M. ARUMUGAM versus AMMANIAMMAL AND ORS.
[2020] 1 S.C.R. 41, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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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 –  Joint
family – Role of Karta vis-a-vis minor members – Defendant nos.1
& 2 formed coparcenary, with their father, which owned the suit
property – Father died intestate – 1/3 of the property went to each
son and remaining one third which was the share of the father in
the coparcenary was to be inherited by defendant no.5 (wife),
defendant nos.1 & 2 and three daughters viz. the plaintiff (youngest
daughter) and defendant nos.3 & 4 – Plaintiff filed suit claiming
that the property falling to the share of the father be partitioned –
Defendant nos.1 & 2 inter alia stated that the plaintiff (minor at that
time was represented by defendant no.5), defendant nos.3-5 jointly
executed registered release deed relinquishing rights in the property
in their favour and later, a registered partition deed was executed
between defendant nos.1 & 2 and thereafter they have been in
possession of the property – Suit dismissed – High Court decreed
the suit – On appeal, held: After the death of the father, his interest
in the coparcenary property would devolve as per the provisions of
s.8 of the Succession Act since he left behind a number of female
Class-I heirs – Further, conjoint reading of s.30 with s.19 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 the submission of the plaitniff cannot be
accepted that the Karta i.e. defendant no.1 was the natural guardian
of the minor plaintiff – Karta is the manager of the joint family
property – He is not the guardian of the minor members of the joint
family – When a family settlement is taking place between the
members of the joint family and some of the members relinquish
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their share in favour of the Karta, the Karta cannot act as the
guardian of that minor whose share is being relinquished in favour
of the Karta – There would be 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 void – At best, it was a voidable document in terms of s.8
of the Guardianship Act and should have been challenged within
three years of the plaintiff attaining majority – Further, in the
circumstances of the present case it is difficult to believe that the
plaintiff was not aware of the various transfers – Judgment of the
High Court set aside and that of the trial court, restored – Hindu
Minority & Guardianship Act, 1956 – ss.6, 8 – Family Law.
Hindu Succession Act, 1956 – s.30 – Held: s.30 clearly lays
down that any Hindu can dispose of his share of the property by
Will or by any other testamentary disposition which is capable of
being so disposed of by him – Explanation to s.30 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 s.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 –
Hindu Minority & Guardianship Act, 1956 – ss.6, 8.
Hindu Succession
Act, 1956 – Proviso to s.6 – Object of –
Discussed.
Allowing the appeal, the Court
HELD: 1.1 The opening portion of Section 6, Hindu
Succession Act, 1956 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 Class-I 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
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taken place immediately before his death.  In the present case, if
partition had taken place immediately before the death of ‘MG’
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 Class-
I female heirs, 1/3 share of ‘MG’ was to devolve on the Class-I
legal heirs in accordance with Section 8 of the Succession Act.
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 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 Section 30 is conjointly
read 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 the
submission cannot be accepted 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. Section 6 of the Hindu Minority & Guardianship
Act, 1956 is not applicable in respect of undivided interest of a
minor in the joint family property but here the situation being
dealt with is where all the family members decided to dissolve
the 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. 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
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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. Further, it is difficult
to believe that the plaintiff was not aware of the various transfers.
The judgment of the High Court is set aside and that of the trial
court is restored. [Para 17-19] [52-C-E; 53-A-B]
Gurupad Khandappa Magdum v. Hirabai Khandappa
Magdum and Ors. (1978) 3 SCC 383 : [1978] 3 SCR
761 ; Commissioner of Wealth Tax, Kanpur and Ors. v.
Chander Sen and Ors. (1986) 3 SCC 567 : [1986] 3
SCR 254 ; Appropriate Authority (IT Deptt) And Others
v. M. Arifulla And Others (2002) 10 SCC 342 – relied
on.
Case Law Reference
[1978] 3 SCR 761
relied on
Para 11
[1986] 3 SCR 254
relied on
Para 12
(2002) 10 SCC 342
relied on
Para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8642
of 2009.
From the Judgment and Order dated 30.07.2008 of the High Court
of Judicature at Madras in A.S. No. 350 of 1996.
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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 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.
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 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
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[DEEPAK GUPTA, J.]
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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 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
respondents-plaintiff.  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;
…”
Reference may also be made to Section 8 of the Act, relevant
portion of which reads as follows:
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“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 sub-section (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 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
M. ARUMUGAM v. AMMANIAMMAL AND ORS.
[DEEPAK GUPTA, J.]
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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 tenants-in-common 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 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
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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.
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 Class-I 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 Class-I 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
M. ARUMUGAM v. AMMANIAMMAL AND ORS.
[DEEPAK GUPTA, J.]
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there were Class-I female heirs, 1/3 share of Moola Gounder was to
devolve on the Class-I 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 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 Class-I 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 vis-à-vis 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 vis-à-vis 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.”
1 (1978) 3 SCC 383
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 co-owners 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 tenants-
in-common 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 Class-I 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 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.
3 (2002) 10 SCC 342
M. ARUMUGAM v. AMMANIAMMAL AND ORS.
[DEEPAK GUPTA, J.]
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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 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 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
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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.
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.
Divya Pandey
Appeal allowed.
M. ARUMUGAM v. AMMANIAMMAL AND ORS.
[DEEPAK GUPTA, J.]