IMPORTANT POINTS
In case of no partition, share of a coparcener would devolve between class I heirs in accordance with section 8 of the Succession Act.
Interest of a male Hindu in Mitakshara coparcenary would be virtually like his self acquired property. Succeeding heirs take the property per capita and as tenants in common and not as joint tenants till the property is divided, apportioned or dealt with in a family settlement.
Natural guardian cannot dispose of the share of the minor in the joint family property.

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 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 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 and 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 custo