HINDU LAW

HINDU SUCCESSION ACT, 1956 HINDU JOINT FAMILY AND COPARCENARY

A Hindu joint family consists of a common ancestor, all the lineal male descendants of common ancestor, wife or wives or
widows, unmarried daughters of a common ancestor, unmarried daughter of a lineal male descendants. The manager of
such Hindu joint family is called KARTA.

Mitakshara and Dayabhaga schools having different types in the succession. But both schools following the paternal
system. Mitakshara school following vignaneshwara’s principles, while Dayabhaga following Jimutavahana’s principles.
The heritage followed by Mitakshara school is unabstructed heritage which is also known as Apratibandha Daya. This is
special feature of Mitakshara Joint family system.

The ancestral property of father is unobstructed heritage for the son. The unobstructed heritage is for four lineal
descendants including father (i.e.) son, son’s son, son’s son’s son. Son acquires this right by birth. The father and son has
equal share in the paternal ancestral estate. The property is said to be coparcenary property, those persons having right
by birth are known as coparceners of the property. In this heritage share are flexible according to birth and death of the
one of the coparceners

Obstructed Heritage
The obstructed heritage is property in which a person gets a right not by birth but on the demise of
the last holder. Obstructed heritage is also called as obstructable heritage.
The Dayabhaga law does not recognise any property as unobstructed heritage. Under that system all
property devolves only as obstructed heritage. Dayabhaga coparceners are in the position of tenants in
common, each with a definite interest.

Right of Coparceners
1. Right to Joint Ownership,
2. Right to common use,
3. Right to enjoyment,
4. Right to survivorship,
5. Right to partition,
6. Right to challenge alienations,
7. Right to alienation,
8. Right to self acquisition,
9. Right to maintenance,
10. Right to marriage expenses

Gains of Learning
Prior to the enactment of the Hindu Gains of Learning Act, 1930, the personal earnings and
acquisitions of the coparcener may be partiable throughout the life unless he separated himself from the
rest of the family, if he was originally equipped for the calling or career in which the gains were by a special
training at the expense of the patrimony.
Section 3 of the Gains of Learning Act, changed that position and under this, all gains of learning
whether made before or after the commencement of the Act constitute the self acquired property of the
acquirer. Changes in traditional law made by the Hindu Women’s Rights to Property Act, 1937.233

The Hindu Women’s Right to Property Act, 1937 came into force on 14th April, 1937. The Act put
one’s widow, the widow of a predeceased son and the widow of a predeceased son’s predeceased son on
the same level as the male issue of the last owner along with the male issue or in default of them. In regard
to the Hindu Mitakshara joint family property, the Act provided that that widow took place of her husband.
The Act further provided that in all cases the interest taken by the widow was only limited interest. The
Hindu Women’s Right to Property Act, 1937 was repealed by Section 31 of the Hindu Succession Act,
1956.

Marumakkatayam and Aliyasantana

In the Malabar region of kerala and in the district of canara two similar systems of joint family
inheritance obtained known as Marumakkathayam and Aliyasantana. In both systems descendants was
traced in maternal line (female).
Under this traditional Malabar law, there are large families known as Tarwads, groups descended in
the female line from a common ancestress. A tarwad may consists of a number of branches called
Tawazhis.

Characteristic features
(1) Property was held in commensality by its members,
(2) It was impartiable except with the consent of all its members.
(3) Women was the stock of the descent.
(4) The management of the property was vested in the senior most male member, the other members
of family being entitled only to maintenance.
(5) The issue of male members were excluded from membership.
(6) The property was inalienable except necessity.
The senior most male member is known as Karanavan or Manager. In the absence of senior or any
male member, senior most female can become manager of the family.
In Aliyasantana, it was followed in Karnataka State, they were also following the maternal lineal
descendants as of Marumakkathayam but one difference was the senior most member either male or
female is the manager of the family.

STRIDHAN / WOMEN’S ESTATE

Stridhan
The property of a Hindu woman is called Stridhan. ‘Stri’ means woman, ‘dhana’ means property. It is
also known as woman’s estate. It includes movable and immovable properties. Prior to the Act, there were
several limitations in the right to property. The absolute power of alienation was not given to her.
Acquisition of Woman’s Estate
The Woman’s estate may be acquired in the following way
1. By inheritance
2. By device
3. By partition
4. In lieu of maintenance
5. By arrears of maintenance
6. By gift from any person
7. By her own skill
8. By her exertion
9. By purchase
10. By prescription
11. By mechanical arts
12. By compromise.234

The woman can alienate stridhan property to meet legal necessities only. They need not be actual
compulsion or necessity. It may be a kind of pressure which recognised by law.
KARTA
A senior most male member in a Hindu joint family is called ‘Karta’. ‘Karta’ is the head and manager
of the joint family. He plays a vital role. A women cannot became karta because she is not a coparcener.
When all sons are minor, then their mother can act as manager on behalf of Karta. The Karta’s position is
sui generis, which means ‘unique’. He is having some powers and is bound by some duties.
Powers :
1. Power to manage the family, its property and its business,
2. Power to enter in to contracts,
3. Power to discriminate between the members based on priority.
4. Power to refer the disputes to an arbitrator,
5. Power to repay debt and interest including time barred debt,
6. Power to contract debts,
7. Power to make gift.
Duties of Karta :
1. He must represent family
2. He must maintain all the members of the family
3. He must perform all the marriages of unmarried members.
4. He must prepare the accounts in case of partition.
5. He has to pay taxes and other dues on behalf of the family.
PARTITION
Partition means division. It puts an end to the joint interest. The share is proportionate to the member
of coparceners in the Hindu Joint family. Every coparcener including minor has right to partition and
entitled for a share in the joint family property. Females have no right to partition, however, fathers wife,
mother and grandmother have a right to claim a share. There may be partial partition as to the property or
persons. Partition is purely voluntary and may be partial too. Generally, the entire joint family property of
any kind may be divided but the separate property of the coparceners is not subject of partition. A
coparcener cannot donate his share to others without the consent of other coparceners. However, he may
renounce his share and make a gift in favour of other coparceners. An equal share should be reserved for
the child in the womb. Adopted son has equal right to share in the joint family property where there is no
natural born son to the adopter. If a son subsequently born to the adopter he is not entitled to the same
right to partition and the same share. Various schools allow different shares to an adopted son as below.
1. In Bengal, 1/3rd of the estate,
2. In Benaras 1/4th of the estate,
3. In Bombay, Madras 1/5th of the estate.
Generally an illegitimate son is not entitled to partition to get his share but he is entitled only to
maintenance. After the enactment of the Hindu Succession Act, 1956, an illegitimate son cannot succeed
to his property.
Mode of Partition
a) Partition by suit
b) Partition by agreement
c) Oral Partition
d) Unilateral declaration
e) Partition by arbitration235
f) Partition by conduct
g) Automatic severance.
Any two or more members of joint family may reunite with an intention to have a common property.
Soon after reunion the status quo ante is fully restored.
Antecedent Debt
Antecedent Debt means preceding loan. The son has a pious obligation to repay his father’s debt.
The object behind the paying of antecedent debt is to protect the interest of the creditor or third person.
Pious Obligation
It means the moral or religious duty of sons to repay their father’s non - avyavaharika debts. Their
liability is limited only to joint family property. Under old law, the sons are personally liable even for
avyavaharika debts and their self - acquired property was liable. Hence the following debts are not binding
on the son
(i) Time - barred debts
(ii) Surety ship debts
(iii) Gaming debts
(iv) Avyavaharika debts.
 Avyavaharika means illegal or immoral. Debt taken for illegal or immoral purpose is called
‘avyavaharika debt’.
Examples of avyavaharika debts:
(i) Illegal Debts
(a) Debts for smuggling
(b) Debts for committing a crime
(c) Debts for gambling
(d) Debts for drinking spirituous liquor.
(e) Debts for fines and tolls.
(f) Debts for wagering contracts.
(ii) Immoral debts
(a) Debts for prostitution
(b) Debts for keeping a concubine
(c) Debts for marriage of concubine’s daughter,
(d) Debts for bribing a Hindu woman to take his son in adoption
(e) Debts for gratifying his lust.
In Amritlal v. Jayantilal, AIR 1960 SC 964,
The father executed a mortgage in the course of speculation and incurred debt. Actually there was no
benefit or necessity to the estate. The court held that it was avyavaharika debt.
GENERAL RULES OF SUCCESSION
Legally succession means a chain of persons who have a right to take property. The Hindu
Succession Act, 1956 governs the rules relating to succession. The law of succession is classified into two
categories. They are
1. Testamentary Succession
2. Intestate Succession
1. Testamentary Succession
The testator is free to transfer his property by writing a will. A person who made the will is called
testator. He can determine a scheme of distribution of his property after his death. Therefore the
succession made by the testator by way of will is called testamentary succession. 236
S.Sundaresa Pai v. Sumangala. T. Pai, 2002 AIR SC 317.
The court held that uneven distribution of property cannot make the will invalid.
Intestate Succession
Intestate means a person dying without making a will succession of property in the absence of will is
called intestate succession. Intestate succession is based on the law of inheritance. It prescribes the rules
relating to the distribution of property on the basis of relationship.
(i) Descendants
(ii) Ascendants
(iii) Collaterals
(iv) Agnates
(v) Cognates
(vi) Full Blood
(vii) Half Blood
(viii) Uterine Blood
The Hindu Succession Act, 1956 provides five categories of heirs of a hindu male.
Among them Class - I heirs are called ‘preferential heirs’. They are also known as ‘simultaneous
heirs’. The property of a male hindu dying intestate shall devolve as mentioned below::

Class - I
(S) - 1. Son’s Daughter’s Son
Predeceased 2. Son’s Daughter’s
Class - II Heirs Daughter
Entry - I 3. Brother
Father
Entry - II
 4. Sister
Entry - III
1. Daughter’s Son’s Son
2. Daughter’s Son’s Daughter
3. Daughter’s Daughter’ s Son
4. Daughter’s Daughter’s Daughter237

Entry - IV
1. Brother’s Son
2. Brother’s Daughter
3. Sister’s Son
4. Sister’s Daughter
Entry - V
1. Father’s Father
2. Father’s Mother
Entry - VI
1. Father’s Widow (step mother)
2. Brother’s Widow
Entry - VII
1. Father’s brother
2. Father’s Sister
Entry - VIII
1. Mother’s Father
2. Mother’s Mother
Entry - IX
1. Mother’s Brother
2. Mother’s Sister
General Rules of Succession in the case of males. ( Sec. 8 )
According to Section 8, the property of a male hindu dying intestate shall devolve
as below.
a) Firstly, upon the heirs, being the relatives specified in Class - I of the schedule.
b) Secondly, if there is no heir of Class - I, then upon the heirs, being the relatives
specified in Class - II of the schedule.
c) Thirdly, if there is no heir.
General rules of succession to the property of females.
According to Section 14, any property possessed by a female Hindu whether
acquired before or after the commencement of this Act, shall be held by her as full owner
thereof and not as a limited owner.
According to Section 15, the property of a Hindu female is categorized under the
following heads.
1. The property inherited by a female from her father or mother,
2. The property inherited by a female from her husband or father - in - law.
3. The property obtained from any other source, by inheritance or otherwise.
According to Section 15 (1), the property of a Hindu female dying intestate shall
devolve as per the rules set out in section 16 of the Act. They are
a) Firstly, upon the sons and daughters, children of predeceased son or daughter,
husband.
b) Secondly, upon the heirs of the husband,
c) Thirdly, upon the mother and father,
 d) Fourthly, upon the heirs of the father and
e) Lastly, upon the heirs of the mother.
According to Section 16, the property of a Hindu female dying intestate shall
devolve as per the following rules. They are.
Rule 1 : According to this rule, the order of priority among the five groups of heirs
mentioned in section 15 (1) and its clauses (a) to (e). Heirs belonging to same group
take simultaneously. This rule however does not speak about the quantum of shares to
be taken by any group.238

Rule 2 : According to this rule, where children and eligible grand children co exist
the distribution of property will be per stripes and not per capita.
Rule 3 : According to this rule, a legal fiction whereby property actually belonging
to one deceased person is presumed to be that of another deceased person who died
earlier.
Dwelling House
Dwelling house means the house which is wholly occupied by the members of the
family of intestate. Dwelling house is included in property of a Hindu dying intestate and
the intestate leaves behind both male and female heirs (specified in Class - I of the
schedule) who occupy the dwelling house any such female heir cannot claim partition of
the dwelling house unless and until the male heir choose to divide their respective
shares therein, but the female heir shall be entitled to a right of residence therein. In
case of a daughter even this right is restricted to such of the female heirs are unmarried
or are widows have been deserted by or separated from the husband.
Disqualifications
Section 24 to 28 deals with the disqualifications to inherit the property under Hindu
Law. They are,
Sec. 24 - Certain widows remarrying may not inherit as widows.
Sec. 25 - A person who commits murder or abets the commission of murder shall
be disqualified from inheriting the property of the person murdered or any other property
of the person murdered or any other property in furtherance of the succession to which
he or she committed or abetted the commission of the murder.
Sec. 26 - A Hindu who has ceased or ceases to be a Hindu by conversion to
another religion, children born to him or her after such conversion and their descendants
shall be disqualified from inheriting the property of any of their Hindu relatives, unless
such children or descendants are Hindus at the time when the succession opens.
Sec. 27 - If any person is disqualified from inheriting any property under this Act, it
shall devolves as if such person had died before the intestate.
Sec. 28 - No person shall be disqualified from succeeding to any property on the
ground of any disease, defect or deformity or save as provided in the Act, or any other
ground whatsoever.
Escheat
Escheat means aversion to the state in the absence of the legal heirs. According to
section 29, if an intestate has left no heir qualified to succeed to his or her property shall
devolve on the Government