Decided on December 18,1944

Ayinampudi Kotayya and Ors. Appellant
Ayinampudi Krishna Rao (minor) by mother and guardian Ayinampudi Ammemma and Ors. Respondents


Alfred Henry Lionel Leach, C.J. - (1.) THIS appeal arises out of a suit for partition filed by the minor sons of one Rama Rao who died in the month of May 1941. They sued through their mother as their next friend. The principal defendants were their grandfather (the first defendant), their uncle Tatayya (the second defendant), and their aunt Vemuri Sitaramamma (the third defendant). A notice demanding a partition was served upon the first defendant, the manager, by the plaintiffs' mother, who was their lawful guardian, on the 27th October, 1941. The suit was instituted on the 29th of the following month. The first defendant did not object to a partition and a decree for partition was granted. The appellants are the first three defendants. They contend that the Subordinate Judge erred in declaring that a gift of two acres of land by the first defendant in favour of his daughter the third defendant, was not binding on the family. They further contend that the Subordinate Judge erred in refusing to,, allow certain debts incurred by the first defendant to be charged against the family estate. We have no hesitation in concurring in the findings of the Subordinate Judge.
(2.) THE family estate consisted of only 10.35 acres of immovable property. On the 6th November, 1941, the first defendant conveyed two acres to his daughter, ostensibly for the purpose of defraying her marriage expenses. She had been married two years before. This gift absorbed practically one -fifth of the whole estate. Even if the third defendant had not been married and it was necessary to make some provision for her marriage expenses, the conveyance to her of two acres was entirely unreasonable considering the small amount of property which the family possessed; but the marriage had taken place two years before and the conveyance was executed after the demand for severance had been made. In these circumstances the first defendant had no right to convey this property to his daughter and it is obvious that in doing so he was acting in fraud of the plaintiffs' rights. The conveyance cannot be allowed to stand. The debts which the Subordinate Judge held were not binding on the family were represented by the promissory notes marked as Exs. D -4, D -6, D -9, D -11, D -12, D -13, D -17, D -18, D -19, D -20 and D -22 respectively. The total amount was Rs. 1,685 -4 -0. Exs. D -4, D -6, D -11 and D -13 were renewals of old promissory notes and in each case the renewal was after the date of the notice given by the plaintiffs' mother demanding partition. The other promissory notes had been executed before the notice. They were said by the contesting defendants to represent moneys borrowed for family necessities. The Subordinate Judge has found that none of these promissory notes represents a genuine debt. The judgment indicates substantial ground for this finding, but it is not necessary for us to inquire whether these moneys were actually borrowed because it is evident that the promissory notes which were executed after the date of severance are not binding on the plaintiffs and as regards the other promissory notes no family necessity has been proved.
(3.) THE learned advocate for the appellants has contended that the date of the notice, namely, the 27th October, 1941, given by the mother demanding partition is not the date on which in law the severance in status took place. He has said that the severance only took place on the date of the filing of the suit. This contention is entirely opposed to what is said by two of the learned Judges of the Full Bench which decided Rangasayi v. : AIR1933Mad890 . In his judgment in that case, Ramesam, J., referred to the fact that a minor was not capable of exercising a discretion in law and that a suit for partition filed on behalf of the minor could only be maintained if the Court considered that a partition was in the interests of the minor; but he was of the opinion that the discretion could be exercised by the minor's guardian and in such a case the proper way of describing the situation was that the exercise of the option on behalf of the minor effected a severance conditional on the Court finding that it was for the benefit of the minor. Anantakrishna Ayyar, J., was of the same opinion. In the course of his judgment he said that the logical result would be that even a notice given on behalf of a minor to the other members of the family would be effectual in working a severance of the joint status provided the Court found in the suit for partition that it was for the benefit of the minor. It is said that these opinions were in the nature of obiter dicta. This may be so, but with respect we entirely agree with them. If it were otherwise great injustice might be done to a minor coparcener. Take the case where it is obvious, as the result of the manager's mismanagement of the family affairs that there should be a partition. If the severance did not date back to the date of the notice but only to the date of the filing of the suit, much to the detriment of the minor might happen in the meantime. The notice cannot, of course, be effective unless the Court holds that the partition is for the benefit of the minor. If it so holds, then the logical conclusion is that the severance must date back to the giving of the notice.;

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