1. Appraisal of the situations where adversity for the minor are created with the help of case laws (where a major coparcener is denying the rights of minor or wasting the property or denying maintenance to a minor):
i. Kakaumanu Peda Subbayya v. Kakaumanu
Akkamma[1]
The
SC, in this case, held that the decree of the court is mere renders the suit by
next friend of a minor which is effected by deciding on the question what the
next friend had done was the benefit for the minor or not. While giving such
decision, the court has overruled many of the prior decision so the HC which
had expressed the view that the competency to make severance between minor and
other coparceners rests on the court only and no one other than the court is
competent to do so. Now, the SC has also held that when a court brings the
partition for the best interest of the minor, it should not be deemed as the
division of status per se. The courts
are not in a position to be a super guardian of minor by articulate on behalf
of minor the expression of being divided from the family.[2]
So, such expression on behalf of minor should be made by some other person and
the court can only decide on the question, i.e.
whether that person, who is appointed to express intention on behalf of the
minor, has to be acted in the best interest of the minor or not.[3]
ii.
Ratnam Chettiar v. SM Kuppuswami Chettiar[4]
In
this case, the court clearly laid down that where a partition agreement is
disadvantageous to the minor coparceners can be set aside by the minors after
attaining majority. In this case, there were two brothers who made partition at
the time when they were minor with the aid of family auditor of one brother.
Later on, the plaintiff alleged fraud and undue influence on the part of his
uncle, who was charged to undertake a large number of assets by taking
advantage of his father weak intellect. However, the trial court rejected their
claim, and the HC also go with the decision of the trial court. Nonetheless,
the SC after making detailed study came to conclude that there was a disparity
in the partition and the silence on the part of their father allow their uncle
to get a large amount of property which is evidently not a prudent act and so,
it has resulted in serious detriments to the minors’ interests which must be
protected as minors were the members of Hindu undivided family at the time of
partition.[5]
iii.
Sukhrani v. Harishankar[6]
Again
a similar kind of problem arises in front of the court in this case, where the
plaintiff at the time of instituting suit was a minor. There were three
brothers who are indulged in the business of manufacturing bidi, and after the
death of one brother, the remaining brother continued the business. Later on,
one brother represented other brothers to have a nominal partition in order to
avoid tax and; based upon this expression, the joint family business was changed
into a partnership where both the brothers have a different share. Later on,
based upon such unequal share plaintiff claimed to reopen the partition;[7]
however, it was contented by the respondent as there was no fraud and
misrepresentation and there was voluntary acceptance on the part of the
plaintiff. However, the SC has referred to the case of Ratnam Chettiar[8]
case and held that though there were no fraud, no undue influence and no
misrepresentation, the plaintiff can validly claim to reopen for the partition
due to mere fact that the earlier partition was prejudicial to the minor’s
interest.
So,
it has become evident from the aforementioned cases, the courts are focused
towards making the position of the minor coparcener much more secure and
protected. However, there are many unseen disadvantages when it comes to the
practical implication of the standing position which is discussed in the
subsequent section of this paper.
2.
Critical evaluation of the standing situation
(in the practical sense)
Unlike
the major coparcener, the minor coparcener cannot effect a partition at his
will. However, the only option for the minor coparceners is to initiate the
proceeding with the help of his or her next friend,[9] and the court will also see that whether the
partition is beneficial for the minor’s interest or whether such partition is
inevitable in order to protect the minor from any kind of encumbering peril.[10]
Nonetheless, as per many of the experts in the field of Hindu Law, these
provisions do not seem much helpful in the context of the cost and the time
taken in such process.[11]
The next friend faces substantial expenses until the actual partition took
place in favour of the minor. Moreover, the standing procedure of the courts
makes the partition cumbersome. In addition to this, there is also a chance
that the next friend of the minor may generate his own interest rather than
that of a minor which may result in the colossal damage to the minor’s
interest. Thus, it is vital to consider
the time, cost, and trustworthiness[12]
of the next friend before saying that Hindu law treats major and minor coparceners
at the equal pedestal, especially in respect of his or her right in the joint
family property.
Thus,
the minority is not per se a hindrance;[13]
however, the fact that it cannot be sought directly works as a hindrance.
3.
Whether a minor coparcener can be held liable
for any of the liability emerged in the ambit of the Hindu Joint family?
It
is a general perception that the monetary resources used for carrying out
family affairs are to be carried with the consent of all the members of the
Joint family. Following this line of argument, it can also be said that any
depts. Based upon the liability incurred in the course of the ordinary family
affairs, all the coparceners can be held liable. However, such liability is
only extended up to the interests of the family property. Nonetheless, the
major coparceners can become liable personally when they are the contracting
parties along with their manager or in case they rectify the contract which was
entered into by their manager. Now, the minors coparceners are the exception to
this scenario, and they cannot become personally liable until or unless the
same contract is ratified by him or her once he or she attains majority.
4.
Minors in case of reunion
Now,
in the case of Balabux v. Rukhabai,
the court held that since a minor does not hold the capacity to come into a
contract, the minor cannot allow reuniting and thus a reunion can take place
only among those parties who are originally the party to the partition and not
the minor.[14]
Again, In the case of Balasubramaniam
Reddy v. Narayana Reddiar,
the court observed that the reunion is a matter of agreement and thereby a
minor is incompetent for the same.[15] However,
since an agreement for separation is open to the guardian of a minor,[16]
the guardian is equally capable of coming into an agreement on behalf of minor
for the reunion.
5.
Minor Coparcener as Karta
Karta
is head of the Hindu Joint family who acts on behalf and also represents the
family on the family affairs. It is a position of sui generis in nature which means his position can neither be
equated with that of manager in a commercial firm nor his relationship can be
equated with other members like that of Principle agent relationship or a firm
partner relationship. In the real sense, Karta enjoys absolute and unlimited
power within his domain which cannot be equated with the power possessed by any
member of the family. Now, in the case of Babu
v. Govinddass,[17]
the Madras HC held that “a minor
coparcener may work as a Karta with the help of his legal guardian until he or
she attains the age of majority”. However, minor coparcener cannot become
Karta as long as there is a senior member present to become Karta unless all
the other coparceners convinced or agree with the decision of proving the
managerial position to the minor member.[18]
This position is also expressed by the court in the case of Narendra Kumar v. CIT.[19]
Moreover, in case it turns out that there is no one other than that of minor to
be manager, then such minor can become Karta as long as there is a guardian to
represent him or her. Also, such a position is further rectified by the §21 of
the Guardian and Wards Act, 1890,[20]
which clearly allows the minors to have a managerial position in the undivided
family.[21]
6.
Conclusion
In
light of the aforementioned discussions, it can be concluded that though under
the Hindu law, minor coparceners have almost similar kind of rights as that of
the major yet there are several disadvantageous which are faced by the minor
coparceners in the practical life as they are in toto reliable upon the nearest friend, so they often face
hardship in terms of cost, time and trustworthiness, which need to be addressed
as soon as possible. Also, minor coparceners can have some liabilities and also
they can be a Karta in some exceptional cases.
[1] 1958 AIR 1042.
[2] In re Dattaraya, (1932) 56 Bom
519; In re Mahadeo Krishna Rupji,
ILR 1937 Bom 432; Surya Narayan v. Venkayya, AIR
1951 Mad 792; Seeta Bai v. NarasimhaShet, ILR
(1945) Mad 568.
[3] Jugal Kishore BaldeoSahai v.
CIT, (1967) 1 SCR 416; China Venkata v. Venkataraman,
AIR 1957 AP 93.
[4] 1976 SCR (1) 863.
[5] KishanLal v. Lachmi Chand, AIR
1937 All 456; RangaThatachari v. Srinivasa,
(1927) ILR 50 Mad 866.
[6] 1979 AIR 1436.
[7] Diwan, supra Note , at 437.
[8] 1976 SCR (1) 863.
[9] Anumeha Karnatak & Mihir
Narvikar, Treatment of Minor’s Property
in India, 3(1) International Journal
of Law and Legal Jurisprudence Studies, 318, 321 (2016).
[10] Nagappa Chettiar v. Subramaniam
(1946) ILR Mad 103; G.C.V.
Subbarao, FAMILY LAW IN INDIA, 124 (10th ed. 2011).
[11] Manisha Singh, Minor coparcener, LawyersclubIndia, May 04, 2011,
available at
https://www.lawyersclubindia.com/articles/minor-coparcener-3713.asp/ (Last
visited on September 5, 2020).
[12] Vilas Vasantrai Shashtri v.
Vasantrai Vishnu Shashtri, AIR 1976 GUJ 17, ¶15,20
[13] Dnyaneshwar Vishnu v. Anant
Vasudeo (1936) 60 Bom 736.
[14] (1903) 30 IA 130.
[15] (1991) 3 SCC 647.
[16] Anil Kumar Dixit, Contractual liability of a Minor in India,
3(1) International Journal of Advanced
Educational Research 436, 438 (2018).
[17] AIR 194All 38.
[18] Narendra Kumar J. Modi v. CIT
(1976) 105 ITR 109 (SC); Budhi Jena v. DhobaiNaik, AIR
1958 Orissa 7.
[19] AIR 1976 SC 1953.
[20] The Guardian and Wards Act, 1890, §21.
[21] Sarda Prasad v. Umeshwar Prasad
(1963) Pat 274.
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