1.

Discuss Position, Powers, Privileges and obligations of Karta of the Hindu

Joint Family. Can women be the karta ol a Hindu Joint Family ?

Who is Karta?

In Hindu joint family, the senior-most male ascendant is the head of the family
and known as Karta. Karta is the manager of the family. He takes care of the
family and its property. The relationship of Karta with the other members of the
family is not that of a partner, agent or principal. He stands in a fiduciary
relationship with the members of the family. The Karta of the family has unlimited
liability, also he is not responsible to any member of the family except in case of
fraud or misappropriation.

Characteristics of Karta
The characteristics of a Karta are:

 Karta’s position is unique (sui generis). His position is independent and

no one can be compared with him among the family members.
 He had unlimited power but even if he acts on behalf of other members,
he can’t be treated as a partner or agent.
 He controls all the affairs of the family and has wide powers.
 He is responsible to no one. The only exception to this rule is, in case of
fraud, misappropriation or conversion, he is held responsible.
 He is not bound to invest, save or economise. He has the power to use
the resources as he likes, unless he is not responsible for the above
mentioned charges.
 He is not bound to divide the income generated from the joint property
equally among the family members. He can discriminate one with another
and is not bound to be impartial. The only thing is he should pay
everyone so that they can avail some basic necessities like food, clothing,
education, shelter etc.

Powers of a Karta
The powers of Karta are:

Powers of Management
Karta’s power of management is absolute. No one can question the duties of the
Karta like, he can manage or mismanage the property, family, business any way
he likes. Karta cannot deny the maintenance and occupation of property to any
member. Karta is not liable for the positive failures.

Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the
Karta. Then it is the responsibility of the Karta to allot the funds to the members
for fulfilment of their needs. Karta controls the expenditure of the funds. The
scope of his power is only to spend such funds on family purposes like
management, maintenance, marriage, education etc.

Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts and
decisions of the Karta are binding on the members. Karta can enter into any
transaction on behalf of the family.

Right to Compromise
Karta has the power to compromise the disputes relating to management or family
property. He can compromise family debts, pending suits and other transactions.
The compromises made by the Karta, can be challenged in court by heirs only on
the ground of malafide.

Power to refer a Dispute to Arbitration

Karta can refer the disputes relating to management, family property to the
arbitration. If the award by the arbitration is valid then it will be binding on the
members of the joint family.

Power to Contract Debts

The Karta exercises an implied authority to contract debts and pledge the credits
and property of the family. Such acts are bound to be followed by the members of
the family. Even, Karta when taking a loan for the family purpose or for family
businesses then joint family is liable to pay such a loan.

Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against
the family. The contracts are binding on the members of the joint family.

Power of Alienation
No one among the family members can alienate joint family property. But Karta
has the power to alienate the property under three circumstances.

1. Legal Necessity
2. Benefit of estate
3. Indispensable duties

Legal Necessity
This term has not expressly defined in any judgement or in any law. It includes all
the things which are deemed necessary for the members of the family.

Dev Kishan Vs. Ram Kishan AIR 2002

In this case, the plaintiff filed a suit against the defendant. Both plaintiff and
defendant are members of the Joint Hindu Family. Defendant 2 is the Karta, who
is under the influence of Defendant 1, sold and mortgaged the property for an
illegal and immoral purpose which is for the marriage of minor daughters Vimla
and Pushpa. The defendant contended that he took the loan for the legal
necessity.

The court held that the debt was used for the unlawful purpose. Since it
contravened the Child Marriage Restraint Act, 1929, therefore, it can be called as
lawful alienation.
Benefit of estate
Benefit of Estate means anything which is done for the benefit of the joint family
property. Karta as a manager can do all those things which are helpful for family
advancement.

Indispensable Duties
These terms refer to the performance of those acts which are religious, pious or
charitable. Examples of indispensable duties are marriage, grihapravesham etc. A
Karta can alienate the portion of the property for the charitable purpose. In this
case, the power of the Karta is limited i.e he can alienate only a small portion of
the family property, whether movable or immovable.

Loan on Promissory Note

When Karta takes any loan for any family purpose or executes a promissory note,
then all the members and the members who are not the party to the note will be
sued if the loan is not paid. But, Karta is personally liable on the note.

Liabilities of a Karta
 Liability to maintain- Karta is to maintain all the members of the Joint
Family. If he does not maintain any member then he can be sued for
maintenance and also can be asked for compensation.
 Liability of render accounts- As far as the family remains joint, Karta
is not supposed to keep accounts of the family, but when partition takes
place at that time he will be liable to account for family property. If any
of the heir is not satisfied with his accounts, then he can constitute a suit
against Karta to bring the truth and to know any misappropriation is done
by Karta or not.
 Liability of recovery debts due to the Family- He has the liability to
realize the debts due to the family.
 Liability to spend reasonably- He has the liability to spend the joint
family funds only for the family purposes.
 Liability not to eliminate coparcenary property- It is the liability of
the Karta not to alienate the coparcenary property without any legal
necessity or benefit to the state.
  Liability not to start new Business- It is the liability of the Karta not
to start a new business without the consent of other coparceners.

Responsibilities of Karta 
The duty of a Karta is to provide clothing, food, shelter etc, to the members of the
joint family. There are several responsibilities of Karta which include:

Maintenance
Every member of the family including Karta has the right to maintenance. The
Responsibility of Karta is to maintain all the members of the family. If he does not
maintain any member properly, then he can be sued for both maintenance and
dues of maintenance. 

Marriage
The Karta is responsible for the unmarried members especially the daughters. The
expenses for the marriage will be taken out of the Joint Family property.

Representation
Karta acts as a representative on behalf of the family. This is because he must
perform some responsibilities and liabilities on account of the family. He must pay
all the dues and the taxes. He can be sued on behalf of the family during any
agreement or dealings.

Accounts at the time of Partition

Status of a joint family comes to an end due to the partition. Under Mitakshara
Law, it means:

Severance of status and interest

It’s an individual decision, where a member wants to divide himself from the joint
family and enjoy undefined and unspecified share separately.
Actual division of Property
It is the consequence of the declaration of the desire to cut off. However, it is a
bilateral action.

Opening of assets means the inquiry of the assets of joint family. This includes all
the items of family property. Karta under Mitakshara Law is required to disclose
the accounts only if there are any charges of fraud, misappropriation or
conversion of assets or property of the joint family against him. If there is no
proof of misappropriation, fraud or conversion against the Karta, the coparceners
who follow the partition process cannot demand the disclosure of the past dealings
of Karta with joint family property or assets. After the severance of status, the
Karta must give the accounts of the expenditure and income in a manner similar
to which a Trustee or agent has to render accounts. This implies that Karta has to
report all the profits.

2. Define the term partition. What Property can and cannot be

partitioned ?

Meaning, Effect and Essence of Partition

Partition is an eventuality in Hindu Joint family through which the joint status of a
family comes to an end. Partition gives rise to new joint families or nuclear
families. For partition, there must be at least two coparceners in the Hindu joint
family because then only there will be a state of jointness amongst the
coparceners which will come to an end by partition. It implies that until and unless
a coparcenary exists in a family, partition cannot take place.

The concept of coparcenary is an innate part of the Hindu joint family property.
Each coparcener has an inherent title to the joint property and all the coparceners
together own the whole property.

Partition generally means that joint ownership has transformed to separate

ownership of the individual coparceners. Thus partition is also defined as “the
crystallization of the fluctuating interest of a coparcenary property into a specific
share in the joint family estate.”  

The concept of partition is applied with different rules under the two schools of
Hindu law.
Dayabhaga School: Under Dayabhaga school, partition means division of
property in accordance with the specific shares of the coparceners i.e. partition by
metes and bounds.

Mitakshara School: Under Mitakshara school, partition not merely means

division of property into specific shares. It basically means severance of joint
status. Essential of coparcenary is important but existence of joint property is not
essential for demanding partition. It is a law by which the joint family status
terminates and the coparcenary comes to an end. All that is necessary to
constitute a partition is a definite and unequivocal declaration of the intention by a
coparcener to separate himself from the family.

Effect of Partition

Partition leads to separation from the joint family. After partition, a person is free
from the rights, duties and responsibilities towards the joint family thereof. On
partition the shares of the coparceners get defined and stop fluctuating further
due to births and deaths in the family. Property acquired by a coparcener after
partition is treated as his self acquired/separate property which devolves by
succession.

Essence of Partition

Partition must not be confused with the de facto division of property and allotment
of the shares. Partition by metes and bounds is not mandatory ingredient for
completing the process of partition. The physical division of the property affects
the mode of enjoyment and management only and not the nature of its tenure.
Strictly speaking, a partition is said to be completed the moment the severance
joint status takes place.

Types of Partition
Coparcenary is a creature of Hindu law. The concept of coparcenary encompasses
community of interest and unity of possession. Each coparcener’s right extends to
the whole joint family property; though each one of them has an interest in the
whole family property, he has no definite share therein. Partition can take place in
two ways:

 De jure Partition: When the community of interest is broken or divided

and converted into a fix share leaving no scope for the application of
doctrine of survivorship, this type of partition is known as de jure
partition or in other words, the severance of the joint status.
  De facto Partition: Unity of possession can be maintained even after a
severance of joint status. The shares might get fixed but no coparcener
can claim any property as falling into his exclusive share. It is not clear
that which property will go to which coparcener. When this unity of
possession is broken by an actual physical division of the property and
replaced by exclusive possession, it is called as de facto partition or
partition by metes and bounds.

Subject Matter of Partition

Generally the entire joint family property constitutes the subject matter of the
partition. Separate or self-acquired property of any member of the family is not
eligible to be divided amongst all the coparceners of the family on partition.

If partition of a property can be done without shattering the intrinsic value of the
whole property, such partition is mandatory to be made. On the contrary, if a
partition cannot be made without shattering the intrinsic value of the property, in
such circumstances, a money compensation must be given to every coparcener
instead of his respective share.  

If a joint family property consists of movable and immovable properties then each
coparcener must be given his share in all movable and immovable properties. As
per the interpretations of the court in various cases, there is no hard and fast rule
as far as the share of each coparcener in immovable properties is concerned. It
may be possible that some coparceners may not get any share in immovable
property. It depends upon the nature and number of the immovable properties
and also the number of coparceners in a joint family to whom the share in the
property has to be given. Properties of greater value may go to one coparcener
while of lesser value to another. In such a situation, the adjustment of the value is
important. So, the coparcener who gets the larger value property may provide
money to the one who gets the share of lesser value. In this way, a justified and
satisfactory division of joint property can be done so that each coparcener is
equally benefited.

Properties not subject to Partition

As a general rule, the whole joint family property is available for partition.
Exceptionally, there are certain kinds of joint family property which are incapable
of division by their nature. Such properties are impartible and indivisible. The
following are the description of such properties and rules in this regard:

 Impartible estates: The property which descends to one member of the

family to the exclusion of other members either because of the
 application of the rule of primogeniture (the status of being the firstborn
child among several children) or by a custom or under any provision of
law.
 Indivisible property by its nature: There are certain properties which are
incapable of division by their very nature. For example, animals, wells,
stair case, furniture, utensils, ornaments etc. The general division of
these types of property will lead to distortion of their intrinsic value, thus
cannot be divided directly. Therefore, these can either be sold and its
value is distributed among all the coparceners or may be distributed by
agreement by adjusting the corresponding values of the properties. While
distributing such properties, due care must be taken to maintain equality
in share of each coparcener.
 Dwelling house: If we consider the ancient view, the dwelling house
should not partitioned. But according to the modern perspective, the law
does not consider this ancient rule as sacrosanct. A partition of a dwelling
house can be done through a decree by court. The court will put all its
effort to make such an arrangement so that all the coparceners are
equally benefited. If the court fails to make equitable agreement, the
dwelling house will be sold and the value will be divided equally among
all the coparceners.
 Family shrines, temples and idols: These are the kinds of properties
which can neither be divided nor sold. For such properties, the courts
have adopted the following systems:
 The possession of idols, temples or shrines may be given to the senior
most coparcener or a junior coparcener if he seems to be more religious
or suitable amongst all others with a liberty to other coparceners to
access them for the purpose of worship at all reasonable times.
 The coparceners may hold them turn wise for a period in proportion to
their share in the property.
 Staircases, wells, etc: The species of property like staircase, wells,
courtyards, tanks, roads, etc. are incapable of division and valuation by
their nature of existence. For such properties, an arrangement has to be
formulated so that they remain in common use of all coparceners.

How does Partition come into effect?

Effecting a partition simply means effecting of severance of joint status of a
coparcener in a Hindu joint family. There are two essentials of a partition:

1. The physical division of property by metes and bounds.

2. The severance of the status of the joint family property.
As far as effecting a partition is concerned, the second essential plays a very
significant role. The physical division of the property is a decision of an individual
and comes into effect by expressing an unequivocal desire to get separate from
the joint family property. The severance of the joint status is the resultant of the
individual’s decision which may be arrived at either by private agreement of the
parties or if not then, by the interference of the court.

Essentials of a valid Partition

A coparcener has a right to demand partition any time without the consent of the
other coparceners. It is immaterial whether the other coparceners want to remain
united with him or not. A demand, in order to bring the severance of the joint
status must comprise of the following three things:

1. Formation of an intention to separate from the joint family.

2. A clear, unequivocal and unilateral declaration of the intention to
separate.
3. The intention must be communicated to the Karta or to other coparceners
in his absence.
Now these three essentials are discussed in detail below:

 Formation of Intention: It is important that a coparcener must form an

intention to partition. His thoughts must be clear that he no longer
believes in the community interest. There must not be any doubt and
ambiguity regarding his intention to partition and get separated from the
Hindu joint family property.

 Declaration of Intention: Once an intention to get separated is formed,

it must be followed by an unequivocal, definite and unilateral declaration
of partition from the family and enjoy his share in severalty. The
severance of status is done by the declaration because severance is a
particular state of mind and the declaration is a mere manifestation of
that mental state. It is not compulsory that a declaration has to be
accompanied by any explanation or justification. No one is empowered to
go into the reasons which necessitated the coparcener to take such a
deep step not even the court.

 Communication of Intention: Declaration explicitly means that it

should be brought to the knowledge of a person affected thereby. An
uncommunicated declaration of intention can amount to a desire to
partition but not severance of the status. The member who seeks his
separation from the other members must make his intention known to
 the other members from whom he wants to be separated.
Communication is a prerequisite to effect partition.

 Means of Communication: The process of manifestation of one’s

intention varies with the facts and circumstances of each case. It is not
necessary that there should be formal despatch or receipt by other
members of the family of the communication announcing the intention to
divide on the part of one member of the joint family. What matters the
most is that the declaration must reach to the person or persons affected
by such partition.
 To whom the intention be communicated: The communication must
be made to all the persons who are the part of coparcenary property
including the Karta. It is not so that communication only made to Karta is
sufficient. Every coparcener must get the notice of declaration separately
and whether he accepts it or not is not important. Even if he refuses to
accept, the communication is enough and effective.
In case of a minor coparcener, the notice made to Karta is enough as he is the
legal representative of the minor coparcener.

 Effective date of severance of joint status: The difficult question with

regard to communication arises is when should the communication of
intention be deemed effective. There could be two possibilities in this
situation. Either it could be effective from the date of transmission of the
communication or from the date on which it reaches the coparceners. It
is concluded from various judicial interpretations that the partition takes
effect from the date when the intention is framed and expresses and not
from the date it reaches to the knowledge of all the coparceners.  

Various Modes of Partition

Partition leads to division of status. The severance in the joint status could be
brought about in the following ways:

 Partition by father during his lifetime: Under the Hindu law, a special

power is given to father in the exercise of which he can bring out
partition on his own if the coparcenary consists of the father and his sons
only. He can separate his sons from himself and also separate the sons
from one another without the consent of the sons. This power of father is
a part of the ‘patria potestas’  (paternal power) that was recognized by
Hindu law.

 Partition by Individual Coparceners through unilateral

declaration: The unilateral declaration of intention of partition by a
coparcener is sufficient for the severance of status provided that the
 communication of the intention of partition must be made clearly. The
consent of the other coparceners is not necessary.

 Partition by Agreement: A partition may also come into effect between

the coparceners through an agreement. An agreement constituting
partition must define the share of each coparcener with an intention of
immediate separation. The court does not recognize any partition until
the agreement of partition comes into effect. Partition can be effected
either orally or in writing. It is not necessary that a written agreement
has to be registered if it has a record of what had happened. However, if
the properties are divided by the agreement, registration is mandatory.

 Partition by Conduct: When the coparceners of the family actually

divide the family property by metes and bounds and each member enjoys
the possession of the share allotted to him separately, the partition is
said to take place by conduct. The conduct for severance of status varies
from case to case.

 Partition by Suits: The most common way to express one’s intention to

separate himself from the joint family property is filing a suit in the court.
As soon as the plaintiff expresses his unequivocal intention to get
separated in the court, his status in the joint family property comes to an
end. However, a decree from the court is required which decides the
respective shares of the coparceners. The severance of status takes place
from the date of filing such suit in the court. Both a minor and a major
coparcener may approach the court for this purpose.

 Partition by Notice: The essential element of partition is the intention

to separate which must be communicated to other coparceners.
Therefore, partition may come into effect even by a notice to the
coparceners, whether accompanied by a suit or not.

 Partition by Arbitration: In this mode of partition, an agreement is

made amongst the coparceners of a joint family in which they appoint an
arbitrator to arbitrate and divide the property. Such a partition becomes
operative from the date thereof.

 Partition by Conversion: Conversion of a coparcener to a non-hindu

religion automatically leads to the severance of status of that coparcener
from the joint family. He loses his membership of the coparcenary but
this doesn’t affect the status of other coparceners inter se.
The same result follows in case a coparcener marries a non-hindu under
the Special Marriage Act, 1954.  
  Partition by Will: Before the enactment of the Hindu Succession Act,
1956, the undivided interest of a coparcener in the joint family property
devolved on his death by the rule of survivorship. So, a coparcener
cannot make an effective will for his coparcenary interest.
But, Section 30 of the Hindu Succession Act, 1956, confers the right to coparcener
to make testamentary disposition of his interest in the joint family property. This
right can be used for separation also. Therefore, a coparcener can make a valid
will to separate his interest from the joint family property and to be donated to a
hospital, school, any other person, etc.

3. Explain the powers of Family Courts established under Family

Courts Act, 1984 to deal with family matters.

Important provisions of the Family Courts

Act, 1984
The Family Courts Act, 1984 was enacted on September 14, 1984. This act
contains 6 chapters and 23 sections. The act was enacted with the main aim of
establishment of family courts for rapid and safe settlement in the disputes arising
in family and marriage and the matters related therewith.

Establishment of family courts in India

According to Section 3 of this act, the State government, after consultation with
the High Court shall establish the Family Court in every area of the state where
the population is exceeding 1 million or in the area where the State government
deem necessary. 

The State government, after consultation with the High Court, shall specify the
limits of the area till where the jurisdiction of the Family Court extends. It may
also reduce, increase, or alter such limits of the jurisdiction of the Family Court. 

Appointment of judges
The provisions related to the appointment of judges in the Family court are dealt
under Section 4 of the Family Courts Act, 1984. The state government has the
power to appoint one or more persons as the judges of the Family Court after
consulting with the High Court. The state government, after consulting with the
High Court, may also appoint any of the judges as the Principal Judge and any
other judge as to the Additional Principal Judge. The main function of the Principal
Judge is to distribute the business of the court among the various judges and the
Additional Principal Judge is appointed to exercise the powers of the Principal
Judge in his absence or when he is not able to do so due to illness or any other
cause. 

This section also led down the following qualifications which are required for
appointing as judge of the Family Court:

 He must have worked for a term not less than seven years in a Judicial
Office in India or in the office of a Member of a Tribunal or any post
under the Centre or a State which requires special knowledge of law; or
 He must have worked as an advocate of a High Court or two or more
courts of succession for a term not less than seven years; or
 He must possess such qualifications as prescribed by the Central
government after consulting with the Chief Justice of India; or
 He must have not attained the age of sixty-two years.
In this process of selection of judges, it must be ensured that the person selected
must know how to settle a dispute by way of conciliation and counselling, to
protect the marriage and to promote the welfare of the children by their reason
and experience. While selecting the judges, it must also be ensured that the
preference shall be given to the women. 

The salary or honorarium, other allowances payable and other terms and
conditions of the judges of the Family Court will be decided by the State
Government after consulting with the High Court. 

Jurisdiction 
Section 7 of this act confers those power and jurisdiction on the family courts
which are exercised by the District Court or Subordinate Civil Courts in their suits
and proceedings. The Explanation of this section tells about the nature of the suits
and proceedings, which are as follows:

 A suit or proceeding for the decree of nullity of marriage, or restitution of

conjugal rights, or for the dissolution of the marriage between the
parties;
 A suit or proceeding for determining the validity of a marriage or
matrimonial status of a person;
  A suit or proceeding in the matter related to the properties between the
parties to a marriage;
 A suit or proceeding for an injunction or order arising out of a marriage;
 A suit or proceeding for declaring the legitimacy of a person;
 A suit or proceeding for maintenance;
 A suit or proceeding for the guardianship of the person, or custody of any
minor.
Under Section 7(2), the family courts have also the power to exercise a
jurisdiction which is exercised by a Magistrate of the first class under Chapter IX
of the Code of Criminal Procedure, 1973 and such other jurisdiction as provided by
any other enactment.

How do family courts promote conciliation

and speedy settlement of family affairs
The main aim of the Family Courts Act, 1984 was to provide quick and less
expensive relief to the parties in a less formal way with least technicalities. The
object of the establishment of these courts was to promote reconciliation between
the parties and reach a stage of the agreement. It is the duty of the Court to
make reasonable efforts for the settlement. Therefore, the court works with a
conciliatory approach. There are some provisions of the act which suggests that
the family court follows a conciliatory approach to settle the disputes between the
party.  

Under Section 4 of the act, the judges appointed in the family courts should have
the aim to achieve the purpose of the act, which is to protect and preserve the
relations and by way of conciliation and counselling. The reasonable efforts should
be made to settle the disputes by way of an agreement. 

Duty of the court to make reasonable efforts for

reconciliation between the parties
Section 9 of this act prescribes the duty of the family court to make efforts to
promote reconciliation between the parties. As, per Section 9(1), in the first
instance, the family court, in every suit or proceeding, shall make efforts to
convince the parties to settle the dispute with an agreement and for this purpose,
the family court may follow the rules prescribed by the High Court or follow such
rules or procedure as the family court may deem fit.  
According to Section 9(2), if the family court finds that at any stage of the
proceeding there is a reasonable probability of settlement between the parties, the
court has the power to adjourn the proceedings until the settlement is reached.
And as per Section 9(3), the power prescribed under sub-section 2 is an addition
to the powers of the family court. 

Help from medical and welfare experts

As to promote reconciliation between the parties, Section 12 prescribes that the
family court can take assistance from medical and welfare experts. According to
this section, the family court is open with an option to secure the services of a
medical expert or any other person (preferably a woman), whether related to the
parties or not or any professional who will promote the welfare of the family or
any other person who can help the family court in discharging its functions. 

Association of social welfare agencies and

counsellors 
According to Section 5 of the family courts act, the state government after
consulting with the High Court may make rules regarding the association of the
following persons or institutions with the  family court:

 Organisations or institutions related to social welfare;

 A professional person who will work for the welfare of the family court;
 Any person who is working in the field of social welfare;
 Any other person whose presence will ensure the effective working of the
family court.
Section 6 of this act provides that the state government after consulting with the
family court shall determine the number of counsellors, officers and other
employees who will help the family court in discharging its functions effectively
and shall ensure the presence of such counsellors, officers and other employees.

The counsellors play an important role in the working of the family court. Most of
the cases of the family court can be solved by effective counselling. So, the fair
selection of counsellors for the family court must be ensured.  

Common cases heard in family courts

  Dissolution of marriage
India is one of the countries with the largest population, due to which there are
many married couples in the country. While having this large number of married
couples, there will be more chances of having more cases of disputes between the
couples and their family. And for seeking remedy they will surely approach the
courts. 

In India, the family court can accept the appeals for grant of decree of divorce
under various acts like Dissolution of Muslim Marriage Act, 1939, Muslim Women
(Protection of Rights on Divorce) Act, 1986, the Parsi Marriage and Divorce Act,
1936, the Divorce Act, 1869, the Special Marriage Act, 1954, Foreign Marriage
Act, 1969 etc. For the dissolution of Hindu marriage, one can file an appeal for
divorce under Hindu Marriages (validation of proceedings) Act, 1960.

In the case of Reddy Anada Rao v. Ms Totavani Sujatha, the appellant and the
respondent were living their life by following Christian religion but they got
married as per the Hindu rituals in a Hindu temple. The appellant i.e. the husband
claimed that he was forced to marry the respondent therefore, he appealed for the
dissolution of his marriage and to set aside his marriage certificate. The question
was raised by the office of the family court that the marriage was itself null and
void as per the provisions of Hindu Marriage Act, 1955 so there is no need for the
suit. The judge held that the appeal for dissolution of marriage is not maintainable
in the family court as Section 5 and Section 11 of the Hindu Marriage Act has
clearly laid down that the marriage is null and void if it has been done with
coercion or without the consent of any party. Later, the husband appealed in the
High Court for which the court held that as per the Explanation (a) of Section 7 of
Family Courts Act, 1984, the family court has jurisdiction in the concerned matter.
As per the provisions of this act, the family court has jurisdiction over the disputes
arising out of the marriage of any caste or creed. 

 Child custody
The explanation (g) in Section 7(1) provides that the family court has jurisdiction
to grant the custody of the child to a proper person and to make that right person
the guardian of a minor. The cases related to the custody of the child are filed
before the family court where he usually resides. For example, if the father is
residing in Uttar Pradesh and the mother along with the minor child is residing in
Mumbai and the father wants to have custody of the child then he has to file the
case in Mumbai’s family court. Thus, the family court has exclusive jurisdiction
over child custody cases. The family court has also the power to accept the
petitions made under the Guardian and Wards Act, 1890 and the Hindu Minority
and Guardianship Act, 1956. 

 Security orders- domestic violence

The family courts act has not specifically mentioned the jurisdiction of the family
court in matters of domestic violence. And this is the area where family courts are
lacking. Though the act hasn’t made any provision related to the matters of
domestic violence. However, there is a provision under the Protection of women
from Domestic Violence Act, 2005 (hereinafter DV Act), according to which the
family court can entertain the matters related to domestic violence. The DV Act is
not wholly a criminal law; it has also granted powers to the civil and family courts.
As per Section 26 of the DV Act, the victim can not only claim relief from the
Magistrate but also from the family court and other civil courts. 

In the case of Sudhannya K.N. vs. Umasanker Valsan  (2013),  the Kerala High
Court discussed the scope of DV Act and held that the scope of DV Act is wide as it
guarantees rights to women to approach either magistrate or family court for filing
suit according to her comfort zone. The court also held that the family court has
the power to pass the interim protection orders as well as interim residence orders
under Section 26 of the DV Act. 

However, Section 26 is not used adequately because the powers of the family
court are not properly described as in the matters related to domestic violence
and also the family courts are not clear about their jurisdiction under Section 26 of
the DV Act. Due to this, most of the victims approach the Magistrate instead of
the family courts. 

 Maintenance 
Under the family court act, explanation(f) of Section 7(1) clearly provides that the
family courts have jurisdiction over the suits or proceedings for maintenance. Also
under Section 7(2), the family courts have the power to exercise a jurisdiction
which is exercised by a Magistrate of the first class under Chapter IX of the Code
of Criminal Procedure, 1973, which is related to maintenance of wife, children and
parents. This means the family courts can grant maintenance under Section
125 of CrPC. 

The Supreme Court recently in the case of Rana Nahid v. Sahisul Haq
Chisti (2020) has given a contrasting judgement over the jurisdiction of the family
court under Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986
Act). The facts of the case are: a Muslim woman moved to the family court of
Ajmer under Section 125 of CrPC for claiming maintenance from her husband as
she was harassed for dowry and was thrown out of the home. The family court
accepted the application made under Section 125 of CrPC, as an application
under Section 3 of the 1986 Act. The family court ordered the husband to pay Rs
3 Lakh to his wife and Rs 2000 every month for the maintenance of his child. 

The husband moved to the High Court against the order of the family court and
questioned the jurisdiction of the family court under the 1986 Act. The High Court
held that the family court has no jurisdiction to pass such an order under the 1986
Act. However, the petitioner can approach the Court of competent Magistrate
under Section 3 of the 1986 Act. The wife approached the Supreme Court against
the order of the High Court. 

Justice Bhanumati was of the opinion that the family court has no jurisdiction for
accepting an application filed under Section 3 of the 1986 Act. She supported her
opinion by saying that Section 3 of the 1986 act confers exclusive power on the
Magistrate of First Class to entertain applications made under the said section.
She also made reference to the judgements passed by various High Courts.
However, Justice Indira Banerjee holds the position that the family court has the
jurisdiction for accepting applications made under Section 3 of the 1986 Act. She
held that the preamble of the Family Courts Act suggests that it is a secular
statute which means all the laws are applied in the matters irrespective of the
religion. Also, Section 7(1), of the act provides that the family court has the same
powers and jurisdiction as of a District or Subordinate Civil Court to entertain suits
or proceedings for maintenance. She also made a reference to the principle of
equality under Article 14 and Article 15 of the Indian Constitution and extended
the jurisdiction of the family court for the benefits of Muslim divorced women. 

 Property disputes
As per the explanation (c) of Section 7(1) of the family courts act, the family court
has jurisdiction over the disputes related to the property of the parties to the
marriage. Generally, the disputes between the parties to the marriage arise when
the decree of the divorce has been passed. The family court can entertain the suit
or proceeding related to the disputes of the property of the parties of the marriage
by satisfying two conditions:

 Such a dispute must have arisen between the parties to the marriage
only;
 Such a dispute must have arisen due to the property of either party. 
In the case of Mrs Mariamma Ninan v. K.K. Ninan (1997), the petitioner i.e. the
wife approached the family court for the partition of the property and claimed her
separate possession as she also contributed Rs 3 lakh for the construction of the
property. The family court didn’t accept the petition and directed the petitioner to
file a Civil suit. However, the High Court set aside the order of the family court
and held that the said matter falls under the jurisdiction of the family court as per
Section 7(1) of the family courts act. The high court held that the family courts
have jurisdiction to entertain the disputes related to the partition of the property
of the parties to the marriage. Therefore, the high court resend the matter to the
family court and directed the court to entertain the matter and settle the
dispute.  

Procedures followed by the family courts

The procedure followed by the family court is quite friendly as no long formalities
are required. The main objective behind the establishment of the family court was
to provide speedy relief to the parties by way of settlement.  

Section 10 of the Family Courts Act, 1984 laid the general procedure which is
followed by the family courts. Section 10(1) applies the provisions of the Code of
Civil Procedure, 1908, in the suits or proceedings of the family court and by
applying the Code, the family court shall be deemed to be a civil court and shall
have powers of such court. Section 10(2) says that the provisions of the Code of
Civil Procedure, 1908 are applied on the suits and proceedings of the family court,
under chapter IX of the code. Section 10(3) gives power to the family court to lay
down its own procedure according to the circumstances of the suit or proceeding
or at the truth of the facts made by one party and refused by another, intending
to arrive at a settlement.

The proceedings of the family court can be held in the presence of cameras.
According to Section 11 of the act, the proceedings of the family court may be
held in camera, if the court feels so, or any party to the suit wants to do such. 

As the family courts work with fewer formalities, they don’t record the lengthy
evidence of witnesses, only that evidence of the witness is recorded which is
related to the subject matter. According to Section 14 of the act any report,
statement or document, related to the subject matter is admissible under Indian
Evidence Act, 1872. Also, as per Section 15 of the act, it is not necessary for a
family court to record the evidence of a witness at length, only that part is
sufficient which is related to the suit or proceeding and it should be signed by the
judge and the witness. 
Challenges faced by family courts
The Family Courts Act, 1984 was enacted to resolve the family-related disputes
through an innovative forum. It was predicted that this forum will work in a just
manner and will secure the maximum welfare of the family. With this view, the
Family Courts were set up under Section 3 of this act. The main objective of the
family court was to provide speedy settlement with fewer expenses and
formalities, in disputes relating to marriage and family and to make an agreement
between the parties for their reconciliation. But this objective is not fulfilled yet. 

The following are the challenges which are faced by the family courts:

 Section 2 of the act has defined some terms. However, it has not defined
the term “family”, due to which matters arising out of economic
consequences which affect the family in various ways are not covered by
the family court. Only matters related to marriage, maintenance and
divorce are dealt with by the family court.  
 The Act has empowered the state government to make rules for the
working of the family court in their states but most of the state
government haven’t effectively used these powers to make rules and set
up family courts.
 The situation became worse when the counsellors and other authorities
kept on changing. If a suit went for a long time and in the middle of it if
the counsellor got changed then it became difficult for the parties,
especially women to convey their problems again. The same thing has
been witnessed in the state of Tamil Nadu where the marriage
counsellors kept on changing every 3 months.
 As the family court follows the provisions of code of civil procedure in the
suits or proceeding it creates difficulties for a common man to understand
the complex law. The act hasn’t created any simplified rules which can be
understood by a layman. 
 The act has also negated the presence of lawyers in the suit or
proceeding of a family court which create difficulties for a common
person to understand the procedure and formalities of the court. In such
circumstances, the parties of a suit have to depend on the clerks and
peons of the court.
 The act was enacted to establish family courts across the country with a
conciliatory approach to secure speedy relief to the parties but it failed to
ensure gender justice and equality due to orthodox thinking of judges
and patriarchal attitude of the counsellors. 
Are family courts functioning adequately
towards fulfilling their purpose
The parliament enacted the Family Courts Act, 1984 to provide speedy settlement
with fewer expenses and formalities, in disputes relating to marriage and family
and to make an agreement between the parties for their conciliation. But they are
not functioning adequately towards fulfilling their purpose. There are various
reasons behind it like lack of clarity in the procedure followed by the court,
improper infrastructure, biased counselling, lack of lawyers, the inappropriate
mechanism for execution and many others.

Suggestions
The family courts were established to settle the disputes arising from a marriage
with a conciliatory approach and providing speedy relief to the parties through
settlement. But these objectives were not fulfilled due to various reasons like lack
of clarity in the procedure followed by the court, improper infrastructure, biased
counselling, lack of lawyers, an inappropriate mechanism for execution and many
others. There are following suggestions which should be adopted by a family court
to ensure proper working of the court:

1. The only aim of family courts is to settle the dispute of the family through
a  conciliatory approach. They don’t make any attempt to secure gender-
based equality. The disputes can be resolved in a woman-friendly
manner. But the government and the legislature haven’t thought of
making some changes in the law.
2. The judges of the family court are appointed based on the qualification as
that of judges of District Court. There is a need to change this process.
There should be an organised program where judicial education on
gender justice should be imparted. Also, the judges should be trained
well in dealing with the disputes related to the family. 
3. The role of counsellors should be more clear as they only focus on the
reunion of family and not care about the interests and security of a
woman. They should be trained to be more neutral while settling the
disputes.
4. The suggestions made by the workshop of the National Commission for
Women should be incorporated with the Act such as:

 The procedure prescribed by the act should be simplified by the

legislature so that it could be easily understood by a layman;
  The provision of the Act which grants maintenance should also include
the residence of women;
 Family courts can take assistance from NGOs and other welfare societies
to help the court in discharging its functions;
 The counsellors should not be changed frequently and they should be
trained well;
 A woman should be allowed to file a case in the family court or district
court of where she resides not particularly of where the marriage was
solemnized or of where the husband is residing.

5. Explain Disqualifications under Hindu Succession Act, 1956.

Valid grounds for disqualification 

Widow’s remarriage
Section 24 of the Hindu Succession Act, 1956 states that “certain widows
remarrying may not inherit as a widow. The person who is in a relationship with
an intestate, as the widow of a predeceased son or widow of a brother may not be
entitled to inherit the property of the estate as a widow if on the date of
succession she has remarried. On such a basis, it was disposed of the inheritance
already which was vested on the widows on their remarriage. As in law,
remarriage incapacitates a widow of a  gotraja sapinda  from succeeding to the
property of a male Hindu on the date the succession arrives Under the law, some
of the families state that if they had married before the succession had disqualified
them from inheriting the property of the deceased instate. Under the Widow
Remarriage Act, 1856 only three kinds of women are disqualified from inheriting
the property if they remarried before death.

 Son’s widow
  Son’s Son’s widow
 Brother’s widow
In spite of all reasons, women can not be disqualified from inheriting the property.
However, intestate women could also be disqualified as in intestate widow women
remarriage could not also be disqualified before succession open arises, as if she
married a person for the second time, her marriage would be stated as void and in
a law void marriage is no marriage. In these sections, she still remains to be a
member of the intestate family even if she had married before the intestate death.

Murder disqualified
Section 25 of the Hindu Succession Act, 1956 falls under this criteria. This Section
states that any person who commits the murder or assists the murder shall be
disqualified from inheriting the property of the person, or any property in the
promotion to succession to which he or she committed the murder. So as, If any
person found guilty for the murder of the deceased intestate must forfeit his or
her rights to come up with the property of the deceased.

The provision of the statue of distribution is paramount and are forbidden any
disqualification not containing any statue, was discombobulated by the Judicial
Committee of Privy.

As the Section definitely applies to an area where there is the inheritance of a

property but this Act also applies to an area where the testator has left behind the
will. A murderer who is guilty of murdering the testator cannot take any benefit
under the will. The Section applies to succession under the Act. It does not apply
to any other enactment under any other statue.

In the case of Smt. Kasturi Devi v. D.D.C AIR 1976 SC 2105, it was held by the
Privy Council that on the principle of equity and justice the murderer should be
disqualified from succeeding to the person whom he had murdered and would not
be regarded as the fresh descent as he can be stated as the non-existent. Murder
means to kill or assassinate someone which is broadly understood in a popular
sense and not just to a technical resolute. This goes beyond the reasonable doubt
proof sense of the Indian Penal Code. In State v. Chetan Chauhan,  the wife was
accused of murdering her husband abetment to commit murder along with three
other people and was clearly denied with the succession certificate as in the view
of  Section 25 of The Hindu Succession Act,1956. In the view of the exoneration by
the Criminal Court, the Bombay High Court stated that there is nothing that she
could be involved in murdering her husband, she could be entitled to succeed to
her property.
 A murder attempted during the profounding effects and sudden provocation, or to
safe one’s own life or somebody else life is considered as more commiserating
under the Criminal Law, Moreover, the Civil Court is not bounded by the decision
or verdict of the Criminal Court, they can have their own independent decision. In
Janak Rani Chadha v. the State (NCT of Delhi),  the husband was held guilty for
committing the murder of his wife after a few years of his marriage. As she has
leftover her property that she has purchased before her marriage. So, therefore
according to the Hindu Provision Act, the property constituted her general
property and as she died issueless, her husband would have normally succeeded
to the property, but in accordance to the provision of Section 25, he was the one
who murdered her, so he would be disqualified from inheriting the property.

Abetment of a murder
The Commission of the murder of the intestate or the abetting of the commission
of the murder has one or the same result. 

 Taking as an example where the entire planning of murder is done by the

person A, B, C who are in direct or indirectly in relation with A and helps
A in attempting the murder by bringing the intestate by a false pretext
where A kills and B, C might not have murdered the intestate, they will
be disqualified from succession to the property.

Disqualification of the converted descendants

Section 26 of the Hindu Succession Act, 1956 states about the Converted
descendant’s disqualification. Before the initiation of this Act, Hindus ceased to be
a Hindu by conversion to any other religion, after the conversion of the religion
the descendants. Therefore, they will be disqualified from inheriting the property
of any of their Hindu relatives in spite of any of those children being Hindu at the
time of succession opens. Under the old Hindu law, conversion by a Hindu into
some other religion was considered as disqualification which was further removed
by the Caste Disability Removal Act,1850. Under this Act as well when a Hindu
converted his religion he still might have a right to all the property of his or her
relatives but descendants of a covert are disqualified from inheriting the property. 

The Hindu Succession Act, 1956 clearly states that a Hindu ceased to be Hindu by
converting to any religion whether before or after the implementation of this Act.
If the child was born to them before or after the conversion of the religion, the
descendants will be disqualified from inheriting the property unless those
descendants are Hindu when the succession opens.
Applicability of Section 26
This Section does not apply to testamentary succession where the succession is
governed by the testament as it is only applicable to intestate succession so far.
This section is prospective in nature as the disqualification only arises when the
commencement of the succession opens. It is also retrospective in nature as the
Act also applies to a case where the conversion had taken place prior to the
commencement of the Act.

6. Explain Disqualifications to inheritance under Muslim Law.

Disqualification Under Muslim law of inheritance, just as in any other system of

law, there are certain person who are, though heirs, not entitled to as share in
the inheritance on account of heir disqualification.
 Under the Hanafi law an heir who has caused the death of the deceased
intentionally, inadvertently, by accident, mistake, or negligence is excluded
from inheritance. 
 Under the Shia law the heir is disqualified only if the death is caused
intentionally.
However, a widow who has children or grandchildren is entitled to one-eighth of the
deceased husband’s property. If a Muslim man marries during an illness and
subsequently dies of that medical condition without brief recovery or consummating
the marriage, his widow has no right of inheritance.
Non Muslim
Under the Islamic law, a non Muslim was not entitled to inherit the property from a
Muslim. In India this is not so a Muslim who has renounced Islam or had in any manner
so as to be a Muslim will nonetheless be entitled to inheritance in the property of his
deceased Muslim relation whose heir be is. But his non Muslim descendant will not be
entitled to inherit the property of the deceased Muslim. The inheritance to the property
of a convert to islam is governed by the muslim law(“Miler Sen Singh V/s Moqbul
Hassan Khaan AIR 1930”)
Murderer
Under the hanfi law an heir who  has caused the death of the deceased intentionally, in
advertently by accident, mistake or negligence is excluded from inheritance under the
Shia law, the heir is disqualified only if the death is caused intentionally. This is the
principle of general policy, and is followed in most systems of law that an heir who has
caused the murder of the deceased is disqualified from inheritance.
Child in the womb
Under Muslim law, a child in a womb of her mother is entitled to inherit, if it is born
alive. A stillborn child is treated as having been born alive if it’s mother was treated with
violence as a consequence of which she gave birth to it. The law among the Shias and
Sunnis in this regard is the same.
Illegitimate children
Under the Hanfi law, an illegitimate child is not entitled to inherit from its father but it is
allowed to inherit from its mother the mother can also inherit the property of her
illegitimate children. The illegitimate child inherits not merely the property of its mother
but also the property of all other relations with whom it is related through the mother.
Thus when Hanfi female dies leaving behind her husband and an illegitimate son of her
sister, the husband will take 1/2 as a sharer and the residue it will go to the sister son.
Since the illegitimate child cannot inherit from its father, it cannot inherit from any other
relation through the father under the Ithana Ansari school and illegitimate child is related
as nullius filius and cannot inherit the property of any of its parents or any other person
through its parents.
Daughters
Daughters as a rule are entitled to inheritance. But sometimes they are excluded from
inheritance by custom or statues. In such a case, the shares of the other heirs are
calculated as if daughter did not exist.

Among the gujars of Punjab and Jammu and Kashmir, daughters are excluded from
inheritance by custom. They succeed to the property only in the defaults of agnates
(“ASCII DAR V/s. Faze, AIR1960”). Under the Bombay Watan act,1886, if a Muslim
watandar died leaving a widow, a daughter and a paternal uncle, then the daughter had
no right to a share in watan land. In such a case, the widow and uncle took the land as if
the daughter did not exist.
Insanity and Unchastity
Insanity and Unchastity are not disqualification under the Muslim law, and therefore, an
insane or unchaste heir is entitled to inherit.
Eldest son
Under the Ithana Ansari law, the eldest son who is of sound mind is exclusively entitled
to wearing apparel of his father, his is copy of Koran, his sword, and his ring, provided
the father had left some other property beside these.
Childless widow
Under the Ithana Ansari law, a childless widow is not entitled to a share in her husband’s
land, both agricultural as well as urban. However she is entitled to her share in the value
of trees and buildings standing on the land as well as share in the movable property of
her husband. Immovable property includes the debts due to her husband(AIR1935 oudh
78”). It has been held that a childless widow,  in the absence of other heir is entitled to
inherit not merely her share but also rest of the property including the land of her
husband by the application of doctrine of return
Step parents
Since step parents are not related to their step childrens, they are not entitled to inherit
the property of their step children.
Absent heir
If an heir is absent at the time of the distribution of assets, then his share as to be kept
apart for him until such time as he is presumed to be dead(“section 107 evidence act”).

7. Define the term Mutawalli. Explain the powers ol Mutawalli over the wagf
property

Mutawalli
Mutawalli, is defined as the person appointed by a competent authority for managing
and administering wakf. Thus, a Mutawalli is more like a manager than a trustee and so
far as the wakf property is concerned, he has to see that the beneficiaries get an
advantage of the usufruct. Unlike a trustee, he is not an owner of the property therefore
he cannot sell the property. So, technically the position of Mutawalli under muslim law
is different from that of a trustee. In Syed Mustafa Peeran Sahib vs State wakf board
High court held that the definition of mutawalli includes a person who for the time being
manages wakf property.Hence he is merely a manager or a supervisor.

A mutawalli has not only to bear the legal responsibilities but must perform the
religious responsibilities as well. The position of mutawalli had been explained in
the case of Syed Ahmad v. Hafiz Zahid, it stated that the position of mutawalli is
not merely the manager or servant of waqf, and to carry out the directions of
wakif as mentioned in the deed, but rather a significant one. He has the right to
exercise his discretion and take decisions diligently while managing a wakf.

Who can be appointed as a mutawalli ?

Any person who is of sound mind, attained the age of majority age and is capable of
performing the functions to be discharged under a particular wakf can be appointed as
mutawalli. Any person whether male or female, muslim or a non-muslim may be
appointed as a mutawallii.

Generally, a woman and a non-muslim can be appointed as mutawalli but where the
Mutawalli is required to discharge the religious functions, a female, cannot be appointed
as a Mutawalli, and the same thing applies in the case of non-muslims as well.(Sbahar
Bano vs Aga Mohammad, 1907 )
A minor cannot be appointed as mutawalli but where the office of mutawalli is
hereditary and after the death of the last mutawalli the person entitled to succeed that
office is a minor , then in such cases the office may be held by minor.

Thus, the following persons are eligible for being appointed as mutawalli-

The settlor himself, his children and descendants, any other person even female or a non-
muslim (except in wakf where religious and spiritual functions are to be performed.)
Who can appoint a mutawalli ?
A new mutawalli can be appointed by—

1.The founder of the wakf i.e. the wakif

The founder of wakf can lay down a scheme for the administration of the trust and for
the successor to the office of mutawalli and may nominate successors by name, or can
indicate the class together with their qualifications, from whom mutawallis can be
appointed.

2. His executor
The executor of the waif is entitled to appoint a mutawalli if the wakif dies without
appointing any mutawalli and also if the wakf deed is silent about the appointment to the
post of mutawalli.

3. A mutawalli on his death bed as a successor for the time being

An existing mutawalli has no right to appoint his successor. But where an existing
mutawalli finds that there is no possibility of appointment of his successor through
wakf-deed or by the executor, or by the court of law and he is now already on his
deathbed, then in such case he himself can appoint his successor.
4. By the court
When, a person appointed as mutawalli dies, or

When, the office of mutawalli is vacant and there is no provision in the deed of wakf
regarding succession to the office, or
When, he refuses to act in the trust.

5. By Congregation
This means where the wakf is local such as a mosque or a graveyard then in this case
mutawalli can be appointed by collective decision of the locality.

Powers and duties of Mutawalli

Being the manager and superintendent of the property he has the following powers and
duties-

 To take all reasonable actions in good faith.

 To protect the interest of the wakf.
 To discharge all the public dues, and carry out all the necessary acts which are
lawfully required.
 To appoint his successor on death bed, in case the founder and executor of wakf
are dead and there is no other way to appoint the mutawalli.
 To carry out the directions of the board in accordance with the said act(Wakf
Act) or any rule or order.
 To furnish such returns and supply such information which is needed by the
board in accordance with the provisions of the Wakf Act.
 To allow inspection of waqf properties, accounts or records or deeds and
documents.
Procedure to remove a Mutawalli
Once a mutawalli is appointed he cannot be removed from his post by the wakif unless
such power has been provided under wakf-nama. The court has however, the power to
remove the mutawalli on the grounds such as breach of trust, being unfit for the post,
insolvency, negligence to perform the duties, any physical or mental incapacity,
misfeasance or any other valid reason

A mutawalli can be removed from his post by way of a suit by the District Judge.

8. Right of pre-emption.
Rights under pre-emption

When does the right arise 

There are two circumstances under which the right of pre-emption arises: 

In case of sale
The right to claim pre-emption arises when the property is subjected to a valid
sale. Merely an intention to sell can’t be ground for claiming the right of pre-
emption. The sale excludes inheritance, gift, waqf, bequest of a lease in perpetuity
and sale includes exchange. The sale must be bonafide. 

When the sale is complete

Mere intention to sell can’t give rise to the right to claim. The right to make a
claim arises when the sale is completed. According to Muslim law, a sale is
considered to be completed when the purchaser pays to the vendor and the
possession is transferred/ delivered by the vendor. It might not be necessary that
the execution of an instrument of sale is according to the Transfer of Property Act
1882. Section 54 of TPA states that, sale of property of the value of Rs. 100 and
upwards is not complete unless made through a registered instrument. Further,
the High Court of Patna and Calcutta stated that the right of pre-emption doesn’t
arise until registration is completed as per TPA. 

When right is lost  

The right of pre-emption is lost in the following manner:

 Omission to claim or waiver; or excessive delay in demanding it: when

the person entitled to this right, either expressly or impliedly waived it or
omits to assert immediately his right.
 Death of pre-emptor: the right to pre-emption dies with the death of pre-
emptor, where the pre-emptor dies before enforcing it, under the Hanafi
law. Under Shafi’s and Shiite law, the right to pre-empt delegates upon
the pre-emptor’s heirs in the proportion of their right of inheritance. 
 Forfeiture of right: the right of pre-emption is forfeited in the following
conditions:
 1. Where the pre-emptor releases it for consideration, 
2. Tries to dispose of the subject of pre-emption to a stranger, 
3. Partition is made of a property in respect of which the right of pre-
emption can only be claimed by coparceners, 
4. There is some statutory disability with the pre-emptor as regards the
purchase of land in question concerned.

Types
The right of pre-emption is available to owners of pre-emptive tenements only,
that is, any of the following three types of ownerships:

Pre-emption on the basis of co-sharers (Shafi-i-

Sharik)
The owner of an undivided share in the immovable property previously inherited
from a deceased person. In the case where the other co-owner sells his share to
someone without first offering it to his co-sharer, then the co-owner has a right to
claim it back from the outsider. Nothing except sale will bring to life the right of
pre-emption. The right of pre-emption can’t be accessed in the case of lease or
mortgage.  According to Shia law, pre-emption can be claimed only when there
are two co-sharer. 

Pre-emption on the basis of a participator in

immunities and appendages (Shafi-i-Khalit) 
The pre-emptor is known as a participator in immunities and appendages There
are three ways in which a person may be considered to be a Shafi-i-Khalit: 1. he
may be the owner of a dominant heritage; 2. he may be the owner of a servient
heritage: 3. the property sold, also the property of the pre-emptor may be a
dominant heritage to a third person’s property.
Pre-emption on the basis of neighbourhood or
vicinage (Shafi-i-Jaar)
The owner of adjoining immovable property, which is a neighbour. The right of
pre-emption on the ground of the vicinage doesn’t extend to the estate of large
magnitude; it is confined to houses, gardens, and small pieces of land. Where
more than one pre-emptor belongs to different categories, the first category or
class excludes the second, and the second excludes the third.

Who can pre-empt

Pre-emption arises from the following categories of persons. The following three
persons may be pre-emptor:

 Co-sharer by Inheritance (Shafi-i-Sharik) 

 Participator in Immunities & Appendages (Shafi-i-Khalit) 
 Owner of Adjoining Property (Shafi-i-Jar)
Pre-emption enforcement requisites; There are three formalities or necessary
steps that are to be followed strictly for claiming Shufa, they are known as three
demands:

 The First demand- Talab-i-Mowasibat

 The second demand- Talab-i-ishad 
 The third demand- Talab-i-tamlik 
According to Shia law, there is no distinction between Talab-I-Mowasibat and
Talab-I-Ishhad and therefore, only one demand needs to be made.

Application of pre-emption in India

In the case of Dig amber Singh v. Amhad  (1941), the Privy Council held that there
are four grounds on which a claim for pre-emption may be based in India. 

Muslim law
The right of pre-emption might be claimed under Muslim law when pre-emption is
not related to customs or statutes. The right of pre-emption can be claimed under
Muslim law when the vendor and the vendee are Muslims. It applies to Muslims
throughout India and it is part of the personal law. In the case of Ibrahim Saib v.
Muni-mi-ud-din and Mohd. Beg v. Narayan Megha Ji Patil the court observed and
held that pre-emption restricts the freedom of sale/ transfer property under the
Transfer of Property Act, 1882 and the Indian Contract Act. 

By custom 
The right may be claimed on the basis of custom, in the absence of statutory law
of pre-emption.  Whenever there is any inconsistency between the customs and
Muslim law of pre-emption, the customs will prevail. The right of pre-emption
based on custom is even applicable to Hindus, only in definite localities. For
example, parts of the U.P, Bihar, Maharashtra, and Gujarat. Even among Hindus,
the law of pre-emption has become customary law. The right of pre-emption is
extended to Hindus but only after being established. And the burden of proving
custom lies on the person who establishes it. 

By statute
The law of pre-emption is applicable under the following statutes: 

 Oudh laws act, 1876

 Punjab pre-emption act, 1913
 Agra Pre-emption act, 1922 
 C.P. Land Revenue act, 1917
 Berar Land Revenue Code, 1928 
 Zabta Shikmidaran 

By contract 
There are certain cases where the right of pre-emption arises by contract between
the sharers. In the wajib-ul-arz of various villages, especially in Uttar Pradesh,
contacts of pre-emption were founded. It is governed by the terms of the contract
only. It is irrelevant whether the terms of the contract align with the provisions of
the Muslim law of pre-emption. The terms of the contract will have an overriding
effect. 
Applicability of pre-emption on Hindus
Muslim law doesn’t discriminate based on caste and creed regarding the
applicability of pre-emption to a non-Muslim. Hindu law doesn’t provide any rule
related to the applicability of pre-emption on Hindus. It is very clear that the law
of pre-emption applies to Hindus and they are entitled to exercise the said right. 

Difference of religion
The difference in the religion of vendor, vendee and the pre-emptor or the buyer,
seller and the pre-emptor. Where all the parties involved are Muslim then there is
no problem and the law of pre-emption is applied. But what if all the parties
involved are not Muslim? Hence in the following circumstances/ cases law of pre-
emption can’t be applied. 

 Where all parties are Hindu and there is no relevant custom present. 
 Where the vendor and the vendee are Hindu, the pre-emptor is a
Muslim. 
 Where the vendor and the vendee are Muslim, the pre-emptor is Hindu. 
 Where vendor and pre-emptor are Hindu, the vendee is Muslim.
 Where the vendor and pre-emptor are Muslim, vendee Hindu. 
 Where the vendor is Muslim, vendee and pre-emptor are Hindu.