INTRODUCTION: MULTIPLICITY OF INHERITANCE AND SUCCESSION LAWS

 Inheritance and Succession laws do not apply in vacuum but in those cases when there is ambiguity as to who
shall inherit or succeed to a particular property in consideration.
 Religion is an important factor in inherence and succession because these matters are governed by the personal
laws. A difference in religion attracts applicability of different inheritance laws thereby leading to the problem
of multiplicity of inheritance and succession of laws.
 Under Hindu law, not only my religion but also my community and domicile is imp. If person resides in Bengal,
domiciled in Bengal, Dayabhaga will be applicable which will determine my rules and regulation wrt
inheritance. If recently shifted, then we will trace the generation. All the things together, my religion, domicile,
ancestors, my marriage status, all working together will determine. If migrated only for employment etc. then
his community will determine. If his community belongs to Mitakashra, mitakshra will be applicable. We will
trace the roots.
 The determination of religion also decides the legal heirs who shall be eligible to inherit the property.

 If the dying person had made a will, then the inheritance will be governed solely by the will irrespective of the
applicable law as determined by the religion of the dying person.
 Inheritance and succession laws have an understanding that gender and sex conform to each other and there are
binary genders only i.e., male and female. This further adds to the multiplicity.
 Illustration: A, a Hindu, married under SMA to B, a Muslim have a child from the marriage C. The inheritance
of A’s property to C will be governed by the Indian Succession Act and not the Hindu Succession Act.
TYPES OF SUCCESSION

A. Testamentary succession – Succession through will prepared by the dying person, and

B. Intestate succession – Succession governed by the inheritance and succession laws due to absence of a
will.

EFFORTS BY BRITISHERS TO DO AWAY WITH MULTIPLICITY

 There were multiple laws of succession for Hindus, Muslims, Christians, Parsis, Jews, etc. Even within these
religions, there were multiple practices of succession depending upon the domicile of the members of a
particular religion.
 Such multiplicity caused confusion, to avoid which, the Britishers enacted the Indian Succession Act, 1865.
This interference in the personal traditions was faced with a major backlash from the society, particularly the
Parsis.
 The ISA provided that succession of people married under Special Marriage Act, 1872 will be governed by the
ISA.
 Objections to ISA –
1. The Parsis objected that ISA was based on Roman Law and thus, it could not be imposed on them as
they were not familiar with the law.
2. ISA was discriminatory on the basis of gender where women had no right to claim property by
succession.
 The current ISA, 1925 is largely a replication of the 1865 Act. Ss. 50-56 of the ISA, 1925 regulates succession
for Parsis.
 SCHEME OF SUCCESSION LAWS

1. Hindu – Hindu Succession Act, 1956

2. Muslim – Muslim Personal Laws (Sunni and Shia)
3. Christians – ISA, 1925
4. Parsis – ISA, 1925
SCHOOLS OF HINDU LAW

 Different smritis provide different guiding principles which differ from each other in the sense that they have
common foundation but different interpretations. The same foundation is that the law is the supreme and the
King is not above the law while differing interpretations lead to different schools of thought.
 Earlier, the schools were called Sampradayas denoting the geographical location of the school.

 There are five main schools of Hindu law –

A. Dravidian,
B. Mithila,
C. Bengali – Dayabhaga was the most popular talking about inherence and succession,
D. Banarasi, and
E. Maharashtra.
 Mitakshara, written by Vijneshwaraiya, is nothing but a commentary on the Yajnavalkya Smriti. Yajnavalkya’s
work dealt elaborately with laws of partnership, mortgages and hypothecation and laid special emphasis on laws
of procedure and evidence; an aspect not adequately dealt with in Manu Smriti. Dayabhaga is a digest by
Jimutvahana, taking inspiration from Yajnavalkya Smriti but moulding the principles according to the customs
and practices of his geographical area, while also referring to Mitakshara.
 Differences between Mitakshara and Dayabhaga –
Mitakshara Dayabhaga
It recognizes the nearness in blood while inheriting.
There are two exceptions: 1. Females are excluded It does not. Is rather based on the principle of
from inheriting the property, and 2. Agnates are religious or spiritual efficacy, i.e., who can provide
preferred over Cognates (agnates means inheritance you with spiritual benefits (say performance of the
through male generation while cognates means last rites and rituals)
through female generation).
Mitakshara gives the sons the right to ancestral
property upon their birth. Son/Grandsons/Great-
Grandsons together are coparceners having a birth The Dayabhaga does not give the sons a right to their
right over one’s ancestral property. This means that father's ancestral property until after his death.
the right to claim partition in the property is also
vested in all the coparceners.
In a Dayabhaga joint family, the father has absolute
There is no absolute control available with the father
powers of management and disposal over the
over the property as the future generations have right
separate as well as the coparcenary property and the
over it by birth.
sons have only a claim of maintenance.
Only males are the coparceners. Female can also be coparceners as if either
generation of the male is absent, the female would
 inherit the property. This was enforced by the 1956
Act.
Since the interest is contingent on the death of the
Both unity of possession and community of interest
father, community of interest may not be there but
are applicable. Community of interest is there
unity of possession is there. The share in property in
because birth or death of any male generation will
Dayabhaga is a fixed share, if the property is not
alter the shares in the property.
already completely disposed of by the father.
There is no such principle of survivorship. The
widow or the daughter of the deceased coparcener
shall represent the deceased in inheritance of the
One of the core principles was the principle of
property (only if the deceased coparcener has no son)
survivorship.
and the share of the deceased will be taken by her.
Thus, the applicable principle here is principle of
representation.

 Unity of possession – Every member of the joint Hindu family has an equal right to enjoy the property.

 Community of interest – Shares in the property may fluctuate upon death or birth of any generation who was
or shall become a coparcenary.
 Principle of survivorship – The property share of the deceased coparcener shall not devolve to the legal heir of
the deceased coparcener but rather fall equally upon the surviving coparceners.
 Sameness of religion – The person whose property is being inherited and the persons inheriting it must be of
the same religion. If a person has renounced one’s religion or converted to some other religion, such person is
excluded from the property by the personal succession laws due to this fact.
Sameness of marriage – A violation of this also led to ex communication.
Ex communication – Expulsion from the community. This also expels a person from inheriting the property.
In 1850, Caste Disabilities Removal Act was passed which mandated that renunciation, conversion or ex
communication shall have no effect on the inheritance right of such person. This Act is only concerned with the
person subject of renunciation, conversion or ex communication and not with his descendants or other relatives.
Thus, the Act is not extended to the other relations of the person subject of either of these.
The lineal descendants of converts do not have an inheritance right in the ancestral or separate property,
until and unless if the other parent (who did not convert) is a Hindu and the children can demonstrate
that they have been brought as per Hindu laws and customs.
To illustrate, a person X has a son S1 who further has a son S2. S1 inherits property from X and converts to
Islam. In this scenario, S2 will be entitled to a share in X’s property (i.e., his grandfather’s property) if X can
demonstrate that he has been brought up as per Hindu laws and customs.
Loophole in the Act – In the same illustration, if S2 is born after S1 has converted to Islam, then S2 will not
have a share in his grandfather X’s property. But, this is not justified because S2 had no say in the conversion of
his father S1 and thus, this should not affect his right in the grandfather’s property.
The Act has been repealed by the Union govt. in January, 2018. The High Court of Bombay in Balchand
Lalwant v. Nazneen Qureshi recently held that a Hindu who had converted to Islam, would be considered
eligible to succeed to her father’s property under the Hindu Succession Act, 1956 (“HSA”). This comes at the
heels of another Gujarat High Court decision which had reached a similar conclusion. The key difference
however was, that the Gujarat High Court had reached its decision based on the Caste Disabilities Removal Act,
1850 (“CDRA”), which was subsequently repealed as part of the Union Government’s drive to repeal obsolete
laws. In light of the same, the Bombay High Court tried to reach the same conclusion by employing a different
reasoning.
 MEANING OF ‘JOINT HINDU FAMILY’/’HINDU UNDIVIDED FAMILY’

 This concept is unique to the Hindu religion.

 For starting a JHF, presence of a senior-male member is compulsory.

 JHF includes all members related by blood, with the following exceptions to the blood-relation rule –
1. Introduction of stranger into the family by way of a valid marriage,
2. Valid adoption,
 JHF consists of lineal descendants common male ancestors along with their wives and unmarried daughters.

 The presence of male-member Karta is not necessary for the survival/continuation of JHF but only for
initiation of JHF.
 Whenever we talk about JHF, the presumption of jointness is always there until and unless a contradictory
evidence is given.
 Illustration – F (male) has wife W, F has son S1 who has a wife W1. F and S1 die in an accident. Will the JHF
continue? Yes, the JHF will continue until there is a possibility of introducing a male member to the JHF
(say by adoption).
 3 different situations vis-à-vis daughter’s ability to continue the JHF –
A. Prior to 1956, a daughter could not continue the JHF if the male members had died because she did
not have the right to adopt.
B. From 1956-2005, an unmarried daughter could continue the JHF even if all male members have died
because the 1956 Act allows her to adopt a child (who would be male).
C. Also, post 2005, the 2005 Amendment confers a coparcenary status on a daughter and thus, the
daughter can anyway continue the operation of the JHF.
 The existence of “property” is not a pre-condition for formation of a JHF. It is agreed that most of the
rights and obligations of the JHF and the Karta stem in relation to a property, the representative right of the
Karta and his decision-making powers are independent of the existence of a property.
COPARCENARY

 The focus initially was not only on the right in the ancestral property but also on a bigger obligation to perform
the religious duties. However now, the focus is placed on the right in the property only when the concept of
coparcenary is considered.
 The qualification is of 4-generation rule (senior most male member who is the last holder of the property + 3
following generations) and of male members. This is the traditional conception of coparcenary which is still
legally intact without any intervention. So, for the formation of coparceners, presence of two male members was
necessary under the classical concept.
 Under the traditional concept, a married daughter doesn’t form part of the JHF. However, post 2005
Amendment to the ISA, daughters (both married and unmarried) can be the coparcenary.
 The qualification for coparcenary is narrower than the qualification for a JHF.
INCIDENTS/CHARACTERISTICS OF COPARCENARY PROPERTY

 Four-generation rule.

 Male member by blood and valid adoption.

 Right by birth.
 Community of interest and unity of possession.

 Minimal requirement of two male members.

 Fluctuating interest in the property - interest is not fixed in nature. we need to consider that members are
removed and added in a coparcenary by way of birth and death and this leads to an alteration in the share of the
property. The interest keeps fluctuating till the partition takes place, that is, the community of interest is
breaking.
Concept of survivorship - The fluctuation of interest takes place due to the existence of this concept of
survivorship. It states that when an undivided coparcener of the family dies, his share is redirected/distributed
among the surviving coparceners. The surviving coparceners get equal shares out of the share of the deceased
coparcener.
When talking of coparcenary rights, these operate only with respect to ancestral property and not separate
property.
 Collective enjoyment - income/proceeds from the undivided property are enjoyed by all the members of the
undivided JHF. In such scenario, the proceeds received should be kept at a common place and everyone should
have equal right to enjoy such proceeds.
 Right to claim partition is another characteristic. The consent of fellow coparceners and the Karta as well is
not required for claiming partition.
DIFFERENCE B/W JHF AND COPARCENARY

Point of
JHF Coparcenary
distinction

Scope Broader Narrower

Members can be introduced through birth,

Membership Introduction by marriage is not possible
adoption and marriage

Property Presence of property is not necessary Necessary

Limitation No limitation on generations 4-generation rule is applicable

2 females cannot be the only

2 females 2 females may continue a JHF
coparceners

Applicable All members of JHF enjoy unity of Unity of possession + Community of

concepts possession only. interest

RENDERING OF ACCOUNTS BY KARTA

 It is within Karta’s right to manage the accounts of JHF.

 However, the following 3 situations may force Karta to render the accounts/bank history of the transactions –
1. Where the members are involved in JHF business,
2. When there are charges of fraud against the Karta, and
3. When the coparceners ask for partition of the property.
HINDU WOMEN RIGHT TO PROPERTY, 1937

 The Hindu Women’s Right to Property Act, 1937 was passed by the British govt.
 Under this Act, “a Hindu man’s widow, his widowed daughter in law and widowed granddaughter in law are
entitled to inherit to his estate, not only in default of but along with, his male issues.” The widow in a Hindu
coparcenary succeeds to her husband’s claim irrespective of the existence of male heirs. The right of
survivorship of his collaterals is hence defeated temporarily.
 However, the claim granted to the widow is a limited one and it is such a limited interest that has come about to
be called as a Hindu woman’s estate. A Hindu widow in possession of the estate is entitled to its complete
beneficial enjoyment and is answerable to no one as long as she’s not guilty of wilful waste.
But the right is limited because the widow doesn’t have the right to alienate the property in any manner, say by
selling it, making a will on it, etc.
The peculiarity of this estate is that on the death of the widow, the estate does not pass onto her legal heirs but to
the heirs of the last male owner or the last full female owner with regard to stridhan property, whichever the
case might be (however ma’am mentioned that the property would devolve back to the surviving coparceners as
the principle of survivorship will assume application again after the widow dies). Thus, a temporary interest is
created on the property in the widow’s interest and as soon as the widow is out of the picture (say by
reason of her death), the property will devolve to the surviving coparceners of the widow’s husband.
 Thereafter, after much deliberation, the Hindu Succession Act, 1956 was passed.
KARTA

 Required for representation of the JHF and the management of its property and affairs.

 The qualifications are being male, being born in the family by blood and being the eldest.

 CASE: Nopany Investments (P) Ltd. v. Santokh Singh (AIR 2008 SC 673)
Held: “The managership of the Joint Hindu Family property goes to a person by birth and is regulated by
seniority and the Karta or the manager occupies the position superior to that of the other members. A junior
member cannot, therefore, deal with the joint family property as manager so long as the Karta is available
except where the Karta relinquishes his right expressly or by necessary implication or in the absence of the
manger in exceptional and extraordinary circumstances such as distress or calamity effecting the whole
family and for supporting the family or in the absence of the father whose whereabouts were known or who
was away in remote place due to compelling circumstances and that his return within the reasonable time
was unlikely or not anticipated.”
This extract was provided in the SC judgment of Tribhovan Das Haribhai v. Gujarat Revenue Tribunal and
Ors. (AIR 1981 SC 1538).
In Tribhovan Das Haribhai Tamboli v. Gujarat Revenue Tribunal – 4 exceptional scenarios where younger
member can be karta:

i. If senior member/karta is not available.

ii. Karta relinquishes his right expressly or by necessary implication.
iii. In extraordinary situations in the absence of manager such as distress or calamity affecting the
whole family and for supporting the family.
iv. In the absence of seniormost member whose whereabouts are not known, or he is in a remote place
due to compelling circumstances and his return within reasonable time is unlikely or not
anticipated.

The Court in the present case relies upon the eldest being away in remote place due to compelling circumstances
and that his return within the reasonable time was unlikely or not anticipated.
Additionally, the members of the JHF must consent to being represented by the junior-member as a
Karta.
 CASE: Shreya Vidyarthi v. Ashok Vidyarthi AIR 2016 SC 139
Facts:
Held: A widow cannot be a Karta of a JHF. A widow can be a manager of the JHF.
 Karta no longer has absolute powers but still superior powers in comparison to other members of the
Joint Hindu Family.
 Now, post 2005, even a daughter can be a Karta of the family.
POWERS OF KARTA
 The power to manage family affairs.

 The power to decide who resides at which part of the house until the partition takes place.

 The power to represent the JHF in legal affairs.

 The power to alienate the property provided the purpose is either – legal necessity, benefit of the estate or
religious purposes.
 The power to settle the family disputes. It depends on the Karta whether the JHF should go for mediation,
arbitration, civil suits, etc.
ALIENATION OF PROPERTY

 Two interests need to be balanced here:

1. Dire necessity of the family which can be met only by alienation, and
2. The right of the coparceners to claim share in full property and not only in the part that is left post-
alienation.
 Thus, if all the coparceners have consented to alienate the property, then no conflict remains as both the interests
are automatically balanced.
 Under Vijneshwaraia, there are three traditional situations where the Karta can alienate the property even
without the consent of all the coparceners –
A. Apat-kale: At the time of emergency or distress from the perspective of any family member of the JHF
as well as from the perspective of the joint property. Merely for profits the property cannot be
alienated.
B. Kutum-barthe: The subject matter is the family members only and not the property. Purpose for
alienation is the safeguarding and sustenance of the family members.
C. Dharamarthe: Alienation for indispensable religious purposes, say for instance offering rites to
ancestors (“pind-dan”).
 The phrases used in present context are –
1. legal necessity – combination of apat-kale and kutum-bharthe with special reference to the members of
the JHF,
2. benefit of the estate – combination of apat-kale and kutum-barthe with special focus on the property
only, and
3. religious purposes - dharamarthe.
LEGAL NECESSITY
 Conditions which need to be fulfilled for validating a transaction under legal necessity are:
A. Existence of need or purpose, i.e., a situation with respect to family members or its property which
requires money,
 B. Such requirement is for a lawful purpose, i.e., it must not be for an immoral, illegal purpose.
C. The family does not possess monetary or alternative resource which the requirement can be met with,
and
D. The course of action taken by the Karta is such as an ordinary prudent person will take with respect to
his property.
 CASE: Dev Kishan v. Ram Kishan
Facts: The Karta affected a mortgage, a sub-mortgage and a sale of two houses belonging to the joint family
worth around 8000 to 9000, for a consideration of Rs 400 to Rs 900, which according to him were to be utilized
for the marriage of his 3 minor children. The alienation was challenged before the Court by the other
coparceners.
Held: The court invalidated the transaction and stated that:
a. The transaction is void as it is opposed to the public policy, i.e., child marriage,
b. The members of the family had alternative incomes. And hence, no mortgage was needed,
c. The transfer of the property was grossly undervalued as the transfer should have been made inadequate
consideration.
 CASE: Arvind @ Abasaheb Ganesh Kulkarni & Ors. v. Anna @ Dhanpal Parisa Chougule & Ors.
Held: Out of the sale consideration of Rs. 3050 there was undoubted legal necessity to the extent of Rs. 2600 the
total amount due under the two deeds of mortgage executed by the father of the plaintiffs. Out of the ten items
which were mortgaged, only four were sold and the remaining six items were released from the burden of the
mortgages. The family was also relieved from one burden of paying rent to the mortgagee under the lease. All
this was for the benefit of the family.
The value of the land sold under the deed of sale was found by the Courts below to be Rs. 4000. Even if that be
so it cannot possibly be said that the price of Rs. 3000 was grossly inadequate. Further there were continuous
dealings between the family of the plaintiffs and the family of the second defendant over a long course of years.
In these circumstances it is impossible to say that the sale was not binding on the plaintiffs.
 Legal necessity requires that alienation be made as a last resort only, and if there’s a scope for making use of
some alternative whereby the property need not be alienated, then alienation will not be valid.
BENEFIT OF ESTATE
 If by the transfer of JHF property, the transaction is for the benefit of estate, it would be valid. Benefit of estate
means advantage to the landed property. Initially, it was limited to protecting the property from danger or
destruction. But later it was expanded to include cases which an ordinary prudent man would do. For instance, a
sale of inconveniently situated property, or a sale of scattered land of inferior quality which would not yield
benefit to property.
 CASE: Palianappan v. Deviyaswamy
Facts: PC laid down preservation of estate from extinction would be considered within benefit of estate.
 In one view, only that will be considered as benefit of estate which is of a defensive nature. In another view, any
positive benefit that a prudent owner would do would also be included. In Hari Singh v. Umrao Singh, an
unyielding land was sold and a profitable land was purchased. In Galamundi v. Indian Overseas Bank, decision
was taken for the benefit of family.
 If we compare it with apatkaala, the situation only arose where there is danger to property, and to provide
protection to property. Thus, aim was a defensive or protective purpose. But now, we are expanding the scope.
Even if there is some other benefit which is not defensive in nature, the karta can alienate the property. We
cannot have any exhaustive list for benefit of estate. But looking at cases, it can include – if you have scattered
 properties, and it is difficult to manage and utilize them, then you can alienate them to purchase another
property for the JHF.
RELIGIOUS/INDISPENSABLE DUTY
 It implies the performance of those acts considered religious, pious or charitable. The dharamshastras provide
for rituals to be performed at various stages of life. A JHF property may be alienated for such purposes.
‘Indispensable’ makes the alienation unavoidable. But it must be shown that the family did not possess any
alternative resources to raise money for such purposes. For instance, performance of proper funeral rites, or the
annual shraadh ceremony where homage to ancestors is paid. Providing feast to Brahmins is also pious purpose.
Marriage is another purpose and for raising money for it, alienation would be legal.
 If any need for money arises for religious purposes, then the ancestral property can be alienated.
BURDEN OF PROOF VIS-À-VIS ALIENATION OF THE PROPERTY
 There are three parties involved in the transaction of alienation – 1. the Karta who alienates, 2. the buyer of the
property (“alienee”) and 3. the coparcener who challenges the alienation.
 The burden of proof for challenging the alienation of the property lies on the alienee to prove that the
transaction falls within any of the three grounds of legal necessity, benefit of the estate and religious purposes.
It is because of the principle of caveat emptor as the property alienated is a joint property and thus, the buyer
cannot perform the transaction of sale in good faith while relying on one of the owners only (possibly the
Karta).
 But this is met by factual/practical difficulties as a third-party is required to prove either of the three grounds
in relation to the JHF. Thus, the stranger is allowed to look into the family affairs and financial status pf the
JHF.
 The Privy Council’s decisions had gone a step further and held that the alienee needs to not only prove that
either of the three grounds for alienation was met but also that the proceeds received by Karta out of the
alienation transaction must have been utilized for the said ground mentioned by the Karta.
Critical analysis - This opens up a number of problems as not only the stranger is allowed to look into family
affairs but also it becomes impossible for the alienee to keep track of where the proceeds were used. Thus, such
an extensive burden of proof on the alienee was unreasonable.
SCOPE OF INHERITANCE RIGHTS IN INDIA FOR THE TRANSGENDER COMMUNITY

 Covered by Swikruti’s and Rashi’s PPT

 REFER TO RAAJASH’s NOTES

CATEGORIZATION OF PROPERTY

 Members of JHF do not have a right over one’s separate property (i.e., self-acquired property). If the owner of
such property makes a will, then the directions of the will should be followed and if not, it passes to the
surviving coparceners. So, the members of JHF can’t claim their share as a right in the separate property.
 If the funds of the JHF are used to purchase some property, then such property will naturally be a part of the
JHF property. If the JHF fund/resources are not used, then such property is known as a separate property.
 Doctrine of blending of the property – When a coparcener purchases a property and makes his intention clear
of having such property as JHF property with other members having rights in that property.
 JH Ancestral Property – Property devolving from the last three ancestors.

 JHF Property + JH Ancestral Property = Coparceners Property (i.e., the property on which the coparceners
have a right of partition)
 Separate property is not included in coparceners property and the coparceners cannot claim any share in such
property as a matter of birth right.
SEPARATE PROPERTY
 Features of a separate property are:

 Lets say in a family, there are F and his wife W. They have son S with wife W1. They have son S1. When S1
inherits ancestral property, if the situation is pre-1956, this property would be treated as the ancestral property in
the hands of my lineal descendants. Post-1956, and after the judgment of Chander Sen, this property would be
treated as a separate property in the hands of S1.
If the property is separate property of S and he predeceases. Then both W1 and S1 will be legal heirs. Lets say
S1 is not in picture. Then post-1956, property will go according to section 14 of HSA and woman will be
absolute owner of the property. Pre-1956, W1 will get the property by virtue of 1937 Act. In case a coparcener
is leaving behind a widow, his undivided share in the property would go to the widow instead of immediate
application of survivorship. And the moment W1 dies, the property will go back to the surviving coparceners.

But if property is owned by S1 i.e., separate property, then even if there are father F and son S2, they do not
have any right over property. S1 is the absolute owner. If S1 predeceases and property is left behind, the
property will devolve upon his legal heir.

 When any property is acquired by way of will or gift by anyone other than your ancestors, that property will be
your separate property. This is the concept of obstructed property.
 Also, the fund/money/resource that is being used to purchase a property, if it is coming from the ancestral
property or JHF funds, such property is going to be JHF/coparcenary property. Thus, if JHF funds are used to
purchase any property, it would be JHF property. But if the resources of ancestral property are not being used,
such property will be a separate property, and any person challenging otherwise will have to prove that the
resources used were ancestral in nature.
 In case of devolution of property by will from ancestors, intention of the testator comes. For instance, if in the
will of the grandfather, he says that property will be inherited by grandson, and after him, his son and so on. In
such case, property will be ancestral. But if the will says that property will be inherited by grandson and he shall
have complete rights over it. Then property will be separate. We will deduce the nature of property by the
language of the testament. Either the category of property would be written explicitly, and if not, then Court will
look at the language of the testament, and the circumstantial evidences, and based on that, Court will deduce the
intention of testator.
ANCESTRAL PROPERTY
 When we talk about ancestral property/joint family property/joint family ancestral property. There is no
differentiation between these terms with respect to the characteristics or rights arising out of property. The
difference is only with respect to how the property is coming into picture. In ancestral property, there is
presumption of jointness of property, unless contrary is proved. But there is no presumption of property
being retained by the JHF.
 For instance, a male wants to start a JHF. He marries and has a son. Later, son is employed, and father and son
together buy the property. They throw the property in the pool of JHF/common stock of the JHF property. They
are starting to have a property in the name of JHF. This can be one of the methods through which JHF property
can come into existence. Some coparceners or 1 single coparcener purchase property and throw it in the
common stock of JHF property. This concept is called blending of property. One coparcener is purchasing
property and creating the rights of all other coparceners over it by throwing it in the common pool of JHF. His
intentions are clear to create rights of all coparceners over it.
 Another method is any property devolved upon the person from his three immediate ancestors, would be joint
family ancestral property. Thus, JHF property comes when any coparcener or some coparceners together
purchase property and then create right of all the other members over the property. And joint family ancestral
 property is that which comes when it is devolved upon a person from his ancestors. JHF property and joint
family ancestral property together are called coparcenary property. Over both these properties, there is right by
birth.
Therefore, it is important to ascertain the nature of property (separate or ancestral) to determine who
will have rights over property and in what capacity.

 For instance, one family has an ancestral house and a piece of land. Both these fall within the category of
coparcenary property. On the other hand, a flat purchased by the karta from his own separate funds would be
separate property. Suppose, his son S1 claims partition on all the resources. This claim would be maintainable as
regards the coparcenary property. But it would not be maintainable with respect to the separate property. This is
because S1 has a right over coparcenary property by birth. While separate property excludes the claim of any
other person as a matter of right. During the lifetime of the owner, it is protected from the claim of any legal
heir.
 Pre-1956, the ancestral property devolved upon a person remained an ancestral property. But post 1956, by
application of section 8, the ancestral property becomes a separate property upon devolution.
CATEGORIZATION IN MITAKSHARA
 Vijneshwaraia classified the property (daya meaning heritage) as:
A. Apartibandhdaya / unobstructed heritage – ‘A’ means without, ‘pratibandh’ means any kind of
obstruction and ‘daya’ means heritage or property. Thus, it means a property inherited from ancestors
without any kind of obstruction.
For e.g., inheritance of coparceners property by the coparceners
B. Sapartibandhdaya / obstructed heritage – ‘Sa’ means with. It means a property inherited from ancestors
with obstruction.
For e.g., separate property is an obstructed heritage; share in brother’s property which could be taken
upon his death.
CATEGORIZATION ON THE BASIS OF ‘CLAIMANT’ OF THE PROPERTY
 Consider a hypothetical scenario of 1987: Father F, two sons S1 and S2, S2 has son S3, S1 has a son S4 and a
daughter D1.
F dies and the property devolves equally to S1 and S2.
S4’s share in S1 is an unobstructed heritage since he has a right in the property by birth as a coparcener.
However, S2’s share in S1’s property is an obstructed heritage. Also, S3’s share in S1’s property is an
obstructed heritage as S1’s property will be considered as a ‘separate property’ for S3.
The above facts are the facts of Deepu v. Vasant Singh case (AIR 1983 SC 846).
 In this way, the categorization of the same property may vary with the claimants of the property.

 Question: Whether property from the maternal side is ancestral property?

CASE: Jupiter General Insurance case (AIR 1937 PC 233)
Facts: X had an estate. He was the owner of the entire village. Y husband of W credited some loan on the
property. Property was sold to Z for clearing the loan. W challenged that Y was not authorised to dispose of the
property because the property is coming from the father and she is also beneficiary of the property. Z said that
the property was ancestral property and hence the will of X was not valid. W contended that X got the property
from maternal grandfather and so it is his separate property, and hence X can dispose off in any matter he wants.

Issue: Whether the property of X is ancestral or separate property. Whether the ancestral property will include
paternal or maternal or both?
 Held: Court said that the word itself is not clear to include maternal as wee. They looked into smritis - Pita and
Pitamaha (denotes grandfather) used and hence property inherited from the maternal side is not included in
ancestral property.

 CASE: Mohammad Hussain Khan v. Babu Keshavanandan Sahai AIR 1937 PC 233.
Trivia: Here, the Privy Council discussed what is the nature of property which is inherited from the maternal
grandfather.
Facts: The property was inherited from maternal grandfather by the claimant in this case.
Held: Court referred Attar Singh v. Thakur Singh – unless the property comes from lineal male ancestors, it
would not be ancestral. Thus, although ancestor includes both male and female line, for the purposes of
ancestral property, only the property inherited from male ancestral line would be ancestral property. Thus,
inheritance from maternal grandfather is separate property.

The estate, which was inherited by Ganesh Prasad from his maternal grandfather, cannot, in their Lordships'
opinion, be held to be ancestral property in which his son had an interest jointly with him. Ganesh Prasad
Consequently had full power of disposal over that estate, and the devise made by him in favour of his daughter
in-law, Giri Bala, could not be challenged by his son or any other person. On the death of her husband, the
devise in her favour came into operation against her husband could not adversely affect her title.

For the reasons above stated, their lordships are of opinion that the decree of the High Court should be affirmed,
and this appeal should be dismissed with costs. They will humbly advise His Majesty accordingly.

Thus, the conclusion is that only the properties inherited from 3 immediate lineal descendants are unobstructed
in your hand, and any other property would be obstructed in nature.

 This is the scenario pre-2005. And this judgment is from time of Privy Council. After that, a lot of changes have
been there. Daughters have been made coparceners, and her children are also coparceners who will inherit her
property – as section 6 says that daughters are being made coparceners in the same capacity as the son. Vineeta
Sharma also says that whatever liabilities and rights are given to sons, the same extend to daughters.
So, it is unclear whether this property is to be treated as ancestral or separate property. The position of property
inherited from maternal grandfather can be considered as ancestral property, but this would negate the holding
of this case. It is ambiguous because there has been no legislative declaration or judicial declaration has been
there in this regard. We can apply the logic that this is an automatic consequence of the 2005 Amendment. Post
2005 therefore, the property from maternal grandfather is ancestral property vis-à-vis lineal descendants.

 CASE: C.N. Arunachala v. C.A. Muruganatha Mudaliar (1953)

Trivia: Intention of the testator was discussed in case of nature of property inherited through will.
Facts: Father had 3 sons and self-acquired property was unequally divided between the three. One was
disappointed and approached the Court saying that the property being devolved from father to son becomes an
ancestral property rather than self-acquired. The trial court held it to be ancestral property. The other party
appealed to SC through special leave. The question was whether property to be considered as ancestral or self-
acquired.
Prior to 1953, there were divergent opinions of HCs. Madras and Patna HCs said that unless intention of testator
expressly states, property would be ancestral. While Lahore and Allahabad HC said that unless specific intent,
property would be separate.
Held: Court took middle ground and said that the will and the relevant facts should be considered, and intention
of testator is important. Here, will provided the sons absolute rights with power of alienation. This showed
the intention that property was to be self-acquired.
 Thus, what we are emphasizing upon is the intention of the testator. If the Mitakshara is making a person
competent enough to dispose of the property without any hindrance, the person should also be considered
competent enough to determine the nature of the property. The circumstantial evidence surrounding the
testament would also become relevant, in situations where the intention of the testator is not clear from the will.
Based on intention of testator, the nature of property would be determined i.e., whether he wants to make the
donee the exclusive owner of property, or he wants to creates rights of all the lineal descendants.
What needs to be done if there are no express provisions in the will or gift deed as regards separate or
ancestral property - If there are express provisions to that effect either in the deed of gift or a will, no difficulty
is likely to arise and the interest which the son would take in such property would depend upon the terms of the
grant. If, however, there are no clear words describing the kind of -interest which the donee is to take, the
question would be one of construction and the court would have to collect the intention of the donor from the
language of the document taken along with the surrounding circumstances in accordance with the well-known
canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its
mere form. The material question which the court( would have to decide in such cases is, whether taking the
document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty
upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the
apparent gift was an integral part of a scheme for partition and what was given to the son was really the share of
the property which would normally be allotted to him and in his branch of the family on partition. In other
words, the question would be whether the grantor really wanted to make a gift of his properties or to partition
the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is,
strictly speaking, no presumption that he intended either the one or the other – i.e., whether he wants to treat the
property as separate, or to consider it as ancestral.
 CASE: Commissioner of Wealth Tax v. Chandra Sen (1986)
Facts: Father had a son Chandra Sen, who was married and had son S1. F and Chandra had a family business
i.e., ancestral property. During lifetime of father, partition took place. F and Chandra got their respective shares
in business. Now, rather than JHF business, they are engaged in business as partners with equal shares.
After 1956 Act, father dies and the share of father’s property is inherited by Chandra. As partition took place,
for Chandra, property is separate. So he is inheriting it as the legal heir of father under section 8. Now, at the
time of filing income tax, Chandra is enlisting whatever share he got from partition as a JHF property. But the
property he got from his father under section 8, he is enlisting as separate property. This enlisting of father’s
share as separate property became a reason for filing the suit.
Chandra claimed that he is holding his father’s share as a separate property, and S1 does not have any right over
it. While commissioner of wealth tax (revenue department) is claiming that since share is inherited from father,
it would be ancestral, and S1 would also have rights. The origin of property does not matter, and whatever
property inherited from immediate 3 legal ascendants would be ancestral property.
Issue: Whether the property is to be treated as ancestral or separate property?
Held: Court considered decisions from All, Mad, MP and AP HCs – they held that such separate property would
have nature of separate property even for son. While Gujarat HC said that upon devolution, such separate
property would be ancestral property for the son.
Before the HSA, property of son’s father would always be ancestral. But Section 8 says that such property
would take the nature of separate property. Section 4 says that any Hindu custom prevailing would be
overridden by the 1956 Act. Court considered that if the devolved property is to be considered as ancestral
property, it would create two classes of heirs – son, and all the class one heirs. This would create controversy.
Therefore, Court said that any separate property of the deceased father would devolve on the living son
only as a separate property.
Whenever any property is being inherited under section 8, the nature of treatment of property is changing. The
person is inheriting the property under section 8 which provides for succession of property of a male Hindu
dying intestate. Section 8 is dividing legal heirs in 4 categories – class I heirs, class II heirs, agnates and
 cognates. This also determines the hierarchy. When class I heirs are there – son, mother, daughter, widow, then
other heirs would be eliminated.

When we look at class I and class II heirs, terms used are like son of the predeceased son i.e., grandson. Thus,
intention is that the legislature is not in the favour of creating the rights of grandson in the presence of the son.
Only when the nearer relation is not there, the share of this person is inherited by other relations by way of
representations. Applying this logic, the SC overrules the Gujarat HC opinion, and observes that any
inheritance taking place under section 8 is going to be separate property in nature, and the lineal
descendants would not have any rights over it. This is the intention of the legislature, and we cannot read into
the section that the inherited property is ancestral in your hand. Had the intention been to create ancestral rights,
the legislature would have directly used the terms like grandson, etc. So when the property is inherited by son
under section 8, it would continue to be obstructed property in the hands of grandson, i.e., property would be
inherited as separate property.

 CASE: Arshnoor Singh v. Harpal Kaur

Facts: The family-chart is as follows –

Inder Singh received property from Lal Singh as ancestral property when Lal Singh died in 1951. Partition took
place in 1964 and the three sons took 1/3rd share each post-partition (the daughter had no right in 1964). When
Inder did this, the sons took one-fourth total share from their properties and gave it back to their father. Each
one (including Inder) has one-fourth share now. In 1970, Inder Singh passed away.
The 1/4th share of Inder Singh was divided between 5 people in 1970 (3 coparceners, Inder’s widow and
daughter Dharam Kaur). Since this 1/4th share was received by Inder Singh from his three sons, this property
should’ve been considered as self-acquired property but the Supreme Court treated this property together as
ancestral property of the JFH.
The present matter pertained to Dharam’s share in the 1/4 th extra property inherited by Dharam from Inder in
1970. An appeal was filed by one Arshnoor Singh, to set aside the sale deeds executed by his father Dharam
Singh in 1999. As per the impugned sale deeds, Dharam Singh alienated joint family property to the respondent
Harpal Kaur, whom he subsequently married as second wife. The sale deeds were challenged by Arshnoor
Singh in a suit filed in 2004, after he attained majority in 2003. He claimed that the properties were coparcenary
properties, which were alienated by Dharam Singh without any legal necessity and without receiving any
consideration from the respondent.
Issue: Whether the concerned property is ancestral or separate property?
Held: The top court noted that in the case, succession opened in 1951 at the time of death of Lal Singh, the great
grandfather of appellant. Since it was before the commencement of Hindu Succession Act, Mitakshara law
applied to the succession. This meant that the property devolved from Lal Singh will retain the character of
coparcenary property upto male descendants three degrees below him - Inder Singh, Dharam Singh and
Arshnoor Singh.
“If succession opened under the old Hindu law, i.e., prior to the commencement of the Hindu Succession Act,
1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his
 paternal male ancestor shall be coparcenary property in his hands visàvis his male descendants upto three
degrees below him. The nature of property will remain as coparcenary property even after the commencement
of the Hindu Succession Act, 1956.”
After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post – 1956,
if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his
self-acquired property, and does not remain coparcenary property (Section 8 of HSA).
“In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property
inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition
of the coparcenary property amongst his sons in 1964, the nature of the property inherited by Inder Singh's
sons would remain as coparcenary property qua their male descendants upto three degrees below them.”
The suit property which came to the share of late Dharam Singh through partition, remained coparcenary
property qua his son Arshnoor Singh, who became a coparcener in the suit property on his birth in 1985, said the
Court.
The SC held that it was settled law that the power of a Karta to sell coparcenary property is subject to certain
restrictions viz. the sale should be for legal necessity or for the benefit of the estate. The onus for establishing
the existence of legal necessity is on the alienee. It had come out in evidence that there was no monetary
consideration for the sale deeds executed by Dharam Singh to Harpal Kaur.
"The very fact that the Sale Deeds dated 01.09.1999 were executed without any consideration, would itself show
that the suit property was sold without any legal necessity. Being coparcenary property, it could not have been
sold without legal necessity, or for the benefit of the estate", the Court observed.
Decision: Sale deeds were valid and Ashnoor Kaur’s appeal was upheld by the Hon’ble Supreme Court.
Critical Analysis: The apex court failed to draw a distinction between ancestral and separate property. In 1964,
since the 1/4th share was received by Inder Singh from his three sons, this property should’ve been considered
as self-acquired property which would’ve been transferred as self-acquired property to Dharam Singh as per S.
8. But the Supreme Court treated this property together as ancestral property of the JFH.
 CASE: Rohit Chouhan v. Surender Singh
Facts: Family tree – grandfather Budhu Singh, his three sons – Gulab Singh, Zile Singh and Ram Kumar. Gulab
Singh had a son Rohit Chauhan, who is the appellant, and Zile Singh’s son Surinder Singh is the respondent. In
1969, grandfather partitioned the property where him and his three sons received 1/4 th share of property which
amounted to 72 kanals of land. The grandfather again bequeathed his 1/4 th share equally in 4 parts, thus all three
sons received 18 kanals more. Upon death of the grandfather, his remaining share of 18 kanals was inherited
equally by the sons. Gulab Singh thus received 96 kanals of land (72+18+6). He also acquired 8 kanals of land
from the proceeds of the properties received in partition.

Gulab Singh was unmarried at the time he received these shares. He subsequently married and the appellant was
born in 1982. In 2000, Gulab Singh executed sale deeds and sold the 8 kanals of land. In 2004, he gifted the 96
kanals of land to the respondent who was his brother’s son by way of a release deed.

Contentions: The appellant, who was Gulab Singh’s son, challenged the alienation on the ground that the
property received by his father is ancestral property, and hence the alienation in absence of legal necessity is
void. While defendant claimed that upon partition, the property became separate property of Gulab Singh, as he
was the sole surviving coparcener.

Held: If I'm holding ancestral property as sole coparcener and there is no lineal desc., then wrt to another
person (say to be used as a collateral), it is separate property. The moment a lineal desc is coming into
picture and you are forming a coparcenary, then the property will revive its nature as ancestral property,
you cannot hold it as separate property or dispose of it except as according to the Karta.
 Till the time you are sole coparcener can alienate, mortgage etc., but with the condition that there is no single
lineal descendant although the property held is the ancestral property. May enjoy it as your separate property.
But the moment a lineal descendant is coming into picture, the property will revive its nature of coparcenary
property. Now cannot dispose etc except if you are Karta and for legal necessity or for a religious purpose.
It was thus observed that property received by a coparcener through partition would always be separate
qua other relations, but would be ancestral qua his own legal descendants.
In the present case, the moment the son is born, he receives a share in the father’s property and becomes a
coparcener. Therefore, after the appellant’s birth, his father could have alienated the property only as a karta for
legal necessity. Hence, the alienation of property was held to be void.
 CASE: Vaid Ram Hukum Singh v. Tika Ram (Chhattisgarh HC)
Whenever we talk about the alienation of property, in majority of cases, it is important to ascertain the nature of
property i.e., whether property is to be treated as ancestral or separate. Here, the property is inherited by
appellants father and uncles by operation of section 8 as legal heirs upon the death of his grandfather. Father
alienated the property and appellant challenged that there was no legal necessity. But the Court held that
he cannot challenge alienation as the father can alienate in any way he deems fit because of it being a
separate property. Court also observes that there is only a chance of inheritance for appellant. Hence, he
does not have any right over the property.
 When partition is taking place, usually sons have their own family i.e., the lineal descendants are already in
picture. So upon partition, they hold property along with their own legal descendants.
 Lets say partition takes place between F, S1 and S2. S1 adopts a son S3, so he holds property with S3. But S2
does not have any family. As there is no lineal descendant, he is free to treat the property in whatever way he
wants. He can also alienate the property. If after such treatment, a child is born to him, and if any portion is left
with him, such portion will revive the nature of ancestral property, and the child will also have a claim over
property.
INTRODUCING JHF PROPERTY: BLENDING IN

 There is no presumption of property for a JHF to begin.

 Principle of blending in – Throwing of property by a JHF member into the pool of ancestral property. The pre-
existence of some kind of JHF property is a pre-condition to application of principle of blending.
 CASE: Kiran Devi v. Bihar State Waqf Board (2021) [facts, then para 26]
CONDITIONS FOR BLENDING IN
 The following conditions are essential for operation of blending in –
1. Existence of JHF property is required, then only you will be able to mix when something is there
already. When you are giving the separate property to start a JHF, it is not blending in. It is just a start
of coparcenary. Existence of coparcenary property is not required then. To start a JHF, there is no need
for joint property. But to start a co, or bring into existence of joint property, if I am giving a separate
property, it is allowed.
2. Intention should be there.
3. It is irrevocable. You can't pull back.
4. Create an additional right of other co on the property.
5. No more your separate property.
6. You need to be a coparcener, for blending in.
7. Blending is for all coparcenary. You cannot exclude any one.
 PARTITION

 Partition entails not only severance of the property but also severance of the status of a member in the JHF.

 Partition means a numerical division of property and bringing a Hindu Joint family to an end. The joint family
ceases to be joint and transforms into a nuclear family after partition. In a coparcenary, the coparceners hold the
property as one common unit, partition means the fixing of the shares of each coparcener.
 De facto partition – Physical demarcation of the property or partition by metes and bonds. This happens when
the unity of possession is broken. It is only after the de facto partition, the respective shares of the coparceners
become their exclusive shares.
De jure partition – It brings the severance of status or interest. This happens when the community of interest is
broken, either at the instance of one of the coparceners or by the agreement of all the coparceners. In such a
partition, the shares become clearly demarcated and are no longer fluctuating. Death of any coparcener does not
cause any fluctuation in the shares in property.
 The parts of property which need to be shared by all coparceners cannot be partitioned to one particular
coparcenary. This is the principle of compulsory common enjoyment of the property. Say for e.g., exit and
entry passage, common well of the house, staircases, common temple of the house, etc.
 A wife (third-person) can represent a coparcener and ask for partition on his behalf, but this is permitted only
when the coparcener has clearly delegated the power of representation to such third-party.
 A mother could similarly represent the minor in a partition. For representation of a minor coparcener, the
term “next of kin” is used and not “guardian” so as to restrict the people capable of representing a minor so as to
protect his best interest.
 Under Dayabhaga, a son cannot ask for partition of the property until his father is alive. It is only upon the death
that the partition in property will take place.
CONSEQUENCES OF PARTITION
 The following are some main consequences:
1. The one big JHF will cease to exist and smaller JHFs will arise.
2. The property where there was co-ownership of different sharers would now be owned by the individual
owners.
3. The coparceners would no longer be part of their collaterals’ JHFs. Thus, severance in status is there
and the brothers would form different JHFs with their own legal descendants.
4. Undivided members of family become divided members of family. Post-2005, if a member dies as
undivided member, first you will go for notional partition and then legal heirs will inherit property as
per section 8. Thus, status of person as divided or undivided member becomes important.
 It is the right as well as responsibility of karta to manage the family accounts, the property and the proceeds of
joint family property. It is up to the karta to determine how much funds out of the proceeds he is giving to each
coparcener. The only suggestion to karta is that he should be vigilant in spending the joint family property
proceeds. Even if it is seen that one coparcener is getting more funds than another coparcener, still, no remedy is
there. The only remedy is misappropriation of funds by karta.
 At time of partition, all these considerations are immaterial. It cannot be said that if one coparcener was getting
a smaller share of joint family property proceeds, he should be given a larger share of property. Such
considerations are immaterial. What happened in the past remains in the past, and past accounts cannot be
adjusted in the present. We also do not consider whether the sharers are more in one particular branch of the
JHF than the others.
 3 MODES/ESSENTIALS OF EFFECTING A PARTITION
 They are:
1. A formation of clear intention seeking partition - The intention to effect partition must be very clear
and certain. There is no room for an ambiguous intention to effect partition,
2. A declaration of the intention, and
3. Communication of this intention to the Karta and if the Karta is not available, to the other
coparceners thereby finally communicating to Karta. Communication also to the other relevant persons
who could be affected. Important: The communication must be made during the lifetime of such person
who intended to seek partition.
The difference between declaration and communication refers to the subject-group to which such declaration
and communication are made.
A communication to Karta and coparceners directly means that declaration and communication happen at the
same time simultaneously.
A Karta cannot object if the right of partition is exercised by a coparcener. If a direct suit for partition is filed in
the Court, the Court can object to such partition when the coparcener is a minor only and not in any other case.
 CASE: A. Radhabamma v. A. Chechamma (AIR 1964 SC 136) – The Court considers whether both
declaration and communication need to be present for effecting a partition or even in absence of either, a
partition could be effected.
Communication of the intention through will was discussed here.
Facts: The question was regarding whether the two brothers Chimpirayya and Pitchayya were divided or
undivided members of the coparcenary. Appellant is the widow of Pitchayya, and respondent is the daughter in
law of Chimpirayya.

The partition between their father and 2 more brothers was alleged to have taken place around 1895. Later, in
1945, Chimpirayya executed a will where he gave his properties to his grandson Subbarao (other member of
JHF – son of the alleged adopted son of Pitchayya) and granddaughter (daughter of pre-deceased daughter), and
appointed the appellant to manage the property on their behalf since the grandson and granddaughter were
minors at the time of partition.

Regarding the 1895 partition, the oral and documentary evidence suggests that there was no partition between
the 2 brothers. There is also a general principle that a Hindu family is presumed to be joint unless the contrary is
proved. Hence, the Court held that there was no severance of status between them at this point.

The Court observed that a member of a joint Hindu family can bring about his separation in status by a definite
and unequivocal declaration of his intention to separate himself from the family and enjoy his share in
severality.

Appellant’s contention: In order to prove such intention, the will executed in 1945 was relied upon. It was
contended that if not before, then on the date when the will was executed, Chimpirayya must be deemed to have
been divided in status from his grandson Subbarao. This is because the will contains an unambiguous intention
on the part of Chimpirayya to separate himself from Subbarao, and he manifested his declaration of fixed
intention to divide by executing the will and that the Will itself was a proof of such an intention.

Respondent’s contention: Subbarao will inherit the entire JHF property and will become the sole coparcener.
When Subbarao dies, the principle of survivorship shall cease and Chechamma should get the property as the
surviving legal heir.

Question: Whether the intention of partition was declared and communicated, and at what stage was they
completed in this case where a ‘will’ was used?
 Held: Even though there was formation of intention and declaration of intention (through the will), the third
element of communication of partition didn’t take place during the lifetime of Chimpirayya. Thus, he died as an
undivided member of the JHF. The testamentary succession will not take place and Subbarao will inherit the
property after his death. Post Subbarao’s death, the Respondent will get the property by virtue of being the
surviving legal heir of Subbarao.
If the contents of the Will had been brought to the knowledge of the guardian of SS during the lifetime of Br 1,
the communication would have been complete and a severance of status would have taken place. In that case,
the Will would have been valid. But if the sole reliance is on the Will, to communicate the intention of the
testator, there would be no valid communication during the lifetime and therefore, no valid severance of the
status. The Will was, accordingly, held to be without any effect and the property went by law of inheritance, on
the death of SS, to his mother Chenchamma.
“The doctrine of relation back has already been recognised by Hindu Law as developed by Courts and applied
in that branch of the law pertaining for adoption. There are two ingredients of a declaration of a member's
intention to separate. One is the expression of the intention and the other is bringing that expression to the
knowledge of the person or persons affected. When once that knowledge is brought home-that depends upon the
facts of each case it relates back to the date when the intention is formed and expressed. But between the two
dates, the person expressing the intention may lose his interest in the family property; he may withdraw his
intention to divide; he may die before his intention to divide is conveyed to the other members of the family:
with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the
entire family property for debts binding on the family. There may be similar other instances. If the doctrine of
relation back is invoked without any limitation thereon, vested rights so created will be affected and settled
titles may be disturbed. Principles of equity require and common sense demands that a limitation which avoids
the confusion of titles must be placed on it. What would be more equitable and reasonable than to suggest that
the doctrine should not affect vested rights ? By imposing such a limitation we are not curtailing the scope of
any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation
to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the
contrary, saves vested rights: . As the doctrine of relation back involves retroactivity by parity of reasoning, it
cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the
intention to separate, the rights accrued to others in the joint family property between the said manifestation
and the knowledge of it by the other members would be saved.”
 CASE: Puttrangamma v. M.S. Ranganna (AIR 1968 SC 1018)
Trivia: Dealt with unilateral withdrawal or revocation of a demand of partition
Facts: The Karta, with his three brothers and their descendants, constituted a joint family. He himself had four
daughters and no male issue. He issued a notice from the hospital, to the other members, declaring his
unequivocal intention to separate from the joint family, as he was sick. At the time of issuing of this notice, his
younger brother’s son was present in the hospital. He snatched the notice and attempted to tear it, but was
prevented from doing so. After the notice was registered at the post office, the family members intervened, tried
to bring about an amicable settlement and persuaded him to withdraw the notice.
He wrote an application to the post office to withdraw the notice and the request was complied with. As no
agreement could be reached subsequently, he signed the vakalatnama and instructed his lawyer to institute a suit
for partition, and died on the day on which the suit was instituted.
Issue: What was his status at the time of his death: that of a separate member or of a joint family member? Did
the withdrawal of the notice operate as a complete renunciation of his intention that he had earlier expressed to
separate from the family?
Held:
Why the question of Karta’s status on death became important? - The question as to what was his status at
the time of his death was very important to determine the devolution of his share in the property. As he died
without leaving a male issue, but four daughter only, if he was still an undivided member at the time of his
 death, his interest in the property would be taken by survivorship, by the surviving coparceners, and the
daughters will not be entitled to anything. However, if the severance was already effected and he, at the time of
his death, was a separate member, the remaining coparceners would not get anything out of his property, as it
will go by inheritance to his four daughters.
A partition, is a matter of individual volition. There is no need to inform each and every coparcener and a
communication to the Karta is sufficient.
A unilateral declaration can bring about a partition, but a unilateral withdrawal of this intention, where the
partition has already been effected, cannot result in a revocation of partition or in a reunion, as, for demanding a
partition, the consent of the other coparceners is not material, but a reunion is not possible unless there is an
agreement between all the members.
Revocation of notice does not amount to withdrawal of partition, severance had already taken place - The
Supreme Court agreed with the verdict of the trial court and held that it is not necessary that the communication
must be through a formal notice, sent through post. Here, even at the time the notice was dictated and signed in
the hospital, one of the coparceners was present. Further, the family members, including the coparcener who
knew that a notice to this effect had been sent, tried to persuade him to withdraw it and agree to a family
settlement, consequent to which only, the notice had been withdrawn. The demand made by the erstwhile Karta
was known to all the other coparceners, and therefore, the severance of status had already taken place.
The withdrawal of the notice did not take place before the communication of the intention to separate was made,
but took place subsequent to the severance of status, consequently, the partition had already been effected, his
status had become that of a separate member and a unilateral withdrawal on the persuasion of family
members, so that he could rethink his decision, could not restore his formal status, more so as the
deceased had instructed his lawyer to file a suit for partition, that was in fact, filed on the day he died.
The court therefore, held that he died as a separate member.
Decision: Karta died as a separate member only and his share will be inherited by the four daughters and not the
surviving coparceners.
 The Doctrine of Relation Back states that the severance of status happens on the date of initiation of
communication and not on the date when the communication is complete.
Rationale – The Karta anyway doesn’t have the right to object to the communication of intention of partition.
So, communication is only a formal requirement without any effect on partition.
 CASE: Kakamanu Pedasubhayya v. Kakamanu Akkamma (AIR 1958 SC 1042)
Trivia: A minor cannot seek partition directly. He can institute a suit for partition through a next friend in a
court of law.
Facts: The maternal grandfather of a minor, aged 2 years, filed a suit for partition on his behalf, as against his
father and two brothers. His main contention was that the Karta (father), along with the two major sons born to
him from his first wife, were managing the joint family property in a manner that was detrimental to the
interests of the minor. They were selling the joint family properties, including the share of the minor and out of
the sale proceeds, they were purchasing properties in their individual names. The minor was also thrown out of
the family house along with his mother (father’s second wife) and sister. The petition was admitted, but during
the pendency of the litigation, the minor died.
Issue: Firstly, what was the status of the minor on his death? Did he die as an undivided member of the
coparcenary, or as a separate member; and secondly, whether the court should continue with the suit, even
though the person on whose behalf the suit was filed is dead, or should the suit be abated?
Held:
No difference between minor and major coparcener, as far as the coparcenary property is concerned -
The court observed that under Hindu law, there is no distinction between the rights of a minor and a major
coparcener, as far as the coparcenary property is concerned. His share is equal to that of a major coparcener and
 he has a similar right of maintenance, possession and enjoyment of property. However, as he is a minor, the
courts act as parens patriae, in order to protect his interests and assess whether a partition will benefit him or
not. But even this action, which is purely protective in nature, will not make the effective date of severance any
different in the case of a minor, than in case of a major coparcener. Therefore, where the suit is filed by a minor,
through his next friend, and the court comes to the conclusion that effecting a partition would be in the
interests of the minor, the severance of his status would relate back to the date of the institution of the suit and
he would be deemed to be a separate member from the date when the petition was presented in the court.
Date of interest of severance of status when minor institutes suit for partition – The Apex Court held that
even in the case of a minor coparcener, the effective date for severance of status would be the date of institution
of the suit, provided the court actually effects a partition. If the court comes to the conclusion that effecting a
partition will benefit the minor, with the application of the doctrine of relation back, such a minor would be
deemed to be separate from the date of the institution of the suit. Where the court comes to the conclusion that a
partition will not further the interests of the minor, it will not order the effecting of a partition and the minor will
remain an undivided member.
With respect to the second question, as to whether the suit should abate or the court should continue the suit
even after the death of the minor, and examine the issue of whether a partition would have been beneficial to his
interests or not, the court held that the moment a suit was filed on behalf of the minor, a severance of status had
taken place, and the only difference between the cases of a major and a minor coparcener is, that here, it was
conditional upon the court coming to the conclusion that it will further the interests of the minor. Therefore, the
severance had already taken place and what the court examines through this suit is, whether the person who filed
the suit on behalf of the minor, had acted in the best interests of the minor.
REVOCATION OF INTENTION OF PARTITION
 A revocation is effective only when the revocation reaches the Karta or other coparcener before the intention of
partition is communicated to him.
 If the communication of intention of partition is complete, then revocation is unacceptable.

 Once the communication reaches the Karta, a unilateral revocation of intention to seek partition is not
permitted.
 CASE: Puttrangamma v. M.S. Ranganna (AIR 1968 SC 1018)
Trivia: Dealt with unilateral withdrawal or revocation of a demand of partition; Karta in hospital with four
daughters only as descendants.
Facts: The Karta, with his three brothers and their descendants, constituted a joint family. He himself had four
daughters and no male issue. He issued a notice from the hospital, to the other members, declaring his
unequivocal intention to separate from the joint family, as he was sick. At the time of issuing of this notice, his
younger brother’s son was present in the hospital. He snatched the notice and attempted to tear it, but was
prevented from doing so. After the notice was registered at the post office, the family members intervened, tried
to bring about an amicable settlement and persuaded him to withdraw the notice.
He wrote an application to the post office to withdraw the notice and the request was complied with. As no
agreement could be reached subsequently, he signed the vakalatnama and instructed his lawyer to institute a suit
for partition, and died on the day on which the suit was instituted.
Issue: What was his status at the time of his death: that of a separate member or of a joint family member? Did
the withdrawal of the notice operate as a complete renunciation of his intention that he had earlier expressed to
separate from the family?
Held:
Why the question of Karta’s status on death became important? - The question as to what was his status at
the time of his death was very important to determine the devolution of his share in the property. As he died
without leaving a male issue, but four daughter only, if he was still an undivided member at the time of his
 death, his interest in the property would be taken by survivorship, by the surviving coparceners, and the
daughters will not be entitled to anything. However, if the severance was already effected and he, at the time of
his death, was a separate member, the remaining coparceners would not get anything out of his property, as it
will go by inheritance to his four daughters.
A partition, is a matter of individual volition. There is no need to inform each and every coparcener and a
communication to the Karta is sufficient.
A unilateral declaration can bring about a partition, but a unilateral withdrawal of this intention, where the
partition has already been effected, cannot result in a revocation of partition or in a reunion, as, for demanding a
partition, the consent of the other coparceners is not material, but a reunion is not possible unless there is an
agreement between all the members.
Revocation of notice does not amount to withdrawal of partition, severance had already taken place - The
Supreme Court agreed with the verdict of the trial court and held that it is not necessary that the communication
must be through a formal notice, sent through post. Here, even at the time the notice was dictated and signed in
the hospital, one of the coparceners was present. Further, the family members, including the coparcener who
knew that a notice to this effect had been sent, tried to persuade him to withdraw it and agree to a family
settlement, consequent to which only, the notice had been withdrawn. The demand made by the erstwhile Karta
was known to all the other coparceners, and therefore, the severance of status had already taken place.
The withdrawal of the notice did not take place before the communication of the intention to separate was made,
but took place subsequent to the severance of status, consequently, the partition had already been effected, his
status had become that of a separate member and a unilateral withdrawal on the persuasion of family
members, so that he could rethink his decision, could not restore his formal status, more so as the
deceased had instructed his lawyer to file a suit for partition, that was in fact, filed on the day he died.
The court therefore, held that he died as a separate member.
Decision: Karta died as a separate member only and his share will be inherited by the four daughters and not the
surviving coparceners.
REOPENING OF PARTITION
 The partition could be re-opened on the grounds of fraud or concealment of material fact, say for instance, birth
of a new coparcenar, which could alter the shares to be appropriated upon partition.
 However, reopening of partition is only scarcely allowed because of the intricacies involved in reopening.
STATUS OF CHILDREN BORN OUT OF VOID OR ILLEGAL MARRIAGE
 S. 16 of the HMA provides that the Act shall not regard any such child as a bastard, as it is derogatory to the
child and is completely unjustified. Thus, a child born out of void or illegal marriage will be a legitimate child
for inter alia the division of JHF property.
 S. 16 also clarifies that with respect to inheritance from father or mother, there shall be no difference between a
legitimate and an illegitimate child. However, inheritance from any other member of the family (ancestral
property) is faced with differentiation between legitimate and illegitimate children.
 The validity of S. 16 was upheld by the Division Bench of the Supreme Court in the Bharat Mata case.
Interestingly, the same bench in the Mallika Arjun case, held that differentiation with respect to ancestral
property is violative of the legislative intention behind S. 16, i.e., protection of illegitimate children vis-à-vis
inheritance of property. Thus, the Court did away with any differentiation in all senses and held that a child
(whether legitimate or illegitimate) can inherit from any member of the JHF (and not only from his father or
mother).
SPECIAL INHERITANCE CASES VIS-À-VIS PARTITION
 If a partition takes place between the father and his sons, the following members of JHF will inherit an equal
share in the property:
1. Father’s wife (if the father is alive),
 2. Widow mother (if the father is not alive), and
3. Father’s mother.
Prior to 1955, when polygamy was permitted, step-mothers are also included within the scope of “mothers” .
These three relations got a limited right in the property allotted to them prior to 1956. However, post-1956, they
are made the absolute owners of the part of property allotted to them, and their successors can inherit that
portion of the property.
 If the above classes are not given an equal share upon partition of the property, they can ask for re-opening of
the partition. However, important to note here that these classes of women do not have the right to claim a
partition but only enjoy an equal share if partition is claimed by some other male coparcenary.
 The Dravidian School of Hindu law still does not recognize the inheritance mentioned in the above bullet point.

 Example – A father F, with wife W, and two sons S1 and S2. The property is 1 unit. Since there are three
coparcenars, every coparcenar would’ve gotten 1/3 rd share. But since a partition is taking place, W will get an
equal share as S1 and S2. Thus, everyone in the family will get 1/4th share.
RULES OF PARTITION
 Calculation of share/sharer: Total Property * (1 / number of sharers)

 2-generation rule – Consider a situation, F with sons S1 and S2 and S1 has sons S3 and S4. If S3 asks for
partition, the partition will be between F and S1 & S2 only as a first-step because of the two-generation rule.
Thus, the three of them will get 1/3rd share each. Now, S1 has 1/3rd share in the property. So, upon partition
asked by S3 - S1, S3 and S4 will get 1/9th share in property.
The above method of calculating shares is also called as per stripes and per capita. When a branch inherits an
equal share jointly, it is called partition in stripes and then, the subsequent partition within a branch is again
partition per capita (as the heads will be counted within the branch). When the partition is considered between
different stripes, it is considered as per capita, i.e., by counting the number of heads. In the above case, S1, S3
and S4 form one branch and they hold 1/3rd property per stripes. But the partition by two-generation rule
between F and S1 and S2 and the subsequent partition between S1, S3 and S4 are partitions per capita
 Where a JHF has brothers only and the father F has died, though the two-generation rule will not apply, each
brother will take the property per capita, thus inheriting an equal share in the property. Say for example, father
F has a property of 1 unit, with three sons S1, S2 and S3. S2 has a son S4. F has died already and S4 asks for
partition. Since the property belongs to F, the two-generation rule which would’ve applied between F and his
three sons will not apply. Thus, S1, S2 and S3 will get 1/3rd property each per capita, S2 and S4 will hold 1/3rd
share together per stripes and then, S4 and S2 will further divide and get 1/6th property per capita.
 Example –
 Here, there are 6 coparcenars, i.e., all male members in the above JHF. Sharers in property when S3 asks for
partition in 1947 = 7 (6 + Mother M who is father’s wife).
By virtue of the two-generation rule, F, M, S1 and S2 will all get 1/4 th share in the property per capita. S1, S3
and S4 hold 1/4th property jointly per stripes. Since S3 asks for partition, S1, S3 and S4 will take 1/12 th share
each in the property per capita.
Had W been alive in 1947 at the time of partition, then W would also have been a sharer in the S1’s
property for being “father’s wife” with respect to S3. Thus, sharers would’ve been 4 and each would’ve
gotten 1/16th share.
A SPECIAL CASE – PROPERTY GOES TO THE GOVERNMENT BY VIRTUE OF DOCTRINE OF ESTATE
 Illustration: A Hindu father F married to Hindu mother M1 have a son S1. Then, F converts to Islam and
marries M2, has two sons from that marriage, S3 and S4. F dies, who shall get his share of property (ancestral or
separate)?
 In this case, there are two blocks: M1 and S1, & M2, S3 and S4. The first branch cannot be considered as legal
heirs by virtue of the Caste Disabilities Removal Act. It provides that the lineal descendants of converts do not
have an inheritance right in the ancestral or separate property. Since F has converted to Islam, M1 and S1, who
are Hindus, cannot inherit from Muslim F. Further, since the second marriage with M2 is void by application of
Sarla Mudgal case, M2, S3 and S4 will also not qualify as legal heirs.
 Therefore, F dies heirless and by virtue of application of the Doctrine of Estate, F’s property shall go to the
government.
THE CONCEPT OF REUNION
 The members of JHF shared a joint interest earlier, but the interest was severed due to a partition in the JHF.
However, if the severed interest is converted again into a joint interest with the original members of the JHF
being intact, this is called the concept of reunion.
 Only the original coparcenars are empowered to reunite to form the JHF.
 The consequence of reunion is that everyone has equal rights of enjoyment in and of partition over the property,
irrespective of the share of property contributed at the time of reuniting.

1.
 HINDU SUCCESSION ACT, 1956

 Important consultation paper to be referred to for different concepts of succession -

https://lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf
HISTORY OF THE HSA, 1956

 Refer for Introduction to the Act - https://thefactfactor.com/facts/law/civil_law/family_laws/hindu-laws/hindu-

succession-act/3829/
SALIENT FEATURES OF THE ACT

 The concept of Notional partition – If a coparcener is dying as an undivided member of the joint family, then
to determine the dying person’s share in the property, it will be assumed as if the partition is taking place
immediately before the death of such coparcener so that the principle of survivorship doesn’t automatically
apply so as to leave no property for the legal heirs of the deceased coparcener (as the survivorship principle
would ensure that the property went to the surviving coparceners and not the legal heirs). Thus, in essence, the
applicable principle after the 1956 Act becomes the joint application of the principles of representation and of
survivorship.
S. 6 of the 1956 Act gave this concept.
However, the 2005 Amendment Act does away with the principle of survivorship in toto and the only
applicable principle is that of representation, which means that the share of the dying coparcener will devolve to
his legal heirs only and not to other surviving coparceners.
 S. 4 of the 1956 Act provides that HSA would be applicable in case of Hindu intestate succession.

 S. 14 of the 1956 Act gave “absolute ownership” of the property to a woman if she is legally in a position to
entitle property. This changed the limited ownership principle of 1937 Act.
 S. 30 provides that an undivided coparcener can make a will in his share of the ancestral property.

 Coparcenary right to a woman was first introduced by the State of Andhra Pradesh in 1985. Following this
foot-step, Tamil Nadu in 1989, Karnataka and Maharashtra in 1994 also introduced unmarried daughters as
coparceners. However, the 2005 Amendment Act provides this right to all daughters irrespective of their
marital status for all partitions taking place after December, 2004 (this date was mentioned in the Amendment
Act itself).
APPLICATION OF THE ACT: S. 2 HSA

 Read from Act

DEFINITIONS: S. 3 HSA

 S. 3(1)(f) provides that “heir” means any person, male or female, who is entitled to succeed to the property of an
intestate under this Act.
 S. 3(1)(j) provides that “related” means related by legitimate kinship: Provided that illegitimate children shall be
deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be
related to them and to one another; and any word expressing relationship or denoting a relative shall be
construed accordingly.
 Further, S. 3(2) interestingly provides that for HSA, unless the context otherwise requires, words importing
the masculine gender shall not be taken to include females.
 S. 4(2) NOW OMITTED: SPECIAL CASE FOR SUCCESSION OF AGRICULTURAL LAND

 The 2005 amendment to the Act, 1956, by omitting subsection (2) of section 4, has brought agricultural land
within the purview of section 6 of the Act. Therefore, daughters too are now coparceners in agricultural land
along with other coparcenary property.
 Prior to 2005 amendment, heritable tenancy rights to agricultural land devolved under respective State laws. For
example, in Uttar Pradesh, U.P. Zamindari Abolition and Land Reforms Act, 1950 (UPZALR Act), governed
these rights under sections 171to 174 of the Act.
S. 6 – DEVOLUTION OF INTEREST TO COPARCENARY (EFFECT OF 2005 AMENDMENT)

 Amended by 2005 Act, HSA now makes a daughter a coparcenary in the property by birth, similar to the son.
However, this Amendment is to apply post the date of enactment of this amendment, i.e., prospectively [S. 6(1),
HSA 2005]. The date is 9th September, 2005.
 The amended S. 6 doesn’t demarcate on the basis of marital status of the daughter , contrary to the State
actions previously taken, mentioned below.
 Prior to this amendment, Andhra Pradesh in 1985 was the first state legislature to give coparcenary right to
unmarried daughters only. This was followed by Tamil Nadu in 1989, and Karnataka & Maharashtra in 1994
with a similar move.
 The daughter, post the date of 2005 amendment:
A. becomes a coparcenary by birth in her own right in the same manner as the son;
B. have the same rights in the coparcenary property as she would have had if she had been a son;
C. be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a
coparcener.
 S. 6(1) also provides that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken place before the 20th
day of December, 2004.
 1. Female relations born or adopted, 2. Relations introduced by marriage (mother, wife). 2005 Amendment
extends coparcenary right to 1st category only.
 CASE: Prakash & Ors. v. Phulavati & Ors. (2016, SC)
Facts: The dispute was about the ancestral and self-acquired property and retrospective application of the
Amendment act. The Respondent in the Supreme Court petition had filed a suit in the Trial Court of Belgaum,
claiming for partition and possession of certain per cent of ancestral properties, which were acquired by her
(respondent’s) father and different per cent of share in another property. The death of Respondent’s father, who
had acquired the ancestral property, happened on 18th of February 1988. After his death, Respondent acquired
the ancestral properties.
The present Appellants challenged this in the year 1992, claiming that the Respondent can only acquire her
father’s self-acquired properties and not the ancestral property that was inherited by him.
Held:
Living daughter as of 09/09/2005 with a living father entitled to benefit of coparcenary, regardless of her
birth - The 2005 Amendment can be applied to the daughters, whose father was living coparcener as of 9th of
September 2005, regardless of when the daughters are born.
The apex court had held that Section 6 was prospective in nature and would apply only if the coparcener and
daughter were botghh alive as on 9 September 2005.
 CASE: Danamma v. Amar (2018, SC)
Facts: In this case, the appellants were the daughters of Mr Gurulingappa Savadi and Sumitrai and were
amongst the four children with of Arun Kumar and Vijay (the respondents). The respondents filed a suit against
the appellant for the partition of property on July 01, 2002 claiming 1/15th share in the properties wherein it was
contended that the respondents and the widow of Gurulingappa
Savadi were in joint possession of the properties as coparceners and some other properties mentioned in the
plaint were acquired out of the joint family nucleus in the name of Shri Gurulingappa Savadi. It was also
pleaded that Appellants were not the coparceners in the concerned joint family as they were born before the
enactment of Hindu Succession Act, 1956 (Act) and that they were married daughters and at the time of their
marriage they had received gold and money and had, hence, relinquished their share.
When the matter was heard in the trial court, it opined in favour of the respondents, stating that the appellants
could not be coparceners as they were born prior to the enactment of the Hindu Succession Act, 1956. The
decision of the trial court was challenged in the year 2008 in the Honourable High Court wherein this view of
the trial court was upheld by the High Court in the impugned judgment dated January 25, 2012 thereby
confirming the decree dated August 09, 2007 passed in the suit filed for partition. Aggrieved by the same, the
Appellants filed a Special Leave Petition before the Supreme Court of India under Article 136 of the
Constitution.
Issue: Whether the Appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground
that they were born prior to the enactment of the 2005 Act and, therefore, cannot be treated as coparceners?
Held: Even if father not alive on 09/09/2005, the daughter still gets benefit of coparcenary - The apex court
had held that Section 6 would apply retrospectively with respect to birth of daughter but prospectively with
respect to year of partition. The date of partition must be post 09/09/2005 and the daughter should be living on
that date. In this case, the father had died in 2001, leaving behind two daughters, two sons and a widow. The
Court had held that “it is the very factum of birth in a coparcenary that creates the coparcenary, therefore the
sons and daughters of a coparcener become coparceners by birth,” and, consequently observed that the two
daughters being coparceners, were entitled to equal share in the coparcenary property even though the
father was not alive when the substituted Section 6 came into force in 2005.
 CASE: Vineeta Sharma v. Rakesh Sharma (2020, SC)
Held:
Date of father’s demise not relevant, daughter if alive on 09/09/2005 has coparcenary right by birth - The
three-judge bench, led by Justice Arun Mishra, opined that Section 6 of the amended Hindu Succession Act
bestowed upon the daughter an equal coparcenary status, along with its rights and liabilities, akin to a son
coparcener. This right of the daughter was one bestowed by her birth, and would remain unaffected by the date
of the father’s demise.
Through this ruling, the Supreme Court has now categorically ruled that the daughters’ right flows from their
birth and not by any other factor such as the existence of their fathers.
Survivorship as mode of succession no longer permitted - The Court also categorically held that after the
2005 Amendment, interest in coparcenary property can be acquired only by birth or through adoption within
permissible degrees, and not otherwise. Further, the Court has categorically held that survivorship as a mode of
succession of a Mitakshara coparcener, has been abrogated since 9 September 2005, by virtue of Section 6(3) of
the 2005 Amendment.
S. 6(3) INSERTED AFTER 2005 AMENDMENT
 Pre 1956: If a coparcenar dies as an undivided member, principle of survivorship applies and the share of
deceased is taken by the surviving coparcenars.
 1956-2005: Principle of survivorship is still applicable but in case the deceased is survived by either of the three
female relations, the principle of notional partition needs to be applied (the three relations are each given an
equal share as the other coparcenars).
Post 2005: Notional partition is not applicable in exceptional cases only but in all cases of partition where a
Hindu dies after the commencement of the 2005 Act. This is provided for under S. 6(3) of the HSA 2005.
Illustration: Father F with wife M1 have two sons S1 and S2. S2 has a wife M2 and a son S3. In this case, S2
dies and the shares need to be calculated.
The partition will take place between the first two generations first. There are 4 sharers here, F, M1, S1 and S2
and each gets 1/4th. Now, in S2’s branch, there are 3 sharers: S2, M2 and S3 and each gets 1/12 th here. Now, as
S2 has died, his share will not be taken up by the surviving coparcenars by application of principle of
survivorship but by M1, M2 and S3 by application of principle of notional partition. Thus, S3’s final share will
be 1/12 + 1/36 = 1/9th of the property.
S. 6(4): PIOUS OBLIGATION OF DISCHARGING ANCESTOR’S DEBT
 S. 6(4) provides that post 2005 Amendment, no court shall recognise any right to proceed against a son,
grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather
solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to
discharge any such debt. Here also, one can notice the application of the four-generation rule.
 The proviso to S. 6(4) further mandates that debt contracted before the commencement of 2005 shall not be hit
by S. 6(4). It states:
“Provided that in the case of any debt contracted before the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect―
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall
be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have
been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.”
 Further, the explanation to proviso clause (a) mentions that the expression “son”, “grandson” or “great-
grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or
adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
S. 6(5): APPLICATION OF S. 6 PROVISIONS
 It provides that “Nothing contained in this section shall apply to a partition, which has been effected before the
20th day of December, 2004”.
SS. 8 TO 12 – HINDU MALE DYING INTESTATE

 Ss. 8-12 HSA govern the situation when a male Hindu dies intestate. Additionally, Schedule attached to S. 8
talks about class of legal heirs entitled, which also concerns male Hindu dying intestate. However, Ss. 15-17
deal with the situation of a female Hindu dying intestate.
 S. 8 states thus:
“The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:―
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the
Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.”
 S. 9 further provides for the order of succession among the heirs mentioned in the Schedule. It provides that
among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of
all other heirs (this means that if Class I heirs are present, Class II heirs will not get any share and so on for
within Class II); those in the first entry in class II shall be preferred to those in the second entry; those in
the second entry shall be preferred to those in the third entry; and so on in succession.
 Schedule to S. 8 provides for what all relations are covered within ‘Class I’ and Class II’ heirs.
S. 10 (RULES REGARDING DISTRIBUTION OF PROPERTY AMONG CLASS I HEIRS)

 Section 10 provides for distribution of property among heirs in class I of the Schedule. It stipulates the property
of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:
Rule 1: The intestate’s widow, or if there are more widows than one, all the widows together, shall take one
share. Thus, all widows together would be considered as 1 and will take 1 share.
Rule 2: The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3: The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall
take between them one share. Thus, the property devolves upon grandchildren only when the son or daughter
has pre-deceased.
Rule 4: The distribution of the share referred to in Rule 3:
Rule 4(i): among the heirs in the branch of the pre-deceased son shall be so made that his widow (or
widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-
deceased son gets the same portion;
Rule 4(ii): among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving
sons and daughters get equal portions.
Thus, equal shares are taken by all the class I heirs.
S. 11 (DISTRIBUTION OF PROPERTY AMONG CLASS II HEIRS)

 Section 11 talks about distribution of property among heirs in class II of the Schedule.

 Family comprises of F, M, S1 and S2. S1 predeceases his family. We need to see who will inherit the property
under Section 8. M is class I, and S2 and F will fall under class II. In presence of class I, class II cannot inherit.
So entire property of S1 will be inherited by M.
 Here, the question didn’t state whether S1 died intestate or not. We are going for assumption that
property is separate property of S1 and therefore, Section 8 is being applied.
 Illustration: Notional partition would come into picture when question states that JHF of F, M, they have 3
children: S1 (married to M1), S2 and D1. S1 and M1 have two children S3 and D2. S1 dies as undivided
member of family and dies intestate. Question is who will inherit property under section 8, and calculate the
shares of legal heirs entitled to inherit property under section 8. Situation is of 2016.
As person dies undivided, we first ascertain share of S1 in ancestral property as per Section 6 notional partition,
and divide that particular share only between the legal heirs as per Section 8.
Here, S1 dies as undivided members, therefore, according to Section 6, notional partition will take place. S1’s
share will 1/5, as 5 sharers in first two generations (F, M, S1, S2 and D1).
Now, in S1’s branch, he is holding this 1/5th share as the representative of his branch. Thus, we will divide it
further. As 4 sharers, 1/20th share of each. Thus, S1’s separate share comes out to be 1/20. Now, as per section
8, the class I heirs are – M1, M, S3 and D2. Their share will be total share * 1/number of legal heirs i.e., 1/20 *
¼ = 1/80 each. Class I will inherit the property simultaneously and to the exclusion all others as per Section 9.
And there are 4 identified class I legal heirs as per the section 8 and Schedule. The class I heirs would inherit the
shares equally within themselves as per section 10, rules 1 and 2.
 Therefore, the final shares are as follows:
S3 and D2 and M1 = 1/20 + 1/80 = 1/16.
M = 1/5 + 1/80 = 17/80.
 Question: F died in 2017 as intestate Hindu, leaving behind widow M, son S2, a widow M1 of his pre-deceased
son S1, and S1 and M1’s son S3 and daughter D1. Calculate the shares of legal heirs of F.
Answer: Here, notional partition would not take place, as it is not stated that F dies as undivided member of
family. Thus, F has separate property and there would be direct application of section 8. Thus, we do not need to
ascertain the share of F here.
Here, class I heirs – M gets 1 share as per rule 1. S2 gets 1 share as per rule 2. S3 and D1 together get 1 share as
per rule 3. Thus, 3 shares of property have to be made. Final share of M = 1/3, final share of S2 = 1/3.
Now, 1/3 share acquired by S3 and D1 is divided as per rule 4(i). S3, D1 and M1 would get equal share. Thus,
1/3 * 1/3 = 1/9th share.
Final share of S3, D1 and M1 = 1/9.
S. 14 (FEMALE TO BE ABSOLUTE OWNER OF PROPERTY)

 Earlier, before the commencement of the HSA, every property given to female before marriage was treated as
her absolute property and thus, her legal heirs could claim a right over it. However, property given to female
post marriage could be disposed of by her only when her husband consents to the same.
 However, S. 14(1) of the HSA conferred an absolute interest in the property possessed by a female. Now, a
female had the absolute power to dispose of the property (either by will or through some other mechanism)
without any interference from some other relative of the female.
 The phrase property possessed by a female means that the female has a rightful claim over such property.
Thus, she must have ownership rights over the property concerned. Further, the possession contemplated by this
provision involves both actual as well as constructive possession.
 Additionally, the property may be acquired before or after the commencement of the HSA.

 A female loses a right over the property under S. 14 when she re-marries.

 CASE: V . Tulasamma v . V . Sesha Reddy (AIR 1977 SC 1944)

Concerns Ss. 14(1) and (2).
Facts: The Supreme Court had the occasion to determine whether the property received by a Hindu widow, in
lieu of maintenance, under an instrument that restricts the nature of interest given to her, would be held by her as
an absolute owner after the commencement of the Act, and whether it would be s. 14(1) or s. 14(2) that would
apply to such cases. If s. 14(1) is applicable, then the limitation on the nature of her interest is wiped out and she
becomes a full owner of the property, but if it is s. 14(2) that governs the case, then her limited interest is not
enlarged and she continues to have a restricted estate in the property under that instrument. Here, the widow
claimed maintenance after the death of her husband from his brother, as he had taken possession of his property.
A decree was passed in her favour and in execution of this decree of maintenance, a compromise was arrived at
between the parties, allotting some properties to her for her maintenance, specifically stating that she had only a
limited estate.
Held: The court held that a widow is entitled to maintenance out of her deceased husband’s estate,
irrespective of whether that estate is in the hands of his male issue or other coparceners.
In the present case, the property was allotted to her in lieu of her claim to maintenance and therefore, in view of
S. 14(1), she acquired an absolute interest in it.
This landmark judgment has been quoted by the courts in virtually all the later decisions involving a similar
issue. Where the widow receives property in lieu of her maintenance, under a compromise before the Act,
 her limited rights mature into absolute rights. The mode of acquisition is immaterial if it is received in lieu of
maintenance. It may be received under a Will, a compromise, at the time of a partition or through any other
settlement.
Where the property comes to the female in recognition of her pre-existing rights of maintenance, she will
acquire full ownership in it under S. 14(1). It is irrespective of the fact that she was given a right of residence
only.
S. 15 [RULES OF SUCCESSION FOR FEMALE PROPERTY]

 Law Commission Report No. 207 for succession of Hindu female’s property -
https://lawcommissionofindia.nic.in/reports/report207.pdf
 S. 15 of the HSA provides thus:
“General rules of succession in the case of female Hindus.― (1) The property of a female Hindu dying
intestate shall devolve according to the rules set out in section 16,―
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and
the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),―
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any
son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the
other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in
the absence of any son or daughter of the deceased (including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the
heirs of the husband.”
 S. 15(1) wreaks of male dominance for succession of a female Hindu’s property as the legal heirs of husband
take precedence over the female’s own mother and father.
 Further, S. 15(2) precludes a female from having an absolute interest in the property inherited by her. However,
the SC has not yet declared the sub-section unconstitutional, for reasons best known to it.
 CASE: Om Prakash v. Radha Charan [2009 (7) SCALE 51]
Facts: A fifteen years old Hindu girl was thrown out of the matrimonial home after her husband died of snake
bite after three months of the marriage. She took shelter with her parents, was educated by them and then took a
job. Her in laws never bothered to inquire for her, let alone look after her, and there was a complete snapping of
relations. She died intestate 42 years later, leaving behind huge sums in various bank accounts, besides her
provident fund and a substantial property.
Held: Ironically the claim of her mother and then the brother was negatived by the Supreme Court in favour of
her late husband’s brothers, i.e., the same in-laws who had kicked her out at the time of her becoming a widow
on the ground that as per the provision of the S. 15(1) of the Hindu Succession Act, 1956, it is the heirs of the
husband who have a legal right to inherit the property of an issueless married Hindu woman and her parents
cannot inherit in their presence.
 S. 16 [ORDER OF SUCCESSION AND MANNER OF DISTRIBUTION AMONG HEIRS FOR FEMALE PROPERTY]

 S. 16 provides thus:
“Order of succession and manner of distribution among heirs of a female Hindu.―The order of succession
among the heirs referred to in section 15 shall be, and the distribution of the intestate’s property among those
heirs shall take place according to the following rules, namely:―
Rule 1.―Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to
those in any succeeding entry, and those included in the same entry shall take simultaneously.
Rule 2.―If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children
alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share
which such son or daughter would have taken if living at the intestate’s death.
Rule 3.―The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of
sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules
as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may
be, and such person had died intestate in respect thereof immediately after the intestate’s death.”
 as

HSA 2005 AMENDMENT

 It did away with the principle of survivorship.

 The concept of pious obligation to pay off the debt is also no longer applicable post 2005.

 S. 23 of the original 1956 Act stated that a female legal heir could not take part in the partition of a dwelling
house. However, the 2005 amendment omitted this Section from the Act.
 The words “[disposed of by him or by her]” were added to S. 30 which concerns testamentary succession.

 S. 9 HAMA still needs to be amended to include gender neutrality.

EFFECT OF 2005 AMENDMENT

1. Gender equality,
2. Daughter, post marriage, continues to be the member of father’s JHF and also the husband’s JHF
[CASE: Vineeta Sharma v. Union of India (2020)]. But she cannot be a coparcenar in the husband’s
JHF.
3. If a woman becomes the senior-most person in the JHF of her father, then she can be a Karta assuming
that they die after 2005. This doesn’t extend to she being a Karta in her in-laws’ JHF because she is not
a coparcenary in that JHF.
 DAYABHAGA LAW

 The share in the property remains fixed.

 The moment the father dies, the coparceners have the option of either continuing the unity of possession or
claim partition of the property taking away their fixed shares in the property.
 The concept of Karta is recognized but not much importance is attached to it.

RANDOM TOPICS

 Rajasthan passes Bill for registration of child marriages - https://www.livelaw.in/news-updates/rajasthan-

assembly-passes-bill-to-allow-registration-of-child-marriages-181937
 MAHOMEDAN LAW

THE CONCEPT OF HIBA (P. 194 OF MULLA PRINCIPLES OF MAHOMEDAN LAW)

 Refer to Preeti ma’am’s mail.

 A hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to
another, and accepted by or on behalf of the latter.
 ‘Gift’ or ‘Hiba’ literally means the giving away of such a thing from which the person in whose favour the gift
is made may draw benefit. The definition of Hiba or Gift has been given in Kanz al Daquiq in the following
words: " Hiba is the making of another person owner of the corpus of property without taking its consideration
from him."
 Thus, gift is the transfer of movable or immovable property with immediate effect and without
consideration by one person called the donor to another person called the donee and the acceptance of the
same by one himself or by someone authorised on his behalf, provided that making the gift must totally
renounce all his title and rights in the property gifted away of his independent free will
 For Hiba, there must be an expression from doner to the done elucidating his intention to gift his property.

 By will, not more than 1/3rd of property could be given away under Mahomedan Law. However, there is no
restriction on property given away by gift during lifetime (called Hiba).
 No condition can be imposed on gifting away of the property. If any condition is imposed, then the condition
needs to be removed and the gift is executed.
CONCEPT OF DELIVERY OF POSSESSION
 Given on P. 204 of Mulla Principles of Mahomedan Law book pdf.

 CASE: Musa Miya v. Kadar Bux

Given on P. 4 of the Hiba PDF by Preeti ma’am.
 as
THE CONCEPT OF WASIYAT (WILL)

 The will is called Wasiyat in Muslim law.

 Legatee – A legatee is a person who gets benefitted under a will.

 Who can be a legatee? – Under Sunni law, a legal heir cannot be a legatee even if a Muslim person is trying to
bequest 1/3rd or less than that of his property. However, under Shia law, the 1/3rd property or less can be given
away as will to any person covered by Quran, including that person’s legal heirs.
Also, Sunni law provides that the property cannot be given away by will without the consent of the other legal
heirs. However, under Shia law, the property can be given by will without the consent of heirs as long as it is
equal to or less than 1/3rd of the property.
 If the limits with respect to legatee (legal heirs or not) or the portion of property to be given away (if more
than 1/3rd) by will are breached, then the transaction is not considered void automatically. Rather, if the
consent of other legal heirs is obtained for such transaction, the transaction continues to be valid.
 When to take the consent – Under Sunni law, the fit rule is that the consent of the heirs needs to be taken after
the death of the testator and only then can the consent be considered to be a valid consent. However, under Shia
law, the consent, if given, and if given during lifetime or after death of testator, continues to be valid under Shia
law.
 What if the legatee predeceases? – In Sunni law, the wasiyat would become void and the property will be
reverted back to the testator. In Shia law, the legal heirs of the pre-deceasing legatee are entitled to take the
property and the wasiyat continues to be valid.
 Revocation of wasiyat – 1. By express conduct of revocation, or 2. Impliedly (by gifting the property to
someone else than the legatee during the testator’s lifetime).
INHERITANCE AND SUCCESSION UNDER MOHAMMEDAN LAW

 In Shia law, even if there is a wasiyat, the Quranic heirs entitled to receive a share in the property are given their
particular shares. The Quranic law is mixed up with the new rules such as including women within Quranic
heirs and thus, a new scheme of inheritance and succession originated.
 In Sunni sect, the Arabic customs and usages are dominant and are overlapped by Quranic law. Thus, the
framework of Arabic customs is still intact, with Quranic law superimposed over it. Under this sect, agnes is
preferred over cognes.
DIFFERENCE BETWEEN HINDU LAW AND MOHAMMEDAN LAW ON SUCCESSION
 The concept of JHF is unique to Hindu law but is absent to Mohammedan law.

 Different schemes are applicable to a Hindu male and a Hindu female dying intestate. However, under
Mohammedan law, a single scheme of succession governs both male and female.
 There is no restriction on the amount of property that can be bequested under Hindu law. There is a restriction of
1/3rd under Mohammedan law.
 Under Hindu law, the right in property is given by birth. However, there is no such right by birth in
Mohammedan law.
LAW OF INHERITANCE OF SUNNI LAW
 Two types of heirs:
1. Related heirs/Principal Classes – They are further divided into three categories:
Sharer: They are also called “Quranic heirs”. They are called so because their shares in the property
are already fixed by Quran. They are first in terms of hierarchy to take share in the property.
Sharers are those heirs who are entitled to get a prescribed share from the heritable property. The
Sharers and their respective shares in the property of a deceased are given in Quran. The Sharers are,
therefore, also called as Quranic heirs.
In the distribution of property, the Sharers get preference over the other class of heirs, therefore, first of
all the respective share is allotted to each Sharer. It may be noted that Sharers are those heirs whose
respective shares are given in Quran; therefore, their shares cannot be altered by any human effort,
Residuary: From the residuary property after ‘sharers’ have taken, residuary heirs take shares in the
property. Their shares are not fixed in nature.
Residuaries are those heirs who inherit only the residue of the property after allotment of respective
shares to the Sharers. Obviously, the Residuaries have no specific share of their own. After giving the
property to the Sharers in their fixed shares, if there remains some property that ‘remaining property’
(residue) is available to the Residuaries.
The residue may differ from case to case. If there are no Sharers, the whole is inherited by the
Residuaries. Residuary heirs are also termed as Agnatic heirs because they inherit through male
relations.
When residuaries are not present, then the property is divided again between the sharers by the
principle of ratt.
 Exception – The living spouse (husband or wife) are excluded from the principle of ratt. Thus, if
residuaries are not present and their share is divided between sharers, then the living spouse will inherit
only as a Quranic heir and will not inherit the residual property. However, when residuaries are not
present and the deceased is survived by a living spouse only, then the property is shared by Distant
Kindered amongst themselves and the living spouse still gets no share.
Distant Kindererd or Uterine Heirs: All those persons who are related to propositus through blood
but could not be included as heirs in the class of Sharers or of Residuaries, are called distant kindred. If
a propositus has neither Sharers nor Residuaries, the properties are inherited by his Distant Kindred.
Distant Kindreds cannot inherit in presence of any Sharer or Residuary. The heirs included in this class
are also termed as uterine heirs.
2. Unrelated heirs/Subsidiary Classes (receiving property by gift, wasiyat, etc.) - Besides the above-
mentioned three classes of heirs, there are four more categories of legal heirs. The heirs included in any
of the following classes are called subsidiary heirs and inherit only in exceptional cases;
(1) Successor by contract
(2) Acknowledged kinsman
(3) Universal legatee, and
(4) The State (through the process of escheat).
 Guidance regarding rules and shares - https://www.shareyouressays.com/knowledge/categories-and-classes-of-
legal-heirs-under-the-sunni-muslim-laws/117455
 Inheritance shares under Sunni law, with shares in cases of variations –


 True grandfather means a male ancestor between whom and the deceased no female intervenes. Under Sunni
law, in the presence of a father or nearer true grandfather, the true grandfather cannot inherit the property,
neither as a sharer nor as a residuary.
 The Mohammedan inheritance law is such that the son can never be excluded from inheriting the property.
Purposedly, he has mentioned as a “residuary” and not a “Quranic heir” so that he gets the maximum portion of
the property.
 Important - The daughter in presence of a son becomes a residuary and takes ½ of the property taken by
the son as a residuary.