(a) Suits Brought by Adult Members:
The institution of a suit for partition by a member of the joint family effects a severance of the joint status of the family.
His share, therefore, is not liable to be diminished by the birth of another member of the family subsequent to the date of the suit, as the latter is not to be counted for a share; nor is it augmented by death of any of the members subsequent to that date, as his share will pass to his heirs. (Girja Bai v. Sadashiv, (1916) 43 I.A. 151) Consequently, the heirs of the deceased party are entitled to prosecute the suit for partition.
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(b) Suits Brought By Minors:
ADVERTISEMENTS:
The position is different, however, where the suit is brought by a minor, whether as a sole plaintiff or as a co-plaintiff with an adult coparcener. According to the Madras and Bombay High Courts, the mere institution of such a suit does not effect a severance of the joint status, but if a decree is passed in the suit, the partition dates from the date of the suit. The result is that if a decree is passed, the minor’s share will not decrease by the birth of a member subsequent to the date of the suit; nor will it increase by the subsequent death of a member. But if the Court refuses to decree separation as regards the minor, the minor’s share will increase by subsequent deaths.
According to the Patna High Court, however, the mere institution of suit by a minor effects of severance of the joint status, as much as a suit by an adult. His share, therefore, is not diminished by subsequent births; nor is it increased by subsequent deaths.