July 17, 2020

TYPES OF SUCCESSION:

1. Intestate
2. Testamentary

Intestate succession are laws related to inheritance , the property of a person on his/her death in absence of
instructions left by him/her with respect to his devaluation devalue in accordance with the laws of intestate
succession to which the deceased was subject to at the time of his/her death. Intestate succession has
varied laws for different religions and the diversity exists within the specific religion also.
Testamentary succession is devaluation of property through a testament or will, a will that is capable of
taking effect in law governs succession to the property of a person after his/ her death in accordance with the
rules laid down in the law governing testamentary succession to the property of the person to which he/she
was subject to at the time of his/her death.

Intestate succession has varied laws for different religions and the diversity exist within the specific religion.
Testamentary succession is comparatively less diversed than Inheritance.

EFFECT OF MARRIAGE ON THE LAWS OF SUCCESSION:

1. Person married under HMA , the HSA would apply

2. Person married under Muslim Personal Law , the Quranic Law would apply
3. Person married under Special married Act or Parsi or Christian, Indian succession Act would apply,
exception to this rule is S.21 of SMA which states that two Hindus getting married under the SMA or
registering their marriage, solemnized under Hindu Law or under SMA will continue to be subject to the
Application of HSA in matters of Successions.

INTESTATE SUCCESSION IN HINDU LAW

HINDU JOINT FAMILY:

It is the concept based on ancient Patriarchal system of the society and is inherent concept under Hindu Law,
where every family is considered to be joint in food , worship and place of residence.

The composition of Hindu Joint Family:

1. Consist of all Male members descended lineally from a common male ancestor together with their
mother’s, wife or widows and unmarried daughters.
2. An illegitimate son of Male descendent would be a member of his father’s Joint Family.
3. A child in the womb is considered alive only for certain purposes, like Division of the property.
4. Unmarried Daughters upon marriage seize to be a part of her father’s Joint family and joins her husband
joint family as his wife but if she becomes a widow or is deserted by the husband or is divorced and
 returns to his father’s house permanently, she again becomes a member of her father’s joint family and
children of such daughter continues to be member of their father’s Joint family.
5. Post 2005 Amendment in the HSA, daughters are also introduced as coparceners along with the sons

Ouster/Removal of a person from Joint Family:

1. Unmarried daughter upon marriage.

2. If Child is given in valid adoption, then child cannot become a part of family in the future as well.
3. Automatic severance upon marriage to a Non Hindu under special marriage act and he/she cannot
become the member of the family even by agreement b/w family members.
4. Conversion to another religion also results in automatic expulsion but the “Caste Disability Removal
Act” protects the interest of such converts but they can neither form nor claim the benefit from such
family.

July 17, 2020

PRESUMPTION OF JOINTNESS

General principle - Every Hindu family is presumed to be a Joint Hindu family and continues to be Joint
unless the contrary is proved. Mere severance in food, worship and place of living does not operate as
separation. There is no presumption that the Hindu Joint Family possesses joint property or any property at
all and the burden of proof rests upon anyone asserting the jointness.

Position when there is only one male coparcener - A single male or female cannot constitute a Joint
Hindu family individually even if the assets in their hands are purely ancestral. The presence of a male
member is essential to start a joint Hindu family but not for its continuance. It is not necessary that there
should be at least two male members to form a HUF.

COMMISSIONER OF INCOME TAX V. GOMADALLI LAKSHMI NARAYAN (1935):

HJF consisted of father, his wife, his son and the son’s wife. Upon the death of the father, the question
before the IT Commissioner was whether the Joint Family can continue even when there was only one
male member i.e. the son. The court held that while for a coparcenary, the presence of at least two male
members is a necessary requirement, a HJF can continue even with one or no male member. If there was
only a single male member, he can have absolute authority on the ancestral property but he cannot
dispose it off without recognizing the rights of maintenance of the members. The law provides that so
long as it is possible in the nature of things to add a male member to a joint family come to an end.
ATTORNEY GENERAL CEYLON V. AR ARUNACHALAM CHETTIAR (1937):
Father and son having trading and other interests in India, Ceylon and far eastern countries who domicile
in India constituted a joint family. Son died in 1934 and the father died in 1938. The issue was whether
father died as a member of joint family or as a separate member. It was held that the deceased at his
death was a member of HUF/HJF of which the continuity was preserved after the father's death through
 adoptions by the widows of the family. If a situation has reached that it isn't possible to add a male
member to the family, the joint family will come to an end. Therefore when only a daughter is left in the
family, the joint family of the father should come to an end as upon marriage she would become a
member of husband's coparcenary so would her legitimate children. Post 1956 however the Hindu
Adoption and Maintenance Act granted an unmarried female the ability to carry on her father's HJF by
adopting a male member to the family. A Hindu female cannot start a HJF but can continue in the
absence of males. Post 2005, daughters are made coparceners and therefore the coparcenary would
continue even in the presence of only married daughters.

COPARCENARY -

Composition - It is a narrower institution within a joint family comprising of only male members related to
each other only by blood or through valid adoption limited to the group of persons who can offer spiritual
ministrations to the father i.e. till the three generations from the father. The senior most among the
coparceners is called the last holder of the property and from him the continuous chain of three generations
of male members formed the coparcenary. Such males have a right by birth in the joint family property and
have a right to ask for partition of the same. When all the coparceners die leaving behind only one of them,
the surviving coparcener is called the sole surviving coparcener and upon his death, the property does not go
by the Doctrine of Survivorship but will go to the legal heirs of the deceased. If there was any right of
maintenance out of this property these rights will be carried along with the property to the heirs.

1. Females cannot be coparcener under the Mitakshara coparcenary as the wife and widow and the mother
have a right of maintenance from the husband's or the father's or the son's coparcenary. Post 2005
Amendment, daughter has been introduced as a coparcener not interfering with the rights of maintenance
of all the females who become members upon marriage.
2. Illegitimate sons are not coparceners but members of the joint family of the father and if the partition
takes place between the father and the sons, they can be allotted an equal share to the legitimate son but
after the death of the father, the illegitimate son is entitled to half the share of the legitimate son.
3. The children born of a void or voidable marriage are legitimate and capable of inheriting the property
only of their parents and not of or from any other relations of their parents.
4. Children born out of a live in relationship are akin to illegitimate children and therefore cannot be
coparcener.
5. An insane person is not a coparcener and his rights are temporarily suspended till he recovers but if a
partition takes place, he has to be allotted a share.
6. The ownership of a coparcenary property is with the coparceners collectively subjected to the rights of
maintenance of the members of the family.
July 31, 2020:

ESSENTIALS OF COPARCENARY:

1. Four generation rule

2. It is a creation of law and cannot be formed by agreement
3. Only lineal descendants either born or validly adopted from the coparcenary’s
4. Acquisition of interest is by birth i.e. fluctuating and not specific.
5. Community of interest and unity of possession. The right of common enjoyment of the property is known
as unity of possession. All the coparceners jointly own the coparcenary property till the time partition takes
places it denotes community of interest.
6. Doctrine of survivorship which means on the death of the coparcener in the joint family, his interest in the
family property is immediately taken by those coparceners who survive him.
7. Right to ask for partition but they cannot alienate their undivided interest in the coparcenary.

RIGHTS OF COPARCENERS

1. Right by birth in the property.

2. Right of common ownership
3. Right of common enjoyment
4. Right of survivorship.
5. Right to accounts:
Karta is not liable to be accountable except in 3 situations; a) if he is conducting the family business and the
nature of the business is such that it necessitates the maintenance of proper accounting or b) if there are
charges of fraud or misappropriation of income or conversion c) when a coparcener asks for partition.
6. Right to make acquisitions
7. Right to ask for partition except Bombay and Punjab where a son cannot ask or demand for a partition
from the father if he is Joint with his own father without his consent.

8. Right to renounce his interest:

A coparcener is empowered to renounce his undivided share upon the following conditions; a) renunciation
should be of the entire undivided interest of the coparcener b) such renunciation must be in favor of all the
remaining coparceners. However renunciation of interest after agreeing to receive maintenance is valid. It’s
an irrevocable act.
9. Right to restraint improper acts: A coparcener who commits an act that is illegal, improper or
prejudicial to the interest of the joint family members or the coparcenary property including common
enjoyment and possession can be restraint by an injunction from doing such an act, if filed on behalf of all
the coparceners.
10. Right of alienation: a) coparcener does not have a right to dispose off his undivided share in the
coparcenary property by alienation unless all the coparceners give a valid consent to it. Involuntary
alienation is permitted. A copartner cannot alienate by way of gift except with the consent of all the
coparceners or it is of a small portion in favor of a daughter or a sister.
11. Alienation by will: it can only be made by a sole surviving coparcener however post 1956 a coparcener
is competent to make a valid will with respect to his undivided share in the coparcenary property.
12. Right to challenge unauthorized alienation:
Power of alienation of joint family property vests with karta only for some permitted purposes i.e. legal
necessity, benefit of estate and performing some indispensible religious or charitable duties. For any
unauthorized purpose the coparceners have 3 remedies; 1. To seek partition where the karta is contemplating
alienation but is not actually affected. 2. To obtain an injunction from the court restraining the karta from
committing an act that amounts to a waste or ouster.
13. Where alienation is already affected it can be challenged by the coparceners as invalid and not binding
on their shares. Burden of proof in such cases is on the alienee to prove that karta was authorized to sell the
property.
_______________________________________________________________________________________

August 7, 2020

KARTA:

A. Father and in his absence , the senior most male member is presumed to be the karta. The presumption is
strong as this position is regulated by seniority and does not depend merely upon the consent of other
family members
B. As long as karta is alive no one else can be karta and if the karta so desires he can continue to occupy the
representative capacity. Even though he may be in apt to look after the family affairs due to the reasons
of age or health , he can expressely reliquish his right and upon agreement of all the members another
coparcener not necessarily the next in seniority may be appointed as karta. In case of conflict the senior
most will be presumed to be the karta.
C. A minor can also act as a karta and represent the family through the guardian.

NOPANY INVESTMENTS (PVT) LTS V. SANTOKH SINGH:

A hindu joint family stays in india while the karta stays in UK and therefore not in position to handle the
joint family affairs in India. The karta executed power of attorney in favour of his younger brother and the
whole family accepted the decision without any protest. In capacity of being karta,he file a suit for eviction
against the tenant and the tenant raised the preliminary objection that as the younger brother who is not the
karta, the suit for eviction filed by him did not hold good in law.

SC dismissed the contentions of tenants on two grounds:

1) It is not open to a third party to raise such an objection with respect to any coparcenery.
2) All along it was the younger brother only who was realising the rent from the tenant. Further the court
clarified the certain circumstances under which a younger brother may become karta.
or not anticipated

(i)When the senior member is not available (dead/in another country/not capable of performing such
functions);

(ii)Where the Karta relinquishes his right expressly or by necessary implication (a prison sentence,
debilitating mental illness and unsound mind – since such coparceners become members for a limited period
of time);

(iii)In the absence of the manager in exceptional and extraordinary circumstances, such as distress or
calamity affecting the whole family and for supporting the family;

(iv)In the absence of the father; (a minor may represent the family as a karta through a guardian, however,
the guardian remains a guardian and not act as a karta)

(v)If father’s whereabouts are not known;

(vi)If the karta was away in a remote pace due to compelling circumstances and his return within a
reasonable time was unlikely or not anticipated. (for example, an Army member, away for war)

Since the position of karta is regulated by birth and by virtue or being coparcener the females prior to
2005 amendment will not be capable of being a Karta. Post 2005 only daughters are given the rights as
coparceners and therefore capable of being a karta. However the position of all the other females who
become members upon marriage remains unchanged.

FEMALES AS KARTA

A karta and manager are different. A manager may carry out the managing of the property and

The Karta has the rights to making decisions with regard to the family members and other issues that the
manager does not have right over. As the karta is an owner and has interest in the family property, he will
act in the best interest of the family.

Females were not coparceners until the 2005 Amendment, they are not usually considered even as the
senior-most members. The coparcenership is endowed only endowed on the daughters, married and
unmarried both, of the Hindu Joint Family. If there are only female members are left in the family, such
family may not have a karta, but may add coparceners to the family.

Post the Amendment, unmarried daughters can become the Karta in their father’s coparcenary. However,
married daughters become the members of their husbands family.

Widows and Mothers can manage a family, in the presence of minor coparceners, but they cannot be Kartas
of such families.

SHREYA VIDYARTHI V. ASHOK VIDYARTHI – (PG. 146)

In this case, a male member who died in 1955, leaving behind 2 widows, W1 who had a son and W2 had 2
daughters. Post his death, father left behind an insurance policy where the nominee was the 2nd wife. She
managed the property and bought a new house in which they lived for 7 years. W1 and S1 were asked to
leave by W2. W1 and S1 filed against the suit of eviction sought temporary injunction on such act and
sought for share in such property.

Such property was contended to be coparcenary property and S1 would be the Karta. W2 stated that such
property was a separate property under the insurance policy and even if such property were coparcenary
property, she would be considered the karta of such property. The issues before the Court were – 1) with
respect to the insurance policy, the nominee holds such property separately or shall be enjoyed under
inheritance, 2) whether any joint family existed and post his death must be treated as the same and 3) W2
should be considered as the Karta in presence of a male.

1) On behalf of the legal heirs, such property is held by the nominee. Thus, such property is not exclusively
her property and such property may be divided amongst the legitimate children.

2) At the time of the demise and even after, the family continued to live in harmony, such act could be
considered to be continuance of the joint family.

3) The Court, held that such W2 could be considered as a manager and not the Karta, such eldest person (son
or daughter) shall be considered to be the Karta. Thus, W2 cannot be considered as karta, even after the
2005 Amendment. Thus, the son is capable of asking for partition under the right as a coparcener.

OR

A hindu male died in 1955 leaving behind two widowsW1 and W2. Fron W1 a son S and two daughters D1
and D2 from second wife W2. W2 manage the day to day affairs of the family and received a sum due under
the insurance policy of her husband out of which she purchased a property and all the family members lived
together for over 7 yrs. post his death.
W1 and S were not permitted to enter the premises and there they filed a suit for eviction, partition and
permanent injunction.
(i)Whether nomination under insurance policy confers absolute rights in favor of the nomine or the nomine
receives the amount but on behalf of legal heirs of the property.
Held- It only indicates that the hand authorised to receive the amount that can be claimed by the heirs of the
assured in accordance with the laws of succession governing them.

(ii)Whether there was any joint family before and after the death of A.
Held- Yes, staying peacefully for 7 yrs. after the death of A is the evidence of joint family.

(iii) Can a widow managing the affairs of joint family be called karta?
Held- No , a Hindu widow cannot be a karta as she is not a coparcener but is competent to manage the
property in the presence of minor coparceners.

JAGANNATH RANGNATH CHAVAN V. SUMAN SAHEBRAO GHAWTE - (PG. 147)

A Hindu man on his death, left behind 2 daughters and a son. The daughter was elder and was married then
the second child was the son and third child a unmarried daughter, the son became the Karta. The son
disposed off the property in lieu of the funeral expenses and the marriage of the younger sister. On his death,
the daughters sought for partition of possession and shares and challenged the sale of property by their
brother. The Court held that the daughters cannot be the Karta. The case existed before the 2005
Amendment Act. The Court held that the daughters did not raise an objection before or even immediately
after his death, thus, his kartaship was valid and could not be challenged. Thus, the actions of the daughters
established their role in their family, they accepted him as a karta. Since, there was no property left behind,
no property was left to be claimed by the daughters.

REMUNERATION FOR SERVICES (pg.150)

POSITION OF KARTA (pg.149)

RESPONSIBILITIES OF KARTA (pg.149)

POWERS OF KARTA (pg.151)

AUGUST 14, 2020

SUJATA SHARMA v. MANU GUPTA- Karta has a fiduciary relationship with the coparceners. The
position of karta is inherited unlike trustees.
Facts: A( deceased) has 5 sons ( B2 B3 B4- dead)
B1- eldest- has daughter D1
B5- youngest- has a son S
D1 is elder sister and S is younger
 S declared himself to be karta by virtue of being the eldest living male member.D claimed that the karta
is governed by seniority.
Disqualification of women is removed expressly by 2005 amendment
By virtue of 2005 amendment- daughter of a coparcener becomes a coparcener and enjoys equal rights
to.that of son.The son objected that the rights granted by the amendment does not extend to ... the rights
in mangament of the joint family property.
The Delhi HC negated the contentions of S as the provisions do not specify any restrictions.

 The position of karta is purely honorary and he is not entitled to draw or receive any salary for the
services rendered unless there is an agreement to effect.

POWERS OF KARTA

1. Power to Manage Family Affairs

Absolute right and neither the court nor any coparcener can force a karta to take a particular decision.

2. Right of Representation
Karta represents the family in all the social, legal, religious and revenue matters including litigations.
Vigilance by karta cannot be a ground to set aside the decree given.

3. Power to Receive and Spend the Family Income

Karta is under no obligation to economies or save any income received.

4 . Power of Alienation
Limited to legal necessity, benefit of estate and religious indispensable duties.

5. Power to Contract and Acknowledge Deaths

Karta can acknowledge a death for any lawful purpose which is binding on all the coparceners.

6. Power to Settle Family Disputes

Disputes can be b/w members of the family or b/w a family member and an outsider, the karta can refer
the dispute to arbitration or reach a compromise and all the members including minors are bound by it.

7. Liability to Accounts
No liability on the karta to give accounts unless he is handling the family business or charged with fraud
or misappropriation or on partition demanded by a coparcener.
ALIENATION OF PROPERTY

Dharamshashtra provides three cases wherein the joint family proprty can be transferred

1. Apatkale- emergency phase either by family together or by one of it's members or w.r.t. it's property.
2. Kutumbarthe- refers to benefit of family or the family members or kutumb
3. Dharamarthe- refers to pious purposes , i.e. for the performance of indispensable duties.
The present categories as recognised by the court are as follows:
1. LEGAL NECESSITY
It means any necessity that can be sustained or justified in law. The essential of legal neccessity are-
* Existencec of a mean or purpose
* Such requirement is for lawful purpose.
* Absence of any alrernative resources
* Kartla acted as an prudent person.
All four essentials have to be present for constituting legal necessity

CASE: DEV KISHAN V. RAM KISHAN (2002)

Karta effected a mortage , a sub mortage and a sale of two houses belonging to the joint family worth
around 8000 to 9000 Rs. For a consideration of 400 to 900 Rs. To be utilised for the marriage of his
three minor children.
The transfer is held void on the following grounds:
1) The purpose was not lawful i.e. child marriage
2) The members of the family are earning members and hence there is presence of alternative resources.
3) Property is grossly undervalued and therefore legal necessity could not be established.

ARBINDS AND BABASAHEB GANESH KULKARNI V. VS ANNA @ DHANPAL PARISA

CHOUGULE & ON 22 JANUARY, 1980- SC

Karta executed three mortgages on his ten properties to raise a sum of 1600 , 1000 and 131 Rs.
Respectively in thre year 1933 to 1934. The first two mortages were usufructory mortgage ( posssession
transferred) by virtue of which possession of the house and other properties is transferred to mortgagee.
The possession was leased back to the family for a stipulated rent.
Karta died in 1935 and the eldest son became karta. As karta and guardian for his two minor brothers ,
he executed a sale deed of 4 out of 10 mortgage properties. Resulting into freeing the other 6 properties
from the mortgage that came back to the family.
The younger brother upon attaining majority in 1951, filed a suit in 1953 challenging the
Sale deed on the ground that it was neither for legal necessity and not for the benefit of state and
therefore not binding on them.
Held:
The court ruled in favour of validity of sale as the family is released from burden of paying rent.
The consideration paid is not grossly inadequate.
The sale released six items of the property from the mortgage and thus legal necessity can be established.
The meaning benefit means advantage betterment or profit and estate wad referred to joint family
property. The term benefit if estate generally cover cases purely of defensive nature such as to protect
the property from threatened danger or destruction
Essentials need to be considered while determining the benefit of estate
1) Degree of prudence required by the karta
is high.
2) How the sale proceeds are to be utilised by the karta or family.

BENEFITS OF ESTATE
BAL MUKUND V. KAMLAWATTI (1964)

The HJF owned a small portion of big plot of land owned by the alienee who approached the karta for
the purchase of this land and offered him a much higher consideration than the market value. Initially
accepting his offer , the karta accepted the earnest money but later failed to execute the sale deed. The
alienee filed a suit for specific performance of the contract and the karta contended that he was neither
empowered to sell the land nor he could establish legal necessities of benefit of estate as the family was
in affluent circumstances without any diffiulty in managing the property.

The SC observed that there is nothing to suggest that any sale was being contemplated by any
consideration of prudence. Therefore, the contract and the proposed sale is not for benefit of estate and
no suit for specific performance of the contract could be decreed.

RELIGIOUS AND INDISPENSABLE DUTIES: Modern version of "Dharmarthe".

The term indispensable makes the alienation unavoidable and there should be absence of any alternative
source to raise the money.The property may also be alienated for the charitable purposes but restricted
only to a small portion of the property.

Limitations:
1) When alienation is made by father, the son can set aside the alienation withing the period of 12 yrs
from the date of alienation.
2) A suit for recovery of possession within a period of 12 years.
3) A suit for declaring the alienation void and not binding on the family. The time period is 6 years.
4) A minor coparcener can challenge the alienation withing three years of attaining majority.