ARYAN KAMAL WADHWA V. BIHARILAL WADHA (HUF) & OTHERS LNIND 2008 BOM 969 by Ritu Raj

Author: Ritu Raj

FACTS

1. The suit was filed by a minor through his next friend (his mother) against his Grandfather (Defendant No. 2), his father (Defendant No. 3) and his uncle (Defendant No. 4) for Partition of the HUF properties by metes and bounds and by delivery of the Plaintiff’s share to him.
2. The existence of HUF and coparcenary, as well as minor’s position in the HUF was not denied by the Defendants.
3. The HUF properties were acquired by Defendant No. 2 who started filing Income Tax returns under a HUF.
4. The marriage between the minor’s mother (next friend and Plaintiff) and the minor’s father (Defendant No. 2) barely existed and the mother wanted to secure the rights of the minor coparcener in the HUF.
5. The Plaintiff has also filed for maintenance on behalf of the minor, against the father but not out of the HUF properties. An interim application u/s 24 of the Hindu Marriage Act was filed by her.
6. The Defendants argued that the Suit for Partition is not bonafide and has been filed by the mother to extract money to her own benefit and not for the minor.
7. They further contended that in the case Araji N. Kulkarni vs. Ramchandra R. Kulkarni, ILR 16 Bombay 29 and Jivabhai Vadilal vs. Vadilal Sakarchand & C., 1905 Vol.VII BLR 232, it was held that a minor is not entitled to sue for Partition during minority if the father has not assented to giving him separate possession of his share.
8. The judgment in the case of Bammangouda Shankargouda Patil & anr. Shankargouda Rangangouda Patil, AIR 1944 Bombay 67 considered the application of a minor to partition the HUF. The only requirement was to see that the partition is for the benefit of the minor. It is observed that the property which would be in the hands of the adult coparceners in the family should not be divided and handed over to a minor at the instance of unscrupulous persons when the minor share if partitioned, would be in danger of being applied to purposes adverse to the minor’s interest.
9. The Defendants must show that the application on behalf of the minor made by the mother in this case is vitiated by unscrupulousness such as to endanger the minor’s share for an adverse interest.
10. The principle of Hindu law which governs separation of the estate is the same for minors as well as adults.
11. The Plaintiff contended that in Bishundeo Narain & anr. vs. Seogeni Rai & ors., AIR (88) 1951 S.C. 280 and Kakumanu Pedasubhayya & anr. vs. Kakumanu Akkamma & anr., AIR 1958 SC 1042 [LNIND 1958 SC 98], it was held that a minor can sue for partition and obtain a decree if his next friend can show that it is for the minor’s benefit and that there is no distinction between a major and minor coparcener in HUF.
12. If the Court is satisfied that the minor suing through his next friend has sued for the benefit of the minor and in the best interest of the minor, the right of partition implicit in a coparcener can be claimed by a minor coparcener also. In the case of Kakumanu, a minor of two and a half years sued through his maternal grandfather as his next friend. It was shown that the mother of the minor was ill-treated and neglected. The family was in good circumstances.
13. It was held in that case that 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 consonant with the status of the family whilst the family is joint and to have a partition and separate possession of his share should a coparcener make a demand for it. The division takes place when the coparcener expresses his intention to become separate i.e. by filing of the Suit.

ISSUES

Whether a minor can demand Partition and share from HUF, through a next friend.

HOLDING

It was held that in Hindu Law there is no distinction between a major coparcener and the minor coparcener so far as their rights to joint properties are concerned. A minor is equally entitled as a major to be maintained out of the family properties and his rights to partition are “precisely those of a major.” The minor can sue for partition or be maintained out of HUF whilst it remains joint. The option exercised by the Plaintiff and the bona fide offer made to have his share deposited in the Court would not entitle the Plaintiff to be further maintained out of the HUF funds. No malafide interest on part of the next friend. His claim for maintenance gets crystallized in the 1/6th share. This share is required to be determined.

JUDGEMENT

1. In this case, the marriage between the next friend of the minor, who is his mother and Defendant No.3, who is his father, has been sought to be dissolved on account of their religious preferences and their actions thereupon.
2. The child has remained with the mother almost since his birth. There is nothing to show or suggest that the mother would not act in the interest of the child. The very offer on behalf of the child to deposit his share in Court and to invest until the child becomes major shows the bonafide.
3. The allegation that she seeks to only extract monies is not substantiated at all, even prima facie. The minor is required to be sued through his next friend. In the absence of the father, which absence is brought about by the separation of the parties to the marriage, the mother is the legal guardian of the Plaintiff as held in the case of Githa Hariharan vs. Reserve Bank of India, AIR 1999 S.C. 1149.
4. The only test laid down in the case of Kakumanu is whether it would be in the interest of the minor and beneficial for him to bring about a difference in the status of a minor by the partition of the family property. A mother acting on behalf of the son is to be taken to be acting in the interest of her own child. The parents of the minor are yet young in age.
5. There is every likelihood that the father of the minor would remarry once his present marriage is dissolved. There is a similar likelihood of he begetting another child or children.
6. The Plaintiff as his first child must not be cared for or given his due share. Under the circumstances, the mother maintaining an action to secure his share, before it is thus depleted, can only be seen to be acting on his behalf and for his interest and benefit.
7. The Defendants must show the absence of such interest or an act adverse to such interest. The mere fact that the mother sues on behalf of the minor does not show any act against the interest of the minor or even in her own interest.
8. As observed in the case of Kakumanu a minor has to sue through the next friend and the expression by such a person that the Suit is instituted for the benefit of the minor has to be accepted by the Court in the absence of any factor showing otherwise.
9. An observation was made that the intention is 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 interest of the minor in expressing on his behalf an intention to become divided itself shows the limited role which the Court is required to play.
10. This has to be considered alongside the fact that there is no dispute between the parties with regard to the coparceners in the HUF or factum of the HUF There is a specific admission that the Plaintiff is a coparcener and even an offer to take custody of the Plaintiff to live jointly with the other coparceners is made to Court.
11. The Suit is for partition and the very Suit denotes intention of the Plaintiff to sever his status as a coparcener in the HUF. It is, therefore, of no use to say that it is not the intention of the minor but that of his mother. It has to be so. If it is not shown to be against the benefit of the minor, partition has to be granted.
12. Further in the case of Puttorangamma vs. Rangamma, AIR 1968 SC 1018 [LNIND 1968 SC 36] it is held that a member of HUF can bring about separation in status by a declaration of such an intention to separate from the family and enjoy his share in severalty even without filing a Suit. In view of the aforesaid two judgments of the Supreme Court, the Bombay High Court in the case of Narayan Ramchandra Katkar & ors. vs. Arjun Bhimrao Gore & ors., AIR 1986 Bombay 122 [LNIND 1985 BOM 119] held that a minor can sue for partition. The decision in the case of Araji N. Kulkarni has been held to be not good law. In that case the question of bar of limitation also had to be considered in view of certain major children in the HUF but with which this case is not concerned.

CONCLUSION

In my opinion, the court rightly held that a minor can sue through his next friend. The test laid down for ensuring that such next friend is not taking advantage of the minor could lead to variation as the burden of proof is solely on the Defendant and not on the Plaintiff, the mere assumption that the Plaintiff’s filing of the suit on behalf of the minor is not enough.

The allowance of next friend is required in order to ensure that the minor’s rights are secured and no losses are incurred to him due to his minority. However, a more strict test must be laid down to further ensure the same. If the Defendants are unable in proving malafide intention, the minor must not suffer at the instance of the same. There are various factors to be considered, such as family relations between the members, the reason for the demand of partition and separate status, the relationship of the next friend with the minor, that is all taken into consideration before the allowance of such suit.