SCHOOL OF LAW, MUMBAI

A Research paper submitted on

RIGHTS OF A MINOR COPARCENER

FOR SEMESTER V OF 2019-20, IN THE SUBJECT FAMILY LAW II

SUBMITTED TO:

Professor Twinkle Maheshwary

SUBMITTED BY:

Gopika Mundra

A034

BBA LLB (Hons.)

Third Year

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 TABLE OF CONTENTS

1. INTRODUCTION……………..………………………………………....3
2. AIMS & OBJECTIVES.............................................................................3
3. RESEARCH QUESTIONS……………………………………...….........4
4. RESEARCH METHODOLOGY………………………………………...4
5. MINOR AS A COPARCENER.................................................................4
6. RIGHTS AND PRIVILEGES OF A MINOR COPARCENER...............5
7. ALIENATION OF MINOR’S PROPERTY..........................................7
8. RIGHT OF THE MINOR UNDER MUSLIM LAW.............................8
9. CONCLUSION ……………………………………………………….....9

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INTRODUCTION

The Hindu joint family system is an inseparable relationship of the life of the Hindus as it has
been suggested by the statement that there is no getaway of the Hindu from the Joint Family.
A Hindu Joint Family comprises of a common ancestor and all his male lineal descendants up
to any generation with their unmarried daughters, their wives, and their widows. Coparcener
is sometimes thought to be same in meaning as the joint family. The moment a child is born
he gets his birthright in the coparcenary. A minor coparcener becomes a major coparcener
once he attains the age of 18 years. However, the term coparcener in the Mitakshara School
of law its membership is confined to the male descendants up to four degrees, but from a
common male ancestor only. It is a very unique feature of the Indian law that does not draw a
difference between the minor and the major coparceners.

Hindu Law has established it that the presence of a minor coparcener is not an obstruction
against partition by the adult coparceners. An agreement of partition which is entered into by
the adult coparceners is binding upon the minor coparceners too provided such agreements
are not unfair or prejudicial in the interest of the minor coparceners. Where the partition
agreement is not in favour of the minor coparceners and is prejudicial, they can set aside such
an agreement when they attain majority by claiming the re-opening of the partition. A minor
coparcener has the same rights as that of his father but with some reasonable restrictions upon
the powers to alienate and partition of property.

A coparcener has a right in the joint family property by birth until partition takes place. They
have an equal right of maintenance by the family funds and are bound by any decisions taken
by the Karta. Also, they have the right to challenge any decision of the Karta which he thinks
to be unnecessary and unreasonable. He can also claim his right of survivorship by a suit. A
coparcenary is only among the males and not the females of the family and it is evolved
naturally by birth and not by any form of agreement.

AIMS & OBJECTIVES

1. To understand the concept of coparcenary under Mitakshara law.

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RESEARCH QUESTIONS

1. What are the rights and privileges of minor coparcener?

RESEARCH METHODOLOGY

The research methodology adopted in this project is both descriptive and analytical because
the provisions regarding this are well settled. The data used for the study is secondary in
nature and has been collected from different journals, research articles, books, websites etc.
Various studies on this subject available on internet have also been referred in this paper.

MINOR AS A COPARCENER

“Children must be prevented from squandering away the property through inexperience, and
if either or both of their parents die or if the parents disagree in matters concerning the
children, provision must be made… for the management of their property.”1

Hindu Law does not distinguish between the rights of a major coparcener and a minor
coparcener with respect to the joint family property. Some of the rights common to all
coparceners include the right of joint ownership, right of joint possession, enjoyment, and use
of joint family property, right to alienate undivided share under special circumstances, right
to question an unfair or unjust alienation effected by the Karta, right to claim partition inter
alia.

In matters of partition, the suit for the same can be instituted by the next friend or the
guardian on behalf of the minor. However, it must be ensured that the partition is beneficial
for and is in the interests of the minor. Since a minor is an individual lacking prudence and
maturity, the court is regarded as parens patriae of the minor. The guardian or next friend can
file a suit demanding partition in certain situations. One such situation could be when the
Karta is found misusing the joint family property resulting in any detriment to the minor’s
interest in the same. Other could be when the minor is being improperly treated or
discriminated against. It could also be when the Karta is unable to maintain the minor.

1
83rd Report of the Law Commission of India.

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He can also claim his rights through a suit filed on behalf of his next friend or the guardian.
Here the court first satisfies itself that the suit has been filed for the benefit of the minor and
not otherwise. Then only the suit becomes effective. In the case of P.H. Ramaswamy v. R.
Kuppa, the Madras High Court stated that the restriction upon a minor to challenge his
violation of rights is an unwarranted restriction upon his right. It is discriminatory in every
sense and the minor is severed from the major coparceners and his opinion is not taken into
consideration while partition and he cannot do anything on his own, he has to take the help of
a guardian to give effect to the violation of his rights. However, it was stated that the minor
coparcener is immature enough to decide it himself, therefore, it is upon the court to decide if
the partition is in his favour or not and if the guardian is acting in a bona fide manner. Such a
major decision can only be taken by the court and nobody else. It is also a well-settled rule of
Hindu law that the major coparceners can successfully give effect to a partition even if a
minor coparcener is present. However, if the same takes place unfairly to the prejudice of the
minor’s interests then it can be reopened at the minor’s instance when he attains majority.

RIGHTS AND PRIVILEGES OF A MINOR COPARCENER

The senior most member of a family can be the karta of a family. But what if a situation arises that all
the adult male members of a family are absent or have died, then a minor can act as the karta of the
family in such a case after the consent of the rest of the other family members. The power of Karta is
not absolute or unlimited. Within the ambit of his sphere he possesses such vast powers, which no one
can possess. In Budhi Jena v.Dhobai Naik 2, the Court observed that under Hindu law, there is no text
or rule that bars a minor from being the karta of the family. In cases wherein the father is unavailable
for a considerable length of time, the minor son can shoulder his responsibilities as the karta. If he is
sui juris, he can also act through his natural guardian, his mother.

The position of a minor as the karta was also clarified in Mulla’s Hindu Law: “Capacity of a
minor to act as guardian: There is no rule of Hindu Law that the managing member of an
undivided family should be an adult. He may be a minor in which case he is competent to act
as guardian not only of his own wife and children but also the wife and children of another
minor member of the family.”

It is the uniqueness of Indian Law that is does not strike any difference between minor and
major coparceners, in respect of their rights in the joint family property. The rights of both
stand identical to each other with no distinction. So, it is clear that minor coparcener enjoys a
right of partition.
2
AIR 1958 Orissa 7.

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Partition means the severance of the joint status of the coparceners and the division of the
joint family property. Partition does not mean the transfer of property rather it means the
separation of the interests of the coparceners. Suits for partition can be filed by adults by
means of a decree. The filing of the suit is not necessarily the conclusive evidence of the
intention of partition. The court has the power to divide the property by metes and bounds
and also to take into effect the separation of the status without actually dividing the property.
Suits for the partition can also be filed by minors. But minors do not have the right to file it
themselves and therefore they are allotted a guardian by the court who is believed to have the
best of interest of the minor and has the capability of spending his time and money for the
rights of the coparcener. If the minor dies during the pendency of the suit, then his legal
representative is entitled to the property that was supposed to be in the interest of the minor.

A partition by agreement though entered into during the minority of the coparcener, is
binding on the minor, unless it is unfair or prejudice to his interests. Examples of situations
where court may pass a decree for partition include where an adult coparcener is in
possession of the family property and wasting the property or denies the minor rights or
declines to provide maintenance to minor. The Supreme Court held in the case of Kakumanu
Peddasubbayya v. Kakumanu Akkamma3 that the decision of the court in favour of the
minor does not mean that a new right is to be recognized for the benefit of the minor, rather
to recognize a right which was already possessed by the minor and was in question at the
time of institution of the suit. The effective date for the severance of status will be the date of
the institution of the suit. The interest of the minor is of the prime nature. During the
pendency of the suit by a minor and before the pronouncement of a preliminary decree by the
court, if a child is born to the father, the minor’s share will not decrease at the birth of another
son as the institution of the suit itself had affected the severance of the status.

A minor after becoming of age can reopen the partition if he can prove that the partition was
not for his benefit or it was unfair against him. In the case of Ratnam Chettiar v. SM
Kuppuswami Chettiar4, two brothers made a partition and that time plaintiffs were minors.
Under the partition deed both movable and immovable property were divided with the help of
family auditor of one brother. Plaintiff here alleged that partition was practiced by fraud and
undue influence and by suppressing large assets belonging to the family which were taken by
their uncle taking advantage of the plaintiff’s father weak intellect. As per the Supreme Court

3
Kakamanu Peddasubayya v. Kakamanu Akkamma, AIR 1958 SC 1042.
4
1976 SCR (1) 863.

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it was an unequal partition and the silence of father or even his acquiescence in allowing his
elder brother to take the amount was not a prudent act. It had caused serious detriment to the
interests of the minors which needs to be protected as they are the members of the Hindu
undivided family.

In Babu v. Gokuldoss5 the Madras High Court favoured the view that the reunion is the
product of agreement and minor is incompetent to contract therefore an agreement cannot
reunite. However, it must be remembered that as it is open to father and mother as his
guardian to effect a separation on behalf of minor coparcener, it would be equally open to
both as his guardian to agree to a reunion on behalf of the minor.

ALIENATION OF MINOR’S PROPERTY

The coparcenary property of a minor is dealt under the law relating to Hindu Undivided
Family property. Under this, the karta can dispose of the property according to his will in
case there arises any legal necessity or there is a need for any benefit of the estate. Thus, if a
karta wants to dispose of his property, he can do so through his natural guardian and no prior
permission of the court is required for such disposal.

In the case of Re Kishnakant Maganlal, the court had said that it would amount to the
anomaly of the prior permission of the court is required before a father can alienate the Hindu
Joint Family property. Therefore, in this situation, any normal karta other than the father can
alienate the property without the prior permission of the court. Alienation can also be
rendered void at the option of the minor himself if there is no prior permission of the court.
Alienation can only be done in case of legal necessity or for the benefit of the estate or the
minor himself.

Also, no testamentary guardian can be nominated by the father in case of a minor’s undivided
interest in the HUF. The reason is that the father does not himself enjoy any power over the
same by virtue of being a natural guardian.

In the case of Subramanyam v. Subba Rao, the court said that if a contract is entered into for
the sale or purchase of any immovable property by the guardian on behalf of the minor, it will
be enforceable so far as it is in the interest of the minor. As soon as the contract is prejudicial
to the interest of the minor, the performance of the contract is rejected. The minor also has a
right to transfer his property in case there is any legal necessity or for the benefit of the estate

5
AIR 1928 Mad 1064.

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or the minor himself. If the minor wants, he can also sue for the possession of the property
which has been sold and consideration for such has been paid. Even though all such activities
of the minor are done under the supervision or say guardianship of a guardian still, neither the
minor nor the guardian are bound by each other. Their relationship is that of a fiduciary
nature. The guardian cannot be bound by the minor by virtue of any personal contract.
Although he can impose a financial liability upon the minor’s property by virtue of such a
contract. The minor’s estate is only used to discharge the debts and not the minor himself. For
as long as the guardian is not taking advantage of the minor’s property he is acting in good
faith. Beyond that, he can be sued for breach of trust. No matter how much time and money
he has invested in the property of the minor or the length of time spent there he cannot take
adverse possession of the minor’s property.

CAN A MINOR COPARCENER BE SUBJECT TO ANY LAIBILITIES IN JOINT

It is generally presumed that money required for carrying on family business is a family
necessity and that the business is carried on with the consent or acquiescence of all the
members of the family. Thus, if debts are incurred by the manager in the ordinary course of
the family business all the coparceners become liable. However, their liability is limited to
the extent of their interest in the family property and not beyond that. There is no doubt that
adult coparceners become personally liable when they themselves are contracting party along
with manager or they ratify the contract entered into by the manager, except in the case of a
minor coparcener, who does not become personally liable unless the contract is ratified by
him after attaining the majority.

RIGHT OF THE MINOR UNDER MUSLIM LAW

Under the Muslim Law, the father is considered as the legal guardian of the minor’s property.
In the case of Sunni’s, the guardianship is transferred to the executor and in the case of
Shia’s, it is transferred to the grandfather after the father. In the case of Sunni’s, the father
can appoint a testamentary guardian and in the case of Shia’s, the father can appoint a
testamentary guardian only if the grandfather is dead. Similar to Hindu Law, here also
alienation of property can only be done in the case of a legal necessity. The father and the
executor are authorized to sell the property of the minor in such a situation. However, such
powers are restricted in case of immovable property.

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Under Muslim Law, the mother is not given the right to alienate the property of the minor. It
was clarified in the case of Imambandi v. Mutsaddi 6, that Muslim Law does not confer the
right of a guardian upon the mother of the minor. Under Muslim Law, the executor cannot
bring into effect the partition of the property among minors as it will be unlawful on his part.

CONCLUSION

Indian Hindu law does not put any difference between minor coparceners and major
coparceners, in respect of their rights in the joint family property and its enjoyment. The
rights of both the major and minor coparceners stand identical to each other with no points of
distinction at all. So it is clear that minor coparcener enjoys a right of partition. A major
coparcener can affect a severance or partition at his will. But the minor coparcener cannot be
separated nor can he authorize anyone on his behalf to separate him. The only option which is
available to the minor is to institute a proceeding is through his next friend and thereafter the
Court can pass a decree after satisfying itself of the fact that the partition in issue shall be
beneficial for the interests of the minor or that such partition is necessary to shield the minor
from some impending peril.
In both the Hindu and Muslim Laws, if the alienation or partition is not in the favour of the
minor he can claim an action once he attains the age of majority. Even though all the laws are
somewhere different while dealing with the rights of the minor, there is a common thread that
runs through all, and that is they seek to promote the interest of the minor without any
prejudice. For that the credibility of the guardian is thoroughly looked into by the court. And
in most of the cases as soon as the minor attains majority he sets aside the alienation or
partition of the property to claim his rights in this matter.

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(1918) 20 BOMLR 1022.