Kakumanu Pedasubhayya v. Kakumanu Akkamma, AIR 1968 SC 1042

Introduction

• This encircles the concept that the partition would be in the interests of the minor and not affecting a partition would adversely affect his interests.
• This case deals with the situation where if the minor dies during the pendency of the suit, whether the suit would be abated or the same can be continued by legal representative.

Facts

• In this case, the suit was filed for the partition on the behalf of the minor who died during the pendency by his maternal grandfather as the next friend of minor.
• The defendants were the father and his sons from first wife who were continuously dissipating the ancestral estate by selling land and by incurring large-scale debts without any legal necessity.
• The family properties were sold, and fresh ones purchased in the name of adult coparceners.
• The petition was admitted but during the pending of the suit minor died.

Issues Involved

• Whether the minor died as undivided member of the family?
• Whether the suit be abated on his death?

Observations

• The Supreme Court observed that there is no distinction between the rights of a minor and a major coparcener as far as the coparcenary property is concerned but the court acts as parens partiae in order to protect the rights of the minor.
• The Court further observed that the partition must be in the interest of the minor even if it was filed by his next friend.
• The Court further said that minor would be deemed to be a separate member from the date when the petition was presented in the Court.
• In Kawal Nain v. Prabhu Lal (1917) the Bombay High Court held 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.
• The Court said the only difference between the minor and major coparcener is that it was conditional upon the Court coming to the conclusion that it will further the interest of the minor.
• The Court said that minor’s severance from the joint family took place on the date of filing of the partition suit and at the time of his death, he was a separate member.

Conclusion

• The Court held that the suit can be continued by the legal representative of minor and the minor was the divided member at the time of his death.