Testamentary disposition of coparceners

By GAUTAM JAYASURYA 2ND YEAR LAW B.A(Hons) LLB RAJIV GANDHI NATIONAL UNIVERISTY OF LAW PUNJAB PATIALA INDIA EMAIL: goutamjay@gmail.com Twitter: twitter.com/goutamjaybe

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CONTENTS

1. INTRODUCTION TO JOINT HINDU FAMILY AND THE INFLUENCE OF COPARCENARY……………………………………………………………….(5) 1.1 Joint Hindu Family 1.2 Coparcenary 1.3 Genesis of Coparcenary 2. COPARCENARY PROPERTY AND SEPARATE PROPERTY: A MULTIFARIOUS APPROACH……………………………………………………………………..(6) 3. MANAGEMENT AND ENJOYMENT OF COPARCENARY PROPERTY…..(9) 4. COPARCENAR’S POWER OF ALIENATION……………………………..….(11) 4.1 Types of Testamentary Disposition 4.2 Deed of Will 4.3 Deed of Gift: Not valid -1884 4.4 Deed of Gift: Valid, if Consented -1957 4.5 Deed of Gift: Valid -1987 4.6 Sale and Mortgage 4.7 Dayabaga School 4.8 Sole Surviving Coparcener

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3|Page 4.9 Right to Challenge an Alienation

5. JUDICIAL PRONOUNCEMENTS…………………….…………………..(20) 6. CRITICAL ANALYSIS OF TESTAMENTARY PROVISIONS IN HINDU SUCESSION ACT, 1956………………………………….…………………(23) 7. CONCLUSION………………………………………………………………(25) 8. REFERENCE…………………………………………………………………(26)

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CHAPTER 1 Introduction to Joint Hindu Family and the influence of coparcenary

JOINT HINDU FAMILY A join Hindu family consists of all persons lineally descended from a common ancestor, including their wives and unmarried daughters1. An undivided family is ordinarily a joint one not only in estate, but also in food and worship2. After the separation of estate to the members of the joint family, the family ceases to be a joint one. The Hindu family should at least constitute two members3. Even if the total number of the male coparceners is temporarily reduced into a single individual, the character of the property remains the same. COPARCENARY A Hindu Coparcenary is a much narrower body than the joint family, which is purely a creation of law. The conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from, and inclusive of, such ancestor. It includes only those persons who acquire by birth an interest in the joint or Coparcenary property4. These are sons, grandsons and great grandsons of the holder of the joint property for the time being. After the amendment of the 2005, a daughter has been included as a coparcener along with the sons of the coparcener. Difference between ancestral property and separate property is the interlinked with the concept of Coparcenary. The property jointly inherited by a Hindu by birth along with his sons, grandsons and great grandsons from his

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Commissioner of Income-tax v Luxminarayan (1935) 59 Bom 618 Sri Ragunada v Brozoa Kishor (1876) 49 Mad 98 3 Krishna Prasad v CIT Banglore AIR 1975 SC 498 4 Surjith Lal Chhaabda v. CIT Bombay AIR 1976 SC 109

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5|Page male lineage of ancestors is ancestral property5. All other property is included under separate property.

GENISIS OF COPARCENARY (Consult the illustration given below) A Hindu male A, with self acquired property without the help or financial support of his ancestors has a son B. B with his three sons or daughters C, D and E and with their children F, G and K. The main family will constitute the above mentioned members i.e. up to four generations. I, J and K constitute branch families. All these families have one common ancestor A. On the death of A, I and J will be added to the coparcenary. On A’s death the self acquired property of A during A’s lifetime is inherited by B. B’s three children C, D and E takes a vested interest in the property by reason of birth. This property inherited by B will become ancestral property in B’s hands. After the death of A, his children C, D and E and their children F, G and H are coparceners as regards the property.

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Sundar Lal v. Chhittar Mal (1907) 29 All 1 Table showing the illustration of a coparcenary in the Hindu family, available at <http://www.payer.de/dharmashastra/dharma0915.gif >(last viewed April 27, 2010).

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6|Page It is to be noted that coparcenary is not always limited to four degrees from common ancestor. A member of a joint family may be removed more than four degrees from common ancestor, and yet he may be a coparcener. But the rule states that partition can only be demanded by any member of a joint family, who is not removed more than four degrees from the last holder. On the death, however of the last holder, he would become a member of the coparcenary, if he was fifth in descent and would be entitled to a share in the partition. Whenever a break of more than three degrees occurs between any holder of the property and the person who claims to enter the coparcenary after his death, the line ceases in that direction.

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CHAPTER 2 Coparccenary and separate property
Section 30, Hindu Succession Act entitles a Hindu to make a testamentary disposition of his interest in the joint family property. It doesn’t enable him to alienate his interest by way of gift ir by any other mode, say sale mortgage, lease, exchange etc. These are the inter vivo transactions. They differ from a will. Therefore where Hindu law refuses any Hindu the permission to alienate his interest in the joint family in any of these modes, the restriction cannot be taken as removed by implication from section 30 of the Hindu Succession Act. A male member of the Mitakshara coparcenary was not authorised to make a will of this interest in the joint family property before the commencement of HSA. The reason for the disability was that on the death of a coparcener his interest in the coparcenary property devolved by survivor ship on the surviving coparceners. There was nothing on which the will could operate7. Any provision of this Act or any other law which renders such property incapable of being disposed by will, stands overruled by this section. All those properties of the deceased intestate that is heritable come under the term ‘property’ includes under the Act. It includes his selfearned property as also his share in the Mitakshara coparcenary if he is survived by any of the female heirs or daughter’s son as mentioned in Class I of the Schedule. It also includes the property that he might have inherited from his grandfather or father after the Act came into force8.

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Lakshman Dada Naik v. Ramchandra Dada Naik (1881) 7 IA 181 Extract from, Intestate Succession: Devolution Of Property After The Death Of A Hindu Without A Will, Visited on May 5th at <http://www.legalserviceindia.com/article/l258-Intestate-Succession.html>

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CHAPTER 3 Management and Enjoyment of Coparcenary Property
Although the preamble to the Hindu Succession declares that the act amends and codifies Hindu law of intestate succession, yet third chapter deals with the testamentary succession not implidly but boldly and to some extends radically. The effect of this provision is that when a person bequeaths his or her property by will, the succession under the act is excluded and the property passes to the testamentary heirs9. Where a Hindu dies after the commencement of the Amendment Act 2005, his interest in the property of the joint Hindu family governed by the Mithakshara Law shall devolve by testamentary or intestate succession and not by survivorship and the coparcenary property shall be deemed to have been divided as if a partition had taken place. Any property to which a female Hindu becomes entitled to under this Amendment Act 2005, shall be a property capable of being disposed of by her by testamentary disposition i.e. by way of Will.

CHARACTERISTICS OF THE COPARCENARY PROPERTY • • Unity of ownership: The ownership of property is vested in the whole body of the coparceners. In determinability of shares: The interest of a coparcener in the property is fluctuating and is capable of being enlarged by deaths in the family and liable to be decreased by births in the family. • Community of interest: No coparcener is entitled to any independent and exclusive interest in the coparcenary property nor is he entitled to the exclusive possession of any part of the coparcenary property. His right is that of an undivided interest. • • Rights by birth: Coparcenary members acquire interest in the property by birth under Mithakshara law while under Dayabhaga, nobody inherits any interest by birth. Devolution of survivorship: One of the interesting features of Mithakshara coparcenary is that on the death of a coparcener, his interest in the property passes on to other
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Sadhu Singh v. Gudwara Sahib Narike (2006) 8 SCC 75

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9|Page coparceners by survivorship (i.e. to the members who are alive). In Dayabhaga, the property devolves on the coparceners on the death of the holder. ELEMENTS OF A COPARCENARY PROPERTY • Ancestral property: The property which descends from father, grandfather or father’s father’s father. • • Property jointly acquired by the members of the joint family of HUF nucleus Separate property of a member donated to the joint cause with the intention of abandoning all his separate claims on it, which becomes the property of joint family • Property acquired by all or any of the coparceners with the aid of joint family funds

THE RIGHTS OF THE COPARCENER ENJOYS IN RESPECT OF COPARCENARY PROPERTY. The rights are: 1. Community of interest and unity of possession of coparcenary property, 2. Share of income, 3. Joint possession and joint right of maintenance out of the family estate, 4. right to enforce partition, 5. Right of survivorship.

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CHAPTER 4

Coparcener’s power of alienation
Alienation is the capacity of a legal person to transfer a property or a property right to be sold from to another. Restraints to alienation can be seen laws across the globe. In India, these restraints are mostly seen in personal law concerning the testamentary succession of property. Hindu Coparceners are a specific group of people, who according to Mitakshara law are not allowed to alienate their joint family property. To unearth the logic behind this legal fiction, it is necessary to trace back the history of Smritikars in Hindu law. Smritikars were those people who documented the customs of different communities and emphasised that codes of morality are not fixed by some divine authority, but must evolve with respect to the changing requirements of generations and communities. They provide the commoners a code of conduct which is considered to be the most authoritative of all. Even though they didn’t hold any punitive powers, their influence depended solely on the voluntary internalisation of such value systems by the groups to which they addressed themselves to, and people's respect for their judgment10. Smritikars went on to state that the essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. TYPES OF TESTAMENTARY DISPOSITION Transfer or gifting of any property under the terms of a will by a testator is called a testamentary disposition. The term ‘testament’ is derived from testatio mentis, it testifies the determination of the mind. It is the legal declarations of a man’s intentions which will be performed after his death. Five types of testamentary disposition are widely recognized, which include, i. Gift: Gifting in simple terms is defined as the legal transferring of assets to one person to another. ii. Legacy: Testamentary gift of personal property, traditionally of money but may be real or personal property11.
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Madhu Kishwar, From Manusmriti to Madhusmriti Flagellating a Mythical Enemy, The education council on Indian traditions., visited on April 27, 2010 < http://www.infinityfoundation.com/ECITmythicalframeset.htm> 11 Legal Estate Definition, Business Dictionary .comViewed at 24th April 2010, <www.businessdictionary.com/definition/legal-estate.html>

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11 | P a g e iii. Life estate: A concept used in common and statutory law which designates the ownership of the land for the duration of a person’s life. In legal terms it is an estate in real property that ends at death12. iv. Demonstrative legacy: A gift of a specific sum of money with a direction that is to be paid out of a particular fund13. DEED OF WILL The law of coparcener’s power of alienation is the product of judicial legislation. The relaxation of the old rule was done in section 30 of the Hindu Succession Act, 1956. Section 30 confers a right upon every Hindu to dispose of his property by a will or by any other testamentary disposition. The expression ‘Will’ has been defined by section 2(h) of the Indian Succession Act, 1925 as, ‘The legal declaration of the intention of a testator with respect to his property which he desires to be carried to effect after death.’ The present section says that the disposal of property by will has to be made in accordance with the provisions of the Hindu Succession Act, 1956. It permits a male Hindu to dispose his will in a Mitakshara coparcenary property. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a Will the Interest of a male Hindu in a Mitakshara coparcenary property. For some time a notion existed that this provision granted a Hindu coparcener the right to dispose of his share in the coparcenary property by a will, which was against the tenets of the normal Hindu law relating to Hindu coparcenary property. But the truth is although Section 30 makes a striking departure from the existing law governing coparceners, it does not destroy the existence of a coparcenary, but all that it does is to grant the right of testamentary disposition to a Hindu coparcener which he did not enjoy earlier to this enactment. ESSENTIALS OF A WILL
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Will (law), Absolute Astronomy,Viwed at 27th April 2010, <http://www.absoluteastronomy.com/topics/Statute_of_Uses> 13 Supra Note 9

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12 | P a g e • • • Legal declaration Disposition of property Takes effect after death

CLASSIFICATION OF WILL AND GIFT IN HINDU LAW There are certain restrictions on the members of a coparcenary, one of them being that a coparcener cannot dispose of his undivided interest in the coparcenary property by gift nor can he alienate his interest even for value except in Bombay, Madras and Madhya Pradesh. The Legislature did not, therefore, deliberately provide for any gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School of Hindu Law, is that a coparcener can dispose of his undivided interest in the coparcenary property by a Will, but he cannot make a gift of property, not even of his own interest in the property. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property14.A coparcener, who has attained the age of majority with a sound mind, can make a will in the presence of two witnesses to dispose off his moveable/immovable property. The testament will only come to effect after the death of executant and subsequently property will go to the beneficiaries. Gifting would give effect to testament immediately. Under section 30 of the Hindu Succession Act, 1956 a coparcener may dispose of his undivided interest by will. It is a settled law that a coparcener cannot dispose of his undivided interest in the joint family property by gift inter vivos.

RESTRICTIONS ON A WILL (Acc. to Indian Succession Act, 1925) • • •
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Transfer to an unborn is invalid - S.113 Transfer made to create perpetuity - S.114 Transfer to a class some of whom may come under above rules. - S.115

Sridhara Babu, Karnataka Land Laws, Viewed at 28th April 2010, <http://karnatakalandlaws.blogspot.com/>

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13 | P a g e • Transfer to take effect on failure of prior Transfer. - S.116

INVALID WILLS (ACC. TO Indian Succession Act, 1925) • • • • Wills invalid due to fraud, coercion or undue influence - S.15, 16,17 Wills Void Due To Uncertainty - S.89 Will Void Due To Impossibility Of Condition - S. 124 Will void due to illegal or immoral condition - S.127

DEED OF GIFT: NOT VALID - THE CASE OF Baba v. Timma (1884) The personal Law of the Hindus governed by Mitakshara school of Hindu Law is that a coparcener can dispose of his undivided interest in the coparcenary property by a will but he cannot make a gift of such interest. In the leading decision on the point is the case of Baba v. Timma15, where it has been held that a Hindu father, if unseperated, has no power, except for purposes warranted by special text, to make a gift to a stranger of ancestral estate, movable or immovable. In that case, the gift was made by the father to a stranger to the detriment of the son’s right in the property gifted. It was held that under the Hindu Law a voluntary alienation by gift of joint family property could not be made by an undivided coparcener, unless permitted by an express text. Thus, the cumulative effect, of Baba’s case is that a coparcener cannot make a gift of his undivided interest in the coparcenary property either in favour of a stranger or in favour of his relations16. DEED OF GIFT: VALID IF CONSENTED – THE CASE OF A.Perumalakkal v. Kumaresan Balakrishnan and Ors (1967) A gift by a coparcener to another coparcener is not valid, as are gifts without the consent of the coparceners, but valid if done is the only other coparceners consent to the arrangement, which they may well do by their mere acquiescence and adopting the transaction. The cases bearing out
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ILR ( 1884 ) 7 Mad 357 ( FB ) Ponnusami v. Thatha and Ors., ILR 9 Madras, 273; Ramanna v. Venkata, ILR 11 Madras 246; Rottala Rungunatham Chetty v. Pulicat Ramasami Chetti, ILR 27 Madras, 162; Mayne’s Hindu Law, Eleventh Edition, Article 382 and Mulla’s Hindu Law, Fiteenth Edition, Article 258, referred to.

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14 | P a g e of this are numerous17. In the leading cases of G. Suryakantam v.G. Suryanarayanamurthy and Ors18and A.Perumalakkal v. Kumaresan Balakrishnan and Ors19 it was decided that by an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. This legal proposition was further elaborated in the case of Babu Mother Savavva Navelgund and Ors. v. Gopinath20 which said that an individual member has no definite share in the coparcenery property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. Even though the Privy Council recognized alienations by gift in the case of Suraj Bunsi Koer v. Sheo Proshad Singh and Ors21, such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family. According to the old law, alienation by gift of undivided interest by coparcener is not permissible. The legal aspect on this Court has now been finally settled by the Supreme Court in the landmark case of Thamma Venkata Subbamma v. Thamma Rattamma22.

DEED OF GIFT: HELD VALID – THE CASE OF Thamma Venkata Subbamma v. Thamma Rattamma (1987) In the case of Thamma Venkata Subbamma vs. Thamma Rattamma23supreme court reversed the decision in which, the respondent executed a deed of settlement which was a deed of gift in purpose to in favour of another coparcener (his brother) conveying his entire undivided interest in the coparcenary but reserving a life interest to himself and also providing that after his death the other coparcener should maintain his wife. In a suit for partition and recovery of the property filed by the widow of the coparcener who executed a deed of settlement on the ground that the gift deed was a void document under the Hindu Law, the Trial Court held that the deed of settlement was void and inoperative under the Hindu Law in the absence of consent of the other coparcener. On appeal the High Court held that the deed of settlement was valid. In this appeal
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Seth Lakshmi Chand v. Mt. Anandi, (1926) AIR P.C 54, Gunfayya Hammant v. Shriniwas Narayan (1937) AIR Bom. 51 18 AIR 1957 AP 1012 19 [1967] SC 560 20 AIR 2000 Kant 27 21 ILR 6IA 88 22 AIR 1987 SC 1775 23 Supra. Note 20

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15 | P a g e by special leave the question for consideration was whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not. Respondents argued that it was a case of renunciation or relinquishment by Respondent of his interest in favour of his brother and his sons. It was the intention of the donor that the property might be enjoyed by his brother and his sons and, excepting that the donor had reserved to himself a life interest, presumably for his maintenance, he gifted his entire interest in the coparcenary property to his brother. The gift should be construed as relinquishment or renunciation of his undivided interest by the donor in favour of the other coparceners. Although the gift is ostensibly in favour of his brother (beneficiary), the donor really meant to relinquish his interest in the coparcenany in favour of both his brother and his sons. The gift was, therefore, valid construing the same as renunciation or relinquishment by respondent of his interest in the coparcenary and, accordingly, the consent of other coparceners was immaterial. In the result, the conclusion arrived at by the High Court was affirmed by Supreme Court though on a different ground. Dismissing the appeal by the widow, it was held by Supreme Court that a gift made by the coparcener to his brother should he construed as renunciation of his undivided interest in the coparcenary in favour of his brother and his sons, who were the remaining coparceners. A gift was, therefore, valid and consent of other coparceners was immaterial. SALE AND MORTAGE According to Bombay, Madras and Madhya Pradesh high courts a coparcener has power to sell, mortgage or otherwise alienate for value his undivided interest without the consent of other coparceners24. In the rest of Mitakshara jurisdiction such alienations are not permitted and a coparcener has no power to alienate his undivided interest by sale or mortgage, without the consent of other coparceners25. DAYABAGA SCHOOL Under Dayabaga law, since every coparcener has an ascertained and specified share, he can alienate his value or gratuitously. Obviously he can dispose of his own share and not of others except with their consent. He can also lease out his portion of estate.
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Pandu v. Goma AIR 1919 Bom 84 Lakshmi v. Kala AIR 1977 All 509

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16 | P a g e SOLE SURVIVING COPARCENAR A sole surviving coparcener has full right of alienation of the joint family property, but if at the time of alienation another coparcener is in the womb, on his birth, he can challenge such alienation. When the property passes on to the sole surviving coparcener, it assumes the character of separate property as long as he doesn’t have a son. The sole surviving coparcener has the full power of alienating the property the way he likes, by sale, by mortgage or gift since at the time of alienation there is no other member who has joint interest in the family property26. Such alienation cannot be challenged by a subsequently born or adopted son. But if another member was in the womb of his mother at the time of alienation, the sole surviving coparcener doesn’t have the power of alienation, ad if alienation has been made, such a member can challenge the alienation or he may ratify it on attaining majority. This power is not fettered by the contingency of an adoption being made by a widow in the family, a contingency which may operate at all.

RIGHT TO CHALLENEGE AN ALIENATION An improper alienation by karta is voidable at the instance of the other coparceners. It is now a settled position of law that an alienation made by the karta made by the karta without legal necessity or benefit of estate or in discharge of indispensable duties is not void but merely voidable at the instance of coparceners27. When a karta or a coparcener or the sole surviving coparcener oversteps his power for alienation the alienation can be challenged. It can be challenged the moment the person entitled to challenge comes to know of it and till it is not barred by limitation. Whenever alienation is challenged, the burden of proof is on the alienee to show it was for a valid purpose. A stranger who is a purchaser of a coparcener’s interest may challenge an improper alienation. But an alienating coparcener cannot challenge his own alienation: this is based on the principle that a grantor cannot derogate from his grant28. A suit for injunction also lies for preventing an impending alienation29. In Bombay and Madras, when
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Guramma v. Mallapa AIR 1964 SC 510 Raghubanchamni v. Ambika Prasad AIR 1971 SC 1971 28 Bharat Singh v. Jeobodh Lal AIR 1934 All 891 29 Shiv Kumar v. Mool Chand AIR 1972 P.&H. 147

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17 | P a g e alienation is challenged by the coparcener, it will be set aside only to the extend of their interest in joint family property, as under these schools a coparcener has power of alienating his undivided interest by sale or mortgage30. The Jammu and Kashmir High Court has expressed the view that when alienee has the possession of the alienated property, the coparcener cannot sue for a mere declaration that alienation is void. He must also sue for the consequential relief of possession31. It is also settled law that a coparcener who is in the womb of his mother at the time of alienation can get the alienation set aside after his birth. If alienation is made by a father who has sons and before all the sons die another son is born to him, then even after the death of every son existing at the time of alienation, subsequently born child can challenged the alienation, provided that the right is not barred by limitation. The overlapping of lives gives him right32. It is necessary that at the time of his conception there must have existed an unexpired right among the other coparcener to challenge the alienation. It is not necessary to take recourse to court if law of getting it declared void. A coparcener may unequivocally repudiate. He may file a suit to get it declared null and void33. Alienation is voidable, such as alienation by karta without legal necessity or benefit of estate34. A voidable alienation is valid as long as it is not challenged. The limitation may perfect the title of alienee. Any coparcener may file a suit to get the alienation is void in its totality. His right is only to sue for partition and he is only entitled to mesne profits from the date when specific allotment of property is made in his favour and not forms the date of purchase or suit partition. When karta makes a sale for the satisfaction of his personal debts, the vendee has no equity.

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Marrapa v. Rangasami (1990) 23 Mad 89; Ramapa v. Yellapa Air 1928 Bom 150 Gian Chand v. Krishen Singh AIR 1978 J & K 16 32 Shivaji v. Muralidhar AIR 1954 Bom 386 (FB) 33 Krishnaian v. Gopalkrishna AIR 1974 SC 1911 34 Raghubanchamani v. Ambika AIR 1971 SC 776

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CHAPTER 5 Judicial Pronouncements
Shripad gajanan suthankar vs. Dattaram kashinath suthankar and ors 1974 AIR 878 This was a case of the rights of the adoptee under the adoption made after the partition and a deed of gift to one of the coparceners. First defendant was one of sons of the testator. The other son died leaving his wife and daughter. A partition was made between testator and his sons in 1944. Allotment for residence and maintenance of K’s widow was made. Then the testator gifted away his share to the son of first defendant. After the Hindu Succession Act came into existence in 1956, the widow adopted her daughter’s son. She filed a suit for a fresh partition claiming a half share of the entire property ignoring the earlier partition and gift. A son adopted by a widow of a deceased coparcener cannot claim the joint family property in the hands of a transferee from the heir of the last surviving coparcener, even though the transfer took place before the adoption. The Supreme Court held that partition should be remade and the plaintiff is awarded 1/3rd of the total property that was partitioned. The property that was gifted to the defendant is excluded from partition. The Court made following observations: 1. The doctrine of relation back will not extend to a case where a transfer has already been made either by the sole surviving coparcener or by his heir. 2. The principle is that when a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, no rights of a son

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19 | P a g e who is subsequently adopted can affect that portion which is disposed. Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son. 3. This rule was laid down to make sure that the adopted son can only claim a share as if he were begotten and alive when the adoptive father breathed his last. Lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law.

Kokila v. Swathanthira 2003 Mad SCC 69 In this case, question before the court was that whether the testamentary disposition of the father amongst his sons and their acceptance of the will would anyway affect the survivorship. In the present case as the will was executed before the existence of the act, the Will left by father is not valid in the eye of law and that Will does not have the effect of destroying the right of survivorship. Sec.30 of Hindu Succession Act, 1956 is prospective. It cannot validate the Will made by father, who died prior to coming into force of the Act. Thus the property with the father was devolved upon the sons by way of survivorship. Pavitri Devi And Anr. vs Darbari Singh And Ors 1993 (3) ALT 25 SC One Brahmadeo Singh, the son of Tuso Singh filed partition Title Suit against his brothers and their heirs claiming 1/6th share in the coparcenary properties mentioned in schedules attached to the plaint. The trial court dismissed the suit. The appellant, Pavitri Devi, filed an application for substitution of her and her son as legal representatives. Her claim has been founded on two grounds, namely as the daughter of Brahmadeo Singh as well as the registered gift deed Ex.2 dated August 5, 1980 executed by her father giving his entire share in the joint family property and put them in possession of 9.96 acres of land. Appellants contended that Brahmadeo Singh had power to dispose of his undivided share in the joint family property by testamentary disposition including by way of gift to his daughter. The interest held by him in the coparcenary property could be bequeathed by the gift deed. Section 6 of the Act provides that when a male Hindu dies, after the commencement of this Act, having at the time of his death an interest in a

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20 | P a g e Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary. If the deceased had left behind him a surviving female relative specified in Class I of the Schedule, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. Therefore by operation of Section 30 he was entitled to dispose of his undivided share and the interest in the coparcenary by testamentary disposition. Even though the court recognised the fact that Pavitri Devi and her son were the legal representatives i.e. she is a successor in interest, the court rejected their claim of the appellant on that premise. Mitakshara law by which the Brahmadeo Singh was governed, he had no power to make gift of his undivided interest in the coparcenary property to his concubine. But a gift by one coparcener of his undivided share to another coparcener, to the exclusion of the others is not invalid. Thamma Venkata Subbamma vs. Thamma Rattamma ILR 6IA 88 This was a landmark case in which Supreme Court for the first time validated a gift deed within the institution of coparcenary. Before this judgment, the deed of gift was prohibited in the case of ancestral property governed by the Mitakshara School Family in Hindu Law. A coparcener in a Joint Hindu executed a deed of gift in favour of another coparcener (his brother) conveying his entire undivided interest in the coparcenary but reserving a life interest to himself and also providing that after his death the other coparcener should maintain his wife. The widow of the coparcener filed a suit of partition against the one who executed a deed of gift on the ground that the deed of gift was a void document under the Hindu Law, the Trial Court held that the deed of gift was void and inoperative under the Hindu Law in the absence of consent of the other coparcener. On appeal the High Court held that the deed of settlement was valid. In this appeal by special leave the question for consideration was whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not. The argument of the respondent was that it was a case of renunciation or relinquishment of a coparcener's interest in favour of his brother and his sons. Dismissing the appeal it was held that a gift made by the coparcener to his brother should he construed as renunciation of his undivided interest in the coparcenary in favour of his brother and his sons, who were the remaining coparceners. A gift was, therefore, valid and consent of other coparceners was immaterial.

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CHAPTER 6 Testamentary provision in Hindu Succession Act: A critical analysis
Prior to the Succession Act, neither under the customary law nor under the Madras Act, nor under the Indian Succession Act, the interest of a coparcener in a Hindu Joint Family could have been disposed of by testamentary disposition. But s. 30 of the Succession Act made a definite change in the law by enabling a member of a coparcenary to dispose of his interest in the Hindu Joint Family coparcenary properties by a will. The first thing to be noticed is that on the demand for partition there is a division in status, and though partition by metes and bounds may not have taken place, that family can thereafter never be considered as an undivided family, nor can the interest of a coparcener be considered to be an undivided interest. It is a well-established principle in, the Hindu Law that a member of a joint Hindu family has a right to, intimate his definite and unambiguous intention to the other members of the joint family that he will separate himself from family and enjoy his share in severalty. Such an unequivocal intention communicated to the, others will amount to a divisionin status and on, such division he will have a right to get a de facto division of his specific share of the joint family property, in which till then all of them had an undivided coparcenary interest, and in which none of them could claim that he had any right to any specific part thereof. Once the decision to divide has been unequivocally expressed and clearly intimated to his co- sharers, whether or not the other co-sharers agree, an immediate severance of the joint status is effected arid his right to obtain and possess the share to which be is admittedly entitled becomes specified. THE AMENDMENT OF 2005

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22 | P a g e The recent amendments in the Hindu Succession Act, has led substantive change in the women’s right to property after a long gap of forty nine years. For a long time inheritance laws, assumed a tedious character mainly due to lack of political stability and courage to stand for common good even if offends some existing fundamental ideas. The act has made the daughter a member of the coparcenary. Agricultural property is no more protected and confined to men. No doubt that this historical legislation will guide the country like a beacon, towards gender equality and women empowerment. DISCRIMINATION OF THE FAIRER SEX The Hindu succession (Amendment) Act, 2005 has – by a radical amendment – given a daughter of a coparcener a right by birth to become a coparcener in a Mitakshara property. The property to which she became entitled is capable of being disposed of her by testamentary disposition. A necessary corollary of this amendment to authorise a female Hindu like a male Hindu to make a will or any other testamentary disposition of her interest in the Mitakshara coparcenary property. In the absence of this amendment there would have been litigation from the lowest court to apex court to settle whether a daughter is given only the right by birth in the coparcenary property or also the right to bequeath her interest in the property. The widespread belief which existed after the passing of the 1956 Act was that the discrimination between daughters and sons were eliminated with the passing of the act. Little did the female population of the country realize that, this though seemingly a huge step in favour of gender justice, was in fact more a sleight of hand. Section 10 of the act, distributed the property of the Hindu male dying intestate equally among all the Class I heirs, as specified in the schedule. The roguery lies in customary Hindu law and concept of coparcenary. The Hindu succession act retained coparcenary. In fact, Section 6 specifically declares that, on death, the interest of a male Hindu in mitakshara coparcenary property shall devolve by survivorship to other members of the coparcenary and not by succession under the Act35. However, it laid down that the separate share of the deceased, computed through the device of deemed partition just before his death, would
35

Asha Nayar-Basu , Of Fathers And Sons, Viewed at 28th April, 2010 <http://www.telegraphindia.com/1051011/asp/opinion/story_5331519.asp>

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23 | P a g e devolve according to the Succession Act. The act failed to explain the logic behind such an exclusion which would take major share of the daughter’s property even though she is entitled to half share. The inequality which existed between son and daughter has now been removed by the amendment. For centuries, Hindu fundamentalists have been citing spiritual reasons and inviolate customs as a ground for this discrimination and blatant preference for sons in this society. Even though justice has been served to deprived daughters across the country to a larger extend, the position of the mother vis-à-vis the coparcenary stays the same. Her claim is reduced into left out portion after the notional partition and be entitled to an equal share with other Class I heirs only from the separate share of the father computed at the time of the notional partition.

THE CONCLUSION
While working on this project, one quintessential of the questions that passed through minds was, whether this provision provided enough utility, the society demands? The transferring of the power to make will or even gift to a coparcener will ensure those values which kept our families together or is it just another provisions to meet with commercialisation of our families and property they hold. Here we have Muslim model of will, which ensures that only 1/3rd of the property is passed through the deed of will and rest is passed by intestate succession. Analysing the current setup of our society and growing criminal indent, it can be inferred that Muslim law on testamentary succession is better suited to Indian conditions than the present Hindu law. With the passing of the 2005 amendment, it has elevated the status of the women into a whole new level. The property rights of the women were equalled to that of men. A Woman now posses the right to dispose the coparcenary property according to her will. She can also gift the property to any of the coparceners during her life time, but keeping a life-estate for herself intact.

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References
BOOKS, ARTICLES AND JOURNALS • • • Desai, SA 2007, ‘Mulla Hindu Law (2 Vols)’, 20th edition, Lexis Nexis, New Delhi. Dr. Diwan, Paras 2006, ‘Hindu Law’, 2nd edition, Orient Publishing Company, Allahabad. Nagpal, Ramesh Chandra 2008, ‘Modern Hindu Law’, 2nd edition, Eastern Publishing Company, Lucknow. WEBILIOGRAPHY • • • • • Indiankanoon.org Manupatra.com Rishabhdhara.com Telegraphindia.com Vlex.in

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