Decided on February 17,1944

Ekollu Subbarami Reddi Appellant
Ekollu Chenchuraghava Reddi And Others Respondents


Horwill, J. - (1.) THE facts found by the lower Courts are that D. w. 1 bad two sons, Chenchuraghava Reddi and Subba Reddi. Chenchuraghava Reddi died in 1917 leaving three sons, the plaintiff (his son by the first wife), Subba Reddi (his elder son by the second wife), and defendant 1. Because the wife of D. w. 1, the wife of Subba Reddi, and defendant 3 (the surviving wife of Chenchuraghava Reddi) could not get on together, it became necessary to divide the property so that these ladies should not have any further cause for quarrel, The result was that D. W. 1, the grandfather, took a small area of land for himself and divided the rest among his descendants according to the rules of Hindu law. Subba Reddi was given a half; the plaintiff, who was represented at the panchayat by his maternal grandfather, was given one -third of the remaining half; and the sons of defendant 3 were given the remaining one -third. This partition was effected by D. w. 1; and the question that arises in this appeal is whether that partition is binding on the plaintiff, i. e., did 1). W. 1 have the power to effect a division in status between the plaintiff and his two half brothers, Subba Reddi and defendant 1 ? Both the Courts below held that be had such a power. They were of opinion that he could do so because he was the grandfather of these three children and because it was a family settlement necessitated by quarrels among the women of the family.
(2.) THAT a father can effect a partition of family property so as to effect a division in status between his minor sons is not disputed. One of the questions for decision here is whether a grandfather can do the same amongst his grandsons. Mayne and Raghavachariar, in their works on Hindu Law, suggest he can; and the authority they quote is : 32 M. L. J. 439. ('18) 5 : A.I.R. 1918 Mad. 395 : 32 M. L. J. 439 Aiyavier v. Subramania Iyer. Unfortunately, the learned Judges in that case did not have to decide this question. They were concerned with the question whether a grandfather can divide himself off from his grandsons and then give away the share that falls to him in partition. There was no dispute between the grandchildren inter se; and the question whether they were divided or undivided seems not to have arisen. However, it does seem from the reasoning of the learned Judges that they thought that a Hindu grandfather had the same powers to effect a division amongst his minor grandchildren as a father has with regard to his minor children. While I am perhaps not strictly bound to follow that decision in this case, I feel that I should do so in the absence of any authority to the contrary. On the facts of this case the partition may be regarded in a somewhat different light. It does not appear that D. W. l took the matter entirely into his own hands and divided the property without any representation by the parties concerned in the partition. His own son, Subba Reddi, was a major; and there can be no doubt about his right to divide himself off from the family and take his half share. It was also necessary for the plaintiff's share to be separated from the shares of his half brothers, because the plaintiff had been living with his maternal uncle, whereas his half brothers were living with their mother. In, A. I. R. 1930 Mad. 486: ('30) 17, A. I. R. 1930 Mad. 486, Akkanna v. Rangaraju Jackson J., after considering at considerable length all the cases that had any bearing on this question, came to the conclusion that the guardian of a minor can effect a division in status of her minor son. In referring to the line of cases which have held that the mere filing of a suit on behalf of a minor would not effect a severance in status unless the Court subsequently found that a partition would be for the benefit of the minor, he said that where there is a suit for partition on behalf of a minor, the Court stands in the position of a guardian and is bound to exercise its discretion for the benefit of the minor. But if the guardian of a minor comes to Court and says that she has already declared a severance in status of her minor son, the Court has no discretion in the matter and is bound to give the minor his share of the property. He points out that in, 39 Mad. 159 ('16) 3, A. I. R. 1916 Mad. 1170 :, 39 Mad. 159 (F.B.), Soundararajan v. Arunachalam Chetti. a decision of a Full Bench of this Court, the learned Judges held that the severance in status was effected from the date of the filing of the suit, though the plaintiff was then a minor; and Jackson J. concluded that that was clearly because the appeal had proceeded on the basis that the declaration of the minor's guardian at the time of the filing of the suit had effected a division in status. It does not seem reasonable to suppose that where guardians of minors find it impracticable to manage the affairs of the minors without partitioning the property, they are helpless to bring about a partition in the interests of the minors without recourse to the Court. In the case now under consideration, there were three women in the house who found it impossible to live together; and so it was clearly in the interests of the minors that they should become divided and live separately.
(3.) I therefore think that the lower Courts were right. The appeal is dismissed with costs. Appeal dismissed.;

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