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PETITIONER: KAKUMANU PEDA SUBBAYYA ANDANOTHER

       Vs.

RESPONDENT: KAKUMANU AKKAMMA AND ANOTHER

DATE OF JUDGMENT: 04/09/1958

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1958 AIR 1042            1959 SCR 1249

ACT: Hindu  Law-Partition-Suit for Partition on behalf  of  minor -Severance  of  joint status-Death of  minor  pending  suit- Abatement-Right of legal representative to continue suit.

HEADNOTE: In  a  suit  instituted  on behalf  of  a  Hindu  minor  for partition   of  the  joint  family  properties,  the   minor plaintiff  died  during  the pendency of the  suit  and  his mother  as the legal representative was allowed to  continue the  suit as the second plaintiff, and the suit was  decreed as it was found that the defendants had been acting  against the  interests of the minor and that the suit for  partition was  therefore beneficial to him.  It was contended for  the appellants  that the suit had abated by reason of the  death of the minor before the suit was heard and before the  Court could decide whether the institution of the suit was for his benefit. Held,  that when a suit is instituted by a person acting  on behalf  of  a minor for the partition of  the  joint  family properties, a declaration made by him on behalf of the minor to  become  divided  brings about  a  severance  in  status, subject only to the decision of the Court that the action is beneficial to the minor.  The true effect of the decision of the Court is not to create in the minor a right which he did not  possess  before but to recognise the  right  which  had accrued to him when the action was instituted. Rangasayi  v.  Nagarathnamma, (1933) I. L. R.  57  Mad.  95, Ramsingh   v.  Fakira,  I.  L.  R.  [1939]  Bom.   256   and Mandilprasad v.     Ramcharanlal,  I.L.R. [1947]  Nag.  848, approved. Case law reviewed. Accordingly, the suit did not abate and the legal  represen- tative was entitled to continue the suit and obtain a decree on showing that when the suit was instituted it was for  the benefit of the minor. Held,  further,  that the suit did not abate on  the  ground either that the cause of action for a suit for partition  by a minor was one personal to him, because such a suit is  one relating to property.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 326 of 1955. 1250 Appeal  by special leave from the judgment and decree  dated April  10, 1953, of the Madras High Court in  Second  Appeal No.  1815  of 1949, arising out of the judgment  and  decree dated  January 28, 1949, of the Court of Subordinate  Judge, Bapatla, in A. S. No. 188 of 1947, against the judgment  and decree  dated  December 23, 1946, of  the  District  Munsif, Ongole, in O.  S. No. 139 of 1946. M.   C. Setalvad, Attorney-General for India and R.Ganapathy Aiyar, for the appellants. A.   V. Viswanatha Sastri, M. R. Rangaswami Aiyangar, T.  S. Venkataraman and K. R. Choudhury, for the respondents. 1958.  September 4. The Judgment of the Court was  delivered by VENKATARAMA  AIYAR J.-This appeal arises out of a  suit  for partition of joint family properties instituted on April  2, 1942, in the Court of the District Munsif, Ongole, on behalf of  one Kakumanu Ramanna, a minor of the age of about 2  1/2 years  by  his material grandfather, Rangayya, as  his  next friend.  The first defendant is his father.  The second  and third defendants are the sons of the first defendant by  his deceased  first  wife.  The fourth defendant is  the  second wife   of  the  first  defendant  and  the  mother  of   the plaintiff-.   The  fifth defendant is the  daugther  of  the first defendant by the fourth defendant. In the plaint, three grounds were put forward as to why  the minor plaintiff should have partition: (1) It was said  that the  mother of the plaintiff was ill-treated, and there  was neglect to maintain her and her children.  Both the District Munsif  and the Subordinate Judge on appeal, held that  this had  not  been established, and no further  notice  need  be taken of it. (2) It was then said that there had been a sale of the family properties to one Akkul Venkatasubba Reddi for Rs.  2,300, that there was no necessity for that  sale,  and that its object was only to injure the plaintiff.  That sale is dated May 9, 1939. (3) Lastly, it was alleged that item 2 had been purchased on June 1, 1938, and item 11 on June  14, 1939, with joint family 1251 funds,  but that the sale deeds had been taken in the  names of  the second and third defendants with a view to  diminish the assets available to the plaintiff.  In addition to these allegations,  it  was  also stated in the  plaint  that  the family  was  in good circumstances, and that there  were  no debts  owing by it.  On June 20, 1942, the defendants  filed their  written  statements, wherein they  claimed  that  the purchase  of items 2 and 11 had been made with the  separate funds of the second and third defendants, and that the joint family had no title to them.  They further alleged that  the family  had debts to the extent of Rs. 2,600.   Sometime  in January  1943, the minor plaintiff died, and his mother  who was   the  fourth  defendant  was  recorded  as  his   legal representative, and transposed as the second plaintiff. The  suit was in the first instance decreed, but on  appeal, the Subordinate Judge remanded the case for trial on certain issues.   At  the rehearing, it ",as proved that  the  first plaintiff  was  born  on December 20, 1939.   On  that,  the District Munsif held that the sale of the family  properties to Akkul Venkatasubba Reddi and the purchase of items 2  and II  in the names of the second and third  defendants  having been anterior to the birth of the minor plaintiff, no  cause

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of  action  for  partition could be  founded  thereon.   The District Munsif also held on the evidence that the  purchase of  items  2  and 11 was not shown to have  been  made  with separate  funds,  and that therefore they  belonged  to  the joint  family and further that the family owed no debts  and that the allegations contra in the statements were not  made out.   But  he held, however, that this did  not  furnish  a cause of action for partition.  In the result, he  dismissed the suit.  There was an appeal against this judgment to  the Court of the Subordinate Judge of Bapatla, who affirmed  the findings of the District Munsif that items 2 and 11 belonged to the joint, family, and that there were no debts owing  by it.   But  he  also agreed with him that  as  the  sale  and purchases  in question were prior to the birth of the  minor plaintiff, the suit for 159 1252 partition   based   thereon  was   not   maintainable.    He accordingly dismissed the appeal.  The second plaintiff took the matter in second appeal to the High Court of Madras, and that was heard by Satyanarayana Rao J. who held that as  the defendants had falsely claimed that items 2 and 11 were  the separate  properties  of the second  and  third  defendants, their interest was adverse to that of the minor and that the suit  for  partition  was clearly  beneficial  to  him.   He accordingly granted a preliminary decree for partition.  The present appeal has been brought against it on leave  granted by this Court under Art. 136. The learned Attorney-General who appeared for the appellants advanced two contentions in support of the appeal: (1)  that there was a concurrent finding by both the courts below that the  suit was not instituted for the benefit of  the  minor, and that the High Court had no power to reverse it in second appeal;  and (2) that, in any event, as the minor  plaintiff had  died  before the suit was heard and  before  the  court could decide whether the institution of the suit was for his benefit, the action abated and could not be continued by his mother as his legal representative. On  the first question, the contention of the appellants  is that  it is a pure question of fact whether the  institution of  a suit is for the benefit of a minor or not, and that  a finding  of the courts below on that question is not  liable to  be  interfered with in second appeal.  But  it  must  be observed that the finding of the Subordinate Judge was  only that as the impugned sale and purchases were made before the minor  plaintiff was born, no cause of action for  partition could  be founded by him thereon, and that, in our  opinion, is a clear misdirection.  The transactions in question  were relied  on  by  the  minor plaintiff  as  showing  that  the defendants  were  acting adversely to him, and that  it  was therefore  to his benefit that there should be a  partition. It  is no doubt true that as the plaintiff was not  born  on the  date  of those transactions, the defendants  could  not have  entered  into them with a view to injure  him,  though even as to this it should be noted that in May and -June, 1253 1939  when  the  transactions  were  concluded,  the   first plaintiff  was in the womb, and the first  defendant  admits knowledge of this, in his evidence.  But assuming that there was no intention to defeat the rights of the first plaintiff at  the time when the transactions in question were  entered into, that does not conclude the matter.  The real point for decision is whether the defendants were acting adversely  to the  minor, and if, after he was born, they  used  documents which   might  have  been  innocent  when  they  came   into

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existence,  for the purpose of defeating his rights  to  the properties comprised therein, that would be conduct  hostile to  him justifying partition.  Now, what are the facts ?  In the  written statements which were filed shortly  after  the institution of the suit while the first plaintiff was alive, defendants I to 3 combined to deny his title to items 2  and I  1, and at the trial, they adduced evidence in support  of their  contention that they were the separate properties  of defendants  2  and  3.  Even in the  Court  of  Appeal,  the defendants  persisted  in pressing this claim,  and  further maintained  that  the joint family had debts, and  both  the courts  below  had concurrently held against them  on  these issues.  These are materials from which it could rightly  be concluded  that it was not to the interest of the  minor  to continue  joint  with the defendants, and that it  would  be beneficial  to him to decree partition.  In holding that  as the  transactions in question had taken place prior  to  his birth the minor could not rely on them as furnishing a cause of action, the courts below had misunderstood the real point for  determination, and that was a ground on which the  High Court  could interfere with their finding in second  appeal. We  accept the finding of the High Court that the  suit  was instituted  for the benefit of the minor plaintiff,  and  in that view, we proceed to consider the second question raised by  the learned Attorney-General-and that is the main  ques- tion  that  was  pressed  before  us-whether  the  suit  for partition abated by reason of the death of the minor  before it was heard and decided. The contention on behalf of the appellants is that while  in the case of an adult coparcener a clear and 1254 unambiguous expression on his part of an intention to become divided will have the effect of bringing about a division in status  and the filing of a suit for partition would  amount to such an expression, that rule can have no application  in the  case of a minor, as under the law he is incapable of  a volition of his own.  It is conceded by the appellants  that a  suit  for partition could be entertained on behalf  of  a minor  plaintiff, and decreed if the court decides that  it, is  in the interests of the minor.  But it is said  that  in such  a case, the court exercises on behalf of the  minor  a volition  of  which lie is incapable, that it is  not  until that volition is exercised by the court that there can be  a division  in  status,  and that,  therefore,  when  a  minor plaintiff dies before the court adjudicates on the  question of  benefit to him, he dies an undivided coparcener and  his interest  survives  to the other coparceners  and  does  not devolve on his heirs by inheritance.  The contention of  the respondents, on the other hand, is that a suit for partition instituted  on  behalf of a minor coparcener stands  on  the same footing as a similar suit filed by an adult coparcener, with  this difference that if the suit is held by the  court not to have been instituted for the benefit of the minor  it is liable to be dismissed, and no division in status can  be held  to result from such an action.  In other words, it  is argued  that  a  suit for partition on  behalf  of  a  minor effects  a  severance in status from the date of  the  suit, conditional on the court holding that its institution is for the benefit of the minor. The question thus raised is one of considerable  importance, on  which  there has been divergence  of  judicial  opinion. While the decisions in Chelimi Chetty v. Subbamma (1), Lalta Prasad  v. Sri Mahadeoji Birajman Temple (2) and Hari  Singh v.  Pritam Singh(3), hold that when a suit for partition  is filed on behalf of a minor plaintiff there is a division  in

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status only if and when the Court decides that it is for his benefit  and passes a decree, the decisions in Rangasayi  v. Nagarathnamma (4), Ramsing v. Fakira (5) and Mandliprasad v. Ramcharanlal (6), lay down that when such a (1)  (1917) I.L.R. 41Mad. 442. (2)  (1920) I.L.R. 42 All. 461. (3)  A.I.R. 1936 Lah. 504. (4)  (1933) I.L.R. 57 Mad. 95. (5)  I.L.R. [1939] Bom. 256. (6)  I.L.R. [1947] Nag. 848. 1255 suit is decreed, the severance in status relates back to the date  of the institution of the suit.  While Chelimi  Chetty v. Subbamma (1) decides that when a minor on whose behalf  a suit is filed dies before hearing, the action abates, it was held  in Rangasayi v. Nagarathnamma (2) and Mandliprasad  v. Ramcharanlal  (3) that such a suit does not abate by  reason of the death of the minor before trial, and that it is  open to  his  legal  representatives to  continue  the  suit  and satisfy  the court that the institution of the suit was  for the  benefit of the minor, in which case there would  be,  a division  in  status  from the date of the  plaint  and  the interests of the minor in the joint family properties  would devolve on his heirs.  To decide which of these two views is the correct one, we shall have to examine the nature of  the right  which a minor coparcener has, to call  for  partition and of the power which the court has, to decide whether  the partition in question is beneficial to the minor or not. Under  the  Mitakshara law, the right, of  a  coparcener  to share  in the joint family properties arises on  his  birth, and  that right carries with it the right to  be  maintained out of those properties suitably to the status of the family so  long as the family is joint and to have a partition  and separate  possession of his share, should he make  a  demand for  it.  The view was at one time held that there could  be no  partition,  unless all the coparceners agreed to  it  or until a decree was passed in a suit for partition.  But  the question  was finally settled by the decision of  the  Privy Council  in Girja Bai v. Sadashiv Dhundiraj (4), wherein  it was held, on a review of the original texts and adopting the observation  to that effect in Suraj Narain v. lqbal  Narain (5), that every coparcener has got a right to become divided at  his  own will and option whether the  other  coparceners agree  to it or not, that a division in status  takes  place when   he  expresses  his  intention  to   become   separate unequivocally avid unambiguously, that the filing of a  suit for  partition is a clear expression of such  an  intention, and that, in consequence, (1)  (1917) I.L.R. 41 Mad. 442. (2)  (1933) I.L.R. 57 Mad. 95. (3)  I.L.R. [1947] Nag. 848. (4)  (1916) L.R. 43 I.A. 151. (5) (1912) L.R. 40 I.A. 40,45. 1256 there is a severance in status when the action for partition is filed.  Following this view to its logical conclusion, it was  held by the Privy Council in Kawal Nain v.  Prabhu  Lal (1),  that  even if such a suit were to be  dismissed,  that would  not affect the division in status which must be  held to  have  taken  place,  when  the  action  was  instituted. Viscount Haldane observed: "A decree may be necessary for working out the result of the severance and for allotting definite shares, but the  status of  the plaintiff as separate in estate is brought about  by his  assertion of his right to separate, whether he  obtains

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consequential judgment or not." The  law being thus settled as regards coparceners  who  are sui  juris, the question is whether it operates  differently when the coparcener who institutes the suit for partition is a minor acting through his next friend.  Now, the Hindu  law makes no distinction between a major coparcener and a  minor coparcener,  so far as their rights to joint properties  are concerned.  A minor is, equally with a major, entitled to be suitably  maintained  out of the family properties,  and  at partition,  his  rights  are precisely  those  of  a  major. Consistently  with this position, it has long  been  settled that a suit for partition on behalf of a minor coparcener is maintainable  in  the same manner as one filed by  an  adult coparcener, with this difference that when the plaintiff  is a  minor the court has to be satisfied that the  action  has been instituted for his benefit.  Vide the authorities cited in Rangasayi v. Nagarathnamma (2 ) at p. 137.  The course of the law may be said, thus far, to have had smooth run.   But then  came the decision in Girja Bai v.  Sadashiv  Dhundiraj (3)  which  finally established that a  division  in  status takes  place when there is an unambiguous declaration  by  a coparcener  of his intention to separate, and that the  very institution   of  a  suit  for  partition  constituted   the expression  of such an intention.  The question  then  arose how  far this principle could be applied, when the suit  for partition  was  instituted  not by a major but  by  a  minor acting through his next friend.  The view was expressed that (1) (1917) L.R. 44 I.A. 159.  (2) (1933) I.L.R. 57 Mad. 95. (3) (1916) L.R. 43 I.A. 151. 1257 as the minor had, under the law, no volition of his own’ the rule  in  question  had no application to him  it  was  not, however,  suggested  that  for  that  reason  no  .suit  for partition could be maintained on behalf of a minor, for such a  stand  would  be contrary to the law as laid  down  in  a series of decisions and must, if accepted, expose the estate of  the  minor  to the perils of  waste  and  spoliation  by coparceners acting adversely to him.  But what was said  was that  when  a  court decides that a  partition  is  for  the benefit  of  a minor, there is a division brought  about  by such decision and not otherwise.  It would follow from  this that  if a minor died before the court decided the  question of  benefit lie would have died an undivided  coparcener  of his family and his heirs could not continue the action. In Chelimi Chetty v. Subbamma (1), the point directly  arose for  decision whether on the death of a minor plaintiff  the suit  for  -partition  instituted on  his  behalf  could  be continued  by his legal representatives.  It was  held  that the  rule  that  the institution of  a  suit  for  partition effected a severance of joint status was not applicable to a suit instituted on behalf of a minor, and that when he  died during  the pendency of the suit" his  legal  representative was  not  entitled  to  continue it.   The  ground  of  this decision was thus stated: "  It  was strongly argued by the learned  pleader  for  the respondent that as the plaint states facts and circumstances which, if proved, would be good justification for the  court decreeing partition, therefore at this stage we must proceed on the basis that there was a good cause of action and there was  thus a severance of status effected by the  institution of the suit.  This clearly does not amount to anything  more than this, that it is open to a person who chooses to act on behalf  of a minor member of a Hindu family to exercise  the discretion on his behalf to effect a severance.  What causes the  severance of a joint Hindu family is not the  existence

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of  certain facts which would justify any member to ask  for partition,  but it is the exercise of the option  which  the law lodges in a member of the joint family to say whether he shall continue to remain (1)  (1917) T.L.R. 41 Mad. 442. 1258 joint  or whether he shall ask for a division.  In the  case of an adult he has not got to give any reasons why lie  asks for partition but has simply to say that he wants partition, and the court is bound to give him a decree.  In the case of a  minor the law gives the court, the power to  say  whether there should be a division or not, and we think that it will lead  to considerable complications and difficulties  if  we are  to say that other persons also have got the  discretion to  create  a division in the family, purporting to  act  on behalf of a minor." This decision was cited with approval in Lalta Prasad  v.Sri Mahadeoji Birajman Temple (1), wherein it was observed: " The effect, therefore, we think, of an action brought by a minor  through  his  next  friend  is  not  to  create   any alteration  of status of the family, because a minor  cannot demand  as of right a separation; it is only granted in  the discretion  of  the court when, in  the  circumstances,  the action  appears  to be for the benefit of  the  minor.   See Chelimi Chetty v. Subbamma (2)." In  Hari  Singh v. Pritam Singh (3), a  suit  for  partition instituted  on  behalf  of a minor was  decreed,  the  court finding  that  it  was for the benefit of  the  minor.   The question  then  arose as to the period for which  the  karta could be made liable to account.  It was held, following the decisions  in  Chelimi  Chetty v. Subbamma (2  )  and  Lalla Prasad  v.  Sri Mahadeoji Birajman Temple (1), that  as  the severance  in  status  took place only on the  date  of  the decision and not when the suit was instituted, the liability to  account arose only from the date of the decree  and  not from  the  date of the suit.  It may be  mentioned  that  in Chhotabhai v. Dadabhai (4) Divatia J. quoted the decision in Chelimi Chetty v. Subbamma (2) with approval, but as pointed out  in  Ramsing  v. Fakira (5) and  by  the  learned  judge himself  in Bammangouda v. Shankargouda (6), the  point  now under  consideration  did not really arise for  decision  in that case, and the (1)  (1920) I.L.R. 42 All. 461. (2)  (1917) I.L.R. 41 Mad. 442. (3)  A.I.R. 1936 Lah. 504. (4)  A.I.R. 1935 Bom. 54. (5)  I.L.R. [1939] Bom. 256. (6)  A.I.R. 1944 Bom. 67. 1259 observations  were merely obiter.  It is on the strength  of the above authorities that the appellants contend that  when the  minor  plaintiff  died in January 1943,  the  suit  for partition  had abated, and that his mother had no  right  to continue the suit as his heir. Now, the ratio of the decision in Chelimi Chetty v. Subbamma (1)-and  it  is  this decision that was  followed  in  Lalta Prasad’s  Case  (2  ), Hari Singh v. Pritam  Singh  (3)  and Chhotabhai v. Dadabhai (4)-is that the power to bring  about a  division between a minor and his coparceners  rests  only with  the court and not with any other person, and that,  in our  judgment, is clearly erroneous.  When a  court  decides that  a  suit for partition is beneficial to the  minor,  it does not itself bring about a division in status.  The court is  not  in  the position of a  super-guardian  of  a  minor expressing  on his behalf all intention to  become  divided.

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That intention is, in fact, expressed by some other  person, and  the  function which the court exercises  is  merely  to decide  whether  that  other person has acted  in  the  best interests  of  the  minor in expressing on  his  behalf  ail intention  to  become divided.  The position will  be  clear when  regard  is  had to what takes place when  there  is  a partition outside court.  In such a partition, when a branch consisting  of  a father and his minor son  becomes  divided from the others, the father acts on behalf of the minor  son as  well;  and the result of the partition is  to  effect  a severance  in status between the father and his  minor  son, oil  the one hand and the other coparceners, on  the  other. In that case, the intention of the minor to become separated from  the  coparceners  other  than  his  father  is  really expressed  on his behalf by his father.  But it  may  happen that  there  is a division between the father  and  his  own minor  son,  and in that case, the minor would  normally  be represented  by  his mother or some other  relation,  and  a partition  so entered into has been recognised to  be  valid and  effective  to bring about a severance in  status.   The minor has no doubt the right to have the partition set aside if  it is shown to have been prejudicial to him but if  that is not established, the partition (1)  (1917) I.L.R. 41 Mad. 442. (3)  A.I.R. 1936 Lah. 504. (2)  (1920) I.L.R. 42 All. 461. (4)  A.I.R. 1935 BOM. 54. 160 1260 is  binding on him.  Vide Balkishen Das v. Ram  Narain  Sahu (1).  And even when the partition is set aside on the ground that  it  is  unfair, the result will be not  to  annul  the division  in status created by the partition but to  entitle the  minor  to  a re-allotment of  the  properties.   It  is immaterial that the minor was represented in the transaction not  by a legal guardian but by a relation.  It is true,  as held in Gharib- Ul-Lah v. Khalak Singh (2) that no  guardian can   be  appointed  with  reference  to   the   coparcenary properties  of a minor member in a joint family, because  it is the karta that has under the law the right of  management in  respect of them and the right to represent the minor  in transactions  relating to them.  But that is only  when  the family  is  joint, and so where there is disruption  of  the joint  status,  there can be no question of the right  of  a karta  of  a joint family as such to act on  behalf  of  the minor,  and on the authorities, a partition entered into  on his behalf by a person other than his father or mother  will be valid, provided that person acts in the interests of  and for the benefit of the minor. If,  under the law, it is competent to a person  other  than the  father or mother of a minor to act on his  behalf,  and enter  into a partition out of court so as to bind  him,  is there  any  reason why that person should not  be  competent when he finds that the interests of the minor would best  be served by a division and that the adult coparceners are  not willing  to  effect  a partition, to file a  suit  for  that purpose  on behalf of the minor, and why if the court  finds that the action is beneficial to the minor, the  institution of  the, suit should not be held to be a proper  declaration on  behalf of the minor to become divided so as to  cause  a severance in status?  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

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minor;  and a suit instituted on his behalf if found  to  be beneficial,  must  be  held to bring  about  a  division  in status.  That (1) (1903) L.R. 30 I.A. 139. : (2) (1903) L.R. 30 I.A. 165. 1261 was  the view taken in a Full Bench decision of  the  Madras High  Court  in  Rangasayi. v.  Nagarathnamma  (1),  wherein Ramesam J. stated the position thus: " These instances show that the object of the issue  whether the  suit  was  for the benefit of the minor  is  really  to remove the obstacle to the passing of the decree.  It is  no objection to the maintainability of the suit. In my  opinion therefore  in all such cases the severance is effected  from the date of the suit conditional on the court being able  to find  that  the suit when filed was for the benefit  of  the minor." The  same view has been taken in Ramsing v. Fakira  (2)  and Mandliprasad  v. Ramcharanlal (3), and we agree  with  these decisions. On the conclusion reached above that it is the action of the person  acting  on  behalf of a minor that  brings  about  a division  in  status, it is necessary to  examine  what  the nature of the jurisdiction is which the courts exercise when they decide whether a suit is for the benefit of a minor  or not.   Now,  the  theory is that  the  Sovereign  as  parens patriae has the power, and is indeed under a duty to protect the  interests of minors, and that function has devolved  on the  courts.  In the discharge of that function,  therefore, they  have the power to control all proceedings before  them wherein  minors are concerned.  They can appoint  their  own officers to protect their interests, and stay proceedings if they  consider that they are vexatious.  In Halsbury’s  Laws of England, 3rd Edn., Vol.  XXI, p.     216,  para. 478,  it is stated as follows: "  Infants have always been treated as specially  under  the protection of the Sovereign, who, as parens patriae, had the charge   of  the  persons  not  capable  of  looking   after themselves.   This  jurisdiction over infants  was  formerly delegated  to and exercised by the Lord Chancellor;  through him it passed to the Court of Chancery, and is now vested in the  Chancery Division of the High Court of Justice.  It  is independent  of  the  question whether the  infant  has  any property or not." (1)  (1933) I.T.R. 57 Mad. 95. (2) I.L.R. [1939] Bom. 256. (3) I.L.R. [1947] Nag. 848. 1262 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.

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It remains to consider one other argument advanced on behalf of  the appellants.  It was urged that the cause  of  action for a suit for partition by a minor was one personal to him, and that on his death before hearing, the suit must abate on the  principle  of the maxim, actio personalis  moritur  cum persona.   But  that  maxim has application  only  when  the action  is  one for damages for a personal wrong, and  as  a suit  for  partition  is a suit for property,  the  rule  in question has no application to it.  That was the view  taken in  Rangasayi  v. Nagarathnamma (1) at pp.  137-138  and  in Mandliprasad  v. Ramcharanlal (2) at p. 871, and we  are  in agreement with it. All  the  contentions urged in support of  the  appeal  have failed, and the appeal is accordingly dismissed with costs. The  amounts  paid by the appellants to the  respondents  in pursuance  of the order of this Court dated March  7,  1958, will  be taken into account in adjusting the rights  of  the parties under this decree. (1) (1933) I.L.R. 57 Mad. 95. Appeal dismissed. (2)  I.L.R. [1947] Nag. 848. 1263