M. ARUMUGAM versus AMMANIAMMAL AND ORS. on 8 January 2020

M. ARUMUGAM

v.

AMMANIAMMAL AND ORS.

(Civil Appeal No. 8642 of 2009)

JANUARY 08, 2020

[S. ABDUL NAZEER AND DEEPAK GUPTA, JJ.]

Hindu Succession Act, 1956 – ss.4(b), 6, 8, 19 & 30 – Jointfamily – Role of Karta vis-a-vis minor members – Defendant nos.1& 2 formed coparcenary, with their father, which owned the suitproperty – Father died intestate – 1/3 of the property went to eachson and remaining one third which was the share of the father inthe coparcenary was to be inherited by defendant no.5 (wife),defendant nos.1 & 2 and three daughters viz. the plaintiff (youngestdaughter) and defendant nos.3 & 4 – Plaintiff filed suit claimingthat the property falling to the share of the father be partitioned –Defendant nos.1 & 2 inter alia stated that the plaintiff (minor at thattime was represented by defendant no.5), defendant nos.3-5 jointlyexecuted registered release deed relinquishing rights in the propertyin their favour and later, a registered partition deed was executedbetween defendant nos.1 & 2 and thereafter they have been inpossession of the property – Suit dismissed – High Court decreedthe suit – On appeal, held: After the death of the father, his interestin the coparcenary property would devolve as per the provisions ofs.8 of the Succession Act since he left behind a number of femaleClass-I heirs – Further, conjoint reading of s.30 with s.19 clearlyindicates that the property was not to be treated as a joint familyproperty though it may be held jointly by the legal heirs as tenantsin common till the property is divided, apportioned or dealt with ina family settlement – Even assuming that the property was a jointfamily property then also the submission of the plaitniff cannot beaccepted that the Karta i.e. defendant no.1 was the natural guardianof the minor plaintiff – Karta is the manager of the joint familyproperty – He is not the guardian of the minor members of the jointfamily – When a family settlement is taking place between themembers of the joint family and some of the members relinquish

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Atheir share in favour of the Karta, the Karta cannot act as theguardian of that minor whose share is being relinquished in favourof the Karta – There would be conflict of interest – In such aneventuality it would be the mother alone who would be the naturalguardian and, therefore, the document executed by her cannot besaid to be void – At best, it was a voidable document in terms of s.8Bof the Guardianship Act and should have been challenged withinthree years of the plaintiff attaining majority – Further, in thecircumstances of the present case it is difficult to believe that theplaintiff was not aware of the various transfers – Judgment of theHigh Court set aside and that of the trial court, restored – HinduCMinority & Guardianship Act, 1956 – ss.6, 8 – Family Law.Hindu Succession Act, 1956 – s.30 – Held: s.30 clearly laysdown that any Hindu can dispose of his share of the property byWill or by any other testamentary disposition which is capable ofbeing so disposed of by him – Explanation to s.30 provides that theDinterest of a male Hindu in Mitakshara coparcenary shall be deemedto be property capable of being disposed of by him within themeaning of s.30 – This means that the law makers intended that forall intents and purposes the interest of a male Hindu in Mitaksharacoparcenary was to be virtually like his self-acquired property –Hindu Minority & Guardianship Act, 1956 – ss.6, 8.EHindu Succession Act, 1956 – Proviso to s.6 – Object of –Discussed.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1.1 The opening portion of Section 6, HinduFSuccession Act, 1956 as it stood at the relevant time, clearlyindicates that if male descendants were the only survivors thenthey would automatically have the rights or interest in thecoparcenary property. Females had no right in the coparcenaryproperty at that time. It was to protect the rights of the womenGthat the proviso clearly stated that if there is a Class-I femaleheir, the interest of the deceased would devolve as per theprovisions of the Act and not by survivorship. The firstExplanation to Section 6 makes it absolutely clear that the interestof the Hindu coparcener shall be deemed to be his share in theproperty which would have been allotted to him if partition hadH

taken place immediately before his death. In the present case, ifpartition had taken place immediately before the death of ‘MG’then he and defendant nos. 1 and 2 would have been entitled to1/3 share each in the property. Nothing would have gone to thefemale heirs as per the law as it stood at that time. However,since partition had not actually taken place, and there were Class-I female heirs, 1/3 share of ‘MG’ was to devolve on the Class-Ilegal heirs in accordance with Section 8 of the Succession Act.Section 30 of the Succession Act clearly lays down that any Hinducan dispose of his share of the property by Will or by any othertestamentary disposition which is capable of being so disposedof by him. The explanation to Section 30 clearly provides that theinterest of a male Hindu in Mitakshara coparcenary shall bedeemed to be property capable of being disposed of by him withinthe meaning of Section 30. This means that the law makersintended that for all intents and purposes the interest of a maleHindu in Mitakshara coparcenary was to be virtually like his self-acquired property. Furthermore, when Section 30 is conjointlyread with Section 19, which provides that when two or more heirssucceed together to the property of an intestate, they shall takethe property per capita and as tenants in common and not as jointtenants. This also clearly indicates that the property was not tobe treated as a joint family property though it may be held jointlyby the legal heirs as tenants in common till the property is divided,apportioned or dealt with in a family settlement. Even assumingthat the property was a joint family property then also thesubmission cannot be accepted that the Karta i.e., defendant no.1was the natural guardian of the minor plaintiff. The Karta is themanager of the Hindu Undivided Family and acts on behalf of theentire family. Section 6 of the Hindu Minority & GuardianshipAct, 1956 is not applicable in respect of undivided interest of aminor in the joint family property but here the situation beingdealt with is where all the family members decided to dissolvethe Hindu Undivided Family assuming there was one in existence.[Parasn 10, 15-16] [49-D-G; 50-A; 51-E-G; 52-A-B]

1.2. A Karta is the manager of the joint family property. Heis not the guardian of the minor members of the joint family. WhatSection 6 of the Act provides is that the natural guardian of a AB

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Aminor Hindu shall be his guardian for all intents and purposesexcept so far as the undivided interest of the minor in the jointfamily property is concerned. This would mean that the naturalguardian cannot dispose of the share of the minor in the jointfamily property. The reason is that the Karta of the joint familyproperty is the manager of the property. However, this principleBwould not apply when a family settlement is taking place betweenthe members of the joint family. When such dissolution takesplace and some of the members relinquish their share in favourof the Karta, it is obvious that the Karta cannot act as the guardianof that minor whose share is being relinquished in favour of theCKarta. There would be a conflict of interest. In such an eventualityit would be the mother alone who would be the natural guardianand, therefore, the document executed by her cannot be said tobe a void document. At best, it was a voidable document in termsof Section 8 of the Act and should have been challenged withinthree years of the plaintiff attaining majority. Further, it is difficultDto believe that the plaintiff was not aware of the various transfers.The judgment of the High Court is set aside and that of the trialcourt is restored. [Para 17-19] [52-C-E; 53-A-B]

Gurupad Khandappa Magdum v. Hirabai KhandappaMagdum and Ors. (1978) 3 SCC 383 : [1978] 3 SCRE761 ; Commissioner of Wealth Tax, Kanpur and Ors. v.Chander Sen and Ors. (1986) 3 SCC 567 : [1986] 3SCR 254 ; Appropriate Authority (IT Deptt) And Othersv. M. Arifulla And Others (2002) 10 SCC 342 – reliedon.

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Case Law Reference

From the Judgment and Order dated 30.07.2008 of the High Courtof Judicature at Madras in A.S. No. 350 of 1996.

Jayanth Muth Raj, Sr. Adv., Roy Abraham, P. V. Dinesh, Advs.for the Appellant.

V. Prabhakar, Ms. Jyoti Parasher (for Mrs. Revathy Raghavan),Advs. for the Respondents.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. One Moola Gounder along with his two sons Palanisamy(defendant no. 1) and Arumugam (defendant no. 2) formed a coparcenarywhich owned the suit property. Moola Gounder died intestate on28.12.1971 leaving behind no Will. On his death, 1/3 of the propertywent to each son and remaining one third which was the share of MoolaGounder in the coparcenary was to be inherited by his wife (defendantno.5), two sons, (defendant nos. 1 and 2) and three daughters viz., theplaintiff and defendant nos. 3 and 4.

2. On 06.12.1989, his youngest daughter filed a suit claiming thatthe property falling to the share of Moola Gounder which was to beinherited by his six legal heirs had never been partitioned and therefore,it be partitioned in accordance with law. Written statement was filed bythe two sons in which it was mentioned that after the death of MoolaGounder, the daughters i.e., the plaintiff and defendant nos. 3 and 4 andthe mother (defendant no. 5) had jointly executed a registered releasedeed 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 deedthe plaintiff who was a minor at that time was represented by her mother,who was her natural guardian, and the mother had executed the releasedeed on behalf of the plaintiff. Similarly, defendant no. 1 had acted asthe guardian of defendant no. 2 who was also a minor at that time andsigned the release deed on behalf of both of the sons. After defendantno. 2 attained majority, a registered partition deed was executed betweenthe 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 husbandof the plaintiff and she could not feign ignorance of the same. It wasalso alleged that the amount mentioned in the release deed had beengiven to the sisters.

3. A reply written statement or replication was filed by the plaintiffin which it was urged that the release deed was void under law since the A

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Amother had no right to relinquish the share of the plaintiff without sanctionof the court.

4. The trial court dismissed the suit holding that the mother actedas the natural guardian of the minor daughter and no steps were takenby the plaintiff on attaining majority to get the release deed set asideBwithin the period of limitation of three years.

5. Aggrieved by the aforesaid judgment, the plaintiff filed an appealbefore the High Court which came to the conclusion that the property inthe hands of the legal heirs of Moola Gounder, after his death, was JointHindu Family property and the mother could not have acted as guardianCof the minor. It was, therefore, held that the release deed was void abinitio and, as such, was not required to be challenged. The court furtherheld that the property remained joint property of all the legal heirs ofMoola Gounder and decreed the suit of the plaintiff. Hence, this appealby one of the brothers who was defendant no.2 in the trial court.

6. We have heard Mr. Jayanth Muth Raj, learned senior counselfor the appellant and Mr. V. Prabhakar, learned counsel for therespondents-plaintiff. The facts are not disputed. The only issue iswhether the mother could act as the natural guardian of the minordaughters in respect of the property inherited from Moola Gounder.

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E7. Before dealing with the issues, it would be appropriate to makereference 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 guardiansof a Hindu minor, in respect of the minor’s person as well as inrespect of the minor’s property (excluding his or her undividedFinterest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, andafter him, the mother: provided that the custody of a minorwho has not completed the age of five years shall ordinarilybe with the mother; G

…”

Reference may also be made to Section 8 of the Act, relevantportion of which reads as follows:

“8. Powers of natural guardian.- (1) The natural guardian of aHindu minor has power, subject to the provisions of this section,to do all acts which are necessary or reasonable and proper forthe benefit of the minor or for the realization, protection or benefitof the minor’s estate; but the guardian can in no case bind theminor by a personal covenant.

(2) The natural guardian shall not, without the previous permissionof the court,—

(a) mortgage or charge, or transfer by sale, gift, exchange orotherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding fiveyears or for a term extending more than one year beyond the dateon which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, incontravention of sub-section (1) or sub-section (2), is voidable atthe instance of the minor or any person claiming under him.

…”

Section 4(b), Section 6, Section 19 and Section 30 of the HinduSuccession Act, 1956 (the Succession Act for short), as it stood at therelevant time read as follows:- “4(b) any other law in force immediately before thecommencement of this Act shall cease to apply to Hindus in sofar as it is inconsistent with any of the provisions contained in thisAct.”

“6. Devolution of interest in coparcenary property.-When amale Hindu dies after the commencement of this Act, having atthe time of his death an interest in a Mitakshara coparcenaryproperty, his interest in the property shall devolve by survivorshipupon the surviving members of the coparcenary and not inaccordance with this Act:

Provided that, if the deceased had left him surviving a femalerelative specified in class I of the Schedule or a male relativespecified in that class who claims through such female relative,the interest of the deceased in the Mitakshara coparcenary property A

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shall devolve by testamentary or intestate succession, as the casemay be, under this Act and not by survivorship.

Explanation 1 - For the purposes of this section, the interest of aHindu Mitakshara coparcener shall be deemed to be the share inthe property that would have been allotted to him if a partition ofBthe 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 sectionshall be construed as enabling a person who has separated himselffrom the coparcenary before the death of the deceased or any ofhis heirs to claim on intestacy a share in the interest referred totherein.”

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“19. Mode of succession of two or more heirs.- If two ormore heirs succeed together to the property of an intestate, theyshall take the property,- D

(a) save as otherwise expressly provided in this Act, per capitaand not per stripes; and (b) as tenants-in-common and not as joint tenants.”

“30. Testamentary succession.- Any Hindu may dispose of bywill or other testamentary disposition any property, which is capableof being so disposed of by him or her, in accordance with theprovisions of the Indian succession Act, 1925 (39 of 1925), or anyother law for the time being in force and applicable to Hindus.

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Explanation.- The interest of a male Hindu in a Mitaksharacoparcenary 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 anythingcontained in this Act or in any other law for the time being inforce, be deemed to be property capable of being disposed of byhim or by her within the meaning of this section.”

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8. Mr. V. Prabhakar, learned counsel for the plaintiff submits thatafter the death of Moola Gounder, the property in question was notinherited by his legal heirs in their individual rights but only as the propertyof a Hindu Undivided Family. Mr. Prabhakar strenuously urged that the H

property was a joint Hindu family property and only the Karta i.e.,defendant no. 1 could have represented the minor. The Karta was theguardian of the minor members of the joint Hindu family and, therefore,the High Court rightly held that the document which is termed to be therelease deed was a void document.

9. On the other hand, Mr. Jayanth Muth Raj, learned counsel forthe appellant submits that when the death of Moola Gounder took place,a notional partition is deemed to have taken place immediately beforehis death wherein two surviving members of the coparcenary i.e.,defendant nos. 1 and 2, got 1/3 share each in the property and theremaining 1/3 belonging to Moola Gounder was to be inherited in termsof Section 8 of the Succession Act.

10. When we read Section 6 of the Succession Act the openingportion indicates that on the death of a male Hindu, his interest in thecoparcenary property shall devolve by survivorship upon the survivingmembers of the coparcenary and not in accordance with the Act. Thatwould mean that only the brothers would get the property. However,the Proviso makes it clear that if the deceased leaves behind a femaleheir specified in Class-I of the Schedule, the interest of the deceased inthe coparcenary property shall devolve either by testamentary or byintestate succession under the Succession Act and not by survivorship.The opening portion of Section 6, as it stood at the relevant time, clearlyindicates that if male descendants were the only survivors then theywould automatically have the rights or interest in the coparcenary property.Females had no right in the coparcenary property at that time. It was toprotect the rights of the women that the proviso clearly stated that ifthere is a Class-I female heir, the interest of the deceased would devolveas per the provisions of the Act and not by survivorship. The firstExplanation to Section 6 makes it absolutely clear that the interest of theHindu coparcener shall be deemed to be his share in the property whichwould have been allotted to him if partition had taken place immediatelybefore his death. In the present case, if partition had taken placeimmediately before the death of Moola Gounder then he and defendantnos. 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 atthat time. However, since partition had not actually taken place, and A

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Athere were Class-I female heirs, 1/3 share of Moola Gounder was todevolve on the Class-I legal heirs in accordance with Section 8 of theSuccession Act.

11. In Gurupad Khandappa Magdum vs. Hirabai KhandappaMagdum and Ors.[1], the main issue was as to what share a HinduBwidow would get in terms of Sections 6 and 8 of the Succession Act.This Court held that the partition which was a deemed partition cannotbe limited to the time immediately prior to the death of the deceasedcoparcenary but “all the consequences which flow from a real partitionhave to be logically worked out, which means that the share of the heirsmust be ascertained on the basis that they had separated from oneCanother and had received a share in the partition which had taken placeduring the life time of the deceased.” The Court further held that thepartition has to be treated and accepted as a concrete reality, somethingthat cannot be recalled at a later stage.

12. In Commissioner of Wealth Tax, Kanpur and Ors. vs.DChander Sen and Ors.[2], the dispute related to a joint family businessbetween a father and son. This business was divided and thereafter,carried by a partnership firm of which both were partners. The fatherdied leaving behind his son, two grandsons and a credit balance in theaccount of the firm. The issue that arose was whether the credit balanceEin the account left behind by the deceased was to be treated as jointfamily property or the property was to be distributed to Class-I legalheirs in accordance with Section 8 of the Succession Act. This Courtheld that Succession Act supersedes all Mitakshara law. The relevantportion of the judgment reads as follows:-F“22.… It would be difficult to hold today the property whichdevolved on a Hindu under Section 8 of the Hindu SuccessionAct would be HUF in his hand vis-à-vis his own son; that wouldamount to creating two classes among the heirs mentioned in classI, the male heirs in whose hands it will be joint Hindu familyproperty and vis-à-vis son and female heirs with respect to whomGno such concept could be applied or contemplated. It may bementioned that heirs in class I of Schedule under Section 8 of theAct included widow, mother, daughter of predeceased son etc.”

1 (1978) 3 SCC 383H2 (1986) 3 SCC 567

Accordingly, it was directed that the credit balance would beinherited in terms of Section 8 of the Succession Act.

13. In Appropriate Authority (IT Deptt) And Others vs. M.Arifulla And Others[3]the issue which arose was whether the propertyinherited in terms of Sections 6 and 8 of the Succession Act was to betreated as the property of co-owners or as joint family property. TheCourt held as follows:- “3. … This Court has held in CWT vs. Chander Sen that aproperty devolving under Section 8 of the Hindu Succession Act,is the individual property of the person who inherits the same andnot that of the HUF. In fact, in the special leave petition, it isadmitted that respondents 2 to 5 inherited the property in questionfrom the said T.M. Doraiswami. Hence, they held it as tenants-in-common and not as joint tenants.”

14. Applying the principles laid down in the aforesaid cases, it isapparent that after the death of Moola Goundar, his interest in thecoparcenary property would devolve as per the provisions of Section 8since he left behind a number of female Class-I heirs.

15. There is another reason to take this view. Section 30 of theSuccession Act clearly lays down that any Hindu can dispose of hisshare of the property by Will or by any other testamentary dispositionwhich is capable of being so disposed of by him. The explanation toSection 30 clearly provides that the interest of a male Hindu inMitakshara coparcenary shall be deemed to be property capable ofbeing disposed of by him within the meaning of Section 30. This meansthat the law makers intended that for all intents and purposes the interestof a male Hindu in Mitakshara coparcenary was to be virtually like hisself-acquired property. Furthermore, when we conjointly read Section30 with Section 19, which provides that when two or more heirs succeedtogether to the property of an intestate, they shall take the property percapita and as tenants in common and not as joint tenants. This alsoclearly indicates that the property was not to be treated as a joint familyproperty though it may be held jointly by the legal heirs as tenants incommon till the property is divided, apportioned or dealt with in a familysettlement.

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A16. Even assuming that the property was a joint family propertythen also we cannot accept the submission that the Karta i.e., defendantno. 1 was the natural guardian of the minor plaintiff. The Karta is themanager of the Hindu Undivided Family and acts on behalf of the entirefamily. True it is that Section 6 of the Act is not applicable in respect ofundivided interest of a minor in the joint family property but here we areBdealing with a situation where all the family members decided to dissolvethe Hindu Undivided Family assuming there was one in existence.

17. A Karta is the manager of the joint family property. He is notthe guardian of the minor members of the joint family. What Section 6of the Act provides is that the natural guardian of a minor Hindu shall beChis guardian for all intents and purposes except so far as the undividedinterest of the minor in the joint family property is concerned. Thiswould mean that the natural guardian cannot dispose of the share of theminor in the joint family property. The reason is that the Karta of thejoint family property is the manager of the property. However, this principleDwould not apply when a family settlement is taking place between themembers of the joint family. When such dissolution takes place andsome of the members relinquish their share in favour of the Karta, it isobvious that the Karta cannot act as the guardian of that minor whoseshare is being relinquished in favour of the Karta. There would be aconflict of interest. In such an eventuality it would be the mother aloneEwho would be the natural guardian and, therefore, the document executedby her cannot be said to be a void document. At best, it was a voidabledocument in terms of Section 8 of the Act and should have beenchallenged within three years of the plaintiff attaining majority.

18. We may note that there are other reasons to hold that theFcase set up by the plaintiff was not correct even to her knowledge.Though the plaintiff was a minor when the release deed dated 10.03.1973was 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 comprisingGthe property now claimed by the plaintiff. The partition deed dated24.04.1980, which was duly registered, was signed by the husband ofthe plaintiff as an attesting witness. Few days later, on 30.04.1980 thetwo brothers executed a settlement deed in favour of their mother,defendant no. 5 which was also signed by the plaintiff’s husband aswitness. After this partition, the two brothers remained in possession ofH

M. ARUMUGAM v. AMMANIAMMAL AND ORS.

the property and executed various transfers from this property. Therefore,it is difficult to believe that the plaintiff was not aware of the varioustransfers.

19. In view of the above, we allow the appeal, set aside the judgmentof the High Court dated 30.07.2008 and restore the judgment of the trialcourt dated 29.11.1994. Pending application(s) if any, shall also standdisposed of.

Divya Pandey

Appeal allowed.

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