A.K. Jain Family Law 2
A.K. Jain Family Law 2
A.K. Jain Family Law 2
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MUSLIM LAW
TABLE OF CASES
References
(Family Law-ll)
HinduLaw
1. Malta Principles of Hindu Law.
2. Mayne: Hindu Law and Usage.
3. R.N. Sarkar. A Treatise on Hindu Law.
4. Paras Dwan Modern Hindu Law/ Family Law.
5. Jaspal Singh: Hindu Law of Mairiage & Divorce.
6. Kvmud Desai: Indian Law of Marriage & Divorce.
7. R.K. Agarwal. Hindu Law.
8. U.P.D. Kesari: Hindu Law.
9. B.M. Gandhi. Hindu Law.
10. N.H. Jhabvala: Principles of Hindu Law.
11. Poonam Pradhan Saxena: Family Law-ll.
Muslim Law
1. Mulla: Principles of Mohammedan Law.
2. A.A.A. Fyzee: Outlines of Muhammadan Law.
3. Dr. Tahir Mahmood: The Muslim Law of India.
4. F.B. Tyabji: Muslim Law.
5. Ameer AH: Muhammadan Law.
6. The Indian Law Institute: Islamic Law in India.
7. Aquil Ahmed: Mohammedan Law.
8. Khalid Rashid: Mohammedan Law.
9. N.H. Jhabvala: The Principles of Muhammadan Law.
Other Sources
1. Supreme Court Yearly Digests - SCYD (1995-2011):
Shailendra Malik (Ed.) (Eastern Book Co.).
2. Cases and Materials on Family Law-ll: Faculty of Law,
Delhi University, Delhi.
3. Question Papers Referred - Delhi and Other Indian
Universities; Competitive Exams.
(xv)
1
Hindu Joint Family
and Coparcenary
1. Explain the concept and incidents of a Hindu joint family. [D. U -2010]
[1]
2 Family Law - II
(2) It has no legal entity distinct and separate from that of the
members who constitute it. It is not a juristic person. It is
not a corporation either.
(3) It is a unit and in all affairs it is represented by its Karta (head
or manager).
(4) Status can be acquired into it only by -birth, marriage to a male
member, and adoption.
(5) Ouster of a member from joint family: Status can be lost by
conversion to a non-Hindu faith, marriage to a non-Hindu under
the Special Marriage Act, 1954, on being given in valid adoption,
and, on partition.
(6) ll is different from a composite family - a creature of custom
and agreement, where two or more families agree to live and
work together, pool their resources, throw their gains and labour
into the joint stock and shoulder the common risk. The primary
objective of composite families is convenience and efficient
management of the family properties.
(7) A joint family may consist of a single male member and his
wife and daughters, or a single male member and a widow of
coparcener, or even when there are only widows. The rule is
"that even on the death of sole surviving coparcener, the Hindu
joint family does not come to an end so long as it is possible
in nature or law (i.e. adoption) to add a male member to it"
(Sitahui v Ram Chandra AIR 1970 SC 343). A single male or
female cannot make a joint family. There must be at least two
members to constitute it.
/ Hindu Undivided Family - For the purposes of tax assessment, the '
revenue statutes use the expression 'Hindu Undivided Family' (HUF),
which appears to be slightly different from the definition of a Hindu
joint family (See under the questions section).
Presumption of Jointness
/Every Hindu family is presumed to be a joint family (Radhamoni v
Dibaker AIR 1991 Pat 15). The normal state of every Hindu family is
that it is a joint family, presumably joint in food, worship and estate, and
it continues to be joint (Rukhmabai v Laxminarayan AIR 1960 SC 335).
However, if a family is not joint in food, worship and estate, or in any
H i n d u J o i n t F a m i l y and C o p a r c e n a r y 3
Coparcenary2
The Mitakshara concept of coparcenary is based on the notion of
son's birth right in the joint family property. Not merely a son,
but also a "son's son and son's son's son acquire an interest by
birth in the joint family property, j
i
F 1 (Not
coparceners)
G
I
H
(8 Generations)
A
I
B
I
C
DS DS1 ES ESl
.During the lifetime of the common male ancestor (i.e. the last
holder) the disappearance of any of tire intermediary generation
or generations does not extend the coparcenary beyond the fourth
degree of generation from him.
In the above example, if B dies first, and C dies next, then
the coparcenary will consist of A, D and E. If now E dies,
coparcenary will consist of A and D and at this stage ES and ES 1
get removed by more than four degrees from the last holder of
the property and their chance of ever becoming coparceners
comes to an end. If at this stage A dies, coparcenary will consist
of D and his two sons DS and DS1.
Extinction of Coparcenary4 |
"The extinction of coparcenary does not affect the existence of joint family".
6omment. [D.U.-2008\[C.L.C.-
92/93/94]
6 Family Law - II
B C
I I
D E
13
7. In what manner the concept of a Mitakshara Hindu joint family and coparcenary
affected by the Hindu Succession (Amendment) Act, 2005? [D.U.-2009/2011]
8. The Law Commission said that granting daughters equal coparcenary rights
with sons in joint family property should be made applicable to women who
marry after the new amendment comes into force and not to those who married
before the change. It felt that women received quite a lot as dowry at the time
of their marriage. However, the said suggestion of the Commission did not find
a place in the 2005 Amendment Act.
14 F amily Law - II
It is noteworthy that while in Kerala, the joint family concept and the pious
obligation of the son to pay his father's debts were abolished; the other four
States retained both, additionally, introducing an unmarried daughter as a
coparcener. The present Amendment Act incorporates changes that are a
combination of the Andhra and the Kerala model, It retains the concept of joint
family and introduces daughters as coparceners but abolishes the pious
obligation of the son to pay the debts of his father. See P. Pradhan Saxena,
Family Law II, 2nd ed., p. 338 (2007).
Hind u J o i n t F a m i l y and C o p a r c e n a r y 15
Daughter as Coparcener/'Karta
One of the major changes brought in by the 2005 Amendment is that
in a Hindu joint family, the exclusive prerogative of' males to be
coparceners has been changed altogether and the right by birth in the
coparcenary property has been conferred in favour of a daughter as
well. This radical change has fundamentally altered the character of a
Mitakshara coparcenary. Now, the daughters have been made
coparceners in the Mitakshara joint family property, with the same
rights as sons to shares, to claim partition and (by presumption) to
become Karta (Manager), while also sharing the liabilities. The
discrimination against daughter has been brought to an end, as her
rights and liabilities are the same as that of a son.}
Further, daughters would not only be empowered to form a
coparcenary along with their other siblings (irrespective of gender), but
would also be competent to start a joint family herself. She can even
be a Karta, throw her self-acquired Earnings into the joint family fund,
something that was not possible before the amendment. The rule that
females cannot form or start a joint family on their own but can
continue it even on the death of a male member in the family but
provided they have the capacity to add a male member to it by birth or
through adoption, stands abrogated now.10 After the 2005 Amendment,
thus, a 'daughter', like a son, can not only continue a joint family, but
also form one with her father and brothers.)
It may be noted that the daughters have been made coparceners
irrespective of their marital status. Thus, after the marriage of a daughter,
10. See, P. Pradhan Saxsna, Family Law II, 2 ed., p. 338 (2007)
16 Family Law - II
Concluding Remarks
The recent amendments to the Hindu Succession Act are quite significant.
They are important steps towards gender equality and abolition of the
patrilineal system of inheritance prevailing among Hindus. They can
enhance women's security by giving them birthrights in property that
cannot be willed away by man. In a patriarchal society where wills
(testamentary disposition) often disinherit women, this is a substantial
gain. Also, women can become Kartas of the property. This will enhance
her confidence and social worth and give her greater bargaining power
for herself and her children, in both parental and marital families.
18 Family Law - II
Hindu law has two main schools: the Mitakshara school and Dayabhaga
school. The Mitakshara ('a concise work') is a commentary on the code
of Yajnavalkya and is written by Vijnaneshwar. The Dayabhaga is a
digest of all the codes and is written by Jimutavahana. The Mitakshara is
the orthodox school, whereas the Dayabhaga is a reformist school of
Hindu law
Mitakshara is the authority for the whole of India except parts of
Punjab and Bengal.; In Bengal also, Mitakshara was received as high
authority except with respect to those points on which it conflicted with
Dayabhaga that is of paramount authority in Bengal. Likewise, the
Dayabhaga is also referred to sometimes in a case governed by
Mitakshara law, on points on which the latter is silent.
.Even Mitakshara was subject to different interpretations leading to its
sub-division into several schools. Mitakshara prevailed in the Mithila
(Bihar), Benaras (Northern and North-west), Dravida/Madras (Southern)
and Maharashtra/Bombay (Western) schools while in Bengal and North-
East prevails the Dayabhaga school. In Punjab, customary law (modifying
Mitakshara to a large extent) still prevails.]
Where a Hindu family migrates from Maharashtra (where the
Mitakshara law prevails) to Bengal (where the Dayabhaga prevails), the
presumption is that the family continues to be governed by the Mitakshara
law unless it is shown that the family has abandoned the law of the
province of its origin (i.e. Maharashtra) and adopted the law of the
province where it has settled. Thus, the Hindu law is not a lex loci i.e. a
local law, but it is, in every sense, a personal law.
In the modern Hindu law, schools have relevance only in the
respect of the un-codified Hindu law; they have lost all their relevance in
regard to the codified Hindu law (Acts). The Hindu Succession Act, 1956,
has abrogated the difference between the two schools and has provided
for a uniform law relating to succession of Hindus.
Mitakshara and Dayabhaga schools differ on certain basic
aspects:14
(i) Under Mitakshara, the basis for the Jaw of inheritance is the
principle of propinquity i.e. the nearness in blood relationship or
consanguinity of blood. This is purely a secular principle and
means that sons and daughters should inherit equally as they
are equally nearer to the deceased parent. However, agnates are
preferred over cognates.
Under Dayabhaga, the law of succession is based on religious efficacy
or spiritual benefits (offering of oblations or Pindadan) and therefore
a person who confers more religious benefit on the deceased is preferred.
It therefore rejects the preference of agnates to cognates.!
. (ii) With respect to jointjamily under Mitakshara, the son, grandson,
and great grandson have a right by birth in the joint family
property having an equal interest with the father. Under
Dayabhaga, the son or grandson or great grandson has no such
right till the father is alive and the father can dispose of the
property at his pleasure/ After his •death, property (ancestral or
separate), devolves by inheritance or succession. Thus, there is
no right to the son to ask for a partition during the lifetime of
the father. ,
15. P. Pradhan Saxena, Family Law II, 3* ed., pp. 37-38 (2011).
20 Family Law - II
FURTHER QUESTIONS
Q.1 (a) A dies in 1992 leaving behind ancestral and separate properties.
The tax authorities want to tax the above mentioned properties
in the hand of his heirs. How the properties should be taxed if
A is governed by Mitakshara and is survived by:-
H, the father, his sons S1 and S2, his daughters D1 and D2, his
grandsons S3 and S4; his great grandson S5 by S3 and his
great great grandson S6 by S5.
(e) Under what situations can joint family continues at the instance
of only the female members in the family? Can two unmarried
sisters constitute a joint family? [D.U.-
201O\
(a) Determination of Joint Family Status (Creation and
Continuance)
A Hindu joint family (according to Mitakshara law) consists of all
persons lineally descended from a common male ancestor, and their
H i n d u J o i n t F a m i l y and C o p a r c e n a r y 21
1 1 S1 I (First Degree)
S2 D'/D2
,1 1 1
.
(Second Degree)
s3 s4
1 (Third Degree)
5
s
CLASSIFICATION OF PROPERTY
[25]
26 Family Law - II
owner. The owner holds it as his separate and absolute properly. The
relations of the owner do not take a vested interest in it by birth. They
are entitled to it only on. the death of the owner. For example, A inherits
certain property from his brother. A has a son B. The property is
obstructed in the life-time of A. B does not take any interest in it during
the life time of A. After A's death, B will take it as A's heir by succession.
Thus, the unobstructed heritage devolves by survivorship and
obstructed heritage by inheritance (succession). In the former case,
relatives take a vested interest in the property by birth. In the latter
case, their right to it arises for the first time on the death of the owner.
Until then they have a bare chance of succession to the property,
contingent upon their surviving the owner.
However, in some cases, obstructed heritage passes by survivorship
e.g. two or more sons, grandsons and great grandsons succeeding as
heirs to the separate property of their paternal ancestor take as joint
tenants with survivorship rights.
(II) Joint Family Property and Separate Property
According to the Hindu law, the property is divided into two classes,
namely:- (1) Joint family property or coparcenary property, and (2)
Separate property.
The joint family property is the most important aspect of the law of the
Hindu Joint Family. The HJF property is like a big reservoir into which
property flows in from various sources and from which all members of
the joint family draw out to fulfill their multifarious needs. Thus
'coparcenary property' is that in which every coparcener has a joint
interest and joint possession. It devolves by survivorship (interest by
birth), not by succession.' The coparceners are in fact defined in
30 Family Law - II
son, son's son and son's son's son it will continue to be joint
family property, but in respect of all others it will be his separate
property. And, when that coparcener (father) further partitions
with his sons, then his share would constitute his separate
property. His sons no longer would have a right of survivorship in
it and on the father's death, the property would go by inheritance. If,
however, the father gets a son after his separation from the family,
he will form a coparcenary with that son.
Case Law
property being joint and the onus would shift on the person
who claims it to be self-acquired property to prove that he
purchased the property with his own funds and not out of joint
family nucleus that was available.
The court, in the present case, held: The High Court has
also rightly observed that there was no presumption that the
property owned by the members of the joint Hindu Family
could a fortiori be deemed to be of the same character and to
prove such a status it had to be established by the propounder
that a nucleus of Joint Hindu Family income was available and
that the said property had been purchased from the said nucleus
and that the burden to prove such a situation lay on the party,
who so asserted it. The ratio of K. V. Naraycmaswami Iyer case
is thus clearly applicable to the facts of the present case.
It is the admitted case that the 11 Marias had been
purchased by Dula Singh from his income as an employee of
the Railways and it was therefore his self-acquired property.
Such a property falling to his sons by succession could not be
said to be the property of the Joint Hindu Family.
FURTHER QUESTIONS
Family Law – II 38
[LC.I-94\
P r o p e r t y in H i n d u Law 41
(5) The Court held that, in the present case, the Will
expressly vests son with absolute rights (of
alienation), and no reference is made to son's
son. Thus he (father) did not intend that 'he
property should be taken by son as ancestral
property.
(6) Thus, a property gifted by father to his son
could not become ancestral property in the
(iii) hands of donee simply by reason of the fact
that the donee got it from his father as
ancestor. Theory of equal ownership is not
applicable to the father's gifts, as father has a
predominant interest in his self-acquired
property.ly
Nature of Property Inherited from Father under
Hindu Succession Act, 19565
[C.LC-96]
[Note: S3 can challenge the gift]
Discuss the character of the property that a son inherits from his father
post 1956. What are the judicial developments in this regard? What would
be your answer if the property is left to the son under a testamentary
disposition?
[D.U-201O]
[Note: For testamentary disposition (i.e. under a Will) see Arunachalam v
Murugantha.]
P r o p e r t y in H i n d u Law 43
Sen and said that the heirs to a Hindu male include a son and
son of a predeceased son and not son of a living son who is
an heir otherwise it would mean giving a right by birth to the
son in the father's property and also the grandfather's property.
(In Makhcm Singh v Kulwant Singh (AIR 2007 SC 1808),
the father had purchased eleven marlas of land and constructed
a building thereon from the savings as an employee of the
Railways. On the father's death, his four sons inherited this
property. The question v/as: Is it the separate property of each
son or is the joint family property qua their sons? The court
held that the property inherited by the sons would be their
separate property and could not be said to be the joint family
property.9])
(iv) Nature of Property obtained on Partition
When a coparcener partitions from the joint family and obtains his share of
property, then in respect of his own son, son's son, and son's son's son
it will continue to be JFP, but in respect of all others it will be his
separate property It may be illustrated thus: A coparcenary consists of
A and his sons Hand C and if they partition the properties obtained by
each will be his separate property. Even A's share will be his separate
property in the sense that his sons B and C have no interest, no birth-
right in it. But the moment any one of them gets a son his share will
again become JFP. This will be so even if A gets another son D; A and
D will constitute a new coparcenary
In other words, if a person partitions from the joint family and
obtains a share, then his son (who has not partitioned from that person
i.e. father) will get a joint interest in such share of property.
9. to., p. 126.
P r o p e r t y in H i n d u Law 47
(iii) The flat which Nishant inherited from his father can only be his
separate property, thus, Subhash cannot claim partition in this
flat (CWT v Chandra Sen AIR 1986 SC 1753). (iv) The share
which Nishant received on partition continues to be
JFP as regards his son Subhash and thus Subhash can claim
partition in it.
Q.2 Balram was possessed of property comprising of agricultural
land which he inherited from his father in 1955, a shop in
Kamla Nagar inherited by his wife from her father and Rs.
4,00,000 which his separated paternal uncle sent from Africa.
His only son claims half share in above-mentioned properties.
Decide. [LC. l-95\
A.2 SeeAA.
(i) Under the old Hindu law (before the passing of Hindu
Succession Act. 1956). when 9 son inherits property from
his father vis-a-vis his own son, he takes it as joint family
property. Thus, Balram's son can claim half share in
agricultural land which Balram inherited from his father.
(ii) The shop which Balram inherited via his father-in-law is
his separate property and his son cannot claim share in
it.
(iii) Rs. 4,00,000 which Balram got from his separated paternal
uncle is his separate property and his son cannot claim
share in it.
Q.3 A Hindu father 'A' died in 2006, survived by his widow W, one
son S and a daughter D. S had two children SS and SD.
Before his death, 'A' had executed a Will, whereunder he
bequeathed three flats (of similar value) that constituted his
separate property in favour of W, S and D. Two days prior to
his death, 'A had purchased a farm house using his own
money with respect to which no Will was executed. On his
death, his children and widow took possession of the flats
individually and of the farm house collectively. SS filed a suit
for partition against S, claiming a share out of the flat and the
farm house, on the ground that he being a coparcener had
a right by birth in the same. Discuss whether he would be
successful? [D.U.-2011]
(i) The property which was purchased by Harish in his name, out of
his earnings made in the course of his pursuing medical
profession. The family incurred all the expenses of Harish to
have a formal education.
(ii) Share certificates worth Rs. 6 lacs purchased in his name out of
HUF funds.
A Hindu joint family has several persons as its members, having distinct
rights over the property, and rights and obligations towards each other.
It is naturally inconvenient both for the outsiders as well as for the
coparceners that each and every adult coparcener must have a say in
each and every matter of the joint family. Thus, in its dealings with the
outsiders there has to be a 'unit'. And for that purpose it becomes
necessary that it must be headed by a person within the family who
represents it in law and other matters and is also competent to bind all
family members with his bona fide actions or decisions taken with
respect to the family (in the best interests of the family)!
Ancient family units were headed by the senior-most male member
in the family, the 'Patriarch.' It is now replaced with the term 'Karta'
(Manager); the person charged with the work i.e. management. Under
Ancient law, he was the unquestioned ruler of the family, but the
domain of his power as head of the family have been considerably
diluted because of innovative legislative enactments and equitable judicial
interpretations. Absolute powers have been replaced by superior powers
co-existing with superior responsibilities.
[54]
Rights and Powers of Karta and Coparceners 55
In this case, the issue was whether a younger coparcener could file
the suit for eviction, in the capacity of the Karta of a HUF, when,
admittedly, an elder member of the aforesaid HUF was alive. .
The court observed: In Sunil Kumar v Ram Prakash (1988) 2
SCC 77, it was laid down that, in general, the father of a family, if
alive, and in his absence the senior member of the family would be
entitled to manage the joint family property. In Tribhovan Das v
Gujarat Revenue Tribunal (1991) 3 SCC 442, the court observed
that a younger member of the joint Hindu family can deal with the
joint family property as manager in the following circumstances:
(i) if the senior member or the Karta is not available;
(ii) where the Karta relinquishes his right expressly or by
necessary implication;
(iii) in the absence of the manager in exceptional and extra
ordinary circumstances such as distress or calamity
affecting the whole family and for supporting the
family;
(iv) in the absence of the father: (a) whose whereabouts
were not known or (b) who was away in a remote place
due to compelling circumstances and his return
within a reasonable time was unlikely or not
anticipated, i
- The trial court relied upon the law discussed in the books ""
namely, "Principles of Hindu Law" by Mulla and Mulla and Shri
S.V. Gupta on "Hindu Law", wherein it has been observed that
ordinarily, the right to act as the Karta of HUF is vested in the
senior-most male member but in his absence, the junior members
can also act as Karta.
The High Court rejected the argument of the appellant that
Tasraj Singh could not have acted as the Karta of the family as
his elder brother, namely, Dhuman Raj Singh, being the senior-
most member of the HUF, was alive. It is true that in view of the
decisions of this court in Sunil Kumar's case and Tribhovandas's
case, it is only in exceptional circumstances that a junior member
can act as the Karta of the family. But we
Rights and Powers of Karta and Coparceners 57
Position of Karta
the Hindu Joint Family, karta or head occupies a pivotal position. The
position of karta is determined by birth and he is not appointed by
anyone, nor does the consent of other coparceners is required. He is
entitled to be the karta because he is the senior most. So long as he is
alive, may be aged, infirm, or ailing, he will continue to be the karta.
Thus a karta cannot be removed. Whether insanity or other disqualifications
will defeat his right is not clear, but it seems that in such a case the next
senior male member will take over. The position of a karta is terminable
by resignation and relinquishment but is not indefeasible.]
The position of karta is sui generis,(of its own kind or unique
creation of Hindu jurisprudence). The relationship between him and
other members are not that of principal or agent, or partners. He is not
like a manager of a commercial firm, as he not only manages the JFP
but also look after all other affairs of the joint family. He is the head
of the family, and acts on behalf of other members, but he is not like a
partner, as his powers are almost unlimited. At the same time he is a
person of limited powers. He has liabilities towards members. Any
coparcener can, at any time, ask for partition. He obtains no reward for
his services and he discharges many onerous responsibilities towards
the family and its members. He is the custodian of the family interest
and his actions are backed by a presumption of the promotion of
general family affairs,
The karta represents the joint family/other coparceners to the
strangers, but the relationship is not that of principal and agent (i.e.
master and servant) under the Contract Act.,, A karta is neither a servant
of the other coparceners nor he is the principal of other coparceners
(any coparcener can ask for partition of JFP; can challenge improper
alienation of JFP). He is, however, the respected head of the family and
occupies the principal position among the coparceners. His position is
superior to other members,
Rights and Powers of Karta and Coparceners 61
RIGHTS OF COPARCENERS
(INCIDENTS OF COPARCENERSHIP)
[65]
66 Family Law - II
67
2. See P. Pradhan Saxena, Family Law //, 3rd ed., p. 165 (2011).
68 Family Law - II
savings rather than from the sale of JFP, and if that is not possible,
from a mortgage rather than a sale. A sale of JFP for inadequate or no
consideration cannot be valid, despite legal necessity Kastfram Jagamma
v Jajala Lakshmamma (1998) 2 HLR 79 (A.P.)p
(Legal necessity may change its content with the passage of time.
It must therefore depend on the facts and circumstances of each case)
Illustrative Cases of Legal Necessity
(i) General maintenance - Food, shelter, clothing, education, and,
medical care for the members of family.
(ii) Marriage of the members of family including daughters, towards
whom there is a special duty. -^M
iii) Marriage of daughter's daughter, when a daughter is not indigent is
not a legal necessity (Nagpur High Court). But, Madras High
Court takes a different view. In Venkata Subba v Ananda Rao
(1934) 57 Mad. 772, held that it does not matter that the
daughter is indigent or not. In Srinivas Rao v Sesacharlu (1962)
Mad. 42, the court reasoned that the marriage of virgins is a
pious and meritorious act conferring spiritual benefit on a Hindu.
(iv) Defence of a member involved in a serious criminal charge
(Murli v Bindeswari AIR 1933 Pat 708), provided he is not
involved in murder of another coparcener. This is to defend the
family honour.
v) Payments of Government revenue and debts binding on the
family. Repayment of loan raised for family business.
(vi) Performance of necessary funeral or family ceremonies.
vii) Payment of rent/arrears of rent; to discharge a mortgage of the
family property.
viii) Sale of land to construct a pakka house (Tarni Prasad v
Basudeo AIR 1981 Pat 33). Similarly, expenses for repairing a
family house.
(ix) Cost of necessary litigation in recovering or preserving the
family estate (Kaloo Singh v Sunderbai AIR 1926 Nag 449).
3. Id., pp.165-166.
Alienation of Hindu Joint Family Property 69
(x) To avert a sale or avoid the destruction of whole or part of the
property.
(xi) For migrating to a new place for better living
(Vanimisatti v
Jayavarapu AIR 1955 A.P. 105). (xii) For the
establishment of the adoption of a minor son {Govind
Gurunath v Deekappa Mallappa AIR 1938 Bom 388).
Restraint Act, 1929, the debt having been incurred for that
purpose, which was not lawful, cannot be regarded as a lawful
debt and alienation on that ground cannot be regarded as a
lawful alienation binding upon the minors If the property was
mortgaged or sold for the purpose of marrying minors, such
transactions would be opposed to public policy, in view of the
prohibition of child marriage under the Act of 1929. The Bombay
High Court in Ramhhau Ganjaram and the Orissa High Court
in Maheskwar Das v Sakhi Dei (AIR 1978 Ori 84) case similarly
opined^
.Also, the Calcutta High Court in Hansraj Bhuteria held
that when the minor's estate is in the hands of a receiver
appointed by the court and an application is made on behalf of
the minor for the sanction of the expenditure for the marriage
of his minor sister with a minor boy, the court should not
sanction such expenditure for facilitating the child marriage \
within the meaning of the Act in British India. The application
could not be granted as the court should not facilitate conduct
which the legislature in British India had made penal even if
such marriage was not punishable according to law of Bikaner.
The court did not found the view taken by the Allahabad
High. Court in Parasram v Smt. Naraini Devi (AIR 1972 All
357) and *hat by the Punjab and Haryana High Court in Rulia
v Jagdish (AIR 1973 P&H 335) to be correct. In the latter
case, it was held that where the Karta effected sale of the
ancestral land to make provision for the marriage of his son
who was nearing the age when he could have been lawfully
married, the sale was a valid sale for necessity.
(In the present case, the court also reasoned that the
members of the family (brothers and mother of the minor
children) were earning and there was no need to sell the family
property to raise the money. Also, the property was grossly
undervalued and if there was a need of money, the transfers
should have been effected for an adequate consideration^
Alienation of Hindu Joint Family Property
Partial Necessity
value. If the intention was to use the money raised for the
purchase of more productive land, the sale would be for benefit of
estate.
(v) The following transactions were held to be for the 'benefit of
estate':
(a) Karta sold a property which was 18-19 miles away (thus
inconvenient to manage it) and purchased a more accessible
property [Jagatnarain v Mathura Das, ILR (1928) 50 All 969].
(b) Sale of property to enable the family to migrate to another place
and to purchase more productive lands there (Desari v
Desari'AIR 1973 A.P. 215).
(c) Karta, running a hotel business, mortgaged the family property
with a view to raising funds for renovation of hotel (Gallamudi
v Indian Overseas Bank AIR 3978 A.R 37). Thus, investment
in family business is a benefit to the estate.
(d) Land yielding no profit sold to purchase land yielding profit (Hari
Singh v Umrao Singh AIR 1979 All 65).
(e) Land worth Rs. 15,000 offered a price of Rs. 1.5 lakh (A.T.
Vasudevan' case AIR 1949 Mad 260).
(f) A mortgage of property so as to use the loan for purchase of a
share in the village property, to consolidate the existing share
(Beni Madho v Chander Prasad AIR 1925 Pat 189).
(g) Mortgage of the property for money at a less rate of interest
for the purpose of repaying a debt at a higher rate.
(h) Sale of a portion of property to make the family landlords instead
of tenants (Baijnath Prasad v Bindi Prasad AIR 1939 Pat 97)
or sale to reclaim a portion of property to prevent it from
leased to others. Similarly, a gift of a small portion of land to
defeat the pre-emption claim of the family property [Mohib
Ali Khan v Baldeo Prasad (1939) ILR All 305].
(i) Application of sale proceeds for making additions and
improvements in the family home (Ramrichpal v Bikaner
Stores AIR 1966 Raj 187).
Alienation of Hindu Joint Family Property 77
In Sital Prasad Singh v Ajablal Mander (AIR 1939 Pat 370), it was
held: In exceptional circumstances, the court will uphold the alienation
of a part of the joint family property by a Karta for the acquisition of
new property as, for example, where all the adult members of the joint
family with the knowledge available to them and possessing all the
necessary information about the means and requirements of the family
are convinced that the proposed purchase of the new property is for
the benefit of the estate.
^Conclusions - Whether transaction is for the benefit of estate or not is
to be decided keeping in mind the facts and circumstances existing at
the time of transactions and not by looking at the ultimate result of one
transaction many years later. Factors like, status and position of family,
nature of property (movable/immovable), difficulty in managing it, nature
and quantum of yield from transaction, etc., are important in determining
whether transaction should be upheld as beneficial to the family, i
[When the alienation of JFP by the Karta was not for any legal
necessity or benefit to estate, the said alienation is voidable at
the instance of coparceners.]
. Facts - In this case, the plaintiff desired to acquire a
particular " share of land held by the joint family of karta and
his brothers. A contract was entered into by the karta
regarding the said land, but karta failed to execute sale deed in
his favour. The brothers of karta defended that the transaction
was not binding on them because the sale was not for the benefit
of family nor there was any necessity.
The plaintiff contended that the sale was beneficial to
family, as their fractional share in land which they sold is not
of practical benefit to them, and by converting it into money
(sold at more than market value) the family stood to gain. The
manager of a joint Hindu family has power to sell...not only
for a defensive purpose (to avert an imminent danger) but also
for where circumstances are such that a 'prudent owner' of
property would alienate it for a consideration which he regards
to be adequate.)
Alienation of Hindu Joint Family Property 79
it may also be noted that though a son gets a right by birth in the
JFP of his father equal to his, yet the father has more powers e.g. in
the matter of gifts through love and affection, alienations for the discharge
of his antecedent debts, and, effecting a partition amongst his sons
5. Id., p. 185.
84 Family Law - II
(b) Renunciation
A coparcener has power to 'renounce' his interest in the JFP, though
* it does not amount to alienation. However, a coparcener is
empowered to renounce his share in favour of the other coparceners
as a whole. As a result of it, the shares of the other coparceners
fluctuate and increase collectively. Once a coparcener renounces his
share he remains a member of the family (unless there is an intention
to separate), but his interest in the coparcenary property comes to an
end. Thus, a son born to him subsequent to such renunciation, will not
have a right by birth, in the coparcenary property [Krishncm Namboodri v
Chena Kesavan AIR 1959 Ker 336].
A father may renounce his interest in favour of his sons on the
condition that they will maintain him (Guruswamy v Marappa AIR
1950 Mad 140).
(c) Will
A 'Will' is the legal declaration of the intention of a testator with respect
to his property which he desires to be carried into effect after his
death.
Under the classical Hindu law, no coparcener, including a father
(except in some situations, a sole surviving coparcener) was
empowered to dispose of his undivided share under a Will
{Vaillammal Achi v Nagappa Chettiar AIR 1967 SC 1153) even
with the consent of the other coparceners. In fact, 'testamentary
disposition' was opposed to the basic incidents of coparcenary, as a
Will, if allowed to be validly operative, could have frustrated the
application of the doctrine of survivorship.
• However, after coming into force of the Hindu Succession
Act, 1956, any coparcener can make a valid Will with respect to his
undivided share in favour of 'anyone.' The H.S. Act, which primarily
deals with succession to the separate property of a Hindu,
specifically empowers an undivided coparcener to make a
testamentary disposition of his undivided interest. The expression
used in Sec. 30, 'Notwithstanding anything contained in the Act or in
any other law for the time being in force', has an obvious reference
and clear intention of the abrogation of the classical Hindu law
rule,
Alienation of Hindu Joint Family Property 87
(4) If he makes a 'Will' of the property, and before his death (i.e.
before the Will to become operative), another coparcener comes
into existence (subsequently born son or an adopted son), the
Will, will become invalid as he is no longer a sole surviving
coparcener. It is only when at the time of his death he has the
same status (i.e. of a sole surviving coparcener), the Will, will
be valid. In this case, it also does not matter that there was a
coparcener in the womb of his mother; the Will, will be valid.
(5) A 'gift' of the property by a sole surviving coparcener in
favour of persons who looked after him is valid (Ashwani
Kumar v Rajinder Kumar AIR 2010 H.P. 44)
91
entitled at the date of the alienation, and not at the date when the alienee
seeks to reduce his interest into possession.
The right which the alienee acquires is to stand in the shoes of
his vendor and to work out his rights by a suit for partition (this right is
not lost by the death of the coparcener). In such suit he can't claim the
specific properties that were alienated to him, to be allotted to his share.
But he has an equitable claim and ordinarily the court may assign that very
property, if it could be done without injustice to other coparceners
(otherwise, 'substituted security'). It may be noted that where instead of
a general undivided interest, the coparcener alienates a specific item out
of the coparcenary property or a share in a specific property, the alienee's
remedy will be merely to sue for a general partition and he cannot
claim that very property.8
The alienee will take the property subject to all charges,
encumbrances and liabilities affecting the JFP or the interest of the
coparcener. Also, he has a right to impeach improper previous alienations.
But where the alienation is itself in discharge of binding debts, the
alienee cannot, in a suit for partition, be saddled with other family debts.
Neither the alienation of entire interest by coparcener, nor
adjudication of coparcener as insolvent would have the effect of
disrupting the joint status of family.
8. For example, in a joint family, three coparceners collectively own a house and four
pieces of land (A, B, C and D). One of the coparceners, X, sells D, a land whose
value was to the extent of one-third of the total property, to the purchaser. Since
the entire interest is undivided, in a suit for partition and handing over of the share to
the alienee, he cannot insist on obtaining only land D, as which property will go to
which coparcener's share can be ascertained only after a partition. To claim a
specific property would go against the basic incident of unity of possession or
collective ownership associated with coparcenary. That is why also alienee's suit
for partition stands on a different footing in comparison to a suit for partition filed
by an ordinary coparcener, as it does not affect the status of the rest of the joint
family. See P. Pradhan Saxena, Family Law II, 3'" ed., p. 191 (2011).
Alienation of Hindu Joint Family Property 97
FURTHER QUESTIONS
Q.1 Discuss the validity of the following sales of the joint family
property made by the karta of the Hindu joint family. Also,
discuss the nature of rights and remedies available to alienee.
(2) The joint family land is sold by the karta to meet the expenses
of his daughter's marriage, but the amount is spent by him in
gambling.
(3) Karta sold the dwelling house to meet the expenses of higher
education of his second son SB. Karta, himself and his first son
SA are employed as peons in a Government office.
(5) Karta sold some ancestral property for the second marriage of
his brother Naresh, after the death of Naresh's wife.
(7) Karta mortgaged the jewels belonging to the family for obtaining
money for the purpose of assisting prosecution of person
accused of murder of his (Karta's) daughter.
[L.C.II~94/95/96; C.LC.-91/95\
A.1 Karta's Power of Alienation: Legal Necessity
Alienation (transfer of property by an act inter vivos i.e. gift, sale, etc.)
is a very important, though controversial, power vested in the karta.
The karta can alienate the joint family property only in three
circumstances:-
(i) Apat Kale (time of distress/emergency i.e. legal necessity). For
details see the text.
(ii) Kutumb Arthae (benefit to estate).
100 Family Law - I!
duties;
(1) Karta sold the paddy field in order to escape the risk of
successive droughts which he had experienced earlier. Out
of the sale proceeds he constructed a 5-star hotel and a
sprawling shopping complex.
9. A Hindu joint family comprised of two brothers A and B, their wives, two
sons
and a daughter of A (AS1, AS2 and AD) and two sons of B (BS1 and BS2).
A
daughter, AD, who was 19 years old eloped with a man of lower caste
and
this left the family stunned AS1 vowed to kill AD to save the family honour
and
took out the pistol BS1 tried to pacify him, but in the scuffle between
them
BS1 died of gunshot. AS1 was booked for the murder of BS1 and in order
to
give him the best legal assistance, A sold the entire JFP without taking the
consent of the other coparceners. B, however, challenges the validity of
the
alienation. Decide. [D.U.-
201
Alienation of Hindu Joint Family Property 103
(4) The family owns an ancestral house in Shakti Nagar. Karta sells
the house and purchases another house a few yards away
without the consent of his two sons.
(5) The family owns a land (1000 sq. yds.) in Patna. Since the
family finds it very difficult to manage it, karta sells it and with
the sale proceeds, buys another land (300 sq. yds.) in Delhi.
(6) A house belonging to the joint family worth Rs. 50,000 is sold by
the karta for Rs. 80,000.
(7) Karta sells a joint family house worth Rs. 80,000 for Rs. 50,000
with a view to deposit the money so received in a Bank for
earning interest.
[C.LC-92/93/94/95; LC.II-94/95/96]
A.2 Karta's Power of Alienation: Benefit to Estate
According to Mitakshara law, a karta can alienate the joint family property
for the sake of the family, i.e., kutumbarthe. Broadly speaking, 'benefit
of estate' means anything that is done which will benefit the JFP. The
term contemplates 'defensive transaction' as well as 'prudent transaction.'
For det see the text.
(b) A JHF comprises of karta, two major sons and three minor
sons. Karta sells the family land of 5 acres in a village to X,
who was holding 95% of the village land. The market rate of
the land was Rs. 1,750 per acre but the same was sold at
the rate of Rs. 2,500 per acre. The minor sons challenged the
said alienation. Decide. [L.C./-94]
and (2) the gift should be of a small portion of movable JFP. What
is a small portion is a relative term and has to be considered in
relation to the entire JFR
Suc h gifts (i.e. of love and affection) cannot be made of
immovable property. The power of gift is much more
circumscribed in the case of immovable property than in the case of
ancestral movable property. An immovable property can be donated
only for a 'pious' purpose by the father (Perumalakka v
Balakrishnan AIR 1967 SC 569). Pious purpose includes religious
and charitable purposes (acts of' indispensable duties,' for which
property can be alienated also), but does not include gift of love and
affection. Thus, gift within reasonable limit can be made for
'pious' purposes, e.g. feeding the poor, alms, or gift of a small
portion of immovable property for a permanent shrine for a family
idol or to an idol in public temple
There is a distinction between alienation made in the discharge
of indispensable duties and gifts of small portions of property for
pious purposes. In former, the karta's powers are unlimited, and he
may alienate the entire property. In the latter case, he can alienate
only a small portion of property.
Rationale behind gift to daughter. The meaning of 'Pious purpose^ has
been extended to cases where a Hindu father makes a gift within
reasonable limits of immovable ancestral property to his daughter in
fulfillment of an antenuptial promise made on the occasion of the
settlement of the terms of her marriage. The same can also be done
by the mother/brother when the father is dead. A daughter's place is
different from that of other females (viz. mother, daughter-in-law)
in a joint family. This is so because on her marriage, her rights of
maintenance end as she ceases to be a member of the family.
Further, unlike her brothers (coparceners) she does not get an interest
in the coparcenary property (though the position of a daughter post
2005 has substantially changed in this regard).
A gift of JFP to her by the father, therefore, is neither a
religious act nor a charitable one, but is in the nature of a
contribution of the natal family property to a member of the family,
with whom the threads of the relation remain intact even after her
marriage.1 According to
10 See P. Pradhan Saxena, Family Law II, 3," ed., p. 174 (2011).
Alienation of Hindu Joint Family Property 109
Dharmashastras, the father, and in his absence, the brothers were under
a duty to give a portion of the property (one-fourth of the share of each
brother or a reasonable portion of the property) to her at the time of
partition/ her marriage. A refusal to do so was pronounced to be a sin
and degraded. Therefore, the father/brother could save themselves from
this degradation or sin by giving to her a portion of the property, which
in fact, means that property could be given to a married daughter also
(i.e. any time after her marriage). 1
. Since, at the time of partition or subsequent thereto, what a
daughter gets is not a share in her own right, but something out of the
share of the brother at his instance, it takes the shape of a gift.' It is
obvious that such gifts of love and affection cannot be made to other
relations (wife, intended wife, concubine, daughter-in-law, sons,
coparceners, even where it is supported by a renunciation of the Karta's
own share) or to a stranger. This rule is confined to daughters (Gauramma
v MallappaAIR 1964 SC 510; Ammathayee v Kumaresan AIR 1967 SC
569). In firpurasunderi v Kalyanaranan (AIR 1973 Mad 99), a gift in
favour of mother was held void. Similarly, the father-in-law was held
incompetent to make a gift to daughter-in-law of immovable property
at the time of the marriage!
one out of which was pregnant and later gave birth to a son.
The" Supreme Court justified such gift by saying that it was
given in lieu of daughter's share in partition which was
recognized in ancient law.
The Apex Court analysed various Hindu Texts and decisions
of the courts on the point. In Jianappa Malyadevappa v
Chintmava [(1935) ILR 59 Bom 459] the Bombay High Court
held that under the Mitakshara'school of Hindu law, a father
/has no right to make a gift even of a small portion/of joint
family immovable property in favour of his daughter^ although
it is made on the ground that she looked after him in his old age.
The learned Judge observed: "Undoubtedly, the gift is a small
portion of the whole of the property; but, if one were to ignore
the elementary principles of Hindu law out of one's sympathy
with gifts of this nature, it would be difficult to say where the line
could be drawn, and it might give rise to difficulties which no
attempt could overcome."
I The Apex Court, however, in the present case observed:
We agree with the learned Judge that sympathy is out of place in
laying down the law. If the Hindu law texts /clearly and
expressly prohibit the making of such a gift of the family
property by the father to the widowed daughter in indigent [
circumstances, it is no doubt the duty of the Court to accept
the law, leaving it to the legislature to change the law. We shall,
therefore, consider the relevant Hindu law texts bearing on the
subject:
(i) Verses 27, 28 and 29 in Chapter I, Mitakshara,
describe the limitations placed on a father in making
gifts of ancestral estate. They do not expressly
deal with the right of a father to make provision
for his daughter by giving her some family property
at the time of her marriage or subsequently. The
right is defined separately by Hindu law texts and
evolved by long catena of decisions, based on the
said texts.
(ii) The relevant texts have been collected and extracted
in Vettorammql v Poochammal [(1912) 22 MLJ
3211., Section 7 of Chapter I, Mitakshara, deals
Alienation of Hindu Joint Family Property
A gift of JFP at the time of her marriage or even long after her
marriage. However, the extended meaning has not been extended )
the gift made in favour of other female members of the family
• The question as to whether a particular gift is within
reasonable limits or not has to be judged according to the status f
the family and the extent and value of the property gifted, limply
because the gifted property is a house, it cannot be held that the
gift made was not within the reasonable limits. If a gift vas not
within reasonable limits, such a gift would not be upheld as
gift. No hard and fast rule prescribing limits of such a gift can be
laid down. It was for the respondent to plead and prove that the
gift made by the father was excessive or unreasonable, keeping
in view, the total holding of the family, n the present case, one-
twenty-sixth share of the total holding of the family cannot be
held to be either unreasonable or excessive under any
circumstances.
"
5 Pious
Obligation of a Son
1. Write a note on: 'Pious obligations of a Hindu son to repay debts of father
[D.U.-
[116]
P ious Ob lig a t io n of a Son 117
Avyavaharika Debts
An 'immoral or illegal' (avyavaharika or 'adharmic') debt is
"repugnant to good morals". It includes all debts which the court
regards inequitable or unjust to make the son liable. According to
Hindu text the sons are not compellable to pay debts incurred for: (i)
losses at play (ii) alcoholic drinks, (iii) promises without
consideration, (iv) promises made out of lust, etc., (v) suretyship,
or (vi) fines or bribes
The son is not liable to pay debt incurred by the father in the
circumstances which would render the father liable to a criminal
prosecution; but he is liable for money which the father has to
account in a purely civil capacity. Where the father's act which
give rise t debt is a mere tort or breach of contract, the debt, is not
avyavahari and the son will be liable for it. However, a debt
contracted by father to fight litigation against the son himself, to
defeat the legitimate rights of the sons is held to be avyavaharika
(M. Veraghaviah v M Chini Veeriah AIR 1975 A.P. 350).
Avyavaharika does not mean debts contracted due to lack
prudence, lack of good managerial skills or negligence [Khalilul Rahn
4 'The father's power to alienate the joint family property to pay his
antecedent debts, goes contrary to the whole theory of limited
permissibility of alienation of the coparcenary property, to be exercised in
special cases only' Discus
Pious O b l i g a t i o n of a Son 119
purchaser had knowledge of the fact that it was for such purposes or
was avyavaharik. The burden of proof is, thus, heavy tor the son. J
Inhere the sons could only establish the immoral character of the
debt, and were not liable to establish knowledge on the part of the
creditor (alienee), they could not escape the liability {Luhar Amrit Lal
Nagji v Doshi Jayantilal Jethalal AIR 1960 SC 964)So, while the
payment of avyavaharik debts does not bind the sons under the
Dharmashastras, it could nevertheless bind them unless they could
come up with strict proof of notice on the creditor's part. This is the
result of the court's emphasis on the rights of the creditors to have their
money back.
Thus, a religious duty has been converted into strict secular liability
by the courts. 'Pious' and 'obligation' signify the performance of it by
the son through a conscious voluntary decision, taken due to the special
relationship of father and son, to spiritually benefit his creator and no
outsider (viz. creditor) would have any role to play in it. A 'pious' or
'religious' obligation has a sanctity attached to it, and if it is imposed
on a person by a third party by a formal attachment and sale of
property, it gains a coercive element. The payment of one's father's
debts is no longer a pious obligation, but has been turned into a strict
legal liability.
*
Meaning of Partition
Partition means numerical division of property, and bringing the joint
status to an end. On partition, the joint family ceases to be joint,
and nuclear families or different (new) joint families come into
existence ^Partition means fixing the share of each coparcener,
which was not fixed before the partition as the coparceners hold the
coparcenary property as one/common unit. Partition implies 'the
crystallization o the fluctuating interest of a coparcenary into a
specific share in the JFP." Thus, partition is a process whereby
joint tenants become tenants in-common
It may be noted that there can be no partition unless there are
a least two coparceners because then only there would be state of
jointness amongst coparceners which shall cease by partition. A
partition is no merely the division of the family, but in essence, it
is the disruption o the undivided coparcenary in a joint family. That
also means that unless and until a coparcenary within a family
exists, a partition cannot be effected
Partition v Family Arrangement - After partition, two coparceners
may; hold the property jointly without affecting the status of
property. A joint family may make an arrangement for convenience
sake under- which the coparceners divide the property, while
remaining joint. Even a sole surviving coparcener may make such
arrangement; he can separate himself from the family after making
due provisions for the female members. In this way, he can
absolve himself from the responsibilities
[122]
payment by one who gets property of higher value. In short, there has
to be 'equalization of shares.' The property allotted to each co-sharer
should bear approximately the same value as corresponds to his share.^
(The rule that a dwelling house should not be partitioned is not
sacrosanct. A partition of a dwelling house will be decreed if insisted
on but the court will (if possible) try to effect such an arrangement as
will leave it in the hands of one or more of the coparceners. If no
agreement is agreeable which is equitable, the dwelling house may be
sold and sale proceeds divided among the coparceners. It may also be
noted that the Legislature may also render certain property indivisible
for some social cause e.g. prevention of fragmentation of holdings. In
such a case, the court will first see whether the partition is permitted
or prohibited by legislature, j
Before the division can take place, out of joint family property, provisions
should be made for certain liabilities of the family. It must be noted
that although the ownership of the coparcenary property is with the
coparceners only, the right to possess and enjoy it is held by all the joint
family members (including non-coparceners). This is called 'Adjustment
of claims before partition of property
i(a) Debts - debts taken by karta for a purpose binding on joint
family; untainted personal debts of father, when joint family
consists of father and sons (no provisions have been made in
Hindu law for individual debts of coparceners)^
(b) Maintenance - of the following members:
(i) Disqualified coparcener and their immediate dependants,
(ii) mother, step-mother, etc.,
(iii) illegitimate sons,
(iv) unmarried sisters, till they are married,
v) widowed daughters of deceased coparceners^
,(b) In Bombay school, the son has no right to partition without the
assent of father in some situations,
(c) Father's right to partition is superior to that of all others, he can
not only effect a partition between himself and his sons, but
can also impose a partition on his sons inter se. This power of
father is a part of the Patria Potesta (Paternal power) that
was recognized by Hindu law. A grandfather does not have a
similar power to effect a partition among the grandsons
the following persons have a right to partition and entitled to a share
on partition:-
(1) Father - In exercise of this power (either severance of status
or actual partition by metes and bounds), the consent of sons
is immaterial Mttlan Chand v Kanchhendillal AIR 1958 M.P.
304) However, father's special power is not without restrictions.
He must act bona fide. If division made by him is unequal or
fraudulent or vitiated by favoritism, partition can be re-opened
Gurusami v Jayaraman AIR 1996 Mad 212). If all the
coparceners agree to such an unequal division it will then operate
as family arrangement^
Further, the father can't exercise this power by Will except with the
son's consent. Thus, he can divide his sons during his lifetime but not
by his Will after his death unless his son consents to it. Still further, the
father cannot effect partial partition amongst his sons without their
consent.
With respect to a minor's share, the father retains his control as
his guardian. However, after a partition, the minor's share would constitute
his separate property, and the father would have no power to alienate
it except with the court's permission. It may be noted that a minor
coparcener cannot avoid a partition effected by his father, till he attains
majority: then, he can repudiate it.
(2) Son, grandson and great grandson - They have a right to
partition. But, in Bombay school the son has no right to partition
without the assent of father, if father is joint with his own
""father, brothers or other collaterals. If the father is separate
from them, then son can ask for partition [Apaji v Ramchandra
(1892) 16 Bom 29 (FB)]. Under Punjab customary law also
sons have no right to partition against their father (here, sons
do not have a right by birth in the property held by the father). ,
130 Family Law - II
(4) Adopted son: Adopted son has the same right of partition. Also,
*"* if after his adoption, a son born to father, then also shares of
adopted son and natural born son will be equal (Sec. 12 of Hindu
Adoptions and Maintenance Act, 1956). Since the passing of this Act,
the law relating to adoption has been modified and clarified)
[Under the Dayabhaga law, in Bengal, if a son born, after adoption of
a son, then adopted son get only 1/3 of the estate; and in Benaras - 1/
4, and in Bombay and Madras - 115 of the estate.]
(5) Minor coparcener - In partition, the right of minor coparcener is
same as that of major coparcener. However, a minor is a person of
immature intellect and the court acting as parens patriae has the duty
to protect minor's interests. Thus, if a Katra is squandering JFP to the
prejudice of minor coparcener or if he is ill-treating him, the minor's
guardian or the next friend of guardian may file a suit for partition on
minor's behalf (The severance of status takes place from the date of
institution of suit). And the court has to see whether partition is for the
benefit of minor or not; if it is not for his benefit then partition will not
be allowed. It may be noted that a suit by a major coparcener itself
brings about the partition.
(6) Absent-coparcener - When coparcener is absent at the partition
time, a share has to be allotted to him. In case, no share is
allotted to him, he has a right to get partition reopened..
7) Alienee - A purchaser of a coparcener's interest in a court sale,
or in a private sale where the coparcener has such a power
(Bombay, Madras and M.P.), can demand partition. Thus, a
partition can be demanded in certain situations by an alienee or
a purchaser, in the execution of a court's decree of the undivided
share of a coparcener In States where a coparcener is not
permitted to alienate his share, if he contracts a debt and the
debtor brings a decree against him, the purchaser of his share
in execution of the money decree, is also entitled to demand a
partition and ascertain his share.
(8) Daughter - A daughter can claim a share equal to the son in a
partition (after the 2005 Amendment Act). She can now also
demand a partition like a son.
132 Family Law - II
(2) Illegitimate son: It falls under two categories - (a) the dasiputra
— or a son born to a concubine, pennanently kept by a Hindu, (b)
an illegitimate son born of a woman who is not a dasi.
An illegitimate son of both categories is not entitled to
partition, as he is not a coparcener. He is however entitled to
maintenance out of the joint family funds of the putative father's
joint family [Vellayappa v latarajan (1931) 58 IA 402]. It may be
noted that an illegitimate son inherits only from the mother and
not from the father. .
Among Sudras, a dasiputra has a superior position. A
dasiputra does not acquire by birth any interest in JFP, he is thus not
a coparcener and has no right to partition against his father.
However, the father can give him a share (even equal to share of a
legitimate son) during his lifetime, but that depends upon the father's
discretion. There can be no share at all.
If his father dies while in joint family, he can't claim partition
(and entitled only to maintenance). But, a dasi son can get a share
from his father's separate property. But his share would be only
one-fourth to that of a legitimate son {Kamulammal v
Visvanathaswami AIR 1923 PC 8). In other words, on the father's
death, a dasi son will be a coparcener with the brother and has a right
to ask for a partition and to get a share equal to one-fourth of the
latter's share. If the brother dies before a partition has been effected,
the dasi son would take the whole of the property under the doctrine
of survivorship.
(3) Disqualified coparceners: Persons suffering from any defect *-
which disqualifies them from inheriting are equally disentitled to a
share on partition. Various grounds of disqualification were
recognized by Hindu law viz. congenital and incurable blindness,
idiocy/insanity, deafness and dumbness, virulent and incurable
leprosy, and other incurable diseases that made sexual intercourse
virtually impossible]|AU these grounds with the exception of
congenital lunacy or idiocy have ceased to exist as part of the
Mitakshara law by virtue of the Hindu Inheritance (Removal of
Disabilities) Act, 1928j It may be noted that these prohibitions are
purely personal and do not extend to the legitimate issue of the
disqualified person. Further, if a member of the family has no
congenital (i.e. by birth) disqualification, but later becomes insane,
he will not be deprived of his interest.
6. Discuss whether a female can get a share if a partition of the JFP takes place
under the classical law. [D.U.-
2011]
7. See P. Pradhan Saxena, Family Law II, 3'" ed., p. 241 (2011).
P a r t i t i o n and R e u n i o n 135
share equal to the share of son). If no share is allotted to her, she can
get the partition reopened
137
Hand over his share to his widow on his death does not amount to partition.
^The demand of partition being a personal right, it cannot be delegated
in favour of anyone. For example, where the wife of a coparcener demands a
partition from the Karta, but no confirmation comes from the coparcener
himself, there is no severance of status, but a third person can be used as a
channel for communicating this intention.8
Presumption - If the status of family is in question, the presumption, always,
in favour of that family is undivided one i.e. joint family.
(Merely because one member severs his relations with others, there is
no presumption that there is a severance between other members. Also, a
joint family may make an arrangement for convenience sake under which the
coparceners divide the property, while remaining joint. But, if a family
transfers all its assets to a limited company, and all coparceners of the family
secure equal number of shares in company, it amounts to severance of status.
Often in revenue cases, a joint family may make a fake or notional partition
to avoid taxation.
Mere fact that the parties are living separately and cultivating land
separately will not prove partition [Rama Nagappa Mahar v N. Mallappa
Mahar AIR 2006 Karnt. 31].
8. Id., p. 224.
138 Family Law - II
w, w2
I
[S 1] (d-1945)
I
[S 2] - Raghvamma (widow-plaintiff)
SS 1 -Chenchamma (wife-defendant)
(d 1938)
10. See P. Pradhan Saxena, Family Law II, 3rt ed., pp. 228-229 (2011).
144 Family Law - II
11. A Hindu joint family comprised of the father, and his three sons: St, S2 and S3.
On coming to know that the father was trying to sell some of the JFP without any
legal necessity, S1 who is aged 30 years, walks up to Karta and says, "I want
partition and please hand me my share." Karta refuses. S1 executes a gift of
1/4* share of the property in favour of his friend and dies. Is the gift valid?
[Hint. The moment S1 communicated his intention to separate, he became
separated from the joint family; it does not matter that Karta refused. S1 could
make a valid gift of his share after separation.]
Partition and Reunion 145
[The adopted child shall not divest any person of any estate,
which vested in him or her before the adoption. If the
property by inheritance goes to a collateral and the adopted
son is adopted after the death of the collateral, the adoption
cannot divest the property which has vested in the heir of
the collateral.]
In this case, the only question that arises for consideration
is whether the adopted son Dattatraya could divest the
property, which devolved on the heirs of Vyankat (sole
surviving coparcener) and vested in them prior to his
adoption so as to claim share in the suit property. Vyankat
died on 8-2-1978. Adoption of Defendant 6 (Dattatraya) by
Defendant 2 (widow of the Vyankat's brother) took place
on 10-6-1978 i.e. about four months after the death of
Vyankat.
In other words, the issue was whether adoption of
Defendant 6, after the death of the sole surviving coparcener.
148 Family Law - II
makes any difference in determining the rights of the adopted son in
relation to the family properties. If the adoption had taken place
during the lifetime of Vyankat, there would have been no difficulty
whatsoever in confirming the judgment under challenge in the light of
the decision of this Court in Dharma Shamrao Agalawe v Pandurang
Miragu Agalawe (AIR 1988 SC 845).
In the case of Dharma Shamrao, the question that came up for
consideration was whether a person adopted by a Hindu widow after
coming into force of the Hindu Adoptions and Maintenance Act
(HAMA), 1956, can claim a share in property which had devolved
on a sole surviving coparcener on the death of the husband of the
widow, who took him in adoption. The facts in that case were that
one Shamrao, who was governed by the Mitakshara Hindu Law,
died leaving behind him two sons Dharma and Miragu. Miragu died
issueless in the year 1928 leaving behind him his widow Champabai.
The joint family property of Dharma and Miragu passed on to the
hands of Dharma, the sole surviving coparcener. Champabai had only
right of maintenance in the joint family properties under the law, as
it stood then. She took Pandurang in adoption on 9-8-1968, long after
the HAMA came into force. Immediately thereafter the adopted son
Pandurang and Champabai filed a regular civil suit for partition and
separate possession of one-half share in the properties of the joint
family. Before the adoption took place, two items of the joint family
properties had been sold in favour of others for consideration.
Dharma resisted the suit on the ground that the adopted son
Pandurang was not entitled to claim any share in the properties,
which originally belonged to the joint family in view of clause (c) of
the proviso to Sec. 12 of the HAMA.
In Vasant v Dattn, AIR 1987 SC 398, interpreting clause (c) of
the proviso to Sec. 12 of the HAMA, Chinnappa Reddy J., speaking
for the Bench, observed that where the joint family property had
passed on to the hands of the remaining members of the coparcenary
on the death of one of the coparceners, no vesting of the property
actually took place in the remaining coparceners while their share in
the joint family properties might have increased on the death of
one of the coparceners.
P a r t i t i o n and R e u n i o n 149
Modes of Partition12
Partition may be effected by institution of a suit, by submitting the
dispute as to division of the properties to arbitration, by a demand
for a share in the properties, or by conduct which evinces an
intention to sever the joint family; it may also be effected by
agreement to divide the property.
Partition can be made orally also. It need not be in writing. It
may be noted that a" partition does not amount to a 'transfer'
within the meaning of the Transfer of Property Act, 1882.Jf
partition is reduced to writing and the value of the property
partitioned is more than Rs. 100, it must be properly attested and
registered (otherwise it will not be admissible in evidence).
However, where it is not registered but acknowledges a prior
partition or an intention to separate it can be admitted in evidence
(Siromani v Hemkumar AIR 1968 SC 1299). Post 2005 Amendment,
partition is now required to be registered (discussed later).
Partition by conduct - There can be numerous circumstances from
which a 'partition by conduct' could be inferred. For instance, a partition
13. Prior to the Caste Disabilities Removal Act, 1850, the conversion of a
coparcener to another religion resulted in an expulsion from the joint family and
operated as a forfeiture of his rights in the coparcenary property
14. See P. Pradhan Saxena, Family Law II, 3'" ed., pp. 218-219 (2011).
154 Family Law - II
Revocation of Partition16
A partition is presumed to be the result of a well thought out,
voluntary and conscious act, that is not permitted to be revoked at
the whims and pleasures of the parties.
However, once the demand for partition has been made by a
coparcener, it can be withdrawn before it is communicated to the
family members. But once the demand is communicated, severance
immediately takes place, and it is not open to the party to
unilaterally, withdraw It if the suit is withdrawn before trial, the
plaintiff not desiring separation, there is no severance of status
(here 'before trial' mean before the summons are served on the
defendants i.e. before the communication of intention) [Kedar
Nath v Ratan Singh (1910) 37 IA 161]. Similarly, where the
intention to separate is put in the course of transmission, but
withdrawn before it reaches the Karta, no partition will take place.
Where the partition has already been effected, a unilateral
withdrawal of intention to separate cannot result in a revocation
of partition or in a reunion, as, for demanding a partition, the
consent of the other coparceners is not material, but a reunion is
not possible unless all the members agree {Radha Krishna v
Satyanarayan AIR 1949 Mad 173).
Once there is communication, the intention to separate cannot
be withdrawn, for example, when a letter was posted and letter
withdrawn from the post office, but the news of contents of the
letter somehow reached other coparceners, partition was complete
and irrevocable (Puttrangamma v Ranganna AIR 1968 SC
1018). In this case, the Karta, with his three brothers and their
descendants constituted a joint family. The Karta became sick;
while in hospital he issued a notice to separate from the joint family.
His younger brother's son who was in hospital at that time
snatched the notice and attempted to tear it, but was prevented
from doing so. After the notice was registered at the
Partial Partition
It often happens that only some coparceners want partition, while the
others do not. In such cases, those who want partition may take away
their share and the rest will continue to remain joint. A partial partition
may be: partial as to property, or partial as to persons. Despite the
permissibility of a partial partition by agreement among all coparceners,
where a partition occurs, the presumption will be that it is a complete
partition [Kollomal (HUF) v C/T (1982) 1 SCC 447]. Where a person
alleges that it was a partial partition, it is he who will have to prove it.
A person cannot be a separate member with respect to some of
the members, while remaining joint with the others, unless the latter are
from his own branch. The separated member cannot claim any share
out of the coparcenary property on the death of any c arcener in the
family of which he previously was a member {Meva Devi v Om Prakash
Jagannath Agarwal AIR 2008 Chh 13). In this case, the separated son
was allowed by the father to live in the joint family home as he had no
P a r t i t i o n and R e u n i o n 157
W2-W'-Father
w3-s' S 2 s3 s4
sss1
ssss1
In this figure, per capita distribution of share will be made first between
father, W,, W2 (two wives), S,, branch of S2, and S3, each of the six
getting an equal share (1/6). The branch of S2 (dead) will be represented by
SS2. Since S4 died without a male issue, his branch remains
unrepresented and hence gets nothing.
The l/6th share going to S, will further be divided equally between
S1, SS,, SS5 and W3, each sharing equally, i.e. 1/24 each. The 1/24
share of SS, will further be divided between SS,, W 4 and SSS, each
sharing equally, i.e. 1/72 each.
SSSS, will get nothing since he is more than four degrees removed
from the last male holder, i.e., Father, and hence not a coparcener.
In another illustration, a HJF consists of the father F, his wife W,
two sons S, and S2 and their wives W, and W2, and one grandson S3 (son
of S, and W,). Here, the partition will be effected between the father
and his two sons S, and S2. The father's wife would also be entitled to
get a share equal to that of a son. Thus, F, W, S,, and S 2, each will take
l/4th of the property.
F and W will take it as their separate shares, but S, will take it
with his branch. Therefore, the next partition will be between S, and
his son S3; similarly, W, will get a share equal to that of S3. Thus, 1/
P a r ti ti on and R e u n i o n 159
4th
share of S, will be divided into three equal parts and each of
them will get l/12th share.
The one-fourth share given to S2 will be held by him as a 'sole
surviving coparcener.' W2 will not get any share, as there is no
partition n this branch.
The final shares and character of property will be as follows:
F - l/4th (separate); W - l/4 th (separate); S, - 1/12* (separate); W, -
[/12th (separate); S3 - 1/12th (sole surviving coparcener); S2 - l/4th
sole surviving coparcener); W2 - Nil.
Re-opening of Partition
Under Shastric law, 'once a partition is made, once a damsel is
given in marriage and once a gift is made is irrevocable and
irretractable' (Manu). A partition, therefore, is generally irrevocable.
The logic behind is that erstwhile coparceners hold their shares as
their separate and exclusive properties; they may enter into
transactions relating to them, so as to create valid titles in favour of
even third parties.
However, there are certain exceptions to this general principle
that 'shares are divided only once.' It may become imperative in
certain situations to have a re-distribution of properties in order to
prevent gross injustice to the members of a family. However, a plea
that the partition was unfair cannot be countenanced when the facts
show that it has been undertaken after due and proper deliberations.
Where readjustment of properties is not possible the entire
partition has to be re-opened. A partition can be re-opened under the
following circumstances:
(1) Fraud - fraudulent distribution of properties, unless the person
affected by the fraud acquiesces in with full knowledge of all
material facts. A coparcener may conceal the JFP at the
time of partition, to gain an unjust and undue advantage
over the others; the partition can be re-opened on the
discovery of this fraud (Bishambar Nath v Ida Arnar AIR
1937 PC 105). However, in a suit for a re-opening of
partition, fraud cannot be added as a ground at a later stage
of trial.
(2) Son in womb if at the time of partition a son is in womb, and
no share is reserved for him, he can get the partition re-
opened.
160 Family Law - II
(3) Son conceived and born after partition -- can get the partition re-
opened where the father does not take a share on partition.
(4) Adopted son - is entitled to re-open the partition.
(5) Disqualified coparcener - recovering from his disqualification can
get the partition re-opened.
(6) Absentee coparcener - if at the time of partition a coparcener is
absent and no share is allotted to him, he can get the partition re-
opened.
(7) Minor coparcener - when a partition is effected during the
minority of a coparcener, he can get the partition re-opened ii he
can show that partition was unfair, prejudicial or unjust.
(8) Property added after partition - when some properties were left
out, either by mistake or deliberately, or when some properties
(which have been earlier lost/seized) were discovered/ recovered. If
a distribution of the additional properties can be effectively made
without re-opening the partition, then the earlier partition should
not be disturbed.
Re-union
'Reunion' means to unite again. In relation to a HJF, it signifies a joint
status, followed by a partition and then, followed again by a restoration of
the joint family status. The coparceners may live or trade together after a
partition, but that is different from a formal reunion. The reunion restores
the joint family to its former status and position; it became subject to all
the incidents of coparcenary.
"He who, being once separated, dwells again, through affection with
father, brother or a paternal uncle, is termed re-united with him' (a text
of Brihaspati). It is not available, generally, to all coparceners
Reunion is, thus, permitted exclusively between (a) father and
son, (b) paternal uncle and nephew, and (c) brothers {not cousins)
Reunion is not permitted with grandsons or after-born sons. Thus, if a
partition took place between a father F and two sons A and B
Subsequently, a son, S, is born to F. A or B can reunite with their Father F
or with each other but they cannot reunite with S. Thus, a reunion can
only take place between persons who were parties to the origins petition
[Balabux v Rukhmabai (1903) 30 IA 130]. Further, it is only
Partition and Reunion 161
at the instance of a coparcener that a reunion can take place [Nanu
Ram v Radhabai (1942) ILR Nag 24].
Reunion may be effected through an express agreement, even
oral, or may be implied from conduct. Mere living together is not
enough to establish reunion. An unequivocal intention re-establishing
community of interest and unity of possession must be there. A minor
cannot reunite since he has no capacity to agree. However, his
father or guardian may enter into a reunion on his behalf.
A reunion is viewed as a desire on the part of coparceners to
become a part of the family again for the sake of love and
affection; it is not seen as a profitable, commercial opportunism.
Therefore, it is not necessary at all that the parties bring into the
common pool, the properties in the same ratio in which they had, at
the time of partition, taken them. Where the son has dissipated all his
properties, a reunion between him and his father is valid [Venkanna
v Venkatanarayana (1947) ILR Mad 382].17
Reunion, unlike partition, is very uncommon. Thus, a reunion
has to be very strictly proved. The burden of proof is heavy on the
party asserting reunion. It may be noted that while partition could
be a unilateral act, a reunion can only be effected through mutual
agreement whereby all the members agree to form a Hindu joint
family again.
17. See P. Pradhan Saxena, Family Law II, 3,:l ed., p. 252 (2011).
162 Family Law - II
18. See P. Pradhan Saxena, Family Law II, 2 Ed., p. 344 (2007).
P artition and R e u n i o n 163
FURTHER QUESTIONS
A.l Partition
According to the Mitakshara law, no individual member in the
coparcenary property has any specific share in the property so long
as the family is joint. So partition according to the law, consists in a
numerical division of property. In other words, partition consists in
defining the share of the coparceners in the JFP ('severance of
status" an actual division of the property by metes and bounds is not
necessary Thus, even after partition, the coparceners may hold the
property jointly without affecting the status of property.
In Mitakshara law, every coparcener has the right to demand
partition (major/minor/adopted, but not illegitimate or disqualified
e.g; insane). No female (except the widow under 1937 Act) has a
right to partition (the position has been changed after the 2005
Amendment to the H.S. Act), but if partition occurs, there are certain
females who are entitled to a share, viz. father's wife, mother and
grandmother.
Effecting of Partition
The moment a clear, definite, unambiguous and unequivocal intention to
separate ('1 separate from thee') is communicated to other
coparceners during the lifetime of the coparcener demanding the
partition, the division in status takes place. The following important
points may be noted in this regard :-
Coparcener must have formed a fixed and definite intention to
separate, must not merely be in contemplation of it (viz., 'I am
thinking of separating').
(ii) There must be intimation, indication or representation of this
intention to other coparceners.
There should be a clear and unequivocal expression, by words
(written or oral) or conduct (separation in food, dwelling,
separate income and expenditure, separate business
transaction, etc.)
iii) The intention may be communicated by telephone, post, third
person (e.g. friend) etc.
iv) The unequivocal communication of intention must be the
conscious and informed act of the coparcener.
V) Unless intention is brought to the knowledge of other
coparceners, it is uncommunicated intention, which is no
intention in the eyes of law.
Partition and Reunion 165
(i) If Gurupad had died without making a Will in 1993 and 1953
respectively.
3.3 (a) A JHF based in Delhi comprises of karta X, his brother Y, two
sons of X, wife of Y. On 1-1-90, Y went to Haridwar and from
there he wrote a letter to X seeking partition of JHF property.
The said letter was received by X on 8-1-90. On 4-1-90, X had
sold the entire property of the JHF to meet out the medical
expenses of his older son who was suffering from cancer. Y
files a suit for separate possession of his share and
challenged the sale. Decide, j [L.C.I-
94]
(iii) The rule that 'action dies with the person' has application
only when the action is one for damages for personal
wrong, and as a suit for partition is a suit for property, this
rule has no application here.
[174]
Hindu Law of S uc c e s s i o n 175
The Hindu Succession Act, 1956 debris with the inheritance to - (a) the
separate properties of a Mitakshara male, (b) to the undivided interest
in the JFP of a Mitakshara coparcener. The H.S.A. (Amendment) Act,
2005 does not touch 'separate property' except broadening the Class I
heirs. However, as discussed later, it abolished the doctrine of survivorship
implicit in Mitakshara coparcenary.
180 Family Law - II
daughters were born out of this relationship. Their relationship had been
accepted not only by the society but also by the family members.
The Supreme Court observed: The courts have consistently held
that law presumes in favour of marriage and against concubinage, when
a man and woman have cohabited continuously for a number of years.
In such a case there will be a presumption under Section 114 of the
Evidence Act, that they live as husband and wife and the children born
to them will not be illegitimate. However, such presumption can be
rebutted by leading unimpeachable evidence.
It is submitted that conferring legitimacy on children of such
relationships would create confusion and uncertainties regarding the
succession rights.
Mother
The propositus (deceased Hindu) may be her legitimate/adopted/illegitimate
son. She may be unchaste/remarried/or divorced. It is immaterial whether
her marriage was void/voidable. Mother is always a mother. But, a step
mother is not included in the expression "Mother". The natural mother
is not entitled to succeed to the property of her son given in adoption.
H i n d u Law of S u c c e s s i o n 181
I
IPI
S> S2 D1 i)2
Each of the above heirs will take one share i.e. 1/5.
[Note - In the above and following illustrations, the deceased Hindu i.e.
propositus is indicated by [P]; and, predeceased person enclosed in
brackets.]
W1
2 [AH widows will take
together 1/4 share, i.e. 1/12 w3
each.]
(ii) The sons and daughters of the intestate who are living at the
time of his death take one share each. These children of the
intestate may be from different wives. But they will get equal
shares individually. t
i.e. per head. Thus, the common share that the branch of the
each predeceased son or predeceased daughter gets will be
distributed equally among the heirs of that branch.
It may be noted that unlike the widow of the predeceased son of the
intestate, the widower husband of predeceased daughter will not get
any share.
In the above diagram, there are four branches, each will take 1/4. In
the branch of (SI) (predeceased) there is only one heir, SW, she,
representing (SI), will take 1/4. In the branch of D there are two heirs,
they, representing (D) will take 1/4 and thus each will get 1/8. In the
branch of (SS), there are three heirs, and each will get 1/12.
(I) Father - He is the only nearest heir who hasn't found a place in Class
1 heirs as under the Mitakshara law, mother was considered to have
greater propinquity than the father. Father is the sole heir in
category/entry I, and in the absence of Class I heirs, takes entire
property.
(II) Son's daughter's son; Brother; and Sister - Sister inherits
simultaneously with the brother and other heirs mentioned in Entry
II. The rule is when there is any brother or sister by full blood, the
brother or sister by half blood is excluded (Sec. 18). When there is no
former, the latter inherits. In the following illustration FS and FD1
being full blood brother and sister get a share, and half blood sister
(FD2) gets excluded.
The brother and sister by uterine blood are excluded. In other words, uterine
brothers/sisters are not entitled to succeed to one another as 'brothers/sisters'
under this entry although related by legitimate kinship. However, if
propositus and his brother and sister are all illegitimate children of their
mother, such brothers and sisters are heirs to him.
(F)
----------------1
SDD SDD1
(1/4) d/4)
F
I [P]
I (S)
I (SD)
SDD SDD1
In this case, SDD and SDD1 being heirs in category II, and F an heir in
category I, F will take entire property to the exclusion of SDD and SDD1.
(V) Father's father, and, Father's mother - (i.e. Paternal grand
father/mother).
(VI) Father's widow; and, Brother's widow - Father's widow means step-
mother (she is the only step relation that is included among the heirs;
step-father is not an heir at all) (even if she remarries or is unchaste,
she will inherit). A brother's widow can't succeed, if she had
remarried on the date when succession opens.
The rule that if there are more widows than one, they together take one share
applies to the Class I heirs and not to the Class II heirs. Thus the rights of
Class II heirs are not unequal, unlike that of the heirs placed in Class I.
(VII) Father's brother, and, Father's sister - (i.e. Paternal uncle or
aunt/or grandfather's sons or daughters).
(VIII) Mother's father; and, Mother's mother - (i.e. Maternal
grandfather/mother).
(IX) Mother's brother; and^ Mother's sister - (Maternal uncle/aunt).
Agnates are those relatives which are related wholly through males
whether by blood or by adoption). Cognates are the relatives who are
not wholly through males. It would be extremely rare that a deceased
will not be survived by an agnate up to any degree ad infinitum. This
makes the chance of succession to the cognates quite illusory.
(B) C
I-----------
BS BD
If partition had taken place during B's lifetime, he would have got 1/
6 share (A will get 1/3, C-1/3, and B's branch-1/3). In the branch of
B, B and BS, on partition, will take 1/2 of 1/3, i.e., 1/6 each (since
daughters does not take a share on partition like a coparcener before
2005). In notional partition, we start with the assumption that B is alive.
After demarcating B's share, we forget about partition and note that B
is dead and his 1/6 interest as demarcated by the notional partition will
go by succession (A, C or BS do not get any share. They continue to
remain joint in the remaining 5/6).
The next step is to divide 1/6 among B's heirs in accordance with
the H.S.A, A is his father who is in Class II, C is his brother who is
H i n d u Law of S u c c e s s i o n 187
also in Class II, and BS and BD are his son and daughter who are
in Class I. Class I heirs are preferred over Class II heirs. Thus BS
and BD will take 1/12 each. It may be noted that BS will also get
1/6 share in addition to 1/12. In absence of Sec. 6, on the father's
death, the son would be entitled to the complete property under
the doctrine of survivorship and the daughter would get nothing.
Thus, introduction of Sec. 6 in H.S. Act, 1956, did work to the
advantage of women but could not remove the discrimination
regarding women (unequal distribution of property). The
discrimination was removed by the 2005 Amendment to the Act.
When a notional partition is effected, and there are females
entitled to a share, they too are to be allotted their shares. For
example, A dies leaving behind two sons B and C and a widow
W.
(A) = W
B C
1. W will end at 1/6 as there is no possibility of her getting any share in a real
partition. On death of A, S becomes sole surviving coparcener and there is no
question of any other coparcener asking for partition. This may be hard for W.
Had her husband died leaving behind 2 sons, she could get a share (equal to
son's) whenever her sons partitioned. The shastrakars allowed her a share
only in the event of a partition, not otherwise. She was allowed a life-long
right of maintenance and when partition took place, certain ferrules are entitled
to a share. If a partition does not take place, no female will even get a share
in JFP. Thus, by virtue of Sec. 6, in some cases women may be losers and in
some gainers. This 'Narrow approach' thus does not further the intention of
the legislature in improving the condition of women in respect of JFP.
Hindu Law of S u c c e s s i o n 189
& Discuss the facts and law as laid down in Gurupad v Hirabai (AIR 1978
SC
" 1239) [LC.I-
94]
F, a Mitakshara male Hindu dies on 1-1-94, leaving behind his widow, W,
two
sons S1 and S2, and three daughters D1, D2 and D3. W files a suit for
partition
of the JFP under Sec. 6 of the H.S.A , 1956. What would be the share of
each
in the joint property ? Discuss the points of law involved in the case.
Refer
case law. [LC. 11-96
(Supp.)]
190 Family Law - II
3. See P. Pradhan Saxena, Family Law II, 2nd Ed., pp. 340-341 (2007).
4. For example, a Hindu joint family comprises father F, his wife W, and two
sons S1 and S2. If any of the male members died between 1956 to
September 2005, the doctrine of survivorship, even though expressly
retained by and not abolished by the legislature, would not have
applied, due to the presence of W, who is a class I femaje heir.
196 Family Law - II
A B C
IB 1
9. See P. Pradhan Saxena, Family Law II, 3* Ed., pp. 419-420 (2011).
H i n d u Law of S u c c e s s i o n 201
The civil courts are not bound by the verdict of the criminal courts.
Thus, a planned murder might not be equated differently from a murder
committed under grave and sudden provocation or to save one's/another's
life, by the civil courts. The term 'murder' must be construed in its
popular sense and not in its technical sense as defined in the Indian Penal
Code. The object of the provision is not here, unlike the IPC, to punish
for murder; the object is to prevent him from getting a benefit from his
own wrong (Minoti v Mohan Singh AIR 1982 Bom. 68).
If an heir is not convicted under Sec. 302, IPC, but by giving him
benefit of doubt, he is convicted under Sec. 324, the disqualification
attaches to him. But if he is acquitted of the murder charge even on the
basis of benefit of doubt, the disqualification does not attach to him
(Chamanlal v Mohan Lai AIR 1977 Del 97). Likewise, where an heir
is acquitted as her involvement in the murder is not established at all,
such an heir is not disqualified (Sarita Chauwhan v Chetan Chauwhan
AIR 2007 Bom 133).
Murder does not mean being 'responsible for death.' Thus, where
on account of the son's deviant behaviour, his father commits suicide
or dies of heart attack, the son is not a 'murderer' and would not be
disqualified.
The murderer should be treated as non-existent and not as one
who forms the stock for a fresh line of descent. Thus, the heir of the
murderer is also disqualified from inheriting the property of person
murdered. For the property does not vest in the murderer and
consequently does not devolve on his or her heirs.
Effect of Disqualification
Sec. 27 lays down that "if any person is disqualified from inheriting any
property under this Act, it shall devolve as if such person had died
before the intestate." Thus, a disqualified person should be treated as
non-existent, and no title or right to succeed can be traced through him.
For instance, P, a Hindu dies leaving behind a widow W and a widow
of predeceased son, SW, who had remarried before P died. W will take
the entire property as if SW was dead.
The disqualified heir is presumed to be dead, and the succession
opens to the next eligible heir. If the next heir is a representative of the
disqualified heir, such heir would also be disqualified. And the succession
passes to the next heir in line.
H i n d u Law of S u c c e s s i o n 203
(1) Half blood and full blood (Sec. 18) - Heirs related to
the propositus by full blood shall be preferred to heirs
related by half blood. The rule, however, cannot be
invoked when a particular heir is preferred to another by
operation of any rule affecting the order of succession. In
other words, the rule of preference of heirs applies only
in cases of conflict between the heirs of same degree of
propinquity or proximity to the deceased and does not
apply if the claimants of the full blood and half blood
stand in different degrees in relation to the deceased.
(2) Per stripes and per capita rules ('Mode of succession
of two or more heirs'') (Sec. 19) - If two or more heirs
succeed together to the property of an intestate, they
shall take the property per capita (i.e. per head) and not
per stripes (branch-wise), and as tenants-in-common and
not as joint tenants (unless the Act otherwise provides).
Under the Act, heirs in no case take as joint tenants, but as
tenants-in-common. In both cases, property is held jointly, but
there are vital differences in the incidence of both. Joint
tenancy means that the shares of joint owners are not
specified and in the event of the death of one, the other takes
his interest by survivorship. Tenants-in-common means that the
share of each co-owner is a specified share and on his death it
devolves on his heirs (thus the property in such case will be
treated as separate property). So, if two widows succeed
together to the property of the (same) husband, the property in
their hands will to their separate property.
(3) Posthumous child ('child in womb') (Sec. 20) - Such
child is a heir, but the child must be in the womb at
the time of the death of intestate and the child must be
born alive. A child in mother's womb is presumed to be
born before the death of the intestate, although
subsequently born. The inheritance shall be deemed to
vest in such a case with effect from the date of the
death of the intestate.
(4) Presumption in case of simultaneous death (Sec. 21) -
Where two persons have died in circumstances
rendering it uncertain
Hindu Law of S u c c e s s i o n 207
12. State laws exist in Delhi, UP., M.P., Punjab and Haryana. See, Dr N
Bharihoke Modern Hindu Law, Delhi Law House, p. 287
(2007).
Hindu Law of S u c c e s s i o n 209
13. P. Pradhan Saxena, Family Law II, 2M Ed., pp. 339-340 (2007).
14. From the use of the term "his interest" in Sec. 6(3), it appears that
the doctrine of survivorship has been abolished for male
coparceners but has been retained for 'females.' Because according
to Sec. 6(2), a female would hold the property with incidents of
coparcenary ownership and survivorship is one of the basic
incidents of coparcenary.
Further, the present Act provides in detail the calculation of
shares while effecting a notional partition. At present, if a minor
child dies, irrespective of the sex, his or her share would be
calculated after effecting notional partition and such share would
go by intestate or testamentary succession, as the case may be.
See, P. Pradhan Saxena, Family Law II, 2nd Ed., pp. 346-347 (2007).
Hindu Law of S u c c e s s i o n 211
At present, the repayment of debts contracted by any
Hindu would his ; personal responsibility and the male
descendants would not be liable to the creditor. Only the
debts contracted before the enforcement of the amendment
are subject to the rules of classical Hindu law. The sub-
clause is prospective and thus the liability of son,
grandson, etc. under pious obligations for debts contracted
before the Act of 2005 continues.
FURTHER QUESTIONS
20. Ibid.
H i n d u Law of S u c c e s s i o n 217
(3) The Kerala school follows the Benaras school, i.e., females
were given a share. But the Kerala Joint Hindu Family
(Abolition) Act, 1975, changed the position, which came into
force on 10th August, 1976.
According to Sec. 3 of this Act, on and after commencement of this
Act, no right to claim any interest in any property of an ancestor during
his/her lifetime (which is founded on the mere fact that the claimant
was born in the family of ancestor) shall be recognized. The right of
inheritance has replaced the doctrine of survivorship in which the
daughters have equal share with the sons.
According to Sec. 4, all members of undivided Hindu family,
holding any coparcenary property, with the day this Act comes into
force shall be deemed as tenants-in-common, as if partition had taken
place among all members and as if each of them is holding his/her share
separately as full owner thereof. Thus, a legislative partition will be
deemed to have taken place in 1976.
Proviso to Sec. 4 provides that nothing in this section shall affect
the right to maintenance, marriage or funeral expenses out of coparcenary
property, or right of residence (if any) of members others than the
persons entitled to held shares separately.
(4) In Andhra Pradesh, females get a share. The position has
undergone a change with the Hindu Succession Act {Andhra
Pradesh) Amendment Act, 1985, which came into force on
from 5th September, 1985.
According to Sec. 29-A of this Act, notwithstanding anything contained
in Sec. 6, H.S.A., in a joint Hindu family, the daughter of a coparcener
shall by birth become a coparcener in the same manner as the son.
Thus on a partition, the daughter is to be allotted the same share as is
allotted to son. However, nothing contained in this provision shall apply
to a daughter married prior to, or to a partition effected before the
commencement of this amended Act. If at the time of partition, the
daughter is dead, but has left behind a child, the share that would have
been allotted to the daughter would be given to the child.
According to Sec. 29-B, when & female Hindu dies intestate, her
property shall devolve by survivorship upon the surviving members.
Provided that if the deceased had left any child, the interest of the
deceased shall devolve by intestate succession (Thus, this provision is
similar to Sec. 6, H.S.A.).
H i n d u Law of S u c c e s s i o n 219
In the list of Class 1 heirs, the following heirs have been added
by the 2005 Amendment (total number 16 now):
(i) Son of predeceased daughter of predeceased daughter
(daughter's daughter's son);
(ii) Daughter of the predeceased daughter of a predeceased daughter
(daughter's daughter's daughter);
(iii) Daughter of predeceased son of predeceased daughter
(daughter's son's daughter);
(iv) Daughter of predeceased daughter of predeceased son (son's
daughter's daughter).
These four heirs can broadly be described as the great grand children
of the intestate, three through the daughter and one through the son. All
these newly introduced heirs were 'Class II heirs' prior to their elevation
to the Class I category.
The Class //heirs are: I (Father), II (Son's daughter's son, brother,
sister), III (Daughter's son's son), IV (Brother's son, sister's son,
brother's daughter, sister's daughter), V (Father's father, father's mother),
VI (Father's widow, brother's widow), VII (Father's brother, father's
sister), VIII (Mother's father, mother's mother), and IX (Mother's
brother, mother's sister).
Section 9 provides the order of succession - the heirs in Class I shall
take simultaneously and to the exclusion of all other heirs; those in the
first entry in Class II shall be preferred to those in the second entry;
and so on in succession.
Section 10 lays down the rules of distribution of property among the
Class I heirs - Sons, daughters, mother and widow of intestate shall
take one share (if there are more than one widow, all of them together
took one share); among the heirs of branches of predeceased son and
predeceased daughter, the doctrine of representation applies and the
heirs would take the same share their parents would have had if alive
and take per capita (i.e. per head).
Sec. 8 confers the right of succession only on the son and not
on a grandson when his father is living at the time of succession.
H i n d u Law of S u c c e s s i o n 221
[SI — W
S1 D
(b) Amit, along with two sons Sumit and Ankit constitute a
coparcenary. Sumit is deaf and dumb. In 1994, Amit dies
intestate and is survived by two daughters Sonia married in
1986 and Sriya, widow Laxmi and two sons Sumit and Ankit.
Ascertain their shares in the ancestral properties held by Amit
if Amit is governed by Mitakshara law as applicable in: (a)
Bombay, and (b) Andhra Pradesh. [C.LC.-94]
A.2(a) The rules laid down in Sees. 8, 9 and 10 will determine the
succession to the separate properties of X. The father of X is
excluded from succession, because he is a Class II heir, who
cannot take in the presence of Class I heirs. The conversion of
Sj to Christianity will not disqualify him from succession to
X's property (Sec. 26).
Therefore, the remaining heirs (Class I) (including Sj) of X are entitled
to take property simultaneously and equally. Each will get 1/7 share.
(b) Sec. 6 along with Sees. 8, 9 and 10 will determine the succession
to the ancestral property of Amit. Due to the presence of Class
I female heirs, proviso to Sec. 6 applies and a notional partition
has to be performed. It may be noted that the physical deformity
H i n d u Law of S u c c e s s i o n 223
.. ' .
■
get 1/6 share. Amit's 1/6 share
.■..-'.(..
W —[S,] S2 D S3
It is important to note here that the Kerala Joint Hindu Family (Abolition)
Act, 1975 has abolished the coparcenary or ancestral property. Thus, a
legislative partition will be deemed to have taken place in 1976.
The final shares will be as follows:-
+ 1/9
s2 = 1/3 H
D = 1/9
s3 = 4/18
w= 4/18
W — [B]. C D (separated)
D, D2
) Tamil Nadu:
On notional partition X, F, and S will get 1/3 share
each (In Dravida/Madras/
Tamil Nadu, mother/widow do
not get a share on partition).
On second partition - X's 1/3 share will be divided
as: 1/3 x 1/4 = \m each to
X, S,, S2 and D. Thus, X's
separate share would be
1/12 which will devolve on
his heirs by intestate
succession.
On succession X's 1/12 share will be
divided as: 1/12 x 1/4 =
1/48 each to M, S1, S2 and
D.
The final shares will be as follows:-
F = 1/3
M = 1/48
S = 1/3
S, = 1/12 + 1/48 = 5/48
S2 = 1/12 + 1/48 = 5/48
D - 1/12 + 1/48 = 5/48 Note: S,'s 5/48 share on a notional
partition: S( and S,S get 5/48 x i/2 = 5/96 share (StW will not get any
share). And, on succession, >,W and S,S will get 5/96 x 1/2 i.e.
5/192. Thus, S,W will get 5/192 ihare and S,S will get 5/96 + 5/192
= 15/192.]
Q.7 X, a male Hindu governed by Mitakshara law dies in 2008
leaving behind separate properties worth Rs. 40 crores and
joint family property worth 100 crores to his widow W; two
sons S1 (who ceased to be Hindu) and S 2; two daughters D1
(married in 1982) and D2 (unmarried but deaf, dumb and blind)
and two brothers Br., and Br2. Ascertain the shares of all
aforesaid persons in the separate and coparcenary properties.
What will be your answer if X had died in 2000?
[D.U.-2009]
A.7 X's property will devolve as per the 2005 Amendment to the
Hindu Succession Act, 1956.
230 Family Law - II
the result would be the same. Thus, if in the above case, no second
irtition is done and one goes directly to succession:
On succession - X's 1/3 share will go to his heirs (1/3 * 1/
5 = 1/15 each to W, SI, S2, Dl and
D2). Thus, each will get 6.66 crores.
The final shares will be as follows:-
Br, = 1/3 i.e. 33.33 crores.
Br2 = 1/3 i.e. 33.33 crores.
W = 1/15 i.e. 6.66 crores.
S, = 1/15 i.e. 6.66 crores.
S-, = 1/15 i.e. 6.66 crores.
Dp 1/15 i.e. 6.66 crores.
D2 ■ 1/15 i.e. b.o6 orores.]
Legal Position (If X had died in 2000)
On notional partition - X, Br, and Br 2 will get 1/3 share
each i.e. 33.33 crores.
On second partition - X's 1/3 share will be divided as:
1/3x1/4 = 1/12 each to X, W, S,, and
S2. Thus, X's separate share would
be 1/12 (8.33 crores) which will
devolve on his heirs by intestate
succession.
On succession - X's 1/12 share will go to his heirs (1/12
x 1/5 = 1/60 each to W, Si, S2, D, and
D2). Thus, each will get 1.66 crores.
The final shares will be as follows:-
Br,= 1/3 i.e. 33.33 crores.
Br2 = 1/3 i.e. 33.33 crores.
W = 8.33 + 1.66 crores i.e. 9.99 crores.
S, = 8.33 + 1.66 crores i.e. 9.99 crores.
S2 = 8.33 + 1.66 crores i.e. 9.99 crores.
Dj= 1.66 crores.
D2 = 1.66 crores.
Family Law - II
What will be your answer if S3 had separated during the life time of A,
before and after the 2005 Amendment to the H.S Act?
A's property (12 crores) will devolve as per the 2005 Amendment to the
Hindu Succession Act, 1956.
On notional partition - A, F, M, Br,, Br2, Si will get 1/6 share
each i.e. 2 crores.
On second partition - A's 1/6 share will be divided as: 1/6
1/5 = 1/30 each to A, S,, S 2, S3 an D.
Conversion of S2 will not disqualify him from
inheriting A's property (but his son S2S and
wife will hi disqualified).
Thus, A's separate share would be 1/30 (40 lacs) which will
devolve on his heirs by intestate succession.
On succession - A's 1/30 share will go to his heirs (1
30 x 1/5 - 1/150 each to M, S,, I S3 and D).
Thus, each will get 8 lac:
Sj 's property (40 lacs + 8 lacs = 48 lacs) will devolve a follows:
On notional partition - S,, W,, SS, and SS2 will get 1/ share each i.e.
12 lacs. W2 being illegal wife of S, would
not get any share SS, and SS2 (though
illegitimate child would get a share because
of the
H i n d u Law of S u c c e s s i o n 233
statutory protection/legitimacy
conferred on them by Sec. 16,
Hindu Marriage Act (under which
they could inherit the property of
their parents alone and not the
JFP).
On succession - Sj's 1/4 share will go to his heirs
(1/4 x 1/3 = 1/12 each to W,, SS,
and SS2). Thus, each will get 4
lacs.
le final shares will be as follows:-
F = 2 crores. ■ ■ ■ ..
M = 2 crores + 8 lacs.
Br, = 2 crores.
Br2 = 2 crores.
Si = 2 crores.
S, = 40 lacs + 8 lacs = 48 lacs.
[W,= 12 lacs + 4 lacs = 16 lacs
W2 = Nil.
SS, = 12 lacs + 4 lacs = 16 lacs
SS2 = 12 lacs + 4 lacs = 16 lacs]
52 = 40 lacs + 8 lacs = 48 lacs.
[S2's wife =
Nil. S2S =
Nil.]
53 = 40 lacs + 8 lacs = 48 lacs.
D = 40 lacs + 8 lacs = 48 lacs.
Q.9 X, a Hindu male, dies intestate in 2009 and leaves behind his
separate property worth Rs. 5 crores. He is survived by his
parents F and M, a brother Br and a widow W. Soon after his
marriage in 2.000, W HAD LEFT x to elope with her paramour H2,
with whom she had an affair even before her marriage. She
then started living with H2 in the same locality and gave birth
to his two children. A devastated and humiliated X became
depressed and developed illness and then died nine years
later. Discuss who would get his property stating the reasons
for the same? [D.U.-2010]
A.9 The rules laid down in Sees. 8, 9 and 10 will determine the
succession to the separate properties of X. The father F and
brother Br (of X) are excluded from succession, because they
are Class II heirs, who cannot take in the presence of Class I
heirs viz. mother M.
X's widow W is entitled to inherit as Class I heir. Under old Hindu
law, unchaste females were disqualified from succession. The unchastity
of a widow/daughter has ceased to be a disqualification for succession
after the H.S. Act, 1956. Unchastity is not a disqualification under this
Act because it has not been specified anywhere in the Act (the only
disqualifications under the Act are those mentioned in Sees. 25 and 26 of
the Act).
Therefore, the following Class I heirs of X are entitled to take his
separate property, simultaneously and equally: Mother (M) and Widow
(W). W's children from H2 are not related to X in any way; they will
be related to H2, thus, not entitled to any share in X's property.
H i n d u Law of S u c c e s s i o n 235
Q.11(a) A had a son, S and two daughters D1 and D2. His property
consists of a palatial house, part of which is leased out to a
multinational company on rent. The remaining portion was ii the
occupation of the family. D2 wants to file a suit for partition and
separate possession of her share in the house. Advise D2.
(b) A, a male Hindu dies intestate leaving behind a son S and a
daughter D. His properties include a dwelling house. [ wants to
file a suit for partition and separate possession o her share in the
house as S contends that the house is impartible. Can she
succeed ?
(c) A, a male Hindu dies intestate leaving behind a son and i married
daughter D. His properties include a dwelling house
H i n d u Law of S u c c e s s i o n 237
Now, daughters are eligible to inherit and enjoy the property of the
father/mother in the same manner as the son. Further, irrespective of
the nature of property, whether it is a house, cash, jewellery, shares and
stocks, or commercial ventures, they have not only an equal right to
own their share, but they can seek its partition and enjoy it without am,
impediment.
to male heirs would have to be read in singular with the aid of the
provisions of the General Clauses Act. It would thus read to mean
that when there is a single male heir, unless he chooses to take out his
share from the dwelling house, the female heirs cannot claim partition
against him. It cannot be forgotten that in the Hindu male oriented
society, where begetting of a son was a religious obligation, for the
fulfillment of which Hindus have even been resorting to adoptions, it
could not be visualized that it was intended that the single male heir
should be worse off unless he had a supportive second male as a
Class I heir. The provision would have to be interpreted in such
manner that it carries forward the spirit behind it."
The second question would thus have to be answered in favour of
the proposition holding that where a Hindu intestate leaves surviving
him a single male heir and one or more female heirs specified in Class
I of the Schedule, the provisions of Sec. 23 keep attracted to maintain
the dwelling house impartible as in the case of more than one male
heir, subject to the right of re-entry and residence of the female heirs
so entitled, till such time the single male heir chooses to separate his
share; this right of his being personal to him, neither transferable nor
heritable.
The next question to be considered is whether the protection
available to the male heir under Sec. 23 would be lost if he inducts a
third party in a portion of the dwelling house. The expression used in
Sec. 23 is "includes a dwelling house wholly occupied by members of
his or her family". The Supreme Court in Narashimaha Murthy's case
held that if strangers are inducted into the dwelling house it must be
taken that the male heir had lost his animus possedendi. The Supreme
Court held: If the male heirs derive the right under the provision to resist
partition of the dwelling house unless they chose to divide their
respective shares therein, then correspondingly it is incumbent on the
male heirs to keep the property well arranged, inhabited or occupied by
themselves keeping the property available for the female heirs to
enforce the right to residence therein. But if the latter right is frustrated
on creation of third party rights or a contractual or statutory tenancy,
there remains no right with the males to resist partition.
H i n d u Law of S u c c e s s i o n 243
12451
246 Family Law - II
need, and must have, affirmation of their equality. For example, Sec. 15
of the H.S. Act that determines the order of succession in the case of
a Hindu woman who dies intestate should be amended for it reflects an
entrenched system of subjugation of women.1
The Hindu Succession Act, 1956, deals with succession to the property
of a Hindu female intestate. Prior to 1956, there were varied rules under
the uncodified Hindu law. Sees. 15 and 16, H.S. Act, are applicable to
the absolute property of a female 'including an undivided interest in
Mitakshara coparcenary in which a female was a coparcener' (2005
Amendment to the Act). Only that property will be subject to the
application of these sections which are heritable and over which
woman had full powers of disposal. Thus, the scheme of succession
is not applicable to any property held by a Hindu woman as a limit
owner [Sec. 14(2)], or even otherwise, or to which the Act does r
apply [Sec. 4(2)/(5)j.
The order of succession to the property - whole of it being
separate - of a Hindu female, dying intestate (i.e. without making
Will), is not the same as in case of a Hindu male. The H.S. Act, 19
agrees with the old Hindu law of succession in as much as that there
is a difference between succession to a male and that of a female.
other major succession law in India lay down a uniform scheme for
intestates. The reason for not providing a uniform scheme under Hindu
law is linked closely to the emphasis on the conservation and protection
of the property in the family of a male Hindu. A woman under
patriarchal setup is visualized as having no permanent family of her own
(even in her husband's family she can remarry on husband's death
1. Prabha Sridevan, "A Law that Thwarts Justice", The Hindu, Delhi, Jun
(2011).
2. Write a short note on - Law governing intestate succession to Hindu femi
[LC,
s
divorce and move out of this family). In contrast, the husband's family
does not change with his marriage or remarriage. 3
Although Hindu woman's limited estate has been abolished and, so
long as the woman is alive, she has absolute power over all types of
property, yet for the purpose of intestate succession the 'source of
property' is still material. For the purpose of succession, the
property " a Hindu female falls under the following three heads:
(a) Property inherited by a female from her father or mother,
(b) Property inherited by a female from her husband or father-in-
law, and
(c) Property obtained from any other source, by inheritance or
otherwise.
It may be noted that if female has her children, than the first two heads
would not become operative.]
Sec. 15 deals with succession to the property of a Hindu female
dying intestate after the commencement of the Act. The property of a
female Hindu shall devolve according to the rules set out in Sec. 16.
lees. 15-16 are prospective in operation and does not govern succession
to the property of a female Hindu whose death took place before the
Act came into force.
3. See P. Pradhan Saxena, Family Law II, 3"1 Ed., p. 363 (2011).
248 Family Law - II
4. Thus, this entry includes seven heirs and the list is much shorter than that of Class
I heirs of a Hindu male. The following have been omitted in this entry though
they are included in the list of Class I heirs of a Hindu male: (i) The widow of a
predeceased son; (ii) the widow and children of a predeceased grandson. See
MR. Mallick, Ray's Commentaries on The Hindu Succession Act, 1956, Kamal
Law House, 4m Ed., p. 301 (2010).
Hindu Woman's P r o p e r t y 249
such children will divide the share falling to the share of their
father or mother (predeceased).
The 'sons and daughters' include son and daughter by natural h,
legitimate or illegitimate; posthumous children; and adopted children
en by a single woman). Children of void and voidable marriages
are 3 included. However, step-children are not included in the
expression, with respect to the children (excluding step-children),
the marital status of the mother (married or divorced or even
unwed) or the validity of marriage is of no consequence. The
children may be born from different husbands, yet they would
still, inherit together.
The 'grand-children' do not include illegitimate children, or step-
children, or children of a void/voidable (annulled) marriage (it is
because sec. 16, Hindu Marriage Act provides that such children can
inherit the property of their parents alone). Thus, in order to be
eligible for inheritance, such grandchildren must be the legitimate
offsprings of their parents, and born out of a valid marriage
between them {Shahaji san Asme v Sitaram Kondi Asme AIR
2010 Bom 24).
Similarly, their 'deceased parents' should also be legitimate and
born out of a valid marriage. For example, a Hindu woman W
married an already married man H, thus, it is a void marriage. Two
sons SI and I are born to her. SI and S2 could inherit the property
of W in view I statutory legitimacy conferred on them by Sec. 16,
H.M., Act. But,
If during the lifetime of W, S2 dies and left behind a daughter
S2D, then, SI alone will inherit her property, as S2D will not be
deemed to e related to W. The relationship in case of children born
of a void/ voidable marriage is personal between the parents and
children and they are not deemed to be related to any other relative
of either.
In a case, a Hindu woman A dies, leaving behind a son S, and a
granddaughter D from her second son S 2. S2 had got married to W2,
tut had later discovered that his consent had been obtained by
fraud. s2 filed a petition in court for obtaining a decree of nullity. D
was conceived before the discovery of fraud by S 2. The marriage
was declared null and void. S2 died and D was brought up by A, her
grandmother. Now, A also dies. D could not inherit A's property as
/
A
s, V- — w2
D
5. Id., p. 366.
Hindu Woman's Property 251
the female Hindu died (Sec. 16). Heirs of the husband do not
mean 'all persons who could have been the heirs of such
husband.'
It may be noted that the date of the opening of the
succession is not the date of the death of the husband, but that of
the deceased i.e. female Hindu (Seetha Lakshimammal v M.
Iyengar AIR 1998 SC 1692). Thus, it has to be presumed that on
the death of the intestate, it was her husband who had died and
the property also belonged to him. In such a situation, the 'step-
sdh of female' (who is a disqualified heir) could succeed as the
'son of the husband' (born to him from a previous marriage). Thus,
where a Hindu woman W, dies intestate, leaving behind per step-
son and her brother, since brother is an heir in the later entry, he
step-son will succeed to her property.
The widow of a predeceased son, widow of the deceased
brother of the husband, sister of the husband, or even a remote
cousin of the husband would fall in the category 'heirs of the
husband.'
It is to be noted that the 'heirs of husband' are considered
"near in relation" to a childless widow, in comparison to her
parents and brothers and sisters (which are placed in the later
entry). Thus, a woman's blood relations are relegated to an
inferior placement in comparison to the category of 'heirs of
husband' (relations by marriage). No other succession law including
Muslim law gives statutory preference to the in-laws over a woman's
blood relatives. This is so when a Hindu male dies, none of the
wife's relatives can ever inherit his property.
Entry (c) - Father and Mother of the proposlta (i.e. deceased female)
Father/Mother does not include a step-father/mother; adoptive mother/
father is included. However, step-father/mother could succeed as 'heir
of mother' and the latter as 'heir of father.'
Where the marriage of the parents was a void marriage or an
annulled voidable marriage, the parents inherit from such children.
Even if the proposita was an illegitimate daughter of the mother,
mother will inherit; however putative father will not inherit.
252 Family Law - II
6. Thus, where an unmarried female inherited the property from her mother and
died leaving her brother and a widow of another brother, it was held that as
the property is to revert to her father and will devolve as if it belonged to the
father, on his heirs, the deceased brother would be the son of the father and
his widow would be related to the father as the widow of a predeceased
son. Thus, both - a son and a widow of a predeceased son - will inherit the
property as Class I heirs of the father, in equal shares [Yoginder Parkash
Duggal v Qm Prakash Duggal, 2000 AIHC 2905 (Del.)].
Hindu Woman's Property 253
Of her husband on his demise, as his widow. She also inherits from
her father-in-law as the widow of his predeceased son (provided
she does not remarry before the date of the opening of the
succession).
Here, if the female had been married more than once, the properties
inherited by her from her respective husbands and their fathers should
go to heirs of respective husbands. However, if she remarried after
inheriting property from her deceased husband and died leaving behind
issues from her second husband, she has not died issueless and her
children and second husband will succeed to the property. But if she
dies issueless, the second husband will not succeed and the property
will revert to the first husband's heirs. Likewise, where a woman
inherited property from her second husband and died leaving behind a
son from the first husband, the son would take the property
[Chintaram v Rushibai, 2000 AIHC 1308 (M.P.)].
In a recent case, a woman died leaving behind a son and a
daughter, born to her from the husband whose property she had inherited.
She also had a son from a previous marriage. The Gauhati High Court
held that the son born of the previous marriage was not entitled to get
the property, as it was the property that was inherited by the woman
from her second husband and he was not the progeny of that husband,
the expression 'son and daughter' would mean the son and daughter
of that husband from whom or from whose father, she had inherited
the property. The court reasoned that if such property is allowed to be
drifted away from the source through which the deceased female has
actually inherited the property, the object of Sec. 15(2) would be defeated.
The object of Sec. 15(2) is to ensure that the property left by a Hindu
female, does not lose the real source from where the deceased female
had inherited the property (Dhanistha Kalita v Ramakanta Kalita AIR
2003 Gau 92).
It is submitted that the expression that the legislature has used in
Sec. 15(2)(b) is, in absence of 'any son or daughter of the deceased.'
The expression is without any qualification and the words 'any son or
daughter' means any son or daughter and not the son/daughter of a
particular husband. It would include all kinds of sons and daughters
-legitimate, illegitimate, etc. These are the only relations that are described
256 Family Law - II
Case Law
[In this case the law views the man's estate and the woman's estate
through different spectacles: her autonomy over her property is
less complete than his.
12. Justice A.R. Lakshmanan, "Let us Amend the Law, It is Only Fair to Women",
The Hindu, Delhi, July 24 (2011).
264 Family Law -II
property if her children and husband are not alive. She would also
prefer that her sister and brother have a better right to inherit her
property than her brother-in-law and sister-in-law.13
The second option in this regard is that the property of a female
Hindu dying intestate devolves upon the heirs depending upon the source
from which, the said property was acquired by her, the self-acquired
property of such female be simultaneously inherited by her heirs both
from the husband's family as well as the natal family in equal share.
The fact remains that in spite of her closeness to and dependence on
her natal family, her relations with her husband's family are not separated
and uprooted in entirety. She continues to be a member of her husband's
family, getting support from it in all walks of life. One cannot afford
to ignore the ground realities in this regard. The social ethos and the
mores of our patriarchal system demand that the existing system should
not be totally reversed as claimed by the protagonists of the first option.
Lest, there may be social and family tensions which may not be in the
overall interest of the family as a whole and as such, ought to be
avoided. In any case, it is open to the female Hindu to bequeath her
property the way she likes by executing a Will.
In the present scenario, when amendments are made to the effect
that women have been entitled to inherit property from her parental side
as well as from husband's side, it will be quite justified if equal right
is given to her parental heirs along with her husband's heirs to inherit
her property.
It is therefore, proposed that in order to bring about a balance,
Sec. 15 should be amended, so that in case a female Hindu dies intestate
leaving her self-acquired property with no heirs, as mentioned in Clause
(a) of Sec. 15(1), the property should devolve on her husband's heirs
and also on the heirs of her parental side.
her from her father revert to the family of the father in the
absence of issue and similarly property inherited from her
husband or father-in-law reverts to the heirs of the husband
in the absence of issue. Such a provision would prevent
properties passing into the hands of persons to whom
justice would demand they should not pass.]
The Hindu Women's Right to Property Act, 1937, modified the old
Hindu law so as to confer greater rights on women. It conferred upon
the widow, right of inheritance to her hsuband's property, even where
the husband left male issue. She was also given power to claim partition.
But in all these cases, the widow was given only a limited interest in
the property ('woman's estate). She had no power of disposition by
sale, lease, mortgage, gift or Will.
carried on the battle. Held that since the land was possessed by the
widow (in a constructive sense) when she died in 1958, her legal
representative succeeds. If her possession is that of a trespasser or of
a licencee, she can't be said to be in possession. Her possession must
be legal.
It may be noted that Sec. 14(1) does not mean at all that if there
is any want or defect in the full ownership of that property under 'some
other law,' that want or defect has also disappeared.
It may also be noted that Sec. 14(1) uses the expression "whether
acquired before or after the commencement of the Act''. Thus, this
provision is retrospective as well as prospective.
If property is not in her possession when the Act came into force
Then, in that case, the old Hindu law continues to apply. Sec. 14 has
abolished the woman's estate, but the reversioners are still relevant in
respect of the woman's estate alienated by her before 1956. It is
important to note that a suit filed by reversioners before 1956 can be
continued and a fresh suit can be filed after 1956.
Rights of reversioners - Reversioners are the heirs of the last full
owner. Had the female not intervened he/they would have inherited the
property (Hindu woman's estate) in question. The nature of reversioner's
interest was not a vested but a contingent interest. It was a spes
successionis i.e. a mere chance of succession. This is so because as
long as the limited owner (woman) had the ownership of the property
nobody could lay any claim to it. It could not be predicted with certainty
who would succeed to the property on the expiry of the woman’s
interest in that property because nobody could say who would survive
the limited owner {Ram Chander v Ganesh Das AIR 1984 SC 42).
Their rights are as follows:-
(i) They can sue for a declaration that an alienation by
widow is void, and will not be binding on them after the
death of widow, (ii) They can, after the death of widow or
after termination estate, file a suit for the possession of
'improper' alienation made by widow, from alienee.
H i n d u Woman's Property 271
The Hindu female is bound by that alienation because the old law
made such a transaction enforceable against her but the reversioners
are not bound by such transfer. They are entitled to the restoration of
the property from the alienee. The rights of alienee are co-
extensive with t of the widow; the alienee can retain property so long
as the widow alive. The alienee does not get the full ownership of the
property by virtue of Sec. 14(1), because this provision is meant for
the benefit of Hindu female and not for the transferee from her.
The law in force at the time of the death of the limited female
owner governs the succession to reversioners. The husband's heirs/
reversioners would be ascertained as if husband had died at the time of
widow's death [Daya Singh v Dhan Kaur (1974) 1 SCC 700]. In this
case, on the death of a Hindu in 1933 his widow inherited his property
as a limited owner. She had made an unauthorized gift of the property
before the H.S. Act was passed. As she was not in possession of the
property at the time of the commencement of the Act, she could not
become the full owner thereof under Sec. 14(1). She died in 1963.
Thus, succession to property will be governed by the H.S. Act, 1956.
accordingly, his daughter would succeed to his property, to the exclusion f
the collaterals (brothers of husband).
Sec. 14(2) uses the term 'restricted estate' and not 'limited estate.'
The latter term is well-known under the traditional Hindu law. The
former term is not so; it is not even defined by the H.S. Act. The term
restricted estate' has much wider import than the term 'limited estate';
the latter admits only those limitations or restrictions which are
recognized by the personal Hindu law, the former will admit any
limitation or restriction which can be lawfully attached to a
property. Every 'limited' ate is a type of 'restricted' estate.
It is interesting to note that Sec. 14(1) as well as Sec. 14(2)
mentioned almost same methods or modes of acquisition of
property (e.g. gift, any other instrument, in any other manner
whatsoever, etc.) t the consequences mentioned are different. This is
a classic instance a statutory provision which, by reason of its inapt
draftsmanship, s created endless confusion for litigants and proved
a paradise for lawyers. Finally, the Supreme Court resolved this
conflict in Tulasamma Shesha Reddy case (discussed below).
The proper test to determine whether a case falls under Sec. 14(1)
or (2) (as laid in Sumeshwar v Swami AIR 1970 Pat 348): If the female
is no right or interest in the property prior to grant, she will take it
accordance with grant, but if she had an interest prior to grant and
the grant merely embodies that interest, Sec. 14(1) applies, while in the
former case, Sec. 14(2) applies. The Supreme Court took the same
view in Munna Lai v Raj Kumar (AIR 1962 SC 1493): Sec. 14 (2)
applies where grant itself is the source or origin of interest created,
and not where grant is merely decalatory or definitive of pre-existing
right.
examples
(1) Where daughter-in-law sued for partition to get her share of
inheritance, other members said that she could get her share
only if she agreed to include properties given to her for
maintenance in suit properties. Held that she claimed her
inheritance and her claim of maintenance is a separate question
(Chinnappa v Valliammal AIR 1969 Mad. 187).
(2) Where under an agreement, widow took a share in the estate
of joint family as a life-estate with a vested remainder in favour
of others and there was no indication to show that she took
Family Law - II'
those properties for her maintenance the case falls under Sec
14(2) {Kunji v Meenakshi AIR 1970 Ker. 284).
(3) A share obtained by a Hindu female in a partition is a type of
property falling under Sec. 14 (1), even though her share is
described as a limited estate in decree/award.
(4) Where a widow inherited some properties from her husband
subsequently she entered into a compromise with the
reversioners that she would hold the estate as limited owner
and would not cut trees on land. Here, widow didn't acquire
any right under the compromise so case falls under Sec. 14(1)
(5) Where a widow having no right to any share in property
except her right of maintenance and residence, was allotted
some property for her residence and maintenance during her
life-time under an agreement, the agreement prohibited her
from
alienating properties. She was in possession of properties when
the Act came into force. Held that the case falls under Sec.
14(2).
(6) Where a Will confers a life estate, Sec. 14 (2) applies, and
where Will confers a full estate, Sec. 14(1) applies.
(7) Where no property is given in lieu of maintenance and only
a sum of money given, then Sec. 14 does not apply.
(8) If she has only a charge on the property that property does
not get converted into her full estate.
(9) Where under a settlement, property was given to the widow
which were to revert to the settler or his brother after her
death
do not get enlarged into full estate. The testator gave an
estate
to his daughter for her maintenance stating that the estate in
the
last resort (i.e. on his failure to get a son before his demise
should go to his brother, he meant to give a life estate
(Bhura
v Kashiram AIR 1994 SC 1203). Thus, Sec. 14(2) applies
Hindu Woman's P r o p e r t y 277
[LC.H-94/96\
278 Family Law - II
16. In this case, a partition of the property was effected and an award was
made by the arbitrator that the second wife of the intestate (who died in
1947) would have a widow's estate in the share allotted to her. It was
held that she had acquired an interest in the property left by the intestate
by virtue of the Hindu Women's Right to Property Act, 1937, and became
full owner of the property allotted to her by virtue of Sec. 14(1) and Sec.
14(2) was not attracted simply because there was a partition and an
award.
Hindu Woman's P r o p e r t y 279
FURTHER QUESTIONS
Q.2 X dies intestate in 1994, and leaves behind her parents F and M,
surviving spouse H, two sons S1, and S2, two daughters D1 and D2.
X also had an illegitimate son S3. S1 during the lifetime of X, had
converted to Muslim faith and had married a Muslim girl. X leaves
property worth Rs. 20 lakhs. Ascertain the shares of aforesaid heirs in
X's property if X was a female Hindu and the property was acquired
by her? [D.U.-2008\ The scheme of succession to X's property will
be governed by Sec. 15(1), since the properties are 'self-acquired'
ones. The 'children and the husband' of the deceased female are
placed in the first category under Sec. 15(1). Her parents being
placed in a later category will be excluded. The illegitimacy of a child
will not disqualify him; likewise conversion of a child is also not a
disqualification. Thus, the property will be divided equally among
husband H, SI, S2, S3, Dl and D2.
Q.3 A, a female Hindu dies intestate in 2006, and has left behind
property worth Rs. 80 lakhs. She had three children from her
husband H who also survives her. Her one son S1 died
during her life time leaving behind his widow SW. Her other
two children a son S2 and a daughter D were married to non-
Hindu spouses. She also had an illegitimate child SS born
to her before marriage as a result of an illicit affair with H2.
Besides theses relations her parents M and F were also
living with her. Discuss who gets her property and what
would
be their shares? [D.U.-2008
(Supp.)]
3 The scheme of succession to A's property will be governed by Sec.
15(1), since the properties are 'self-acquired' ones. The 'children
and the husband' of the deceased female are placed in the first
category under Sec. 15(1). Her parents being placed in a later
category will be excluded. The illegitimacy of a child will not
disqualify him; likewise marriage of a child with non-Hindu spouse
is also not a disqualification. The widow of a predeceased son
(SW) being placed in a later category ('heirs of husband') will be
excluded. Thus, the property will be divided equally among
husband H, S2, SS, and D (each will get 20 lakhs).
286 Family Law - II
Q.4 Priya dies in 2005 leaving behind her property inherited from
her father and the following relations - husband, adopted
daughter, deaf son and mother. Discuss who would get the
property of Priya? [D.U.-2009]
A.4 The scheme of succession to Priya's property will be governed
by Sec. 15(2)(a), since the properties are 'inherited from father'.
The 'children' of the deceased female are placed in the first
category under Sec. 15(2)(a). Her husband will be excluded
because he cannot succeed to the property of his wife which
she had 'inherited from her parents.' Thus, the property will be
divided equally among her children - daughter and son. Adoption
of daughter does not matter; similarly, physical disability of son
is not a disqualification for succession. The deceased female
'Mother' being placed in the later category ('heirs of father')
will be excluded in the presence of children.
A Hindu female died leaving behind her daughter from a previous marriage
and the second husband, and property that she had inherited from her
father, it was held that since the deceased had inherited the property
from her parents, her daughter alone will be entitled to succeed and the
husband here, cannot succeed [Radhika v Anguram (1994) 5 SCC
761].
time of her marriage was living in her house with them and
maintaining and supporting them also. Three years later
both Radha and Ramesh died in a plane crash. Discuss who
would get the property of Radha? [D.U.-2011]
A.6 Radha died issueless; the property acquired by her was 'self-
acquired', thus, Sec. 15(1) will apply. In view of the
decision in Om Prakash v Radhacharan (2009), the self-
acquired properties of Radha will devolve upon the 'heirs of
the husband' Ramesh. In such a situation, the 'step-son of
Radha' (who is otherwise a disqualified heir) could succeed
as the 'son of the husband' (born to him from a previous
marriage). Thus, Mohit would get the property of Radha.
Q.7(a) A Hindu Karta died intestate in 1950 leaving five sons and a
widow, W. A dispute arose among his sons, and the
appointed arbitrator awarded a residential house (for
residence purpose) to W and interest on a sum of Rs. 8 lacs
for her maintenance. The award specifically provided that W
would only have a Hindu women's estate in both assets. W
executed a Will in 1959 bequeathing both properties to her
brother's daughter D. Examine whether D is entitled to the
bequests.
[C.L.C-91/99]
have filed a fresh suit after 1956 (it may be noted that the reversioners
are still relevant i.e. after the passing of 1956 Act, in respect of the
woman's estate alienated by her before 1956). But S will not succeed
in it because of reconveyance of the property and consequent absolute
ownership in W and later on in Y.
(i) The property would have remained a limited estate, had
there been no gift back to W in 1957, and in such a case
on W's death, S as a reversioner can claim it.
(ii) It has been noted earlier that if a reconveyance is made
before or after the 1956 Act, the female will become an
absolute owner of it. In this case, S cannot claim the
property after W's death.
(iii) In mortgage, the title to the property still vests in the
mortgagor (transferor). Thus, in case of mortgage, W would
become an absolute owner of this property in 1956, and
her heirs will succeed to the equity of redemption of
mortgage. S cannot claim this property.
(iv) If W had died in 1954, the right of reversion will operate
in favour of S and he can claim back this property.
Q.10 K had two wives W1 and W2. In 1941, he executed a Will of his
properties giving one half share to each of his wives, till their
life. Divya, his daughter through W2 was to be the ultimate
beneficiary. K died in 1960. W1 died in 1970, but before few
months before her death she had executed a Will in favour of
her domestic servant Kanta.
While claiming her right under the Will, Kanta contends that
whatever property was given under the Will by K to W1 was in
lieu of maintenance, which had become absolute property of
W1 on coming into force of the H.S.A., 1956. W1 being the
absolute owner was capable of creating the Will in her favour
thus her claims should succeed. Decide.
Hindu Woman's P r o p e r t y 293
Q.12 (a) A Hindu male died prior to 1937, leaving behind his widow, son
and daughter. The mother as a guardian took the possession
of the property as the children were infant, and, died in 1990.
Thereupon her daughter filed for mutation of names with
respect to half of the property. It was resisted by her brother
contending that as the father's death had taken place before
the coming into force of the Hindu Women's Act, 1937, his
mother had no 'limited estate/ownership' in the property but
only a right of maintenance and the same could not mature
into an absolute estate and therefore he alone inherited the
property of the father? Decide.
(b) The maternal uncle and aunt of a widow gave her the
possession of a property for her life. They had no moral or
legal obligation to maintain her. Discuss whether such an
interest in the property would be covered by Sec. 14(1).
294 Family Law - lII
Q.14 (a) The property was given by the husband to his wife for her
maintenance before his death. She took possession of the
property and the same was also accepted by the other
male relatives (including reversioners) in a consent decree.
According to that decree, no one was to disturb the
peaceful possession of the widow and the land after her
death was to revert back to the reversioners. The widow
died in 1992 and her legal representatives (heirs) filed a
suit claiming the land on the ground that since the
enactment of the H.S. Act, 1956, in view of Sec. 14(1) she
had become the absolute owner of the property and thus
the reversioners will be excluded. The reversioners
contended that in view of the terms of consent decree, the
widow could not be called the absolute owner despite the
provisions of the H.S. Act, as it did not apply to her case.
The land was allotted to her only for her lifetime expressly
for the purpose of maintenance, and thus it also prevented
the property from vesting in her. Decide.
(b) The testator created a life interest in his landed property and
absolute ownership with respect to his complete movable
property in favour of his wife under a Will. After his death
the wife executed a lease of the landed property and died
six years later. Discuss whether the case is covered by
Sec. 14(1) or Sec. 14(2).
A. 14(a) The possession of the widow in the present case even
prior to the institution of the present suit was accepted by the
reversioners in the consent decree and they undertook not
to interfere in her peaceful possession thereof. After the
husband's death, who died after 1956, the widow became
the co-owner of the property of her deceased husband and
had half share in it. The succession
296 Family Law - II
to this property was governed by the H.S. Act, 1956. She was
therefore in possession of the land not merely as a possessor
of the property but as the co-owner of the property, thus, the
question of divesting her of the property invoking Sec. 14(2)
does not arise. Thus the existing right of the widow in light of
the consent decree was crystallized by reason of the consent
decree and she took the property as a full owner thereof after
the passing of the Act {Santosh v Saraswathibai AIR 2008 SC
500).
(b) The widow had acquired a limited ownership expressly and it
was not in lieu of her pre-existing rights of maintenance. Thus,
the case is covered by Sec. 14(2) and not Sec. 14(1). Therefore,
the widow was not competent to execute a lease as an absolute
owner of the property {Sharad Subramanyan v Soumi
Mazumdar AIR 2006 SC 1993).
9 Muslim Law of
Inheritance
The Islamic law of inheritance, like the rest of the Islamic personal law is
a combination of the pre-Islamic custom and the rules introduced by the
Prophet. The greater part of Islamic law of inheritance is founded on the
Quran.
The Muslim law of inheritance is comprehensive, logical and complete
in all respects. It contains rules which are just and equitable, For instance,
Quran has introduced a new class of legal heirs constituting female and
the aged parents (which was not so under the customary law). These
"newly created heirs" are given the shares first of all. Further, the husband
and wife have been made each other's legal heirs.
The Muslim law of inheritance is peculiar in the sense that the scheme
of distribution has been framed in such a manner that besides specifying
the respective shares of the legal heirs, it has also made revision for the
conflicting claims of other relatives of a deceased. A reasonable balance
has been maintained between the nearness of the heirs and the amount of
their shares in the deceased's property.
12971
298 Family Law - II
Agnates — When a person traces his relationship with another -wholly through males,
"he or she is an agnate. His sex or the sex of the deceased Hindu is
immaterial. For instance, brother, brother's son, son's son, son's son's son,
father, father's father, father's mother, father's father or mother, son's daughter,
etc. are agnates. Thus, agnates can be descendants, ascendants or collaterals^ £
Cognates - Whenever in the relationship of a person with another,
to
female (or females) intervenes anywhere in the line, one is a cognate
another. For instance, sister's son and daughters; daughter's sons
and daughters; mother's mother and father; father's mother's
father and mother; mother's father's son and daughters (i.e.,
maternal uncles and aunts) are all cognates. Thus a cognate may
be a descendant ascendant or collateral!
Full blood - When the father and mother of two persons are the san
e.g. 'real' brothers and sisters
Half blood - When two persons have the same father but different
mothers. Also called 'consanguine'' brothers and sisters; they are
agnate because they inherit through a male (common father)
Uterine blood — When two persons have the same mother but different fathers.
They are cognates because they inherit through a female (common mother).
True/False Grandfather - The paternal (agnatic) grandfather between whom and the
deceased no female link intervenes is 'true grandfather.' The grandfather
between whom and the deceased one or more female links intervene
is 'false grandfather' e.g. father's mother's father, mother's father,
Muslim Law of Inheritance 299
A (Propositus)
I P(Son)
I .
X (Grandson)
(a) Sharers
They are 12 in number, majority being females. The male sharers are
husband, father, true grandfather (how high soever) and, uterine brother
The female sharers are wife, mother, true grandmother (how high
soever), daughter, son's daughter'(how low soever), uterine sister,(full
sister, and, consanguine sister, Son is not a Quranic heir
If the total property of the sharers is equal to the heritable property, the whole
property is divided among the sharers. But if there still remains some property
(residue), then the second step is to distribute it among the residuaries.
However where a propositus has no sharers at all. the whole property is inherited
directly by the residuaries.
Muslim Law of Inheritance 305
b) Residuaries
They are all male agnates (descendants, ascendants, and collaterals
-inherit through male relations) and only four females who are
'sharers' but are converted into residuaries in some cases (viz. daughter,
son's laughter, full sister, and, consanguine sister.
The descendants are son, son's son (how low soever). The
ascendants are father, true grandfather (how tew soever). The
descendants of father (collaterals) are full brother, full sister, consanguine
brother, consanguine sister, etc. The descendants of true grandfather
(collaterals) include full/consanguine paternal uncle, his son,
. If all the residuaries are males, the property is divided among them
squally. But if the residuaries include also females the property is divided
in such a way that share of a male is double the share of a female. It
may be noted that Quranic heirs consists mainly of females. The reason
is that the bulk of the property in the majority of cases is sought to be
kept intact for the residuary heirs who are mostly males
^According to Sirajyyah, there are three classes of residuaries: (i)
residuaries in their own rights - these are males, listed above.
(ii) residuaries in the right of another - these are females e.g.
daughter of deceased is not a residuary but a sharer,
306 Family Law - II
nevertheless when the deceased person leaves a son also,
the same daughter who as a general rule is sharer,
becomes a residuary.
(iii) residuaries with others - e.g. full sister and consanguine
sister, they inherit as residuaries with daughter and son's
daughter (how low soever).
i (1) Father ^
(i) He gets 1/6 share when there is a child or son's child low
soever, (ii) He takes as a residuary when there is no child or
son's child A Father inherits in double capacity; he is a sharer but in
certain case he inherits also as a residuary. Thus, when the only
relations entitled to inherit are the father and the daughter, the father
will inherit both as ; sharer and as a residuary. This is the only case of
an heir inheriting ii two different capacities at the same time
The Father can take to the extent of total property in absence o any
other sharer. The presence of father excludes all brothers and
sisters on the basis of' the principal of exclusion that when a person is related
to the intestate through another person, he is excluded in the
presence of that relative, who is the connection.
Mother
(i) She takes 1/6 when -
(a) there is a child or son's child how low soever.
(b) there are two brothers, one brother and one sister, or two
sisters of the deceased (whether full, uterine or
consanguine).
(ii) She takes 1/3 when there is no child or son's child, and, not
more than one brother or sister (if any)j : if there is also spouse
(widow/husband) and the father, then only
of what remains after deducting the widow's or husband's share,
this peculiar combination, the mother (even without children)
does
not get 1/3 of the whole property because in that case father's
share would become half of the mother which is against the
general principle t share of a male should be double the share of a
female.
[As noted above, the share of a female is one half of the corresponding
male relations' share. This is because of her lesser responsibilities
and
obligations in comparison to males.
(6) Son
The son always takes as a residuary. But the rules governing
inheritance are such that although the son always takes as a
residuary, he would always inherit.
When there is no daughter, the son takes the entire residue.
When the son is together with a daughter, the son gets the double
the share of daughter.!
* Important Points
(i) First of all the shares are allotted to the husband or wife
(widow), as the case may be. Husband and wife are always
entitled to succeed with other claimants.
(ii) Presence of a child (son/daughter) or son's child creates a
lot of difference in the application of law of inheritance of
primary heirs.
(iii) 'Full sister' (a sharer) has the same share as that of a
'daughter. Thus, a single sister's share is 1/2; that of two or
more is 2 3. However, she gets the above-mentioned share in
the absence of (a) parents (b) lineal descendants (c) full
brother, and, (d father's father. In the presence of (a) full
brother and (b father's father, she inherits as a residuary,
Some Illustrations
(a) Father - 1/6 (as sharer, because there are daughters)
Father's father - (excluded by father) Two daughters -
2/3 (collectively) Mother - 1/6 because there are
daughters)
Mother’s mother - (eluded by mother)
Son's daughter - (excluded by daughters)
Muslim Law of Inheritance 309
The Shias group the heirs of a Muslim deceased in two categories: (i)
Consanguine heirs viz. related to the deceased by blood; and (ii)
Relation by marriage i.e. husband and wife
consanguine Heirs
These heirs are divided into three groups, the former excluding
the latter and each of these groups is sub-divided into two sub-
groups, within each group, heirs mentioned in the sub-groups
inherit together
310 Family Law - II
*) and do not exclude each other. These groups and sub-groups
are as follows:
I. (i) Parents
(ii) Children and other lineal descendants how low so
ever.
II. (i) All grandparents how high so ever
(ii) Brothers and sisters and their descendants how low
so ever
III. (i) Paternal and
(ii) Maternal uncles and aunts of the deceased, and of
his parents and grandparents how high so ever,
and their descendants how low so ever
In absence of heirs of first class namely parents, children and
other lineal descendants, the heirs of second class take the
property. This class comprises grandparents, brothers and sisters
and their descendant They inherit along with the surviving
spouse of the deceased if any and from the share that is left
after the spouse has been allotted his/her share.
When none of the heirs in the preceding two classes is
present the property passes to the heirs in the third class.)
Sharers
There are nine sharers three of them are males and six are
females and include the parents, surviving spouse (husband or
wife as the case may be), daughter, full and consanguine sister
and uterine brothers and sisters
The descendants of daughter, full, consanguine and
uterine sister and uterine brother are also sharers,
. Husband
(i) He gets 1/4 when only one heir is present (in
presence a lineal descendant).
Muslim Law of Inheritance 311
(i) She gets 1/8 when one or more heirs are present (in
presence of lineal descendant), (ii) She gets
1/4 in absence of a descendant.
3. Father
(i) He inherits 1/6 in presence of lineal descendant
(ii) In absence of a descendant he inherits as a residuary.
j/4. Mother
(i) Her share is 1/6 in presence of lineal descendant or in presence of
two or more full/ consanguine brothers, or one such brother and two
such sisters or four such sisters with the father, (ii) Otherwise her
share is 1/3. 5. Daughter '— (i) She gets 1/2 when only one heir is
present and 2/3 when two or more heirs are present (in absence of a
son), (ii) With the son she takes as a residuary^) With respect to
'lineal descendants' the following rules are applicable:
1. Lineal descendants inherit subject to the rule of exclusion
(nearer in degree excluding the remoter). For example, if the
deceased leaves behind a son and son of another
predeceased son, the son who is nearer in degree to the
deceased would exclude the grandson who in his comparison
is a remoter lineal descendant.
2. Where the heirs are the descendants of two or more
children but are in the same degree of relationship to the
deceased, for the purposes of calculating their shares, the rule
of representation is applicable. The lineal descendants of
one child would take the share that would have been
inherited by their respective parent and would divide it
amongst themselves, males taking a double portion than
females.
312 Family Law - II
sword, ring, and, the copy of Quran. For that the eldest son should
be of sound mind and the father should have left certain properties
besides these articles. 4) Lineal descendants: Under Shia law, all
'lineal descendants' are grouped in one category and are not spread
over all the three categories of Sharers, Residuaries and Distant
Kindred like under the Sunni law. This makes the difference in the
distribution of shares of heirs,
(8) Child in womb: Under Shia law, the share of two sons
should be reserved as a measure of precaution.
(9) Succession per stripes or per capita: Under Shia law,
succession among the lineal descendants is per stripes and
not per capita. Under Sunni law, it is per capita.
Shia male A dies and is survived by two sons of one predeceased
son 5Sj and SS2 and three sons of another predeceased son S,S 1,
S1S2 and SjS3. The property here would be divided into two equal
parts, one each going to the branch of S and S 1. Out of this half
given to the branch of S, his two sons will share equally taking
one-fourth (1/4) each. The half going to the branch of SI will be
taken by his three sons who would take one-sixth (1/6) each.
The shares of each heir would be as follows:
SS, = 1/4
CO — 1 IA
SjS, - 1/6
S,S2 = 1/6
SjS3 = 1/6 If the deceased was a Sunni Muslim all grandsons
would have taken one-fifth (1/5) each following the per capita
succession.)
(ii) If only the husband and a distant kindred are present e.g. son
of a predeceased daughter, then the husband will take half (as
a sharer) as there is no child or child of a son, and the remaining
half will go the distant kindred.
(iii) If no heir is present and deceased dies leaving behind only a
widow, she would take 1/4 of the property as a sharer and 3/
4 as return.
Under Shia law, the doctrine of return is subject to the following rules:
(i) The surviving spouse (husband or wife) is not entitled to any
return if any other heir is present. Presently, the husband and
also his wife can claim the return when no other sharer is
present. Thus, where a Shia female dies and the only heir
present is her husband, he takes 1/2 as a sharer and the remaining
half goes via return. Similarly, where the surviving spouse is a
widow, she is entitled to 1/4 share as also to the rest of the
property via return.
(ii) Mother of the deceased cannot claim the retun in presence of
the father, daughter and: (a) two or more full/consanguine
brothers; or (b) one such brother and two such sisters; or (c)
four such sisters. In such cases, the surplus is taken by the
father and the daughter in proportion to their shares.
(iii) In presence of the full sister the uterine brother/sister cannot
take the surplus by return.
For example, the survivors of a Shia female are her parents F and
, two daughters D, and D 2, and her husband H. Here the shares of
and M would be 1/6 each, that of H will be 1/4, and, two daughters I
and D2 together are entitled to 2/3. The sum total of these shares
Duld be 1/4 + 1/6 + 1/6 + 2/3 = 15/12. The excess share is 3/12 or 4.
This 1/4 would be deducted from the share of the daughter viz. 3 -
1/4 = 5/12. Each daughter will take 5/24.2
FURTHER QUESTIONS
Q.(a) Aziz had two sons Ashraf and Rashid and a daughter Mumtaz. Rashid
died during the life time of his father leaving behind his son Ghulam.
What will be the shares of the descendants of Aziz under the Sunni
law?
(b) X, a Sunni Muslim, dies intestate in 1990 leaving behind his father F,
mother M, widow W, two sons S! and S2, one married daughter D,
one unmarried daughter D1 and a son of predeceased daughter DS
as his heirs. S., became Christian during the life time of X and is
married to W1 and has a son S3. Ascertain the shares of the
aforesaid heirs in X's property.
What will be your answer if D1 is a widow and has a minor son D.,S,
and she is living with X? Will your answer be different if she has an
illegitimate child? What will be your answer if X had two widows?
2. See P. Pradhan Saxena, Family Law II, 3™ Ed., pp. 554-555 (2011).
318 Family Law - II
Q.5(a) X, a Sunni male, died in 2002, survived by widow \N, son S and
son of a predeceased son SS. X left behind properties worth 20
lakhs. Ascertain the shares of the heirs under Sunni law.
Q.7 A, a Muslim male, dies leaving behind his father F, his widow
W, and two daughters D1 and D2. He leaves behind property
worth Rs. five crores. Ascertain the shares of the heirs. What
would be your answer if A was a female and W was the
widower? [D.U.-
2011]
A.7 Doctrines of Radd and Aul
le shares of father F and W (widow) as a sharer in the presence of
the child are: F = 1/6; W = 1/8. In the absence of son, daughters
will also inherit as sharer. If there are two or more daughters as a
sharer, they will collectively get 2/3. Thus, D1 will get 1/3 and D 2
also 1/3.
The sum total of shares of F, W, D, and D2 is: 1/6 + 1/8 + 1/ +
1/3 = 23/24, which is less than 1. Thus, the residue is 1 - 23/24
Q.8 A died leaving behind his father F, mother M and widows W.,
and W2. Ascertain the shares of the heirs under Sunni law.
[C.L.C-1999]
A.8 Shares of Primary Heirs in Absence of Child/Son's Child
he 'father' inherits as a residuary in the absence of a child (son/
daughter) or son's child.
The mother takes 1/3 when there is no child or son's child. But
'there is also spouse (widow/husband) and the father, then only 1/3 f
what remains after deducting the widow's or husband's share. In his
peculiar combination, the mother (even without children) does not et
1/3 of the whole property because in that case father's share would
become half of the mother which is against the general principle that
share of a male should be double the share of a female.
The shares of the heirs (sharers) in the present case will be as
follows:
Widows (W, and W2) = 1/4 (Absence of child); 1/8 each
Mother (M) = 1 - 1/4 (i.e. 3/4) x 1/3 = 3/12 = 1/4 Father (F)
(Residuary) = 1 - (1/4 + 1/4) = 1/2.
Q.9 A Muslim, A, dies and leaves behind his parents F and M and
a widow W and property worth Rs, 10 crores. Discuss who
would get the property and also specify their shares. What
would be your answer, if A was a female and W was the
widower? [D.U.-
2011]
A.9 When A is a Male
Widow (W) = 1/4 (Absence of child)
Mother (M) = 1 - 1/4 (i.e. 3/4) x 1/3 = 3/12 = 1/4
Father (F) (Residuary) = 1 - (1/4 + 1/4) = 1/2.
326 Family Law - II
When A is a Female
Widower (W) = 1/2 (Absence of child)
Mother (M) = 1 - 1/2 (i.e. 1/2) * 1/3 = 1/6
Father (F) (Residuary) = 1 - (1/2 + 1/6) = 1 - 4/6 = 1/3,
/
10 Muslim Law of Wills
■■ ■
[327]
328 Family Law - II
of his property by gift inter vivos, but to prevent him, except for one-
third of his estate, from interfering by Will with the course of the
devolution of property according to the laws of inheritance,
Muslim law of Wills presents a compromise between two opposite
tendencies - namely, one, not to disturb or interfere with the divine law
of distribution of property after death, and two, the supposed moral
duty of every Muslim to make arrangements for the distribution of his
property within the prescribed limits. A Will offers to the testator the
means of correcting to a certain extent the law of succession, and
enabling some of those relatives who are excluded from inheritance to
obtain a share in his property, and recognizing the services rendered to
him by a stranger. But the Muslim law, unlike other personal laws
maintains a very reasonable balance between the law of inheritance and
the devolution of the properties under a Will.
Formality of a Will
(As a general rule, no formality is required for making a Will (Abdul,
Manan Khan v Mirtuza Khan AIR 1991 Pat 155). No writing is necessary
to make a Will valid, and no particular form, even verbal declaration v.
necessary so long as the intention of the testator is sufficiently
ascertained. \
Where the Will is reduced to writing it is called a 'Wasiyatnama.
If it is in writing it need not be signed. It does not require attestation
and if it is attested there is no need to get it registered. Instructions of
the testator written on a plain paper, or in the form of a letter, that in
clear cut terms provide for distribution of his property after his death
would constitute a valid Will {Abdul Hameed v Mahomed Yoonus AlR
1940 Mad 153).
In case, a Will is oral, the intention of the testator should b
sufficiently ascertained. In comparison to a Will in writing which
easier to prove, the burden to prove an oral Will is heavy.
M u s l i m Law of Will 329
attempting to commit suicide, the Will is void. The reason behind this
rule is that where a person has attempted suicide, he cannot be said to
be in his normal disposing state of mind, rather, his mental capacity is
completely disturbed.
A minor is incompetent to make a Will (such a Will is void) but
a Will made by minor may subsequently be validated by his ratification
on attaining majority^ Will procured by undue Influence, coercion or
fraud is not valid, and the court takes great care in admitting the
Will
of a pardanashin lady. Thus, a Will must be executed by a legator with
his free consent.. .
(2) Legatee and his Competence (To whom Will can be made?)
Any person capable of holding property (Muslim, non-Muslim, insane,
minor, a child in its mother's womb, etc.) may be the legatee under a
Will. Thus, sex, age, creed or religion3 is no bar to the taking of a
bequest. Legatee (including a child in its mother's womb) must be in
existence at the time of making of the Will. Thus, a bequest to a person
not in existence ('unborn person') is void.
3. Even a 'non-Muslim' can be a beneficiary under the Will, but he should not be
against Islam. Therefore, a person who renounces Islam and embraces
another religion is not a competent legatee, but a person who was born into
another religion can be a competent legatee provided he is not hostile
towards Islam. See P. Pradhan Saxena, Family Law II, z" Ed., p. 484 (2011).
Muslim Law of Will 331
For example, A makes a Will of his all properties in favour of B. At the time of
making of the Will A has only a house. After sometimes A purchases a garden
and when he dies, he owns the house as well as the garden. B is entitled to
get the house as well as the garden under the Will although the garden was
not owned by A when the Will was executed. The property must exist and
must be in the ownership of the testator at the time of his death.
Muslim Law of Will 333
Upto one- Valid only Valid without Valid without Valid without
third if consent consent of consent of consent of
In excess of of heirs heirs heirs heirs
1/3 -do- Valid only Valid only Valid only
if consent if consent if consent
of heirs of heirs of heirs
Illustration: A, a Muslim dies leaving behind him property of Rs. 4,000. His
funeral charges are Rs. 100 and his debts Rs. 900. The remaining money is
Rs. 3,000 and 1/3 of it is Rs. 1,000 which may be the subject of Will. The
remaining two-third must pass to the heirs of the testator according to law.
Consent of Heirs
• Consent must be of heirs and not of presumptive heirs. Whether a person
is an heir or not, will be determined at the time of the testator's
Muslim Law of Will 335
8. See P. Pradhan Saxena, Family Law II, 2,'" Ed., p. 488 (2011).
336 Family Law - II
Revocation of Will
Muslim law confers on a testator unfettered right to revoke his Will. A
Muslim testator may revoke, during his life-time, any Will made by him-
expressly or impliedly. Thus,, if he sells, makes gift of the subject of
bequest or deals with the same in any other manner like constructing
a house on the piece of land bequeathed earlier, would amount to
implied revocation. For example, where,, the testator gives land to his
friend under a Will but a year later gift the same to his daughter, the
bequest in favour of the friend is automatically revoked.
Where a testator makes a Will, and by a subsequent Will gives the
same property to someone else, the prior bequest is revoked. But a
subsequent bequest (though of the same property) to another person in
the same Will does not operate as a revocation of prior bequest, and the
property will be divided between the two legatees in equal shares. It
may be noted that it is not necessary that for revoking an earlier Will
another Will must be made. A Will can be revoked by a simple and clear
declaration to that effect or by a formal deed of cancellation or
revocation
of Will. .
A Will executed by a person will also be revoked if he loses
his sanity and becomes of unsound mind subsequent to its
execution.
[Note: Shia law gives more extensive power to make a Will in comparison to
Sunni law. Under it, heir's consent may be given before or after the death of
testator. Under Sunni law, heir's consent should be given after the death of
testator (when the rights and claims of the heirs are
338 Family Law - II
FURTHER QUESTIONS
9. See P. Pradhan Saxena, Family Law II, 3'" Ed., p. 485 (2011).
M u s l i m Law of Will 339
How will the bequests operate -(i) under Sunni law, (ii) under
Shia law? [LC. 11-94]
other Illustrations
/ (1) A, a Sunni Muslim makes a Will of half of his properties
to X who is a non-heir. The heirs of A refuses to give their consent. X
would get only 1/3^
( (2) A, a Sunni Muslim makes a Will to X, Y and Z ('non-
heirs') in the following proportion: X: 1/2; Y: 1/4; Z:
1/4
Here, the testator A has bequeathed his whole property. But
without heir's consent, the bequeathable property is only one-third
of the net assets, not the whole. To deduct the excess property
from the shares f X, Y and Z, in proportion of their shares, the
bequeathable property would be taken to be 1/3 as against the whole
(one) and their respective hares would remain unaffected. Thus, the
three legatees would finally get as under:
X: 1/2 of 1/3 - 1/6; Y: 1/4 of 1/3 = 1/12; Z: 1/4 of 1/3 - 1/12
now, under this distribution, the sum total of properties given to X,
Y and Z is 1/3 (1/6 + 1/12 + 1/12) and in this way it does not
violate the rule of 'bequeathable third.' At the same time the
proportion (or the rate) of the shares of property given to each
legatee under the Will, has also not been changed. \
( (3) A Sunni Muslim makes a Will of his properties to X and Y
who are not his legal heirs. His heirs do not approve the
Will. Distribution of property under the Will is as under:
X:
1/2; Y: 1/4.
Here, the total property given to X and Y is 3/4 (1/2 + 1/4), which
exceeds the 'legal third' by 5/12 (3/4 -1/3). This excess property
must be deducted from the share of each legatee. But the reduction of
their shares must be rateably or proportionally. There is a simple
method for this. By taking the ratio of the shares of X and Y, we
find that their shares are in the ratio of 2:1 i.e. 2/3 and 1/3
respectively. Now, without the consent of the heirs, the bequeathable
property is only 1/3. Therefore, the respective shares of X and Y
would be as under:
X: 2/3 of 1/3 = 2/9; Y: 1/3 of 1/3 = 1/9 Thus, we find that total
property given to the legatees is 1/3 (2/9 + 1/ 9) and the ratio of their
shares has also not been disturbed.)
342 Family Law - II
/ (4) A dies leaving behind assets worth Rs. One and a half lakh.
He made a Will giving Rs. 50,000 to his daughter, and Rs.
50,000 to a friend. His wife and son, the other two heirs
refuse to confirm the bequest.
Here the bequeathable limit is Rs. 50,000. As under Sunni law, the
bequest in favour of the heir is not valid unless consented to by the
heirs. Thus, bequest in favour of daughter would be inoperative. The
Will in favour of friend would be valid (being within 1 /3 rd limit). The
widow, son and daughter would inherit from Rs. One lakh, as per the
laws of inheritance. )
/(5) A Sunni Muslim having Rs. One Lakh, eighty thousand, makes a
bequest in favour of three persons A, B and C giving them Rs. 60,000
each (i.e. exact one-third) by the same Will. Sunnis apply the rule of
rateable or proportionate deduction irrespective of whether the amount
given to each of the legatees is an identical one-third or is different vis-
a-vis each other. Here the bequeathable one-third is Rs. 60,000 and Rs.
60,000 each is the amount given to the beneficiaries under the Will. The
legacy of each will be reduced to one-third viz. Rs. 60,000 x 1/3 * Rs.
20,000.)
(ii) Chronological Priority/ Preferential Distribution (Shia Law)
• - According to Shia law, if several bequests are made through a
Will, priority would be determined by the order in which they
are mentioned (e.g. if A mentioned before B, A will get priority)
or by the point of time (bequests prior in date take priority over
those later in date). Thus, legacies take effect in order of
preference.*
legatee mentioned first in the Will gets his share as mentioned under the
Will. After giving his share, the remaining goes to the second legatee.
If there still remains something, it goes to the third and as soon as the
one-third property is exhausted, the distribution is stopped and the next
legatee does not get anything. Thus, here a legatee either gets his share
(as mentioned in the Will) or gets 'some share' or gets nothing at all
Muslim Law of Will 343
her Illustrations
(i) T, a Shia Muslim, executes a Will in favour of three persons, A, B
and C and specifies their shares as: A: 1/12; B: 1/4; C: 1/ 6. The sum
total of all the properties given to these legatees exceeds one-third. T's
heirs refuse to give consent; therefore, the principle of preferential
distribution would be applicable. Thus, A, the first legatee would get
his share 1/12. But there still remains (1/3 - 1/12) = 1/4. This remaining
1/4 which is also the share of B would go to B. After giving the
property to A and B the bequeathable one-third exhausts and therefore
C would get nothing, (ii) A testator (Shia) makes a Will in favour of
his wife, giving her Rs. 30,000 and his friend Rs. 50,000. His total assets
amounted to Rs. 2 lakhs. After deducting the funeral expenses and
payment of debts, the net assets came to Rs. One lakh, eighty thousand.
The heirs did not confirm the bequest, here, a wife is an heir, but under
Shia law, to the extent of one-third, property can be bequeathed to
anyone. It may be noted that consent of heirs is not required under Shia
law, to the extent of one-third, whether property is bequeathed to heir or
non-heir. The bequeathable one-third limit is Rs. 60,000. The amount
given under the bequest is Rs. 80,000. Applying the rule of
chronological priority, Rs. 30,000 will be given to the wife, and the rest
Rs. 30,000 will be taken by the friend. )
344 F a m i l y Law - II
Exception to Priority Rule The priority rule, however, admits an
exception - where there are successive bequests of the exact 1/3 to two
different persons in the
same or successive Wills, the later bequest would revoke the earlier
bequest (the order of reference is reversed). Thus, in the above
illustration, suppose Rs. 40,000 are bequeathed to A, another 40,000 to
B, and still another 40,000 for pious purposes. The bequest for pious
purposes will be fully served to the tune of Rs. 40,000 and A or B will
get nothing. .
A Shia testator makes a Will of 1/3 of his properties to A, and 1/
3 to B. Generally, under the Shia rule, A should get his 1/3 share and
since the legal third exhausts, B should get nothing. But, under the
exceptional Shia rule, B would get 1/3 and the first legatee, namely, A
would get nothing. The reason behind this peculiar rule is that where a
Will is made of exactly one-third, the Shia jurists regard the last Will as
"implied revocation" of the first. However, this exceptional rule
applies only where two or more legatees are given exactly 1/3 each. .
Decision of the case in question
Sunni law. (i) Total net wealth available to M is Rs. 78,000
(excluding Rs. 6,000 for funeral and Rs. 16,000
for debt.).
(ii) The total value of bequests is Rs. 52,000 (bequest
of Rs. 26,000 made for Lord Krishna temple is
void under Muslim law) i.e. two-third of net wealth.
(iii) In the event of heirs refusing their consent, the
bequeathable one-third limit would be Rs. 26,000.
(iv) The bequests will abate rateably - out of the
bequeathable amount of Rs. 26,000, M's wife and
the dancing girl each will get Rs. 13,000.
(v) If heirs give their consent, then M's wife and the
dancing girl could get Rs. 26,000 each.
M u s l i m Law of Will 345
Q.2(a) A Muslim man M executed one Will under which he gave Rs.
60,000 to X, Rs. 45,000 to Y and Rs. 30,000 to Z. His net
assets on the date of his death were Rs. One lakh and thirty five
thousand. Discuss who would get the legacy and what would be
its quantum both under Sunni law as well as Shia law.
that the provisions of the Indian Succession Act shall apply to the
Will of a Muslim who registers his existing marriage under the
Special Marriage Act.
Thus, a Muslim either by getting married under the 1954 Act, or
getting his marriage (contracted under Muslim law) registered under
this Act, can acquire full freedom to dispose of his total property via
will in favour of anyone at his pleasure. He can make a testamentary
disposition of 100% of his property. Further, the testator has complete
freedom to choose the beneficiaries under the Will. He can bequeath the
total property to an heir or to a stranger or for a religious or even a
charitable purpose.
(b) Sunni law:
(i) Net assets of the Legator on his death is Rs. 60,000.
One-third of the net assets (bequeathable property) is Rs.
20,000. Property actually bequeathed as per Will is Rs.
1,80,000 [30,000(X) + 90,000(Y) + 60,000(Z)]. (ii) It is
not possible to bequeath in excess of one-third property (Rs.
20,000) without the consent of rest of the heirs, (iii) Ratio
of allotted share to X,Y and Z is 1:3:2. (iv) Under Sunni
law, the shares of X, Y and Z as per Rateable distribution
method will be: X = 30,000 x 1/3 = 10,000
Y = 90,000 x 1/3 = 30,000
Z = 60,000 x 1/3 = 20,000
But the legator has only Rs. 20,000 as bequeathable property, therefore,
the aforesaid amount of X, Y and Z would further be reduced
proportionately so as to equal to Rs. 20,000. X = 10,000 x 1/3 -
3333.33
Y = 30,000 x 1/3 = 10,000
Z = 20,000 x 1/3 = 6666.66
348 Family Law - II
Shia law. Under Shia law as per preferential distribution method, X will
get Rs. 20,000 i.e. upto one-third of the net estate in preference to Y
and Z and after the exhaustion of one-third of the net estate, no one
will get anything.
(b) Discuss the validity of the following Wills under Muslim (Sunni
and Shia) Saws-
Q.4 Discuss the validity of the following Wills both under the Sunni
and Shia laws:
Q.5 Aziz had two sons Ashraf and Rashid and a daughter Sabina.
Rashid died during the life time of his father leaving behind
his son Ghulam. Aziz executed a Will giving all his property to
Ghulam. Examine the extent to which the Will is valid under
Sunni and Shia laws. [C.LC.-
91]
A.5 Ghulam is not an heir to Aziz. A bequest in favour of a non-heir, in
excess of 1/3, requires assent of other heirs for its validity (Sunni
and Shia laws). If such Will is to operate with respect to his entire
property, the other heirs must consent.
Q.6 Discuss the validity of the following Wills both under the Sunni
and Shia laws:
(b) A, a Muslim has got property worth Rs. 10 lakhs. He has to pay
Rs. one lakh to his creditors and Rs. 50,000 to his wife as
dower. He bequeaths his entire property by Will in favour of his
son. A dies without discharging his debts. Whether the son will
succeed?
A.6 (a) The son of a predeceased son (D) is not an heir. Therefore,
the bequest to him is valid to the extent of one-third without the
consent of heirs (B and C) both under Sunni and Shia law. (b)
The Will made by A is not valid (both under Sunni and Shia
law) because it exceeds the bequeathable one-third and also
352 Family Law - II
[353]
354 Family Law - H
2. Explain in detail the requisite of "delivery of possession" under the Muslim law
of gifts. [L.C.II-96 (Supp.)]
Muslim Law of G i ft s 359
gift of his properties for the benefit of his minor daughter and her
adult husband through the medium of a trust. There was no formal
delivery of possession and it could not be proved as to who
accepted the gift on behalf of the minor daughter. Held that the gift
was void.)
w (ii) Gift by husband to wife and vice versa - No transfer of
possession is required in such a case. The reason behind
this rule is simple. Joint residence is an integral aspect of
this relationship. The fact that the husband continues to live
in the house after donation and receives the rent thereafter,
will not invalidate the gift as it is presumed that such acts of
the husband, after the gift, are on behalf of his wife and not
on his own account
In Fatmabibi v Abdul Rehman (AIR 2001 Guj. 175)(the husband
made an oral gift of a house to his wife. Later the deed was also
registered. The step-son, lived with his wife in the gifted house,
challenged the validity of the gift on the ground that there was no
delivery of possession of the house. It was held that, oral gift in
presence of two persons amounts to a declaration; mentioning the
name of the wife in the registration deed amounts acceptance; and
mutation in the name of the wife at the instance of the wife amounts
sufficient delivery of possession keeping in view the relationship
between the parties. In Kabisa Umma v Pathakla (AIR 1964 SC
275), held that where a gift was made by a husband to his minor
wife by a registered deed, and possession handed over to the minor
wife's mother, the gift was valid. Since the wife had no father or
grandfather alive, nor any executor, the delivery of the gift deed to
her mother instead of the minor wife herself did not invalidate the
gift, as the intention was well established^
Donor and done residing in the same house which is to be gifted -
Where the donor and the donee both~resi3e in the "property,
the physical departure or formal entry is not necessary. The
donor, who is owner of the house, may complete the gift
without asking the donee first to vacate the house and just
after that, to take possession as a donee
364 Family Law - II
But, there must be some 'overt act' or apparent activity on the part of
the donor from which his real and bona fide intention to transfer the
possession can be inferred. ln Humera Bibi v Najmunnissa (1905) 28
All 17, a Muslim lady executed a gift-deed of her house in favour of
her nephew who was living with her in the same house. The property
was transferred in the name of the nephew but she continued to live
with him as before. But after the gift, the rents were collected in the
name of the donee. Held, that the gift was valid although there was
neither any physical transfer to the donee nor any physical departure of
the donor from the house.^
, (iv) Where the donee is in possession - Where the donee is already
in possession of the property to be gifted, delivery of possession
by the donor after taking it from the donee is not necessary
(e.g. case of a bailee, mortgagee or trustee). Donor's mere
declaration of having gifted it to the donee will suffice
But if the owner of a house wishes to make a gift of it to his rent-
collector, some overt act of transfer of possession is necessary; for the
rent-collector is not in possession of the house, he is merely an agent
and although he may have certain rights he is not in possession of the
property (Mulla).
. (v) Gift by one co-sharer to another
Void Gifts
The following gifts cannot be validly made. They are void.
,(1) Gifts to unborn person - A gift to a person not yet in existence
at the time of making it is void. The reason is that donee's
acceptance is one of the essentials of validity of a gift and if
the donee is not in existence his consent cannot be got. A gift
to unborn person is void but life interest in favour of person
Examine the validity of the following gift: Habib makes a gift of his house to his
nephew, Imraan who is staying with him. However, there is no deliver/ of
possession of house but rent receipts are issued in the name of Imraan.
[D.U.-2009]
Mus l i m Law of G i f t s 365
367
6. The strict application of the doctrine invalidates the gifts of co-owned properties
and operates disadvantageously in most of such cases. Because of this
reason, the Hanafi jurists themselves have evolved a method by which the
mischief of the doctrine could be overcome, it must always be remembered
that the doctrine of Mushaa only renders the gift irregular (fasid) but not void
(batil) and it is therefore possible to employ a device in order to get over it.
The device to overcome the doctrine of Mushaa is simple. The donor may
sell the undivided share without any prior partition and may return the
consideration (price) immediately to the donee. Legally, this transaction
would be a sale in which the doctrine is not applicable; but, in effect it would
mean a gift.
370 Family Law - II
Revocation of Gift
r Hiba once validly made, is generally irrevocable. Before the
delivery of possession, the gift is not complete and the donor
has unrestricted right to revoke it. After the delivery of
possession, the donor has a right to revoke the gift either with
the consent of the donee (in case the gifted property still
continues in the possession of the donee in original form) or by
a formal decree of the court.
However, the following gifts are absolutely irrevocable -
when the
^donor/donee is dead, when the donor/donee related by blood or
marital relation, when the gifted property is sold or gifted or is
lost, destroyed or changed, when the gift is sadaqah or when
anything has been accepted in return. )
374 Family Law - II
FURTHER QUESTIONS
Q.1 Discuss the validity of the following gifts under Muslim law:
behalf of the minor. Also, the donee who had already attained puberty
(fifteen years) i.e. the age of discretion is competent to accept the gift
herself.)
8. Examine the validity of the following gift: Zakir, makes a gift of a house in
favour
of his wife Zainab. The property so gifted continues to be under the
management
of Zakir No mutation of the names was effected. [D.U.-
200&]
[Note: Where the donor and donee reside together an overt act is necessary
and this rule applies between husband and wife. In case of gift by the
husband to his wife, of the house that they were occupying, there is
constructive delivery of possession and acceptance ana the gift (even if oral)
was valid - Fatmabibi v Abdul Rehman Abdul Karim AIR 2001 Guj 175]
378 Family Law - II
of the two minors were also living with him. However, these
facts are not sufficient to constitute the grandfather a guardian
within the meaning of the exception so as to make a gift by him
to them complete without any delivery of possession or
relinquishment of control over the property to him.. The father
of the minors was in a position to exercise his rights and
powers as a parent and guardian and to take the possession of
the property on behalf of his children.]
Thus, in the cases in question, the gift is invalid.]
Q.2 Discuss the validity of the following gifts under Muslim law:
3ut where the deed contained no recital that possession was given and
t was not delivered to the nephew and the lady continued to pay
municipal taxes, the gift was held invalid [Qamar-ud-din v Mt. Hassan
Jan (1935) 16 Lah 629]. The donor must divest himself of all control
in such cases. In the case in question, the gift made by D is valid.
A Muslim donor makes a gift in favour of the donee living with
him with the help of a gift deed containing a declaration that he was
transferring the property in favour of the donee. After the execution of
the gift, if the donor:
(i) makes a declaration in presence of a number of friends, and
entrusts the management of the property to the donee; or
(ii) hands over the papers of the property to him and authorizes
him to effect a mutation of names; or
(iii) authorizes the donee to take possession of the property; or
(iv) the donee starts paying municipal taxes in his name; or
(v) the property is transferred in favour of the donee and he
starts collecting rent in his name;
the gift would be complete despite no physical delivery of possession.
In Abdul Rahim v Sk Abdul Zabar (AIR 2010 SC 211), a Muslim
father executed a gift deed of his properties that he had purchased in
favour of his son in 1973. In 1975, he filed an application before the
Tehsildar for mutation of his son's name in his place as the owner. His
other son challenged the validity of this gift on the ground that since
the possession of the property was not handed over to the younger son
(donee) by the father, the gift was void. The main argument of the
donee was that as he was collecting rent from the tenants of the land
in his own capacity and not as an agent of the original owner of the
property, and an order of mutation was passed in his favour at the
behest of the donor, the requirement of delivery of possession of the
property was met with for completion of the gift.
The High Court held that as the son was collecting rent even
before the death of the donor, there was no material to show that the
father had divested himself of the title of the said property. The Apex
Court, however, accepted the claim of the son and held that the gift
382 Family Law - II
Q.3 Discuss the validity of the following gifts under Muslim law:
(ii) A gift made by Sultan to the child in womb of his sister/a gift by
M in favour of his daughter's son who is born three months
after the date of gift.
(iii) A widowed Muslim along with her minor son was living with her
father and not with her father-in-law. The father gave the
M u s l i m Law of G i f t s 383
residential house under a deed of hiba to his daughter's son.
He delivered the deed to his daughter.
Because of that with the proof of death its causation and the
condition of person have its own and clear significance. Death is the
certain and central fact. Proximate danger of death in an illness it is
common experience, casts ominous elongated shadows discernible
along the lines of conduct of the person who is subject to the process
of dissolution of life. In that there is all the apprehension of
withering away of human faculties and rational capacities. Mind
under such condition would get seized by the fright of the final full-
stop and all winged and animated spirits involving free will clarity
and reasonable and purposeful action may be clipped and caught in
the mesh of progressing paralysis. The apprehension that the curtain
is wringing down on the life in such a state would easily grasp all
the consciousness as the physical malady surely affects every
faculty clouding the will and reason of human being. It is no doubt
that when such preponderance of an onset of physical and
psychological atrophy operating over the field of free and balanced
will can be inferred, the dispositions cannot be validated. It is
conceivable therefore that the pragmatic philosophy of Mohamedan
Law thought it wise to put under eclipse the acts and dispositions
done upon the promptings of a psychosis indicating apprehension or
clear fear of death either induced by or during the last suffering or
illness of the person dying. Law assumes that apart from the
dominant danger of loss of free will, such person may clearly lose
touch with his spiritual dictates and may hasten even against the
need of his clear obligations and interests to do the things which he
might not have normally and in times of health done.
All the circumstances surrounding the disposition that the
physical and psychological condition of the person afflicted, the
nature of the malady and the proximity of death to the actual act of
disposition and further the fact of death, are all the matters which
should furnish to the Court as a feedback to find out as to whether
the disposition is within the mischief of this doctrine. Once
probabilities hold out that there was even some degree of subjective
apprehension of death in the mind of the sick person who eventually
died, suffering from his last illness the subjective test implicit in
the doctrine is satisfied both on principle and policy.
Once *I-»e possihility otf~
Muslim Law of G i f t s 391
clearly the burden shifts to that party who takes under the
disposition or sets up the title on its basis. Such party may
prove the facts and circumstance which would enable the Court
to hold that the disposition itself was not made while the suffering
person was under the apprehension of death for, as said earlier,
there may be several answers to the problem and mere accident
of death of the person making the disposition would not be
enough. An old man meeting natural death may be well disposed
to see that the matters are settled in his lifetime and such
dispositions would be perfectly valid and would not answer marz-
ul-maut. It is, therefore necessary for the party setting up the
disposition to rebut the proof that may be indicative that the
disposition is within the mischief of marz-ul-maut. That cannot
be done by merely relying on the abstract doctrine of onus of
proof or insisting upon the evidence of medical expert not
tendered by the opposite party. In a given case such evidence
may not be available at all.
The court held: It is thus obvious that if there is preponderance
of probabilities indicating that the gift was made under the
apprehension of death by the deceased it is invalid under the law
of marz-ul-maut. All the established facts in the present case
indicates that the gift is within the law of marz-ul-maut as understood
by the Muslim law precepts and cannot be questioned.]