PROJECT

FAMILY LAW - II

On

Understanding several aspects of Partition and

comprehending CARA guidelines

S No. Particulars Page No.

1. Declaration of Originality i

2. Certificate ii

3. Acknowledgement iii

4. Introduction 1- 10

5. Research Methodology
 Problem of the Study
Rationale of the Study

Objectives of the Study

Review of Literature
Concept and Variables
Hypothesis

Research Design- Nature of Study, Sources of

Study

Chapterization of the Study

Time Duration of the Study
Limitations of the Study
Contribution of the Study
6. Chapterization

Chapter - 1
Chapter - 2
Chapter - 3
Chapter - 4
7. Major Findings, Conclusion and Suggestions

8. Bibliography
TABLE OF CONTENTS

INTRODUCTION

India, being a cosmopolitan country, allows each

citizen to be governed under personal laws relevant to religious views. This extends to personal
laws inter alia in the matter of marriage and divorce.
As part of the Hindu Code Bill, the Hindu Marriage Act was enacted by Parliament in 1955 to
amend and to codify marriage law between Hindus. As well as regulating the institution of
marriage (including validity of marriage and conditions for invalidity), it also regulates other
aspects of personal life among Hindus and the applicability of such lives in wider Indian society.
The Hindu Marriage Act provides guidance for Hindus to be in a systematic marriage bond. It
gives meaning to marriage, cohabiting rights for both the bride and groom, and a safety for their
family and children so that they do not suffer from their parental issues1.
Section 2 of the Hindu marriage act defines the applicability of the act as follows;
The Act applies to three types of persons: (i) who are Hindus by religion in any of its forms or
developments. (ii) who are Buddhists, Jains or Sikhs by religion and (iii) who domiciled in the
territory to which this Act extends and not a Muslim, Christian, Parsi or Jew by religion.
This Act, however, will not apply to those; (i) why have renounced the Hindu religion and have
become converts to some other religion and (ii) persons, who descended from Hindu ancestors
and on account of marriage or on account of some new occupation converted into new
community having their own religion and usages (iii) children, whose either parents though a
Hindu, are not brought up as Hindus.
To understand the concept of HMA it is vital to first understand who is a Hindu?
Till this day there is no precise definition of the term ‘Hindu’ available either in any statute or in
any judicial decision. However, since Hindu law applies to all those persons who are Hindus. It
is necessary to know who are Hindus. The answer lies in the question; to whom does Hindu law
apply?

The persons to whom Hindu law applies may be put in the following three categories.
1. Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion.

2. Any person who is born of Hindu parents (when both the parents or one of the parents is a
Hindu, Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and

3. Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any
other law.

1
Hindu Marriage Act, 1955., Net LawMan, January 2020.
https://www.netlawman.co.in/ia/hindu-marriage-act-1955#:~:text=As%20part%20of%20the%20Hindu,codify
%20marriage%20law%20between%20Hindus.&text=It%20gives%20meaning%20to%20marriage,suffer%20from
%20their%20parental%20issues.
Before the Hindu marriage act was codified the Hindu society was governed by the Hindu
schools of philosophy i.e., The Mitakshara and Dayabhaga schools. Which is briefly described
below.
The Questions a) Severance of status or interest b) Division of Property by metes and bounds are
related to the concept of Partition.
c. Who can adopt a child under the Central Adoption and Resource Authority (CARA)
guidelines?
d. Indispensable duties is related to the Karta of the family in the joint family.

RESEARCH METHODOLOGY

The study has been carried out with the help of secondary data available in the internet. The
information regarding the topic has been taken from the internet while the information of CARA
and other relevant legal points have been taken from the official site of Government of India and
various other sites.

The data has been analyzed after collaborating various sources of data to come to a fruitful
conclusion with regard to the topic chosen.

OBJECTIVES OF STUDY

This study seeks to achieve the following objectives:

1. To study and understand the provisions Partition.
2. To see what changes have occurred after codification of HMA, 1955.
3. To study about the working of CARA.

RESEARCH DESIGN:

NATURE OF STUDY

The research project is descriptive and analytical in nature

SOURCES OF DATA COLLECTION

This project work is largely based on the analysis of various articles and journals written on
proclamation of Emergency.

 Secondary sources of data have been used in this study through:

 Internet

 Articles

METHOD OF DATA COLLECTION

As the researcher has already mentioned that she has used secondary sources of data. The
secondary data are readily available from the other sources and as such there are no specific
collection method.
As the researcher can obtain data from both the external and internal sources here the researcher
has used external sources like internet where wide knowledge about different areas are easily
available.

CHAPTERIZATION AT A GLANCE

CHAPTER 1- Understanding the concept of Mitakshara and Dayabhaga.

CHAPTER 2- Severance of status or interest.
CHAPTER 3- Division of property by metes and bonds.
CHAPTER 4- Who can adopt a child under the Central Adoption and Resource Authority
(CARA) guidelines.
CHAPTER 5- Indispensable duties.

SCOPE AND LIMITATION OF THE STUDY

The scope and limitation of the project is up to the various provisions of emergency and
emergence of Congress and Janta Dal party in India, its impact in the country and its effect on
working of the parliamentary system.

CHAPTERIZATION

CHAPTER 1- Understanding the concept of Mitakshara and Dayabhaga.

Schools of Hindu law have widened the scope of Hindu law and explicitly contributed to its
development.

The two major schools of Hindu law are as follows-

 Mitakshara 
 Dayabhaga

Mitakshara School

Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a running
commentary of the Smriti written by Yajnavalkya. This school is applicable in the whole part of
India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However
different parts of the country practice law differently because of the different customary rules
followed by them.

Mitakshara is further divided into five sub-schools namely

 Banaras Hindu law school

 Mithila law school
 Maharashtra law school
 Punjab law school
 Dravida or madras law school

These law schools come under the ambit of Mitakshara law school. They enjoy the same
fundamental principle but differ in certain circumstances.

Dayabhaga School

Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the
most important schools of Hindu laws. It is considered to be a digest for the leading smritis. Its
primary focus was to deal with partition, inheritance and joint family. According to Kane, it was
incorporated in between 1090-1130 A.D.
Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial
principles of inheritance. The immediate benefit of this new digest is that it tends to remove all
the shortcomings and limitations of the previously established principles and inclusion of many
cognates in the list of heirs, which was restricted by the Mitakshara school.

In Dayabhaga school various other commentaries were followed such as:

 Dayatatya 
 Dayakram-sangrah 
 Virmitrodaya
 Dattaka chandrika2

Difference between Mitakshara and Dayabhaga in terms of joint Property

1. Under Mitakshara school right to ancestral property arises by birth. Hence the son
becomes the co-owner of the property sharing similar rights as of fathers. While in
Dayabhaga school the right to ancestral property is only given after the death of the
last owner. It does not recognize the birth right of any individual over an ancestral
property.
2. Under the Mitakshara school the father does not possess the absolute right to alienate
the property but in Dayabhaga the father has absolute right of alienation of the
ancestral property as he is the sole owner of that property during his lifetime.
3. Under Mitakshara school the son attains the right to become the co-owner of the
property he can ask for the partition of the ancestral property even against the father
and can demand for his share but in case of Dayabhaga school son has no right to ask
for the partition of ancestral property against his father.
4. Under Mitakshara school the survivorship rule is prevalent. In case of the death of any
member in the joint family, his interest shall pass to other members of the family.
While in case of Dayabhaga school the interest of the member on their death shall
pass on to their heirs like widow, son, daughters.

2
Subodh Asthana, Important pointers about the sources & schools of Hindu law, Ipleaders, September 10,2019.
https://blog.ipleaders.in/sources-schools-hindu-law/#:~:text=Under%20Mitakshara%20school%20right
%20to,death%20of%20the%20last%20owner
 5. Under the Mitakshara school the members can’t dispose of their share of property
while undivided while in Dayabhaga the members of the family enjoy absolute right
dispose of their property3.

CHAPTER 2 - Severance of status or interest.

Partition in literal sense means severance of joint status by the members of a Hindu undivided
family. In Hindu Society, Jointness of a family is a normal condition. Hence, there is a
presumption in law that every family is a joint family, unless shown to be separate in mess,
status and worship. Partition of joint family property is basically a division of property held
jointly by Co-Owners, where every co-owner owns every parcel of the property, jointly with
others.

The Dayabhaga and The Mitakshara are the two schools of law that govern the law of succession
of the Hindu Undivided Family under Indian Law.

Under the Mitakshara school, partition means- Severance of status or interest and actual division
of property in accordance with the shares by metes and bounds.

under Dayabhaga law, partition means- only division of property by metes and bounds.

Under the Mitakshara school partition means two things:

severance of status and division of property by metes and bounds. Severance of joint status or
interest Expression of intention. —What is necessary to bring about a severance is a clear and
unequivocal expression, by words or conduct, of an intention to partition. Once members of the
joint family agree or express an intention to partition, severance of status takes place.' Once
intention to partition is expressed it results in partition, share of each coparcener becomes clear
and once it is clear that they hold the property as tenants-in-common and not as joint tenants.
The law in this respect is well-settled. The Privy Council in Syed V. Jorawai^ observed: "It is a

3
Subodh Asthana, Important pointers about the sources & schools of Hindu law, Ipleaders, September 10,2019.
https://blog.ipleaders.in/sources-schools-hindu-law/#:~:text=Under%20Mitakshara%20school%20right
%20to,death%20of%20the%20last%20owner.
settled law that...a severance of estate is effected of an unequivocal declaration on the part of one
of the joint holders of his intention to hold his share separately, even though no actual division
takes place...”

A coparcener expressing an intention to sever need not assign any reason. Motives are also
irrelevant. Nor does it matter, in what form and what manner communication of an intention is
made. However, the expression of intention 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. Mere separation from
commonness does not necessarily amount to severance of status if not unaccompanied by
unequivocal declaration of intention to partition. The question of severance of status sometimes
gets complicated in the revenue cases, as joint family may make a fake or notional partition to
avoid the incidence of taxation. The fakeness or genuineness of a partition should not be
confused with an arrangement that a joint family may make for convenience sake under which
coparceners divide the property while remaining joint. Such arrangements are recognized in law.
They do not amount to partition and from them no inference can be drawn that a partition has
taken place, howsoever long an arrangement may continue unless it is shown that subsequently
coparceners agreed to partition and apportion the respective portions, of properties in their
possession. In Girjanandini v. Bijendra, the Supreme Court said that merely because one member
of a family severs his relations there is no presumption that there is a severance between the
other members. The question whether there is a severance between the other members is one of
fact, to be determined on a review of all the attendant circumstances. Where there is severance
between two different branches of a joint family, severance between the members of the
branches inter se may not, in the absence of expression of an unequivocal intention, be inferred.
But if a family consisting of eight brothers and their sons, transfers all its assets to a limited
company, and the eight brothers and their sons secure equal number of shares in the company, it
amounts to severance of status."

CHAPTER 3- Division of Property by metes and bounds.

Under the Mitakshara school, partition means- Severance of status or interest and actual division
of property in accordance with the shares by metes and bounds.

under Dayabhaga law, partition means- only division of property by metes and bounds.

Partition by metes and bounds.—Partition in its larger sense consists in a division by which the
share of each coparcener with respect to all or any of the joint property is fixed, and once shares
are defined, the partition in the sense of severance of status or disruption of joint status is
complete, but after the shares are so ascertained, the parties might elect either to have a partition
of their status by metes and bounds, i.e., actual division of property or continue to live together
and enjoy their property in common as before. Whether they did one or the other will affect the
mode of enjoyment, but not the tenure of the property or their interest in it. This is a situation
where joint ownership has been turned into joint possession and enjoyment until the physical
partition, takes place according to the shares standing in the name of sharers at the date of
severance of status. In short, partition by metes and bounds means the physical division of joint
family property.

CHAPTER 4- Who can adopt a child under the Central Adoption and Resource Authority
(CARA) guidelines.

Central Adoption Resource Authority (CARA) is a statutory body of Ministry of Women &

Child Development, Government of India. It functions as the nodal body for adoption of Indian
children and is mandated to monitor and regulate in-country and inter-country adoptions. CARA
is designated as the Central Authority to deal with inter-country adoptions in accordance with the
provisions of the Hague Convention on Inter-country Adoption, 1993, ratified by Government of
India in 2003. CARA primarily deals with adoption of orphan, abandoned and surrendered
children through its associated /recognized adoption agencies.

Who can adopt?

Any Indian resident parent, whether already registered or new registering can adopt.

Any foreigner living in India or abroad can adopt a child.

There’s also an option of Inter and In- country adoption.

Although there are some basic requirements which needs to be completed in order to get a child.

Eligibility criteria for prospective adoptive parents

The prospective adoptive parents shall be physically, mentally and emotionally stable,
financially capable and shall not have any life-threatening medical condition.

Any prospective adoptive parents, irrespective of his marital status and whether or not he has
biological son or daughter, can adopt a child subject to following, namely: -

1) The consent of both the spouses for the adoption shall be required, in case of a married
couple;

2) A single female can adopt a child of any gender;

3) A single male shall not be eligible to adopt a girl child;

4) No child shall be given in adoption to a couple unless they have at least two years of stable
marital relationship.

The age of prospective adoptive parents, as on the date of registration, shall be counted for
deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of
different age groups shall be as under: -

Age of the child Maximum composite age of Maximum age of

prospective adoptive parents single prospective
(couple) adoptive parent

 Up to 4 years  90 years  

45 years

Above 4 and up to 100 years 50 years

8 years
 Above 8 and up to 110 years 55 years
18 years

 In case of couple, the composite age of the prospective adoptive parents shall be counted.
 The minimum age difference between the child and either of the prospective adoptive
parents shall not be less than twenty-five years.
 The age criteria for prospective adoptive parents shall not be applicable in case of relative
adoptions and adoption by step-parent.
 Couples with three or more children shall not be considered for adoption except in case
of special need children as defined in sub-regulation (21) of regulation 2, hard to place
children as mentioned in regulation 50 and in case of relative adoption and adoption by
step-parent4.

CHAPTER 5- Indispensable duties

Introduction-

The concept of Karta is a continuous ancient concept. It has been from generations

to generations since the origin of Hindu Law. The most senior male in the Hindi
Joint Family holds the position of ‘Karta’. However, it is important to understand
that Karta also acts as a manager of joint family and its properties. He enjoys a
wide power including to be the representative of the family, welfare for the minors
and females in the family, working as a manager, administrator, and other
important affairs and liabilities of the family. Therefore, it can be seen that Karta

4
Central Adoption Resource Authority, Ministry of Women and Child Development, Government of India.
http://cara.nic.in/
enjoys a unique position. The term “Karta” was defined in the case Suraj Bunsi
Koer v. Sheo Prasad.
Karta in Hindu Undivided Family

Who is a Karta?

The male head of the family is considered to be ‘Karta’ or ‘Manager’. Provided he must not be
suffering from any mental or physical deficiency. Mere health issues such as old age,
handicapped, weakness or illness of a person cannot remove him from the position[3] and
continues as long as he lives unless he resigns with his own consent. He looks after the family
and the property as a guardian/manager (not as agent or trustee). He does all the activities in
favor of the family and its interest.

If the Karta, wishes to resign the position then he can freely leave it. After consent of family it is
not necessary that the oldest person from succeeding generation shall hold the particular

position.

Who can be Karta?

It is assumed that the most senior person of the family is recognized as the ‘Karta’ of the family.
Any person from succeeding generation cannot be karta of the family till the most senior male of
the family is alive. However, this is possible if the previous karta leaves his right due to health
issues or any such reason.

Legal Position of Karta

The karta basically represents or acts as guardian and more of it as a manager to the members of
the joint family. He can create a partnership with the other family members where he invests his
capital and others invest their labor and skill but he does not create a principal-agent relationship
with the family members which states that his position is ‘sui generis’5.
The karta though has a wide management power but this sovereignty and fiduciary relationship
does not create him to be trustee. This means that no person can ask him about what he spent
unless there occur the charges of misappropriation.
5
Diva rai, Power and positions of a Karta under Hindu law, Ipleaders, Feb 27, 2020.
https://blog.ipleaders.in/power-and-position-of-a-karta-under-hindu-law/
If any person lies on the charges of misappropriation on karta then, the burden of proof lies on
that person. He has to then prove that the act of karta was malafide in nature.
The karta can also file the law suits in order to safeguard the interest of family members. Besides
this, he can also represent the family in any legal proceeding even if he is not named.  He can
even make a compromise provided to be in good faith for the benefit of the family, including
minors. Thus, it can be seen that the powers and position of the karta is vast and more than just a
manager.

Responsibility of Karta or Indispensable duties of karta

1)    Maintenance

Having the wide powers and liabilities it is the responsibility of karta to maintain the family
members. If the karta does not takes care of the family then he can be even sued in the court for
maintenance.

2)    Marriage

For the unmarried members of the family, the karta is liable for their marriage especially the
daughters. The funds required for the marriage are taken from the joint family ownership and
these expenses can be incurred by joint family funds.

3) Accounts at time of Partition

It is stated in the statutes that once; a partition is done it is difficult to unite them. However, if the
partition occurs in a family then it is considered that the joint family status comes to an end.
Under Mitakshara Law it means severance of interest and status which means that if members
wish to separate from joint family then he has such right. After the severance, the karta will
render the accounts in a manner as that of trustee or agent.

4) Representation

The power of karta to be representation of the family is discussed above. Apart from having
power of such representation, it is also his responsibility to represent the family in the
government activities or in front of other outsiders. He is liable to pay all the taxes and can even
sue or be sued on behalf of other family members6.

6
Rebecca Furtado, Karta of a Hindu Joint Family- Powers and responsibilities, Ipleaders, Aug 3 2016.
https://blog.ipleaders.in/karta-hindu-joint-family-powers-responsibilities/
 CONCLUSION

Question 1 and 2 comes under the concept of Partition in HMA. The Mitakshara law of school
talks about both Severance of joint status and division of property by metes and bounds.
However, under Dayabhaga partition only means by metes and bounds. Severance of joint status
or interest Expression of intention. —What is necessary to bring about a severance is a clear and
unequivocal expression, by words or conduct, of an intention to partition. Once members of the
joint family agree or express an intention to partition, severance of status takes place.' Once
intention to partition is expressed it results in partition, share of each coparcener becomes clear
and once it is clear that they hold the property as tenants-in-common and not as joint tenants.

Partition by metes and bounds.—Partition in its larger sense consists in a division by which the
share of each coparcener with respect to all or any of the joint property is fixed, and once shares
are defined, the partition in the sense of severance of status or disruption of joint status is
complete, but after the shares are so ascertained, the parties might elect either to have a partition
of their status by metes and bounds, i.e., actual division of property or continue to live together
and enjoy their property in common as before. Whether they did one or the other will affect the
mode of enjoyment, but not the tenure of the property or their interest in it. This is a situation
where joint ownership has been turned into joint possession and enjoyment until the physical
partition, takes place according to the shares standing in the name of sharers at the date of
severance of status. In short, partition by metes and bounds means the physical division of joint
family property.

Question 3 is related to Central Adoption Resource Authority (CARA) is a statutory body of

Ministry of Women & Child Development, Government of India. It functions as the nodal body
for adoption of Indian children and is mandated to monitor and regulate in-country and inter-
country adoptions. And Question 4 talks about Responsibility of Karta or Indispensable duties of
karta.

It is so concluded that the karta holds the position of the manager or guardian in the Hindu
Undivided Family. He does not act as a trustee or agent. He not only holds the power of
management but also to manage accounts, provide maintenance, enter into contracts, take loans
or pay debts for which he has a wider power. However, the power vested in karta must not be
used in a malafide intention. Since all the coparceners vest their trust in him.
If the karta performs any such activity that is against the interest of family members then for
such a case the law has provided them several remedies. The remedies are to prevent themselves
from such illicit and immoral behavior of the Karta7.

REFERENCE
7
Shruti Gulati, Karta: - Position, duties and Powers, Our Legal World, April 4, 2020.
https://www.ourlegalworld.com/karta-position-duties-and-powers-our-legal-world/
 http://cara.nic.in/

 https://www.ourlegalworld.com/karta-position-duties-and-powers-our-legal-world/

 https://blog.ipleaders.in/hindu-law-of-partition/

 https://www.netlawman.co.in/ia/hindu-marriage-act-

 https://blog.ipleaders.in/sources-schools-hindu-

 http://incometaxmanagement.com/Pages/HUF/4-Mitakshara-Law-Dayabhaga-Law-
HUF.html