Kakumanu Peda Subbayya and Another v. Kakumanu Akkamma and Another

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 326 of 1955. September 4. Ped<1;icbb11;ya A k/<1Htl1lll1 V n1/:alarao1a Ai)·ar _f. [1959) Appeal by special leil\'e from the• judgment and decree dated April IO, i95:1, of the :lladras High Court in Second Appeal No. 18lii of 1949, arising out of the judgmeut and decree dated ,January 28, llJ49, of the Court of Subordinate .Juuge, Bapatla, in A. S. Xo. 188 of 1g47, against the judgment and decree •dated December 23, llJ46, of the District :llunsif, Ongole, iu 0. S. Ko. 139 of 1946. ill. C. Setali-ad, Attorney-General for India and R. Grrnapathy Aiyar, for the appellants. A. V. Visu:anatha Sastri, M. R. Rangaswanii Aiyangar, 1'. S. Venkatararnan and K. R. Clwu.dhury, for the respondents. 1958. September 4.

The .Judgment of the Co11rt. was delivered by VF.::\KA'l'ARA~IA AIYAR J.-;A'his appeal ari.qcs out of a suit for partition of joint family properties irn,tituted on April 2, 1942, in the Court. of the District l\[unsif, Ongole, on behalf of one Kakum~nu Haman11a, a minor of the age of about 2t years by his maternal • grandfather, Rangayya, as his next friend. The first defendant is his father .• The second and third <lefo11- dants arc the sons of the tirst clefenclant bv his cleceased first wif<;. 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 bv the fourth defendant. Ln tLe plaint., three grouncb were put fonrnrd as to 1 why the minor plaintiff should have partiti<in l (1) It was said th:tt the mother of the plaintiff was ill-treated, ancl there was neglect to maintain her n.nd hei· children.

Both the District lllunsif and the Subordi- 1uttB ,Judge on appeal, held that this had not been established, and no further notice need be taken of it. (2) It wits then said that there had been a sale of the family properties to one Akkul Venkatasubba. RL><l<li for Hs. 2,300, that there was no necessity for that sale, ancl tbat its object was only to injure the plaintiff. That sale is dated )fay 9, 1939. (3) Lastly, it w1~s • alleged that item 2 had been purchased Oil June 1, . 1938, and item B on J u~e 14, 1939, witH.~ joint family S.C.R. funds, but tha! 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. Iu 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. Some- ;. time in January/ 1943, the minor plaintiff died, and his mother who was the fourth defendant was recorde<J 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 re-hearing, it was proved that tJ:ie first plaintiff was born on December 26, 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 11 m the names of the second and third defendants having been anterior to the birth of the minor plaintiff, no cause of , action for partition could be founded thereon. The i 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 m~ed 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 lf belonged to the joint family, and that there were no debts owing by 't.

But he also agreed with S him~hat as the sale and purchases i,n question were prior to the birth of the minor plaintiff, the suit tor Pedasubbayya Akka111ma Venkatarama Aiyar ]. ll959] part.it.ion based thereon was not mafntainable. He I'td•subbayya accordingly dismissed tile appeal. The second plaintiff took the matter in second 11 ppenl to the High Court of l\Iadras, and tlmt was heard by Satyanaraya11a Rao J. who held that as the defendants had falsely claimed Venkat<nama that i'lems 2 and 11 were the separate propert1es of Akkamma .ii,rnr 1· the second and third dcfr.ndants, 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 lea Ye b granted by this Court under Art. 136.t The learned Att-0rney-General who.appeared fort he appellants ad,·irnced two contentions in support of the appeal:

(I) that there was a concurrent finding !iy both the courts below that the suit was not instituted for the benefit of the minor, ancl that the High Court had no power to reverse it in second appeal; and (2) that, in 1iny event, as tho minor plaintiff had died before the suit was heard and before the court could decide whether the institution of the suit was for Ii.is benefit, the action abated and could not he continued by his mot.her as his leg'\! representative. On the first question, the contention of the appe1- . I hnts is that it is a pure question of fact whetherfthe institution tJf 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.

Hut it must he obsen·ed that the finding of the Subordinate Judge was only that as the impugned sale and purchases were made b<•forc the minor plaintiff was horn, 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 benefjt that 8 there should bo a partition. It/is no doubt true that as the plaintiff was not born on the date of those transactions, tht. defendants could not ha,·e entered into them with a view to ii1jure him, though even as "to this it sh~uld . be noted that in 111ay and .June, S.C.R. 1939 when the1 transactions were concluded, the first plaintiff was in the womb, ~d 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 trans- · actions in question were entered into, that dc1es not conclude the matter. The real point for decision is whether the defendants were acting adversely to the Pedasubbrtyya Akkamnta Ve11katara1na q minor, and if, after he was born/ they used documents which might have been innocent when they came into 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 1 to 3 combined to deny his title to items 2 and 11, and at the trial, they adduced evidence in support of their contention that they were the separate properties of defendants 2 and 3:

Jiiven in the €ourt of Appeal, the defendants persisted in pressing this claim, and further maintained that the joint family had debts, and both the courts belowf had /O concurrently held against th:im 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 wouid 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 snit 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 question 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 ,pontention on behalf of the appella1its is that while in the case of an adult coparcener a clear ancI Aiyar ]. I't:dfl,Clff;fJaJ)'tl ;Jkka111Jna Ve11kata,·am!J AiJ•or J. Slll'RE:11E COURT REPORTS [ 1!!59]

111Htmbiguous exprcs~ion on his p1trt of a'1 intention to bcrome divided will han1 t.hc dfoct of bringing about a division in stat us an<l the filing of a suit for partition wonlcl amount to such tin expression, that rult> can ha Ye no application in the case of a minor, as under the la\f he is incapttbleofa volition of his own. ·11 i8 ~once<led by the appellants that a suit for partition could be entertained on behalf of 11 minor plaintiff, and decreed if the court decides that il is in the interest~ of the minor. But it is said that in such a case, the court exercises on behalf of the minor a Yo]ition of which he is incapable, that it is not until that volition is exercised by the court that there ean be a division in status, and that, therefore, when a minor plaintiff clies before the court adjudicates on the question of benefit to hill'I, he dies an undivided coparcc·ner and his interest. survi\'eH t<J the other coparceners and does not dcvoln~ on his heirs bv inheritance.

The contention of the respondents, o~ the other hand, is that a suit for part.i. tion instituted on behalf of a minor co1ml'Cc>1wr stands on the same footing r.s a similar suiL filed by an adult copnrcener, with this difference that if the snit is held hv the court not to have been instituted for the benefit. oi· the minor it is liable to 0 be dismissed, and no divi8io1i in status can be held t-0 result from such an action. l n other words; it is argued that a suit for partition on bohalf of <t minor effects a se,·erance in status from the date of the suit, conditional on the court holding that its institution is for t.hc benefit of the minor. The question thus raised is one of con.sidera.blc importance, on which there has been divergence of judicial opinion. While the decisions in Chelimi.Chr.tty v. Snbbamma (' ), Lalta Prasad ,., Sri .il1ahadeoji Birajman Tcm.ple (') and Hari Singh v. Pritam Singh('), hold that when a suit for partition is filed on behalf of a minor plaintiff there is a division in status only if and when the Court decides that it is for his ~nefit and passes a decree, the decisions in Rangasayi v. Nagarathnamma ('), Ramsing v. Fakira Cl and ilfandlipr1JJJa.d v. Rl'lmcharanlal ("), lay down that when such a i,1)

(1917) I.L.R. 41 ~fad. 442 . 13) A.I.R. 1936 Lah. 504. (5) I.LR. (1939] tlom. 256. (2) (1<J20) 1-L.H.. 42 All• 4fn. (4) (1933) I.LR 57 'lad. 95. (6) l.L.R. [1947) Nag. 848 . j S.C.R. suit is decreed, the severance in status relates back to the date of the institution of tli.e suit. While Chelimi Chatty 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. Nag,arathnamnia (') and Mandliprasad v. Ramcharanlal(') that such a suit does not abate by reason of the death of the minor befoi;e trial, and that it is open to his legal represei1tatives 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 v~ws 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. Jaw, 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 111aintained out of those prnperties suitably to the status of the family so long as the family is joint and to have a partition and separate posse~sion 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 finalJ.y settled by the decision of the Privy Council in Girja Bai v. Sadashiv Dhundiraj ('), wherein it was held, on a review of the original texts and adopting the observation to that effect in Suraj Narain v. Iqbal Narain('), 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 and unambiguously, that the filing of a suit for partition is a clt'ar expression of such an intention, and that, 1n consequen1Je, (1)

(191)) LL.R 41 Mad. 442. (2) (1933) I.L.R 57 Mad. 95· (3) LLR [1947] Nag. 848. (4) (1916) LR.i3 I.A. 151. (5) (1912) L.R. 4a I.A. 40, 45. Pedasubbayya Akkain111a Venkatarama Aiyar j. 195~ Ft11kat11ra111a Aiy"'" ]. [1959] thorc is a ~e,·erance in Rtatus '"hfln the act.ion for p1trtition iH filed. Follo~ing this view to its logical conclusion, it was held by the Privy Council in Kawai Nain v. Prabhu Lal (1), that C\•en if such a suit were to be pismisscd, that would not affect the division in status which must be held to havo taken place, ''·hen the action was instituted. Viscount Haldane observed : "A decreo may be necessary for \'orking out the result of the severance and for allotting dofinite shares, bnt the status of the plaintiff as separate in estate i8 brought about by his assertion of his right to separat-0, whether he obtains a eonsequent.ia.l judgment or not."

The law being thus settled as regards copareeners who are .mi juris, the question is whether it operates differcnt.ly when the eoparcencr who institutes the suit for p1trtition is a minor acting through his next friond. ~ow, the Hindu law makes no di;tinction between a major coparcencr and a minor coparcencr, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be sttitably main. tained out of the family properties, and at partitioi1, his rights are precisely thoHe of a major. Consistently with this position, it lrn.s,long been srttlcd thnt a suit for pnrtition on behalf of a minor cop:i.rccner is main- 1 ftina.ble in the same manner as one filed bv an adult coparcencr, 'with this difference that when tl;c plaintiff is a minor the court has to be satisfied that the action has been instituted for his benefit. Yidc the authorities cited in Rangasayi v. Nartarathnainma (')at p. 137.

The course of the law may be said, thus far, to havo had ~mouth run. But then came tho decision in Girja. Bai v. Sadashiv Dhundiraj (') which finally establish. ed that a division in status takes ph;ce when there is an un<im higuous declaration hy 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 lji.r this principle could he itpplied, when the suit for partition was institt!ted not by a major but by a minor acting thl'ough his next friend. The view was expressed that {1) (1917f I..R. HI.A. 159. {>) {1933) l.L.R. 57 ~la.\, "5 <3) {1916) I..ll. 13 I.A. 151 S.C.R. as the minor 1had, under the law, no volition of his own, the rule .in question had no application to him. lt 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 lalid down in a series of decisions and ml:!st, 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 he would have died an undivided coparcener of hi$ family and his heirs could not continue the action. In Chelimi Chetty v. Subba1nma (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 contViued by his legal representatives. It was h~ld 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 pause 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 of certain facts which would justify any member to ask for partition, but i1' is the exerci.se of the option which the law lodges in a member of the joint fam!ly to say whether he shall continue to remain '· . \1) (1917) J.L.R 41 Mad. 442. Pedasubbayya Akkan1ma Venkatarama Aiyar ]. I 1ed,1sulii-1)'ya V enlt.1/arrimt1 Ai)'(IY j.

St:PRE:IIE COURT REPORTS [1959] joint or whether he 8hall ask for a dhision. In the case of an adult he has i10t got to gi\'C any reasons why he asks for partition bu't h<tS simply to say that he wants pai·tition, and the comL is hound to give him a decree. In the ease of a minor t.he law gi\•cs t.he court.'thc power to say whet.her there should• lw a diYision or not, and we think that. it will lead to considernblc complications and difficulties if wc are to say that other persons also have got the r! iscretion to create a division in the family, purporting to act on behalf of a minor." This deeision was cited with approva.l in Lalla Prasad 1•. Sri Mahadeoji Birajman Temple('), wherein it \\'a8 ohHen·ecl: "

The effect, therefore, we think, of an act.jµn brought by a minor through his next friend is not to create any alt.erntion of status of the family, because a minor cannot demand as of right a separation ; it is only granted in the <liscret.ion of t.he eourt when, in the cii'cumstances, the action appei\l'S to ho for the benefit of the minor. Sec Chelimi Chetty 'v, • Subbamina (')." In Jlari Singh v. Pritam Singii ('), a suit for partition instituted on behalt' of a minor W<\H decreed, the court finding that it was for the benefitof the minor. The qnestfon then aro8c a> to the period for which the karta coulcl he made liable to account.. It was hdd, following the <lecisionA in Cheli mi Chetly v. Subbamma (') all<! Lali<i Prasad v. Sri Mahadeoji Bimjman 'l'emple ('), that as the severance in status t<iok place only on tho date of the dc<:isioif and not when the ~uit W<>S ins ti tu tod, the liability to acconnt arose onlv from the date of the decree ai{d not from t.he date" of t.he snit.

It may be mentioned that in Chhotabhai v. Dadablwi (') Divat.ia ,J. quoted the deciHion in Cheli mi Ch~lty v. Subbmnma (')with appro- \·al, bnt :t:i pointed out. in Ramsing v. Pakira (") and U,\' the learned judge him.-<elf in Bamnumyrlwln v. Shankargowfa ("), t.he point now under comideration did not really• arise for decision in that case, and tho (1) {19io) l.L.lt .f2 AIL 461. (2) {1917) LL.H.11 fo.taci. 44.?. . {3) A.I.H. 1936 Lah. 504. (.1i A.l.R. t935 Hom-! 54. (5) l.L.H. [19l9J Jlom. 256. (6) A.l.R '9H Som. 67 . S.C.R. observations Jere 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. NO'W, the ratio of the decision in Chelimi Ch'etty v. Subbamma (1 )-and it is this decision that was followed in Lalta Prasad's Case('), Hari Singh v. Pritam Singh (') and Chhotabhai v. Dadabhai (')-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 al.out a division in status. The court is not in the position of a super-guardian of a minor expressing on his behalf an intention to become divided. 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 an intention to become divided. The position will be clear when regard is had ~o 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, on the one hand and the other coparceners, on the other.

In that case, the intention of the minor to become separated from the coparcE:ners 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 ;artition 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 ha\fe been ,prejudicial to him ; but if that is not established, the partition , (1) (191j) I.L.R. 41 ~lad. 442. (2) (1920) I.L.R. 42 Alt 461. (3) A.I.R. 1936 Lah. 504, , (4) A.I.R'. 193.l'Bom . .54· Pedasubbayya Akka1nma Venkutararna Aiyar ]. Pelasubbayya Ahk<H11nlU Venkalarama Aiyar ]. [1959) is binding on him. Vide Balkishen Das t-. Ram Narain Sahu (').

And even wQen 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 guarc.l.ian but by a relation. It is true, as held in Gluirib-Ul-Lah v. Khalak Singh(') that no guardian can be appointed with reference t-0 the coparcemtry properties of a minor member in a joint family, beeause 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 J>f 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 tho authorities, a partition entered into on his behalf by a person other than his father or mother will be valid, pro,·idcd that person acts in the interests of and for the benefit of t11e minor.

If; under the law, it is, competent to a person other than the father or mother of a minor to aet on Iris behalf, <ind enter int-0 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 lm served by a cJ.ivision and that the adult coparcener:i are not willing to effect a partition, to file a suit for that purpo8e on behalf of tho minor, and why if the court firnis that the action is beneficial to the minor, the institutio11 of tlw suit should not be held to be a proper declaration on behalf of the minor t<> become divided so as to cause a severance in status?

In our juc.l.gmcnt, when the law permits a person interested in a minor to act on his behalf, any declaration t-0 become divided made hy him on behalf of the minor must be held tc> re~ult in severance in status, subject only to the court cJ.cciding whether if is i>encficial to the minor; and a suit , instituted on his behalf if found to be beneficial, must bo helcJ. to brini: about a divisiori in statt1s. That (1) (1903) L.R. 30 I.A. 139. (z) (1903) L.R. 30 I.A. 165 . S.C.R. SUPREME,COURT REPORTS wa.s 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 (') and lllandliprasad v. Ramcharanlal ('), and we agree w.ith 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 fdr 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 1'efore 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, p.tra. 478, it is stated as follows: "Jnfants 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 iofant has a,ny property or not." (t) (193j) I.L.R. 57~!ad. 95. (2) I.L.R. [1939] Born. 256. (3) LL.R. [194.7.J Nag. 848'. Pedasubbayya Akkamma V enkatarama Aiyar ]. Pulasitbbayya Akkamma v tnkaftJrtHIUI Aiyrtr }. SUPRE:'IIE COURT REPORTS [1959]

It is in the exercise of this jurisdicti~ that courts require to be satisfied th.-it tho next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the court decides that t.he suit has been instituted for the benefit of the miuor and d~rccR partition, it docs so not by virtue of• any rule, special or peculiar t-0 Hin du law hut in the exorcise of a jurisdiction which is inherent in it and which extends over all minors. The true cflcct. 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 <lid not possess bPfore 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 seYerance in status i8 the action ~f the next friend in instituting the suit, the decree of the court merely rendering it effective by deciding that what the next frir.nd has done is for the benefit of the minor.

It remains to consider one other arg111u.ent advanced on behalf of the appellants. It was urged that tll.e cause of action for a suit for partition by a minor mis one personal to him, and that on his death before hearing, the suit must dbate on the principle of tho maxim, actio personalis moritur cum pr.rsrma. But that maxim has ~pplication 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 tho view taken in Ranyasayi v. Nagarathnamma (') at pp. 137-138 and in Mandl1'.pra.~ad v. Ramcharanlal (') at p. 871, and we are in agr1,'i)ment with it. All the contentions urged in support of the appeal have failed, and the appeal is accordingly dismiHsed with costs. Tho amounts paid by the appellants to the respondents in pursuance of the order of this Court elated l\Iarch 7, 1958, will be taken into account in adjusting the rights of the parties under this decree .

Appeal dismi.~sed. {1) {1933) l.L.lj.. 57 )lad. 95 . (2) I.L.R. [1947] Nag. 848.