Judgment :- 1. The plaintiff in O.S. 331 of 1976 on the file of the District Munsif, Tirupattur, North Arcot District, who lost before both the courts below, is the appellant herein. He filed the said suit for partition and separate possession of 1/3rd share in the suit property. His case is that the property originally belonged to his father Alraj. He died intestate, leaving behind him, the appellant, first and second respondents, the widow and another son. The third respondent herein purchased some of the items of the suit properties from the appellants father and also from the first and second respondents. The appellant was minor at the time of those sales. As the sales in favour of the third respondent were not for family necessity, the same will not bind the appellant herein. Even though the partition was sought for, the respondents 1 and 2 did not concede the request of the appellant and hence the suit. 2. The first respondent filed a written statement, supporting the case of the appellant herein but remained ex parte. 3. The second respondent remained ex parte. 4. The third respondent filed the written statement, disputing the claim of the appellant, stating that the properties were sold by the father of the appellant. When admittedly the properties have been purchased by the father of the appellant, the appellant herein cannot challenge the alienations made by his father. So far as the alienation made by the first and second respondents herein, in respect of item 3 of the suit property, the same is for the family necessity. In fact the sale deed was executed by the first defendant for herself and as guardian of the appellant herein. After the alienation, the respondents 1 and 2 herein disputed the title of the third respondent which necessitated the filing of the suit O.S. 851 of 1973 by the second respondent herein against the third respondent seeking for the relief of declaration and injunction. The said suit was dismissed and there was no appeal and as such a finality has been reached so far as item 3 is concerned. The sales being for the family necessity, it is not open to the appellant to claim share. 5. The said suit was dismissed and there was no appeal and as such a finality has been reached so far as item 3 is concerned. The sales being for the family necessity, it is not open to the appellant to claim share. 5. On the above pleadings as well as the evidence let in by both the parties, the trial court dismissed the suit by the judgment and decree dated 12.9.1979 wherein it has been held that the first and second respondents did not act against the interest of the appellant. The alienations made by the respondents 1 and 2 will be binding on the appellant, as the same are only to discharge the debts incurred by the father of the appellant. 6. Aggrieved by the same, the appellant herrein filed an appeal A.S. 1 of 1981 on the file of the Sub-Court, Tirupattur. The learned Subordinate Judge who heard the appeal, concurred with the findings of the trial court so far as the alienations are concerned. He further found that items 1, 4, and 18 cents in item 2, in all 84 cents are available for partition and on that ground granted a preliminary decree for partition in respect of the properties available at the time of filing of the suit, partly allowing the appeal by judgment and decree dated 13.7.1981. As against the same, the present Second Appeal has been filed. 7. At the time of admission of the Second Appeal the following substantial question of law was framed: “Were not the Courts below in error in overlooking that the sale having been effected by the lawful guardian, without prior permission of the Court, it is not binding upon the minor.?” 8. Mr. Surendranath, the learned counsel for the appellant vehemently contended that the properties were purchased by the father of the appellant and the same is his separate property After the death of the father, the appellant, his mother and brother, the respondents 1 and 2 are entitled for equal share of 1/3rd each. When that be so, the alienations made by the respondents 1 and 2 without obtaining the permission of the court, as contemplated under Section 8 of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) is void and will not be binding on the appellant herein. Hence the appellant is entitled for a share as prayed for. When that be so, the alienations made by the respondents 1 and 2 without obtaining the permission of the court, as contemplated under Section 8 of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) is void and will not be binding on the appellant herein. Hence the appellant is entitled for a share as prayed for. He also placed reliance for his contention on the case reported in Theagaraya Reddiar v. Vedachala Gounder (ILR (1980) I Madras 450 = 93 L.W. 268) and Sundaramoorthy v. Shanmuga Nadar (AIR 1980 Madras 207). It is the further contention of the learned counsel for the appellant that the property in the hands of the appellant and the respondents 1 and 2 cannot be considered to be the joint family property, as there was no coparcenary estate. The properties being self-acquired property of the father, each one is entitled for 1/3rd share and it will be the minors property of the appellant, as contemplated under Section 6 of the Hindu Minority and Guardianship Act, 1956 and hence without the permission of the court neither the first respondent, as a guardian, nor both the first respondent as well as the second respondent got any power to alienate the property. The courts below have totally failed to consider this aspect and hence the judgment and decree of the courts below are liable to be set aside. 9. This court gave anxious consideration for the contention of the learned counsel for the appellant. So far as the judgments relied upon by the counsel for the appellant are concerned, they relate to the separate property of the minor. In the case reported in Theagaraya Reddiar v. Vedachala Gounder (ILR 1980 I Madras 450) the purchases were made in the name of the minor and those properties were alienated by the guardian. Hence it was held that the alienation made by the guardian without the permission of the court is void. 10. Similarly in the case reported in Sundaramoorthy v. Shanmugha Nadar (AIR 1980 Madras 207 = 93 L.W. 268) the minors got the property under a Will. Those properties were alienated by the guardian. Hence the properties being the separate property of the minors, it was held that the alienation by the guardian is void. 11. 10. Similarly in the case reported in Sundaramoorthy v. Shanmugha Nadar (AIR 1980 Madras 207 = 93 L.W. 268) the minors got the property under a Will. Those properties were alienated by the guardian. Hence the properties being the separate property of the minors, it was held that the alienation by the guardian is void. 11. So far as the present case is concerned, the learned counsel for the appellant vehemently contended that it is not a joint family property so that the mother, the first respondent herein, as a guardian, in the absence of the father, can alienate the property. By virtue of the death of the father of the appellant, the property devolved on all the three i.e., the appellant, first respondent and second respondent in equal shares and as such it will be separate property of the appellant so far as his share is concerned. When once it has become the separate property of the minors shares, the first respondent has no power of alienation without obtaining the permission of the court and as such the alienation is void. 12. In my view, the argument is a misconceived one. Section 6 of the Hindu Minority and Guardianship Act contemplates that the natural guardian of a Hindu minor in respect of the minors person as well as in respect of the minors property (excluding his or her undivided interest in joint family property) is 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. 13. The Section is very specific that the minors property refers to the minors separate property and that is why the undivided interest in the joint family property had been excluded. The property of which the natural guardian viz., the father and after him, the mother, is entitled to be in possession on behalf of the minor, is the separate or the absolute property of the minor. Only in such cases Section 8 of the Hindu Minority and Guardianship Act will operate, whereunder the guardian is expected to get the prior permission of the court. 14. So far as the case on hand is concerned, there is a falacy in the argument of the learned counsel for the appellant. Only in such cases Section 8 of the Hindu Minority and Guardianship Act will operate, whereunder the guardian is expected to get the prior permission of the court. 14. So far as the case on hand is concerned, there is a falacy in the argument of the learned counsel for the appellant. When once the father acquired the property, after his death, the property devolves on his legal heirs. So far as the male heirs are concerned, naturally it will assume the character of the joint family property in the case of intestate. If the father disposed of his property by way of any instrument with the specific recital to the effect of the character, the property will assume in the hands of his sons, depending upon such recital. Suppose if the father executes a Will or settlement in favour of his son stating that the son has to get the property as his self-acquired property, then the property will not assume the character of the joint family at his hands. In the absence of such specific recital, then naturally the properties in the hands of the son will assume the character of the joint family property. 15. It is worthwhile to refer the judgment of the Supreme Court in Arunachala v. Muruganatha ( AIR 1953 SC 495 = 66 L.W. 1072) where the learned Judges have elaborately discussed and held as follows: “In view of the settled law that a Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male decendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest. This extreme view, which is supposed to be laid down in the Calcutta case: vide— Muddun Gopal v. Ram Buksh (6 WR 71 (A) referred to above, is sought to be supported on a two-fold ground. The first ground is the well known doctrine of equal ownership of father and son in ancestral property which is enunciated by Mitakshara on the authority of yagnavalkya. The first ground is the well known doctrine of equal ownership of father and son in ancestral property which is enunciated by Mitakshara on the authority of yagnavalkya. The other ground put forward is that the definition of ‘self-acquisition’ as given by mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot but be partible property as between the donee and his sons. So far as the first ground is concerned, the foundation of the doctrine of equal ownership of father and son in ancestral property is the well known text of yagnavalkya: vide yagnavalkya Book 2, 129 which says: “The ownership of father and son is co-equal in the acquisitions of the grandfather, whether land, corody or chattel.” It is to be noted that Vijnaneswar invokes this passage in Chap. I, Sec. 6 of his work, where he deals with the division of grandfathers wealth amongst his grandsons. The grandsons, it is said, have a right by birth in the grandfathers estate equally with the sons and consequently are entitled to shares on partition, though their shares would be determined ‘per stirpes’ and not ‘per capita’. This discussion has absolutely no bearing on the present question. It is undoubtedly true that according to Mitakshara, the son has a right by birth both in his fathers and grandfathers estate, but as has been pointed out before, a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfathers property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father his rights are unequal by reason of the father having an independent power over or predominant interest in the same; vide Maynes Hindu Law, 11th Edition, page 336. It is obvious however, that the son can assert this equal right with the father only when the grandfathers property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfathers property comes to the father by virtue of the latters legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. But when the father obtains the grandfathers property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. A good deal of confusion, we think, has arisen by not keeping this distinction in mind. To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner.” 16. Here the father died intestate. When a Hindu father dies, leaving sons as well as the female heirs, who are also entitled to inherit jointly with the sons to the fathers property under the Hindu Succession Act, 1956 the interest of the minor daughters in the property left by the father whether the property of the fathers separate property or the fathers interest in the joint family property will be the undivided interest in the joint family property and as such in respect of those properties Section 6 of the Hindu Minority and Guardianship Act has no application. 17. There is no dispute that after the death of the father the appellant and his mother and brother, the respondents 1 and 2 are entitled for equal share. 17. There is no dispute that after the death of the father the appellant and his mother and brother, the respondents 1 and 2 are entitled for equal share. In the absence of any deed of bequeath, naturally the property devolved on the appellant as well as the second respondent herein will be the joint family property so far as they are concerned in which their legal heirs will be entitled for a share by birth. In such circumstances, the property cannot be considered to be the separate property of the appellant and as such equally there is no need for the first respondent to get the permission of the court. 18. In fact another learned Judge of this court M. Karpagavinayagam, J has taken the same view in Elango v. Poongodi (2001) 1 MLJ 254 ). The relevant portion from the judgment is extracted below: “According to the plaintiffs, after the death of their father, they got share in the suit property and as such, their mother and brother cannot alienate the property to the third party ignoring their rights that too, without obtaining permission from the competent court under Section 8 of the Act. Whatever it is, as stated above, we are now exchange deed Ex.A5 is valid or not in the light of concerned with the question as to whether the the embargo put under Section 8 of the Act. The settled principles given in these decisions could be summarised as follows: (i) Under the Hindu Law a Manager and karta of a joint family can alienate joint family property so as to bind the interest of minor coparceners in such property provided that the alienation is either for legal necessity or for the benefit of the estate.(ii) The restrictions contained in Section 8 do not apply in respect of the undivided interest of a minor in joint family property and Section 8 does not debar a manager and karta of a joint family from alienating joint family property without obtaining the previous permission of the court even if the manager and karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. (iii) Section 8 of the Act does not apply to the joint interest of a minor in a family property which the manager is competent to dispose of under the general provisions of the Hindu Law, namely, for the benefit of the minor or for family need etc., (iv) The intention of the legislature in dealing with the powers of the natural guardian in section 8 is not to fetter his powers in the matter of dealing with the joint family property including the undivided share of the minor in such property. (v) When the minor and his mother constitute a Hindu joint family, each with a moiety of undivided interest in any immoveable property belonging to the family, in the absence of the father, the mother as natural guardian, can alienate even the minors half share in the immovable property under the personal laws. Section 8 of the Hindu Minority and Guardianship Act will not apply to such alienation. (vi) In the absence of the father, the mother could manage the joint family property including the interest of the minors in such property. Section 12 does not empower appointment of a court guardian, the mother managing the family property being a natural guardian. Section 11 of the Act is not attracted and therefore, she can validly alienate the property including the minors interest in it for family necessity or benefit without obtaining permission of the court. From what is stated above, it is clear that Section 8 of the Act would not apply to the present case and consequently, it has to be held that the lower appellate court has misconstrued the relevant provision of the Hindu Minority and Guardianship Act and rendered the judgment ignoring the imperative legal principles and setting aside the well reasoned judgment of the trial court. Therefore, the judgment and decree of the lower appellate court are set aside.” 19. Apart form this, it is an admitted fact that most of the properties had been alienated by the father himself for family necessity and so far as those alienations are concerned, it is not open to the appellant to challenge the same; especially when it is admitted that the properties have been acquired by the father out of his self-earnings. 20. In view of this, there is absolutely no merit in the Second Appeal and the same is dismissed with cost.