Judgment :- Bellie, J. (on 17-6-1991): The question that arises for consideration in this matter is whether the sale by the plaintiff’s mother of his property during his minority is valid. The suit filed by the plaintiff for setting aside the sale was dismissed. Hence this appeal by him. 2. The plaintiffs father was one Rajamanickam Padyachi. He died in 1960. The plaintiff as a minor son and his mother-first defendant survived him. The plaint ‘B’ Schedule properties belonged to the joint family consisting of the said Rajamanickam and the plaintiff. On the death of Rajamanickam the plaintiff became entitled to 3/4th share and the first defendant to l/4th share. The second defendant who was residing in a portion of the property, taking advantage of the young age of the first defendant, got a false and fictitious sale deed dated 8. 1961 from her as representing herself and as guardian for her minor son the plaintiff as if it is supported by consideration of Rs.1,300. There was no legal necessity or justifiable reason for the sale. On these grounds the plaintiff filed the suit for setting aside the sale deed dated 8. 1961 and for partition and separate possession of the plaintiff’s 3/4th share. 3. First defendant remained ex parte, and the second defendant filed a written statement contesting the suit. After filing the written statement the second defendant died on his legal representatives have been impleaded as defendants 3 to 10 and they adopted the written statement filed by the second defendant. They raised various contentions but many of them are not necessary for the purpose of this appeal. They desired that the sale was a fictitious one, and they contended that the sale was supported by consideration, and it was executed for the benefit of the minor for legal necessity. 4. It appears during the arguments before the trial Court it was argued for the plaintiff that the first defendant-mother should have obtained previous permission from the Court for selling the minor’s property, and there being no such permission the sale deed is invalid. 5. The learned trial Judge rejected the plaintiffs case on all points raised by him and particularly holding that the sale was for legal necessity and the first defendant had right to sell the property of the minor, he dismissed the suit. 6. 5. The learned trial Judge rejected the plaintiffs case on all points raised by him and particularly holding that the sale was for legal necessity and the first defendant had right to sell the property of the minor, he dismissed the suit. 6. Now in the appeal by the plaintiff the only argument advanced is that admittedly the first defendant-mother did not get the previous permission of the Court as required under Sec.8 of the Hindu Minority and Guardianship Act to sell the minor’s interest of 3/4th share and therefore the sale in favour of the second defendant is invalid , and hence it is liable to set aside and the suit is to be decreed. 7. It is not in dispute that the suit property originally belonged to the joint family consisting of Rajamanickam and his son-the plaintiff. Rajamanickam and his son-the plaintiff were each entitled to 1/2 share of the suit property as joint family members. While so Rajamanickam died in 1960. He left behind him his minor son-the plaintiff and his wife-the first defendant. Under the Hindu Succession Act the plaintiff and his mother will be entitled to each 1/2 share in the share of Rajamanickam. Thus the plaintiff would be entitled to 3/4th share in the suit property and the first defendant would be entitled to l/4th share. 8. Now the plaintiff-son and the first defendant-mother constitute a joint family and this is also not in dispute, for a male member and a female member can always constitute a joint family (See: Gowli Buddanna v. Commissioner of Income Tax, Mysore, (1966)1 S.C.J. 586: (1966)1 I.T.J. 576: A.I.R 1966 S.C. 1523 and Sunamani Dei v. Babaji Das and others, A.I.R. 1974 Orissa 184. This family owned the entire property i.e., the property that belonged to Rajamanickam and his son-the plaintiff, in which the plaintiff will be entitled to 3/4th share and the first defendant to l/4th share. .9. It is argued as far as the l/4th share that devolved on the plaintiff out of the half share that belonged to Rajamanickam on his death that this cannot be a joint family property but it is separate property of the plaintiff. .9. It is argued as far as the l/4th share that devolved on the plaintiff out of the half share that belonged to Rajamanickam on his death that this cannot be a joint family property but it is separate property of the plaintiff. In this connection Mr.M.N.Padmanabhan, learned counsel for the appellant-plaintiff relies on Commissioner of Wealth Tax Kanpur, etc., v. Chander Sen etc., A.I.R. 1986 S.C. 1753: (1986)3 S.C.C. 567 : (1986)161 I.T.R. 370:1986 Tax.L.R. 1328, and Yudhishter v. Ashok Kumar,A.I.R. 1987 S.C. 858. In these two cases, in respect of a separate property devolved on the father under Sec.8 of the Hindu Succession Act, it was held that the property cannot be the property of a Hindu joint family of the father vis-a-vis his sons. Similarly in the Full Bench decision of this Court in The Additional Commissioner of Income-tax, Madras v. P.L.Karuppan Chettiar, Karur, A.I.R. 1979 Mad. 1: I.L.R. (1978)3 Mad. 305:1979 Tax.L.R. 14: (1978)2 I.T.J. 542, which has been referred to in the above Supreme Court decision in Commissioner of Wealth Tax Kanpur; etc., v. Chander Sen etc., A.I.R. 1986 S.C. 1753: (1986)3 S.C.C. 567 : (1986)161 I.T.R. 370:1986 Tax.L.R. 1328, it was decided that the property inherited by the father under Sec.8 of the Hindu Succession Act cannot be the property of the joint family of himself and his sons and other members of the family. But in the instant case no separate property was inherited by one, but in the joint family property of the plaintiff and his father, on the plaintiffs father’s death, the plaintiff along with his half share in the joint family property, also inherited l/4th share out of his father’s half share, the other l/4th share going to the mother-first defendant. On the plaintiffs father’s death the joint family property owned by the father and son was not partitioned, and the joint family did not disrupt, but the joint family status continued as joint family of the plaintiff and his mother, and the plaintiff’s share in the property became3/4th share while the mother got l/4th share. 10. A Full Bench of Andhra Pradesh High Court in Govinda Reddy and others v. Golla Obulamma, A.I.R. 1971 A.P. 363 (F.B.), dealing with devolution of the interest in coparcenary property under Sec.6 of the Hindu Succession Act observed: “Sec.6 is concerned with the devolution of a deceased co-parcener’s interest alone. 10. A Full Bench of Andhra Pradesh High Court in Govinda Reddy and others v. Golla Obulamma, A.I.R. 1971 A.P. 363 (F.B.), dealing with devolution of the interest in coparcenary property under Sec.6 of the Hindu Succession Act observed: “Sec.6 is concerned with the devolution of a deceased co-parcener’s interest alone. It has nothing to do with the disruption of joint family status. The co-parcenary will continue notwithstanding the death of a co-parcener until partition is effected.” I am in respectfully agreement with this view. 11. Now the question is whether in this situation the mother could alienate the plaintiff’s undivided 3/4th share in the joint family property as his guardian. As per Sec.6 of the Hindu Minority and Guardianship Act, in respect of minor’s property, excluding his undivided interest in the Hindu joint family property, in the absence of the father, the mother will be the natural guardian. Sec.8 of the Hindu Minority and Guardianship Act prescribes that for the sale of a minor’s immovable property the natural guardian shall take the permission of the court. We have held above that the suit property of the plaintiff-minor’s 3/4th share, which includes the l/4th share inherits from his father, cannot be held to be a separate property of the minor but it is his 3/4th undivided interest in the joint family property of himself and his mother. .12. Incidentally a point may arise whether an undivided interest in the joint family property of a minor is excluded in Sec.8 also as in Sec.6. While Sec.6 says as to who are the natural guardians of a Hindu minor in respect of his property it has excluded the minor’s undivided interest in the joint family property. Sec.8 deals with the power of the natural guardian in respect of the minor’s immovable property. From a conjoint reading of both the Secs.6 and 8 it is clear and beyond any doubt that the minor’s immovable property referred to in Sec.8 is that property excluding his undivided interest in the joint family property. 13. This view is supported by a decision of Palaniswami, J. in Subramaniam v. Krishnaswami Goundar and others, A.I.R. 1972 Mad. 377. Therefore as per Sec.8 of Hindu Minority and Guardianship Act permission of the Court shall be obtained in respect of minor’s separate property and not his undivided interest in the joint family property. 13. This view is supported by a decision of Palaniswami, J. in Subramaniam v. Krishnaswami Goundar and others, A.I.R. 1972 Mad. 377. Therefore as per Sec.8 of Hindu Minority and Guardianship Act permission of the Court shall be obtained in respect of minor’s separate property and not his undivided interest in the joint family property. But the sale of the undivided interest shall be justified under the Hindu Law, i.e., it must be for legal necessary. This appears to be the consistent view of various High Courts commencing from In re. Krishnakant Managammal, A.I.R. 1961 Guj. 68, followed by Sunamani Dei v. Baboji Das and others, A.I.R. 1974 Orissa 184 and Subramaniam v. Krishnaswami Goundar and others, A.I.R. 1972 Mad. 377. 14. Now we come to the question whether the sale by the mother of the plaintiff’s share in the property is valid. It is argued that even in the suit properly is the minor’s interest in the joint family property, his mother cannot be a kartha or manager of the joint family property and therefore the sale by her is incompetent. In this connection a Division Bench ruling in V.M.N.Radha Ammal, Kancheepuram v. The Commissioner of Income Tax, Madras, (1950)2 M.L.J. 399, was relied on. Therein Satyanarayana Rao, J. observed: “The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a co-parcener of the joint family.....Further, the right is confined to the male members of the family as the female members were not treated as co-parceners though they may be members of the joint family.” Viswanatha Sastri, J. said: “The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the co-parceners of the joint family. Co-parcener-ship is a necessary qualification for managership of a joint Hindu family.” These observations of the learned Judges were quoted with approval by the Supreme Court in Commissioner of Income Tax, Madhya Pradesh, Nagpur v. Seth Govindram Sugar Mills Ltd., A.I.R. 1966 S.C. 24: (1965)3 S.C.R. 488 , and it was said that a widow, not being a co-parcener has no legal qualification to become the manager of a joint Hindu family. 15. 15. In Mulla’s Hindu Law, Fifteenth Edition, at page 625, in Sec.519, there is the following passage, which appears to be with special reference to minor’s interest in the joint family property: “If the minor is a member of a joint family governed by the Mitakshara Law, the father as kartha (manager) is entitled to the management of the whole co-parcenary property including the minor’s interest. After the father’s death, the management of the property, including the minor’s interest therein passes to the eldest son as karta. The mother is not entitled to the custody of the undivided interest of the undivided interest of her son in the joint property, because such property is not separate property, though she is entitled to the custody of his person and of his separate property, if any.” The next sentence below this passage is also worth noting, “If all the sons are minors, the Court may appoint a guardian of the whole of the joint property until one of them attains majority, specially when the widows of the father were quarrelling among themselves.” These passages in Mulla’s Hindu Law makes it more clear that in respect of minor’s undivided interest in Hindu joint family property the mother cannot be a kartha (manager). It therefore follows that the plaintiffs mother, in our case the first defendant, in respect of the plaintiff’s 3/4th share in the joint family property could never be the karta (manager). 16. Without being a kartha (manager), in what capacity she has sold the minor’s interest is the point. Ratnam, J. in Pattayi Padayachi v. Subramania Padayachi, (1980)2 M.L.J. 296, has held that a sale by the mother as guardian of an undivided interest of two minors in the joint family property is void because the mother had no right to sell. 17. Mr.V.R.Gopalan, learned counsel for the respondents-defendants would however contend that may be the mother has no right in respect of minor’s share in the coparcenary property, but not in the case of minor’s undivided interest in a joint family property. The learned counsel would submit that ‘joint family’ is much wider a term than a co-parcenary. 17. Mr.V.R.Gopalan, learned counsel for the respondents-defendants would however contend that may be the mother has no right in respect of minor’s share in the coparcenary property, but not in the case of minor’s undivided interest in a joint family property. The learned counsel would submit that ‘joint family’ is much wider a term than a co-parcenary. But from the above discussion of the decisions viz., V.M.N.Radha Animal, Kancheepuram v. The Commissioner of Income Tax, Madras, (1950)2 M.L.J. 399, and Commissioner of Income Tax, Madhya Pradesh, Nagpur v. Seth Govindram Sugar Mills Ltd., A.I.R. 1966 S.C. 24: (1965)3 S. C. R. 488, and the passages in Mulla’s Hindu Law, I find no merit in this submission. The Supreme Court has clearly stated that a widow has no legal qualifications to become a manager of a joint Hindu family. It is similarly stated in the said Mulla’s passages (supra) also. 18. In this connection Mr.Gopalan would cite the decision of Orissa High Court in Sunamani Dei v. Babaji Das and others, A.I.R. 1974 Orissa 184, wherein it has been held that, “When the minor and his mother constitute a Hindu joint family, each with a moiety of undivided interest in any immovable property belonging of the family, in the absence of the father, the mother as natural guardian, can alienate even the minor’s half share in the immovable property under the personal law. Sec.8 of the Hindu Minority and Guardianship Act will not apply to such alienation.” This decision is rendered by following a judgment of Madhya Pradesh High Court in Sugga Bai v. Hira Lal, A.I.R. 1969 MP. 32. And this Orissa ruling has been followed by the Karnataka High Court in Gangoji Rao and another v. H.R.Channappa and others, A.I.R. 1983 Karn. 222. The same view has been held by the Kerala High Court in Sandeep (Minor) and another v. Sarojini Mossiar and others, A.I.R. 1990 Ker. 138 (NOC). 19. From the passage quoted above from the decision of the Orissa High Court, it appears, according to that High Court, because the mother is a natural guardian she will have the right to alienate minor’s undivided interest in the joint family property. But as per the passage of Mulla’s Hindu Law quoted above the mother is not entitled to the custody of the undivided interest of her son in the joint family property. But as per the passage of Mulla’s Hindu Law quoted above the mother is not entitled to the custody of the undivided interest of her son in the joint family property. It is only in respect of a person and separate property the mother can be a natural guardian and that is what Sec.6 of the Hindu Minority and Guardianship Act also states. It appears to me that the reasoning given by the Orissa High Court is not quite correct. 20. However, the question arises whether the mother, by virtue of being a natural guardian of the person and the private property of the minor, as a de facto guardian, can alienate the minor’s share in the joint family property for the legal necessity or for the benefit of the estate. The concept of de facto guardian is well recognised in Hindu Law. For this Mulla’s Hindu Law, fifteenth Edition, Sec.538 at page 636 can be referred to. It is stated therein that a de facto guardian has the same power of alienating the property of his ward as a natural guardian. 21. Mother alone in the instant case can manage the joint family property including the share of the minor son. Certainly she is not a karta or the manager as known to Hindu Law in respect of the joint family property. This means she has no legal right to claim as Karta or manager, but that does not mean she cannot manage the property. In this way she becomes the de facto guardian of the minor’s undivided interest in the joint family property. In that capacity, as per the general Hindu Law she will have the right to sell the minor’s undivided interest, subject to of course, the sale being for legal necessity or for the benefit of the estate of the minor. 22. Then it is contended that Sec.11 of the Hindu Minority and Guardianship Act abrogates the right of de facto guardian to sell the minor’s undivided interest in the joint family properly. 22. Then it is contended that Sec.11 of the Hindu Minority and Guardianship Act abrogates the right of de facto guardian to sell the minor’s undivided interest in the joint family properly. The section reads as follows: "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." Now the question is whether this Sec.11 abrogates the right of a de facto guardian in respect of the undivided interest of a minor in the joint family property also. 23. In the section there is no reference to "undivided interest" of a Hindu minor in "the Hindu joint family property", but what is referred to is "the property of a Hindu minor". We have to construe whether the words "property of a Hindu minor" includes the undivided interest of the minor in the Hindu joint family property. 24. Sec.6 prescribes who will be the natural guardian in respect of minor’s person as well as in respect of minor’s property. This is the first section (in the Act) wherein minor’s property is referred to. When it is so referred to ‘minor’s undivided interest in the joint family property" is excluded. Therefore as per Sec.6 minor’s property means his private property i.e., his property other than the undivided interest in the joint family property. Sec.8 deals with the powers of natural guardian in respect of minor’s immovable property. In this section there is no mention of undivided interest in the joint family property. As already discussed above with reference to these two sections, when they are conjointly read, minor’s immovable property referred to in Sec.6 only means his private property, and his undivided interest in the Hindu joint family is not included. 25. Sec.9 relates to testamentary guardians and their powers and thus it deals with a different aspect. This section while giving power to the father of a minor and a mother after the father, who is entitled to act as a natural guardian, to appoint by will a testamentary guardian to the minor’s properly, excludes the undivided interest referred to in Sec.12. The property referred to in Sec.12 is undivided interest in the joint family property which properly is under the management of an adult member of the family. The property referred to in Sec.12 is undivided interest in the joint family property which properly is under the management of an adult member of the family. To such a properly, as per Sec.9, no testamentary guardian shall be appointed by the father who is entitled to act as natural guardian of the minor. Thus construed, Sec.9 enables a Hindu father entitled to act as natural guardian of his minor son to appoint a guardian by will to the minor’s property which can be both private property as well as the undivided interest in the joint family property but which is not under the management of an adult member. 26. Sec.12 as just aforesaid relates to minor’s undivided interest in the joint family property which is under the management of an adult member of the family and the section says that no guardian shall be appointed for the minor in respect of such undivided interest. Thus Sec.12 specifically deals with the minor’s property of an undivided interest in the joint family property which is under the management of an adult member of the family. While so Sec.11 deals with the defacto guardian’s power in the minor’s property. While Sec.8 deal’s with the natural guardian’s power in respect of the minor’s property. We have already held that the minor’s property referred to in Sec.8 does not include his undivided interest in the joint family property and therefore, likewise, it must be held that minor’s property referred to in Sec.11 also does not include his undivided interest in the joint family property. 27. According to Ratnam, J. in his decision in Pattayi Padayachi v. Subramania Padayachi and others, (1980)2 M.L.J. 296, while in Secs.6, 9 and 12 the minor’s undivided interest in the joint family property has been specifically excluded there is no such exclusion in Sec.11 and therefore it can be said that Sec.11 also exclude minor’s undivided interest in the joint family property. But for the reasons stated above by me, with great respect, I am unable to agree with this reasoning of the learned Judge. But for the reasons stated above by me, with great respect, I am unable to agree with this reasoning of the learned Judge. When in Sec.6 wherein for the first time ‘Minor’s property’ occurs the minor’s undivided interest in the joint family property is excluded, in the subsequent section whenever "minor’s property" occurs it must be taken to exclude the undivided interest in the joint family property unless it is expressly stated that minor’s property includes or docs not exclude the undivided interest in the joint family property. In Secs.S and 11 there is no such exclusion, whereas in Sec.9 there is specific exclusion. Therefore it is clear that minor’s properly referred to in Sec.11 excludes his undivided interest in the joint family property. It therefore follows that this section does not abrogate the right of the de facto guardian in respect of the minor’s undivided interest in the joint family property. 28. Perhaps keeping in mind the possibility of a mother being in management of joint family prop- erty, in Sec.12 it is stated an adult member of the family" and not "a male adult member of the family". Considering thus it can be safely taken that the sale by the first defendant mother is under the power as de facto guardian of minor’s undivided interest in the joint family property. 29. Considering the entire circumstances of the case which involves complicated legal points and also my inability to agree with the view taken by Ratnam, J., I think it would be quite appropriate to place the matter before a Division Bench or Full Bench for an authoritative decision. 30. The office is directed to place the matter before my Lord the Chief Justice for necessary direction. Pursuant to the Order of reference the judgment of the Bench was delivered by Abdul Hadi, J. This appeal has been posted before us on being referred to by Bellie, J., since the view he is taking on the question involved in the appeal is in conflict with the view taken by Ratnam, J., in the decision reported in Pattayi Padayachi v.. Subramania Padayachi and others, (1980)2 M.L.J. 296. 32. This appeal is by the plaintiff against the dismissal of his suit O.S.No.296 of 1975 on the file of Sub Court, Cuddalore, praying for setting aside the sale under Ex.B-4, dated 8. Subramania Padayachi and others, (1980)2 M.L.J. 296. 32. This appeal is by the plaintiff against the dismissal of his suit O.S.No.296 of 1975 on the file of Sub Court, Cuddalore, praying for setting aside the sale under Ex.B-4, dated 8. 1961, effected by his mother when he was a minor in so far as his 3/ 4th the share therein is concerned and for partition and separate possession of the said share. The question to be answered is whether the said sale is hit by Sec.8 of the Hindu Minority and Guardianship Act. 1956 since admittedly the plaintiff’s mother did not obtain the previous permission from the Court as contemplated in the said Section, and consequently whether the plaintiff could avoid the said sale with reference to his above-said 3/4th share, the contention of the learned counsel for the plaintiff Mr.M.N.Padmanabhan is that Sec.8 operates and the plaintiff could avoid the sale. On the other hand, the contention of the learned counsel for the defendants 3 to 10 (respondents 2 to 9 herein) who are the legal representative of the deceased 2nd defendant, the vendee under the above said sale deed, Mr.V.R.Gopalan, is that the said property being the joint family property, the said Section is not attracted that consequently, the above said permission from the Court is not called for and that the said sale having been effected for legal necessity of the family, should be up-held as valid as the Court below has done. 33. The 1st defendant (1st respondent herein) is the plaintiffs mother and under the said, she sold not only the above said 3/4th share belonging to the plaintiff on his behalf, she also sold her own l/4th share therein. She remained ex parte both in the Court below and in this Court. 34. Admittedly, the above said property was a joint family property of the family of one Rajamanickam Padayachi, his son, the plaintiff and his wife, the 1st defendant, till his death in 1960, after the coming into force of the Hindu Succession Act of 1956, leaving behind his said widow the 1st defendant and his son, the plaintiff. 34. Admittedly, the above said property was a joint family property of the family of one Rajamanickam Padayachi, his son, the plaintiff and his wife, the 1st defendant, till his death in 1960, after the coming into force of the Hindu Succession Act of 1956, leaving behind his said widow the 1st defendant and his son, the plaintiff. There is also no dispute that pursuant to Sec.6, proviso and Explanation 1 therein, read with Sec.8 of the said Act, a notional partition between Rajamanickam Padayachi and his son, the plaintiff had taken place immediately before the death of Rajamanickam Padayachi, that the plaintiff there by got half share in the suit property by survivorship and in the remaining half share of Rajamanickam Padayachi, his two heirs, viz., the 1st defendant and plaintiff got l/4th share each by inheritance and that, in all, the plaintiff got 3/4th share and the 1st defendant got the remaining l/4th share. Bel-lie, J., in his referring judgment, has came to the conclusion that the above-said undivided 3/4th share was the joint family property of the family of the plaintiff and his mother, after the death of the plaintiffs father, that consequently Sec.8 of the Hindu Minority and Guardianship Act, is not attracted and that though she is not a co-parcener and consequently not the karta of the family, she can alienate the said 3/4th share as de facto guardian of her minor son for the legal necessity of the minor or for the benefit of the estate of the minor, since she is, in the absence of the father, the natural guardian of the person and the private property of the minor. For coming to this conclusion Bellie, J. has held that Sec.11 of the Hindu Minority and Guardianship Act, (which says that after the commencement of the said Act, no person shall be entitled to dispose of the properly of a Hindu minor merely on the ground of his being the de facto guardian of the minor), is not applicable to an undivided interest of a minor in the joint family property. But, in this regard, as also pointed out by Bellie, J., Ratnam, J., has held that the above said Sec.11 will apply even to such minor’s interest in the joint family property. But, in this regard, as also pointed out by Bellie, J., Ratnam, J., has held that the above said Sec.11 will apply even to such minor’s interest in the joint family property. Therefore, according to Ratnam, J., de facto guardianship is totally abolished, whatever be the nature of the property, whether separate property or joint family property of the minor and when the minor’s mother sells such interest of the minor in the joint family property, the said sale is void, ab initio because the mother has no competency at all to sell such interest of the minor, she being total trespasser. Further Ratnam, J., while interpreting Sec.12 of the Hindu Minority and Guardianship Act, (which says that where a minor has undivided interest in the joint family property and the 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) has held that the expression ‘adult member’ used in Sec.12 would refer only to an adult male member and not an adult female member. Bellie, J., does not also share this view of Ratnam, J., and holds that the expression “adult member” would refer to both male and female and the term “management” referred to therein does not mean management as karta, but management in general. 35. In view of these differing views, on reference by Bellie, J., the matter has been placed before us. Before going into the question whether Sec.8 of the Hindu Minority and Guardianship Act would apply to the sale of the above said 3/4th share which belonged to the plaintiff, we have to see what is the character of the said 3/4th share in the hands of the plaintiff, in the light of the facts narrated above. If it is joint family property, the uniform opinion as laid down in Subramaniam v. K.Gounder A.I.R. 1972 Mad, 377, and other decisions is that Sec.8 will not operate since it is only with reference to separate property of minors it will. So, it has be seen whether the above said 3/4lh share of the plaintiff is the joint family property or the separate property of the plaintiff when the above said sale was effected. So, it has be seen whether the above said 3/4lh share of the plaintiff is the joint family property or the separate property of the plaintiff when the above said sale was effected. As already stated, the above said 3/4th share is composed of 1/2 share which came to the plaintiff on the above-said notional partition between himself and his father immediately prior to the death of the father, by survivorship. The other l/4th share was inherited by him from his father on his death out of the above said remaining 1/2 share, which was got by his father pursuant to the above said notional partition. 36. So far as this l/4th share is concerned, the learned counsel for the plaintiff Mr.M.N.Padmanabhan cited before us, as he did before Bellie, J., also two Supreme Court decisions, viz., Commissioner of Wealth-tax, Kanpur, etc., v. Chander Sen Etc., A.I.R. 1986 S.C. 1753: (1986)3 S.C.C. 567 : (1986)161 I.T.R. 370: 1986 Tax.L.R. 1328 and Yudhishter v. Ashok Kumar, A.I.R. 1987 S.C. 858, in support of his contention that it came to the plaintiff as his separate property. In the above referred to Commissioner of Wealth-tax Kanpur, etc. v. Chander Sen Etc., A.I.R. 1986 S.C. 1753: (1986)3 S.C.C. 567 : (1986)161 I.T.R. 370: 1986 Tax.L.R. 1328, there was a partition of joint family business between the father and his only son. Thereafter they continued the business in the name of a partnership firm. The son formed a joint family with his own sons. The father died and amounts standing to the credit of the deceased father in the account of the firm devolved on his son. The Wealth Tax Authorities, while assessing the wealth tax in respect of the assessee, viz., the joint family (which is called Hindu undivided family under the Wealth-tax Act) of the son and his own sons, included the amount in computing the net wealth under the said Act. In that context, the Supreme Court held that the said son inherited the above said amount standing to the credit of his deceased father in the accounts of the firm, as an individual and not as karta of his joint family with his own sons and that hence it could not be included in computing the said assessee’s net wealth under the above said Act. In this context, the Supreme Court observed that though under the old Hindu Law the said son would inherit the above said amount standing to the credit of the deceased father as Karta of his own family with his own sons, the Hindu Succession Act, 1956, has modified the rule of succession by virtue of Sec.8 thereof read with the preamble and Sec.4 of the said Act. Therefore, it observed as follows: “It would be difficult to hold today that the property which devolved on a Hindu under Sec.8 of the Hindu Succession Act would be HUF in his hand vis-a-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-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated.” In the above referred to Yudhishter v. Ashok Kumar, A.I.R. 1987 S.C. 858, the same principles was enunciated thus: “Normally therefore whenever the father gets a property from whatever source from the grand father or from any other source, be it separate property or not, his sons should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Sec.8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Sec.8, he does not take it as karta of his own undivided family but takes it in his individual capacity.......” “This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne’s Hindu Law, 12 Edn. page 919”. The above referred to overruled decision of Gujarat High Court in Commissioner of Income Tax, Gujarat-I v. Dr.Babubhai Mansukhbhai, (1977)108 I.T.R. 417. The above referred to decisions which were approved are Commissioner of Wealth-tax, A.P.II v. Mukundgirji, 1983 Tax.L.R 1370 (A.P.), The Additional Commissioner of Income-tax, Madras v. P.L.Kantppan Chettiar Karur, A.I.R. 1979 Mad. page 919”. The above referred to overruled decision of Gujarat High Court in Commissioner of Income Tax, Gujarat-I v. Dr.Babubhai Mansukhbhai, (1977)108 I.T.R. 417. The above referred to decisions which were approved are Commissioner of Wealth-tax, A.P.II v. Mukundgirji, 1983 Tax.L.R 1370 (A.P.), The Additional Commissioner of Income-tax, Madras v. P.L.Kantppan Chettiar Karur, A.I.R. 1979 Mad. 1: I.L.R. (1978)3 Mad. 305: 1979 Tax.L.R 14: (1978)2 I.T.J. 542 (F.B.) and Shri Vallabhdas Modami v. Commissioner of Income Tax, 1983 Tax.L.R. 559 (M.P.). 37. But, Bellie, J. in his referring judgment, distinguished these two Supreme Court judgments and also the above referred to The Additional Commissioner of Income-tax, Madras v. P.L.Karuppan Chettiar Karur, A.I.R. 1979 Mad. 1: I.L.R. (1978)3 Mad. 305: 1979 Tax L.R. 14: (1978)2 I.T.J. 542 (F.B.), by saying that in those cases “in respect of a separate property devolved on the father under Sec.8 of the Hindu Succession Act it was held that the property cannot be the property of a Hindu joint family of the father vis-a-vis the son.... but, in the instant case, no separate property was inherited .........” No doubt in the above-said Supreme Court and Madras decision, separate property was inherited. But we do not see any difference in the present case also. With respect we hold that Bellie, J., is not correct in this regard. In view of the above said notional partition immediately preceding the death of the plaintiff’s father, the above said 1/2 share that was got by the plaintiffs father on such partition was also his separate property. (In that alone, the plaintiff inherited half that is the above said l/4th share in the entirety). It is settled law that property obtained as his share on partition by a coparcener who has no male issue, is his separate property. (Vide Sec.230(b) of Mulla’s Hindu Law). In the present case the only male issue of the plaintiffs father being the plaintiff and the notional partition having taken place between him and his father, the property obtained by the plaintiff’s father on such partition would only be his separate property. In Mayne’s Hindu Law, 12th Edition at page 541 also it has been observed relying on Padmaja v. Jaisoorya, (1959) A.L.T. 67, following Kalianji Ranchhod v. Bezonji Naraswamji, I.L.R. 32 Bom. In Mayne’s Hindu Law, 12th Edition at page 541 also it has been observed relying on Padmaja v. Jaisoorya, (1959) A.L.T. 67, following Kalianji Ranchhod v. Bezonji Naraswamji, I.L.R. 32 Bom. 512, that where a father divided that family property between his and his sons, the share obtained by him was self-acquired property, which he could bequeath to his wife. In the above referred to The Additional Commissioner of Income-tax, Madras v. P.L.Karuppan Chettiar Karur, A.I.R. 1979 Mad. 1: I.L.R. (1978)3 Mad. 305:1979 Tax L.R. 14: (1978)2 I.T.J. 542 (F.B.), also, the property in question was the property inherited from his devised father and it was held that the son ‘K’ who so inherited, got the property as his separate property and not that of the joint family consisting of himself, his wife, sons and daughters. The only difference is in the above referred to The Additional Commissioner of Income-tax, Madras v. P.L.Karuppan Chettiar Karur, A.I.R. 1979 Mad. 1: I.L.R. (1978)3 Mad 305:1979 Tax L.R. 14: (1978)2 I.T.J. 542 (F.B.), there was a natural partition or division, but in the present case, the partition or division, is a notional one. But that will not make any difference. No doubt, the learned counsel for respondent argued that the legal fiction employed in Explanation 1 to Sec.6 of the Hindu Succession Act, 1956 is only to fix the quantum of the share of the deceased co-parcener and not to fix the character of the property in the hands of his heirs who inherit from the quantum so fixed. In this connection he cited State of Maharashtra v. NarayanRao, A.I.R. 1985 S.C. 716. But, the said decision only says; "A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted, but it cannot be carried beyond that." In the said Supreme Court decision, on facts it was held that the above said legal fiction could not be carried to the extent of holding that the female heir under Sec.7 of the Hindu Succession Act read with Sec.6 of the said Act, could be treated as having ceased to be a member of the family. It was so held because otherwise it would amount to carrying the legal fiction beyond the permissible limit. It was so held because otherwise it would amount to carrying the legal fiction beyond the permissible limit. But, the present case is different The legal fiction being the above said notional partition, what is deducible as a consequence from it, is that the property got on such a notional partition by the plaintiff’s father or the plaintiff as the case may be, is only his separate property, in view of the fact that if the partition was a natural one, the same result would follow. 38. So, in the final analysis, so long as Sec.8 of the Hindu Succession Act, 1956 operates, the result should be the same in view of the above said observations of the Supreme Court. Therefore, the above said l/4th share got by the plaintiff from the father’s above said 1/2 share, by way of inheritance under Sec.8 of the above said Act is only his separate property. 39. Now, regarding the character of the other 1/2 share, which the plaintiff got from his father on the above said notional partition, the learned Counsel for the appellant also cited D.S.Agalawe v. P.M.Agalawe, A.I.R. 1988 S.C. 845, where it has been held as follows: "The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving co-parcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more co-parceners and the right of a sole surviving co-parcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the co-parcenary property as if it were his separate property as long as he remains a sole surviving co-parcener and he may sell or mortgage the co-parcenary property even though there is no legal necessity or family benefit or may even make a gift of the co-parcenary property. If a son is subsequently born to or adopted by the sole surviving co-parcener or a new co-parcener is inducted into the family on an adoption made by a widow of a deceased co-parcener, an alienation made by the sold surviving co-parcener before the birth of a new co-parcener or the induction of a co-parcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the co-parcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted. “ (Emphasis supplied by us). In the present case, admittedly the plaintiff is the sole surviving co-parcener on the death of his father, and the other member of the joint family is his mother the 1st defendant. The contention of the learned counsel for the appellant is that, since the above said 1/2 share, in the hands of the sole surviving co-parcener, the plaintiff, is to be treated as if it were his separate property according to the Supreme Court decision, here also Sec.8 of the Hindu Minority and Guardianship Act would operate and the above said sale effected by the 1st defendant-mother on behalf of the minor plaintiff could be avoided by the minor plaintiff on the mere ground that the prior permission from the Court was not obtained. We also hold so since the above said 1/2 share has to be treated as if it were the plaintiffs separate property. In this regard also we differ from Bellie, J. 40. No doubt the learned counsel for the respondents sought to contend that the said half share, though not” co-parcenary property“, is the” joint family property “ in the hands of the plaintiff. We are unable to understand this contention. He no doubt began to explain the above said contention by saying that the term” Hindu joint family “ is wider in concept than the term” Hindu co-parcenary “ and cited Buddanna v. I.T. Commissioner, Mysore, A.I.R. 1966 S.C. 1523 and Sitabai v. Ramchandra, A.I.R. 1970 S.C. 343. 41. On the proposition of law, no doubt, there can be no two opinion. 41. On the proposition of law, no doubt, there can be no two opinion. In other words, the terms ‘Hindu joint family’ is certainly wider in connotation than the term ‘Hindu Coparcenary’, since the former includes female members of the family viz., Widows and unmarried daughters and even male members who are beyond 3 degrees from the common ancestor, while the latter is restricted only to those male members who got right by birth in the property of the family. But there is no difference between the ‘Joint family property and ‘co-parcenary property’. In fact, Mulla’s Hindu Law, 15th Edition, Sec.220 at page 287 says that the term” joint family property“, is synonymous with” coparcenary property“. In the said section the learned author divides the properties under law, only into two classes, viz., 1. Joint family property and 2. separate property, and finally also states that the term ‘joint family property’ is synonymous with” co-parcenary property“. So, we are unable to accept the above said contention of the learned counsel for the respondents. 42. The learned counsel for the respondent also relied on Gangoji Rao and another v. H.R.Channappa and others, A.I.R. 1983 Kant. 222, Girdhar Singh v. Anand Singh, A.I.R. 1982 Raj. 229, Sunamani Devi v. Babaji Das and others, A.I.R. 1974 Orissa 184 and In re. Krishnakant Managammal, A.I.R. 1961 Guj. 68. These decisions are cited on the footing that the above said 3/4th share of the plaintiff was joint family property in his hands. But, in the view we have taken, viz., that the above said l/4th share of the plaintiff is his separate property and his obiter 1/2 share is to be treated as his separate property, these decisions may have no application to the case in hand. Nevertheless, since arguments were advanced on the footing of these decisions, we shall tough upon them also (assuming that the above said 3/4th share in the hands of the plaintiff was joint family property simpliciter). 43. In the above referred to Gangoji Rao and another v. H.R.Channappa and others, A.I.R. 1983 Kant. 222, it has been held that when the mother manages the family property of the minor son, Sec.11 of the Hindu Minority and Guardianship Act, 1956 is not attracted and that, therefore, she can validly alienate it for family necessary or benefit, without obtaining permission of the Court under Sec.8 of the said Act. 222, it has been held that when the mother manages the family property of the minor son, Sec.11 of the Hindu Minority and Guardianship Act, 1956 is not attracted and that, therefore, she can validly alienate it for family necessary or benefit, without obtaining permission of the Court under Sec.8 of the said Act. The said decision further observes that the fact that the mother can also manage the family property is event from Sec.12 referring to the family property being in the management of ‘an adult member of the family’ and not” adult male member of the family“. But according to us, this decision does not lay down the correct law. Sec.12 no doubt runs as follows: ”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 the 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." 44. A Bench of this Court held in Venkata Krishna Reddy v. Amarbabu, (1971)2 M.L.J. 466 , as follows: "Neither the father nor the mother can, as the minor’s natural guardian, alienate such an undivided interest of the minor.........it has been consistently held that in respect of such undivided interest of a co-parcener neither the natural guardian nor the guardian appointed under the Guardians and Wards Act had any power to sell that interest even for necessity or for benefit The distinction that obtained under the general Hindu Law between the separate property of a minor and his undivided co-parcenary interest is kept up also under the provisions of the Hindu Minority and Guardianship Act, 1956. Sec.6 of that Act which defines a natural guardian excludes minor’s undivided interest in a joint family property from the operation of that section and Sec.12 imposes a prohibition against the appointments of a guardian by a Court other than the High Court in respect of an undivided interest of a minor in a joint family property when such joint family property is in the management of an adult member of the family. Therefore, his not possible to hold that the fourth defendent as the natural guardian of ‘the minor sons is authorised to sell the undivided interest of the minors as such in the joint family properties either under the General Hindu Law or under the provisions of this Act." (emphasis is ours). The learned Judges in the said decisions also observed as follows: "On this aspect some light is thrown by the wording in Sec.12 of the Hindu Minority and Guardianship Act. That Section says that where a minor has an undivided interest in joint family property and the 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. The adult member of the family may be either male or female. If there is no adult member of the family in management then the prohibition contained in Sec.12will not apply. But if there is an adult member in management of the joint family property, then the Court is prohibition from appointing a guardian for the minor’s undivided interest in the joint family property. The section does not say that the adult member could only be a male member. If in case where there is no adult male member and all the members of the family are minors, a guardian can be appointed by the Court with reference to the entire joint family property." (emphasis is ours). 45. So, in Sec.12, adult member would include both male and female and in this respect, with due respect, we observe that the decision of Ratnam, J. in the above referred to Pattayi Padayachi v. Subramania Padayachi and others, (1980)2 M.LJ. 296, holding that the term ‘adult member’ in Sec.12 contemplates only the case of the male member of a family, is not correct. Further, the above said Krishna Reddy v. Amarababu, (1971)2 M.LJ. 466 , also pointed out thus: "Cases have also held that the management of the joint family and its affairs can be taken up not only by an adult male member of the family but also by a female member of the family like the mother. Further, the above said Krishna Reddy v. Amarababu, (1971)2 M.LJ. 466 , also pointed out thus: "Cases have also held that the management of the joint family and its affairs can be taken up not only by an adult male member of the family but also by a female member of the family like the mother. When this adult mother is in actual management of the joint family properties including the undivided interest of its minor members, Sec.12 prohibits a guardian being appointed in such a case as there is an adult member in management of the property. It is true a mother cannot be a co-parcener in a joint family but it cannot be denied that she is a member of the joint family." Therefore, the management spoken no in Sec.12 need nor necessarily be management as Kartha but would include even the management otherwise. 46. We may also point out one other aspect. Sec.12 of the Hindu Minority and Guardianship Act, as Mayne’s Hindu Law, (12th Edition, Page 507 says, statutorily recognises the principle which was laid down consistently by several High Courts that under the Guardians and Wards Act, 1890, no guardian can be appointed of minor’s undivided interest in the joint family properties where the property is under the management of an adult. Yet, it has been held even under the Guardians and Wards Act, a guardian can be appointed in cases where the minor is the sole surviving coparceners (vide: Raktinabai v. Sita Bai, I.L.R. 1952 Bom. 455. In Mayne’s Hindu Law, 12th edition at page 508 it is slated thus: "It is also well recognised by the Courts that a guardian can be appointed in cases where the minor is the sole surviving co-parcener." Therefore, the case of the interest of the sole surviving co-parcener in the joint family properly is treated as if it were a separate property. Therefore, we think that Sec.8 of the Hindu Minority and Guardianship Act would also cover the case of such an interest. 47. Further, we hold with due respect that both the learned Judge who has decided the above referred to Gangoji Rao and another v. H.R.Channappa and others, A.I.R. 1983 Kant. Therefore, we think that Sec.8 of the Hindu Minority and Guardianship Act would also cover the case of such an interest. 47. Further, we hold with due respect that both the learned Judge who has decided the above referred to Gangoji Rao and another v. H.R.Channappa and others, A.I.R. 1983 Kant. 222 and Bellie, J. in his referring judgment are not correct when they hold that Sec.11 of the Hindu Minority and Guardianship Act is not attracted in the case of minor’s interest in the joint family property. We think Ratnam, J. is correct in this regard. This aspect is dealt with below in more detail. 48. The above referred to Gangoji Rao and another v. H.R.Channappa and others, A.I.R. 1983 Karn. 222, follows the view taken in the above said Gir-dhar Singh v. Anand Singh, A.l.R. 1982 Raj. 229, Sunamani Devi v. Babaji Das and others, A.l.R. 1974 Orissa 184 and In re. Krishnakant Mangammal, A.l.R. 1961 Guj. 69. But, in the view we have taken, we hold that those decisions do not lay down the correct law. 49. We may now further elucidate the differing views taken by Ratnam, J. and Bellie, J. on their respective interpretation of Sec.11 of the Hindu Minority and Guardianship Act. Sec.11 runs as follows: "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 there facto guardian of the minor." According to Ratnam, J. the property of a Hindu minor referred to in Sec.11 will include all his properties including his undivided interest in the joint family property and consequently he held that the sale by the defacto guardian of the minor’s interest in the joint family property was void ab initio. In coming to the said conclusion The learned Judge reasoned out as follows: "While Secs.6, 9 and 12 take care to exclude the undivided interest of a minor in the family properties from the scope of the property guardianship of a natural guardian, viz., the father or the mother, Sec.11 does not contain any such restriction with reference to the property of a Hindu minor. In the absence of any distinction between the separate property of a Hindu minor and the undivided interest of a Hindu minor in the joint family property, the provision in Sec.11 must be held to apply equally to both the categories of properties. Otherwise, the object behind Sec.11 of preventing the de facto guardians from dealing with the property of a Hindu minor would be totally frustrated inasmuch as a de facto guardian, while being prevented from dealing with the separate property of a Hind minor under Sec.11, would be at liberty to deal freely with the undivided interest of a Hindu minor in the family property. Having regard to the object with which Sec.11 has been enacted, it is difficult to place any such restriction on the word "property" used in that section. In addition, such a construction is fortified by the decision in Ranganatha Gounder v. KuppuswamiNaidu, (1976)2 M.L.J. 128 . But, Bellie, J.‘s view in the referring judgment is that the minor’s property referred to in Sec.11 excludes his undivided interest in the joint family property,and, therefore, Sec.11 does not abrogate the right of the defacto guardian in respect of the minor’s undivided interest in the joint family property. For reaching the conclusion, the reasoning of Bellie, J. is expressed as follows: "When in Sec.6 wherein for the first time "minor’s properly" occurs the minor’s undivided interest in the joint family property is excluded, in the subsequent sections whenever "minor’s property" occurs it must be taken to exclude the undivided interest in the joint family property unless it is expressly stated that minor’s property includes or does not exclude the undivided interest in the joint family property. In Secs.8 and 11 there is no such exclusion, whereas in Sec.9 there is specific exclusion." But, the reasoning of Bellie, J., for holding that minor’s property referred to in Sec.11 excludes his undivided interest in the joint family property, does not appeal to us. We think that in view of what is stated in Sec.8, there is an implied exclusion of minor’s interest in the joint family property from it. In other words, the very contents of Sec.8 suggest, though not expressly, that the said section does not operate in the case of minor’s undivided interest in the joint family property. We think that in view of what is stated in Sec.8, there is an implied exclusion of minor’s interest in the joint family property from it. In other words, the very contents of Sec.8 suggest, though not expressly, that the said section does not operate in the case of minor’s undivided interest in the joint family property. We are also in agreement with the view expressed in the above referred to Subramaniam v. Krishnaswami Goundar and others, A.I.R. 1972 Mod. 377, thus: “When Sec.8 deals with the minor’s estate or the immovable property of the minor, it could not have been intention of the Legislature that those expressions were intended the apply to the undivided interest of the minor in the joint family properly, for it is not possible to postulate or predicate what share the minor has and what item of property is the minor’s property. On the other hand, the expressions” minor’s estate “ occurring in Sec.8 can apply only to definite properties of the minor and not to a fluctuating interest of the minor in the undivided Hindu family’......Thus, there is intrinsic evidence in Section itself to justify the conclusion that the minor’s undivided interest in the joint family property is not contemplated in Sec.8.” But, while reading Sec.11 the Court does not get the impression that it cannot operate with reference to minor’s interest in the joint family property. Further Sec.6 mentions who are all natural guardians for the minor’s property other than his interest in the joint family. While so, when the succeeding Sec.8 deals with powers of a natural guardian, it is but natural to imply when there is nothing to indicate contra in that section that the said powers are that of a natural guardian of minor’s property other than his interest in the joint family property. So, we hold that Sec.11 will apply to all properties of a minor, including the minor’s interest in the joint family property. 50. But, this view of ours by itself cannot settle the other question whether the sale by a de facto guardian of minor’s property in the joint family property is void ab initio or voidable. In this connection, we also find in unreported decision in Subbalakshmi v. Sengolatha Koundar and others, C.R..P. 831 of 1969 dated 12. 50. But, this view of ours by itself cannot settle the other question whether the sale by a de facto guardian of minor’s property in the joint family property is void ab initio or voidable. In this connection, we also find in unreported decision in Subbalakshmi v. Sengolatha Koundar and others, C.R..P. 831 of 1969 dated 12. 1973 of the Division Bench of this Court, wherein we find the following observations: “Sec.11 of the Hindu Minority and Guardianship Act is relied on for the petitioner to contend that a de facto guardian would not be entitled to dispose of or deal with the property of a Hindu minor. But that is not a complete statement of the law. That section itself proceeds to say that she is not so entitled merely on the ground of her being a de facto guardian of the minor. If the intention of the section is that in no case the transaction of a de facto guardian is to be valid, it could have easily said so. Having regard to the language employed in Sec. 11, we are of the view that the entitlement of the de facto guardian to deal with or dispose of a property of a Hindu minor will not spring merely from the fact of a person being a de facto guardian. That is to say, there may be circumstances, as for instance, that there is no other person left alive to look after the minor, or the interest of the legal guardian is adverse to that of the minor. In such cases, the de facto guardian is not acting as such merely by reason of that fact, but due to the existence of other circumstances which make it necessary make it necessary for her to set as a de facto guardian. We are of the view, therefore, that Sec. 11 does not render the sale void.” We are in agreement with the view expressed by the above said Division Bench. Therefore, we do not think that the above said Sec.11 does render the sale by a de facto guardian, of his. minor’s interest in the joint family, void. But the said section renders the said sale voidable only. Therefore, we also observe, with due respect, that the above said decisions of Ratnam, J., in this regard, is not correct. Therefore, we do not think that the above said Sec.11 does render the sale by a de facto guardian, of his. minor’s interest in the joint family, void. But the said section renders the said sale voidable only. Therefore, we also observe, with due respect, that the above said decisions of Ratnam, J., in this regard, is not correct. 51.But, as already stated, all the above said discussion right from paragraph 13 above proceed on the assumption that the above said 3/4th share of. the plaintiff was joint family property simpliciter. On the other hand, we have already held that out of the above said 3/4th share, the above said l/4th share is plaintiff’s separate property and his other 1/2 share is to be treated as his separate property on the facts of this case. Therefore, in respect of both the above said l/4th and 1/2 share belonging to the minor, the said Sec.8 of the Hindu Minority and Guardianship Act would operate and the permission contemplated therein having not been obtained, the said sale under Ex.B-4 in so far as the plaintiffs above said 1/2 + 1/4 = 3/4th share is concerned, has to be necessarily set aside since no prior permission from the Court was obtained under Sec.8 of the Hindu Minority and Guardianship Act. 52. In the result, the appeal is allowed, the judgment and decree of the Court below are set aside and the suit is decreed as prayed for. However, in the circumstances of the case, no costs throughout. Venkataswami, J. This matter was posted at the instance of the appellant/plaintiff, regarding, payment of court-fee. 53. The court-fee payable both in the appeal as well as in the suit, will be paid by the appellant/ plaintiff.