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

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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

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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

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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;

…”

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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 sub­ section (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

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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

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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.  

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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

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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

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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

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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

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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

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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

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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

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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

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