The Supreme Court recently while discussing about the principles of succession as per the Hindu Succession Act 1956, stated that on death of a Hindu male, notional partition of his property will take place, and it will devolve on the legal heirs based on their respective shares. Thus, such property will no longer retain the character of a ‘Joint Family Property’ after the partition. The heir will take after the property as tenants-in-common and will enjoy joint possession till the property is demarcated on their respective shares as per a settlement deed.
A Bench of Justices Deepak Gupta and S Abdul Nazeer delivered this judgment in the case M Arumugam vs Ammaniammal and others. In the said case, one Moola Gounder had died in 1971, leaving behind his widow, two sons and three daughters and had not executed any will before his death. Then in 1989, the youngest daughter filed a suit for partition in 1989. The sons opposed the suit saying that a release deed was executed by the mother and the daughters by giving up their shares in favour of the sons. Later subsequently, a partition deed was executed amongst the sons, of which one of the witnesses was the husband of the plaintiff. The plaintiff then raised a plea that the release deed was void ab initio as the mother was not competent to relinquish her share by acting as her guardian.
The Trial Court then dismissed the suit by stating that the plaintiff should have challenged the release deed within three years of attaining majority. The High Court set aside the dismissal of suit and listed the following findings:
- The property continued to be joint family property in the hands of legal heirs even after the death of Moola Gounder.
- Since it was joint family property, mother could not have acted as a guardian of the minor plaintiff to relinquish her shares.
- So, the release deed was void ab initio.
The SC observed that, “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.”
The Court also referred to the Section 30 of the Act, which says that coparcenary share was capable of being disposed of by testament. “This (Sec 30) also clearly indicated 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.”
The consequence of holding the property as not joint family property was that there was no legal impediment in the mother acting as the guardian of the minor to release her share.
As per section 6 of the Hindu Minority and Guardians Act, natural guardian of the minor cannot act in respect of minor’s undivided interest in joint family property.
The Court noted that at best, the release deed was a voidable document under Section 8 of the Hindu Minority and Guardianship Act, which should have been challenged within 3 years of the plaintiff’s attainment of majority.
The Court also noted that when the release deed was executed in 1973, the plaintiff was only 17 years,. The partition deed amongst the sons was executed in 1980, in which the husband of the plaintiff was an attesting witness. The suit was filed nine years later. Based on all these finding, the SC allowed the appeal, to restore the trial court’s dismissal fo the suit.
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