Madras High Court
K. Jagannathan vs A.M. Vasudevan Chettiar And 12 Others on 25 January, 2001
Equivalent citations: AIR2001MAD184, (2001)1MLJ614, AIR 2001 MADRAS 184, (2001) 1 MAD LJ 614 (2001) 2 MAD LW 492, (2001) 2 MAD LW 492
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Plaintiff in O.S.No.20 of 1983 on the file of Subordinate Judge, Pattukottai is the appellant in the above appeal. He filed the said suit for partition and separate possession of his 1/9th share. By judgment and decree dated 4.5.85 the learned Subordinate Judge dismissed the suit. Aggrieved by the said dismissal, the unsuccessful plaintiff has filed the present appeal before this Court.
2. The case of the plaintiff as seen from the amended plaint is briefly stated hereunder:-
Defendants 1, 5 and 8 are brothers and sons of one A.R. Manickam Chettiar. Defendants 6 and 7 are the sons of 5th defendant. The plaintiff and the 9th defendant are the sons of 8th defendant. All the above said persons constitute a Hindu joint family. A.R. Manickam Chettiar was a leading businessman of Madukkur. Even during his life time his 3 sons were doing business on behalf of their family. They acquired vast extent of lands and houses. The members of the family were doing business on behalf of the joint family, either in their individual names or in the names of two or three persons among them. The various business enterprises did not arise out of a contract but has been created by operation of Hindu Law between the members of an undivided Hindu family. The joint family was doing the following business:-
(1) Sri Dhaniya Lakshmi Vilas Rice Mill. Madukkur.
(2) Sri Mumgan Rice Mill, Madukkur.
(3) Fertiliser sales in the name of A.R. Manickam Chettiar Sons, Natarajan and then V. Chandrasekaran. (4) Groundnut kernal sales under the name and style V. Chandrasekaran. (5) Dalmia Cement Agency in the name of V. Chandrasekaran.
(6) Neiveli Urea Agency, Mannargudi.
(7) Highways contract in the name of A.M. Nagamaiyan Chettiar, (8) Public Carrier MDF 2290 in the name of A.M. Vasudevan, (9) National Credit Corporation, Madukkur (A.M. Nagamaiyan and V. Chandrasekaran were partners in the above concern on behalf of the family).
3. It is further stated that in 1976, misunderstandings arose between the first defendant and 5th defendant on the one hand and the 8th defendant on the other hand. The first and fifth defendants were powerful persons and they conspired to take over the entire assets leaving the 8th defendant and the members of his branch with very little out of the assets in the joint family. The 8th defendant was a man of timid nature. He was also physically weak. In pursuance of a conspiracy, they extracted a Release Deed from him on 1.9.77. Under the Release Deed, the defendants 1 and 5 retained Sri Dhaniyalakshmi Vilas Rice Mill which is the biggest Rice Mill in Madukkur. Under the same document, they aliened to the 8th defendant a very small cooly Rice Mill by name Sri Murugan Rice Mill, the value of which is less than 1/8th, of Dhaniya Lakshmi Vilas Rice Mill. In the said Release Deed, the plaintiff is not a party.
4. Defendants 1 and 5 also brought into existence another Partition Deed dated 28.8.77. Under the said deed, the defendants I to 9 and the plaintiff were all allotted shares. This partition deed was also the result of conspiracy and fraud played by the defendants 1 and 5. The plaintiff has been aliened infinite small share in this deed under schedule No.10 and his interest has greatly suffered. The Release Deed as well as the Partition Deed are not valid or binding on the plaintiff. The plaintiff was a minor at the time of the execution of the above mentioned document. He was born on 28.4.1962. In the partition deed dated 28.8.77, the plaintiff as a minor was represented by his mother Tmt. K. Vathsala. She is neither a de facto guardian nor a natural guardian. The erstwhile minor can file a suit for partition within 3 years after attaining majority without seeking to set aside the said partition deed. All the members of all the branches are allotted shares per capita which is opposed to the principles of Hindu Law. A huge sum of Rs.15,00,000 which was available on the date of the partition, was left out of the scope of the partition deed. Even the partition with reference to lands and buildings are not equal. The father of the plaintiff (8th defendant) was guilty of negligence in signing the partition deed and the release deed. The 8th defendant was not allowed to think independently or to take legal advice. In these circumstances, the plaintiff has filed the present suit claiming 1/9th share in all the joint family items. So he sent a lawyer notice on 15.3.83 to all the defendants and called upon them to divide the properties. Defendants 1 and 5 issued reply on 5.4.83. They had stated in the reply notice dated 5.4.83 that Sri Dhaniya Lakshmi Vilas Rice Mill is not a joint family business, but a partnership firm exclusively between 3 brothers. The business ventures in the individual names of other defendants are their own is not true. In conclusion they have rejected the plaintiffs demand for partition. After suit, the defendants I to 7 purchased properties in the names of defendants 10 to 13 benami from and out of the income of the joint family properties in their possession with a view to deny the plaintiffs legitimate share. They have also become proper and necessary parties. Hence, they have been impleaded as parties to the suit. The plaintiff also entitled to a share in the properties purchased in the name of the defendants 10 to 13.
5. First defendant filed a written statement. The defence taken by the first defendant is briefly stated hereunder:- The plaint is the outcome of a conspiracy between the plaintiff and defendants 8 and 9 to harass the defendants 1 to 7. The plaintiff is not entitled to ignore the partition by family arrangement or re-open the same, hence the present suit for partition is not maintainable as there is no joint family as claimed in the plaint. A.R. Manickam Chettiar died when the first defendant was hardly 19 years old and defendants 5 and 8 were 13 and 5 years respectively. While so it is false to contend that defendants 2 to 4 were doing business on behalf of the family, items 1, 3, 7 in para 3 of the plaint and schedule 'G' in the list of properties were alone the joint family business prior to 1.4.1965. Item 3 was run in the name and style of A.R.M. Sons and not in the name of Natarajan or Chandrasekaran. In item 2, the business was run by A.R.M. Sons partnership firm, but the properties i.e., moveables and immoveables of item 2 originally belonged to the joint family. Items 2, 6 and 7 were partnership firm business and not joint family business. Items 6 and 7 ceased to exist after 1977. Item 8 was owned by a partnership firm and not as joint family property and it had already been sold. Item 9 is a partnership business consisting of 3rd and 5th defendants along with third party partners. Sri Dhanyalakshmi Vilas Rice Mill is not the joint family properties or business after 1.4.1965. At the instance of the father of the plaintiff, the 8th defendant, his 2 brothers entered into a partition agreement in respect of the business and assets of the said mill and on 31.3.65 the agreement was written in triplicate signed by all the three brothers each taking one. On 1.4.1965 an instrument of partnership agreement in pursuance of the above said partial partition arrangement was entered into to run the business in the name and style of A.R. Manickam Chettiar and sons. The three brothers represented the respective branch in the said partnership. Sri Dhanyalakshmi Vilas Rice Mill was one of the business of the said firm and the site and building and machineries of the mill forming part of the assets of the mill.
6. It is further stated that the three brothers worked out a division among the members of their respective families, in so far as assets and liabilities and stock in trade of the firm. The share of the amount allotted to the members interse of each branch was taken as loan or advance of the respective members for which interest was payable. Therefore, the 3 brothers alone in their individual capacity became the partners of the firm. The plaintiff and the 9th defendant had been represented by their father, the 8th defendant and the account books evidencing the said partition among the members of each branch signed as such by all the 3 brothers and their major sons on 1.4.73. This is reiterated and confirmed by an agreement of partnership duly signed by all the three brothers on 25.3.74. On 25.10.76 they executed a Muchalika in favour of their three brothers-in-law. After taking into consideration of all the facts, they effected the family arrangement confirming the oral partition in February, 1976 and effecting a division of partnership firm assets and liabilities, cash etc., and this was accepted by all the three brothers by giving their consent in writing on 2.2.1977 to the mediators. The site and building of Sri Murugan Flour, Paddy Rice Mill were joint family properties. But machineries belong to A.R.M. Sons firm. In effecting a division among the members inter se of each brothers or each branch the site and buildings of Sri Dhanyalakshmi Vilas Rice Mill and the machineries of Sri Murugan Mill was treated as firm properties and assets. In working out of the allotment accepted and consented to on 2.2.1977 by the 3 brothers details were worked out recognising the earlier family arrangement effected by their brothers-in-law by a document dated 7.5.1977 and written and duly signed by all the 3 brothers and attested by 2 of 3 mediators. After deliberation and after thorough discussion, each of the three brothers effected a division of immovable and other properties allotted as per family arrangement again among the members of the family. Thereafter, the partition deed entered into the properties allotted to the share of each brother as per document dated 7.5.77 have alone been divided among the members of each branch and it was not a division per capita. It was only a suggestion of 8th defendant, the mother of the plaintiff was shown as guardian. The 8th defendant left the firm out of his own free will and volition and executed a release deed on 1.9.77 as per the terms of the documents, namely, the partition and release deeds. Parties have been in enjoyment of properties as per separate owners. With these averments, the 1st defendant, prayed for dismissal of the suit with costs.
7. 5th defendant filed a separate written statement wherein it is stated that defendants 10 to 13 are unnecessary parties to the suit. There is no joint family or alleged joint family for partition. The suit is bad for non-joinder of necessary parties and properties.
8. Defendants 10 and 11 in their written statement have stated that the allegations in para 9 (a) of the plaint that properties have been purchased benami in the name of these defendants by defendants 1 to 7 by utilising joint family funds is nothing but travesty of truth. There is no joint family or the alleged joint family funds for effecting the sale by these defendants. The plaintiff included the partnership firm's properties and partners without the partnership firm as one of the party. The suit as framed is not maintainable.
9. 12th defendant has filed a written statement wherein it is stated that there is no joint family or its funds available for partition. The Andavar Rice Mill referred in the 'H' schedule of the plaint was purchased by a registered partnership firm. The purchase, which was made out of the independent funds of the respective partners of the said firm, is really for the benefit of those partners and not for anybody else. The suit as framed without getting the declaration of the benami nature of the transaction is not maintainable. The plaintiff is not entitled to any share in the properties belonging to the said partnership firm.
10. In the light of the above pleadings, the plaintiff has been examined as P.W.1 and he produced and marked Exs. A-1 to A-13 in support of his claim. On the other hand, first defendant has been examined as D.W. 1 and marked Exs. B-1 to B-42 in support of their defence. The learned Subordinate Judge, after framing necessary issues and after considering oral and documentary evidence and after accepting the earlier partition Ex.A-4 dated 28.8.77 and the Release Deed Ex.A-5 dated 1.9.77 executed by the 8th defendant as true and valid, dismissed the suit without costs; hence the present appeal.
11. Heard the teamed counsel for the appellant as well as respondents.
12. Mr. R. Sekar, learned counsel appearing for the appellant, after taking us through the entire pleadings, oral and documentary evidence, would contend that the partition deed-Ex. A-4 and the Release Deed-Ex. A-5 are not valid or binding on the plaintiff since he was a minor at the time of execution of the said documents. He also contended that inasmuch as as per Section 6 of the Hindu Minority and Guardianship Act, 1956, father alone is the natural guardian for the property of the minor, in the partition deed Ex. A-4 dated 28.8.77, the minor plaintiff was represented by his mother Tmt. K. Vathsala and the said transaction involving a minor not properly represented is void ab initio and has not come into existence in so far as the minor is concerned. The 'erstwhile minor can file a suit for partition within 3 years after attaining majority to set aside the partition deed. He further contended that in view of imbalance in the division, particularly in the branch allotted to the 8th defendant, Exs. A-4 and A-5 are unconscionable. He further contended that though Sri Dhaniya Lakshmi Vilas Rice Mill was a joint family property, the same was included as partnership firm property and hence the consequential Release Deed Ex.A-5 dated 1.9.77 cannot be sustained. He also contended that the father of the plaintiff that is 8th defendant was guilty of negligence in signing Exs.A-4 and A-5, and that he was not allowed to think independently or to take legal advice. On the other hand, Mr. G. Subramaniam, learned senior counsel for respondents 1 to 4 as well as Mr. S. Sampathkumar, learned counsel for respondents 5 to 7, would contend that inasmuch as there was a division in status even in 1975 and 1977, the suit laid on the basis that the family continues to be joint cannot be sustained. In Ex.A-4, the 8th defendant's branch was allotted with reasonable share in all the properties. After partition in 1977, the plaintiff, his father, brother namely defendants 8 and 9 respectively dealt with their respective properties; accordingly the present suit for partition is not maintainable. They also contended that section 8 of the Hindu Minority and Guardianship Act, 1956 applies only (o separate property of minor and the same is not applicable to his undivided share. In any event, according to them, in view of Section 6, as interpreted by the Supreme Court, the action of the mother representing her minor son (plaintiff herein) cannot be faulted with. They also contended that in view of Section 12 of the said Act and also of the fact that after execution of Exs.A-4 and A-5, Revenue records have been changed, and parties have paid their taxes and also sold certain properties, the only remedy open to the plaintiff is to file a suit to set aside the earlier partition. They further contended that in the absence of specific plea and evidence to show that the earlier partition is un-equal and also in the absence of any plea that the same was made out of coercion or indue influence and also of the fact that though his father is arrayed as 8th defendant, he failed to come and depose before the Court, even on the ground of equity, the plaintiff has no case; accordingly they prayed for dismissal of the suit.
13. We have carefully considered the rival submissions.
14. We have already referred to the relationship of the parties. Though several contentions have been raised with regard to the partition under Ex.A-4, dated 28.8.1977, that the 8th defendant was misled and he was not given equal shares and at any rate properties, as rightly contended by the contesting respondents, there is no specific plea and evidence stating that the earlier partition is un-equal or 8th defendant was coerced by defendants 1 and 5 to execute the Deed. In the plaint, particularly in para 4, it is stated that the 1st and 5th defendants were powerful persons and they conspired to take over the entire assets leaving 8th defendant and the members of his branch with very little out of the assets in the joint family. It is further pleaded that 8th defendant was a man of timid nature and he was physically weak. Further, in para 5 it is stated that partition deed-Ex.A-4 dated 28.8.77 was the result of conspiracy and fraud played by defendants 1 and 5. In para 6 it is stated that 8th defendant was not allowed to think independently or to take legal advice. Except the above said averments, the plaintiff has not cited any specific instance regarding "coercion or undue influence". Like-wise, except the oral evidence of P.W.I, even the above referred allegations have not been substantiated by placing any other evidence. Admittedly, his father and brother namely 8th and 9th defendants respectively are parties to the suit, and for the reasons best known to him, 8th defendant did not submit his written statement and has also avoided the witness box. It is not clear why he did not come and depose before the Court informing the reason for execution of Exs. A-4 and A-5. In the absence of any such evidence, we are unable to accept the stand taken by the plaintiff.
15. It is the case of the plaintiff that both the partition deed Ex.A-4 dated 28.8.77 and Release Deed Ex.A-5 dated 1.9.77 are void ab initio and not binding on him. It is also definite case that on mis-representation, the 8th defendant had executed both the said documents, hence the same are not binding on him. Ex. A-4 dated 28.8.77 is a registered partition deed executed by Vasudevan Chettiar and other 9 persons, A photostat copy of the said document had been filed on the side of the plaintiff and marked as such (Ex. A-4). EX. A-5 dated 1.9.77 is executed by 8th defendant releasing his right in respect of Sri Dhanyalakshmi Vilas Rice Mill in favour of defendants 1 and 5. Here again, a photostat copy of the registered Release Deed had been marked as Ex.A-5 on the side of the plaintiff. As stated earlier, the plaintiff challenges both these documents on two grounds, namely, that defendants 1 and 5 mis-represented his father 8th defendant and that in Ex.A-4, though his father is alive, the plaintiff who was minor at that time, was represented by his mother as natural guardian, which is opposed to Section 6 of The Hindu Minority and Guardianship Act, 1956 (herein-after referred to as "the Act") With regard to the first objection, we have already referred to the relevant plea made in the plaint. We have also observed that though his father is arrayed as 8th defendant in the suit, he has" not chosen to file a written statement highlighting his case and he was also not examined by the plaintiff to substantitate his plea. As rightly observed by the Court below, there is no reason for non-examination of the 8th defendant. In this regard, the following recital in Ex.A-4 is relevant:-
It is clear that all the sharers were given properties including the plaintiff represented by his mother. Even P.W.1 has admitted that after partition, they effected changes in the Revenue records by securing pattas in their favour and paid taxes to the Government separately. As a matter of fact, some of the sharers have sold their shares to third parties. In this regard, it is relevant to refer the following documents; - Exs, B-36, B-39, B-40 and B-41. Under Ex. B-36 dated 24.8.81, his mother and guardian after referring the earlier partition under Ex.A-4 dated 28.8.77, sold a portion of the property described in the schedule therein for Rs.5,400 in favour of one Marimuthu, Kasankadu village, Pattukottai taluk. A perusal of Ex. B-36 shows that there is a reference of the earlier partition under Ex, A-4, as well as possession and enjoyment of the said property by them after partition. It is also clear from the said recitals that the said property had been sold in order to purchase another land in the name of the minor. The said transaction is admittedly prior to the suit. It is clear from Bx.B-36 that Ex.A-4 has been acted upon, and after partition, the properties came under the enjoyment of the respective sharers and some of them also disposed of certain portions to third parties, in such circumstances, we are unable to accept the claim of the plaintiff with regard to Ex.A-4.
16. Ex.B-38 dated 19.8.1983 is a sale Deed executed by one Pichayammal in favour of the brother of the plaintiff, namely, 9th defendant herein. The 8th defendant himself had sold certain properties in favour of one Mohammed Meera Rowther on 12.3.84 by a registered sale-deed and the same had been marked as Ex. B-39. Like-wise, the plaintiff's brother Ramachandran-9th defendant had also sold certain properties in favour of the said Mohammed Meerasa Rowther on 14.3.84 under Ex.B-40. The plaintiff himself had sold a portion of his land on 27.3.84 to Mohammed Meerasa Rowther. The said sale-deed had been marked as Ex.B.41. No doubt, all the said transactions, namely, Exs. B-39 to B-41 were effected after the filing of the suit. However, as rightly contended by the learned counsel for the respondents, his father, brother and plaintiff himself had sold certain properties allotted to them under Ex.A-4, to third parties. We have already observed that after Ex.A-4, the defendants 8 and 9 as well as the plaintiff himself were enjoying their respective shares and taxes and kists pertaining to their properties were being paid by them. Exs. A-6 to A-8 are house-tax and land kist receipts standing in the name of the plaintiff.
17. One other important thing to be noted here is Ex. B-36 dated 24.8.81, which is a Sale-deed executed by plaintiff's mother in favour of one Marimuthu. It is not disputed that the plaintiff was born on 28.4.1962. If it is so, he was aged about 19 years at the time of execution of Ex. B-36 and there is no doubt about it. Here again, admittedly, the plaintiff did not take any step to question. Ex.B-36 till date. We have already referred to the other transactions made under Exs.B-39 to B-41 by the plaintiffs, father-8th defendant, his brother 9th defendant and plaintiffs himself. In all these documents, there is a specific reference about the earlier partition under Ex.A-4,dated 28.8.77. Considering all the above features, particularly of the fact that though the plaintiff completed 18 years at the time of execution of Ex.B-36, he failed to question the said document and in view of various transactions under Exs. B-38, B-39, B-40 and B-41 by the 8th and 9th defendants as well as the plaintiff himself, we are unable to accept the stand taken by the plaintiff and we hold that the division effected under Ex. A-4 dated 28.8.77 among the sharers is valid and binding on the plaintiff.
18. Even before execution of Ex. A-4, it is seen from the evidence of D.W.1 that defendants 1, 5 and 8, who are the sons of A.R. Manickam Chettiar, had entered into a family arrangement by way of Ex.B-1 document dated 31.3.65. It is further seen that after Ex.B.1, all the three brothers, namely, defendants 1, 5 and 8 were doing business jointly. Ex.B-2 dated 1.4.65 is the joint partnership agreement between the said persons. After the formation of the partnership firm, the firm was assessed to income-tax as evidenced by Ex.B-3 dated 21.3.67. Ex.B-4 is the account book dated 1.4.73 for the year 1973-74, in which at page No. 18 the 8th defendant and his children have put their signatures. Ex.B-5 dated 1.4.73 is the estimate of the Engineer pertaining to Sri Dhaniya Lakshmi Vilas building, while Ex.B-6 dated 25.3.74 is the partnership deed in respect of A.R. Manickam Chettiar Sons. On 25.10.76 the defendants 1, 5. and 8 had executed a Muchalika which had been marked as Ex.B-8. The said document came to be executed by them agreeing to partition their properties. Pursuant to the said Muchalika-Ex.B.8 all the sharers had convened a panchayat and as per the decision taken in it, the sharers namely defendants 1, 5 and 8 divided their properties. This is clear from Ex.B-9, in which all the three sharers, namely, defendants 1, 5 and 8 have signed acknowledging the proposed division. The properties to be allotted in favour of the 8th defendant finds a place in Muchalikas-Exs. B-11 and B-12. It is also clear that during such deliberation, 8th defendant had raised certain objections which is evident from Ex.B-13. According to D.W.1, the said objections were written by 8th defendant himself. As rightly observed by the Court below, though this has been objected to by P.W.1, admittedly, he has not chosen to examine any one in support of his objection. Ex.B-15 is a draft partition deed between defendants 1, 5 and 8. It (Ex.B-15) contains the signatures of all the three sharers. Ex.B.16 shows that 8th defendant had sent a note conveying certain objections. After such deliberation and discussion, and in consultation with the panchayatdars, after execution of the Muchalikas, 8th defendant would have come to a conclusion to make partition and release certain properties and accordingly signed in Exs. A-4 and A-5. All the above materials would clearly show that before the execution of Ex. A-4, the sons of A.R. Manickam Chettiar, after deliberation and discussion in the presence of the panchayatdars, executed the Muchalikas and thereafter finally effected the division and executed Ex.A-4 partition deed dated 28.8.77. In the light of the abundant factual particulars, as narrated above we are unable to agree with the claim made by the plaintiff/appellant herein with regard to execution of Ex.
19. Coming to Ex.A-5-Release Deed and the claim of the plaintiff in Sri Dhaniyalakshmi Vilas Rice Mill. Before considering Ex.A-5-Release deed dated 1.9.77 releasing his right in the said Rice Mill in favour of defendants 1 and 5, it is useful to refer the Muchalika Ex.B-8 executed by defendants 1, 5 and 8 dated 25.10.76 in which they agreed to divide their properties, business etc. it is the definite case of D.W.1 that as on 1.4.65, defendants 1, 5 and 8 were partners of the firm and the said Sri Dhanyalakshmi Rice Mill was under their enjoyment. In other words, according to the defendants, Sri Dhanyalakshmi Rice Mill is not the joint family property, but it is a property of the partnership firm. Even in Ex.A-4, it is specifically mentioned that, The 8th defendant has admitted the above fact and signed in Ex.A-4. It is further seen that pursuant to the agreement made in the presence of the panchayatdars as evidenced from Muchalikas, the Dhanyalakshmi Rice Mill, lorry and other business were agreed to be looked after by the 1st and 5th defendants whereas the Murugan Rice Mill, accessories thereto were agreed be looked after by the 8th defendant, in the light of the claim of the plaintiff, we have also carefully perused the Muchalikas executed pursuant to the discussion, deliberation and as per the advice of the panchayatdars, after the division as well as allotment of shares to the first, 5th and 8th defendants. Though it is contended by the plaintiff that when compared to Sri Dhanyalakshmi Rice Mill, Sri Murugan Flour and Ricemill, allotted to the 8th defendant-is a small one, we are satisfied that 8th defendant and his branch were allotted sufficient other properties as seen from Exs. B-9 to B-11. We also verified the schedule appended to Ex.A-4 and noted the properties allotted to defendants 1,5 and 8, and after verification, we do not find any acceptable material to show that 8th defendant and his branch were allotted insufficient properties; accordingly we reject the contra argument made by the learned counsel for the appellant. There is no substance in the contention of the learned counsel for the appellant that Exs, A-4 and A-5 are unconscionable documents. On the other hand, we are satisfied that 8th defendant and his branch were given adequate and sufficient properties both movable and immovable. We also reject the contention of the learned counsel for the appellant that the Court below has not considered Exs, A-4, A-5, B-1 and B-2. On the other hand, we are satisfied that the Court below after appreciation of the evidence both oral and documentary, particularly after considering Exs, A-4, A-5. B-1 and B-2, rightly rejected the claim of the plaintiff.
20. Now we shall consider whether the contention of the appellant that the representation of the mother as natural guardian for the minor is sustainable or not? In this regard, it is relevant to refer certain provisions from the Hindu Minority and Guardianship Act, 1956.
"Section 4. Definitions, "In this Act.-
(b) "guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes-
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor's father or mother,
(iii) a guardian appointed or declared by court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards;
(c) "natural guardian" means any of the guardians mentioned in Section 6, Section 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;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;
(c) in the case of a married girl-the husband.
Section 11. De facto guardian not to deal with minor's property,- After the commencement of this Act. no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
Section 12. Guardian not to be appointed for minor's undivided interest in joint family property,- Where a minor has an undivided interest in joint family property and me property, is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest;
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest."
It is clear from the above provisions that in respect of minor person and his property, his father is the natural guardian and only after him, his mother can act as a natural guardian. By relying on the above statutory provisions, particularly' by pointing out Section 6(a), learned counsel for the appellant would contend that while executing in Ex. A-4, the plaintiff, who was a minor at that time, was represented by his mother as natural guardian which is contrary to Section 6 of the Act; accordingly the division under Ex.A-4 is void ab initio. In support of the said contention, learned counsel for the appellant relied on a decision of the learned Single Judge of this Court (S.S. Subramani, J.) in the case of Govindaraju Padayachi. P. and another v. V.V.O Malavaraya Nayanar and others, 1997 (3) L.W. 586 in that case, maternal uncle of a minor by acting as minor's guardian along with the mother of the minor, alienated minor's properties, inasmuch as in the said alienation, the minor was represented by his maternal uncle along with his mother, the said transaction was rightly not accepted. In the light of the said factual position, the said decision is not applicable to the present case.
21. The other decision referred to by the learned counsel for the appellant is in Panni Lal v. Rajinder Singh, . After referring to Section 8 of the Act, Their Lordships have held that father is the natural guardian and mother could be considered as natural guardian only if the father is not taking any interest in the affairs of the minor and the minor is in the exclusive custody of the mother. In that case, a sale was made by the mother on behalf of the minor and notwithstanding the fact that father attested the document. Their Lordships have held that the sale was not merely voidable under Section 8 but void, being outside the purview of the section. It is true that the provisions of the Act are devised to fully protect the property of a minor, even from the depredations of his parents, it is clear from the said decision that Section 8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the court. Here, in our case, admittedly the mother has not alienated the property of the minor under Ex.A-4. Under the said document (Ex.A-4), joint family properties were divided and the minor was represented by his mother as guardian. Though father is a natural guardian as per Section 6, it was the father who permitted the mother to act as the guardian of the minor and he did not raise any objection at the time of execution of Ex.A-4. Though the decision of the Supreme Court in Panni Lal v. Rajinder Singh, shows that mother cannot act as a natural guardian when father is alive, we shall consider this question in detail by referring the latter decisions of the Hon'ble Supreme Court cited by Mr. G. Subramaniam, learned senior counsel for the respondents 1 to 4. Before going into the decisions, we once again refer that it is the contention of the respondents that Section 8 of the Act applies only to separate property of the minor and the same cannot be applied to his or her undivided interest in joint family property. This is also clear from the language used in Section 6 of the Act. For the sake of repetition, we say that it; is not the case of alienation of minor's property by the mother under Ex.A-4. In Ex.A-4, the minor plaintiff was represented by his mother as guardian in respect of his interest in the joint family property.
22. The first decision relied on by Mr.G. Subramaniam, learned senior counsel is the judgment of the Supreme Court in Githa Hariharan v. Reserve Bank of India, . The Honourable three Judges Bench considered section 6(a) of the Act. Since Their lordships have considered the definition "guardian", "natural guardian" as well as Section 6, we are constrained to refer the entire discussion of Their Lordships and the ultimate conclusion arrived at on the subject:- (Paras 7 to 10 and 16) "para 7. The expression "natural guardian" is defined in Section 4(c) of HMG Act as any of the guardians mentioned in Section 6 (supra). The term "guardian" is defined in Section 4(b) of HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of "guardian" and "natural guardian" do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in section 4(c). The only provision to which exception is taken is found in Section 6(a) which reads "the father, and after him, the mother" (underlining ours). That phrase, on a cursory reading, does give an impression that the mother can be considered to be natural guardian of the minor only after the life time of the father. In fact that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that welfare of the minor in the widest sense is the paramount consideration and even during the life time of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of Court, where to do so would be in the interest of the welfare of the minor.
8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a Court of Law, the word "after" in the Section would have no significance, as the Court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the lifetime of the father, without the matter going to Court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime.
9. Is that the correct way of understanding the section and does the word 'after' in the section mean only 'after the lifetime'? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender-equality, one of the basic principles of our constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did the Parliament intend to transgress me constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on grounds of sex? In our opinion-No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction, which may be open, the statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionally of the statutory provisions.
10. We are of the view that the Section 6(a) (supra) is capable of such construction as would retain it within the Constitutional limits. The word 'after' need not necessarily mean 'after the life-time'. In the context in which it appears in Section 6(a) (supra), it means 'in the absence of, the word 'absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his slaying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of Sections 4 and 6 of HMG Act, without causing any violence to the language of Section 6(a).
16. While both the parents are duly bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations whether the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of [he minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother, can act as natural guardian of the minor and all her actions would be valid even during the life time of the father, who would be deemed to be 'absent' for the purpose of Section 6(a) of HMG Act and Section 19(b) of GW Act."
The said conclusion of Their Lordships is an answer to the contention raised by the learned counsel for the appellant. It is seen from the evidence that under Ex.A-4, the properties were divided among the sharers including the 8th defendant, father of the plaintiff; 9th defendant, brother of the plaintiff and in such a circumstance, the plaintiff who was a minor at that time, was represented by his mother as guardian, in the earlier part of our judgment, we have stated that though certain apprehensions were raised against the father-8th defendant, inspite of the fact that he being a party to the suit did not file a written statement nor depose before the Court to highlight his stand. Accordingly, in the light of the legal position enunciated by the Honourable Supreme Court and in view of the factual particulars available, we hold that the fact of representation by his mother as guardian of plaintiff under Ex. A-4 transaction cannot be said to be a void transaction and on the other hand, is a valid one.
23. The next decision pressed into service by the learned senior counsel for the respondents is in Kale v. Dy. Director of Consolidation, . It is clear from the said decision that on the basis of family arrangement followed by division of joint family properties by way of a document and having taken advantage of the said arrangement by disposing of certain properties to third parties, they cannot resile from the same or try to revoke it.
It is also clear from the said decision that even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement, in our case, we have already referred to the muchalikas executed by defendants 1, 5 and 8 in the presence of panchayatdars, followed by the division of their properties under Ex.A-4, payment of taxes and kist to the Government and sale of some of the properties to third parties, hence the plaintiff cannot be permitted to contend that there was unequitable distribution of the property under such a deed of family arrangement.
24. Learned counsel appearing for the appellant by relying on a decision in Sukhrani v. Hart shanker, , would contend that since the earlier partition under Ex.A-4 is unfair and prejudicial to his interest even when there was no fraud or mis-representation, the partition can be reopened. In the said decision, Their Lordships after referring to a decision in Ratnam chettiar v. S.M. Kuppuswami Chettiar, , held that even though there was no fraud, misrepresentation or undue influence, a partition could be reopened at the instance of a minor coparcener, despite the fact that his branch was represented by his father at the partition, if the partition was unfair or prejudicial to the interest of the minor. Here in our case, we have already demonstrated the details regarding allotment of shares to defendants 1, 5 and 8 and their valuation etc. We have also observed that after execution of muchalika and after deliberation and discussion with the panchayatdars, those properties were allotted to defendants 1 to 9 and the plaintiff herein. We have also referred to the fact that there is no material either in the plaint or in the evidence of P.W.1 to show that the earlier partition was unfair or prejudicial to the interest of the minor. Except his own evidence, the plaintiff has not examined any one in support of his claim. We have also referred to the conduct of the 8th defendant in not filing written statement and deposing before the Court highlighting his stand; accordingly we hold that the plaintiff has not made out any case to reopen the partition made earlier.
25. We have also discussed that pursuant to the family arrangement followed by actual division, the properties are under the enjoyment of the respective sharers and taxes are being paid separately in respect of their shares. In other words, it is clear that after Exs, A-4 and A-5, the members of the family severed their joint status and the severance is complete and valid as evidenced by various documents referred to above. In such circumstances, as observed by the Division Bench of this Court in Aruna Group of Estates v. State of Madras, 1962 (II) M.L.J. 294, the earlier division cannot be ignored on the ground of lack of bona fide.
26. In the earlier part of our judgment, we have stated that even at the time of execution of Ex.B-36 dated 24.8.81, the plaintiff/appellant herein had completed 18 years. However, he did not challenge any of the transactions and on the other-hand, even after filing of the suit, the plaintiff himself had sold certain properties to third party as disclosed from Ex.B-41. The plaintiff in his own document namely Ex.B-41, referred to his right and title in respect of the suit property as per the earlier partition under Ex.A-4, in the light of the conduct of the plaintiff, he cannot be allowed to contend that Exs.A-4 and A-5 are invalid and not binding on him.
27. There is no dispute that even under Ex.A-4, the plaintiff who was a minor at the relevant time, was made eo nomine party. In such a circumstance, as rightly contended, he has to pray for cancellation of the earlier partition expressly or impliedly by paying necessary court-fees, in this regard, it is useful to refer a Full Bench decision of this Court in Sankaranarayana v. Kandasamia, AIR 1956 Mad. 670. The following conclusion of Their Lordships is relevant:- (para 23) "There is no doubt whatever that a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within three years of his attaining majority it becomes valid under Article 44, Limitation Act. In such a case the minor is deemed to be a party to the transaction. But where the document is executed by a manager of the family and it is not binding on the family, the minor or any other member can ignore the transaction and recover possession of the property. To such a case section 7(v), Court-Fees Act will apply.
We are here not concerned with decrees to which the minor is eo nomine a party. Our answer to the first question is that if the minor is eo nomine a party to a sale deed or other document of alienations, he must sue for the cancellation of the document under Section 7(iv-A), Court-Fees Act and it is not enough if he applies for possession under Section 7(v) of the Act and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also the document has to be set aside."
Admittedly, the plaintiff/appellant herein, who was a minor eo nomine patty did not question the said partition and he filed the suit only for partition and separate possession of his 1/9th share in the suit properties. In such a circumstance, on this ground also the claim of the plaintiff is liable to be rejected.
28. Under these circumstances, we do not find any merit in the appeal;
accordingly the same is dismissed. In view of the relationship of the parties, there shall be no order as to costs.