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M.Arumugam vs Ammaniammal And Ors. on 8 January, 2020

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)

JUDGMENT

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

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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

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.

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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

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

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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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