide and separate brings about the division in status of joint family. It was held emphatically thus:

“The immediate and inexorable consequence of this intimation was . disruption or division of the joint status, which, in the eve of Hindu law. amounted to ‘partition”.

This proposition is further approved by a decision of the Supreme Court in Kalyani (Dead) by Lrs. Vs. Narayanan and Others, confirming the earlier views that an intimation or in the absence of the same, a suit, immediately brings about the division in status and disruption of joint family. The Supreme Court held as follows:

“Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intentionby a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition, irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier v. Rama Subba Aiyan (1886) 11 MI A 76 (PC) quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh Vs. Appasaheb Tuljaramarao Nimbalkar and Others, . A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv) 43 I. A 151 : AIR 1916 PC 104. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.”

As such, the settled principle of law is that whether a suit Is-instituted by an adult plaintiff or a minor, they stand on the same footing and the said suit for partition brings about the severance in status, the moment the suit was filed. Even the fact that the suit is filed in forma pauperis does not alter this legal position. In the instant case, there cannot be even an iota of doubt that the suit instituted by the 1st plaintiff being mother and as the next friend of the 2nd plaintiff was in the interest of the 2nd plaintiff. If that be so, the irresistible conclusion is that there was a severnce and division in status of joint family consisting of the defendant and the 2nd plaintiff in the year 1975 when the suit was filed for partition and separate possession in forma pauperis in O.P.No. 173 of 1975. But, on behalf of respondents 3 to 5, the learned counsel appearing for them relies on a judgment of the Supreme Court in S. Sai Reddy v. S. Narayana Reddy 1991 (2) APLJ 64 . In the said case, a question arose as to whether the unmarried daughters as on 5-9-1985 were entitled for a share in the joint family properties. In the said case, there were two unmarried daughters as on 5-9-1985; but before the said date, a civil action for partition was instituted by a coparcener-son against the father and other coparcener brothers and preliminary decree was passed even by 5-9-1985 and in fact final decree proceedings were pending. At that juncture, a petition was filed by the said daughters claiming shares on par with other coparceners in view of the said amending Act, A.P. Act 13 of 1986. Initially, the lower court rejected their contention, but on approach to this court, the said order was reversed holding that the daughters are entitled for shares in accordance with the said Act. The Supreme Court concurred with the order of this court upholding the rights of the said two unmarried daughters. While construing the provisions of A.P. Act 13 of 1986, the Supreme Court has held that the above amendment was brought-in on the touch stone of Article 14 of the Constitution of India and was a beneficial legislation in so far as women members of the joint family are concerned and as such the same has got to be liberally construed and while so construed the daughters who were unmarried as on 5-9-1985 were entitled for shares on par with other coparceners regardless of the fact that suit was instituted much before the said date and even if the preliminary decree was passed. The Supreme Court, in the circumstances of that case, held that mere passing of preliminary decree did not have the effect of conclusion of the rights of joint family. But the Supreme Court, in the said decision, did not disagree with the settled proposition that partition action brings about the severance in status the moment the suit for partition was filed. The previous Supreme Court judgments authoritatively pronouncing that a mere intimation to separate or in the absence of the same filing of the suit severs and disrupts the joint family status, were not brought to the notice of the Supreme Court in the later judgment in S. Sai Reddy v. S. Narayana Reddy 1991 (2) APLJ 64 . That apart, in the said decision what was dealt with was whether passing of the preliminary decree declaring shares brings about any irreversible situation. Due to insertion of Section 29A into Hindu Succession Act, 1956 by virtue of A.P. Act 13 of 1986, the daughters, who were respondents 2 to 5 therein, already existing on the date of the suit for partition, were held to be entitled for shares on par with other male coparceners and that as the properties were not divided by metes and bounds and the possession was not delivered, the women coparceners cannot be deprived of their due shares conferred by virtue of the amending Act. The Supreme Court, in the said case, in fact, states as follows:

“Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas it is necessary to give a liberal effect to it. For this reason also we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation.”

A close reading of all the judgments rendered earlier and the judgment in S. Sai Reddy v. S. Narayana Reddy (5 supra), and analysis of the same with regard to the date of severance in joint family status and the variation of shares of coparceners on account of the intervening events does not create any confusion or conflict.

As such, harmoniously read and interpreted all the above judicial precedents and Section 29-A of Hindu Succession Act incorporated by A.P. Act 13 of 1986, the legal proposition which emerges is as mentioned infra.

In view of insertion of Section 29-A into Hindu Succession Act, 1956 by virtue of A.P. Act 13 of 1986, the women members of the joint family are deemed to be the coparceners on par with male members thereof. Section 29-A of Hindu Succession Act contains a non-obstante clause and gives a go-by to the old notions of ‘shastrik’ Hindu law later codified that only males are coparceners in a Hindu joint family and not the women and that only male coparceners are entitled for succession by virtue of survivorship and not the female, insofar as the State of Andhra Pradesh is concerned. By reason of insertion of the said Section 29-A into Hindu Succession Act, 1956, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenery properties as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son. Even though the said Act was gazetted on 22-5-1986, the same is retrospectively operative from 5-9-1985. The retrospectivity is dependent upon two factors-(1) that the partition being not effected and (2) the daughters remaining unmarried. If the partition action was pending any time before 5-9-1985 and if the daughters were born and were existing and remained unmarried as on the date of filing of the suit, by legal fiction, the said daughters would be entitled to lay claim, later, in view of the said amending Act claiming their due shares subject to the condition that by 5-9-1985 the property is not divided by metes and bounds followed by actual and physical delivery of possession. This is so because the ladies by birth are treated as coparceners on par with the male coparceners. Concisely speaking even though the date of commencement of A.P. Act 13 of 1986 is mentioned as 5-9-1985, it has got the legal effect of making the women members as coparceners right from their birth on par with male coparceners. It is needless to mention that even the females enventre samere (in mother’s womb) have got to be treated as coparceners on the same analogy as that of male coparceners. A mere intimation to separate by an adult coparcener or a minor coparcener through next friend or institution of a suit immediately disrupts the status in joint family either from the date of the said intimation or the institution of the suit, as the case may be. If the daughters are born to a coparcener after such division in status and disruption of joint family, they will not be entitled to a share out of the entire estate of coparcenery; but are entitled to share/s only out of their father’s share and the share of a coparcener who laid a suit gets untouched and unaltered as his share already gets crystalised the moment there was a division and disruption in status of joint family, in view of intimation or civil action.