Different Aspects of Minor Coparcenary in India and How it Operates Practically?

Different Aspects of Minor Coparcenary in India and How it Operates Practically? 

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.


 Different Aspects of Minor Coparcenary in India and How it Operates Practically?


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.


 Different Aspects of Minor Coparcenary in India and How it Operates Practically?


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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