A.K. Jain Family Law 2

FAMILY LAW - II
[LEADING CASES, MATERIALS & Q.A.]
[Hindu Law relating to Joint Family, Coparcenary,

Partition, Succession, Woman's Property;
Muslim Law of Inheritance, Gifts and Wills]
Dr. ASHOK K. JAIN

LL.M; Ph.D (Delhi)
Ascent Publications
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CONTENTS
Family Law-II (iv)
MUSLIM LAW
9. MUSLIM LAW OF INHERITANCE.....................297-326
10. MUSLIM LAW OF WILLS.....................................327*352
11. MUSLIM LAW OF GIFTS......................................353-392

.
. ■
TABLE OF CASES
AT. Vasudevan' case 76

,'T !9f1I
Abbay Chandra v Pyari Mohan 127
ABDUL HAFIZ BEG v SAHEBBI 386,387 0 .Mf
Abdul Hameed v Mahomed Yoonus 328
MQ
Abdul Manan Khan v Mirtuza Khan 328
Abdul Rahim v Sk Abdul Zabar 381
Abhay Chandra v Pyari Mohan 60
ACIT v Chettiar 45
Advocate-General v Jimbabai 332
Ammathayee v Kumaresan 109
Anandi v Naik 171
Anani v Gopal 64
Anant v Shankar 6
Anar Devi v Parmeshwar Devi 193
Apaji v Ramchandra 129
Appalaswami v Suryanarayana Murti 171
Arun Kumar v Jnanendra 238
ARUNACHALAM v MURUGANTHA 28,40
ARVIND v ANNA 73
Aryan Kamal Wadhwa v Biharilal Wadhwa 171
Ashwani Kumar v Rajinder Kumar 88
Atterson v State of Alabama 244
Babulal Kewani v State of Bihar 293
Badri Prashad v Smt. Kanso Devi 271,278
Baijnath Prasad v Bindi Prasad 76
Balabux v Rukhmabai 160
Balgobind Das v Narain Lai 89
BALMUKAND v KAMLAWATI 75,78,100
Benaras Bank v Hari Narain 74
Beni Bai v Raghubir Prasad 295
Beni Madho v Chander Prasad 76
Family Law-ll (vi)
Beni Ram v Man Singh 102
BHAGAT RAM v TEJA SINGH 265
Bhagirathi v Jhoku Ram 101
Bhagwani v Mohan Singh 3
Bhagwant P. Sulakhe v Digambar Gopal Sulakhe 51,128
Bhola Prasad v Ramkumar 61
Bhubaneswari Debi v Nilcomul Lahir 150
Bhura v Kashiram 276
Bishambar Nath v Lata Amar 159
Bishnudeo v Seogant 172
Chamanlal v Mohan Lai 202
Chet Ram v Ram Singh 80
Chhakauri Mahton v Ganga Prasad 119
Chinna v Venkatta 32
Chinnappa v Valliammal 275
Chintaram v Rushibai 255
Chodrashewer v Ramchandra 28
CIT v Rakshapal 45
CIT v Veerappa Chettiar 23
COMMR. OF INCOME TAX v GOMEDALLI LAXMINARAYAN 21
Commr. of Wealth Tax, Kanpur v Chander Sen 34
Commr., I. Tax v Seth Govind Ram Sugar Mills 58
Commr, IT. v DC. Shah 52
Commr., Income Tax v Kalu Babu 51 *
CWT v CHANDER SEN 43,45,47
D. Velusamy v D. Patchaiammal 179
D.S. Lakshmaiah v L. Balasubramanyam 34
Damodar Misra v Sanamali Misra 57
Daya Singh v Dhan Kaur 271
Deen Dayal v Jugdeep Narain 83
Desari v Desari 76
DEV KISHAN v RAM KISHAN 71,05
Dhanistha Kalita v Ramakanta Kalita 255
Dhanwantry v Commr, IT. 52
Dharma Shamrao Agalawe v Pandurang Miragu Agalawe 148
Dropadi Devi v Jagdish 83
Family Lau-ll (viii)
Ibrahim Goolam Ariff v Saiboo 389 Indranarayan v
Roopnarayan 136
JAGANNATHAN PILLAI v KUNJITHAPAOAM PILLAI 289,272
Jagat Narain v Mathura Das 76,104
Jamunabai Bhalchandra Bhoir v Moreshwar Mukund Bhoir 294 Janabai v T.S.
Palani 237,239 Janak Rani Chadha v State of NCT of Delhi 205 Jinnappa
Mahadevappa v Chimmava 110 Jivaji Annaji v Hanmant Ramchandra 150 Jugal
Kishore v CIT 60 Jujhar Singh v Giani Talok Singh 92 K. Stanumurthiayya v K.
Ramappa 204 K.O. Reddy v Venkata Narayan Reddy 3 K.V. Narayanaswami Iyer
v K.V. Ramakrishna Iyer 34 Kabisa Umma v Pathakla 363 Kaloo Singh v
Sunderbai 68 Kalwa Devadattam v Union of India 153 Kamulammal v
Visvanathaswami 133 Karuppa v Palaniammal 186 Kasaram Jagamma v Jajala
Lakshmamma 68 Kashiraim v Collector 24 parganas 118 Kedar Nath v Ratan
Singh 155 Kenchava Kom Sanyellappa Hosmani v Girimallappa Channappa
Samasagar
204 Kesar Bai v Ran Singh 30 Kewal Narain v Prabhu Lai
146 Kewal Narain v Prabhu Lai 152 Khalilul Rahman v Govind
Persuad 118 Kolasani Sivakumari v Kolasani Sambasiva Rao
80,116 Kollomal (HUF) v CIT 156 Krishna Prasad v CIT,
Bangalore 23 Krisnnamurthi v Chidambaram 61 Krishnan
Namboodri v Chena Kesavan 86 Kudutamma v
Narasimhacharyalu 111 Kumaraswami v Subba 29 Kunji v
Meenakshi 276
Family Law-ll (ix)
Lachman Singh v Kirpa Singh 253 Lakshmanier v
Krishnamachary 142 Lakshmi Perumallu v
Krishnavenamma 142 Lai Bahadur v Kanhaya Lai
30 Lalbarani v Bhutnath 55 Lekh Raj v Muni Lai 244
Luhar Amrit Lai Nagji v Doshi Jayantilal Jethalal 120 M. Veraghaviah v M.
Chini Veeriah 118 Mi. Subbaraya Setty v ML Nagappa Setty 125 M/S.
NOPANY INVESTMENTS (P) LTD. v SANTOKH SINGH (HUF) 55
Madhavan Ezhuthasan v Vellayyappan 241 Mahboob Sahab v Syed Ismail
357 Maheshwar Das v Sakhi Dei 72 Mahomed Buksh v Hosseini Bibi 367
Maimuna Bibi v Rasool Mian 357 MAKHAN SINGH v KULWANT SINGH
33,46 Maktul v Manbhari 39 Mallesappa v Mallappa 29 Mangla Singh v
Rattno 269 Manikayala Rao v Narasimhaswami 97 Maqbool Alam v Mst.
Khodaija 382 Maruthappan v Niraikullathan 102 Masoom Sab v Madan Sab
369 Mata Badal Singh v Bijay Bahadur Singh 204 MD. HUSAIN KHAN v
BABU KISHVA NANDAN SAHAI 27,38 Meva Devi v Om Prakash
Jagannath Agarwal 156 Meyappa v Kannappa 247,253,283 Minoti v Mohan
Singh 202 Minoti v Sushil Mohansingh Malik 204 Mitter Sen Singh v Maqbul
Hasan Khan 154 Mohd. Sadiq Ali v Fakhr Jahan Begum 377 Mohib Ali Khan
v Baldeo Prasad 76 Mohinder Singh v Gurbax Singh 37 MORO
VISHWANATH v GANESH VITHAL 6,24 Muhammad v Aulia Bibi 335 Mulan
Chand v Kanchhendillal 129
Family IMW-U (X)
Munna Lai v Raj Kumar 275
Murli v Bindeswari 68
MUSA MIYA v KADAR BUX 378
Nabi Sab v M. Papiah 377
Nagappa Chettiar v Subramanian 170
NAMDEV VYANKAT GHADGE v CHANDRAKANT GANPAT GHADGE 147
Nanu Ram v Radhabai 161
Narashimaha Murthy v Smt. Susheelabai 241
Narayanlal v Controller of Estate Duty 33
Narendranath v Commr. Wealth Tax 22
Neelawa v Bhimawa 193
Nemi Chand v Hira Chand 55
Nilkanta v Ram Chandra 30
Nirmal v Satnam 75
Official Assignee v Rajabadar 63
OM PRAKASH v RADHACHARAN 258,287
Onkar v Kishan Singh 101
P. Kunheema Umma v P. Ayissa Umma 360
P.G. Hariharan v Padaril 152
PS. Sairam v P.S. Ramarao Pisey 31
Palaniappa v Commr, Income Tax 51
Palaniappa v Deivasikamony 75,77
Pandu v Goma 97
Papayya v Venkata 142
Pappaya v Venkatakrishna Rao 172
Paraqmasivam v Rama Swami 30
Parasram v Smt. Naraini Devi 72
Parvati Kaur v Sarangadhar 33
Patel v Lakkireddigari 101
PEDASUBHAYYA v AKKAMMA 144,171,172
Lakkireddi v Lakshamma 171
Permanayakam v Sivaraman 98,100
Perumalakka v Balakrishnan 108
Piyare Lai v I.T Commr. 51
Ponnamma v Aspinwal 84
Pran v Rajendra 3
Family Law-11 (xi)
Prasad v Govindswami Mudaiiar 117 Prem Singh v
Dharam Singh 94 Pushpaiatha N.V. v V. Padma 219
Puttrangamma v Ranganna 141,155,165,167 Qamar-
ud-din v Mt. Hassan Jan 381 R. KUPPAYEE v RAJA
GOUNDER 114 Radha Ammal v CIT 58 Radha Krishna
v Satyanarayan 155 Radhamoni v Dibaker 2 Radhika v
Anguram 253,286 Raghubanchmani v Ambika Prasad
88 RAGHVAMMA v CHENCHAMMA 137,142,165,168
Raj Kumar Singh v Commr., Income Tax 51
RajmalvRajmal29
Rajrani v Chief Settlement Commr. 193 Ram Chander
v Ganesh Das 270 Ram Nath v Ghurantial 75 Ram
Saran v Prithipal 85 Ram Sunder Lai v Lachmi Narain
74 Rama Nagappa Mahar v N Mallappa Mahar 137
Ramaswamy Aiyer v Vengudusami Iyer 112
Ramcharan v Girijanandam 152 Ramrichpal v Bikaner
Stores 76,104 Rani v Shanta 67
Ratan Lai Bora v Mohd. Nabiuddin 358 Ratnam
v Kuppuswami 170 Re Alma Latifi 346
Rukhmabai v Laxminarayan 2 Rulia v Jagdish
72 S. NARAYANAN v MEENAKSHI 240 Sadhu
Singh v Gurdwara Sahib 280 Safia Begum v
Abdul Razak 389 Sant Singh v Mata Ram 89
Santosh v Saraswathibai 296 Sarda Prasad v
Umeswar Prasad 55 Sarita Chauwhan v Chetan
Chauwhan 202
Family Law-ll (xii)
Sawan Ram v Kalawanti 151
Seetha Lakshmiammal v M. Iyengar 251
Seethalakshmi v Controller of Estate Duty 33
Selleppa v Suppan 77
Shahaji Kisan Asme v Sitaram Kondi Asme 249
Shamshad Ali Shah v Hassan Shah 386
Shantaram v Dugubai 132
Sharad Subramanyan v Soumi Mazumdar 296
Sharbati v Hiralal 278
Sheikh Muhammad Mumtaz Ahmad v Zubaida Jan 369
Sheogulam v Kisun Choudhuri 58
Siddappa v Linappa 55
Sirikant Lai v Sidheshwari Prasad 62
Siromani v Hemkumar 151
Sitabai v Ram Chandra 2,22
Sital Prasad Singh v Ajablal Mander 78
Sital Singh v Jamna Bai 88
SMT. DIPO v WASSAN SINGH 35
Sonia Parshini v Sheikh Maula Baksh 355
Srinivas Rao v Sesacharlu 68
State of Maharashtra v Narayan Rao 192
State of Punjab v Balwant Singh 256
Sumeshwar v Swami 275
Sundaramya v Seethamma 111
SUNDER YADAV v ASHA KUMARI 81
SUNIL KUMAR v RAM PRAKASH 56,89,90
Suraj Narain v Iqbal Narain 146
Surendra Nath Sharma v Rajendra Kumar 163
Surendranath v Sudhir Kumar 77
Suryanarayana v Sugamanathi 63
Sushil Kumar v Ram Chandra 136
Sushilabai v Narayanrao 189
T. Shesharathamma v T. Manikayyamma 292
T. Venkatasubramma v Rattamma 85
T.N. Sharufuddin v Mehrunissa 362
Tarni Prasad v Basudeo 68
Family Law-ll (xiii)
Teja Singh v Jagat Singh 271
The Benaras Bank v Hari Narain 107
Tirpurasunderi v Kalyanaranan 109
Toshan Pal Singh v District Judge, Agra 119
Tribhovan Das v Gujarat Revenue Tribunal 56
Tulasamma v Shesha Reddy 275
Ugre Gowda v Nage Gowda 250
Union of India v Shree Ram 57
Usha v Smriti 238,239
V. TULSAMMA v V. SHESHA REDDY 277,288
V.K. Thmmaiah v V.K. Parvathi 87
Vaikuntam v Avudiappa 60
Vaillammal Achi v Nagappa Chettiar 86
VALIA P. KATHEESA UMMA v PATHAKKALAN NARAYANATH KUNHAMU
360,376
Vanimisatti v Jayavarapu 69
Vasant v Dattu 148,149
Vasant v Sakharam 29
Veera Raghavamma v G. Subbarao 253
Vellayappa v Natarajan 133
VELLIKANNU v R. SINGAPERUMAL 203
Vankanna v Venkatanarayana 161
Venkata Subba v Ananda Rao 68
Venkatasubramania v Eswara 49
Venkayamma v Venkatanarayanamma 39
Vettorammal v Poochammal 110
Vidyaben v J.N. Bhatt 238
Y.S. Chen v Batulbai 361
Zaheda Begum v Lai Ahmed Khan 123
'
References
(Family Law-ll)
HinduLaw
1. Malta Principles of Hindu Law.
2. Mayne: Hindu Law and Usage.
3. R.N. Sarkar. A Treatise on Hindu Law.
4. Paras Dwan Modern Hindu Law/ Family Law.
5. Jaspal Singh: Hindu Law of Mairiage & Divorce.
6. Kvmud Desai: Indian Law of Marriage & Divorce.
7. R.K. Agarwal. Hindu Law.
8. U.P.D. Kesari: Hindu Law.
9. B.M. Gandhi. Hindu Law.
10. N.H. Jhabvala: Principles of Hindu Law.
11. Poonam Pradhan Saxena: Family Law-ll.
Muslim Law
1. Mulla: Principles of Mohammedan Law.
2. A.A.A. Fyzee: Outlines of Muhammadan Law.
3. Dr. Tahir Mahmood: The Muslim Law of India.
4. F.B. Tyabji: Muslim Law.
5. Ameer AH: Muhammadan Law.
6. The Indian Law Institute: Islamic Law in India.
7. Aquil Ahmed: Mohammedan Law.
8. Khalid Rashid: Mohammedan Law.
9. N.H. Jhabvala: The Principles of Muhammadan Law.
Other Sources
1. Supreme Court Yearly Digests - SCYD (1995-2011):
Shailendra Malik (Ed.) (Eastern Book Co.).
2. Cases and Materials on Family Law-ll: Faculty of Law,
Delhi University, Delhi.
3. Question Papers Referred - Delhi and Other Indian
Universities; Competitive Exams.
(xv)
1
Hindu Joint Family
and Coparcenary
Hindu Joint Family1

A Hindu joint family is the fundamental aspect of the life of Hindus
-"an ancient and unique institution. A Hindu joint family (according to
Mitakshara law) consists of "the common ancestor and all his lineal
male descendants up to any generation together with the wife(s) or
widows and unmarried daughters of the common ancestor and of the
lineal male descendantsjjt is interesting to note that even an illegitimate
son and widowed daughters may lay claim on the bounty of the joint
family. A 'child in womb' is also deemed to be a member of joint family
for limited purposes.^)
it has to be clearly understood that the existence of the common
ancestor is necessary for bringing a joint family into existence, but not
necessary for its continuance. Further, a joint family is not an artificial
but a natural association; it is a larger body consisting of a group of
persons who are united by sapinda relationship (i.e. by birth, marriage
or adoption)
The chief characteristics of a Hindu joint family (Mitakshara) are:

(1) It is a creation of law. In other words, it is a legally recognized
unit which can neither be created by the act of the members
nor by an agreement between the parties. A stranger cannot be
admitted into it except by marriage or adoption.
1. Explain the concept and incidents of a Hindu joint family. [D. U -2010]
[1]
2 Family Law - II
(2) It has no legal entity distinct and separate from that of the
members who constitute it. It is not a juristic person. It is
not a corporation either.
(3) It is a unit and in all affairs it is represented by its Karta (head
or manager).
(4) Status can be acquired into it only by -birth, marriage to a male
member, and adoption.
(5) Ouster of a member from joint family: Status can be lost by
conversion to a non-Hindu faith, marriage to a non-Hindu under
the Special Marriage Act, 1954, on being given in valid adoption,
and, on partition.
(6) ll is different from a composite family - a creature of custom
and agreement, where two or more families agree to live and
work together, pool their resources, throw their gains and labour
into the joint stock and shoulder the common risk. The primary
objective of composite families is convenience and efficient
management of the family properties.
(7) A joint family may consist of a single male member and his
wife and daughters, or a single male member and a widow of
coparcener, or even when there are only widows. The rule is
"that even on the death of sole surviving coparcener, the Hindu
joint family does not come to an end so long as it is possible
in nature or law (i.e. adoption) to add a male member to it"
(Sitahui v Ram Chandra AIR 1970 SC 343). A single male or
female cannot make a joint family. There must be at least two
members to constitute it.
/ Hindu Undivided Family - For the purposes of tax assessment, the '
revenue statutes use the expression 'Hindu Undivided Family' (HUF),
which appears to be slightly different from the definition of a Hindu
joint family (See under the questions section).
Presumption of Jointness
/Every Hindu family is presumed to be a joint family (Radhamoni v
Dibaker AIR 1991 Pat 15). The normal state of every Hindu family is
that it is a joint family, presumably joint in food, worship and estate, and
it continues to be joint (Rukhmabai v Laxminarayan AIR 1960 SC 335).
However, if a family is not joint in food, worship and estate, or in any
H i n d u J o i n t F a m i l y and C o p a r c e n a r y 3
one or all of them, it does not necessarily imply that it has

ceased to be a joint family. Thus it is not necessary that all
members of a joint family live or work at the same place. The
members of a family may reside separately and mess apart, still
they remain joint in estate. Thus, 'union in estate' is quite
essential for a joint family,
^The presumption is stronger among the nearer relations
(viz. father and his sons or the real brothers than as among an
uncle and his nephew or as among cousins). Thus the strength
of the presumption of jointness varies with the degree of
generations,
/There is no presumption that joint family possesses joint
property (K.O. Reddy v Venkata Narayan Reddy AIR 1984 SC
1171; Pran v Rajendra AIR 1986 Del 121). In Hindu law
existence of joint property is not a condition precedent to the
existence of joint family, though it will be a rare case where a
joint family possesses no (joint) property. It will have at least
household utensils and articles which its members use in
common. Acquisition of property in the name of different
members of the family is not inconsistent with the jointness. The
rule is that one who alleges that a particular property held by a
member of joint family is Joint Family Property (JFP) has to
prove that it is so. When property is purchased in the joint
names, it is for the person who alleges it to be separate
property, to prove it. \
(The presumption of jointness is rebuttable. There are only two
ways to rebut the presumption of jointness viz. partition and
extinction
of the family {Bhqgwani v Mohan Singh AIR 1925 PC 141). It is
for
"the persons alleging severance of the Hindu joint family to
prove it. If
one takes the plea of partition, he has to prove
it
Coparcenary2
The Mitakshara concept of coparcenary is based on the notion of
son's birth right in the joint family property. Not merely a son,
but also a "son's son and son's son's son acquire an interest by
birth in the joint family property, j
A 'Mitakshara coparcenary' is a narrower body as compared to a

Mitakshara joint family? Discuss with the help of case law.
"All coparceners are joint family members, but all joint family members
are not
coparceners." Discuss. [LC.I-94; L.C.II-96
(Supp.)]
4 Family Law - II
Coparcenary is a narrower body of persons within a joint family, and

consists of father, son, son's son and son's son's son i.e. father and his
three male lineal ascendants. It may be noted that in its (coparcenary)
continuance, the existence of the father-son relationship is not
necessary. Thus a coparcenary can consist of grand-father and grand-
son, of brothers, of uncle and, nephew, and so on. The coparcenary is
limited to three generations of lineal male descendants of the last holder
of the property only. According to tenets of Hinduism, only descendants
up to three generations can offer spiritual ministration to the ancestor.
Besides only males can be coparceners because the females invariably
leave the father's house and assume domestic and spiritual duties in
their husband's house.-?
I The rule is that so long as one is not removed by more than four
degrees from the last holder of the property, howsoever removed one
may be from the original holder, one will be a coparcener. Last holder
means the senior-most living lineal male ancestor.
Example 1.
A
I
B
I (Coparceners)
C
I
D
E
i
F 1 (Not
coparceners)
G
I
H
(8 Generations)
P. Pradhan Saxena, Family Law II, 3nd ed.T p. 82 (2011).

Hindu Jo in t Family and C o p a r c e n a r y 5
In the above example, if A (Last holder) dies, coparcenary

will be of B, C, D and E. As on A's death, B becomes the last
holder and so E comes within the limit of four degrees.
Similarly, if B dies now, coparcenary will be of C, D, E and F.
(But, if B dies before A, coparcenary will be of A, C and
D. As A be the last holder and so E removed (five degrees
distance from A). Now, if C dies, E's position won't be changed
and the coparcenary will be of A and D. And, if D dies now,
only A will be a coparcener.
Example 2.
A
I
B
I
C
DS DS1 ES ESl
.During the lifetime of the common male ancestor (i.e. the last
holder) the disappearance of any of tire intermediary generation
or generations does not extend the coparcenary beyond the fourth
degree of generation from him.
In the above example, if B dies first, and C dies next, then
the coparcenary will consist of A, D and E. If now E dies,
coparcenary will consist of A and D and at this stage ES and ES 1
get removed by more than four degrees from the last holder of
the property and their chance of ever becoming coparceners
comes to an end. If at this stage A dies, coparcenary will consist
of D and his two sons DS and DS1.
Extinction of Coparcenary4 |
A Mitakshara coparcenary comes to an end by partition or by the

death of all the male members/last or sole surviving coparcener. The
case of
"The extinction of coparcenary does not affect the existence of joint family".
6omment. [D.U.-2008\[C.L.C.-
92/93/94]
6 Family Law - II
Mom Vishwanaih v Gane.ih Vithul, 1LR (1873) 10 Bom 444, gives an

example of the extinction of coparcenary (also see Example 2 discussed
above),
Suppose there is a line of lineally descendant males A, B, C, D and
E. A is the last holder of joint family property. Now suppose B, C, and
D die before A. The moment three immediate ancestors die, the line
cannot proceed in that direction. Thus E will never become a coparcener
and the property in the hands of A is the property of the sole surviving
coparcener. After A's death, there will be an extinction of coparcenary
and the joint family property will pass by succession.
The coparcenary also becomes extinct when all the male members
die. However, the death of ail the male members does not ipso facto
mean the extinction of the joint family, as a joint family can consist of
two female members. The joint family status cannot end till it is possible
in nature or in law (i.e. adoption) to add a male member to the family
(Anant v Shankar AIR 1943 PC 196). \
Thus, if there is no coparcenary, it does not follow that there is
no joint family {C.I.T. v Lqxmmarayan, 37 Bom LR 692). Coparcenary
is a unit within the institution of joint Hindu family.!
LEADING CASE: MORO VISHWANATH v GANESH VITHAL [ILR

(1873) 10 Bom 444]
[A partition can be demanded by one more than four degrees

removed from the acquirer or original owner of the property
sought to be divided but that it cannot be demanded by one more
than four degrees removed from the last owner, however remote,
he may be from the original owner thereof. Because, coparcenary
extends to four degree from the last owner (extinction of
coparcenary).
I The plaintiffs and defendants are descendants of one Udhav,
the original acquirer and common ancestor, of the property
now in dispute between them. The former are beyond and the
latter within, the fourth degree from Udhav. Ganesh (plaintiff),
the great grandson of Udhav who was removed more than Tour
decrees from Udhav, demanded partition of the joint family
property from Moro (defendant),
; The appellants' contention was that a partition could not, in
any case, be demanded by descendants of a common
Hindu J o i n t F a m i l y and C o p a r c e n a r y
ancestor, more than four degrees removed, of property originally

descended from hi mi .Thus, the* issue, was whether a person
removed more than four degrees from the original acquirer of
the property can demand partition of the JFP?
lit is urged that the 'law of partition' is inseparably connected
with, and is indeed a part of the 'law of inheritance" which is
clearly founded on the spiritual benefit which certain persons
according to the religious ideas of the Hindus are supposed to
be capable of conferring on the deceased by the gift of the
funeral cake; that this capacity of benefiting the deceased does
not extend beyond the fourth in descent for Manu says, Chap.
IX, 186, "but the fifth has no concern with * the gift of the
funeral cake;*' that this is made clearer by Kulluka in his
commentary; and that as the fifth cannot inherit during the
lifetime of the fourth in descent, so neither can he claim any
partition from the latter.
J To this it is replied that the authorities quoted do not support
the contention of the appellants; that the doctrine of ancestral
properly vesting by birth in one's son, grandson, and great-
grandson, was overlooked by the other side; that if A died,
leaving two or more sons forming an undivided family, and they
died each of them, leaving one or more sons, and the same thing
happened regularly for several generations, all the descendants of
A, living in a state of union, as in this case, the authorities quoted
did not prevent any such descendants below the fourth demanding
a partition of their JFP; that they only went so far as to lay down
that, if A die, leaving B a son, E a grandson, G a great-grandson,
and J, a great-great-grandson, the intermediate persons having all
predeceased him, J, who stands fifth in descent from A cannot
demand a partition of A's property, because A had not vested in
him by birth any interest in such property. Further, the text
which apparently limits the right of partition to the fourth in
descent refers only to cases of reunited coparceners and not to
undivided ones (as in the present case).)
/The Court gave some illustrations:
(i) A is the original owner of the property in dispute.
His three lineal descendants include: B (son), C
(grandson) and D (great-grandson). D had two
sons E and F (great-great-grandsons). No partition
8 Family Law - II
of the family property has taken place, and D, E,

and F, are living in a state of union. Can E and F
compel D to make over to them their share of the
ancestral property? According to the law
prevailing, they can, sons being equally interested
with their father in ancestral property.
In the same way, suppose B and C die, leaving A and D
members of an undivided family after which A dies whereupon
the whole of his property devolves upon D, who thereafter has
two sons E and F. They, or either of them, can likewise sue
their father D for partition of the said property, it being ancestral,
(ii) A is the original owner of the property in dispute. His three
lineal descendants include: B (son), C (grandson) and C's two
sons: D and Dl (great-grandsons).
Now, suppose B and C die, leaving A, D, and Dl, members of
an undivided family, after which A dies, whereupon the whole
of his property devolves upon D and Dl jointly, and that D
thereafter has two sons E and F, leaving whom D dies. A suit
against Dl for partition of the joint ancestral property of the
family would be perfectly open to E and F; or even to G (son
of E) and F, if E died before the suit. It would be a suit against
Dl by a deceased brother's sons or son and grandson. J3ut E
and F are both fifth and G sixth in descent from the original
owner of the property, whereas D and Dl are only fourth.
Suppose, however, that A dies after D, leaving a great-
grandson Dl and the two sons of D i.e. E and F. In this case,
E and F could not sue Dl for partition of property descending
from A, because it is inherited by Dl alone, since, E and F,
being sons of a great-grandson, are excluded by Dl, A's
surviving great-grandson, the right of representation extending
not farther from great-grandson.)
The Court concluded: The rule, then, is not that a partition
cannot be demanded by one more than four degrees removed
from the acquirer or original owner of the property sought to
be divided but that it cannot be demanded by one more than
four degrees removed from the last owner, however remote, he
may be from the original owner thereof.] ,
Hindu J o i n t Fa m il y and C o p a r c e n a r y 9
Essential Characteristics of Coparcenary5

(Some members in a HJF may constitute a coparcenary,
viz. the father and his three male lineal descendants. An
illegitimate son cannot be a coparcener. Under Hindu
law, an insane coparcener has no right to claim partition,
but this does not make him cease to be a coparcener.
Further, his son is not excluded from taking a share in
partition. If a Hindu performs a marriage under the
Special Marriage Act, 1954 with a non-Hindu, his
interest in the JFP is severed. But it does not mean that
there cannot be a coparcenary between such a Hindu
and a son born to him out of the marriage. A
coparcenary will come into existence between him and
his son provided his son is a Hindu. J
The characteristic features of a coparcenary are:
Existence Of-property - Existence of JFP is essential in
a coparcenary. If a Hindu acquires property in his
lifetime, on his death, the property inherited by
his son shall be held by the latter as JFP and he
will form a coparcenary along with his sons by
operation of law, whether he likes it or not. \
(2.) Only males - Only males (till 2005), including the
adopted ones, can be members of a coparcenary.
An illegitimate son, although a member of a
joint family, is not a coparcener. An insane son
is a coparcener, though he has no right to claim
partition^
(3) Four generation rule - Only such males as are
within four generation from, and inclusive of, the
last male holder or owner of property - the eldest
surviving male member in the family -form a
coparcenary.,
, (4) Interest by birth - Coparceners acquire interest in
the joint family property from their birth, rather
conception (i.e. a child in mother's womb). The
doctrine of the right by birth is a unique feature
of the coparcenary as it gives a right in the
5. Elaborate the essential characteristics of a Mitakshara

Coparcenary. In what respects does it differ from a Mitakshara
Joint Family? [LC.t-96; LC.//-95/96]
Explain the concept and incidents of a Mitakshara Coparcenary.
[D.U.-2010]
10 Family Law - II
property of a person to another during the lifetime of

the former, the owner
(5) Rule of survivorship and fluctuation of interest - On the
death of a coparcener, his interest in the JFP devolves on
the surviving coparceners by rule of survivorship and
not according to law of succession. Suppose Ram has
two sons SI and S2. On death of S2, his share in the
family property will vest in the surviving two
coparceners Ram and SI; and the share to which each
coparcener would have been entitled during the lifetime
of S2 on partition (one-third), would be enlarged in case
of Ram and SI on the death of S2 to half each.
If after death of S2, two more sons S3 and S4 are born to Ram,
there will be four coparceners and hence four shares on partition.
As a result, the interest of the coparceners in the coparcenary
property fluctuates with the birth (diminishes) and death
(enlarges) of the coparceners; hence no coparcener can claim a
definite share in the JFP whilst the family remains joint
6) Coparcenary within a coparcenary - Within a joint family,
there can be coparcenaries more than one in different
branches of the family. Likewise there can be a
coparcenary within a coparcenary. This is because a
coparcenary is formed automatically by operation of law,
and the moment a Hindu inherits property, from his
father, grandfather or great grandfather, he immediately
forms a coparcenary with his sons, grandsons and great
grandsons.
For example, a coparcenary consists of A and his three sons B,
C and D. C and D had two sons each. If C and D acquire
separate property and dies, the sons of C (and D) inherit the
separate property of C (and D) and between themselves
constitute a coparcenary. If sons are born to sons of C and D,
they will get a birth right not merely in the coparcenary headed
by A but also in the sub-coparcenary created among the sons of C
and D
consists of father and his
Hindu Joint Family three male lineal
descendants.
Distinction between Joint Family and Coparcenary
(2) Only a male can be a
coparcener; an illegitimate
son is not a coparcener.
Hindu Joint Family (3) Only such males as are
within four generations
(1) It is a wider body consisting of all
from, and inclusive of the
persons lineally descended
eldest surviving male
member in the family form
from a common ancestor, and includes
a coparcenary.
their wives and unmarried
(4) The coparcenary becomes
daughters. (2) Females, and
extinct when all the male
illegitimate son are members of the
members die.
HJF.
(5)
(3) Limitation of tour generations

applicable to coparcenary does not
apply to a HJF.
(4) Death of all the male

members does not ipso facto
mean the extinction of the
joint family, as a joint family
can consist of two female
members. The joint family
status cannot end till it is
possible in nature or in law to
add a male
member to the family.
(5) in joint family, existence of (5) Existence of JFP is
- property is not essential. essential in a coparcenary.
(6) Law of succession (6) On the death of
determines the rights and coparcener, his interest in
interests of joint family the JFP devolves on the
members. surviving coparceners by
rule of survivorship and
not according to law of
7) succession.
The members of the joint (7) The coparceners enjoy
family enjoy very limited very wide rights, viz. a
rights, viz. of maintenance right to partition and a
and marriage expenses of right to alienate (their
unmarried daughters. undivided interest in the
family property). Each
coparcener is owner of the
entire family property,
although he can't set up an
individual title to any
specific portion.
6 Distinguish between Joint Hindu Family and Mitakshara Coparcenary
[D.U.-2009]
12 Family Law - II
[Similarities - A Hindu joint family as well as coparcenary come into
existence by operation of law and cannot be brought into existence by
agreement amongst the strangers. Thus the basis of formation of both
joint family and coparcenary is close relationship.^
Illustration
B C
I I
D E
A is the holder of the ancestral property. He has two sons B and C. B

has a son D and C has a son E. D has a son F and E has a son G F
also has a son X. All are alive.
The joint family consists of all of them but the coparcenary does
not include X in it so long as A is alive. X has no interest in the property
in the life-time of A. After A's death, X becomes coparcener with
others. \
Distinction between Joint Tenancy and Hindu Coparcenary

'Joint tenancy' is a English concept. It resembles a 'Hindu coparcenary'
in as much as the existence of the right of survivorship and the right
to obtain a partition is there. However, it differs in certain other aspects:
- Coparcenary comes into existence by operation of law and
cannot be brought into existence by agreement amongst the
strangers, as in case of joint tenancy. Thus, there is no common
ancestor in joint tenancy.
- The interest of a coparcener fluctuates from time to time,
whenever there are births or deaths in the family; a joint tenant
continues to hold his specified share throughout. Also, the title
of all the joint tenants arises simultaneously (from the date of
agreement).
- The widow of a deceased coparcener is entitled to maintenance;
a widow of a joint tenant has no such right.
Hindu Joint Family and Coparcenary
13
Tenancy-in-common: It is another kind of joint tenancy. Two or more

persons hold property jointly or otherwise than by joint inheritance
(coparcenary). Tenants-in-common are persons who take property as
co-owners and hold it by several and distinct titles with only the unity
of possession, in common. On the death of each tenant-in-common his
interest in the property passes by succession to his own heirs.
Changes in Mitakshara Joint Family and Coparcenary by H.S.

(Amendment) Act, 20057
f The 1956 Hindu Succession Act (HSA) could not remove completely
the persisting inequalities in favour of women. When the HSA was
passed in 1956, the Mitakshara coparcenary system was retained in
spite of protest by the All India Women's Conference.)
(The sons as coparceners in the joint family property can additionally
claim a direct birth right to an independent share, besides a claim in the
deceased man's notional partition. A female could not be a coparcener.
The female heirs (e.g. daughter, widow, mother) could claim only in the
deceased man's notional partition. Consequently, in every joint family,
a daughter got a much smaller share than her brother because she
shared equally with him in the father's property, whereas the brother in
addition had a share in his own right. In this way, a son can effectively
inherit at least three times as much of the ancestral property as a
daughter. Also, sons could demand partition daughters could not
The Law Commission in its 174th Report (2000) - 'Property
Rights of Women- Proposed Reforms Under Hindu Law' - recommended
for am ending the Hindu Succession A ct 1956. 8 Its primary aim was to
remove gender inequalities under the Act, as it stood before the
amendment. The Hindu Succession (Amendment) Act, 2005, assented
by President of India on September 5, 2005, came into force on 9th
7. In what manner the concept of a Mitakshara Hindu joint family and coparcenary
affected by the Hindu Succession (Amendment) Act, 2005? [D.U.-2009/2011]
8. The Law Commission said that granting daughters equal coparcenary rights
with sons in joint family property should be made applicable to women who
marry after the new amendment comes into force and not to those who married
before the change. It felt that women received quite a lot as dowry at the time
of their marriage. However, the said suggestion of the Commission did not find
a place in the 2005 Amendment Act.
14 F amily Law - II
September 2005. It has effected some significant changes in the

concept of Mitakshara coparcenary/JFP, parental dwelling house, and
certain widow's rights. The main significant change making all
daughters (including married ones) coparceners in joint family
property is of great importance for women, both economically and
symbolically. The amendment abolishes the doctrine of survivorship,
modifies the provisions relating to devolution of interest in Mitakshara
coparcenary, the provisions relating to intestate succession, the
category of class I heirs, rules relating to disqualification of heirs and
marginally touches the provision relating to testamentary succession,
I The amendment had also become necessary in view of the
changes in Hindu Succession Act 1956, in five Indian States namely,
Kerala, Andhra Pradesh, Tamil Nadu, Kamataka and Maharashtra.
These States gave daughters, including married daughters, an equal
share in the father's ancestral property. These States (excluding Kerala)
have granted daughters the right by birth to the family property. In
Maharashtra, the amendment came into force in 1994 and allows a
daughter who married after that date to get her due share in the
ancestral property. Kerala has adopted a more radical course by
abolishing the right by birth to the family property altogether.
The 2005 Amendment Act is reportedly similar to the laws
enacted in Andhra Pradesh and Kerala.9 Both the Central and State
laws will now co-exist. But if there is any repugnancy or contradiction
in a State law, then that will be overtaken. The Union Act will prevail
over an existing or even future law.
Devolution of Interest in Coparcenary Property
• According to Sec. 6(1), H.S. Act, 1956, on and from the
commencement " of the Hindu Succession Act (Amendment) Act, 2005,
in a joint Hindu
family governed by the Mitakshara law. the daughter of a coparcener
shall:
It is noteworthy that while in Kerala, the joint family concept and the pious
obligation of the son to pay his father's debts were abolished; the other four
States retained both, additionally, introducing an unmarried daughter as a
coparcener. The present Amendment Act incorporates changes that are a
combination of the Andhra and the Kerala model, It retains the concept of joint
family and introduces daughters as coparceners but abolishes the pious
obligation of the son to pay the debts of his father. See P. Pradhan Saxena,
Family Law II, 2nd ed., p. 338 (2007).
Hind u J o i n t F a m i l y and C o p a r c e n a r y 15
(a) by birth become a coparcener in her own right (irrespective of

her marital status) in the same manner as the son;
(b) have the same rights in the coparcenary property as she would
have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenary property as that of a son;
(d) and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener.
Daughter as Coparcener/'Karta
One of the major changes brought in by the 2005 Amendment is that
in a Hindu joint family, the exclusive prerogative of' males to be
coparceners has been changed altogether and the right by birth in the
coparcenary property has been conferred in favour of a daughter as
well. This radical change has fundamentally altered the character of a
Mitakshara coparcenary. Now, the daughters have been made
coparceners in the Mitakshara joint family property, with the same
rights as sons to shares, to claim partition and (by presumption) to
become Karta (Manager), while also sharing the liabilities. The
discrimination against daughter has been brought to an end, as her
rights and liabilities are the same as that of a son.}
Further, daughters would not only be empowered to form a
coparcenary along with their other siblings (irrespective of gender), but
would also be competent to start a joint family herself. She can even
be a Karta, throw her self-acquired Earnings into the joint family fund,
something that was not possible before the amendment. The rule that
females cannot form or start a joint family on their own but can
continue it even on the death of a male member in the family but
provided they have the capacity to add a male member to it by birth or
through adoption, stands abrogated now.10 After the 2005 Amendment,
thus, a 'daughter', like a son, can not only continue a joint family, but
also form one with her father and brothers.)
It may be noted that the daughters have been made coparceners
irrespective of their marital status. Thus, after the marriage of a daughter,
10. See, P. Pradhan Saxsna, Family Law II, 2 ed., p. 338 (2007)
16 Family Law - II
she will continue to be a coparcener as well as member of joint Hindu

family because all the members of a coparcenary are necessarily the
members of a joint Hindu family too (coparcenary being a narrower
body than the joint family). That means, after marriage, the daughter
will be a member of two joint Hindu families. Similarly, children born
to her will be members as well as coparceners in their maternal family
as well as paternal family. According to Sec. 6, HSA, after the
amendment, daughters become coparceners in the same manner as a
son implies not only the daughter but also her children will be
coparceners.''
It may further be noted that after the amendment, a female can
become Karta where the family is joint and if she happens to be the
senior-most member. She will continue to be Karta even after her
marriage. However, she may face practical difficulties in managing the
affairs of joint family comprising her natal family members after her
marriage. As a Karta, a female will be entitled to represent the family
and can even acquire the status of the head of the family. 1^)
: It needs to be clarified that after the 2005 Amendment, a daughter
has been introduced as a coparcener. A mother and all females who
become members of a Hindu joint family upon their marriage to male
coparceners are not coparceners themselves. Therefore, a distinction has
been created between female members of joint family in relation to their
rights over the joint family property. The two classes of females are one,
who are born in the family and secondly, those who become members-of
this joint family by marriage to the coparceners. Females, who are born in
the family i.e. daughters, sisters possess a right by birth in the
coparcenary property and those who become members of the joint
family by marriage to a coparcener, are subject to the same law as it stood
before the amendment. Their rights over the joint family property
continue to be the same, like maintenance out of its funds, a right of
residence in family house, etc.13)
11. Id., pp. 136-138.
12. Ibid.
13. W.,p. 343.
Hindu J o i n t F a m i l y and C o p a r c e n a r y 17
Abolition of Doctrine of Survivorship
.According to See. 6(1), H.S. Act, 1-956, where a Hindu dies after the
commencement of the H.S.A. (Amendment) Act, 2005, his interest in
the property of a joint Hindu family governed by the Mitakshara law.
shall devolve by testamentary or intestate succession, as the case may
be, under this Act and not by survivorship^
The 2005 Act, thus, abolishes the incidents of survivorship - one of
the primary incidents of coparcenary - when a male coparcener dies.
Survivorship implies that on the death of a corparcener, his interest was
taken by the surviving coparceners and nothing remained for his female
dependents^ This rule was first modified by the Act of 1937, where the
coparcener's widow was permitted to hold on to his share for the rest of
her life, and only on her death, the doctrine of survivorship applied and the
male collateral could take the property. The rule was further diluted in
1956, when the Hindu Succession Act was enacted. As per the 2005
Act, the doctrine of survivorship has been abolished "unconditionally.
Now. if any male Hindu dies, having at the time of his death an undivided
interest in Mitakshara coparcenary, the rule of survivorship would not
apply at all.]
From the use of the term "his interest" in Sec. 6(3), jt_aj3rjgjirs that
the doctrine of survivorship has been abolished for male coparceners but
has been retained for •females." Because according to Sec. 6(2), a
female would hold the property with incidents of coparcenary ownership
and survivorship is one of the basic incidents of coparcenary.
Concluding Remarks
The recent amendments to the Hindu Succession Act are quite significant.
They are important steps towards gender equality and abolition of the
patrilineal system of inheritance prevailing among Hindus. They can
enhance women's security by giving them birthrights in property that
cannot be willed away by man. In a patriarchal society where wills
(testamentary disposition) often disinherit women, this is a substantial
gain. Also, women can become Kartas of the property. This will enhance
her confidence and social worth and give her greater bargaining power
for herself and her children, in both parental and marital families.
18 Family Law - II
MITAKSHARA v DAYABHAGA SCHOOL
Hindu law has two main schools: the Mitakshara school and Dayabhaga
school. The Mitakshara ('a concise work') is a commentary on the code
of Yajnavalkya and is written by Vijnaneshwar. The Dayabhaga is a
digest of all the codes and is written by Jimutavahana. The Mitakshara is
the orthodox school, whereas the Dayabhaga is a reformist school of
Hindu law
Mitakshara is the authority for the whole of India except parts of
Punjab and Bengal.; In Bengal also, Mitakshara was received as high
authority except with respect to those points on which it conflicted with
Dayabhaga that is of paramount authority in Bengal. Likewise, the
Dayabhaga is also referred to sometimes in a case governed by
Mitakshara law, on points on which the latter is silent.
.Even Mitakshara was subject to different interpretations leading to its
sub-division into several schools. Mitakshara prevailed in the Mithila
(Bihar), Benaras (Northern and North-west), Dravida/Madras (Southern)
and Maharashtra/Bombay (Western) schools while in Bengal and North-
East prevails the Dayabhaga school. In Punjab, customary law (modifying
Mitakshara to a large extent) still prevails.]
Where a Hindu family migrates from Maharashtra (where the
Mitakshara law prevails) to Bengal (where the Dayabhaga prevails), the
presumption is that the family continues to be governed by the Mitakshara
law unless it is shown that the family has abandoned the law of the
province of its origin (i.e. Maharashtra) and adopted the law of the
province where it has settled. Thus, the Hindu law is not a lex loci i.e. a
local law, but it is, in every sense, a personal law.
In the modern Hindu law, schools have relevance only in the
respect of the un-codified Hindu law; they have lost all their relevance in
regard to the codified Hindu law (Acts). The Hindu Succession Act, 1956,
has abrogated the difference between the two schools and has provided
for a uniform law relating to succession of Hindus.
Mitakshara and Dayabhaga schools differ on certain basic
aspects:14
14. Distinguish between a Mitakshara and a Dayabhaga Coparcenary [D.U-2010]

Hindu Joint Family and Coparcenary ■■•\
19
(i) Under Mitakshara, the basis for the Jaw of inheritance is the
principle of propinquity i.e. the nearness in blood relationship or
consanguinity of blood. This is purely a secular principle and
means that sons and daughters should inherit equally as they
are equally nearer to the deceased parent. However, agnates are
preferred over cognates.
Under Dayabhaga, the law of succession is based on religious efficacy
or spiritual benefits (offering of oblations or Pindadan) and therefore
a person who confers more religious benefit on the deceased is preferred.
It therefore rejects the preference of agnates to cognates.!
. (ii) With respect to jointjamily under Mitakshara, the son, grandson,
and great grandson have a right by birth in the joint family
property having an equal interest with the father. Under
Dayabhaga, the son or grandson or great grandson has no such
right till the father is alive and the father can dispose of the
property at his pleasure/ After his •death, property (ancestral or
separate), devolves by inheritance or succession. Thus, there is
no right to the son to ask for a partition during the lifetime of
the father. ,
(iii) Under Mitakshara law, the coparceners have community of

interest and unity of possession but their interest in the property
fluctuates. Under the Dayabhaga law, coparceners have specified
and ascertained shares in the JFP. The interests do not fluctuate
but the copaiceners have a unity of possession.
(iv) While under the Mitakshara system, the brothers and even
collaterals so long as they are joint do not have a right to
dispose of their shares, under the Dayabhaga system, the
brothers/collaterals have such right..
(v) Under Mitakshara, the doctrine of survivorship applies and on
the death of a coparcener his share is taken by the surviving
coparceners. Under Dayabhaga, in the event of a coparcener
dying issueless, his widow has a right to succeed to his share
and to enforce a partition on her account.15
15. P. Pradhan Saxena, Family Law II, 3* ed., pp. 37-38 (2011).
20 Family Law - II
FURTHER QUESTIONS
Q.1 (a) A dies in 1992 leaving behind ancestral and separate properties.
The tax authorities want to tax the above mentioned properties
in the hand of his heirs. How the properties should be taxed if
A is governed by Mitakshara and is survived by:-
(i) his son, widow and stepmother;
(ii) his son and daughter-in-law. [C.LC.-92*?5j
(b) Examine whether the following constitute a joint family:-
(i) Husband and wife;
(ii) Widows of two brothers. [C.LC.-93]
(c) A Mitakshara joint family consists of the following:-
H, the father, his sons S1 and S2, his daughters D1 and D2, his
grandsons S3 and S4; his great grandson S5 by S3 and his
great great grandson S6 by S5.
Is S6 a coparcener? And if so why? If your answer is in the

negative can he ever in future become a coparcener? Under
what circumstances would he be completely eliminated from
the coparcenary? [C.LC-93/96]
(d) Whether a joint family includes - a married daughter, along

with her husband and son, living in her father's house? Can
a brother and sister (unmarried) constitute a joint family?
[C.LC-96]
(e) Under what situations can joint family continues at the instance
of only the female members in the family? Can two unmarried
sisters constitute a joint family? [D.U.-
201O\
(a) Determination of Joint Family Status (Creation and
Continuance)
A Hindu joint family (according to Mitakshara law) consists of all
persons lineally descended from a common male ancestor, and their
H i n d u J o i n t F a m i l y and C o p a r c e n a r y 21
wives and unmarried daughters. However, for the purpose of tax

assessment, the revenue statutes [including the Income Tax Act, Sec.
2 (31)] uses the expression 'Hindu Undivided Family' (HUF), which
appears to be slightly different from the definition of a 'Hindu Joint
Family^
{Distinction between HUF and Hindu Joint Family: The basic principle of
taxation is that where a person has absolute power of disposition over
his property, it is taxed as his individual property; where, however, there
is no such power and the property in the hands of an individual has other
claims (i.e. subject to the rights of other family members) then it is taxed
as joint property or HUF property. A large tax exemption is allowed in
the latter case. The more liberal allowance is presumably given because
the whole income of the family would not go to one individual, but, a
small portion only for each member. Also, where there is only one male
member, then in that case, the maintenance of the female members
might absorb a large share of income.
It may be noted that every Hindu family is presumed to be a joint
Hindu family until contrary is proved. There is no such presumption for
KUF. Further, while there is no presumption that a Hindu joint family
owns joint family property, the concept of HUF is linked only with the
property.!
LEADING CASE: COMMR. OF INCOME TAX v GOMEDALLI
LAXMINARAYAN (AIR 1935 Bom. 412)
[Property in the hands of so\e surviving coparcener could be taxed

as that of HUF i.e. Hindu Undivided Family.]
tin this case, the joint family consisted of the son, his wife, and his
mother. Thus, the son was the sole surviving coparcener^ [The issue
was whether property in the hands of sole surviving coparcener should
be taxed as his individual property or that of HUF. A Hindu undivided
family is taxed as a 'unit,' the individual . members thereof are not liable
to be charged in respect of what each member received as his or her
share of the joint income It was contended that the expression 'Hindu
Undivided Family' as used in revenue statutes indicates that it must
consist of at least two male members, i.e. there should be coparceners. )
22 Family Law - II
The court, however, observed: The Supreme Court, in its recent

decision said that the expression 'Hindu Undivided Family' in the
Wealth Tax Act used in the sense in which a Hindu joint family
is understood in the personal law of Hindus and a joint family may
consist of a single male member and his wife and daughters and
there is nothing in the scheme of the Wealth Tax Act to suggest
that a HUF as assessable unit must consist of at least two male
members (Narendranath v Cummr. Wealth r Tax AIR 1970 SC
14)
Thus, the joint status of the family does not come to an end
merely because for the time being there is only one male ^member
of the family who is in possession of the family property. It is clear
therefore that "there is a sharp distinction between what is
understood in the Hindu law by the expressions "undivided
Hindu family" and "coparcenary" (consisting of male members)^
it was further contended that the assessee was the sole
survrving coparcener and, therefore, free to deal with property
in any way he liked, and so there was no undivided family. The
court, however, observed that under Hindu law, the sole surviving
coparcener has wider powers to deal with the property, but,
subject to rights of female members e.g. maintenance, marriage
expenses, adoption by widow, etc
The court noted that a large tax exemption is allowed in
the case of HUF. The more liberal allowance is presumably
given because the whole income of the family would not go to
one individual, but, a small portion only for each member. Also,
where there is only one male member, then in that case, the
maintenance of the female members might absorb a large share
of income.!
Comments - There can be joint family consisting of a single
male coparcener and a widow of coparcener. There can also
be a joint family where there are only widows. The rule is "that
even on the death of sole surviving coparcener, the joint family
does not come to an end so long as it is possible in nature or
in law (i.e. adoption) to add a male member to it {Sitabai v
Ramachandra AIR 1970 SC 343).
Hindu J o i n t Fa mily and C o p a r c e n a r y 23
(According to a learned writer (Paras Diwan

'Modern Hindu Law'), where there is joint family
consisting of female members and a male member,
the male member can treat the joint family property,
almost, as his separate property. As long as another
male member does not come into existence, it
assumes the character of self-acquired property,
subject to the rights of maintenance of female
members. But for the purpose of tax such a family
will be called 'undivided family'.
Decision of the case in question

(i) In view of the law discussed above, a joint family consisting
of son, widow and stepmother is a joint Hindu family. Therefore,
all ancestral property in the hands of this family must be taxed
as HUE However, the separate properties in the hands of A's
heirs will be taxed individually, (ii) In Krishna Prasad v CIT,
Bangalore (AIR 1975 SC 498), it was held that a joint Hindu
family can consist of a male Hindu and his wife. It may even
consist of two female members. But there must be at least two
members to constitute it. A joint family can never consist of
single male or single female (CIT v Veerappa Chettiar AIR
1970 SC 240). Thus a family consisting of son and his wife will
be a joint family. The ancestral property of A in the hands of
his son will be taxed as HUF. The separate property of A in the
hands of A's son will be taxed as the property of an individual
(as the son will be an absolute owner of such property).
(b) (i) A husband and wife; and (ii) widows of two
brothers, both constitute a joint Hindu family.
(c) Determination of Coparcenary
A coparcenary consists of father, son, son's son, son's son's
son (i.e., father and his three male lineal descendants). The
rule is that so long as one is not removed by more than four
degrees from the last holder (senior-most living lineal male
ancestor), one will be a coparcener. Thus, coparcenary
extends to three degrees below the last holder (The four
degrees is inclusive of last holder).
24
F a m i l y Law - II
H (Last Holder)
i 1
1 1 S1 I (First Degree)
S2 D'/D2
,1 1 1
.
(Second Degree)
s3 s4
1 (Third Degree)
5
s
S6 is not a coparcener; he can become so if H dies, for then

he will come within the four degree rule. S6 will be completely
eliminated from the coparcenary if H remains alive and S1, S3 and
S5 die. The moment the three immediate ancestors die, line cannot
proceed in that direction [Moro Vishwanath v Ganesh Vithal, ILR
(1873) 10 Bom 444].
(d) A daughter, after her marriage, gets excluded from the
joint family of her parents (as she now gets included in
the joint family of her husband/or makes a joint family
with him). However; a widowed daughter may lay claim
on the bounty of the joint family. A brother and sister
(unmarried) constitute a joint family (as there are two
members present to constitute a joint family).
(d) Two Unmarried Daughters could form a Joint
Family
It may be noted that before 1956, a daughter (unmarried) lacked
the capacity to add a member to her father's joint family. Thus,
if a daughter or daughters was/were left in the family, the joint
family of the father ended. The Hindu Adoptions and Maintenance
Act, 1956, has granted an unmarried female the ability to carry on
her father's joint family by adding a male member to the family.
Further, after the 2005 Amendment to the Hindu Succession
Act, 1956, a 'daughter', like a son, is a coparcener and can not
only continue a joint family, but also form one with her father
and brothers.
2
Property in Hindu Law
CLASSIFICATION OF PROPERTY
(I) Obstructed and Unobstructed Heritage

The Mitakshara school classifies property mainly under two Heads:
apratibandha daya (unobstructed heritage) and sapratibandha daya
(obstructed heritage).
Ancestral property is 'unobstructed heritage.'All properties inherited by a
Hindu male from a direct male ancestor, not exceeding three degrees
higher to him is called apratibandha daya. In this property his son,
son's son and son's son's son acquire an 'interest by birth.' Therefore, it
is called an 'unobstructed heritage', as the accrual of the right to it is not
obstructed by the existence of the owner. Thus, if A inherits property
from his father or grand-father or great grandfather, it is unobstructed
heritage in the hands of A as regards his male issue (because the
existence of A is no obstruction to his son acquiring an interest) but as
regards other relations he holds it as his absolute property. Property, the
right in which accrues not by birth but on the death of the last owner
without leaving any male issue, is called 'obstructed heritage.' Property
inherited by a Hindu from a person other than his father, grandfather or
great grandfather is obstructed heritage. Thus where a person inherits
property from maternal/paternal uncle or brother, nephew, etc. it is
obstructed heritage. It is called 'obstructed' because the accrual of the
rights to it is obstructed by the existence of the
[25]
26 Family Law - II
owner. The owner holds it as his separate and absolute properly. The
relations of the owner do not take a vested interest in it by birth. They
are entitled to it only on. the death of the owner. For example, A inherits
certain property from his brother. A has a son B. The property is
obstructed in the life-time of A. B does not take any interest in it during
the life time of A. After A's death, B will take it as A's heir by succession.
Thus, the unobstructed heritage devolves by survivorship and
obstructed heritage by inheritance (succession). In the former case,
relatives take a vested interest in the property by birth. In the latter
case, their right to it arises for the first time on the death of the owner.
Until then they have a bare chance of succession to the property,
contingent upon their surviving the owner.
However, in some cases, obstructed heritage passes by survivorship
e.g. two or more sons, grandsons and great grandsons succeeding as
heirs to the separate property of their paternal ancestor take as joint
tenants with survivorship rights.
(II) Joint Family Property and Separate Property
According to the Hindu law, the property is divided into two classes,
namely:- (1) Joint family property or coparcenary property, and (2)
Separate property.
(1) JOINT FAMILY PROPERTY

(COPARCENARY PROPERTY)
The joint family property is the most important aspect of the law of the
Hindu Joint Family. The HJF property is like a big reservoir into which
property flows in from various sources and from which all members of
the joint family draw out to fulfill their multifarious needs. Thus
'coparcenary property' is that in which every coparcener has a joint
interest and joint possession. It devolves by survivorship (interest by
birth), not by succession.' The coparceners are in fact defined in
1. What is meant by 'coparcenary property" under Mitakshara law? Discuss its

importance. [LC.//-96]
P r o p e r t y in H i n d u Law 27
reference to JFP as a narrow body of those specific members of

HJF who acquires by birth an interest in JFP.
It may be noted that although the Hindu Joint Family and Hindu
Coparcenary are two distinct concepts, Joint Family Property and
Coparcenary Property are synonymous expressions
Types/Sources of Joint Family Property

The Hindu Joint Family Property includes;-
(1) All ancestral property.
(2) Property acquired with aid/assistance of ancestral
property (Doctrine of Accretion).
(3) Property acquired at the cost of ancestral property (Doctrine
of Detriment).
(4) Separate property of a coparcener which is voluntarily
thrown by him into the common stock to such an extent that
it cannot be distinguished from joint family property
(Doctrine of Blending).
(5) Other types of property e.g. recovered joint family property, j
. (1) Ancestral Property2 - Broadly speaking, property inherited
from any ancestor or ancestress may be called ancestral property. But it
is not this sense in which it is used in Hindu law. It has a technical
meaning. It is the property inherited from father, father's father or
father's father's father (three immediate ancestors) which is called
'ancestral property'. Property inherited from any other relation e.g.
mother, uncle, aunt, brother, etc. (including maternal grandfather) is
not ancestral property but it is the separate property of the person
inheriting it [Md. Husain v Kisheva (1937) ALL 655] (See under the
Questions section The essential feature of the ancestral property,
according to Mitakshara law, is that the sons, grandsons and great
grandsons of the person who inherits acquire an interest in it by birth
Thus, ancestral property is the same thing as apratibandha daya
(unobstructed heritage). .
2. Define the concept of 'ancestral property' under Mitakshara law and

discuss
its attributes. [LC.
M~95]
Op
** Family Law - II
I It may be noted that the self-acquired property (separate property
of the grandfather in the hands of the father is ancestral property
because all property inherited by a male Hindu from his father or
father's father or father's father's father is ancestral property. It is
immaterial whether the property was ancestral or self-acquired in the
hands of the deceased. Further, a gift of his self-acquired property by
the father to son will be an ancestral property, if the father intends that
the son will take it as joint family property (and not as his separate
property) (See Arunachalam v Murugantha AIR 1953 SC 495 under the
Questions section
, (2) Doctrine of Accretion - Here the term 'accretion' has been
used in a wider sense including all income, accumulations (viz.
rent, mortgages, etc.), or acquisition of property made with the
joint family nucleus. In its ordinary meaning, accretion means
(i) accumulation of income of the joint family property, (ii)
property purchased/acquired with the joint family income, and
(iii) proceeds of the sale of joint family property or property
purchased out of such sale-proceeds
■ The joint family nucleus must not be small or inadequate; where the
nucleus is considerable the presumption arises that the acquisition of
property made with its aid is joint family property. But the income
yielding capacity of the nucleus is an equally important factor. Any
property acquired by the Karta out of his own income in the name of
his son will not constitute the joint family property (Chodrashewer v
Ramchandra AIR 1973 Pat 215). Where the property is purchased by
the Karta, in the name of the female member, there is no presumption
that it is the JFP. Thus, the presumption varies depending upon who the
acquirer and the beneficiary are.
,The burden of proof is upon the person who alleges that it is the
JFP, to establish it. If he establishes that there was sufficient joint
family nucleus from and out of which the said property could have
been acquired, the burden shifts to that member of the family who
claims it to be his separate or personal property. If, however, the
nucleus is such that with its help, the property claimed to be joint, could
not have been acquired, the burden will not shift.)
(where the joint family property is under separate and convenient
enjoyment of members, any property acquired by a coparcener out of
the income of such property will be joint family property

(Kurnaraswami Subba AIR 1977 Mad 353). Where there is no joint
family nucleus, the property acquired is separate property In
Rajmal v Rajmal (AIR 1953 M.B. 28) the Karta acquired certain
properties by pre-emption and it was not proved that the pre-
emption price was paid out of family funds; it was held that
property so acquired could not be held to joint family property
(3) Doctrine of Detriment - Generally, any property acquired (by
Karta or other coparcener) to the detriment of JFP, would itself take the
character of JFP. For instance, if a Karta instead of taking a loan, sells
a piece of family land and with the sale proceeds, renovates his own
house; that is to the detriment of JFP and would result in the alteration
of the separate property and give it the colour of JFP. However, if this
rule is followed without any exceptions then it can lead to strange
consequences. For instance, if a coparcener receives education, or
acquires a job or some other benefit, which was financed out of joint
family funds, then strictly according to the doctrine of detriment the
income received from education, job, etc. should be joint family property.
However, it is not always and necessarily so (See under the heading
'Separate or Self-acquired Property').^ . (4) Doctrine of Blending -
When a coparcener deals with his separate property in a manner that
he leaves no doubt that he wants to treat it as part of joint family
property, such property becomes joint family property ('throwing into
the common stock"). If he mixes his property with the JFP, it is known
as 'blending'. The act of blending is an unilateral act. The mere act of
physical mixing of property is not enough, but his own volition and
intention by waiving or surrendering his rights in it as separate
property, will make such property the JFR. thus, a mere intention to
benefit the members of the family (out of kindness and affection) by
allowing them the use of the income from the separate property may
not necessarily be enough to justify an inference of blending
(Mallesappa v Mallappa AIR 1961 SC 1268). A female member of
the joint family has no power of throwing her separate property into
the common stock, only coparceners possess this right (Vasant v
Sakharam, AIR 1983 Bom. 495).)
30 Family Law - II
If a father effects partition of his separate property, it may mean that

he is treating it as joint family property. But it may be a gift deed clothed
in the language of partition deed, then in such a case it will be a gift
and sons will take it as their separate property [Paraqmasivam v Rama
Swami (1970) MLJ 492]/ Where a Karta has income from his separate
property as well as from the joint family property, and he deposits all
the incomes in the same bank account, without keeping separate accounts
then it is a clear case of blending [Lai Bahadur v Kanhaya Lai (1906
26 All 244].
If a coparcener builds a house on joint family land out of his
separate funds, the other coparceners will be entitled to compensation
for their share of land, unless it is clearly shown that the coparcener
wanted to blend his separate property with the joint family property.
The onus that house was constructed out of self-acquired property is
on the coparcener, and if blending is shown it will be part of joint family
property (Nilkanta v Ram Chandra AIR 1991 Bom. 10).
In Kesar Bai v Ran Singh (AIR 2003 P&H 289), the deceased
coparcener had inherited property from his collateral, which in his
lifetime, he never intended to keep as separate property. It was held to
be joint family property as per the doctrine of blending.
(5) Other Types of Property - e.g. "recovered joint family property/'
When one coparcener without any assistance from the joint family
funds or from his fellow coparceners recovers any ancestral property
which has been lost of the joint family, the property so recovered will
be the separate property of the recoverer if recoverer is the Karta; and
of other coparcener if property is movable (and in case of immovable
property, the coparcener will take one fourth of it as his separate
property and the rest will become JFP).j I Property jointly acquired by
coparceners - with their joint labour and without the aid of the joint
family property, will be joint family property in which sons will acquire
an interest by birth, unless it is proved that the acquirers intended to
own the property as co-owners between themselves in which case it
will, be joint property and not joint family property,
Property obtained on partition - When a coparcener partitions from the
joint family and obtains his share of property, then in respect of his own
P r o p e r t y in Hindu Law 31
son, son's son and son's son's son it will continue to be joint
family property, but in respect of all others it will be his separate
property. And, when that coparcener (father) further partitions
with his sons, then his share would constitute his separate
property. His sons no longer would have a right of survivorship in
it and on the father's death, the property would go by inheritance. If,
however, the father gets a son after his separation from the family,
he will form a coparcenary with that son.
(2) SEPARATE OR SELF-ACQUIRED PROPERTY
, A member of the Hindu joint family or coparcener can, under

Hindu law, make separate' acquisition of property. The separate
property may be obtained from several sources; the key words in
the doctrine of self-acquisition are "what has been acquired
without any detriment to the joint family property." Placitum 1,
S.4 of Mitakshara says regarding self acquisition: "Whatever is
acquired by coparcener without detriment to father's estate (or
joint family property) as present from a friend or gift at nuptials,
doesn't appertain to the co-heirs.
•Thus, the property acquired by a Hindu in his/her individual
capacity or through individual efforts without the assistance of
family funds is called 'separate or self-acquired' property. He/she
has absolute ownership over it. On the death of the owner, the
separate property of a person goes via inheritance (intestate
succession), or by testamentary succession in case he dies after
making a Will. The doctrine of survivorship is inapplicable to a
separate property; thus, the right of the son over the separate
property of the father is a mere spes successionis i.e. the chance
of an heir to succeed to the father's property.]
Mere use of the JFP by the Karta as a business premise for
running his separate business cannot be said to be
detrimental to the JFP and therefore earnings or property
acquired through those earnings are his separate property [P.S.
Sairam v P.S. Ramarao Pisey AIR 2004 SC 1619]. In this
case, Karta started business by taking loan from market, in
the premises of JFP. This property was not only used by the
Karta but also by junior members of the family.]
32 Family Law - II
Sources of Separate Property

Property acquired in the following ways is the separate property of the
acquirers:-
4f¥f Property inherited as obstructed heritage i.e. property inherited
by a Hindu from a person other than his father, father's father
and father's father's father.
u(2) Gift of his self-acquired property by father to his son; if the
father intends that the son will take it as his separate property.
j(3)'Gift of a small portion of ancestral movable property made
through affection by a father to his son, wife, daughter,
daughter-in-law, son-in-law, etc.
(4) Property obtained by a coparcener who has no male issue on
partition.
(5) Property held by a sole surviving coparcener, when there is no
widow in existence who has power to adopt.
6) Government grants - If property is granted to a coparcener by the
Government, it will constitute the separate property of the
grantee unless it has been specially given to him as joint family
property.
(7) Income from the separate property - or property acquired with
such income will be coparcener's separate property.
8) Separate earnings or earnings by self-exertion - Such earnings,
without the aid of the joint family property constitute separate
property of the coparcener.
(9) Income of the joint family property allotted to a member for his
maintenance - If some surplus income remains after the
maintenance, or any property is purchased out of surplus, such
income or property will be separate property of the coparcener.
Because the acquisitions were as much the result of his own
industry and thrift as they were the natural products of the land
itself ('money saved is money earned'). In Chinna v Venkatta
(AIR 1954 Mad 282), the court said that even if the coparcener
invests a portion of such property in business and earns profits
these profits will be his separate property, as to hold otherwise
will go to kill "the spirit of initiative and enterprise".
10) Benefits of insurance policy - In every case, where joint

family funds are used for payment of premium of a life
insurance policy, there is detriment to the joint family, but
that is not the sole criterion. If Joint family funds are
advanced to members of the coparcenary for their
individual benefit, there is strictly speaking a detriment to
the family, nonetheless the intention with which that
money was given and the use of it by the individual for
his own benefit would determine the character of the
income or the amount earned therefrom (Narayanlal v
Controller of Estate Duty AIR 1969 A.P. 188).
Thus, a member of a coparcenary may with the moneys which
he might receive from the coparcenary effect insurance upon his
own life for the benefit of the members of his immediate family.
His intention to do so and to keep the property as his separate
property would be manifested if he makes a nomination in favour
of his wife or children [Seethalakshmi v Controller of Estate Duty
(1966) 61 ITR 317]. Earlier in Parvati Kaur v Sarangadhar (AIR
1960 SC 403), the Supreme Court held that if the intention was to
benefit the family as a whole, the policy should be treated as JFP,
but, where the premium was paid out of joint family funds, but the
intention was that the insured or his immediate family should
alone be benefited, then the policy should go to him or for his
legal heirs benefit.
11) Gains of learning - See under the Question section.
12) Salary and remunerations - See under the Questions section.
Case Law
Presumption regarding Joint Family Property
LEADING CASE: MAKHAN SINGH v KULWANT

SINGH (AIR 2007 SC 1808)
[A property could not be presumed to be a Joint Hindu

Family property merely because of the existence of a Joint
Hindu Family. The one who asserts has to prove that the
property is a joint family property.]
In this case, the issues were whether a property
purchased in the name of a member of a family could be
presumed to be a Joint Hindu Family property merely
because of the existence of
Family Law - II
a Joint Hindu Family, and, who is required to prove the nature

of property whether it is joint Hindu Family property or self--
acquired property.
It has been pleaded that there was no evidence whatsoever
to show that the aforesaid property had been purchased from
the income of the joint family so as to give it the character of a
Joint Hindu Family property and that the onus which lay on the
defendant as the propounder of the joint family, as envisaged by
the judgment of this Court in D.S. Lakshmaiah v L.
Balasubramanyam (2003) 10 SCC 310, had clearly not been
discharged. It has, further, been argued that the finding of the
High Court that a decree for 11 Marias of land could not be
granted as this land had been purchased by Dula Singh during
his life time and had passed on to his sons by succession after
his death in 1966 was therefore Joint Hindu Family property in
the hands of his sons too was wrong as observed in K. V.
Narayanaswami Iyer v K.V. Ramakrishna Iyer (1964) 7 SCR
490, as there was no presumption in law that a property
purchased in the name of a member of a family had ipso-facto
the character of Joint Hindu Family property unless it could be
shown that the family possessed a nucleus for the purchase of
the same.
It has, further, been pleaded that the finding of the High
Court that the 11 Marias purchased by Dula Singh in his own
name which devolved on his sons after his death in 1966 too
had the character of Joint Hindu Family property was also an
erroneous assumption in the light of the judgment of this Court
in Commr. of Wealth Tax, Kanpur v Chander Sen (1986) 3 SCC
567. in which it has been held that there could be no presumption
that if the property purchased by a father fell to his son by
inheritance it was deemed to be in his position as a Karta of a
Hindu Undivided Family.
In D.S. Lakshmaiah case, it had been observed that a
property could not be presumed to be a Joint Hindu Family
property merely because of the existence of a Joint Hindu
Family. The one who asserts has to prove that the property is
a joint family property. If, however, the person so asserting
proves that there was nucleus with which the joint family
property could be acquired, there would be presumption of the
P r o p e r t y in H i n d u Law
property being joint and the onus would shift on the person
who claims it to be self-acquired property to prove that he
purchased the property with his own funds and not out of joint
family nucleus that was available.
The court, in the present case, held: The High Court has
also rightly observed that there was no presumption that the
property owned by the members of the joint Hindu Family
could a fortiori be deemed to be of the same character and to
prove such a status it had to be established by the propounder
that a nucleus of Joint Hindu Family income was available and
that the said property had been purchased from the said nucleus
and that the burden to prove such a situation lay on the party,
who so asserted it. The ratio of K. V. Naraycmaswami Iyer case
is thus clearly applicable to the facts of the present case.
It is the admitted case that the 11 Marias had been
purchased by Dula Singh from his income as an employee of
the Railways and it was therefore his self-acquired property.
Such a property falling to his sons by succession could not be
said to be the property of the Joint Hindu Family.
Property held by a Sole Surviving Coparcener
LEADING CASE: SMT. DIPO V WASSAN SINGH (AIR

1983 SC 846)
[The property held by a sole surviving coparcener may constitute

his "separate property' and on his death it will devolve by succession
on his heirs, and any custom giving preference to collateral would
be void. The character of the property varies, depending upon who
the claimant is.]
In this case, two brothers inherited the property from their
father. One brother 'X'
had a daughter and a son. His son took the X's properties by
survivorship on X's death, but the son died without leaving any
male descendants. Therefore, his sister (X's daughter) claimed
the properties by succession. However, the sons of other brother
'Y' raised a dispute that they were the rightful owners of the
X's property. They contended that the properties in the hands
of X's son were ancestral property and in Punjab, a female
cannot own ancestral property.)
36 Family Law - II
(The Supreme Court held that the property held by a sole

surviving coparcener may constitute his separate property and
on his death it will devolve by succession on his heirs, and any
custom giving preference to collateral would be void. The court
observed that the character of the property varies, depending
upon who the claimant .is. In the absence of any male issue,
X's son held it during his lifetime as a sole surviving coparcener
and its character with respect to both his sister and the collaterals
(sons of 'Y') was that of a separate property, which will go by
inheritance to the nearest "heir (his sister).
If X's son had the male issues, the character of the
property would have been ancestral. In the absence of male
issues, though he holds it as a sole surviving coparcener and
is entitled to treat it as his separate property, its character as a
coparcenary property will revive the moment he gets a son.
Thus, in the absence of any surviving member of joint family
be it a descendant or otherwise, who could take the property
by survivorship, his property was not ancestral or coparcenary,
but was his separate or absolute property
(The court cited Mulla s Principles of Hindu Law (15th
Ed., p. 289): "If A inherits property, whether movable or
immovable, from his father or father's father or father's father's
father, it is ancestral property as regards his male issue has no
son, son's son, or son's son's son in existence at the time
when he inherits the property, he holds the property as absolute
owner thereof. A person inheriting property from his three
immediate paternal ancestors holds it, and must hold it, in
coparcenary with his sons, son's sons, or son's son's sons, but
as regards other relations he holds it, and is entitled to hold it,
as his absolute property."}
Again at p. 291, it is stated: "The share which a coparcener
obtains on partition of ancestral property is ancestral property
as regards his male issue. They take an interest in it by birth,
whether they are in existence at the time of partition or are
born subsequently. Such share, however, is ancestral property
only as regards his male issue. As regards other relations, it is
separate property, and if the coparcener dies without leaving
male issues, it passes to his heirs by succession"].^
The sole surviving coparcener holds the family property as his

separate property, but it would be subject to its becoming
coparcenary at any moment when he has male issue or when
an adoption is made by or to him or to a predeceased
coparcener in the family [Mohinder Singh v Gurbax Singh
(2004) 138 P.L.R. 154]. Similarly, in Fateh Singh v Lakhbir
Singh (2004) 136 P.L.R. 881, it was held that the sole
surviving coparcener can deal with such property in the
manner he deems fit and can also bequeath the same by way
of will
FURTHER QUESTIONS
Q.1 Nishant, a Mitakshara Hindu, living in Delhi owns the

following properties:-
(i) a house, which he inherited from his maternal

grandfather/or brother;
(ii) a shop, which he got from his father under a Gift/Will;
(iii) a flat, which he inherited from his father on the latter's

death in 1990;
(iv) a share received on partition.
His son, Subhash seeks partition and demands his half

share in all the said properties. Will he succeed?
[D.U.-2008/2009][C.LC.-92/93/95;
LC./-96]
A.1 (i) Nature of Property Inherited from Maternal
Grandfather
^The essential feature of the ancestral property, according to
Mitakshara law, is that the sons, grandsons and great grandsons
of the person who inherits acquire an interest in it by birth.
Under the Mitakshara, property inherited from any person,
other than the father, father's father and father's father's
father, is obstructed heritage and a person cannot acquire an
interest in it by birth. Mitakshara Placitum - 1-27 also says
property in which a son acquires interest jointly with his
father is property descending to the father from his male
ancestor in male line.
Family Law – II 38
LEADING CASE: MD. HUSAIN KHAN v BABU KISHVA

NANDAN SAHAI
ÂIR 1937 PC 233)
. [Property inherited from the maternal grandfather cannot be

said
to be ancestral. The 'ancestral estate' in which under the Hindu
law, a son acquires jointly with his father an interest by birth,
must be confined to the property descended to the father from his
male ancestor in the male line.].
I In this case, one Ganesh Prasad inherited certain village
property from his maternal grandfather. Under a Will made
by Ganesh the said property was to go to his son, Bindeshri
Prasad for his life, and on his death, it was to vest in his
widow, Giri Bala. In execution of a decree for money
obtained by a creditor against Bindheshri Prasad, the said
property was sold in court auction. Bindeshri filed a suit
claiming possession of the property on the ground that the
sale was vitiated by fraud. During the pendency of
proceeding, Bindeshri died and his widow, Giri Bala, was
brought on record.
The widow asked for leave to amend the plaint on the
ground that under a Will made by her father-in-law, Ganesh
Prasad, her husband got the estate only for his life, and that on
the latter's death his life interest came to an end, and the devise
(Will) in her favour became operative, making her absolute
owner of the disputed property. She accordingly prayed that.
even if the sale be held to be binding upon her husband, it
should be declared to be inoperative as against her rights of
ownership in the property The validity of the Will executed by
Ganesh is challenged by the appellant on the ground that the
testator had no authority to dispose of the property, as it
belonged
to a Hindu coparcenary consisting of Ganesh and his son. ,
The court observed: "The word 'ancestral' ordinarily means
an ascendant in the maternal as well as paternal line. But the
'ancestral estate' in which under the Hindu law, a son
acquires
jointly with his father an interest by birth, must be
confined to
the property descended to the father from his male ancestor in_ the
male line. As shown by the Mitakshara text, it is the property of
paternal grandfather or 'pitamaha' (referring to word
'ancestral') in which a joint interest is there.
P r o p e r t y in Hi n d u Law 39
The court further observed: '"The primary reason

for this is the Hindu society was patriarchal in
nature which means that for mother's father
(maternal grandfather) the primary heir would
be his son and hence, any inheritance by the
daughter's son would be obstructed heritage.'!
Thus, estate inherited from maternal grandfather
is "separate property' and one has full power of
disposition over it so a device [Will) made by
person over his separate property is fully
operative,
In the present case, the estate which was inherited by
Ganesh Prasad from his maternal grandfather cannot in their
lordships' opinion be held to be ancestral property in which his
son had an interest jointly with him. Ganesh Prasad
consequently had full power of disposal over that estate, and the
devise made by him in favour of his daughter-in-law, Giri Bala,
could not be challenged by his son or any other person On the
death of her husband, the devise in her favour came into
operation and she became the absolute owner of the property;
and the sale of that property in execution proceedings against
her husband could not adversely affect her title.ljf
In Venkayamma v Venkatanarayanamma (1902) 25 Mad
678, a wrongly decided case, two brothers, members of a
joint family, inherited certain properties from their maternal
grand-father. One of them died without a male issue and
his widow claimed his share by inheritance, while the
other brother claimed it by survivorship. The Privy
Council held that it was joint family property and passed
by survivorship to the other brother.
In Maktul v Manhhari (AIR 1958 SC 241), the Supreme
Court held that the property inherited by a person from his
maternal grandfather
is not ancestral qua his descendants.
(ii) Gift (or Will) by Father of Self-acquired Property to
Son
Two important principles of Hindu law are: (1) Every
Hindu has full "power of disposal over his separate
property. (2) When separate or self-acquired property of a
Hindu devolves on his son by inheritance or by partition,
the son takes it as ancestral property in which his son has
an interest by birth. The difficulty arises when the father
make a gift (or will) of his separate property, because in
that case the property do not passes by inheritance and
thus the question is whether such property-is 'ancestral
property' or 'separate property' in the hands of donee (son)
\c* 40 Family Law - II
it may be noted that if A who has three sons - B, C and D,

makes a gift of his separate property to C to the exclusion of B
and D, the question is not whether B or D can challenge it. They
obviously cannot. The question is: Can C's son claim an interest
in it by birth?}
LEA stranger without the concurrence of his sons but he
DING
can make a gift of such property to one of his own sons to
CAS
E:
the
AR detriment of another; and he can make even an unequal
UN distribution
AC amongst his heirs.
HAL
In view of this settled position of Saw, it is not possible
AM
V to hold that such property bequeathed or gifted to a son
MU must necessarily, and under all circumstances, rank an
RU ancestral property in the hands of the donee in which his
GA sons would acquire co-ordinate interest,
NTH
A In this case, the issue was - if a father gives his self-
acquired
(AIR 1953 property by gift inter vivos or by will to one of
SC 495)
M his sons, the son will take it as ancestral property and
itaks son's son will have interest in it or not. The will, in this
hara
fath case, recites that the testator is aged 65 and his
er is properties are all his own which he acquired from no
not
only nucleus of ancestral funds. His three sons are to enjoy
com the properties, mentioned in the will, allotted to them
pete
nt to with 'absolute rights and with powers of alienation such
sell as gift, exchange, sale, etc. from son to grandsons
his
self- hereditarily.' The Supreme Court, after considering the
acqu
ired texts and the various decisions of the High Courts, said
pr that the answer to the question primarily depends upon
op the intention of the father.) The Court held that
ert (1) When a person receives gift, he receives it
y not because he is son or has any legal
to right, but because his father choose to
a bestow a favour on him which he could
have bestowed on any other person as
3 Write a short note on principle of law as discussed in

Arunachaiam v
Murugantha.
[LC.I-94\
well. The expression 'obtained through favour of father',

which occurs in Placitum 28, S.4 of Mitakshara is very
significant. When he makes a gift of separate property, he
has an absolute discretion. | (2) Further, the Mitakshara has
placed the father's gift under a separate category, and has
declared them exempt from the partition If was contended
that such gifted property must be held partible as it does not
come within the definition of 'self-acquisition'. As such gift
can't be said to be acquired by son without detriment to father's
estate, it cannot be regarded as 'self-acquired property and
consequently cannot be exempt from partition The court,
rejecting this argument, said that the rather's gift being itself
an exception, provisions in Placitum 28 cannot be read as
requiring that gift must also be without detriment..., for it
would be A1"-1", j" a palpable contradiction to say that
there could be any gift by a father out of estate without any
detriment to estate) (3) As a Mitakshara father has complete
power of disposition over his self-acquired property, it must
follow as a necessary consequence that father is quite
competent to provide expressly when he makes a gift, either
that donee would take it exclusively for himself, or the gift
would be for the benefit of his branch of family. Thus, the
question primarily depends upon the intention of the
father. ,
(4) The intention is to be gathered from the terms of the
deed. In case the father has not expressed his intention clearly,
then the intention is to be gathered from the language of the
deed and the surrounding circumstances. Thus, if it is shown
that so-called gift was not a gift but an integral part of a
scheme of partition, then the donee-son will take the
42 Family Law - II
property as joint family property.4 On the

other hand, if the father expressed a clear
intention in the deed that the son will take it
as his separate property, the son will take it
accordingly
[It is submitted that simple rule should be that the donee-
son takes it as his separate property, subject to any
restrictions that the father might have imposed on the gift -
Paras Diwan 'Modern Hindu Law'.]
(5) The Court held that, in the present case, the Will
expressly vests son with absolute rights (of
alienation), and no reference is made to son's
son. Thus he (father) did not intend that 'he
property should be taken by son as ancestral
property.
(6) Thus, a property gifted by father to his son
could not become ancestral property in the
(iii) hands of donee simply by reason of the fact
that the donee got it from his father as
ancestor. Theory of equal ownership is not
applicable to the father's gifts, as father has a
predominant interest in his self-acquired
property.ly
Nature of Property Inherited from Father under
Hindu Succession Act, 19565
X, the father of a JHF dies in 1950 bequeathing by a will his separate

property to his two sons (S1 and S2) in the following terms:
"My two sons aforesaid who are now alive, together with all the sons who
may be born to me thereafter, shall divide all my properties into as many
equal shares as there be sons and each son would take one share."
S1 gifts his part of the property obtained through the will to his sister and
dies.
His son, S3, challenges the validity of the gift, contending that the
property
bequeathed to S1 by X is ancestral. Decide.
[C.LC-96]
[Note: S3 can challenge the gift]
Discuss the character of the property that a son inherits from his father
post 1956. What are the judicial developments in this regard? What would
be your answer if the property is left to the son under a testamentary
disposition?
[D.U-201O]
[Note: For testamentary disposition (i.e. under a Will) see Arunachalam v
Murugantha.]
LEADING CASE: CWT V CHANDER SEN6 (AIR

1986 SC 1753)
[The son inheriting the separate property from his father,

grandfather or great grandfather, under the Hindu Succession Act,
1956, would take it as his exclusive or absolute property, with no
right of his male descendants over it. The son does not inherit the
property as the Karta of his branch, but does it in his individual
capacity as the son of the intestate, and not as the representative of
his male issue]
The question in this case was whether income/asset which a -, son inherits
from his father dying intestate (without making a Will), when separated
by partition (i.e. the separate property of father), the same should be
assessed as income of HUF of son or of his own individual income^
.In this case, the family comprised the father, his son and grandsons. A
partial partition was effected and the father and the son carried on their
respective businesses. On father's death, the son inherited his separate
properties and received the undivided share, by survivorship. The son
(Chander Sen) was now the Karta of his family comprising two sons. In the
Karta's capacity, he filed a return of his net wealth and showed the joint
family income (including the one that he had got by survivorship), but. did not
include in it, the property inherited from his father on the ground that it was
his separate property. The Wealth Tax Officer maintained that the property
received from the father, either by survivorship or through inheritance, was
coparcenary property in the hands of the son. .
The Supreme Court held that after the passing of the Hindu
Succession Act, 1956, the properties inherited by a son from the
father would constitute his separate property and not
A Mitakshara family comprising of a father and son had considerable JFP. In

addition they were running a rice-mill in partnership. Father died intestate in
1990. The son did not include in the wealth tax return for the undivided family
the share he inherited from his father in the rice-mill under the Hindu Succession
Act. The Wealth Tax Commissioner did not accept son's plea. The son challenged
this decision in the High Court. How the court would decide? [LC.J-
95]
[Wore: The son will succeed in the present case.
Family Law - II
coparcenary property The Apex Court noted that Allahabad, M.P.,

Madras and Andhra Pradesh High Courts hold such property as separate
property of the son, but Gujarat High Court takes a contrary view.
The Court observed: Under the traditional Hindu law, when a son
inherits separate property from his father, vis-a-vis his own sons, he
takes it as 'JFP.' But that position has been changed by the Hindu
Succession Act, 1956. The H.S. Act both modifies and codifies the
Hindu law. Sec. 4 of it lays down that any rule of Hindu law or custom,
inconsistent with the provisions of the Act, would cease to have any
effect and it is the statutory provisions that would prevail. With respect to
the joint family property inherited by the son, from his three paternal
ancestors in the male line, the law remains the same i.e. it would be
coparcenary property in his hands with respect to his male descendants up
to three generations, who would acquire a right by birth in it and would
also be entitled to enforce a partition.
The Court found that under the scheme of intestate succession to
the separate property of a Hindu male, as contained in Sees. 8 to 13, the
'grandson' of the intestate, whose father is living, is not specified as a
Class 1 heir; and that the Class I heirs succeed to the exclusion of all other
heirs. The Act uses the expression 'son', 'son of a predeceased son', and
'son of a predeceased son of a predeceased son', and not 'son',
'grandson', and 'great grandson.'
The H.S. Act has introduced a new set of heirs, when a Hindu inherits
property from his father u/s. 8, he takes it as his 'separate property' vis-a-vis
his sons. Because, if such property be HUF in his hands then it would
amount to creating two classes among heirs in Class-I, the male heir in
whose hands it will be JFP vis-a-vis son and female heirs with respect to
which no such concept could be applied (Heirs in Class I include
widow, mother, daughter of a pre-deceased son). The Act never intended
it to be so (as all Class I heirs inherit together) and the express provisions
of Sec. 8 cannot be ignored and must prevail.
In ACIT v Chettiar (1978) 114 1TR 523, and, CIT v

Rakshapal (1968) 67 ITR 164, held that a Hindu who
succeeds to his father's property takes it as his separate
property and his sons do not acquire any interest in it by
birth. As S.8 excludes grandson and son alone inherits
property. Thus, similarly after-born son of son will not get
any interest which son inherits from father.
The Parliament wanted to make a clean break from the
old Hindu law in certain respects consistent with modern and
egalitarian concepts (welfare for all) and Sec. 4 of the Act
makes it very clear that one should look to the Act in case of
doubt, and not to the pre-existing Hindu law. As a result the
view taken by Gujarat High Court is not correct.
Comments - The basis for conferring a right by birth in the
property of the father or a paternal ancestor, was the spiritual
benefit that the son, grandson, or a great grandson could
confer on such ancestor. Under the Act, however, this spiritual
benefit rule has been replaced by the rule of 'nearness in
relationship.' The rule of equality, affinity and nearness in
blood 7s~very evident, as the children of a predeceased
daughter (who previously ranked after the intestate's father,
brother, his son, grandson and paternal grandmother), have
been promoted and made Class 1 heirs on the basis of
nearness in relationship to the intestate.7
The whole scheme of the H.S. Act shows that the
legislature wanted to be fair towards women, and this is the
reason why the concept of joint family, though not abolished,
has been narrowed down. The concept of coparcenary property
is gender discriminatory and the principles underlying Sees.
8-13 are generally, based on equality and nearness in relation
and affinity. These equitable principles leave no room for
encroachment by inequitable principles of an automatic
conversion of separate property into coparcenary property by
the operation of law.8
In Gaurav Sikri v Kaushalya Sikri (AIR 2008 Del 40),
the court quoted apex court's pronouncement in CWT v
Chander
7. P. Pradhan Saxena, Family Law II.. 3* ed., p. 121 (2011).

8. Id., p. 125.
46 Family Law - II
Sen and said that the heirs to a Hindu male include a son and
son of a predeceased son and not son of a living son who is
an heir otherwise it would mean giving a right by birth to the
son in the father's property and also the grandfather's property.
(In Makhcm Singh v Kulwant Singh (AIR 2007 SC 1808),
the father had purchased eleven marlas of land and constructed
a building thereon from the savings as an employee of the
Railways. On the father's death, his four sons inherited this
property. The question v/as: Is it the separate property of each
son or is the joint family property qua their sons? The court
held that the property inherited by the sons would be their
separate property and could not be said to be the joint family
property.9])
(iv) Nature of Property obtained on Partition
When a coparcener partitions from the joint family and obtains his share of
property, then in respect of his own son, son's son, and son's son's son
it will continue to be JFP, but in respect of all others it will be his
separate property It may be illustrated thus: A coparcenary consists of
A and his sons Hand C and if they partition the properties obtained by
each will be his separate property. Even A's share will be his separate
property in the sense that his sons B and C have no interest, no birth-
right in it. But the moment any one of them gets a son his share will
again become JFP. This will be so even if A gets another son D; A and
D will constitute a new coparcenary
In other words, if a person partitions from the joint family and
obtains a share, then his son (who has not partitioned from that person
i.e. father) will get a joint interest in such share of property.
Decision of the Case in Question

(i) The house which Nishand inherited from his maternal
grandfather/or brother is his separate property. Subhash can’t
claim partition of it as he has no interest in it by birth.
(ii) The shop which Nishant got under a gift/Will from his father
is not necessarily ancestral property in his hands, if the intention
of the grantor was to make it ancestral property in his hand,
then Subhash can claim partition in the shop.
9. to., p. 126.
(iii) The flat which Nishant inherited from his father can only be his
separate property, thus, Subhash cannot claim partition in this
flat (CWT v Chandra Sen AIR 1986 SC 1753). (iv) The share
which Nishant received on partition continues to be
JFP as regards his son Subhash and thus Subhash can claim
partition in it.
Q.2 Balram was possessed of property comprising of agricultural
land which he inherited from his father in 1955, a shop in
Kamla Nagar inherited by his wife from her father and Rs.
4,00,000 which his separated paternal uncle sent from Africa.
His only son claims half share in above-mentioned properties.
Decide. [LC. l-95\
A.2 SeeAA.
(i) Under the old Hindu law (before the passing of Hindu
Succession Act. 1956). when 9 son inherits property from
his father vis-a-vis his own son, he takes it as joint family
property. Thus, Balram's son can claim half share in
agricultural land which Balram inherited from his father.
(ii) The shop which Balram inherited via his father-in-law is
his separate property and his son cannot claim share in
it.
(iii) Rs. 4,00,000 which Balram got from his separated paternal
uncle is his separate property and his son cannot claim
share in it.
Q.3 A Hindu father 'A' died in 2006, survived by his widow W, one
son S and a daughter D. S had two children SS and SD.
Before his death, 'A' had executed a Will, whereunder he
bequeathed three flats (of similar value) that constituted his
separate property in favour of W, S and D. Two days prior to
his death, 'A had purchased a farm house using his own
money with respect to which no Will was executed. On his
death, his children and widow took possession of the flats
individually and of the farm house collectively. SS filed a suit
for partition against S, claiming a share out of the flat and the
farm house, on the ground that he being a coparcener had
a right by birth in the same. Discuss whether he would be
successful? [D.U.-2011]
A.3 See A.l.

48 Family Law - !!
(i) When a father makes a Will in respect of his separate property,

it will devolve on the donee as the donee's property (his/her
heirs cannot claim a share in it on the ground of 'ancestral
property'). Thus, in the present case, SS cannot claim a share
out of flat, which the donee (S) got from his father 'A.'
(ii) When a father left behind a separate property without making
a Will in respect of that, then it will (like an ancestral property)
devolve by inheritance/succession. Thus, in the present case,
SS can claim a share out of the farm house, on the ground that
he being a coparcener had a right by birth in the same.
Q.4(a) Harish, a Mitakshara Hindu living in Delhi, owned the following

properties:-
(i) The property which was purchased by Harish in his name, out of
his earnings made in the course of his pursuing medical
profession. The family incurred all the expenses of Harish to
have a formal education.
(ii) Share certificates worth Rs. 6 lacs purchased in his name out of
HUF funds.
His son claim share in these properties. Discuss, whether he

will succeed? [D.U.-2009][C.L.C.-92/93/94\
(b) Vivek as karta of Hindu undivided family owned 200 shares in a

company. The capital of the Company consists of 5,00,000
shares of Rs. 100 each. Vivek became the Managing Director
of the company on the basis of M.B.A., LL.B. degree and 200
shares owned by the family. He was entitled to a remuneration
of Rs. 25,000 p.m. and 2% of the company's profits.
Can his son claim a share in the above-mentioned income

of his father? Decide. [C.LC.-95]
A.4 (a) Gains of Learning - whether Separate Property?
A member of the Hindu Joint Family or a coparcener can, under Hindu
law, make separate acquisition of property. The key words in the doctrine
of self-acquisition are "what has been acquired without any detriment
to the joint family property."
The 'gains of learning' mean those gains which are made on

account of some education or training that a coparcener has
received, he main question is: if the training or education has
been received at le expense of the joint family property, does it
mean that anything acquired by the acquirer on account of
training or education is "to the detriment of the joint family
property."
Before 1930, our courts made a distinction between a
'specialized' raining and 'ordinary' training. In the former case
the earning of a coparcener out of his education/training were
treated as part of JFP, while in the latter case it constituted his
self-acquired property. It led to strange consequences because
'maintenance' also includes educational expenses of the children.
Further, education is imparted at a time when a person cannot
even be seen as capable of having an income of his 3wn or of
taking any decision as to how to finance his education.
In 1930, the Hindu Gains of Learning Act was passed and
this distinction was done away with. It is laid down that whether
the training is ordinary or specialized, any gains made on account of
training/ education will constitute 'separate property* of the
acquirer. Thus, a member of the joint family is the exclusive and
separate owner of the gains of his learning,
The Act defines "learning" as education whether
elementary, technical, scientific, special or general and, "training"
as every kind of training which is usually intended to enable a
person to pursue any trade, industry, profession or avocation in
life[Sec. 2 (c)]. Sec. 2 (b) of the Act states "gains of learning"
mean all acquisition of property ma3e substantially by means of
learning, whether before or after the commencement of the Act, or
whether such acquisition be the ordinary or extraordinary result of
such learning. Thus, the Act is retrospective as well as
prospective. .
Sec. 3 of the Act states 'Notwithstanding any custom, rule or
interpretation of Hindu law, no gains of learning shall be held not
to be the exclusive and separate property of the acquirer merely by
reason of his learning having been, in whole or in part imparted to
him by any member of his family, or with the aid of joint family
funds.' It is also immaterial that while he was receiving
training/education, he or his family was maintained or supported
out of joint family funds (Venkatasubramania v Eswara AIR
1966 Mad. 266).
50 Family Law - II
The said Act is a step in the right direction. Success in a profession

depends much more on 'personal skill' than on 'training' one has
received (e.g. one doctor or lawyer may have a flourishing practice,
while the other languishes). The .mental and physical capability of
each person varies; that is why in spite of getting similar education,
the ability to make money varies with each individual. The 'joint
family' concept has nothing to do with it. The Act has rightly
snapped the nexus between the support for learning and the fruits of
learning. Even if the support is provided by the joint family or any of
its members, the fruits belong to the earner
, However, if the joint family funds are invested in the business,
industry or profession which the coparcener takes up after receiving
education/training, the acquisition may not be his separate property. For
instance, if a coparcener is trained as an engineer/doctor, and the joint
family, in view of his training, opens up an industry/hospital in which
joint family funds are invested, the profits of this industry/hospital will
not be separate property of the engineer/doctor-coparcener, though
if he is allowed to draw a salary or allowed to take a part of profit
for his skill, that will constitute his separate property. If the
engineer/doctor coparcener establishes an industry/hospital either
himself or in a partnership concern with any other person, using his
own finances, the gains would be his separate property.

(i) The property purchased by Harish from his 'gains of
learning' is his separate property, and in it his son cannot
claim partition.
(ii) The Share Certificates worth Rs. 6 lacs purchased in Harish's
name out of HUF funds are ancestral property in his hands
(According to the Doctrine of Accretion, all income,
accumulations, or acquisitions of property made with the joint
family nucleus, is joint family property). Thus, his son can
claim share in it.
(b) Salary and Remuneration - whether Separate
Property?
It often happens that joint family properties are invested in an enterprise,
industry or undertaking and by reason of such investment, the karta/
coparcener (whether on behalf of the family or otherwise), is
employed by the enterprise, etc., the salary, remuneration, fee or
commission that he may receive in that capacity is 'a coloured
disguise to hide a share
in the profits of the enterprise itself to avoid the incidents of

income tax.
The present position in law is: if remuneration, salary, profit or
commission is earned by the karta or any other coparcener on
account of substantial investments of the joint family funds in the
business, enterprise or industry, it will constitute JFP, even if the
personal skill and labour of the Karta/coparcener is an important
factor in the earnings. But if no joint family funds or properties are
invested or only nominal investment is made or the joint family is,
apart from the earnings of Karta/coparcener, receiving profits,
dividends, etc. on investments without any detriment to the joint
family funds or properties (except the usual risk involved in any
business), the earnings will constitute the separate properties of
the earner.)
In Raj Kumar Singh v Commit., Income Tax (1970) 78 1TR
128, the Supreme Court has held that the main principle is to
determine, whether the income received by the coparcener was in
substance though not in form, one of the modes of return on joint
family investment or whether it was compensation for services
rendered by the individual coparcener. If the income was
essentially earned as a result of funds invested, the fact that
coparcener had rendered some service would not change the
character of the receipt which in this case would be income of
HUE On the other hand, if it is essentially a remuneration for the
service rendered by the coparcener, the circumstances that the
services were availed by the qualification share brought by the joint
family would not make the income of HUF and it will be the
separate income of the coparcener. This principle was reiterated in
Bhagwat v Digambar (AIR 1986 SC 1251).
Thus, where karta became the Managing Director of a
company solely on the basis of joint family investment, the income
was held to be JFP (Commr., Income Tax v Kalu Balm AIR 1959 SC
1288). On the other hand, where joint family investment was only
used to purchase a qualification share (i.e. to obtain dividends and
other advantages of being shareholders) and karta became M.D. of
a company on the basis of his own qualifications, the income was
held to be a separate property j (Palaniappa v Commr., Income Tax
AIR 1968 SC 678). Earlier, in Piyare Lal v IT. Commr. (AIR 1960
SC 997), where the karta was a manager of a business concern and
the joint family had given security of its properties for the karta"s
honesty, the court said that the earnings
52 Family Law - II
of karta as manager were not the result of family investment, but

were the outcome of karta's personal skill and labour.
In Dhanwantiy v Commr, IT (AIR 1968 SC 683), the Supreme
Court said that the salary which the coparceners earned as partners
constituted JFP. In this case, coparceners with a view to avoid incidence
of tax, invested the joint family assets in a partnership and it was agreed
that the profits earned were to be taken as personal salary by each
coparcener. The court found that there was a complete nexus between
the earning and the detriment to JFP. However, in Commr., IT v D.C.
Shah (AIR 1969 SC 927), where the partnership deed showed that one
of the coparceners as partner was to be given a salary on account of
his rich experience and skill, the court held that the salary constituted
his self-acquired property, despite the fact that the family
contributed a large part of the capital to the firm, as the connection
between the salary and the detriment was not sufficient.
Concluding Remarks - The test is whether a nexus or connection can
be established between the emoluments given to one coparcener, and
detriment to the JFP. If yes, then the character of the emoluments
would be that of JFP, but if no nexus can be established, it would be
taken as his separate property.
The recent trend, however, is that the Apex Court has started
giving due recognition to special skill and rich experience of a
person in drawing salary as a member of joint family and treating such
income as his personal income irrespective of investment of joint
family funds and properties. ,

Vivek became the MD of company mainly because of his qualifications;
the joint family investment is very nominal (200 shares out of
5,00,000 shares of the company). Thus, his son cannot claim a
share in it.
Q.5 What are the differences between joint family property

and separate property?
Discuss essential features of coparcenary property

distinguishing it with the separate property of a person.
[D.U.-2009/2010/2011)
A.5 Distinction between JFP and Separate Property
Joint Family Property Separate or Self-acquired

(JFP) Property
(1) Nature of interest - The (1) The holder of the separate
coparceners have community of property has absolute and
interest and unity of possession in exclusive interest in the property
JFP. Thus the undivided interest is which is not subject to
subject to fluctuations with the fluctuations.
births and deaths in the family
until partition.
(2) In separate property, none
(2) Acquisition of interest - In joint acquires any interest without
family, the sons, grandsons and consent of the holder.
great grandsons acquire interest
by birth.
(3) The separate property devolves
(3) Devolution - The JFP passes on, on the heirs under the law of
death of a coparcener, to the succession.
surviving coparceners.
(4) In respect of separate property,
(4) Alienation - There are restrictions the holder has full power of
on the part of a coparcener and disposition,
the karta to alienate JFP.
(5) No one can claim a partition or
(5) Partition - JFP is liable to share in the separate property, v
partition.
3
Rights and Powers of Karta
and Coparceners
A Hindu joint family has several persons as its members, having distinct
rights over the property, and rights and obligations towards each other.
It is naturally inconvenient both for the outsiders as well as for the
coparceners that each and every adult coparcener must have a say in
each and every matter of the joint family. Thus, in its dealings with the
outsiders there has to be a 'unit'. And for that purpose it becomes
necessary that it must be headed by a person within the family who
represents it in law and other matters and is also competent to bind all
family members with his bona fide actions or decisions taken with
respect to the family (in the best interests of the family)!
Ancient family units were headed by the senior-most male member
in the family, the 'Patriarch.' It is now replaced with the term 'Karta'
(Manager); the person charged with the work i.e. management. Under
Ancient law, he was the unquestioned ruler of the family, but the
domain of his power as head of the family have been considerably
diluted because of innovative legislative enactments and equitable judicial
interpretations. Absolute powers have been replaced by superior powers
co-existing with superior responsibilities.
Who can be a Karta?1

Karta is the "senior-most" male member (un-disqualified coparcener)
e.g. father, uncle, eldest brother. The presumption is very strong as this
1. Who can be a Karta of the Hindu Joint Family? [LC.//-95/96] [D.U.-2008(Supp)]
[54]
Rights and Powers of Karta and Coparceners 55
position is regulated by seniority (Lalbarani v Bhutnqth AIR 1974 Cat

09) and does not depend upon merely the consent of the other family
members. In the case of a conflict, the senior-most will be presumed
o be and would continue as the karta.
So long as father is alive, he is karta. If he is very old/ infirm or
absent for a long period or relinquishes his right, then the other senior-
most male member of the family becomes karta. However, so long as
the karta is alive no one else on his own can be a karta and if the karta
so desires, he continues to occupy the representative capacity even
though he may be unable to look after the family affairs by reason of
age or health.
L.A temporary absence of the father is not sufficient for the son to
become a karta, if there is nothing to show that the father is in a remote
country or his whereabouts are not known or his return within a
reasonable time is out of question (Siddappa v Linappa, 42 Mys HCR
669).
LA senior-most coparcener may not in all cases be the karta of the
family. If all coparceners agree, a junior male can be a karta; the senior-
most member can expressly relinquish his position as a karta [Nemi
Chand v Hira Chand (2000)d H&R 250 (Raj)]. However, the fact of
assumption of karta's poweroy a junior member has to be proved by
cogent evidence (because, the presumption in favour of the senior-most
member as the karta of the family is very strong). Further, junior
member owes his appointment as karta to the agreement or consent of
the coparceners; they may withdraw consent "aT"ariy~timej
IJI has been held that even a minor can act as karta and represent
the family through the guardian [Sarda Prasad v Umeswar Prasad
(1963) 1LR Pat 274k,
Junior Member of Coparcenary as Karta
LEADING CASE: M/S. NOPANY INVESTMENTS (P) LTD. v SANTOKH

SINGH (HUF)
[2007 (13) JT 448]
[Ordinarily, the right to act as the Karta of HUF is vested in the

senior-most male member but in his absence, the junior members
can also act as Karta in exceptional circumstances.]
56 Family Law - II
In this case, the issue was whether a younger coparcener could file
the suit for eviction, in the capacity of the Karta of a HUF, when,
admittedly, an elder member of the aforesaid HUF was alive. .
The court observed: In Sunil Kumar v Ram Prakash (1988) 2
SCC 77, it was laid down that, in general, the father of a family, if
alive, and in his absence the senior member of the family would be
entitled to manage the joint family property. In Tribhovan Das v
Gujarat Revenue Tribunal (1991) 3 SCC 442, the court observed
that a younger member of the joint Hindu family can deal with the
joint family property as manager in the following circumstances:
(i) if the senior member or the Karta is not available;
(ii) where the Karta relinquishes his right expressly or by
necessary implication;
(iii) in the absence of the manager in exceptional and extra
ordinary circumstances such as distress or calamity
affecting the whole family and for supporting the
family;
(iv) in the absence of the father: (a) whose whereabouts
were not known or (b) who was away in a remote place
due to compelling circumstances and his return
within a reasonable time was unlikely or not
anticipated, i
- The trial court relied upon the law discussed in the books ""
namely, "Principles of Hindu Law" by Mulla and Mulla and Shri
S.V. Gupta on "Hindu Law", wherein it has been observed that
ordinarily, the right to act as the Karta of HUF is vested in the
senior-most male member but in his absence, the junior members
can also act as Karta.
The High Court rejected the argument of the appellant that
Tasraj Singh could not have acted as the Karta of the family as
his elder brother, namely, Dhuman Raj Singh, being the senior-
most member of the HUF, was alive. It is true that in view of the
decisions of this court in Sunil Kumar's case and Tribhovandas's
case, it is only in exceptional circumstances that a junior member
can act as the Karta of the family. But we
venture to mention here that Dhuman Raj Singh, the senior

member of the HUF, admittedly, has been staying permanently
in the United Kingdom for a long time. In Tribhovandas case
itself, it was held that if the Karta of the HUF was away in a
remote place (in this case in a foreign country) and his return
within a reasonable time was unlikely, a junior member could
act as the Karta of the family.
»In the present case, the elder brother Dhuman Raj Singh,
who is permanently staying in United Kingdom, was/is not in
a position to handle the joint family property for which reason
he has himself executed a power of attorney in favour of Jasraj
Singh. Furthermore, there has been no protest, either by Dhuman
Raj Singh or by any member of the HUF to the filing of the suit
by Jasraj Singh. That apart, in our view, it would not be open
to the tenant to raise the question of maintainability of the suit
at the instance of Jasraj Singh.
There can be only one Karta

TWO person may look after the management of the property, but the joint
family has to be represented only by one karta {Damodar Misra v
Sanamali Misra AIR 1967 Ori 61). "The existence of two kartas
cannot lead to the smooth management of the property of joint Hindu
family and other affairs of the family in view of the powers which the
karta of a Hindu joint family possesses under the Hindu law" {Union of
India v Shree Ram AIR 1965 SC 1531). A person may represent the
family for the purposes assigned to him, and, the karta/other coparceners
may be bound by his acts, but that does not make him the karta of the
family.
Female Members as Karta2

The karta must have not merely an interest of residence and maintenance,
but of ownership of property. A daughter is bow in the family, but
ceases to be a member of the family on her marriage. In contrast, other
female members become members of the joint family on their marriage
to lineal male descendants, but are not born in this family. Therefore, a
position that is regulated by birth (i.e. of karta) cannot be conferred
58 Family Law - II
on these females. Further, to be a karta, it is essential that not only

should he be a male, but he should also be a coparcener, which a female
is not.3i
In Commr., I. Tax v Seth Govind Ram Sugar Mills (AIR 1966 SC 24),
1. Tax officer refused to register the partnership on the ground that after
the death of one partner (a coparcener of another partner) partnership
is dissolved and thereafter another partner and minor sons could be
treated only as an association of persons. The question is whether a
widow could be a karta of a Hindu joint family. The Supreme Court after
reviewing the authorities held that the mother or any other female could
not be the karta.
The Nagpur High Court held the view that a widow could be a
karta, in the absence of adult male members. But, Madras and Orissa
High Courts held not. According to Hindu sages only a coparcener can
be a karta, since females can't be coparceners, they can't be a karta
[Radha Ammal v CIT (1950) 1MLJ 399]; she would be the guardian
of her minor sons till the eldest of them attains majority and become
karta. The Calcutta High Court has held that a widow can represent the
HUF as guardian, but not as karta. The Madras High Court in Radha
Ammal case held that a Hindu widow cannot be a karta, even if rights
are conferred on her, in the deceased husband's coparcenary property.
A mother, .therefore, cannot be a karta. Similarly, a wife cannot
act as the karta in absence of her husband (Sheogulam v Kisun Choudhuri
AIR 1961 A.R 212).
Position post 1985 - Beginning with 1985, till 1994, the States of
Andhra Pradesh (1985), Tamil Nadu (1989), Maharashtra and Karnataka
(1994), introduced the possibility of unmarried daughters being
coparceners in the same manner as a son. Since now, in these States,
upon marriage, a daughter continues to be a coparcener, she fulfils the
requirements for becoming a karta. Born in the family, she acquires an
interest in the coparcenary property and therefore, she can be a karta,
if she is the senior-most member in the family and she will be entitled
to represent the family in all legal proceedings. 4
3. See P. Pradhan Saxena, Family Law II, 3 ed, p. 145 (2011).

3. Id, p. 146.
position post 2005 - After coming into force of 2005 Amendment

to H:S. Act, 1956, a daughter is also a coparcener in the same
manner a son (having similar right in the coparcenary property).
Therefore, the father's absence, she can be a karta, if she is the
senior-most member in the family and she will be entitled to
represent the family in legal proceedings.
Position of Karta
the Hindu Joint Family, karta or head occupies a pivotal position. The
position of karta is determined by birth and he is not appointed by
anyone, nor does the consent of other coparceners is required. He is
entitled to be the karta because he is the senior most. So long as he is
alive, may be aged, infirm, or ailing, he will continue to be the karta.
Thus a karta cannot be removed. Whether insanity or other disqualifications
will defeat his right is not clear, but it seems that in such a case the next
senior male member will take over. The position of a karta is terminable
by resignation and relinquishment but is not indefeasible.]
The position of karta is sui generis,(of its own kind or unique
creation of Hindu jurisprudence). The relationship between him and
other members are not that of principal or agent, or partners. He is not
like a manager of a commercial firm, as he not only manages the JFP
but also look after all other affairs of the joint family. He is the head
of the family, and acts on behalf of other members, but he is not like a
partner, as his powers are almost unlimited. At the same time he is a
person of limited powers. He has liabilities towards members. Any
coparcener can, at any time, ask for partition. He obtains no reward for
his services and he discharges many onerous responsibilities towards
the family and its members. He is the custodian of the family interest
and his actions are backed by a presumption of the promotion of
general family affairs,
The karta represents the joint family/other coparceners to the
strangers, but the relationship is not that of principal and agent (i.e.
master and servant) under the Contract Act.,, A karta is neither a servant
of the other coparceners nor he is the principal of other coparceners
(any coparcener can ask for partition of JFP; can challenge improper
alienation of JFP). He is, however, the respected head of the family and
occupies the principal position among the coparceners. His position is
superior to other members,
equitable or even impartial. The karta has a right to decide or

allocate specific portions of the house for family member's
residence, which the latter have to obey.
No individual coparcener can either retain the exclusive possession of
a specific joint family property or joint family income, without his
permission. Further, if a coparcener's presence in the family home
proves to be a nuisance due to his disorderly behaviour or bad
habits, the karta has the power to throw him out of the house. The
only remedy available to such a coparcener is to ask for partition. .
(iii) Right to income and expenditure - All income of the family
must be handed over to karta and it is for karta to allot funds
to members. The decision of how to spend the joint family
income and on whom to spend it is with the karta. .
(iv) Right to representation - in all matters e.g. legal, social, religious,
revenue, etc. He acts on behalf of family and his acts are
binding on the other members including minors. The karta may
sue or be sued in respect of any transaction entered into by him
on behalf of the family. If a decree is passed against him in
such a suit, it would be binding on all the members of the
family.
The karta is expected to pursue the litigation with utmost sincerity, but
if he does not do so and because of this, the family loses a case and
a decree is passed against the family, such decree cannot be set aside
on the ground that, had the karta been more vigilant, the family might
have won the casa [Krishnamurthi v Chidambaram (1946) ILR Mad
J
670].
(v) Power of compromise - of all disputes relating to family properties
'"* or their management. But, he has no right to give up a substantial
portion of a debt... out of charity, or sympathy with debtors. Thus, a
compromise must be for the family's benefit; if his act is not bona
fide, it can be challenged in a partition. Thus, the karta cannot enter
into a compromise which is for his personal advantage [Bhola Prasad
v Ramkumar (1932) ILR 11 Pat 399].
The karta has also power to refer disputes relating to JFP to 'arbitration,'
provided he does so bona fide and for the family's benefit. The dispute
could be between the members of the family or between family members
and outsiders,
62 Family Law - Il
(vi) Power to contract/acknowledge debts - He has an implied

authority to contract debts and pledge the credit of family for
ordinary purposes of family business. Such debts are binding on
the entire family. However, it is necessary for him to prove that
loan was taken for family purposes or business... if the
creditor seeks to make entire family liable for debts.
The karta has the power to acknowledge a debt, but he cannot relinquish a
debt due to the family. Also, he cannot pass a promissory note to
revive a time-barred debt. Where a loan is raised by the karta (for a-
lawful purpose) by executing a promissory note in his name, such a
note binds the other coparceners, but only to the extent of their shares,
unless they were parties to this contract (Sirikant Lai v Sidheshwari
Prasad MR 1937 Pat 455).
In certain cases, the karta has the full power to give a valid
discharge for all debts due to the family.
. (vii) Power to enter into contracts - ordinarily incidental to the
family business and such contracts are binding on the family.
Karta's Duties and Liabilities (Responsibilities)

• (i) Maintenance and marriage - of members of the family. If the
karta improperly excludes any member from maintenance or
does not properly maintain them, he can be sued for maintenance
as well as arrears of maintenance.
(ii) To pay taxes, etc. - on behalf of the family and he can be sued
for all his dealings on behalf of the family. ,
,(iii) To recover debts due to the family.
(iv) Partition - is a great check on karta's absolute powers.
(v) Liability to account - Normally, the karta is not supposed to
keep accounts of how he has spent the family funds, but
where a coparcener demands partition, he can require the karta
to give him accounts. Sometimes, the nature of business is
such that necessitates proper accounting at all times. In such
cases, the karta has to give accounts to a member demanding
it (Girijanandim Devi v Brijendra Narain AIR 1967 SC 1124jg.
The karta has to give accounts for the money he had actually received
and not what he could have received if he had managed the property
in a better manner [Official Assignee v Rajabadar (1924) 40 Mad LJ
145]. The karta is bound to spend the money in a reasonable manner
and for the purposes of the family. His duty, however, is to spend
reasonably and not economically. -
Further, he can only be asked to render the accounts as they
existed on the date of the demand; he cannot be forced to render past
accounts, unless there are charges of fraud, misappropriation, etc.
Suryanarayana v Sugamanathi AIR 1961 A.P. 393). In Bengal, however,
for families governed by Mitakshara or Dayabhaga law, a coparcener
has a right to require the karta to give him accounts of the dealings with
respect to the JFP.6
RIGHTS OF COPARCENERS
(INCIDENTS OF COPARCENERSHIP)
The main rights of coparceners are:

(i) Right of joint ownership (or communal ownership) '- The
remarkable feature of it is that one is born with property. Communal
ownership is expressed by saying that the interest is unpredictable and
fluctuating or there is community of interest. Ownership of coparcenary
property is vested in the whole body of coparceners. So long as
partition doesn't take place, no individual coparcener can claim any
specific share or specific property. The interest may be enlarged by
deaths and diminished by deaths in family, (ii) Right of joint
possession, enjoyment and use of joint family property - The
possession of one coparcener is possession of all coparceners. And,
no coparcener has a right of exclusive possession of any portion of
joint family property. Thus, if he is ousted, he can't by legal action
recover the possession of same property. There is no exclusive
possession. However, in certain cases, a coparcener can enforce this
right by a suit in case he is excluded from any part of JFP viz. when
he is prevented from using a staircase or a door leading to the room
in his occupation
See P. Pradhan Saxena, Family Law ii, 3* ed.. p. 150 (2011).

64 Family Law - II
[Anani v Gopal, 1895, 19 Bom 269]. Thus, a coparcener has a 'right

against exclusion from JFR'
(iii) Right by birth and right of survivorship - The moment a son
is born in family, he acquires an interest in joint family property.
Yet, when he dies he leaves behind nothing; and his interest
devolves on the surviving coparceners (by survivorship). Thus,
if a coparcener had died with some personal debts, these debts
can't be enforced against his interest in joint family property
after his death.
In our society, where concept of individual property dominates, the
rights of person who is born and the rights of person who survives,
have to be expressed in terms of individual interests.
(iv) Right of maintenance - marriage, etc., out of joint family
property.
(v) Right of alienation - of undivided interest in the coparcenary
property.
(vi) Right to challenge and restrain alienation - when improper
and made without his consent.
(vii) Right to restrain improper acts - Every coparcener has the
right of restraining improper acts on the part of other
coparceners, where such acts cause substantial injury to his
rights as a member of the joint family. For example, if a
coparcener erects a building on land belonging to the joint
family, so as to materially alter the condition of the property,
he may be restrained from doing so.
(viii) Right to make self-acquisition - A coparcener has the right to
acquire property of his own, and keep it as his self-acquired
property.
(ix) Right of partition/relinquishment of interest - A coparcener
could get his interest 'individualized' by way of partition. This
right is almost absolute; it is not subject to consent of the other
coparceners.
Also, a coparcener has the right to renounce his interest in the
coparcenary property in the favour of other coparceners.
4
Alienation of Hindu
Joint Family Property
A Hindu has unrestricted power to alienate (i.e. transfer) his personal

property, but in case of joint family property his competence to alienate
is determined by his status in the joint family. Only the Karta/father and
other coparceners possess the right to alienate the JFP. It may be noted
that ordinarily, neither the Karta nor any other coparcener singly possesses
full power of alienation over the JFP or over his interest in the JFP. This
is so in view of the 'collective ownership' of the joint family property.
Alienation of the property may be made voluntarily (i) for
consideration e.g. by sale, mortgage, lease or exchange (ii) by gift, and
(iii) by Will
Karta's Power of Alienation1

Although no individual coparcener, including the Karta, has any power
to dispose of the JFP without the consent of others, it is recognized by
the Dharmashastra that Joint family property can be alienated by the
Karta/coparcener for certain purposes only. Ancient texts cautioned
against the indiscriminate transfer of JFP to the detriment of its members,
as property is always a security for the family in times of need.
i It is this 'need backed authorization' which empowers the Karta
to alienate the property despite the dissent of other coparceners. An
absolute denial of permission to the Karta to alienate the property even
1. Elaborate on the powers of Karta to alienate the joint family property.

[D.U.-2011]
[65]
66 Family Law - II
when the family needs money can be disadvantageous to the family

itself. Thus, the Karta can do it when the alienation was unavoidable,
where, but for this transfer, the interests of the family would have been
adversely affected and to protect or benefit the family members or the
property itself.
The Karta may alienate the JFP in the following three cases:
(a) Legal necessity.
(b) Benefit of estate.
(c) Acts of indispensable duty,
Vijananeshwara recognized three exceptional cases in which alienation
of the JFP could be made:
(i) Apalkale i.e. in the time of distress or emergency (to avert
a danger).
(ii) Kutumbarthe i.e. for the sake of the family (benefit of
estate).
(iii) Dharamarthe i.e. for pious purposes. ,
^The Karta's alienation in the aforesaid cases binds the interest of the
minor coparceners also. Therefore, it is submitted that the correct basis
of Karta's power seems to be the authority inherent in his position as
karta, and not the implied consent of the coparceners. The Karta has
a right to manage the joint family affairs and in course of its management,
he can also decide whether there exists a need of the family, justifying
an alienation of the property, or not. However, for an alienation to be
valid, it must be shown that the family did not possess alternative
resources from which money could be raised to spend in these cases.
When Karta exercises power of alienation in these exceptional
cases, the consent of other coparceners will be 'implied.' This
authorization is also called 'judicial' (when either the other coparceners
do not consent to the alienation or are minors, but the alienation is for
one of the three permitted purposes, as aforesaid). Though this
authorization had its origin in the Dharmashastras, it has been recognized
and upheld as valid all along by the judiciary Also, Karta can alienate
the property even if none of the above cases exists, but with the
consent of other coparceners. The latter is an 'express' authorization
for alienation of JFP by the Karta.
Alienation of Hindu Joint Family Property
67
[ One of the 'undivided coparcener' alone cannot alienate the JFP

even to the extent of his share even for a permitted purpose as this
authority is available only to 'Karta.' Such alienation would be void and
lot binding on the JFP at all
[a) Legal Necessity

Broadly speaking, 'legal necessity' will include all those things which
ire deemed necessary for the members of the family. It means a
necessity of the family, with respect to its members, and in certain
cases, also with respect to its property, that can be justified in law,
The concept of legal necessity in Mitakshara refers to apat kale
(famine, epidemic, floods, etc.). However, this is a very narrow
conception of legal necessity. It is now established that 'necessity' is
not to be understood in the sense of what is absolutely indispensable but
what, according to the notions of a Hindu family, would be regarded
as proper and reasonable (Mayne, Hindu Law and Usage, 11th Ed.).
The concept has moved beyond the apat kale and kutumb arthe and
what has emerged is a combination of the two2
In Rani v Shanta (AIR 1971 SC 1028), the Supreme Court has
held that for 'legal necessity' actual compelling necessity is not the sole
test but pressure upon the estate which in law may be regarded as
serious and sufficient. If it is shown that the family's need was for that
thing or article, and if property was alienated for the satisfaction of that
need, it would be enough. The term is to be interpreted with due regard
to the conditions of modern life.
For an alienation to be valid under 'legal necessity' there must be
existence of a need or lawful purpose, and, the family does not possess
monetary or alternative resources from which the requirement can be
met. Also, the course of action taken by Karta should be such as an
ordinary prudent person would have taken with respect to his property.
For example, a joint family owns considerable financial resources and
property; it has to pay government dues (a purpose). But, there is no
'necessity', as sufficient resources are available from which dues can
be paid. A prudent person should pay the dues or even debts, from his
2. See P. Pradhan Saxena, Family Law //, 3rd ed., p. 165 (2011).
68 Family Law - II
savings rather than from the sale of JFP, and if that is not possible,
from a mortgage rather than a sale. A sale of JFP for inadequate or no
consideration cannot be valid, despite legal necessity Kastfram Jagamma
v Jajala Lakshmamma (1998) 2 HLR 79 (A.P.)p
(Legal necessity may change its content with the passage of time.
It must therefore depend on the facts and circumstances of each case)
Illustrative Cases of Legal Necessity
(i) General maintenance - Food, shelter, clothing, education, and,
medical care for the members of family.
(ii) Marriage of the members of family including daughters, towards
whom there is a special duty. -^M
iii) Marriage of daughter's daughter, when a daughter is not indigent is
not a legal necessity (Nagpur High Court). But, Madras High
Court takes a different view. In Venkata Subba v Ananda Rao
(1934) 57 Mad. 772, held that it does not matter that the
daughter is indigent or not. In Srinivas Rao v Sesacharlu (1962)
Mad. 42, the court reasoned that the marriage of virgins is a
pious and meritorious act conferring spiritual benefit on a Hindu.
(iv) Defence of a member involved in a serious criminal charge
(Murli v Bindeswari AIR 1933 Pat 708), provided he is not
involved in murder of another coparcener. This is to defend the
family honour.
v) Payments of Government revenue and debts binding on the
family. Repayment of loan raised for family business.
(vi) Performance of necessary funeral or family ceremonies.
vii) Payment of rent/arrears of rent; to discharge a mortgage of the
family property.
viii) Sale of land to construct a pakka house (Tarni Prasad v
Basudeo AIR 1981 Pat 33). Similarly, expenses for repairing a
family house.
(ix) Cost of necessary litigation in recovering or preserving the
family estate (Kaloo Singh v Sunderbai AIR 1926 Nag 449).
3. Id., pp.165-166.
Alienation of Hindu Joint Family Property 69
(x) To avert a sale or avoid the destruction of whole or part of the
property.
(xi) For migrating to a new place for better living
(Vanimisatti v
Jayavarapu AIR 1955 A.P. 105). (xii) For the
establishment of the adoption of a minor son {Govind
Gurunath v Deekappa Mallappa AIR 1938 Bom 388).
Case Law: Legal Necessity
LEADING CASE: HUNOOMANPERSAUD PANDAY V MUSSUMAT

BABOOEE MUNRAJ KOONWEREE [(1856) 6
MIA 393]
[This case is a guide to all those who had limited powers

of disposal over any property. The power of the
guardian/manager/ karta for an infant heir to charge an
estate, which is not his own, is a limited and qualified
power.
The burden of proof is on the alienee/transferee/lender to show
that he acted bona fide and that there was necessity.] , Facts - A
certain mortgage executed by a widow in her character of the
guardian of her infant son was challenged by the son on
becoming major on the ground that it is inalienable by the act
of the guardian, and so he is not liable for it. The said mortgage
was made for the payment of arrears of revenue due to the |.
government. Thus, it was for the benefit of the minor's estate,
to prevent a sequestration and probable confiscation due to
non-payment of government revenue. { Observation and
Decision - The Privy Council propounded the following five
propositions:-
. (i) The power of the guardian/manager for an
infant heir (or the power of karta) to charge an
estate which is not his own, is under the Hindu
law, a limited and qualified power. It can only be
exercised rightly in the case of legal necessity or
for the benefit of estate. _, (ii) In case a
guardian/manager makes alienation as a prudent
man, in order to benefit the estate, the
70 Family Law - II
bona fide lender or alienee is not affected by the previous

mismanagement of estate, provided the lender or alienee
was not a party to mismanagement. In other words, he
shouldn't have acted mala fide.
The actual pressure on the estate, the danger to be averted, or the
benefit to be conferred upon it in the particular instance, is the thing
to be regarded.
iii) The alienee is bound to make proper and bona fide
enquiries as to the existence of necessity.
iv) If the alienee acts bona fide and makes proper enquiries,
the real existence of an alleged sufficient and reasonably
credited necessity is not a condition precedent to the
validity of alienation. In other words, the alienee's
position is not affected by the fact that if the minor's
property were properly and better managed, the danger
or necessity would have not arisen.
(v) The alienee is not bound to see as to the actual application
of money for the legal necessity. He is not an
administrator of fund.
(vi) The guardian/manager is under an obligation to make an
alienation as a prudent man, but the mere creation of a
charge on the minor's property for securing properly a
debt cannot be viewed as imprudent management
because money to be secured on any 'estate' is likely to
be obtained on easier terms than a loan which rests on
mere 'personal security.',
In other words, whenever alienation is challenged it is for the alienee to
show ('burden of proof) that there was necessity. It is because, when
one deals with a person whom one knows or is supposed to know to
be a person of qualified powers, it is one's duty to satisfy oneself
that such a person has power to make alienations. However, what he
is required to prove is - either there was actually a need or that he
made proper enquiries as to the existence of need and acted honestly.
If he does that he has discharged his burden, it is immaterial if it
turns out that actually there was no need for alienation

or that he was deceived
In the present case, there was no suggestion that the debt -of
infant's>-father was contracted for illegal or immoral purposes. During
her management, the widow (guardian/manager) with the object of
saving the estate, of paying the debt of her , predecessors, executed
the mortgage bond. No greater benefit
could well be conferred upon an estate than to save it from v
.: extinction by sequestration, the payment of arrears of revenue ;
due to the government by mortgage bond was in the nature of
salvage expenditure. Therefore, the alienation will be binding on
the son
/ Moreover, a bond of this nature does not
extinguish the title of the infant, it follows then, as a
matter of justice and equity, that the mortgage bond is
valid and of effect.
LEADING CASE: DEV KISHAN V RAM

KISHAN (AIR 2002 Raj.
370)
[For an alienation to be valid under 'legal necessity' there

must be existence of a lawful purpose. Thus, a debt
incurred for the marriage of a minor child cannot be said
to be for lawful purpose, as a child marriage is restrained
by law and is opposed to public policy.]
In this case, the validity of alienation of certain properties
belonging to the joint family by the Karta of the family
was in issue. The substantial question of law was
whether the taking of the debt by a major member of
the family for the marriage of a minor member of the
family is a debt incurred for a legal necessity or is for
illegal purpose?
The Karta of the family executed a mortgage, a submortgage
and a sale of two houses (JFP) worth around Rs. , 8,000-9,000 for
a consideration of Rs. 400-900 for the alleged necessity of
marriage of his three minor children who were in the age 'group
of 8-12 years.
. The court held that where the marriage of the
minor was performed in violation of the provisions of
the Child Marriage
Family Law - II
Restraint Act, 1929, the debt having been incurred for that
purpose, which was not lawful, cannot be regarded as a lawful
debt and alienation on that ground cannot be regarded as a
lawful alienation binding upon the minors If the property was
mortgaged or sold for the purpose of marrying minors, such
transactions would be opposed to public policy, in view of the
prohibition of child marriage under the Act of 1929. The Bombay
High Court in Ramhhau Ganjaram and the Orissa High Court
in Maheskwar Das v Sakhi Dei (AIR 1978 Ori 84) case similarly
opined^
.Also, the Calcutta High Court in Hansraj Bhuteria held
that when the minor's estate is in the hands of a receiver
appointed by the court and an application is made on behalf of
the minor for the sanction of the expenditure for the marriage
of his minor sister with a minor boy, the court should not
sanction such expenditure for facilitating the child marriage \
within the meaning of the Act in British India. The application
could not be granted as the court should not facilitate conduct
which the legislature in British India had made penal even if
such marriage was not punishable according to law of Bikaner.
The court did not found the view taken by the Allahabad
High. Court in Parasram v Smt. Naraini Devi (AIR 1972 All
357) and *hat by the Punjab and Haryana High Court in Rulia
v Jagdish (AIR 1973 P&H 335) to be correct. In the latter
case, it was held that where the Karta effected sale of the
ancestral land to make provision for the marriage of his son
who was nearing the age when he could have been lawfully
married, the sale was a valid sale for necessity.
(In the present case, the court also reasoned that the
members of the family (brothers and mother of the minor
children) were earning and there was no need to sell the family
property to raise the money. Also, the property was grossly
undervalued and if there was a need of money, the transfers
should have been effected for an adequate consideration^
Partial Necessity
LEADING CASE: ARVIND V ANNA

(AIR 1980 SC 645)
[Where ancestral property is sold for the purpose of discharging

debts incurred by the father and the bulk of the proceeds of the
sale is so accounted, the fact that a small part of the consideration
is not accounted for will not invalidate the sale.
Thus, for an alienation to be valid it has to be seen that the
consideration received is adequate and that it has been properly
utilized i.e. there was legal necessity or benefit to the estate.].
In this case, the Karta executed a deed of mortgage in favour
of father of the appellants for a sum of Rs. 1,600 in respect of
a single item of land. Later, he executed another deed of
mortgage in favour of the same mortgagee for a sum of Rs.
1,000 in respect often items of land including the land previously
mortgaged. Both the mortgages were possessory mortgages
but it appears from the evidence that the land was leased back
to the mortgagor for a stipulated rent (the mortgagors started
living in their own premises but were required to pay rent to
the mortgagee).
The Karta died leaving behind him an adult son and two
minors. The adult son purporting to act as the manager of the
joint family and the guardian of his minor brothers executed a
sale deed (for a consideration of Rs. 3,000) in favour of father
of the appellants in respect of four out of the ten items of land
mortgaged. The other six items of mortgaged properties were
released from the mortgage and came back to the family.
The two minor brothers, on attaining majority, filed a suit
for a declaration that the aforesaid sale deed was not for legal
necessity and not for the benefit of the estate and, therefore,
not binding on them The trial court found that there was legal
necessity for the sale to the extent of Rs. 2,600 only, that the
consideration of Rs. 3,000 for the sale was inadequate as the
lands were worth about Rs. 4,000, that there was no such
compelling pressure on the estate as to justify the sale and
therefore, the sale was not for the benefit of the family.
74 Family Law - II
, The Supreme Court upholding the validity of sale held

that the sale was for legal necessity as it had the effect of
releasing six items of properties from the burden of the mortgage.
The family was also relieved from the burden of paying rent to
the mortgagee under the lease back. Further, the consideration
was not grossly inadequate. Where ancestral property is sold
for the purpose of discharging debts incurred by the father and
the bulk of the proceeds of the sale is so accounted, the fact
that a small part of the consideration is not accounted for will
not invalidate the sale.
In Gauri Shankar v Jiwan Singh (AIR 1927 PC 246), it
was found that Rs. 500 out of the price of Rs. 4,000 was not
fully accounted for and that there was legal necessity for the
balance of Rs. 3,500. The Privy Council held that if the
purchaser had acted honestly, if the existence of a family
necessity for a sale was made out and the price was not
unreasonably low, the purchaser was not bound to account for
the application of the whole of the price."^
Comments - Where the property is sold with an intention that
the sale proceeds are to be applied for a legal necessity, but the
amount realized is in excess of the requirement and the excess
amount is not substantial, the sale would be valid in its entirety
(Ram Sunder Lai v Lachmi Narain AIR 1929 PC 143).£However,
where the excess amount is substantial, the sale would be
termed as for 'partial necessity' and would be partially valid; it
would bind the shares of the other coparceners to the extent
of the necessity only (Benaras Bank v Hari Narain AIR 1932y
PC 182).(For example, where the property is sold for Rs.
43,500, but" the necessity was for Rs. 38,000. It is necessary
to establish in these cases that the alienee had acted in good
faith and after making due inquiries.]
(b) Benefit of Estate

According to Mitakshara law, a karta can alienate the joint family property
for the sake of the family i.e. kutumharthe. Broadly speaking, 'benefit
of estate' means anything that is done which will benefit the JFP. The
term contemplates 'defensive transaction' as well as 'prudent transaction/
The following is the case-law on the point.
(i) In Palaniappa v Deivasikamony (1917) PC 68, the Privy Council said

that it is impossible to define the word 'benefit of estate' for all cases..
But some instances are: preservation of estate from extinction, the
defence against hostile litigation affecting it, protection of it from
injury, and such like things. It may be noted that in all these instances,
there was threat to estate. Thus, only that will be 'benefit of estate'
which is of a defensive character., (ii) In view of the above decision,
anything done merely to improve the property will not amount to benefit
of estate. However, this view seems to be no longer valid. The other
view is that anything done which is of positive benefit or advantageous
to the estate would amount to benefit of estate. In Balmukund v Kamla
Wati (AIR 1964 SC 1385), the Supreme Court observed that for a
transaction to be regarded as the benefit of the estate it need not be of
defensive character.
(iii) The test is of prudent owner' (caution, foresight and absence of
hasty, reckless and arbitrary conduct). Anything which a prudent
person can do in respect of his own property, the karta can do in
respect of JFP. The karta, as prudent manager, can do all those things
which are in the furtherance of the family's advancement or to prevent
probable losses, .provided his acts are not purely of a speculative or
visionary character (Nirmal v Satnam AIR 1960 Raj 313). However, the
degree of prudence required from the karta is higher than the level that
is expected of a person when he deals with his exclusive property
(Balmukund v Kamla Wati). (iv) This implies that the karta cannot
alienate property merely for the purpose of enhancing its value or
convert property into money just because' the property does not yield
any income, without replacing it with some more advantageous
property. But if the karta's power is to be continued to purely defensive
acts, there would be no progress and the family would stagnate (Ram
Nath v Ghurantial AIR 1935 All 221). In other words, sale of property
to convert it into money simpliciter or to spend it into speculative
transactions (e.g. stocks/shares/chit funds) would not amount to benefit
of estate, even if the consideration fetched after the sale of property is
in excess of the market
Family Law - II
value. If the intention was to use the money raised for the
purchase of more productive land, the sale would be for benefit of
estate.
(v) The following transactions were held to be for the 'benefit of
estate':
(a) Karta sold a property which was 18-19 miles away (thus
inconvenient to manage it) and purchased a more accessible
property [Jagatnarain v Mathura Das, ILR (1928) 50 All 969].
(b) Sale of property to enable the family to migrate to another place
and to purchase more productive lands there (Desari v
Desari'AIR 1973 A.P. 215).
(c) Karta, running a hotel business, mortgaged the family property
with a view to raising funds for renovation of hotel (Gallamudi
v Indian Overseas Bank AIR 3978 A.R 37). Thus, investment
in family business is a benefit to the estate.
(d) Land yielding no profit sold to purchase land yielding profit (Hari
Singh v Umrao Singh AIR 1979 All 65).
(e) Land worth Rs. 15,000 offered a price of Rs. 1.5 lakh (A.T.
Vasudevan' case AIR 1949 Mad 260).
(f) A mortgage of property so as to use the loan for purchase of a
share in the village property, to consolidate the existing share
(Beni Madho v Chander Prasad AIR 1925 Pat 189).
(g) Mortgage of the property for money at a less rate of interest
for the purpose of repaying a debt at a higher rate.
(h) Sale of a portion of property to make the family landlords instead
of tenants (Baijnath Prasad v Bindi Prasad AIR 1939 Pat 97)
or sale to reclaim a portion of property to prevent it from
leased to others. Similarly, a gift of a small portion of land to
defeat the pre-emption claim of the family property [Mohib
Ali Khan v Baldeo Prasad (1939) ILR All 305].
(i) Application of sale proceeds for making additions and
improvements in the family home (Ramrichpal v Bikaner
Stores AIR 1966 Raj 187).
(j) Within reasonable limits, transfer of a property to a

company with a view to preserve it.
(k) A sale of a house in a dilapidated condition, in respect of
which a notice has been issued by the municipality to
pull it down.
(vi) The following transactions were held not to be for the
benefit of estate:
(a) Entire homestead land was sold for the purpose of buying
another piece of land for construction of a residential
house. Held that the sale could not be considered to be an
act of prudent management for benefit of estate or legal
necessity, as there is no evidence that the house sold was
dilapidated or that the consideration was gainful
{Surendranath v Sudhir Kumar AIR 1982 Ori 30).
(b) Borrowing money on the mortgage of joint family
property for purchase of a house [Selleppa v Suppan,
1LR (1937) Mad 906].
(c) Transactions merely for the purpose of purchasing
another property, or for increasing the income of the
family, or that the property was fetching higher price
than the market rate.
d) An alienation by father of the entire family property with a
view to stay with his father-in-law since his wife was not
willing to come and stay with him.
(e) A permanent lease of land for a fixed rent (Palaniappa v
Deivasikamony).
f) Alienation for acquisition of mortgage rights in the property
of the brother who has separated from the family
[Hans Raj v Khushal Singh (1933) ILR 14 Lah 162].
(vii) In each case the court must be satisfied from material before
it that it was in fact such as conferred or was reasonably
expected to confer benefit on the family 'at the time it was
entered into.' What was once for the benefit of the estate may
not be the same in a changed set of circumstances and in fact
may be just the opposite.
78 Family Law - II
In Sital Prasad Singh v Ajablal Mander (AIR 1939 Pat 370), it was
held: In exceptional circumstances, the court will uphold the alienation
of a part of the joint family property by a Karta for the acquisition of
new property as, for example, where all the adult members of the joint
family with the knowledge available to them and possessing all the
necessary information about the means and requirements of the family
are convinced that the proposed purchase of the new property is for
the benefit of the estate.
^Conclusions - Whether transaction is for the benefit of estate or not is
to be decided keeping in mind the facts and circumstances existing at
the time of transactions and not by looking at the ultimate result of one
transaction many years later. Factors like, status and position of family,
nature of property (movable/immovable), difficulty in managing it, nature
and quantum of yield from transaction, etc., are important in determining
whether transaction should be upheld as beneficial to the family, i
LEADING CASE: BALMUKAND V KAMLAWATI

(AIR 1964 SC 1385)
[When the alienation of JFP by the Karta was not for any legal
necessity or benefit to estate, the said alienation is voidable at
the instance of coparceners.]
. Facts - In this case, the plaintiff desired to acquire a
particular " share of land held by the joint family of karta and
his brothers. A contract was entered into by the karta
regarding the said land, but karta failed to execute sale deed in
his favour. The brothers of karta defended that the transaction
was not binding on them because the sale was not for the benefit
of family nor there was any necessity.
The plaintiff contended that the sale was beneficial to
family, as their fractional share in land which they sold is not
of practical benefit to them, and by converting it into money
(sold at more than market value) the family stood to gain. The
manager of a joint Hindu family has power to sell...not only
for a defensive purpose (to avert an imminent danger) but also
for where circumstances are such that a 'prudent owner' of
property would alienate it for a consideration which he regards
to be adequate.)
Ôbservations and Decision - The karta, as 'prudent manager', can

do all those things which are in furtherance of family's
advancement or to prevent probable losses, provided his acts are
not purely of a speculative or visionary character. This implies
that karta can't convert family property into money just because
property doesn't yield any income, without replacing it with
some more advantageous property. But, if the karta's power is to
be continued to purely defensive acts, there would be no
progress. In A.T. Vasudevar’s case, the court held that the karta
can alienate...if it is clearly beneficial, even though there is no
legal necessity. If a land not yielding anything is sold, then it
is...benefit
Thus, in each case, the court must be satisfied that "it was, in
fact, such as conferred or was reasonably expected to confer
benefit on the family at the time it was entered into." In the
present case, there is nothing to suggest that the karta found the
property difficult to manage or that the family was incurring
losses by it, nor there is anything to suggest that idea was to
invest sale proceeds in some profitable manner. The
consolidation of property by the plaintiff doesn't make a benefit
to estate. Also, as brothers of the karta were adults, their
consent as coparceners is necessary. In view of the opposition
of alienation by coparceners, and the fact that the alienation
was not for any legal necessity or benefit to estate, the said
alienation is voidable at the instance of coparceners.
(c) Indispensable/ Religious Duties

The term "indispensable duties" implies performance of those acts
which are 'religious, pious or charitable.' The indispensable duties
include religious ceremonies e.g. shraaha, upanayanama,
grihapravesam, rithusanti and gauna ceremonies, and, performance
of other necessary samskars.
Performance of marriage is a samskara and therefore
performance of marriage of members of joint family, particularly of
daughters, is an indispensable duty (also covered under 'legal
necessity'). The allotment of a share to daughters in the family is
regarded as obligatory by Vijnaneswara. He says: "The allotment of
such a share appears to be
80 Family Law - It
indispensably requisite, since the refusal of it is pronounced to be a

sin
In Mitakshara (Chapter 1, Section 1, v. 28], it is stated: "Even a

single individual may conclude a donation, mortgage, or sale of
immovable property, during a season of distress, for the sake of the
family and especially for pious purposes." Pious purposes include a
'charitable' purpose besides a 'religious' purpose. "In the Hindu system
there is no line of demarcation between religion and charity. On the
other hand charity is regarded as part of religion" (Mukherjea's Hindu
Law of Religious and Charitable Trust, 2nd Edn., p. 12).
t The 'totality' of the property can be alienated for legal necessity
or for the benefit of estate or for the performance of indispensable
religious ceremonies (e.g. marriage, death), but only a 'small portion'
of the property can be alienated for pious purposes. In Gangi v Tammi
(1927) 54 IA 136, the Privy Council said that a dedication of a portion
of family property for the purpose of religious charity may be validly
made by the karta, if the property allotted is small as compared with
the total means of the family. Such alienation cannot be made by a Will.
Father's (Special) Power of Alienation

Father is usually the Karta of the family (being the seniormost male
member), and, possess the same powers of alienating the JFP. However,
he also possesses some 'special powers' in relation to the JFP. In other
words, where the Karta happens to be the father, he has wider powers
of alienation:
(i) Gift of love and affection of a reasonable property to his
daughter (discussed later).
(ii) Sale or mortgage of the property for payment of his antecedent
debts (personal) not contracted for illegal or immoral purposes
/ (Chet Ram v Ram Singh AIR 1922 PC 247). The debt may be
incurred in connection with a trade started by him or for
constructing a house.
It may be noted that where the Karta is the 'elder brother', the younger
brothers are not bound by the alienation to satisfy his personal debts
unless it is for legal necessity or for benefit of the family [Kolasani
Sivakumari v Kolasani Sambasiva Rao, 2000 AIHC 2512 (A.P.)].
/
it may also be noted that though a son gets a right by birth in the
JFP of his father equal to his, yet the father has more powers e.g. in
the matter of gifts through love and affection, alienations for the discharge
of his antecedent debts, and, effecting a partition amongst his sons
Alienation by Father of JFP in favour of Daughter
LEADING CASE: SUNDER YADAV v ASHA KUMARI (AIR

2009 Pat 131)
[When the father happens to be the Karta of the family, he has

some special powers to dispose of the JFP unlike an ordinary
Karta of the family. Thus, he can sell the JFP without the consent
of his sons in favour of his daughter for the satisfaction of the
debts.
In this case, the issue was whether a father as a Karta can sell
the JFP without the consent of his sons in favour of his daughter
for the satisfaction of the debts she contracted while looking
after him in wake of the neglect of the sons.
The father (Karta) had two sons and two daughters. He
purchased some lands and executed a registered sale deed in
favour of his wife's brother and another property in favour of
his daughter. The sons who in pursuance of these sales were
dispossessed of the property, challenged the validity of both the
sales pleading that the property was JFP; they were coparceners
and without their consent such sales would be void.
The High Court observed and held: When the Karta happens to
be father as well, he has special powers of alienating
coparcenary property which no other coparcener has. In the
exercise of these powers he may make a gift of the ancestral
property or may sell or mortgage ancestral property whether
movable or immovable including the interest of his son, grandson or
great grandson therein for the payment of his own antecedent debt
(not incurred for immoral or illegal purposes). Thus, the powers
of an ordinary Karta and Karta who happens to be the father are
slightly different.
In the present case the court noted that it was in evidence
that when the Karta became old, the sons neglected him: did
COPARCENER'S POWERS AND

RIGHTS (ALIENATION OF
JFP)
Coparcener's Power of Alienation

The ownership of the coparcenary property is with the
coparceners, and if there are several coparceners, the whole of
the property can be alienated with their consent ('Alienation by all
adult coparceners as one body'). If the alienation is for legal
necessity or for the benefit of the estate, it will bind the non-
coparcener members also. If the alienation is otherwise, it will
operate subject to their rights in that property (viz. right of
maintenance).
The Mitakshara didn't permit 'individual alienations' by
coparceners. This is in view of the nature of the JFP, also known
as coparcenary property (a coparcener may be said to own interest
in the whole property in unison with all the other coparceners).
According to Mayne, such alienation without partition (i.e.
undivided interest) would have the effect of introducing strangers
into the coparcenary, without their consent and defeating their
right of survivorship.
However, where an 'undivided coparcener' incurred a
financial liability by taking a loan or otherwise, and had no other
property for the satisfaction of this loan or pecuniary liability, he
could plead his inability to pay off the debt on the ground that the
undivided interest could not be alienated. Though nothing would
ordinarily prevent him from enforcing a partition and selling his
share, or the family could collectively decide to alienate the
property to pay off the debt, in absence of such a decision taken
either by the coparcener or the Karta, the creditors could be put to
a disadvantage. These beneficial provisions that were meant to
protect the interests of the family members could be misused or
exploited by them to their undue advantage and to the
disadvantage of the creditors or third parties.^
This rigidity (or inequity) was broken by the courts by
directing that the money decree be enforced against the
undivided interest of the coparcener [Deen Dayal v Jugdeep
Narain (1877) 4 IA 247; Dropadi Devi v Jagdish AIR 1989 Raj
110]. Such interest when sold through a court auction, could be
purchased by any person. This was the starting
5. Id., p. 185.
84 Family Law - II
point of 'judicial permissibility of involuntary alienations of the

undivided interest of a coparcener.' The court reasoned that such
alienation (whether voluntary or compulsory) though inconsistent
with the strict theory of a joint Hindu family, is founded upon
equity, which a purchaser for value has to be allowed to stand in his
vendor's shoes and to work out his rights by means of a partition
('Equitable rights of alienee for consideration'). Further, under the
Mitakshara law, there was special emphasis on the payment of debts
and therefore, the sanctity that was attached to this obligation
enabled them (the courts) to allow so?)
The law of coparcener's power of alienation is, thus, the product
of judicial legislation:
(1) Undivided interest of a coparcener can be attached and sold in
execution of a money decree against him (payment of debts)
Involuntary alienation* However, it can't be executed against
the interest of coparcener after his death. But, if interest has
been attached during his life-time/or before judgment and
coparcener dies during pendency of suit, his interest can be
sold. Thus, if the coparcener dies before the filing of the
suit by the creditor or before his undivided interest could be
attached by the court, such undivided interest then, could not
be attached by the court. As on the death of a coparcener, his
undivided interest devolved by survivorship, on the surviving
coparcener and he left behind nothing that could be
attached.
(2) A coparcener is entitled to alienate his undivided share either
in the whole of property or in a certain specific item of
property - Voluntary alienation'.] According to Bombay,
Madras, M.P and J&K High Courts, a coparcener has power
to sell, mortgage or alienate for value (consideration) his
undivided interest without the consent of other coparceners;
but in rest of Mitakshare jurisdiction, consent is required. In
the former, non-alienating coparcener's only right is that
property should bear proportionate share of common burden
of family.
In Ponnamma v Aspinwal (AIR 1988 Karnt 99), it was held that in
areas where a coparcener is permitted to alienate his undivided
share a mortgage effected by a coparcener will be valid to the extent
of his share and the mortgagee's rights will be unaffected with the
deaths and bi.ths of other coparceners in the family, j
According to Mitakshara law prevailing in Bengal, Bihar,

Orissa, U.P., Punjab and Delhi, a coparcener cannot sell his
undivided interest even for consideration) without the consent of
the other coparceners, en where it is in favour of another
coparcener.
Alienations without Consideration

Though the concept of voluntary alienation has been recognized
in some States, the gifts and Wills were not recognized due to
there being no equity in the favour of alienee. After 1956, the
individual coparcener in dispose of his undivided interest by Will
vide Sec. 30 of the Hindu accession Act. But as regards gifts, the
law, even after 1956, is the same and no coparcener can make a
valid gift of his undivided interest, such a transaction is void.
However, he can make a gift with the 3nsent of other
coparceners provided it is in favour of all other aparceners.
A 'Gift' is the transfer of certain existing movable or immovable

property lade voluntarily and without consideration. In case of
'separate/self-acquired' property, a Hindu has competence to
dispose it by way of gift; the only limitation is that if any person
(e.g. female members, minors) has a right to get maintenance out
of the property to be gifted, hat right cannot be prejudiced.
In case of 'joint family property', if all the coparceners are
adult hey can make a gift of the JFP by unanimous consent.
Whether an ndividual coparcener can gift a JFP depends upon his
status i.e. is he m ordinary coparceper or the Karta or the father. (
, An 'ordinary coparcener' cannot make a valid gift of undivided
share unless it is with the consent of all the coparceners (T.
Venkatasubramma v Rattamma AIR 1987 SC 1775) or is in favour
of all the coparceners to the extent of his total share {Ram Saran v
Prithipal AIR 1950 All 224). Thus, a gift by a coparcener in favour
of another coparcener, to the exclusion of others is void and can be
recovered back by the coparcener who had earlier executed it. This
is the position even after passing of the Hindu Succession Act, 1956.
The object of this strict rule against alienation by way of gift is to
maintain the jointness of ownership and possession of the
coparcenary property.
86 Family Law - II
[Note: The gift of JFP by 'Karta' and/or 'Father' has been

discussed under the 'Questions Section.']
(b) Renunciation
A coparcener has power to 'renounce' his interest in the JFP, though
* it does not amount to alienation. However, a coparcener is
empowered to renounce his share in favour of the other coparceners
as a whole. As a result of it, the shares of the other coparceners
fluctuate and increase collectively. Once a coparcener renounces his
share he remains a member of the family (unless there is an intention
to separate), but his interest in the coparcenary property comes to an
end. Thus, a son born to him subsequent to such renunciation, will not
have a right by birth, in the coparcenary property [Krishncm Namboodri v
Chena Kesavan AIR 1959 Ker 336].
A father may renounce his interest in favour of his sons on the
condition that they will maintain him (Guruswamy v Marappa AIR
1950 Mad 140).
(c) Will
A 'Will' is the legal declaration of the intention of a testator with respect
to his property which he desires to be carried into effect after his
death.
Under the classical Hindu law, no coparcener, including a father
(except in some situations, a sole surviving coparcener) was
empowered to dispose of his undivided share under a Will
{Vaillammal Achi v Nagappa Chettiar AIR 1967 SC 1153) even
with the consent of the other coparceners. In fact, 'testamentary
disposition' was opposed to the basic incidents of coparcenary, as a
Will, if allowed to be validly operative, could have frustrated the
application of the doctrine of survivorship.
• However, after coming into force of the Hindu Succession
Act, 1956, any coparcener can make a valid Will with respect to his
undivided share in favour of 'anyone.' The H.S. Act, which primarily
deals with succession to the separate property of a Hindu,
specifically empowers an undivided coparcener to make a
testamentary disposition of his undivided interest. The expression
used in Sec. 30, 'Notwithstanding anything contained in the Act or in
any other law for the time being in force', has an obvious reference
and clear intention of the abrogation of the classical Hindu law
rule,
There is no limitation on the quantum of the property under a Will

that can, be bequeathed. Further, it can be given to any coparcener
to all the coparceners, to his sons or to a non-coparcener, to a family
member or to a total stranger, to a living person or even dedicated to
religious/charitable purpose. However, the entire joint family properties
cannot be disposed of by Will. A Will executed by the father, of the
entire JFP (including the share of the sons), even post 1956, will be
invalid (V.K. Thmmaiah v V.K. Parvathi AIR 2003 Karnt 245). \
Where a coparcener bequeaths his undivided interest, on his death, ne
doctrine of survivorship would no longer apply to his interest. The
legatee (even a stranger) will step into his shoes and would be entitled
to ask for a partition and specification of the share as it stood at the
time of the testator's (coparcener's) death. Where a coparcener makes
a Will of his undivided share, it is not necessary for him to bring it to
the knowledge of the Karta/other members. As a Will is operative only
from the death of the testator, the Karta can alienate the interest so
bequeathed, during the lifetime of such coparcener, for a legal necessity
and a situation may arise that there may not be any property that can
go under a Will.
Sols Surviving Coparcener's Right of Alienation

(1) He has full rights of alienation (no need of legal necessity or
benefit to estate to be shown) (as propertyassumes the character
of 'separate property' in his hands) of JFP but if at the time of
alienation, another coparcener is in womb, on his birth, he can
challenge such alienation. Otherwise, a subsequently born son
cannot challenge such alienation.
(2) His power to alienate is not affected by a subsequent adoption
of son by a coparcener's widow.
(3) He can't alienate the interest of any female vested-in her by
virtue of Sec. 6, Hindu Succession Act. Where a female member
has a right of maintenance out of this property, the property
cannot be sold without securing her maintenance rights, and if
there is a necessity, such female can enforce her right against
this property.
6. id., pp. 188-189.

88 Family Law - II
(4) If he makes a 'Will' of the property, and before his death (i.e.
before the Will to become operative), another coparcener comes
into existence (subsequently born son or an adopted son), the
Will, will become invalid as he is no longer a sole surviving
coparcener. It is only when at the time of his death he has the
same status (i.e. of a sole surviving coparcener), the Will, will
be valid. In this case, it also does not matter that there was a
coparcener in the womb of his mother; the Will, will be valid.
(5) A 'gift' of the property by a sole surviving coparcener in
favour of persons who looked after him is valid (Ashwani
Kumar v Rajinder Kumar AIR 2010 H.P. 44)
Coparcener's Right to Challenge Alienation by Karta7

It is settled law that an improper alienation (by Karta/coparcener) can
be challenged by all or any one of the coparceners existing at the time
of the alienation. But an alienating coparcener cannot challenge his own
alienation. An adult coparcener who consented to the alienation cannot
later challenge its validity. An alienation effected by the Karta cannot be
challenged by any other member of the family who is not a coparcener
(e.g. widow of a coparcener). .
It may be taken to be a well-settled law that alienation by the Karta
without legal necessity or benefit of estate or in discharge of indispensable
duty is not void but merely voidable at the instance of any coparcener
(Raghubanchmani v Ambika'Yrasad AIR 1971 SC 776). A voidable
alienation is valid so long as it is not challenged. Where the Karta
alienated the joint family property without the consent of other
coparceners and without any legal necessity or for the benefit of estate
it was held that such alienation was invalid even for the share of the
Karta [Sital Singh v Jamna Bai (2004) 138 P.L.R. 565]. That would be
the case when the court decides that the transfer was without judicial
or legal authorization and thus void.
A coparcener cannot obtain an injunction to prevent the Karta
from alienating the JFP, since he has the remedy of challenging alienation
7. Discuss the remedies available to coparceners to protect their corresponding

share when the Karta wants to sell the same for legal necessity without
consulting them. [D.U.-2008 (Supp.)]
sunil Kumar v Ram Prakash AIR 1988 SC 576) (discussed

below), However, in case of waste or ouster, an injunction can be
granted [Sant singh v Mata Ram (1989) 1 HLR 214 (SC)].
(Where the coparceners do not consent to the alienation, they
have two remedies in the alternative/The first remedy is available
when the transfer has not been effected by the Karta; the non-
consenting coparcener an demand his share in the JFP (i.e.
partition) and cease to be a member of the family. The Karta, then,
cannot alienate his share.) Where tie coparceners, though against
the alienation, do not express their dissent by challenging it as
invalid or by asking for partition and ascertainment of their shares
before it is effected, the alienation remains valid. The second remedy
is available when the transfer has been effected, The coparceners can
challenge the validity of the transfer in the court, on the ground
that none of the categories for which the Karta is permitted in
law to alienate the property, existed.,
Where the challenging coparcener was a minor at the time of
alienation, he can file a suit for setting aside such alienation within
three years of his attaining majority. A coparcener who is in the
womb of his mother 'at the time of alienation' can get the
alienation set aside after his birth. Under Hindu law a son
conceived is, in many respects, equal to a son born. An after-born
coparcener cannot challenge the alienation. But if an alienation is
made by a father who has sons and before all the sons die another
son is born to him, then such son can challenge the alienation; it is
necessary that at the time of his conception there must have existed
an unexpired right among some coparceners to challenge the
alienation. It is settled law that a son adopted subsequent to alienation
has no right to challenge alienation^
Challenge to Alienation by Undivided Coparcener In the States

where an undivided coparcener is entitled to alienate his "interest in a
Mitakshara coparcenary, such alienation cannot be challenged.
However, in the States where he is not permitted to do so, any
coparcener in existence at the time of the alienation, or was
conceived and subsequently born alive, can set it aside with the
court's help.]
In Balgobind Das v Narain Lai (1893) 20 I.A. 116, it was
held that in Bengal, Bihar and U.P., on the suit of a coparcener, the
alienation will be set aside wholly as under these schools a
coparcener has no
90 Family Law - II
right to alienate his undivided interest in the JFP. The non-

alienating coparceners are also entitled to a declaration that
alienation is void in its totality.
Right to Challenge Alienation does Not extend to Right to

Obstruct Alienation
LEADING CASE: SUNIL KUMAR v RAM PRAKASH

(1988) 2 SCC 77]
[A coparcener cannot move the court to grant relief by injunction
(temporary or permanent) restraining the Karta from alienating the
coparcenary property for a permitted purpose as ascertained by the
Karta. An injunction cannot be granted when a parry could obtain an
efficacious relief by any other usual mode of proceeding (except in case of
breach of trust). The coparcener has adequate remedy to impeach the
alienation made by the Karta.]*
In this case, the issue was whether a suit for permanent
injunction by a coparcener against the father for restraining him
from alienating the house property belonging to the joint Hindu
family for legal necessity was maintainable,,
The lower court observed: At the outset it is to be noticed
that in a suit for permanent injunction under Section 38 of the
Specific Relief Act by a coparcener against the father or
Manager of the joint Hindu family property, an injunction
cannot he granted as the coparcener has got equally
efficacious remedy to get the sale set aside and recover
possession of the property. Thus, a suit for permanent
injunction by a coparcener against the father for restraining
him from alienating the house property belonging to the joint
Hindu family for legal necessity was not maintainable because
the coparcener had got the remedy of the challenging the sale
and getting it set aside in a suit subsequent to the completion
of the sale. \
It has, however, been submitted on behalf of the
appellant that the High Court should have held that in
appropriate cases where there are acts of waste, a suit for
permanent injunction may be brought against the Karta of the
joint Hindu family to restrain him from alienating the
property of the family.
91
Although the power of disposition of joint family property

has-been conceded to the Manager of joint Hindu family, the
law raises no presumption as to the' validity of his transactions.
His acts could be questioned in the court of law. The other
members of the family have a right to have the transaction
declared void if not justified. When alienation is challenged as
being unjustified or illegal it would be for the alienee to prove
that there was legal necessity in fact or that he made proper
and bona fide enquiry as to the existence of such necessity. If
the alienation is found to be unjustified, then it would be declared
void. Such alienations would be void except to the extent of
Manager's share in Madras, Bombay and Central Provinces.
The purchaser could get only the Manager's share. But in other
provinces, the purchaser would not get even that much. The
entire alienation would be void [Mayne's Hindu Law, 11th Edn.,
para 396])
In the light of these principles, it was contended: First,
that a" coparcener has as much interest as that of Karta in the
coparcenary property. Second, the right of coparcener in respect
of his share in the ancestral property would remain unimpaired,
if the alienation is not for legal necessity or for the benefit of
the estate. When these two rights, are preserved to a coparcener,
why should he not prevent the Karta from dissipating the
ancestral property by moving the court? Why should he vainly
wait till the purchaser gets title to the property
.The Supreme Court observed: The significance and social
necessity behind 'collective ownership' of JFP, and, the unique
and vital position of the Karta/manager of the HJF cannot be
overlooked. A Karta may consult the family members and if
necessary take their consent, but he is not answerable to each
of them. The Karta/manager has not only the power to manage
but also the power to alienate JFP so as to bind the interests
of both adult and minor coparceners in the property, provided
that alienation is made for legal necessity or for the benefit of
the estate or for meeting an antecedent debt. Thus, managing
the JFP is one of the inherent powers of the Karta.]
It is true that a coparcener takes by birth an interest in
the ancestral property, but he is not entitled to separate possession
92 Family Law - II
of the coparcenary estate. His rights are not independent of the

control of the Karta. It would be for the Karta to consider the
actual pressure on the joint family estate. It would be for him to
foresee the danger to be averted. And it would be for him to
examine as to how best the joint family estate could be
beneficially put into use to sub-serve the interests of the family. A
coparcener cannot interfere in these acts of management, j j
Apart from that, a father-Karta in addition to the aforesaid"
powers of alienation has also the special power to sell or
mortgage ancestral property to discharge his antecedent debt
which is not tainted with immorality. If there is no such need or
benefit, the purchaser takes risk and the right and interest of
coparcener will remain unimpaired in the alienated property.
No doubt the law confers a right on the coparcener to
challenge the alienation made by Karta, but that right is not
inclusive of the right to obstruct alienation. For the right to
obstruct alienation could be considered as incidental to the
right to challenge the alienation. These are two distinct
rights. One is the right to claim a share in the joint family
estate free from unnecessary and unwanted encumbrance.
The other is a right to interfere with the act of management
of the joint family affairs. The coparcener cannot claim the
latter right and indeed, he is not entitled to it. Therefore, he
cannot move the court to grant relief by injunction restraining
the Karta from alienating the coparcenary property. An
injunction cannot be granted when a party could obtain an
efficacious relief by any other usual mode of proceeding
(except in case of breach of trust). The coparcener has
adequate remedy to impeach the alienation made by the Karta.
The decision of the Punjab and Haryana High Court in
Jujhar Singh v Giani Talok Singh (AIR 1987 P&H 34) has
correctly laid down the law. There it was observed at p. 348:
"If it is held that such a suit would be competent the
result would be that each time the manager or the Karta
wants to sell property, the coparcener would file a suit
which may take number of years for its disposal. The legal
necessity or the purpose of the proposed sale which may be
of pressing and urgent nature, would in most cases be
frustrated by the time
the suit is disposed of. Legally speaking, unless the

alienation in fact is completed there would be no cause
of action for any coparcener to maintain a suit because
the right is only to challenge the alienation made and
there is no right recognized in law to maintain a suit to
prevent the proposed sale. The principle that an
injunction can be granted for preventing waste by a
manager or Karta obviously would not be applicable
to such a suit because the proposed alienation for an
alleged need or the benefit of the estate cannot be said
to be an act of waste by any stretch of reasoning.
The Apex Court, however, made it clear that in
case of waste or ouster, an injunction may be granted
against the manager of HJF at the instance of the
coparcener. But nonetheless a blanket injunction
restraining permanently from alienating the JFP even in
the case of legal necessity cannot be granted.]!
ALIENEE'S DUTIES RIGHTS AND REMEDIES

Burden of Proof (Duties of Alienee)
The 'burden of proof in the case of alienation of JFP is on the
alienee. An alienee is the person in whose favour the transfer
has been effected i.e. the transferee; he is the beneficiary i.e. the
person who claims the benefit of the alienation. Thus, alienee
has to prove that the transaction entered into by the Karta is for
a legal necessity or for the benefit of the estate. The burden
does not lie on the alienor/transferor (Karta). This burden also
does not lie on the coparcener who challenges the alienation
( The logic behind is that where a transferee enters into a
transaction with a transferor who is not the exclusive owner
of the property, but has limited or qualified powers of
alienation, the duty is on the transferee to act with caution and
due diligence and enter into the transaction only when he
satisfies himself after making bona fide inquiries about the
transfer being permissible in law. If the alienation is in future
challenged in a court of law and being declared invalid by the
court, it is the alienee
94 Family Law - II
who has to suffer. Thus, he has a right to come forward to discharge

the burden of proof. Otherwise the Karta and other coparceners may
collude against him. A bona fide alienee/creditor should not suffer when
he has acted honestly and with due caution, but is himself deceived^
I However, there are factual difficulties in the discharge of burden
of proof by an alienee, for example, the alienee cannot assess
independently the needs of the family (a private matter of the family).
Further, he has no control over the proper application of money by the
Karta. The courts have, thus, relaxed the rules of burden of proof,
making them practical, workable and rationale:
- The nature of inquiries by the alienee should be such as would
be made by a 'reasonable prudent person.' He has to not only
prove the existence of a purpose, but he also has to show that
the family had a legal necessity, and for that he has to show
that the family did not possess enough alternative financial
resources from which the required money could be raised and
that there was sufficient pressure on the family to sell or
mortgage the property.
- The transaction should be finalized by the alienee only when he
satisfies himself with respect to the competency of the Karta
to effect the alienation.
- The alienee must show that he had acted honestly and his
actions were not mala fide i.e. he was not a party to the
mismanagement of property by the Karta If he was a party to
such mismanagement, the alienation in his favour is not valid.
However, the alienee is not concerned whether the necessity
arose from an earlier mismanagement of the family property.
- The alienee has to prove that he had paid a fair price for the
alienation. A 'need based' transfer can never be for inadequate
consideration. At the same time, he has to prove that the terms
of alienation and the rate of interest on the money borrowed
were not unreasonable and onerous (i.e. very high), j
- The alienee is not bound to see the actual application of the
money advanced or of the consideration and it is sufficient for
him to show that he had became a party to the transfer after
making due inquiries^ In Prem Singh v Dharam Singh (2005)
139 P.L.R. 334, the vendor (alienor) required money for the
treatment of a medical disorder. The vendee (alienee) proved

that the vendor needed money for legal necessity. It was held
that the vendee had discharged his onus and just because the
vendor was shown to having money in the bank account is not
enough to disprove the fact of legal necessity.
- The alienee is also not bound to go into the question as to what
mode of alienation, sale or mortgage, etc. would be better for
the family. The Karta has to decide it. j
- Recitals of necessity in the transfer deeds executed by the
Karta. are not conclusive proofs of the existence of a necessity
justifying the transfer, but are admissible in evidence, and if
supplemented with other proof, can be of importance with the
passage of time. 1
Alienee's Rights and Remedies
(I) Authorised Alienations

Undivided interest of a coparcener can be attached and sold in execution
of a money decree against him (in cases of involuntary alienations e.g.
payment of debts) in all regions governed by the Mitakshara lawjTh'at
would be the case when the alienation by Karta/coparcener is valid i.e.
for legal necessity, etc. (Thus, in case of an authorized sale, the alienee
is entitled to the possession of the property and to the ejectment of the
members of the family, i
(II) Alienation of Undivided Interest by Coparcener

In areas where a coparcener is permitted to voluntarily alienate his
undivided share, a mortgage effected by a coparcener will be valid to
the extent of his share (even where the coparcener alienates more than
what would have been his share in the coparcenary property). The
alienee cannot have any better right than what the coparcener had in the
property,
I When alienation is valid, alienee is entitled to the interest of the
coparcener as it existed 'at the time of alienation' (not subject to
fluctuation either by births or deaths in family; thus, mortgagee of a
Hindu father is not entitled to proceed against the share of a son
subsequently born in the family). In other words, the share to which
an alienee is entitled on a partition is the share to which the alienor was
96 Family Law - II
entitled at the date of the alienation, and not at the date when the alienee
seeks to reduce his interest into possession.
The right which the alienee acquires is to stand in the shoes of
his vendor and to work out his rights by a suit for partition (this right is
not lost by the death of the coparcener). In such suit he can't claim the
specific properties that were alienated to him, to be allotted to his share.
But he has an equitable claim and ordinarily the court may assign that very
property, if it could be done without injustice to other coparceners
(otherwise, 'substituted security'). It may be noted that where instead of
a general undivided interest, the coparcener alienates a specific item out
of the coparcenary property or a share in a specific property, the alienee's
remedy will be merely to sue for a general partition and he cannot
claim that very property.8
The alienee will take the property subject to all charges,
encumbrances and liabilities affecting the JFP or the interest of the
coparcener. Also, he has a right to impeach improper previous alienations.
But where the alienation is itself in discharge of binding debts, the
alienee cannot, in a suit for partition, be saddled with other family debts.
Neither the alienation of entire interest by coparcener, nor
adjudication of coparcener as insolvent would have the effect of
disrupting the joint status of family.
(Ill) Right of Possession of Alienated Property

There is a difference of opinion on the question whether the alienee has a
'right of possession' of the specific properties alienated to him (by the
undivided coparcener) before he seeks partition. It may be noted that
8. For example, in a joint family, three coparceners collectively own a house and four
pieces of land (A, B, C and D). One of the coparceners, X, sells D, a land whose
value was to the extent of one-third of the total property, to the purchaser. Since
the entire interest is undivided, in a suit for partition and handing over of the share to
the alienee, he cannot insist on obtaining only land D, as which property will go to
which coparcener's share can be ascertained only after a partition. To claim a
specific property would go against the basic incident of unity of possession or
collective ownership associated with coparcenary. That is why also alienee's suit
for partition stands on a different footing in comparison to a suit for partition filed
by an ordinary coparcener, as it does not affect the status of the rest of the joint
family. See P. Pradhan Saxena, Family Law II, 3'" ed., p. 191 (2011).
once the partition is effected, the alienee can get an exclusive

possession of the same. ,
where the property was in possession of the coparceners,
including the snare alienated by one coparcener, the purchaser
(alienee) cannot claim joint possession with the other
coparceners; he can only sue for a general partition (Pandu v
Goma AIR 1919 Bom 84). In case the property has been delivered
to the purchaser and he takes the possession, the other coparceners
are entitled to have joint possession with him, or they can file a suit
for recovering possession from him. The discretion lies with the
court to either pass an order for eviction of purchaser (for instance,
where the purchaser is a stranger), or allow him to retain the joint
possession as a tenant-in-common (for instance, where the purchaser
is a relative and has been in possession for a long time). (Where the
non-alienating coparceners do not want to have joint possession, the
remedy is to sue for partition (Bhau Laxman v Budha Manku AIR
1926 Bom 399). This is the position in Bombay
(in other States (Madras, U.P., W.B., Patna, M.P.), the
purchaser does not "nave a right to joint possession of the property
with the coparceners. He can never be given joint possession, nor
can he become a tenant-in-common with the other coparceners.
He has merely an equity to enforce his rights by enforcing a
partition .If the possession has been delivered to him by the
alienating coparcener, he can be ejected at the instance of the non-
alienating coparceners (in a 'collective' suit). The reason for not
permitting him to have joint possession with the coparceners is to
avoid the introduction of a stranger into the family.
The Supreme Court in Manikayala Rao v Narasimhaswami
(AIR 1966 SC 470) held that it is well settled that a, purchaser
cannot claim to be put in joint possession with the other
coparceners. He has only the right to ask for a general partition of
the family property.
(IV) Refund of Consideration in Unauthorised Alienations

When alienation is invalid and set aside by the court (on the ground
that it was not permitted under Hindu law), the alienee is not entitled
to any equity or charge on the alienor's share for the money paid
by alienee to him. The alienee, however, can proceed against the
alienor personally, for a refund of the amount (consideration) that
was advanced by him.
98 F a m i l y Law - II
The alienee would be entitled to a refund of the amount by the

coparceners, only where he is able to prove that the consideration that
he had paid went to the joint family assets or were used in paying off
charges on the property (Permanayakam v Sivaraman AIR 1952 Mad
419). Thus, the alienee has to show that the coparceners had benefited
from the consideration; otherwise there would be no refund. Where the
coparcener who sued to set aside the sale, had taken a benefit or an
advantage out of the money paid by the alienee, the court will set aside
the alienation subject to the condition that the coparcener refund the
money to the alienee. This is based on equity.
Where the alienation is by the Karta (not being the father), the
Karta alone is liable, and the coparceners are not bound to refund the
money paid by the alienee, for an unauthorized alienation.
Where the sale is completely invalid, it is not obligatory on the son
to refund the amount paid by the alienee to the father. But, where the
sale is partially valid, it will be set aside on the condition of refund of
the excess amount. In Permanayakam v Sivaraman (AIR 1952 Mad
419), the father of a Mitakshara joint family sold some family property
for consideration. His son attacked the sale, as he and his father were
undivided on the date of the sale and the sale was neither for any legal
necessity nor for benefit of estate. As a result of this, a decree for
partition and recovery of possession of son's half share in properties
was granted, without making any provision for payment by son of a
proportionate (half) share of binding consideration to alienee.
The High Court, however, held that the son has to pay it. The
court observed: If a non-alienating coparcener challenges the sale made
by father/karta on the ground that it is not binding on him but institutes
a suit only to recover his share in property alienated, thereby admitting
the right of alienee to the other share, and if it is found that alienation
is supported by partial necessity, the common burden discharged from
and out of the consideration should be distributed proportionately.
The court also held that if alienation is made either by father/karta/
coparcener, though purporting to be for value, is in fact a devise to
make a gift and not transfer for consideration, the alienation is void. A
non-alienating coparcener is otherwise entitled to dispute the adequacy
or fairness of the consideration and his only right is to insist that the
property alienated should bear proportionate share of the common burden
of family.
FURTHER QUESTIONS
Q.1 Discuss the validity of the following sales of the joint family
property made by the karta of the Hindu joint family. Also,
discuss the nature of rights and remedies available to alienee.
(1) Sale of a part of joint family property to meet the expenses of

the re-marriage of a widowed daughter.
(2) The joint family land is sold by the karta to meet the expenses
of his daughter's marriage, but the amount is spent by him in
gambling.
(3) Karta sold the dwelling house to meet the expenses of higher
education of his second son SB. Karta, himself and his first son
SA are employed as peons in a Government office.
(4) Karta, aged 45 years, sold some portion of ancestral property to

perform his own second marriage.
(5) Karta sold some ancestral property for the second marriage of
his brother Naresh, after the death of Naresh's wife.
(6) A house of the joint family is sold to meet the expenses of

appeal to defend one of the coparceners, convicted by the
lower court, of raping a minor girl and then killing her.
(7) Karta mortgaged the jewels belonging to the family for obtaining
money for the purpose of assisting prosecution of person
accused of murder of his (Karta's) daughter.
[L.C.II~94/95/96; C.LC.-91/95\
A.1 Karta's Power of Alienation: Legal Necessity
Alienation (transfer of property by an act inter vivos i.e. gift, sale, etc.)
is a very important, though controversial, power vested in the karta.
The karta can alienate the joint family property only in three
circumstances:-
(i) Apat Kale (time of distress/emergency i.e. legal necessity). For
details see the text.
(ii) Kutumb Arthae (benefit to estate).
100 Family Law - I!
(iii) Dhuram Arthae (for the sake of indispensable religious
duties;
Alienee's Duties and Rights/Remedies

Alienee is the person to whom the property is alienated to by the
karta. In Hunoomanpersaud v Babooee (1856) 6 MIA 393, the
court held
(i) The alienee is bound to- make proper and bona fide
enquiries as to the existence of legal necessity.
(ii) But, the alienee is not bound to see as to the actual
application of the money for the legal necessity.
Burden of proof'- Whenever an alienation is challenged it is for the
alienee to show that there was legal necessity. If he does that (i .e.
proves the actual necessity or proves that he made proper and bona
fide enquiries about the existence of necessity) he has discharged I
burden; it is immaterial if it turns out that actually there was no ne
for alienation. Similarly, it is not his duty to see that the money
applied to the legal necessity for which it was taken.
In Permcmayakam v Sivaraman (AIR 1952 Mad 419), the
court held:
(i) When alienation is made by karta and alienation is fully
and substantially supported by necessity, the alienation
has to upheld.
(ii) If however alienation made by karta is supported only by part
necessity (i.e. money required to meet the necessity is less
than the amount raised by alienation), the alienee would be
entitled to have the alienor's share allotted to him (in a suit for
partitic and also to have the binding portion of consideration
distributed equally.
(iii) If alienation is made by a coparcener, the only right which
alienee acquires is to stand in the shoes of a vendor and
work out his right by suit for general partition.
In Balmukund v Kamla Wati (AIR 1964 SC 1385), the court held:
(i) If the alienation is improper, only the karta will be bound by t
transaction.
(ii) Thus, in such cases, the alienee can make use of provisions
the Specific Relief Act, 1963 to obtain a decree against t
karta's interest in the JFP. Even after obtaining a decree his

only right is to bring a suit for general partition.
Decision of the case(s) in question

1) There is a special duty towards 'daughters' on the part of karta
and other coparceners, in Hindu law. Moreover, it is a policy
of law to encourage remarriage. Also daughter not being a
coparcener can claim her (second) marriage expenses from
JFP (under the head of 'maintenance'). Therefore, the alienation
by karta is supported by legal necessity.
(2) If the alienee has made a proper and bona fide enquiry as to
the existence of legal necessity, then he is not required to see
that the money is applied to the legal necessity for which it was
taken. Thus, the alienation will be valid in such a case.
(3) Selling of the dwelling house for higher education of his second
son by karta, when the karta himself and his first son were
peons, cannot be justified on account of legal necessity, as in
this case the pressure upon the estate cannot be regarded as
serious and sufficient. In other words, the family's need for
higher education of karta's son was not serious enough to sold
off the dwelling house. The 'legal necessity' means need, not
luxury.
(4) Second marriage of the karta is not a legal necessity and if he
wants second marriage it would be in the fairness of things to
use his own assets. Moreover, karta's liabilities and
responsibilities towards family members are numerous; he has
to sacrifice a lot. Alienation of JFP for his personal benefits
(like his own second marriage) is not expected of him.
(5) In Bhagirathi v Jhoku Ram, ILR (1910) 32 All 475, it was held
that the second marriage of a coparcener can be held to be
legal necessity depending upon the facts and circumstances of
the case. But in Patel v Lakkireddigari (AIR 1947 Mad 379)
and Onkar v Kishan Singh (1930, Nagpur High Court), it was
held that first marriage of coparcener is a legal necessity because
it is a religious duty to marry. However, second marriage of the
coparcener is not a legal necessity and if a coparcener wants
second marriage it would be in the fairness of things to use his
own assets.
102 Family Law - II
(6) Defence of a family member involved in a serious criminal

charge has been held to be legal necessity [Beni Ram v Man
Singh, ILR (1912) 34 All 4], unless the charge is of murder
of a family member. It has been held that to spend joint
family money for assisting the prosecution of a person
accused of murder of the member of the family is not legal
necessity because prosecution of murderers is the duty of the
State [Maruthappan v Niraikallathan (1937) Mad 943].°
Q.2 Explain in brief: Concept of 'Benefit of Estate.' [D.U.-2G08\
Discuss the validity of the following sales of the ancestra

property made by the karta of the joint family:
(1) Karta sold the paddy field in order to escape the risk of
successive droughts which he had experienced earlier. Out
of the sale proceeds he constructed a 5-star hotel and a
sprawling shopping complex.
(2) The joint family have extensive coparcenary propertie

including a valuable piece of land in Faizabad, near Ayodhya
Karta is anxious to sell away the land, in view of the alleged
deteriorating law and order situation of the State. Seth
Govind Ram is eager to purchase the land. He approaches
Kart and makes a lucrative offer of Rs. 10 lacs.
(3) The family owns agricultural land, situated 40 km away from

the town where the family resides. The land has not been
cultivated for the last few years because karta and his firs
son are not keeping good health and his second son is
minor. Karta sells the land at the market rate and deposits
the money in a bank.
9. A Hindu joint family comprised of two brothers A and B, their wives, two
sons
and a daughter of A (AS1, AS2 and AD) and two sons of B (BS1 and BS2).
A
daughter, AD, who was 19 years old eloped with a man of lower caste
and
this left the family stunned AS1 vowed to kill AD to save the family honour
and
took out the pistol BS1 tried to pacify him, but in the scuffle between
them
BS1 died of gunshot. AS1 was booked for the murder of BS1 and in order
to
give him the best legal assistance, A sold the entire JFP without taking the
consent of the other coparceners. B, however, challenges the validity of
the
alienation. Decide. [D.U.-
201
(4) The family owns an ancestral house in Shakti Nagar. Karta sells
the house and purchases another house a few yards away
without the consent of his two sons.
(5) The family owns a land (1000 sq. yds.) in Patna. Since the
family finds it very difficult to manage it, karta sells it and with
the sale proceeds, buys another land (300 sq. yds.) in Delhi.
(6) A house belonging to the joint family worth Rs. 50,000 is sold by
the karta for Rs. 80,000.
(7) Karta sells a joint family house worth Rs. 80,000 for Rs. 50,000
with a view to deposit the money so received in a Bank for
earning interest.
[C.LC-92/93/94/95; LC.II-94/95/96]
A.2 Karta's Power of Alienation: Benefit to Estate
According to Mitakshara law, a karta can alienate the joint family property
for the sake of the family, i.e., kutumbarthe. Broadly speaking, 'benefit
of estate' means anything that is done which will benefit the JFP. The
term contemplates 'defensive transaction' as well as 'prudent transaction.'
For det see the text.
Decision of the case(s) in question

(1) The alienation made by karta in order to build a hotel and a
shopping complex appears to be for the benefit of the estate.
It is like land yielding no profit sold to purchase land yielding
profit. Thus the karta has acted as a prudent person and the
alienation can be justified.
(2) The karta cannot convert family property into money just because
the property does not yield any income, without replacing it
with some more advantageous property. Thus, such a transaction
cannot be said for the benefit of the estate, unless it is shown
that the sum of Rs. 10 lakhs was to be profitably invested.
Moreover, where other adult coparceners are in existence,
judgment is not alone of the karta but other coparceners as
well.
(3) The said transaction is not for the benefit of the estate, as land
is safer and more stable property than keeping the money in the
104 Family Law - II
bank and earning interest on it. Thus, the transaction is not

advantageous.
(4) In this case also the transaction is not advantageous, as there
is no profit in selling one property to buy a similar property.
(5) Here, karta has acted as a prudent person and the alienation
made by him is for the benefit of the estate {Jagal Narain v
Mathura Das AIR 1928 All 454, similarly decided).
(6) The transaction is not for the benefit of the estate. See answer
to part (2) above.
(7) The transaction is clearly not for the benefit of the estate. See
answer to part (3) above.
Q.3 A Mitakshara coparcenary consists of Rohit, the Karta and his two
adult sons, Sonu and Monu. The family lives in Raigarh. They
have extensive coparcenary properties in the form of 40 miles
away from Raigarh. Rohit sells the land to Pawan and utitlises
the sale proceeds for the following purposes:
(i) making additions to and improvement in the family house;
(ii) discharging a debt taken by Rohit's father for gambling purpose;

and
(iii) for the marriage of Rohit's 16 years old daughter.
Sonu and Monu challenge the alienations that it is not binding

on them as they never consented to such transaction and are
not for legal necessity or benefit of estate. Decide. Also discuss
the rights and remedies of Pawan if transaction is effected.
[D.U.-2009]
A.3 (i) Application of sale proceeds for making additions and
improvements in the family home has been held to be for the
'benefit of estate' (Ramrkhpal v Bikaner Stores AIR 1966 Raj
187). Sonu and Monu could not challenge it.
(ii) A son is under a pious obligation to pay his father's debts (not
immoral or illegal) incurred when they were joint {pre-partition
debt). In the present case, Rohit's father took debt for gambling
purposes, which is illegal as well as immoral. Thus, such
alienation by Rohit is not for legal necessity or benefit of estate.

Sonu and Monu could challenge it. i) A debt incurred for the
marriage of a minor child cannot be said to be for lawful purpose,
as a child marriage is restrained by law and is opposed to public
policy (Dev Kishan v Ram Kishan AIR 2002 Raj 370). Thus, such
alienation by Rohit is not for legal necessity. Sonu and Monu
could challenge it. For rights and duties of alienee (Pawan), See
A.l.
3.4 (a) A karta of a JHF mortgaged some items of family property
representing to the mortgagee that the money was needed
for paying off actually existing family debts. But he diverted the
money for purchasing a farm-house. Minors in the family
challenge the alienation. Decide. [L.C.l- 95
(b) A JHF comprises of karta, two major sons and three minor
sons. Karta sells the family land of 5 acres in a village to X,
who was holding 95% of the village land. The market rate of
the land was Rs. 1,750 per acre but the same was sold at
the rate of Rs. 2,500 per acre. The minor sons challenged the
said alienation. Decide. [L.C./-94]
(c) A Mitakshara karta agrees to sell 2 acres of agricultural land

owned by the family at double the market price, make a gift
of a small family house to his widowed sister and mortgages
family -esidence to add apartments of first floor to increase
the family income by renting out the same. Determine the
validity of the above transactions. [LC./-
96]
,4 (a) If the alienee has made a proper and bona fide enquiry as to
the existence of legal necessity, then he is not required to see that
the money is applied to the legal necessity for which it was taken.
Thus, the alienation will be valid in such a case. Minor sons
cannot challenge the said alienation. (b) It has been held that the
transactions merely for the purpose of purchasing another property,
or for increasing the income of the family, or that the property was
fetching higher price than the market rate, cannot be said to be for
the benefit of estate {See A.2). thus, the karta, in the present case,
cannot make the
106 Family Law - II
alienation of land on the ground of 'benefit of estate'. However,

he can alienate the land with the consent of other adult
coparceners.
The position of minor coparceners is that they cannot challenge the
alienation, if made for the benefit of estate or legal necessity; but they
can challenge the alienation if it was not for the benefit of estate, etc.
(and even if the other adult coparceners have consented to it) on their
attaining the age of majority.
(c) The selling of agricultural land cannot be said to be for the
benefit of the estate, unless the karta can show that he is
investing the money in a profitable manner.
The karta can make a gift of a reasonable extent of joint family property
to a daughter or sister under varying circumstances {Guramma v
Mallappa AIR 1964 SC 510).
The transaction (mortgaging of family residence) merely for
increasing the income of the family cannot be said for the benefit of the
estate.
Q5. Dinanath and his son Amar constitute a Mitakshara

coparcenary. The family is an agricultural family. Dinanath
borrows Rs. 80,000/- from a bank mortgaging JFP. He
utilizes the amount for renovating the ancestral house, for
running it as a lodging house. Two years later Dinanath dies
in an accident. The bank seeks to enforce mortgage. Amar
contends that the mortgage is not binding on him. Decide.
Would it make any difference in your answer, if Dinanath

created the mortgage before Amar was born? [C.LC-96]
A.5 An improper alienation of JFP by the karta can be challenged
by the other coparceners. In the present case, the ancestral
business of the family was agriculture. The Karta (Dinanath)
mortgaged the JFP for a new or different business. The
alienation made by him cannot be said to be for a legal
necessity or benefit of estate. Thus, his son (Amar) can
challenge the alienation.
However, if the mortgagee bank can prove that there was actually a
need or necessity for the purpose of the business and it made proper
and bona fide enquiries as to the existence of need or necessity,
then
the alienation can't be challenged (even if the money is applied

for a purpose different from that for which the money was taken)
(See 'unoomanpersaud case).
In The Benaras Bank v Hari Narain (AIR 1932 PC 182), the
coparceners mortgaged the JFP to the bank and thus borrowed
some money which was applied for starting of a theka business
(the family had an ancestral business of mortgagors). The court
held the alienation invalid, as there was no legal necessity, and
the bank failed to make bona fide enquiries about the necessity.
An improper alienation can be challenged by a coparcener
existing it the time of alienation. An after-born coparcener can't
challenge the alienation, unless at the time of his conception there
must have existed in unexpired right among some coparceners to
challenge the alienation. Thus, if alienation is made by a father who
has sons and before all the sons die another son is born to him, then
such son can challenge the alienation. In the present case, Amar is
the only son of his father. Thus, if his father created the mortgage,
before he was born, then he cannot challenge it.
Q.6 Write short notes on the following Power of Karta to make a
gift of ancestral property/ Gift of immovable JHF property
by a father coparcener in favour of his daughter.
[D. U.-2008/2009][L. C. 1-
93/94]
Can the Karta of the Hindu Joint family make a gift of joint Hindu
family immovable property to his married daughter after 10 years of
her marriage without the consent of the other coparceners under Classical
Hindu Law? [D. U.-2008 (Supp.)j A.6 Gift of Ancestral Property
by Karta/ Gift of Love and ** Affection by Father to Daughter
The father (karta/coparcener) has power to make a gift of love and
affection of a small portion of movable JFP, Such gifts may be made
by him to his own wife, daughter, son-in-law, son, daughter-in-law
or to any other near relation. These may consist of jewels, gold, cash,
etc. Such gifts are usually made on occasion like marriage,
upanayana, mundana, birth of a child, etc. Two conditions are
necessary for the validity of such gifts: (1) It should be a gift of love
and affection, i.e., the father should stand in some relationship of
affection to the donee,
108 Family Law - II
and (2) the gift should be of a small portion of movable JFP. What
is a small portion is a relative term and has to be considered in
relation to the entire JFR
Suc h gifts (i.e. of love and affection) cannot be made of
immovable property. The power of gift is much more
circumscribed in the case of immovable property than in the case of
ancestral movable property. An immovable property can be donated
only for a 'pious' purpose by the father (Perumalakka v
Balakrishnan AIR 1967 SC 569). Pious purpose includes religious
and charitable purposes (acts of' indispensable duties,' for which
property can be alienated also), but does not include gift of love and
affection. Thus, gift within reasonable limit can be made for
'pious' purposes, e.g. feeding the poor, alms, or gift of a small
portion of immovable property for a permanent shrine for a family
idol or to an idol in public temple
There is a distinction between alienation made in the discharge
of indispensable duties and gifts of small portions of property for
pious purposes. In former, the karta's powers are unlimited, and he
may alienate the entire property. In the latter case, he can alienate
only a small portion of property.
Rationale behind gift to daughter. The meaning of 'Pious purpose^ has
been extended to cases where a Hindu father makes a gift within
reasonable limits of immovable ancestral property to his daughter in
fulfillment of an antenuptial promise made on the occasion of the
settlement of the terms of her marriage. The same can also be done
by the mother/brother when the father is dead. A daughter's place is
different from that of other females (viz. mother, daughter-in-law)
in a joint family. This is so because on her marriage, her rights of
maintenance end as she ceases to be a member of the family.
Further, unlike her brothers (coparceners) she does not get an interest
in the coparcenary property (though the position of a daughter post
2005 has substantially changed in this regard).
A gift of JFP to her by the father, therefore, is neither a
religious act nor a charitable one, but is in the nature of a
contribution of the natal family property to a member of the family,
with whom the threads of the relation remain intact even after her
marriage.1 According to
10 See P. Pradhan Saxena, Family Law II, 3," ed., p. 174 (2011).
Dharmashastras, the father, and in his absence, the brothers were under
a duty to give a portion of the property (one-fourth of the share of each
brother or a reasonable portion of the property) to her at the time of
partition/ her marriage. A refusal to do so was pronounced to be a sin
and degraded. Therefore, the father/brother could save themselves from
this degradation or sin by giving to her a portion of the property, which
in fact, means that property could be given to a married daughter also
(i.e. any time after her marriage). 1
. Since, at the time of partition or subsequent thereto, what a
daughter gets is not a share in her own right, but something out of the
share of the brother at his instance, it takes the shape of a gift.' It is
obvious that such gifts of love and affection cannot be made to other
relations (wife, intended wife, concubine, daughter-in-law, sons,
coparceners, even where it is supported by a renunciation of the Karta's
own share) or to a stranger. This rule is confined to daughters (Gauramma
v MallappaAIR 1964 SC 510; Ammathayee v Kumaresan AIR 1967 SC
569). In firpurasunderi v Kalyanaranan (AIR 1973 Mad 99), a gift in
favour of mother was held void. Similarly, the father-in-law was held
incompetent to make a gift to daughter-in-law of immovable property
at the time of the marriage!
Gift of immovable JHF property by a father coparcener in favour of

his daughter
LEADING CASE: GAURAMMA v MALLAPPA

(AIR 1964 SC 510)
[Various judicial decisions and Hindu texts recognize the validity of a
gift of a reasonable extent of JFP (immovable) to a daughter out of love
and affection under varying circumstances. This right of daughter has
crystallized into a moral obligation.
But a gift of immovable property, even to a small extent and out of love
and affection, to a relative/stranger, is not permitted by Hindu law. That
is so when 'pious purpose' is said to include religious and charitable
purposes.]
. (a) Gift to Daughter
In this case, a gift of joint family immovable property to daughter
(window) made by the father after her marriage was held valid. At the
time of making of this gift, the father had three wives,
110 Family Law - II
one out of which was pregnant and later gave birth to a son.
The" Supreme Court justified such gift by saying that it was
given in lieu of daughter's share in partition which was
recognized in ancient law.
The Apex Court analysed various Hindu Texts and decisions
of the courts on the point. In Jianappa Malyadevappa v
Chintmava [(1935) ILR 59 Bom 459] the Bombay High Court
held that under the Mitakshara'school of Hindu law, a father
/has no right to make a gift even of a small portion/of joint
family immovable property in favour of his daughter^ although
it is made on the ground that she looked after him in his old age.
The learned Judge observed: "Undoubtedly, the gift is a small
portion of the whole of the property; but, if one were to ignore
the elementary principles of Hindu law out of one's sympathy
with gifts of this nature, it would be difficult to say where the line
could be drawn, and it might give rise to difficulties which no
attempt could overcome."
I The Apex Court, however, in the present case observed:
We agree with the learned Judge that sympathy is out of place in
laying down the law. If the Hindu law texts /clearly and
expressly prohibit the making of such a gift of the family
property by the father to the widowed daughter in indigent [
circumstances, it is no doubt the duty of the Court to accept
the law, leaving it to the legislature to change the law. We shall,
therefore, consider the relevant Hindu law texts bearing on the
subject:
(i) Verses 27, 28 and 29 in Chapter I, Mitakshara,
describe the limitations placed on a father in making
gifts of ancestral estate. They do not expressly
deal with the right of a father to make provision
for his daughter by giving her some family property
at the time of her marriage or subsequently. The
right is defined separately by Hindu law texts and
evolved by long catena of decisions, based on the
said texts.
(ii) The relevant texts have been collected and extracted
in Vettorammql v Poochammal [(1912) 22 MLJ
3211., Section 7 of Chapter I, Mitakshara, deals
with provision for widows, unmarried daughters,

etc. Placitum 10 and 11 provide for portions to
sisters when a partition is made between the
brothers after the death of the father. The allotment
of a share to daughters in the family is regarded as
obligatory by Vi jnaneswara. The says: "The allotment
of such a share appears to be tndtspcnsaMy requisite,
since the refusal of it is pronounced to be a sin.
(iii) Manu says: "To the unmarried daughters by the
same mother let their brothers give portions out of their
allotments respectively, according to the class of their
several mothers. Let each give one-fourth part of his
own distinct share and those who refuse to give it shall
be degraded.", (iv) In Madhaviya, a text of Katyayana is
cited authorizing the gift of immovable property by a
father to his daughters besides a gift of movables up to
the amount of 2000 phanams a year. | Ay) These and
similar other texts indicate that Hindu law texts not only
sanction the giving of property to daughters at the time
of partition or at the time of their marriage, as the case
may be, but also condemn the dereliction of the said
duty in unequivocal terms., C (vi) Courts even
recognised, making of such a provision not only by the
father but also after his death by the accredited
representative of the family and even by the widow. The
decision in Kudutamma v Narasimhaeharyalu [(1897)
17 MLJ 528] is rather instructive. There, it was held that
a Hindu father was entitled to make gifts by way of
marriage portions to his daughters out of the family
property to a reasonable extent.}
vii) Division Bench of the Madras High Court considered the
question in Sundaramya v Seethamma [(1911) 21 MLJ
695] and declared the validity of a gift of 8 acres of
ancestral land by a Hindu father to his
112 Family Law - II
daughter after marriage when the family was

possessed of 200 acres of land. The marriage took
place about forty years before the gift Another
Division Bench of the Madras High Court in
Ramaswamy Aiyer v Vengudusami Iyer [(1899) 21
MLJ 695], held that a gift of land made by a
widow, on the occasion of her daughter's marriage,
to the bridegroom was valid. |
, In the present case, the Court observed and held: The
right was lost by efflux of time. But it became
crystallized into a moral obligation. The father or his
representatives can make a valid gift, by way of
reasonable provisions for the maintenance of the
daughter, regard being had to the financial and other
relevant circumstances of the family.
By custom or by convenience, such gifts are
made at the time of the marriage, but the right of the
father or his representative to make such a gift is not
confined to the marriage occasion. It is a moral
obligation and it continues to subsist till it is
discharged. The obligation can be discharged at any
time, either during the lifetime of the father or
thereafter. It is not possible to lay down a hard and
fast rule, prescribing the quantitative limits of such a
gift, as that would depend on the facts and
circumstances of each case. It can only be decided
by the courts, regard being had to the overall picture
of the extent of the family estate, the number of
daughters to be provided for and other paramount
charges and other similar circumstances.
The validity of the gift depends on the power of the
father to make a gift and the reasonableness of the
gift so made. If once the power is granted and the
reasonableness of the gift is not disputed, the mode or
timing of conferring gift cannot make the gift an
invalid one. The Court held: In the present case, the
gift made by the father to the daughter was within his
right and certainly reasonable. The family had
extensive properties (worth lakhs), and, the father gave
the widowed daughter only a life-estate in a small
portion of land (worth Rs. 5000). Thus, the gift to the
daughter is valid
(b) Gift to Relative
In this case, the father also executed a gift deed

in favour of a relative, in respect of immovable
property valued at Rs. 1500. The gift was made
in token of love for the services rendered by
the donee to the donor during the latter's
lifetime. The gift was made, as it was narrated in
the document, out of love and affection for the
donee. It is contended that the said gift was for
pious purposes" and, therefore, valid in law.
The issue
arose: Can it be said that a gift of this nature to a
relative out of love and affection is a gift for "pious
purposes" within the meaning of that expression in
Hindu law? ,
In Mitakshara [Chapter 1, Section 1, v. 28],
it is stated: "Even a single individual may
conclude a donation, mortgage, or sale of
immovable property, during a season of
distress, for the sake of the family and
especially for pious purposes.",
,In support of his contention that pious
purposes include a 'charitable' purpose besides a
'religious purpose,', /learned counsel relies upon
certain passages in Mukherjea's Hindu Law of
Religious and Charitable Trust 2nd Edn., p.
12: "In the Hindu system there is no line of
demarcation between religion and charity. On
the other hand charity is regarded as part of
religion.... All the Hindu sages concur in holding
that charitable gifts are pious acts par
excellence, which bring appropriate regards to
the donorA
The Apex Court, in the present case,
observed: It may, therefore, be conceded that the
expression "pious purposes" is wide enough,
under certain circumstances, to take in charitable
purposes though the scope of the latter purposes
has nowhere been precisely drawn. But what we
are concerned with in this case is the power of a
manager to make a gift to an outsider of a joint
family property. The scope of the limitations on
that power has been fairly well settled by the
decisions interpreting the relevant texts of
Hindu law%
,The decisions of Hindu law sanctioned
gifts to strangers by a manager of a joint Hindu
family of a small extent of property for pious
purposes. But no authority went so far, and none
has been placed before us, to sustain such a
gift to a stranger however much the donor was
beholden to him on the
114 Family Law - II
ground that it was made out of charity. It must be remembered

that the manager has no absolute power of disposal over joint
Hindu family property. The Hindu law permits him to do so
only within strict limits. We cannot extend the scope of the
power on the basis of the wide interpretation give to the words
"pious purposes" in Hindu law in a different context. In the
circumstances, we hold that a gift to a stranger of a joint
family property by the manager of the family is void
LEADING CASE: R. KUPPAYEE V RAJA GOUNDER
[(2004) 1 SCC 295]
[The father can make a gift of ancestral immovable property to his

daughter within reasonable limits. He can make such a gift at the
time of her marriage or even long after her marriage. A gift of
one-twenty-sixth share of the total holding of the family cannot be
held to be either unreasonable or excessive under any
circumstances.].
In this case, the father had executed a registered deed of settlement in
favour of his married daughter and had delivered possession to her. Later,
he himself wanted to vitiate the g, settlement. He took the ground that
this being a joint family property, he was incapable of making a gift in
favour of the daughter and even if he were so capable, the gift was bad
as it was not of a small portion.!
( The issue was whether the gift/settlement made by the
father in favour of his married daughter out of natural love and
affection of a reasonable extent of immovable property (one-
twenty-sixth) out of the joint family property is valid The trial
court held that since the property in dispute was ancestral in
nature, the respondent father had no power/authority to make
a gift of a part of the ancestral property in favour of his
daughter. The High Court also took the similar view.
The Supreme Court, however, upheld the validity of the
gift. The Apex Court held that the father can make a gift of
ancestral immovable property to his daughter (a pious purpose)
within reasonable limits. Though the alienation must be by an
act inter vivos and not by Will, but the extended meaning given
to the words "pious purposes" enables the father to make such
A gift of JFP at the time of her marriage or even long after her
marriage. However, the extended meaning has not been extended )
the gift made in favour of other female members of the family
• The question as to whether a particular gift is within
reasonable limits or not has to be judged according to the status f
the family and the extent and value of the property gifted, limply
because the gifted property is a house, it cannot be held that the
gift made was not within the reasonable limits. If a gift vas not
within reasonable limits, such a gift would not be upheld as
gift. No hard and fast rule prescribing limits of such a gift can be
laid down. It was for the respondent to plead and prove that the
gift made by the father was excessive or unreasonable, keeping
in view, the total holding of the family, n the present case, one-
twenty-sixth share of the total holding of the family cannot be
held to be either unreasonable or excessive under any
circumstances.
"
5 Pious
Obligation of a Son
Liability of a Son to Pay Debts of His Father1

The doctrine m pious obligation of sons to discharge the personal d of
the father is peculiar to Hindu law (Smritis). The basis of it is
spiritual benefit which will accrue to the soul of the father by
discharge of his earthly obligations. It may be noted that under Hi
law, there is a special emphasis on the payment of one's debt
necessary for the salvation of the soul. ,
The doctrine is not intended in any sense for the benefit of
creditor. He who having received a sum lent or the like does not re
it to the owner will be born hereafter in his creditor's house, a
slave a servant, a woman, or a quadruped" (a text of Brihaspati).
Thus, emphasis was not that the creditor should get his due, but
that father should not incur the wrath of a destiny that may see
him living the life of bondage and drudgery.
Thus, the liability does not arise from contract (ex contractu)
depends upon the relationship between the father and the son. No
other relative (brother, uncle, father, wife, etc.) is under an
obligation to his debts even though the father dies as an undivided
member coparcenary. When a brother as a Karta contracts debts,
the doc of pious obligation has no application and the other
members of the family are bound only when the debt was for legal
necessity or for the family's benefit [Kolasani Sivakumari v
Kolasani Sambasiva, '. AIHC 2512 (A.P.)].
1. Write a note on: 'Pious obligations of a Hindu son to repay debts of father
[D.U.-
[116]
P ious Ob lig a t io n of a Son 117
A son (as well as grandson and great-grandson) is under a

pious obligation to pay his father's debts (not immoral or
illegal) incurred
they were joint (pre-partition debt), and his obligation continues
after a partition between them,2 but is limited to his share in the
thus, the liability is not personal). It cannot and does not bind the
ate property of the son. These debts bind only the undivided
share
JFP (thus the liability is not personal) It cannot and does not
bind the separate property of the son in the coparcenary
property. The son, however, is not liable for a debt contracted
by the father after partition.
The obligation exists whether the sons are major or rriinor,_or
Ker the father is alive or dead. The liability exists even during
the
:r's life-time (then, both son and father will be liable), and
subsists
ng as the father is liable. Th.us, for a time-barred debt or when the
;r is adjudicated insolvent, the son is not liable. (u)
jThe father in a HJF may sell or mortgage the whole of JFP
luding the son's interest therein), to discharge a debt contracted
by
for his own personal benefit. The father, therefore, has special
ers to alienate the JFP to pay his antecedent debts. The
coparceners lot prevent him from doing so; the only remedy they
have is to ask partition. If they separate under a partition, then their
shares cannot touched by the father to repay his own debts.' -
Such alienation will bind the sons provided that:
(i) the debt was antecedent to the alienation;
(ii) the debt was not incurred for an immoral purpose (untainted
debt),3 and; (iii) the father acted like a prudent man, and did not
sacrifice the property for an inadequate consideration! [Prasad v
Govindswami Mudaliar (1982) 1 SCC 441].
A partition effected soon after taking debts by the father, has to be

examined, as to whether it was effected fraudulently, so as to defeat the
rights of the creditors, or was a genuine partition. Even if it was a bona fide
partition, the sons cannot escape the liability of payment of their father's
debts {Panna Lai v Naraini AIR 1952 SC 170).
It may be noted that where the son inherits the property of the father, he
can be compelled to pay the debts of the father from out of that property. In
such cases, the character of debt is immaterial i.e. it does not matter that it
was incurred for illegal or immoral purposes.
118 Family Law - II :
An 'antecedent debt' is one which is antecedent in fact as well

in time i.e. the debt must be truly independent, and not part of the
transaction (alienation) which is impeached. It means a debt that is
prior in time to the present alienation of property by the father for
the payment of that debt (a liquidated or ascertained sum of money).
Thus it implies an indebtedness of the father- prior in time to, and,
independent in origin of, the particular dealing with the family
property, whether way of sale or mortgage, which it is sought to
enforce against the son.
Antecedent debt need not be for legal necessity or for the
benefit of the estate. It may be even for a new business started by
the father or it may even be for his own personal benefit. It may be for
liabilities incurred by the father viz. the liability for mesne profits or
for torts committed by him in relation to the property (Kashiraim v
Collector parganas AIR 1958 Cal 524).4
Avyavaharika Debts
An 'immoral or illegal' (avyavaharika or 'adharmic') debt is
"repugnant to good morals". It includes all debts which the court
regards inequitable or unjust to make the son liable. According to
Hindu text the sons are not compellable to pay debts incurred for: (i)
losses at play (ii) alcoholic drinks, (iii) promises without
consideration, (iv) promises made out of lust, etc., (v) suretyship,
or (vi) fines or bribes
The son is not liable to pay debt incurred by the father in the
circumstances which would render the father liable to a criminal
prosecution; but he is liable for money which the father has to
account in a purely civil capacity. Where the father's act which
give rise t debt is a mere tort or breach of contract, the debt, is not
avyavahari and the son will be liable for it. However, a debt
contracted by father to fight litigation against the son himself, to
defeat the legitimate rights of the sons is held to be avyavaharika
(M. Veraghaviah v M Chini Veeriah AIR 1975 A.P. 350).
Avyavaharika does not mean debts contracted due to lack
prudence, lack of good managerial skills or negligence [Khalilul Rahn
4 'The father's power to alienate the joint family property to pay his
antecedent debts, goes contrary to the whole theory of limited
permissibility of alienation of the coparcenary property, to be exercised in
special cases only' Discus
Pious O b l i g a t i o n of a Son 119
v Govind Persuad (1893) ILR 20 Cal 328], It is not every

impropriety or every lapse from right conduct that stamps the
debt as immoral. The son can claim immunity only where the
father's conduct is utterly repugnant to good morals, or is
grossly unjust or flagrantly dishonest. It may be noted that a
'time-barred debt' is not avyavaharika.
To examine whether a debt is avyavaharika or not, the
relevant time is the inception when the loan is raised. If the
debt, in its inception is not immoral, subsequent dishonesty of
the father does not exempt the son. Therefore, where receiving
money was not a criminal offence, a subsequent
misappropriation by the father would still bind the son, unless
the misappropriation was done under circumstances that rendered
the act criminal [Chhakauri Mahton v Ganga Prasad (1912)
ILR 39 Cal 862]. Further, where the father, in his capacity as a
secretary of a school committee, received government grant for
school purposes, and, he deposited a part of the money in a
fixed deposit and another in his own account, which he
misappropriated and then died, it was held that the drawing of
money for unauthorized purposes amounted to a criminal breach
of trust and it was not binding on the sons to pay it; but, there
was also a civil liability for the money that was received by the
father, but was never accounted for, the sons were liable for
paying that amount [Toshan Pal Singh v District Judge, Agra
(1934) 61 IA 250].
Where at the time of partition between two brothers, one
brother undertook to hand over a promissory note to the other,
in exchange of a loan, but failed to do it deliberately and
wrongfully, forcing the other to take the matter to the court, it
was held that the former was liable to pay the money due and
passed a decree against him. Such decree was binding on his
sons also, as at the time when the amount was taken by him, it
was lawful. His subsequent act of wrongfully not returning the
money was an 'illegal and improper act.' The debt, therefore,
was binding on his sons [Hemraj v Khem Chand (1943) ILR
All 727].5
Burden of Proof
.The burden of proof that the debt is 'tainted' is not on the
creditor, but on the son. If the sons wanted to escape the
liability of payment of their father's tainted debts, they had to
prove not only that the debt was for immoral, illegal or
improper purposes, but also that the creditor or
5. See P. Pradhan Saxena, Family Law II, 3d ed., p. 199 (2011).

120 Family Law - II
purchaser had knowledge of the fact that it was for such purposes or
was avyavaharik. The burden of proof is, thus, heavy tor the son. J
Inhere the sons could only establish the immoral character of the
debt, and were not liable to establish knowledge on the part of the
creditor (alienee), they could not escape the liability {Luhar Amrit Lal
Nagji v Doshi Jayantilal Jethalal AIR 1960 SC 964)So, while the
payment of avyavaharik debts does not bind the sons under the
Dharmashastras, it could nevertheless bind them unless they could
come up with strict proof of notice on the creditor's part. This is the
result of the court's emphasis on the rights of the creditors to have their
money back.
Thus, a religious duty has been converted into strict secular liability
by the courts. 'Pious' and 'obligation' signify the performance of it by
the son through a conscious voluntary decision, taken due to the special
relationship of father and son, to spiritually benefit his creator and no
outsider (viz. creditor) would have any role to play in it. A 'pious' or
'religious' obligation has a sanctity attached to it, and if it is imposed
on a person by a third party by a formal attachment and sale of
property, it gains a coercive element. The payment of one's father's
debts is no longer a pious obligation, but has been turned into a strict
legal liability.
Abolition of pious obligation of son to pay debts of father

I After the commencement of the U.S.A. (Amendment) Act, 2005, no
court shall recognize any right to proceed against a son, grandson or
great-grandson for the recovery of any debt due from his father,
grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to
discharge any such debt. .
, Provided that in the case of any debt contracted before the
commencement of the H.S.A. (Amendment) Act, 2005, the creditor
shall have a right to proceed against the son, grandson or great-grandson
[born or adopted prior to the H.S.A. (Amendment) Act, 2005]; or, any
alienation made in respect of or in satisfaction of, any such debt, such
right or alienation shall be enforceable under the rule of pious obligation
[Sec. 6(4)].
Piou s O b li g a t io n of a Son 121
One of the features of classical Hindu law that imposed upon a

grandson or great grandson the liability to pay their father's debts
Pious obligation of son'), has been abrogated by the 2005
amendment. At to the present, the repayment of debts contracted by
any Hindu would be personal responsibility and the male descendants
would not be liable to the creditor. Only the debts contracted before
the enforcement of the amendment are subject to the rules of
classical Hindu law. The subclause is prospective and thus the
liability of son, grandson, etc. under Pious obligations for debts
contracted before the Act of 2005 continues.
Partition and Reunion
*
Meaning of Partition
Partition means numerical division of property, and bringing the joint
status to an end. On partition, the joint family ceases to be joint,
and nuclear families or different (new) joint families come into
existence ^Partition means fixing the share of each coparcener,
which was not fixed before the partition as the coparceners hold the
coparcenary property as one/common unit. Partition implies 'the
crystallization o the fluctuating interest of a coparcenary into a
specific share in the JFP." Thus, partition is a process whereby
joint tenants become tenants in-common
It may be noted that there can be no partition unless there are
a least two coparceners because then only there would be state of
jointness amongst coparceners which shall cease by partition. A
partition is no merely the division of the family, but in essence, it
is the disruption o the undivided coparcenary in a joint family. That
also means that unless and until a coparcenary within a family
exists, a partition cannot be effected
Partition v Family Arrangement - After partition, two coparceners
may; hold the property jointly without affecting the status of
property. A joint family may make an arrangement for convenience
sake under- which the coparceners divide the property, while
remaining joint. Even a sole surviving coparcener may make such
arrangement; he can separate himself from the family after making
due provisions for the female members. In this way, he can
absolve himself from the responsibilities
[122]
Partition and Reunion
of managing the joint family. A 'family arrangement', though recognized

as valid and enables a coparcener to maintain a status distinct from the
rest of the joint family members, is not the same thing as a 'partition.' A
'family arrangement' is a unique permissible concept (may be oral, but
legally enforceable) whereby the members of the family may come to a
consensus based on an agreement for allocation of JFP for maintenance
of the members, or for defraying marriage expenses of the
daughters/children in the family or for other legitimate purpose viz.
payment of family debts, etc. It can also be in the nature of compensation
to a member who takes a lesser share than what is due to him. Where
as per a family arrangement a specific portion/share in the property is
allocated to a person (even a non-family member), such person acquires
a right in the JFP and becomes competent to ask for its partition
(Zaheda Begum v Lal Ahmed Khan AIR. 2010 A. P.1
A 'family arrangement' can be oral; however, where it is written,
it is not required to be registered (unlike a 'partition').
De Jure and De Facto Partition1

Under the Mitakshara School, partition means two things:
(i) Severance of status or interest (de jure). This happens when
the community of interest (joint ownership of coparcenary) is
broken, either at the instance of one of the coparceners or by a mutual
agreement among all the coparceners. The shares
(extent of ownership) become clearly specified or demarcated, and are
no longer 'probable' or 'fluctuating', with no scope of the
application of the doctrine of survivorship..
(ii) Actual physical division of property in accordance with shares
so specified, known as partition by metes and bounds (de
facto). This happens when the unity of possession (common
possession and enjoyment of property) is broken. It may be no
noted that even after a de jure partition, the coparceners may
enjoy JFP with unity of possession e.g. living in the joint family
house. It is only after the de facto partition, the 'one-half'/ 'one-
third' share (as fixed by the de jure partition) becomes the
exclusive share (i.e. exact portion of the JFP) of a coparcener..
1 Distinguish between a de facto and a de june partition? [D.U.-

2011]
124 Family Law - II
Thus, according to Mitakshara law, partition has two distinct

meanings: Firstly, it means the severance of the joint status with the legal
consequences resulting therefrom; Secondly, it means the adjustment into
specific shares the diverse rights of different members according to the
whole of family property.( Existence of coparcenary is essential but
existence of joint property is not essential for demanding partition in
Mitakshara school. Where there is no joint property to divide, there can be
partition by the simple declaration (of intention to sever) for a partition
merely indicates 'state of mind.
«A partition, strictly speaking, is complete by the severance of
status i.e. de jure partition. The de facto partition (or allotment of
shares) may or may not follow and the members may continue to hold the
property in joint possession as tenants-in-common Thus, partition by
metes and bounds is not a must for completing the process of partition.
Whether the property is divided physically or not, affect only the mode of
its enjoyment and management and not the nature of its tenure.
Ljhus, partition does not mean simply division of property into
specific shares; it basically means severance of status or interestjAll that is
necessary to constitute a partition is a definite and unequivocal indication of
intention by coparcener to separate himself from the family. -This is unlike
Dayabhaga school, where partition means division of property in
accordance with the specific shares of the coparceners.)
The de jure partition is a matter of "individual/bilateral" decision, the
desire (intention) to sever himself and enjoy his hitherto undefined and
unspecified share separately from others; the de facto partition is a
consequence of one's declaration of intention to sever but which is a
"multilateral" action, arrived by agreement, arbitration or suit.
Subject Matter of Partition
For a partition, the property should be a coparcenary property; the
separate or self-acquired property of a coparcener cannot be the subject
matter of partition amongst all the coparceners in the family,
Partible and Impartible Properties
Some properties of a joint family could be easily divided while others are
incapable of division e.g. dwelling house, elephant, wells, books, clothes,
ornaments, stair-cases, family shrines, temples and idols, etc.
Partition and Reunion 125
In trying to divide them, either their intrinsic value is lost, or is

substantially diminished, or the property itself would be destroyed.
Thus, a basic rule of partition is that if property can be partitioned
without destroying the intrinsic value of the whole property or of the
shares, such partition ought to be made. Otherwise, certain rules should
be observed at the time of partition. |
, In such cases 'equitable division' is resorted to. It is important to
note that the previous enjoyment of a JFP by a coparcener is
irrelevant at the time of partition. A coparcener might be having an
exclusive control/occupation of a particular JFP (e.g. vehicle, portion
of a house), but that fact would not give him a better claim over that
portion. This rule applies even in those cases where a coparcener
substantially improves his portion, but without the consent of, or in the
absence of an agreement with the other coparceners.}
An impartible estate (which devolved by a custom, or a grant,
etc., for example, a raj or municipality) may be enjoyed by coparceners
turn
by turn, assets like well/stair-cases, temples/idols may be left for
common use, and properties like elephant may be allotted to one
coparcener and others compensated for the same, or in the alternative,
may be sold and proceeds distributed. Where no balancing is possible
due to the difference in the value of the properties, then such items
can be allotted to one person, while the other is given a compensation
in terms of money equivalent ('principle of owelty/ equality of
partition').
In M.L. Subbaraya Setty v M.L. Nagappa Setty (AIR 2002 SC
2006), the court observed: If the JFP consist of movable and immovable
properties then each party must necessarily be given a share in all
movable and immovable properties. However, while effecting partition
of JFP, it may not be possible to divide every property by metes and
bounds. The allocation of properties of unequal value may come to the
share of a member of a joint family at the time of effecting partition but
for that necessary adjustments have to be made. It can also happen that
some of the co-sharers on partition may not get any share in immovable
property. No hard-and-fast rule can be laid. It depends upon the facts
of each case. It depends upon the nature of the immovable property and
number of such properties as also the number of members amongst
whom it is required to be divided. Properties of a large value may go
to one member. Property of lesser value may go to another. What is
necessary, however, is the "adjustment of the value" by providing for
126 Family Law - II
payment by one who gets property of higher value. In short, there has
to be 'equalization of shares.' The property allotted to each co-sharer
should bear approximately the same value as corresponds to his share.^
(The rule that a dwelling house should not be partitioned is not
sacrosanct. A partition of a dwelling house will be decreed if insisted
on but the court will (if possible) try to effect such an arrangement as
will leave it in the hands of one or more of the coparceners. If no
agreement is agreeable which is equitable, the dwelling house may be
sold and sale proceeds divided among the coparceners. It may also be
noted that the Legislature may also render certain property indivisible
for some social cause e.g. prevention of fragmentation of holdings. In
such a case, the court will first see whether the partition is permitted
or prohibited by legislature, j
Deductions and Provisions
Before the division can take place, out of joint family property, provisions
should be made for certain liabilities of the family. It must be noted
that although the ownership of the coparcenary property is with the
coparceners only, the right to possess and enjoy it is held by all the joint
family members (including non-coparceners). This is called 'Adjustment
of claims before partition of property
i(a) Debts - debts taken by karta for a purpose binding on joint
family; untainted personal debts of father, when joint family
consists of father and sons (no provisions have been made in
Hindu law for individual debts of coparceners)^
(b) Maintenance - of the following members:
(i) Disqualified coparcener and their immediate dependants,
(ii) mother, step-mother, etc.,
(iii) illegitimate sons,
(iv) unmarried sisters, till they are married,
v) widowed daughters of deceased coparceners^
2 While effecting partition of joint family properties, whether it is possible to

divide every property i.e. movable or immovable by metes and bounds?
Discuss.
P ar ti ti on and R euni on 129
,(b) In Bombay school, the son has no right to partition without the
assent of father in some situations,
(c) Father's right to partition is superior to that of all others, he can
not only effect a partition between himself and his sons, but
can also impose a partition on his sons inter se. This power of
father is a part of the Patria Potesta (Paternal power) that
was recognized by Hindu law. A grandfather does not have a
similar power to effect a partition among the grandsons
the following persons have a right to partition and entitled to a share
on partition:-
(1) Father - In exercise of this power (either severance of status
or actual partition by metes and bounds), the consent of sons
is immaterial Mttlan Chand v Kanchhendillal AIR 1958 M.P.
304) However, father's special power is not without restrictions.
He must act bona fide. If division made by him is unequal or
fraudulent or vitiated by favoritism, partition can be re-opened
Gurusami v Jayaraman AIR 1996 Mad 212). If all the
coparceners agree to such an unequal division it will then operate
as family arrangement^
Further, the father can't exercise this power by Will except with the
son's consent. Thus, he can divide his sons during his lifetime but not
by his Will after his death unless his son consents to it. Still further, the
father cannot effect partial partition amongst his sons without their
consent.
With respect to a minor's share, the father retains his control as
his guardian. However, after a partition, the minor's share would constitute
his separate property, and the father would have no power to alienate
it except with the court's permission. It may be noted that a minor
coparcener cannot avoid a partition effected by his father, till he attains
majority: then, he can repudiate it.
(2) Son, grandson and great grandson - They have a right to
partition. But, in Bombay school the son has no right to partition
without the assent of father, if father is joint with his own
""father, brothers or other collaterals. If the father is separate
from them, then son can ask for partition [Apaji v Ramchandra
(1892) 16 Bom 29 (FB)]. Under Punjab customary law also
sons have no right to partition against their father (here, sons
do not have a right by birth in the property held by the father). ,
130 Family Law - II
Son conceived at the time of partition but born after partition -

The Hindu law has for many purposes equated person in womb
to a person in existence. If pregnancy is known, the partition
should be postponed till the birth of child, but if coparceners do
not agree to this, than a share equal to share of a son should be
reserved. In case, no share is reserved for a son in womb, he can,
after his birth, demand re-opening of partition. If pregnancy is not
known and so the share is not reserved, then also the after-born son
can get partition reopened. Thus, an 'after-born' son can take a
share equal to the share of another son.
Son begotten and born after partition
The right of such a son depends upon whether his father has taken a
share for himself at the time of partition from his sons. When the father
has not taken a share for himself, the after born son has a right to get
partition reopened (this includes the acquisitions made to the property after
the earlier partition)The rule applies, like the former, to a partition
between father and sons. For example, a coparcenary consists of a
father A and his two sons B and C. Partition takes place. Subsequent to
the partition, another son D born to A, and a son BS is born to B. If A
hasn't taken the share, D can get partition reopened. But BS has no
such right.
When the father has taken or reserved a share for himself, the
after born son becomes a coparcener with his father (however, such a
child cannot become a member of the joint family that was disintegrated
before his birth). Such after born son is entitled to have the partition
reopened, but in lieu thereof he is entitled, after the father's death, to
inherit not only the share allotted to the father on partition, but also the
separate property of the father. It is to be noted that if there are other
sons to father which have separated from him, then they can also claim a
share or inherit father's (separate) property along with undivided (after
born) son (Sec. 8 of H.S. Act makes no distinction between separated
sons and undivided sons in the matter of succession to the separate
property of Mitakshara Hindu).
[Note - Where a coparcener renounced/relinquished his interest in JFP,
then a son begotten after his renunciation can't claim status of a
coparcener, as his father can no longer be regarded as a member of
coparcenary.]
P a r t i t i o n and R e u n i o n 131
(4) Adopted son: Adopted son has the same right of partition. Also,
*"* if after his adoption, a son born to father, then also shares of
adopted son and natural born son will be equal (Sec. 12 of Hindu
Adoptions and Maintenance Act, 1956). Since the passing of this Act,
the law relating to adoption has been modified and clarified)
[Under the Dayabhaga law, in Bengal, if a son born, after adoption of
a son, then adopted son get only 1/3 of the estate; and in Benaras - 1/
4, and in Bombay and Madras - 115 of the estate.]
(5) Minor coparcener - In partition, the right of minor coparcener is
same as that of major coparcener. However, a minor is a person of
immature intellect and the court acting as parens patriae has the duty
to protect minor's interests. Thus, if a Katra is squandering JFP to the
prejudice of minor coparcener or if he is ill-treating him, the minor's
guardian or the next friend of guardian may file a suit for partition on
minor's behalf (The severance of status takes place from the date of
institution of suit). And the court has to see whether partition is for the
benefit of minor or not; if it is not for his benefit then partition will not
be allowed. It may be noted that a suit by a major coparcener itself
brings about the partition.
(6) Absent-coparcener - When coparcener is absent at the partition
time, a share has to be allotted to him. In case, no share is
allotted to him, he has a right to get partition reopened..
7) Alienee - A purchaser of a coparcener's interest in a court sale,
or in a private sale where the coparcener has such a power
(Bombay, Madras and M.P.), can demand partition. Thus, a
partition can be demanded in certain situations by an alienee or
a purchaser, in the execution of a court's decree of the undivided
share of a coparcener In States where a coparcener is not
permitted to alienate his share, if he contracts a debt and the
debtor brings a decree against him, the purchaser of his share
in execution of the money decree, is also entitled to demand a
partition and ascertain his share.
(8) Daughter - A daughter can claim a share equal to the son in a
partition (after the 2005 Amendment Act). She can now also
demand a partition like a son.
132 Family Law - II
. The right of the married daughter to demand a partition of the

coparcenary property after the amendment of 2005 is absolute and not
subject to any rider [Ganachari Veeraiah v Ganachari Shiva Ranjani
AIR 2010 NOC 351 (A.P.)]- Even if she converts to Muslim religion
after her marriage to a Muslim man, the right to ask for partition of
coparcenary property cannot be defeated. Regarding her succession
rights (relatable only to separate property of her father) she has to wait
till his death,
. Persons Entitled to a Share on
Partition5
There is another category of
members of the joint family who have no
right to partition but, if partition takes place, they are entitled to share It
may be noted that all coparceners, whether major or minor, are
entitled to get a share at the time of partition After-born or adopted son
can get a share even later. The position of other coparceners is as
follows:
. (1) Son born of a void/voidable marriage: Such a child is a legitimate
child of the parents and is statutorily entitled to inherit their
separate property; but he cannot inherit from any other relation
of the parents. Thus, he cannot inherit the property of the
brother who is a legitimate offspring of the father. For example,
if father had two wives (one legitimate, another illegitimate) and
a son from both, the son of illegitimate wife cannot inherit
from the son of legitimate wife.
The rights of such a child are better than those of an illegitimate child,
but inferior to those of a child born of a valid marriage. This 'statutory
legitimacy' is therefore, different from a 'perfect legitimacy.' A perfectly
legitimate child would not only inherit the separate property of the
parents, but would also have a right by birth, in the coparcenary property.
.A statutory legitimate child would be entitled to inherit the property of
the father, but would not be a coparcener with him (Shantaram v
Dugubai AIR 1987 Bom 182) and would not get a share at the time of
partition. In other words, he is not entitled to seek partition during the
lifetime of the putative father; it is only after the father's death, he is
entitled to a share on partition.
5. Who are the persons entitled to a share on partition of JFP? [LC./-95]

(2) Illegitimate son: It falls under two categories - (a) the dasiputra
— or a son born to a concubine, pennanently kept by a Hindu, (b)
an illegitimate son born of a woman who is not a dasi.
An illegitimate son of both categories is not entitled to
partition, as he is not a coparcener. He is however entitled to
maintenance out of the joint family funds of the putative father's
joint family [Vellayappa v latarajan (1931) 58 IA 402]. It may be
noted that an illegitimate son inherits only from the mother and
not from the father. .
Among Sudras, a dasiputra has a superior position. A
dasiputra does not acquire by birth any interest in JFP, he is thus not
a coparcener and has no right to partition against his father.
However, the father can give him a share (even equal to share of a
legitimate son) during his lifetime, but that depends upon the father's
discretion. There can be no share at all.
If his father dies while in joint family, he can't claim partition
(and entitled only to maintenance). But, a dasi son can get a share
from his father's separate property. But his share would be only
one-fourth to that of a legitimate son {Kamulammal v
Visvanathaswami AIR 1923 PC 8). In other words, on the father's
death, a dasi son will be a coparcener with the brother and has a right
to ask for a partition and to get a share equal to one-fourth of the
latter's share. If the brother dies before a partition has been effected,
the dasi son would take the whole of the property under the doctrine
of survivorship.
(3) Disqualified coparceners: Persons suffering from any defect *-
which disqualifies them from inheriting are equally disentitled to a
share on partition. Various grounds of disqualification were
recognized by Hindu law viz. congenital and incurable blindness,
idiocy/insanity, deafness and dumbness, virulent and incurable
leprosy, and other incurable diseases that made sexual intercourse
virtually impossible]|AU these grounds with the exception of
congenital lunacy or idiocy have ceased to exist as part of the
Mitakshara law by virtue of the Hindu Inheritance (Removal of
Disabilities) Act, 1928j It may be noted that these prohibitions are
purely personal and do not extend to the legitimate issue of the
disqualified person. Further, if a member of the family has no
congenital (i.e. by birth) disqualification, but later becomes insane,
he will not be deprived of his interest.
134 Family Law - II
Position of Female Members6

No female has a right to partition, but if partition occurs, there are
certain females who are entitled to a share viz. father's wife, mother
and paternal grandmother. This rule is applicable m all the sub-
schools of Mitakshara, except the Dravida or Madras School where no
female gets a share at the time of partition
Unlike in the case of a coparcener, where a severance of status
is enough, and his subsequent demise would not disentitle his legal
representatives to claim his share, for females, the entitlement to take
a share arises only when not merely a severance of status among the
coparceners, but a partition by metes and bounds takes place. If a
partition takes place and she, though entitled, is not given a share, only
then is she empowered to reopen the partition and claim her share. If
she dies before a partition has been effected, her share does not pass
to her legal representatives, but remains in the common pool as the
JFP.7
- Mother and wife are entitled to maintenance, this doesn't mean
they are not entitled to a share on partition. But on getting a
share, their maintenance rights are affected.
- No provision of U.S. Act affects, adversely, her right to
take a share on partition.
- Whenever father's wife or widowed mother is given a share on
partition and she has also received stridhan from her
husband or father-in-law, her share will be subject to
deduction to the extent of the value of her stridhan.
- The share vested in her, on partition, becomes her absolute
property (and not limited or women's estate, as prior to H.S.A.,
1956) (Sec. 14, H.S.A.) and after her death it devolves on her
own heirs.
. (1) Father's wife - On a partition between her husband and her
son, the wife is entitled to a share equal to the share of a son.
She can hold it and enjoy it separately (If there are more than
one wife, as permitted before 1955, each wife is entitled to
a
6. Discuss whether a female can get a share if a partition of the JFP takes place
under the classical law. [D.U.-
2011]
7. See P. Pradhan Saxena, Family Law II, 3'" ed., p. 241 (2011).
share equal to the share of son). If no share is allotted to her, she can
get the partition reopened
(2) Mother - A widowed mother has a right to take share equal to

that of a son, if partition occurs among the sons. This right accrues to
her only when partition by metes and bounds is made. (Mother and
step-mother each take a share equal to the share of a son) If there are
two sons, and before partition, one son dies, the other son becomes
the sole surviving coparcener and will take the whole property (no
partition can take place unless there are two coparceners).
(3) Grandmother - The paternal grandmother and step grandmother

are entitled to a share on partition. When partition occurs between her
grandsons, her son being dead, she gets a share equal to the share of a
grandson When partition occurs between her son and sons of a
predeceased son, she gets a share equal to that of grandson. When
partition occurs between her sons and their sons, then according to
Allahabad and Bombay High Courts, she is not entitled to a share, but
according to Patna and Calcutta High Courts, she is entitled so.
(4) Coparcener's widow - Under the Hindu Women's Right to

Property Act, 1937, in respect of separate property, the widow
(intestate's own widow, his son's widow and his grandson's widow)
took a share equal to the share of a son, and in default of the son, took
the entire property. If there were more than one widow, then all of
them together took one share.
In case of a JFP, the widow of a deceased coparcener took the same

interest in property which her husband had in JFP at the time of the
partition.
Example - If A dies, leaving behind his separate property and his own
widow, son's widow and son's son's widow - each of the widow
will get 1/3 share. If A dies, leaving behind 2 widows and 2 sons,
each son will get 1/3 share, while each widow will get 1/6 share (both
widows together taking 1/3 share).
When two or more widows succeed to property of their husband,
each widow has a right to partition (with or without the consent of
others) and put an end to the joint status. Even when a father's widow
succeeds along with her son (i.e. widowed mother), she has a right to
partition.
136 Family La w - II
However, a partition made at the instance of a widow is entirely different
from that made at the instance of a coparcener. In such a partition, the severance of
status doesn't occur. The female gets her share ascertained, and her share is
separated, while the family continues to be joint. She was given the same power of
partition as any coparcener had, but thereby she didn't become a coparcener.
The interest of the widow does not arose by inheritance or by survivorship
but by statutory substitution i.e. her interest in coparcenary property in place of her
husband. Thus on the death of coparcener there is no dissolution of coparcenary so
as to carve out a defined( interest in the favour of widow in coparcenary property.
Her interest was subject to all incidents of coparcenary interest
If she didn't ask for partition, her interest was subject to fluctuations and on her
death, passed by survivorship to other coparcener:
(reversioners).
How Partition is Effected {Mode of Effecting Partition)

There are two necessary conditions of partition, which bring about a
severance of the joint status or interest:
(a) Formation of an intention to separate,
(b) Declaration of an intention to separate
The declaration involves the expression of intention plus communication of
the intention to sever and, it is the declaration of intention that actually
sever status The form of expression will vary depending upon the facts and
circumstances of each case. It can be verbal or in writing, through an
informed letter or a formal notice {Girija Bai v Sadashiv Dhundiraj AIR
1916 PC 104).
The formation and declaration of intention must be clear and
unambiguous e.g. T do not wish to continue as a joint family member
anymore, so hand me my share.' What is essential is that the unequivocal
communication of intention must be the conscious and informed act of
the coparcener. A statement by a coparcener of what his share in the
property is does not amount to such communication of- intention to
sever (Indranarayan v Roopnarayan AIR 1971 SC 1962). Similar would
be the case when there is a casual statement by the son that he is not
interested in his father's estate {Sushil Kumar v Ram Chandra AIR
1982 All 129). Likewise, a request by one coparcener to the Karta, to
P a r t i t i o n and R e u n i o n
137
Hand over his share to his widow on his death does not amount to partition.
^The demand of partition being a personal right, it cannot be delegated
in favour of anyone. For example, where the wife of a coparcener demands a
partition from the Karta, but no confirmation comes from the coparcener
himself, there is no severance of status, but a third person can be used as a
channel for communicating this intention.8
Presumption - If the status of family is in question, the presumption, always,
in favour of that family is undivided one i.e. joint family.
(Merely because one member severs his relations with others, there is
no presumption that there is a severance between other members. Also, a
joint family may make an arrangement for convenience sake under which the
coparceners divide the property, while remaining joint. But, if a family
transfers all its assets to a limited company, and all coparceners of the family
secure equal number of shares in company, it amounts to severance of status.
Often in revenue cases, a joint family may make a fake or notional partition
to avoid taxation.
Mere fact that the parties are living separately and cultivating land
separately will not prove partition [Rama Nagappa Mahar v N. Mallappa
Mahar AIR 2006 Karnt. 31].
Communication of Intention through Will
LEADING CASE? RAGHVAMNIA V CHENCHAMMA £\

" (AIR 1964 SC 136)
[A Will containing a declaration of intention to separate will not result

in severance of status unless it is brought to the notice of the Karta
and other coparceners. An uncommunicated expression of
intention, at best, can amount to a desire to partition, it cannot
amount to severance of status. Further, the declaration of the
intention, in order to be effective, must be communicated during the
lifetime of the one who expresses it)
8. Id., p. 224.
138 Family Law - II
Under the Hindu law, presumption is always in favour of joint

family. The burden to prove the partition lies on the plaintiff and
this burden was not discharged in the present case. Even if the
"Will" may be presumed to contain the intention of the executant
to separate, partition cannot be effective unless such an intention is
known to other coparceners.] |
(
Facts - One X, a common male ancestor, had two wives - W, and
W2.
w, w2
I
[S 1] (d-1945)
I
[S 2] - Raghvamma (widow-plaintiff)
SS 1 -Chenchamma (wife-defendant)
(d 1938)
Minor son (d-1949)
[Note - SS, stated to be adopted by S2, so Raghvamma was his

adoptive mother.]
S, executed a "Will", whereby he gave his properties to SS,,
as SS, died, so S|'s properties devolved upon the minor son. Under
the will, executed by SI on 14 Jan., 1945, he didn't give any share
to his daughter-in-law (widow of SS,), but directed that during the
minority of minor son, their properties would be entrusted to
Raghvamma, till the minor son become major.
P a rt it io n and Re un io n 139
Raghvamma, by mutual agreement, allowed

properties to remain in the hands of Chenchamma, till the
minor son died in 1949, when Raghvamma filed a suit for
possession of properties on the ground of alleged 'Will'.
The suit was contested by Chenchamma on the ground
that - her husband SSI was not adopted by Raghvamma,
and that she was denied the right to partition,
Observations - A coparcener can make a 'Will' for his
share (un-divided) in the JHF property (so there is no
question of denying the right to partition). The real
question is -whether by making a 'Will' there is declaration
or manifestation of an intention to separate, which would
sever status? W
tin this case, the declaration was not brought to the
notice of the other members of the family, but its
embodiment in the Will suggested that it would invariably
come to their knowledge after his death, when the Will,
would become operative. Thus, the question before the
court was, whether a member of the JHF, becomes
separate from the other members of the family, by a mere
declaration of his unequivocal intention to divide from
the family, without bringing the same to the knowledge
of the other family members.
/Severance does indeed "result by the mere
declaration because severance is a particular state of
mind and the declaration is merely a manifestation of this
mental state. Declaration involves expression and
communication of intention. One cannot declare or
manifest his mental state in a vacuum; it must be brought
to the knowledge of the persons affected thereby. There
must be intimation, indication or representation of an
intention to separate. There should be a clear and
unequivocal expression, by words (written /oral) or
conduct. A coparcener need not assign any reasons or
motives for partition. However, the expression...must be a
conscious and informed act; sham documents, or even
statements and admissions serving a genuine purpose, but
made in ignorance of correct legal position, may not be a
satisfactory evidence of severance.
140 Family Law - II
It is necessary that the intention to sever must be

communicated to other coparceners. An
uncommunicated expression of intention, at best, can
amount to a desire to partition, it can't amount to
severance. A series of decisions of Madras High Court
laid down that severance of status is effective from the
date on which communication is put into transmission
(and not from the date on which it reaches
coparceners)A
In the present case, the court came to the
following conclusions:
(a) Communication of intention must be made
to all interested parties i.e. coparceners.
(b) Doctrine of 'relating back' - Although
communication might be received by
coparceners on different dates, their receipt
will relate back to the date of notice i.e.
severance will be effective from the date
on which communication is put into
transmission (when the intention is framed
and expressed); but this is subject to the
next proposition.
(c) The vested rights that might accrue in the
interval, between the date of transmission
and date of receipt, are preserved This
was explained thus:
"But between the two dates, the person expressing his
int est in property, he may withdraw his intention to divide,
en he may die before his intention conveyed, with the
tio result that his interest survives to other members. A
n manager of a joint family may sell away the entire
m family property for debts binding on the family.
ay Thus, if doctrine of relation back invoked without
los any limitation thereon, vested rights so created will be
e affected and settled titles may be disturbed. The
his principle of retroactivity, usually, saves vested rights.
int As the doctrine of relation back involves retroactivity
er by parity of reasoning, it can't affect vested rights.*
Thus the rights accrued to others in JFP, between
P a r t i t i o n and R e u n i o n
141
the two dates, would be saved." Thus, if the Karta has

alienated the_ JFP in the, meantime for a legal
necessity the transaction will bind the separating
coparcener also.
The court observed that "Will" do not communicate the
intention to separate. And as the person making the Will dies, the
right of survivorship applies, and the doctrine of relation back
doesn't apply, which is limited in scope and not absolute. Even if
the contents of "Will" be presumed to contain an intention to separate
or the factum of partition, it would not be effective as the
contents were not made known to other members i.e. minor son
and his guardian (Girja Bai v Sada Shiv AIR 1916 PC 104). Held
- Thus, the plaintiff couldn't claim possession of properties, since
by survivorship the properties devolved upon the minor son, and
after his death, upon his guardian i.e. Chenchamma. .
Comments - In the present case, the court didn't provide
answers to the following questions:- (i) mode of service
and
its efficacy; (ii) whether the service of notice on a Karta
would
be enough, or on major members, or on all coparceners;
(iii)
how notice is to be served on minor members.
In Puttrangumma v Rangamma (AIR 1968 SC
1018), the ' court, regarding the first question observed
that the process of communication may vary with
circumstances of each case.
Sumit, a coparcener living in Delhi sends an e-mail to his father/Karta at

Bombay expressing his intention to separate from the joint family on
20~ May 2003. He then executed a gift of his share in the property in
favour of a person on the same day. The Karta was very busy as the
elder brother of Sumit was involved in a motor vehicle accident that
had seriously injured the life of a young boy. The Karta sold the JFP
including the shar3 of Sumit to pay compensation to the accident
victim and to save the eldest son from a possible penal litigation. Due
to this incident, Karta failed to check his mails and came to know
about the demand of Sumit only on 30 May, 2003. Sumit filers a suit
against Karta challenging the validity of the sale. Discuss whether he
would be successful?
[D.U.-
201O]
[Hint: If there is a gap between the time when the coparcener
expresses his intention, puts it in course of transmission and when it
comes to the knowledge of the Karta, the doctrine of relation back
applies. Thus, Sumit will not succeed.]
142 Family Law - II
The proof of formal dispatch or receipt of communication by

other members is not essential, nor its absence fatal to severance
of status. What is necessary is that declaration to be effective
should reach the affected persons by some process appropriate
to given situation and circumstances of the case. In this case,
a coparcener posted a letter communicating intention to sever,
but before the letter could reach its destination, it was withdrawn
from post office. But the news of intention reached affected
parties indirectly. Held that the communication was sufficient
and effective and it could not be withdrawn^
As to the second question, no direct answer has yet been
given, but the court in Raghavmma v Chenchamma case held .
that the communication to the karta alone will not be sufficient.
Thus a notice should be communicated to all coparceners. If a
notice is given to a coparcener who refuses to accept it, the
communication is enough and effective.) In Puttrangumma case
and Lakshmanier v Krishnamachary [1976 (1) Mad LJ 452],it was
observed that the most appropriate person to whom if should be
communicated, is the Karta, but if he, for the time being, is
unavailable, it can be brought to the notice of the other
coparceners. Since the Karta manages the property and plays a
lead role in its actual division, a partition by metes and bounds
cannot take place unless the Karta is informed about the intention to
separate. However, there is no need to inform each and every
coparcener individually and a communication to the Karta is
sufficient {Lakshmi Perumallu v Krishnavenamma AIR 1965 SC
825).
As to the last question, the notice to the karta is notice to the
minor Papayya v Venkata (\968) 1 An. WR 36].
Effective Date of Severance of Joint Status

|A question that arose in the Raghvamma case was when the
communication of intention to sever should be deemed effective, from
the date on which the communication is put into transmission or from
the date on which it reaches the Karta/coparceners?
The declaration to separate can be communicated verbally, through
a written notice/informal letter, or through a friend/relative. It can also
be done via a telephone/fax or e-mail. In cases where the communication
and its coming to the knowledge of the Karta is instantaneous (i.e.

direct with no gap in between), file severance of Status is also
instantaneous. The share of the dividing coparcener becomes fixed
Immediately and is no longer susceptible to fluctuation by the subsequent
births and deaths in the family. The reason is obvious: the severance of
a coparcener's status is not dependent upon the pleasure or wishes of
the Karta but upon the expression of the desire of a coparcener to
separate
However, if there is a gap between the time when the coparcener
expresses his intention, puts it in course of transmission and when it
comes to the knowledge of the Karta, the same rule cannot be applied.
For example, a joint family consists of a father and his two sons S 1 and
S2. S1 wrote a letter to the Karta (father) expressing his desire to
separate from the family. The letter was put into transmission on a
certain date. Before the letter reached Karta, S 2 dies. Now, if S, was
presumed to be separated from the family when the letter was put into
transmission, his share comes out to be l/3 rd. If S1 was presumed to be
separated when the Karta actually received the letter, SI will get the
benefit of S2's death, and along with Karta get V2 share of the property.
In such situations therefore, a distinction has to be made between
the date of determination of the status and the date of the calculation
of shares. .The date of determination of the status, whether a member
is a separate member, is the initial date, when the communication is put
in the course of transmission, and the date of calculation of shares, is
the later date, when the communication is complete i.e. it comes to the
knowledge of the Karta. In between these two dates, valid transactions
with respect to the property are not to be disturbed. Thus, in the above
example, S1 would be entitled to half of the property
The rule that severance of status takes place when it comes to the
knowledge of the Karta is applied strictly. But where the expression of
this Intention was put in course of transmission at a former date, with
the application of the doctrine of relation back, severance would relate
back to the former date and settled rights in between these two dates
will not be disturbed.10 For example, a coparcener immediately after
posting the letter of separation, executes a Will of his share in the
properties, in favour of a friend. The Will will be valid, as on the date
10. See P. Pradhan Saxena, Family Law II, 3rt ed., pp. 228-229 (2011).
144 Family Law - II
of its execution, he was a separate member and empowered to dispose

it of by a Will; it does not matter that Will is received by the Karta at
a later date.
If a coyarcener dies after communicating his intention to separate,,
but Before it reaches other coparceners, then it cannot amount to
partition. Because, for a partition to be effective, the separating coparcener
must communicate his intention during his lifetime. The moment a
coparcener dies, he loses his interest in the coparcenary property, the
communication of his intention to separate after his death becomes
meaningless. According to the doctrine of "relation back", the vested
rights that might accrue in the interval between the date of transmission
and date of receipt are preserved (thus, the separating coparcener may
die before his intention conveyed, with the result that his interest survives
to other members). Therefore, where a coparcener communicates his
intention to separate to the Karta, through a letter, and executes a Will
of his share in favour of his friend, the Will became void if he dies
before its receipt by the Karta. But, where there has been a
communication, the coparcener can make a valid Will or gift his share
Severance of Status in case of Minor
LEADING CASE: PEDASUBHAYYA V AKKAMMA (AIR

1958 SC 1042)
C [A partition of the JFP through the filing of a suit by the next

friend can be validly effected. The court has to be convinced in
such cases that the partition would be in the interests of the minor
and not effecting a partition would adversely affect his interests.
In the case of a minor coparcener, the effective date for severance
of status would be the date of institution of the suit, provided the
11. A Hindu joint family comprised of the father, and his three sons: St, S2 and S3.
On coming to know that the father was trying to sell some of the JFP without any
legal necessity, S1 who is aged 30 years, walks up to Karta and says, "I want
partition and please hand me my share." Karta refuses. S1 executes a gift of
1/4* share of the property in favour of his friend and dies. Is the gift valid?
[Hint. The moment S1 communicated his intention to separate, he became
separated from the joint family; it does not matter that Karta refused. S1 could
make a valid gift of his share after separation.]
court actually effects a partition. If minor dies during pendency of

the suit, the same can be continued by legal representative of
minor.] \
Facts - In this case, the maternal grandfather of a minor
"coparcener, filed a suit for the partition on behalf of said minor,
as the next friend of minor. The facts established clearly proved
that the defendants (father, his first wife and his sons) were
continuously dissipating the ancestral estate by selling lands,
and by incurring large-scale debts without any legal necessity,
The family properties were sold and fresh ones purchased in
the names of adult coparceners., The petition was admitted, but
during the pendency of the litigation, the minor died. The issues
arose regarding the status of the minor on his death" (undivided
or separate member) and whether the suit be abated on his
death.
Observations and Decision - The Court observed: Assuming
that there was no intention to defeat the rights of plaintiff at the
time when transactions were entered into, does not conclude
the matter. The real point for decision is whether defendants
were acting adversely to minor, and if, after he was born, they
used documents which might have been innocent when they
came into existence, for the purpose of defeating his right to
the properties comprised therein, that would be a conduct hostile
to him justifying partition.
The defendants contended that whereas in case of an
adult coparcener a clear expression on his part of an intention
to become divided will have the effect of division in status, and
the filing of a suit for partition would amount to such an
expression, the rule can have no application in case of a minor,
as he is incapable of a volition of his own. So such a volition
can be exercised by the court, in that case the division of status
will take effect from the date when the court concludes that
division is beneficial for the minor or not. If minor dies during
pendency of such a suit, it was contended, he dies as an
undivided coparcener.
• The court observed that under Hindu law, there is no
distinction between the rights of a minor and a major coparcener,
as far as the coparcenary property is concerned. However, as
146 Family Law -, II
he is a minor, the court acts as parens patriae, in order to protect

his interests and assess whether a partition will benefit him or not.
But even this action will not make the effective date of severance any
different in the case of a minor, than in the case of a major
coparcener. Therefore, where the suit is filed by a minor, through
his next friend, and the court comes to the conclusion that effecting a
partition would be in the interests of the minor, the severance of his
status would relate back to the date of the institution of the suit and
he would be deemed to be a separate member from the date when
the-petition was presented in the court.
The court observed citing decisions in Suraj Narain v Iqbal
Narain (1913) 40 IA, Kewal Narain v Prabhu Lal (AIR 1917 PC
39), a decree may be necessary for working out the result of
severance and for allotment of shares, but the status of plaintiff as
separate in estate is brought about by his assertion of right to separate,
whether he obtains a consequential judgment or not. The true effect
of a court's decision that action is beneficial to minor is not to
create in minor proprio vigore ('by its own force') a right which he
did not possess before but to recognize rights which had accrued to
him, when person acting on his behalf instituted the action. Thus,
what brings about the severance in status is the action of the next
friend in instituting the suit, the decree of the court merely
rendering it effective by deciding that what the next friend has done
is for the benefit of the minor.
Regarding the question, as to whether the suit should abate
on the minor's death, the court held that the moment a suit was
filed on behalf of the minor, a severance of status has taken place,
and the only difference between the cases of a major and a minor
coparcener is, that here, it was conditional upon the court coming to
the conclusion that it will further the interests of the minor. Till the
court examines that issue, the status of a minor at the time of his
death, would remain uncertain. As the status can be determined only
when the court decides the suit, the suit will not abate with the
minor's death and the court will decide the case on merits, to
determine whether, in the light of the facts and circumstances of
the case, a partition would have advanced the interests of the
minor. In the present case, the partition was desirable, and

with the application of the doctrine of relation back, minor's
severance from the joint family took place on the date of
filing of the partition suit and at the time of his death, he
was a separate member. Therefore, his share in the property
would go by inheritance to his mother arid not to the
coparceners under the doctrine of survivorship.
Thus, if minor dies during pendency of the suit, the
same can be continued by legal representative of minor
(mother of the plaintiff in the present case). It was urged
that the cause of action for suit for partition by a minor was
personal to him, and that on his death before hearing, the
suit must abate on the principle of the maxim actio
personalis moritur cum persona (action dies with the
person). But that maxim has application only when the
action is one for damages for personal wrong, and as a suit
for partition is a suit for property, the rule in question has
no application here.
No Divesting of any Estate in any person before Adoption
LEADING CASE: NAMDEV-AHWWHAT GHADGE v CHAN0RAKANT

GANPAT GHADGE [(2003) 4 SCC 71]
[The adopted child shall not divest any person of any estate,
which vested in him or her before the adoption. If the
property by inheritance goes to a collateral and the adopted
son is adopted after the death of the collateral, the adoption
cannot divest the property which has vested in the heir of
the collateral.]
In this case, the only question that arises for consideration
is whether the adopted son Dattatraya could divest the
property, which devolved on the heirs of Vyankat (sole
surviving coparcener) and vested in them prior to his
adoption so as to claim share in the suit property. Vyankat
died on 8-2-1978. Adoption of Defendant 6 (Dattatraya) by
Defendant 2 (widow of the Vyankat's brother) took place
on 10-6-1978 i.e. about four months after the death of
Vyankat.
In other words, the issue was whether adoption of
Defendant 6, after the death of the sole surviving coparcener.
148 Family Law - II
makes any difference in determining the rights of the adopted son in
relation to the family properties. If the adoption had taken place
during the lifetime of Vyankat, there would have been no difficulty
whatsoever in confirming the judgment under challenge in the light of
the decision of this Court in Dharma Shamrao Agalawe v Pandurang
Miragu Agalawe (AIR 1988 SC 845).
In the case of Dharma Shamrao, the question that came up for
consideration was whether a person adopted by a Hindu widow after
coming into force of the Hindu Adoptions and Maintenance Act
(HAMA), 1956, can claim a share in property which had devolved
on a sole surviving coparcener on the death of the husband of the
widow, who took him in adoption. The facts in that case were that
one Shamrao, who was governed by the Mitakshara Hindu Law,
died leaving behind him two sons Dharma and Miragu. Miragu died
issueless in the year 1928 leaving behind him his widow Champabai.
The joint family property of Dharma and Miragu passed on to the
hands of Dharma, the sole surviving coparcener. Champabai had only
right of maintenance in the joint family properties under the law, as
it stood then. She took Pandurang in adoption on 9-8-1968, long after
the HAMA came into force. Immediately thereafter the adopted son
Pandurang and Champabai filed a regular civil suit for partition and
separate possession of one-half share in the properties of the joint
family. Before the adoption took place, two items of the joint family
properties had been sold in favour of others for consideration.
Dharma resisted the suit on the ground that the adopted son
Pandurang was not entitled to claim any share in the properties,
which originally belonged to the joint family in view of clause (c) of
the proviso to Sec. 12 of the HAMA.
In Vasant v Dattn, AIR 1987 SC 398, interpreting clause (c) of
the proviso to Sec. 12 of the HAMA, Chinnappa Reddy J., speaking
for the Bench, observed that where the joint family property had
passed on to the hands of the remaining members of the coparcenary
on the death of one of the coparceners, no vesting of the property
actually took place in the remaining coparceners while their share in
the joint family properties might have increased on the death of
one of the coparceners.
which could decrease on the introduction of one more member

into the family either by birth or by adoption. It did not involve
any question of divesting any person of any estate vested in
him and that the joint family continued to hold the estate, but,
with more members than before with introduction of a member
into the joint family by adoption; there was no fresh vesting or
divesting of the estate in any way.
This Court in the case of Dharma aforementioned
respectfully agreed with the above observations made in Vasant
v Dattu: "The joint family property does not cease to be joint
family property when it passes to the hands of a sole surviving
coparcener. If a son is born to the sole surviving coparcener,
the said properties become the joint family properties in his
hands and in the hands of his son. The only difference between
the right of a manager of a joint Hindu family over the joint
family properties where there are two or more coparceners and
the right of a sole surviving coparcener in respect of the joint
family properties is that while the former can alienate the joint
family properties only for legal necessity or for family benefit,
the latter is entitled to dispose of the coparcenary property as
if it were his separate property as long as he remains a sole
surviving coparcener and he may sell or mortgage the
coparcenary property even though there is no legal necessity or
family benefit or may even make a gift of the coparcenary
property. If a son is subsequently born to or adopted by the
sole surviving coparcener or a new coparcener is inducted into
the family on an adoption made by a widow of a deceased
coparcener an alienation made by the sole surviving coparcener
before the birth of a new coparcener or the induction of a
coparcener by adoption into the family, whether by way of
sale, mortgage or gift would however stand, for the coparcener
who is born or adopted after the alienation cannot object to
alienations made before he was begotten or adopted."
Finally, this Court concluded that the joint family property
continued to remain in the hands of Dharma, the appellant, as
joint family properties and that on his adoption, Pandurang, the
first respondent, became a member of the coparcenary entitled
to claim one-half share in them except the items, which had
been sold by Dharma, the appellant.
Family Law - II
From the facts in Dharma case it is clear that adoption of

Pandurang took place during the lifetime of Dharma and as such
Pandurang became a member of the coparcenary to claim the share. In
the present case, on the date of death of Vyankat, the properties of the
joint family in his hands devolved on his heirs i.e. his son and daughter
as per Sec. 6 of the Hindu Succession Act, 1956, subject to rights of
maintenance of Defendant 2 Krishnabai. Opening of succession and
devolving of properties operate immediately on the death of Vyankat and
the joint family properties stood vested in the heirs of Vyankat.
Defendant 6 was adopted by Defendant 2 about four months after the
death of Vyankat by which time the properties had already been vested
in his heirs.
It is plain and clear that an adopted child shall be deemed to be the
child of his or her adopted father or mother for all purposes with effect
from the date of adoption as is evident from the main part of Section
12, HAMA. Proviso (c) to Sec. 12 in clear terms states that 'the
adopted child shall not divest any person of any estate, which vested in
him or her before the adoption.*
In Jivaji Annaji v Hanmant Ramchandra (AIR 1950 Bom. 360),
dealing with a case of adoption after the collateral's death and the
principle of relation back, after referring to a number of Privy Council
decisions, the court held: An adoption relates back to the death of the
adoptive father and an adopted son must be looked upon as if he was
in existence, at the date of the death of the adoptive father. But it is not
correct proposition to say that the rights of an adopted son are in all
respects identical with that of a natural-born son. The principle of relation
back is not an absolute principle but it has certain limitations. For
instance, one limitation is that any lawful alienation made by the last
absolute owner would be binding on the adopted son. The question
we have to consider is whether there is further limitation on the rights
of the adopted son, viz. if the property by inheritance goes to a collateral
and the adopted son is adopted after the death of the collateral, the
adoption cannot divest the property which has vested in the heir of the
collateral. Reliance is placed on the Privy Council decision in
Bhuhaneswari Debi v Nilcomiil Lahir, 1LR (1885) 12 Cal 18. There it
was
P a r t i t i o n and Re un io n 151
expressly held that according to Hindu law, an adoption

after the death of a collateral does not entitle an adopted son
to come in as heir to the collateral.
In Sawan Ram v Kalawanti (AIR 1967 SC 1761), the
Apex Court observed that the HAMA by virtue of proviso
(c) to Sec. 12 has narrowed down the rights of an adopted
child as compared with the rights of a child born
posthumously. Under the Shastric law, if a child was
adopted by a widow, he was treated as a natural-born child
and, consequently, he could divest other members of the
family of rights vested in them prior to his adoption. It was
only with the limited object of avoiding any such
consequence on the adoption of a child by a Hindu widow
that proviso (c) to Sec. 12 has been incorporated.
Thus, in the present case, Defendant 6, after having
been adopted after the death of Vyankat and after the
properties vested in his heirs, is not entitled for share in the
suit properties.]
Modes of Partition12
Partition may be effected by institution of a suit, by submitting the
dispute as to division of the properties to arbitration, by a demand
for a share in the properties, or by conduct which evinces an
intention to sever the joint family; it may also be effected by
agreement to divide the property.
Partition can be made orally also. It need not be in writing. It
may be noted that a" partition does not amount to a 'transfer'
within the meaning of the Transfer of Property Act, 1882.Jf
partition is reduced to writing and the value of the property
partitioned is more than Rs. 100, it must be properly attested and
registered (otherwise it will not be admissible in evidence).
However, where it is not registered but acknowledges a prior
partition or an intention to separate it can be admitted in evidence
(Siromani v Hemkumar AIR 1968 SC 1299). Post 2005 Amendment,
partition is now required to be registered (discussed later).
Partition by conduct - There can be numerous circumstances from
which a 'partition by conduct' could be inferred. For instance, a partition
12. What are the modalities of demanding or effecting a partition? [D.U.-

201C\
152 Family Law - II
is effected by a unilateral declaration of a coparcener 'I am separate

from thee.' Similar would be the case when a coparcener renounces or
relinquishes his share in the JFP.
When the family members actually divide the property by metes
and bounds and each member is in separate possession and enjoyment
of the share allotted to him, a partition is said to take place by conduct.
A partition merely requires an intention to separate; it can therefore be
effected by a notice, whether followed by a suit or not.
Partition by suit/arbitration - When a coparcener files a suit for partition,
it amounts to an unequivocal intimation of the intention to sever, and
consequently, severance of status takes place from the date the suit is
instituted. A decree may be necessary for working out the result of
severance but severance has taken place as from the date of the filing
of the suit and not from the date of the decree. Partition is not effected
by a decree of court. Even if such a suit were to be dismissed, that
would not affect the division in status, which must be held to have
taken place, when the action was instituted (Kewal Narain v Prabhu
Lai AIR 1917 PC 39). If the plaintiff dies during pendency of the suit,
the same can be continued by his legal representatives.
An agreement between the members of the joint family whereby
they appoint an arbitrator to arbitrate and divide the property operates
as a partition from the date thereof. It does not matter that no award
has been made.
Partition by agreement - All the coparceners might decide to end their
joint status; it is called 'partition by agreement.' It is not necessary that
a desire to effect a severance must be initiated either by the father or
by one coparcener alone. The moment there is a genuine and bona fide
agreement to effect a severance of status, the shares becomes fixed and
the doctrine of survivorship no longer applies (P.G. Hariharan v Padaril
AIR 1994 Ker 36). In a partition by agreement, the shares of coparceners
may not be equal; however, they should not be unjust or unfair or
adversely affect the minor's interest. A partition by agreement may also
include within itself, a family arrangement, where disputed rights are
compromised so as to conserve family property and avoid litigation
(Ramcharan v Girijanandam AIR 1966 SC 323).
There might be an agreement not to effect a partition till a specified
time or till the happening of a certain event or even till the life of a
coparcener. However, it cannot be a postponement of a partition

in perpetuity or an agreement not to effect a partition at all, ever.
Partition cannot be recognized by the court if the agreement of
partition is not acted upon (Kctlwa Devadattam v Union of India
AIR 1964 SC 880). If the partition is in fact acted upon, it will be
upheld even if its object was to defeat the creditors.
Automatic severance of status - This is called Tnvoluntary/Forced
partition' or 'Partition by specific conduct.' In certain cases a
coparcener may not demand a partition voluntarily, yet, due to a
particular conduct or some action on his part, he finds himself out of
the coparcenary with his share handed over to him. It is not an
expulsion. Two specific conducts of a coparcener would bring upon
him, an ipso facto separate status: the first is where he renounces
his religion and the second is where he gets married to a non-
Hindu under the Special Marriage Act,
1954.
Conversion of a coparcener to a non-Hindu religion (i.e. Islam,
Christianity, etc.) operates as an automatic severance of status of the
member from others, but it does not amount to severance of status
among the other members inter se. From the date of conversion, he
ceases to be a coparcener, and therefore, loses his right of
survivorship. He is entitled to receive share in the JFP as it stood
"at the date of
conversion
For example, a coparcenary consists of a father and his two sons
51 and S2. Each of them, so long as they are undivided, owns a
probable one-third (l/3rd) share in the coparcenary property. SI renounces
his religion and, thus, becomes a separate member from the family.
From that very moment, his probable share becomes a fixed share (1/
3rd). Even before his share is physically demarcated and handed over to
him, his father dies. The share of SI will continue to be l/3rd, and the
father's l/3rd share will be taken by S2 as a sole surviving coparcener. S1,
already a separated member, will not get the benefit of the father's
death, as his conversion resulted in a severance of his status instantly
and he was no longer a member of the family which his father headed.14
13. Prior to the Caste Disabilities Removal Act, 1850, the conversion of a
coparcener to another religion resulted in an expulsion from the joint family and
operated as a forfeiture of his rights in the coparcenary property
14. See P. Pradhan Saxena, Family Law II, 3'" ed., pp. 218-219 (2011).
154 Family Law - II
The primary reason why a convert ceases to be a member of the

HJF and coparcenary is that in India, amongst the multiplicity of family
laws, the religion of a person determines which family law will govern
his family relations. Till a person is a Hindu, it is the Hindu law that
applied to him, but the moment he converts to another religion, his
family law also changes (Milter Sen Singh v Maqhul Hasan Khan AIR
1930 PC 251). Re-conversion of the convert to Hinduism does not ipso
facto bring about his coparcenary relationship in the absence of
subsequent act pointing to a re-union.
Exactly, the same result follows if a coparcener marries a 'non-
Hindu' under the Special Marriage Act, 1954. The religion of a spouse
became a material factor after 1976. Before 1976, where a Hindu man
marries a Hindu or a non-Hindu woman under this Act, there occurred
an automatic severance from coparcenary. Post 1976, where a Hindu
man marries a non-Hindu woman, under this Act, such marriage effects
his automatic severance from the coparcenary. But where his spouse is
a Hindu, he continues to be a member of the coparcenary as before.
Therefore, presently, it is not the performance of the marriage of a
coparcener under the Special Marriage Act, that would effect his
severance from the coparcenary, but his marriage to a non-Hindu,
under this Act, that would operate as an automatic partition from the
coparcenary (Girdhari Lai v Fateh C'hand AIR 1955 MB 148).15
Partition by Will - After 1956, the intention of a coparcener to separate
expressed in his Will would bring about partition. Before 1956, there
was no scope for the operation of a Will. Because Will of a person
operates from his death, and the undivided interest of a coparcener in
the JFP devolved on his death by the rule of survivorship on his
surviving coparceners.
Sec. 30 of the H.S. Act has now conferred the right upon a
coparcener to make a testamentary disposition of his interest in the JFP.
He can use this right for separation also from the joint family. He can
make a valid Will to the effect that his interest should be separated to
be donated for a charitable purpose or to a particular person.
15. Id, pp. 219-220.

Pa rt it ion and R e u n i o n 155
Revocation of Partition16
A partition is presumed to be the result of a well thought out,
voluntary and conscious act, that is not permitted to be revoked at
the whims and pleasures of the parties.
However, once the demand for partition has been made by a
coparcener, it can be withdrawn before it is communicated to the
family members. But once the demand is communicated, severance
immediately takes place, and it is not open to the party to
unilaterally, withdraw It if the suit is withdrawn before trial, the
plaintiff not desiring separation, there is no severance of status
(here 'before trial' mean before the summons are served on the
defendants i.e. before the communication of intention) [Kedar
Nath v Ratan Singh (1910) 37 IA 161]. Similarly, where the
intention to separate is put in the course of transmission, but
withdrawn before it reaches the Karta, no partition will take place.
Where the partition has already been effected, a unilateral
withdrawal of intention to separate cannot result in a revocation
of partition or in a reunion, as, for demanding a partition, the
consent of the other coparceners is not material, but a reunion is
not possible unless all the members agree {Radha Krishna v
Satyanarayan AIR 1949 Mad 173).
Once there is communication, the intention to separate cannot
be withdrawn, for example, when a letter was posted and letter
withdrawn from the post office, but the news of contents of the
letter somehow reached other coparceners, partition was complete
and irrevocable (Puttrangamma v Ranganna AIR 1968 SC
1018). In this case, the Karta, with his three brothers and their
descendants constituted a joint family. The Karta became sick;
while in hospital he issued a notice to separate from the joint family.
His younger brother's son who was in hospital at that time
snatched the notice and attempted to tear it, but was prevented
from doing so. After the notice was registered at the
16. Can the demand of a partition once made be retracted/revoked subsequently?

A HJF comprised of four brothers, A, B, C, and, D. B, who was unhappy
with the style of functioning of A as the Karta, filed a suit for partition
against him in a court of law, claiming one fourth share in the
coparcenary property. During the pendency of the litigation, A (Karta)
died and now B wanted to withdraw the suit, and assume charge as the
Karta. Can he do so? Discuss. [D.U.-2011]
[Hint. B cannot withdraw the suit i.e. demand for partition. By filing the
suit, B became a divided or separated member of the family. Thus, B
cannot assume charge as the Karta of the family.]
156 Family Law - II
post office, the family members intervened, tried to bring about an

amicable settlement. At this, the Karta withdrew the notice. However,
no agreement could be reached subsequently. The Karta signed a
vakalatnama and instructed his lawyer to institute a suit for partition.
The Karta, however, died on the same day when the suit was instituted.
The Apex Court held that it is not necessary that the communication
of intention to separate must be through a notice, sent through post. In
other words, it is not necessary that there should be a formal dispatch
to or receipt by other family members of the communication. When the
Karta dictated and signed the notice in the hospital, one of the coparceners
was present. Also, the other family members came to know about the
Karta's notice, and, persuaded to withdraw it. That means the demand
made by the Karta was "sufficiently known" to all the coparceners, and
therefore, the severance of status had already taken place. The withdrawal
of notice took place subsequent to the severance of status. Further, the
family members could not agree to an amicable solute 'on (for
reunion). Still further, the deceased Karta had instructed his lawyer to
file a suit for partition, which was filed on the day he died. The Karta,
thus, died as a separate member of the family. He became a divided
member from the date of notice.
Partial Partition
It often happens that only some coparceners want partition, while the
others do not. In such cases, those who want partition may take away
their share and the rest will continue to remain joint. A partial partition
may be: partial as to property, or partial as to persons. Despite the
permissibility of a partial partition by agreement among all coparceners,
where a partition occurs, the presumption will be that it is a complete
partition [Kollomal (HUF) v C/T (1982) 1 SCC 447]. Where a person
alleges that it was a partial partition, it is he who will have to prove it.
A person cannot be a separate member with respect to some of
the members, while remaining joint with the others, unless the latter are
from his own branch. The separated member cannot claim any share
out of the coparcenary property on the death of any c arcener in the
family of which he previously was a member {Meva Devi v Om Prakash
Jagannath Agarwal AIR 2008 Chh 13). In this case, the separated son
was allowed by the father to live in the joint family home as he had no
suitable alternative accommodation. Upon the father's death, the youngest

son became the owner of the entire JFP. He filed a suit for eviction of
his elder brother. It was held that he was entitled in law to reclaim the
possession of this property from his separated elder brother.
A partition may be partial with respect to property. All coparceners
may maintain a joint status with respect to some of the property viz.
the house. Further, certain properties are impartible, or are under a. lease
or mortgage, etc. or are situated outside India, thus not subject to
partition. Still further, there might be statutory prohibitions regarding the
division of the property viz. the anti-fragmentation laws.
Rules relating to Division of Property

(Allotment and Distribution of Shares)
(1) A partition has to be effected between two generations as the
first step e.g. between a father and his sons. The father takes
the share as his exclusive or separate property with respect to
the sons, while the son takes it as coparcenary property when
he has male issues. In the absence of any male issues, he takes
the property as a sole surviving coparcener.
(2) Father, sons and mothers (including the step-mother) share
equally i.e. per capita (per head). Similarly, brothers get an
equal share.
(3) If partition takes place between branches, rule of per stripes
(i.e. according to the stock) and per capita applies. Each branch
takes one share and members of each branch take equal share
(per capita). In other words, the head of a branch gets one
share and then that share is further divided between him, his
sons, their mothers equally and so on.
(4) Son of predeceased son takes equal to his father's share by the
'doctrine of representation.' Thus the branch of a dead
coparcener is also entitled to a share if he leaves behind one or
more coparcener sons, grandsons and great grandsons.
(5) The following females are entitled to a share on partition -
father's wife (if partition occurs between father and son),
mother (if partition occurs between sons), and grandmother (if
partition occurs between son and son of a predeceased son).
158 Illustrations Family Law - II
W2-W'-Father
w3-s' S 2 s3 s4
W4-SS! SS5 SS2
sss1
ssss1
In this figure, per capita distribution of share will be made first between
father, W,, W2 (two wives), S,, branch of S2, and S3, each of the six
getting an equal share (1/6). The branch of S2 (dead) will be represented by
SS2. Since S4 died without a male issue, his branch remains
unrepresented and hence gets nothing.
The l/6th share going to S, will further be divided equally between
S1, SS,, SS5 and W3, each sharing equally, i.e. 1/24 each. The 1/24
share of SS, will further be divided between SS,, W 4 and SSS, each
sharing equally, i.e. 1/72 each.
SSSS, will get nothing since he is more than four degrees removed
from the last male holder, i.e., Father, and hence not a coparcener.
In another illustration, a HJF consists of the father F, his wife W,
two sons S, and S2 and their wives W, and W2, and one grandson S3 (son
of S, and W,). Here, the partition will be effected between the father
and his two sons S, and S2. The father's wife would also be entitled to
get a share equal to that of a son. Thus, F, W, S,, and S 2, each will take
l/4th of the property.
F and W will take it as their separate shares, but S, will take it
with his branch. Therefore, the next partition will be between S, and
his son S3; similarly, W, will get a share equal to that of S3. Thus, 1/
P a r ti ti on and R e u n i o n 159
4th
share of S, will be divided into three equal parts and each of
them will get l/12th share.
The one-fourth share given to S2 will be held by him as a 'sole
surviving coparcener.' W2 will not get any share, as there is no
partition n this branch.
The final shares and character of property will be as follows:
F - l/4th (separate); W - l/4 th (separate); S, - 1/12* (separate); W, -
[/12th (separate); S3 - 1/12th (sole surviving coparcener); S2 - l/4th
sole surviving coparcener); W2 - Nil.
Re-opening of Partition
Under Shastric law, 'once a partition is made, once a damsel is
given in marriage and once a gift is made is irrevocable and
irretractable' (Manu). A partition, therefore, is generally irrevocable.
The logic behind is that erstwhile coparceners hold their shares as
their separate and exclusive properties; they may enter into
transactions relating to them, so as to create valid titles in favour of
even third parties.
However, there are certain exceptions to this general principle
that 'shares are divided only once.' It may become imperative in
certain situations to have a re-distribution of properties in order to
prevent gross injustice to the members of a family. However, a plea
that the partition was unfair cannot be countenanced when the facts
show that it has been undertaken after due and proper deliberations.
Where readjustment of properties is not possible the entire
partition has to be re-opened. A partition can be re-opened under the
following circumstances:
(1) Fraud - fraudulent distribution of properties, unless the person
affected by the fraud acquiesces in with full knowledge of all
material facts. A coparcener may conceal the JFP at the
time of partition, to gain an unjust and undue advantage
over the others; the partition can be re-opened on the
discovery of this fraud (Bishambar Nath v Ida Arnar AIR
1937 PC 105). However, in a suit for a re-opening of
partition, fraud cannot be added as a ground at a later stage
of trial.
(2) Son in womb if at the time of partition a son is in womb, and
no share is reserved for him, he can get the partition re-
opened.
160 Family Law - II
(3) Son conceived and born after partition -- can get the partition re-
opened where the father does not take a share on partition.
(4) Adopted son - is entitled to re-open the partition.
(5) Disqualified coparcener - recovering from his disqualification can
get the partition re-opened.
(6) Absentee coparcener - if at the time of partition a coparcener is
absent and no share is allotted to him, he can get the partition re-
opened.
(7) Minor coparcener - when a partition is effected during the
minority of a coparcener, he can get the partition re-opened ii he
can show that partition was unfair, prejudicial or unjust.
(8) Property added after partition - when some properties were left
out, either by mistake or deliberately, or when some properties
(which have been earlier lost/seized) were discovered/ recovered. If
a distribution of the additional properties can be effectively made
without re-opening the partition, then the earlier partition should
not be disturbed.
Re-union
'Reunion' means to unite again. In relation to a HJF, it signifies a joint
status, followed by a partition and then, followed again by a restoration of
the joint family status. The coparceners may live or trade together after a
partition, but that is different from a formal reunion. The reunion restores
the joint family to its former status and position; it became subject to all
the incidents of coparcenary.
"He who, being once separated, dwells again, through affection with
father, brother or a paternal uncle, is termed re-united with him' (a text
of Brihaspati). It is not available, generally, to all coparceners
Reunion is, thus, permitted exclusively between (a) father and
son, (b) paternal uncle and nephew, and (c) brothers {not cousins)
Reunion is not permitted with grandsons or after-born sons. Thus, if a
partition took place between a father F and two sons A and B
Subsequently, a son, S, is born to F. A or B can reunite with their Father F
or with each other but they cannot reunite with S. Thus, a reunion can
only take place between persons who were parties to the origins petition
[Balabux v Rukhmabai (1903) 30 IA 130]. Further, it is only
at the instance of a coparcener that a reunion can take place [Nanu
Ram v Radhabai (1942) ILR Nag 24].
Reunion may be effected through an express agreement, even
oral, or may be implied from conduct. Mere living together is not
enough to establish reunion. An unequivocal intention re-establishing
community of interest and unity of possession must be there. A minor
cannot reunite since he has no capacity to agree. However, his
father or guardian may enter into a reunion on his behalf.
A reunion is viewed as a desire on the part of coparceners to
become a part of the family again for the sake of love and
affection; it is not seen as a profitable, commercial opportunism.
Therefore, it is not necessary at all that the parties bring into the
common pool, the properties in the same ratio in which they had, at
the time of partition, taken them. Where the son has dissipated all his
properties, a reunion between him and his father is valid [Venkanna
v Venkatanarayana (1947) ILR Mad 382].17
Reunion, unlike partition, is very uncommon. Thus, a reunion
has to be very strictly proved. The burden of proof is heavy on the
party asserting reunion. It may be noted that while partition could
be a unilateral act, a reunion can only be effected through mutual
agreement whereby all the members agree to form a Hindu joint
family again.
Daughter's Right to Challenge Partition, etc. [2005 Amendment]

Sec. 6 (1): On and from the commencement of the H.S.A.
(Amendment) Act, 2005, in a joint Hindu family governed by the
Mitakshara law, the daughter of a coparcener shall:
(a) by birth become a coparcener in her own right in the same
manner as the son;
(b) have the same rights in the coparcenary property as she would
have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener.
17. See P. Pradhan Saxena, Family Law II, 3,:l ed., p. 252 (2011).
162 Family Law - II
Provided that nothing contained in this sub-section shall affect or

invalidate any disposition or alienation including any partition or
testamentary disposition of property which had taken place before the
20th day of December 2004.
Proviso to Sec. 6(1)

Under the Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra
amendments to the Hindu Succession Act 1956, daughters of coparceners,
who were married on the day the amendment was enforced in each
State respectively, could not become coparceners. Only daughters who
were "unmarried on such date" could become coparceners (they,
however, continued to be coparceners even after marriage). It was
considered necessary as a contrary stand would have disturbed settled
claims and titles.
Under the 2005 Amendment, a daughter of a coparcener is included as
a coparcener herself without any reference or limitation with respect to
her marital status. Therefore, after 6th September 2005, a daughter who
was married even before this date would be a coparcener. However, to
avoid unnecessary confusion and litigation, proviso to Sec. 6(1) states:
'Provided that nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any partition or
testamentary disposition effected before 20th December 2004'. This was
necessary so that settled rights should not be disturbed. The married
daughter, even though might have been a coparcener, would not be
entitled to reopen the partition already effected, nor would be empowered to
challenge the alienation effected before such date i.e. 20th December 2004.
She could succeed if the male members have not effected a partition
before such date.18
The amendment is prospective in application and does not benefit
daughters where an undivided coparcener dies prior to the amendment.
Where a partition suit is pending amongst brothers (before the
amended provision became effective), and the sisters are sought to be
joined as parties in the suit (after the amended provision), they would be
entitled to be joined, as the partition contemplated in the section had not
taken place and the sisters are to be treated as coparceners on an
18. See P. Pradhan Saxena, Family Law II, 2 Ed., p. 344 (2007).
P artition and R e u n i o n 163
al footing with the brothers {Surendra Nath Sharma v Rajendra

nor (2009) 1 HLR 105 (Jhar)].
partition to be Registered [2005 Amendment]

sec. 6 (5): Nothing contained in this section shall apply to a
partition, which had been effected before the 20th day of
December 2004.
Explanation - For the purposes of this section, "partition" means any
partition made by execution of a deed of partition duly registered
under : Registration Act 1908 or partition effected by a decree of a
court.
The Amending Act is prospective in application and therefore its
provisions would not apply to any partition that was effected
before the December 2004.
Under the classical law, partition can be even oral or in writing
unregistered). The 2005 Amendment does not recognize oral
partition r the purposes of Sec. 6. The amending Act clearly says that
the term partition' used in this whole section (i.e. Sec. 6) means a
partition that in writing and duly registered or the one that is
effected by a decree ' court, in essence, proving which would be
easy.
FURTHER QUESTIONS
Q.1 Define partition under Mitakshara law. How can a partition be

effected? Discuss the importance of partition under Mitakshara
law. [L.C.//-94/95/96]
A, B and C are three brothers constituting a Mitakshara

coparcenary. A, who is displeased with B (Karta) informs him
on 4-6-86 on phone: "I am thinking of separating from the
joint family". Two days later A sends a registered letter to B
expressing his unequivocal intention to separate from the
joint family. On 15-6-86 A makes a gift of all property in favour
of D. A's death occurs on 20-6-86. Before the receipt of the
letter B alienates an item of JFP on 14-6-86 to meet the
marriage expenses of C's daughter. The letter sent by A
actually reaches B on 2-7-86. Examine the validity of A's gift
and of B's alienation. [C.LC-91; L.C.II-96 (Sopp.)]
164 Family Law - II
A.l Partition
According to the Mitakshara law, no individual member in the
coparcenary property has any specific share in the property so long
as the family is joint. So partition according to the law, consists in a
numerical division of property. In other words, partition consists in
defining the share of the coparceners in the JFP ('severance of
status" an actual division of the property by metes and bounds is not
necessary Thus, even after partition, the coparceners may hold the
property jointly without affecting the status of property.
In Mitakshara law, every coparcener has the right to demand
partition (major/minor/adopted, but not illegitimate or disqualified
e.g; insane). No female (except the widow under 1937 Act) has a
right to partition (the position has been changed after the 2005
Amendment to the H.S. Act), but if partition occurs, there are certain
females who are entitled to a share, viz. father's wife, mother and
grandmother.
Effecting of Partition
The moment a clear, definite, unambiguous and unequivocal intention to
separate ('1 separate from thee') is communicated to other
coparceners during the lifetime of the coparcener demanding the
partition, the division in status takes place. The following important
points may be noted in this regard :-
Coparcener must have formed a fixed and definite intention to
separate, must not merely be in contemplation of it (viz., 'I am
thinking of separating').
(ii) There must be intimation, indication or representation of this
intention to other coparceners.
There should be a clear and unequivocal expression, by words
(written or oral) or conduct (separation in food, dwelling,
separate income and expenditure, separate business
transaction, etc.)
iii) The intention may be communicated by telephone, post, third
person (e.g. friend) etc.
iv) The unequivocal communication of intention must be the
conscious and informed act of the coparcener.
V) Unless intention is brought to the knowledge of other
coparceners, it is uncommunicated intention, which is no
intention in the eyes of law.
vii) The partition is effected from the date on which

communication is put into the transmission (i.e. letter is
posted) and not from the date on which it reaches other
coparceners (Raghavamma v Chenchamma AIR 1964 SC
136).
iii) If a coparcener dies after communicating his intention to separate
but before it reaches other coparceners, then it cannot
amount to partition. Because for a partition to be effected,
the separating coparcener must communicate his intention
during his lifetime. And, as noted above, an intention not
brought to the knowledge of other coparceners is
uncommunicated intention. Moreover, according to the
doctrine of "relation back", the vested rights that might
accrue in the interval between the date of transmission and
date of receipt are preserved (thus, the separating coparcener
may die before his intention conveyed, with the result that
his interest survives to other members).
ix) Generally, notice (communication of intention) to Karta
should be there, in order to corroborate, notice must also
go to other adult coparceners.
x) Going for partition is a matter of individual decision of the
coparcener (unilateral act), assent or dissent of the other
coparceners is immaterial. Also, motive of the separating
coparcener is immaterial in this context.
xi) If third party informs and the separating coparcener says he is
not authorized, there is no partition. In case third party
informs and coparcener dies, he was the only one who could
have said that third party was not authorized therefore valid
communication has taken place, and partition is effected
(Puttrangamma v Rangamma AIR 1968 SC 1018).
xii) Once there is communication, the intention to separate cannot
be withdrawn, for example, when a letter was posted and
letter withdrawn from the post office, but the news of
contents of the letter somehow reached other coparceners,
partition was complete and irrevocable (Puttrangamma v
Rangamma).
Importance (Effect or Consequences) of Partition

The importance of the partition lies in the following respects:
166 Family Law - II
(i) By partition, the shares of the coparceners become defined

and stop fluctuating as a result of births and deaths in the
family
(ii) After partition, a person's share is his separate property and
will pass by succession to his heirs.
, (iii) A member of an undivided joint family has no right to
dispose of his share in the property by will, gift or
alienation for value (except in some States). A divided
member can make a gift or devise it by will or alienate it for
value like his separate property
(iv) The undivided interest of a coparcener passes on his death
to the surviving coparceners. The share allotted to a
coparcener on partition passes on his death to his heirs,
except where he has remained joint with his own male
issues. In such case it will pass to them by survivorship.
(v) Wife, mother and grandmother are entitled to a share in join
property in case there is a partition between male
members.
(vi) In case a coparcener separates but had no male/female
issue he would hold the property as a sole surviving
coparcener. The male collaterals from whom he had
separated would have no claim over his property. If he
dies as a bachelor (without making a Will), and is survived
by his father or brothers, from whom he had earlier
separated, they would take the property as per the laws of
inheritance and not under the doctrine o survivorship.

i A is an undivided coparcener because the communication of his
intention to separate becomes complete (i.e. brought to the knowledge
of B) after A's death. The telephonic conversation ('I am thinking
of separating' did not make out a clear unequivocal intention on
the A's part.
Even after 1956, a coparcener cannot make a valid gift of
undivided coparcenary interest. Therefore D is not entitled to A's
share under a gift-deed. B, being the karta can make alienation of
property for legal necessity. Marriage of a coparcener's daughter is
legal necessity therefore B's alienation is valid. .
Q.2(a) Mohan, a coparcener, writes a letter on March 10, 1945

addressed to the karta expressing his intention to
separate from the joint family and also informs Kumar
(a common
friend of the family) of his intention. Intending to post the

letter, while on his way to office, his pocket gets picked in
a bus and he loses the letter. In the meantime, on March
13, 1945, Kumar conveys to the family of Mohan's desire
to separate. However, on March 12, 1945, a portion of the
family property was attached in furtherance of a court
decree. Is Mohan still supposed to be joint with his family
or severance of status has taken place? How does the
court decree affect his share in JFP? Decide.
(b) Gurupad, a coparcener, met with a road accident on April 3,

1993 and was admitted to private nursing home. He wrote
a letter on April 6, 1993 expressing his intention to
separate from the joint family. He executed a Will on April
7, 1993 with respect to his undivided interest in favour of
his wife, Shantabai and died on the same day. The letter
was received by the other members of the family on April
10, 1993. Shantabai, being the only heir of her deceased
husband, claims the coparcenary interest of her husband
under the Will. Can she succeed? Also discuss her claims
under the following circumstances:-
(i) If Gurupad had died without making a Will in 1993 and 1953
respectively.
(ii) If Gurupad had died in 1952 after executing a Will. „•■
(lii) If Gurupad's share in JFP had been attached in an

execution proceeding after he sent the letter but before
his death?
[D.U.-2008\[C.LC.-92/93/94/95J96\
A.2 (a) For the law relating to partition See A.l. When a
coparcener communicates his clear intention to separate
from the joint family, partition takes place. This intention
may be communicated by a third person e.g. friend
(Puttrangamma v Rangamma). The attachment of a part
of family property by a court decree on March 12, 1945
tantamount to the creation of a vested right, and it is
binding on all undivided coparceners.
The partition, in the present case, becomes complete when on
March 13, 1945 Mohan's intention was conveyed to the family by
Kumar. But the partition will be effective from the date when
Mohan expressed his
168 Family Law - II
intention to separate, i.e., March 10, 1945 (Doctrine of Relation Back,

Raghavamma v Chenchamma). But vested rights (which occurred
between March 10 and March 13) are not affected by this doctrine.
Therefore, even though Mohan has been separated from joint family, his
share in the JFP is reduced proportionately to the property attached by
the court decree.}
u (b) Before 1956, a coparcener could not bequeath his undivided
interest by Will. But under Sec. 30, Hindu Succession Act, a
coparcener can make a Will of his undivided share.
In the present case, the partition has not been effected because Gurupad's
letter reached the other coparceners after his death. The communication
must have reached the other coparceners during the lifetime of the
separating coparcener {Raghavamma v Chenchamma). However, in view
of Sec. 30, H.S.A., Gurupad can validly make a Will of his undivided
coparcenary interest. Therefore, Shantabai can succeed to the
coparcenary interest of her husband under the Will,
. (i) If Gurupad had died without making a Will then also
Shantabai would get this property because she is a female
Class I heir and proviso to Sec. 6 (Hindu Succession Act)
would apply to the devolution of coparcenary interest of
the deceased. If Gurupad had died without making a will,
before 1956, then she would get a limited estate in his
coparcenary interest.)
(ii) If Gurupad had died in 1952 after executing a Will, then
such Will would be invalid because the Hindu Succession
Act (which validates such Wills) came into operation in
1956. But, here also, Shantabai would get a limited estate
in his coparcenary interest due to the provisions of the
Hindu Women's Right to Property Act, 1937.
(iii) The attachment of Gurupad's share is a creation of vested
right. If Gurupad's share had been attached before his
death, then Shantabai cannot get any property, because the
vested rights which accrue in between the date of expression
of intention and the date when such expression is brought
to the knowledge of other coparceners, are preserved
{Raghavamma v Chenchamma).
3.3 (a) A JHF based in Delhi comprises of karta X, his brother Y, two
sons of X, wife of Y. On 1-1-90, Y went to Haridwar and from
there he wrote a letter to X seeking partition of JHF property.
The said letter was received by X on 8-1-90. On 4-1-90, X had
sold the entire property of the JHF to meet out the medical
expenses of his older son who was suffering from cancer. Y
files a suit for separate possession of his share and
challenged the sale. Decide, j [L.C.I-
94]
(b) A mitakshara coparcener Sent a registered letter from Bombay

to his family at Delhi on 7-2-95 demanding his share in the
JFP. On his way back from post office he met with a serious
accident and went into coma and ultimately died in state of
unconsciousness on 15-2-95. On 11-2-95 the family received
the letter but claimed that the said coparcener died
unconscious and hence undivided. Plead for the widow of the
coparcener. [L.C./-
95]
(a) For the law relating to partition, See A.l. the present case, the
partition became complete on 8-1-90, when Y's letter- was received
by X. But the partition will be effective from the date when Y sent
his letter, i.e. 1-1-90 (doctrine of relation back). However, the
vested rights which accrued between these two dates will preserved
{Raghavamma v Chenchamma). X, the karta, can alienate ; JFP to
meet out the medical expenses of his elder son (on account 'legal
necessity'). Therefore, Y cannot challenge the alienation made by X
(b) The communication of the intention to separate must reach the
other coparceners during the lifetime of the separating coparcener.
In the present case, the partition didn't became complete on 11-2-95
when the family received the letter. Because a person in state of
'coma' is considered 'dead' for many purposes. Brain-death has also
been recognized in recent times. Thus the coparcener's widow
cannot claim the separate share of the deceased,
0..4(a) Can a minor coparcener ask for partition of the JFP ? If so,
in what circumstances and how can he exercise his right?
Discuss. [D.U.-2008 (Supp.)l2009][L.C.II-95\ L.C./-94]
170 Family Law-II
(b) A Mitakshara joint family consisted of F, his wife W and his

minor son aged 2 years. F developed illicit relations with a
widow and started ill-treating W and S. W files a suit for
partition of the JFP against F, claiming 1/3 property for S and
1/3 property for herself. How would you decide the dispute
What would be your answer in case S dies during the
pendency of the suit? [LC.//-9I
(c) A minor Mitakshara coparcener sends, through his maternal

uncle, a registered notice to other coparceners for partition of
JFP. The adult coparceners pay no heed to the notice; on the
contrary, they sell a good part of family property and
purchase residential flats in their own names out of the
proceeds. A day before the suit was to be filed for partition,
the minor dies in an accident. Plead for the heirs of the minor.
[LC./-9I
A.4 (a) Minor's Right to Demand Partition
,'A minor coparcener has an equal right with the adult coparceners to
demand partition (Hindu law makes no distinction between a major and
minor coparcener in respect of their rights in JFP). But since a minor
lacks legal capacity, he has to exercise this right through a next friend
(well-wisher) or his guardian. When the guardian or the next friend
files a suit for partition on behalf of the minor, the court has to be
satisfied that the partition will be for the minor’s benefit.
If the court comes to the finding that the proposed partition is not
for the minor's benefit, the partition will not be allowed. The court is
not bound to pass the decree for partition unlike in the case of a major
coparcener's suit. It cannot be said that in all cases where a suit for
partition is instituted on minor's behalf, the court will actually effect a
partition. "A minor is a person of immature intellect and the court
acting as parens patriae has the duty to protect minor's interest. The
onus of proof that the partition was just and fair is on the party
supporting the partition", [Ratnam v Kuppuswami (1976) 1 SCC
214].
A refusal of the father to maintain a minor son, his (father's)
immoral behaviour and the investment of joint family funds into
speculative transactions, would be sufficient for the courts to conclude
that a partition would benefit the minor [Nagappa Chettiar v
Subramanian (1946) ILR Mad 103]. However, the mere fact that minor
sons were born to the second wife, would not lead to a presumption
Pa rti ti on and R e u n i o n 171
that a partition would be beneficial to the minor [Appalaswami v

Suryanarayana Murti (1948) ILR Mad 440].
Partition takes effect from the date of institution of the suit and not
from the date of the court's order finding that the partition is for the
welfare of the minor.| In Pedasubhayya v Akkamma (AIR 1958 SC
1042) the court observed: "The true effect of a court's decision that the
action is beneficial to the minor is not to create in the minor proprio
vigore a right which he did not possess before but to recognize the right
which had accrued to him, when the person acting on his behalf
instituted the action. Thus what brings about the severance in status is
the action of the next friend in instituting the suit.". It is also now settled
that even if a minor dies during the pendency of the suit, and before
the court's determination whether the partition will be for the minor's
benefit, the suit can be continued by the legal representative of the minor
Pedasubhayya v Akkamma; Lakkireddi v Lakshamma AIR 1963 SC
1609).
In Aryan Kamal Wadhwa v Biharilal Wadhwa (AIR 2009 Bom
80), the daughter-in-law of the Karta was having a matrimonial problem
with Karta's son. She was awarded maintenance by the court under the
Hindu Marriage Act, 1955. She on behalf of her minor son sought
partition of the HUF property as his next friend claiming one sixth
share. The husband (Karta's son) contended that the family was ready
to maintain the child out of the share in the JFP and there was no need
of a formal partition as minor's financial interests were adequately
protected by the family. It was held that a partition of the JFP through
the filing of a suit by the next friend (mother in the present case) can
be validly effected. The court opinioned that that the possibility of the
father (being young) getting married again may not be ruled out. In that
event he would get other children and may not be in a position to take
care of the interests of this minor. On the other hand, the mother
offered to deposit the share of the minor in the court and to invest it
according to the directions of the court showed bona fide on her part.
/It may be noted that it is not necessary that the minor can claim partition
only by instituting a suit. He can do so by giving a notice ^through his
friend or guardian. In other words, the partition can be • effected out of
the court. The suit becomes necessary when the adult coparceners are not
willing to effect a partition. It may also be noted that when father
partitions, it does not mean that his minor son's interest also gets severed
(Anandi v Naik AIR 1981 Ori 21).
172 Family Law - II
It is also an established rule of Hindu law that presence of minor

coparcener is no bar effecting partition by adult coparceners. Thus, a
partition by agreement entered into by adult coparceners, when there
are minor coparceners will be binding on the minors, unless it is unfair
or prejudicial to their interest (Bishnudeo v Seogant AIR 1951 SC 280).
In the latter case, the minors can get it aside on attaining majority. On
attaining majority, minors may also sue for the enforcement of the
partition.
. (b) If a karta is squandering the JFP to the prejudice of the minor
coparcener, or if he is ill-treating him or discriminating him, or
is, on the whole, unfavourably disposed of towards the minor,
the minor's guardian may deem it proper to effect a partition
on behalf of the minor.
In the present case, W (mother of S), acting as a guardian of her son,
can file a suit for partition but on the behalf of S. since under Hindu
law a female has no right to partition. However, if partition takes place,
she is entitled to a share equal to that of son. If S (minor) dies during
the pendency of the suit, the suit can be continued by W as legal
representative of S (Pedasubhayya v Akkamma, See under the text).J
(c) The severance of status takes place when guardian gives a
notice of partition on behalf of the minor (Grandhi v Grandhi AIR
1953 Mad. 146; Pappaya v Venkatakrishna Rao (1968) 1 An. WR
36). In the present case, the partition is effected when the minor
sends, through his maternal uncle, a registered notice to other
coparceners. As the other coparceners are unwilling to effect a
partition, the filing of suit becomes necessary. However, the minor
dies before the filing of the suit. But, still the action can be continued
by the legal representative of the minor. The pleadings on the part
of the legal heirs could be as follows:-
(i) When the law permits a person interested in a minor to act
on his behalf, any declaration to become divided made by
him on behalf of the minor must be held to result in
severance of status, subject only to the court's decision
that what the next friend has done is for the minor's
benefit.
(ii) Thus the status of the minor as separate in estate is brought
about by his assertion of right to separate, whether he
obtains a consequential judgment or not.
(iii) The rule that 'action dies with the person' has application
only when the action is one for damages for personal
wrong, and as a suit for partition is a suit for property, this
rule has no application here.
Q.5 How would you distinguish between the terms 'Severance of

status' and 'Partition by metes and bounds'?
[LC.II-95/96 (Supp.)]
A.5 and enjoy his hitherto undefined and
unspecified share separately from
Severance of Status others.
(1) It is the desire to sever himself
Partition by metes and bounds respect to all or any of the joint
property is fixed or defined. In
(1) It consists in a division by which short, it means actual or physical
the share of each coparcener with division of JFP.
(2) It is partition in a strict sense, or (2) It is partition in a larger sense, or

be jure partition. de facto partition.
(3) It is a unilateral act, which may (3) It is essentially a bilateral action,

be effected orally. and may be arrived at by
agreement, by arbitration or by
suit.
(4) Partition in the sense of severance of (4) Thus it is the consequence of a

status or disruption of joint status separating coparcener's declaration
is complete by partition by metes of the intention to sever.
and bounds.
7 Hindu Law
of Succession
Today, we have uniform secular law of succession for all Hindus. Old
Hindu law and the customary law of succession stand abrogated. The
Mitakshara bias of preference of males over females and of agnates
over cognates has been considerably whittled down. The Hindu
Succession Act preserves the dual mode of devolution of property viz.
by survivorship and by succession, under the Mitakshara School.
The Act bases its rule of succession on the basic Mitakshara
principle of propinquity, i.e., preference of heirs on the basis of proximity
of relationship (based on natural love and affection i.e. nearness of
blood). It does not interfere with the special rights of those who are
members of Hindu Mitakshara coparcenary except to provide rules for
devolution of the interest of deceased male in certain cases. The Act
lays down a uniform and comprehensive system of inheritance and
applies to persons governed by the Mitakshara and Dayabhaga Schools
and also to those governed previously by the other laws.
The law of succession is classified under the two heads:
(i) Testamentary succession - The testator i.e. person who made
the Will, enjoys full freedom of bequeathing his property
-separate (divided) or undivided interest. It deals with rules
relating to devolution of property on relations as well as others.
(ii) Intestate succession - It is based on the law of inheritance viz.
rules which determine the mode of devolution of property of
the deceased on the heirs solely on the basis of their relationship
to the deceased. If the person dies without leaving a Will, it is
the object of the law of inheritance.
[174]
Hindu Law of S uc c e s s i o n 175
Distinction between Succession and Inheritance - The law of

inheritance consists of rules which determine the mode of
devolution of the property of the deceased on heirs solely on the
basis of their relationship to the deceased, while law of succession
deals with the rules relating to devolution of property on
relations as well as others.
The Hindu Succession Act, 1956 deals with both testamentary
succession (Sec. 30) and intestate succession. The subject could
be divided under the four heads: (1) Succession to a Hindu male,
(2) Succession to a Hindu female, (3) Disqualification of heirs
and (4) General rules of succession. It is important to note that
succession opens at the time of the death of the person whose
estate is in question and is governed by this law in force at the
time.
Notable Features of the Hindu Succession Act, 1956

The Act not only codifies the law relating to the intestate succession
but also amends it. The Act purports to ovenide all existing laws
whether in the shape of texts, enactments, custom or usage (Sec.
4). The following are some of the distinguishing features of the
Act:-
(1) The Act shall apply to all intestate Hindu succession, except
to the property of a person to whose marriage provisions of
the Special Marriage Act, 1954 apply, and to the impartible
estates, of Rulers of Indian States, succession to which is
regulated by special covenants or agreements or any
existing enactments (Sec. 5).
(2) The Act will not apply to a Mitakshara coparcenary property
except when a coparcener dies leaving behind female heirs
mentioned in Sec. 6. The Act lays down new provisions for the
devolution of the property of a male Hindu (Sec. 8) and of a
female Hindu (Sec. 15), dying intestate.
(3) H.S.A. and the Joint Family Property - The Act modifies in
certain respects law relating to JFP. Now the undivided
interest of a Mitakshara coparcener in the JFP on his death
does not necessarily devolve by an absolute rule of
survivorship, but may go by any of the following modes -
(a) By testamentary disposition - A Mitakshara coparcener may
dispose of his undivided share through a Will (Sec. 30).
176 Family Law - II
(b) By survivorship - In case he does not make a Will of his

share, it will devolve on the surviving coparceners by rule
of survivorship, except when he dies leaving behind female
heirs, etc. under Sec. 6.
(c) By rule of intestate succession - In case he dies intestate
survived by one or more of Class I female heirs or a male
heir claiming through a female, his undivided interest in the
JFP shall not devolve by survivorship but by intestate
succession to the separate property of a Hindu male (Sec. 6)
(4) The Act abolishes Hindu Women's limited estate and confers on
her absolute property right (Sec. 14).
(5) Sec. 23 gives right of residence to a female heir in the dwelling
house of his intestate family, if she is unmarried or is married
but discarded or is a widow.
(6) No person shall be disqualified from succeeding on the ground
of any disease, defect or deformity or on any other ground not
provided in the Act (Sec. 28).
(7) The rights are created in favour of heirs irrespective of the
generations they might have been removed from the intestate
Important Terms (Sec. 3, H.S.A.)

Intestate - A person who dies without making a Will.
Heir - A person who is entitled to inherit property after the death of the
intestate.
Descendants - It mean the offsprings of a person e.g. sons and
daughters. The children of sons and daughters and their children, and
so on (up to any degree of descent), are also descendants.
Ascendants - It mean the ancestors of a person e.g. father and mother
The father and mother of his father and mother are also his ascendants
and so are their parents up to any degree.
Collaterals - These are descendants in parallel lines, from a common
ancestor or ancestress. For instance, brother is a collateral, so is sister
Similarly, paternal uncle and paternal aunt and their children are collaterals
and so are maternal ones.
Agnates - When a person traces his relationship with another wholly
through males, he or she is an agnate. His sex or the sex of the
H i n d u Law of S u c c e s s i o n 177
deceased Hindu is immaterial. For instance, brother, brother's son,

son's son, son's son's son, father, father's father, father's mother,
father's father's father or mother, son's daughter, etc. are agnates,
thus, agnates can be descendants, ascendants or collaterals.
Cognates - Whenever in the relationship of a person with another, a
female (or females) intervenes anywhere in the line, one is a cognate
to another. For instance, sister's son and daughters; daughter's sons
and daughters; mother's mother and father; father's mother's father
and mother; mother's father’s son and daughters (i.e., maternal uncles
and aunts) are all cognates. Thus a cognate may be a descendant,
ascendant or collateral.
Full blood - When the father and mother of two persons are the same,
e.g. 'real' brothers and sisters.
Half blood - When two persons have the same 'father but different
mothers. Also called 'consanguine' brothers and sisters; they are agnates
because they inherit through a male (common father).
Uterine blood - When two persons have the same mother but different
fathers. They are cognates because they inherit through a female
(common mother).
Legitimate/illegitimate relationship - A person who is born within a
lawful wedlock is legitimate, and he or she is related to his or her
parents by legitimate relationship. A person born outside the lawful
wedlock is illegitimate. With father, only legitimate relationship-is
recognized. The illegitimate relationship is recognized to the mother.
SUCCESSION TO A HINDU MALE
The Hindu Succession Act, 1956 debris with the inheritance to - (a) the
separate properties of a Mitakshara male, (b) to the undivided interest
in the JFP of a Mitakshara coparcener. The H.S.A. (Amendment) Act,
2005 does not touch 'separate property' except broadening the Class I
heirs. However, as discussed later, it abolished the doctrine of survivorship
implicit in Mitakshara coparcenary.
180 Family Law - II
daughters were born out of this relationship. Their relationship had been
accepted not only by the society but also by the family members.
The Supreme Court observed: The courts have consistently held
that law presumes in favour of marriage and against concubinage, when
a man and woman have cohabited continuously for a number of years.
In such a case there will be a presumption under Section 114 of the
Evidence Act, that they live as husband and wife and the children born
to them will not be illegitimate. However, such presumption can be
rebutted by leading unimpeachable evidence.
It is submitted that conferring legitimacy on children of such
relationships would create confusion and uncertainties regarding the
succession rights.
Daughter, son's daughter, son's son's daughter

The position of 'daughter' is same as that of a son. The distinction
between married, unmarried and widowed daughters is not there and all
daughters inherit equally. Unchastity and divorce is no bar to inheritance.
Daughter's son and daughter's daughter

Illegitimate daughters and sons of a daughter are included, as illegitimate
children are related to their mother i.e. daughter.
Widow, son's widow and son's son's widow

The propositus (deceased Hindu) widow means wife of a valid marriage
only (thus if void or annulled voidable marriage, widow is not entitled
to inherit). Also, a divorced wife will not be his widow (but if husband
dies pending divorce proceedings, the wife would not lose her right to
succeed to the husband's property). An unchaste widow can inherit. If
she remarries, she will not be divested of her husband's inheritance
However, a son's widow or son's son's widow, if remarries, can't
inherit.
Mother
The propositus (deceased Hindu) may be her legitimate/adopted/illegitimate
son. She may be unchaste/remarried/or divorced. It is immaterial whether
her marriage was void/voidable. Mother is always a mother. But, a step
mother is not included in the expression "Mother". The natural mother
is not entitled to succeed to the property of her son given in adoption.
Shares of Class I Heirs

he computation of the shares of heirs is to be done in accordance with
le rules laid down in Sec. 10.
(i) Sons, daughters, mother and widow of propositus each take
one share. If there are more than one widow, all of them
together took one share (On death of any widow, her share will
not pass by survivorship to other widows, but will pass by
succession to her own heirs). Thus, all Class I heirs are not
entitled to an equal share.
I
IPI
S> S2 D1 i)2
Each of the above heirs will take one share i.e. 1/5.
[Note - In the above and following illustrations, the deceased Hindu i.e.
propositus is indicated by [P]; and, predeceased person enclosed in
brackets.]
W1
2 [AH widows will take
together 1/4 share, i.e. 1/12 w3
each.]
(ii) The sons and daughters of the intestate who are living at the
time of his death take one share each. These children of the
intestate may be from different wives. But they will get equal
shares individually. t
(Hi) Among the heirs of branches of predeceased son and

predeceased daughter the doctrine of representation applies,
i.e., heirs in each branch would take the same share their
parent would have had if alive. The heirs would take per capita
182 Family Law - II
i.e. per head. Thus, the common share that the branch of the
each predeceased son or predeceased daughter gets will be
distributed equally among the heirs of that branch.
It may be noted that unlike the widow of the predeceased son of the
intestate, the widower husband of predeceased daughter will not get
any share.
(S1) (D) (S)

—[ (s|s)
SW DS DD
SSW SSD SSS
In the above diagram, there are four branches, each will take 1/4. In
the branch of (SI) (predeceased) there is only one heir, SW, she,
representing (SI), will take 1/4. In the branch of D there are two heirs,
they, representing (D) will take 1/4 and thus each will get 1/8. In the
branch of (SS), there are three heirs, and each will get 1/12.
Class II Heirs and their Shares

When there is no heir of Class I, the heirs of Class II get a chance to
succeed to the property of the intestate (Sec. 8). According to Sec. 11,
U.S.A., Class II heirs are divided into nine categories - the heir in an
earlier category (entry) excludes all heirs in later categories (Sec. 9).
Thus, the heirs have preference in the order of entries.
However, all heirs in one i.e. same category take simultaneously
and per capita. Thus the property will be so divided between them that
every one of them (who are in same entry) gets an equal share. However,
full-blood is to be preferred to half-blood.
Before the 2005 Amendment, there were 23 heirs in Class II; four
of them have now been placed in Class I. Thus the number of heirs in
Class II is 19. The Nine entries and the heirs are as follows:
(I) Father - He is the only nearest heir who hasn't found a place in Class
1 heirs as under the Mitakshara law, mother was considered to have
greater propinquity than the father. Father is the sole heir in
category/entry I, and in the absence of Class I heirs, takes entire
property.
(II) Son's daughter's son; Brother; and Sister - Sister inherits
simultaneously with the brother and other heirs mentioned in Entry
II. The rule is when there is any brother or sister by full blood, the
brother or sister by half blood is excluded (Sec. 18). When there is no
former, the latter inherits. In the following illustration FS and FD1
being full blood brother and sister get a share, and half blood sister
(FD2) gets excluded.
The brother and sister by uterine blood are excluded. In other words, uterine
brothers/sisters are not entitled to succeed to one another as 'brothers/sisters'
under this entry although related by legitimate kinship. However, if
propositus and his brother and sister are all illegitimate children of their
mother, such brothers and sisters are heirs to him.
(F)
----------------1
[P] FS FD1 FD2

1 (1/4) (1/4) (excluded)
(S)
I SD
SDD SDD1
(1/4) d/4)
(III) Daughter's son's son.

(IV) Brother's son; Brother's daughter; and, Sister's son; Sisters daughter.
184 Family Law - II
F
I [P]
I (S)
I (SD)
SDD SDD1
In this case, SDD and SDD1 being heirs in category II, and F an heir in
category I, F will take entire property to the exclusion of SDD and SDD1.
(V) Father's father, and, Father's mother - (i.e. Paternal grand
father/mother).
(VI) Father's widow; and, Brother's widow - Father's widow means step-
mother (she is the only step relation that is included among the heirs;
step-father is not an heir at all) (even if she remarries or is unchaste,
she will inherit). A brother's widow can't succeed, if she had
remarried on the date when succession opens.
The rule that if there are more widows than one, they together take one share
applies to the Class I heirs and not to the Class II heirs. Thus the rights of
Class II heirs are not unequal, unlike that of the heirs placed in Class I.
(VII) Father's brother, and, Father's sister - (i.e. Paternal uncle or
aunt/or grandfather's sons or daughters).
(VIII) Mother's father; and, Mother's mother - (i.e. Maternal
grandfather/mother).
(IX) Mother's brother; and^ Mother's sister - (Maternal uncle/aunt).
Agnates and Cognates

Agnates are as a rule preferred over cognates. Here, agnates and cognates as
heirs are those agnates and cognates which are not included in Class 1 and
Class II heirs.
Agnates are those relatives which are related wholly through males
whether by blood or by adoption). Cognates are the relatives who are
not wholly through males. It would be extremely rare that a deceased
will not be survived by an agnate up to any degree ad infinitum. This
makes the chance of succession to the cognates quite illusory.
B] Succession to a Mitakshara Coparcener's (Undivided) Interest

Sec. 6, H.S.A. - "When the male Hindu dies after commencement of
this Act, having at the time of his birth an interest in a Mitakshara
coparcenary property, his intercut in property shall devolve by
survivorship, upon the surviving members of coparcenary, and not in
accordance with this Act"
Proviso - If a MitaksHSfa coparcener dies leaving behind a female
relative/or a male relative claiming through a female in Class I, this
undivided interest will not devolve by survivorship, but by succession
as provided under the Act (Relations include mother, widow, son's
widow, son's son's widow, daughter, son's daughter, son's son's
daughter's son).
Explanation I to Sec. 6 - "For the purpose of this section, the interest
of a coparcener shall be deemed to be the share in property that would
have been allotted to him if a partition had taken place before his death,
irrespective of whether he was entitled to claim partition or not."
Note: The expression "whether he was entitled to claim partition or
not" becomes significant in certain cases e.g. in Punjab, a son cannot
enforce partition during his father's lifetime. Likewise, in Bombay, a
son is not entitled to ask for a partition in the lifetime of his father
without his consent when the father is not separated from his father.
It may further be noted that it is not necessary for the Proviso to
come into operation that the deceased coparcener should have himself
been competent to claim partition. Thus, the Proviso will apply to the
case of a minor coparcener.]
The crucial question is - What is the interest of the deceased coparcener
when he dies? Under the Mitakshara, immediately on the death of
coparcener, his interest passes by survivorship to other coparceners,
with the result that on his death he leaves behind nothing (there was no
succession before 1956). It is also a Mitakshara rule that coparcenary
interest in JFP can be specified and secured by partition. Thus, to know
186 Family Law - II
the share or interest of a deceased coparcener, the Parliament was left

with no option but to import the fiction of "notional partition" in the
Hindu Succession Act, 1956.
Notional/or deemed partition - Death of a coparcener leaving behind
a female does not mean automatic partition among the heirs. The notional
partition is not a real partition, it neither effects a severance of status
nor does it demarcate interest of other coparceners or those who are
entitled to a share on partition. It has to be used to demarcate the
interest of deceased coparcener, once that specific purpose done, rest
should be forgotten. His share gets fixed on the date of his death,
subsequent fluctuations in the fortunes of coparcenary do not affect it,
and it is this share which will go by inheritance (Karuppa v Palaniammal
AIR 1963 Mad 254). As the allotment of shares is only a fiction, it is
called notional or deemed partition.
Examples - A joint family of A, his two sons B and C and a son BS
and daughter BD of B. Suppose B dies. Since he leaves behind BD, a
female in Class I, his interest will devolve by succession.
(B) C
I-----------
BS BD
If partition had taken place during B's lifetime, he would have got 1/
6 share (A will get 1/3, C-1/3, and B's branch-1/3). In the branch of
B, B and BS, on partition, will take 1/2 of 1/3, i.e., 1/6 each (since
daughters does not take a share on partition like a coparcener before
2005). In notional partition, we start with the assumption that B is alive.
After demarcating B's share, we forget about partition and note that B
is dead and his 1/6 interest as demarcated by the notional partition will
go by succession (A, C or BS do not get any share. They continue to
remain joint in the remaining 5/6).
The next step is to divide 1/6 among B's heirs in accordance with
the H.S.A, A is his father who is in Class II, C is his brother who is
also in Class II, and BS and BD are his son and daughter who are
in Class I. Class I heirs are preferred over Class II heirs. Thus BS
and BD will take 1/12 each. It may be noted that BS will also get
1/6 share in addition to 1/12. In absence of Sec. 6, on the father's
death, the son would be entitled to the complete property under
the doctrine of survivorship and the daughter would get nothing.
Thus, introduction of Sec. 6 in H.S. Act, 1956, did work to the
advantage of women but could not remove the discrimination
regarding women (unequal distribution of property). The
discrimination was removed by the 2005 Amendment to the Act.
When a notional partition is effected, and there are females
entitled to a share, they too are to be allotted their shares. For
example, A dies leaving behind two sons B and C and a widow
W.
(A) = W
B C
On notional partition, i.e., when A is alive, and so A's widow (his

wife), each of them will take 1/4 share (In partition, father's wife,
mother and grandmother are entitled to a share). A's 1/4 share will
go by succession and in remaining 3/4 share family will continue to
be joint. In the notional partition neither B nor C takes anything,
nor does W takes anything.
Notional Partition or Real Partition?

To a very limited extent of ascertaining and separating the
interest of the deceased coparcener, the fiction of notional
partition has to be applied. This was the legislative intent. But
when the female relative happened to be the wife or the mother
living at the time of the coparcener's death, conflicting judicial
decisions emerged.
The issue was whether this notional partition is to be
restricted to the devolution by succession of the interest of
deceased coparcener or it goes further and results in a (real)
partition among all the members who would be entitled to a share
in the coparcenary property when a regular partition takes place i.e.
brings about severance of status among the surviving coparceners.
According to 'Narrow approach', the presumption that a
partition had taken place is for a specific purpose only i.e. to find
out the interest
188 Family Law - II
of the deceased coparcener, which now is available for succession.

Once that is calculated there is no need to go any further i.e. there is
no need to give shares to others in the family, whether male or female.
The logic behind is that there is no presumption that rest of the members
are also divided. According to 'Wider approach', prominence is to be
given to the intention of the legislature in interpreting Sec. 6. When the
share of the deceased is ascertained, the consequences of a real partition
follow, and if there are female members who would have been entitled
to get a share if a real partition had taken place, they must be given
such a share.
The 'Wider approach' has been adopted largely since the
consequences of a notional partition and those of a real partition are the
same. However, the death of one coparcener would not mean a disruption
of the entire joint family as the other coparceners can maintain a joint
status.
In Rangubai v Laxman (AIR 1966 Bom 160), a Hindu A died
leaving behind his widow W and adopted son S. He and his son
constituted a coparcenary. A's share was to devolve by succession,
since A died leaving behind W. Then what was his share? On this, two
views have emerged:
(a) Bombay school - Widow, in fact, takes a share when notional
partition takes place, and she will take her 1 /3 share (so notional
partition becomes a real partition for her), and in addition to
this, she will take 1/2 of 1/3, i.e. 1/6 as her share as a heir.
Thus, she will take 1/3 + 1/6 = 1/2 of the total JFP.
(b) The other view is that, she, like other co-sharers, does not
actually take share in a notional partition. So, she takes only 1/
6 share by succession.1
1. W will end at 1/6 as there is no possibility of her getting any share in a real
partition. On death of A, S becomes sole surviving coparcener and there is no
question of any other coparcener asking for partition. This may be hard for W.
Had her husband died leaving behind 2 sons, she could get a share (equal to
son's) whenever her sons partitioned. The shastrakars allowed her a share
only in the event of a partition, not otherwise. She was allowed a life-long
right of maintenance and when partition took place, certain ferrules are entitled
to a share. If a partition does not take place, no female will even get a share
in JFP. Thus, by virtue of Sec. 6, in some cases women may be losers and in
some gainers. This 'Narrow approach' thus does not further the intention of
the legislature in improving the condition of women in respect of JFP.
Hindu Law of S u c c e s s i o n 189
In Rangubai's case, Patel J. propounded the view thus -

"When the interest of the deceased coparcener is to be determined,
the court should first determine what is the property available for
partition, then partition the coparcenary property setting aside the
widow's share to which she is entitled in her own right and divide
the share of the deceased coparcener amongst the heirs: and by
decree make proper provision for the maintenance and marriage
expenses of the daughters and award the widow her due share in
the coparcenary property and divide the property of her husband
among the heirs."
This (wider) view has been confirmed in Sushilabai v
Narayanrao [AIR 1975 Bom 257 (F.B.)] and in Gurupad v
Hirabai (AIR 1978 SC 1239). In Sushilabai v Narayanrao, the
issue was whether the mother was entitled to her actual share on
deemed partition which she would have got on actual partition. It
was observed: "We are merely affirming the right which the
mother has when partition takes place between father and son.
Such right is conferred by pure (Shastric) Hindu law and as the
notional partition takes place she has to be given her share as a
result of that partition." It was held that any of the Class I female
heirs can claim to succeed not only to her share in the interest of
the intestate deceased coparcener but also her share in the JFP as
she would be entitled has the actual partition taken place.
LEADING CASE: GURUPAD v

HIRABAI2 (AIR 1978 SC
1239)
[The Explanation to Sec. 6 i.e. legal Fiction should be given its

due and full effect. The assumption which the statute
requires to be made is 'that a partition had in fact taken
place' between the deceased and coparceners immediately
before the death. This interpretation will further the
legislative intention with regard to the enlargement of the
share of the female heirs, qualitatively and quantitatively.
Sec. 6 is a measure to ameliorate or improve the lot of Hindu
women.
& Discuss the facts and law as laid down in Gurupad v Hirabai (AIR 1978
SC
" 1239) [LC.I-
94]
F, a Mitakshara male Hindu dies on 1-1-94, leaving behind his widow, W,
two
sons S1 and S2, and three daughters D1, D2 and D3. W files a suit for
partition
of the JFP under Sec. 6 of the H.S.A , 1956. What would be the share of
each
in the joint property ? Discuss the points of law involved in the case.
Refer
case law. [LC. 11-96
(Supp.)]
190 Family Law - II
The widow's share must be ascertained by adding the share to

which she is entitled at a notional partition during her husband's
lifetime and the share which she would get in her husband's
interest upon his death.]
Facts - In this case, one Khandappa died in 1960 leaving behind
his widow (Hirabai), two sons and three daughters. Hirabai filed a
suit for partition and a separate possession of a 7/24 share in the
properties of Khandappa. The suit was challenged by Gurupad, a
son of the deceased coparcener.
Khandappa — Hirabai (W)
Gurupad Biyawwa Bhagirathi Dhandubai Shivpad

(S) (D) (D) (D) (S)
In a partition (notional) of the coparcenary property, Khandappa

would have obtained a 1/4 share (the three other shares being his
two sons and his wife). The widow will get a 1/6 share in 1/4
share of her husband as a heir, thus she will get a 1/24 share (the
other five sharers being two sons and three daughters). The question
arises whether the widow would get a 1/4 share also along with her
1/24 share, i.e. 7/24 share in all. If the partition occurs during the
life time of a coparcener, the wife (of coparcener) is entitled to a
share (equal to that of a son). The issue is whether she can claim
such share after her husband's death when a notional partition
occurs (in notional partition, one start with the assumption that the
coparcener was alive).
In this case, Khandappa having died, leaving female heirs
specified in Class 1, possessed of an interest in Mitakshara
coparcenary property, Sec. 6 of Hindu Succession Act is squarely
attracted. Sec. 6 deals with devolution of the interest which a male
Hindu has in a Mitakshara coparcenary property at the time of his
death. Proviso to Sec. 6 reads: If a Mitakshara coparcener dies
leaving behind a female relative/or a male relative claiming through a
female in Class I, this undivided interest will not devolve by
survivorship, but by succession as provided under the Act.
Explanation I to Sec. 6 reads: For the purpose
of this section, the interest of a coparcener shall be deemed to

be the share in property that would have been allotted to him,
if a partition had taken place before his death, irrespective of
whether he was entitled to claim partition or not.
Observations - The Court observed: The proviso to Sec. 6
contains the formula for fixing the share of the claimant while
Explanation 1 contains a formula for deducing the share of the
deceased. Since Explanation I is intended to be explanatory of
the provisions contained in the section, what the Explanation
provides has to be co-related to the subject-matter which the
section itself deals with. In order to ascertain the share of heirs
in the property of a deceased coparcener, it is necessary in the
very nature of things, and as the very first step, to ascertain
the share of the deceased in the coparcenary property. For, by
doing that alone one can determine the extent of the claimant's
share. Explanation 1 incorporate a fiction that the interest of a
coparcener "shall be deemed to be" the share in the property
that would have been allotted to him if a partition had taken
place immediately before his death.
The fact that it is a mere notional partition should not
"boggle" our imagination. The Explanation to Sec. 6 i.e. legal
fiction should be given its due and full effect. The assumption
which the statute requires to be made 'that a partition had in
fact taken place' (between the deceased and coparceners
immediately before the death) must permeate the entire process
of ascertainment of ultimate shares of heirs through all its
stages. The assumption once made is irrevocable. To make the
assumption at the initial stage for the limited purpose of
ascertaining the share of the deceased and then to ignore it for
calculating the quantum of the share of the heirs is truly to
permit one's imagination to boggle.
All the consequences which flow from a real partition
have to be logically worked out, which means that the heir's
share must be ascertained on the basis that they had separated
and received a share in the partition which had taken place
during the lifetime of the deceased. The allotment of this share
is not a processual step devised merely for the purpose of
working out some other conclusion. It has to be treated and
Family Law - II
accepted as a concrete reality, something that cannot be recalled just as a

share allotted to a coparcener in an actual partition cannot generally be
recalled. The inevitable corollary of this proposition is that the heir will
get his or her share in the interest which the deceased had in the
coparcenary property at the time of his death, in addition to the share
which he or she received or must be deemed to have received in the
notional partition.
The court further observed: The interpretation which we are
placing upon the provisions of Sec. 6 will further the legislative
intention with regard to the enlargement of the share of the female heirs,
qualitatively and quantitatively... By restricting the operation of the fiction
enacted by Explanation I, we shall be taking a retrograde step, putting
back as it were the clock of social reform which had enabled the Hindu
women to acquire an equal status with males in matters of property [viz.
Hindu Women's Right to Property Act, 1937; Sec. 14(1), H.S. Act,
1956]. Even assuming that two interpretations of Explanation I are
reasonably possible, we must prefer that interpretation which will further
the intention of the legislature and remedy the injustice from which the
Hindu women have suffered over the years. Sec. 6 is a measure to
ameliorate or improve the lot of Hindu women.
Held - Thus, it was held that the widow (Hirabai) is entitled to a 1/4
share plus 1/24 share i.e. 7/24 share.
Comments - It is submitted that the court in the above case does not
say that the notional partition must bring about severance of status of
the joint family, or that the coparcenary ceases to exist even if the
deceased was survived by two coparceners (In other words if a
coparcener dies leaving behind a female heir under Sec. 6, there is
automatic statutory partition and Mitakshara coparcenary comes to an
end).
Thus, in State of Maharashtra v Narayan Rao (AIR 1985 SC
716), it was observed that Gurupad's case has to be treated as an
authority only for Explanation I to Sec. 6; it is not an authority for the
proposition that a female member ceases to be a member of the family
on the death of a male member whose interest devolves on her without
her volition to separate herself
from the family. In Rajrani v Chief Settlement Commr.

(AIR 1985 SC 1234) the Gurupad's decision followed.
In Anar Devi v Parmeshwar Devi (AIR 2006 SC 3332),
held that Explanation I provides a mechanism under which the
undivided interest of a deceased coparcener can be
ascertained. For that, a notional partition has to be assumed
immediately before his death and the same shall devolve
upon his heirs by succession, including the surviving
coparcener, who, apart from the devolution of the undivided
interest of the deceased upon him by succession, would also
be entitled to claim his undivided interest in the coparcenary
property which he could have got in notional partition.
In Neelavva v Bhimavva (AIR 1962 Karnt 307), P a
coparcener died leaving behind his mother M and widow W.
Thereafter, W adopted X as his son. X sued for partition and
claimed 1/2. The court allowed only 1/4, as on P's death, M
and W each will take 1/2. When W adopted X he became a
member of joint family with his adoptive mother W in this
1/ 2 share, therefore, in a partition against his mother he can
claim only 1/4.]
Legal Position after 2005 Amendment

The amended Sec. 6 ('Devolution of Interest in Coparcenary
Property') reads:
Sec. 6 (3): "Where a Hindu dies after the commencement of the
H.S.A. (Amendment) Act, 2005, his interest in the property of a joint
Hindu family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this
Act and not by survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken place and -
(a) the daughter is allotted the same share as is allotted to a son;
(a) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of
such predeceased son or of such pre-deceased daughter;
(b) the share of the pre-deceased child of a pre-deceased son or
of a pre-deceased daughter, as such child would have got
had
194 Family Law - II
he or she been alive at the time of partition, shall be allotted to

the child of such pre-deceased child of the pre-deceased son
or a pre-deceased daughter, as the case may be."
Explanation - For the purposes of this sub-section, the interest of a
Hindu Mitakshara coparcener shall be deemed to be the share in the
property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective of
whether he was entitled to claim partition or not.
As noted above, after the amendment, a daughter is allotted the
same share as is allotted to a son. Further, the surviving child of the
predeceased son or daughter would get the share of his or her
predeceased father or mother, as the case may be. Thus, son as well
as daughter of the daughters and son as well as daughter of the
predeceased son will get the share of their predeceased mother or father
at notional partition, irrespective of whether such a child is entitled to
claim partition or not. Similarly, the child of pre-deceased child of the
pre-deceased son or a pre-deceased daughter i.e. grand-child is entitled
to a share on partition.
Abolition of Doctrine of Survivorship/Retention of Notional Partition

The 2005 Act, thus, abolishes the incidents of survivorship - one of the
primary incidents of coparcenary - when a male coparcener dies.
Further, in all cases where a Hindu male dies, his interest in the Mitakshara
coparcenary would be ascertained with the help of a deemed/ notional
partition. The amendment retains the concept of notional partition but
modifies its application. Prior to this amendment, notional partition was
effected only if the undivided male coparcener had died leaving behind
any of the eight Class I female heirs or the son of a predeceased
daughter and did not apply generally in every case of death of a male
coparcener.
Survivorship implies that on the death of a corparcener, his interest
was taken by the surviving coparceners and nothing remained for his
female dependents. This rule was first modified by the Act of 1937,
where the coparcener's widow was permitted to hold on to his share
for the rest of her life, and only on her death, the doctrine of survivorship
applied and the male collateral could take the property. The rule was
further diluted in 1956. when the Hindu Succession Act was enacted.
The Act confined the application of survivorship only to cases

where a male Hindu died as a member of Mitakshara coparcenary,
having an undivided interest in the property and did not leave
behind him, a class I female heir or the son of his predeceased
daughter [see, proviso, Sec. 6(1)]. In such cases, the application of
doctrine of survivorship was defeated and the interest of the male
Hindu in the Mitakshara coparcenary, calculated after effecting a
notional partition, went by intestate succession in accordance with
the Act.3
Thus, practically, the rule of survivorship did not apply
because generally a Hindu male, on his death, leaves behind a
female relative specified in Class I or a male relative who claims
through such female relative.4 It should be noted that with the
retention of doctrine of survivorship, the legislature in 1955, had
not distorted the concept and incidents of coparcenary, and at the
same time had not given the females an unfair deal. This doctrine
was applicable only when none of the class 1 female heirs was
present.
As per the 2005 Act, the doctrine of survivorship has been
abolished unconditionally. Now, if any male Hindu dies, having at
the time of his death an undivided interest in Mitakshara
coparcenary, the rule of survivorship would not apply at all. His
interest in the JFP devolves on his death by testamentary or intestate
succession. The abolition of the doctrine might create unequal rights
between surviving coparceners visa-vis each other, which is
contrary to the basic concept of coparcenary. For example, a Hindu
family comprises of a father F, and two sons SI and S2 who form
an undivided coparcenary. Each of them would have a one-third
share in the joint family property. On the death of S2, the surviving
coparceners would have taken his share by survivorship and their
share would have increased to a half each. After the amendment,
the share of S2 would be calculated after effecting a notional
partition, and that would come to one-third. This one-third would
not go by doctrine of survivorship and would go by testamentary
(via Will) or intestate succession. If there is no Will, then this
one-third would go
3. See P. Pradhan Saxena, Family Law II, 2nd Ed., pp. 340-341 (2007).
4. For example, a Hindu joint family comprises father F, his wife W, and two
sons S1 and S2. If any of the male members died between 1956 to
September 2005, the doctrine of survivorship, even though expressly
retained by and not abolished by the legislature, would not have
applied, due to the presence of W, who is a class I femaje heir.
196 Family Law - II
according to the Hindu Succession Act, as per which as between the

father and the brother, the father will be preferred and the brother will
be excluded from inheritance in his presence. Therefore, the father will
get two-third of the total property and the brother would take one-
third.5
Another implication of the abolition of the doctrine of survivorship
would be that a 'separated' son after having taken his share from the
joint family property would again claim a share, if and when any
member of the coparcenary dies intestate. Under the old law, 6 if a son
sought partition during the lifetime of father, and separated from the
family after taking his share, the remaining family continuing and
maintaining the joint status, on the death of the father, neither such
separated son nor any of his heirs were eligible to stake any claim out
of the share of the father because the surviving coparceners would be
there to take the father's share. After the amendment, if the separated
son dies before the father and the father dies later, even then the heirs
of the separated son (viz. his widow and the son) could stake a claim
out of the share of the (grand) father in the capacity of widow of a
predeceased son and son of a predeceased son. It appears not only
anomalous but inequitable too.7
5. Supra note 3, pp. 341-342.

6. Explanation II, Sec. 6 ('Divided coparceners and their heirs not entitled to
succeed under Sec. 6') has been deleted by the 2005 Amendment. "Nothing
contained in the proviso to this section shall be construed as enabling a person
who has separated himself from the coparcenary before the death of the
deceased or any of his heirs to claim on intestacy a share in the interest referred
to therein."
For example, a coparcenary consists of P. and his two sons B and C. B
partitions and takes away his 1/3 share, in remaining 2/3 share P and C
continues to be joint. Later P dies, leaving behind C and a daughter D. P's 1/3
share will be taken by C and D, each taking 1/6. B will be totally excluded.
Similarly, heirs e.g. son of a separated son, though born before the death of the
deceased (e.g. P), can't claim under Sec 6. Similarly, widow of a separated son
can't claim under Sec. 6, however in some cases it has been held that the
Explanation to Sec. 6 refers to a coparcener and not to a female heir, so she
can claim (Baravalingamrna v Shardamma AIR 1994 Karnt 27).
7. Supra note 3, p. 349.
Success/on to Property of a Hindu Male {Example)

(Before 2005 Amendment) \ Hindu joint family consisting of Father
(F), his Wife (W), his Son (S) laving two children (i.e. grandchildren - SI
and Dl); his Daughter (D) laving a daughter (i.e. granddaughter D4); and,
a predeceased Daughter TJ3) having a son (S2) and a daughter (D2).
On death of F, by notional partition, the property will be divided
into three shares, one each for F, W and S. F's l/3rd share will devolve
by succession on all Class 1 heirs viz. W (widow), S, D, predeceased
D3 (represented by a son and daughter) - thus, four shares. Therefore,
I/12th falling to shares of W, S, D and D3 each. Since D3 is dead, her
l/12th share will be divided equally between S2 and D2, each getting
l/24th. D4, SI and Dl will not get anything in the presence of their
parents (in other words, it is only on a partition with their parents that
they will get their shares). Only son and daughter of predeceased son
and daughter will get a share.
The shares will be as follows: W - 1/3 + 1/12 i.e. 5/12. S -
1/3 + 1/12 i.e. 5/12 (S's share will be divided in three parts i.e.
5/12 x 1/3 = 5/36 each to S, SI and Dl). D - 1/12 (D's share
will be divided in two parts i.e. 1/12 * 1/2 =
1/24 each to D and D4). S2
& D2 - 1/24 each (total 1/12).
(After 2005 Amendment)

On death of F, by notional partition, the property will be divided into
five shares, one each for F, W, S, D and D3. F's l/5th share will
devolve by succession on all Class 1 heirs viz. W (widow), S, D,
predeceased D3 (represented by a son and daughter) - thus, four
shares. Therefore, 1 /20th falling to shares of W, S, D and D3 each.
Since D3 is dead, her l/5th plus 1 /20th i.e. 1 /4th share will be divided
equally between S2 and D2, each getting 1 /8th. D4, SI and Dl will not
get anything in the presence of their parents.
The shares will be as follows:
W - 1/5 + 1/20 i.e. 1/4.
S- 1/5 + 1/20 i.e. 1/4 (S's share will be divided in three parts i.e.
1/4 x 1/3 = 1/12 each to S, SI and Dl).
(2) Unchastity is no disqualification under this Act because it

has not been specified anywhere in this Act.
(3) Remarriage of three widows, before succession opens,
disentitles them from inheritance. These widows are son's
widow, son's son's widow and brother's widow (Sec. 24).
Under Sec. 24 of the un-amended H.S.A., 1956, the widow of a
predeceased son, or of a predeceased son of a predeceased son or of
i a brother, is not entitled to inherit the intestate's property as a
widow, if on the date the succession opens she has re-married. The
2005 Amendment Act has deleted this section. However, the effect
of the deletion has not been clarified.
That means the above-mentioned categories of widows can
inherit even if they have re-married. It may, however, be noted that
even without Sec. 24 being on paper, the situation with respect to
these widows has remained the same. Sec. 24 was superfluous and its
deletion therefore would not alter the situation at all. The
disqualification of remarriage is attached to those heirs who entered
the family "by marriage." became widows on the death of the
respective male members to whom they were married, and went out
of the family again by a remarriage. Marriage or remarriage of "blood
relatives" such as daughters, sisters, mother, is of no consequence, but
remarriage of son's widow, son's son's widow, or brother's widow
would mean that they cease to be members of the intestate's family,
and their inheritance rights would be created in the family they are
married into.8
The widowed mother/step-mother is not disqualified from
inheritance even if they have remarried (however, if she has remarried
after divorcing her husband, she has ceased to be his wife and
therefore will not be his widow when propositus dies).
(4) Conversion: Where before or after the commencement of this
Act, a Hindu has ceased or ceases to be a Hindu by
conversion to another religion, children born to him or her
after such conversion and their descendants shall be
disqualified from inheriting the property of any of their Hindu
relatives. A person who converts is not disqualified, but his
children or descendants are disqualified. So also the
descendants of the children cannot
8. Supra note 3, pp. 353-354.

200 Family Law - II
inherit, unless such children or descendants are Hindus at the

time when the succession opens (Sec. 26).
For instance,
[P]
A B C
IB 1
P died leaving behind the sons A, B and C. B had earlier converted to

Islam, but he will take his 1/3 share. But Bl, son of B, cannot inherit.
However, if Bl was born before B's conversion, then he can inherit.
Also, if B after the conversion gets married to a Hindu (under the
Special Marriage Act, 1954) and after a son was born to him, B dies. B's
wife (being a Hindu) goes back to her parent's family and the child is
brought up as a member of her Hindu parent's community. The child will
be a Hindu, and even though a convert's descendant born to him after
conversion, will be entitled to inherit because he is a Hindu.
So, for the descendants to be disqualified from inheriting the
property of the intestate, two things should co-exist: first, they should be
born after the conversion, and, second, they should not be Hindus at the
time of opening of the succession (i.e. time of the death of the intestate). If
the descendant was not a Hindu at the time of opening of the succession,
but converts to the Hindu faith later, he would still not be entitled to
succeed.
Illustration: A Hindu male H (having a father F) gets married to a Hindu
female and a son SI is born to him. On his wife's death, H converts to
the Muslim faith and gets married to a Muslim girl and a son S2 is born
to him from her. If SI dies, H (a convert) is entitled to inherit the property
of his Hindu son, because of the Caste Disabilities (Removal) Act, 1850.
However, if instead of SI, H dies, because H was a Muslim at the time of
his death, the Muslim law of succession will apply to his property and SI
being a non-Muslim, will not inherit from his father. If, after H's death,
H's father, F dies, SI being the son of his predeceased son (born to him
before conversion) would inherit the property. But, S2 (born after
conversion) would be disqualified.9
9. See P. Pradhan Saxena, Family Law II, 3* Ed., pp. 419-420 (2011).
(5) Murderer. Sec. 25 disqualifies two sets of murderers: (i) if a heir

himself murdered or abetted the murder of propositus in
furtherance of succession, (ii) if a heir has murdered/abetted
the murder of someone other than the propositus in furtherance
of succession. This was also the old Hindu law (based on
equity, justice and good conscience).
The rule is that if murder is committed with a view to accelerate
succession, the murderer will not be entitled to reap the harvest of
his
crime. It is a rule of public policy. It is based on the principle of
'Nemo
ex suo delicto meliorem suam conditionem facere potest'. The
section
applies to both testamentary and intestate
succession.
A person who commits/abets the murder of the intestate, cannot inherit
his property. Likewise, if he commits/abets the murder, not of the
intestate, but of an intermediary (heir) between the intestate and him,
and on whose death, he would become eligible to inherit (thus
accelerating the succession in his favour), it would also disqualify him
from inheriting the property of the intestate. For example, a family
consists of A, his father F, and a son of A's predeceased brother BS. In
terms of priority, on A's death, it is F would inherit his property and not
BS, as the son of a predeceased brother has an inferior placement in
comparison to the father. In apprehension of A's death, if BS commits the
murder of F, on the death of A, despite being the closest relation, BS
would be disqualified from inheriting the property of the intestate.10 Under
this section, abetter of murder is also disqualified to inherit. For example,
A has two sons B and C. B himself does not commit murder of A but
abets C to do so. In such a case not only C would be excluded to inherit
the property of A but B also would be excluded. Thus, the commission
of murder of the intestate or the abetting of the commission of murder,
has the same consequences.
The murder must be in "furtherance of succession." For instance,
there was a faction-fight among 5 brothers A, B, C, D and E. Father
sided with one of the brothers. The father got accidentally killed by a
blow from A. A will succeed to the property along with B, C, D and
E, as A did not kill his father in furtherance of the succession.
10. id, p. 417.

202 Family Law - II
The civil courts are not bound by the verdict of the criminal courts.
Thus, a planned murder might not be equated differently from a murder
committed under grave and sudden provocation or to save one's/another's
life, by the civil courts. The term 'murder' must be construed in its
popular sense and not in its technical sense as defined in the Indian Penal
Code. The object of the provision is not here, unlike the IPC, to punish
for murder; the object is to prevent him from getting a benefit from his
own wrong (Minoti v Mohan Singh AIR 1982 Bom. 68).
If an heir is not convicted under Sec. 302, IPC, but by giving him
benefit of doubt, he is convicted under Sec. 324, the disqualification
attaches to him. But if he is acquitted of the murder charge even on the
basis of benefit of doubt, the disqualification does not attach to him
(Chamanlal v Mohan Lai AIR 1977 Del 97). Likewise, where an heir
is acquitted as her involvement in the murder is not established at all,
such an heir is not disqualified (Sarita Chauwhan v Chetan Chauwhan
AIR 2007 Bom 133).
Murder does not mean being 'responsible for death.' Thus, where
on account of the son's deviant behaviour, his father commits suicide
or dies of heart attack, the son is not a 'murderer' and would not be
disqualified.
The murderer should be treated as non-existent and not as one
who forms the stock for a fresh line of descent. Thus, the heir of the
murderer is also disqualified from inheriting the property of person
murdered. For the property does not vest in the murderer and
consequently does not devolve on his or her heirs.
Effect of Disqualification
Sec. 27 lays down that "if any person is disqualified from inheriting any
property under this Act, it shall devolve as if such person had died
before the intestate." Thus, a disqualified person should be treated as
non-existent, and no title or right to succeed can be traced through him.
For instance, P, a Hindu dies leaving behind a widow W and a widow
of predeceased son, SW, who had remarried before P died. W will take
the entire property as if SW was dead.
The disqualified heir is presumed to be dead, and the succession
opens to the next eligible heir. If the next heir is a representative of the
disqualified heir, such heir would also be disqualified. And the succession
passes to the next heir in line.
Effect of Disqualification on Succession
LEADING CASE: VELLIKANNU V R, SINGAPERUMAL

[(2005) 6 SCO 622]
[If a person has murdered his father or a person from whom he

wants to inherit, he stands totally disqualified. Once he (son) is
totally disinherited then his whole stock stands disinherited i.e.
wife or son. When the son cannot succeed then the wife who
succeeds to the property through the husband cannot also lay a
claim to the property of her father-in-law.]
In this case, the question was when the sole male Survivor had
incurred the disqualification under the Hindu Succession Act
(HSA) by murdering his own father, can he still claim the
property by virtue of Mitakshara school of Hindu law? If he
cannot get the property by way of survivorship, then the question
is whether his wife who succeeds through the husband can
succeed to the property?
Learned counsel for the appellant contended that the
appellant being the sole female survivor of the joint Hindu
family property as her husband stands disqualified, she under
proviso to Sec. 6 of the Act, is entitled to the whole of the
estate as a sole surviving member of the coparcenary property
read with Sec. 8 of the Act as a Class 1 heir. As against this,
learned counsel for the respondent-defendant has submitted
that this disqualification which was attached to the son equally
applies in the case of the wife as she is claiming the estate
because of her marriage with the respondent and if he is
disqualified, then she is also equally disqualified to claim any
property being a coparcener from the estate of her deceased
father-in-law.
The court observed: It is now well settled that a member
of a coparcenary acquires a right in the property by birth. His
share may fluctuate from time to time but his right by way of
survivorship in coparcenary property in Mitakshara law is a
settled proposition. In the present case. Defendant 1 and the
Plaintiff who was married to Defendant 1 were members of
joint Hindu family. If the defendant-respondent had not incurred
the disqualification under Sees. 25 and 27, HSA, then they
Family Law - II
would have inherited the property as per Mitakshara school of

Hindu law. In fact, prior to the enactment of the Hindu
Succession Act in 1956, sections like Sees. 25 and 27 were not
there but the murderer of his own father was disqualified on
the principle of equity, justice and good conscience and as a
measure of public policy.
This position of law was enunciated by the Privy Council
in 1924 in Kenchava Kom Sanyellappa Hosmani v Girimallappa
Channappa Samasagar (AIR 1924 PC 209). Their Lordships
held that in Gangu v Chandrabhagabai [ILR (1908) 32 Bom
275), the wife of a murderer was held entitled to succeed to
the estate of the murdered man but that was not because the
wife deduced title through her husband, but because of the
principle of Hindu family law that a wife becomes a member
of her husband's gotra, an actual relation of her husband's
relations in her own right, as it is called in Hindu law a gotraja-
sapinda. The decision, however, has no bearing on the present
case. Therefore, the principle which has been enunciated by
Their Lordships in no uncertain terms totally disinherits the son
who has murdered his father. Their Lordships have observed
as follows: "A murderer must for the purpose of the inheritance,
be treated as if he were dead when the inheritance opened and
as not being a fresh stock of descent; the exclusion extends to
the legal as well as beneficial estate, so that neither he can
himself succeed nor can the succession be claimed through
him."
This Privy Council decision made reference to the
decisions of the High Courts of Madras and Bombay and Their
Lordships have approved the ratio contained in those decisions
that a murderer should be totally disinherited because of the
felony committed by him. This decision of the Privy Council
was subsequently followed in cases: K, Stanumurthiayya v K.
Ramappa (AIR 1942 Mad 277); Mata Badal Singh v Bijay
Bahadur Singh (AIR 1956 All 707); Minoti v Sushil Mohansingh
Malik (AIR 1982 Bom 68).
This position of law was incorporated by way of Sec. 25,
HSA, 1956, which clearly enunciates that a person who commits
murder or abets the commission of murder shall be disqualified
from inheriting the property of the person murdered, or any
other property in furtherance of the succession to which

he or she committed or abetted the commission of the
murder. The objects and reasons for enacting Sec. 25
read as under: "A murderer, even if not disqualified
under Hindu law from succeeding to the estate of the
person whom he has murdered, is so disqualified upon
principles of justice, equity and good conscience. The
murderer is not to be regarded as the stock of a fresh
line of descent but should be regarded as nonexistent
when the succession opens." That means that a person
who is guilty of committing the murder cannot be
treated to have any relationship whatsoever with the
deceased's estate. Therefore, once it is held that a
person has murdered his father or a person from whom
he wants to inherit, he stands totally disqualified. Sec.
27, HSA, makes it further clear that if any person is
disqualified from inheriting any property under this
Act, it shall be deemed as if such person had died
before the intestate. That shows that a person who has
murdered a person through whom he wants to inherit
the property stands disqualified on that account. That
means he will be deemed to have predeceased him.
Now, adverting to the facts of the present case, the effect
of Sections 25 and 27 is that Respondent 1 cannot inherit any
property of his father on the principle of justice, equity and
good conscience as he has murdered him and the fresh stock
of his line of descent ceased to exist in that case. Once the son
is totally disinherited then his whole stock stands disinherited
i.e. wife or son. When the son cannot succeed then the wife
who succeeds to the property through the husband cannot also
lay a claim to the property of her father-in-law.] In Janak
Rani Chadha v State of NCT of Delhi (AIR 2007 Del 107), the
husband murdered his wife. He was thus disqualified from
inheriting the general property of the wife. The next category
of heirs was 'heirs of the husband', who were also disqualified
(being the representative of the disqualified heir). The parents
of the husband were also disqualified from inheriting the
property of the deceased daughter-in-law. It was held that the
property would be taken by the heirs in the next category i.e.
parents of the deceased wife.
206 Family Law - II
GENERAL RULES OF SUCCESSION ACT
(1) Half blood and full blood (Sec. 18) - Heirs related to
the propositus by full blood shall be preferred to heirs
related by half blood. The rule, however, cannot be
invoked when a particular heir is preferred to another by
operation of any rule affecting the order of succession. In
other words, the rule of preference of heirs applies only
in cases of conflict between the heirs of same degree of
propinquity or proximity to the deceased and does not
apply if the claimants of the full blood and half blood
stand in different degrees in relation to the deceased.
(2) Per stripes and per capita rules ('Mode of succession
of two or more heirs'') (Sec. 19) - If two or more heirs
succeed together to the property of an intestate, they
shall take the property per capita (i.e. per head) and not
per stripes (branch-wise), and as tenants-in-common and
not as joint tenants (unless the Act otherwise provides).
Under the Act, heirs in no case take as joint tenants, but as
tenants-in-common. In both cases, property is held jointly, but
there are vital differences in the incidence of both. Joint
tenancy means that the shares of joint owners are not
specified and in the event of the death of one, the other takes
his interest by survivorship. Tenants-in-common means that the
share of each co-owner is a specified share and on his death it
devolves on his heirs (thus the property in such case will be
treated as separate property). So, if two widows succeed
together to the property of the (same) husband, the property in
their hands will to their separate property.
(3) Posthumous child ('child in womb') (Sec. 20) - Such
child is a heir, but the child must be in the womb at
the time of the death of intestate and the child must be
born alive. A child in mother's womb is presumed to be
born before the death of the intestate, although
subsequently born. The inheritance shall be deemed to
vest in such a case with effect from the date of the
death of the intestate.
(4) Presumption in case of simultaneous death (Sec. 21) -
Where two persons have died in circumstances
rendering it uncertain
whether either of them, and if so which, survived

the other, then for all purposes affecting
succession to property, it shall be presumed, until
contrary is proved (thus the presumption is not
conclusive), that the younger survived the older. For
instance, a Father F and a son S die in an air crash.
S will be presumed to have survived F. This
means that F's property will pass to S, and will go
to S's heirs. Younger means younger in
relationship, not necessarily in age.
(5) Preferential right or right of pre-emption (Sec. 22) -
When heirs simultaneously succeed to immovable
property/business of a Hindu male as Class 1 heirs
and if any of heirs wants to dispose of his or her
share in the immovable property/business, the other
heirs will have a preferential right to acquire that
share. Any transfer in derogation of that right would
be voidable, at the instance of the co-heirs, who are
denied their preferential right.
The provisions of the section were necessary in order to
safeguard the interests of the co-heirs (of Class I only),
otherwise the very foundations of the Hindu family would
have been shattered (it avoids any stranger to become the
owner of JFP). Prior agreement between the parties shall
decide the consideration for the transfer. In case of
disagreement, consideration shall be determined by the
court on an application made by either party. If there are
two or more heirs proposing to acquire interest, the heir
offering the highest consideration shall be preferred.
(6) Partition of dwelling house (Sec. 23) - It has been
omitted by the 2005 Amendment to the H.S. Act (See
under the Questions section).
NOTABLE FEATURES OF HINDU
SUCCESSION
(AMENDMENT) ACT, 200511
The 1956 Hindu Succession Act could not remove

completely the persisting inequalities in favour of women.
The amendments were thus made in 2005. The amendment
had also become necessary in view of the changes in Hindu
Succession Act 1956, in five Indian States namely,
11 . What are the major features of the Hindu Succession

(Amendment) Act, 2005?
[D. U. -2009]
208 Family Law - II
Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and

Maharashtra. The 2005 Amendment Act is reportedly similar to
the laws enacted in Andhra Pradesh and Kerala.
Certain other amendments were also made in the Hindu
Succession Act. The primary changes introduced by the 2005
Amendment are discussed below:
(1) Deletion of provisions exempting application of the

Act to Agricultural Holdings
Inheritance of agricultural land is subject to State-level tenurial
laws12 and not to the Hindu Succession Act (it is only if a
particular State did not have any such law, then the Hindu
Succession Act applied by default). Many of the tenurial laws
specify inheritance rules that are highly gender unequal.
Sec. 4 (2) prior to the Amendment Act, 2005 laid down
that 'nothing contained in this Act shall be deemed to affect
the provision of any law for the time being in force providing
for the prevention of fragmentation of agricultural holdings or
for the fixation of ceilings or for the devolution of tenancy
rights in respect of such holdings.' In Anudhar v Chandrapati
(AIR 2003 SC 4389), the Supreme Court observed that where
the tenancy law is involved, the succession would be governed
by special mode of succession in tenancy law and not by the
personal law i.e. Hindu law.
The 2005 Amendment Act has deleted this sub-section i.e.
the provision exempting application of the Act to agricultural
holdings. Now, inheritance rights in all agricultural land are subject
to the Hindu Succession Act (overriding State laws inconsistent
with the Act) and so effectively are gender equal.
However, by deleting Sec. 4 (2), confusion has been
created. State laws, which provide for prevention of
fragmentation of agricultural holdings, fixation of ceilings and
devolution of tenancy rights, apply to the inhabitants of the State
uniformly, irrespective of their religion. The deletion of Sec. 4
(2), and an implied presumption that after the amendment,
the Hindu Succession Act applies to all kinds of property
12. State laws exist in Delhi, UP., M.P., Punjab and Haryana. See, Dr N
Bharihoke Modern Hindu Law, Delhi Law House, p. 287
(2007).
including rights in agricultural land, would mean that now

diversity would exist State-wise with respect to laws
governing agricultural property. All inhabitants of a
particular State, to whom Hindu Succession Act does not
apply, such as non-Hindus, would still be governed by the
ate laws, while property of those subject to Hindu
Succession Act would devolve in a different manner. An
exception therefore would be created in favour of Hindus,
generally diversifying the application of laws governing
agricultural property.13
!) Abolition of Doctrine of Survivorship/Retention of Notional

Partition
the 2005 Act abolishes the incidents of survivorship - one
of the primary incidents of coparcenary - when a male
coparcener dies as a member of undivided coparcenary.
Further, in all cases where a Hindu male dies, his interest
in the Mitakshara coparcenary would be ascertained with the
help of a deemed/ notional partition. The amendment retains the
concept of notional partition but modifies its application. Prior
to this amendment, notional partition was effected only if the
undivided male coparcener had died leaving behind any of
the eight Class I female heirs or the son of a predeceased
daughter and did not apply generally in every case of death of
a male coparcener. Now, if any male Hindu dies, having at the
time of his death in undivided interest in Mitakshara
coparcenary, the rule of survivorship would not apply at all.14
13. P. Pradhan Saxena, Family Law II, 2M Ed., pp. 339-340 (2007).
14. From the use of the term "his interest" in Sec. 6(3), it appears that
the doctrine of survivorship has been abolished for male
coparceners but has been retained for 'females.' Because according
to Sec. 6(2), a female would hold the property with incidents of
coparcenary ownership and survivorship is one of the basic
incidents of coparcenary.
Further, the present Act provides in detail the calculation of
shares while effecting a notional partition. At present, if a minor
child dies, irrespective of the sex, his or her share would be
calculated after effecting notional partition and such share would
go by intestate or testamentary succession, as the case may be.
See, P. Pradhan Saxena, Family Law II, 2nd Ed., pp. 346-347 (2007).
At present, the repayment of debts contracted by any
Hindu would his ; personal responsibility and the male
descendants would not be liable to the creditor. Only the
debts contracted before the enforcement of the amendment
are subject to the rules of classical Hindu law. The sub-
clause is prospective and thus the liability of son,
grandson, etc. under pious obligations for debts contracted
before the Act of 2005 continues.
Partition to be Registered (De-Recognition of Oral

Partition)
The Amending Act is prospective in application and therefore its
provisions would not apply to any partition that was effected
before 20tb December 004.
Under the classical law, partition can be even oral or in
writing unregistered). The 2005 Amendment does not
recognize oral partition for the purposes of Sec. 6. The
amending Act clearly says that the term partition' used in this
whole section (i.e. Sec. 6) means a partition that is in
writing and duly registered or the one that is effected by a
decree of court, in essence, proving which would be easy.
7) Introduction of Four New Heirs in Class I Category

The 2005 Amendment does not touch 'separate property'
except broadening the Class 1 heirs. The Act makes the heirs
of predeceased sons and daughters more equal, by including
as Class 1 heirs two generations of children of pre-deceased
daughters, as was already the case for sons. The Schedule
mentioned in Sec. 8 has been modified in this respect. This
change has been brought into only in case of a male intestate,
while the category of heirs to a female intestate has not been
touched at all.
In the list of Class I heirs, the following heirs have been
added (total number 16 now):
(i) Son of predeceased daughter of predeceased daughter
(daughter's daughter's son); (ii) Daughter of the
predeceased daughter of a predeceased daughter
(daughter's daughter's daughter); (iii) Daughter of
predeceased son of predeceased daughter (daughter's son's,
daughter);
212 Family Law - II
(iv) Daughter of predeceased daughter of predeceased son

(son's daughter's daughter).
All these newly introduced heirs were Class II heirs prior to
their elevation to the Class I category. Introduction of four
new heirs in Class 1 category
(8) Abolition of Special Rules relating to Dwelling House

The 2005 Amendment abolishes the special rules relating to
dwelling house that prevented Class I female heirs from
partitioning their shares, and imposed restrictions on the right
of a married daughter to live in it. The deletion of Sec. 23 is a
positive step towards gender parity in inheritance laws.
Partition to be Registered
Under Sec. 23 of the un-amended H.S.A., 1956, in a
dwelling house wholly occupied by members of the deceased's
family, no female heir can claim partition until the male heirs
choose to divide their respective shares. A married daughter
had no right of residence in it.
(9) Deletion of Sec. 24 (Certain Categories of Widows and

Inheritance)
Under Sec. 24 of the un-amended H.S.A., 1956, the widow of
a predeceased son, or of a predeceased son of a predeceased
son or of a brother, is not entitled to inherit the intestate's
property as a widow, if on the date the succession opens she
has re-married. The 2005 Amendment Act has deleted this
section. That means the above-mentioned categories of widows
can inherit even if they have re-married.
(10) Separation of Son during the Lifetime of Father

Before the 2005 Amendment, a separated son or his heirs do not
get a share at the time of notional partition nor do they get a
share out of the deceased coparcener's share, even if it goes by
intestacy (Explanation II, Sec. 6). However, they could inherit
the separate property of the father under Sec. 8.
After the 2005 Amendment, a separated son (and his heirs)
could take a share at the time of distribution of the property in
accordance with the rules of intestate succession, but not at
the time of effecting a notional partition (Explanation II, Sec.
6, deleted now). This is so
Hind u Law of S u c c e s s i o n 213
because a person who has already separated from the joint

family after taking his share cannot get a share again if
partition takes place subsequent
to his separation. But since the share of the deceased
father goes by intestate succession, the rules applicable
with respect to separate property will govern such share.
As for succession to separate property, there
is no difference between a separated (divided) son and
the undivided son.
LI) Devolution of Coparcenary interest held by a Female

According to the amending Act, a female coparcener
would hold the property with incidents of coparcenary
ownership, but it does not specify how the property would
devolve if she dies. Thus, if she seeks partition of
coparcenary property, gets her share, marries and then dies,
mo would succeed to this interest - her husband or her natal
family members.
It may be noted that in case of a female dying
intestate, her coparcenary) interest as determined under
Sec. 6(3) will be succeeded to by her heirs (husband,
children) because the interest calculated under Sec. 6(3) is
not a share which she inherits from her father. 15 It may be
clarified that a coparcenary interest is acquired by a
daughter by birth and though it comes from the family of
her father, it is not an interest that she has inherited from
her parents. In such a situation, her heirs would be her
husband, her children and children of predeceased children.
These heirs would succeed to her property whether she dies
without seeking partition or she dies after partition.
If she dies issueless after seeking partition, her
husband would succeed to her total property including her
interest in coparcenary property; if she dies as a widow it
is the heirs of her husband who would take the interest in
the coparcenary property. If she dies without seeking
partition, then, her share would be ascertained by effecting a
notional partition, and the share so calculated would be
taken by her husband as her primary heir or his heirs. 16
15. Dr. N. Bharihoke, Modern Hindu Law, p. 333, 336-337 (2007).

16. See P. Pradhan Saxena, Family Lave //, 3* Ed., p. 289 (2011).
214 Family Law - II
General Comments on 2005 Amendments to H.S. Act

The recent amendments to the Hindu Succession Act are quite
significant They are important steps towards gender equality and
abolition of the patrilineal system of inheritance prevailing among
Hindu?. Also, women can become Kartas of the property. This
will enhance her confidence and social worth and give her
greater bargaining power for herself and her children, in both
parental and marital families.
However, some critics are of the view that what the
2005 Amendment will achieve is only a marginal improvement
on the existing state of affairs. A major drawback of the
Amendment is that it covers only ancestral property. It does not
take a father's self-acquired property into account. The bulk of
property and wealth at least in urban area (increasingly dominated
by nuclear families) fails outside joint family property addressed
by the law (Amendment).17
There will be hurdles in the implementation of the
amendments on account of opposition from the men. It may
lead to an increase in disputes amongst brothers and sisters.
Some people are worried that the move could fuel female
infanticide. Even the enhanced rights enjoyed by women in
some States like Maharashtra are largely on paper. The mindset
in Indian society still has to change.18
It is suggested that the concept of joint family property
should b abolished altogether as has been done in the State of
Kerala. Makin daughters coparceners will decrease the shares of
other Class I female heirs, such as the deceased's widow and
mother, since the coparcenary share of the deceased male from
whom they inherit will decline. In States where the wife takes a
share on partition, as in Maharashtra, the widow's potential
share will now equal the sons and daughters. But where the
wife takes no. share on partition, as in Tamil Nadu, the
widow's potential share will fall below the daughters. 19
Abolishing the Mitakshara system altogether would have
been more egalitarian. But such abolition needed to be dovetailed
with partially restricting the right to Will (say to 1/3 of the
property). Such restrictions are common in several European
countries. Otherwise women may
17. The Hindustan Times, New Delhi, 19 February 2005.

18. The Times of India, New Delhi, 10 March 2005.
19. U.P.D Kesari, Modern Hindu Law, Central Law Publications, p. 269
(2006).
Hi nd u Law of S u c c e s s i o n 215
inherit little, as Will often disinherit them. However, since

the 2005 Act does not touch testamentary freedom,
retaining the Mitakshara system and making daughters
coparceners, while not the ideal solution, at least provides
women assured shares in joint family property. 20
FURTHER QUESTIONS
Q.1 Surendra's properties comprise of Rs. 8 lacs he

obtained on
a partition of ancestral properties, and two houses
in Delhi
acquired by his own earnings. He died in 1988
leaving behind
his widow W, son S1 and an unmarried daughter D.
Determine
the shares of heirs of Surendra, if he is governed by
the
Mitakshara law applicable in (a) Delhi and (b)
Andhra Pradesh.
What will be your answer if Surendra has left behind
two
widows? [C.L.C-91;
L.C. I-96]
A.l Succession to Property of a Hindu Male
In succession, the property passes from one person to other
after the death of the former. When a male Hindu dies
intestate (without making a Will) after 17th June, 1956, and
leaves behind property, which is capable of devolution by
succession, the provisions of Hindu Succession Act, 1956
comes into operation:
(a) Sec. 6 along with Sees. 8, 9, and 10 provide a
scheme of succession to the ancestral property of a
male Hindu (undivided interest).
(b) Sees. 8, 9 and 10 provide a scheme of succession
to the separate property of a male Hindu (divided
or fixed interest).
(a) Succession to ancestral property of a Hindu male

The amended Sec. 6 ('Devolution of Interest in Coparcenary
Property')
reads:
Sec. 6 (3): "Where a Hindu dies after the commencement of
the H.S.A.
(Amendment) Act, 2005, his interest in the property of a
joint Hindu
family governed by the Mitakshara law, shall devolve by
testamentary
20. Ibid.
Under Sec. 8, however, only a specified/divided/fixed interest can

devolve. Therefore, Explanation to Sec. 6 (3) has provided for a
notional or deemed partition, in which a partition is made assuming
that the deceased coparcener is alive (allotment of shares by a
fiction).
The following important points may be noted regarding the partition:
(i) Father, sons (brothers), daughters (sisters) and mothers
(including the step mother) share equally i.e. per capita (per
head). Now a daughter has acquired the right to claim partition
and a share on partition as if she were a son.
(ii) If partition takes place between branches, each branch take one
share (per stripes) and members of each branch share equally.
(iii) Son/daughter of predeceased son/daughter takes equal to his
father's share by the doctrine of representation.
(iv) The following females are entitled to a share on partition
-father's wife (if partition between father and son), mother (if
partition between sons), and grandmother (if partition between
son and son of a predeceased son).
(v) When a notional partition is effected, and there are females
entitled to a share on partition, they too are to be allotted their
shares (thus notional partition becomes a real partition for them,
Gurupad v Hirahai AIR 1978 SC 1239). Thus, if a Hindu H,
dies leaving behind his widow and a son, the widow will get
her 1/6 share as a heir (1/2 of H's 1/3 share) plus 1/3 share on
account of notional partition. Thus, she will take 1/2 share.
Partition of Ancestral Property under various Sub-schools of

Mitakshara
(After respective State Amendments)

(1) Benaros (U.P.), Bombay (Maharashtra and Gujarat) and Mithila
sub-schools of Mitakshara - follow the above noted general
principles. Delhi school also follows them.
(2) In Madras (Dravida) school no share is given to mother/widow
at the time of partition and the only right is that of maintenance.
However, after the Tamil Nadu Amendment Act, the daughters
(sisters) have been made coparceners; thus, they are to be
given share at the time of partition.
218 Family Law - II
(3) The Kerala school follows the Benaras school, i.e., females
were given a share. But the Kerala Joint Hindu Family
(Abolition) Act, 1975, changed the position, which came into
force on 10th August, 1976.
According to Sec. 3 of this Act, on and after commencement of this
Act, no right to claim any interest in any property of an ancestor during
his/her lifetime (which is founded on the mere fact that the claimant
was born in the family of ancestor) shall be recognized. The right of
inheritance has replaced the doctrine of survivorship in which the
daughters have equal share with the sons.
According to Sec. 4, all members of undivided Hindu family,
holding any coparcenary property, with the day this Act comes into
force shall be deemed as tenants-in-common, as if partition had taken
place among all members and as if each of them is holding his/her share
separately as full owner thereof. Thus, a legislative partition will be
deemed to have taken place in 1976.
Proviso to Sec. 4 provides that nothing in this section shall affect
the right to maintenance, marriage or funeral expenses out of coparcenary
property, or right of residence (if any) of members others than the
persons entitled to held shares separately.
(4) In Andhra Pradesh, females get a share. The position has
undergone a change with the Hindu Succession Act {Andhra
Pradesh) Amendment Act, 1985, which came into force on
from 5th September, 1985.
According to Sec. 29-A of this Act, notwithstanding anything contained
in Sec. 6, H.S.A., in a joint Hindu family, the daughter of a coparcener
shall by birth become a coparcener in the same manner as the son.
Thus on a partition, the daughter is to be allotted the same share as is
allotted to son. However, nothing contained in this provision shall apply
to a daughter married prior to, or to a partition effected before the
commencement of this amended Act. If at the time of partition, the
daughter is dead, but has left behind a child, the share that would have
been allotted to the daughter would be given to the child.
According to Sec. 29-B, when & female Hindu dies intestate, her
property shall devolve by survivorship upon the surviving members.
Provided that if the deceased had left any child, the interest of the
deceased shall devolve by intestate succession (Thus, this provision is
similar to Sec. 6, H.S.A.).
(5) The Andhra Pradesh model was followed in other States:

Karnataka (H.S. Amendment) Act, 1994; Tamil Nadu (H.S.
Amendment) Act, 1989, and, Maharashtra (H.S. Amendment)
Act, 1994.
Note: It is important to note that in States where the Act has been
amended and the daughter also gets a share, the death of intestate
should have occurred after the amendment has come into force in
'respective States (so that the daughter gets a share on partition).
However, now, a uniform law has been made in the country by the
Central 2005 Amendment (barring some exceptions in Madras and Kerala
Schools).]
Effect of Central Amendment (2005) on State Amendments
While States like Andhra Pradesh, Karnataka, Tamil Nadu and Maharashtra
had introduced unmarried daughters as coparceners and married daughters
were left out, as per the 2005 Amendment to the Central Hindu
Succession Act, 1956, all daughters (irrespective of their marital status)
were made coparceners. The Central Amendment would prevail over
the State enactments. Thus, all daughters would be coparceners in
these States as well [Pushpalatha N.V. v V. Padma AIR 2010 Karnt
124].
But the Central Amendment shall not affect or invalidate any
disposition or alienation, including any partition or testamentary disposition
of property, which had taken place before the 20th December, 2004.
(b) Succession to separate/divided property of a Hindu male

Sections 8, 9 and 10 provide a scheme of succession to the property
of a male Hindu dying intestate. Sec. 8 provides that the property of a
male Hindu shall devolve firstly upon the Class I heirs; secondly if there
is no Class I heir, then upon the Class II heirs; thirdly upon the agnates,
and; lastly upon the cognates of the deceased.
The Schedule in Class I lists 12 heirs: son, daughter, widow,
mother, son of a predeceased son, daughter of a predeceased son, son
of a predeceased daughter, daughter of a predeceased daughter, widow
of a predeceased son, son of a predeceased son of a predeceased son,
daughter of a predeceased son of a predeceased son, widow of a
predeceased son of a predeceased son.
220 Family Law - II
In the list of Class 1 heirs, the following heirs have been added
by the 2005 Amendment (total number 16 now):
(i) Son of predeceased daughter of predeceased daughter
(daughter's daughter's son);
(ii) Daughter of the predeceased daughter of a predeceased daughter
(daughter's daughter's daughter);
(iii) Daughter of predeceased son of predeceased daughter
(daughter's son's daughter);
(iv) Daughter of predeceased daughter of predeceased son (son's
daughter's daughter).
These four heirs can broadly be described as the great grand children
of the intestate, three through the daughter and one through the son. All
these newly introduced heirs were 'Class II heirs' prior to their elevation
to the Class I category.
The Class //heirs are: I (Father), II (Son's daughter's son, brother,
sister), III (Daughter's son's son), IV (Brother's son, sister's son,
brother's daughter, sister's daughter), V (Father's father, father's mother),
VI (Father's widow, brother's widow), VII (Father's brother, father's
sister), VIII (Mother's father, mother's mother), and IX (Mother's
brother, mother's sister).
Section 9 provides the order of succession - the heirs in Class I shall
take simultaneously and to the exclusion of all other heirs; those in the
first entry in Class II shall be preferred to those in the second entry;
and so on in succession.
Section 10 lays down the rules of distribution of property among the
Class I heirs - Sons, daughters, mother and widow of intestate shall
take one share (if there are more than one widow, all of them together
took one share); among the heirs of branches of predeceased son and
predeceased daughter, the doctrine of representation applies and the
heirs would take the same share their parents would have had if alive
and take per capita (i.e. per head).
Sec. 8 confers the right of succession only on the son and not
on a grandson when his father is living at the time of succession.
vision of the case in question
[SI — W
S1 D
Separate property of S: Two houses

Ancestral property of S: Rs. 8 lacs
The three Class I heirs (S1, D and W) will take equally, i.e. one-rd
share m the two houses (according to Sees. 8, 9 and 10). The
distribution of ancestral property will be determined by Sec. 6, as S has
male Class 1 heirs (position before 2005 Amendment), and so a notional
partition has to be performed. ) Delhi: On notional partition - S, W
and S1 will get 1/3 share each.
On Succession - S's 1/3 share will be divided into 3 parts
between W, S1 and D (i.e., 1/3 x 1/3
= 1/9 each).
Thus, W will get - 1/3 + 1/9 share
S1 will get - 1/3 + 1/9 share
D will get - \/9 share
Position after 2005 Amendment

Delhi: On notional partition - S, W, D and S1 will get 1/4 share each.
On Succession - S's 1/4 share will be divided into 3 parts
between W, S1 and D (i.e. 1/ 4x1/ 3 = 1/
12 each).
S1 will get r- 1/4 + 1/12 share
D will get - 1/4 + 1/12 share
(11) Andhra Pradesh: On notional partition - S, W, S1 and D will get
1/4 share each.
On Succession - S's 1/4 share will be
divided into 3 parts
between W, S1 and D
(i.e. 1/4x1/3= 1/12 each).
222 Family Law - II

1
S will get - 1/4 + 1/12 share
D will get -- 1/14 + 1/12 share
[In Andhra Pradesh, the position after 2005 Amendment would be
same, as in Andhra Pradesh, amendment giving daughter a right to
partition had been enacted in 1985.]
[If there are two widows, then both of them together will take one
share. Thus, on notional partition, each widow will get 1/4 * 1/2 = 1/
8 share. And, on succession, each will get 1/12 * 1/2 = 1/24 share.
Thus, each widow will get 1/8 + 1/24 share in the property.]
Q.2(a) X dies intestate in 1991 leaving behind his father F, mother M,

widow W, two sons (Sv S2), one married daughter D, one
unmarried daughter Dt and a son of predeceased daughter DS
as his heirs. S., became Christian during the lifetime of X.
Ascertain the shares of the aforesaid heirs in the separate
property of X, if X is a Hindu.
(b) Amit, along with two sons Sumit and Ankit constitute a
coparcenary. Sumit is deaf and dumb. In 1994, Amit dies
intestate and is survived by two daughters Sonia married in
1986 and Sriya, widow Laxmi and two sons Sumit and Ankit.
Ascertain their shares in the ancestral properties held by Amit
if Amit is governed by Mitakshara law as applicable in: (a)
Bombay, and (b) Andhra Pradesh. [C.LC.-94]
A.2(a) The rules laid down in Sees. 8, 9 and 10 will determine the
succession to the separate properties of X. The father of X is
excluded from succession, because he is a Class II heir, who
cannot take in the presence of Class I heirs. The conversion of
Sj to Christianity will not disqualify him from succession to
X's property (Sec. 26).
Therefore, the remaining heirs (Class I) (including Sj) of X are entitled
to take property simultaneously and equally. Each will get 1/7 share.
(b) Sec. 6 along with Sees. 8, 9 and 10 will determine the succession
to the ancestral property of Amit. Due to the presence of Class
I female heirs, proviso to Sec. 6 applies and a notional partition
has to be performed. It may be noted that the physical deformity
is no longer a disqualification to succession under the Act (Sec 28).

tombay: On notional partition- Amit (intestate), Sumit, Ankit
and Lakshmi will get l/4vshare
each.
(Daughters will get no share).
On succession Amit's 1/4 share will pass to
ns
' Class 1 heirs (Sons,
daughters, and widow), 1 / 4 x 1 / 5 =
1/20 share each.
is, Sumit, Ankit and Lakshmi will get 1/4 + 1/20 share each. Sonia,
and Sriya will get 1/20 share each.
iition after 2005 Amendment Amit (intestate), Sumit, Ankit,

nbay: On notional partition - Sonia, Sriya and Lakshmi each will
;
.. ' .
■
get 1/6 share. Amit's 1/6 share
.■..-'.(..
On succession - will pass to his Class I heirs

(Sons, daughters, and widow),
1/6x1/ 5 = 1/30 share each. Thus, Sumit, Ankit, Sonia, Sriya, and
Lakshmi will get 1/6 + 1/30 share
each. I) Andhra Pradesh: On notional partition- Amit
(intestate), Sumit,
Ankit, Sonia, Sriya and Lakshmi, each will get 1/
6 share. [Sonia will get 1/6, because she is
married in 1986, after the Andhra Pradesh
Amendment Act, 1985 came into force. Had she
married before the Act came into force, she
would not get 1/6 share.]
On succession - Amit's 1/6 share will go
to his heirs (1/6 * 1/5 ■
1/30 share each).
fhus,the final shares of each heir will be 1/6
224 Family Law - II
[In Andhra Pradesh, the position after 2005 Amendment would be

same, as in Andhra Pradesh, amendment giving daughter a right to
partition had been enacted in 1985. However, the 2005 Amendment has
given married daughters the same right as that to an unmarried daughter: it
being a Central Amendment, it will prevail over the State Amendment: like
Andhra Pradesh where a daughter married before the Amendment Act
came into force would not get a share on partition.]
Q.3 A and his son S1 and S2 constituted a Mitakshara coparcenary

A died in 1988 and was survived by his two sons Sv S2 and
unmarried daughter D. In 1993, S1 dies in a road accident
and is survived by his widow W and a minor son S3 as his
heirs. Ascertain their shares in the ancestral and separate
properties held by A, if the family is governed by Mitakshan
law as applicable in - (i) Andhra Pradesh, (ii) Kerala, and (iii
Madras. [C.LC.-93/96; L.C.II-95
A.3
W —[S,] S2 D S3
(i) Andhra Pradesh: On notional partition - A, S1, S2 and D will get

1/4 share each.
On succession - A's 1/4 share will go to his
heirs (1/4 * 1/3 - 1 12
each to S1, S2 and D
The total property in the hands of S1 when he died
1/12 (separate property) + 1/4 (ancestral property
(a) Ancestral property of S1 after notional partition =
1/4 x 1/3 - 1/12 each to S,, S3 and W.
(b) Separate property of S, (1/12 + 1/12 i.e. 1/6) after
succession=1/6 * 1/2 = 1/12 each to S3 and ^
Hin d u Law of S u c c e s s i o n 225
he final shares will be as follows -

= 1/4 + 1/12 = 1/4 + 1/12 = 1/12 + 1/12 - 1/12 +
D 1/12
i) Madras: On notional partition - A, S, and S2 will get 1/3 share
W each (In Madras, daughter gets
no share on partition till the
Tamil Nadu Amendment in 1989).
On succession - A's 1/3 share will go to his heirs
(1/3 * 1/3 = 1/9 each to S,, S2
and D).
The total property in the hands of S, when he died =
1/3 (ancestral) + 1/9 (separate)
(a) Ancestral property of S, after notional partition
= 1/3 * 1/2 = 1/6 each to S, and S 3 (In
Madras, mother/widow gets no share on
partition).
(b) Separate property of S, (1/6 + 1/9 =
5/18) after succession = 5 / 1 8 x 1 / 2 =
5/36 each to S3 and W.
The final shares will be as follows:
' S, = 1/3 + 1/9
2
= 1/9
D
° = 1/6 + 5/36
- 5/36 3(iii) Kerala: On A, S, and S2 will get 1/3 share each.
W On succession
notional partition A's 1/3 share will go to his heirs
(1/3 x 1/3 = 1/9 each to S,, S2 and
D).
Now, S, has got 1/3 + 1/9 = 4/9 as his "separate property' which will
go by succession. Thus 4/9 * 1/2 = 4/18 share each to S 3 and W.
226 Family Law - II
It is important to note here that the Kerala Joint Hindu Family (Abolition)
Act, 1975 has abolished the coparcenary or ancestral property. Thus, a
legislative partition will be deemed to have taken place in 1976.
The final shares will be as follows:-
+ 1/9
s2 = 1/3 H
D = 1/9
s3 = 4/18
w= 4/18
Q.4(a) A and the three sons B, C and D constitute a Mitakshan

coparcenary. D separated in 1970 after getting his share in
the coparcenary properties. In 1990, B dies intestate and is
survived by his father A, mother M, widow W and two daughter
D1 (married in 1983) and D2 (married in 1989). Ascertain their
shares in the ancestral and separate properties held by B if
B is governed by Mitakshara law as applicable in (i) Andhra
Pradesh, and (ii) Kerala. {C.LC.-94/9i
(b) What will be your answer if B dies in 1924; B's wide

remarries?
A.4 (a)
W — [B]. C D (separated)
D, D2
(/') Artdhra Pradesh:

On partition, 1/5 share each to A, B, C, D and M. When B died in
1990, there would be a notional partition as D 2 is a coparcener, and also
W being B's widow. Thus, B, D2 and W would get 1/5 * 1/3 1/15 each.
[D2 is a coparcener because she is married in 1989, after the Andhra
Pradesh Amendment Act, 1985 came into force. D, is not a coparcener
because she married in 1983 i.e. before the Amendment Act came into
force.]
Now, B's 1/15 share will go by succession to his Class I heirs.

THUS, 1/15 x 1/4 = 1/60 each to W, D,, D2 and M. Thus, final shares
will be as follows: A = 1/5, W= 1/15 + 1/60, D, = 1/60, D 2 = 1/15
1/60, and, M = 1/5 + 1/60.
) Kerala:
On partition in 1970, 1/5 share each to A, B, C, D and M. B's 1/
share (separate property) will go by succession to his heirs in 1990,
id W, Dj, D2 and M each will get 1/20 share. (b) In 1924, the old
Hindu law would have applied. The property would pass by rule of
survivorship to other coparceners. Also no female gets any share
in the ancestral properties in old Hindu law.
'B's widow remarries, before 1956, she would be a disqualified heir
under the old Hindu law. If she remarries, after 1956, she would not
e disqualified.
Q.5 A, a Hindu, dies intestate in 1993 leaving behind his father F,
mother M, widow W, two sons S., and S2, two daughters D1
and D2 and a son of predeceased son as his heirs.
S1 who became a convert to Christian religion during the

lifetime of A, is married to a Christian woman W1 and has a
son S3.
D, is a widow and has a minor son D-,S, and she is living

with A.
Ascertain the share of the aforesaid heirs in the separate

properties of A. Will your answer be slightly different if D2 is
an illegitimate daughter of A; or an adopted daughter of A?
What will be your answer if widow W is unchaste?
[C.LC-94/95; LC.I-94; LC.II-96 (Supp.)]
A.5 In the present case, the Class I heirs of A are - M, W, S, and
S2, D1 and D2 and son of predeceased son. All of these heirs
take equally and simultaneously (Sees. 8, 9, 10, H.S.A.). Thus,
each heir will get 1/7 share.
The father, F, being a Class II heir is excluded. The conversion
of S, will not affect his claim to A's properties, but his son S 3 will
be
disqualified. D,S, the daughter's son, is also excluded in the
presence
of Class 1
heirs.
228 Family Law - II
If D2 is an illegitimate daughter of A, then she would not be a heir,

as an illegitimate child is related to the mother only. But if D2 is an
adopted daughter then she will inherit A's property.
The unchastity of W would not bar her from inheriting the property
(Sec. 28).
Q. 6 X, a male Hindu governed by Mitakshara law, died as an

undivided coparcener in 2006 leaving behind his Father F
Mother M; two Sons S.,, S2; Son's wife S.,W and Son S.,S
unmarried sister S; and, unmarried daughter D. Ascertain the
shares of all aforesaid persons in the coparcenary properties
if X was governed by the law applicable in (a) Delhi (b) Tami
Nadu. [D.U.-2008/2011
A.6
(/) Delhi:
On notional partition - X, F, M and S will get 1/4 share each
On second partition - X's 1/4 share will be divided as: 1/4 >
1/4 = 1/I6 each to X, S,, S2 and D
Thus, X's separate share would be 1/16 which will devolve on
his heirs by intestate succession.
On succession - X's l/l6 share will be divided as: 1/l6
x 1/4 = 1/64 each to M, S,, S2 and
D.
The father F is excluded, being a Class II heir, in the presence of
Class 1 heirs M, S,, S2 and D.
F = 1/4
M = 1/4 + 1/64 - 17/64
S = 1/4
S, = 1/16 + 1/64 = 5/64
S2= 1/16 + 1/64 = 5/64
D = 1/16 + 1/64 = 5/64
[Note: S,'s 5/64 share will be inherited by S,W and S1S; assuming that
S| dies, than on a notional partition, S,, S]W and S,S get 5/64 x 1/ 3
5/192 share. And, on succession, S,W and S,S will get 5/192 * 1/2
i.e. 5/384. Thus, both S,W and S,S will take equal share i.e. 15/384.
) Tamil Nadu:
On notional partition X, F, and S will get 1/3 share
each (In Dravida/Madras/
Tamil Nadu, mother/widow do
not get a share on partition).
On second partition - X's 1/3 share will be divided
as: 1/3 x 1/4 = \m each to
X, S,, S2 and D. Thus, X's
separate share would be
1/12 which will devolve on
his heirs by intestate
succession.
On succession X's 1/12 share will be
divided as: 1/12 x 1/4 =
1/48 each to M, S1, S2 and
D.
F = 1/3
M = 1/48
S = 1/3
S, = 1/12 + 1/48 = 5/48
S2 = 1/12 + 1/48 = 5/48
D - 1/12 + 1/48 = 5/48 Note: S,'s 5/48 share on a notional
partition: S( and S,S get 5/48 x i/2 = 5/96 share (StW will not get any
share). And, on succession, >,W and S,S will get 5/96 x 1/2 i.e.
5/192. Thus, S,W will get 5/192 ihare and S,S will get 5/96 + 5/192
= 15/192.]
Q.7 X, a male Hindu governed by Mitakshara law dies in 2008
leaving behind separate properties worth Rs. 40 crores and
joint family property worth 100 crores to his widow W; two
sons S1 (who ceased to be Hindu) and S 2; two daughters D1
(married in 1982) and D2 (unmarried but deaf, dumb and blind)
and two brothers Br., and Br2. Ascertain the shares of all
aforesaid persons in the separate and coparcenary properties.
What will be your answer if X had died in 2000?
[D.U.-2009]
A.7 X's property will devolve as per the 2005 Amendment to the
230 Family Law - II
(I) Separate property: The rules laid down in Sees. 8, 9 and

10 will determine the succession to the separate properties
of X. The brothers of X are excluded from succession,
because they are Class II heirs, who cannot take in the
presence of Class I heirs.
The conversion of S| will not disqualify him from succession to X's
property (Sec. 26). The marriage of daughters does not matter after the
2005 Amendment. Likewise, physical disability of D2 will not disqualify
her from succession (Sec. 28).
Therefore, the Class I heirs of X (viz. W, S,, S 2, D1 and D2) are
entitled to take property simultaneously and equally. Each will get 1/f
share i.e. 8 crores.
(II) Ancestral/Joint family/Coparcenary property:
On notional partition - X, Br1 and Br2 will get 1/3 share each
i.e. 33.3 crores.
On second partition - X's 1/3 share will be divided as: 1/3 >
1/6 = 1/18 each to X, W, S,, S2, D,
and D2. Thus, X's separate share
would be 1/18 (5.55 crores) which
will devolve on his heirs by intestate
succession.
On succession - X's 1/18 share will go to his heirs (1
18 x 1/5 = 1/90 each to W, S,, S 2 Dj
and D-,). Thus, each will get 1.11
crores.
Brj= 1/3 i.e. 33.33 crores.
Br2 = 1/3 i.e. 33.33 crores.
W = 5.55 + 1.11 i.e. 6.66 crores.
Sj = 5.55 + 1.11 i.e. 6.66 crores.
S2 = 5.55 + 1.11 i.e. 6.66 crores.
Dj = 5.55 + 1.11 i.e. 6.66 crores.
D2 = 5.55 + 1.11 i.e. 6.66 crores.
[Note: It may be noted that if in 'Second Partition' and 'Succession'
the heirs are same, there would be no need to effect a second partitioi
Hind u Law of S u c c e s s i o n 231
the result would be the same. Thus, if in the above case, no second
irtition is done and one goes directly to succession:
On succession - X's 1/3 share will go to his heirs (1/3 * 1/
5 = 1/15 each to W, SI, S2, Dl and
D2). Thus, each will get 6.66 crores.
Br, = 1/3 i.e. 33.33 crores.
Br2 = 1/3 i.e. 33.33 crores.
W = 1/15 i.e. 6.66 crores.
S, = 1/15 i.e. 6.66 crores.
S-, = 1/15 i.e. 6.66 crores.
Dp 1/15 i.e. 6.66 crores.
D2 ■ 1/15 i.e. b.o6 orores.]
Legal Position (If X had died in 2000)
On notional partition - X, Br, and Br 2 will get 1/3 share
each i.e. 33.33 crores.
On second partition - X's 1/3 share will be divided as:
1/3x1/4 = 1/12 each to X, W, S,, and
S2. Thus, X's separate share would
be 1/12 (8.33 crores) which will
devolve on his heirs by intestate
succession.
On succession - X's 1/12 share will go to his heirs (1/12
x 1/5 = 1/60 each to W, Si, S2, D, and
D2). Thus, each will get 1.66 crores.
Br,= 1/3 i.e. 33.33 crores.
Br2 = 1/3 i.e. 33.33 crores.
W = 8.33 + 1.66 crores i.e. 9.99 crores.
S, = 8.33 + 1.66 crores i.e. 9.99 crores.
S2 = 8.33 + 1.66 crores i.e. 9.99 crores.
Dj= 1.66 crores.
D2 = 1.66 crores.
Family Law - II
Q.8 A dies in 2007 as an undivided member of Mitakshan

coparcenary and is survived by his parents, F and M, two
brothers Br., and Br2, a sister Si, three sons S,, S2 and S3
one daughter D and three grandsons SS^ SS2 and S2S. S
was married to W,, but as they could not get any child with
this marriage, with the consent of W,, during the subsistence
of this marriage he got married to W2 and got two sons from
the second wedlock, SS1 and SS2. S2 married a Christian
woman and had one son S2S from her. The property consist
of. Rs. 2 crores in cash and immovable property worth 11
crores. Discuss who will get the property and what would be
their shares? [D.U.-201C
What will be your answer if S3 had separated during the life time of A,
before and after the 2005 Amendment to the H.S Act?
A's property (12 crores) will devolve as per the 2005 Amendment to the
On notional partition - A, F, M, Br,, Br2, Si will get 1/6 share
each i.e. 2 crores.
On second partition - A's 1/6 share will be divided as: 1/6
1/5 = 1/30 each to A, S,, S 2, S3 an D.
Conversion of S2 will not disqualify him from
inheriting A's property (but his son S2S and
wife will hi disqualified).
Thus, A's separate share would be 1/30 (40 lacs) which will
devolve on his heirs by intestate succession.
On succession - A's 1/30 share will go to his heirs (1
30 x 1/5 - 1/150 each to M, S,, I S3 and D).
Thus, each will get 8 lac:
Sj 's property (40 lacs + 8 lacs = 48 lacs) will devolve a follows:
On notional partition - S,, W,, SS, and SS2 will get 1/ share each i.e.
12 lacs. W2 being illegal wife of S, would
not get any share SS, and SS2 (though
illegitimate child would get a share because
of the
statutory protection/legitimacy
conferred on them by Sec. 16,
Hindu Marriage Act (under which
they could inherit the property of
their parents alone and not the
JFP).
On succession - Sj's 1/4 share will go to his heirs
(1/4 x 1/3 = 1/12 each to W,, SS,
and SS2). Thus, each will get 4
lacs.
le final shares will be as follows:-
F = 2 crores. ■ ■ ■ ..
M = 2 crores + 8 lacs.
Br, = 2 crores.
Br2 = 2 crores.
Si = 2 crores.
S, = 40 lacs + 8 lacs = 48 lacs.
[W,= 12 lacs + 4 lacs = 16 lacs
W2 = Nil.
SS, = 12 lacs + 4 lacs = 16 lacs
SS2 = 12 lacs + 4 lacs = 16 lacs]
52 = 40 lacs + 8 lacs = 48 lacs.
[S2's wife =
Nil. S2S =
Nil.]
53 = 40 lacs + 8 lacs = 48 lacs.
D = 40 lacs + 8 lacs = 48 lacs.
Position of Separated Son

Before the 2005 Amendment, a separated son or his heirs do not get
a share at the time of notional partition nor do they get a share out of
the deceased coparcener's share, even if it goes by intestacy
(Explanation II, Sec. 6). However, they could inherit the separate
property of the father under Sec. 8.
After the 2005 Amendment, a separated son (and his heirs)
could take a share at the time of distribution of the property in
accordance with the rules of intestate succession, but not at the
time of effecting
234 Family Law - II
a notional partition (Explanation II, Sec. 6, deleted now). This is so

because a person who has already separated from the joint family after
taking his share cannot get a share again if partition takes place subsequent
to his separation. But since the share of the deceased father goes by
intestate succession, the rules applicable with respect to separate property
will govern such share. As for succession to separate property there is
no difference between a separated (divided) son and the undivided son.
Thus, in the case in question, before the 2005 Amendment, Sj would not get
any snare out of A's property. After the 2005 Amendment, S3 would not
get a share at the time of notional (second) partition (thus S3 will not get
40 lacs), but S3 will get a share on succession (thus S3 will get 8 lacs).
Q.9 X, a Hindu male, dies intestate in 2009 and leaves behind his
separate property worth Rs. 5 crores. He is survived by his
parents F and M, a brother Br and a widow W. Soon after his
marriage in 2.000, W HAD LEFT x to elope with her paramour H2,
with whom she had an affair even before her marriage. She
then started living with H2 in the same locality and gave birth
to his two children. A devastated and humiliated X became
depressed and developed illness and then died nine years
later. Discuss who would get his property stating the reasons
for the same? [D.U.-2010]
A.9 The rules laid down in Sees. 8, 9 and 10 will determine the
succession to the separate properties of X. The father F and
brother Br (of X) are excluded from succession, because they
are Class II heirs, who cannot take in the presence of Class I
heirs viz. mother M.
X's widow W is entitled to inherit as Class I heir. Under old Hindu
law, unchaste females were disqualified from succession. The unchastity
of a widow/daughter has ceased to be a disqualification for succession
after the H.S. Act, 1956. Unchastity is not a disqualification under this
Act because it has not been specified anywhere in the Act (the only
disqualifications under the Act are those mentioned in Sees. 25 and 26 of
the Act).
Therefore, the following Class I heirs of X are entitled to take his
separate property, simultaneously and equally: Mother (M) and Widow
(W). W's children from H2 are not related to X in any way; they will
be related to H2, thus, not entitled to any share in X's property.
Q.10 A Hindu male A dies in 2008 and is survived by his parents F

and M, two widows W1 and W2, one daughter SD.,, two
grandchildren SS., and SS2 and two widows of his
predeceased sons S.,W and S2W respectively. A had married
W, in 1978 and during the subsistence of this marriage had
married W2 in 1980. From W., he had a child S1 who converted
to Muslim faith, got married to a Muslim girl S.|VV and had a
son SSV From W2, A had a son S2 and a daughter SDV S2
married S2W and had a child SS2. S., and S2 died in 2000 in a
car accident together. A had separate property worth Rs. 20
crores at the time of his death? Discuss who would get his
property and what would be the quantum of their shares?
[D.U.-2011]
V.10 The rules laid down in Sees. 8, 9 and 10 will determine the
succession to the separate properties of A. The father F is
excluded from succession, because he is Class II heir, who
cannot take in the presence of Class 1 heirs viz. mother M.
(i) A had two widows W, and W 7; the question of having
more than one wife (and thus widow) can arise only in the
case of marriages before the commencement of Hindu
Marriage Act, 1955, and not in marriages thereafter. Thus,
W2 is disqualified from succession. W1 is entitled to
succeed and she is a Class 1 heir.
(ii) S1 (A's child from Wt) converted to Muslim faith, but,
because S , pre-deceased A, at the time of his death he was
not a disqualified heir on account of the Caste Disabilities
Removal Act, 1850. Even if S, had died after A, his
conversion would not disqualify him from succession.
but Sj's wife SjW and descendant (son SS,) would be disqualified
because beyond protecting the convert personally, the Caste Disabilities
Removal Act, 1850 did not extend the protection any further. A
convert's descendant should be Hindu in order to inherit the
property of the intestate, at the time when the succession opens. The
father and mother of SSj were Muslims so it can not be presumed
that SSj was a Hindu ,when the succession opens in 2008. Thus, Sj's
interest in A's property would go in vain.
(iii) S2 (A's son from W2), though born out of a void marriage, was a
competent heir in view of the statutory protection/legitimacy
236 Family Law - II
conferred on him by Sec. 16 of the Hindu Marriage Act, 1955 But

S2 predeceased A. S2's son SS2 could not succeed to A':s property
(though SS2 is son of a predeceased son, normally a competent
heir). This is so because if the father was born out of a
void/annulled voidable marriage, he would be entitled to inherit
the property of his parents, but on his death, his children would not
be deemed to be related to the grandfather, and thus they would
not inherit his property. The legitimacy conferred by Sec. 16 is
personal in character and is subsisting only between the
parents and the child, and is not carried forward to the second
generation.
Similarly, S2's wife S2W (though widow of a predeceased son, normally a
competent heir), would be disqualified, because she is the wife of a son
whose parents had a void marriage. Thus, S2's interest in A', property
would go in vain.
(iv) SD1 (A's daughter from W2) though born out of a void marriage was
a competent heir in view of the statutory protection legitimacy
conferred on her by Sec. 16 of the Hindu Marriage Act, 1955.
Therefore, the only eligible heirs of A entitled to succeed to A's property
simultaneously and equally are: Mother (M), Widow (W 1) and Daughter
(SD,).
Q.11(a) A had a son, S and two daughters D1 and D2. His property
consists of a palatial house, part of which is leased out to a
multinational company on rent. The remaining portion was ii the
occupation of the family. D2 wants to file a suit for partition and
separate possession of her share in the house. Advise D2.
(b) A, a male Hindu dies intestate leaving behind a son S and a
daughter D. His properties include a dwelling house. [ wants to
file a suit for partition and separate possession o her share in the
house as S contends that the house is impartible. Can she
succeed ?
(c) A, a male Hindu dies intestate leaving behind a son and i married
daughter D. His properties include a dwelling house
S alienates a portion of the house in order to discharge his

personal debts. D wants to file a suit for a partition and
separate possession of her share in the house as S contends
that the house is impartible? Can she succeed ?
[C.L. C.-92/93/94/95/96\
.11(a) Sec. 23. Partition of a Dwelling House
Where a Hindu intestate has left surviving him or her both male and
female heirs (Class I) and his or her property includes a dwelling
house wholly occupied by members of his or her family, then,
notwithstanding anyything contained in this Act, the right of any such
female heir to claim partition of house shalln't arise until the male
heirs choose to divide their respective shares therein; but the female
heir shall be entitled to a right of residence therein.
provided that where female heir is a daughter she shall be entitled to
residence right only if she is unmarried or has been deserted by or has
separated from her husband, or is a widow."
it may be noted that a married daughter who left her husband of her
own accord is not entitled to such right).
In Hindu law, dwelling house has been given a special position.
The Smhtikars laid down that partition shouldn't be ordinarily be
made if a dwelling house. Hindu tenets treasured the house of family as
an mpartible asset between a female and male member.
The object of this section is to prevent fragmentation of house to
the prejudice of males. If daughters were allowed to have such house
partitioned, the strangers will be introduced in house, (as females after
their marriage will live in their husband's houses) and the males to be
put to great hardship and be compelled to alienate/sold house, if it is
incapable of division. [Note: Sec. 23 will not apply if all heirs are
males or females.]
In Janabai v T.S. Palani (AIR 1981 Mad 62), the question was
whether Sec. 23 restricts the right of female heir to demand partition
of house even in cases where there is only one male heir of intestate.
The Orissa High Court has held that the expression "until male
heirs choose to divide" in Sec. 23, to be deemed...intended that restriction
is to operate only if there are two or more male heirs. If restriction
would operate even in a case of single male heir, the right of a female
to claim partition of her share would practically be defeated as there is
238 Family Law - II
no likelihood or possibility of any division of house so long as single heir

(may not exercise his claim for partition) is in occupation of house
{Hemaatha v Uma AIR 1975 Ori 208).
The Calcutta and A.P. High Courts took the view that Sec. 23
applies even when there is a single male heir. A partition by females
when there is only one male heir... may cause great hardship to him If
the male members choose to divide among themselves, or if single male
heir chooses to divide it among (him and females) respective shares, or
alienates his share to a stranger, then it would mean that contingency has
arisen whereby male members are no longer capable of preserving
house. The hardship that would be caused to female heirs in not being
able to claim partition is certainly relatively less...than that to son,
because the house may not be capable of partition and in that case it will
have to be sold (Arur. Kumar v Jnanendra AIR 1975 Cal 232).
In Janabai case, the Madras High Court gave the following reasons
for agreeing with the view of the Calcutta High Court: (1) Sec. 13 I of
the General Clauses Act which states that words in singular shall include
plural and vice-versa is not applicable to Sec. 23. (2) If Parliament had
intended that Sec. 23 will not apply in case of single male heir could
have added a proviso and in view of the wording of the section it must
be held that female cannot ask for partition in this case.
In Usha v Smriti (AIR 1988 Cal 115) the dwelling house was
partially tenanted (two rooms in ground floor). It was contended that
the word "wholly" in Sec. 23 shouldn't be given its plain and natural
meaning, but to be interpreted in a manner consistent with the purpose
and object of the Act. When so interpreted it would mean so much of
house as was "wholly" occupied by members of family and consequently
the plaintiff herein could legitfmately claim partition only of that portion
of house which was in occupation of the tenant, (vide Vidyaben v J Bhatt
AIR 1974 Guj 23).
The Court, however, observed that the word "w7?o//y" (on a plain
meaning) meant the house must be completely, totally and fully occupied
by the family. Even if one considers the meaning in the light of purpose
and object of Sec. 23, one reaches the same conclusion. By tenanting
a portion of house, the members of family part with possession house
to certain extent and the whole purpose of keeping house as exclusive
domain of male heirs is similarly lost. The word "then" appear
In Sec. 23 makes it clear that restrictive part of section come into

operation only if the first requirement is fulfilled, i.e. the house is wholly
occupied by members of the family. Thus, if part of the house is
rented at the female will have right to partition.

The words 'wholly occupied* in Sec. 23 mean completely, totally and
fully occupied (Usha v Smriti). When the house is leased out to a
multinational company, it is clear that the house cannot be said to be
wholly occupied. Thus, D2 will succeed in her suit for partition of the
house.
(b) In view of the decision in Janabai v T.S. Palani, D cannot file
a suit for partition and separate possession of the house until
S chooses to sell it or in some way rent it or lease it, thus
making the house liable to partition.
(c) When a portion of the house is alienated, it cannot be said to
be 'wholly occupied' under Sec. 23 (Usha v Smriti). Thus, D
can successfully file a suit for partition and separate possession
of the dwelling house.
2005 Amendment: Abolition of special rules relating to Dwelling

House
The fragmentation of the dwelling house at the instance of male heirs
only was permissible despite the fact that they might be the owners of
a fractional share (for example, a joint family consisting of coparcener's
widow, his three daughters and a son). The practical implication of this
statutory interdict on a female heir to claim partition of the house till the
male heir decides otherwise, resulted in the denial of any claim over the
house. They had its ownership but no right to ascertain which portion
of the house had come as their share.
This section has been deleted by the 2005 Amendment. The married
daughters will also benefit by the deletion of Sec. 23, since now they
will have residence and partition rights in the parental dwelling house.
This will benefit women facing spousal violence. The unmarried daughters
too have the same rights as sons to reside in and to claim partition of
the parental dwelling house. The deletion of Sec. 23 is a positive step
towards gender parity in inheritance laws.
240 Family Law - I!
Now, daughters are eligible to inherit and enjoy the property of the
father/mother in the same manner as the son. Further, irrespective of
the nature of property, whether it is a house, cash, jewellery, shares and
stocks, or commercial ventures, they have not only an equal right to
own their share, but they can seek its partition and enjoy it without am,
impediment.
LEADING CASE: S. NARAYANAN v MEENAKSHI

(AIR 2006 Ker. 143)
The questions of law involved in this case are the following:

(1) Whether a suit for partition at the instance of a
daughter of the deceased could be defeated by
invoking Sec. 23 of the Hindu Succession Act by
the legal representatives of a deceased son of the
intestate?
(2) Whether Sec. 23 would be applicable in a case
where the deceased intestate has left behind him
only one male issue and whether it is necessary
that there must be more than one male issues to
invoke Sec. 23?
(3) Whether the protection in favour of the male heir
under Sec. 23 would be available if he inducts a
third party in the dwelling house or any portion
thereof?
(4) Whether omission of Sec. 23 by the Hindu
Succession (Amendment) Act, 2005 would have
any impact on a suit for partition or appeal therefrom
pending on the date of the commencement of the
Amendment Act?
The property sought to be partitioned was owned by Ramayi
who died on 12-9-1979. Ramayi left behind her four daughters
including the plaintiff and a son, the defendant. After the death
of Ramayi, plaintiff obtained purchase certificate from the Land
Tribunal in her name, but on behalf of the other co-owners as
well. The three sisters of the plaintiff released their fractional
rights in the property to the plaintiff. Thus the plaintiff claimed
4/5 share and contended that the defendant has only 1/5 share.
The plaintiff also raised a contention that the defendant

unauthorisedly allowed a stranger to occupy a portion of the
house for conducting soda business. The trial court held
that in view of Sec. 23, the plaintiff cannot claim partition.
On appeal by the plaintiff, the Appellate Court held that
Sec. 23 does not apply since there is only one male heir.
Regarding the second question whether the intestate
should be survived by more than one male heir in order to
apply Sec. 23, in Madhavan Ezhuthasan v Vellayyappan (ILR
1981 Ken 643), held that Sec. 23 would apply even if the
deceased is survived by only one male heir along with female
heir or heirs. The Supreme Court in Narashimaha Murthy v
Smt, Susheelabai (AIR 1996 SC 1826) considered the scope
and object of Sec. 23 and held that the object is to prevent
fragmentation or disintegration of the family dwelling house
at the instance of the female heir to the prejudice of male
heirs.
"Though the words 'the male heirs choose to divide their
respective shares,' suggest that at least two such male heirs
must exist and decide not to partition the dwelling house in
which event the right of the female heir is postponed and
kept in abeyance until the male heir or heirs of the Hindu
intestate decide to partition it, it does not necessarily lead to
the only inevitable conclusion that the operation of Sec. 23
must stand excluded in the case of the Hindu intestate leaving
behind him/ her surviving only son and daughter.... One way
to look at it is that if there is one male heir, the section is
inapplicable, which means that a single male heir cannot
resist female heir's claim to partition. This would obviously
bring unjust results, an intendment least conceived of as the
underlying idea of maintenance of status quo would go to
the winds. This does not seem to have been desired white
enacting the special provision. It looks nebulous that if there
are two males, partition at the instance of female heir could be
resisted. But if there is one male, it would not.
The emphasis in the section is to preserve a dwelling
house as long as it is wholly occupied by some or all
members of the intestate's family which includes male or
males. Understood in this manner, the language in plural with
reference
Family Law - II
to male heirs would have to be read in singular with the aid of the
provisions of the General Clauses Act. It would thus read to mean
that when there is a single male heir, unless he chooses to take out his
share from the dwelling house, the female heirs cannot claim partition
against him. It cannot be forgotten that in the Hindu male oriented
society, where begetting of a son was a religious obligation, for the
fulfillment of which Hindus have even been resorting to adoptions, it
could not be visualized that it was intended that the single male heir
should be worse off unless he had a supportive second male as a
Class I heir. The provision would have to be interpreted in such
manner that it carries forward the spirit behind it."
The second question would thus have to be answered in favour of
the proposition holding that where a Hindu intestate leaves surviving
him a single male heir and one or more female heirs specified in Class
I of the Schedule, the provisions of Sec. 23 keep attracted to maintain
the dwelling house impartible as in the case of more than one male
heir, subject to the right of re-entry and residence of the female heirs
so entitled, till such time the single male heir chooses to separate his
share; this right of his being personal to him, neither transferable nor
heritable.
The next question to be considered is whether the protection
available to the male heir under Sec. 23 would be lost if he inducts a
third party in a portion of the dwelling house. The expression used in
Sec. 23 is "includes a dwelling house wholly occupied by members of
his or her family". The Supreme Court in Narashimaha Murthy's case
held that if strangers are inducted into the dwelling house it must be
taken that the male heir had lost his animus possedendi. The Supreme
Court held: If the male heirs derive the right under the provision to resist
partition of the dwelling house unless they chose to divide their
respective shares therein, then correspondingly it is incumbent on the
male heirs to keep the property well arranged, inhabited or occupied by
themselves keeping the property available for the female heirs to
enforce the right to residence therein. But if the latter right is frustrated
on creation of third party rights or a contractual or statutory tenancy,
there remains no right with the males to resist partition.
The protection under Sec. 23 is not indefeasible. Sec. 23

curtails the rights of female heirs to claim partition until the
male heirs choose to divide their respective shares, only in the
contingencies mentioned is Sec. 23. Sec. 23 is an exception to
the general rule that Class 1 heirs are entitled to claim
partition of their shares in the property of their predecessor. The
exception is conditioned with the conditions mentioned in
Sec. 23. Sec. 23 must be strictly construed. The male heirs
can claim the benefit only if they fully satisfy all the
conditions laid down in Sec. 23, the defendant admittedly
having inducted a stranger in a portion of the dwelling house
wherein that stranger is conducting business. Thus, the
defendant is not entitled to claim any protection under Sec.
23. Where a portion of the dwelling house is put in the
possession of a stranger, it cannot be said that the dwelling
house is wholly occupied by the members of the family of
the intestate.
The Hindu Succession (Amendment) Act, 2005, was
enacted on the basis of the 174th Report of the Law
Commission. The representations made by the various
women's organization were considered by the Law
Commission. Even at the time when the Hindu Succession
Act, 1956 was enacted, women's organizations had voiced
the grievance that though the 1956 Act made commendable
in-roads into the erstwhile Hindu system of inheritance, still the
gender discrimination against women was not fully done away
with by the 1956 Act. As per the Amendment Act, 2005,
Sec. 23 of the Hindu Succession Act, 1956 is omitted.
The question is whether the omission of Sec. 23 in view
of the commencement of Act of 2005 during the pendency
of a suit for partition or an appeal therefrom has relevance in
deciding the question whether the male heir or male heirs could
resist the suit for partition under Sec. 23. As held by the
Supreme Court and this Court, the right to claim the benefit of
Sec. 23 is personal to the male heir of the deceased Hindu
intestate. Such a right is not heritable or alienable.
Therefore, it cannot be said that cessation of such personal
right during the pendency of a suit for partition would not
entitle the female heir to claim partition taking note of the
subsequent events, if the contention that the state of affairs as
on the date of the suit
Family Law - II
alone would be relevant is to be accepted, then it would have the

effect of indirectly holding that the personal right of the male heir to
resist partition could be continued by his legal representatives, in
case such male heir dies during the pendency of the suit. It has been
held that the personal right of the male heir cannot be claimed by his
legal heirs. Therefore, whenever the personal right of a male heir
under Sec. 23 comes to an end, the right of the female heir to claim
partition cannot be defeated. In other words, a defaceable right of a
male heir would get defeated the moment the personal right of a
male heir is taken away by the omission of Sec. 23 by the Amendment
Act, 2005. The effect of such omission would be retroactive. In
Lekh Raj v Muni Lai (AIR 2001 SC 996), the Supreme Court held:
The law on the subject is also settled. In case subsequent event or
fact having bearing on the issues or relief in a suit or proceeding, to
which any party seeks to bring on record, the Court should not shut
its door. All laws and procedures including functioning of Courts
are all in aid to confer justice to all who knocks its door. Courts should
interpret the law not in derogation of justice but in its aid. Thus,
bringing on record subsequent event, which is relevant should be
permitted to be brought on record to render justice to a party
.....The Court quoted with approval the decision of the Supreme
Court of the United States in Patterson v Slate of Alabama [1934
(244) US 600], wherein it was held that in determining what justice
does require, the Court is bound to consider any change, either in fact
or law, which has supervened since the judgment was entered.
The above decisions of the Supreme Court would fortify the
conclusion that the omission of Sec. 23 by the 2005 Amendment
would have retroactive effect and the changed law could be taken
note of and applied in pending litigations. Therefore, by the
omission of Sec. 23, the right of the male heir to claim the benefit
of Sec. 23 would get defeated even in pending litigations.]
8 Hindu Woman's
Property
The Hindu Succession Act, 1956 made a revolutionary change in

the law for female Hindus. For the first time, a Hindu female could
become absolute owner of property. She could inherit equally with a
male counterpart and a widow was also given importance
regarding the succession of her husband's property as also to her
father's property, The 2005 Amendment made the daughter, like a
son, a coparcener in joint family. The amendment was meant to
ensure that women and men became equal heirs to ancestral
property.
Though these measures have encouraged some marginal difference
in property ownership, the scenario remains largely unchanged as
women are yet to assert their rights. For example, a mother shares
equally with the children and the widow when a son predeceases her.
But when married daughter dies, the mother ranks after the husband's
heirs. This is the law as enacted in 1955-1956.
Further, in India, a woman's property rights vary depending on
her religion, her marital status, the State she comes from and her tribal
identity. This means that no single set of laws governs the rights of an
Indian woman to property.
The skewed reality in which gender is positioned in the social,
political, economic and cultural transactions shows up the fact that
law is not gender-based - sometimes it is not even gender-neutral.
Gender-neutrality will not be enough if it merely maintains the
status quo which is nothing but the perpetuation of gender
discrimination. Women
12451
246 Family Law - II
need, and must have, affirmation of their equality. For example, Sec. 15
of the H.S. Act that determines the order of succession in the case of
a Hindu woman who dies intestate should be amended for it reflects an
entrenched system of subjugation of women.1
INTESTATE SUCCESSION TO PROPERTY OF A

HINDU FEMALE2
The Hindu Succession Act, 1956, deals with succession to the property
of a Hindu female intestate. Prior to 1956, there were varied rules under
the uncodified Hindu law. Sees. 15 and 16, H.S. Act, are applicable to
the absolute property of a female 'including an undivided interest in
Mitakshara coparcenary in which a female was a coparcener' (2005
Amendment to the Act). Only that property will be subject to the
application of these sections which are heritable and over which
woman had full powers of disposal. Thus, the scheme of succession
is not applicable to any property held by a Hindu woman as a limit
owner [Sec. 14(2)], or even otherwise, or to which the Act does r
apply [Sec. 4(2)/(5)j.
The order of succession to the property - whole of it being
separate - of a Hindu female, dying intestate (i.e. without making
Will), is not the same as in case of a Hindu male. The H.S. Act, 19
agrees with the old Hindu law of succession in as much as that there
is a difference between succession to a male and that of a female.
other major succession law in India lay down a uniform scheme for
intestates. The reason for not providing a uniform scheme under Hindu
law is linked closely to the emphasis on the conservation and protection
of the property in the family of a male Hindu. A woman under
patriarchal setup is visualized as having no permanent family of her own
(even in her husband's family she can remarry on husband's death
1. Prabha Sridevan, "A Law that Thwarts Justice", The Hindu, Delhi, Jun
(2011).
2. Write a short note on - Law governing intestate succession to Hindu femi
[LC,
s
Hindu Woman's P r o p e r t y 247
divorce and move out of this family). In contrast, the husband's family
does not change with his marriage or remarriage. 3
Although Hindu woman's limited estate has been abolished and, so
long as the woman is alive, she has absolute power over all types of
property, yet for the purpose of intestate succession the 'source of
property' is still material. For the purpose of succession, the
property " a Hindu female falls under the following three heads:
(a) Property inherited by a female from her father or mother,
(b) Property inherited by a female from her husband or father-in-
law, and
(c) Property obtained from any other source, by inheritance or
otherwise.
It may be noted that if female has her children, than the first two heads
would not become operative.]
Sec. 15 deals with succession to the property of a Hindu female
dying intestate after the commencement of the Act. The property of a
female Hindu shall devolve according to the rules set out in Sec. 16.
lees. 15-16 are prospective in operation and does not govern succession
to the property of a female Hindu whose death took place before the
Act came into force.
I] Sec. 15 (1) (General Property)

sec. 15(1) covers all those properties 'other than that which was
inherited by a female Hindu from her parents, husband or father-in-
law.' Thus, a property received from these relations (parents, husband,
etc.) not by way of inheritance but through any other device (e.g. gift,
Will, settlement, prescription, a transfer for consideration i.e. purchase)
will be covered by Sec. 15(1). The gifted property (even from her
father) is not equal to inherited property, thus Sec. 15(1) and not Sec.
15(2) will apply in such a case (Meyappa v Kcmnappa AIR 1976 Mad.
184).
3. See P. Pradhan Saxena, Family Law II, 3"1 Ed., p. 363 (2011).
248 Family Law - II
Further, 'self-acquisitions' made by a female are covered under

Sec. 15(1). A female may receive property from any other source
whatsoever, including a property inherited from 'any other relation.'
Thus, a female may inherit property from her brother (in the capacity
of his sister), or from her husband's brother (as his brother's widow).
That property would be her 'general property' covered by Sec. 15(1).
The heirs are divided into five categories called 'entries', heirs in
the earlier entry excludes that in the latter entries. So long as a single
heir is present in the earlier entry, the property will not go to the next
entry (Sec. 16). If there are no heirs in any of these five entries,
property goes to the government by escheat.
[Entry (a) - Sons and daughters, sons and daughters of a
predeceased son or daughter (i.e. grand-children),
and, the husband.
Entry (b) - Heirs of husband.
Entry (c) - Father and Mother of the proposita (i.e. deceased
female).
Entry (d) - Heirs of the father.
Entry (e) - Heirs of the mother.]
Entry (a) - Sons and daughters, sons and daughters of a predeceased

son/ daughter (i.e. grand-children), and, the husband4
These heirs shall succeed simultaneously, sharing equally, to the exclusion
of all other heirs (Sec. 16). However, the children of a predeceased son/
daughter will not take per capita with the son or daughter or husband
of the intestate, but will take between them the share which their father
or mother would have taken if alive at the time of the death of the
intestate i.e. they will take per stripes (branch-wise). In other words,
4. Thus, this entry includes seven heirs and the list is much shorter than that of Class
I heirs of a Hindu male. The following have been omitted in this entry though
they are included in the list of Class I heirs of a Hindu male: (i) The widow of a
predeceased son; (ii) the widow and children of a predeceased grandson. See
MR. Mallick, Ray's Commentaries on The Hindu Succession Act, 1956, Kamal
Law House, 4m Ed., p. 301 (2010).
such children will divide the share falling to the share of their
father or mother (predeceased).
The 'sons and daughters' include son and daughter by natural h,
legitimate or illegitimate; posthumous children; and adopted children
en by a single woman). Children of void and voidable marriages
are 3 included. However, step-children are not included in the
expression, with respect to the children (excluding step-children),
the marital status of the mother (married or divorced or even
unwed) or the validity of marriage is of no consequence. The
children may be born from different husbands, yet they would
still, inherit together.
The 'grand-children' do not include illegitimate children, or step-
children, or children of a void/voidable (annulled) marriage (it is
because sec. 16, Hindu Marriage Act provides that such children can
inherit the property of their parents alone). Thus, in order to be
eligible for inheritance, such grandchildren must be the legitimate
offsprings of their parents, and born out of a valid marriage
between them {Shahaji san Asme v Sitaram Kondi Asme AIR
2010 Bom 24).
Similarly, their 'deceased parents' should also be legitimate and
born out of a valid marriage. For example, a Hindu woman W
married an already married man H, thus, it is a void marriage. Two
sons SI and I are born to her. SI and S2 could inherit the property
of W in view I statutory legitimacy conferred on them by Sec. 16,
H.M., Act. But,
If during the lifetime of W, S2 dies and left behind a daughter
S2D, then, SI alone will inherit her property, as S2D will not be
deemed to e related to W. The relationship in case of children born
of a void/ voidable marriage is personal between the parents and
children and they are not deemed to be related to any other relative
of either.
In a case, a Hindu woman A dies, leaving behind a son S, and a
granddaughter D from her second son S 2. S2 had got married to W2,
tut had later discovered that his consent had been obtained by
fraud. s2 filed a petition in court for obtaining a decree of nullity. D
was conceived before the discovery of fraud by S 2. The marriage
was declared null and void. S2 died and D was brought up by A, her
grandmother. Now, A also dies. D could not inherit A's property as
/
250 Family Law - II
children born of annulled voidable marriages do not inherit the property

of any relative of their parents.5
A
s, V- — w2
D
It may be noted that children of a predeceased son/daughter will also

be disqualified from inheriting the property of the intestate, if before
their birth, their parents had ceased to be Hindu by conversion.
In Ugre Gowda v Nage Gowda (AIR 2004 SC 3974), the Apex
Court observed that an adoption of son does not deprive the adoptive
mother of the power to dispose of her separate property by transfer or
by will. Hence, such adoption would not divest the widow of the suit
property which vested in her by succession on the death of her husband,
'Husband' means the last lawfully married husband (where a woman
marries more than once), not divorced one. But, it would include a
husband who had deserted the intestate or was deserted by her or was
living apart from her under a decree of judicial separation. The husband';
immoral or even criminal conduct would not disqualify him unless he
murders her. Similarly, the husband of a void/ annulled voidable marriage
is not included (however, the husband in the latter case inherits if a
petition praying for a decree of nullity is pending in the court).
Entry (b) - Heirs of husband

On the failure of heirs in entry (a) the property will devolve upon the
heirs of the husband (howsoever remote they may be). Since the property
is deemed to be that of her husband the inheritance will be determined
by the law relating to succession to the property of a Hindu male (Sec
8). Thus, the husband shall be deemed to have died immediately
after,
5. Id., p. 366.
Hindu Woman's Property 251
the female Hindu died (Sec. 16). Heirs of the husband do not
mean 'all persons who could have been the heirs of such
husband.'
It may be noted that the date of the opening of the
succession is not the date of the death of the husband, but that of
the deceased i.e. female Hindu (Seetha Lakshimammal v M.
Iyengar AIR 1998 SC 1692). Thus, it has to be presumed that on
the death of the intestate, it was her husband who had died and
the property also belonged to him. In such a situation, the 'step-
sdh of female' (who is a disqualified heir) could succeed as the
'son of the husband' (born to him from a previous marriage). Thus,
where a Hindu woman W, dies intestate, leaving behind per step-
son and her brother, since brother is an heir in the later entry, he
step-son will succeed to her property.
The widow of a predeceased son, widow of the deceased
brother of the husband, sister of the husband, or even a remote
cousin of the husband would fall in the category 'heirs of the
husband.'
It is to be noted that the 'heirs of husband' are considered
"near in relation" to a childless widow, in comparison to her
parents and brothers and sisters (which are placed in the later
entry). Thus, a woman's blood relations are relegated to an
inferior placement in comparison to the category of 'heirs of
husband' (relations by marriage). No other succession law including
Muslim law gives statutory preference to the in-laws over a woman's
blood relatives. This is so when a Hindu male dies, none of the
wife's relatives can ever inherit his property.
Entry (c) - Father and Mother of the proposlta (i.e. deceased female)
Father/Mother does not include a step-father/mother; adoptive mother/
father is included. However, step-father/mother could succeed as 'heir
of mother' and the latter as 'heir of father.'
Where the marriage of the parents was a void marriage or an
annulled voidable marriage, the parents inherit from such children.
Even if the proposita was an illegitimate daughter of the mother,
mother will inherit; however putative father will not inherit.
252 Family Law - II
Entry (d) - Heirs of the father

Since the property is deemed to be that of her father the inheritance will
be determined by the law relating to 'succession to the property of a
Hindu male' (Sec. 8).6 Thus, the father shall be deemed to have died
immediately after the female Hindu died (Sec. 16). Heirs of the father
do not mean 'all persons who could have been the heirs of such father.'
The category will include brothers and sisters (including half-
blood brothers/sisters), and their descendants, grandparents and other
natal relations.
Entry (e) - Heirs of the mother

Since the property is deemed to be that of her mother the inheritance
will be determined by the law relating to succession to the property of
a Hindu female (Sees. 15-16). Thus, the mother shall be deemed to
have died immediately after the female Hindu died (Sec. 16). Heirs of
the mother do not mean 'all persons who could have been the heirs of
such mother.'
The category will include the uterine brother/sister and their
descendants.
[II] Sec. 15 (2) (a) (Property Inherited from Father or Mother)
Sec. 15(2)(a) provides: "Notwithstanding anything contained in sub-
sec. (1), any property inherited by a female Hindu from her father or
mother shall devolve, in the absence of any son or daughter of the
deceased (including the children of any predeceased son or daughter)
not upon the other heirs referred to in sub-sec. (1) in the order specified
therein but upon the heirs of the father." Thus, Sec. 15(2)(a) is an
exception to Sec. 15(1).
6. Thus, where an unmarried female inherited the property from her mother and
died leaving her brother and a widow of another brother, it was held that as
the property is to revert to her father and will devolve as if it belonged to the
father, on his heirs, the deceased brother would be the son of the father and
his widow would be related to the father as the widow of a predeceased
son. Thus, both - a son and a widow of a predeceased son - will inherit the
property as Class I heirs of the father, in equal shares [Yoginder Parkash
Duggal v Qm Prakash Duggal, 2000 AIHC 2905 (Del.)].
Sec. 15(2) governs only that property which was acquired by

the intestate by 'inheritance' as an heir (not 'received' from parents
e.g. via gift, Will). It may be noted that gifted property is not equal
to inherited property. Any property gifted at the time of marriage is
her stridhan and succession to it is governed by Sec. 15 (1)
(Meyappa v Kannappa AIR 1976 Mad. 184). Similarly, if she has
converted the property she inherited from her parent into some other
property succession will not be governed under Sec. 15(2) (Emana
v Gudiseva AIR 1976 A.P. 337).
Likewise, the inherited property should be available at the time
of her death. If the identity of the property is changed or it is
substantially altered/improved or if it is substituted. Sec. 15(2) has
no application. Thus, if she inherits property from father, sells it,
and out of sale proceeds, purchases another property, this property
again would be her general property and Sec. 15(1) will apply
(Veera Raghavamma v G. subbarao AIR 1976 A.P. 377).
If she had inherited property from 'father or mother' (not
"father's side" or "mother's side") the heirs fall under the two
categories:
Category (1): Sons, daughters, sons and daughters of predeceased son

or daughter
In the absence of any of the preferential heirs (sons, daughters,
etc.), the property devolves upon the heirs of the intestate's father
(next category). In other words, the property inherited by a female
from her parents, in the absence of her issue (children), will revert to
her father's heirs. The 'husband' is excluded here.
Thus, where a Hindu female died leaving behind her
daughter from a previous marriage and the second husband, and
property that she had inherited from her father, it was held that
since the deceased had inherited the property from her parents, her
daughter alone will be entitled to succeed and the husband here,
cannot succeed [Radhika v Anguram (1994) 5 SCC 761].
A 'step-son' is not an issue, and cannot inherit the property of a
woman that she inherited from her parents (Lachman Singh v
Kirpa Singh AIR 1987 SC 1616).
254 Family Law - II
Category (2): Heirs of the father

Thus, the father shall be deemed to have died immediately after the
female Hindu died (Sec. 16). Here, there seems to be a defect in
drafting of the Act. Even if father is alive his property will not go to
him but to his heirs. The clause should be read, "upon the father and
in default of the father, upon his heirs."
There is another anomaly. Whether the property is inherited from
the father or mother, in both the cases the devolution will be upon the
'heirs of the father.' Thus, even if she inherits from mother, the 'heirs
of mother' cannot succeed. However, if the intestate (female) dies
survived by her mother, she would count as an heir along with the other
heirs of the father.
In a case, A dies leaving behind her husband H, her full brother
B and her uterine sister S (her mother having remarried after the death
of her father). A had inherited property from her mother. The property
will not devolve upon H but upon B (heir of A's father). S is not entitled
to succeed as she is not an heir of A's father but of A's mother.
[Ill] Sec. 15(2) (b) (Property Inherited from Husband or Father-in-

law)
Sec. 15(2)(b) provides: "Notwithstanding anything contained in sub-
sec. (1), any property inherited by a female Hindu from her husband
or father-in-law, shall devolve, in the absence of any son or daughter
of the deceased (including the children of any predeceased son or
daughter) not upon the other heirs referred to in sub-sec. (1) in the
order specified therein but upon the heirs of the husband." Thus, Sec.
15(2)(b) is also an exception to Sec. 15(1).
The heirs to such property are:
Category (1): Sons, daughters, sons and daughters of predeceased
son or daughter.
Category (2): Heirs of the husband.
Thus, the husband shall be deemed to have died immediately after the
female Hindu died. It may be noted that a woman inherits the property
Of her husband on his demise, as his widow. She also inherits from
her father-in-law as the widow of his predeceased son (provided
she does not remarry before the date of the opening of the
succession).
Here, if the female had been married more than once, the properties
inherited by her from her respective husbands and their fathers should
go to heirs of respective husbands. However, if she remarried after
inheriting property from her deceased husband and died leaving behind
issues from her second husband, she has not died issueless and her
children and second husband will succeed to the property. But if she
dies issueless, the second husband will not succeed and the property
will revert to the first husband's heirs. Likewise, where a woman
inherited property from her second husband and died leaving behind a
son from the first husband, the son would take the property
[Chintaram v Rushibai, 2000 AIHC 1308 (M.P.)].
In a recent case, a woman died leaving behind a son and a
daughter, born to her from the husband whose property she had inherited.
She also had a son from a previous marriage. The Gauhati High Court
held that the son born of the previous marriage was not entitled to get
the property, as it was the property that was inherited by the woman
from her second husband and he was not the progeny of that husband,
the expression 'son and daughter' would mean the son and daughter
of that husband from whom or from whose father, she had inherited
the property. The court reasoned that if such property is allowed to be
drifted away from the source through which the deceased female has
actually inherited the property, the object of Sec. 15(2) would be defeated.
The object of Sec. 15(2) is to ensure that the property left by a Hindu
female, does not lose the real source from where the deceased female
had inherited the property (Dhanistha Kalita v Ramakanta Kalita AIR
2003 Gau 92).
It is submitted that the expression that the legislature has used in
Sec. 15(2)(b) is, in absence of 'any son or daughter of the deceased.'
The expression is without any qualification and the words 'any son or
daughter' means any son or daughter and not the son/daughter of a
particular husband. It would include all kinds of sons and daughters
-legitimate, illegitimate, etc. These are the only relations that are described
256 Family Law - II
with reference to her and not with reference to her father/husband/

mother. All children have equal rights over the property of their mother.7
It has been held that where the 'heirs of husband' are not present,
and a female Hindu dies issueless, leaving behind property 'inherited by
husband/father-in-law", the property would be treated as the general
property and devolve as per Sec. 15(1), if any of heirs (her brother's
grandson, in the present case) is present. In other words, this would
not be treated as a case of "failure of heirs" and the property would not
go to the government under the application of doctrine of escheat. The
object behind Sec. 15(2) was not to eliminate the other heirs specified
in Sec. 15(1), but to give an order of preference (State of Punjab v
Balwant Singh AIR 1991 SC 2301). It was held that it is important to
remember that female Hindu being the full owner of the property become; a
fresh stock of descent. If she leaves behind any heir either under sub
section (1) or under sub-section (2) of Section 15, her property cannot
be escheated.
Coparcenary Interest acquired by Female governed by Sec. 15(1

and not Sec. 15(2)
After the 2005 Amendment to the H.S. Act, 1956, a daughter (married
or unmarried) has become a coparcener like a son with incidents of
coparcenary ownership. As noted earlier, a coparcenary interest is
acquired by a daughter by birth and though it comes from the family
of her father, it is not an interest that she has 'inherited' from her
parents. In such a situation, her heirs would be her husband, her
children and children of predeceased children. These heirs would succeed
to her property whether she dies without seeking partition or she dies
after partition.
Thus, in case of a female dying intestate, her interest as determine
under Sec. 6(3) will be succeeded to by her heirs in accordance with
Sec. 15(1). Sec. 15(2) cannot apply here because the interest calculate
under Sec. 6(3) is not a share which she inherits from her father.
7. Supra note 3, p. 376.

Succession to Property of a Hindu Female (Example) Hindu joint

family consisting of Father (F), his Wife (W), his Son (S) having two
children (i.e. grandchildren - Sj and Dt); his Daughter (D) having a
daughter (i.e. granddaughter D4); and, a predeceased Daughter D3)
having a son (S2) and a daughter (D2).
In the aforesaid example, the succession to the property of
predeceased daughter D3 survived by her husband (H) and a son
(S-,) and a daughter (D2) will be as follows:
D3's share in the coparcenary property was l/5th. This share
of hers is 'coparcenary property' even against her son and daughter
because sec. 6(2) provides that any property to which a female Hindu
becomes entitled by virtue of Sec. 6(1) shall be held by her with
the incidents of coparcenary ownership. Thus, her interest in
coparcenary property will be divided as per notional partition
between her and her son S2 and laughter D2. Thus, D3, S2 and D2,
each will get 1/15th.
This 1/15th will go by intestate succession to her heirs under
Sec. 15(1), as provided in Sec. 6(3) that 'his interest in the property
of a joint Hindu family governed by the Mitakshara, shall devolve
by testamentary or intestate succession and not by survivorship.'
Here portion of Sec. 6(1) which provides 'any reference to a Hindu
Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener' becomes important. Thus, the expression
'his' applies to 'her' too. Therefore, this 1/15th is treated at par with
her "separate property" which thus is her "absolute property."
According to Sec. 15(1), this 1/15th will be divided in three parts
equally between her husband H, her son S2 and her daughter D2,
each getting l/45th share.
The shares will be as follows:
F- 1/5.
W- 1/5.
S- 1/5.
D- 1/5.
D2- 1/15 + 1/45.
S2- 1/15 + 1/45.
H- 1/45.
258 Family Law - II
Special Rules for Females governed by Matrilineal Systems

The Marumakkatayam system practised among the Nairs of Kerala, the
Aliyasantana observed by the Bunts in Karnataka, and the Marumakkal
vazhi followed by the Pillais of Tamil Nadu are some of the prominent
matrilineal systems of inheriting property in India. Although the Hindu
Succession Act, 1956 applies to all Hindus, Sec. 17 of the Act makes
some exceptions for these practices.
Thus, when a woman who follows the matrilineal custom dies
intestate, her 'general property' would first devolve upon the children
and the mother (and not the children as well as the husband). Then it
would devolve upon father and husband (in same category). 'Heirs of
the mother' gain precedence over the heirs of the father who in turn
are given precedence over the heirs of the husband, an order that is
inverted in the case of other Hindus.
Case Law
A Woman's Self-acquired Property covered by Sec. 15(1) and not Sec.

15(2)
LEADING CASE: OM PRAKASH V RADHACHARAN8

[(2009) 15 SCC 66]
[In this case the law views the man's estate and the woman's estate
through different spectacles: her autonomy over her property is
less complete than his.
8. A, a Hindu female was married at the age of 15 years to H, who died of a

snake bite shortly after marriage. Branded as a bad omen, her in-laws threw
her out. She was taken in by her parents and was given education and support.
She qualified the IAS exam and serving the nation died at the age of 58 years.
All through this time period, the in-laws never bothered to check on her. She
leaves behind property in the nature of a house in Delhi worth Rs. 5 crores
and Rs. 70 lakhs in cash. She is survived by her in-laws comprising of her
mother-in-law, ML, the younger brother of her late husband, HB and his two
sons; and, her parents, M and F and her brother, Br. Discuss who would gel
her property and what would be their shares. [D.U.-2010\
[Hint A's self-acquired properties will devolve upon the 'heirs of her husband, H.
The Class I heirs of H will succeed first and exclude other heirs. H's mother
(A's mother-in-law), ML, is the only Class I heir of H in the present case, thus,
ML will take the whole property. A's heirs from the natal family get excluded by
the heirs of the husband.]
Family Law - II
obstante clause, however, carves out an exception viz. when the

property is devolved upon the deceased from her father or mother, on
her death (dying without children) the same would relate back to her
parent's family and not to her husband's family [Sec. 15(2) (a)].
Similarly, in a case where she had inherited some property from her
husband or father-in-law, on her death the same would revive to her
husband's family [Sec. 15(2) (b)].
The law is silent with regard to self-acquired property of a
woman. Sec. 15(1), which deals with 'general property', however,
apart from the exceptions specified in sub-sec. (2) thereof, does not
make any distinction between a self-acquired property and the property
which she inherited from any other relation. It refers to a property which
has vested in the deceased absolutely or which is her own. The 'self-
acquired property' of a female would be her absolute property and not
the property which she had inherited from her parents.
The basis of inheritance of a female Hindu's property who dies
intestate would thus be the source from which such female Hindu came
into possession of the property and the manner of inheritance which
would decide the manner of devolution. In case of 'self-acquired
property' Sec. 15(1) will apply and not Sec. 15(2). The H.S. Act does not
put an embargo on a female to execute a Will. Sec. 15(1) would apply
only in a case where a female Hindu dies intestate (i.e. without making
a Will). In such a situation, normal rules of succession as provided
for in the statute will apply.
The court further observed: "It is now a well-settled principle of
law that sentiments or sympathy alone would not be a guiding factor
in determining the rights of the parties which are otherwise clear and
unambiguous under the Hindu Succession Act. This Court cannot issue
a direction only on sympathy or sentiments. If the contention of the
appellants is to be accepted, we will have to interpret Sec. 15(1) in a
manner which was not contemplated by the Parliament. The Parliament
has bestowed equality upon married and unmarried Hindu women
in the matter of property. The golden rule of interpretation must

be applied."
The court, thus, held that only because a case appears to
be hard would not lead us to invoke different interpretation of
a statutory provision which is otherwise impermissible. In that
view of the matter, we are of the opinion that Sec. 15(1) of the
Act would apply and not Sec. 15(2) thereof. Appeal is dismissed
accordingly.
Comments - The Hindu Succession Bill, 1954, as originally
introduced in the Rajya Sabha, did not contain any clause
corresponding to Sec. 15(2). It came to be incorporated on the
recommendations of the Joint Committee of the two Houses of
Parliament. The intent of the legislature is clear that the property, if
it originally belonged to the parents of the deceased female,
should go to the legal heirs of the father. Likewise, if it originally
belonged to her husband or father-in-law, it should go to the
heirs of the husband. It is the source from which the property
was inherited by the female, which is more important for the
purpose of devolution of her property. The fact that a female
Hindu originally had a limited right and after acquiring the full
right, would not, in any way, alter the rules of succession given in
Sec. 15(2).
In the 21sl edition of Principles of Hindu Law (Mulla),
however, it is observed that Sec. 15(2) "seem to have been
made on the ground that they prevent such property passing
into the hands of persons to whom justice would require it
should not pass and on the ground that the exceptions are in
the interest of the intestate herself." If the intention of this
provision is to prevent property from devolving on persons to
whom justice "would require it should not pass", then the
family that has refused to take care of Narayani should not
have got anything. Justice A.M. Bhattacharjee wrote in Modern
Hindu Law under Constitution: "Why the source of acquisition
should be a determinant in the case of a Hindu woman when it
is not so in the case of a Hindu man. Unless we still want to
perpetuate in a somewhat different form the old outmoded
It is time that this law is made gender-balanced. Sec.

15 should be amended. The order of succession should be
altered. In addition to "inheritance*', other modes of
acquisition from parents or because of parents could be
added.]
Law Commission's Recommendations12

The 174th Report of the Law Commission (2008) also examined
the subject of "Property Rights of Women: Proposed Reforms
under the Hindu Law" and had noted that the rules of devolution
of the property f a female who dies intestate reflects patriarchal
assumptions.
The three alternative options emerge for consideration, namely:
1. Self-acquired property of a female Hindu dying
intestate should devolve first upon her heirs from the
natal family.
intestate should devolve equally upon the heirs of her
husband and the heirs from her natal family.
intestate should devolve first upon the heirs of her
husband.
The third option may be taken first as this can be disposed of
summarily. The option essentially means continuation of the status
quo. Socip-economic changes warrant corresponding changes in
the law as well.
We may now take up the first option. The protagonists of this
approach contend that the general order of succession reflects a
gender bias. The supporters of the said approach contend that the
joint family system has slowly eroded and that an increasing number
of nuclear and semi-nuclear families have replaced the traditional
Mitakshara Hindu joint family system. Women are also becoming
more economically independent. With the growth of the nuclear
family, a married woman's dependency on her natal family and
continued closeness to it is much greater today even if it was not so
earlier. Most married women would prefer that their parents should
be the most preferred heirs to inherit her
12. Justice A.R. Lakshmanan, "Let us Amend the Law, It is Only Fair to Women",
The Hindu, Delhi, July 24 (2011).
264 Family Law -II
property if her children and husband are not alive. She would also
prefer that her sister and brother have a better right to inherit her
property than her brother-in-law and sister-in-law.13
The second option in this regard is that the property of a female
Hindu dying intestate devolves upon the heirs depending upon the source
from which, the said property was acquired by her, the self-acquired
property of such female be simultaneously inherited by her heirs both
from the husband's family as well as the natal family in equal share.
The fact remains that in spite of her closeness to and dependence on
her natal family, her relations with her husband's family are not separated
and uprooted in entirety. She continues to be a member of her husband's
family, getting support from it in all walks of life. One cannot afford
to ignore the ground realities in this regard. The social ethos and the
mores of our patriarchal system demand that the existing system should
not be totally reversed as claimed by the protagonists of the first option.
Lest, there may be social and family tensions which may not be in the
overall interest of the family as a whole and as such, ought to be
avoided. In any case, it is open to the female Hindu to bequeath her
property the way she likes by executing a Will.
In the present scenario, when amendments are made to the effect
that women have been entitled to inherit property from her parental side
as well as from husband's side, it will be quite justified if equal right
is given to her parental heirs along with her husband's heirs to inherit
her property.
It is therefore, proposed that in order to bring about a balance,
Sec. 15 should be amended, so that in case a female Hindu dies intestate
leaving her self-acquired property with no heirs, as mentioned in Clause
(a) of Sec. 15(1), the property should devolve on her husband's heirs
and also on the heirs of her parental side.
13. P. Pradhan Saxena - Succession Laws and Gender Justice in Re-defining

Family Law in India by Archana Parasar, Amit Dhanda, New Delhi.
Success/on to Property of a Female Hindu (originally inherited from

her Mother)
LEADING CASE: BHAGAT RAM v TEJA SINGH

(AIR 2002 SC 1)
[Section 15(2)(a) uses the words 'any property inherited by a
female Hindu from her father or mother.' Thus property
inherited by a female Hindu from her father and mother is
carved-out from a female Hindu dying intestate. In other
words any property of female Hindu, if inherited by her from
her father or mother would not fall under Sec. 15(1), and, it
should go the legal heirs of her father under Sec. 15(2)(a).
It is the source from which the property was inherited by the
female, which is more important for the purpose of devolution
of her property. Even if the female Hindu who is having a
limited ownership becomes full owner by virtue of Sec. 14(1) of
the Act, the rules of succession given under Sec. 15(2)(a) can be
applied. | In this case, a female Hindu along with her sister
inherited property their mother on the latter's death. After
inheriting the property one sister died issueless. The other
sister took the property as her 'father's heir' [under Sec. 15(2)
(a)] and entered into an agreement to sell the same to a person
A. The deceased sister's husband's brother challenged the
validity of this sale and claimed the property as an heir
under Sec. 15(l)(b).
The question arose whether the said property would
devolve on the legal heirs of the father (her sister) or on the
heirs of predeceased husband (husband's brother). The court
held that under Sec. 15(l)(b) of the H.S. Act, if female Hindu
dying intestate and issueless, the devolution of property has
to be on the basis of the source from which property was
inherited by female. If the property held by a female was
inherited from her father or mother, in the absence of any
children of the deceased, it would only devolve upon the
heirs of the father and in this case her sister, who was the
only legal heir of the father of the deceased, admittedly
inherited the property because
Family Law - II
the intent of the legislature is clear that the property, if originally

belonged to the parents of the deceased female should go to the legal
heirs of the father. Thus, a sale of such property by the sister of the
female Hindu is valid.
The learned Counsel for the respondents (heirs of husband)
contended that deceased female acquired property from her mother
(who died on 25-12-1951) and at that time deceased female had only a
limited right over this property, but by virtue of Sec. 14(1) of the H.S.
Act, she became the full owner of the property and, therefore, on her
death, the property held by her would be inherited by her legal heirs as
per the rules set out in Sec. 15(1). He also contended that Sec. 15 of
the H.S. Act will have only prospective operation and, therefore, the
words used in Sec. 15(2)(a) viz. "any property inherited by a female
Hindu" are to be construed as property inhen'ed by a female Hindu
after the commencement of the Act.
The Court, however, observed: It is not necessary that such
inheritance should have been after the commencement of the Act. The
intent of the legislature is clear that the property, if originally belonged
to the parents of the deceased female, should go to the legal heirs of the
father. So also under Sec. 15(2)(b), the property inherited by a female
Hindu from her husband or her father-in-law, shall also under similar
circumstances, devolve upon the heirs of the husband. It is the source
from which the property was inherited by the female, which is more
important for the purpose of devolution of her property. We do not
think that the fact that a female Hindu originally had a limited right and
later, acquired the full right, in any way, would alter the rules of
succession given in Sec. 15(2).
The source from which she inherits the property is always
important and that would govern the situation. Otherwise persons who are
not even remotely related to the person who originally held the property
would acquire rights to inherit that property. That would defeat the
intent and purpose of Sec. 15(2), which gives a special pattern of
succession. Properties inherited by
her from her father revert to the family of the father in the
absence of issue and similarly property inherited from her
husband or father-in-law reverts to the heirs of the husband
in the absence of issue. Such a provision would prevent
properties passing into the hands of persons to whom
justice would demand they should not pass.]
HINDU WOMAN'S PROPERTY
sec. 14, Hindu Succession Act, 1956, introduces fundamental

changes in the concept of woman's property. Under the classical
Hindu law, there were various restrictions on a woman's
ownership of property, and, her right to dispose it (including her
testamentary powers). The restrictions imposed on the proprietary
rights of a woman depended on her status as a maiden, as a married
woman and as a widow. They also depended upon the source and
nature of the property.
Before 1956, woman's property was divided into - (a) woman's
estate (or widow's estate) and (b) Stridhan. While the term
'stridhan' s found in the ancient texts, the term 'Hindu woman's
estate' has been used in the Hindu Women's Right to Property Act,
1937.
(a) 'Stridhan'' is her 'absolute' property over which she has
full rights of disposal or alienation e.g. gifts from
relations/ strangers; property acquired by self-exertion;
property acquired by compromise; property obtained in
lieu of maintenance.
(b) 'Woman's estate'' - She is a 'limited' owner of it, as she
can't ordinarily alienate it (like karta, she can alienate
it only in exceptional cases); and on her death it devolves
not upon her own heirs but upon the next heir of the last
full owner (i.e. reversioners e.g. husband's brother) e.g.
property obtained by inheritance (whether from a male
or female) and a share obtained on partition (Sec. 3,
Hindu Women's Right to Property Act, 1937).
268 Family Law - II
The Hindu Women's Right to Property Act, 1937, modified the old
Hindu law so as to confer greater rights on women. It conferred upon
the widow, right of inheritance to her hsuband's property, even where
the husband left male issue. She was also given power to claim partition.
But in all these cases, the widow was given only a limited interest in
the property ('woman's estate). She had no power of disposition by
sale, lease, mortgage, gift or Will.
Sec. 14 (H.S. Act, 1956)

(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act. shall be held by
her as a full owner thereof and not as a limited owner.
Explanation - The term "property" includes both movable and immovable
property acquired by a female Hindu by inheritance or device/or at
partition/or in iieu of maintenance or arrears of maintenance/or by gift
from any person, before, at or after her marriage/or by her own skill
or exertion/or by purchase or prescription/or in any other manner/and
also any such property held by her as stridhan immediately before the
commencement of this Act.
(2) Property given with limitations - Nothing contained in sub-sec
(1) shall apply to any property acquired by gift/Will/or and
other instrument/under a decree or order of court/or under an
award, where the terms of gift, Will, other instrument, decree
or award prescribe a restricted estate in such property.
[Note - There is nothing in Sec. 14 (2) or other sections to qualify the
absolute ownership or led to forfeiture of estate on her remarriage. The
H.S. Act overrides the Widow Remarriage Act or any other Act. Once
her limited (woman's) estate becomes her full or absolute estate (i.e
stridhan) by virtue of Sec. 14, a Hindu female can alienate it by gift or
otherwise.
Once a widow succeeds to the property of her husband and
acquires absolute right over the same under Sec. 14, she would not be
divested of that absolute right on her remarriage. A limited entitlement
of maintenance would necessarily fructify into a full estate for a widow
provided she had not remarried before the H.S. Act came into force,
Thus, the traditional limitation on the power of disposition of

a Hindu female has been done away by Sec. 14 which has
"enlarged" her limited estate into her full estate. The H.S. Act
recognized her as an independent and absolute owner of property.
As the property is now her II estate, she becomes a fresh stock of
descent in respect of that property. It devolves after the Act upon
her own heirs and does not revert to the next heirs of the last full
owner (i.e. reversioners). However, the reversioners do exist in those
cases where the Hindu female lost the juridical possession of the
property (discussed below).
Pre-Act Woman's Estate ('Limited Estate*) [Sec. 14(1)] 14

Sec. 14(1) has been given retrospective effect. Two conditions are
necessary for this:
(a) ownership of property must vest in her, and
(b) she must be in possession of the estate when the Act came in
force.
She must be owner of the property i.e. she must have acquired title
to It (where there is no title or interest in the property she cannot be
said to be "possessed" of the property). The property must be in
her possession or she has a right to possession of it. The term
"possession" has very wide connotation, and includes actual
(physical) as well as constructive possession e.g. where she is
entitled to possession of property, such as when the property is in
possession of a trespasser; property is in possession of mortgagee,
lessee or licencee.
The term "possession" is co-extensive with the "ownership".
Thus wherever woman has ownership of property vested in her she
will be deemed to be in possession, and if ownership doesn't vest in
her, even if she is in actual possession she will not be deemed to be in
possession. In Mangla Singh v Rattno (AIR 1967 SC 1786), a
widow who had entered into possession of land belonging to her
husband in 1946, and had been illegally dispossessed by her
husband's brothers in 1954, brought a suit for possession. During
the pendency of suit, H.S. Act came into force, and widow died in
1958 and her legal representatives
14. Write a short note on: 'Abolition of Limited Estate.' [D.U.-

2006]
270 Family Law - II
carried on the battle. Held that since the land was possessed by the
widow (in a constructive sense) when she died in 1958, her legal
representative succeeds. If her possession is that of a trespasser or of
a licencee, she can't be said to be in possession. Her possession must
be legal.
It may be noted that Sec. 14(1) does not mean at all that if there
is any want or defect in the full ownership of that property under 'some
other law,' that want or defect has also disappeared.
It may also be noted that Sec. 14(1) uses the expression "whether
acquired before or after the commencement of the Act''. Thus, this
provision is retrospective as well as prospective.
If property is not in her possession when the Act came into force
Then, in that case, the old Hindu law continues to apply. Sec. 14 has
abolished the woman's estate, but the reversioners are still relevant in
respect of the woman's estate alienated by her before 1956. It is
important to note that a suit filed by reversioners before 1956 can be
continued and a fresh suit can be filed after 1956.
Rights of reversioners - Reversioners are the heirs of the last full
owner. Had the female not intervened he/they would have inherited the
property (Hindu woman's estate) in question. The nature of reversioner's
interest was not a vested but a contingent interest. It was a spes
successionis i.e. a mere chance of succession. This is so because as
long as the limited owner (woman) had the ownership of the property
nobody could lay any claim to it. It could not be predicted with certainty
who would succeed to the property on the expiry of the woman’s
interest in that property because nobody could say who would survive
the limited owner {Ram Chander v Ganesh Das AIR 1984 SC 42).
Their rights are as follows:-
(i) They can sue for a declaration that an alienation by
widow is void, and will not be binding on them after the
death of widow, (ii) They can, after the death of widow or
after termination estate, file a suit for the possession of
'improper' alienation made by widow, from alienee.
H i n d u Woman's Property 271
The Hindu female is bound by that alienation because the old law
made such a transaction enforceable against her but the reversioners
are not bound by such transfer. They are entitled to the restoration of
the property from the alienee. The rights of alienee are co-
extensive with t of the widow; the alienee can retain property so long
as the widow alive. The alienee does not get the full ownership of the
property by virtue of Sec. 14(1), because this provision is meant for
the benefit of Hindu female and not for the transferee from her.
The law in force at the time of the death of the limited female
owner governs the succession to reversioners. The husband's heirs/
reversioners would be ascertained as if husband had died at the time of
widow's death [Daya Singh v Dhan Kaur (1974) 1 SCC 700]. In this
case, on the death of a Hindu in 1933 his widow inherited his property
as a limited owner. She had made an unauthorized gift of the property
before the H.S. Act was passed. As she was not in possession of the
property at the time of the commencement of the Act, she could not
become the full owner thereof under Sec. 14(1). She died in 1963.
Thus, succession to property will be governed by the H.S. Act, 1956.
accordingly, his daughter would succeed to his property, to the exclusion f
the collaterals (brothers of husband).
Acquisition under Sec. 14(1) covers Re-acquisition the Explanation

to Sec. \4(V) makes it clear that Sec. \4(V) \s large in its amplitude
and covers every kind of acquisition of property. The word "acquired"
has to be given the widest possible meaning [Badri Prasad v Kanso
Devi (1969) 2 SCC 586].
A conveyance can be annulled by a re-conveyance by consent of
both the parties. Thus, if she purchases back or if she is donated back
the property which she once sold or donated to some person, it would
come within the meaning of 'acquisition.' The re-acquisition might have
taken place either before the Act or thereafter. It may take place either
before the reversioners filed a suit against the alienation by the limited
female owner or during litigation or after a decree is passed in their
favour.
In Teja Singh v Jagat Singh (AIR 1970 P&H 309), a Hindu female
alienated properties before the Act came into force, but alienation is held
272 Family Law - II
invalid, consequent to which the possession is reconveyed to her. Here,

the 'defect' is cured and the widow becomes absolute owner, by virtue
of Sec. 14(1). So, the rights of reversioners defeated here. In other
words, if a woman make a gift before 1956, and there had been a gift
back to her in 1954 (or in 1959), the 'defect' is cured.
LEADING CASE: JAGANNATHAN PILLAI V KUNJITHAPADAM PILLAI

(AIR 1987 SC 1493)
[It is futile to contend that the female shall be in possession of

property 'before' the coming into operation of the H.S. Act. If the
property itself is acquired after the commencement of Act, there
could be no question of property being either in physical or
constructive possession of female before the coming into operation
of the Act. All that is required to be shown by her is that she had
acquired the property and that she was 'possessed' of property at
the time when her title was called into question.
If reconveyance takes place before or after 1956, the female would
certainly be deemed to be in possession of property, with the result
Sec. 14 will apply. By reversal of the original transaction, her
rights would have to be ascertained as if she became possessed of
the property for the first time, after the commencement of the Act.]
In a situation where a Hindu widow regains possession of a
property (limited estate) subsequent to the commencement of
H.S. Act upon the retransfer (reconveyance) of same property by
transferee in whose favour she had transferred it prior to the
Act, then according to the A.P. and Orissa High Courts, she
would only be a 'limited owner' of such property, while
according to Madras and Bombay view, she would be a 'full
owner.' In the present case, the widow was not in possession on
the date of the commencement of the Act, but the possession was
restored to her later.
The Apex Court observed and held as follows:
(i) The H.S. Act applies even to properties possessed
by a Hindu female which are acquired 'after' the
commerxement of Act, it is futile to contend that
the female shall be in possession of property 'before' the coming into

operation of the Act. If the property itself is acquired after the
commencement of Act, there could be no question of property
being either in physical or constructive possession of female
before the coming into operation of the Act. (ii) The legislative
intent is abundantly loud and clear. The intention of the
legislature was to do away with the concept of limited ownership
in respect of the property owned by a Hindu female altogether. All
that is required to be shown by her is that she had acquired the
property and that she was 'possessed' of property at the time
when her title was called into question, (iii) A conveyance can be
annulled by a re-conveyance by consent of both the parties. When
she bought the property from alienee to whom she had sold
property prior to the Act, she 'acquired' property within the
meaning of Explanation to Sec. 14(1). Whatever she had lost
earlier was now regained by her by virtue of the transaction. The
status quo ante was restored in respect of her interest in the said
property, (iv) When the transaction was reversed and what
belonged to her was retransmitted to her, what she acquired was a
right which she once possessed (namely, a limited ownership)
which immediately matures into a full ownership in view of Sec.
14(1). By the reversal of transaction no right of reversioner affected,
for he had merely a spes successionis or a chance of succession,
which may or may not accrue to him. (v) It was contended that
the donee or transferee who retransfers property to widow can't
transfer a title higher than the title they themselves had in property.
274 Family Law - II
As they had only a limited interest, so they can

transmit only a limited interest.
(vi) The court observed that there is a difference
between retransfer to a stranger, and the original
owner (i.e. widow). It is only in the former case,
that they could transfer limited interest. In the latter
case, upon retransfer, the original transaction is
obliterated, and the position reversed and the original
rights of widow restored. By reversal of the original
transaction, her rights would have to be ascertained
as if she became possessed of the property for the
first time, after the commencement of the Act.
During the time the property is under the title of
the alienee, it is under an eclipse.
Therefore, if reconveyance takes place before or after 1956,
the female would certainly be deemed to be in possession of
property, with the result Sec. 14 will apply]
Post-Act Woman's Estate ('Restricted Estate') [Sec. 14(2) or (1)1

Any property acquired by a Hindu female after the coming into force
of the Act, will be her absolute property [Sec. 14(1)], unless given to
her with limitations as mentioned in Sec. 14(2). Sec. 14(2) enacts a well-
established principle of law viz. if grant is given subject to some
restrictions, the grantee will take the grant subject to these restrictions.
Thus, Sec. 14(2) is based upon the principle of sanctity of contracts
and grants.
Sec. 14(1) removes the legal inability of the recipient Hindu female
to take a full ownership, but at the same time Sec. 14(2) recognizes the
power of an absolute owner to make any kind of disposition of his
property (viz. via Will) in accordance with his wishes. Thus, Sec. 14(2)
is more in the nature of a proviso or exception to Sec. 14(1). But Sec.
14(2) should be construed in a strict manner so that the reformative
flow of Sec. 14(1) may have only few obstructions. It may be noted
that Sec. 14(1) need to be construed liberally.
Sec. 14(2) uses the term 'restricted estate' and not 'limited estate.'
The latter term is well-known under the traditional Hindu law. The
former term is not so; it is not even defined by the H.S. Act. The term
restricted estate' has much wider import than the term 'limited estate';
the latter admits only those limitations or restrictions which are
recognized by the personal Hindu law, the former will admit any
limitation or restriction which can be lawfully attached to a
property. Every 'limited' ate is a type of 'restricted' estate.
It is interesting to note that Sec. 14(1) as well as Sec. 14(2)
mentioned almost same methods or modes of acquisition of
property (e.g. gift, any other instrument, in any other manner
whatsoever, etc.) t the consequences mentioned are different. This is
a classic instance a statutory provision which, by reason of its inapt
draftsmanship, s created endless confusion for litigants and proved
a paradise for lawyers. Finally, the Supreme Court resolved this
conflict in Tulasamma Shesha Reddy case (discussed below).
The proper test to determine whether a case falls under Sec. 14(1)
or (2) (as laid in Sumeshwar v Swami AIR 1970 Pat 348): If the female
is no right or interest in the property prior to grant, she will take it
accordance with grant, but if she had an interest prior to grant and
the grant merely embodies that interest, Sec. 14(1) applies, while in the
former case, Sec. 14(2) applies. The Supreme Court took the same
view in Munna Lai v Raj Kumar (AIR 1962 SC 1493): Sec. 14 (2)
applies where grant itself is the source or origin of interest created,
and not where grant is merely decalatory or definitive of pre-existing
right.
examples
(1) Where daughter-in-law sued for partition to get her share of
inheritance, other members said that she could get her share
only if she agreed to include properties given to her for
maintenance in suit properties. Held that she claimed her
inheritance and her claim of maintenance is a separate question
(Chinnappa v Valliammal AIR 1969 Mad. 187).
(2) Where under an agreement, widow took a share in the estate
of joint family as a life-estate with a vested remainder in favour
of others and there was no indication to show that she took
Family Law - II'
those properties for her maintenance the case falls under Sec
14(2) {Kunji v Meenakshi AIR 1970 Ker. 284).
(3) A share obtained by a Hindu female in a partition is a type of
property falling under Sec. 14 (1), even though her share is
described as a limited estate in decree/award.
(4) Where a widow inherited some properties from her husband
subsequently she entered into a compromise with the
reversioners that she would hold the estate as limited owner
and would not cut trees on land. Here, widow didn't acquire
any right under the compromise so case falls under Sec. 14(1)
(5) Where a widow having no right to any share in property
except her right of maintenance and residence, was allotted
some property for her residence and maintenance during her
life-time under an agreement, the agreement prohibited her
from
alienating properties. She was in possession of properties when
the Act came into force. Held that the case falls under Sec.
14(2).
(6) Where a Will confers a life estate, Sec. 14 (2) applies, and
where Will confers a full estate, Sec. 14(1) applies.
(7) Where no property is given in lieu of maintenance and only
a sum of money given, then Sec. 14 does not apply.
(8) If she has only a charge on the property that property does
not get converted into her full estate.
(9) Where under a settlement, property was given to the widow
which were to revert to the settler or his brother after her
death
do not get enlarged into full estate. The testator gave an
estate
to his daughter for her maintenance stating that the estate in
the
last resort (i.e. on his failure to get a son before his demise
should go to his brother, he meant to give a life estate
(Bhura
v Kashiram AIR 1994 SC 1203). Thus, Sec. 14(2) applies
Expansive Interpretation of Sec. 14(1) and Restrictive

Interpretation of Sec. 14(2)
LEADING CASE: V. TULSAMMA v V. SHESHA REDDY15

(AIR 1977 SC 1944)
[It will depend on the facts of each case whether the

same is covered by Sec. 14(1) or (2). The question in such
cases will be mostly one of construction of the instrument
and ascertainment of the intention therein expressed. Sec.
14(2) is merely & proviso to Sec. 14(1).
Where the property is acquired by a Hindu female at a partition
or in lieu of right of maintenance, it is in virtue of a 'pre-existing'
right and thus covered by Sec. 14(1) and not Sec. 14(2) even if the
instrument, decree, etc. allotting the property prescribes a
restricted estate in the property. Sec. 14(2) must be confined to
cases where property is acquired for the first time as a 'new grant'
without any pre-existing recognized right.] Facts - The
properties in suit (filed by the widow Tulsamma for
maintenance) were allotted to her, under a compromise
certified in 1945, by the court... "in which the appellant had
taken only a life-interest in the properties and there was clear
restriction prohibiting her from alienating her properties." Despite
these restrictions, she continued to be in possession of properties
till 1956; and she made alienations in 1960-61 on the plea that
she had acquired an absolute interest in properties. Thus the
question is: What happens when a female Hindu is given some
properties as a settlement recorded in a decree, which prescribes
as one of the conditions that the properties will revert to her
reversioners.
15. W, a Hindu widow, got a house as limited owner under a decree of

the court,
in lieu of her maintenance out of JFP, in 1950. Now she wants to make
a gift of
the house in favour of her brother. Can she do so? Discuss in the light
of sub
section (2) of Sec. 14 of the H.S.A., 1956. Refer to case law. Explain the
points
of law involved in the case.
[LC.H-94/96\
278 Family Law - II
Observations - The Court observed: The right of the widow

to be maintained is of course not a jus in rem, it doesn't
give her any interest in JFP, but it is certainly jus ad rem,
i.e., a right against JFP. Therefore, when specific property
allotted to the widow in 'lieu of her claim for maintenance',
the allotment would be in satisfaction of her jus ad rem -
the right to be maintained out of the JFP. It would not be a
grant for the first time, without any pre-existing right in
widow. The instrument giving the property is merely a
document effectuating a preexisting right.
Decision - In Sharbati v Hiralal (1964) A. Punj. 114, held
that the application of Sec. 14(2) was limited to only those
cases where a female acquired a title for the first time. In the
present case, Fazal AH J. concluded:-
(i) Provisions of Sec. 14 must be liberally
construed so as to advance the object of the Act
which is to enlarge the limited interest of widow.
The promotion of socio-economic needs sought
to be achieved by this long needed legislation
should not be lightly interfered with.
(ii) The words "any property" in Sec. 14(1) are, even
without any amplification, large enough to
cover any and every kind of. property.
Whatever be the kind of property (as proved
by the Explanation) and whichever be the mode
of acquisition, it would be covered by Sec.
14(1).
(iii) Sec. 14(2) doesn't refer to any transfer which
merely recognizes a pre-existing right {Badri
PrashadvSmt. Kanso Devi AIR 1970 SC
1963).16
16. In this case, a partition of the property was effected and an award was
made by the arbitrator that the second wife of the intestate (who died in
1947) would have a widow's estate in the share allotted to her. It was
held that she had acquired an interest in the property left by the intestate
by virtue of the Hindu Women's Right to Property Act, 1937, and became
full owner of the property allotted to her by virtue of Sec. 14(1) and Sec.
14(2) was not attracted simply because there was a partition and an
award.
Sec. 14(2) must be confined to cases where property is

acquired for the first time as a new grant without any pre-
existing recognized right, (iv) Where, however, the
property is acquired by a female Hindu "in lieu of pre-
existing right", such an acquisition would not be within the
scope and ambit of Sec. 14(2), even if the instrument, decree,
order or award allotting the property prescribes a restricted
estate in the property, (v) Sec. 14(2) does not require that the
restricted estate must be prescribed in express terms.
Normally any acquisition of property covered by Sec. 14(2)
would be an instrument in writing or by decree or award.
Whether any 'restricted estate' has been created or not in
any such case must obviously be a question of construction
to be determined in accordance with the canons of
construction applied with regard to such instrument, decree,
etc. (vi) The antecedents of the property, the possession of
the property as on the date of the Act and the existence of a
right in the female over it, however limited it may be, are
the essential ingredients in determining whether Sec. 14(1) or
Sec. 14(2) would come into play. (vii)Sec. 14(2) is merely a
proviso to Sec. 14(1) and has to be interpreted as a proviso
and not in manner so as to destroy the effect of main
provision. In other words, Sec. 14(2) must be read in the
context of Sec. 14(1) so as to leave as large a scope for
operation as possible to Sec. 14(1). (viii)The use of express
terms like "property acquired by a female at a partition", "or
in lieu of maintenance" or "arrears of maintenance" in
Explanation to Sec. 14(1) clearly makes Sec. 14(2)
280 Family Law - II
inapplicable to these categories, which have

been expressly excluded from operation of
Sec. 14(2).
(ix) The Act of 1956 has made revolutionary
changes in the Hindu society and every
attempt should be made to carry out the
spirit of the Act i.e. to emancipate women
in India.
The Court, thus, held that, in this case, the properties in
question were allotted or acquired by the widow under
the compromise in lieu of satisfaction of her pre-existing
claim for maintenance. The widow is the absolute owner
and the restrictions mentioned in the decree to be ignored.
Whatever limited interest in the property she had, any
restriction on her right being a "disability imposed by law"
would be wiped out and her limited interest would be
enlarged under Sec. 14(1). In other words, a provision in
the instrument prescribing that she would have only a
limited interest in the property would be 'merely
recording the true legal position' and that would not
attract Sec. 14(2) but Sec. 14(1).]
Acquisition after H.S. Act, 1956

Any acquisition or possession of property by a Hindu female after
the H.S. Act, 1956, would attract Sec. 14(1) or (2) will depend
on the nature of right acquired by her. It cannot normally attract
Sec. 14(1). However, if she takes it as an heir under the Act, she
takes it absolutely. If while getting possession of the property after
the Act, under a devise, gift or other transaction, any restriction is
placed on her right, the restriction will have effect in view of
Sec. 14(2) of the Act (Sadhu Singh v Gurdwara Sahib AIR
2006 SC 3282).
Restricted Property under a Will covered by Sec. 14(2)
LEADING CASE: GUMPHA V

JAIBAI [(1994) 2
SCC 511]
[Sec. 14(1) does not enlarge or enhance the rights which a

Hindu female gets under a Will giving her a limited estate
under Sec. 30. Sec. 14(1) has to be read in conformity with
Sec. 30 and Sec.
14(2). A Hindu may impose restrictions on the property

bequeathed by him under a Will. He can do so in the case of
a female as well as a male.
The Explanation to Sec. 14(1) does not include acquisition by
Will. Therefore, a right of maintenance under a Will after
1956 would fall under Sec. 14(2), even on the ratio of
Tulasamma case. It would be creation of right for the first
time and not recognition of pre-existing right.]
In this case, the Supreme Court explained the scope of
operation of sub-sees. (1) and (2) of Sec. 14, U.S. Act.
The question which fell for consideration is if
testamentary disposition of property by a male Hindu by a
Will which comes into operation after 1956, creating life
interest in favour of his widow, subsists as such after his
death or she becomes an absolute owner by operation of
Sec. 14(1) read with Explanation. In other words, what is
the dichotomy between two sub-sees, of Sec. 14 which
forms the bedrock of revolutionary changes brought out
in Hindu Law of Succession in 1956.
Held - The purpose and legislative intention which
surfaces from a combined reading of Sec. 14(1) and (2) is
that it attempts to remove the disability which was imposed
by the customary Hindu Law on acquisition of rights by a
female Hindu, but it does not enlarge or enhance the
rights which she gets under a Will giving her a limited
estate under Sec. 30.
Sec. 14(1) has to be read in conformity with Sec. 30
and Sec. 14(2). Tulasamma case was concerned with the
right of maintenance granted to a widow in a decree. Since
the property was given to Tulasamma in lieu of her right
to maintenance, she acquired it as provided by the
Explanation appended to Sec. 14(1). But since this right
she got under a decree of a court which prescribed a
restricted estate, the right and interest which she got fell
under Sec. 14(2) as well. The court by interpretative
process removed the anomaly arising out of 'inapt drafting'
by construing sub-sec. (1) widely and reading sub-sec. (2)
as a proviso or exception to sub-sec. (1) so that it may
impinge as
282 Family Law - II
little as possible on the broad sweep of the ameliorative

provision contained in sub-sec. (1).
The Explanation to Sec. 14(1) widens the ambit of
sub-sec. (1) and extends it to any acquisition mentioned in
it. The use of words acquisition 'in lieu of or 'arrears of
appear to be significant. The expression is no doubt very
wide but its width cannot be extended to those
acquisitions which are specifically dealt with by sub-sec.
(2). A reading of the two sub-sees, together indicates that
even though the law was revolutionized and a female
Hindu was made an absolute owner in respect of any
property acquired by her either before or after the date of
enforcement of the Act yet the law did not intend to
confer a higher and better right than what was enjoyed
by a male Hindu. The possession must be founded on some
basis which may be acceptable in law and the right she
acquires under Sec. 14 depends on the nature of possession
she enjoyed over the property. Thus if a female Hindu
acquires possession after the enforcement of the H.S. Act
and that possession was traceable to an
instrument/document described in sub-sec. (2) then she
could not get higher right than what is stipulated by the
document itself.
The concept of 'pre-existing right' takes the
acquisition of property out of the ambit of Sec. 14(2).
But if that concept is extended to a Will executed under
Sec. 30 it would militate against express provisions in Sec.
30. Sec. 30 creates absolute power in a Hindu to dispose
of his property by a Will and includes the right to create
limited or restricted estate in favour
of a female. The property disposed of by Will by a Hindu shall
Thus, if a Will gives a female only a

limited estate (or life interest), she would be entitled only
to a limited estate under Sec. 14 (2) and not absolute estate
under Sec.14(1) The right of maintenance under a will
would be covered by Sec.14(2) as it is not pre-existing
right.]
H i n d u Woman's Property 283
FURTHER QUESTIONS
Q.1(a) At the time of Mala's marriage, her father presented her

with a Fixed Deposit Receipt of Rs. 25,000. Mala died
two years later. Mala's husband H and her brother B
claim the amount as her sole heir under the H.S.A.,
1956. How will you decide?
What will be your answer if Mala had been survived by

her husband H, a son S and illegitimate daughter of
predeceased illegitimate daughter D?
(b) Gangaram had a son Gopal and a daughter Shikha.

Gangaram
died in 1985 possessed of ancestral properties
comprising
of 20,000 shares of a company, and two houses in
Delhi. He
left behind his son and daughter as his only heirs.
Shikha
was married to Kumar, and she died issueless in 1990.
At the
time of her death she also had an amount of Rs. 1 lacs
in
her RF. Account. Distribute the shares of Shikha among
her
heirs. [C.LC-
91/93/94/95\
(c) In 1992, W a female Hindu died leaving behind her

husband H as her sole heir. Discuss the rights of H in
the following properties of W:-
(i) a house which W had inherited from her father in 1989,

and
(ii) some movable properties which she got by way of gift

from her father after her marriage.
Will your answer be different if W had been survived by

her husband H and a minor daughter D? Give reasons.
[C.LC.-93/96\
A. 1(a) Intestate Succession to the Property of a Hindu

Female
The gifted property is not equal to inherited property, thus Sec.
15 (1) and not Sec. 15 (2) will apply in such a case (Meyappa
v Kannappa AIR 1976 Mad 184). A female's husband is a heir
in entry (a) of Sec. 15 (1), while a female's brother is a heir in
entry (d) ('heirs of father')
284 Family Law - II
of Sec. 15 (1). As the heirs in an earlier entry exclude those in the

later entry, the husband will succeed in the present case.
The heirs in Sec. 15 (1), entry (a) includes 'sons, daughters,
sons and daughters of a predeceased son or daughter and
husband.'All these heirs succeed simultaneously, sharing equally.
Illegitimacy is not a disqualification, but the 'heirs of illegitimate
parents' could not succeed. In other words, the grandchildren, in
order to succeed, should have
been born out of a valid marriage. Thus, D will not succeed.
Thus, if N4ala -was survived toy W, S and O. only H and S -would
lake reer property.
(b) Shikha's share in her father's property could be determined by
applying Sec. 6 and effecting a notional partition. On
such partition, Gangaram and his son will get 1/2 share
each; Gangaram's 1/2 share will go by succession to his
heirs - son and daughter (Shikha). Thus, Shikha will
get 1/4 share, i.e.,
position before 2005 Amendment to the H.S. Act,
1956.
As the above mentioned property is the 'property inherited from
her father', Sec. 15(2) (a) applies, category (2) of which includes
'heirs of the father.' Thus, such property will go to her brother
Gopal.
The amount of Rs. 1 lacs in her RF. Account is her own
property and thus Sec. 15 (1) applies, entry (a) of which
includes 'husband.' Thus, such amount of money will go to her
husband Kumar.
(c) The house which W inherited from her father will go by
succession to the heirs of the father [Sec. 15(2) (a)], if
she has no child and H is the sole heir of the house. As to
the gifted property, Sec. 15(1) applies and the husband
would take it.
If W had a child, the house which she inherited from her father
would go to her minor child D, the child being in an earlier
category than the heirs of the father, under Sec. 15(2) (a); the
husband is excluded here. In the second case, the child and the
husband would share the gifted property equally [Sec. 15(1),
entry (a)j.
Q.2 X dies intestate in 1994, and leaves behind her parents F and M,
surviving spouse H, two sons S1, and S2, two daughters D1 and D2.
X also had an illegitimate son S3. S1 during the lifetime of X, had
converted to Muslim faith and had married a Muslim girl. X leaves
property worth Rs. 20 lakhs. Ascertain the shares of aforesaid heirs in
X's property if X was a female Hindu and the property was acquired
by her? [D.U.-2008\ The scheme of succession to X's property will
be governed by Sec. 15(1), since the properties are 'self-acquired'
ones. The 'children and the husband' of the deceased female are
placed in the first category under Sec. 15(1). Her parents being
placed in a later category will be excluded. The illegitimacy of a child
will not disqualify him; likewise conversion of a child is also not a
disqualification. Thus, the property will be divided equally among
husband H, SI, S2, S3, Dl and D2.
Q.3 A, a female Hindu dies intestate in 2006, and has left behind
property worth Rs. 80 lakhs. She had three children from her
husband H who also survives her. Her one son S1 died
during her life time leaving behind his widow SW. Her other
two children a son S2 and a daughter D were married to non-
Hindu spouses. She also had an illegitimate child SS born
to her before marriage as a result of an illicit affair with H2.
Besides theses relations her parents M and F were also
living with her. Discuss who gets her property and what
would
be their shares? [D.U.-2008
(Supp.)]
3 The scheme of succession to A's property will be governed by Sec.
15(1), since the properties are 'self-acquired' ones. The 'children
and the husband' of the deceased female are placed in the first
category under Sec. 15(1). Her parents being placed in a later
category will be excluded. The illegitimacy of a child will not
disqualify him; likewise marriage of a child with non-Hindu spouse
is also not a disqualification. The widow of a predeceased son
(SW) being placed in a later category ('heirs of husband') will be
excluded. Thus, the property will be divided equally among
husband H, S2, SS, and D (each will get 20 lakhs).
286 Family Law - II
Q.4 Priya dies in 2005 leaving behind her property inherited from
her father and the following relations - husband, adopted
daughter, deaf son and mother. Discuss who would get the
property of Priya? [D.U.-2009]
A.4 The scheme of succession to Priya's property will be governed
by Sec. 15(2)(a), since the properties are 'inherited from father'.
The 'children' of the deceased female are placed in the first
category under Sec. 15(2)(a). Her husband will be excluded
because he cannot succeed to the property of his wife which
she had 'inherited from her parents.' Thus, the property will be
divided equally among her children - daughter and son. Adoption
of daughter does not matter; similarly, physical disability of son
is not a disqualification for succession. The deceased female
'Mother' being placed in the later category ('heirs of father')
will be excluded in the presence of children.
A Hindu female died leaving behind her daughter from a previous marriage
and the second husband, and property that she had inherited from her
father, it was held that since the deceased had inherited the property
from her parents, her daughter alone will be entitled to succeed and the
husband here, cannot succeed [Radhika v Anguram (1994) 5 SCC
761].
Q.5 W, a female Hindu died intestate in 1968 and leaves behind

her spouse H, son S1, illegitimate son S2, unmarried daughter
D1 and married daughter D2. Ascertain the shares of aforesaid
heirs in W's property. [D.U.-2009 (Supp.)]
A.5 In view of the scheme of Sec. 15(1), the property of W will
be divided equally among H. SI, S2, Dl and D2. illegitimacy
of children is no disqualification. Also, the marital status of the
daughter is of no consequence.
Q.6 Ramesh and Meena, a couple with a son Mohit, divorced.

Meena then migrated to America along with Mohit. Ramesh
then married Radha, and started living in her house, that she
had bought with her savings and loan from her provident fund.
She was the only daughter of her parents, and at the
time of her marriage was living in her house with them and
maintaining and supporting them also. Three years later
both Radha and Ramesh died in a plane crash. Discuss who
would get the property of Radha? [D.U.-2011]
A.6 Radha died issueless; the property acquired by her was 'self-
acquired', thus, Sec. 15(1) will apply. In view of the
decision in Om Prakash v Radhacharan (2009), the self-
acquired properties of Radha will devolve upon the 'heirs of
the husband' Ramesh. In such a situation, the 'step-son of
Radha' (who is otherwise a disqualified heir) could succeed
as the 'son of the husband' (born to him from a previous
marriage). Thus, Mohit would get the property of Radha.
Q.7(a) A Hindu Karta died intestate in 1950 leaving five sons and a
widow, W. A dispute arose among his sons, and the
appointed arbitrator awarded a residential house (for
residence purpose) to W and interest on a sum of Rs. 8 lacs
for her maintenance. The award specifically provided that W
would only have a Hindu women's estate in both assets. W
executed a Will in 1959 bequeathing both properties to her
brother's daughter D. Examine whether D is entitled to the
bequests.
[C.L.C-91/99]
(b) W, a Hindu widow whose husband died in 1939 gets a house

'H', in lieu of maintenance. She also got another house 'H1'
from her brother-in-law as a gift which however said that
after
her death it would revert back to him. In 1960, W dies
leaving
behind a Will saying: "Ail the properties that I possess on my
death shall go to X." On the basis of the Will X claims both
the houses. Decide. [C.LC-
92]
L.7(a) Hindu Women's Estate/Property
before the passing of the Hindu Succession Act, 1956, a female
Hindu ,ad a 'limited estate' in the JFP. But, Sec. 14(1) of the H.S.A.
gave her absolute ownership' over such property, subject only to the
restrictions mentioned in Sec. 14(2). The term 'property' under
Sec. 14 includes he property obtained in lieu of maintenance.
288 Family Law - II
While the limited owner has the right of possession, right of

management and right of exclusive enjoyment, such owner do not have
the right of disposal by an act inter vivos (e.g. sale, gift, Will) which
only an absolute owner possess. Further, on the death of the limited
owner, the property goes to reversioners (heirs of the last full owner)
while on the death of absolute owner, property devolves to one's own
heirs by succession.
The word 'maintenance' includes food, clothing and shelter
Therefore, the property which W gets can be said to be in lieu of
maintenance. She has a limited estate in such property which gets
transformed into absolute estate under Sec. 14(1). Thus, she can make
a valid Will of such property in 1959.
(b) According to Sec. 14(1), U.S.A., all property in which a woman
has a pre-existing right gets transformed into her absolute estate
However, where a property is acquired under a document which
prescribes a restrictive estate, it does not get converted to
absolute estate [Sec. 14(2)]. It is important to note that if the
source of right is the document. Sec. 14(2) will apply; if the
document merely reaffirms a pre-existing right. Sec. 14(2) w
not apply (V. Tulsamma v V. Shesha Reddy AIR 1977 S
1944).
The house 'H' which W got 'in lieu of maintenance' will get transform
into her absolute estate by virtue of Sec. 14(1) and she can make a valid
Will and pass it on to X. But, in respect of the house 'HI', Sec. 14|
will apply as here the document (gift-deed) is the source of her right
In 1960 when W dies it will revert back to her brother-in-law and X
can't claim it.
Q.8 W inherited certain property from her husband in 1950, which
she gifted to X in 1952. S, the brother of her husband filed a
suit and obtained a decree in 1953 to the effect that the gift
was not binding upon him. In 1957, X made a gift back to w
of the same property which he had received in 1952
Thereafter, W sold the property to Y in 1958 and died in
1959 On W's death, S claimed the property from Y. Will he
succeed ?
What will be your answer:-
(i) if there had not been a gift back to W in 1957 and

subsequent sale to Y in 1958?
(ii) if there had been a gift back to W in 1954?
(iii) if W had mortgaged the property in favour of X instead of

making the gift and had died in 1959 without redeeming the
property?
(iv) if W had died in 1954?

[D.U.-2006/2008/2009][C.LC.-93; LC.II-95/96\
A.8 In cases of mortgage, lease or licence, ownership still vests with
the transferor and therefore the female can still take benefit of Sec. 14.
But where she sells or gifts her limited estate, she loses her
possession as here she parts with her title to property. Here her
limited right will not be transformed into an absolute right and on her
death the property will go to the reversioners. It may be noted that in
respect of pre-Act woman's estate, if she is not in the possession of
property when the Act came into force, the old Hindu law continues
to apply. An important issue with regard to the application of Sec. 14
is the effect of reconveyance i.e. property is returned to the alienor
(transferor) as if the transaction had never been entered into. If
reconveyance had taken place before 1956, the female would be deemed
to be in possession of property, thus Sec. 14 will apply. Even if
reconveyance occurs after
1956, it would become her absolute property as Sec. 14 also uses the
phrase 'property acquired after the commencement of this Act'
Jagannathan v Kunjithapadam AIR 1987 SC 1493).
W had a 'limited estate' in her husband's properties in 1950.
Thus when she gifted it in 1952 she could only convey a limited
title. In
1957, when X made a gift back to W of the same property, it
amounts
to a reconveyance; this property becomes her absolute property in
view
of Sec. 14(1). Thus when W sold it to Y in 1958, she conveyed a
good
title to him and Y becomes the absolute owner of it. The suit by S
in
1953 was only a declaratory decree of his reversionary rights. S
could
290 Family Law - II
have filed a fresh suit after 1956 (it may be noted that the reversioners
are still relevant i.e. after the passing of 1956 Act, in respect of the
woman's estate alienated by her before 1956). But S will not succeed
in it because of reconveyance of the property and consequent absolute
ownership in W and later on in Y.
(i) The property would have remained a limited estate, had
there been no gift back to W in 1957, and in such a case
on W's death, S as a reversioner can claim it.
(ii) It has been noted earlier that if a reconveyance is made
before or after the 1956 Act, the female will become an
absolute owner of it. In this case, S cannot claim the
property after W's death.
(iii) In mortgage, the title to the property still vests in the
mortgagor (transferor). Thus, in case of mortgage, W would
become an absolute owner of this property in 1956, and
her heirs will succeed to the equity of redemption of
mortgage. S cannot claim this property.
(iv) If W had died in 1954, the right of reversion will operate
in favour of S and he can claim back this property.
Q.9 In a family compromise in 1950, a Hindu widow, W, was given

sufficient movable properties in lieu of her husband's interest
in the coparcenary. On humanitarian grounds, she was also
provided with a residence till an alternative arrangement was
made for her accommodation. However, the compromise deed
precluded her from alienating any of the aforesaid properties
in any manner whatsoever. But in 1954, she sold all the
properties to Dinanath so as to meet the marriage expenses of
her daughter, D. This transaction was challenged by W's
deceased husband's brothers. Before the disposal of the suit,
W died in 1960. Advise Dinanath as to his rights.
What will be your answer if W had mortgaged all the

properties in favour of Dinanath instead of making the sale
and had died in 1960 without redeeming the properties? Give
reasons.
[C.LC-94]
A,9 W had a 'limited' estate in the movable properties which she

got in 1950. She could have an 'absolute' estate in this
property if she has been in possession of it at the time of the
passing of the 1956 Act. As she alienated it before 1956, she
cannot take the benefit of Sec. 14(1). Thus, after her death,
the properties should go to the reversioners i.e. her husband's
brothers.
However, it is important to note here that a female can alienate
her limited) woman's estate in exceptional cases e.g. legal
necessity marriage, maintenance of members of family, etc.).
The alienation made by her in such cases will be binding on the
reversioners/ coparceners. As in the present case, W alienated the
property for the marriage expenses of her daughter, which is a
legal necessity, the alienee (Dinanath) would take absolute
interest in the property.
If W had mortgaged the property, the title to it would have
remained with her and she would have become .absolute owner
of it in 1956. Then the equity of redemption (of mortgage) would
pass to her heirs
would not revert back to the reversioners. However, the house will
revert back to the reversioners, as W had no pre-existing rights in
it
(the house was given on humanitarian grounds). If a Hindu female
is in possession of properties other than as a limited owner, her
estate not become full estate after the coming into force of the
Hindu cession Act.
Q.10 K had two wives W1 and W2. In 1941, he executed a Will of his
properties giving one half share to each of his wives, till their
life. Divya, his daughter through W2 was to be the ultimate
beneficiary. K died in 1960. W1 died in 1970, but before few
months before her death she had executed a Will in favour of
her domestic servant Kanta.
While claiming her right under the Will, Kanta contends that
whatever property was given under the Will by K to W1 was in
lieu of maintenance, which had become absolute property of
W1 on coming into force of the H.S.A., 1956. W1 being the
absolute owner was capable of creating the Will in her favour
thus her claims should succeed. Decide.
A.11 Remarriage of Widow and its Effect on Women's Estate

Once a widow succeeds to the property of her husband and
acquires absolute right over the same under Sec. 14, she would
not be divested that absolute right on her remarriage. A limited
entitlement of maintenance would necessarily fructify into a full
estate for a widow provided she had not remarried before the
H.S. Act came into force (Because then the provisions of the
Hindu Widow Remarriage Act, S6, would apply: A remarriage
makes her available an alternative viz. second husband would take
care of her maintenance. Thus, a low remarrying will be
presumed to be dead as far as her rights in the former husband's
property are concerned, and the reversioner's right to suucced
will be immediately activated).
The H.S. Act, 1956 overrides the Widow Remarriage Act, 1856,
Or any other Act. In fact, the latter Act was repealed in 1983. Once
her limited (woman's) estate becomes her full or absolute estate
by virtue Sec. 14(1), a Hindu female can alienate it by gift or
otherwise.
In the present case, as the remarriage was subsequent to the
enactment of the 1956 Act, her limited rights had already matured
into solute ownership and her remarriage would have no adverse
effect on [Babulal Kewani v State of Bihar AIR 2007 Pat 70).
Q.12 (a) A Hindu male died prior to 1937, leaving behind his widow, son
and daughter. The mother as a guardian took the possession
of the property as the children were infant, and, died in 1990.
Thereupon her daughter filed for mutation of names with
respect to half of the property. It was resisted by her brother
contending that as the father's death had taken place before
the coming into force of the Hindu Women's Act, 1937, his
mother had no 'limited estate/ownership' in the property but
only a right of maintenance and the same could not mature
into an absolute estate and therefore he alone inherited the
property of the father? Decide.
(b) The maternal uncle and aunt of a widow gave her the
possession of a property for her life. They had no moral or
legal obligation to maintain her. Discuss whether such an
interest in the property would be covered by Sec. 14(1).
294 Family Law - lII
A.12(a)As the widow had no subsisting right in the property beside

only a right to claim maintenance this right could not mature
into absolute ownership in 1956, the complete right in the
property vested in the son (Jamunabai Bhalchandra Bhoir
Moreshwar Mukund Bhoir AIR 2009 Bom. 35).
(b) According to Sec. 14(1), H.S.A., all property in whicn a worm
has a pre-existing right gets transformed into her absolute estate
However, where a property is acquired under a document which
prescribes a restrictive estate, it does not get converted
absolute estate [Sec. 14(2)].
Thus, where a widow had no pre-existing right of maintenance, but
was given the right of possession of the property for her lifetime, out
of love and affection, such rights will not mature into an absolute
interest. Thus, Sec. 14(1) has no application in the case in question
{Gorachand Mukherjee v Malabika Dutta AIR 2002 Cal 26).
Q.13 A testator (male) states in his Will that he is duty bound to

maintain the widow and that was the reason why he was
giving a life-estate to her. Discuss whether such an interest
will be converted into a full interest after 1956?
A.13 Right of Widow to Maintenance under a Will
If a Will gives a female only a limited estate (or life interest), she
would be entitled only to a limited estate under Sec. 14(2) and not
absolute estate under Sec. 14(1). The right of maintenance under a
Will would be covered by Sec. 14(2) as it is not a pre-existing right
[Gumpha v Jaibai (1994) 2 SCC 511].
However, it needs to be clarified that where under a Will, a
widow gets the life estate in lieu of her maintenance, the limited
rights are converted into absolute rights by virtue of the Act, but
where the testator, as an absolute owner, wants to give a life-estate to
the widow not because she needs to maintain herself out of it, but
because the testator wanted her to be the legatee and the beneficiary
under the will it will remain a life interest and would not become an
absolute interest In other words, where the testator states in his Will
that he is duty bound to maintain the widow and that was the reason
why he
was
giving a life-estate to her, such interest will be converted into a

full interest after 1956.
The mode of acquisition is immaterial if it is received in lieu of
maintenance. It may be received under a 'Will' [Beni Bai v
Raghubir Prasad MR 1999 SC 1147; Henumayamma v
Todikamalla Kotilingam MR 2001 SC 3062].
Q.14 (a) The property was given by the husband to his wife for her
maintenance before his death. She took possession of the
property and the same was also accepted by the other
male relatives (including reversioners) in a consent decree.
According to that decree, no one was to disturb the
peaceful possession of the widow and the land after her
death was to revert back to the reversioners. The widow
died in 1992 and her legal representatives (heirs) filed a
suit claiming the land on the ground that since the
enactment of the H.S. Act, 1956, in view of Sec. 14(1) she
had become the absolute owner of the property and thus
the reversioners will be excluded. The reversioners
contended that in view of the terms of consent decree, the
widow could not be called the absolute owner despite the
provisions of the H.S. Act, as it did not apply to her case.
The land was allotted to her only for her lifetime expressly
for the purpose of maintenance, and thus it also prevented
the property from vesting in her. Decide.
(b) The testator created a life interest in his landed property and
absolute ownership with respect to his complete movable
property in favour of his wife under a Will. After his death
the wife executed a lease of the landed property and died
six years later. Discuss whether the case is covered by
Sec. 14(1) or Sec. 14(2).
A. 14(a) The possession of the widow in the present case even
prior to the institution of the present suit was accepted by the
reversioners in the consent decree and they undertook not
to interfere in her peaceful possession thereof. After the
husband's death, who died after 1956, the widow became
the co-owner of the property of her deceased husband and
had half share in it. The succession
296 Family Law - II
to this property was governed by the H.S. Act, 1956. She was
therefore in possession of the land not merely as a possessor
of the property but as the co-owner of the property, thus, the
question of divesting her of the property invoking Sec. 14(2)
does not arise. Thus the existing right of the widow in light of
the consent decree was crystallized by reason of the consent
decree and she took the property as a full owner thereof after
the passing of the Act {Santosh v Saraswathibai AIR 2008 SC
500).
(b) The widow had acquired a limited ownership expressly and it
was not in lieu of her pre-existing rights of maintenance. Thus,
the case is covered by Sec. 14(2) and not Sec. 14(1). Therefore,
the widow was not competent to execute a lease as an absolute
owner of the property {Sharad Subramanyan v Soumi
Mazumdar AIR 2006 SC 1993).
9 Muslim Law of
Inheritance
The Islamic law of inheritance, like the rest of the Islamic personal law is
a combination of the pre-Islamic custom and the rules introduced by the
Prophet. The greater part of Islamic law of inheritance is founded on the
Quran.
The Muslim law of inheritance is comprehensive, logical and complete
in all respects. It contains rules which are just and equitable, For instance,
Quran has introduced a new class of legal heirs constituting female and
the aged parents (which was not so under the customary law). These
"newly created heirs" are given the shares first of all. Further, the husband
and wife have been made each other's legal heirs.
The Muslim law of inheritance is peculiar in the sense that the scheme
of distribution has been framed in such a manner that besides specifying
the respective shares of the legal heirs, it has also made revision for the
conflicting claims of other relatives of a deceased. A reasonable balance
has been maintained between the nearness of the heirs and the amount of
their shares in the deceased's property.
important Terms Heirs (Sunni law)

Descendants - It mean the offsprings of a person e.g. sons and daughters.
The children of sons and daughters and their children, and o on (up to any
degree of descent), are also descendants.}
12971
298 Family Law - II
, Ascendants - It mean the ancestors of a person e.g. father and

mother The father and mother of his father and mother are also his
ascendants and so are their parents up to any degree
Collaterals - These are descendants in parallel lines, from a common ancestor or
ancestress. For instance, brother is collateral, so is sister Similarly, paternal uncle
and paternal aunt and their children are collaterals and so are maternal ones
Agnates — When a person traces his relationship with another -wholly through males,
"he or she is an agnate. His sex or the sex of the deceased Hindu is
immaterial. For instance, brother, brother's son, son's son, son's son's son,
father, father's father, father's mother, father's father or mother, son's daughter,
etc. are agnates. Thus, agnates can be descendants, ascendants or collaterals^ £
Cognates - Whenever in the relationship of a person with another,
to
female (or females) intervenes anywhere in the line, one is a cognate
another. For instance, sister's son and daughters; daughter's sons
and daughters; mother's mother and father; father's mother's
father and mother; mother's father's son and daughters (i.e.,
maternal uncles and aunts) are all cognates. Thus a cognate may
be a descendant ascendant or collateral!
Full blood - When the father and mother of two persons are the san
e.g. 'real' brothers and sisters
Half blood - When two persons have the same father but different
mothers. Also called 'consanguine'' brothers and sisters; they are
agnate because they inherit through a male (common father)
Uterine blood — When two persons have the same mother but different fathers.
They are cognates because they inherit through a female (common mother).
True/False Grandfather - The paternal (agnatic) grandfather between whom and the
deceased no female link intervenes is 'true grandfather.' The grandfather
between whom and the deceased one or more female links intervene
is 'false grandfather' e.g. father's mother's father, mother's father,
Muslim Law of Inheritance 299
True/False Grandmother - A female ancestor between whom and the

deceased, no false (or maternal) grandfather intervenes is 'true
grandmother.' If a false (or maternal) grandfather intervenes, she is
'false grandmother/)
What is Heritable Property?

What is left, after deducting the following items from the property left
by a Muslim on his death, is his 'heritable property' and it is this
property that devolves on the heirs. The items are as follows: funeral
expenses, expenses of obtaining Probate/Letters of Administration from
the court, wages for personal service to the deceased, within 3 months of
his death, unpaid dower to be paid to his widow, unpaid debts, and
legacies
Under Muslim law, every kind of property, which was in the
ownership of the deceased at the moment of his death, may be a
heritable property.
Comparison with Hindu Law

(1) In Muslim law, all property is one and there is no distinction
between ancestral and self-acquired (separate) property. Exclusive
ownership with full powers of alienation is an essential feature of
property ownership under Muslim law. Whenever a Muslim dies, his
properties devolve on his heirs in definite share of which each heir
becomes an absolute owner. Subsequently, upon the death of such
heir, his properties are again inherited by his legal heirs, and this
process continues. (2) There is no such thing as joint Muslim family
nor does the law recognizes a tenancy-in-common in a Muslim family.
The estate of a deceased Muslim devolves on his heirs separately and
the heirs are entitled to hold the property as tenants-in-common (such
tenancy-in-common implies only a group of individuals living and messing
together), each having a definite share in the property. The shares of
heirs under Muslim law are definite and known before actual partition.
Therefore, on partition of properties belonging to a deceased Muslim,
300 Family Law - It
there is division by metes and bounds in accordance with the specific

share of each heir being already determined by the law.
(3) The right of an heir, for the first time, comes into existence on
the death of the ancestor. A right by birth is unknown in
Muslim law.
(4) Muslim law does not recognize the doctrine of representation.
The estate of a deceased person devolves upon his heir at the
moment of his death. The estate vests immediately in each heir
in proportion to the share ordained by the Muslim law. As the
interest of each heir is separate and distinct, one of a number
of heirs cannot be treated as representing the others. Thus, if
A's son S dies in the lifetime of A, the son of S i.e. grandson
of A cannot claim his father's share as representing him.
(5) Muslim law does not recognize any interest expectant on the
death of another i.e. spes successionis.
(6) Muslim law does not recognize any distinction between
succession to the property of a male and female (as under the
Hindu law).
[Note: Like the Hindu law, the Muslim law of inheritance and succession
does not apply to the property of a Muslim intestate, if he gets married
to a Muslim or even a non-Muslim under the Special Marriage Act,
1954. The general provisions of inheritance available under the Indian
Succession Act, 1925, will then apply.]
(Q, /General Rules of Inheritance (Sunni Law)

I (1) Inheritance opens on the death of the person - Before his death
nobody can claim any right in the property on the basis of his
being heir-apparent or heir-presumptive. In other words, no
person may be an heir of a living person. It is only when an
heir-apparent survives a Muslim, he can be regarded an heir.
Thus, B (A's son) is not entitled to any interest in A's property
during A's lifetime. If A gifts his property to C, B cannot file
a suit to set aside the gift on the ground of undue influence.
This is so because B has not 'right to succeed' during the
lifetime of A.i
Therefore, an heir-apparent has nothing more than a mere chance

of succession i.e. spes successions. His right may be defeated in a
number of ways; the owner may transfer it in his lifetime. The mere
chance/hope of an heir-apparent can neither be transferred nor renounced
in favour of anyone. But if he receives consideration and so conducts
himself as to mislead an owner, the expectant heir could be debarred
from setting up his right when it doe? vest in him. This principle of
equitable estoppel is in consonance with Muslim law [Gulam Abbas v
Haji Ali (1973) 1 SCC 1].
(2) Vested Inheritance - The moment succession opens, the heirs
takes a vested interest in the estate of the deceased. Their ownership
in their respective shares is not dependent upon its actual distribution
by metes and bounds. (Thus, even if such heir dies before the
distribution, his right (of inheritance) remain^ intact and immediately
passes to his own heirs. This is so because what passes on death is
the right of inheritance, the corpus is only the result of such right,
j(3) Rule of representation - The expectant right of an heir-apparent
cannot pass by succession to his heir, nor can it pass by
bequest to a legatee under his Will. Suppose, X has two sons,
the first son dies in the lifetime of his father, but leaving a son.
Afterwards X dies leaving behind his second son and the
grandson by the predeceased son. The surviving (second) son
will get the whole property excluding his nephew i.e. grandson
of X. The grandson cannot claim his father's share because in
the lifetime of X, the first son died. The grandson is not entitled
to claim his father's share as representing him because his
father never inherited from his grandfather. Thus, the 'son of a
predeceased son' is not an heir
Under Muslim law, the 'nearer excludes the remoter,' Thus, the principle
of representation could not be applied for the purposes of deciding who
are entitled to inherit. The reasoning behind is that a person has not
even an inchoate (incomplete) right to the property of his ancestor
during his lifetime. However, in recent years, several countries have
made provisions to mitigate hardships of the son of a predeceased sonj
302 Family Law - II
\(4) disqualifications from inheritance - A person who causes the

death of a person (homicide) is not entitled to inherit the property
of that person, no matter whether the death was caused
intentionally or by accident. An illegitimate child is entitled to
inherit from his mother but not from his lather.
A 'child in womb' is regarded as a living person and, as such, is
competent to inherit provided it is born alive. But, if such child is not
born alive, the share already vested in it is divested and it is presumed
as if there was no such heir in the womb at all
insanity, want of chastity (adultery) or any other physical deformity
is not a disqualification. Conversion to another religion is not a
disqualification due to the Caste Disabilities Removal Act, 1850. But the
religion of the propositus is still an important factor because the properties
devolve under the personal law to which the propositus belonged "just
before his death." Thus, a Hindu (converted to Islam) when dies as a
Muslim, his Hindu relatives cannot claim a share in inheritance by virtue
of the Caste Disabilities Removal Act.)
(. Though a daughter is entitled to succeed to the property of the
parents, at some places daughters are excluded on account of local
customs, etc. in Jammu and Kashmir, a daughter can succeed only in
absence of all male agnates of the deceased. In Bombay, a daughter is
excluded from Inheritance in the presence of paternal uncle. (5)
Doctrine of exclusion
(a) Partial or imperfect exclusion. For instance, exclusion from
one share and admission to another (thus, daughter in the
presence of a son is excluded as a 'sharer' and becomes
'residuary'). Likewise, partial reduction of the specific share
because of the presence of certain heirs (thus, the share of
a wife is either 1/4* or J/8111 according to the absence or
presence of a child or child of a son how low soever).
(b) Total or perfect exclusion. It applies to cases when although a
person related to the propositus and otherwise entitled to
inherit is excluded by some legal cause. This doctrine consists
of a set of three rules which govern inheritance
and exclude certain heirs by recognizing the preferential

claims of certain other heirs,
(i) A person who is related to the propositus (deceased)
through another is excluded by the presence of the latter. For
instance, A has two sons X and Y. Y dies leaving heritable property.
Now X cannot claim inheritance on the basis of his being brother of
the deceased, because his relationship with Y arises through A, their
father and hence the presence of A excludes X.J ere is an
exception viz. Mother does not exclude brother or sister, (ii)
Within the limits of each class of heirs, an heir nearer in blood
excludes the more remote (theory of propinquity). For instance, A has
a son P and a grandson X from P. P being nearer in blood will
exclude X.
A (Propositus)
I P(Son)
I .
X (Grandson)
It may be noted that this principle applies only as between relations

belonging to the 'same class of heirs/ Thus, if the surviving
relations be a daughter and brother's son, the daughter though she is
nearer in degree, does not exclude the brother's son (because the
daughter in this case inherits as a sharer and the brother's son a
residuary).
(iii) Full blood excludes half-blood. However, uterine relations
are not excluded on this ground, (iv) A person excluded,
may exclude others. Thus, the person who himself is
excluded from inheritance may affect the share of others i.e.
he will not be supposed to be non-existing for excluding
others^J
304 Family Law - II
Heirs (Sunni /Hanafi Law)

The heritable property first goes to the relations of the deceased
who on the basis of their preferential claim have been divided into the
following three groups:-
(a) Sharers (Quranic heirs) - They are the relations whose share
have been specifically fixed by Quran. Their shares cannot be
altered by any human effort. They are given precedence
owing to the respect paid to Quran.
(b) Residuaries (Agnatic heirs) - Who succeed to the residue,
any, left after satisfying the sharers.1 They don't get any fixe
share; it varies according to the residue. In certain combination
the sharers themselves are treated as residuaries e.g.
daughter with son, sister with brother.
(c) Distant kindred (Uterine heirs) - They are those relations
who are neither sharers nor residuaries; they are related to
the propositus through blood.]
[The 'Subsidiary' or 'Unrelated heirs', which comes after these three
groups, inherit only in exceptional cases. For example, "Successor by
(special) contract"; "Acknowledged kinsman" (a man may acknowledge
another unknown descent as his brother, uncle, etc. but not as his son
"Universal legatee" (in default or absence of all of the above, a testator
is empowered to bequeath the whole of his estate to any person); "the
State" (by escheat).])
(a) Sharers
They are 12 in number, majority being females. The male sharers are
husband, father, true grandfather (how high soever) and, uterine brother
The female sharers are wife, mother, true grandmother (how high
soever), daughter, son's daughter'(how low soever), uterine sister,(full
sister, and, consanguine sister, Son is not a Quranic heir
If the total property of the sharers is equal to the heritable property, the whole
property is divided among the sharers. But if there still remains some property
(residue), then the second step is to distribute it among the residuaries.
However where a propositus has no sharers at all. the whole property is inherited
directly by the residuaries.
of these the 'primary heirs' (according to Mulla) are 6 in number:

Father, Mother, Son (though a residuary), Daughter, Husband, and
Wife. The above persons are the most favoured heirs; that are always
entitled to some shares of the inheritance and they are in no case
liable to exclusion. Next to these, there are three substitutes of the
corresponding primary heirs (who inherit in their absence). These are
child of a son (for a child), true grandfather (for the father), and, true
grandmother (for the mother). The surviving spouse (husband or
wife) by the very nature of relationship cannot have a substitute.
It is important to note that anyone claiming interest through primary
heir is excluded. Thus, father's father will be excluded by father,
similarly son's *son's son will be excluded by son's son.]
b) Residuaries
They are all male agnates (descendants, ascendants, and collaterals
-inherit through male relations) and only four females who are
'sharers' but are converted into residuaries in some cases (viz. daughter,
son's laughter, full sister, and, consanguine sister.
The descendants are son, son's son (how low soever). The
ascendants are father, true grandfather (how tew soever). The
descendants of father (collaterals) are full brother, full sister, consanguine
brother, consanguine sister, etc. The descendants of true grandfather
(collaterals) include full/consanguine paternal uncle, his son,
. If all the residuaries are males, the property is divided among them
squally. But if the residuaries include also females the property is divided
in such a way that share of a male is double the share of a female. It
may be noted that Quranic heirs consists mainly of females. The reason
is that the bulk of the property in the majority of cases is sought to be
kept intact for the residuary heirs who are mostly males
Âccording to Sirajyyah, there are three classes of residuaries: (i)
residuaries in their own rights - these are males, listed above.
(ii) residuaries in the right of another - these are females e.g.
daughter of deceased is not a residuary but a sharer,
306 Family Law - II
nevertheless when the deceased person leaves a son also,
the same daughter who as a general rule is sharer,
becomes a residuary.
(iii) residuaries with others - e.g. full sister and consanguine
sister, they inherit as residuaries with daughter and son's
daughter (how low soever).
(c) Distant Kindred

This class covers blood relations who are neither sharers nor residuaries
Thus, daughter's children, children of son's daughters, full brother's
daughters, full paternal uncle's daughters, paternal andrnaternal aunts
etc.
If the propositus has neither any sharer nor any residuary then
the property is taken by the distant kindred. However, in cases, when
the only heirs are the husband (or widow) and the distant kindred, the
latter gets the residue after the allotment of share to husband (or widow)
Shares of Primary Heirs (Sunni Law)
i (1) Father ^
(i) He gets 1/6 share when there is a child or son's child low
soever, (ii) He takes as a residuary when there is no child or
son's child A Father inherits in double capacity; he is a sharer but in
certain case he inherits also as a residuary. Thus, when the only
relations entitled to inherit are the father and the daughter, the father
will inherit both as ; sharer and as a residuary. This is the only case of
an heir inheriting ii two different capacities at the same time
The Father can take to the extent of total property in absence o any
other sharer. The presence of father excludes all brothers and
sisters on the basis of' the principal of exclusion that when a person is related
to the intestate through another person, he is excluded in the
presence of that relative, who is the connection.
Mother
(i) She takes 1/6 when -
(a) there is a child or son's child how low soever.
(b) there are two brothers, one brother and one sister, or two
sisters of the deceased (whether full, uterine or
consanguine).
(ii) She takes 1/3 when there is no child or son's child, and, not
more than one brother or sister (if any)j : if there is also spouse
(widow/husband) and the father, then only
of what remains after deducting the widow's or husband's share,
this peculiar combination, the mother (even without children)
does
not get 1/3 of the whole property because in that case father's
share would become half of the mother which is against the
general principle t share of a male should be double the share of a
female.
Husband (Widower) (i) He takes 1/4 when there is a child or son's

child how low soever. She gets her 1/4 share only out of the movable
properties of the deceased husband, (ii) He takes 1 12 when there is
no child or son's child. .
) Wife (Widow)
(i) She takes 1/8 when there is a child or son's child how low
soever. Also, two or more wives take 1/8 collectively.
(ii) She takes 1/4 when there is no child or son's child,
i) Daughter (i) A daughter inherits as a sharer only in absence of a

son. She takes 1/2 when there is no son. If there are two or more
daughters they take 2/3 collectively. (ii) When there is a son
present, the daughter takes as a residuary (similarly, son's daughter
is a residuary in the presence of son's son). She gets half of the
share of the son. i
308 Family Law - II
[As noted above, the share of a female is one half of the corresponding
male relations' share. This is because of her lesser responsibilities
and
obligations in comparison to males.
(6) Son
The son always takes as a residuary. But the rules governing
inheritance are such that although the son always takes as a
residuary, he would always inherit.
When there is no daughter, the son takes the entire residue.
When the son is together with a daughter, the son gets the double
the share of daughter.!
* Important Points
(i) First of all the shares are allotted to the husband or wife
(widow), as the case may be. Husband and wife are always
entitled to succeed with other claimants.
(ii) Presence of a child (son/daughter) or son's child creates a
lot of difference in the application of law of inheritance of
primary heirs.
(iii) 'Full sister' (a sharer) has the same share as that of a
'daughter. Thus, a single sister's share is 1/2; that of two or
more is 2 3. However, she gets the above-mentioned share in
the absence of (a) parents (b) lineal descendants (c) full
brother, and, (d father's father. In the presence of (a) full
brother and (b father's father, she inherits as a residuary,
Some Illustrations
(a) Father - 1/6 (as sharer, because there are daughters)
Father's father - (excluded by father) Two daughters -
2/3 (collectively) Mother - 1/6 because there are
daughters)
Mother’s mother - (eluded by mother)
Son's daughter - (excluded by daughters)
(b) Son - 2/3

Daughter - 1/3 (as residuaries)
it if the heirs be a daughter and a son's son, the daughter as a
sharer I take 1/2, and the son's son as a residuary will take 1/2.]
(c) Two sons - 4/7 (as residuaries, each son taking 2/7) Three
daughters - 3/7 (as residuaries, each daughter taking 1/7)
(d) Widow - 1/8 (as sharer)
Son - 2/3 of 7/8 = 7/12 (as residuaries)
Daughter - 1/3 of 7/8 = 7/24
(e) Mother - 1/3 (as sharer)
Father - 2/3 (as residuary)
(f) Daughter - 1/2 (as sharer)
Father - 1/2 (1/6 as sharer + 1/3 as residuary)
(g) Husband - 1/4 (as sharer)
Mother - 1/6 (as sharer)
Son - 2/3 of 7/12 = 7/18
Daughter - 1/3 of 7/12 = 7/36 (as residuaries) le
residue in the above case is 1 - (1/4 + 1/6) = 7/12.]
GENERAL RULES OF INHERITANCE

(SHIA LAW)
The Shias group the heirs of a Muslim deceased in two categories: (i)
Consanguine heirs viz. related to the deceased by blood; and (ii)
Relation by marriage i.e. husband and wife
consanguine Heirs
These heirs are divided into three groups, the former excluding
the latter and each of these groups is sub-divided into two sub-
groups, within each group, heirs mentioned in the sub-groups
inherit together
310 Family Law - II
*) and do not exclude each other. These groups and sub-groups
are as follows:
I. (i) Parents
(ii) Children and other lineal descendants how low so
ever.
II. (i) All grandparents how high so ever
(ii) Brothers and sisters and their descendants how low
so ever
III. (i) Paternal and
(ii) Maternal uncles and aunts of the deceased, and of
his parents and grandparents how high so ever,
and their descendants how low so ever
In absence of heirs of first class namely parents, children and
other lineal descendants, the heirs of second class take the
property. This class comprises grandparents, brothers and sisters
and their descendant They inherit along with the surviving
spouse of the deceased if any and from the share that is left
after the spouse has been allotted his/her share.
When none of the heirs in the preceding two classes is
present the property passes to the heirs in the third class.)
Classification of Heirs (Shia)

Shias divide the entire group of heirs into sharers and
residuaries. There is no corresponding category to distant
kindred under Shia Law.
Sharers
There are nine sharers three of them are males and six are
females and include the parents, surviving spouse (husband or
wife as the case may be), daughter, full and consanguine sister
and uterine brothers and sisters
The descendants of daughter, full, consanguine and
uterine sister and uterine brother are also sharers,
. Husband
(i) He gets 1/4 when only one heir is present (in
presence a lineal descendant).
(ii) He gets 1/2 in absence of a descendant)

2. Wife
(i) She gets 1/8 when one or more heirs are present (in
presence of lineal descendant), (ii) She gets
1/4 in absence of a descendant.
3. Father
(i) He inherits 1/6 in presence of lineal descendant
(ii) In absence of a descendant he inherits as a residuary.
j/4. Mother
(i) Her share is 1/6 in presence of lineal descendant or in presence of
two or more full/ consanguine brothers, or one such brother and two
such sisters or four such sisters with the father, (ii) Otherwise her
share is 1/3. 5. Daughter '— (i) She gets 1/2 when only one heir is
present and 2/3 when two or more heirs are present (in absence of a
son), (ii) With the son she takes as a residuary^) With respect to
'lineal descendants' the following rules are applicable:
1. Lineal descendants inherit subject to the rule of exclusion
(nearer in degree excluding the remoter). For example, if the
deceased leaves behind a son and son of another
predeceased son, the son who is nearer in degree to the
deceased would exclude the grandson who in his comparison
is a remoter lineal descendant.
2. Where the heirs are the descendants of two or more
children but are in the same degree of relationship to the
deceased, for the purposes of calculating their shares, the rule
of representation is applicable. The lineal descendants of
one child would take the share that would have been
inherited by their respective parent and would divide it
amongst themselves, males taking a double portion than
females.
312 Family Law - II
3. Succession among the lineal descendants is per stripes and not

per capita,
Distinction between Sunni and Shia Law of Inheritance

The Sunni jurists have given strict interpretation to the Quranic provisions.
They kept the old framework intact e.g. preference of agnates over
cognates, and super-imposed the Quranic principles on this old set-up.
The Shia jurists have preferred to give a liberal interpretation to the
provisions of Quran. They have taken the Quranic provisions as
completely altering the old customary law. Because of this difference in
the approach to the interpretation of Quranic provisions, there has been
a marked difference in the Sunni and Shia law of inheritance.
(1) Shares of husband/wife/mother/father: On the death of a Shia
female, her husband (widower) has a fixed 1/4 share in presence
of the lineal descendants and 1/2 in their absence. Under Sunni
law, the variation depends upon the presence or absence of
children (son/daughter) or son's child. Under Shia law, a child
or lineal descendant (including that of the daughter) would
affect the share of the surviving spouse. Similar is the case of
a widow/mother/father. The fixed ratio (of shares) is same in
both Sunni and Shia laws.
(2) Son and daughter: The rules and shares in respect of a daughter
and son are similar under the Sunni and Shia laws.
For example, a Shia Muslim A dies and is survived by his parents M
and F, a son S and two daughters D, and D 2. M and F will take 1/6
each as sharers. Dj and D2 will inherit as residuaries with S and their
shares would be as follows: M (1/6); F (1/6); S (1/3); D, (1/6), and
D2 (1/6).
Under Sunni law also the distribution would be the same.
(3) Principle of Primogeniture: According to it, where a person
has several sons, the eldest son has a preferential claim over
the estate of the deceased father. Generally, this rule is not
recognized by Muslim law. However, under the Shia law, the
eldest son has an exclusive right to inherit his father's garment
sword, ring, and, the copy of Quran. For that the eldest son should
be of sound mind and the father should have left certain properties
besides these articles. 4) Lineal descendants: Under Shia law, all
'lineal descendants' are grouped in one category and are not spread
over all the three categories of Sharers, Residuaries and Distant
Kindred like under the Sunni law. This makes the difference in the
distribution of shares of heirs,
For example, a Shia Muslim A dies and is survived by his parents

and F and two sons of his daughter DS, and DS2. Here in presence
of the lineal descendants, the father would take 1/6 as a sharer; M
will also take 1/6. DS, and DS2 (being lineal descendant) would
represent r mother and take 2/3 together (1/3 each).
Under Sunni law, M would have taken 1/3 and father would have
taken 2/3 as a residuary. Daughter's sons under Sunni law are
'distant kindred' and would not have been entitled to inherit in
presence of the sharers.
(5) Doctrines of representation and exclusion: Muslim law does not
recognize the doctrine of representation. Thus, the nearer excludes
the remoter. Under Sunni law, the principle of representation is
recognized neither in the matter of determining the claim of an heir
i.e. who is an heir, nor in determining the quantum of shares of each
heir. Shia law, however, accepts the principle of representation as a
cardinal principle for the very limited purpose of ascertaining the
quantum of share of any given person, if he is entitled to inherit in
some other capacity, Thus, under Shia law, where the heirs are the
descendants of two or more children but are in the same degree of
relationship to the deceased, r the purposes of calculating their
shares, the rule of representation applicable. The lineal descendants
of one child would take the share it would have been inherited by
their respective parent and would vide it amongst themselves.
For example, a Shia Muslim A dies leaving behind two sons SI
and S2 and two sons of a predeceased son, SS, and SS 2. Due to the
application of the principle of nearer in blood excluding the remoter,
in
314 Family Law - II
presence of these two sons, grandsons would be excluded. S, and S,

will divided the property between them taking one-half of the property.
This is the position under Sunni law also.
Take another example. A Shia Muslim A dies and is survived by two
daughters of a predeceased son SD, and SD2 and three sons of a
predeceased daughter DS,, DS2 and DS3. Here all the descendants are
in the same degree of relationship with the deceased. For the purpose
of calculation of their shares, the doctrine of representation would be
applied. The property would be divided in such a manner that the
branch of deceased son takes two-third (2/3) and the branch of the
daughter takes one-third (1/3). This two-third (2/3) would be divided
equally between SD, and SD2 who would take one-third (1/3) each
One-third (1/3) would be divided equally among DS,, DS 2 and DS3
each taking one-ninth (1/9) of the property. The shares of all the heir
will be as follows: SD, = 1/3 SD2 = 1/3 DS, = 1/9 DS2 = 1/9 DS3
= 1/9 If the deceased was a Sunni male, the three sons of the daughter
would have been excluded as they would be called distant kindred.
The two daughters of the son would have taken two-third (2/3) as
sharers, and the surplus of one-third (1/3) under the doctrine of
return.
(6) Homicide (Disqualification from inheritance): Under Sunni
law
the rule is applied very strictly, irrespective of whether the
death was caused accidentally or even intentionally. Under Shia
law, the disqualification is operative only where death was
caused intentionally.
(7) Illegitimate child: Under Sunni law, an illegitimate child is deemed
to be related to its mother, and inherits from her and her
relations only but does not inherit from the father/any of his
relations. Under Shia law, an illegitimate child does not inherit
from any of the parents nor from any of their relatives.
(8) Child in womb: Under Shia law, the share of two sons
should be reserved as a measure of precaution.
(9) Succession per stripes or per capita: Under Shia law,
succession among the lineal descendants is per stripes and
not per capita. Under Sunni law, it is per capita.
Shia male A dies and is survived by two sons of one predeceased
son 5Sj and SS2 and three sons of another predeceased son S,S 1,
S1S2 and SjS3. The property here would be divided into two equal
parts, one each going to the branch of S and S 1. Out of this half
given to the branch of S, his two sons will share equally taking
one-fourth (1/4) each. The half going to the branch of SI will be
taken by his three sons who would take one-sixth (1/6) each.
The shares of each heir would be as follows:
SS, = 1/4
CO — 1 IA
SjS, - 1/6
S,S2 = 1/6
SjS3 = 1/6 If the deceased was a Sunni Muslim all grandsons
would have taken one-fifth (1/5) each following the per capita
succession.)
, Doctrine of Return (Radd)

If after distributing the property among the sharers there is a
residue but there are no residuaries, the 'doctrine of return' is
applied and accordingly the residue reverts to the sharers in
proportion to their shares. The residue in presence of the sharers
does not pass to the distant kindred.
Under Sunni law, the return is subject to the following rules: (i)
The surviving spouse, (husband or wife) is not entitled to any
return if any other heir is present (sharer or even distant kindred).
316 Family Law - II
(ii) If only the husband and a distant kindred are present e.g. son
of a predeceased daughter, then the husband will take half (as
a sharer) as there is no child or child of a son, and the remaining
half will go the distant kindred.
(iii) If no heir is present and deceased dies leaving behind only a
widow, she would take 1/4 of the property as a sharer and 3/
4 as return.
Under Shia law, the doctrine of return is subject to the following rules:
(i) The surviving spouse (husband or wife) is not entitled to any
return if any other heir is present. Presently, the husband and
also his wife can claim the return when no other sharer is
present. Thus, where a Shia female dies and the only heir
present is her husband, he takes 1/2 as a sharer and the remaining
half goes via return. Similarly, where the surviving spouse is a
widow, she is entitled to 1/4 share as also to the rest of the
property via return.
(ii) Mother of the deceased cannot claim the retun in presence of
the father, daughter and: (a) two or more full/consanguine
brothers; or (b) one such brother and two such sisters; or (c)
four such sisters. In such cases, the surplus is taken by the
father and the daughter in proportion to their shares.
(iii) In presence of the full sister the uterine brother/sister cannot
take the surplus by return.
. Doctrine of Increase (Aul)

This doctrine is applied if the sum total of the shares exceeds unity.
Then there is consequent proportional deduction of shares by increasing
the denominator of the sum total of the shares of all the heirs. This is
the position under the Sunni law.
Shias do not recognize the doctrine of increase. Here, if the sum
total exceeds the unity the excess share is deducted from the share of
the daughters or full/consanguine sisters.
For example, the survivors of a Shia female are her parents F and
, two daughters D, and D 2, and her husband H. Here the shares of
and M would be 1/6 each, that of H will be 1/4, and, two daughters I
and D2 together are entitled to 2/3. The sum total of these shares
Duld be 1/4 + 1/6 + 1/6 + 2/3 = 15/12. The excess share is 3/12 or 4.
This 1/4 would be deducted from the share of the daughter viz. 3 -
1/4 = 5/12. Each daughter will take 5/24.2
FURTHER QUESTIONS
Q.(a) Aziz had two sons Ashraf and Rashid and a daughter Mumtaz. Rashid
died during the life time of his father leaving behind his son Ghulam.
What will be the shares of the descendants of Aziz under the Sunni
law?
(b) X, a Sunni Muslim, dies intestate in 1990 leaving behind his father F,
mother M, widow W, two sons S! and S2, one married daughter D,
one unmarried daughter D1 and a son of predeceased daughter DS
as his heirs. S., became Christian during the life time of X and is
married to W1 and has a son S3. Ascertain the shares of the
aforesaid heirs in X's property.
What will be your answer if D1 is a widow and has a minor son D.,S,
and she is living with X? Will your answer be different if she has an
illegitimate child? What will be your answer if X had two widows?
What will be your answer if D is an illegitimate daughter of

X? [C.L C.~91/92/93/94/95/96/2002/2006\
2. See P. Pradhan Saxena, Family Law II, 3™ Ed., pp. 554-555 (2011).
318 Family Law - II
A.l(a) Shares of Primary Heirs under Sunni Law

In the present case, the heirs of Aziz are as follows -
- Ashraf (son)
- Mumtaz (daughter)
[Rashid's son Ghulam is not an heir, as doctrine of representation is
inapplicable in Sunni law. Ghulam is not entitled to claim his father's
(Rashid's) share as representing him because father never inherited
from his grandfather (Aziz).]
The shares of Ashraf and Mumtaz will be as follows:-
Ashraf - 2/3
Mumtaz-1/3 (as residuaries)
[When there is a son present, the daughter takes as a residuary. The
daughter gets half of the share of the son, under Muslim law.]
(b) According to the Sunni law of inheritance, the following are
entitled to a share in the properties of X:-
- Father, F
- Mother, M
- Widow, W
- Son, S1 (convert)
- Son, S2
- Daughter, D (unmarried)
- Daughter, D, (married)
The following heirs will be excluded from inheriting X's property:-
(i) DS, son of predeceased daughter (there is no doctrine of
representation in Sunni law).
(ii) W,, wife of son S1 (anyone claiming interest through primary
heir is excluded).
(iii) S3, son of S1 (the son's son will be excluded in the presence
of son).
(iv) D(S. son of D, (anyone claiming interest through primary heir
is excluded).
-
shares of heirs (which are not excluded) arc-Father -

1/6 (child present) Mother - 1/6 (child present)
Widow - 1/8 (child present)
Now, the residue is = 1 - (1/6 + 1/6 + 1/8)
= 1 - 11/24 = 13/24
As two daughters collectively take 2/3, one daughter will take 1/3.
Further, daughter takes half of the share of the son in the residue; here
Lighter takes as a residuary due to the presence of the son. Thus, :h
daughter will take 1/6.
Daughter (married) = 13/144 (1/6 * 13/24)
Daughter (unmarried) = 13/144 (1/6 x 13/24) le
son takes double to the daughter in the residue.
Son, S, = 13/72 (1/3 * 13/24)
Son, S2 - 13/72 (1/3 * 13/24)
Decision of the second part of the question

It does not matter that the daughter is married, unmarried or widow,
An illegitimate child is related with her mother, but such child (even if
legitimate) cannot claim interest through her mother i.e. primary heir. If
H is an illegitimate daughter of X (father), she is not entitled to inherit.
If X had two widows, then the widows will collectively take 1/ , thus
each widow will take 1/16.
Q.2 Y, a male, died leaving behind father, widow, illegitimate son,
unchaste daughter, and, a son of a predeceased son of a
predeceased son. Ascertain the shares of the heirs if Y died
as a Sunni Muslim. [C.LC-7998]
A.2 An 'illegitimate child' is related to mother; thus, he is excluded.
Want of chastity is not a disqualification; thus, unchaste daughter
is entitled to inherit.
320 Family Law -
lI
In the absence of son, daughter inherits as a sharer. In the

absence of a son, and, son's son, "son's son's son" also inherits
as a residuary. It may be noted that the principle of exclusion
(nearer in degree excluding the remoter) applies only as between
relations belonging to the 'same class of heirs." Thus, if the
surviving relations be a daughter and brother's son, the
daughter though she is nearer in degree, does not exclude the
brother's son (because the daughter in this case inherits as a
sharer and the brother's son a residuary). However, if there had
been another son (legitimate) to Y, the son of a predeceased
son of predeceased son would get excluded.
Thus, the legal heirs of Y are: Father, Widow, Unchaste daughter
and, Son's son's son. Their shares are:
-
Father - 1/6 (child present) Widow - 1/8 (child present)
Daughter - 1/2 (no son present) Now, the residue is = 1
- (1/6 + 1/8 4 1/2) = 5/24 The son's son's son will take
as a residuary ■ 5/24.
Q.3(a) Mazhar died survived by widow Mumtaz, son Sohail and

so of a predeceased son Abdul? Ascertain the shares of
the
heirs under Sunni law.
■
(b) Tabassum died survived by a son Hamid and daughter
Noori Ascertain the shares of the heirs under Sunni law.
[C.L.C.- 2001
A.3 (a) The widow Mumtaz will get 1/8 (in the presence of son).
The son Sohail will take as a residuary; thus he will get
1-1/8 7/8.
The son Abdul (son of a predeceased son) got excluded due to
'doctrine of representation' and 'doctrine of exclusion.' He
could have got share had there been no son Sohail.
(b) Due to the presence of son, daughter inherits as a
residua and son takes double to the daughter in the
residue. Thu Hamid will get 2/3 and Noori will get
1/3.
Q.4 A, a Sunni Muslim, died in 2001, leaving behind properties worth

Rs. 50 lakhs and is survived by the spouse W, two sons S1 and
S2, and a daughter D. Discuss who will get the property and
what would be the quantum of their shares if-
(a) A was a male.
(a) A was a female. [D.U.-2008\ .4

(a) The share of widow W in the presence of child as a sharer is
1/8. The sons always take as residuaries, and a daughter take
as residuary in the presence of son. The son takes double to
the daughter in the residue.
XI .U A ■ - 1 I/O - 119
Now, the residue is = 1 - 1/8 = 7/8. he shares of two

sons and a daughter as a residuary are:
Son S, = 7/20 (2/5 x 7/8)
Son S2 = 7/20 (2/5 x 7/8)
Daughter D - 7/40 (1/5 x 7/8) (b) The share of widower
(husband) in the presence of child as a
sharer is 1/4.
Now, the residue is = 1 - 1/4 = 3/4. the shares of two
sons and a daughter as a residuary are:
Son S, = 3/10 (2/5 x 3/4)
Son S2= 3/10 (2/5 H 3/4)
Daughter D = 3/20 (1/5 x 3/4)
Q.5(a) X, a Sunni male, died in 2002, survived by widow \N, son S and
son of a predeceased son SS. X left behind properties worth 20
lakhs. Ascertain the shares of the heirs under Sunni law.
(b) Y, a Sunni female died in 2002, survived by a son S, daughter D

and husband H. Y left behind properties inherited from her
father. Ascertain the shares of the heirs under Sunni law.
[D.U.-2009]
322 Family Law - II
A.5(a) The share of widow W in the presence of child as a sharer is
1/8. The son S takes as a residuary. The son of predeceased son SS is
excluded on account of doctrine of representation. Now, the residue
is = 1 - 1/8 = 7/8, which will be the share of son S. (b) Under
Muslim law, the source of acquisition of property is immaterial -
whether it is ancestral or self-acquired, the rules of succession
remain the same. The share of widower (husband H) in the presence
of child as a share is 1/4. The son always take as residuary, and a
daughter take as residuary in the presence of son. The son takes
double to the daughter in the residue.
Now, the residue is = 1 - 1/4 = 3/4. The shares of son S and a
daughter D as a residuary are: Son S = 1/2 (2/3 * 3/4) Daughter
D = 1/4 (1/3 * 3/4)
Q.6 A, a Sunni male, died leaving behind his parents F and M, his
widow W, one son S and three daughters Dv D2 and D3.He
leaves behind property worth Rs. 80 lakhs. Ascertain the
shares of the heirs. What would be your answer if A was
female? [D.U.-201
A.6 The shares of F, M and W (widow) as a sharer in the presence
of the child are: F - 1/6; M = 1/6; W = 1/8.
The son always take as residuary, and a daughter take as residuary in
the presence of son. The son takes double to the daughter in the residuary
If there are two or more daughters, they together will take 2/3.
Now, the residue is = 1- (1/6 + 1/6 + 1/8)= 1 - 11/24=13;
The shares of son S and three daughters Dv D2 and D3 as a
residuary
are:
Son S = 13/60 (2/5 * 13/24) Daughter
D, = 13/120 (1/5 * 13/24)
Daughter D2 = 13/120 (1/5 n 13/24)

Daughter D3 = 13/120 (1/5 * 13/24).
When A was a Muslim Female

The shares of F, M and W (widower-husband) as a sharer in the
presence of the child are: F = 1/6; M = 1/6; W = 1/4.
Now, the residue is = 1 - (1/6 + 1/6 + 1/4) = 5/12.
The shares of son S and three daughters D,, D2 and D3 as a
residuary
Son S = 5/30 (2/5 * 5/12) = 1/6 Daughter D,

= 5/60 (1/5 * 5/12) - 1/12 Daughter D2 =
5/60 (1/5 ? 5/12) = 1/12 Daughter D3 = 5/60
(1/5 * 5/12) * 1/12.
Q.7 A, a Muslim male, dies leaving behind his father F, his widow
W, and two daughters D1 and D2. He leaves behind property
worth Rs. five crores. Ascertain the shares of the heirs. What
would be your answer if A was a female and W was the
widower? [D.U.-
2011]
A.7 Doctrines of Radd and Aul
le shares of father F and W (widow) as a sharer in the presence of
the child are: F = 1/6; W = 1/8. In the absence of son, daughters
will also inherit as sharer. If there are two or more daughters as a
sharer, they will collectively get 2/3. Thus, D1 will get 1/3 and D 2
also 1/3.
The sum total of shares of F, W, D, and D2 is: 1/6 + 1/8 + 1/ +
1/3 = 23/24, which is less than 1. Thus, the residue is 1 - 23/24
Here, the 'Doctrine of Return' or 'Radd' will apply, and the

remaining share (residue) is to revert to the sharers. Under the
Sunni
s well as Shia) law, the surviving spouse is excluded to get a return
the presence of sharers (father and daughters in the present case).
Family Law - H
When the only relations entitled to inherit are the father and t
daughter(s), the father will inherit both as a sharer and as a residua
This is a special case of 'father having no male descendants.' T
father inherits more by agnation. Thus, F will get 1/6 + 1/24 = 5/]
The shares of other heirs W, D, and D2 = 1/8 + 1/3 + 1/3 - 19/
The sum total {Final) is as follows: 5/24 + 19/24 = 24/24 =
When A was a Muslim Female

The shares of father F and W (widower) as a sharer in the
presence of the child are: F = 1/6; W = 1/4. In the absence of
son, daughter will also inherit as sharer. If there are two or more
daughters sharer, they will collectively get 2/3.
The sum total of shares of F, W, D, and D2 is: 1/6 + 1/4 3
= 26/24 = 13/12, which is more than 1. Thus, the excess is 1 -12
= - 1/12 (i.e. minus 1/12).
Here, the 'Doctrine of Aul' will apply, and the excess share be
deducted from the share of the sharers. In other words, sine
shares exceed unity, they have to be proportionately reduced.
We take a common denominator, and then the shares wou [1/4
+ 1/6 + 2/3 = (6 + 4 + 16)/24 = 26/24 = 13/12 F = 1/6 = 4/24 =
2/12 W = 1/4 = 6/24 = 3/12 Dj + D2 = 2/3 - 16/24 = 8/12 The
sum total would be 13/12. To apply the doctrine of 'Aul', the
denominator is increased numerator so that the shares of all
together equal unity or the r
property.
F = 2/12 reduced to 2/13
W = 3/12 reduced to 3/13
D, + D2 = 8/12 reduced to 8/13 (4/13 to each)
The sum total (Final) is as follows:

2/13 + 3/13 + 4/13 + 4/13 = 13/13 - 1.
Q.8 A died leaving behind his father F, mother M and widows W.,
and W2. Ascertain the shares of the heirs under Sunni law.
[C.L.C-1999]
A.8 Shares of Primary Heirs in Absence of Child/Son's Child
he 'father' inherits as a residuary in the absence of a child (son/
daughter) or son's child.
The mother takes 1/3 when there is no child or son's child. But
'there is also spouse (widow/husband) and the father, then only 1/3 f
what remains after deducting the widow's or husband's share. In his
peculiar combination, the mother (even without children) does not et
1/3 of the whole property because in that case father's share would
become half of the mother which is against the general principle that
share of a male should be double the share of a female.
The shares of the heirs (sharers) in the present case will be as
follows:
Widows (W, and W2) = 1/4 (Absence of child); 1/8 each
Mother (M) = 1 - 1/4 (i.e. 3/4) x 1/3 = 3/12 = 1/4 Father (F)
(Residuary) = 1 - (1/4 + 1/4) = 1/2.
Q.9 A Muslim, A, dies and leaves behind his parents F and M and
a widow W and property worth Rs, 10 crores. Discuss who
would get the property and also specify their shares. What
would be your answer, if A was a female and W was the
widower? [D.U.-
2011]
A.9 When A is a Male
Widow (W) = 1/4 (Absence of child)
Mother (M) = 1 - 1/4 (i.e. 3/4) x 1/3 = 3/12 = 1/4
Father (F) (Residuary) = 1 - (1/4 + 1/4) = 1/2.
326 Family Law - II
When A is a Female
Widower (W) = 1/2 (Absence of child)
Mother (M) = 1 - 1/2 (i.e. 1/2) * 1/3 = 1/6
Father (F) (Residuary) = 1 - (1/2 + 1/6) = 1 - 4/6 = 1/3,
/
10 Muslim Law of Wills
■■ ■
A Will or Testament or Wasiyat has been defined an "an instrument by

which a person makes disposition of his property to take effect after
his death/Tyabji defines Will as "conferment of right of property in a
specific thing or in a profit or advantage or in a gratuity to take effect
on the death of the testator/]
The distinguishing feature of a Will is that it becomes effective
after the death of the testator and it is revocable. Unlike any other
disposition (e.g. sale or gift), the testator exercises full control over the
property bequeathed till he is alive; the legatee or beneficiary under the
Will cannot interfere in any manner whatsoever in the legator's power
of enjoyment of the property including its disposal or transfer (in that
case the Will becomes revoked).|
Object and Significance of Wills

The object of Wills according to the tradition of the Prophet is to
provide for the maintenance of members of family and other relatives
where they cannot be properly provided for by the law of inheritance.
At the same time the Prophet has declared that the power should not
be exercised to the injury of the lawful heirs.(A bequest in favour of an
heir would be an injury to the other heirs as it would reduce their shares
and would consequently induce a breach of the ties of kindred. Thus
the policy of the Muslim law is to permit a man to give away the whole
[327]
328 Family Law - II
of his property by gift inter vivos, but to prevent him, except for one-
third of his estate, from interfering by Will with the course of the
devolution of property according to the laws of inheritance,
Muslim law of Wills presents a compromise between two opposite
tendencies - namely, one, not to disturb or interfere with the divine law
of distribution of property after death, and two, the supposed moral
duty of every Muslim to make arrangements for the distribution of his
property within the prescribed limits. A Will offers to the testator the
means of correcting to a certain extent the law of succession, and
enabling some of those relatives who are excluded from inheritance to
obtain a share in his property, and recognizing the services rendered to
him by a stranger. But the Muslim law, unlike other personal laws
maintains a very reasonable balance between the law of inheritance and
the devolution of the properties under a Will.
Formality of a Will
(As a general rule, no formality is required for making a Will (Abdul,
Manan Khan v Mirtuza Khan AIR 1991 Pat 155). No writing is necessary
to make a Will valid, and no particular form, even verbal declaration v.
necessary so long as the intention of the testator is sufficiently
ascertained. \
Where the Will is reduced to writing it is called a 'Wasiyatnama.
If it is in writing it need not be signed. It does not require attestation
and if it is attested there is no need to get it registered. Instructions of
the testator written on a plain paper, or in the form of a letter, that in
clear cut terms provide for distribution of his property after his death
would constitute a valid Will {Abdul Hameed v Mahomed Yoonus AlR
1940 Mad 153).
In case, a Will is oral, the intention of the testator should b
sufficiently ascertained. In comparison to a Will in writing which
easier to prove, the burden to prove an oral Will is heavy.
M u s l i m Law of Will 329
REQUISITES OF A VALID WILL1
le essential requisites of a valid Will, under Muslim law are as follows:

(1) The testator (legator) must be competent to make the Will.
(2) The legatee (testatrix) must be competent to take the legacy or
bequest.
(3) The subject (property) of bequest must be a valid one (Qualitative
requisite).
(4) The bequest must be within the limits imposed on the
testamentary power of a Muslim (Quantitative requisite).
1) Testator and his Competence (Who can make Will?)

Every major Muslim (above 18 years) of sound mind can make a Will,
The age of majority is governed by the Indian Majority Act, 1875,
under Which, a person attains majority on completion of 18 years
(or on completion of 21 years, if he is under supervision of Courts of
Wards), Thus, the testator must be of 18 or 21 years, as the case
may be, at the time of execution of the Will,
At the time of execution of a Will (i.e. when it is being made), the
testator must be of sound1 mind. A Will executed by an insane person
would remain void even if he subsequently recovers and remains
sane till death. Conversely, a Will made by a person of sound mind
becomes void if subsequently he becomes insane and remains so till
death. Under Muslim law, the legator must have a perfectly 'disposing
mind' i.e. the legator must be capable of knowing fully the legal
consequences of his activities not only for a brief period when the
declaration was made, but much after that A Will that is executed in
apprehension of death is valid, but under the Shia law, if a person
executes any Will after
Discuss Mohammedan law relating to Wasiyats with illustrations. [LC./-95]
According to Ameer Ali, a Will executed by a person during soundness of
mind is void if the testator does not remain of sound mind at least for six
months from the date of execution of the Will. A Will by an insane made
during lucid interval shall remain valid only if the insanity does not last longer
than 6 months.
330 Family Law - II
attempting to commit suicide, the Will is void. The reason behind this
rule is that where a person has attempted suicide, he cannot be said to
be in his normal disposing state of mind, rather, his mental capacity is
completely disturbed.
A minor is incompetent to make a Will (such a Will is void) but
a Will made by minor may subsequently be validated by his ratification
on attaining majority^ Will procured by undue Influence, coercion or
fraud is not valid, and the court takes great care in admitting the
Will
of a pardanashin lady. Thus, a Will must be executed by a legator with
his free consent.. .
The legator must be a Muslim "at the time of making or execution

of the Will." A Will operates only after the death of the legator; before
his death, it is simply a mere declaration on the basis of which the
legatee may get the property in future. There may be cases where a
person was Muslim at the time when he made the Will but, has
subsequently renounced Islam and at the time of his death he was a
non-Muslim. If a Will has been executed by a Muslim who ceases to
be a Muslim at the time of his death, the Will is valid under Muslim law.
Also, the Will is governed by the rules of that school of Muslim law
to
which the legator belonged at the time of execution of the Will. For
example, if the legator was a Shia Muslim at the time when he wrote
the Will, only Shia law of Will is made applicable.
(2) Legatee and his Competence (To whom Will can be made?)
Any person capable of holding property (Muslim, non-Muslim, insane,
minor, a child in its mother's womb, etc.) may be the legatee under a
Will. Thus, sex, age, creed or religion3 is no bar to the taking of a
bequest. Legatee (including a child in its mother's womb) must be in
existence at the time of making of the Will. Thus, a bequest to a person
not in existence ('unborn person') is void.
3. Even a 'non-Muslim' can be a beneficiary under the Will, but he should not be
against Islam. Therefore, a person who renounces Islam and embraces
another religion is not a competent legatee, but a person who was born into
another religion can be a competent legatee provided he is not hostile
towards Islam. See P. Pradhan Saxena, Family Law II, z" Ed., p. 484 (2011).
Muslim Law of Will 331
A bequest may be validly made for the benefit of 'juristic person' or an

institution (but it should not be an institution that promotes a religion other
than the Muslim religion viz. Hindu temple, Christian church, etc.). A
bequest for the benefit of a religious or charitable object is valid. The only
requisite is a general intention to "charity or public benefit" e.g. where a
bequest is made in the way of God, it is valid and the legacy must be spent
on good and pious objects A class of persons ("all the poor of this town")
may be made a legatee. It is important to note that it is unlawful to make a
bequest to benefit an object opposed to Islam e.g. to an idol in Hindu temple,
because idol worship is opposed to Islam. I
No one can be made the beneficial owner of shares against his
will. Therefore, the title to the subject of bequest can only be completed
with the express or implied consent of the legatee after the death of the
testator. The legatee has the right to disclaim. .
A person who has caused the death of the legator (i.e. murderer), cannot
be a competent legatee. A Will operates only after the death of a
legator, therefore, a greedy and impatient legatee may cause the
legator's death to get properties immediately. However, it is also immaterial
whether the legatee knew about him being a beneficiary under the Will
or not.
Joint Legatees: A bequest may be made to two or more legatees jointly,
and, when no specific share of any of them has been mentioned, the
property is divided equally amongst all the legatees. Where a Will is
made in favour of a specified class of persons, the class as such is
treated as a single legatee and each person gets the property equally. For
example, if a testator makes a Will under which his properties are to be
given to the Fakirs and the 'poor people of his locality' then, half of the
bequeathable property is to be given (equally) to the Fakirs and the
remaining half is to be distributed equally amongst the poor persons of
that locality. But, where the legator himself has specified the respective
shares of the legatees then, each legatee would get the shares allotted
to him.
332 Family Law - II
(3) Subject Matter of Will (Bequeathable Property) and its Validity

The testator must be the owner of the property to be disposed by Will;
the property must be capable of being transferred; and, the property
must be in existence at the time of testator's death, it is not necessary
that it should be in existence at the time of making of Will. 4 Any kind
of property, movable or immovable, corporeal or incorporeal, may be
the subject-matter of a Will.
, In order to be a valid bequest the grant in the bequeathed property
must be complete or absolute. A bequest has to be unconditional. If any
condition is attached, say the legatee shall not alienate the subject of
legacy, the condition is void and the bequest is effective without condition
(Likewise, a bequest in futuro (intended to take effect not immediately on
the death of the testator but at a later date) is void, and so does a
'contingent bequest' (bequest to take effect on the happening or non-
Happening of an uncertain event). C bequeaths one-third of his property
to the would-be-son of his brother B, who is a bachelor. The bequest
is contingent on the happening of uncertain events (C's brother may not
marry; he may not have any child even if he marries, or he may not
have a son child)., , ,,
However, an alternative bequest of property (i.e. to one or failing
him to the other person) is valid. Thus, when the testator willed that
his son if existing at the time of his death will take the bequest, if not
in existence his son's son will, and failing both it will go to a charity,
was held valid [Advocate-General v Jimbabai (1917) 41 Bom 141].
.Creating of 'life estate' is not permissible under Sunni law; the
bequest of a life estate in favour of a person would operate as if it is
an absolute grant. For example, A makes a bequest in favour of X of
his house for life and after him to B absolutely. The bequest in favour
of X would operate absolutely and "Bwill not get anything under Shia
For example, A makes a Will of his all properties in favour of B. At the time of
making of the Will A has only a house. After sometimes A purchases a garden
and when he dies, he owns the house as well as the garden. B is entitled to
get the house as well as the garden under the Will although the garden was
not owned by A when the Will was executed. The property must exist and
must be in the ownership of the testator at the time of his death.
v, however, the bequest of a life estate in favour of one and a vested

remainder to another after his death is valid.
Testamentary Power and its Limits5 (Bequeathable One-Third)

Muslim does not possess an unlimited power of making disposition
Will. There are two-fold restrictions on the power of a Muslim to
dispose of his property by Will, which are in respect of the person in
whose favour the bequest is made, and as to the extent to which he can
dispose of his property. This is obvious, because the object behind this
restriction is to protect the interests of the testator's heirs.
(i) No Muslim can make a bequest of more than one-third of his
net assets after payment of funeral charges and debts. If the
bequeathed property exceeds one-third, the consent of other
heirs is essential (Sunni and Shia laws). A bequest of entire
property to one heir to the exclusion of other heirs is void
[Husaim Begum v Mohd Mehdi (1927) 49 All 547. Where the
heirs refuse to give their consent, the bequest would be valid
only to the extent of one-third of the property and the rest of
the two-thirds would go by intestate succession.
(ii) In respect of bequest of one-third to an heir, the consent of
other heirs is required in Sunni law,6 but not in Shia law. In
case of a non-heir (stranger) the consent of heirs is not required
in both Discuss: Testamentary
powers of a Muslim. [D.U.-2009 (Sopp.)] State
the testamentary capacity of a Muslim and the restrictions on the same.
5. The reason behind this rule is that when a Muslim testator makes any Will in
favour of one of his heirs, such heir (legatee) gets double advantage out of the
testator's properties and this may cause jealousy and enmity among the
heirs.
7. The bar against bequest to stranger (i.e. a non-heir) in excess of one-third is
subject to the following exceptions i.e. may be relaxed in the following cases -
where such excess is permitted by a valid custom; where there are no heirs
of the testator; and, where the heirs existing at the time of the testator's death,
consent to such bequest after his death. Thus, a bequest of entire property
can be made to a stranger.
334 Family Law - II
Under the Shia law, there is no difference between a bequest to an heir or

non-heir so long as it does not exceed one-third of the net estate of the
legator. Such a legacy is valid without the consent of the other heirs. Shia
law gives more extensive power to make a Will in comparison to Sunni law.
The above rule of bequeathable one-third will not apply to a case
where the testator has no heir. The right of Government to take
the estate of an heirless person will not, in any way, restrict the
right of a person to make a disposition of his property, as he likes.
Thus, Government is no heir to an heirless person..
,(iv) A bequest made for pious purposes is valid to the extent of one-one-
third of the property, both under Sunni as well as Shia law.
(v) The 'l/3rd limit' rule will not apply if a Muslim marries under the
Special Marriage Act, 1954, because then he has all the powers of
a testator under the Indian Succession Act, 1925
Bequeathed H Heir Non-heir Sunni
Sunni Shia
Property Shia
Upto one- Valid only Valid without Valid without Valid without
third if consent consent of consent of consent of
In excess of of heirs heirs heirs heirs
1/3 -do- Valid only Valid only Valid only
if consent if consent if consent
of heirs of heirs of heirs
Illustration: A, a Muslim dies leaving behind him property of Rs. 4,000. His
funeral charges are Rs. 100 and his debts Rs. 900. The remaining money is
Rs. 3,000 and 1/3 of it is Rs. 1,000 which may be the subject of Will. The
remaining two-third must pass to the heirs of the testator according to law.
Consent of Heirs
• Consent must be of heirs and not of presumptive heirs. Whether a person
is an heir or not, will be determined at the time of the testator's
death because a person who is an heir at the time of making the

Will may not remain an heir at the time of testator's death and vice
versa. For instance, a testator has a son and a grandson. Grandson
is not an heir in the presence of a son. But if the testator and the
son die in an accident, the grandson becomes an heir on death of his
father. Consent by heirs under Sunni law, shall be given only after
death of the testator, while in Shia it may be before or after the
death of the testator,
Consent must be definitive, whether express or implied by positive
conduct, and mere silence on the part of an heir will not amount to
implied consent. The attestation of the Will by the heirs and
acquiescence in the legatee taking possession of the property has
been held to be sufficient consent. In cases where only some of the
heirs give their consent the shares of those consenting will be bound,
and the legacy in excess is payable out of the consenting heir's
share. The consent of heirs who are insolvent has been held effective
in validating a bequest. Consent once given cannot be later rescinded.
Similarly, consent cannot be given after an heir has previously
repudiated it.
Bequest to Heirs and Non-heirs

bequest of life-interest to an heir and on his death to a non-heir will
not take effect even in case of a non-heir if bequest to an heir fails
for ant of consent.
However, where the testator makes a bequest to heir as well as non
-heir by the same legacy, in absence of the consent of heirs, the
legacy will not be invalid in its entirety but will take effect with
respect to non-heirs. The rule is that as far as possible, the Will, will
be given the maximum effect that it is capable of. For example, if the
testator bequeaths his total property to an heir and a non-heir, without
the heirs giving the consent, the non-heir will take one-third of the
property and the rest of the two-thirds will go to the heirs of the testator
by inheritance Muhammad v Aulia Bibi (1920) 42 All 497].8)
8. See P. Pradhan Saxena, Family Law II, 2,'" Ed., p. 488 (2011).
336 Family Law - II
Revocation of Will
Muslim law confers on a testator unfettered right to revoke his Will. A
Muslim testator may revoke, during his life-time, any Will made by him-
expressly or impliedly. Thus,, if he sells, makes gift of the subject of
bequest or deals with the same in any other manner like constructing
a house on the piece of land bequeathed earlier, would amount to
implied revocation. For example, where,, the testator gives land to his
friend under a Will but a year later gift the same to his daughter, the
bequest in favour of the friend is automatically revoked.
Where a testator makes a Will, and by a subsequent Will gives the
same property to someone else, the prior bequest is revoked. But a
subsequent bequest (though of the same property) to another person in
the same Will does not operate as a revocation of prior bequest, and the
property will be divided between the two legatees in equal shares. It
may be noted that it is not necessary that for revoking an earlier Will
another Will must be made. A Will can be revoked by a simple and clear
declaration to that effect or by a formal deed of cancellation or
revocation
of Will. .
A Will executed by a person will also be revoked if he loses
his sanity and becomes of unsound mind subsequent to its
execution.
Death of Legatee before Operation of Will (Lapse of Legacy

.Under Sunni law where before the Will can operate, the legatee dies,
the bequest will lapse and the property bequeathed would remain with
the testator and on his death will go to his heirs in absence of any
other disposition by him
Under Shia law, the legacy will lapse only if the legatee dies
without leaving an heir or if the testator, after the death of the legate
revokes the Will. However, if the testator even after the death of the
legatee does not revoke the Will, on the date of operation of the
Will the benefit under it will pass to the heirs of the legatee. ,
Mu slim Law of Will 337
Difference between Sunni and Shia Law of Wills
SUNNILAW SHIA LAW
1. Bequest of any portion (1/3 or 1. A bequest to the extent of 1/3 can

more) to an heir without the be made to an heir without the
consent of other heirs is invalid. consent of other heirs.
-2: Heir's consent may be given

Heir's consent should be given before or after the death.
after the death of testator.
X It is valid only when the Will is
A Will of a person committing made before taking any step
suicide is valid. towards the act of suicide.
-4rlt is valid even if born in the longest
A bequest to a child in womb is period of gestation i.e. 10
valid if born within 6 months. months.
Shia legatee suffers only if it is

. In case of murder of the testator by intentional.
the legatee, the legatee is
deprived of his legacy - be the
murder intentional or accidental.
6rRule of chronological priority

Rateable abatement of legacy applies.
applies (See under the questions
section).
Acceptance of the legacy during the
7. Acceptance of the legacy before testator's life time is lawful.
the testator's death is of no
effect.
legatee dies, before, the The legacy does not lapse but passes
testator, the legacy lapses and to the heirs of legatee.
reverts to the testator.
[Note: Shia law gives more extensive power to make a Will in comparison to
Sunni law. Under it, heir's consent may be given before or after the death of
testator. Under Sunni law, heir's consent should be given after the death of
testator (when the rights and claims of the heirs are
338 Family Law - II
specific and clear without any ambiguity or confusion with respect to

possible or unforeseen events taking place). It may be noted that because
a Will takes effect from the date of the testator's death, in between the
time of making the Will and his death, the births and deaths in the family
may include or exclude potential heirs.
For example, a Muslim man having a wife, a son and a son's
daughter makes a Will in his wife's favour. The son's daughter is not
an heir in presence of the son of the testator; so her consent is not
required to validate this bequest. The son gives his consent. Suppose
after executing this Will, the testator's son dies. Now if the testator
dies, the son's daughter is an heir, and the bequest in favour of the wife
would be subject to her consent.
The rule of prohibiting an heir to take under a legacy as well as
in accordance with succession is applied strictly under Sunni law, as it
would otherwise enable an heir to take a greater portion of the wealth
of the testator, then what was ordained for him under the Quran, and
this may upset the ties of kindred.9]
FURTHER QUESTIONS
Q.1(a) Discuss the rules relating to abatement of legacies under

Sunni and Shia laws. [D.U.-2009/2010/2011
M, a Muslim died leaving properties worth Rs. 1 lakh. Rs

6,000 were spent on his funeral and he had left a debt of Rs
16,000 undischarged. Before his death M had executed three
Wills on different dates. By his first Will he bequeathed Rs.
26,000 to his wife W; by second Will he bequeathed Rs.
26,000 to a dancing girl; and, by his last Will he bequeathed
Rs. 26,000 for repair and renovation of a temple of Lord
Krishna.
9. See P. Pradhan Saxena, Family Law II, 3'" Ed., p. 485 (2011).
How will the bequests operate -(i) under Sunni law, (ii) under
Shia law? [LC. 11-94]
(b) Total net estate available at the time of death of a Muslim is

Rs. 12 lakhs. He bequeaths Rs. 1,50,000 worth of property to
Mohan another Rs. 1,50,000 worth of property to Rakesh. In
addition, he bequeaths Rs. 3 lakhs worth of property to a
mosque. What will be the legacies in favour of the above
legatees under Sunni and Shia laws. [LC./-96]
.l(a)|A Will or wasiyai is a device which needs no formality (writing,
attestation, etc.) - through which a,
(i) Muslim testator capable of giving (sound mind, major)
having formed an intention (unequivocal) to give,
(ii) makes unconditional disposition of his own net property
existing at the time of death - (estate available after providing
for his debts and funeral expenses) - intended to take
effect after death,
(iii) in favour of anybody - Muslim, non-Muslim, insane, minor,
juristic person,
(iv) which shall be accepted (expressly or impliedly) by legatee
after testator's death, and is
(v) revocable in testator's life time. |
There are some restrictions on the power of a Muslim to dispose of his
property by Will. No Muslim can make a bequest of more than one-
third of his net wealth. If the bequeathed property exceeds one third, the
consent of other heirs is essential (Sunni and Shia laws). In respect of
bequest of one-third to an heir, the consent of other heirs is required
in Sunni law, but not in Shia law; in case of a non-heir, the consent of
heirs is not required in Sunni law also. Where a testator has no heir, he
can dispose of his property as he likes.
It is important to note that it is unlawful to make a bequest to
benefit an object opposed to Islam e.g. to an idol in Hindu temple,
because idol worship is opposed to Islam.
340 Family Law - II
Rateable Abatement (Sunni Law) - In cases where the bequests * made

by the testator, taken in the aggregate, exceed the bequeathable limits
and the heirs do not give their consent, the legacy abates or decreases so
as to bring it within the bequeathable limits. For instance, where a
bequest of more than one-third of property is made to two or more
persons and the heirs do not give their consent, the shares are reduced
proportionately to bring it down to one-third, or in other words, the
bequest abates rateably. The above rule applies in Sunni law only, it
Abatement means, 'to deduct' or 'to make less'. Rateably means
'proportionately'. The property given to each legatee is reduced in
proportion of the share allotted to him in such a manner that the
aggregate of the property given to all of them does not exceed
bequeathable one-third. The deduction is made from the share of each
legatee in the ratio of what they have got under the Will
Bequests for the purpose of rateable abatement are divided into
bequests for pious purposes (e.g. alms to poor, sacrifices, building
mosque, a bridge or an inn) and bequests for secular purposes. Bequest
for pious purposes are decreased proportionately to bequests for secular
purposes, and do not have precedence (or priority) over them
For example, total net estate available at the time of death of a
Sunni testator is Rs. 1,20,000. He bequeathed Rs. 30,000 to A and B
(non-heirs) in equal shares and another Rs. 30,000 for pious purposes
The total value of the bequests is Rs. 60,000 i.e. one-half of entire
available assets. In the event of heirs refusing their consent, the
bequeathable one-third limit would be Rs. 40,000. As a result the bequests
will abate rateably i.e. in the same ratio for secular and pious purpose:
Thus, out of the bequeathable amount of Rs. 40,000, A and B will each
get Rs. 10,000 and Rs. 20,000 will go for pious purposes. The excess
amount of Rs. 20,000 will be disregarded and only Rs. 40,000 will be
deemed as part of the Will.
Mu slim Law of Will 341
other Illustrations
/ (1) A, a Sunni Muslim makes a Will of half of his properties
to X who is a non-heir. The heirs of A refuses to give their consent. X
would get only 1/3^
( (2) A, a Sunni Muslim makes a Will to X, Y and Z ('non-
heirs') in the following proportion: X: 1/2; Y: 1/4; Z:
1/4
Here, the testator A has bequeathed his whole property. But
without heir's consent, the bequeathable property is only one-third
of the net assets, not the whole. To deduct the excess property
from the shares f X, Y and Z, in proportion of their shares, the
bequeathable property would be taken to be 1/3 as against the whole
(one) and their respective hares would remain unaffected. Thus, the
three legatees would finally get as under:
X: 1/2 of 1/3 - 1/6; Y: 1/4 of 1/3 = 1/12; Z: 1/4 of 1/3 - 1/12
now, under this distribution, the sum total of properties given to X,
Y and Z is 1/3 (1/6 + 1/12 + 1/12) and in this way it does not
violate the rule of 'bequeathable third.' At the same time the
proportion (or the rate) of the shares of property given to each
legatee under the Will, has also not been changed. \
( (3) A Sunni Muslim makes a Will of his properties to X and Y
who are not his legal heirs. His heirs do not approve the
Will. Distribution of property under the Will is as under:
X:
1/2; Y: 1/4.
Here, the total property given to X and Y is 3/4 (1/2 + 1/4), which
exceeds the 'legal third' by 5/12 (3/4 -1/3). This excess property
must be deducted from the share of each legatee. But the reduction of
their shares must be rateably or proportionally. There is a simple
method for this. By taking the ratio of the shares of X and Y, we
find that their shares are in the ratio of 2:1 i.e. 2/3 and 1/3
respectively. Now, without the consent of the heirs, the bequeathable
property is only 1/3. Therefore, the respective shares of X and Y
would be as under:
X: 2/3 of 1/3 = 2/9; Y: 1/3 of 1/3 = 1/9 Thus, we find that total
property given to the legatees is 1/3 (2/9 + 1/ 9) and the ratio of their
shares has also not been disturbed.)
342 Family Law - II
/ (4) A dies leaving behind assets worth Rs. One and a half lakh.
He made a Will giving Rs. 50,000 to his daughter, and Rs.
50,000 to a friend. His wife and son, the other two heirs
refuse to confirm the bequest.
Here the bequeathable limit is Rs. 50,000. As under Sunni law, the
bequest in favour of the heir is not valid unless consented to by the
heirs. Thus, bequest in favour of daughter would be inoperative. The
Will in favour of friend would be valid (being within 1 /3 rd limit). The
widow, son and daughter would inherit from Rs. One lakh, as per the
laws of inheritance. )
/(5) A Sunni Muslim having Rs. One Lakh, eighty thousand, makes a
bequest in favour of three persons A, B and C giving them Rs. 60,000
each (i.e. exact one-third) by the same Will. Sunnis apply the rule of
rateable or proportionate deduction irrespective of whether the amount
given to each of the legatees is an identical one-third or is different vis-
a-vis each other. Here the bequeathable one-third is Rs. 60,000 and Rs.
60,000 each is the amount given to the beneficiaries under the Will. The
legacy of each will be reduced to one-third viz. Rs. 60,000 x 1/3 * Rs.
20,000.)
(ii) Chronological Priority/ Preferential Distribution (Shia Law)
• - According to Shia law, if several bequests are made through a
Will, priority would be determined by the order in which they
are mentioned (e.g. if A mentioned before B, A will get priority)
or by the point of time (bequests prior in date take priority over
those later in date). Thus, legacies take effect in order of
preference.*
legatee mentioned first in the Will gets his share as mentioned under the
Will. After giving his share, the remaining goes to the second legatee.
If there still remains something, it goes to the third and as soon as the
one-third property is exhausted, the distribution is stopped and the next
legatee does not get anything. Thus, here a legatee either gets his share
(as mentioned in the Will) or gets 'some share' or gets nothing at all
(For example, a Shia testator bequeaths Rs. 15,000 to A, an heir in

1981; Rs. 15,000 to B, a non-heir in the same Will; Rs. 30,000 for
pious purposes in 1984; and Rs, 20,000 to D in 1985. The
aggregate amount in the four bequests totals up to Rs. 80,000 out of
testator's property of Rs. 1,20,000. Bequeathable one-third is Rs.
40,000 only, since heirs do not consent. The Wills prior in time shall
be served first, until the bequeathable one-third is exhausted. So out
of Rs. 40,000 by giving Rs. 15,000 to A and another Rs. 15,000 to
B, only Rs. 10,000 are left for pious purposes which will be given.
Since one-third stands exhausted, D will get nothing.
her Illustrations
(i) T, a Shia Muslim, executes a Will in favour of three persons, A, B
and C and specifies their shares as: A: 1/12; B: 1/4; C: 1/ 6. The sum
total of all the properties given to these legatees exceeds one-third. T's
heirs refuse to give consent; therefore, the principle of preferential
distribution would be applicable. Thus, A, the first legatee would get
his share 1/12. But there still remains (1/3 - 1/12) = 1/4. This remaining
1/4 which is also the share of B would go to B. After giving the
property to A and B the bequeathable one-third exhausts and therefore
C would get nothing, (ii) A testator (Shia) makes a Will in favour of
his wife, giving her Rs. 30,000 and his friend Rs. 50,000. His total assets
amounted to Rs. 2 lakhs. After deducting the funeral expenses and
payment of debts, the net assets came to Rs. One lakh, eighty thousand.
The heirs did not confirm the bequest, here, a wife is an heir, but under
Shia law, to the extent of one-third, property can be bequeathed to
anyone. It may be noted that consent of heirs is not required under Shia
law, to the extent of one-third, whether property is bequeathed to heir or
non-heir. The bequeathable one-third limit is Rs. 60,000. The amount
given under the bequest is Rs. 80,000. Applying the rule of
chronological priority, Rs. 30,000 will be given to the wife, and the rest
Rs. 30,000 will be taken by the friend. )
344 F a m i l y Law - II
Exception to Priority Rule The priority rule, however, admits an
exception - where there are successive bequests of the exact 1/3 to two
different persons in the
same or successive Wills, the later bequest would revoke the earlier
bequest (the order of reference is reversed). Thus, in the above
illustration, suppose Rs. 40,000 are bequeathed to A, another 40,000 to
B, and still another 40,000 for pious purposes. The bequest for pious
purposes will be fully served to the tune of Rs. 40,000 and A or B will
get nothing. .
A Shia testator makes a Will of 1/3 of his properties to A, and 1/
3 to B. Generally, under the Shia rule, A should get his 1/3 share and
since the legal third exhausts, B should get nothing. But, under the
exceptional Shia rule, B would get 1/3 and the first legatee, namely, A
would get nothing. The reason behind this peculiar rule is that where a
Will is made of exactly one-third, the Shia jurists regard the last Will as
"implied revocation" of the first. However, this exceptional rule
applies only where two or more legatees are given exactly 1/3 each. .
Sunni law. (i) Total net wealth available to M is Rs. 78,000
(excluding Rs. 6,000 for funeral and Rs. 16,000
for debt.).
(ii) The total value of bequests is Rs. 52,000 (bequest
of Rs. 26,000 made for Lord Krishna temple is
void under Muslim law) i.e. two-third of net wealth.
(iii) In the event of heirs refusing their consent, the
bequeathable one-third limit would be Rs. 26,000.
(iv) The bequests will abate rateably - out of the
bequeathable amount of Rs. 26,000, M's wife and
the dancing girl each will get Rs. 13,000.
(v) If heirs give their consent, then M's wife and the
dancing girl could get Rs. 26,000 each.
Shia law: (i) As there is a bequest of exact 1/3 amount (Rs.

26,000) in the successive Wills, the exception to
priority rule will apply. The later Will revokes the
earlier Will in such cases. Thus, Will in favour of
dancing girl will fully operate and M's wife will get
nothing (The Will in favour of Lord Krishna temple
is void under Muslim law).
(b) Sunni law:
(i) Total net estate available is Rs. 12 lakhs.
(ii) The total value of bequests is Rs. 6 lakhs i.e. one-
half of net wealth.
(iii) In the event of heirs refusing their consent, the
bequeathable one-third limit would be Rs. 4 lakhs.
(iv) The bequests will abate rateably - out of the
bequeathable amount of Rs. 4 lakhs, Mohan and
Rakesh will get Rs. 1 lakh each and mosque will
get Rs. 2 lakhs. The legatees (secular purposes)
and the pious purposes - both will share equally as
a group.
Shia law: (i) The Wills mentioned first shall be served first, until
the bequeathable one-third (Rs. 4 lakhs) is exhausted.
(ii) Thus, out of Rs. 4 lakhs, by giving Rs. 1.5 lakhs to
Mohan and Rs. 1.5 lakhs to Rakesh, only Rs. 1
lakh is left for the purpose of mosque which will
be given.
Q.2(a) A Muslim man M executed one Will under which he gave Rs.
60,000 to X, Rs. 45,000 to Y and Rs. 30,000 to Z. His net
assets on the date of his death were Rs. One lakh and thirty five
thousand. Discuss who would get the legacy and what would be
its quantum both under Sunni law as well as Shia law.
What would be your answer if A had married under the Special

Marriage Act, 1954? [D.U.-2011]
346 Family Law - II
(b) A executed a Will giving Rs. 30,000 to X, Rs. 90,000 to Y and

Rs. 60,000 to Z. His total property on the date of his death is
Rs. 60,000 only. Discuss who would get the property and
what would be their shares? What would be your answer if
the bequest was of an exact one-third of his property in
favour
of each of the legatees? [D.U.-
2010\
A.2(a) Sunni taw. Net assets of the Legator on his death is Rs.
1,35,000. One-third of the net assets (bequeathable property) is Rs.
45,000. Property actually bequeathed as per Will is Rs. 1,35,000
[(60.000(X) + 45,000(Y) + 30,000(Z)]. It is not possible to bequeath
in excess of one-third property (i.e. Rs. 45,000) without the consent
of rest of the heirs.
Ratio of the allotted share to X, Y and Z is 4:3:2 (60,000:
45,000 : 30,000). Under Sunni law, the shares of X, Y and Z as per
Rateable distribution method will be:
X = 60,000 x 1/3 = 20,000
Y = 45,000 x 1/3 = 15,000
Z = 30,000 x 1/3 = 10,000 Shia law: Under Shia Law, as per
preferential distribution, X will get Rs. 45,000 i.e. upto one-third of
the net estate in preference to Y and Z and after the exhaustion of
one-third of the net estate, no one will get anything.
Effect of Special Marriage Act, 1954 -

The provisions of the Indian Succession Act, 1925 are not
applicable in the case of Muslims. However, a Muslim can claim
immunity if his marriage (with a Muslim or non-Muslim) was held
under the Special Marriage Act, 1954. In such cases, the provisions
of the Indian Succession Act, 1925 shall be applicable even though
the Will was made before or after the marriage.
Even if two Muslims get married under Muslim law and
subsequently get this marriage registered under the Special
Marriage Act, 1954, the provisions of Indian Succession Act will
apply. In Re Alma Latifi (1961) BLR 940, it was said by the High
Court of Bombay
Muslim Law of Will
that the provisions of the Indian Succession Act shall apply to the
Will of a Muslim who registers his existing marriage under the
Special Marriage Act.
Thus, a Muslim either by getting married under the 1954 Act, or
getting his marriage (contracted under Muslim law) registered under
this Act, can acquire full freedom to dispose of his total property via
will in favour of anyone at his pleasure. He can make a testamentary
disposition of 100% of his property. Further, the testator has complete
freedom to choose the beneficiaries under the Will. He can bequeath the
total property to an heir or to a stranger or for a religious or even a
charitable purpose.
(b) Sunni law:
(i) Net assets of the Legator on his death is Rs. 60,000.
One-third of the net assets (bequeathable property) is Rs.
20,000. Property actually bequeathed as per Will is Rs.
1,80,000 [30,000(X) + 90,000(Y) + 60,000(Z)]. (ii) It is
not possible to bequeath in excess of one-third property (Rs.
20,000) without the consent of rest of the heirs, (iii) Ratio
of allotted share to X,Y and Z is 1:3:2. (iv) Under Sunni
law, the shares of X, Y and Z as per Rateable distribution
method will be: X = 30,000 x 1/3 = 10,000
Y = 90,000 x 1/3 = 30,000
Z = 60,000 x 1/3 = 20,000
But the legator has only Rs. 20,000 as bequeathable property, therefore,
the aforesaid amount of X, Y and Z would further be reduced
proportionately so as to equal to Rs. 20,000. X = 10,000 x 1/3 -
3333.33
Y = 30,000 x 1/3 = 10,000
Z = 20,000 x 1/3 = 6666.66
348 Family Law - II
Shia law. Under Shia law as per preferential distribution method, X will
get Rs. 20,000 i.e. upto one-third of the net estate in preference to Y
and Z and after the exhaustion of one-third of the net estate, no one
will get anything.
Decision of the second part of the question

If the bequest was of an exact one third of property in favour of
each of the legatee then under Sunni Law, one-third of the property
(i.e. Rs. 20,000) will be divided equally among X, Y and Z. Under Shia
Law, the last legatee gets preference over earlier legatee ('Exception to
priority rule')- If Z is the last legatee in the sequence then he will get
one-third property, and X and Y will get nothing.
Q.3(a) Rahim bequeaths orally half of his property to a Christian

church and another half by a registered deed to Lord Krishna
temple in his locality. After his death his wife and children
wish to avoid both the Wills. Advise them as to the provisions
of Muslim law (Shia and Sunni) under which the validity of the
Wills can be challenged. [LC.//-
96)
(b) Discuss the validity of the following Wills under Muslim (Sunni
and Shia) Saws-
(i) A bequeaths one-third of his property to his wife. A

has two sons SA and SB.
(ii) A bequeaths one-half of his property to his friend F. A
is survived by his wife W.
(iii)C bequeaths one-third of his property to the would-be-
son of his brother B, who is a bachelor.
[L.C.II-95/96 (Supp.)]
A.3 (a) Under Muslim law, if a bequest is made to benefit an object
opposed to Islam as a religion, such as for building a Hindu
temple, or a Christian church, the bequest would be void
Under both Sunni and Shia laws, a Muslim cannot make a bequest
in
excess of one-third of his property, without the consent of the heirs.
Thus, on these grounds the Wills made by Rahim can be challenged

by his wife and children.
(b) [Note: There are six primary heirs under Muslim law - Father,
Mother, Son, Daughter, Husband, and Wife.]
(i) The wife of A is an heir. A can bequeath one-third of his
property to her, without the consent of other heirs i.e. two
sons (under Shia law) and with the consent of other heirs
(under Sunni law).
i(ii) The friend of A is a non-heir. Under both Sunni and Shia
laws, the bequest is valid up to l/3rd without consent of
heirs. But a bequest in excess of l/3rd requires consent of
heirs.
However, where the only heir is the husband or wife and the bequest
of such excess does not affect his or her share, then such bequest will
be valid (a husband takes l/4 share, while a wife 1/^share). Thus, in
the present case, A's wife is the only heir, and her share will not be
affected by a bequest of one-half of A's property to F. The bequest will
be valid even without her consent^
(iii) The Will is not valid, because an unborn person cannot be
a legatee. Further, the bequest is contingent on the happening
of uncertain events (C's brother may not marry; he may
not have any child even if he marries, or he may not have
a son child). A contingent Will is void.
Q.4 Discuss the validity of the following Wills both under the Sunni
and Shia laws:
(a) A Muslim bequeaths his entire property to one heir to the

exclusion of other heirs.
(b) A Muslim bequeaths his entire property to a stranger/strangers

(e.g. X - 1/3, Y - 1/3, Z - 1/3).
(c) A Muslim bequeaths 1/3 to an heir and 2/3 to a non-heir (e.g.

friend). The bequest to heir is not assented to by other heirs.
350 Family Law - II
(d) A Muslim bequeaths 2/3 to an heir and 1/3 to a non-heir. The

bequest to heir is not assented by other heirs.
(e) A Muslim bequeaths 1/6 to an heir, 1/6 to a stranger and 1/ 3 to

a friend. [LC./-93/94]
.4 (a) The Will is void. When a bequest is made of the
entire
'— property to one heir to the exclusion of other heirs, wasiyat
does not take effect without consent even to the extent of
one third. But the rule will not apply if the bequest is short
of entire property.
(b) The bar against bequest to stranger (i.e. a non-heir) in
excess of one-third is subject to the following exceptions, i.e., may be
relaxed in the following cases - where such
excess is permitted by a valid custom; where there are no
heirs of the testator; and, where the heirs existing at the
time of the testator's death, consent to such bequest after
his death. Thus, a bequest of entire property can be made
to a stranger.
If the heirs do not consent, then under Sunni law, applying rateable
reduction rule, X, Y and Z together will get 1/3 only. Under Shia law,
applying exception to the priority rule, Z will get 1/3 and X and Y nothing
(See A.l).
\ Under both Sunni and Shia laws, a bequest to a non-heir
in excess of 1 /3 is valid if heirs consent to it.. Under Sunni law a bequest to
a Weir even of" 1 /3 require consent of other heirs, while under Shia law,
not. Thus, in the present problem, the bequest to non-heir when consented by
other heirs is valid. The bequest to heir is invalid even under Shia law
because such bequest, after taking into account 2/3 bequest made to non-heir,
would exceed the bequeathable l/3rd limit and thus will require
consent of" other heirs.
(d) Bequest to heir is invalid, but that to non-heir is valid.
(e) If the heirs do not consent, then under Sunni law, the
reteable reduction rule will apply and bequeathable l/3rd
will be divided between heir, stranger and friend
proportionately. Thus, heir and stranger both will get one

half of 1/3 (i.e. 1/6), thus, 1/12 each. While, the friend will
get other half of 1/3 i.e. 1/6.
Under Shia law, the bequests mentioned in first Will get priority until
the
/3 limit is exhausted. Thus, when heir and stranger get their shares
(1/
I X 2 = 1/3), the l/3rd is exhausted, and the friend will get nothing.
Q.5 Aziz had two sons Ashraf and Rashid and a daughter Sabina.
Rashid died during the life time of his father leaving behind
his son Ghulam. Aziz executed a Will giving all his property to
Ghulam. Examine the extent to which the Will is valid under
Sunni and Shia laws. [C.LC.-
91]
A.5 Ghulam is not an heir to Aziz. A bequest in favour of a non-heir, in
excess of 1/3, requires assent of other heirs for its validity (Sunni
and Shia laws). If such Will is to operate with respect to his entire
property, the other heirs must consent.
Q.6 Discuss the validity of the following Wills both under the Sunni
and Shia laws:
(a) A, a Muslim dies leaving a son B, a widow C and a grandson D

by a predeceased son. A bequeathed one-third of his estate to
D. B and C do not consent to this bequest.
(b) A, a Muslim has got property worth Rs. 10 lakhs. He has to pay
Rs. one lakh to his creditors and Rs. 50,000 to his wife as
dower. He bequeaths his entire property by Will in favour of his
son. A dies without discharging his debts. Whether the son will
succeed?
A.6 (a) The son of a predeceased son (D) is not an heir. Therefore,
the bequest to him is valid to the extent of one-third without the
consent of heirs (B and C) both under Sunni and Shia law. (b)
The Will made by A is not valid (both under Sunni and Shia
law) because it exceeds the bequeathable one-third and also
352 Family Law - II
it is made in favour of an heir without the consent of other

heirs. A bequest of entire property to one heir (son) to the
exclusion of other heirs (widow) is void \Husaini Besum
v Mohd. Mehdi (1927) 49 All 547].
Thus, first the debt due to a creditor and payment of dower to wife of
deceased has to be made and then the balance will be divided among
heirs of deceased in accordance with provisions of succession under
Muslim law.
11 Muslim Law
of Gifts
Gift, being a transfer of property, is generally governed by the Transfer

of Property Act, 1882. But Chapter VII of the T.P. Act does not apply
to "Muslim gifts" (Hiba). The reason is that although there is no
difference in the gifts made by non-Muslim and a Hiba in so far as its
basic nature is concerned yet, the formalities of Hiba are different from
that of a gift made by non-Muslim. In a Hiba, the transferor intends to
transfer the property immediately to the transferee. Unlike the situation
under the T.P. Act, 1882, the Hiba is operative with immediate effect
and divest the donor of his control and ownership over the property.
The result is that gifts made by non-Muslims in India are governed by the
provisions of the T.P. Act, 1882, whereas the gifts made by Muslims
are governed by the Muslim personal law. However, other kinds of
transfers inter vivos by Muslims, such as the sale, exchange, mortgage
or lease, are regulated by the T.P. Act and not by Muslim law. Under
Muslim law, a person is allowed to lawfully make a gift of whole of his
property to another during his life time] A hiba or simple gift or
disposition inter vivos (between living persons) literally means "the
donation of a thing from the donee may derive benefit."
|Hedaya defines Hiba in the following words: "Hiba is an
unconditional transfer of ownership in an existing property, made
immediately and without any considerationÂccording to Fyzee, "Hiba
[353]
354 Family Law - H
is the immediate and unqualified transfer of the corpus of the property

without any return.",
I A gift under Muslim law is a:
(i) voluntary, unconditional and immediate transfer by donor
of, (ii) certain specified existing property (movable or
immovable), (iii) without consideration (ewaz), (iv)
accepted by or on behalf of the donee.
In a gift, a living person voluntarily conveys his properties to another
living person. Since gift under Muslim law is a contractual transaction,
the requirements of offer and acceptance are insisted upon. In India
it is often assumed that the term 'gift' is the exact equivalent of 'Hiba'
and both are understood to connote all transfers of property without
consideration. The term 'gift' is generic and is applied to a large group
of transfers. The word 'hiba' is a narrow and well-defined legal concept.
Juristically in Muslim law, it is treated as a contract consisting of a
proposal or offer on the part of the donor to give a thing and the
acceptances of it by the donee.
The transferor transfers ownership or 'absolute interest' in the
property. There cannot be a gift of limited or partial interest of property.
Transfer of absolute interest also means that transferor cannot impose
any condition on transferee after the gift is completed. Conditions,
restrictions or incomplete rights in the property gifted, are against the
very concept of a gift.
Êssential Requisites of a Gift1
(I) Who may Give: Donor

The person who makes the gift i.e. donor must have attained the age
of majority, must be of sound mind, must be free of any fraudulent or
coercive influence, and, must have ownership over the property to be
transferred by way of gift.
1. Discuss the essentials of a valid gift under Muslim law. [D.U.-

2010/2011]
Mus lim Law of G i f t s 355
It must be his intentional, voluntary and free act untainted by

coercion and undue influence.^ a person was in a position to
dominate any other person (e.g. fiduciary relationship-master and
servant), the transaction made by such person will carry no force
unless the donee satisfies the court that donor acted independently^
gift by apardanashin lady is valid, but in case of a dispute the
burden of proving that it was not induced by undue influence and
the donor understood the nature of based transaction while making
it, lies on the done The condition is based on the special protection
extended by law to the weak, ignorant id infirm (Sonia Parshini v
Sheikh Maula Baksh AIR 1955 Cal 17).
The donor must also have the right to make the gift. A donor has
right to gift only those properties of which he is the owner A
Muslim is a right to gift away all the properties which are under his
ownership the time when declaration of gift is made by him. A
person who is simply a tenant in a house, cannot gift that house
because he is not owner of that house.
A person in insolvent circumstances can make a gift provided he
is a bonafide intention to give and the act is not merely intended to
defraud the creditors.]
I) Who may Receive: Donee

A gift may be made in favour of a Muslim, non-Muslim, heir, non-
heir, minor, insane or a juristic person (e.g. mosque). Thus, any
person capabie of holding property may be the donee of a gift. Sex,
age, creed/ religion or state of mind is no bar to the taking of a gift.
It must, however, be proved that at the time of making the
declaration of gift, e donor must be a Muslim. Where the donor is a
non-Muslim, the gift
not Hiba
The donee must be in existence at the time of making a gift. Thus,
gift to an unborn person or a dead person is void A' child in mother's
womb' is competent donee provided it is born alive within six
months from the date on which gift was made If after the gift, an
abortion takes place or the child dies in the womb, the gift (already
made) becomes void) It is absolutely necessary that the child must
be in existence in its mother's womb when the declaration of gift is
made.
M u s l i m Law of G i f t s 357
V) Extent of Donor's Right to Gift

the general rule is that the donor's power to gift the property is
unrestricted. He may not only give the whole of his property but
also any portion he likes irrespective of the fact that the disposition
of property will adversely affect on the expectant heirs right to
inherit the property. However, there is one exception to the above
mentioned general rule, viz. gift made during death-illness
V) Formalities and Modes of Gift

The most important requisite of hiba is that it must satisfy the rules
laid down by Muslim law for making a gift. Mere presence of a
donor and a donee, their ability to make and accept the gift and the
existence of a valid subject of gift will not have the effect of
completing the Transaction. It will have to satisfy certain
formalities which in fact are the real tests of the validity of a gift
transaction. /The act of making a gift should fulfil the following
three conditions:-
(1) A declaration by the donor,
(2) Acceptance by the donee, and
(3) Delivery of possession by the donor and taking of it by the
donee {Mahboob Sahab v Syed Ismail AIR 1995 SC 1205)j
Even when the declaration and acceptance are not expressed in
words, so long as the intention is evidenced by conduct, it would be
sufficient. Under Muslim law, a gift of property can be made
verbally without recourse to written and registered document. Oral
gift is as effective as one in writingjln Maimuna Bibi v Rasool Mian
(AIR 1991 Pat. 203), it was held that while oral gift is permissible
under Muslim law, to constitute a valid gift it is necessary that the
donor should express his intention of divesting the ownership in
express and clear words ("Express Declaration").
A\) Declaration of gift - Declaration is a statement which
signifies the intention of the transferor that he intends to
make a gift to the donee. There must be clear and
unambiguous intention of the donor to make the gift. When
there is no real or bona fide intention on the part of the
person making the gift, the alleged
358 Family Law - II
gift will be void. There must be the bona fide intention of

divesting himself inprasenti of his proprietary title in the property
gifted by the donor
Gifts without intention may be sham gifts, colourable or benami
transactions, etc (A gift made with intent to defraud the creditors of the
donor is viodable at the option of the creditors. But the mere indebtedness
would not stand in the way of the competency of a donor to make a
gift. The mala fide intention must be established by cogent facts)
In Ratan Lai Bora v Mohd. Nabiuddin (AIR 1984 A.P. 344), the
court observed: "In order that a declaration of gift is established, it must
be shown that the donor either in the presence of witnesses or otherwise
made a public statement that he gifted the property in favour of the
donee and that The divested himself of the ownership of the property by
delivering such possession as the property is capable of, to the donee
who accepted the gift. It is inconceivable to think that a declaration of
gift can be made unilaterally by a Mohammedan without making a
public statement of the gift."
I (2) Acceptance of gift - Gift is a bilateral transaction. There must
be an acceptance of gift, by or on behalf of the donee. It may
be either actual or constructive according to the circumstances
of the case. It may be express or implied
Acceptance signifies the intention of the transferee (donee) to take the
property and becomes its ownen Without acceptance a gift is not
complete. Under Muslim law, acceptance on behalf of a minor or a
person of unsound mind can be given by the guardian of his property.
.(3) Delivery of possession2 - Mohammedan law of gifts attaches
great importance to possession or seisin of the property gifted,
especially of immovable property. The other elements of hiba
will have no legal effect unless they are accompanied by delivery
of possession. The gift takes effect from the date on which the
possession of the property is delivered to the donee; not from
the date on which the declaration was made.
2. Explain in detail the requisite of "delivery of possession" under the Muslim law
of gifts. [L.C.II-96 (Supp.)]
Muslim Law of G i ft s 359
Delivery of possession is so important in the Muslim law of gifts

(Hiba) that without delivery of possession to the donee, the gift is
void even if it has been made through a registered document^ The
following important points may also be noted regarding delivery
of possession:-
) To validate the gift, there must be either the delivery
(physical) of possession or, failing such delivery,
some overt act done by the donor to put it with the
power of the donee to obtain possession^
The mode of delivery of possession depends upon the nature of the
property gifted. A donee is said to be in possession of a property
"when he is so placed with reference to it that he can exercise
exclusive control over it, for the purpose of deriving from it such
benefit as it is capable of rendering or as is usually derived from
itJfThe term possession means, 'only such possession as the
nature of subject-matter of the gift is capable of, and therefore it can
be actual, constructive or even symbolic.)
i (ii) Delivery of possession must be immediate for without
it the hiba is imperfect or incomplete, even in the
presence of a registered deed. In case the delivery of
possession is not made immediately after declaration
and acceptance, the hiba will be complete only when
the possession is transferred at a subsequent time
, (iii) Only such possession need be transferred as the subject
of a gift is susceptible of e.g. when the property is in
the possession of tenants the requirement of delivery
of possession is complete when the tenants are
informed of the change in ownership of property; but
where the property is held in adverse possession by
trespassers, the donor must do some overt act to enable
the donee to acquire possession, say like filing a suit,
making donee a party along with him, to recover
possession^
_(iv) Actual or constructive delivery: When the denee is in
actual possession, he must physically depart from it
with all his goods and belongings and there must be a
formal entry on the part of the donee. In the case of
tangible or corporeal
360 Family Law - II
or movable property, the actual delivery of possession is

essential. Thus, money must be actually transferred to the
donee; a mere entry in the books of account to the effect
that the amount has been paid to the donee will not complete
the gift. .
I 'Constructive' delivery of possession means a symbolic transfer of
property. Where the subject matter of the gift allows only the delivery
of constructive possession, the gift is valid e.g. in the case of incorporeal/
intangible property (right to repayment of debt, copyright, etc.). In this
case, the donor does some act due to which it is legally presumed that
the possession has been given to the donee . Where the property is
tangible property but, under the situations, its actual or physical delivery
of possession is not possible, constructive delivery may be given.
L. (v) The donor must in any case divest himself of the dominion
or control over the property gifted. And if he has done
everything in his power to perfect the contemplated gift by
relinquishing control over it, nothing more is required
Thus, where the donor reserves to himself the right to receive rents
during his life time and also undertakes to pay the taxes, the mere recital
in the gift-deed that the delivery of possession has been given will not
constitute sufficient delivery of possession.)But the categorical statement
in the gift deed that possession had passed to the donee and the donor
had not retained any right whatsoever in the property coupled with the
tax receipts in the name of donee would show that possession of
property was actually given to the donee (P. Kunheema Umma v P.
Ayissa Umma AIR 1981 Ker 176).
When the Delivery of Possession is Completed?

When a donee becomes the owner of the property depends upon the
Tact as to when the delivery of possession was completed. In respect
of movable properties, the delivery of possession is said to have taken
place at a time when the property is physically transferred to the donee.
But, in respect of the immovable or incorporeal properties, it is difficult
to prove the exact time of the delivery of possession. In India, there are
two judicial views regarding the exact time of the completion of delivery
of possession,
Mu slim Law of G i f t s 361
■ First, a constructive delivery of possession is complete as soon

as he donee starts getting benefits out of Rifled properties (directly or
indirectly). This may be called as the 'Benefit theory.' The real test
is: from which date the donee is reaping the benefits of the
property? Where the donor continues to derive the benefits, the
transfer is not complete. But. if the donee enjoys the benefits, the
delivery of possession is deemed to have taken place. This judicial
proposition lays emphasis upon the fact of donne's benefits from
the gifted property instead of the act which symbolises constructive
possession. Thus, where a house an rent has been gifted, the delivery
of possession is given to the donee from the date on which the
donee gets the rents from the tenant
Secondly, the delivery of possession is completed on the date on
which the donor intends to transfer the possession to the donee.
This may be called as the 'Intention theory.' The intention of the
donor is to be proved on the basis of facts which may differ from
case to case. But there must be some cogent proof of the intention
of the donor that he has physically done everything what he could
in the given circumstances. For example, where donor and donee
are living in the same house which is the subject matter of gift, the
donor's intention to part with the possession is sufficiently proved if
the donee has been authorised to manage the house. In other words, a
delivery of possession is deemed to have taken place at a time when
the bona fide intention of the donor to complete the gift is fully
established. Futher proof of the date from which the donee reaps
the benefits of the property donated, is not necessary
Who may Challenge the Delivery of Possession?

The question whether a delivery of possession has taken place at all
or not, is relevant only when it has actually been challenged in a
gift. It is not necessary to prove separately in each and every case
that the delivery of possession was completed. (But, only donor or
donee or persons claiming under them, can challenge the validity
the validity of gift on the ground that delivery of possession has not
taken place)
In Y.S. Chen v Batulbai (AIR 1991 MP 90), a Muslim
woman made a gift of a portion of her house to her daughter. The
gifted portion of the house was occupied by a tenant who used to
pay the rents
362 Family Law - II
regularly to the daughter (donee) as landlady. After sometimes, he refused

to recognize the daughter as his landlady on the ground that gift in her
favour was void because there was no delivery of possession. It was
held that objection as to the validity of gift on the ground of absence
of delivery of possession cannot be raised by the tenant who is a
stranger to the transaction of gift.
Delivery of Possession - When Not Essential?3

Under Muslim law, a gift is not valid unless it is accompanied by
delivery of possession of the gifted property [Hayatuddin v Abdul Gani
AIR 1976 Bom. 23]. In certain situations the transfer of possession
would appear to be redundant or unnecessary and hence not insisted
upon by law.
(i) Gift by a father to his minor/lunatic son (or daughter) or by a
guardian to his ward — No transfer of possession is required in
such a case, as the possession of father/guardian (on behalf of
minor) is sufficient in such a case. It may be noted that when a
gift is made to a minor by person other than the father/ guardian,
the delivery of possession must be made to the father (i.e. natural
guardian) and in his absence to his executor, and if neither, to
the grandfather and in his absence to his executor^ ( If none of the
guardians of the property is alive, it would be enough if the
person under whose care the minor is living accepts possession.
Thus, in such a case, a gift can be made through the mother or
near relative or even a stranger. Minor himself can accept it, if he
has reached the age of discretion^
f But, where a gift has been made by a person to two or more donees of
which some are minor or insane and the rest are adult and sane, the gift
is not complete without any formal delivery of possession. In T.N.
Sharufuddin v Mehrunissa (AIR 1994 Mad 325) a father made a joint
State the circumstances in which no delivery of possession is insisted upon

under the Mohammedan law of hiba. [L.C./-95]
Discuss the exceptions to the principle of delivery of possession of property
under a gift under Muslim law. [D.U.-2010I
Mu slim Law of G i f t s 363
gift of his properties for the benefit of his minor daughter and her
adult husband through the medium of a trust. There was no formal
delivery of possession and it could not be proved as to who
accepted the gift on behalf of the minor daughter. Held that the gift
was void.)
w (ii) Gift by husband to wife and vice versa - No transfer of
possession is required in such a case. The reason behind
this rule is simple. Joint residence is an integral aspect of
this relationship. The fact that the husband continues to live
in the house after donation and receives the rent thereafter,
will not invalidate the gift as it is presumed that such acts of
the husband, after the gift, are on behalf of his wife and not
on his own account
In Fatmabibi v Abdul Rehman (AIR 2001 Guj. 175)(the husband
made an oral gift of a house to his wife. Later the deed was also
registered. The step-son, lived with his wife in the gifted house,
challenged the validity of the gift on the ground that there was no
delivery of possession of the house. It was held that, oral gift in
presence of two persons amounts to a declaration; mentioning the
name of the wife in the registration deed amounts acceptance; and
mutation in the name of the wife at the instance of the wife amounts
sufficient delivery of possession keeping in view the relationship
between the parties. In Kabisa Umma v Pathakla (AIR 1964 SC
275), held that where a gift was made by a husband to his minor
wife by a registered deed, and possession handed over to the minor
wife's mother, the gift was valid. Since the wife had no father or
grandfather alive, nor any executor, the delivery of the gift deed to
her mother instead of the minor wife herself did not invalidate the
gift, as the intention was well established^
Donor and done residing in the same house which is to be gifted -
Where the donor and the donee both~resi3e in the "property,
the physical departure or formal entry is not necessary. The
donor, who is owner of the house, may complete the gift
without asking the donee first to vacate the house and just
after that, to take possession as a donee
364 Family Law - II
But, there must be some 'overt act' or apparent activity on the part of
the donor from which his real and bona fide intention to transfer the
possession can be inferred. ln Humera Bibi v Najmunnissa (1905) 28
All 17, a Muslim lady executed a gift-deed of her house in favour of
her nephew who was living with her in the same house. The property
was transferred in the name of the nephew but she continued to live
with him as before. But after the gift, the rents were collected in the
name of the donee. Held, that the gift was valid although there was
neither any physical transfer to the donee nor any physical departure of
the donor from the house.^
, (iv) Where the donee is in possession - Where the donee is already
in possession of the property to be gifted, delivery of possession
by the donor after taking it from the donee is not necessary
(e.g. case of a bailee, mortgagee or trustee). Donor's mere
declaration of having gifted it to the donee will suffice
But if the owner of a house wishes to make a gift of it to his rent-
collector, some overt act of transfer of possession is necessary; for the
rent-collector is not in possession of the house, he is merely an agent
and although he may have certain rights he is not in possession of the
property (Mulla).
. (v) Gift by one co-sharer to another
Void Gifts
The following gifts cannot be validly made. They are void.
,(1) Gifts to unborn person - A gift to a person not yet in existence
at the time of making it is void. The reason is that donee's
acceptance is one of the essentials of validity of a gift and if
the donee is not in existence his consent cannot be got. A gift
to unborn person is void but life interest in favour of person
Examine the validity of the following gift: Habib makes a gift of his house to his
nephew, Imraan who is staying with him. However, there is no deliver/ of
possession of house but rent receipts are issued in the name of Imraan.
[D.U.-2009]
Mus l i m Law of G i f t s 365
not in existence is permissible provided they come in existence when

such interest opens out iJ2) Gift to a dead person - is similarly void
Contingent gift - A gift cannot be made to take effect on the happening
of contingency i.e. happening or non-happening of a future uncertain
event because contingency being a mere chance may or may not
happen Thus, a gift by X to A for life and in the event of death of A
without leaving male issue to B, is so far as B is concerned, a
contingent gift and therefore void. However, a conditional assignment
of a life insurance policy is valid according to the Insurance Act, 1938.
I (4) Gift in future - A gift cannot be made of anything to be produced
in future such as a gift of the crop which may be produced next year in
the donor's field The subject matter of the gift must be actually in
existence at the time of making the gift This is so even when the
production of property may be within the competence of the donor and
there may be no doubt as to its coming into existence at some future
time. A gift which is only to take effect after the death of the donor and
during his life time is expressly declared to be revocable by him is not
a valid gift.
(5) Gift with a condition - If the donor attaches a condition to his
offer, the condition is void and the gift takes effect
unconditionally. Thus, the gift is valid but the condition is void
For instance, if a house is given to A for life, and after his death
to B, the legal effect of the gift is that A takes the house
absolutely, and B takes nothing. Likewise, if A makes a gift of
his house to B on condition that he shall not sell it or that he
shall sell it to a particular individual, the condition is void, and
B takes an absolute interest in the house.
366 Family Law - II
IRREGULAR GIFT (MUSHAA)5
Mushaa means 'undivided share' in a property (movable or immovable).

Mushaa is therefore, a co-owned or joint property. The word Mushaa
has been derived from the Arabic word 'Saayu' which literally means
'confusion'. If one of the several owners of joint property makes a gift
of his own share, there may be a confusion as to which portion or part
of the property is to be given to the donee. There may be a practical
difficulty in the delivery of possession if gift of a joint property is made
by a donor without partition of the gifted share. To avoid any such
confusion and difficulty at the stage of delivery of possession, the
Hanafi Jurists have evolved the principle of Mushaa^
The doctrine of Mushaa is applicable only to 'gifts.' It is not
applicable to any other kind of transfer e.g. sale, exchange, etc.
(^Gift of an undivided share in an indivisible property (e.g. staircase)
is valid, but gift of an undivided share in a divisible property is not
valid in the latter case, the gift is considered 'irregular' (fasid), the
defect may be remedied by separating or specifying the subject of the
gift (SujmMawÂccording to Shiajaw, gift of mushaa is valid in each
case (i.e. whether the property is divisible or not) provided the donor
gives to the donee possession of the property by vacating and permitting
the donee to control it Shia law, thus, does not recognize the doctrine
of Mushaa.
A gift may be validity made of an undivided share (Mushaa) in a
'property which is incapable of being divided; or where the property can
be used to better advantage in an undivided condition. According to all
the schools of Muslim law, a gift of Mushaa-indivisible is valid without
any partition and actual delivery of possession. There are certain properties
which are by nature indivisible. The physical partition or division of
such properties is not practical. Moreover, if against the nature of such
Discuss the concept of Mushaa under the Muslim law.

[D.U.-2008{Supp.)/2009/2011} [LC.I-93]
A. a Muslim, makes a gift of his undivided interest in the property. Discuss the
validity of the gift. [LC./-94]
Muslim Law
of G i f t s
367
properties, their partition or division is effected at all, their identity

(value or_character) is lost; they do not remain the same properties
which they were before the partition. For example, a bathing ghat, a
stair case or a cinema house etc. are indivisible Mushaa properties,
■ Where the subject-matter of a Hiba is Miishaa-divisble, the doctrine
of Mushaa is applicable and the gift is not valid unless the specific
share, which has been gifted, is separated by the donor and is actually
given to the donee. In other words, a Mushaa-divisible may be divided
easily without changing the nature and without affecting the utility of
the property.
Exception to Doctrine of Mushaa

The doctrine of Mushaa is limited in its application and is subject to
certain exceptions where the doctrine is not applicable. Under Sunni
law, in certain cases, a gift of mushaa even in a property capable of
division is valid from the date of its inception, despite the fact that no
division is effected. The doctrine of mushaa is thus inapplicable in such
cases:
(i) Gift by one heir to another ('co-heir') - Gift of undivided
property is valid even if made without partition where donor
and donee are co-heirs. Donor and the donee are co-heirs,
if they are entitled to inherit simultaneously to the properties
of a deceased person. In other words, the inheritance should
be from the same intestate.^ For example, two sons
succeeding to the estate of their father are co-heirs, wife
and children inheriting the property of a Muslim man, a
brother and a sister, etc
It is valid, when entire undivided interest is gifted. If a person dies
leaving behind a son, a daughter and the mother, then the son, daughter
and mother are all co-heirs as they all are entitled to inherit the properties
of the deceased. In Mahomed Buksh v Hosseini Bibi (1888) 15 Cal.
684, a Hanafi woman died leaving her mother, son and a daughter, as
her only heirs. The mother of the deceased made a gift of her share to
the son, without separating her share in the properties of the deceased.
It was held that the gift of the undivided share by grandmother to her
368 Family Law - II
( grandson or to the grand daughter or to both jointly, was valid
even without partition.
■ (ii) Gift to two or more persons /Constructive
possession -Where gift of a property, capable of
'division, is made to two or more persons, without
dividing it or specifying their shares, gift will not be
hit by mushaa if the donees, by a subsequent
agreement, divide the property gifted, between
them.j
If the gift is by a co-sharer to another sharer and the co-sharer is
in possession, the possession is deemed to be on behalf of the
other.
i(iii) Gift of a mushaa with stipulation that the donee
shall pay certain periodical sums to someone
i(iv) Gift of a share in a land company !gift of a share in
the freehold property in a large commercial
townA
The doctrine of Mushaa originated with an object of avoiding
confusion at the stage of taking the possession by donee. In the
land companies or big commercial establishment where the
ownership consists of several definite shares, gift of a share by
separating the share physically from the rest, would create
confusion and inconvenience and this would be against the very
purpose of this doctrine. It would be inconsistent to apply the
doctrine of Mushaa to shares in the companies because the
doctrine originated for very different kinds of properties.]
Where a freehold landed property situates in commercial
towns or in big cities, its frequent partition is disfavoured. In big
cities the houses are well planned and the partition may require
approval of a fresh map which may take considerable time.
Therefore, where a part of such property is gifted, the gift is
complete without any prior partition.
i(v) Gift of a share in Zamindari or Taluka - Undivided
share in a Zamindari land or the land that is
statutorily impartible is valid without its actual
division. This exception is of little importance after
the Zamindari was abolished by the Central
Government)
Muslim Law of G ift s 369
doctrine of Mushaa in the Present Progressive Society

Tie doctrine relating to the gifts of mushaa (restraint upon transfer) is
wholly unadopted to a progressive state of society (free transfer of
property) and ought to be confined within the strictest rules [Sheikh
duhammad Mumtaz Ahmad v Zuhaida Jan (1889) 11 All 460].
However, n a later case, it was said that doctrine of mushaa was
not opposed o justice, equity and good conscience [Fakir Nyanar
v Kandasamy 1912) 35 Mad 120].
The doctrine of Mushaa originated for avoiding confusion in
the simple cases of gifts of small undivided properties. In the old
days, no such technical formalities were needed in making divisions
of the joint properties as are required today. In the present
commercially advanced society, the Mushaa doctrine may operate
as a restriction upon the right of a person to deal with his properties.
Gifts are not trade oriented transactions; they are voluntary and
gratuitous transfers. Therefore, the gifts should be free from as
much restrictions as possible. Moreover, where a constructive
delivery of possession is sufficient to complete the gift, there is no
need of making actual division; a symbolic possession by the donee
of the gifted share in property should validate the gift.
ln the present Indian society, the doctrine of Mushaa is neither
legally required nor has any practical significance. In Masoom Sab
v Madan Sab (1973) 1 AP LJ 97, the Andhra Pradesh High Court
said that a gift of Mushaa is not invalid if the donor makes a
constructive delivery of possession. Therefore, there is no legal
difficulty if the Mushaa doctrine is not applied to a gift of an
undivided property. The devices to avoid the Mushaa rule have
been favoured by the courts^
6. The strict application of the doctrine invalidates the gifts of co-owned properties
and operates disadvantageously in most of such cases. Because of this
reason, the Hanafi jurists themselves have evolved a method by which the
mischief of the doctrine could be overcome, it must always be remembered
that the doctrine of Mushaa only renders the gift irregular (fasid) but not void
(batil) and it is therefore possible to employ a device in order to get over it.
The device to overcome the doctrine of Mushaa is simple. The donor may
sell the undivided share without any prior partition and may return the
consideration (price) immediately to the donee. Legally, this transaction
would be a sale in which the doctrine is not applicable; but, in effect it would
mean a gift.
370 Family Law - II
Delivery of Possession in Mushaa
LEADING CASE: HAYATUDDIN V ABDUL GANI7

(AIR 1976 Bom. 23)
, [In this case, validity of the 'gift of undivided property' in absence

of partition of the property gifted (Mushaa) was in issue. A gift of
an undivided share (mushaa) in property which is capable of division
is irregular and not void. The gift being irregular, and not void, it
may be perfected and rendered valid by subsequent partition and
delivery to the donee of the share given to him. If possession is
once taken the gift is validated.
The declaration in the gift deed that possession was handed over to
the donee, the notices issued and intimation to the tenants orally
and subsequently by notices were sufficient evidence to show that
the donors have done everything that was possible in the
circumstances to hand over possession.]
, In this case, A. a Sunni male, died leaving behind a house and his
two widows and a sister. One of the widows W1, and A's sister SI,
executed a registered gift deed of their respective undivided shares
in this house in favour of Hayatuddin, an orphan who was brought
up by A. W and SI then filed a suit in a court of law asking for
partition and handing over the share to Akram. During the
pendency of the litigation, SI died and her heirs claimed that the
gift of her portion was invalid as she had not partitioned her share
before executing a gift of the same as per the requirements of the
law
The recitals in the gift deed stated that the share of one of the
widows was separated and handed over to her, and that the
property gifted was in possession of the donee (Hayatuddin) and
that possession was handed over to him, and that none of the heirs
of the donors would have any interest in the gifted property. In
1955 the two donors and the donee filed a suit for a declaration that
Hayatuddin was the owner of the property
7. A question based on the facts of this case. [D.U.-

201
Muslim Law of G i f t s 371
and an alternate relief of partition and separate possession

was also claimed. Civil Judge held that there was no
partition in 1950 as alleged and the house was not allotted
to the donors, and that the gift had been made and that the
donee was not placed in possession of the gifted property.
The appellate Court took the view that there was no
partition of the house at the time of execution of gift deed
and obviously Hayatuddin was not placed in possession of the
gifted property. Since delivery of possession was one of the
two prerequisites of a valid gift and the properties which were
being enjoyed by tenants-in-common were incapable of
being placed in possession, since not divided, the gift could
not be valid. It was however observed that "A portion of an
undivided property may be gifted to a co-owner also under
certain circumstances but that is not the case here."
Thus, the issues, were: How delivery of possession of
immovable property should be given to validate a gift of
undivided portion? What was necessary to make a gift of an
undivided portion capable of partition valid?,
•The High Court observed: There was no partition
before the gift was made But merely on that account it is not
possible to hold that was no transfer of interest of the two
donors in favour of the donee. There is a clear intention on
the part of the donors to divest themselves of the interest in
the property of A and vest that property in the donee.] It is not
disputed that there can be a gift of an undivided share under
Muslim Law. The law relating to the gift of undivided
property under Muslim Law is enunciated by Mulla: Â valid
gift may be made of an undivided share (mushaa) in property
which is not capable of partition. A gift of an undivided
share (mushaa) in property which is capable of division is
irregular (fasid) and not void (batif). The gift being irregular,
and not void, it may be perfected and rendered valid by
subsequent partition and delivery to the donee of the share
given to him. If possession is once taken the gift is
validated"^
Family Law - II
The Court further observed: How delivery of possession of

immovable property can be given? It contemplates three kinds of
cases (1) where donor is in the possession (2) where property is in
occupation of tenants (3) where donor and donee both reside in the
property. There is evidence in this case to show that part of the
property was in the occupation of tenants and Plaintiff Hayatuddin was
already residing in a part of the property. A gift of immovable property
which is in the occupation of tenants may be completed by a request by
the donor to the tenants to attorn to the donee; and where the donor
and the donee botn reside in the property no physical departure or
formal entry is necessary and in such a case the gift may be completed
by some overt act by the donor indicating a clear intention on his part
to transfer possession and to divest himself of all control over the
subject of the gift-J
There is clear evidence which indicates the steps taken by the two
donors to divest themselves of this property after they had made the
gift. Several notices were issued on behalf of the donors and the donee
intimating about the execution of gift and delivery of possession. The
tenants also deposed that the donors had told them that they had made
the plaintiff the owner of the house and the rent was to be paid to him.
The property was thus in possession of the tenants and partly in
possession of the donee himself who was residing in the house. The
declaration in the gift deed that possession was handed over to the
donee, the notices issued and intimation to the tenants orally and
subsequently by notices were sufficient evidence to show that the
donors have done everything that was possible in the circumstances
to hand over possession.) In addition there is their conduct in joining
Hayatuddin as co-plaintiff to have their share separated and delivered
possession of. This conduct also shows that the donors had done
everything possible to make the gift effective and to divest themselves
of possession and to transfer the said possession of the undivided
portion of the property as the donors themselves had.
What was necessary to make a gift of an undivided

portion capable of partition valid was discussed by a
Division Bench of the Allahabad High Court in Hamid
Ullah v Ahmad Ullah (AIR 1936 All 473). In that case
the property consisted of six houses and three parcels of
land and the donor who was not in physical but
constructive possession of the property executed a deed
of gift and gift is registered. The document recited that
the donor was in proprietary possession of the property
and was conveying to the donee the same sort of
possession which she possessed, that she had given up
all proprietary rights in the subject-matter of the gift
and that donee was at liberty to make transfers of the
property in any way he chose. The Division Bench held
that the gift was valid as the donor had done practically
all that she was able to do in the way of divesting
herself of possession and giving to the donees the same
possession as she had herself.
.In the present case, the Court held: Unless therefore,
there are compelling reasons it will not be possible to
invalidatex a gift as in the instant case, a gift which has been
reiterated by the donors at all possible times whenever
occasion arose. The appellate Court was in error in
dismissing the plaintiff's suit on the ground that the gift was
invalid. Thus, plaintiff's appeal is allowed.].
Revocation of Gift
r Hiba once validly made, is generally irrevocable. Before the
delivery of possession, the gift is not complete and the donor
has unrestricted right to revoke it. After the delivery of
possession, the donor has a right to revoke the gift either with
the consent of the donee (in case the gifted property still
continues in the possession of the donee in original form) or by
a formal decree of the court.
However, the following gifts are absolutely irrevocable -
when the
^donor/donee is dead, when the donor/donee related by blood or
marital relation, when the gifted property is sold or gifted or is
lost, destroyed or changed, when the gift is sadaqah or when
anything has been accepted in return. )
374 Family Law - II
Distinction between Gift and Will

Gratuitous transfer of ownership in a property may be made in two
ways. First, the transfer may be made inter vivos i.e. between living
persons, which is called 'Gift.' Secondly, the transfer may be made
testamentary, which is called 'Will.' Thus, in so far as the legal concept
of Wills is concerned, essentially, it is a 'gift testamentary.'
Both Will and Gift are modes of transferring property from the
person making the gift or Will to the person in whose favour it is made.
However, the two differ in many respects:
(i) Gift is an immediate transfer of right or interest; Will is a
transfer of right to take effect after the death of the testator.
(ii) In a gift transaction, delivery of possession is necessary;
in a Will it is not required.
(iii) The subject of gift must be in existence at the time of gift;
in case of a Will, it is sufficient if the subject exists at the
time of testator's death.
(iv) Right of donor to a gift is unrestricted. The right of making
a bequest is limited (one-third of net wealth, consent of
heirs required).
(v) After completion a gift cannot be revoked unless by a
formal decree of a court; a Will may be revoked at any
time after making of it. {
FURTHER QUESTIONS
Q.1 Discuss the validity of the following gifts under Muslim law:
(a) H makes a gift by a registered deed to his minor wife, W, who

has attained puberty. The gift was accepted on W's behalf by
her mother in whose house H and W were residing. W's
father and grandfather were dead.
(b) The grandfather made a gift to a minor without delivery of

possession to the existing and competent guardian of the
minor i.e. minor's father.
Zafar, makes a gift of his land to his nephew, Hamid, who is

a minor. Hamid is living with his uncle as his father is working
in America. There is no delivery of possession, even though
the gift has been accepted on behalf of the minor by the
father. {D.U.-2008\[L.C.l-94\ LC.II-
96\
L.I (a) Delivery of Possession in case of a Minor Donee
Gift to a minor or a person of unsound mind is valid. They may not
have mature understanding but they are persons in existence.
Therefore, they are competent donee. But such gifts must be
accepted by the guardian of that minor or insane donee. A gift to a
minor or insane donee is void without acceptance by the guardian.^
For purposes of acceptance of a gift, the guardians of a minor or
insane donee are as under: (1) Father, (2) Father's executor, (3)
Paternal grand-father, (4) paternal grand-father's executor. This order
of priority of the guardians of the minor's property must he strictly
followed..
I However, a father could appoint the mother as an executor
under his Will, then, she is competent to accept the gift offered to her
minor child. But, if the father is alive, he alone is competent to do
so. A husband can take over possession as the guardian of his
minor wife who has attained puberty (even though her father
might be living), i
In the absence of a 'guardian of property', acceptance of the
gift may be made by any person having 'custody' of the minor. It is
significant to note that under Muslim law, mother has not been
regarded as 'guardian of property' of her minor children. Therefore,
she is not entitled to accept the gift on behalf of her minor child.
But, where a minor donee has no legal guardian to accept the gift,
the completion of the gift for minor's benefit, is the sole
consideration. In such cases, the mother could accept the gift. Where
a gift is made to a minor who has attained puberty i.e. has attained
the age of discretion, the gift is valid even if the acceptance of the
gift and its delivery of possession have been taken by a person who
has no authority to accept the gift on
376 Family Law - II
behalf of the minor. Also, the donee who had already attained puberty
(fifteen years) i.e. the age of discretion is competent to accept the gift
herself.)
LEADING CASE: VALIA P. KATHEESA UMMA v PATHAKKALAN

NARAYANATH KUNHAMU (AIR 1964 SC
275)
[A gift made by the husband to his minor wife by a registered deed

but accepted on her behalf by minor wife's mother is valid. A gift
can be made through the mother or even a stranger (under whose
care the minor is living) in the absence of the guardians of minor
i.e. father/grandfather or their executors.
,In this case, the husband made gift of his properties to his
minor wife by a registered deed. A month later he died issueless.
After the death of his wife, the present suit was brought by
Kunhumu for possession of his share as an heir under Muslim
law. He contended that the gift in favour of minor wife was
invalid as it was accepted on her behalf by her mothers/This
contention has been accepted by all the three courts below and
that a gift by the husband to her minor wife to be valid must
be accepted on her behalf by a legal guardian of her property
under the Muslim law i.e. by the father or his executor or, by
the grandfather or his executor. As Katheessa Umma, the mother
of minor wife, was not a legal guardian of the property of her,
it was contended that the gift was void. (The husband could
have himself taken over possession as the guardian of his
minor wife, but it was not done.)
Thus, the issue was whether a gift by the husband to his minor
wife and accepted on her behalf by her mother valid in absence of
wife's father and father's father? Was it absolutely necessary that
possession of the property must be given to a guardian
specifically to be appointed by the court in such cases
The court held that a gift to a minor is completed ordinarily
by the acceptance of the guardian of the property of the minor
viz. father and grandfather including executors of these two. A
Mu sl im Law of G i f t s 377
gift can be made through the mother or even a stranger

(under whose care the minor is living) in the absence of the
above guardians. Minor himself can accept it, if he has
reached the age of discretion. A husband can take over
possession as the guardian of his minor wife who has
attained puberty (even though her father might be living).!
(It is only actual or constructive possession that completes
the giftjand registration does not cure the defect nor is a bare
declaration in the deed that possession was given to a minor of
any use, without the intervention of the guardian of the property
unless the minor has reached the years of discretion. If the
property is with the donor he must depart from it and the donee
must enter upon possession. Exceptions to these strict rules are
gifts by the husband to wife and by the father to his minor child.
L to Mohd. Sadiq All v Fakhr Jahan Begum (AIR 1932 PC
13), it was held that even mutation (change) of names is not
necessary if the deed declares that possession is delivered and
the deed is handed to the wife by husband 8 or by a guardian to
his minor ward In. Nabi Sab v M. Papiah (AIR 1915 Mad.
972), it was held that gift did not necessarily fail because
possession was not handed over to the minor's father/guardian
and the donor could nominate a person to accept the gift on
minor's behalf. The Mohammedan law of gifts, though strict,
could not be taken to be made up of unmeaning
technicalities.
These cases show that the strict rule of
Mohammedan law giving possession to one of the stated
guardians of the minor is not a condition of its validity in
certain cases. One such case is gift by the husband to his
wife and another where there is a gift to a minor who has
no guardian of the property
8. Examine the validity of the following gift: Zakir, makes a gift of a house in
favour
of his wife Zainab. The property so gifted continues to be under the
management
of Zakir No mutation of the names was effected. [D.U.-
200&]
[Note: Where the donor and donee reside together an overt act is necessary
and this rule applies between husband and wife. In case of gift by the
husband to his wife, of the house that they were occupying, there is
constructive delivery of possession and acceptance ana the gift (even if oral)
was valid - Fatmabibi v Abdul Rehman Abdul Karim AIR 2001 Guj 175]
378 Family Law - II
in existence. In such cases the gift through the mother is a

valid gift. All that is needed is that the donor must evince an
intention (bona fide) to make the gift and to complete it by
some significant overt act
The court quoted with approval the following rule
{Hedaya): "If a fatherless child be under charge of his mother
and she takes possession of a gift made to him it is valid... The
same rule holds with respect to a stranger who has charge of
the orphan." Similarly, " A mother or any other having charge
of him/her are entitled to possess themselves of a gift in him/
her behalf, because the father be dead, absent, or his place of
residence unknown; for their power is in virtue of necessity,
and not from any supposed authority, and this necessity cannot
exist when the father is present."
, In the present case, the husband, who was very ill, was
living at the time of the gift in the house of his mother-in-law. His
minor wife, who had attained discretion was capable of accepting
the gift. The intention to make the gift was clear and manifest
because it was made by a registered deed and handed over by
husband to his mother-in-law and accepted by her on behalf of the
minor. If the husband had handed over the deed to his wife, the
gift would have been completed under Muslim law and it seems
impossible to hold that by handing over the deed to his mother-in-
law in whose charge his wife was, during his illness and
afterwards, the husband did not complete the gift. Thus, in the
case in question, gift by H to W is valid and complete.] . (b)
The present problem is based on the following case:
JLEADING CASE: MUSA MIYA V KADAR BUX

(AIR 1928 PC 108)
. [A gift by a maternal grandfather to a minor without delivery of

possession to the existing and competent guardian of his
property (i.e. father) is invalid under Muslim law.])
In this case the issue was whether a gift to a minor without delivery
of possession to the existing and competent guardian of his property
Muslim Law of Gifts 379
valid under Muslim law?) (The donor (maternal grandfather) declared

in the presence of his assembled friends that he had made a gift of
his property to his grandsons ("Now both the children, Essen Milan
and Moosa Mian, are the owners of my property"). A letter was also
sent to the father of these minor children by their maternal
grandfather. However, there was no evidence of either an
acceptance given by the father or of the delivery of possession of
this property to the father of these minors.!
• It was alleged that the grandfather had made a gift of
property to his grandsons, but had done nothing further to
complete the gift, not only was there no deed executed and no
mutation effected, but it was proved that the grandfather had
not relinquished but continued to manage the property till his
death, without in any manner having indicated that he regarded
himself as a trustee for his grandsons or that he was in
possession of the property on their behalf. The father of the
minors was also living with them.
The counsel for the minor boys argued that in view of the
facts of this case, that the minor boys and their father were all
along living with the donor, and the special relationship of the
grandfather and the grandson, there was no need for delivery
of possession of the property and it could be validly presumed
that the donor was managing the properties on behalf of the
minor grandsons.
The only question before the Privy Council was whether
the case fell within the exception which provided that a gift by
a father or other guardian of a minor does not require a change
of possession and their decision was that it did not it was held
that it is a well established principle of law that a gift in favour
of a minor by any person other than the father or guardian of
such minor must be accompanied with delivery of possession
to the father or guardian of the minor
It is not a case of a gift by father or mother to a minor,
nor is it a case of a guardian making a gift to his ward. It is
true that the grandfather seems to have maintained and
brought up his grandsons, but during that time the father and
mother
380 Family Law - II
of the two minors were also living with him. However, these
facts are not sufficient to constitute the grandfather a guardian
within the meaning of the exception so as to make a gift by him
to them complete without any delivery of possession or
relinquishment of control over the property to him.. The father
of the minors was in a position to exercise his rights and
powers as a parent and guardian and to take the possession of
the property on behalf of his children.]
Thus, in the cases in question, the gift is invalid.]
(a) D executes a gift deed in favour of his nephew of a house in

which both of them were residing. He did not depart from the
house but paid taxes, etc. in the name of his nephew.
(b) Karim is the owner of a house which is in adverse possession

of Kapil. Karim by a registered deed makes a gift of that house
to Salim. Shortly thereafter Karim dies. Salim makes an
application to the court for recovery of possession of the house
from Kapil. Kapil argues that the gift is invalid.
Would your answer be different had Salim after the registration

of the deed, filed a suit in the court against Kapil for the
recovery of the house and Karim had admitted in the court that
he had gifted the house to Salim?
[L.C.II-94/95/96 (Supp.)]
A.2(a) Donor and Donee Living in the Same Property
Where the donor and the donee are living in the same house, the donor
need not necessarily depart from the house in order to make gift effective.
Thus, no actual delivery of possession is required in such a case; However,
there must be a clear intention to make the gift and to part with possession
of property (Ibrahim Bibi v Pakkir Mohideen AIR 1970 Mad. 17).
In Humera Bibi v Najm-un-Nissa (1905) 28 All 147, a Muslim
lady executed a gift deed in favour of nephew, of a house in which both
of them were residing. The property was transferred in the name of the
donee and the rents were recovered in his name. It was held that the
gift was valid although there was no physical delivery of possession.
3ut where the deed contained no recital that possession was given and
t was not delivered to the nephew and the lady continued to pay
municipal taxes, the gift was held invalid [Qamar-ud-din v Mt. Hassan
Jan (1935) 16 Lah 629]. The donor must divest himself of all control
in such cases. In the case in question, the gift made by D is valid.
A Muslim donor makes a gift in favour of the donee living with
him with the help of a gift deed containing a declaration that he was
transferring the property in favour of the donee. After the execution of
the gift, if the donor:
(i) makes a declaration in presence of a number of friends, and
entrusts the management of the property to the donee; or
(ii) hands over the papers of the property to him and authorizes
him to effect a mutation of names; or
(iii) authorizes the donee to take possession of the property; or
(iv) the donee starts paying municipal taxes in his name; or
(v) the property is transferred in favour of the donee and he
starts collecting rent in his name;
the gift would be complete despite no physical delivery of possession.
In Abdul Rahim v Sk Abdul Zabar (AIR 2010 SC 211), a Muslim
father executed a gift deed of his properties that he had purchased in
favour of his son in 1973. In 1975, he filed an application before the
Tehsildar for mutation of his son's name in his place as the owner. His
other son challenged the validity of this gift on the ground that since
the possession of the property was not handed over to the younger son
(donee) by the father, the gift was void. The main argument of the
donee was that as he was collecting rent from the tenants of the land
in his own capacity and not as an agent of the original owner of the
property, and an order of mutation was passed in his favour at the
behest of the donor, the requirement of delivery of possession of the
property was met with for completion of the gift.
The High Court held that as the son was collecting rent even
before the death of the donor, there was no material to show that the
father had divested himself of the title of the said property. The Apex
Court, however, accepted the claim of the son and held that the gift
382 Family Law - II
was valid as the essential requirement of delivery of possession of the

property was adequately met with in the case. It was held that the gift
was registered and contained a clear and unambiguous declaration of
total divestment of property. A registered document carries with it a
presumption of its valid execution. The agency of collecting rent by
donee during the lifetime of father came to an end and he started doing
it for his own self after the gift.
(b) Gift of Property held in Adverse Possession by Another
Where the subject matter of the gift is in the possession of a person
holding the property adversely to the donor, the gift is not valid, unless
the donor either recovers possession or does all that he can which is
necessary to put the donee in possession. In the latter case, the constructive
delivery of possession would take place making the gift valid.
Thus, where A gifts a land to B but never obtain possession of
land during his lifetime, the land being held adversely to A by C, and
after A's death, B sues C to recover possession, the suit will be dismissed,
because the gift was never completed by delivery of possession. But,
if B sues C and A joins him as a defendant and in the written statement
A admits the claim of B, then in such a case the gift is valid, because
the donor (A) has done everything in his power to complete the gift
(Maqbool Alain v Mst. Khodaija AIR 1966 SC 1194).
Therefore, in the case in question, the gift by Karim is invalid
unless he admits in the court that he had gifted the house to Salim.
(i) Jaffar executes a gift deed of a house in favour of John, a

Christian friend. The deed is duly registered but possession is
not delivered to John. After the death of Jaffar, his brother
contests the validity of the gift.
(ii) A gift made by Sultan to the child in womb of his sister/a gift by
M in favour of his daughter's son who is born three months
after the date of gift.
(iii) A widowed Muslim along with her minor son was living with her
father and not with her father-in-law. The father gave the
residential house under a deed of hiba to his daughter's son.
He delivered the deed to his daughter.
(iv) Gift of a life interest. [LC. 11-94/95; LC.I-95]

A.3 (i) The delivery of possession is an essential requisite of a gift
under Muslim law. If the property is with the donor he
must depart from it and the donee must enter upon
possession. It is only actual or constructive possession that
completes the gift, and registration does not cure the
defect. A Muslim can make a gift to a non-Muslim. In the
present case, due to non-delivery of possession during the
life time of Jaffar, the gift to John remained incomplete
and became invalid after his death.
(ii) The donee must be in existence at the time of making of
the gift. A gift to an unborn person may be made provided
the child is born within 6 months from the date of the gift,
because, in that case, it is presumed that the child was
actually existing as a distinct entity in the womb.
(iii) A gift can be made to a minor through his guardian -
father or grandfather, and in their absence to their executors,
and in their absence to the person under whose care the
minor is living e.g. mother or near relative or even a
stranger. In the present case, the minor's grandfather was
alive, though not living with him. Thus the gift must have
been made through the grandfather and not through the
mother of the minor.
(iv) Gift of a life interest - Ajift_oQife interest is valid under
both Sunni and Shia law. A 'life estate' implies the transfer
of the property to a certain person with certain
limitations as to its use and alienation. A life interest is
not enlarged into an absolute estate, as a life interest
implies the use of property only during the life time of
the donee.
Q.4 A Muslim registers, shortly before his death, a gift of his

residential house in favour of his only minor married daughter
living with him along with her husband. He stipulates in the gift
deed that he and his wife shall reside in the house till their
respective deaths and deposits the deed in a bank
384 Family Law - II
locker hired by his wife. His heirs challenge the validity of

hiba. Decide. Can the widow enforce her right to residence
in the house? [LC./-
96]
A.4 A Mohammedan can make reservation of rights in manqfi (i.e.
use of property) so long as the ayn (substance of a thing) is
transferred does not render the gift bad. In other words, a
condition in a gift that does not affect the substance of the
gift is valid.
Thus, in the present case, the gift with a stipulation that the donor
and his wife shall reside in the house (subject of gift) till their death, is
valid and so does the condition. The registration of gift deed
evince his intention to make a gift to his daughter; it does not
matter that he deposits the deed in a bank locker hired by his wife.
Thus, his heirs cannot challenge the validity of hiba. And the
widow can enforce her right to residence in the house.
Q.5 Write a short note on Marz-ul-Maut. [LC.i-

93/95/96]
Write a short note on 'Death-bed Gifts.'

[D.U.-2008/2009 (Supp.)]
Discuss the essentials of a gift made during marz-ul-maut.
[D.U.-201O\
Javed is suffering from cancer and is bedridden. He makes

a gift of his entire property in favour of his daughter Salma
who was looking after him during his illness. He dies within
two months of his making aforesaid gift leaving behind his
son Zafar and daughter Salma. Zafar challenges the validity
of the gift. Will he succeed? [C.L.C.-
92]
Abdul is suffering from cancer. When he comes to know

about it, he makes a gift of all his property in favour of his
wife. Six months later he dies. Examine the extent to which
gift will be operative under the Shia and Sunni Laws.
[D.U-2009][C.L.C.-93/96\
A.5 Marz-ul-Maut (Death-bed Gifts/Transactions)
apprehension
_when a person suffering from a marz (malady/illness) is under the
of maut (death) he is said to be suffering from marz-ul-maut or 'death-
illness'. It is an illness which is highly probable, will
ensue fatally Mulla defines it as a malady which induces an

apprehension of death in the persons suffering from it and which
eventually results in his death. The concept has immense legal
significance because certain acts of a Muslim relating to disposition
of his property, say through gift or wakf performed during marz-
ul-maut, are materially affected.)
An illness is death-illness when:
(i) Preponderance of apprehension of death - The illness must
be such that produces an apprehension of death in the mind
of the person suffering from it (irrespective of the fact
whether he is in bed or not). It is the subjective
apprehension or the sense of pressure of death in the mind
of the patient himself that is crucial to satisfy this
requirement and not what others around think of his state
of health. There must be a subjective feeling in the mind
of the patient that he is not going to recoverj
, (ii) External indicia - External indications must also reveal
proximate
*"* "danger of death, for example, the inability of the person
concerned to attend to normal avocations of life like prayers,
calls of nature, etc. This is the objective criterion in form of
physical incapacity to assess marz-ul-maut
iiii) Eventual death - The disease must result in death shortly
thereafter. Was the donor suffering at the time of the gift
from a disease which was the immediate cause of his
death
.These three elements are primarily questions of fact which must
be proved like any other fact. Thus, whether an illness is a death-
illness or not depends on the facts of each particular case.
Seriousness of illness cannot be a test for determining death-
illness. A disease may be very serious in its nature (e.g. cancer,
asthma, etc.) yet may not produce in the mind of a person suffering
from it the fear that it will result in death. Because the patient might
have become familiarized to the disease while accepting eventual
death as his lot. If it is a disease that is of long continuance, or it
is incurable or even if it cripples a person for life, that would not
be called marz-ul-maut.
(^Whether a disease is a Marz-ul-Maut or not depends upon
the donor's state of mind rather than the gravity of that disease.
What is important is that he should be under pressure of the sense of
"imminence of death." Thus, such harmless inflictions like
common cold resulting in pneumonia, or severe stomaches resulting
from undetected appendicitis might create that pressure and end
fatally, j
386 Family Law - II
However, this does not mean that diseases of long continuance,

to which the patient has become familiarized, can never reach a stage
where the sense of imminence of death overtakes a person in sick bed.
He might suddenly lapse into the apprehension of death staring him in
the face. [For example, an apprehension on the part of an old man that
merely because he is old, he may die suddenly, is not the man involved
in marz-ul-maut. But where an old woman of 65, suffering from
pneumonia, died within two hours of disposing of her property was
held to be in marz-ul-maut [Shamshad All Shah v Hassan Shah, PLD
1964 SC 143 (Pakistan)].^ Abdul Hafiz v Sahebbi (AIR 1973 Bom.
165), a Muslim of over 80, remained ill very seriously for four days.
On the day on which he died he made a gift just before his death. It
was held that the gift was made during death-illnessj
Though Hedaya prescribes that a disease which lasts a year or
more may not be marz-ul-maut, yet it cannot be taken as an absolute
rule in view of what has been said above. (A transaction by a Sunni
woman dying during labour pains, at the time of child-birth, is treated
as a death-bed transaction in Sunni law, but not so in Shia law.]
Transactions during Marz-ul-maut
A Muslim may dispose of his property through a Will, gift or create a
wakf during marz-ul-maut. While a Will remains unaffected by the concept
of marz-ul-maut, the other two transactions are substantially affected
/Though a Muslim has unlimited powers to dispose of his property
by way of gift but the donor's power to dispose of his property by a
gift during Marz-ul-Maut is subject to certain limitations. Under Muslim
law, gift made where a person is suffering from Marz-ul-Maut is subject
to very strict scrutiny for its validity.
[A death-bed gift (donatio mortis causa) partakes of the nature of
both the gift and legacy. The law of such a transaction is also partly
of Will and partly of gift. Thus, the gift must satisfy all the formalities
that are essential for making of any other gift (i.e. there must be
declaration, acceptance and the actual or constructive delivery of
possession during the lifetime of the donor); on the other hand, the gift
will be subject to some restrictions as in case of a Will. Thus, a Muslin
cannot make a gift of more than 1/3 of his property in favour of a non
heir unless the other heirs give consent; the gift to an heir during death
illness is altogether invalid unless the other heirs consent to it. The
peculiarities of Shia and Sunni laws also apply.
I In case the donor recovers from marz-ul-maut i.e. the
malady does not end in death, the gift during marz-ul-maut does
not fail but takes effect as to the entirety of the subject of gift
without the restrictions envisaged by the law of Wills. In other
words, it will become a gift simpliciter and ceases to be a death-
bed gift-j
Reasons for Combining Death-bed Gifts with Wills
Where a person makes a gift during an apprehension of death, his
"mental faculties, and state of mind is not on par with that of a
person who is not under such an apprehension. Illness coupled with
apprehension of death may weaken a man's physical and mental
powers and he is likely to make a disposition, which may harm him
spiritually and which may be to the detriment of his heirs. These
gifts are executed with a sense of urgency or haste and are "not a
result of well-contemplated actions of a reasonable man. It must be
noted that since the gift takes effect immediately, the owner has to
relinquish his control over the property as a person can make a gift
of his total property, the divesting would extend to the whole of his
estate without any return or consideration. This is the exact reason
why gifts executed by a person under an immediate apprehension of
death, stand on a different footing than ordinary gifts..Thus gifts
made during marz-ul-maut i.e. made under pressure and a sense of
imminence of death are operative to the extent of the one-third of
his property.,
LEADING CASE: ABDUL HAFIZ BEG v

SAHEBBI (AIR 1975 Bom. 165)
[In a Marz-ul-maut, what is required to be proved upon

the preponderance of probabilities is whether the gift was
made by the ailing person while under the 'apprehension
of the death' and further whether in such ailing he met
his death.
Once the subjective apprehension of death, its posibility
or preponderance is established and there is evidence of
accelerated dissipation of the life itself leading unto death
due to malady or affliction the dispositions made by such
person are treated as if it were an outcry against the
denomic fear of death itself and thus basically a non-juristic
actionOnce the subjective apprehension of death, its
posibility or preponderance is established and there is
evidence of accelerated dissipation of the life itself leading
unto
388 Family Law - II
death due to malady or affliction the dispositions made by

such person are treated as if it were an outcry against the
denomic fear of death itself and thus basically a non-juristic
action. |
, In this case, one Abdul Kadar was taken seriously ill from
" before 1st February and never recovered form that illness.
During the illness he was not even able to look after himself
and died shortly i.e. on 4th February. The deeds of gift were
alleged to be executed by him during this period. The gift
was
challenged and the court held the gift to be invalid as it was
hit by the doctrine of marz-ul-maut^S'mce there was no
report of the doctors nor was there any medical opinion
adduced, the Courts relied on the facts and circumstance
under which Abdul Kadar was taken seriously ill and died
four days thereafter.
The Court observed: In the celebrated work
"Principles
of Muhammadan Jurisprudence" by Abdur Rahim, the
learned
author had made a basic and notable effort to find out the
juristic principles behind the Mohammedan precepts of law
and
has dealt with the topic of death-illness at some great
length.
In his view, for which he takes his support of Heiaya and
Kifava the Murz-ul-maut is an illness from which death is
ordinarily apprehended in most cases and in particular cases
it
has actually ended in death. He observes that: "The
compilers
of Al-Maiallah lay it down that death-illness is that from
which
death is to be apprehended in most cases, and which
disables
the patient from looking after his affairs outside his house,
if
he be a male and if a female the affairs within her house
provided the patient dies in that condition before a year has
expired whether he has been bed-ridden or not. If the illness
protracts itself into a chronic condition and lasts like that
for
a year, the patient will be regarded as if he was in health
and
his dispositions will be treated like those of a healthy person......."
According to the learned author therefore while
applying the true test of this doctrine the real question
must be the illness and its character from which death could
be said to have been apprehended. He observed: "It is a
cardinal principle of Muhammadan jurisprudence that the
law takes note only of perceptible facts. The original
authorities do not lay down that the fears entertained by the
sick man himself form any criterion of death-illness. In fact,
it is an event of nature, the character of which cannot
depend upon what the patient might think of
Muslim Law of G i ft s 389
it. The law in placing an embargo on a sick person s juristic

acts puts it on the ground of illness and not on the
apprehension of death by the sick man. £The reason or motive
underlying the law is that illness weakens a man's physical and
mental powers and he is likely therefore as experience shows
to act under such circumstances to the detriment of his
spiritual interests by disappointing his heirs in their just
expectations".
In the present case, the court, however, observed: If this
proposition on the exposition of the doctrine and the test is the
correct one then the apprehension in the mind of the sick man
cannot have the higher emphasis than the illness itself. Jn other
words it is the proof of the illness that will be decisive of the
matter provided that has caused the eventual death of the man.
That proof can alone be tendered by the medical experts and
mere subjective apprehension of the person suffering illness
could not carry the doctrine to its logical endjHowever, Abdul
Rahim's view about the exposition of this aoctrine does not
appear to have found clear support in the judicial
pronouncements on the present doctrine.
(if there is preponderance of probabilities indicating that the
gift was made under the apprehension of death by the deceased
it is invalid under the law of marz-ul-mautl/frrafc/m Goolam
Ariff v Saiboo [(1907) ILR 35 Cal 1 (PC)]; Sofia Begum v
Abdul Razor: [AIR 1945 Bom 438]. It may be taken as settled
that crucial test of marz-ul-maut is the (proof of the subjective
apprehension of death in the) mind of the donor that is to say the
apprehension derived from his own consciousness as distinguished
from the apprehension caused in the minds of others and the other
symptoms like physical incapacities are only the indicia but not
infalliable signs or a sine qua non of marz-ul-maut.
. The court, in the present case, observed: It is true that
mere apprehension on the part of an old man who isviiot
afflicted by any malady would not be sufficient to answer the
doctrine. Mere accident of death which is a fact certain in
human life does not afford good reason to invalidate the
dispositions The basic juridical thinking and the pronouncement
of the Courts upon the instant doctrine clearly spell out that the
English phrase "death-illness" is not a sufficient adequate of
complete connotation of the term 'marz-ul-maut', for that
doctrine appears to comprehend an affliction or malady leading
unto death or involving the death of the person concerned.
390
Family Law - II
Because of that with the proof of death its causation and the
condition of person have its own and clear significance. Death is the
certain and central fact. Proximate danger of death in an illness it is
common experience, casts ominous elongated shadows discernible
along the lines of conduct of the person who is subject to the process
of dissolution of life. In that there is all the apprehension of
withering away of human faculties and rational capacities. Mind
under such condition would get seized by the fright of the final full-
stop and all winged and animated spirits involving free will clarity
and reasonable and purposeful action may be clipped and caught in
the mesh of progressing paralysis. The apprehension that the curtain
is wringing down on the life in such a state would easily grasp all
the consciousness as the physical malady surely affects every
faculty clouding the will and reason of human being. It is no doubt
that when such preponderance of an onset of physical and
psychological atrophy operating over the field of free and balanced
will can be inferred, the dispositions cannot be validated. It is
conceivable therefore that the pragmatic philosophy of Mohamedan
Law thought it wise to put under eclipse the acts and dispositions
done upon the promptings of a psychosis indicating apprehension or
clear fear of death either induced by or during the last suffering or
illness of the person dying. Law assumes that apart from the
dominant danger of loss of free will, such person may clearly lose
touch with his spiritual dictates and may hasten even against the
need of his clear obligations and interests to do the things which he
might not have normally and in times of health done.
All the circumstances surrounding the disposition that the
physical and psychological condition of the person afflicted, the
nature of the malady and the proximity of death to the actual act of
disposition and further the fact of death, are all the matters which
should furnish to the Court as a feedback to find out as to whether
the disposition is within the mischief of this doctrine. Once
probabilities hold out that there was even some degree of subjective
apprehension of death in the mind of the sick person who eventually
died, suffering from his last illness the subjective test implicit in
the doctrine is satisfied both on principle and policy.
Once *I-»e possihility otf~
clearly the burden shifts to that party who takes under the
disposition or sets up the title on its basis. Such party may
prove the facts and circumstance which would enable the Court
to hold that the disposition itself was not made while the suffering
person was under the apprehension of death for, as said earlier,
there may be several answers to the problem and mere accident
of death of the person making the disposition would not be
enough. An old man meeting natural death may be well disposed
to see that the matters are settled in his lifetime and such
dispositions would be perfectly valid and would not answer marz-
ul-maut. It is, therefore necessary for the party setting up the
disposition to rebut the proof that may be indicative that the
disposition is within the mischief of marz-ul-maut. That cannot
be done by merely relying on the abstract doctrine of onus of
proof or insisting upon the evidence of medical expert not
tendered by the opposite party. In a given case such evidence
may not be available at all.
The court held: It is thus obvious that if there is preponderance
of probabilities indicating that the gift was made under the
apprehension of death by the deceased it is invalid under the law
of marz-ul-maut. All the established facts in the present case
indicates that the gift is within the law of marz-ul-maut as understood
by the Muslim law precepts and cannot be questioned.]
Distinction between Gifts made during Marz-ul-maut and Donatio

Mortis Causa
1. Under Donatio mortis causa, as incorporated in Sec. 191 of the
Indian Succession Act, 1925, only movable property can form
the subject of gift; whereas in the case of gift made during
Marz-ul-maut there is no such limitation and property of any
description whether movable or immovable may be gifted.
2. In Donatio mortis causa there is no limitation as regards to
persons to whom or the extent to which the property can be
disposed of. No Marz-ul-maut gift can operate for more than
one-third of the donor's net assets unless with the consent of
all the heirs. Neither it can be made in favour of one heir
without the consent of all the others.
3. In case of Donatio mortis causa, if the donor recovered from
the illness, the gift entirely fails. Under the Muslim law, a gift
made during Marz-ul-maut would be valid like ordinary gift
Quba) to the whole extent if the donor subsequently recovers.

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FAMILY LAW - II

[LEADING CASES, MATERIALS & Q.A.]

[Hindu Law relating to Joint Family, Coparcenary,

Dr. ASHOK K. JAIN

Printed at: G.S. Offset, Delhi.

9. MUSLIM LAW OF INHERITANCE.....................297-326

10. MUSLIM LAW OF WILLS.....................................327*352

11. MUSLIM LAW OF GIFTS......................................353-392

AT. Vasudevan' case 76

Hindu Joint Family1

The chief characteristics of a Hindu joint family (Mitakshara) are:

one or all of them, it does not necessarily imply that it has

A 'Mitakshara coparcenary' is a narrower body as compared to a

Coparcenary is a narrower body of persons within a joint family, and

P. Pradhan Saxena, Family Law II, 3nd ed.T p. 82 (2011).

In the above example, if A (Last holder) dies, coparcenary

A Mitakshara coparcenary comes to an end by partition or by the

Mom Vishwanaih v Gane.ih Vithul, 1LR (1873) 10 Bom 444, gives an

LEADING CASE: MORO VISHWANATH v GANESH VITHAL [ILR

[A partition can be demanded by one more than four degrees

ancestor, more than four degrees removed, of property originally

of the family property has taken place, and D, E,

Essential Characteristics of Coparcenary5

5. Elaborate the essential characteristics of a Mitakshara

property of a person to another during the lifetime of

(3) Limitation of tour generations

(4) Death of all the male

A is the holder of the ancestral property. He has two sons B and C. B

Distinction between Joint Tenancy and Hindu Coparcenary

Tenancy-in-common: It is another kind of joint tenancy. Two or more

Changes in Mitakshara Joint Family and Coparcenary by H.S.

September 2005. It has effected some significant changes in the

(a) by birth become a coparcener in her own right (irrespective of

she will continue to be a coparcener as well as member of joint Hindu

MITAKSHARA v DAYABHAGA SCHOOL

14. Distinguish between a Mitakshara and a Dayabhaga Coparcenary [D.U-2010]

(iii) Under Mitakshara law, the coparceners have community of

(i) his son, widow and stepmother;

(ii) his son and daughter-in-law. [C.LC.-92*?5j

(b) Examine whether the following constitute a joint family:-

(i) Husband and wife;

(ii) Widows of two brothers. [C.LC.-93]

(c) A Mitakshara joint family consists of the following:-

Is S6 a coparcener? And if so why? If your answer is in the

(d) Whether a joint family includes - a married daughter, along

wives and unmarried daughters. However, for the purpose of tax

[Property in the hands of so\e surviving coparcener could be taxed

The court, however, observed: The Supreme Court, in its recent

(According to a learned writer (Paras Diwan

Decision of the case in question

S6 is not a coparcener; he can become so if H dies, for then

(I) Obstructed and Unobstructed Heritage

(1) JOINT FAMILY PROPERTY

1. What is meant by 'coparcenary property" under Mitakshara law? Discuss its

reference to JFP as a narrow body of those specific members of

Types/Sources of Joint Family Property

2. Define the concept of 'ancestral property' under Mitakshara law and

the income of such property will be joint family property

If a father effects partition of his separate property, it may mean that

(2) SEPARATE OR SELF-ACQUIRED PROPERTY

, A member of the Hindu joint family or coparcener can, under

Sources of Separate Property

10) Benefits of insurance policy - In every case, where joint

Presumption regarding Joint Family Property