One Moola Gounder along with his two sons Palanisamy (defendant no. 1) and Arumugam (defendant no. 2) formed a coparcenary which owned the suit property. Moola Gounder died
intestate on 28.12.1971 leaving behind no Will. On his death, 1/3 of the property went to each son and remaining one third which was the share of Moola Gounder in the coparcenary was to
be inherited by his wife (defendant no.5), two sons, (defendant nos. 1 and 2) and three daughters viz., the plaintiff and defendant nos. 3 and 4.
On 06.12.1989, his youngest daughter filed a suit claiming that the property falling to the share of Moola Gounder which was to be inherited by his six legal heirs had never been
partitioned and therefore, it be partitioned in accordance with law.
W/S = after the death of Moola Gounder, the daughters i.e., the plaintiff and defendant nos. 3 and 4 and the mother (defendant no. 5) had jointly executed a registered release deed relinquishing their rights in the property in favour of the two sons, defendant nos. 1 and 2. It was also urged that in the said release deed the plaintiff who was a minor at that time was represented by her mother, who was her natural guardian, and the mother had executed the release deed on behalf of the
plaintiff. Similarly, defendant no. 1 had acted as the guardian of defendant no. 2 who was also a minor at that time and signed the release deed on behalf of both of the sons. After defendant no. 2 attained majority, a registered partition deed was executed between the two brothers, defendant nos. 1 and 2, on 24.04.1980 and thereafter, it is only defendant nos. 1 and 2 who are in possession of the said property. It was also averred that the partition deed was witnessed by the husband of the plaintiff and she could not feign ignorance of the same. It was also alleged that the amount mentioned in the release deed had been given to the sisters.
A reply written statement or replication was filed by the plaintiff in which it was urged that the release deed was void under law since the mother had no right to relinquish the share of the plaintiff without sanction of the court.
The trial court dismissed the suit holding that the mother acted as the natural guardian of the minor daughter and no steps were taken by the plaintiff on attaining majority to get the release deed set aside within the period of limitation of three years.
the High Court which came to the conclusion that the property in the hands of the legal heirs of Moola Gounder, after his death, was Joint Hindu Family property and the mother could not have acted as guardian of the minor. It was, therefore, held that the release deed was void ab initio and, as such, was not required to be challenged. The court further held that the property remained joint property of all the legal heirs of Moola Gounder and decreed the suit of the plaintiff. Hence, this appeal by one of the brothers who was defendant no.2 in the trial court.
Apex court held that
When we read Section 6 of the Succession Act the opening portion indicates that on the death of a male Hindu, his interest in the coparcenary property shall devolve by survivorship upon
the surviving members of the coparcenary and not in accordance
with the Act.
That would mean that only the brothers would get the property. However, the Proviso makes it clear that if the deceased leaves behind a female heir specified in ClassI of the Schedule, the interest of the deceased in the coparcenary property shall devolve either by testamentary or by intestate succession under the Succession Act and not by survivorship.
The opening portion of Section 6, as it stood at the relevant time, clearly indicates that if male descendants were the only survivors then they would automatically have the rights or interest in the
coparcenary property.
Females had no right in the coparcenary property at that time. It was to protect the rights of the women that the proviso clearly stated that if there is a ClassI female heir, the interest of the deceased would devolve as per the provisions of the Act and not by survivorship.
The first Explanation to Section 6 makes it absolutely clear that the interest of the Hindu coparcener shall be deemed to be his share in the property which would have been allotted to him if partition had taken place immediately before his death.
In the present case, if partition had taken place immediately before the death of Moola Gounder then he and defendant nos. 1 and 2 would have been entitled to 1/3 share each in the property. Nothing would have gone to the female heirs as per the law as it stood at that time.
However, since partition had not actually taken place, and there were ClassI female heirs, 1/3 share of Moola Gounder was to devolve on the ClassI legal heirs in accordance with Section 8
of the Succession Act.
In Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors.
the main issue was as to what share a Hindu widow would get in terms of Sections 6 and 8 of
the Succession Act.
This Court held that the partition which was a deemed partition cannot be limited to the time immediately prior to the death of the deceased coparcenary but “all the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one
another and had received a share in the partition which had taken place during the life time of the deceased.”
The Court further held that the partition has to be treated and accepted as a
concrete reality, something that cannot be recalled at a later
stage.
In Commissioner of Wealth Tax, Kanpur and Ors. vs. Chander Sen and Ors.
the dispute related to a joint family business between a father and son. This business was divided
and thereafter, carried by a partnership firm of which both were partners. The father died leaving behind his son, two grandsons and a credit balance in the account of the firm. The issue that
arose was whether the credit balance in the account left behind by the deceased was to be treated as joint family property or the property was to be distributed to ClassI legal heirs in accordance
with Section 8 of the Succession Act.
This Court held that Succession Act supersedes all Mitakshara law. The relevant
portion of the judgment reads as follows:
“22.… It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand visàvis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in
whose hands it will be joint Hindu family property and visàvis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc.”
Accordingly, it was directed that the credit balance would be inherited in terms of Section 8 of the Succession Act.
In Appropriate Authority (IT Deptt) And Others vs. M. Arifulla And Others3
the issue which arose was whether the property inherited in terms of Sections 6 and 8 of the Succession Act was to be treated as the property of coowners or as joint
family property.
The Court held as follows:
“3. … This Court has held in CWT vs. Chander Sen that a property devolving under Section 8 of the Hindu Succession Act, is the individual property of the person who inherits the same and not that of the HUF. In fact, in the special leave petition, it is admitted that respondents 2 to 5 inherited the property in question from the said T.M. Doraiswami. Hence, they held it as tenantsincommon and not as joint tenants.”
Applying the principles laid down in the aforesaid cases, it is apparent that after the death of Moola Goundar, his interest in the coparcenary property would devolve as per the provisions of Section 8 since he left behind a number of female ClassI heirs.
There is another reason to take this view. Section 30 of theSuccession Act clearly lays down that any Hindu can dispose ofhis share of the property by Will or by any other testamentary disposition which is capable of being so disposed of by him. The explanation to Section 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenary shall be deemed to be property capable of being disposed of by him within the meaning
of Section 30.
This means that the law makers intended that for all intents and purposes the interest of a male Hindu in Mitakshara coparcenary was to be virtually like his self acquired
property.
Furthermore, when we conjointly read Section 30 with Section 19, which provides that when two or more heirs succeed together to the property of an intestate, they shall take the
property per capita and as tenants in common and not as joint tenants.
This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement.
Even assuming that the property was a joint family property then also we cannot accept the submission that the Karta i.e., defendant no. 1 was the natural guardian of the minor plaintiff.
The Karta is the manager of the Hindu Undivided Family and acts on behalf of the entire family. True it is that Section 6 of the Act is not applicable in respect of undivided interest of a minor in
the joint family property but here we are dealing with a situation where all the family members decided to dissolve the Hindu Undivided Family assuming there was one in existence.
A Karta is the manager of the joint family property. He is not the guardian of the minor members of the joint family. What Section 6 of the Act provides is that the natural guardian of a minor Hindu shall be his guardian for all intents and purposes except so far as the undivided interest of the minor in the joint family property is concerned. This would mean that the natural guardian cannot dispose of the share of the minor in the joint family property. The reason is that the Karta of the joint family
property is the manager of the property. However, this principle would not apply when a family settlement is taking place between the members of the joint family. When such dissolution takes
place and some of the members relinquish their share in favour of the Karta, it is obvious that the Karta cannot act as the guardian of that minor whose share is being relinquished in
favour of the Karta. There would be a conflict of interest. In such an eventuality it would be the mother alone who would be the natural guardian and, therefore, the document executed by
her cannot be said to be a void document. At best, it was a voidable document in terms of Section 8 of the Act and should have been challenged within three years of the plaintiff attaining
majority.
We may note that there are other reasons to hold that the case set up by the plaintiff was not correct even to her knowledge. Though the plaintiff was a minor when the release deed dated 10.03.1973 was executed, she was not of tender age but was aged about 17 years. On 24.04.1980, a partition took place between defendant nos. 1 and 2 (the two brothers) and this partition included all the properties comprising the property now claimed by the plaintiff. The partition deed dated 24.04.1980, which was duly registered, was signed by the husband of the plaintiff as an attesting witness. Few days later, on 30.04.1980 the two brothers executed a settlement deed in favour of their mother, defendant no. 5 which was also signed by the plaintiff’s husband as witness. After this partition, the two brothers remained in possession of the property and executed various
transfers from this property. Therefore, it is difficult to believe that the plaintiff was not aware of the various transfers. In view of the above, we allow the appeal, set aside the judgment of the High Court dated 30.07.2008 and restore the judgment of the trial court dated 29.11.1994.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8642 OF 2009
M. ARUMUGAM …Appellant(s)
Versus
AMMANIAMMAL AND ORS. …Respondent(s)
J U D G M E N T
Deepak Gupta, J.
1. One Moola Gounder along with his two sons Palanisamy
(defendant no. 1) and Arumugam (defendant no. 2) formed a
coparcenary which owned the suit property. Moola Gounder died
intestate on 28.12.1971 leaving behind no Will. On his death,
1/3 of the property went to each son and remaining one third
which was the share of Moola Gounder in the coparcenary was to
be inherited by his wife (defendant no.5), two sons, (defendant
1
nos. 1 and 2) and three daughters viz., the plaintiff and
defendant nos. 3 and 4.
2. On 06.12.1989, his youngest daughter filed a suit claiming
that the property falling to the share of Moola Gounder which
was to be inherited by his six legal heirs had never been
partitioned and therefore, it be partitioned in accordance with
law. Written statement was filed by the two sons in which it was
mentioned that after the death of Moola Gounder, the daughters
i.e., the plaintiff and defendant nos. 3 and 4 and the mother
(defendant no. 5) had jointly executed a registered release deed
relinquishing their rights in the property in favour of the two
sons, defendant nos. 1 and 2. It was also urged that in the said
release deed the plaintiff who was a minor at that time was
represented by her mother, who was her natural guardian, and
the mother had executed the release deed on behalf of the
plaintiff. Similarly, defendant no. 1 had acted as the guardian of
defendant no. 2 who was also a minor at that time and signed the
release deed on behalf of both of the sons. After defendant no. 2
attained majority, a registered partition deed was executed
between the two brothers, defendant nos. 1 and 2, on 24.04.1980
2
and thereafter, it is only defendant nos. 1 and 2 who are in
possession of the said property. It was also averred that the
partition deed was witnessed by the husband of the plaintiff and
she could not feign ignorance of the same. It was also alleged
that the amount mentioned in the release deed had been given to
the sisters.
3. A reply written statement or replication was filed by the
plaintiff in which it was urged that the release deed was void
under law since the mother had no right to relinquish the share
of the plaintiff without sanction of the court.
4. The trial court dismissed the suit holding that the mother
acted as the natural guardian of the minor daughter and no steps
were taken by the plaintiff on attaining majority to get the release
deed set aside within the period of limitation of three years.
5. Aggrieved by the aforesaid judgment, the plaintiff filed an
appeal before the High Court which came to the conclusion that
the property in the hands of the legal heirs of Moola Gounder,
after his death, was Joint Hindu Family property and the mother
could not have acted as guardian of the minor. It was, therefore,
held that the release deed was void ab initio and, as such, was
3
not required to be challenged. The court further held that the
property remained joint property of all the legal heirs of Moola
Gounder and decreed the suit of the plaintiff. Hence, this appeal
by one of the brothers who was defendant no.2 in the trial court.
6. We have heard Mr. Jayanth Muth Raj, learned senior
counsel for the appellant and Mr. V. Prabhakar, learned counsel
for the respondentsplaintiff. The facts are not disputed. The
only issue is whether the mother could act as the natural
guardian of the minor daughters in respect of the property
inherited from Moola Gounder.
7. Before dealing with the issues, it would be appropriate to
make reference to Section 6 of the Hindu Minority &
Guardianship Act, 1956, (the Act for short), relevant portion of
which reads as follows:
“6. Natural guardians of a Hindu minor. The natural
guardians of a Hindu minor, in respect of the minor's
person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family
property), are—
(a) in the case of a boy or an unmarried girl—the father,
and after him, the mother: provided that the custody
of a minor who has not completed the age of five
years shall ordinarily be with the mother;
…”
4
Reference may also be made to Section 8 of the Act, relevant
portion of which reads as follows:
“8. Powers of natural guardian. (1) The natural
guardian of a Hindu minor has power, subject to the
provisions of this section, to do all acts which are
necessary or reasonable and proper for the benefit of the
minor or for the realization, protection or benefit of the
minor's estate; but the guardian can in no case bind the
minor by a personal covenant.
(2) The natural guardian shall not, without the previous
permission of the court,—
(a) mortgage or charge, or transfer by sale, gift, exchange
or otherwise, any part of the immovable property of the
minor; or
(b) lease any part of such property for a term exceeding
five years or for a term extending more than one year
beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural
guardian, in contravention of subsection (1) or subsection (2), is voidable at the instance of the minor or any
person claiming under him.
…”
Section 4(b), Section 6, Section 19 and Section 30 of the Hindu
Succession Act, 1956 (the Succession Act for short), as it stood at
the relevant time read as follows:
“4(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus
in so far as it is inconsistent with any of the provisions
contained in this Act.”
“6. Devolution of interest in coparcenary property.
When a male Hindu dies after the commencement of this
Act, having at the time of his death an interest in a
5
Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving
members of the coparcenary and not in accordance with
this Act:
Provided that, if the deceased had left him surviving a
female relative specified in class I of the Schedule or a
male relative specified in that class who claims through
such female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by
testamentary or intestate succession, as the case may be,
under this Act and not by survivorship.
Explanation 1 For the purposes of this section, the
interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have
been allotted to him if a partition of the property had
taken place immediately before his death, irrespective of
whether he was entitled to claim partition or not.
Explanation 2 Nothing contained in the proviso to this
section shall be construed as enabling a person who has
separated himself from the coparcenary before the death
of the deceased or any of his heirs to claim on intestacy a
share in the interest referred to therein.”
“19. Mode of succession of two or more heirs. If
two or more heirs succeed together to the property of an
intestate, they shall take the property,
(a) save as otherwise expressly provided in
this Act, per capita and not per stripes; and
(b) as tenantsincommon and not as joint
tenants.”
“30. Testamentary succession. Any Hindu may
dispose of by will or other testamentary disposition any
property, which is capable of being so disposed of by him
or her, in accordance with the provisions of the Indian
succession Act, 1925 (39 of 1925), or any other law for
the time being in force and applicable to Hindus.
Explanation. The interest of a male Hindu in a
Mitakshara coparcenary property or the interest of a
member of a tarwad, tavazhi, illom, kutumba or kavaru in
the property of the tarwad, tavazhi, illom, kutumba or
kavaru shall notwithstanding anything contained in this
Act or in any other law for the time being in force, be
6
deemed to be property capable of being disposed of by
him or by her within the meaning of this section.”
8. Mr. V. Prabhakar, learned counsel for the plaintiff submits
that after the death of Moola Gounder, the property in question
was not inherited by his legal heirs in their individual rights but
only as the property of a Hindu Undivided Family. Mr.
Prabhakar strenuously urged that the property was a joint Hindu
family property and only the Karta i.e., defendant no. 1 could
have represented the minor. The Karta was the guardian of the
minor members of the joint Hindu family and, therefore, the High
Court rightly held that the document which is termed to be the
release deed was a void document.
9. On the other hand, Mr. Jayanth Muth Raj, learned counsel
for the appellant submits that when the death of Moola Gounder
took place, a notional partition is deemed to have taken place
immediately before his death wherein two surviving members of
the coparcenary i.e., defendant nos. 1 and 2, got 1/3 share each
in the property and the remaining 1/3 belonging to Moola
Gounder was to be inherited in terms of Section 8 of the
Succession Act.
7
10. When we read Section 6 of the Succession Act the opening
portion indicates that on the death of a male Hindu, his interest
in the coparcenary property shall devolve by survivorship upon
the surviving members of the coparcenary and not in accordance
with the Act. That would mean that only the brothers would get
the property. However, the Proviso makes it clear that if the
deceased leaves behind a female heir specified in ClassI of the
Schedule, the interest of the deceased in the coparcenary
property shall devolve either by testamentary or by intestate
succession under the Succession Act and not by survivorship.
The opening portion of Section 6, as it stood at the relevant time,
clearly indicates that if male descendants were the only survivors
then they would automatically have the rights or interest in the
coparcenary property. Females had no right in the coparcenary
property at that time. It was to protect the rights of the women
that the proviso clearly stated that if there is a ClassI female
heir, the interest of the deceased would devolve as per the
provisions of the Act and not by survivorship. The first
Explanation to Section 6 makes it absolutely clear that the
interest of the Hindu coparcener shall be deemed to be his share
in the property which would have been allotted to him if partition
8
had taken place immediately before his death. In the present
case, if partition had taken place immediately before the death of
Moola Gounder then he and defendant nos. 1 and 2 would have
been entitled to 1/3 share each in the property. Nothing would
have gone to the female heirs as per the law as it stood at that
time. However, since partition had not actually taken place, and
there were ClassI female heirs, 1/3 share of Moola Gounder was
to devolve on the ClassI legal heirs in accordance with Section 8
of the Succession Act.
11. In Gurupad Khandappa Magdum vs. Hirabai
Khandappa Magdum and Ors.
1
, the main issue was as to what
share a Hindu widow would get in terms of Sections 6 and 8 of
the Succession Act. This Court held that the partition which was
a deemed partition cannot be limited to the time immediately
prior to the death of the deceased coparcenary but “all the
consequences which flow from a real partition have to be logically
worked out, which means that the share of the heirs must be
ascertained on the basis that they had separated from one
another and had received a share in the partition which had
taken place during the life time of the deceased.” The Court
1 (1978) 3 SCC 383
9
further held that the partition has to be treated and accepted as a
concrete reality, something that cannot be recalled at a later
stage.
12. In Commissioner of Wealth Tax, Kanpur and Ors. vs.
Chander Sen and Ors.
2
, the dispute related to a joint family
business between a father and son. This business was divided
and thereafter, carried by a partnership firm of which both were
partners. The father died leaving behind his son, two grandsons
and a credit balance in the account of the firm. The issue that
arose was whether the credit balance in the account left behind
by the deceased was to be treated as joint family property or the
property was to be distributed to ClassI legal heirs in accordance
with Section 8 of the Succession Act. This Court held that
Succession Act supersedes all Mitakshara law. The relevant
portion of the judgment reads as follows:
“22.… It would be difficult to hold today the property
which devolved on a Hindu under Section 8 of the Hindu
Succession Act would be HUF in his hand visàvis his
own son; that would amount to creating two classes
among the heirs mentioned in class I, the male heirs in
whose hands it will be joint Hindu family property and
visàvis son and female heirs with respect to whom no
such concept could be applied or contemplated. It may
be mentioned that heirs in class I of Schedule under
Section 8 of the Act included widow, mother, daughter of
predeceased son etc.”
2 (1986) 3 SCC 567
10
Accordingly, it was directed that the credit balance would be
inherited in terms of Section 8 of the Succession Act.
13. In Appropriate Authority (IT Deptt) And Others vs. M.
Arifulla And Others3
the issue which arose was whether the
property inherited in terms of Sections 6 and 8 of the Succession
Act was to be treated as the property of coowners or as joint
family property. The Court held as follows:
“3. … This Court has held in CWT vs. Chander Sen that
a property devolving under Section 8 of the Hindu
Succession Act, is the individual property of the person
who inherits the same and not that of the HUF. In fact,
in the special leave petition, it is admitted that
respondents 2 to 5 inherited the property in question
from the said T.M. Doraiswami. Hence, they held it as
tenantsincommon and not as joint tenants.”
14. Applying the principles laid down in the aforesaid cases, it is
apparent that after the death of Moola Goundar, his interest in
the coparcenary property would devolve as per the provisions of
Section 8 since he left behind a number of female ClassI heirs.
15. There is another reason to take this view. Section 30 of the
Succession Act clearly lays down that any Hindu can dispose of
his share of the property by Will or by any other testamentary
3 (2002) 10 SCC 342
11
disposition which is capable of being so disposed of by him. The
explanation to Section 30 clearly provides that the interest of a
male Hindu in Mitakshara coparcenary shall be deemed to be
property capable of being disposed of by him within the meaning
of Section 30. This means that the law makers intended that for
all intents and purposes the interest of a male Hindu in
Mitakshara coparcenary was to be virtually like his selfacquired
property. Furthermore, when we conjointly read Section 30 with
Section 19, which provides that when two or more heirs succeed
together to the property of an intestate, they shall take the
property per capita and as tenants in common and not as joint
tenants. This also clearly indicates that the property was not to
be treated as a joint family property though it may be held jointly
by the legal heirs as tenants in common till the property is
divided, apportioned or dealt with in a family settlement.
16. Even assuming that the property was a joint family property
then also we cannot accept the submission that the Karta i.e.,
defendant no. 1 was the natural guardian of the minor plaintiff.
The Karta is the manager of the Hindu Undivided Family and
acts on behalf of the entire family. True it is that Section 6 of the
12
Act is not applicable in respect of undivided interest of a minor in
the joint family property but here we are dealing with a situation
where all the family members decided to dissolve the Hindu
Undivided Family assuming there was one in existence.
17. A Karta is the manager of the joint family property. He is
not the guardian of the minor members of the joint family. What
Section 6 of the Act provides is that the natural guardian of a
minor Hindu shall be his guardian for all intents and purposes
except so far as the undivided interest of the minor in the joint
family property is concerned. This would mean that the natural
guardian cannot dispose of the share of the minor in the joint
family property. The reason is that the Karta of the joint family
property is the manager of the property. However, this principle
would not apply when a family settlement is taking place between
the members of the joint family. When such dissolution takes
place and some of the members relinquish their share in favour
of the Karta, it is obvious that the Karta cannot act as the
guardian of that minor whose share is being relinquished in
favour of the Karta. There would be a conflict of interest. In
such an eventuality it would be the mother alone who would be
13
the natural guardian and, therefore, the document executed by
her cannot be said to be a void document. At best, it was a
voidable document in terms of Section 8 of the Act and should
have been challenged within three years of the plaintiff attaining
majority.
18. We may note that there are other reasons to hold that the
case set up by the plaintiff was not correct even to her
knowledge. Though the plaintiff was a minor when the release
deed dated 10.03.1973 was executed, she was not of tender age
but was aged about 17 years. On 24.04.1980, a partition took
place between defendant nos. 1 and 2 (the two brothers) and this
partition included all the properties comprising the property now
claimed by the plaintiff. The partition deed dated 24.04.1980,
which was duly registered, was signed by the husband of the
plaintiff as an attesting witness. Few days later, on 30.04.1980
the two brothers executed a settlement deed in favour of their
mother, defendant no. 5 which was also signed by the plaintiff’s
husband as witness. After this partition, the two brothers
remained in possession of the property and executed various
14
transfers from this property. Therefore, it is difficult to believe
that the plaintiff was not aware of the various transfers.
19. In view of the above, we allow the appeal, set aside the
judgment of the High Court dated 30.07.2008 and restore the
judgment of the trial court dated 29.11.1994. Pending
application(s) if any, shall also stand disposed of.
..…..…....................J.
[S. ABDUL NAZEER]
…….…....................J.
[DEEPAK GUPTA]
NEW DELHI
JANUARY 8, 2020
15
