Home case analysis Kakumanu Peda Subbayya and Anr. vs. Kakumanu Akkamma and Anr. (1958)

Kakumanu Peda Subbayya and Anr. vs. Kakumanu Akkamma and Anr. (1958)

August 23, 2024

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This article is written by Gargi Lad. The article provides a detailed analysis of the landmark judgement of Kakamanu Peda Subbayya and Anr. vs. Kakamanu Akkamma and Anr. (1958). It also further elaborates on the facts of the case, issues and arguments by both the parties. Subsequently, it delves into the history of the Hindu Undivided Family and the concept of a minor coparcener and his position and the right to seek partition. The article also talks about the rationale behind the judgement and the aftermath of the case by looking into cases which used this landmark judgement as a reference.

Table of Contents

Introduction

Family law is a subjective approach to law and can be misinterpreted to levels unknown. Generally a person relies on written laws or tends to be very sentimental when there is a property dispute between relatives or if any issue relating to family law has to be solved. Here is where the misinterpretation of a law or case begins.

The present case is about a minor’s right to ask for partition in his ancestral property, regardless of being a minor. It delves into the aspects of who can file a suit for partition of such ancestral property on behalf of the minor, and whether the interest of the minor is an essential part that is taken into consideration by the court when decreeing a suit for partition of ancestral property. This case is a case of clear misinterpretation by the lower courts, they had different opinions and certain facts were misunderstood and misinterpreted by them which led to varied judgements which were challenged every time. The courts only looked into surface-level issues and neglected the factual parts and rights of the minors.

Details of the case

Name of the case: Kakumanu Peda Subbayya and Anr. vs. Kakumanu Akkamma and Anr.

Citation: AIR 1958 SC 1042

Case type: Appeal

Date of Judgement: 04/09/1958

Constitutional Bench: Justice P. B Gajendragadkar, Justice A.K Sarkar

Court: Supreme Court of India

Background of the case

The minor, aged 2.5 years and his mother lived with his father in a property. The father was married prior to this and has two sons from the previous marriage. The father and the two sons from an earlier marriage were attempting to sell the joint family property in which the minor son also had some share. After selling off the joint family property they intended to buy a separate property that would belong to them individually, hence the aim was to deprive the minor of his share in the joint family property.

Seeing this, the maternal grandfather of the minor stepped in and filed a suit in the interest of the minor, which was allowed by the court. Meanwhile, the minor passed away, and the mother was then recognised as the minor’s legal representative by the court.

Facts of the case

A suit was filed in the interest of the minor, who seeked partition of the coparcenary property. The minor had died during the pendency of the matter. Initially, the suit was decreed but the subordinate judge for certain issues had remanded the case. On the basis of the evidence presented, the district munsif had held that buying the items with separate funds was not proved and hence they belonged to the joint family and the family had no debts. But he was also of the opinion that this according to him has not furnished any cause of action for the partition and hence he had dismissed the suit.

Further, unsatisfied with the decision they filed for an appeal challenging the decision. The lower court was of the opinion that there was no cause of action based on the findings of this case for a partition of the property and subsequently they dismissed the suit. After this, an appeal was also filed before the subordinate judge of Bapatla who upheld the decision of the district munsif that there was no cause of action in the present case and the appeal was dismissed.

Further, another appeal was filed before the High Court of Madras where it was held that the claim made by the defendants that item 2 and 11 were separate properties of the defendants and not a part of the joint family, was false. Ultimately it was held that such an action had an impact on the interest of the minor and the suit for partition of the said property is valid and beneficial to the minor. On the basis of these findings, the court granted a preliminary decree of partition.

In this case, a final appeal was filed by the maternal grandfather on behalf of the minor Kakumanu Ramanna. This appeal had arisen out of all the unsatisfactory decisions given by the lower courts regarding the suit for partition for joint family property. The defendants in the present case were his father, sons of the father and his deceased first wife.

Issues raised

Whether the suit was instituted for the benefit of the minor?
Whether the minor was an undivided member of the family and a coparcener in the property?
Whether filing of a suit by the next friend can affect a partition of the Joint Family Property?
Whether the suit abates upon the death of a minor coparcener or can the legal representatives of the minor continue the suit on his behalf?

Arguments of the parties

Appellants

There were three grounds that were presented in front of the judge, to show why a need for partition arose and why the minor should have the right to seek partition.

The first ground was that the mother of the plaintiff was not treated properly and proper care of her and her children was not taken by the father. The District Munsif and the Subordinate Judge who heard this case prior to Supreme Court, were of the opinion that the above-mentioned fact that the mother was not taken care of, was not established and hence no further arguments were to be made on this in the Supreme Court.

As for the second ground, it was argued that the family property was sold without giving any reason or intimidation or information to her, on the 9^th of May, 1939 to a third party called Akkul Venkatasubba Reddi for the value of Rs. 2300. The sale of the property was done to cause trouble, harass, and hurt the emotions of the plaintiff.

In the third argument, the plaintiff contested that certain items were purchased with joint family funds from a common pool of resources but the sale deed was only done in the name of the sons of the father and the deceased first wife, and not in the name of all members who made up the Hindu Undivided Family. The plaintiff argued that this was done with malicious intention with an aim to diminish the value of assets that the plaintiff owned and reduce the availability of funds to the plaintiff. The plaintiff also pointed out that the family was well off, had no debts and was in very good circumstances financially.

Respondents

The respondents disagreed with the allegations put forth by the appellants. They refuted that the items mentioned by the plaintiff were not purchased from the common resources of the joint family, but instead were bought from a separate fund that was maintained by the sons of the father and the deceased first wife. Hence the respondents claimed that the joint family had no right on those certain items, nor did they have any right to claim the money.

In reply to the allegation that the family was well off and had no existing debts, the respondent said that the family collectively had an outstanding debt of approximately around Rs. 2600, that was to be paid off.

Laws/concepts involved in Kakumanu Peda Subbayya and Anr. vs. Kakumanu Akkamma and Anr. (1958)

Section 3(f) of Hindu Succession Act,1956

This provision talks about the definition of an heir and aids in understanding who is an heir for devolution of coparcenary property. The provision defines an heir as any person, regardless of gender, having the right to succeed to a joint family property. The right comes from being a coparcener or relative of the deceased who died intestate.

Section 3(g) of Hindu Succession Act,1956

As per this provision, a person is said to die intestate if that person has not made any will or testament of his property. An individual can make a testament only of his personal property. A coparcenary property becomes an individual property only when there is partition of that property, after which it is treated just like an individual or personal property. The property then devolves by the rules of succession, if there is no testamentary disposition of the said property.

Section 6 of Hindu Succession Act,1956

Section 6 of the Hindu Succession Act, 1956 specifically deals with the devolution of interest in a Joint Family property governed by Mitakshara law.

Definition of partition as per Section 6 is that the word “partition” involves both, a partition that has taken place due to the decree of a court or effected by law, and also by a deed of partition that was duly registered under the Registrations Act, 1908.

Section 6(3) of the Hindu Succession Act, 1956

This provision clearly mentions that in a situation when a Hindu dies his interest in the property will be further devolved by intestate or testamentary succession. This Section also focuses on who all have the right to the property in case such partition takes place.

The laws that have been laid down under this Act state that daughters and sons are alloted equal shares. This was done after the Hindu Succession (Amendment) Act, 2005, as daughters are also considered to be coparceners. This provision further states that the surviving child of a predeceased son or a pre-deceased daughter will be allocated shares of such pre-deceased son or pre-deceased daughter. The same rules also apply to a child of a predeceased child of a predeceased son and child of a predeceased child of a predeceased daughter.

Explanation for Section 6(3): It is also to be noted that irrespective of whether a Hindu Mitakshara coparcener was entitled to claim partition of the family property or not, the interest of such coparcener will be deemed to be in the share of the joint family property in such a manner, that partition took place immediately before the death of the hindu coparcener.

Provisions of Section 6 of the Hindu Succession Act will not apply to any partition that took place before 20th December, 2004.

Partition

It is the division of joint family property in equal or priorly decided shares. The property is distributed among the coparceners who make up the joint family, it’s followed to provide each member a share of their ancestor’s property as a memory. Partition is a way through which a Hindu joint family comes to an end, only when the joint status of a joint family ends, it can be said that partition has taken place. Partition of joint family property can take place in two ways – either by severance of the joint status of a family or by division of property by metes and bounds or by both of them.

Essentials of effecting a valid partition

First is the intention to separate from the joint family, this intention shall be clear from the side of the coparcener.
Secondly, the intention to separate must be declared. The decision to separate shall be clear and unambiguous.
Third, the same shall be communicated to the Karta, the head of the family. Communicating the same to any coparcener would not count as communication, it’s immaterial to let every coparcener know but it’s necessary to inform the Karta. It’s the Kartas duty to inform all other coparceners, not the coparcener seeking partition.

Modes of effecting partition

A coparcener inherits a property when he is born, he can then ask for the property to be partitioned and get his exact share by metes and bounds. The right to ask for partition comes along with the right to property. He may ask for partition :

Partition by individual coparceners through unilateral declaration- when one coparcener decides he no longer wishes to be a part of the joint family, he may intimidate the Karta regarding the same.
Partition by agreement- the coparcener who wishes to seek partition may ask for the consent of all other coparceners, though consent is immaterial for seeking partition, if a certain number of coparceners agree there can be a partition by way of agreement.
Partition by conduct- if the coparcener leaves the house and continues to live a separate life, he ceases to be a part of the joint family. If prior to leaving he informs that he wishes to seek partition and his behaviour continues, it may be assumed that there has been intimidation given to the Karta regarding his wish to seek partition.
Partition by suits- Once a partition suit is instituted in the court, it is deemed to be a de facto partition.
Partition by notice- the coparcener who wishes to seek partition may give notice to the Karta that he wishes to seek partition. Once the notice is communicated to the Karta, the partition is communicated and effected.
Partition by will- if any coparcener, in his will writes down his wish to have a partition and communicates this will to every coparcener including the Karta. It is assumed that partition has taken place and was well communicated.

In the case of Ratnam Chettiar vs. SM Kuppuswami Chettiar (1975), the principle that was laid down was that if the minor coparcener, at any time feels that at that time the partition that took place was unjust or unfair then, after attaining the age they have the right to reopen the partition. This case was also referred to by the Supreme Court in the case of Sukhrani vs. Harishankar (1979).

Types of partition

Partitions can be divided into 2 types, de jure and de facto.

De facto partition

A partition is said to be de facto when the partition is in fact and not in real life. There is no legal recognition of this kind of partition. It takes place immediately when a coparcener communicates effectively to the Karta, the head of the coparcenary that he/she wishes to effect a partition. De facto partition starts on that very day that the communication is completed. It is recognised, however, that even after the de facto partition has begun, Karta cannot sell the entire joint family property as it no longer exists as a joint property. This is regardless of the communication made to other coparceners regarding the wish of one coparcener asking for partition.

De jure partition

A partition is said to be de Jure when the partition is in real life. There is legal recognition given to this kind of partition. It is said that the property is partitioned and it’s a de jure partition when the property is distributed in value to each and every coparcener, and partition has taken place by metes and bounds. De jure is when the partition actually takes place and the valuation of the property is done and every member gets his/her share.

Partition as a minor coparcener

Partition is a concept through which there is a division of a property into two or more parts. As per the Hindu law, a partition takes place when each coparcener gets an individual share in the property and the Hindu Joint Family Property is distributed amongst all coparceners. Every coparcener has a right to share in the property by birth. It is important to note that no partition can take place if there is only one coparcener. Partition of a personal property of an individual also can not take place. Once a partition takes place the status of a joint family is taken away, and the stature of a Hindu Undivided Family ceases to exist.

Role of court in partition of property

With regards to partition of property under the Hindu Law, the courts have a major role to play. They have to ensure that the partition that is taking place is done in a fair manner. The Mitakshara school of law governs the partition of property and according to this school of law a property can only be divided only after the consent of all members of the family. The courts can also intervene in a case, if required and can order partition.

Before dividing the property it is important that the courts analyse and determine the rights of all the parties that are involved in such partition. It is also important to determine the nature of the property that is to be divided.

Other factors including age and health of the people involved are also considered by the courts before arriving at a conclusion. Further courts also look as to what is the financial condition of each person and what contributions have been made for maintenance of such property. It is the responsibility of the courts to make sure that a minor child has not been denied his rights in the property and also that wishes of a deceased person are taken into consideration. After all these factors are taken into consideration, the courts arrive at a conclusion and such a decision or order that is given by the courts is further binding on all members of the family.

Relevant judgements referred to in Kakumanu Peda Subbayya and Anr. vs. Kakumanu Akkamma and Anr. (1958)

Before a few years it was considered that partition could take place only after all the coparceners had agreed to the same or if a decree was passed for partition. However in the case of Girja Bai vs. Sadashiv Dhundiraj (1916) the court had held that every coparcener of a joint family has the right to ask for partition at any point of time and it is not to be considered whether other coparceners have agreed to the same or not. The division of a coparcener can take place when he expresses his intention to separate unambiguously. It was considered that the institution of a suit by a coparcener is a way in which the courts can interpret his intention to separate. The question further arose whether such a rule could only be applied to a major coparcener or it also apply in a case where the suit has been instituted not by a minor but through his next friend. This question was answered in a series of judgements.

In the case of Chelimi Chetty vs. Subbamma (1917) the court dealt with the issue as to whether a suit that has been instituted on behalf of the minor plaintiff can still be continued on the death of the minor or not. The court was of the opinion that rules that are followed for the institution of a suit for partition of a joint property is not applicable to a suit which has been instituted on behalf of the minor and for the same reason, the legal representatives cannot continue the suit on behalf of the minor child. In case an adult asks for partition the court is bound to give the decree. However in the case of a minor child, the courts have been given the power to decide as to whether a decision takes place or not.

The above case of Chelimi Chetty vs. Subbamma (1917) was also cited in the case of Lalta Prasad vs. Sri Mahadeoji (1920) where the court held that any action that has been brought through a next friend should not lead to any kind of separation as courts have been vested with the power to decide in a case of minor.

After referring to these cases, the court also said that the power that has been given by the law to the courts to decide a suit for partition for a minor is just to check whether the person instituting the suit on behalf of the minor is acting in their best interest or not. The court in such cases is not acting as a super-guardian of the minor but as a supervisor to look upon if the next friend of the minor is acting in the best interest of the minor or not.

Further reference was also made to the case of Gharib -Ul-Lah vs. Khalak Singh (1903) that in case of a joint family only the Karta that is the head of the family has the right to represent a minor member in any transaction or case that is related to them. However, if the family in a particular case do not have a joint status that right to representation by the Karta cannot be questioned and any other person can also represent the minor provided that the said person is acting in the best interest of the minor.

Judgement of the case

The court when answering regarding whether the minor was an undivided member of the family and a coparcener in the property, determined that yes, the minor was a coparcener as he attains this right from birth, the right cannot be created nor destroyed and hence, he also has the right to ask for partition as a valid coparcener.

The court determined that the suit that was instituted was done in the best interest of the minor and directed the minor to not continue jointly with the defendants and ask for a partition as the defendants had denied the plaintiff right over Item 2 and Item 11 and had also stated that since the family property had debts it was not in the best interest of the child to live with that family.

The court must be convinced that the apparent next friend of the minor who is filing the suit of partition, on behalf of the minor, is acting in the best interest of the minor. If the next friend is able to prove beyond reasonable doubt to the court that the suit was instituted keeping in mind the best interest of the minor, the suit may be allowed.

The Supreme Court observed that the suit doesn’t abate upon the death of the minor coparcener, and if it was in the interest of the minor the suit shall be continued by his legal representatives. A division takes place when the coparcener expresses his intention to separate and filing a suit for partition is a clear indication of the coparcener’s intention to separate unequivocally. The date the suit for partition was filed, a de facto partition took place and hence the minor died a separate member as partition was already communicated to all members.

Ultimately the Supreme Court had dismissed the appeal.

Rationale behind this judgement

According to the principles that have been laid down in Mitakshara law, a coparcener has the right to be maintained under any property that is under the status of the joint family. Also, from the date of birth, the coparcener has a right to share in joint family property. The coparcener also has the right to ask for a separate possession of his share in the property and can also ask for partition. The question arises as to whether a youngster who is acting via their next friend also enjoys the same applicability of the law that has been laid down or not.

The court also cited the case of Girja Bai vs. Sadashiv Dhundiraj (1916) where the court had held that every coparcener has an equal right to be divided at his will and in such a case the consent of other coparceners does not matter and holds no value.

With respect to the rights that they enjoy of joint possession there is no difference between a minor and a major coparcener as per the Hindu law. Even the minor coparceners rights when there is a partition is equal to those of a major coparcener seeking partition.

When such a situation arises, it is on the courts to decide as to whether such a decision was taken in the best interest of the child or whether such decision would deny the said child of his rights. If the court performs a partition of the property then the date of institution of suit will be the effective date of severance of status of a minor coparcener. If in such a case the minor dies before the claim was settled that the legal representatives of the minor have the right to continue the case.

Significance of the case

The case of Kakamanu Pedasubayya vs. Kakumanu Akkama became a landmark judgement with regards to partition in favour of a minor coparcener. The courts had relied on this judgement for a lot of cases as discussed below :-

P.M. Ramaswamy Chettiar vs. Raja Kuppa Cheeti (1961)

Roya Kuppa Chetti and Krishnaswami Chetti who is his grandson were members of a Joint Hindu family. Krishnaswami Chetti is living under the care and protection of his mother and he was a minor child. Even though both of them were living in the same house it was said that Roya Kuppa’s did not treat his grandson properly and for the same reasons the mother of the minor child had sent a notice in which she had expressed her intention to separate from the family. The mother wanted a partition of the property. Roya Kuppa did not respond to the notice that was sent and instead had sold the property to the plaintiff of this case. The main issue in this case was that Roya Kuppa was not competent to sell the entire property in dispute.

The Madras High Court in the above case referred to the landmark case of Peda Subbayya, to determine the role and power of courts in a situation where the minor has been deprived of his right to his ancestral property. The court held that, the power of the courts to decide whether to approve the suit filed by the guardian is firstly to protect the rights of the minor coparcener and secondly to analyse if the minor has been deprived of his right and to provide justice to the minor by restituting him in his original position. The position and role of the court here is supervisory in nature, to overlook if justice is being served and not to institute the suit on the behalf of the minor.

Lakkireddi Chinna Venkata Reddi vs. Lakkireddi Lakshmama (1963)

A widow and a son had filed a suit for partition of joint family property. The son was a minor child and the mother in the present case was acting as his next friend. They had claimed a share in the joint family property but the minor died when the suit was pending and the mother was acting as a legal representative of the minor. The Supreme Court in the above case, made reference to the landmark judgement of Peda Subbayya to determine whether a suit that is instituted on behalf of the minor for his right, abates upon his death or not. On the basis of the Peda Subbayya case, the court decided that the suit does not abate on the death of the minor coparcener, as it was instituted for the right of the minor and will continue even after the death of the minor. The suit continues to be in place and to be heard.However, it is necessary for the guardian or near friend of the minor to prove that the suit was instituted for the benefit of the minor, and he was deprived of his right.

Chinnamma and Anr. vs. Gopal and Anr. (1995)

The suit for partition was filed by a mother and the minor son, where the mother was acting as his next friend and they had claimed partition as well as recovery of maintenance. The only issue in this case was whether the minor child is entitled to partition of the property or not. The courts were of the opinion that because the father of the minor child who is the natural guardian is alive a partition cannot be forced between the two. In this case, the Madras High Court had made reference to the case of Kakumanu Pedasubhayaya and Anr. vs. Kakumanu Akkamma and Anr. where it was laid down that a suit can be instituted for the benefit of the minor. Ultimately the court in the case of Chinnamma vs. Gopal, held that the lower court’s decision that a suit filed by a minor for partition of the joint family property is not maintainable, hence the decision of the lower court was quashed. The court then gave a clear judgement that any suit filed by the minor for the partition of the joint family, is his right, and he cannot be deprived of his right to ask for partition.

S. Jasdeep Singh vs. S. Kehar Singh (2004)

In the present case the plaintiff had prayed for declaring that the oral partition and the entire proceedings with respect to the house property were null and void and also requested the court to declare that both the plaintiff and the defendants were entitled to 1/6th share of the property. On the other hand the defendants argued that the suit was not maintainable as the plaintiff did not have any locus standi to file the suit. The Delhi High Court in the above case had cited the case of Kakumanu Pedasubhayya vs. Kakumanu Akkama to answer the question as to whether a minor has the right to seek partition during the lifetime of his father or not. This court had quoted paragraph 9 of the judgement of Kakumanu Pedasubhayya vs. Kakumanu Akkama where it was held that the rights of a minor coparcener and a major coparcener are very similar and the minor coparcener should be maintained out of the family property.

Ms.Ilaria Kapur vs. Rakesh Kapur (2012)

In the present case the defendant contended that her property cannot be termed as a property of the Hindu Undivided Family because she is a woman and she is not a coparcener in the Hindu Undivided Family of her husband and son. She argued that the properties that she was holding were protected by the Hindu Succession Act, 1956 and Hindu Women’s Right to Property Act, 1937 and hence the suit should be barred.In this case, it was argued that the plaintiff cannot seek partition before the death of the father. The Supreme Court referred to the case of Kakumanu Pedasubhayya vs. Kakumanu Akkamma where it was held that the right of a coparcener to share in a joint family property and also to ask for partition arises from the birth of the coparcener and the Hindu law makes no difference between a minor and a major coparcener.

Conclusion

There were few principles that were settled in this case. The first question that arose was whether the right of partition can also be claimed by a minor coparcener. The court had mentioned that all coparceners are independent of each other and during partition the rights of a minor coparcener are similar to that of the major coparcener. The court for the above mentioned reasons also held that if a suit has been filed on behalf of the minor directing the court to grant a decree for a suit for partition, then such suit is valid and maintainable, but the court has to satisfied that the suit in question has been instituted for the benefit of the minor itself. The court also expressed its opinion on whether the suit for partition abates on death of the minor coparcener. The court had cited different cases where it was held that the legal representatives of the minor have the power to continue the suit on behalf of the minor. The Lower courts had also misinterpreted the real cause of action as the transaction that took place in this case was before the birth of the minor and did not furnish any cause of action. Hence with regards to this issue the court held that the high court could interfere with the findings of the lower courts in a second appeal.

Frequently Asked Questions (FAQs)

Can a minor be a coparcener in coparcenary property?

A coparcener is a member of a Hindu Undivided Family (HUF) who is related by blood/ adoption to the common male ancestor who initiated the Hindu Joint Family. A coparcener can be a son/ a daughter (introduced by the 2005 Amendment) and he/she attains the right to be a coparcener and receive share in the coparcener property by birth. Hence, the right to be a coparcener is not limited by age, a minor can also be a coparcener.

Can a minor ask for partition in coparcenary property?

Every coparcener has a certain set of rights which are related to the ancestral property, amongst these some are the right to ask for partition. Hence, a minor also has the same set of rights ever since he gets the right to become a coparcener.

What is the difference between coparcenary and Hindu Joint Family?

A Hindu Joint Family, is a cluster of members that are living in a common household bound by one common male ancestor. The people who make the HUF are related to each other by blood/ adoption or marriage. The huf has a head known as the Karta who is the decision maker of the house.

A Coparcenary on the other hand, is a system within the HUF. It used to consist of only male members, but after the 2005 Amendment, even daughters are a part of the coparcenary. It consists of the Karta, the male members of the HUF and the daughter/s of the Karta.

Is consent of all coparceners necessary for effecting a partition?

The consent of all members of the HUF or all the coparceners is not mandatory for effecting a valid partition. If the communication of seeking partition is done by valid means, to the Karta, then it doesn’t need the consent of other members or the Karta.

References

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