As per new judgment of supreme court on Hindu succession act 1862, the joint family property section 6 and section 8 of the act was referred where the court held that on the death of the a Hindu male the property would be divided to the legal heirs as per notional partition and would be entitled to receive their respective shares. Therefore such property would not be known as joint family property it hence lost the title of ‘Joint Family Property’ after the partition.
After partition the heirs would be known as common tenants. Till the settlement deed is separated the legal heirs would be able enjoy the joint possession of the property as ‘Joint Family Property’.
A bench of Justices Deepak Gupta and S Abdul Nazeer delivered the judgment in the case M Arumugam vs Ammaniammal and others.
Moola Gounder died leaving behind no will. In 1989, the youngest daughter filed a suit for partition in accordance with law. Written statement was filed by the two sons in which registered release deed the rights in the property was renounced at the time of execution the plaintiff was a minor and the natural guardian of the minor i.e. mother signed the deed and the others sisters also renounced the rights in the property. It was also claimed that during the partition the plaintiff husband was present and she could not feign ignorance of the same and the amount mentioned in the release deed was given to sisters. The plaintiff replied in written statement, stating that the mother had no rights to renounce the share without the court approval. The trial court dismissed the suit by holding that the plaintiff should have taken the step on attaining majority within the period limit of three years to release deed. Then the plaintiff was not satisfied by the trial court judgment and files an appeal in high court.
High court Judgment: The high court came to conclusion that release deed is void ab initio and such could not be challenged since after the death of Moola Gounder the property remained the joint property as it was in the hands of the legal heirs. Since it was Joint Family Property, mother could not act as natural guardian of the minor and renounce her share. The high court decreed the suit. The brothers of the plaintiff were not satisfied with the judgment of the High court and appealed to Supreme Court.
Supreme Court Judgment: The Supreme Court emphasis on the sec 6 and sec 8 of the Hindu minority and guardianship act 1956: Sec 6 natural guardians of the 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),are (a) In 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 mother; ….” Reference may also be made to section 8 of the act, relevant portion of which reads as follows: Section 8 powers of natural guardian: 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 realization, protection or benefit of the minor’s estate: but the guardian can in no case bind the minor by personal covenant. 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. 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. Sec 30 of the succession act clearly lays down 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 shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. 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 common tenants and not as joint tenants.” 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. The relevant portion of the judgment reads as follows: 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.” Accordingly, it was directed that the credit balance would be inherited in terms of Section 8 of the Succession Act.