Does Minor's Severance From Hindu Undivided Family Take Place On Mere Filing Of Partition Suit Which Got Dismissed For Default?Bombay High Court To Examine

The question has come up in a case where the concerned minor, after attaining majority in March 2020, has now challenged a gift deed executed by his parents as a part of HUF while he was a minor, but, had sought partition of the property under the HUF. The property was eventually sold by another close relative who purportedly received it as a gift and a third party is in possession of the house in an eastern suburb of Mumbai.

The difference in the legal position is that if the dismissal of Partition Suit for non-prosecution is given more weightage, then the plaintiff is considered as a part of the HUF, because of which there is no requirement of a court's nod to dispose of a minor's interest in the property. The karta of HUF need not take court's permission to dispose of the undivided interest of minor in the joint family property.

However, if simply filing and existence of a Partition Suit by a minor is given more weightage, then the father/parents cannot dispose of a minor's interest in the property without a court's permission – which is absent in this case.

Justice NJ Jamadar, in an order last month, refused to pass an injunction order against the party in possession of the two adjoining flats, but directed that the person who sold the property for Rs 8 crore deposits Rs 1.35 crore before the court, keeping in mind the arguable questions raised by the plaintiff.

The court was hearing an application for interim reliefs in a Suit – both filed by Hriday Niraj Mehta (plaintiff) – against his parents (defendants 5 & 6), uncle and aunt (defendants 1 & 2), and children of the uncle and aunt (as defendants 3 & 4). The issue involved was a property bought jointly by HUF of Niraj's parents of which his father Niraj Jayantilal Mehta was the karta and that of his uncle's branch of which his uncle Umesh Jayantilal Mehta was the karta. The plaintiff is a coparcener in the HUF headed by his father Niraj.

The court refused to grant interim reliefs sought by Hriday. He sought that the selling party – his first cousin Siddhi – be asked to deposit 50% of the consideration received from the sale of the property. He also sought to injunct the purchaser (a third party) from occupying the property. The court, instead, directed the seller party to deposit Rs 1.35 crore or furnish a bank guarantee of the same amount and keep it alive till the disposal of the Suit. The property involves two adjoining flats in a building in Mumbai's eastern suburb Ghatkopar.

The court observed in its order, "Indisputably, the plaintiff (Hriday) was minor on the date of execution of the Gift Deeds in favour of defendant No. 3 (first cousin Siddhi). Prima facie, the legality and validity of the said Gift Deeds is required to be decided on the touchstone of the legal competence of defendant No. 5 (Hriday's father Niraj) to execute the said Gift Deeds so as to dispose of the interest of the plaintiff, especially in the backdrop of the allegations of severance of the joint status with the institution of the suit No. 2283 of 2011".

Hriday attained majority only in March 2020 and filed the Suit and application before the Bombay High Court in 2021. The Suit challenges a gift deed executed by Hriday's father Niraj as the karta of that HUF in favour of Niraj's brother Umesh's daughter Siddhi in 2014 – when Hriday was still a minor. It also challenges the sale and conveyance deed executed between Siddhi in December 2020 with a third party.

Niraj is claiming that he has the right to challenge the gift deed as his status as a member of his father's HUF was "severed" in view of a partition suit (Suit No. 2283 of 2011) filed by him through a next-of-friend in 2011 itself – three years before the gift deed was executed. Even Siddhi had sought partition of HUF properties a part of that Partition Suit (acting for herself and her younger brother who too was a minor at that point).

Though this Partition Suit was eventually dismissed for want of prosecution in 2017, it was still alive when the gift deed was executed in 2014. Niraj and Umesh, both as the karta of their respective HUFs, had filed an affidavit in this Partition Suit which said they did not intend to create any third party rights or transfer the right, title and interest of the plaintiffs in the suit flats in their capacity as Karta of the said HUFs or otherwise.

Hriday, after attaining majority in March 2020, issued a notice to all the parties in November 2020, raising contentions about the execution of the gift deed when he was a minor. The other side first sent a short reply the same month and later issued a detailed reply on December 7, 2020. However, the sale for the houses was executed just three days later. The High Court observed that this demonstrated haste on behalf of the respondents.

Hriday's lawyers argued that as per Supreme Court's judgements in Jalaja Shedthi and Others vs. Lakshmi Shedthi and Others [(1973) 2 Supreme Court Cases 773] and Phoolchand and Another vs. Gopal Lal [AIR 1967 SC 1470] as soon as there was demand for partition, the family cannot be considered to be an undivided family nor can the interest of a coparcener be considered to be an undivided interest. It was argued that in such a scenario, a court's permission would be required to create any interest in a minor's share in the property.

The respondents cited Vasantrao Gulabrao Thakre and Ors. vs. Sudhakar Wamanrao Hingankar and Ors [MANU/MH/0861/2018] in which the position in Sri Narayan Bal & Others which basically says that no permission from a court would be required if a joint family property is alienated by a Karta involving an undivided interest of minor in the said joint Hindu family property.

Looking at the important questions of law which cannot be gone into at this stage, yet considering the position in which both the sides were found to be, the court passed a limited relief order in favour of the plaintiff by asking defendant no.3(the person who sold the property) to furnish security for Rs 1.35 Crores.

Case Title: Hriday Niraj Mehta vs. Umesh Jayantilal Mehta and Others

Citation: 2022 LiveLaw (Bom) 101

Appearance: Mr. Nitin Thakker, Senior Advocate a/w. Mr. Rohan Sawant, Mr. Yatish Pandya, Ms. Vaibhavi Parchake i/b. Pandya and Poonawala, for the Plaintiff

Mr. Cyrus Ardheshir a/w. Nutan Patel, Mr. Mahesh Menon i/b. Mahesh Menon & Co., for Defendant Nos. 1 to 4

Mr. Sharan Jagtiani, Senior Advocate i/b. Purnanand and Co., for Defendant No. 7

Ms. Kirtida Chandarana a/w. Ms. Henna Shah i/b. Mahernosh Humranwala, for Defendant No. 8

Click Here To Download Order