Hindu Law Case Rulings on Joint Family Property

HINDU LAW
S.S. Nigam*
1
THE IMPACT OF the recent legislation on the legal and social structure
of the Hindu society still remains to be adequately reflected in the re
ported judgments of the courts. Hitherto, only those provisions of the
Acts have figured in the decisions of cases which have a bearing on the
rights, interests, liabilities or obligations originating for the most part
prior to the enactments. In the sphere of marriage, however, the current
Act seems to have come into its own, there being hardly a case which did
not involve one or the other of its provisions. In the process, a lacuna
has also been pointed out in the working of the two marriage Acts. The
permeation of custom in the ceremonial side of marriage gave rise to a
number of cases. Another prolific source of litigation has been section
14 of the Hindu Succession Act which does not yet seem to have exhaus
ted its potentialities of interpretation. There are indications that the
implications of sub-section (2) of section 14 as a substantive provision,
which has so far been construed as an exception to sub-section (1), may
need to be spelled out in the none-too-distant future. The cases relating
to the religious endowments reveal thatja lack of proper appreciation of
the Hindu religious concepts has been responsible for their treatment
on a predominantly secular level.
The Supreme Court, in some of the cases decided during the year,
laid down valuable correctives for views entertained by different High
Courts on certain matters. A case or two, perhaps, is even somewhat
controversial. A study of the cases has been made in some detail as
the law, under our system of jurisprudence, is authoritatively expounded
and enunciated therein.
II. JOINT HINDU FAMILY
The law relating to joint Hindu family is still largely uncodified.

The repurcussions of recently enacted Hindu Succession Act, 1956, which
has brought about a change of far-reaching nature, will increasingly
be felt with the passage of time. However, during the period under sur
vey, no case of any significance was reported involving the relevant
sections in that Act.
The status of a congenitally deaf-mute member in a Mitakshara
coparcenary came up for consideration by the Supreme Court in
♦Professor of Law, Banaras Hindu University, Varanasi.
www.ili.ac.in The Indian Law Institute

HINDU LAW 213
Kamalammal v. Venkatalakshmi.1 Under the Hindu Law, a congenital

deaf-mute is disqualified from participation in inheritance. Never*
theless, as held by the Court, he becomes by birth a coparcener with his
father so that if, at some stage, he emerges as the sole surviving coparcener,
the coparcenary properties would vest in him and he would be entitled
to take and enjoy the whole estate. The Supreme Court drew support
from two well-established propositions. First, that even if at birth
there is an affliction which disqualified a person, still if the defect is later
remedied, he becomes entitled to claim a share. As the Court observed,
"the basic postulate of the Mitakshara being that the right to property
is by birth, unless a vestigial right in property is assumed to exist at birth
even with a disqualification which disentitles the person from the right
to active participation, his right to participation on the removal of the
disability cannot be logically explained." 2 Secondly, the right to be
maintained is traceable to his right to the property in which he is ex
cluded from participation in full. "Surely," remarked the Court, "it
is the proprietary right which gives him the right to maintenance" and
concluded that "it would not be a violent inference to hold that he has
an incipient and vestigial interest in that property which is not capable
of being asserted against other coparceners, but when there is none entitl
ed to enjoy it as coparcener, blossoms into a full right." 8 Further, the
circumstance that the qualified male issue of a disqualified person is a
coparcener himself was also deemed to lend additional support to the
Court's view.
Textual support for the proposition was derived from Saraswati
Vilasa* regarded authoritative in Madras, which designates some of the
disqualified heirs, including the congenital deaf-mute, as "share-takers,"
though, of course, they cannot "receive" the share. The Court observed
that "if the distinction between share-taker and share-enjoyer be sound,
it would convey no meaning if one were to hold that while though the
disqualified person be a share-taker, he is still denied the right to the
property when there is no other coparcener who would be a share en-
joyer." 6
The case thus unmistakably lays down that disqualification is not a
bar of exclusion but only an obstacle in preferment. It operates so
long as there are others equally entitled to the property, but when there
is none in his own category—for instance, a coparcener, as in this case—
it does not stand in the disqualified person's way to get the whole
estate.
1. A X R . 1965 S.C. 1349.

2. Id. at 1357.
3. Id. at 1358.
4. There is nothing to the contrary on this point in the Mitakshara; the legal
position would be the same under both.
5. Supra note 1, at 1357.

214 ANNUAL SURVEY OF INDIAN LAW
T h e r e a r e , however, some remarks in the j u d g m e n t which indicate

t h a t other considerations also weighed w i t h the Court; for instance, the
leading M a d r a s case 0 on the point has been consistently treated by the
several H i g h Courts as "properly interpreting the texts a n d thus the
conclusions r e a c h e d in it a n d the reasoning ...have moulded the law in
this country for these about 80 years." 7 Further, the law as to disquali
fied heirs has now b e e n a m e n d e d a n d m a d e statutory 8 a n d " i t is most
unlikely that the point now arising for consideration would ever come
before the Courts because of the operation of the statute which has been
in force for over 35 y e a r s . " 9
T h e inexpediency of upsetting a long course of decisions cannot be
denied, although this consideration appears hardly to be of great signi
ficance for the decision of this case in view of the subsequent amend
m e n t of the law. However, as regards the other point, it is not certain
t h a t a similar situation will not arise in the future. T h e relevant statute
has excepted a congenital lunatic cr idiot from its operation, 1 0 and it
m a y b e t h a t while the congenital deaf-mute would not figure in future
cases, a congenital lunatic or idiot might.
A novel argument was a d v a n c e d before the Supreme Court in
Union of India v. Shree Ram11 that there were two Kartas of the joint
H i n d u family a n d on the d e a t h of one, pending a n appeal, the other
continued to represent the family. T h e Court rejected the contention
observing t h a t :
the very idea of there being two Kartas of a joint Hindu family does not
appear, prima facie, consistent with the concept of a Karta. The existence
of two Kartas cannot lead to the smooth management of the property
of the joint Hindu family and the other affairs of the family in view of the
powers which the Karta of a joint Hindu family possesses under the Hindu
law. The Karta of the joint Hindu family is certainly the manager of
the family property but undoubtedly possesses powers which the ordinary
manager does not possess.12
O n e or more coparceners may, of course, be appointed by common

consent, as in this case, to carry on the business of a family a n d represent
it in legal proceedings relating thereto, b u t that circumstance will not
convert t h e m into Kartas of the family. T h e Court, however, ended on
a note of indecision refusing to express, in the absence of any text of
H i n d u law or previous decision, any definite opinion on the question
w h e t h e r there can be two Kartas of a joint H i n d u family. But this should
6. Krishna v. Sami, I.L.R. 9 Mad. 4(F.B.).

8. The Hindu Inheritance (Removal of Disabilities) Act, 1928.
10. Section 2.
11. A.I.R. 1965 S.C. 1531,
12. Id. at 1533-34.

HINDU LAW 215
not cast any doubt on the correct legal position which is expounded in
other parts of the judgment.
Partnerships between joint Hindu families and outsiders are common
but sometimes give rise to complicated questions about the inter-relation
ship between the partnership members and family members. The correct
legal position was expounded, in I.T. Commr. v. Bagyalakshmi & Co.13 in
unusually lucid terms and would bear reproduction in extenso.
A contract of partnership has no concern with the obligation of partners
to others in respect of their shares of profit in the partnership. It only
regulates the rights and liabilities of the partners. A partner may be the
karta of a joint Hindu family; he may be a trustee; he may enter into a sub-
partnership with others; he may under an agreement, express or implied,
be a benamidar for another. In all such cases he occupies a dual
position. Qua the partnership, he functions in his personal capacity; qua the
third parties, in his representative capacity. The third parties, whom one
of the partners represents, cannot enforce their rights against the other part
ners nor can the other partners do so against the said third parties. Their
right is only to share in the profits of their partner-representative in accor
dance with law or the terms of the agreement, as the case may be.14
As observed by the Supreme Court in Marayanaswami v. Ramakrishna,1*
"the legal position is well settled that if in fact at the date of acquisition
of a particular property the joint family had sufficient nucleus for ac
quiring it, the property in the name of any member of the joint family
should be presumed to be acquired from out of family funds and so to
form part of the joint family property, unless the contrary is shown." 36
Difficulty may, however, arise in determining the sufficiency of the
nucleus. This case indicates the nature of the enquiry required for this
purpose, namely to, establish that the joint family had at the time of "each"
of the acquisitions sufficient nucleus from which the acquisition in question
could have been made. A detailed enquiry into the income yielded
by the admittedly joint family properties, and the expenditure incurred
for family purposes, during the period preceding has to be undertaken.
Of course, all this calculation is to be made only for the period that the
Karta has been in actual management. If he was excluded from actual
management for any length of time, as happened in the present case,
that period cannot be included for calculation purposes. The enquiry
may, as in this case, even extend into the personal earnings of the Karta
in order to determine the nature of the funds, if any, in his hands at the
relevant times.
I.T Gommr. v. M.K. Streamann17 also illustrates the practical appli
cation of a well known legal principle, namely, blending of separate
13. A.I.R. 1965 S.C. 1708

14. Id. at 1709-10.
15. A.I.R. 1965 S.C. 289
16. Id. at 292.
17. AJ.R. 1965 S.C. 1494,

properties with joint family assets. The father of two minor sons and
a minor daughter was in possession of some joint family property and
was also personally working as an agent of a pharmaceutical firm though
the incomes from both were entered in only one set of accounts. He
executed a deed of partition reciting that he had been earning commis
sion and acquiring properties and blending his money with the assets
inherited from his father and treating the entire properties till the date
of execution of the deed as joint family property without making any
distinction. The Supreme Court held that the father had unequivocally
blended his separate earnings with the joint family assets and pointed
out that the partition deed, "asserts a continuous course of conduct end
ing with the day when the deed was executed. ...When instructions
are given that the self-acquired property is to be treated as joint family
property...at that moment the property assumes the character of joint
family property. On execution, the deed becomes evidence of a pre
existing fact i.e. of throwing the self-acquired property into the hotch
potch." 1 8 The Court agreed with the finding of the High Court that
antecedent to the partition, there was blending of the self-acquired
properties with the ancestral joint family property.
Whether a property belongs to an individual or to a joint family
is important not only for purposes of Hindu law but also for taxation
purposes since the two are taxed differently. In Commr. of W.T. v,
Narendranath,19 the question arose whether property assigned to a
coparcener at a partition is his separate property or joint family pro
perty, the other members of his present family being only his wife and
two minor daughters. An analogy was sought to be drawn with pro
perty in the hands of a sole surviving coparcener when there is a widow
in the family capable of making an adoption. The High Court repelled
the contention holding that in the absence of any coparcener in his
own branch, the share of the erstwhile coparcener would not be copar
cenary property but his separate property. The wife and the daughters
may be said to constitute a joint family with him and he may even be
described as the Karta of that joint family, but he does not share the
ownership of the property with any of them.
The Madras High Court has held in Krishnan v. Rengachari20 that
incompetence of the junior members of a joint Hindu family to inter
fere in a partnership between the Karta and outsiders exists only so
long as the partnership is a running concern.
But the moment a dissolution of the business takes place and a junior
member files a suit for partition, in that suit all the family properties will
have to be included, including the assets of the dissolved partnership, so
18. Id at 1496.
19. AJ.R. 1965 A.P. 447*
20. A I R . 1965 Mad. 340.

HINDU LAW 217
that in the presence of the manager, as well as the erstwhile partners of
the dissolved partnership, an account may be taken and the share of the
managing member in the assets of the dissolved partnership be ascertained
for the purpose of division.21
This has been expressed as "settled law/ 5 but it may still require
reconsideration in view of the observations made by the Supreme Court
in the recent case of I.T Commr. v. Bagyalakshmi & Co.22 If there is
no privity between the junior members of the family and the outside
partners, it is difficult to see how a dissolution would change the situa
tion so as to drag the latter and the partnership assets into a suit for
partition of the family properties.
The true nature of the son's right in the property of the father was
reiterated by the Madhya Pradesh High Court in Index Marayan v. Rup«
naraian?z The son acquires a right by birth in the ancestral as well
as the self-acquired property of the father, both of which devolve on
him by survivorship. In the self-acquired property of the father, how
ever, the right of the son in the father's lifetime is a dormant right,—
"certainly something more," said the Court, "than a mere expectation
or spes, but something much more restricted than a transferable interest,"
adding that "if a member of a joint family relinquishes his interest it
means that he is transferring it to the rest of the coparcenary. If the right
is such that it cannot be transferred at that stage certainly it cannot be
relinquished." 2 *
A generalised statement like the one quoted above, how much so
ever it may be applicable to the facts of the particular case—and even
that is somewhat doubtful in this case—is bound to run counter to views
expressed elsewhere. A Full Bench of the Andhra Pradesh High Court
has in Anjanayulu v. Ramayya^ declared emphatically:
It is now well-settled that the relinquishment of an interest in immovable

property is not a transfer of property as defined in the Transfer of Property
Act, as it is only an effacement or extinction of the interest of the releasor.
It has only the effect of reducing the number of members that will be entitled
to participate in the estate.26
Discussing the effect of the relinquishment, the Full Bench held

that it does not alter the status of the joint family; the releasor
alone separates himself while the others continue undivided. The
separation of the releasor, however, is complete and even his after-born
son has no claim to joint status with the erstwhile coparceners, or to
21. Id. at 345.

22. Supra note 13.
23. A.I.R. 1965 M.P. 107.
24. Id. at 110 (emphasis supplied).
25. A.LR. 1965 A.P. 177 (F.B.).
26. Id. at 183.

any share in the coparcenary property. The right of an after-born

son to get a share in case the father has not reserved one for himself
offers no analogy as it applies only to partition between the father and
his sons and to no other case. Moreover, relinquishment is not tanta
mount to a partition since there is no adjustment or ascertainment of
the rights or shares of anyone.
JV.B.M. Supply v. J.J. Ram Manohar Lai,27 a case really on a point
of procedure, underlines the distinction between a partnership firm and
a joint family firm. While the latter can assume a trade name, there is
no law like section 4 of the Partnership Act providing that the trade
name would stand for the coparceners conjointly. Nor is Order 30,
Civil Procedure Code permitting a suit to be filed in the name of a firm
applicable to a joint family firm. It has no partners at all; there are
only various members of the family who are owners without any speci
fication of their shares. Where a suit has to be brought by a joint Hindu
family firm it must necessarily be brought either in the name of the Karta
of the family or in the name of the various members constituting the
family. A suit instituted in the trade name of the family business is a
nullity.
The right of an alienee of the undivided interest of a coparcener was
elucidated by the Kerala High Court in Ramakrishna v. Suppqyya.2S It
has earlier been the subject-matter of numerous decisions, often vary
ing with one another, and the present judgment also contains some
controversial statements. However, it states a few points with precision
and clarity. The Court rightly pointed out that the undivided interest
of a coparcener "is a definite right, unaffected by events in the family
after its alienation. It is incorrect to say that the alienee does not get
a present right in the property on the making of the alienation but will
get such right only on the making of a partition. The title, that is to
say, the event which divests the coparcener of his right and invests the
same in the alienee, is the alienation and not the partition." 29 The
alienee may have both a right and an equity—the right of the undivided
coparcener in the family property and the equity to a preferential allo
cation of the alienated portion to the share of his alienor. The Court
concluded that "the alienee...is entitled to sue for partition, his own
right, of the joint property in which he is interested, and it requires no
borrowing of the shoes of his vendor to enforce his rights." 30
Although the son is liable to pay the pre-partition debts of the father
which are not illegal or immoral, the father has no authority after parti
tion to renew his debt so as to take it binding upon the sons. However,
27. A.I.R. 1965 All. 586.

28. A.LR. 1965 Ker. 77.
29. Id. at 82.
30. Id. at 84.

HINDU LAW 219
as h e l d in Hanumayya v. Venkata Marasimhazl a n d Sydulu v. Vankateshwa-

ralu?2 different considerations arise where the debt is not renewed, but
only acknowledgement is made by the father after partition to save the
bar of limitation. The son is bound even after partition by the acknow
ledgement, for in that event the suit would be based on the original
debt and not on a new obligation.
The responsiblity of the son ceases when a reasonably adequate
and sufficient arrangement for the payment of the debts is made at the
time of the partition. However, as observed by the Supreme Court, 83
it does not necessarily imply that a separate fund should be set apart
or that some additional property must be given to the father over and
above his legitimate share. If his own share is more than enough for
his needs and he undertakes to pay off all his personal debts and release
the sons, it may be considered a proper arrangement in the circums
tances of a particular case.
The pious obligation of the son to discharge the debts of his father
seems to have received an extension in S. Subba Rao v. JVarasimharao.u
Hitherto, the liability of the son was regarded as co-extensive with that
of the father both in duration and extent, so that any circumstance
reducing or extinguishing the father's liability to pay a debt equally
reduced or extinguished the son's liability. This case, however, held
that where in insolvency proceedings a composition or a scheme was
prepared under which the father was absolved of all liability on receipt
by the creditors of a part of their debts out of the estate, the son neverthe
less remained liable to pay the balance under the principle of pious ob
ligation. The reason given was that an insolvency proceeding does
not reduce or extinguish the debt; it merely declares that the father
has no capacity further to pay the debts. The debt is alive at least as
far as the sons are concerned, and if they are in possession of what pre
viously was the joint family property, they are obliged to pay it.
It is to be hoped that this is not the last word on the point and the
matter will at some time come up for further consideration.
It is a well established proposition of law that in the absence of fraud
or other improper conduct the only account the Karta of a joint Hindu
family is liable for at the time of partition is as to the existing state of the
property divisible. But the seemingly secure position of the Karta has
been made considerably vulnerable by the dictum of the Supreme Court
in Narayanaswami v. Ramakrishna?6 that "this did not mean that the
[other] parties were bound to accept the statement of the Karta as to
what the property consisted of, and an inquiry should be directed by
31. A.I.R. 1965 A.P. 439.

32. A.I.R. 1965 A.P. 318.
33. Pannalal v. Mst. Naraini, A.I.R. 1952 S.C. 170.
34. A.I.R. 1965 A.P. 285.
35. Supra note 15.

the Court in the m a n n e r usually a d o p t e d to discover what in fact the

property consisted of a t the d a t e of the partition." 8 6 I t is obvious t h a t
such a n enquiry m a y easily t u r n into a probe into t h e entire m a n a g e m e n t
of t h e j o i n t family properties by the Karta. I t is true t h a t h e cannot
b e called u p o n to account for t h e past transactions, b u t if questions can
be raised w h e t h e r a p a r t i c u l a r property which was a t one time included
in t h e joint family properties still r e m a i n e d a p a r t thereof, it is difficult
to see how a n enquiry into past transactions can be avoided. All that
can perhaps b e done, w i t h a great deal of vigilance, is to confine the
enquiry to the factum of past dealings a n d stop short of requiring the
Karta to prove t h e justification or necessity for the same.
Gopal Rao v. Sitharamamma?7 is a n important case on maintenance.
T h e illegitimate sons of a deceased Sudra a n d his Brahmin concubine
who, though m a r r i e d to a h u s b a n d still alive, h a d been in his exclusive
keeping till his d e a t h a n d still preserved her sexual fidelity to him,
claimed m a i n t e n a n c e from his estate. During the pendency of the
appeal, the H i n d u Adoption a n d M a i n t e n a n c e Act, 1956, came into
force. T h e Supreme Court h e l d t h a t the concubine, though a Brahmin
a n d a Swairini i.e. a n adultress, could claim to b e a n avaruddha stree%
a n d b o t h she a n d the illegitimate sons were entitled to maintenance
from t h e estate of t h e deceased. Moreover, t h e right having vested in
t h e m on his d e a t h before t h e passing of the A c t would not be divested
thereafter. T h e Court o b s e r v e d :
In terms, Ss. 21 and 22 are prospective. Where the Act is intended to be

retrospective, it expressly says so Now, before the Act came into
force, rights of maintenance out of the estate of a Hindu were acquired
and the corresponding liability to pay the maintenance was incurred
under the Hindu Law in force at the time of his death.38
Since in this case, t h e claim of the respondents during their lifetime

arose out of the original right vested in t h e m on the d e a t h of the deceased
a n d was not founded on any right arising after the commencement of
t h e Act, the Court concluded t h a t :
We think that Ss. 21 and 22 read with S. 4 do not destroy or affect any
right of maintenance out of the estate of a deceased Hindu vested on his
death before the commencement of the Act under the Hindu Law in force
at the time of his death.39
It m a y b e pointed out t h a t under the H i n d u law before the Act,

a n illegitimate son of a deceased Sudra was entitled to b e maintained
for his life time out of his estate, a n d also was his avaruddha stree, whereas,
36. Id. at 295.

37. A.I.R. 1965 S.C. 1970.
38. Id. at 1973.
39. Ibid.

HINDU LAW 221
under the Act, an illegitimate son is entitled to be maintained only so
long as he remains a minor, and a concubine is not at all included among
the "dependents" under section 21.
"Courts lean strongly in favour of a family arrangement" is almost
a judicial maxim, and so strong is the leaning that wherever a family
arrangement is discernible, the considerations which usually inhibit
them in giving effect to transactions involving proprietary rights are
relaxed. Thus in Laxmi Narain v. Banshi Lai,40 an argument that a
deed ofgift executed by a female heir could be upheld as a family arrange
ment was accepted by the Court. It was observed that the manner
in which the arrangement had been clothed is not decisive of the matter,
and a family arrangement may take the shape of a gift. Moreover,
a family arrangement does not presuppose the existence of a claim,
well founded or otherwise; or a reciprocal sacrifice of right or interest;
or even a dispute inpraesenti. An arrangement for composing differences,
or for maintaining amity and good relations, or for preserving the pro
perty could be upheld. Of course, being an agreement, it should be
supported by some consideration, though adequacy of consideration will
not be too minutely scrutinised and the preservation of peace may itself
form a good consideration.
It may perhaps not be out of place to cite here an observation re
cently made by the Supreme Court in Laxmi Perumallu v. Krishnavenamma*41
Their Lordships observed: "No doubt, a family arrangement which
is for the benefit of the family generally can be enforced in a court of
law. But, before the Court would do so, it must be shown that there
was an occasion for effecting a family arrangement, and that it was
acted upon." 42 The word "occasion" seems to indicate that such wide
terms as used above may need to be qualified; but what constitutes
"occasion" would, of course, be a matter for interpretation in the light
of the facts and circumstances of each case.
The basic considerations in upholding a compromise are practi
cally the same as in the case of a family arrangement. Indeed, the for
mer rests on more concrete grounds inasmuch as there is already a
dispute, or a claim, or a family quarrel or litigation, which is settled
in the interest of the family generally. It may be that the interest of
some individual member is prejudiced by the compromise, but this by
itself would be no ground to set it aside even though the member concern
ed may be a minor. Thus, it was held in Manu Biswal v. Lata BiswalaniiB
that where a member of a joint Hindu family apprehending that his
suit for partition of the joint family property was likely to fail entered
into a compromise to avoid protracted litigation it would not, in the
40. AJ.R. 1965 All. 522.

41. A.I.R. 1965 S.C. 825.
42. Id. at 828.
43. A.I.R. 1965 Orissa 13.

absence of fraud or some similar ground, be disturbed at the instance of

his minor son merely on the ground of inequality of benefit.
III. IMPARTIBLE ESTATE
Impartible estates have practically been abolished by the various

Zamindari Abolition Acts. However, questions still arise concerning
their legal incidents in connection mainly with claims made by diverse
persons to the compensation awarded under the respective Acts. In
Tyagasundaradoss v. S. Pandia,u a claim was made by the sons of the
Zamindar to a share in the compensation. The estate of Seithur was
originally an ancestral impartible estate. The father of the Zamindar
had, however, executed a will bequeathing the estate to his son, i.e. the
Zamindar, and other properties to his nephew, his daughter and cer
tain other persons. The Supreme Court held that the will conferred
an absolute estate on all the legatees including the son who consequently
got the estate as his self-acquired property. The Court said that:
a holder of ancestral impartible Estate could alienate the same in favour

of a third party by a deed inter vivos or under a will: in either case the
alienee or the legatee.. . got an absolute interest therein. The holder's
son .. . had no right by birth . .. only a right to take the ancestral Estate by
survivorship, in case the father died intestate. The exercise of the right by the
father to alienate destroyed his son's right to take it by survivorship
As the Zamindar got the Estate as a legatee and not as a member of joint
Hindu family by survivorship, he got it absolutely in his own right under
the will.45
In the result, the compensation money was held to belong exclu

sively to the Zamindar.
IV. SUCCESSION
The majority of the cases under the Hindu Succession Act, 1956,
related to the interpretation and^application of section 14, that is to say,
whether a female by virtue of that section acquired absolute ownership
of a certain property. The Supreme Court case ■ of Kotturuswami v.
Veeravva4Q was naturally the bedrock of almost all the judgments, but
it is interesting to note how judicial opinion has diversified subsequently.
Many of the cases, of course, fell within the ratio of Kotturuswami and
merely followed it, but in a few instances, points of distinction were noted
permitting an independent line of thought. Thus in Nathuni Prasad v.
Mst. Kachnar47 the word "possessed," as expounded by the Supreme
44. A.I.R. 1965 S.C. 1730.

45. Id. at 1735.
46. A.LR. 1959 S.C. 577.
47. A.I.R. 1965 Pat. 160.

HINDU LAW 223
Court, was held not to cover the possession of a trespasser holding ad
versely to a widow. It was said that the term would not include a mere
right to possession or to recover possession through the assistance of a
court of law. Hence in respect of property which had gone out of the
ownership and possession of a Hindu widow under a dedication to a
deity prior to the passing of the Hindu Succession Act, 1959, she could
not acquire absolute ownership in it.
It may be pointed out that in this case the widow did not have even
a right to possession, or to recover possession through court. Though
the dedication was beyond her powers of alienation, she herself could
not impeach it. The dedication was binding on her and effectively di
vested her of all her rights in the property.
In Anandibai v. Sundarabai,m a similar view of the word "possessed"
was taken. The Madhya Pradesh High Court held that the concept
of being "possessed" could not be divorced from the idea of possession
altogether and "must include possession either actual or constructive
in some legal sense." 49 It was laid down that for the application of
section 14, both acquisition and possession must co-exist but it is not
necessary that the two must arise simultaneously. The Court further
held that "if on the date of acquisition a limited owner is not in posses
sion, she continues to be a limited owner till such time, as she obtains
juridical possession of the property, either actual or constructive. It is
at that time...that the property becomes her absolute property." 50
Another qualification was stated in Damodhar Rao v. Bhima Rao,bl
nam$iy, that possession whether actual or constructive should necessarily
be in one's own right. If having already alienated all her interest in
the property, including her right to remain in possession, the female
thereafter continued in possession of the same, it was not in her own right
but as a trespasser or as licensee of the purchaser.
The Jammu and Kashmir High Court in Shib Dai v. Ghauri Lai52
has held that if a deed of alienation is a sham transaction, the widow
shall be deemed to have remained in possession: "if a widow is not in
actual or constructive possession of the property but if in law the property
has not absolutely vested in another person, she will be deemed to be
in possession thereof."53
Thus, we see that utmost diversity of views exists regarding the
concept of being "possessed" as used in section 14(1) of the Hindu Suc
cession Act. It ranges from actual or constructive possession to a mere
right to sue for possession. Much of the divergence appears to be due
48. A.I.R. 1965 MP. 85.

49. Id. at 92.
50. Ibid.
51. A.I.R. 1965 Mys. 290.
52. A.I.R. 1965 J. &K. 11.
53. Id. at 15.

to the application of the concept to particular facts, but perhaps some
of the views have been expressed in too broad terms.
Bat Kamla v. Occhavlal54 touches upon a point on which there was
once a controversy, namely, whether the category of reversioners has
completely disappeared by virtue of the provisions of sections 14 and
15 of the Hindu Succession Act. However, the High Courts have now
fallen into line, and it is agreed that if a female owner was "possessed"
of property in terms of section 14, she would be regarded as absolute
owner eliminating all reference to reversioners, whereas if she was not
so possessed, the old Hindu law will continue to apply.
Sub-section (2) of section 14 is perhaps one of the most difficult
provisions to construe in the Act. It needs to be pointed out that there
is a certain amount of overlapping in the two sub-sections of section 14
with the result that they would compete keenly in all marginal cases.
Moreover, it cannot be overlooked that sub-section (1) is in furtherance
of the avowed legislative policy as its sweeping and all-inclusive terms
pointedly show whereas sub-section (2) is in derogation of that policy
necessitating a denial of those absolute rights which the legislature was
so anxious to confer on Hindu females. The judicial approach regard
ing section 14 is well put in Veerbhadra Rao v. Lakshmi Devi^ by the
Andhra Pradesh High Court: "After this section came into vogue...it
is thus clear that one has to start with the presumption that the property
in the possession of a female Hindu howsoever acquired is held by her
as full owner." 56 Sub-section (2), thus, takes the position of an excep
tion or proviso to sub-section (1), and although it has been said that the
operation of both sub-sections is independent of each other, the same
strict rules of construction as are applied in the case of exceptions have
also been applied in the construction of sub-section (2), and effort is
made to confine its operation within the narrowest limits. Thus, it
has been held 57 that the word "acquire" in sub-section (2) refers only
to those cases where the Hindu female had no right to the property be
fore the gift, or will, or decree, or award, and the right was conferred
on her for the first time by the relevant document, whereas the same
word under sub-section (1) has been given the widest possible meaning
by the Orissa High Court. 58 Secondly, the words "any other instru
ment" in sub-section (2) have to be construed ejusdem generis with gift
or will, the test being whether the instrument itself confers a right in the
property on the female, or merely recognises a pre-existing right. 59
54. A.LR. 1965 Guj. 84.

55. A.LR. 1965 A.P. 367.
56. Id. at 369.
57. See Saraswathi Ammal v. Krishna Iyer, A.I.R. 1965 Ker. 226; Veerbhadra
Rao v. Lakshmi Devi, supra note 55; Raghunath Sahu v. Bhimsen Naik, A.I.R. ?965
Orissa 59.
58. Raghunath Sahu v. Bhimsen Naik, supra note 57, at 61-62.
59. Id. at 61.

HINDU LAW 225
Thirdly, the same test is also to be applied to a decree or order or

award. In this connection, it may be observed that a decree or order
or award rarely confers an absolutely new right on a person. It is almost
always in recognition or enforcement of a pre-existing right that a
decree or order or award is passed. The mere fact that there is a doubt
or indefiniteness or dispute about a right does not mean that it does not
exist.
The term "restricted estate" in secticn 14(2) has received a novel
meaning in the Veerbhadra case. The learned Judge held that it would
be mistake to equate it with the woman's estate or life-estate as is com
monly understood under the old Hindu law, but this term has to be
understood in reference to sections 10 and 11 of the Transfer of Property
Act. "If the instrument merely creates a life-interest without any restric
tion, it is obvious that it cannot be said to be restricted estate." 60 The
view of the learned Judge deserves further thought and study, but it may
be remarked that "restricted estate" is perhaps different from restraints
on alienation as mentioned in section 10 of the Transfer of Property
Act; section 11 in terms applies only to absolute transfers. Moreover,
those words appear to be words of limitation defining the nature of
the estate, rather than words indicative of conditions subsequent.
It is well-settled that section 14 of the Hindu Succession Act is meant
to benefit the limited owner and not alienees from her. Chinnakolandi
v. Thanji61 is an interesting illustration of the methods devised to by
pass the legal hurdle. In 1948, a Hindu widow made a gift of property
inherited from her husband. In 1958, after the Hindu Succession
Act had come into force, the reversioner filed a declaratory suit. While
the suit was pending, the donee reconveyed the property to the widow.
It was held by the Madras High Court that after the donee reconveyed
the property, section 14 would apply, and the title and possession ac
quired by the widow, though after the Act, would be enlarged and
she would become absolute owner of the property. The learned Judge
observed that neither the Hindu law nor the general principles of the law
of transfer "prevent the alienee conveying back the property to the
alienor in the same capacity and in the same right in which it was con
veyed by the widow." 62 Ramamurty, J., further held that the effect
of the prior alienation is thereby completely wiped out and the original
position is restored. "For all purposes the intervening aliena
tion and the reconveyance will have to be left out of account and the
widow should be regarded as enjoying the property as an heir to her
husband." 68
The legal position is somewhat fluid. The Punjab High Court in
60. Veerbhadra Rao v. Lakshmi Devi, supra note 55t at 370.

61. A.I.R. 1965 Mad. 487.
#62. Id. at 500.
*63. Id. at 502.

Teja Singh v. Jagat Singh®4 has taken a similar view while the Orissa
High Court in the Raghunath Sahu case has come to a contrary conclusion.
Ramulu v. JVarayana®5 decided a very simple point but may be noted
since it is one of the few cases which have so far come up under section 8
of the Hindu Succession Act. It was held that if a female Hindu inherits
the property of a male Hindu who had died before the commencement
of the Act, and herself dies after the Act came into force, without acquir
ing absolute rights in the property under section 14, the succession to
such property shall be deemed to have opened on the death of the female
and be governed by section 8 of the Act. The words "dying intestate"
in that section are a mere description of status of the deceased a r d have
no reference to the time of his death. Similar decisions, it may be poin
ted out, are numerous under the Hindu' Law of Inheritance (Amend
ment) Act, 1929, where the same words were used.
Hira Singh v. Ishar Singh®6 was a case under the Punjab customary
law, but the ratio is applicable to reversionary succession under the
Hindu law as well. It was held that if a reversioner obtains a declara
tory decree against an alienation made by a limited owner, it certainly
enures for the benefit of the entire body of reversioners, but, if the suc-
cesion opens out after the Hindu Succession Act came into force, and
the actual heir under the Act does not belcrg to the erstwhile bedy of
reversioners, he cannot get the property by virtue of the decree. The
property which was the subject-matter of alienation would, under
the law, be simply held not to form part of the estate left by the
deceased.
The nature of the right acquired by two co-widows on succession
to their husband's property was elucidated by the Supreme Court in
Karpagathachi v. Nagarathinathachi67 T h e co-widows succeed as joint
tenants with rights of survivorship and equal beneficial enjoyment. They
are entitled to have the property partitioned so that each could separate
ly possess and enjoy the portion allotted to her. By mutual consent,
however, they could even divide the property absolutely so as to pre
clude the right of survivorship of each to the portion allotted to the other.
Such an arrangement is not repugnant to section 6(1) of the Transfer of
Property Act. What section 6(a) prohibits is the transfer of the bare
chance of the surviving widow taking the entire estate as the next heir
of her husband on the death of the co-widow. The interest of each
widow in the property inherited, however, is property which along with
the incidental right of survivorship may be lawfully transferred. The
widows are undoubtedly competent to partition ihe properties and allot
separate portion to each, and incidental to such allotment, each could
64. A.LR. 1965 Punj. 403.

65. A.I.R. 1965 A.P. 466.
66. A.I.R. 1965 Punj. 13.
67. A.LR. 1965 S.C. 1752,

HINDU LAW 227
agree to relinquish her right of survivorship in the portion allotted to

the other.
The point decided in this case, it may be pointed out, was only that
the relinquishment of the right of survivorship by co-widows as a part
of an arrangement or partition between them is not prohibited by sec
tion 6(a) of the Transfer of Property Act. The other propositions enun
ciated therein have merely been culled from earlier decisions and would
not, it is submitted, disturb the existing position, namely, that such
an arrangement or partition among co-widows has no effect on the ulti
mate reversion.
Two cases from Patna 68 dealt with surrender by a widow. Surren
der is the self-effacement of a widow requiring neither consent nor accep
tance from the nearest reversioner. There is, therefore, no estoppel
against the reversioners, or any person claiming through them, from
challenging the surrender if it is void or voidable in law. A rea
sonable provision for maintenance is not incompatible with surrender;
where, however, what is sought to be surrendered is immediately sought
to be taken back by a deed of maintenance, this fact alone shows that
there was no bonafide surrender.
The plea of benami is a handy instrument to assail titles, especially
of females, and the source from which the consideration was provided
is often taken to be almost decisive of the nature of the transaction. In
Kanakarathanamma v. Loganatha,m the Supreme Court emphasised that
the subsequent conduct of the parties was also a factor extremely mate
rial to the issue. In this case, the consideration for the purchase of cer
tain property was entirely provided by the vendee's husband, but subse
quently, in the course of various letters relating to the management of
the property, the husband unmistakably took the position that it be
longed to the wife and he was merely managing it. The Court held
that the purchase was not benami. Regarding management and pos
session by the husband, the Court said that it would "inevitably be so
having regard to the fact that in ordinary Hindu families, the property
belonging exclusively to a female member would also be normally managed
by the Manager of the family ; ... it would be idle to contend that the
management by the husband of the properties is inconsistent with the
title of his wife .... [This] would be equally true about the actual posses
sion of the properties, because even if the wife was the owner of the pro
perties, possession may continue with the husband as a matter of con
»'70
venience
As to the other point, namely, whether under the circumstances,
the property could not be regarded substantially as a gift by the husband
68. RamPrasadv. SitalPrasad, A.LR. 1965 Pat. 47; Ram Bali v. Lakshmi Kaurt
AJ.R. 1965 Pat. 358.
69. A.LR. 1965 S.C. 271.
. 70. Id. at 274.

to the wife falling under section 10(2) (b) of the Mysore H i n d u Law
Women's Rights Act, 1933, 7 1 the Court observed:
The argument about the substance of the transaction is of no assistance
because the requirement of S. 10(2)(b) is that the property which is the
subject matter of devolution must itself be a gift from the husband to the
wife . . . and quite clearly a gift of immovable property worth more than
Rs. 100 can be made only by registered deed. The enquiry as to whether
the property was purchased with the money given by the husband to the
wife would in that sense be foreign to S. 10(2)(b). Gift of money which
would fall under S. 10(2)(b) if converted into another kind of property
would not help to take the property under the same clause, because the
converted property assumes a different character and falls under S. 10(2)(d).72
Mudholkar, J . , dissenting, h e l d that it a m o u n t e d to a gift. His

Lordship observed that the transaction being one indivisible whole, there
was n o scope for splitting it u p in two parts—a gift of money a n d a pur
chase of the property. I n effect, it was the husband who purchased the
property with the intention of conferring the beneficial interest on the
wife. 73
W i t h respect, it m a y b e submitted t h a t t h e opinion of the majority
seems to be preferable. O n c e the benami nature of transaction is ruled
out, the source of consideration becomes immaterial. T h e wife in this
case derived h e r title to the property directly from the vendor without
any intermediary vesting thereof in the husband. T h e transaction, as
far as title to the property was concerned, could not be regarded either
u n d e r the general law of transfer or under H i n d u law as a gift by the
h u s b a n d to t h e wife.
I n Lakshmi Perumallu v. Krishnavenamma,74 t h e Supreme Court set
at rest a long standing controversy regarding the implications of section
3(2) a n d (3) of the H i n d u Women's R i g h t to Property Act, 1937. While
it has been h e l d with n e a r unanimity that the deceased husband's interest
in the joint family property did not, u n d e r the Act, devolve on the widow
by survivorship as she h a d not b e e n m a d e a coparcener in t h e family,
opinion was divided w h e t h e r she succeeded as a n heir of h e r husband,
or a new right covered neither by survivorship nor inheritance h a d been
conferred on h e r by statute. T h e Supreme Court upheld the latter view
observing t h a t it is a not quite correct to say that the property of one
71. Section 10 of the Mysore Act of 1933 defines "Stridhana" "Gift" is placed
under sub-section (2), clause (b) and "purchase" under clause (d). The distinction
becomes material in case of succession. Property falling under section 10(2) (b) is
inherited by daughters in preference to sons, while that falling under section 10(2) (d)
is inherited by both together. The terms "gift" and "purchase" are also used in section
14 of the Hindu Succession Act, and although the difference is not as material there, this
case may provide a guideline for the interpretation of those terms in that section too,
73. Id. at 277.
74. Supra note 41.

HINDU LAW 229
person can, on his death, devolve on another only by survivorship or
by inheritance and in no other way. For it is competent to the legis
lature to confer a right on a person to get the property of another on
the latter's death in certain circumstances, and this is precisely what
has been done in section 3, sub-section (2).
Proceeding further, the Supreme Court held that the quantum
of interest to which the widow is entitled is to be determined as on the
date she seeks to enforce partition under section 3(3). The Court ob
served that the widow's interest in the family property is in substitution
of her right under the pre-existing Hindu law to claim maintenance.
According to the theory of Hindu law, the widow of a deceased Hind.u
is his surviving half, and therefore as long as she is alive he must be deem
ed to continue to exist in her person. This surviving half had under the
Hindu law texts no right to claim a partition of the property. The Act
of 1937 has conferred that right upon her. When the Act says that she
shall have the same right as her husband had, it clearly means that she
would be entitled to be allotted the same share as her husband wculd
have been entitled to, had he lived on the date on which she claims parti
tion. She can, therefore, claim a share not only in the property owned
and possessed by the family at the time of her husband's death, but also
in the accretions arising therefrom irrespective of the character cf the
accretions.
In repelling the argument that the widow should be allotted the
same share as her husband was entitled to at the time of his death, the
Supreme Court seems to lay emphasis on the point that would indirect
ly mean a disruption of the joint family which, of course, never occurs
by the death of a coparcener, nor is the Act intended to bring about
such a result. Thus, it was observed that "to hold, as contended for by
Mr. Desai and as would appear from the two decisions75 upon which
reliance was placed by him before us ... would mean that whenever a
coparcener in a Hindu joint family dies leaving a widow, a disruption
takes place in the family. For, unless a disruption is deemed to take
place, it would not be possible for the widow's share to be crysta
llised." 76 Again: "No doubt, the husband's interest does not devolve
on the widow by survivorship, but it does not follow from that that the
husband's interest gets crystallised at the moment of his death and
that it is to this interest that the widow succeeds." 77 It may be submitted
that the ascertainment of the share of a coparcener, or even his formal
separation, does not necessarily or inevitably mean a disruption of the
whole family. Although the normal presumption about jointness is
destroyed, the remaining members of the family may still continue to be
75. Jadaobai v. PuranmaU A.I.R. 1944 Nag. 243; Siveshwar Prasadv. Har Narain^
A.I.R. 1945 Pat. 116.
77. Id. at 831.

joint as before. 7 8 Moreover, if the share of a deceased coparcener is to

b e ascertained merely for the purpose of recognising the rights of
succession otherwise t h a n by rule of survivorship, 79 or for revenue
purposes, 8 0 there is the idea of a "notional partition" embodied in the
various statutes.
I n Manicka Gounder v. Arunachala Gounder,Hl the rights conferred on
a coparcener's widow u n d e r secticn 3(2) of the H i n d u Women's Rights
to Property A c t came into sharp conflict in a n extreme form with
other person's rights in the joint family property under the H i n d u law.
T h e material facts were simple. Two brothers formed a coparcenary.
O n e of t h e m died in 1950 leaving his widow. T h e other, who was
then the sole surviving coparcener, died later leaving a daughter. Both
the widow a n d the d a u g h t e r claimed the whole joint family property.
T h e Full Bench came to the conclusion that the widow was not made
a coparcener by the Act a n d could not claim the benefit of survivorship.
She h a d only been given certain rights by the statute. " T h e s t a t u t e , "
observed the Full Bench, "does not purport to affect or interfere with
the other branches of H i n d u law. I n the absence of express words it
cannot, therefore, be assumed that for the purpose of giving rights to
widows the legislature intended to throw overboard the fundamental
concepts of the H i n d u law of succession a n d rules of survivorship." 8 2
T h e Court concluded that " t h e rights of the wir'ow of a coparcener will
have to b e worked out harmoniously with the rights of the sole survi
ving coparcener. T h u s , w h e n a sole surviving coparcener dies leaving
his own heirs as well as a predeceased coparcener's widow, the fcrmer
will inherit his share of the family property subject to the rights of the
l a t t e r . " 8 3 R e g a r d i n g the fluctuating nature of the widow's interest,
the Full Bench said that it exists "because her husband's interest itself
was liable to such fluctuation, h a d h e been alive. It is not any special
attribute of the estate h e l d by her under the Act,.. . Secondly, fluctuation
of interest can exist only so long as the coparcenary exists . . . the fluc
tuation of a widow's interest can take place only till one coparcener lives.
W h e n t h a t stage is r e a c h e d the rights of the widow should be held to
have been crystallised." 8 4 I n the result, it was h e l d that the widow
was entitled to one half of the joint family property a n d the daughter
to the other half.
Some of the observations m a d e by the Full Bench do not seem to
be in harmony with the views expressed by the Supreme Court in the
78. Palani Ammal v. Muthu Venkatachala, 52 LA. 83.

79. Cf. section 6, Hindu Succession Act, 1956.
80. Cf. section 39, Estate Duty Act, 1953.
8L A.I.R. 1965 Mad. 1 (F.B.).
82 Id. at 7.
83. Id. at 8.
84. Id. at 7-8.

HINDU LAW 231
subsequently decided case of Lakshmi Perumallu v. Krishnavenamma^

discussed above. For instance, the Full Bench did not attach much
significance to Brihaspati's text relating to the continuance of the deceas
ed husband in the person of his surviving half, that is the widow. The
text of Brihaspati, the Court observed, "only gives a reason for giving
the wife priority in the scheme of inheritance to her husband's separate
property. Assuming the such reason amounts to a fiction as to the per
petuation of her husband's property so as to enable her to inherit that
property, that fiction has never been applied to regulate devolution of
coparcenary property." 86 On the other hand, great reliance seems to
have been placed on the said theory of surviving half in the Supreme
Court case which directly involved devolution of joint family property.
Further, the widow, according to the Supreme Court, "would be en
titled to be allotted the same share as her husband would have been
entitled to had he lived on the date on which she claimed partition." 87
In this view, much of the discussion about the fluctuation of her interest
or the crystallisation of her share at any particular time or the harmo
nious adjustment of her rights with those of the sole surviving coparcener,
his heirs and legatees seems inconsequential. In fact, it is not her inte
rest that fluctuates, but the interest of her deceased husband who is
fictionally supposed to exist in her person. She comes into the picture
only when claiming partition. If the husband is deemed to continue
to exist, there is no question of crystallisation of the interest when the
joint family property passes into the hands of the sole surviving copar
cener, or even after his death. If she claims partition during the life
of the sole surviving coparcener the share of her husband, had he been
alive, would have been half. On the death of the sole surviving copar
cener, the interest of her deceased husband, had he been living, would
have extended to the whole property; and she is entitled to the same
interest as he himself had.
V. MARRIAGE
What constitutes marriage in law is, in general, so vaguely compre

hended that it is often lost sight of even in criminal prosecutions for
such grave offences as bigamy where strict proof of marriage is obviously
essential. Some vagueness is, of course, inevitable on account of the
innumerable customs which have altered the Shastric ceremonies be
yond recognition but nevertheless the custom, if one is relied on, must
be legally established. Unless there is a marriage according to the
ceremonies or formalities prescribed by law or custom, as the case
may be, the legal consequences whether penal, punitive, remedial or
85. Supra note 41.


regulatory would not ensue. Thus, the Supreme Court in Bhaurao

v. State of Maharashtrasg set aside a conviction for bigamy and refused
to accept certain so-called customary ceremonies, without the perfor
mance of the essential Shastric ceremonies of invocation before the
fire and Saptapadi, as constituting a Gandharva marriage. Bigamy, as
is well known, has become an offence for Hindus by virtue of section 17
of the Hindu Marriage Act, 1955. That section, as also other sections
in the Act (e.g. sections 5 and7),usethe word "solemnised" which means
"celebrated with proper ceremonies and in due form." It is, there
fore, essential, observed the Court, "that the marriage to which S. 494
I.P.C. applies on account of the provisions of the Act, should have been
celebrated with proper ceremonies and in due form. Merely going
through certain ceremonies with the intention that the parties be taken
to be married will not make the ceremonies prescribed by law or app
roved by any established custom." 89 In this case, since there was
no evidence on record that the performance of the two essential
ceremonies had been abrogated by custom, the Court held that if the
marriage was not a "valid" marriage, it was no marriage in the
eyes of law and no question of its being void by reason of its taking
pla.ee during the life of the husband or wife of the person marrying
arises.
With due respect, it may be submitted that the use of the word
"valid" is likely to produce at first sight some misapprehension. No
doubt, his Lordship refers to the "formal," and not "essential," validity
of the marriage. It is only when a marriage lacks formal validity that
it is said to be no marriage at all. This becomes clear on reading the
judgment further. Nevertheless the word "valid" is comprehensive
enough to include both kinds of validity and might as well have been
avoided.
Similarly, it was contended in Phankari v. Statem that a presump
tion should be raised from the presence of the officiating priest at the
marriage that the necessary ceremonies had been performed. The
Court rejected the contention holding that the prosecution must prove
affirmatively that the accused had gone through a form of second mar
riage which is recognised by law, that is to say, the ceremonies essential
to make the marriage complete and binding must be proved to have
been performed. Under section 7 of the Hindu Marriage Act, the
ceremony of Saptapadi is essential unless excluded by some custom go
verning the parties and if evidence of its performance is not forthcom
ing the essential ingredient of the offence of bigamy would be wanting.
The law as set down in Halsbury was quoted with approval by the learn-
88. A.LR. 1965 S.C. 1564.

89. Id. at 1565-66.
90* A.I.R. 1965 J. & K. 105.

HINDU LAW 233
ed Judge:
A person already married who, having the intention of appearing to con
tract a second marriage, goes through a form known to and recognized
by the law as capable of producing a valid marriage is guilty of bigamy,
although the second marriage, even if it were not bigamous, would be
otherwise invalid.©i
It will be seen that the emphasis is upon the form as prescribed or

recognised by the law for the marriage in question.
In a suit for the restitution of conjugal rights under section 9 of
the Hindu Marriage Act, 1955, the primary onus lies, as laid down in
Smt. Reba Rani v. Ashit,92 on the petitioner to establish that the other
party has, without reasonable excuse, withdrawn from his society.
Unless he succeeds in discharging that onus, his petition must fail. The
defences open to the wife under sub-section (2) of section 9 would be
material only if the husband's action was otherwise entitled to succeed
under sub-section (1). Thus, where the husband alleged that he made
repeated attempts to bring back his wife from her father's place, but
could not substantiate it in court, his case that the wife was staying away
without reasonable cause failed. The position would not be affected
by the fact that the wife's allegations about torture and cruelty could
not be established.
In Jogindra Kaur v. Shivacharan Singh93 also, it was held that in a
suit for restitution of conjugal rights, the petitioner has to establish a
sincere desire for resumption of cohabitation. The petition would fail
if he is not sincere in his request and there is some incompatible ulterior
object.
The problems of cohabitation between husband and wife may,
in the context of modern social conditions, be difficult of solution.
However, the facts of Pothuraju v. V. Radha94: do not seem to have pre
sented much difficulty to the Andhra Pradesh High Court adopting
the orthodox view. There was a pre-nuptial agreement between the
husband and the wife that the former would live with the wife's foster
father. He did reside there for some time, but later returned to his
home village and asked his wife to come there too. On her refusal,
he sued for restitution of conjugal rights. The Court decreed the suit
observing that the rules of Hindu law impose an obligation and a duty
upon the wife to live with her husband wherever he may choose to
reside, and it is his right to require the wife to do so. The Courts can
not deprive him of that right except under special circumstances
which absolve the wife from that duty. The pre-nupital agreement
91. 10 Halsbury, Laws of England 664 (3rd ed. 1955).

92. A.I.R. 1965 Cal. 162.
93. A.I.R. 1965 J. & K. 95.
94. A.LR. 1965 A.P. 407.

would not affect the right of the husband; indeed, it may well be cont
rary to public policy and therefore unenforceable.
The wife is no doubt bound to live with the husband wherever he
may choose to reside, but no law can direct her to live with any other
person, e.g. the parents of the husband, especially when he does not
live there. A decree was on this ground refused in the Jogindra Kaur
case when the husband insisted that the wife should go and live with his
parents because he could not provide suitable accommodation for her.
Can a wife resist a suit for restitution of conjugal rights on the
ground that the husband has another wife living, and she is entitled
to live separately by virtue of section 18(2) (d) of the Hindu Adoption
and Maintenance Act, 1956? A. Annamalia v. Perumayee Ammal9r>
leads to the conclusion that she cannot. "There can...be no contra
diction," observed the Court, "between the rights of the husband, in
a subsisting marriage, to have restitution of conjugal rights and the
right in one wife to live separately, so long as her husband is living with
another wife" 96 Accordingly, the Court held that the husband can
live, at his option, with any wife but in so doing he'cannot insist on the
other wife living with them. The right given to the wife under section
18(2) (d) of the Act of 1956 does not operate so as to absolve her of
the marital duty to cohabit with the husband, as for instance, a decree
for judicial separation does. The words "any other wife living" in
section 18(2) (d) must be given a restricted meaning, like *'any other
wife living with him." If the word "living" were to be given its ordi
nary interpretation, then all the wives that a man had married when
such marriages were lawful could live without him and still claim mainte
nance.
The husband has, indeed, a reasonable case for the court's consi
deration. He is virtually helpless in such a situation. He cannot
divorce either wife; there is nothing like section 13(2) of the Hindu
Marriage Act for his benefit. The marital relationship must go on
subsisting between him and both the wives until one of them takes the
initiative. Meanwhile, both may take advantage of section 18(2) (d)
of the Act of 1956 to live separately and claim maintenance.
The phrase "living in adultery" in section 13(1) (i), Hindu Marriage
Act, 1955 has been used elsewhere too, e.g. in section 497, Indian Penal
Code, and section 488 of the Code of Criminal Procedure. But as
pointed out in Chanda v. Mst. J\fandu,Q7 in matrimonial cases, adultery
has a different and wider meaning, namely, sexual relations of a mar
ried person with one who is not his or her lawful spouse whether un
married or married to another. There is a two-fold emphasis in sec
tion 13(1)(i) of the Act: there should be adultery in the sense set
95. A.I.R. 1965 Mad. 139.
96. Id. at 142.
97. A.I.R. 1965 M.P. 268.

HINDU LAW 235
out above, and that should be a state of affairs continuing for some
time. If a so called marriage is no marriage for want of ceremony
or because of the contravention of the provisions of the Hindu Marriage
Act, and the husband is living continuously with the woman, it would
amount to living in adultery.
In Varadarajulu v. Baby Ammal,os the Court allowed an appeal by
a husband and granted divorce on the ground that the wife was living
in adultery. The Court rightly observed that in divorce cases, courts
can act even on uncorroborated evidence of adultery, and grant re
lief to the parties taking the surrounding circumstances into account.
But it may be pointed out that the circumstances must be such "as would
lead the guarded discretion of a reasonable and just man to the conc
lusion," 99 and, moreover, the requirements of the statute must
also be satisfied. On these premises, it seems open to doubt whether
the reported facts and circumstances of the case justified the High Court
in setting aside the judgment of the lower court. The facts as to a
continuous state of adultery were not clearly established and, indeed,
at one stage the Court actually made a remark to the effect. It acted
on proof of past adultery, and although it may not be strictly necessary
to prove the continuance of the adultery till the date of the petition,
a link should be capable of being established between the two.
Mahendra v. Sushila100 lays down certain guide-lines for the courts
to assist them in considering the evidence produced in matrimonial
causes. The case was for annulment of marriage on the ground of pre-
nuptial pregnancy of the wife. The Supreme Court held that in order
to succeed, the petitioner has to prove beyond reasonable doubt that the
respondent was pregnant by someone else at the time of marriage.
In other words, he has to establish such facts and circumstances which
would lead the court either to believe that the respondent was preg
nant as above or to hold that a prudent man would on those facts and
circumstances, be completely satisfied that it was so. In arriving at
its conclusion, however, the court is not precluded from considering
evidence which is relevant and admissible under the provisions of
the Evidence Act and the Code of Civil Procedure. For instance,
admissions made by the parties in their pleadings can be accepted by
the courts and no further proof in support of the facts admitted need
be required. It is true that matrimonial courts do not usually decide
merely on the basis of admissions but that is a rule of prudence to guard
against collusive statements, and not a requirement of law. Where
there is no room for supposing that parties are colluding, there is no
reason why admissions of parties should not be treated as evidence just
as they are treated in other civil proceedings. This is particularly
98. A.I.R. 1965 Mad. 29.
99. Lovendon v. Lovendon, 161 E.R. 648.
100. A.LR. 1965 S.C. 364.

so because sections 23 and 12(2) of the Hindu Marriage Act specifically

require the court to be satisfied, of course, on the evidence on record
about certain matters including collusion before granting relief. Once
the court is satisfied that there exists no obstacle in granting the relief,
the aforesaid rule of prudence also loses its importance.
Mudholkar, J., dissented, but there does not seem to be any subs
tantial difference of opinion on the principles mentioned above. His
Lordship observed that admissions in the pleadings have to be taken
as a whole but held that the case set up by the respondent including
the admissions was false and so the decision had to be made on the
other evidence on the record.
The importance of the psychological factor in the concept of cruelty
is being increasingly recognised by the Indian courts. Thus in Kusum
Lata v. Kamta Prasad,101 while holding that reckless allegation of un-
chastity against the wife may amount to legal cruelty, the Court observed
that the most crucial and decisive test was the psychological effect cf
the allegation on the wife. It further held that excessive sexual demands
may also amount to cruelty. "Indeed," remarked the learned Judge,
"according to matrimonial experts this sphere of conjugal life ought
to be more sedulously guarded against psychological injuries than any
other." 102 He also hinted at the desirability of obtaining the assistance
of competent psychiatrists in cases of this type.
M.P. Shreevastava v. Mrs. Venna103 was a case u n d e r the Special
Marriage Act, 1954, but the view taken therein may as well be adopted
in similar cases under the Hindu Marriage Act. The facts of the case
may be briefly mentioned. The husband obtained a decree (ex parte)
for the restitution of conjugal rights. After the decree, the wife made
several attempts to be allowed to return and live with the husband
but there was no response from his side. At last, she applied to the court
praying that the decree be recorded as satisfied. On behalf of the
husband, it was contended that once a decree for restitution of con
jugal rights has been passed, there is no occasion or scope as a matter
of law for recording that it has been satisfied, and that either the dec
ree-holder chooses to proceed under order 21, rule 32, Civil Procedure
Code, or he proceeds to secure a decree for divorce under section 27(1)
of the Special Marriage Act. 304 The Court rejected the contention
and granted the wife's prayer observing that if "the judgment-debtor
is willing to obey the decree but the unjustified obstruction towards
the performance of the decree comes from the decree-holder then, ...the
judgment-debtor would be fully entitled to approach the court and
pray that the decree be recorded as satisfied so that the decree-holder
101. A.I.R. 1965 All. 280.
102. Id. at 286.
103. A.LR. 1965 Punj. 54 (Confirmed recently by the Supreme Court, see The
Statesman, New Delhi, dated August 25, 1966).
104. Cf. section 13(l)of the Hindu Marriage Act, 1955.

HJNDU LAW 237
may not fraudulently and malafide utilise this decree for obtaining a
decree for divorce." 105 The Court further held that the conduct of the
husband was clearly indicative of a planned design to have a decree for
divorce, and thereby to get rid of his responsibility towards the wife and
also towards his child. "The policy of the law...is not to encourage utili
sation of decrees for restitution of conjugal rights for such purposes." 106
It is well known that decrees for restitution of conjugal rights as
well as for judicial separation are used as mere steps to obtain a decree
for divorce. The common attitude is exemplified by the argument
advanced on behalf of the husband noted above. In the case of judicial
separation, it may be conceded that the resumption of marital re
lations should depend on the volition of the decree-holder even though
the original cause for the separation may have been removed. But
in the other case, the decree-holder has in fact obtained the decree
on the ground that he sincerely wants cohabitation, hence his willing
ness, if not eagerness, is to be presupposed. If he is allowed to thwart
the genuine attempts of the other party to resume cohabitation, and
later on use the non-resumption as a ground for divorce, it would clearly
be an abuse of the process of the court. Preservation of the marital
tie is the basic policy of the law notwithstanding the elaborate provi
sions for dissolution.107 The course adopted by the learned Judge
might perhaps help to steer a few marriages away from the yawning
gulf of dissolution where the worst sufferers as a rule are the innocent
children.
VI. ADOPTION
Only seven cases were reported in this branch of Hindu Law, for
merly regarded as one of the most prolific source of litigation. The
Hindu Adoption and Maintenance Act, 1956, however, was invoked
only in one case, viz., Nathuni Prasad v. Mst. Kachnar.l0S An adoption
had been made by a widow before the commencement of the Act with
out authority from the husband. All the necessary formalities and
ceremonies had been performed. The adoption was challenged after
the Act came into force. It was contended in defence that since the
adoption fulfilled all the requirements laid down in the Act, it should
be deemed to be valid now that adoptions were governed by the Act.
The Court rejected the contention holding that the Act was not retros
pective and could not validate an adoption which was void under the
law then in force. At that time, the authority from the husband

106. Id. at 57-58.
107. Cf. sections 23(2) and 14 of the Hindu Marriage Act, 1955 and sections 34(2)
and ^29 of the Special Marriage Act, 1954.
"l08. AJ.R. 1965 Pat. 160.

was the basis of the widow's right to adopt. Now the position has
changed but the initial invalidity could not be cured.
The legal effect of an adoption made by a widow under the Act
does not seem to be free from doubt. The judgment indicates that
perhaps in the opinion of the learned Judge, an adoption by a widow
is still made to the deceased husband. A further examination of the
relevant provisions seems to be necessary before this view can be accep
ted without reservation.
Two of the reported cases dealt, inter-alia, with points of evidence
in proof of adoption. The evidentiary value of admissions was reite
rated in Bkola Chaube v. ManMatun,109 and it was held that an admis
sion of adoption in a registered deed was evidence of such probative
force that it shifted the very grave and serious onus resting upon the
person who seeks to displace the natural succession of property by the
act of adoption. The admission comprises both the fact and the vali
dity of the adoption, and the burden of proving to the contrary lies
upon the maker. Section 16 of the Hindu Adoption and Maintenance
Act contains a provision to similar effect. However, as held in Gun-
dicha v. Iswara,110 an acknowledgement in a deed of adoption does not
by itself confer any status. It can, at the best, operate only as an es
toppel against the acknowledger, but where the parties are equally
conversant with the true state of facts, the doctrine of estoppel has no
operation. Thus, where a person acknowledged his married nephew
as his son is an adoption deed, everyone concerned knowing that he was
married—he could, nevertheless subsequently challenge the validity of
the adoption since it was settled law that a married person could not
be validly adopted.
It is well established that a power or right to give a boy in adopt
ion vests in the parents alone and cannot be delegated to anyone where
as the physical act of giving and taking can be performed by someone
else also. Sometimes, however, difficulty arises in establishing, in the
absence of direct evidence, that the parent himself exercised the voli
tion and delegated the performance of the physical act to the person who
actually performed it. In Ganga Bayee v. Krishna Rao,111 the Court
held that both the points could be inferred from the fact that the mother,
herself a widow, was present throughout the ceremony, while the
maternal uncle and his wife gave the boy in adoption.
The rule of strict construction applies to the authority given by a
husband to his widow to adopt. A joint authority to two or more
widows is not common among Hindus, but it has never been declared
invalid. However, as held in Deivasenathipathi v. Visalakashi,in it
109. A.LR. 1965 All. 258.

110. AJ.R. 1965 Orissa 86.
111. A.LR. 1965 Mad. 191.
112. A.I.R. 1965 Mad. 346.

HINDU LAW 239
cannot be enlarged into an individual or several power exercisable by

either widow. A joint authority requires, first, a joint agreement to
adopt; next, the selection of an heir by both the wives; and, finally,
a formal legal adoption. If one of the joint donees dies, the power
would lapse and the survivor would no longer be competent to make
an adoption.
VII. RELIGIOUS ENDOWMENTS
The law relating to religious endowments has partially been sub

jected to legislative enactment. While the basic and substantive prin
ciples are still derived from the Hindu law, the management of re
ligious endowments is increasingly passing under statutory regulation.
Several States have already passed acts for this purpose, and an all-
India measure is also under contemplation. It is not possible, how
ever, to isolate effectively acts of management and subject them alone
to regulation by statute. Powers conferred by the various Acts can be
so exercised as to impinge on, and even to tend to destroy, certain basic
features, which are essentially religious, though affecting secular matters
like collections, expenses and other dealings with the property of the
endowment.
Thus, in Rama Rao v. Board of Commrs., H.R.E.,11Z the District
Court settled a scheme under the Madras Hindu Religious Endow
ments Act, 1926, providing for payment of the customary remuner
ation to the hereditary Karnam, making it incumbent on him to perform
the duties personally except when, for unavoidable reasons, he was
unable to do so. Custom sanctioned the employment of a deputy.
The High Court, being of opinion that since by the appointment of
an executive officer under the scheme the Karnam's duties and responsi
bilities had been lessened, if not eliminated, and since the Karnam, as
a matter of practice, discharged his duties through deputies, fixed a
nominal remuneration for him under all circumstances. The Supreme
Court held that the conditions set out in the scheme as settled by the
District Court were just both as regards the institution as well as the
office-holder and gave effect to the customary rights and obligations
of both. The Supreme Court, however, set aside the decision of the
High Court and observed: "But by their order the learned Judges dep
rived the Karnam of doing duty himself and earning the remuneration
customarily payable to him for such service....The learned judges
themselves appeared to have recognized that the office being hereditary
they could not abolish it. But if this were so, it was not proper to direct
the virtual abolition of this office and depriving the office-holder of
his customary remuneration merely because some portion of the res-
113, A.I.R. 1965 S.C. 231.

ponsibilities...was entrusted to an executive officer."114

I n S.G.D. Panoarasannadhi v. Madras State,115 a scheme for the
administration of a temple, settled by a court under section 92 (1),
Civil Procedure Code, was sought to be modified by the Commissioner,
Hindu Religious and Charitable Endowments, Madras, under the provis
ions of the Madras Hindu Religious and Charitable Endowments Act,
1951. The modified scheme sought to introduce an Executive Officer,
to be appointed by the Commissioner, who would be under his control
instead of that of the trustee. It was not established that the temple
was mismanaged. The Supreme Court refused the proposed modifi
cation observing that the Commissioner had ample powers under the
Act to issue orders, or, at any rate, to advise the trustee regarding the
administration of the temple. Where a temple is so badly mismana
ged that the administration cannot be improved by the exercise of
ordinary powers under the Act, or by framing a scheme, the Commis
sioner has the power to notify such a temple and put it under an Exe
cutive Officer directly responsible to him. Such appointment, practi
cally displacing the trustee, is in the nature of supersession of the ordi
nary administration of the temple. A drastic provision like this may
be necessary where the temple is mismanaged, or if there are other cir
cumstances which compel such an appointment. No doubt, the court
shall have due regard to the views of the Commissioner, but is not there
by relieved of its own duty to ascertain the necessity or propriety or
advisability of the scheme. 116
However, the policy of the law being unmistakably in favour of
regulation of the management—or rather, mismanagement"—of reli
gious endowments, the courts are not likely to defeat it by invalidating
schemes of arrangement settled by competent authorities under the
various Acts. On the other hand, they do try to uphold them if they
can do so with any justification. For instance, in Rajendraswami v.
Commr. H.R. & C.E.,117 a challenge based upon fundamental rights
was repelled by the Supreme Court. A scheme was validly framed
by the Board under the Madras Hindu Religious Endowments Act,
1927. Its implementation was, however, delayed till after the enfor
cement of the Constitution because of litigation and obstructions by the
Mathadhipati. Thereafter, it was challenged as amounting to a dep
rivation of the property rights of the Mathadhipati, and thus infring-
114. Id. at 240; See also Mukherjea, Hindu Law of Religious and Charitable Trust
362-63, 368-69 (2nd ed. 1962).
115. A.LR. 1965 S.C. 1683.
116. In 1959, the legislature passed the Madras Hindu Religious and Charitable
Endowments Act, 1959, which gave plenary powers to the Commissioner to appoint
an Executive Officer. It may be that his powers under the new Act are wider but,
nevertheless, the salutary principles laid down in this case for the interventions of the
Commissioner still deserve to be kept in view.
117. AJ.R. 1965 S.C. 502.

HINDU LAW 241
ing the fundamental right g u a r a n t e e d u n d e r article 19(1)(f). T h e

Court rejected the contention holding t h a t fundamental rights a r e not
retrospective in operation a n d t h a t the deprivation, if any, of the p r o
perty rights h a d already taken place before the commencement of
the Constiution w h e n the scheme was approved b y the Court a n d the
Executive Officer was appointed under it.
I t is settled law that, without proof of dedication, a religious endow
m e n t of property cannot b e h e l d to b e valid, b u t is such proof also ne
cessary even in the case of the temple itself in which the deity has been
installed? T h e case of Shahzad Kunwar v. Ram Karanlls leads to the
conclusion that it is. A R a n i belonging to H y d e r a b a d b o u g h t a house
with a plot of land a t t a c h e d to it in M a t h u r a . She built thereon a temple
and installed therein the idol of Thakur Radha Manoharji. L a t e r on, she
executed a deed of gift in respect of this temple in favour of h e r brother's
son. T h e Supreme Court u p h e l d the gift observing t h a t :
the argument that no interest passed to Raja Indrajit [the donee] by the
deed of gift... proceeds on the erroneous assumption that the property had
already been dedicated. For this assumption we can find no basis in the
evidence on the record. As We read the documents it seems reasonable to
think that no dedication had taken place before this deed of gift and that
really it was after this transfer that Raja Indrajit by his own actings made
the property Devottar, constituting himself the Shebait of the deity .no
I t may, however, be submitted that in the m a t t e r of dedication, the

temple in which the deity has been installed, stands on a different
footing t h a n the other property which is endowed for the service, main
tenance a n d worship of the idol. A formal dedication of the t e m p l e
is implicit, in the consecration ceremony itself. Ordinarily, when
a n idol is installed in a temple, the presumption is t h a t the ceremonies
have been properly performed. T h e Supreme Court itself has h e l d
t h a t where there was Pratistha, i.e. formal installation of the deity, the
dedication was complete a n d valid notwithstanding t h a t Uthsarga h a d
not been performed. 1 2 0
I n t h e present case, t h e idol of T h a k u r R a d h a M a n o h a r j i h a d b e e n
installed in t h e temple, presumably, w i t h all the prescribed ceremonies.
T h u s , the dedication of t h e temple to t h e deity was automatic, complete
a n d valid. I t is difficult to see w h a t further proof of its dedication was
required by t h e Court. I n d e e d , if proof of dedication of t h e temple,
as a n a c t separate from t h e installation of t h e deity therein, is insisted
upon in every case, it m i g h t raise considerable difficulties in establishing
t h e validity of temple endowments.
A certain a m o u n t of ambiguity has b e e n i n t r o d u c e d in t h e case
118. A.LR. 1956 S.C. 254.

119. Id. at 256.
420. Deoki Nandan v. Hurlidhar, 1956 S.C.R. 756; See also Mukherjea, supra
note 107, at 33-34, 140.

by an indifferent use of words. In the beginning, it is narrated that

the Rani bought a house with a plot of land attached to it and "built
thereon a temple." Presumably, the temple was built on the plot of
land and not on, or in, the house. Then, the narration goes on, she
made a "gift in respect of this temple." Nothing is said about the fate
of the house, but it is not unreasonable to suppose that the house was
also included in the deed of gift. This is also indicated by the further
provision in the deed that "the donee should enter into possession and
occupation of the gifted property." Obviously, the lady could not
have meant that the donee would enter into occupation of the temple
in which the deity had already been installed, even if it had been possible
for him to enter into possession thereof. In the operative part of the
judgment, however, the word "property" has been used. If it is to be
interpreted strictly, it must refer to the remple which has been specifi
cally mentioned earlier as the subject-matter of the gift. However,
the word is of wider import, and if under the Hindu law a gift of the
temple was incompetent, it might be interpreted to mean the property
she was competent to deal with, namely, the house and her own rights
as the founder-shebait. This is also indicated by her desire that the
donee should perform the sevapuja and rajbhog of Thakurji as proprie
tor. In all, a difficult case so far as this part is concerned. The other
part merely restates the legal principle that a valid endowment can be
created by the conduct of the proprietor.
It may not be expedient, as observed by the Supreme Court, to
lay down general rules for the constuction of settlements varying
\videly in their terms and conditions, yet the reasons for adopting
a certain construction in a particular case, expressed in general
terms, are of undoubted value in the difficult task of ascertaining
the intention of the settler in other cases. Nirmala Bala v. Balai
Chand121 lays down, in this sense, some useful guide-lines to
determine the nature and validity of a dedication The question
must, of course, be settled by a conspectus of all the provisions of the
deed. If the surplus after meeting the needs of the endowment
is, either expressly or by implication, retained with the settler
or given to his heirs, a partial dedication may readily be inferred. If
on the other hand, no beneficial interest in the endowed property is
reserved to the settler, his descendants or other persons, the dedication
is complete. A provision for payment of reasonable remuneration to
the shebait out of the endowed property with a right of residence in
the property will not invalidate the endowment, nor can it be inter
preted as restrictive of the estate of the deity. Of course, a provision
for the benefit of persons other than the shebait, if it infringes the rule
against perpetuities or accumulation or other impermissible restric-
121. A.I.R. 1965 S.C. 1874.

HINDL L \ W 243
tions, may not be valid, but that does not affect the validity of the endow
ment. The beneficial interest in the provision found invalid would revert
to the deity or the settler depending on whether the endowment is
absolute or partial.
The Indian Trusts Act does not apply to public or private religious
or charitable endowments and, therefore, as held by the Supreme Court
in Hukum Chand v. Ful Chand,122 section 23 of the Act cannot be used
for charging interest from the trustee of such endowments. Nor does
the Charitable and Religious Trusts Act have any provision which
provides for charging the trustee with interest. But a trustee must,
in normal circumstances, duly and promptly invest all capital trust
money coming into his hands and all income which cannot be imme
diately applied for the purposes of the trust. Therefore, when in breach
of his duty he retains the trust money in his own hands uninvested, or
mixes it with his own money or property, he, besides being required
to account for the principal trust money, becomes liable to pay interest
thereon, which, in the absence of other special circumstances, is general!}
simple interest at 4% per annum. In this sense, he may be said to be
a "debtor" of the trust, but cannot be held to have "borrowed" money
from the trust funds, that is to say, to have taken a loan from himself
as a trustee. His liability to pay interest, when ordered by the court
on equitable grounds, does not come within the Hindu law rule of
Damdupat which was evolved to apply in the case of an ordinary credi
tor and debtor.
I.T. Commr. v. Jogendra jVath,i2B though a case on a reference under
the Income Tax Act, contains two highly learned and instructive dis
quisitions on the Hindu concepts of God, deity, idol, temple, religious
endowment, devottar, shebait etc. In the words of Mukharji, J . / ' H i n d u
law of religious endowments, debutter, theology, metaphysics, the
shastras, the Vedas, the Upanishads have all mixed inextricably with
the Income Tax Act to produce this reference." 124 Three questions
of interest were debated before the Court, namely whether the Hindu
deity is an "individual" or "artificial juridical person"; secondly,
whether in the case of an absolute dedication, the religious purpose
is always to be regarded as public; and thirdly, whether the shebait
could be regarded as a trustee. On the first point, Mukharji, J., held
that a Hindu deity is, for the purposes of the relevant sections of the
Income Tax Act, either an individual or a person or both, while Laik,
J., held that the deity is neither an individual nor a juristic person as
such in the Hindu conception. At best, the Hindu deity is a juridical
person only in an ideal, figurative or secondary sense with which sense
the Income Tax Act does not concern itself. On the second point,
122. A.I.R. 1965 S.C. 1692.

123. A.I.R. 1965 Cal. 570.
124. Id. at 573

244 ANNUAL SURVEY OF IND1 \N LAW
both the learned Judges concurred that when there is a complete de
dication in favour of a Hindu idol or deity it cannot but be public; in
the words of Mukharji, J., "it is not within my conception of Hindu law
that a Hindu deity or a Hindu God can be for a private purpose in any
sense of the term. He represents always a public purpose par exc
ellence and the epitome thereof." 125 However, the learned Judge
felt himself bound by overwhelming authority to make the distinction
and sadly observed that "it appears to me that it is too late in the day
for this Court now to go back to original Vedic law on the subject, and
I must with regret come to the conclusion that a valuable original
contribution of Hindu jurisprudence has been lost almost unobtrusively
by misapplication of foreign jurisprudence...." 126 Laik, J., on the
other hand, did not feel himself constrained to compromise on the
issue. 127 On the third point, again, both the learned Judges agreed
that through a shebait is not a trustee in the technical English sense,
his duties and obligations are like those of a trustee, and he cannot
escape the position of at least a "mere trustee,"
Shebaitship is ordinarily inalienable but by reason of certain ex
ceptional circumstances, the law has recognised three well-kncwn ex
ceptions. 128 It is for the alienee to prove that the alienation is co
vered by one of the exceptions. In Bairagi Das v. Uday Chandra,129
a Shebait purported to transfer by a deed of gift deities and all
their properties together with the Shebaiti and Marfatdari rights.
It was held, firstly, that an assignment of the office of Shebait
Marfatdar is void and inoperative, and the office would not pass to the
assignee whether he be the sole immediate heir or any other person;
secondly, that the gift of the deities themselves is void; thirdly, that
alienation could only be made of certain items of the endowed property
(temporalities of the idol) but an assignment of the whole is void, and
conveys no title even against the donor himself while he is alive; and
lastly, it is for the donee to prove that the gift was in the interest of the
deities and there was a concurrence of the whole family (it being a
private endowment).
Sumer Chand v. State of Rajasthan™ relates to succession of property
belonging to a Jain Upasara who had married subsequent to his success
ion to the Upasara properties. The contention was that on marriage,
he had ceased to be z.yati and succession to him thereafter was governed
by the Hindu Succession Act, 1956. The Court held that marriage is
J25. Id. at 583.

126. Id. at 585.
127. Id. at 597. His Lordship's judgment is an elevating exposition of the Hindu
conception of these ill-understood and mis-represented notions.
128. Mukherjea, supra note 107, at 213-14.
129. A.I.R. 1965 Orissa 201.
130. A.I.R. 1965 Raj. 2.

HINDU LAW 245
not regarded as a disqualification for holding the office of a Guran, and

indeed, the majority of Jain Gurans are now married. The Upasara
properties in the hands of the Guran continued to be so even after his
marriage. His spiritual disciple would be entitled to succeed to those
properties under the customary law, the Hindu Succession Act being
inapplicable in such a case.


Hindu Law Case Rulings on Joint Family Property

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HINDU LAW

II. JOINT HINDU FAMILY

The law relating to joint Hindu family is still largely uncodified.

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Kamalammal v. Venkatalakshmi.1 Under the Hindu Law, a congenital

1. A X R . 1965 S.C. 1349.

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T h e r e a r e , however, some remarks in the j u d g m e n t which indicate

O n e or more coparceners may, of course, be appointed by common

6. Krishna v. Sami, I.L.R. 9 Mad. 4(F.B.).

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13. A.I.R. 1965 S.C. 1708

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It is now well-settled that the relinquishment of an interest in immovable

Discussing the effect of the relinquishment, the Full Bench held

21. Id. at 345.

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any share in the coparcenary property. The right of an after-born

27. A.I.R. 1965 All. 586.

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as h e l d in Hanumayya v. Venkata Marasimhazl a n d Sydulu v. Vankateshwa-

31. A.I.R. 1965 A.P. 439.

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the Court in the m a n n e r usually a d o p t e d to discover what in fact the

In terms, Ss. 21 and 22 are prospective. Where the Act is intended to be

Since in this case, t h e claim of the respondents during their lifetime

It m a y b e pointed out t h a t under the H i n d u law before the Act,

36. Id. at 295.

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40. AJ.R. 1965 All. 522.

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absence of fraud or some similar ground, be disturbed at the instance of

III. IMPARTIBLE ESTATE

Impartible estates have practically been abolished by the various

a holder of ancestral impartible Estate could alienate the same in favour

In the result, the compensation money was held to belong exclu­

44. A.I.R. 1965 S.C. 1730.

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48. A.I.R. 1965 MP. 85.

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54. A.LR. 1965 Guj. 84.

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Thirdly, the same test is also to be applied to a decree or order or

60. Veerbhadra Rao v. Lakshmi Devi, supra note 55t at 370.

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64. A.LR. 1965 Punj. 403.

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agree to relinquish her right of survivorship in the portion allotted to

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Mudholkar, J . , dissenting, h e l d that it a m o u n t e d to a gift. His

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joint as before. 7 8 Moreover, if the share of a deceased coparcener is to

78. Palani Ammal v. Muthu Venkatachala, 52 LA. 83.

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subsequently decided case of Lakshmi Perumallu v. Krishnavenamma^

What constitutes marriage in law is, in general, so vaguely compre­

85. Supra note 41.

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regulatory would not ensue. Thus, the Supreme Court in Bhaurao

88. A.LR. 1965 S.C. 1564.

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In the result, the compensation money was held to belong exclu

What constitutes marriage in law is, in general, so vaguely compre

The law relating to religious endowments has partially been sub