Family Law II Notes for End Semester Examination

1) A partition under Hindu law once effected is usually final and

binding on the parties. But in certain circumstances it can be
reopened. Discuss.
Refer family law note. Taken from law audience journal.

2) A Critical Analysis of the position of female Hindu Coparcener

before and after the Hindu Succession Amendment Act, 2005.

Only after 2005, the Hindu Succession Amendment Act was brought in by the parliament rectifying
the status of daughters in the Joint Hindu family, granting them equal rights as that of son. This
change brought in the act was based upon the recommendations of the 174th law commission
report on women’s right in property under Hindu law advocating the changes to be brought in the
code to ensure equal treatment of both the genders.

Changes Brought in By 2005 Amendment

The Hindu Succession (Amendment) Bill, 2004 was introduced with the idea of bring two major
changes in the then existing Hindu Succession Act, 1956 (hereinafter referred to as the Act). First
being, bring a new section in place of the existing Section 6 in order to give
equal rights to the daughters as to the sons and second being omission of section 23 which disentails
the female rights to ask for partition in a dwelling house occupied by the intestate family with the
male heirs initiating it. And finally, in 2005, certain changes were brought in to the Hindu Succession
Act, 1956 by way of this amendment. These changes were brought in:

Section 4(2)

The said section shall be omitted as the said provision provided that the act shall not override the
provisions laid down in any other act to avert the division or fragmentation of the agricultural or
sealing the ceiling or creation of tenancy rights in spite of such holding. Since this section excluded
rights on agricultural lands from its purview and was regulated by the State- level tenure laws, it was
creating a discriminatory in favour of women as the women were not getting any entitlement or
interest in the agricultural lands. So with the removal of this provision, the women’s interest in
agricultural land as that of men is ensured.

Section 6

Another significant change which became a milestone in the history of women’s rights in property
was deletion of the old provision under Section 6 of the act and insertion of new provision. With this
new provision, the daughter becomes coparceners in the property of the Joint Hindu Family by birth,
acquiring similar rights and liabilities to that of a son. As women’s right in property i.e. undivided
property was quite alienated and highly fragmented in the Hindu law. Not dwelling deep into the
ancient and medieval practices and sticking to the recognition brought in by the legislature by way of

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introduction to laws protecting the same. Property rights of Hindu women vary depending on the
status of the woman in the family and her marital status as whether the woman is a daughter,
married or unmarried or deserted; wife or widow or mother. It also depends on the kind of property
one is looking at whether the property is hereditary/ ancestral or self-acquired, land or dwelling
house or matrimonial property.

So women were not allowed to inherit any property either from husband or father, and would
possibly possess the stridhan. And their existed two types of stridhan, first being the sauadayika,
these are gifts from relatives of both sides (parents and husband), over which she had full absolute
ownership and had rights of disposal, and second being the non-sauadayika, which included gifts
from strangers and property acquired by self-exertion, mechanical art, and so forth as a married
woman, over which she had limited rights on such property and cannot alienate it without the
consent of her husband.

This confusion of women’s limited rights on certain was settled by Privy Council mentioning that the
property with limited rights as women’s estate whereby the female owner takes it as a limited
owner only. This right of women in property was first recognized by the legislatures only with the
enforcement of The Hindu Women Rights to Property Act, 1937. But only one type of women i.e.
widow’s right got recognition where any Hindu dies intestate leaving her, then she can claim
partition as a male owner. Though this right was limited in nature i.e. she requires consent of male
members in order to dispose of this women’s estate. This would be definitely seen as a milestone in
the history of women’s property rights, though it was limited in scope and subjugated the women’s
status mere to her matrimonial relation making it base for such claim in property.

So to overcome the abnormalities created by the abovementioned actThe legislatures finally

introduced an act named The Hindu Succession Act, 1956. But still the act was not adequate enough
to recognize the coparcenary of daughters in the Joint Hindu Family. So this created a disadvantage
upon the daughter as they don’t have a right to seek partition. But with the changes brought in by
the amendment of 2005, the daughter became coparcener, getting all rights of the coparcener
including the right to seek partition for her share in the Joint Hindu Property.

And by virtue of this new provision all the alienation or partition or testamentary partition affected
before the 20th December 2004 will not be affected.

Section 23

Another landmark change brought in with this amendment was omission of section 23 of the act,
which clearly discriminated against the female heirs to seek any partition in the dwelling house
which the intestate left before the male heir chose to do so. This is the most evident form of
prejudice created by the Hindu Succession act prior to 2005, as the female rights were restricted to
dwell in that house that too only in case of she being unmarried, separated, deserted or a widow
and became contingent on the whim and fancies of the male members of the family.

Section 24

The said section was also omitted with the amendment brought in 2005, which discriminated three
category of women related to the intestate as the widow of a predeceased son, the widow of a
predeceased son of a predeceased son or the widow of a brother, by virtue of their remarriage on
account of opening of the succession. This was laid down on the principle that the widow is the
surviving half of her husband and virtue of her remarriage ceased to be the same. And by way of this
her right in the property was divested. But certain other kinds of widow as that of intestate’s own

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wife have not been divested even after remarriage to have right in property of her deceased
husband. Now as the constitutional pronouncements made it clear that equality is the essence of the
justice and legislative system. But still inequality was persistent in the act before the 2005
amendment.

As a claimed fact the first two category of discriminated widow i.e. widow of a predeceased son and
the widow of a predeceased son of a pre-deceased son from part of Class I heir and the third
category of widow i.e. widow of the brother forms a part of an agnate. That means by virtue of being
such they inherit the property immediately after the dead of the intestate, and their rights get
invested accordingly. And once her right is invested in that property, she becomes an absolute
owner as per section 15 and after such investment of property by means of she being the heir of the
deceased, it cannot be divested by any further event. Therefore, in order to correct this problematic
situation creating disadvantage to certain categories of women under section 24 of the Act, it was
omitted.

Section 30

Under section 30 of the Act, the substitution of words from “disposed by him” to “disposed by him
or by her” was done, in order to make it gender-neutral which is the objective of this amendment.

And, certain additions were done to the schedule under the subheading of class I heir, in order to
give equal treatment to lineal descendants of the daughters as to that of son.

Hence, with the introduction of The Hindu Succession (Amendment) Bill, 2004 which further got
enforced in 2005 became the turning point of turmoil of sexual discrimination exiting in the Hindu
Law.

Effects of Amendment brought in the act upon the Interest of Women in the Property

This amendment was enforced on September 9, 2005 and created a history in the terms of women’s
right in property under Hindu Law. The impact of this amendment was that the secondary or
substituted position of which the women were usually subject to under Hindu law was removed and
created similar rights or position of a daughter that of a son. As per section 6, daughters were
recognized as coparcener since birth, thereby she exercises all rights of a coparcener and by virtue of
that she can also become a Karta, if she is the senior-most member of the family.

With the recent Judicial pronouncement and interpretation given by the Courts upon the
amendment questions related to the implication of this amendment and how it would affect the
position of women and property after the enforcement becomes clear and distinct. As the daughters
born on or after 9th September’ 2005 accrue an interest in the ancestral property by virtue of
becoming a coparcener as that of son. Though this question of the effect of this amendment
whether would be retrospective or prospective in nature is in dispute for a long time. As the Bombay
High Court in case of Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar &
Ors. The Division bench observed that the act should be applied retrospectively unless explicitly
mentioned as the words “on and from” in Section 6 (1) of the Act after amendment shows its
prospective nature. And they held that the daughters born on or after 9th September’ 2005 will only
be considered as coparceners and those who are born prior to the aforesaid date will devolve an
interest in the coparcener property only after his death by means succeeding his interest.

But this view was disputed by the Full Judge bench of the same court in case of Shri Badrinarayan
Shankar Bhandari & Ors. v. Ompraskash Shankar, where the court observed that for the implication
of amended section 6(1) of the act, there are two prerequisite conditions. Firstly, the daughters

pg. 3
claiming benefit under Section 6 of the Act must be alive on the date of enforcement of the
amendment act. And, secondly, the property in question must be available as the coparcenary
property on the date of enactment of the amendment. The Court held that the amendment is
retroactive in nature and will be applicable to all those daughters who were born prior and after
17th June’ 1956 but before 9th September’ 2005. However, it is conditioned to only one fact that at
the time of commencement of 2005 Amendment, the daughter was alive. As when the Principal Act
was enforced, it was applicable to all Hindus born prior or after 17th June’ 1956, but was contingent
on the fact that the person was alive at the time of such enforcement. The Parliament will enact this
amendment has specifically used the word “on and from”, so to make sure that the already settled
rights in terms of coparcenary property won’t be disturbed by a claiming as an heir to a daughter
who had passed away before this amendment came into force. Therefore, the daughters born prior
to 9th September’ 2005 will be covered under this amendment subject to given conditions.

This view of amendment being applied retrospectively in order to ensure the best interest of the
daughters was also upholded the Supreme Court in case of Danamma @Suman Surpur v. Amar
Singh, the Hon’ble court held that the amendment is applicable to all living daughters of living
coparceners as on 9th September’ 2005 and cannot be disputed further for its implication. Though
the disposition either in form of partition or alienation secured before 20th December’ 2004 by the
application of law won’t be affected.

Now the same court in the case of Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., the held
that a preliminary order passed by the Court in regards to a partition suit, do not prejudices the
rights of daughters conferred by the amendment. As far as partition suits are concerned, it becomes
final only with the passing of the final decree. Therefore, the court may make necessary
amendments in the preliminary decree in order to restore the rights conferred by the law. Hence, it
can be concluded that a suit for partition filed before 2005, but was pending before the Court for its
final decree. Then in such suits the daughter’s right in the property is also being created by the virtue
of her being alive after the amendment was enforced.

Conclusion

Status of Hindu women was always subjected to male members of the family even in
Dharmashastras. And that’s why when the Hindu Succession Act was enacted in 1956; the
legislators didn’t feel any need for giving rights to daughters in the property of the Father, since the
notion of daughter being part of another family after her marriage and should not have right to
inherit anything from her father’s property.

But with the 2005 amendment, the equality ensured under the Constitution was re-established and
the provisions granted the equality in status of son and daughter in a Joint Hindu Family. Though the
certain ambiguity still exists in regards to the validly adopted daughters, as this term is nowhere
mentioned in the amended Act and her rights in regards to inheritance of her father’s property. Also,
the children of the daughter will be treated as coparceners in the same sense as that of son’s
children, as the status of son or daughter has been equally under section 6 of the Act.

Hence, it is the most eminent achievement in the backdrop of where Hindu women were situated in
the society before this amendment came into being.

3) What Is Mitakshara Coparcenary?

Coparcenary literally means Joint inheritance or heirship of property. Also called parcenary.
Coparcenary is a narrower body of persons within a joint family, and consists of father, son, son's

pg. 4
son, son's son's son. The disparity in the property rights on the basis of gender is deep rooted and
can be traced back to the ancient times. Traditional Hindu inheritance laws evolved from the ancient
texts of Dharmashastras and the various commentaries and legal treatises on them. In particular, the
Mitakshara and the Dayabhaga legal doctrines, dated around the twelfth century AD govern the
inheritance practices among the Hindus. In most of northern and parts of western India Mitakshara
law is prevalent.Under the Mitakshara law, on birth, the son acquires a right and interest in the
family property. According to this school, a son, grandson and a great grandson constitute a class of
coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara
law. Under the Mitakshara system, joint family property devolves by survivorship within the
coparcenary. This means that with
every birth or death of a male in the family, the share of every other surviving male either gets
diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one
third of the property. If another son is born in the family, automatically the share of each male is
reduced to one fourth. The Mitakshara law also recognizes inheritance by succession but only to the
property separately owned by an individual male or female. Females are included as heirs to this
kind of property by Mitakshara law.

Position Of Woman (In Regards To Property Rights) Prior To Enactment Of Hindu Succession Act,
1956

Since time immemorial the framing of all property laws have been exclusively for the benefit of man,
and woman has been treated as subservient, and dependent on male support. The right to property
is important for the freedom and development of a human being. Prior to the Act of 1956, Shastric
and Customary laws, which varied from region to region, governed Hindus and sometimes it varied
in the same region on a caste basis. As the country is vast and communications and social
interactions in the past were difficult, it led to diversity in the law. Consequently in matters of
succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas;
Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and
Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India,
diverse in their nature, owing to their varied origin made the property laws even mere complex.

But, however the social reform movement during the pre-independence period raised the issue of
gender discrimination and a number of ameliorative steps were initiated. The principal reform that
was called for, and one which became a pressing necessity in view of changed social and economic
conditions, was that in succession there should be equitable distribution between male and female
heirs and the Hindu women's limited estate should be enlarged into full ownership (however that
actually never happened). The only property over which she had an absolute ownership was the
Stridhan meaning women's property.

Prior to Hindu Law of Inheritance Act, 1929-

Prior to this Act, the Mitakshara law also recognizes inheritance by succession but only to the
property separately owned by an individual, male or female. Females are included as heirs to this
kind of property by Mitakshara law. Before the Hindu Law of Inheritance Act 1929, the Bengal,
Benares and Mithila sub schools of Mitakshara recognized only five female relations as being entitled
to inherit namely - widow, daughter, mother paternal grandmother, and paternal great-grand
mother . The Madras sub-school recognized the heritable capacity of a larger number of female's
heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are expressly

pg. 5
named as heirs in Hindu Law of Inheritance Act, 1929.The son's daughter and the daughter's
daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to
women, recognized a number of other female heirs including a half sister, father's sister and women
married into the family such as stepmother, son's widow, brother's widow and also many other
females classified as bandhus.

Hindu Law of Inheritance Act, 1929-

This was the earliest piece of legislation, bringing woman into the scheme of inheritance. This Act,
conferred inheritance rights
on three female heirs i.e. son's daughter, daughter's daughter and sister (thereby creating limited
restriction on the rule of
survivorship).

Hindu Women's Right to Property Act (XVIII of), 1937

This was the landmark legislation conferring ownership rights on women. This Act brought about
revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of
coparcenary but also in the law of partition, alienation of property, inheritance and adoption . The
Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of
the son. But, the widow did not become a coparcener even though she possessed a right akin to a
coparcenary interest in the property and was a member of the joint family. The widow was entitled
only to a limited estate in the property of the deceased with a right to claim partition . A daughter
had virtually no inheritance rights.

Despite these enactments having brought important changes in the law of succession by conferring
new rights of succession on certain females, these were still found to be incoherent and defective in
many respects and gave rise to a number of anomalies and left untouched the basic features of
discrimination against women. These enactments now stand repealed.

Constitutional Provisions ensuring Gender Equality-

The framers of the Indian Constitution took note of the adverse condition of women in society and a
number of provisions and safeguards were included in the Constitution to ward off gender
inequality. In this context, Articles 14 , 15(3) and 16 of the Constitution can be mentioned. These
provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV containing
Directive Principles of State Policy, which are no less fundamental in the governance of the State to
ensure equality between man and woman such as equal pay for equal work.

2) Rules for intestate succession under Indian Succession Act 1925:

Intestate Succession among Indian Christians:

Section 30 of the Indian Succession Act, 1925 defines Intestate Succession thus, a person is deemed
to die intestate in respect of all property of which he has not made a testamentary dispossession

pg. 6
which is capable of taking effect. Thus, any property which has not already been bequeathed or
allocated as per legal process, will, upon the death of the owner, in so far, as he is an Indian
Christian, devolve as per the Rules contained in Chapter II of the Act. If a person has not made a
testamentary disposition of his property which is capable of taking effect, he is deemed to have died
intestate in respect of his entire estate. Intestacy is either total or partial. There is a total intestacy
where the 5 deceased does not effectively dispose of any beneficial interest in any of his property by
will. There is a partial intestacy where the deceased effectively dispossess of some, but not all, of the
beneficial interest in his property by will.

Rules of Distribution:

The Succession Act contemplates only those relations that arise from a lawful marriage. Where an
intestate has left a widow and if he has left lineal descendants, i.e., Children and Children’s Children,
1/3rd of his property shall belong to the widow, and the remaining two third shall go to the lineal
descendants. If the intestate has no lineal descendants, but has left persons who are of kindred to
him, half of his property shall belong to the widow and the other half shall go to those who are of
kindred to him.

9. A husband has no right to inherit the property of a divorced wife. In case of a judicial separation
under the Indian Divorce Act, 1869, the property of the wife would devolve upon her legal heirs as if
her husband were dead.

10. A daughter-in-law has no right of succession to the estate of her intestate father-in-law.

11. Where the intestate has left a widow, and there are no lineal descendants, the widow’s share is
one half of the estate of the intestate, as is provided under Section 33 (b).

12. Where an intestate has left no child, but only a grandchild or grandchildren and no other remote
descendant, the property shall belong to the grandchild if only one grandchild is left by the intestate
and if there are grandchildren, the property shall belong to the surviving grandchildren in equal
shares.

13. As there is no statutory recognition for adoption by Christians in India, an adopted child cannot
claim the right to succession unless a custom of adoption can be proved.

14. A Hindu Converts to Christianity will be bound solely by the Succession laws governing Christians,
inclusive of the Indian Succession Act, 1925. The religion of the heirs will not act as 6 estoppel with
regard to succession even the Hindu father of a son who had converted to Christianity was held
entitled to inherit from him after his death. When a Hindu convert to Christianity dies intestate, it is
the father, who succeeds to the property. The religious faith of the father is immaterial for the
purpose of succession, it is that the deceased should have belonged to Christian Religion on the date
of his death.

15. In case of a Christian daughter, she has no pre-existing right in the family property and her rights
arise when her parents die intestate.

16. As per Section 48, when the intestate has left neither lineal descendant, nor parent, nor sibling,
his property shall be divided equally among those of his relatives who are in the nearest degree of
kin to him. If there are no heirs, whatsoever to the estate, the Doctrine of Escheat can be invoked by
the Government, where upon the estate of the deceased will revert to State. Important

Case Laws: 1. Mrs. Mary Roy etc. Vs. State of Kerala and others - 1986 SCR (1) 371. 2. Thankamma
and another Vs. N. Kunjamma and others –AIR 1986 Kerala 134. 3. Anthappa (Deceased) by his LRs

pg. 7
Vs. Distinappa alias Subbanna - AIR 2006 Kant 60. 4. Thomayar Vs. Mary - 2004 (1) KLT 863. 5. Mary
and others Vs. Eliyamma and others – AIR 1974 Kerala 107. 6. E.V.George Vs. Annie Thomas and
another – AIR 1991 Kerala 402. 7. Mathew Varghese Vs. Rosamma Varghese – AIR 2003 Kerala 312.

4) The Indian Succession Act, 1925

The religion of the deceased determines the succession to his estate. For example,
succession among Hindus is governed by the Hindu Succession Act, 1956. As such,
Christians in general are governed by the Indian Succession Act of 1925 for
succession purposes.
S. 2(d) of the Act defines an “Indian Christian” hereby: “Indian Christian” means a
native of India who is, or in good faith claims to be, of unmixed Asiatic descent and
who professes any form of the Christian religion.
This was further clarified in the case of Abraham v. Abraham where the scope of this
definition of an ‘Indian Christian’ was delineated with regard to its actual working.
This case laid down that a Hindu who has converted to Christianity shall not be
governed by Hindu law (customary or otherwise) anymore, and any continuing
obligatory force that the Hindu law may have exercised upon him stands renounced.
However, he was clearly given the option to permit the old law to continue to have
an effect on him, despite having converted out of the old religion into the new one.
In 1865, the original Indian Succession Act was passed and a new question arose as
to whether, even under the provisions of this new Act, the convert could elect to be
governed by the old law. In the case of Kamawati v. Digbijoy thereafter it was held by
the Privy Council that the old law ceases to be applicable with regard to inheritance
i.e. succession. Thereafter in a recent 2001 judgement, the Allahabad High Court
reiterated that Hindu converts to Christianity will be bound solely by the succession
laws governing Christians, inclusive of the Indian Succession Act, 1925, and it will not
be possible for them to elect to be governed by the old law in this or related matters.
Will, however, the incidents of the joint family (in the case of those converting out of
the Hindu religion) continue to apply? The Courts in this regard have not been able
to reach a uniform conclusion. In the case of Francis v. Gabri the Bombay High Court
held that if a family were to convert out of Hinduism into Christianity, the
coparcenary rights of that family would remain untouched. But the Madras High
Court held in the case of Francis v. Tellis that the effect of conversion out of
Hinduism would be to render all coparcenary rights thenceforth individual rights. In
this case, out of two brothers, one of them converted to Christianity. It was held that
upon his death it would not be possible for the other brother to succeed to the
entire estate by way of the doctrine of survivorship.
Intestate Succession Among Indian Christians
S. 30 of the Indian Succession Act, 1925 defines intestate succession thus: A person is
deemed to die intestate in respect of all property of which he has not made a
testamentary disposition which is capable of taking effect. Thus any property which
has not already been bequeathed or allocated as per legal process, will, upon the

pg. 8
death of the owner, insofar as he is an Indian Christian, devolve as per the rules
contained in Chapter II of the Act. It would be worthwhile to note at this point that
intestacy is either total or partial. There is a total intestacy where the deceased does
not effectively dispose of any beneficial interest in any of his property by will. There is
a partial intestacy where the deceased effectively disposes of some, but not all, of the
beneficial interest in his property by will.
Domicile
The Domicile of the deceased plays an integral role in determining the method of
devolution of his property. Halsbury defined ‘domicile’ thus: “A person’s domicile is
that country in which he either has or is deemed by law to have his permanent
home.” S.5 of the Act categorically states that succession to the movable property of
the deceased will be governed by the lex loci as per where he had his domicile at the
time of his death; whereas succession to his immovable property will be governed by
the law of India (lex loci rei sital), no matter where he was domiciled at the time of his
death. Also, S. 6 further qualifies this provision by stating that a person can have only
one domicile for the purpose of succession to his movable property. It must be noted
that domicile and nationality differ from each other – domicile deals with immediate
residence, whereas nationality implies the original allegiance borne by the person. S.
15 lays down that upon and during subsistence of marriage, the wife acquires the
domicile of her husband automatically.
Kindred Or Consanguinity
S. 24 of the Act makes an initial reference to the concept of kindred and
consanguinity, defining it as “the connection or relation of persons descended from
the same stock or common ancestor.” S. 25 qualifies ‘lineal consanguinity’ with
regard to descent in a direct line. Under this head fall those relations who are
descendants from one another or both from the same common ancestor. Now,
succession can be either ‘per capita’ (one share to each heir, when they are all of the
same degree of relationship) or ‘per stirpes’ (division according to branches when
degrees of relationship are discrete). For Christians, if one were to claim through a
relative who was of the same degree as the nearest kindred to the deceased, one
would be deemed to stand in the shoes of such relative and claim ‘per stirpes.’
S. 26 qualifies ‘collateral consanguinity’ as occurring when persons are descended
from the same stock or common ancestor, but not in a direct line (for example, two
brothers). It is interesting to note that the law for Christians does not make any
distinction between relations through the father or the mother. If the relations from
the paternal and maternal sides are equally related to the intestate, they are all
entitled to succeed and will take equal share among themselves. Also, no distinction
is made between full-blood/half-blood/uterine relations; and a posthumous child is
treated as a child who was present when the intestate died, so long as the child has
been born alive and was in the womb when the intestate died.
Christian law does not recognise children born out of wedlock; it only deals with
legitimate marriages. Furthermore it does not recognise polygamous marriages

pg. 9
either. However, a decision has been made to the effect that it does recognise
adoption and an adopted child is deemed to have all the rights of a child natural-
born, although the law does not expressly say so.
The law of intestate succession under S. 32 states that: The property of an intestate
devolves upon the wife or husband or upon those who are of the kindred of the
deceased, in the order and according to the rules hereinafter contained in this
Chapter. However, as aforementioned, the Act recognises three types of heirs for
Christians: the spouse, the lineal descendants, and the kindred. These shall be dealt
with now.
Rights Of The Widow And Widower
S. 33, S. 33-A, S. 34 of the Act govern succession to the widow. Together they lay
down that if the deceased has left behind both a widow and lineal descendants, she
will get one-third share in his estate while the remaining two-thirds will go to the
latter. If no lineal descendants have been left but other kindred are alive, one-half of
the estate passes to the widow and the rest to the kindred. And if no kindred are left
either, the whole of the estate shall belong to his widow. Where, however, the
intestate has left a widow but no lineal descendants, and the net value of his
property does not exceed five thousand rupees, the whole of the property will go to
the widow – but this provision does not apply to Indian Christians.
S. 35 lays down the rights of the widower of the deceased. It says quite simply that
he shall have the same rights in respect of her property as she would in the event
that he predeceased her (intestate).
Rights Of Children And Other Lineal Descendants
If the widow is still alive, the lineal descendants will take two-thirds of the estate; if
not, they will take it in whole. Per capita (equal division of shares) applies if they
stand in the same degree of relationship to the deceased. This is as per Sections 36-
40 of the Act. Importantly, case law has determined that the heirs to a Christian shall
take his property as tenants-in-common and not as joint tenants.
Also, the religion of the heirs will not act as estoppel with regard to succession. Even
the Hindu father of a son who had converted to Christianity was held entitled to
inherit from him after his death.
As per S. 48, where the intestate has left neither lineal descendant, nor parent, nor
sibling, his property shall be divided equally among those of his relatives who are in
the nearest degree of kin to him. If there are no heirs whatsoever to the intestate, the
doctrine of escheat can be invoked by the Government, whereupon the estate of the
deceased will revert to the State.
Testamentary Succession Among Indian Christians
A will is the expression by a person of wishes which he intends to take effect only at
his death. In order to make a valid will, a testator must have a testamentary intention
i.e. he must intend the wishes to which he gives deliberate expression to take effect
only at his death.

pg. 10
Testamentary Succession is dealt with under Part VI of the Indian Succession Act,
1925. According to S. 59, every person of sound mind, not being a minor, may
dispose of his property by will. The explanations to this Section further expand the
ambit of testamentary disposition of estate by categorically stating that married
women as also deaf/dumb/blind persons who are not thereby incapacitated to make
a will are all entitled to disposing their property by will. Soundness of mind and
freedom from intoxication or any illness that render a person incapable of knowing
what he is doing are also laid down as prerequisites to the process.
Part VI of the Act encompasses 134 Sections from S. 57 to S. 191, that
comprehensively deal with all issues connected with wills and codicils, and the
making and enforcing of the same, including capacity to make a will, formalities
needed for wills, bequests which can be validly made etc.
Conclusion And Suggestions
It has been argued by several prominent Christian lawyers and legal writers that “laws
with regard to touchy issues like succession, etc. should reflect customs and practices
for their acceptance and sustenance.” While the improvements introduced by the
Indian Succession Act, 1925 with regard to women’s property rights have been
welcomed, since “the majority of Christians do not seem to be opposed to giving
equal share to women in the matter of intestate succession,” there is also a faint vein
of resentment with regard to the total repeal of the Travancore Christian Succession
Act 1792 since it was considered to be an overall well-balanced legislation.
As these problems are still alive, it has become necessary to look for some solutions
in the constitutional context. “While in view of [the] distinction between legislative
and judicial functions, the legislature cannot by a bare decision, without more,
directly overrule, reverse or override a judicial decision, it may at any time in exercise
of the plenary powers conferred on it by Articles 245 and 246 of the Constitution
render a judicial decision ineffective by enacting a valid law on a topic within its
legislative field fundamentally altering or changing with retrospective, curative, or
neutralising effect the conditions on which such decision is based.” With this in mind,
the Travancore-Cochin Christian Succession (Revival and Validation) Bill, 1996 was
put forth. Unfortunately, all it looked to was a rehashing of the earlier law, and not an
arrangement for the validation of past transactions, which is in fact more significant.
Indian Christians number more than 2,00,00,000 – two crores – of the population of
this country. It is important that their rights and wishes be considered with regard to
application of laws to their community.

Schools of Hindu law

Various commentaries and digests have resulted in the emergence of two
schools of Hindu law, the Mitakshara and the Dayabhaga, which contained

pg. 11
the law of inheritance. These schools had their own operational areas and
were recognised in different parts of India. Before the advent of British rule,
the major laws of inheritance in India had either their roots in religion or
were deeply influenced by personal laws which owed their allegiance to
religion and custom. The fundamental difference between these two schools
is on the principle based on which the right to inheritance is to be
determined.

In the Mitakshara school of inheritance, property is inherited by the

successors (coparceners) merely based on the fact that they were born in the
family of the property holders and in case of Dayabhaga the property goes to
the successors (coparceners) on the death of the father or holder of the
property.

The Mitakshara was considered to be more biased against women and gave
them the least rights to inherit property. Though Dayabhaga was also biased,
it still gave more rights to the women and was thus considered to be a liberal
school.

Mitakshara school which was interpreted by Vijaneshwar’s commentary and

was prevalent all over India except Bengal and Assam, whereas,
Dayabhagha, as interpreted by Jeenutavahan, was prevalent only in Bengal
and Assam.

Understanding the law of inheritance

Few concepts need to be understood first in order to understand the Hindu
law of inheritance.

Joint Hindu family

Joint Hindu families consist of all members who are descendants of common
male ancestors and such members include daughters, wives and widows as
well. The male ancestor is the head of the Joint Hindu family. Thus, a Joint

pg. 12
Hindu family includes the common male ancestor of his wives and unmarried
daughters and sons, collaterals and their wives, sons and unmarried
daughters. Wife deserted by husband u/s 13 (1)(ib) of Hindu Marriage Act
1955 that is husband left a wife without any cause for more than 1 year.
There was no limit to the number of descending generations. This was the
joint Hindu family in the traditional context.

An unmarried daughter on marriage ceases to be a part of her father’s joint

family and joins her husband’s joint family as his wife. If a daughter becomes
a widow or is deserted by her husband and returns to her father’s house
permanently, she again becomes a member of her father’s joint family. Her
children, however, don’t become members of her father’s joint family and
continue being members of their father’s joint family. The cord that knits the
members of a joint family is not property but the relationship with one
another.

In simple words, a joint Hindu family is a group of relatives related by blood

and kinship. It consists of common male ancestors, wives of all those people
who are related to the common male ancestor, their sons, their unmarried
daughters, and people like uncles, aunts, his nephews, nieces etc. The joint
and undivided Hindu family is the normal condition of the Hindu society.

Mitakshara School
Coparcenary under Mitakshara is different from a coparcenary under
Dayabhaga.

Coparcenary
The unique concept of coparcenary is the product of ancient Hindu
jurisprudence which later on became the essential feature of Hindu law in
general and Mitakshara school of Hindu law in particular. The concept of
coparcenary as understood in the general sense under English law has a
different meaning in India or the Hindu legal system. In English law,

pg. 13
coparcenary is the creation of the act of parties or the creation of law. In
Hindu law, coparcenary cannot be created by acts of parties, however, it can
be terminated by acts of parties

As stated earlier there was no limit to the number of generations descending

from a common male ancestor in a Joint Hindu family. However, this is not
the case in a coparcenary. A coparcenary is a type of relationship which is
narrower or smaller than the joint Hindu family, its generations are limited.

Within a joint Hindu family, there is another body of persons called

coparcenary which consists of a father, his son, his grandson and his great-
grandson. Thus, from a common male ancestor, only males descending up to
3 generations were considered as a coparcenary and only these coparceners
had a right to inherit the coparcenary property by birth being the sons,
grandsons, and great-grandsons of the holders of the property for the time
being.

For instance, if F is a common male ancestor then the coparcenary will

consist of 3 generations below him, who are F’s lineal descendants i.e. F’s
son, F’s grandson and F’s great-grandson. F is common to all three
descendants. The three generations are to be counted excluding the last
male holder.

Thus, under traditional Hindu law coparcenary consisted only of male

members, females were excluded. Only the males (coparceners) had the
right to inherit the coparcenary property and only they could demand
partition. Therefore, the wife and daughters were not members of the
coparcenary. Traditionally, coparceners were those who could perform
funeral rites and this was available only to the males.

Coparcenary property or ancestral property is that property which a

coparcener has inherited either from his father, grandfather or great
grandfather. The said property must be inherited and should not be received
either through a will or gift. Further, under a Mitakshra coparcenary, right to
such property is available only to the son(s), grandson(s) and great-

pg. 14
grandson(s), who formed the coparcenary under Mitakshara school, and no
female had a right to such property. Thus, in other words, only agnates had
the right to such property and not cognates. Although females were not part
of coparcenary, they were entitled to maintenance out of coparcenary
property.

It must be noted that the above definition of coparcenary and demand to ask
for partition is under the traditional Hindu law, now the meaning and import
of coparcenary has been changed after the 2005 amendment to Hindu
Succession Act,1956. After the 2005 amendment, even daughters are also
included in the coparcenary in the same sense of the son as if she is also a
son.

Devolution of property
The right to coparcenary property accrued to a coparcener on his birth itself
is a striking feature of Mitakshara coparcenary. Thus, the existence of male
owner of the property was not a hindrance to the acquisition of coparcenary
property, because the factum of birth was enough to bestow the right to
property. Therefore, it is said that a coparcener has an “unobstructed
heritage” to coparcenary property i.e. the right to such property is not
obstructed by the existence of the male ancestor i.e. father, grandfather and
great-grandfather. The allocation of the inherited property was based on the
law of possession by birth.

Further, under the Mitakshara school, the property devolved as per

survivorship i.e. on the death of the last male holder property will devolve in
equal share to those coparceners who are surviving within the coparcenary.
This means that if one of the coparceners other than the last male holder
dies, then his (deceased) probable share would be distributed among the
surviving members of the coparcenary. He leaves nothing behind that can be
called his own share in the joint property.

For example, a coparcenary comprises the father and his two sons. Each of
them has a probable 1/3rd share in the property until the undivided status is

pg. 15
maintained. On the death of one of the sons, his probable 1/3rd in the
property is taken by the surviving coparceners ie father and the surviving
brother and the deceased will die without any share in the coparcenary
property. The share of the father and the surviving son will be increased to a
probable half. The right of survivorship is one of the basic rights of a
coparcener. Thus, the quantum of interest of an individual coparcener is not
fixed as it fluctuates with deaths and births in the family.

This can also be understood as because there is a community of ownership

(co-owners) and unity of possession of coparcenary property by the
coparceners, their specific share is not fixed or they cannot call a specific
portion of coparcenary property as their own until a partition takes place.
There is a common enjoyment of coparcenary property by the coparceners.

This concept of survivorship has been removed after the 2005 amendment to
Hindu Succession Act, now the only way for devolution of property is either
by a will (testamentary) or by the rules of intestate succession given under
Hindu Succession Act.

Dayabhaga School

Coparcenary
There is no concept of a joint family under the Dayabhaga school as
compared to the Mitakshara. There is no coparcenary consisting of father,
son, son’s son (grandson), son’s son’s son(great-grandson). The existence of
a Dayabhaga coparcenary comes only after the death of the father, after
which the son will inherit the property of him and constitute a coparcenary.
In this school, there is no right by birth given to the son. There is also no
distinction between separate and coparcenary property and the entire
concept is based on inheritance, i.e. that the sons inherit the property of
their father after his death.

pg. 16
In a Dayabhaga joint family, the father has absolute powers of management
and disposal over the separate as well as the coparcenary property and the
sons have only a claim of maintenance. It is because of this reason there is
no concept of fluctuating interest of coparceners in Dayabhagha family, as
births and deaths of coparceners, does not affect the absolute right to the
father to the property.

As stated earlier, although there is no coparcenary between father and his

male lineal descendants this does not mean there can be no coparcenary
between two brothers. For instance, F is an absolute holder of a certain
property. He has 2 sons S1 and S2. Now since this is a Dayabhagha family
there is no coparcenary relationship between F and his sons who are his
lineal descendants. After the death of F, the property will go to his sons. But
now there can be a coparcenary relationship between S1 and S2 for
distribution of property. Thus, it is wrong to say that the coparcenary
concept is completely absent in a Dayabhagha family.

Further, females can also become a member of a Dayabhagha coparcenary.

If a male dies without leaving a son, then his place is taken by his wife (now
a widow) or daughters if the widows also die. Thus, Dayabhaga school is
more liberal than the Mitakshara school, however, still, male members were
predominant. Therefore, there is no concept of survivorship in a Dayabhagha
coparcenary.

Devolution of property
Unlike under the Mitakshara school, in which a coparcener has a right to the
property since his birth, under Dayabhaga the right to inherit property arises
only on the death of the father. Thus, the birth has nothing to do with the
right to inherit the property, therefore it is said that under Dayabhaga
school, a coparcenary has unobstructed heritage. The property is inherited in
the Dayabhaga school after the death of the person who was in possession of
it.

pg. 17
Since the coparceners under Dayabhaga have no right to property because of
their birth in the family, the father thus has absolute right to dispose of all
kinds of property, separate as well as ancestral, by sale, gift or through a
will. Thus, there is no unity of possession and common ownership of
coparcenary property. In other words on the death of the father, where he is
survived by two or more of his sons, all of them inherit his property jointly
and hold it as tenants-in-common. Under Dayabhaga the father has an
absolute right of alienation of property, whether it is self-acquired or
ancestral.

Conclusion
The traditional Hindu law did not treat women equally as men, they were not
given rights similar to what men had. One of the earliest acts to give women
the right to ancestral property was The Hindu Women’s Rights to Property
Act, 1937. However, the landmark change in women’s status in the ancestral
property was brought by the amendment to the Hindu Succession Act 1956.
It for the first time enabled women to be a coparcener and to have the same
rights in ancestral property as she would have had if she had been a son.
However, despite this, the interpretation of court of the Act particularly
in Prakash v.Phulavati (2015) did not confer rights to all females. Daughters
whose father had passed away before coming into force of 2005 were not
covered under the new amendment. However, this was also rectified
in Vineeta Sharma vs Rakesh Sharma, in which the Supreme Court gave
retroactive effect to the 2005 amendment and truly made women a
coparcener in the same manner as the son. This judgement has removed the
final hurdle in women’s right to ancestral property.

Apart from this refer bookmarks too.

Concept of Waqf under Muslim

Law
pg. 18
The concept of Waqf has been developed under Islamic Law. There was no
concept of waqfs in Arabia before the advent of Islam. Although there is no
mention of Waqf as such in Quran such Quranic injunctions which deal with
the charity are at the root of the development and extension of
wakfs. Ameer Ali describes the law of Waqf as, “the most important
branch of Muslim Law, for it is interwoven with the entire religious
life and social economy of Muslims Waqf in its literal sense means
detention or stoppage .”

The definition of Waqf according to the accepted doctrine of the Hanafi

school is the extinction of the proprietor’s ownership in the thing dedicated
and its detention in the implied ownership of God in such a manner that the
profits may revert to and be applied for the benefit of mankind.

Waqf under the Muslim Law owes its origin to a rule laid down by the Prophet
and means “ the tying up of property in the ownership of the God, the
Almighty and the devotion of the profits for the benefit of human
beings.

What is the meaning of Waqf?

If we look at the word ‘Waqf’, in its literal sense it is referred to
as ‘detention’, ‘stoppage’ or ‘tying up’. According to the legal definition,
it means a dedication of some property for a pious purpose in
perpetuity. The property so alienated should be available for religious or
charitable purposes. Such a property is tied up forever and becomes non-
transferable.

It has been observed in the case of M Kazim vs A Asghar Ali that waqf in
its legal sense means the creation of some specific property for the fulfilment
of some pious purpose or religious purpose.

A lot of eminent Muslim jurists have defined Waqf in their own way.
According to Abu Hanifa, “Wakf is the detention of a specific thing that is in
the ownership of the waqif or appropriator, and

pg. 19
the devotion of its profits or usufructs to charity, the poor, or other good
objects, to accommodate loan.”

“As defined by Abu Yusuf, waqf has three main elements. They are-

 Ownership of God
 The extinction of the founder’s right
 The benefit of mankind
Definition under Mussalman Waqf Validating Act, 1913- Section 2 of
the Act defines waqf as, “the permanent dedication by a person professing
the Mussalam faith of any property for any purpose recognised by Musalman
Law as religious, pious or charitable.”

Wakf Act, 1954 defines Wakf as, “Wakf means the permanent dedication
by a person professing the Islam, of any movable or immovable property for
any purpose recognized by Muslim Law as religious, pious, or charitable.”

A waqf can be either in writing or can be made by an oral presentation. In

the case of an oral agreement, the presence of words emphasising on the
intention of the parties is a prerequisite.

Essentials of Waqf

Waqf Under Sunni Law

The essential conditions of a valid waqf, according to the Hanafi Law
(Sunni Law) are:

1. A permanent dedication to any property.

2. The dedicator (waqif) should be a person professing the
Mussalman faith and of sound mind and not a minor or lunatic.
3. The dedication should be for a purpose recognised by the
Mussalman law as religious, pious or charitable.

pg. 20
1. Permanent dedication of property

The most important essential of a valid waqf is that it should be ‘a

permanent dedication of property.’ It has the following prerequisites.

 There must be a dedication.

 The dedication must be permanent.
 The dedication must be of any property.
The Waqf himself has the right to donate such property and give it for any
purpose recognized under the Muslim Law. If the wakf is made for a limited
period, it cannot be considered as a valid wakf.

In the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, it

was held that “if a Muslim man provides his house to the travellers
irrespective of their religion and status for their stay, this cannot be
considered as a valid Wakf on the ground that under Muslim law a Wakf has
a religious motive, that it should be created for the benefit of Muslim
community. When a Wakf is constituted, it is always a presumption that it is
a gift of some property, made in favour of God. This is a legal fiction.

2. By a person professing Mussalman faith

The person creating a waqf should be an adult Muslim of sound mind.

3. For any purpose recognised by Muslim Law

The main objective behind creating a waqf is that it should be dedicated for a
purpose recognised as religious, pious or charitable under Muslim law.

Waqf Under Shia law

The essential conditions for creating a valid Waqf according to Shia Law are:

1. It must be perpetual.
2. It must be absolute and unconditional.

pg. 21
 3. Possession of the thing appropriated must be given.
4. The waqf property should be entirely taken out of waqif.

 Who Can Create a Waqf?

1. The person constituting the waqf of his own properties is known as
the ‘founder of waqf’ or Waqif. To become a waqif, a person
dedicating the property must be competent enough to do so
according to the provisions of law. Following are the conditions,
which need to be fulfilled to become a waqif and constitute a waqf.
(i) The person constituting the waqf should be a Muslim.

(ii) Should be a person of sound mind.

(iii) Should have attained the age of majority.

The Madras and Nagpur High Courts have held that a non-Muslim can
also create a valid waqf provided the objective of the waqf so created is not
against the principles of Islam. According to the Patna High Court, a valid
waqf can also be constituted by a non-Muslim. However, such a waqf would
only be constituted under a public waqf ie. a non-Muslim cannot create any
private waqf (e.g. an Imambara).

A person of unsound mind is incompetent to constitute a waqf property as

such a person cannot judge the legal consequences of such a transaction.
Therefore, a waqf constituted by an insane or minor person is void.

2. A person may profess the capacity but may not have any right to
constitute a waqf. Such a person cannot constitute a valid waqf.
The subject matter of waqf should be owned by the waqif at the
same time when waqf is being constituted. Whether a waqf can be
created by a particular person depends upon whether there exists a
legal right for the dedicator to transfer the ownership of the
property or not.

pg. 22
A waqf of any property held by a widow in lieu of her unpaid
dower cannot be constituted by her because she is not an absolute owner of
that property.

In case a waqif is a pardanashin lady, it is the duty of the beneficiaries and

the mutawalli to prove that the women had exercised her mind
independently for constituting the waqf after fully understanding the nature
of the transaction.

3. A person can dedicate his entire property for the creation of waqf
but in the case of the testamentary wakf, more than one-third of
property cannot be dedicated.

Doctrine of Cypress
The word cypress means ‘as nearly as possible.’ The doctrine of
cypress is a principle of the English law of trusts. Under this doctrine, a trust
is executed, or carried out as nearly as possible, according to the objects laid
down in it.

Where a settlor has specified any lawful object which has already been
completed or the object cannot be executed further, the trust is not allowed
to fail. In such cases, the doctrine of cypress is applied and the income of the
property is utilised for such objects which are as nearly as possible to the
object already given.

The doctrine of cypress is applicable also to waqfs. Where it is not possible

to continue any waqf because of (a) lapse of time or, (b) changed
circumstances or, (c) some legal difficulty or, (d) where the specified object
has already been completed, the waqf may be allowed to continue further by
applying the doctrine of cypress.

Legal Incidents of Waqf

The following are the legal incidents of Waqf.

pg. 23
  Irrevocability
 Perpetuity
 Inalienability
 Pious or charitable use of usufruct
 Absoluteness

Modes Of Creation of Waqf

Waqf can be created in the following ways.

1. By an act inter vivos– This type of waqf is created between living

voices, constituted during the lifetime of the waqif and takes effect
from that very moment.
2. By will– A waqf created by will is contradictory to a waqf created
by an act inter vivos. It takes effect after the death of the waqif and
also known as ‘testamentary waqf’. Such a waqf cannot operate
upon more than one-third of the net assets, without the consent of
the heirs.
3. During death or illness (marz-ul-maul)– Like the gifts made
while the donor is on the death bed, will operate till the extent of
one-third of the property without the consent of the heirs of the
property.
4. By immemorial user– Limitation of time also applies to the
creation of waqf property, but waqf property can be established by
way of immemorial use.

Completion Of Waqf
Waqf can be completed by the following modes.

1. Where a third person is appointed as the first mutawalli.

2. Where the founder constitutes himself as the first mutawalli.

pg. 24
Kinds Of Waqf
1. Public Waqf– It is created for the public, religious or charitable
purposes.
2. Private Waqf- This type of Waqf is created for the settlor’s own
family and his descendants and is also known as ‘Waqf-ulal-
Aulad’. It is a kind of family settlement in the form of waqf.

Kinds Of Waqf from the view of their purpose

 Waqf Ahli: The waqf is basically created to cater to the needs of
the waqf’s founder’s children and their descendants. But, the
nominees do not have a right to sell or dispose of the property
which is the subject-matter of waqf.
 Waqf Khayri: This kind of waqf is established for charitable and
philanthropic purposes. The beneficiaries in such a kind of waqf may
include the people belong to the economical sections of the society.
It is used as an investment for building mosques, shelter homes,
schools, madrasas, colleges and universities. All of this is built to
help and uplift the economically challenged individuals.
 Waqf al-Sabil: The beneficiaries of such a waqf, is the general
public. Although similar to Waqf Khyari, this type of Waqf is
generally used to establish It is very similar to waqf khayri, though
generally used for establishment and construction of the public
utility (mosques, power plants, water supplies, graveyards, schools,
etc).
 Waqf al-Awaridh: In such a kind of waqf, the yield is held in
reserve so that it can be used in case of emergency or any
unexpected events that affect the livelihood and well-being of a
particular community, in a negative manner. For example, waqf may
be assigned to cater to the specific needs of the society like
providing medication for sick people, who cannot afford expensive
medicines. Waqf al-awaridh may also be used to finance the
maintenance of the utility services of a particular village or a
neighbourhood.

pg. 25
Kinds of waqfs from the view of its output nature
 Waqf-Istithmar: Such a kind of waqf is created for using the
assets for investment purposes. The said assets are managed in
such a way so that the income is applied for constructing and
reconstructing waqf properties.
 Waqf-Mubashar: The assets of such a waqf are used to generate
services which would be of some benefit to some charity recipients
or other beneficiaries. Examples of such assets include schools,
utilities, etc.

Waqf Act, 1913

 The Mussalman Waqf Validating Act of 1930 came into effect
on July 25, 1930, which was applied retrospectively on the
waqfs created before March 7,1913.
1.
1. Under this act, a Muslim can tie his property
for perpetuity for the support of his family, children and
descendants, provided that he makes a provision in such a
manner that the ultimate benefits go to a charitable object
of a permanent nature, made either expressly or
impliedly.
2. Under this act, a Hanafi Muslim cannot enjoy the whole
income or a life interest in the income of trust property.
3. A Hanafi Muslim selling the property can make payments of
his debts out of the rents and the profits of the property
dedicated.
 The objective of the Act
According to Section 3 of this Act, it is lawful for a Muslim person to create a
waqf which in all other aspects in accordance with the provisions of Muslim
Law, for the following purposes

pg. 26
 1. For the maintenance and support wholly or partially of his family,
children or descendants.
2. Where the person creating a waqf is a Hanafi Mussalman, also for
his own maintenance and support during his lifetime or for the
payment of his debts out of the rents and profits of the property
dedicated:
In the case of Radha Kanta Deb v. Commissioner AIR 1981 SC 798,
Hindu Religious Endowments, Orissa, the Hon’ble Supreme Court observed
that the Muslim Law recognises the existence and creation of a private trust
as a charitable trust. It is also known as ‘waqf-allal-aulad’. In this type of
Waqf, the ultimate benefit is reserved for God but the property vests in the
beneficiaries and the income from the property is used for the maintenance
and support of the family of the founder and his descendants.

The Administrative And Statutory Control Of

Waqfs In India
The following enactments provide for the creation and protection of public
endowments:

 Official Trustees Act II of 1913.

 Charitable Endowments Act VI of 1890.
 Religious Endowments Act XX of 1863, Section 14.
 The Code of Civil Procedure, 1908, Sections 92-93.
 Charitable and Religious Trusts Act XIV of 1920

Mutawalli
The manager or the superintendent of the waqf is known as the ‘Mutawalli’.
Such a person appointed has no powers, either to sell or exchange or
mortgage the waqf property, without the prior permission of the court,
unless he has been empowered by the waqf deed expressly to do so.

pg. 27
  Who can be appointed as a Mutawalli?
Any person who has attained the age of majority, is of a sound mind and is
capable of performing the functions to be discharged under a particular waqf,
can be appointed as a mutawalli of the waqf. A foreigner cannot be
appointed as theTrustee of a property in India.

 Who can appoint a Mutawalli?

According to the general rule, the founder of the waqf appoints at the time of
the creation of the waqf. But, in case a waqf is created without the
appointment of a mutawalli then the following persons are eligible to appoint
the Mutawaali:

 The executor of the founder;

 The mutawalli on his death-bed;
 The Court, which shall be guided by the following rules:
1. As far as possible, the Court should not disregard the directions of
the settlor.
2. Preference should be given to a member of the settlor’s family over
an utter stranger.
3. In case of a contest between settlor’s lineal descendant and the one
who is not a lineal descendant, the court is free to exercise its
discretion.
Under some circumstances, a mutawalli may also be appointed by
congregation.

 Powers and Duties of Mutawalli

Being the manager of the wakf, he is in charge of the usufruct of the
property. He has the following rights –

 He has the authority to use the usufructs to the best interest of the
wakf. He is authorised to take all reasonable actions in good faith to

pg. 28
 ensure that the end beneficiaries are able to enjoy all the benefits
from the wakf. As he is not the owner of the property, therefore he
is barred from selling the property. However, he could be bestowed
upon such rights by the wakif by the explicit mention of them in
waqf nama.
 He can take authorisation from the court to sell or borrow money by
showing the existence of appropriate grounds or the existence of
urgency.
 He can file a suit to protect the interests of the wakf.
 He also has the power to lease the property for the agricultural
purpose for less than three years and for the non-agricultural
purpose for less than one year. He can get the term extended with
due permission from the court.
 He is entitled to remuneration as provided by the wakif. If the
remuneration is too small, he can apply to the court for getting it
enhanced.

Removal Of Mutawalli
 By the Court– Once a mutawalli is appointed, he cannot be
removed by the waqif. But the mutawalli can be removed by the
Court only on following grounds.


o he denies the waqf character of the property and sets up

an adverse title to it in himself.
 He although having sufficient funds neglects to repair the waqf
premises and allows them to fall into despair;
 He causes damage or loss to the waqf property or commits a breach
of trust knowingly and intentionally.
 The mutawalli is rendered insolvent.
1. By the Wakf Board– According to section 64 of the Wakf Act,
1995, the Wakf Board has the authority to remove the mutawalli
from his office under the conditions mentioned therein.

pg. 29
 2. By the Wakif – There are different views related to this concept.
According to Abu Yusuf, even if the wakif has not reserved a right
to remove the mutawalli in the wakf deed he can, nevertheless,
remove the mutawalli. However, Imam Mohammed differs on this
and believes that unless there is a reservation, the wakif cannot do
so.
3. Management of Waqf Property
De Facto Mutawalli- If a person who has not been authorised to act as a
mutawalli by the waqif or the Court, assumed the status to manage the
property, he becomes a ‘trustee de son tort’ as is so responsible as such.

1. Liability of Mutwalli to account

Under the waqf deed, if there exists a clause exempting the mutawalli from
accountability, that has to be respected. Each beneficiary has the right to
claim an account from a mutawalli at any time. Such a beneficiary has also
the right to claim his share of income and can sue for such an amount.

Waqf distinguished from Sadqah, Hiba and

Trust

Sadqah Waqf

The legal estate and not merely the

The legal estate or the ownership is
beneficial interest passes to the charity
1. not vested in the trustee or the
to be held by the trustees appointed by
mutawalli but is transferred to God.
the donor.

Both the corpus and the usufruct is The trustees of a waqf cannot alienate
2. age given away. Therefore, the trustee the corpus of the property, except in
has the right to sell away the property the case of necessity with the prior
itself. permission of the Court or when

pg. 30
 authorised by the settlor to do so.

3. It is in the form of a donation or a gift. It is an endowment.

Hiba Waqf

The dominion over the

The right of waqif is extinguished and passes in favour
1. object passes from one
of the Almighty.
human being to another.

In a waqf inter vivos, no delivery of possession is

Delivery of possession is
2. essential. It is created by the mere declaration of
essential.
endowment by the owner.

There is no limitation with It is contracted only for religious, charitable or pious

3. regard to the object for purposes. A waqf for family purposes should also be
which it has been created. charity.

The right of waqif is absolutely extinguished and

The property passes from
passes in favour of the Almighty, and a mutawalli is
one person to another and
4. appointed to administer the waqf. The beneficiaries
the absolute right is
have only the interest in the trust to the extent
transferred.
mentioned in the trust.

Trust Waqf

The existence of a religious motive is There should exist a religious motive

1.
not necessary for trust. behind creating a waqf.

pg. 31
 A settlor, except a Hanafi one, is not
2. A trustee may be beneficiary. entitled to keep aside any benefit for
himself.

The object has to be one which is

3. There has to a lawful object. charitable, pious or religious according to
the Muslim faith.

Involves double ownership- equitable

The ownership of the waqf is extinguished
4. and legal. The property vests in the
and the ownership is vested in God.
trustee.

The trustee has superior powers of

Mutawalli is a mere receiver and
5. alienation because he is the legal
manager.
owner.

A trustee does not have the power to Mutawalli has the power to demand
6.
demand remuneration. remuneration.

It is not necessary that a trust may be Property is inalienable, irrevocable and

7.
perpetual, irrevocable or inalienable. perpetual.

Indian Trusts Act, 1882 applies to Indian Trust Act, 1882 is not
8.
trust. applicable to

Conclusion
Wakf is the creation of property for religious or charitable purposes which is
established permanently. It also has the backing of law ie.binding in nature
and enforceable by law. If any person is of the view that his right has been
infringed then he may seek remedy from the Civil Court. The concept,
powers and duties of mutawalli are of great importance to study under the

pg. 32
topic of waqf. Such powers can only be exercised if there exists a clear
vacancy for the post of the mutawalli or in case of a dispute as to the
competence or eligibility of existing mutawalli.

Mutawalli is manager of the waqf-property. After dedication, ownership of the

property is vested in God and becomes His property. There must be some person or
a human agency who could look after the dedicated property on behalf of God.
The person, who supervises or takes over the management of a waqf, is called the
mutawalli. He is superintendent of the property. He also distributes the benefits of
the property according to the directions laid down in the waqf. A mutawalli has no
beneficial interest in the property. He is merely a servant of God, managing the
property for the good of His creatures.

ADVERTISEMENTS:

Therefore, besides legal duties, a mutawalli has also the religious and moral
obligation to take care of the waqf- property. Any mismanagement or negligence on
his part may amount disrespect towards God. The office of a mutawalli is similar to
that of a trustee, but his powers and functions are different.

Who Can Appoint Mutawalli?

A mutawalli may be appointed by any one of the following:

(i) By founder of the waqf,

ADVERTISEMENTS:

(ii) By executor of the founder,

(iii) By a mutawalli on his death-bed,

(iv) By the court, and

(v) By congregation.

ADVERTISEMENTS:

The above-mentioned list of persons entitled to appoint mutawalli is in the order of

priority. Primarily, the right to appoint a mutawalli is given to the waqif himself. Failing

pg. 33
him, mutawalli may be appointed by the executor of the waqif if the waqif has no
executor, the existing mutawalli may appoint his successor provided he is on his
deathbed.

Failing this, the court has an authority to appoint the mutawalli. Sometimes a
mutawalli is appointed also by congregation i.e. by assembly of religious people. It is
significant to note that under Shia law, the founder himself must appoint a mutawalli.
Without appointment of mutawalli, the waqf under Shia law is void.

(i) Appointment by Founder:

The founder of a waqf has absolute power to appoint a mutawalli. He may appoint
himself to be the first mutawalli of the waqf constituted by him. The founder may
appoint any other person to be the mutawalli. He is also authorised to lay down the
scheme according to which the subsequent mutawallis are to be appointed in future.

The fouader may specify the names of persons who are to act as mutawallis one
after the other. He may also provide for the selection of certain persons .from
community, having specific qualifications, which are to act as mutawallis. The
founder may also give to an existing mutawalli, the authority to appoint next
mutawalli. The founder of waqf may make the office of mutawalliship hereditary.

In such a case, after the death of first mutawalli the office would be held by his
descendants from generation to generation. It may be stated therefore, that during
his life a waqif has full authority in the matter of appointment of mutawalli. In Ali
Ashgar v. Fariduddin, the founder of a waqf appointed himself as the first mutawalli.

The waqf-deed provided that after his death A would act as mutawalli. For some
reason, the founder resigned from the office of first mutawalliship and in his place
appointed В as mutawalli. A contested the appointment of B. The Allahabad High
Court observed that during his life the founder was competent to appoint any person
of his choice as mutawalli.

Accordingly, the court held that after his resignation, the founder had lawfully
appointed В as mutawalli, because that office fell vacant while the founder was still
alive. The court further held that A would be entitled to hold the office only after the
death of the founder.

(ii) Appointment by Executor:

If a waqif dies without appointing any mutawalli and the waqf-deed is silent about the
appointment to this post, then the executor of the waqif is entitled to appoint a

pg. 34
mutawalli. Thus, where this office falls vacant either because of death of ail existing
mutawalli or, because he has refused to hold that office or, because he has been
removed by a court and, it is not clear as to how a mutawalli is to be appointed, then
the executor has a right to appoint any person as mutawalli. In this situation, the
founder’s executor possesses the same powers as the founder himself, had he been
alive. However, this is possible only where founder has an executor.

(iii) Appointment by Mutawalli on Death-bed:

Generally an existing mutawalli has no right to appoint his successor. As to who
would be the next mutawalli after him, is to be determined by the waqf-deed or, by
the executor, if any, or by the court of law. But, where an existing mutawalli finds that
there is no possibility of appointment of his successor by any of the above-
mentioned methods and he is now already on his deathbed, then he himself can
appoint his successor.

A mutawalli can appoint his successor subject to two conditions (i) that he is on his
death-bed and there is no chance of his survival and, (ii) that the office of Mutawalli
would remain vacant if he does not appoint his successor before his death. A dying
mutawalli must appoint his successor ex necessitate rei (i.e. because of urgent
necessity).

It may be noted that appointment of a mutawalli by existing mutawalli in his death-

illness, is an emergency appointment, therefore, when he is in health he cannot
appoint his successor. Similarly, where the office of mutawalli is hereditary under
local custom, the mutawalli on death-bed has no right to appoint his successor.

(iv) Appointment by Court:

If no mutawalli could be appointed by any of the methods referred above, the court
has to appoint the mutawalli. Court here means the District Court within the
jurisdiction of which waqf property is situated. Under Muslim law, the court has got
wide powers in respect of supervision and management of a waqf. This power
includes also the authority to appoint a suitable mutawalli for carrying out its objects.

The primary duty of the court of law is to see that the interests of the beneficiaries for
whom the waqf has been created, is reasonably safeguarded. Therefore, if it finds
that the existing mutawalli is not discharging his duties properly it may remove him
and appoint another mutawalli at its discretion. However, while making the
appointment of a mutawalli, the court must take into account the following principles:

pg. 35
(a) As far as possible, the court should not disregard the directions of the founder.
But, where the court finds that appointment by directions of the founder may be
against the interests of the beneficiaries, it may appoint any person of his choice.

(b) So long as there is a qualified member of the founder’s family, the court should
not appoint a stranger.

(c) In the case of any contest between a lineal descendant of the founder and a
person who is not his lineal descendant, the court is not bound to appoint the lineal
descendant.

(v) Appointment by Congregation:

Sometimes, a mutawalli is appointed by a congregation. Congregation means
assembly of specific group of persons. An assembly of the persons of a particular
locality, having beneficial interest in the waqf-property, is also authorised to appoint
the mutawalli. But mutawalli’s appointment by this method is possible only in the
case of a local-waqf such as a mosque or, a graveyard for the members of a
particular locality.

Who May Be Appointed as a Mutawalli?

Any person who is, (a) of sound mind and, (b) has attained the age of majority, is
qualified to be appointed as a mutawalli. Under Muslim law, the general rule is that
soundness of mind and majority are the only qualifications for being a competent
mutawalli. Any person, whether male or female, Muslim or non-Muslim, may be
appointed as a mutawalli.

Minor Mutawalli:
Generally a minor cannot be appointed as mutawalli. But, where the office of
mutawalli is hereditary and, after the death of last mutawalli the person entitled to
succeed to that office is a minor, then the office may be held by that minor.

The office of mutawalli is hereditary in following two cases: (a) Where the founder
has laid down the line of succession in the waqf-deed and; (b) Where the succession
to this office is allowed by a local custom.

Females and Non-Muslim Mutawalli:

Females and the non-Muslims are legally qualified to be appointed as a mutawalli. A
mutawalli is primarily concerned with the superintendence or management of the
waqf- property. Supervision and management is a non-religious activity. Therefore, a
female or a non-Muslim is not disqualified for discharging the functions of mutawalli.

pg. 36
But, where the mutawalli is required to discharge also some religious functions, a
female or a non- Muslim cannot act as mutawalli. Accordingly, in the following cases,
a female and a non- Muslim cannot be appointed as mutawalli:

(i) Where the mutawalli is to act as Sajjadnashin or a spiritual head.

(ii) Where the mutawalli is to act as imam, i.e. where he is required to lead the
assembly of people for religious prayers.

(iii) Where the mutawalli is to act as a Mulla. A land assigned to a Mulla as

remuneration of his office, cannot be succeeded by any female successor.

(iv) Where the mutawalli is required to give religious preaching i.e. where he has to
act as Khatib.

(v) Where the mutawalli is required to act as mujavar of a Durgah.

In the above-mentioned cases, as the nature of the functions to be discharged are

religious, the mutawalli must be a male and a Muslim. But, where the functions are
not purely religious, a female is not disqualified to be appointed as mutawalli. Thus,
in the following instances a female is competent to be appointed as a mutawalli.

(i) Where the office of mutawalli is purely secular in nature and no religious
performance is required to be done under the waqf, a female can be appointed as
mutawalli.

(ii) A woman can be appointed as head mujavar of Astan (a platform where

Muharram ceremonies are performed annually). The religious duties in some cases
may be delegated by a female mutawalli to any male Muslim. It has been held that if
certain religious functions were such as could be performed by a proxy, the woman
may hold the office of mujavar.

(iii) Similarly, it has been held that a woman in the Nellore District is not disqualified
to hold the office of Khatiba.

Note:
In Syed Mohamed Ghouse v. Sayabiran Sahib, the Madras High Court has held that
where a court of law has to appoint any mutawalli, it should give preference to a
male over a female even though the functions to be discharged are non-religious.

pg. 37
It was further observed that Muslim females generally live in seclusion and avoid
public appearance, therefore, where a court has direction to appoint a mutawalli; it
would give preference to a male irrespective of the nature of duties to be performed
by such mutawalli.

Remuneration of Mutawalli:
A mutawalli is entitled to get some remuneration in return of the services discharged
by him. Generally, the founder himself provides for the remuneration of mutawalli.
The founder may provide a fixed amount to be paid periodically to the mutawalli.

He may also provide that instead of any fixed sum, he would get the residue of the
benefits of the waqf-property. In such a case, the remuneration is not a fix sum. After
distribution of the income of waqf-property and after meeting the necessary
expenditure in its maintenance etc. the remaining income is given to the mutawalli as
his remuneration.

If the founder has not made any provision for remuneration, the mutawalli may work
without any remuneration. But, if he wants to get some allowances, he may make
application to the court to fix some remuneration for him.

The court may fix any amount taking into account the work-load of the mutawalli and
the income of the property. But, the remuneration fixed by the court cannot exceed
one-tenth of the income of waqf- property.

In All India Imam Organization v. Union of India, the Supreme Court held that the
Imam who looks after the religious activities and offers prayers is entitled to
reasonable emoluments even in the absence of statutory provisions.

Powers and Functions of Mutawalli:

The mutawalli is manager of the waqf-property. His primary duty is to preserve the
property like his own, but to manage and spend it like a servant of God. As
discussed earlier, a mutawalli is not owner of the waqf-property, the property vests in
God, not in him. Although his functions are similar to that of a trustee under the
Indian Trust Act, 1882 yet, he is not a trustee in its technical sense. Unlike a trustee,
the property does not vest in mutawalli.

The mutawalli simply holds the office as manager of the property. But, he is not
allowed to manage the property at his own choice. He has to administer the property
strictly according to the objects and directions laid down by the founder.

pg. 38
He has no right to spend the benefits of waqf for purposes which may be religious or
charitable according to him but are not specified as objects of the waqf. For example,
a mutawalli has no right to construct a school building on the lands attached to
mosque of which he is the mutawalli.

Mutawalliship Non-Transfer able:

A Mutawalli has no power to transfer his office to any other person. His office is not
transferable during his life. The office of mutawalliship (Tawliyat) is created on the
basis of certain personal qualifications; therefore, it would be against the nature of
this office to allow a mutawalli to alienate his assignment to some other person.
Mutawalliship cannot be regarded as a property. As this office is not any property, it
cannot be subject of any transfer.

He is also not empowered to appoint any co- mutawalli to share his responsibilities.
But, if the founder has given the power of transferring his office, he can lawfully
transfer his assignment to another person.

Similarly, with an authority from the founder a mutawalli can appoint co-mutawallis.
However, in the absence of any express prohibition by founder, the mutawalli has a
right to appoint his deputy or assistants to help him in the management of the
dedicated property.

A mutawalli has no right to appoint any official or servant against any express
direction by the founder. Where such officials or servants have already been
appointed by the founder, the mutawalli has no power to make any change in those
appointments.

Moreover, the mutawalli has no right to make any changes in the salaries and
allowances of the officials who have already been appointed by the founder. This
power is vested in the court of law; the mutawalli can neither remove those officials
nor increase their allowances where it has already been fixed by the founder.

Possessory Right:
In respect of the waqf-property, the mutawalli has only a possessory right. But, his
right to possess the property is perfect and absolute against all other persons. The
possession of a mutawalli can never be regarded as an adverse possession against
the founder of the waqf. Therefore, if a mutawalli has been dispossessed by the
founder or any other person, he is entitled to maintain an action in a court of law for
getting back his possession.

pg. 39
Power of Sale and Mortgage:
A mutawalli is not owner of the waqf-property. Therefore, as a general rule, he has
no right to transfer the property by sale, exchange, gift, or mortgage. However, a
mutawalli can transfer the waqf-property in following situations:

(a) Where the founder has expressly authorised the mutawalli to sell, exchange etc.,
or mortgage the property, or

(b) Where, the mutawalli has taken a prior permission of a court of law for
transferring the property.

In other words, where a waqf-deed has not authorised the mutawalli for any transfer,
he cannot sell or mortgage the property without permission of the court. If a
mutawalli finds that he must sell or mortgage some of the properties of waqf because
of an imminent necessity, he may make an application to the court for giving him the
required authority.

If the court realises the urgency, it may grant the permission for transfer. Where the
court finds no justification for such transfer, it may refuse to give permission. For
getting the permission from the court, a mutawalli need not file any regular suit;
merely an application is sufficient.

However, the transfer of waqf-property by a mutawalli without prior permission of the

court is not void ab-initio. If the transfer is for the benefit of the waqf ox is urgently
required in the given circumstances, the mutawalli may alienate the property first and
thereafter get the permission.

The court of law is competent to give the permission retrospectively. Accordingly, in

many cases where the court felt that mortgage of the property was urgently needed,
it gave the permission afterwards and the mortgages were held valid.

Power to grant Lease:

Lease is a transfer of the right of enjoyment of an immovable property on rent. The
mutawalli has power to grant leases of the waqf-property. But, his power is limited as
regards the period of lease. In the case of a tenement i.e., residential place, he can
grant lease only up to one year.

In the case of agricultural lands, he can grant lease only up to three years. In other
words, the mutawalli has right to grant lease of the waqf-property for a maximum

pg. 40
term of one year in case of houses ; and, for a maximum period of three years in the
case of agricultural lands.

For granting leases for longer durations, there must either be (i) authority in the
waqf-deed or (ii) prior permission of the court. Thus, where the deed itself gives to a
mutawalli the power to grant lease for a period exceeding one year or three years, as
the case may be, he can grant leases for longer durations.

In the absence of any such authority from the waqf-deed, the mutawalli will have to
take prior permission of the court. The court is competent to give permission to a
mutawalli for leases of longer terms even if there is an express prohibition in the
deed for such leases.

That is to say, even if the waqf-deed specially provides that the waqf-property cannot
be given on lease for more than one year, the court may, in the interest of the waqf,
authorise a mutawalli to grant lease for longer period.

Moreover, unauthorised leases by mutawalli may be approved retrospectively by the

court. While giving permission for longer periods or while approving unauthorised
leases retrospectively, the courts are required to take into account: (a) the interest of
the waqf or, (b) the interest of its beneficiaries or, (c) any legal necessity for the
transaction.

Thus, a court of law is not only competent to give permission for leases of longer
periods against any express prohibition in the deed, but it is also competent to
approve such leases without any prior permission. An unauthorised lease is not void.
It is simply voidable. Therefore, such a lease is binding on the mutawalli in his
personal capacity and he cannot repudiate or eject the tenants.

But, where the court has validated any such unauthorised lease the mutawalli is not
personally liable for it. An unauthorised transaction by a mutawalli may be
challenged by any person interested in the waqf. Thus, the beneficiary can challenge
such alienations, representative’s suit is not necessary for this purpose.

Power of taking Loans:

A mutawalli cannot borrow money for the waqf. Unless the dedication itself or the
court authorises the mutawalli, he cannot borrow money for any purpose
whatsoever. If a mutawalli takes some loan even for carrying out the purposes of the
waqf he would be personally liable. The property of waqf would not be liable for such
loans.

pg. 41
A creditor who gives money to a mutawalli cannot claim the repayment from the
waqf-property. As the loans taken by mutawalli without having any authority i.e.,
without authority from the deed or permission of the court, do not create any charge
in the waqf-property; a money decree against a mutawalli will not bind the waqf-
property. However, where a waqf- deed authorises the mutawalli to take loans or
where the court gives permission for taking loans, the mutawalli is not personal
liable.

Right of Pre-emption:
A mutawalli cannot exercise right of pre-emption for the waqf-property. Where a land
which is adjacent to the waqf-property has been sold, the mutawalli cannot claim
repurchase or substitution under the right of pre-emption.

Note:
As regards his powers and functions, although a mutawalli is not a trustee in true
sense of the term yet, he is still bound by various obligations of a trustee under the
Trusts Act. In Bibi Sadique Fatima v. Mahmood Hasan, the Supreme Court has held
that use of the waqf-money for purchasing some property in the name of his wife
would amount to breach of trust within the meaning of the Indian Trusts Act.

Removal of Mutawalli:
Once a mutawalli has duly been appointed, he cannot be removed by the founder for
misconduct etc. except where the founder has expressly reserved such a right. But,
the court has an absolute power to remove a mutawalli.

Even though the waqf-deed specifically provides that mutawalli should not be
removed in any circumstance, the court may remove him in the larger interest of the
waqf. The courts of law are regarded as the protector of all the waqfs.

Therefore, the court is competent to do all such things which it deems necessary for
proper administration of the waqf-property. The court has unrestricted power to
remove a mutawalli from his office in any of the following circumstances:

(i) Where a mutawalli has become insolvent;

(ii) Mismanagement of the waqf-property due to negligence or dereliction of duty;

(iii) Failure of a mutawalli to perform religious services where it is an essential part of

his duties;

pg. 42
(iv) Where the mutawalli utilises the waqf-property or its benefits for his private use;

(v) Where a mutawalli applies the income of the waqf-property against directions of
the waqf-deed;

(vi) Where a mutawalli otherwise exceeds his powers in dealing with the property, or

(vii) Where the mutawalli suffers from any physical or mental incapacity.

It is to be noted that a mutawalli ban be removed by the court only by maintaining a

regular suit against him. He cannot be removed by the court merely on the basis of
any application made before it. Moreover a mutawalli cannot be removed by the
court against the principles of natural justice.

There should be a regular enquiry regarding the allegations made against him and
he must be given reasonable opportunity to defend himself. The court here means
the Court of a District Judge.

Family Waqf: Waqf-Alal-Aulad:

A waqf may either be public or private. A public waqf is that in which the
beneficiaries are public generally. Where the beneficiaries are only the members of
the founder’s family or his descendants, the waqf is private.

A private-waqf is also called as a family-waqf or a waqf-alal-aulad. Through a family-

waqf, the founder may make provisions for the maintenance of his children and
descendants of coming generations. The origin of such waqfs may be traced back to
the traditions of the Prophet where he said:

“A pious offering to one’s family (to provide against their getting into want) is more
pious than giving alms to beggars. The most excellent of Sadqah is that which a man
bestows upon his family” and

“Giving alms to the poor has the reward of one alms, but that given to kindred has
two rewards.”

There are several other traditions (Sunna) in which the Prophet allowed creation of
family-waqfs. According to him the support of one’s family and children was the first
duty and necessity of every Muslim.

pg. 43
The philosophy of Islam has been that provision for maintenance of one’s own
parents and children must be made obligatory so that they may not be burden on the
society. If the children would get into want and have nothing for themselves, they
would beg for their livelihood and would become a liability for the society.

In order to avoid such unpleasant situation, a Muslim is allowed to make adequate

arrangements for the maintenance of his children and descendants through the
medium of a trust. Accordingly, under Muslim law, making provisions for the
maintenance, comfort, and dignity of one’s own children, is also regarded as an act
equal to that of ‘charity’. As against the common notion that charity means ‘doing
something for others’, the Islamic philosophy, sets an example of the English proverb
‘charity begins at home’.

Explaining the nature of a family-waqf, the Supreme Court has observed that in a
waqf-alal-aulad, the ultimate benefit is reserved to God but the property vests in the
beneficiaries and the income from the property is used for the maintenance and
support of the founder and his descendants. In case the family becomes extinct, the
waqf becomes a public-waqf and property is vested in God.

It is therefore clear that for the validity of a family-waqf there must also be some
charity for others. Benefit for settler’s family, without any reference to charity for
others, has always been invalid. However, the courts in India have recognised family
waqfs subject to certain limitations. But, the judicial limitations regarding the nature
and extent of the charity referred in such waqfs have created certain doubts as
regards its applicability.

Accordingly, the Mussalman Waqf Validating Act, 1913 was enacted to remove
these doubts. The Act now clearly lays down the provisions of Muslim law on this
point. It is convenient to study the law relating to waqf-alal-aulad under two separate
heads: law prior to the Act of 1913 and, law after this enactment.

Law Prior to Waqf Validating Act, 1913:

Before 1913, the law relating to family-waqfs was very strict. A family-waqf in which
there was no provision also for some charity or, benefit to poors, was never regarded
a valid waqf. The Anglo-Indian courts laid down that for a valid waqf-alal-aulad it was
necessary that together with the maintenance and support of the family, there should
also be some religious or charitable work from the income of waqf-property.

pg. 44
Application of the whole income only for the benefit of founder’s children and
descendants was not permissible in the name of a family-waqf. Before 1913, the Law
relating to waqf-alal-aulad may be summarised as under:

(i) A waqf exclusively for the benefit of the family was void. Some gift to charity was
essential.

(ii) The gift to charity must have been of a substantial portion of the income of waqf-
property. If the gift to charity was nominal, the family-waqf was void.

(iii) It was also necessary that gift to charity was concurrent. If it was too remote, the
waqf was void.

The above-mentioned conditions for validity of family-waqfs were laid down by the
Anglo-Indian courts. In Abdul Gafur v. Nizamuddin, a Muslim executed a waqf- deed
in which he provided that the income of the property was to be utilised for the benefit
of his wife, daughter and descendants of the daughter. There was no provision for
any gift to charity at any stage. Moreover, it was also not provided as to how the
income would be applied in the event of total extinction of the founder’s family.

The Privy Council held that the waqf was void because there was no gift to charity in
it. The court observed that a family-waqf exclusively for the benefit of settler’s family,
without any gift to charity, was not valid. Gift to charity was necessary to validate a
family- But, in some cases, this judicial condition was only technically fulfilled.

Just to overcome this judicial limitation, some nominal amount of income was
directed to be used for charity whereas; practically most of the income was applied
for benefit of the family. In such family-waqfs, although there used to be a reference
of gift to charity, but that used to be illusory. Those family-waqfs, in which the gift to
charity was illusory i.e. nominal, were also held by the courts as invalid.

In Mahomed Ahsanulla v. Amarchand Kundu, the deed provided that members of the
founder’s family as mutawallis would retain the control and management of the
whole income of the waqf-property. The deed further provided that the family-
members in the capacity of mutawallis, would spend a small portion of the income for
religious purposes and may take as much of it as they liked, for themselve and for
other members of the family.

pg. 45
The Privy Council held that the deed of waqf-alal-aulad was not valid because the
main purpose of waqf was enhancement of the wealth of family-members from
generation to generation rather than any gift to charity.

The court further observed that a family-waqf was valid only if there was a
‘substantial dedication of the property to charitable use at some period of time or
other.’ As the gift to charity was not substantial (it was illusory) the waqf was held to
be void.

But, this was not the end of the judicial limitations on family-waqfs. In some of the
cases although the founders made provision for substantial gifts to charity but, it was
illusory because its application was too remote. In other words, although, the amount
for charitable purposes was substantial but its application was not immediate, it was
only after a very long time.

Abdul Fata Mohammed’s case, given below, is an example of the family-waqf where
gift to charity was illusory because of its remoteness. This is a leading case on the
law relating to waqf-alal-aulad before the commencement of the Waqf Validating Act,
1913.

Abdul Fata Mohammed v. Russomoy Dhur Choudhury:

Facts:
Two Muslim brothers executed a deed of family-waqf under which they dedicated
their entire immovable property. The waqf was constituted for the benefit of their
children, children of their children, and other members and their descendants, in the
male and female lines. The deed provided that in the absence of any of the above-
mentioned persons, the income was to be applied for the benefit of widows, orphans,
beggars and the poor’s.

Held:
It was held by the Privy Council that as the gift for charitable purposes was to take
effect only after the total extinction of all the descendants and relatives of the two
brothers, it was invalid. The gift to charity was held to be too remote and there was
no concurrent benefit for the widows, orphans and poor’s. Delivering the judgment,
their Lordships of the Privy Council observed:

“A gift may be illusory whether from its small amount or from its uncertainty and
remoteness. If a man were to settle a crore of rupees and provide ten for the poor
that would at once be recognised as illusory.

pg. 46
It is equally illusory to make a provision for the poor under which they are not entitled
to receive a rupee till after the total extinction of a family, possibly not for hundreds of
years, possibly not until the property had vanished away under the wasting agencies
of litigation or malfeasance or misfortune the poor have been put into this settlement
merely to give it a colour of piety, and so to legalize arrangements meant to serve for
the aggrandizement of a family”.

The judgment of the Abdul Fata Mahomed’s case created great resentment among
the Indian Muslims. It was thought by the Muslim community that there had been an
unreasonable judicial interference with their traditional law on Family-waqfs. They
protested against the strict conditions laid down by the courts for the validity of a
waqf for children and family.

The Muslim jurists argued that the Anglo-Indian Courts were interpreting family-
waqfs in the light of western jurisprudence and have ignored their personal law. It
was apprehended by them that this amounted to an encroachment on their personal
law on family-waqfs. Accordingly, the government had to intervene and the
Mussalman-Waqf Validating Act, 1913 was enacted. Law relating to family-waqfs
under this enactment is given below.

Law under the Waqf Validating Act, 1913:

The Family-waqf is now being governed by the Mussalman Waqf Validating Act,
1913. This enactment has removed the strict judicial conditions for the validity of a
family-waqf. Under this Act, it is now lawful for a Muslim to constitute a waqf-alal-
aulad for the benefit of his family or children without any concurrent and substantial
gift to charity the relevant provisions regarding family-waqfs are given in Sections 3
and 4 of the Act. A brief account of these provisions may be stated as under:

Section 3 of the Act:

Section 3 of the Act lays down that it shall be lawful for any person, professing
Mussalman faith to create a waqf, which in all other respects is in accordance with
the provisions of Muslim law, for the following, among other, purposes:

“(a) For the maintenance and support wholly or partially of his family, children or
descendants, and

(b) Where the person creating a waqf is a Hanafi Mussalman, also for his own
maintenance and support during his life time or for the payment of his debts out of
the rents and profits of the property dedicated:

pg. 47
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for
the poor or for any other purpose recognised by the Mussalman law as a religious,
pious or charitable purpose of a permanent character.”

Thus, section 3(a) of the Act expressly overrules the decisions of Abdul Fata
Mahomed’s case and now a valid family-waqf may be constituted subject to only one
condition that there is reference of an ultimate gift to charity. As regards the statutory
provision on family-waqf as given in section 3(a) of the Act, following significant
points may be noted.

First, the word “family” has not been defined in the Act. However, the courts of law
have interpreted this word in its general sense. No specific meaning has been
attributed by the courts. The word “family” has been held to include all the members
of the founder’s household and it is not confined to his children and descendants.

For purposes of section 3 (a), a person may belong to the family of the founder either
(i) because he is from a common progenitor having common line of descent or, (ii)
because he is living with the founder and is being maintained by him. Therefore,
family of the settlor includes not only his children and descendants but also the
members of his household.

The son of a half-brother, son of a half-sister and sons or grandsons of paternal

uncle, are included in the family of a waqif even though these persons are not
maintained by such waqif. The daughter-in-law of the founder has been held to
belong to the family of the settlor.

The sister’s son, who lives and is, being supported by the settlor, may be included in
the settlor’s family. According to Madras High Court, the term ‘family’ includes also
the servants and the boarders of the waqifs family and a waqf for them may be
constituted lawfully.

However, it is not necessary that a waqf is created for the benefit of the whole family
of the settlor. Even if a provision has been made for the maintenance and support of
only some specific members of the family excluding others, the family-waqf is valid.
But a family-waqf for the benefit of utter strangers is not valid.

Secondly, under the Act of 1913, a waqf exclusively for the benefit of settlor’s family
or children is void. The proviso to section 3 lays down in clear words that a waqf for
the family, children or descendants is lawful only where ultimate benefit has been

pg. 48
reserved for some charitable purpose. If there is no reference of any gift to charity,
the family-waqf is void.

Thirdly, a gift to charity may be express or implied. Where the dedicator has
expressly made a provision that ultimate benefit of the family-waqf is reserved for
some religious, pious or charitable purpose, there is no difficulty. But in certain cases
the dedicator may not expressly provide for any religious or charitable purpose in the
waqf.

In such a situation, there might be two things. Either the waqf may be invalidated for
want of express provision for charity or, the provision for charity may be implied and
the waqf is held valid. The word “impliedly” as used in section 3 of the Act, suggests
that under the Waqf Validating Act, 1913, an ultimate gift to charity may be implied
even if there is no express mention for the same.

However, despite a clear provision in the Act, opinion of the Courts is conflicting.
According to the High Courts of Calcutta, Chief Court of Oudh and the Privy Council
a waqf which is silent about any gift to charity cannot be validated by presuming an
implied gift to charity.

But, in Jhanga Mayil Ammal v. Pappa, where a waqf provided for the maintenance of
founder’s descendants and concurrently for some charity, the Madras High Court
held that in case of the failure of descendants, an ultimate gift to charity may be
implied.

Similarly, in Baqa Ullah Khan v. Ghulam Siddique Khan there was no express
mention of any ultimate gift to charity but the Allahabad High Court held that waqf
was valid because an ultimate gift to charity was implied in the very word “waqf”.

In view of these conflicting opinions, it may be stated in the words of Fyzee that’ “the
question is not free from doubt, but the recent tendency is to hold that even if the
document is absolutely silent as regards the ultimate objects, the very use of the
world ‘waqf is a sufficient indication.”

It is submitted that this statement of Fyzee represent the correct law and in the
absence of any express mention, an implied gift to charity may be presumed by the
courts.

Remoteness of Gift to Charity:

pg. 49
Section 4 of the Waqf Act, 1913, now provides that remoteness of the gift to charity
will not invalidate a family-waqf. That is to say, a concurrent gift to charity is not
necessary. Even if the benefit reserved for religious, pious or charitable purposes is
too remote, the family-waqf is valid. As stated above, this provision has negatived
the decision of the Privy Council in Abdul Fata Mahomed’s case. Section 4 of the Act
provides:

“No such waqf (i.e. family-waqf) shall be deemed to be invalid merely because the
benefit reserved therein for the poor or other religious, pious or charitable purpose of
a permanent nature is postponed until after the extinction of the family, children or
descendants of the person creating the waqf.”

We notice that under the Waqf Validating Act, 1913, a family-waqf may be lawfully
constituted with a provision that gift to charity is to take effect upon total extinction of
the children and descendants. Even if the total extinction of all the descendants of
the settlor take place say, after two or three hundred years, the waqf is not void
because of remoteness in its charitable objects.

Amount of Gift to Charity:

The Waqf Validating Act, 1913, nowhere provides that the gift for religious or
charitable purposes should be substantial. As against the law before 1913, now the
gift to charity need not be a substantial portion of the usufruct of the waqf-property.
Before 1913, if the amount reserved for charity was nominal, the family-waqf was
invalid. But Section 3 (a) of the Act now expressly provides that family-waqf may be
lawfully created “for the maintenance and support wholly or partially of his family”.

Thus, in a family- waqf the entire income of the waqf may be utilised for the benefit of
the family. It may be noted that the expression “maintenance and support” cannot be
interpreted to mean provision for bare subsistence.

It means maintenance according to the social position of the family members for
whose benefit the waqf has been constituted. Therefore, even if the whole income is
reserved for the benefit of family, the waqf is not invalid so long as an ultimate gift to
charity has been provided in it. According to Mulla:

“Under the Mussalman Waqf Validating Act, 1913 (Secs. 3 and 4) the ultimate test is
that a waqf-alal-aulad must reserve the ultimate benefit for the poor or any other
religious, pious or charitable object of a permanent nature and not that its benefit
should be substantially for such objects.

pg. 50
It may be concluded that for a valid waqf-alal-aulad, a reference of a gift to charity is
sufficient. The gift to charity need not be substantial and concurrent. Even where the
gift to charity is illusory, the family-waqf is valid.

Shia Law:
The Waqf Validating Act, 1913 makes no difference between Shia and Sunni law in
respect of family-waqfs. The provisions of the Act are equally applicable to both. But,
Section 2(b) is applicable only to Hanafi Muslims.

Accordingly, a waqf for the benefit of one’s own self may be created only by a Hanafi
settlor. If the settlor is Shia, he cannot constitute any waqf for his own benefits such
as for his own maintenance or for payment of his debts.

Notes:
(i) The Mussalman Waqf Validating Act, 1913 contains the general law. In case there
is any conflict between the provisions of this Act and any special law containing rule
against perpetuity, the special law on rule against perpetuity shall prevail over the
Waqf Validating Act, 1913.

(ii) The Mussalman Waqf Validating Act, 1913 is of retrospective operation.

Formerly, there was some doubt because the Privy Council had held that Waqf
Validating Act 1913 could not be applied retrospectively. But, subsequently another
Act (Mussalman Waqf Validating Act, 1930) was enacted to clarify the position.

The Waqf Validating Act of 1930 expressly provides that the Waqf Validating Act,
1913 may be applied retrospectively. Accordingly, at present the provisions of Waqf
Validating Act 1913 may be applied to family-waqfs constituted before
commencement of the Act.

Domicile – Sec. 4 – 22 of the Indian

Succession Act, 1925
INTRODUCTION
Indian Succession Act, 1925 is based on few of enactments
such as the Indian Succession Act, 1865, Hindu Wills Act,
1870, the Probate and Administration Act, 1881.

pg. 51
Section 4. Application of Part.-This Part shall not apply if the
deceased was a Hindu, Muhammadan, Buddhist, Sikh or
Jaina.

Indian Succession Act is applicable to persons of Indian

domicile as governed by provisions Sec. 5 to 19 of the Act.
However, the Act is not applicable if the deceased was a
Hindu, Mohammedan, Budhist, Sikh or Jain.

Intestate Succession of the Act are not applicable to parsis.

“Domicile” means the relationship between a person and a

state for determining the personal status and the law
applicable to such a person in the matter of majority,
marriage, divorce and succession. For the purpose of Indian
Succession Act, for dealing with the succession, the
domicile is essential.

Section 5. Law regulating succession to deceased person’s

immoveable and moveable property, respectively.-

(1) Succession to the immoveable property in India of a

person deceased shall be regulated by the law of India,
wherever such person may have had his domicile at the time
of his death.

(2) Succession to the moveable property of a person

deceased is regulated by the law of the country in which
such person had his domicile at the time of his death.

Properties are divided into two types namely, movable and

immovable properties. The movable property is governed by
the law of succession of the country in which the deceased
had his domicile at the time of his death.

However, as far as immovable properties are concerned, the

rules of succession are governed by the law of the place

pg. 52
where the property is situated. Domicile of the person at the
time of his death is immaterial.

Illustrations

(i) A, having his domicile in India, dies in France, leaving

moveable property in France, moveable property in England,
and property, both moveable and immoveable, in India. The
succession to the whole is regulated by the law of India.

(ii) A, an Englishman, having his domicile in France, dies in

India, and leaves property, both moveable and immoveable,
in India. The succession to the moveable property is
regulated by the rules which govern, in France, the
succession to the moveable property of an Englishman dying
domiciled in France, and the succession to the immoveable
property is regulated by the law of India.

RULES OF DOMICILE
Only one domicile is allowed for a person.

There can not be a person without a domicile.

Domicile has two essential factors. Such as:

a. Factum of Residence: Physical habitation for an indefinite

period.

b. Animus: Present intention to reside for an indefinite

period.

pg. 53
TYPES OF DOMICILE
1. DOMICILE BY BIRTH OR DOMICILE OF ORIGIN
Section 7. Domicile of origin of person of legitimate
birth.- The domicile of origin of every person of legitimate
birth is in the country in which at the time of his birth his
father was domiciled; or, if he is a posthumous child, in the
country in which his father was domiciled at the time of the
father’s death.

Illustration

At the time of the birth of A, his father was domiciled in

England. A’s domicile of origin is in England, whatever may
be the country in which he was born.

2. DOMICILE BY CHOICE
Section 10. Acquisition of new domicile.- A man acquires a
new domicile by taking up his fixed habitation in a country
which is not that of his domicile of origin.

Explanation.- A man is not to be deemed to have taken up

his fixed habitation in India merely by reason of his residing
there in the civil, military, naval or air force service of
Government, or in the exercise of any profession or calling.

Acquisition of domicile in a foreign country where he has

resided permanently with the intention of living there
permanently. Appointment as Ambassador, Consul in a
foreign country does not constitute domicile of choice.

pg. 54
RULES OF DOMICILE REGARDING CERTAIN
PERSONS
1. MINOR
Section 14. Minor’s domicile.- The domicile of a minor
follows the domicile of the parent from whom he derived his
domicile of origin.

Section 17. Minor’s acquisition of new domicile.- Save as

hereinbefore otherwise provided in this Part, person cannot,
during minority, acquire a new domicile.

Minor can have only domicile of birth and not choice. In the
case of legitimate minor, the domicile of the minor is that of
his father and in the case of illegitimate minor, it is his
mother’s. If the domicile of the mother is changed, then the
domicile of the minor is also changed automatically.

2. WOMAN
Section 15. Domicile acquired by woman on marriage.- By
marriage a woman acquires the domicile of her husband, if
she had not the same domicile before.

Section 16. Wife’s domicile during marriage.- A wife’s

domicile during her marriage follows the domicile of her
husband.

A minor female can have domicile of her parents only. After

marriage, her domicile is that of her husband. If she is a
unmarried major, she can change the domicile as per her
will and pleasure. The domicile of the divorced woman does
not follow the domicile of her divorced husband.

pg. 55
3. ILLEGITIMATE CHILD
Section 8. Domicile of origin of illegitimate child.- The
domicile of origin of an illegitimate child is in the country in
which, at the time of his birth, his mother was domiciled.

The domicile of the illegitimate child is that of its mother.

After attaining majority, it can change the domicile as per
the will and pleasure. If the illegitimate child is a woman,
after her marriage, she gets the domicile of her husband.

4. LUNATIC
Section 18. Lunatic’s acquisition of new domicile.- An
insane person cannot acquire a new domicile in any other
way than by his domicile following the domicile of another
person.

A lunatic cannot change the domicile. If a lunatic is a

married woman, her domicile is that of her husband. A
lunatic can have only domicile of origin, unless it is changed
by the guardian, or parents or husband.

PROCEDURE FOR ACQUIRING DOMICILE

Section II of the Indian Succession Act prescribes the mode
of acquiring domicile in India.

DECLARATION
The person wishing to acquire the domicile of India should
declare his intention in writing.

DEPOSIT
Such declaration in writing must be deposited with the
Registrar of Domiciles, who is appointed by the Government
of India for this purpose.

pg. 56
RESIDENCE
The person making such declaration and deposit must have
resided in India for at least one year prior to the date of
presentation of the declaration for depositing with the
Registrar of Domiciles.

Apart from this see bookmarks and Screen Shots in phone.

ancestral property
Concept of ancestral property
Ancestral property is additionally referred to as self-acquired property after
the partition during a joint Hindu family. Because the name indicates that the
ancestral property, this type of property is automatically acquired to next-
generation people. This ancestral property was inherited until three
generations or it’s also considered as part of coparcenary property because it
also includes property descended from father, great grandparent. Self-
acquired property and also the ancestral property is an element of separate
property as above discussed. Separate property is that the second category
of property under Hindu law within which the property is inherited by the
opposite members of non-blood relations. The meaning of ancestral property
in dictionaries is a property which has been acquired from the parents and is
accepted by the court, it was also held that a property inherited from father,
or grandparent is called ancestral property.

A question arises that ‘who can acquire ancestral property?’ this was
answered within the case of Arshnoor Singh v. Harpal Kaur, 2019, it was held
by the Hon’ble Supreme Court that under the Mitakshara Law, whenever a
male ancestor acquires any land from any of his father’s ancestors up to a
few degrees above him, then his legal heirs about three degrees below him,
receives equal rights as coparceners therein property. After the amendment
and enforcement of the Hindu Succession Act in 2005, women were also

pg. 57
allowed to enjoy their self-acquired property or ancestral property with equal
rights but those ancestral property rights could not be granted to women
before. Now, women and men have equal rights over their ancestral
property. There are some incidents of the ancestral property mentioned
below:

 The ancestral property must belong to four generations or we can

say that ancestral property must be continued for four generations
and passed down from generation to generation.
 The ancestral property should not be divided by the members and
when the division occurs, the property becomes the acquired
property.
 In the case of ancestral property, a person has the rights or
interests within the ownership from birth.
 The ancestral property rights are controlled by per strips and not by
each capita. The shares within the ancestral property are first
determined for each and every generation and divided for the next
generation.
 Moreover, properties acquired from mother, grandmother, uncle, or
even brother are not the ancestor properties. And property inherited
by will and gift also is not ancestral property. Ancestor property can
become ancestor property whereas if is thrown into the pool of
ancestor one and enjoyed in common.
 Any property gifted by a father to his son cannot become an
ancestor within the hands of the son thanks to the straightforward
reason of the fact he got it from his father.
 According to Hindu Succession Amendment Act, 2005, every
daughter, whether married or unmarried are considered as a
member of her father’s HUF (Hindu Undivided Family) and even be
appointed as ‘Karta’.
 Clarifying later, within the year 2005, the Supreme Court passed an
amendment of the Hindu Succession Act of 1956. Now, the
amendment granted daughters the correct to inherit ancestral
property together with their male relatives.

pg. 58
In the case Commissioner of Wealth Tax, Kanpur Others v. Chander Sen
Others, 1986 3 SCC 567, it was held that after passing at the Hindu
Succession Act, 1956 the standard view that on the legacy of stable property
from paternal ancestors up to three degrees, automatically on HUF (Hindu
Undivided Family) came into existence, now not remained as the legal
position onsight of Section 8 of the Hindu Succession Act, 1956.

In the case of Yudhister v. Ashok Kumar, 1987 1 SCC 204 by following the
amendment and enforcement of the Hindu Succession Act in 2005, women
were also allowed to enjoy their ancestral property with equal rights but
those ancestral property rights had not been granted to women before. Now,
women and men have equal rights over their ancestral property. There are
certain conditions of the ancestral property if the inheritance is before 1956
then it is not a HUF property. In such cases, since a HUF (Hindu Undivided
Family) already existed before 1956, thereafter, as the same HUF with its
structures continues, the status of HUF (Hindu Undivided Family) continues,
and in such a case only, members of joint Hindu family are coparceners give
them the opportunity to a share within the HUF (Hindu Undivided Family)
premises.

Types of ancestral property

Property inherited from a paternal ancestor

Property inherited by a Hindu male from his father, paternal grandfather, and
so on is ancestral property. The children, grandchildren, and great-
grandchildren of the person who receives a share in it by birth.

Therefore, the word ancestral property is refined into a diminished property

of a father from his male ancestor in the male line, and in that right only
there are sons and now, the daughters also receive a share together with,
and equal to that of, their father. Property received from other relatives
would, therefore, not be ancestral property.

pg. 59
Property inherited from a maternal grandfather
The principle of Hindu law ruling property acquired from a matrilineal
grandfather is reflected in the following two decisions of the privy council.

In Venkayamma v. Venkataraman Amma (1905 25 mad. 678), two siblings

who were living together as a joint family received some property from their
matrilineal grandfather. When one of them died, leaving the widow behind,
the question was, did his share in the property go to the widow or to his
surviving brother? The secret service committee stated that the property
which the brothers had acquired was a joint or communal property in their
hands and that the undivided share of the dead passed, at his death, for his
surviving brother, and not to the widow.

However, in a recent ruling Mohammad Hussain Khan v. Babu Krishna

Nandan Sahai 1937 64 I.A.250, the privy council reversed the earlier
decision and stated that such property is not ancestral property. The impact
of this resolution is that property acquired by a daughter’s son from his
maternal grandmother is not ancestral property in his hands, but is his own
separate property.

Property inherited from partners or from women

As noted above, the only property that can be called ancestral property is
that which is inherited by a person from his father, father’s father, and this
process goes on. Therefore, the property shared by a person from his
partners such as brother, uncle, etc., or property inherited by him from a
female, for example, his mother, will be his separate property.

Share allotted on a partition

The allocation received by the paper commissioner from the list of ancestral
property complaints regarding his or her problems. They take a share in it by
birth, whether they are in continuation at the time of the division or are born

pg. 60
consequently, in the case of other relatives, such as a share is a separate
asset, therefore if the coparcener dies without dropping any issue, it will pass
to his successors by continuation.

Property received by gift or pleasure from a

paternal ancestor
Where a Hindu makes a gift of his own self-acquired or separate property to
his son or gives it to him under the will, the question that arises as to
whether such property is a separate property of the son, or whether it
belongs to his ancestors. This question had been answered differently by the
several High Courts, as a result of which there has been a great divergence
of judicial opinion on this particular subject. However, the Supreme Court
has now expressed its view on this particular point in Arunachala Mudaliar v.
Muruganantha (1954 S.C.R. 243). The Court noted that it is not possible to
assume that such property should, under all circumstances, be placed as
ancestral property in the hands of that manager. Instead, it should be
obvious that the giver intended that the giver should take it personally or
that the gift could belong to the family bench.

This decision of the Supreme Court, therefore, makes it clear that there is no
way of thinking; it is a true question in each case, the decisions after
considering all the circumstances of the case.

Rules set down by the Delhi High Court

In the case Surender Kumar v. Dhani Ram CS (OS) No: 1737/2012, Hon’ble
Justice Valmiki J. Mehta ruled that-

 The only way the HUF (Hindu Undivided Family) could exist after
1956 if someone’s property was thrown into a typical hotchpotch.
Also, once the goods are thrown into a hotchpotch, then it’s necessary to
specify the exact date/ month/ year etc, of the construction of HUF (Hindu
Undivided Family) for the first time by throwing the goods into a common

pg. 61
hotchpotch need to be clearly prepared for transparent repairs and legal
requirement thanks to Order VI Rule of the CPC that provides all factual
details of the reason for action should be clearly stated. Therefore, if the
property of the HUF (Hindu Undivided Family) endures as a result of such
work by throwing the property acquired in a common hotchpotch,
consequently there’s entitlement in coparceners etc, to participate in such
HUF (Hindu Undivided Family) property.

 A HUF (Hindu Undivided Family) may subsist if paternal ancestral

properties are acquired before 1956, and such a status of the
parties does not mean that the properties have continued after 1956
with concern to property inherited before 1956 from the paternal
ancestors. Once that status and attitude proceeds even after 1956
of the HUF and of its existing properties; a coparcener etc will be
entitled to inquire division of the properties.
 Even before 1956, a HUF (Hindu Undivided Family) can obtain
actuality even without the inheritance of ancestral property from
their ancestors as may the HUF could be formed before 1956 by
throwing an individual into a typical hotchpotch. If such a HUF
resumes even after 1956, then in such a case a coparcener etc, of a
HUF was empowered to separate the HUF property.

Laws laid down by the Supreme Court

The law in so far as it applies to joint family property administered by the
Mitakshara School, before the amendment of 2005, could, therefore, be
reviewed as:

 When a male Hindu dies after the origin of the Hindi Succession Act,
1956, at the time of his death he was interested in Mitakshara
coparcenary property, his share in the property will devolve by
survivorship against the surviving members of the coparcenary
(under Section 6) the statement, an omission is held in Section
30 summary of the act making it open that however and whatever is
contained in the act, the interest of the Hindu man in Mitakshara

pg. 62
 coparcenary property is a property that can be influenced by him by
will or other testamentary settlement.
 A second exemption engrafted on the statement is held in the
provision to section 6, which states that if such male Hindu had died
leaving behind a female relative designated that a male relative is
defined in Class I schedule who insists through such female relative
bearing him, then the interest of the dead in the coparcenary
property would devolve by interstate sequence, and not by
survivorship.
 To manage the share of the Hindu male coparcener who is charged
off under Section 6 of the provision, a separation is made by the
application of law prior to his death. In this separation, all the
coparceners and the Hindu male widow get a share in the joint
family property.
 On the statement of section 8 of this act, either as a result of the
death of a Hindu male leaving the self-acquired property or by the
application of section 6 provision, such property would devolve only
by intestacy and not survivorship.
 On a joint reading of Sections 4, 8 and 19 of this act, after the joint
family property has been classified under section 8 on the principles
of solidarity, the joint family property terminates to be joint family
property in the hands of the many successful people as they hold
the property as renters in common and not as joint tenants.

Conclusion
Law relating to a blending of separate property with joint family is well
settled. Separated property or self-acquired of a member of a joint Hindu
family may be impressed by the character of a joint family property if he or
she voluntarily throws the owner into the common cell to abandon his
separate claim on it but a clear intention to waive separate rights must be
established. It is a determining principle of Hindu law that there is a legal
conjecture that every Hindu family participates in meal, prayer, and estate
and in the lack of any proof of separation, such legal reunion continues to be
applied in the family. The burden lies upon the member who after

pg. 63
strengthening the existence of a joint venture in the family properties states
his claim that some property came out with his ancestral property is his self-
acquired property.

An individual gets a share in the ancestral property by birth. In the case of

self-acquired property, an individual can inherit when the owner of the
property dies. If the father owns the property and it is an ancestral property,
then he has the right to release his son/ daughter to inherit the property
which he/ she took. The Hindu Succession Act, which governs with intestate
succession till today it recognizes the existence of joint Hindu family
Mitakshara law. The eminent point is that the property which is converted to
a Hindu on the death of his father in the past after coming into the force of
Hindu Succession Act, 1956 did not constitute HUF property but according to
Supreme court judgement in which it is mentioned that HUF properties are
abolished due to section 8 of the Hindu Succession Act.

On the hand, the Supreme Court judgements also laid down two
expectations:

 Firstly, HUF property remains to continue in case of HUF continues

and persists before and after 1956, and
 Secondly, after 1956, a person who owns the self-acquired property
throws such property into a common hotchpotch.
Therefore, the old concept of joint Hindu family property is still to be
maintained along with the Hindu Succession Act, 1956. Most importantly it
will be safer to say that the person who acquires a share by birth in joint
family property or coparcenary property are sons, grandsons, and great-
grandsons of the owners of the joint property. These all are joint
owners/coparceners.

But to sum up our discussion on this topic we can only article that the
concept of the “ancestral” property is vast and complex, no clear distinction
has been given till date by the courts on what is ancestral property, joint
family property or self-acquired property as these can include in each other
only based on the facts and circumstances of cases.

pg. 64
Legal Provisions Regarding
Disqualifications of Heirs
under Muslim Law
Under Muslim law, just as in any other system of law, there are certain persons who
are, though heirs not entitled to a share in the inheritance on account of their
disqualifications. These disqualifications are several. We would discuss them one by
one.

Non-Muslim:
Under the Islamic law a non-Muslim was not entitled to inherit the property from a
Muslim. In India this is not so. A Muslim who had renounced Islam, or had in any
manner ceased to be a Muslim, will, nonetheless, be entitled to inheritance in the
property of his deceased Muslim relation whose heir he is.

ADVERTISEMENTS:

But his non-Muslim descendants will not be entitled to inherit the property of the
deceased Muslim. At the same time, it should be noticed that the inheritance to the
property of a convert to Islam is governed by Muslim law.

(This should be read subject to what has been stated in Chapter I in respect of
certain Muslim communities who are, in respect of testamentary succession, still
governed by their original personal law or customary law).

Murderer:
Under the Hanafi law an heir who has caused the death of the deceased
intentionally, inadvertently, by accident, mistake, or negligence is excluded from
inheritance. Under the Shia law the heir is disqualified only if the death is caused
intentionally.

This is a principle of general policy, and if followed in most systems of law that an
heir who has caused the murder of the deceased is disqualified from inheritance. In
the pre-Islamic Arabia the inheritance was tagged with blood-wide and blood-feud,
and in that system, a murderer could obviously not inherit. The principle was adopted
in the Islamic law and is recognized in all Muslim countries.

pg. 65
Child in the Womb:
ADVERTISEMENTS:

Under Muslim law a child in the womb of her mother is entitled to inherit, if it is born
alive. A still-born child is treated as having been born alive if its mother was treated
with violence as a consequence of which she gave birth to it. The law among the
Shias and the Sunnis in this regard is the same.

Illegitimate Children:
Under the Hanafi law an illegitimate child is not entitled to inherit from its father, but it
is allowed to inherit from its mother. The mother can also inherit the property of her
illegitimate children. The illegitimate child inherits not merely the property of its
mother but also the property of all other relations with whom it is related through the
mother.

Thus, when a Hanafi female dies leaving behind her husband and an illegitimate son
of her sister, the husband will take 1/2 as sharer and the residue will go to sister’s
son. Since the illegitimate child cannot inherit from its father, it cannot inherit from
any other relation through the father.

Under the Ithana Ashari School, an illegitimate child is treated as nullius filius, and
cannot inherit the property of any of its parents. The question of its inheriting the
property from any other person through its parents does not arise.

Daughters:
Daughters as a rule are entitled to inheritance. But sometimes they are excluded
from inheritance by custom or statute. In such a case the shares of other heirs are
calculated as if daughter did not exist.

Among the Gujars of Punjab and Jammu and Kashmir, daughters are excluded from
inheritance by custom. They succeed to the property only in default agnates. Under
the Bombay Watan Act, 1886, if a Muslim watenndar died leaving a widow, a
daughter and a paternal uncle, then the daughter had no right to share in watan land.
In such a case the widow and uncle take the land, as if the daughter did not exist.

Insanity and unchastity:

Insanity and unchastity are not disqualifications under the Muslim law, and,
therefore, an insane or unchaste heir is entitled to inherit.

pg. 66
Eldest son:
Under the Ithana Ashari law, the eldest son who is of sound mind is exclusively
entitled to wearing apparel of his father, his copy of Koran, his sword, and his ring,
provided the father had left some other property besides these.

Childless widow:
Under the Ithana Ashari law, a childless widow is not entitled to a share in her
husband’s land, both agricultural as well as urban. However, she is entitled to her
share in the value of trees and buildings standing on the land as well as share in the
movable property of her husband. Immovable property includes the debts due to her
husband.

In Abdul Hammed Khan v. Peare Mirza, it was held that a childless widow, in the
absence of other heirs, was entitled to inherit not merely her share but also rest of
the property including the land, of her husband by the application of the doctrine of
return.

Stepchildren:
Since stepparents are not related to their stepchildren they are not entitled to inherit
the property of their stepchildren.

Absent heir:
If an heir is absent at the time of the distribution of assets, then his share to be kept
apart from him until such time as he is presumed to be died.

Rules of Exclusion of Heir to

Entitled a Property under
Muslim Law
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Every heir is entitled to inherit a property unless he (or she) is debarred from
inheritance under any rule of exclusion. Under Muslim law, if an heir is disqualified
on any of the following grounds, he (or she) is excluded from inheriting the property.

pg. 67
However, insanity, want of chastity or any physical deformity is not regarded as any
disqualification for inheritance. Adulterous women, insane or infirm persons are
equally competent to inherit a property.

(a) Homicide:
A person, who causes the death of another, is disqualified for inheriting the
properties of the said deceased. It is a rule of common prudence that law cannot
allow a person to derive benefits out of his own wrongs.

ADVERTISEMENTS:

Under Hanafi law, an heir who causes the death either intentionally or negligently, is
a disqualified heir or cannot inherit properties of the deceased. Thus, even if the
death is caused due to negligent or accidental act of an heir, the heir is debarred
from inheritance.

Shia Law:
Under the Ithna Asharia law, an heir is excluded from inheritance only where the
death is caused intentionally. If the death is caused accidentally or negligently, the
Ithna Asharia heir is not debarred from inheritance.

(b) Illegitimacy:
ADVERTISEMENTS:

Under Sunni law, an illegitimate person is not entitled to inherit the properties of his
(or her) father. But an illegitimate person is competent to inherit the properties of
mother. It is to be noted that under Sunni law, an illegitimate child is entitled to inherit
not only the mother’s properties but, through her also the properties of mother’s
other relations. In Bafatun v. Bilaiti Khanum, a Sunni female died leaving her
husband and an illegitimate son of her sister as her sole surviving heirs.

The husband took 1/2 of her assets and the remaining 1/2 was inherited by her
sister’s illegitimate son who was the only distant relative of the deceased. It was held
by the court that under Sunni law, an illegitimate son was competent to inherit his
mother and through his mother could inherit also the properties of his mother’s sister.
However, an illegitimate child is not entitled to inherit mothers those relations who
became relatives by any subsequent remarriage of the said mother.

pg. 68
(c) Difference of Religion:
Under the Islamic texts, a non-Muslim is excluded from inheriting the properties of a
Muslim. But under the Muslim law as administered in India, difference of religion is
not any disqualification for inheritance.

A legal heir of the deceased Muslim cannot be debarred from inheritance on the
ground that such heir was not a Muslim at the time of death of the deceased. Under
the Caste Disabilities Removal Act, 1850, renunciation of religion by any heir does
not affect his (or her) rights of inheritance under the personal law to which that heir
belonged before conversion.

ADVERTISEMENTS:

Accordingly, a converted heir will continue to be governed by the Muslim law of

inheritance. Following illustration will clarify this rule. A Muslim has a son and a
daughter. The son renounces Islam and converts to Christianity.

At the time of father’s death i.e. when the inheritance opens, the daughter continues
to be a Muslim but the son is a Christian. The non-Muslim son is not excluded from
inheritance and is competent to inherit the properties of his father together with his
Muslim sister.

However, it may be noted that religion of the porosities i.e. deceased, is an important
factor because the properties devolve under the personal law to which the propositus
belonged just before his death. For example, if a Hindu becomes a Muslim through
conversion and then dies as a Muslim, his properties would be inherited by heirs
under Muslim law; the heirs under Hindu law cannot claim inheritance.

In K.P. Chandrashekhar v. Govt. of Mysore a Hindu woman converted to Islam died

as a Muslim. She had no heir under Muslim law. Her Hindu brother claimed
inheritance. It was held by the court that her Hindu brother could not inherit because
he was not an heir under Muslim law.

(d) Exclusion of Daughters under Custom or Statute:

At certain places daughters are sometimes excluded from inheritance under any
local custom or under some specific enactment. For example, among the Gujars and
Backkerwals of Kashmir, there is a custom that daughters cannot inherit in the
presence of any male descendant of the grandfather. Similarly, under the Watan Act,
1886, enforced in Bombay, a daughter is excluded from inheritance in the presence
of a paternal uncle.

pg. 69
Refer Legal Bites too- see bookmark.

Doctrine of Pious Obligation:

Meaning :

Pious' means 'godly, religious, devout, reverential. 'Pious obligation' means duty
of a Hindu due to deep devotion to religion. Hindu law states that 'He who having received a
sum lent or the like does not repay it to the owner will be born hereafter in his creditors house
a slave, a servant or a woman or a quadruped '. As per Hindu scriptures, it is the holy duty of
a son to pay off or discharge his father's debts. The religious obligation is attached to the son
as well as grandson and to the great grandson also, on the ground that all the three are
coparceners with others by their birth.
It is said that non-payment of debts is a sin and also a crime. Any person, who died leaving the debts
behind cannot go to heaven. The 'putra' i.e. the son, son's son and son's son's son by repaying/clearing
off such debts, discharges his parted father/ancestor from the indebtedness and enables/facilitates him
to reach the heaven. This duty or obligation of a son to repay the debts of the deceased father ( parted
ancestor ) is rested upon a special doctrine, known as "The Doctrine of Pious Obligation" - However, this
obligation extends to non-avyavaharika (or vyavaharika) debts only. Avyavaharika debt is one, which is
taken for illegal or immoral purpose. Eg :- Gambling, Races etc.

Relevant Cases

The Supreme Court in - Anthony Swamy V. M.R. Chinaswamy koundan (AIR 1970 SC 223),
the doctrine of Pious Obligation is not merely a religious doctrine but has passed into the realm of law.
The doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a share
of the ancestral property and both these conceptions are correlated. The liability on the son to pay the
debt of his father is not a gratuitous Obligation thrust on him by Hindu law but is a salutary counter
balance to the principal that the son from the moment of his birth acquires along with his father an
interest in the joint family property. The doctrine is in consonance with justice, equity and good
conscience.

Again in Venkatesh Dhonddev Deshpande V. Son, Kusum dattatraya Kulkarini (AIR 1978 SC
1791), the court observed that where the father as karta contracted the debts for family purposes, the
son's as members of the family are bound to pay the debts to the extent of their interests in the
coparcenary property,

Under Old Law, the doctrine (Obligation to discharge the debts) arises after the death (of
the father). But, according to the modern doctrine (new law) the Obligation arises even during the life
time of the father (Brij vs. Mangal prasad, 46, all. 951 (PC). Further, under the old law, the son had an
obligation to pay the debts with interest. The grandson was liable for the principal amount only (i.e.
without interest). The great grandson was not liable, unless he had received the property from the
ancestor. But according to the modern doctrine/law all i.e. son, son's son and son's son's son are liable
to pay the debts with interest.

When the father being the karta/Manager of a Hindu joint family contracts a loan for legal
necessary, the loan is binding on all the members of the joint family. If he incurs debts, for his personal
purpose, he is personally liable. To clear off such debts, he may have to alienate his personal property
or his son's property. In son's property is alienated, his son should not question him.

INTRODUCTION
Under the Hindu Law, a son is under a pious obligation to discharge his
father’s debts out of his ancestral property regardless of the possibility that

pg. 70
he had not been profited by the debts, gave the debts are not avyavaharika.
The sons get absolved from their obligation to discharge the debt of their
father from the family assets just if the debt was one spoiled with
immorality or illegality.

The obligation that is cast upon the son being religious and moral, the
liability of the son for the debt must be inspected with reference to its
character when the debt was first acquired. In the event that at the source
there was nothing illegal or offensive to great morals, the subsequent
dishonesty of the father is in not discharging his obligation won’t absolve
the son from liability for the debt.

In Hindu law there are two commonly destructive principles, one the
standard of autonomous coparcenary rights in the sons which is an episode
of birth, providing for the sons vested ideal in the coparcenary property,
and the other the pious obligation of the sons to discharge their father’s
debts not spoiled with immorality or illegality, which lays open the entire
estate to be seized for the installment of such debts. As indicated by the
Hindu lawgivers his pious obligation to pay off the ancestors’ debts and to
mitigate him of the demise torments consequent on non-installment was
irrespective of their acquiring any property, however, the courts dismiss
this liability arising irrespective of acquiring any property and provided for
this religious obligation a legal character.

Pious’ means ‘genuine, religious, dedicated, respectful. ‘Pious obligation’

means an obligation of a Hindu because of profound dedication to religion.
Hindu law states that ‘He who having gotten a sum loaned or the like does
not reimburse it to the proprietor will be conceived henceforth in his
creditors house a slave, a servant or a lady or a quadruped ‘. According to
Hindu scriptures, it is the blessed obligation of a son to pay off or discharge
his father’s debts. The religious obligation is joined to the son as well as a
grandson and to the considerable grandson also, on the ground that all the
three are coparceners with others by their introduction to the world.

Moral and legal obligations have a regular starting point yet the innovation
of their enforcement differs. Twentieth-century jurisprudence worried
about legal obligations as it were. Because, generally, all legal obligations
have their beginning in moral obligations since law has been characterized
as “least morality”. At the point when a demonstration affects the interests,
rights and obligations of persons other than that of the doors the basis for
law making, i.e., setting restrictions on the acts of persons whose acts
influence other’s interests, is justified. It is the obligation of the state to
forestall damage to third persons by the acts of others. The justification for
making law is the counteractive action of damage to others. The freedom of

pg. 71
the person to go about as one ‟s wishes are secured so long as it is not
hurtful excessively others. The approach of the ancient Indian thinkers as
to the idea of freedom was different. They won’t allow a person to do as one
pleases if his activity is injurious to his own particular interest just and the
outsider is not influenced. The ancient Indian codes exemplify norms
prescribing conduct for individuals, and these norms have

from the earlier basis, for instance, if a person does not perform prescribed
everyday duties he is punished in the following scene and incurs sin. It is
this kind of conviction which is at the foundation of the principle of the
piousobligation of the Son to pay the debt of his father.

HISTORY OF PIOUS OBLIGATION

Ancient Indian legal writing is novel in its approach as to the specialist of
morals which was perceived even by the legal aid the British Indian time
frame when precedence to moral obligations was given over legal rights.
The pious obligation of the son is one such moral obligation where priority
to moral obligation was given over legal rights. A perusal of Vedic writing,
the most ancient composed record, makes one feel astonished as to how
conscientious and serious thought has been given to the idea of debt and its
installment. “The idea of the liability to pay off one’s debts was produced in
India in the most ancient times”

It has been said, “given us a chance to head out the malevolent effects of
terrible dreams as we pay off debts”. The advancement and improvement of
the idea of rule also, the significance joined to its paying back is the basis of
the current tenet of pious obligation of the Son to pay the debt of his father;
P. V. Kane observes: It appears to me that this hypothesis of spiritual debts
being as of now noticeable all around, the same sanctity came step by step
to be transferred to one’s promises to reimburse fiscal debts and complete
other secular engagements. The word runa had been connected both to
spiritual and secular debts. It is by virtue of this that the son was not just
desired for reimbursing the spiritual debt owed to one’s ancestors, yet he
was also anticipated that would free his father (if the father couldn’t himself
reimburse the money related debt) from the liability he acquired to his loan
boss.

P.V. Kane’s view is superbly in consonance with the philosophy of ancient

Indian law codes, famously known as Dharmasastras.

The ancient Indian writing is loaded with confirmation of the significance

given to the discharge of liability to pay off debt from ancient

pg. 72
times.According to ancient Indian thought, one is conceived indebted and
is under an obligation to discharge the liability.

AVYAVAHARIK DEBTS
Avyavaharik debts a liability brought about for a cause hostile to great
morals. On the off chance that it is unrighteous or completely ill-advised
they can’t be called vyavaharika or legal debts. It might be that the debts
acquired by the father for safeguarding himself against criminal activity
against others or shielding himself in an action brought by others are legal
in several circumstances. In the event that a debt was acquired to shield the
rights of the family and to safeguard its interests, it is absolutely legal in
nature. In the event that a debt is not spoiled with illegality at its origin, it
might tie on the son. The son will most likely be unable to claim resistance
from the debts in such cases. In any case, where the father’s lead which
provoked the acquiring of the debt, is completely disgusting to great morals
or is grossly unjust or outrageously dishonest, then positively the son can
guarantee resistance from its liability. It is additionally stated that the
essential decide is that the sons are not at risk for the debts acquired by
father which are Avyavaharika.

In a decision of a Full Bench of Bombay High Court, it was held that

Avyavaharika debt means illegal, dishonest or immoral one. It is not
essential for the son to demonstrate criminal liability of the father to claim
the exception. So, where a person in possession of property, to which he is
not entitled, disposes of that property and deprives the legitimate
proprietor of that property, his direction is dishonest and the son is not
obligated for the debts arising out of such lead Lord Dunedin of the Privy
Council characterized the predecessor debts as precursor in reality as well
as in time i.e., not a piece of transaction reprimanded. Thus two conditions
are necessary:

1. The debts must be earlier in time and

2. The debts must be earlier truth be told.
A son could guarantee resistance just where the debt in its starting point
was immoral by reason of the cash having been gotten by the commission of
an offense; yet not where the father stopped by the cash lawfully however
subsequently misappropriated it. It is just in the previous case that the debt
answers the description of an Avyavaharika debt. In the event that initially
the taking was not immoral, i.e., in the event that it didn’t have a
degenerate start or established upon

extortion, it couldn’t be portrayed as an Avyavaharika debt and the son

couldn’t be exempted from satisfying that debt. The supervening occasion,

pg. 73
to be specific, the misappropriation, later on, would not change the way of
the debt. The vices should be innate in the debt itself.

Immoral debts are those which are taken in assistance of an immoral

purpose such as for prostitution or for the keeping of courtesan. Thus the
expenses of the marriage of courtesan’s granddaughter or to influence to
Hindu ladies so that she may take one of his sons in selection or purpose of
betting will be for illegal purpose .the debts resulting from the highly
tortuous act which at their beginning is polluted with a malicious purpose
are avyavaharika. Father’s energy of estrangement for precursor debts.

The father himself can estrange the joint family property for the discharge
of his personal debt and son can provoke it just if the debts are polluted.
This means the father can do it be implication also.The pious obligation of
the son to pay off the father debt exists whether the father is alive or dead.
It is interested in father amid his lifetime, to pass on the joint family
property including the interest of the son to pay off predecessor debts not
brought about for family necessity or advantage gave the debts are not
spoiled with immorality. The father cannot do as such subsequent to
documenting of the suit for the parcel.
BURDEN OF PROOF OF THE DEBT
The obligation on son to pay off their father’s personal debts is a religious
obligation and on the off chance that they need to wriggle out of it? They
can do as such just if the debts are polluted the son also need to show that
loan boss had the notice or information that the debts was corrupted.

The Apex Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal,
depending upon the judgments of the Privy Council alluded to (supra),
articulated the principles thus : “the sons who challenge the alienations
made by the father need to demonstrate that the precursor debts were
immoral as well as that the purchasers had seen that they were so
corrupted.”
The scholarly judge points out that the precept, as detailed in the first texts,
has to be sure been changed in some respects by legal decisions. That under
the law as it now stands, the obligation of the sons is not a personal
obligation existing irrespective of the receipt of any assets, and that it is a
liability limited to the assets got by him in his share of the joint family
property or to his interest in the same. The obligation exists whether the
sons are major or minor or whether the father is alive or dead. In the event
that the debts have been shrunk by the father and they are not immoral or
irreligious, the interest of the sons in the coparceners property can always
be made subject to such debts.

pg. 74
The proposition set down in Brij Narain’s case is established upon the pious
obligation is that a Hindu son constrained to his interest in the joint family
property to pay the debt shrunk by the father for his own advantage and not
for any immoral or illegal purpose. By acquiring the debt, the father enables
the leader to sell the property in execution of a pronouncement against him
for an installment of the debt. The son is under a pious obligation to pay all
debts of the father, regardless of whether secured or unsecured.
In Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni, the
observations of the Supreme Court are as follows:
Regardless of whether the father is the Karta of a Joint Hindu family and
the debts are shrunk by the father in his ability as director and leader of the
family for family purposes, the sons as members of the joint family will
undoubtedly pay the debts to the degree of their interest in the coparcenary
property. Promote, where the sons are joint with their father and the debts
have been shrunk by the father for his very own advantage, the sons are at
risk to pay the debts gave they are not caused to illegal or immoral
purposes.

In Hemraj v. Khem Chand, the Court alluded to the Judicial Committee’s

view which held that the translation of the expression “avyavaharika” as
given by Mr. Colebrooke makes the nearest way to deal with the genuine
origination the term as used in the Smrithi content, and that the term does
not concede to a more precise definition. The term regularly used in
decisions and reading material to describe those debts the father for which
the son is not at risk is ‘illegal or immoral’. The expression was doubtless
initially intended to render “avyavaharika” however it has come to be used
as a compendious term to cover every one of the cases counted in the
smiritis. It is, hence, convenient to use the term ‘illegal or immoral’
purposes then “avyavaharika” which as discussed by me supra eludes any
precise definition.
No pious obligation is included in the said debt inasmuch as it is not the
personal debt neither the father nor the debts contracted for the advantage
of the family. As understood the legal position is so certain that so long as
the purpose is not corrupted with the component of illegality or immorality
the sons are subject under the doctrine of pious obligation.

In Keshav Nandan Sahay Vs. The Bank of Bihar it was said that sons are
subject under the hypothesis of pious obligation for the arrangement debts
brought about by the father. The tenet of pious obligation can’t matter to
the spouse and she, in this way, can’t be at risk to the creditors on the
principles relevant to the sons. On a segment between a coparcener and his
sons, a share is dispensed to the spouse in her own privilege and she can’t
be dealt with as minor representative of the husband. The rule is based
upon ancient Hindu texts which don’t say the spouse in the class of the sons

pg. 75
and there is no statutory order extending that convention so as to
incorporate her.
Ramasamayyan v. Virasami Ayyar ((1898) I.L.R. 21 Mad. 222)
Indeed, even where the home loan is not for legal necessity or for an
installment of precursor debt, the lender can, in the execution of a home
loan declare for the acknowledgment of a debt which the father is
personally subject to reimburse, sell the estate without getting a personal
pronouncement against him. After the sale has occurred, the son is bound
by the sale, unless he shows that the debt was non-existent or was
corrupted with immorality or illegality.

Apentala Raghavaiah Vs. Boggawarapu Peda Ammayya

In this case, the offended party’s father Yellamanda did Tobacco business
with the respondent and subsequently ended up plainly indebted to him
and because of which the father sold the property to a litigant for paying off
the debts. The respondent contested the request of by documenting his
counter fighting that the Tobacco business was finished by the father the
applicant for the advantage the joint family and the debt shrunk by him is
not ‘Avyavaharika debt’ that the candidate is obligated to discharge such
debt brought about by his father regarding such business.

In the decision of the Supreme Court revealed in Manibhai v. Hemraj,

it was observed subsequent to alluding to various prior decisions of the
Supreme Court as well as some other High Courts, as follows:

“Regardless of the possibility that “any credit is taken by the father for his
personal advantage which is found as vyavaharik debt and not avyavaharik,
the sons are subject to discharge their father’s debt under the teaching of
pious obligation and in this view the matter if any distance the joint family
property is subsequently made to discharge such forerunner debt or
advance of the father, such estrangement would tie on the sons.”

DEBTS OUTSIDE THE SCOPE OF THE DOCTRINE

Commercial Debts:
Commercial Debts was respected outside the regulation, as indicated by Old
law. To the present law, it is the doctrine.(i.e. the son is subject to pay the
commercial debts)

Suretyship Debts:
Liability arising out of suretyship by the father is not official on his son.
Hence, it does not go inside the convention.

pg. 76
Gaming Debts:
Gaming Debts are outside the regulation according to the Old and New
Laws. Eg: Debts caused by drinks, liquors and so forth.

Avyavaharika Debts:
As indicated by the Mitakshara, it is outside the doctrine. Cole rivulet
translated it as “a debt for a cause disgusting to great morals”.In other
words, it is a debt for an illegal or immoral purpose.

PIOUS OBLIGATION AFTER THE AMENDMENT OF 2005

After the initiation of the Hindu Succession (Amendment ideal to continue
against a son, grandson or incredible grandson for the recuperation of any
debt due from his father, grandfather or awesome grandfather solely on the
ground of the pious obligation under the Hindu law, of such son, grandson
or extraordinary grandson to discharge any such debt. Bias of Pious
Obligation Doctrine :What is left of the pious obligation convention after
the amendments in Hindu law is the injustice of the principle of pious
obligation of the son to pay his father’s debt, namely, even now the father
amid his lifetime can estrange the joint family property of himself and of
his son for the installment of his personal debts brought about by him
which was neither necessary nor valuable for the family. This is the residue,
which is neither justifiable nor reasonable. However, it is the legitimate and
fair consequence of the inheritance of the son in the joint estate.

SOCIO-LEGAL IMPACT OF DOCTRINE OF PIOUS OBLIGATION

The socio-legal impact of the pious obligation teaching is not consistent
with the present day jurisprudential trends in the field of exclusive
jurisprudence. The Hindu law as stands changed by the various Acts favors
the absolute right of ownership with regards to Hindu females; it can’t
stand to rationale and reason the at where the woman’s restricted estate has
been abolished the son’s idea in the joint family property should be
permitted to be taken away from the teaching of pious obligation. What is
imperative in this respect is to change the pious obligation regulation into
the absolute obligation and get it similarity with the Dayabhaga school of
Hindu law because that has as of now been the impact of Chandersen’s
decision of the Supreme Court.

The Hindu Succession Act, 1956

Introduction

pg. 77
The Hindu Succession Act, 1956 is an Act relating to the succession and
inheritance of property. This Act lays down a comprehensive and uniform
system which incorporates both succession and inheritance. This Act also
deals with intestate or unwilled (testamentary) succession. Therefore, this
Act combines all the aspects of Hindu succession and brings them into its
ambit. This article shall further explore the applicability, and the basic terms
and definitions and the rules for succession in the case of males and
females.

Applicability
Section 2 of this Act lays down the applicability of this Act. This Act is
applicable to:

 Any person who is Hindu by religion or any of its forms or

developments, including a Virashaiva, Lingayat, or a Brahmo,
Prarthna or Arya Samaj follower.
 Any person who is a Buddhist, Sikh or Jain by religion.
 Any other person who is not a Muslim, Christian, Parsi, Jew, unless
it is proved that such person would not be governed by Hindu law or
custom.
 This Act shall also extend to the whole of India.
However, this Section shall not apply to any Scheduled Tribes covered under
the meaning of Article 366 of the Constitution, unless otherwise directed by
the Central Government by a notification in the Official Gazette.

Who qualifies as a Hindu, Sikh, Jain or Buddhist?

 A legitimate or illegitimate child, where both of his parents are
either Hindus, Buddhists, Jains or Sikhs.
 A legitimate or illegitimate child, one of whose parents is a Hindu,
Buddhist, Jain or Sikh and is brought up as a member of the tribe,
community, group or family to which such parent belongs.

pg. 78
  Any person who is a convert or reconvert to the Hindu, Sikh, Jain or
Buddhist religion.

Basic terms and definitions

Agnate
Section 3(1)(a) defines ‘agnate’. A person is said to be an agnate of another
if the two are related by blood or adoption wholly through males.

Cognate
Section 3(1)(c) defines a person to be a ‘cognate’ of another if such a person
is related to the other by blood or through adoption but not wholly through
males.

Heir
According to Section 3(1)(f), ‘heir’ is any male or female person, who is
entitled to receive the property of the intestate.

Intestate
According to Section 3(1)(g), a person who dies without leaving behind a will
is referred to as intestate.

Related
According to Section 3(1)(i), ‘related’ means the relationship between
kin( kinship), which should be legitimate. 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.

pg. 79
Which properties does this Act not apply to?
Section 5 lays down the properties that this Act does not apply to:

 Any property whose succession comes under the regulation of

the Indian Succession Act, 1925 by reasons of the provision
under Section 21 of the Special Marriage Act, 1954. Section 21 of
the Special Marriage Act states that succession to the property of
any person whose marriage is solemnized under this Act and the
property of the issue of such marriage shall be governed by the
Special Marriage Act.
 Any estate or property which goes to the single heir through the
terms of any agreement or covenant formed between the Ruler of
an Indian State and the Government or through any enactment
formed and passed before the commencement of this Act.
 The Valliamma Thampuran Kovilagam Estate and the Palace
Fund under the administration of the Palace Administration Board
due to the powers conferred under the Proclamation (IX of 1124),
dated 29th June 1949, given by the Maharaja of Cochin.

Types of succession

Testamentary Succession
When the succession of the property is governed by a testament or a will,
then it is referred to as testamentary succession. Under Hindu law, a Hindu
male or female can make the will for the property, including that of a share
in the undivided Mitakshara coparcenary property, in favour of anyone. This
should be valid and legally enforceable. The distribution will be under the
provisions of the will and not through the laws of inheritance. Where the will
is not valid, or not legally enforceable, then property can devolve through the
law of inheritance.

pg. 80
Intestate Succession
Intestate has already been defined above as someone who dies leaving
behind no will or testament. When such a situation happens, then this
property will be distributed among the legal heirs by following the laws of
inheritance.

Rules for ownership in the case of males

Section 8 lays down the general rules for the succession in the case of males.
Section 8 applies in cases where succession opens after the commencement
of the Act. It is not necessary that the death of the male Hindu, whose
property has to be devolved by inheritance, should take place after the
commencement of this Act. For example: if a father, during his lifetime,
settles his property in favour of his wife and after the death of his wife,
wishes that it should pass to his daughter, and the daughter dies after the
commencement of this Act, then the succession will open and the property
would devolve according to Section 8.

Classification of heirs
Heirs are classified into four categories:

 Class I
 Class II
 Class III (Agnates)
 Class IV (Cognates)

Class I heirs

 Sons
 Daughters
 Widows
 Mothers

pg. 81
  Sons of a predeceased son
 Widows of a predeceased son
 Son of a predeceased son of a predeceased son
 Widows of a predeceased son of a predeceased son
 Daughter of a predeceased son
 Daughter of a predeceased daughter
 Daughter of a predeceased son of a predeceased son
 Son of a predeceased daughter
 Daughter of a predeceased daughter of a predeceased daughter
 Son of a predeceased daughter
 Son of a predeceased daughter of a predeceased daughter
 Daughter of a predeceased daughter of a predeceased son
 Daughter of a predeceased son of a predeceased daughter
All of them will inherit simultaneously and even if any of them is present,
then the property will not go to the Class II heirs. All Class I heirs have
absolute rights in the property and the share of a Class I heir is separate,
and no person can claim a right by birth in this inherited property. A Class I
heir cannot be divested of his/her property, even by remarriage or
conversion etc.

Until the Hindu Succession (Amendment) Act, 2005, the Class I heirs
consisted of twelve heirs, eight of which were females and four were males,
but after 2005, four new heirs were added, of which eleven are female and
five are male.

Now we will observe who classifies as son, mother, daughter or widow and
what kind of interests they have in the property.

Son

The expression ’son’ can include both a natural born son or adopted son but
does not include a stepson or illegitimate child. In Kanagavalli v. Saroja AIR
2002 Mad 73, the appellants were the legal heir of one Natarajan. Natarajan
was earlier married to the first respondent, the second respondent was the
son and the third respondent was the mother of Natarajan. The first

pg. 82
respondent obtained a decree of restitution of conjugal rights but still no
reunion occurred between them. The first appellant claimed to have married
Natarajan in 1976 and the appellants 2 to 5 were born through them.
Natarajan died afterwards. The suit was filed for declaration that the
appellants were the legal heirs of the said Natarajan along with respondents
1 to 3, and they were entitled to the amounts due from the Corporation
where Natarajan worked. The Court held that a son born of a void or
voidable marriage that is declared to be annulled by the Court, will be a
legitimate child and would thus inherit the property of his father. A son has
absolute interest in the property and his son cannot claim birthright in it.
Therefore, ‘son’ does not include grandson, but does include a posthumous
son.

Daughter

The term ‘daughter’ includes a natural or adopted daughter, but not a

stepdaughter or illegitimate daughter. The daughter of a void or voidable
marriage annulled by the Court would be a legitimate daughter and thus
would be eligible to inherit the father’s property. The daughter’s marital
status, financial position etc is of no consideration. The share of the daughter
is equal to that of the son.

Widow

The widow gets a share that is equal to that of the son. If there exists more
than one widow, they collectively take one share that is equal to the son’s
share and divide it equally among themselves. This widow should have been
of a valid marriage. In the case of Ramkali v. Mahila Shyamwati AIR 2000 MP
288, it was held that a woman who was in a voidable or void marriage, and
that marriage was nullified by the Court on the death of the husband, would
not be called his widow and would not have rights to succeed to his property.

If the widow of a predeceased son, widow of a predeceased son of a

predeceased son or the widow of a brother has remarried, then she shall not
be given the term of ‘widow’, and will not have the inheritance.

pg. 83
Class II heirs

The Class II heirs are categorized and are given the property in the following
order:

 Father
 Son’s Daughter’s son
 Son’s daughter’s daughter
 Brother
 Sister
 Daughter’s son’s son, daughter’s son’s daughter, daughter’s
daughter’s son, daughter’s daughter’s daughter
 Brother’s son, sister’s son, brother’s daughter, sister’s daughter
 Father’s father, father’s mother
 Father’s widow, brother’s widow
 Father’s brother, father’s sister
 Mother’s father, mother’s mother
 Mother’s brother, mother’s sister
If no one from the Class I heirs takes the property, then Class II heirs fall in
line to get the property. In Kalyan Kumar Bhattacharjee v. Pratibha
Chakraborty AIR 2010 (NOC) 646 (Gau), the property fell into the share of
the defendant brother named Ranjit, who was unmarried. However, he
became traceless and the property was divided amongst two other brothers
in equal shares. The plaintiff’s brother called Jagadish then executed a will in
favour of both the plaintiff and died afterwards. However, the defendants
then asked them to vacate the land, contending that inter alia that the land
has been purchased in the name of three brothers; namely Jagadish, Ranjit
and Kalyan, the defendant number 1. It was held that when a Hindu male is
unmarried and he dies, and is not survived by a Class I heir, the Class II
heirs would get the property.

Similarly, when in heirs in Class III and IV are there, the property would only
go to them if no one from the Class II is present.

pg. 84
Class III heirs

This consists of the agnates of the deceased. Class III heirs only inherit the
property when none form the earlier classes gets the property.

An agnate is a person who is related to the intestate only through male

relatives. An agnate can be a male or a female.

Rules of preference among agnates

 Each generation is referred to as a degree. The first degree is

intestate.
 Degrees of ascent mean ancestral or upwards directions.
 Degrees of descent means in the descendants or downwards
direction.
 Where an agnate has both ascent and descent degrees, each has to
be considered separately.
 An agnate having descent degree will be preferred over the one
having ascent degree.
 When two agnates have ascent and descent degrees, the one having
lesser number of ascent degrees will be preferred.

Class IV heirs

A cognate (Class IV) is someone who was related to the intestate through
mixed relatives, in terms of sex. For example, an intestate’s paternal aunt’s
son is his cognate, but his paternal uncle’s daughter will be an agnate.

Therefore, to sum up it can be said that the property of the Hindu male
devolves in the following manner:

 First, to the heirs in Class I.

 Second, if there exists no heir of Class I, then it goes to Class II
heirs.
 Third, if none from the Class I or II exists, then it goes to the
agnates (Class III).

pg. 85
  Fourth, if no one from the earlier three classes exists, then it goes
to the cognates (Class IV).

Rules for ownership in the case of females

With the coming of The Hindu Succession Act, 1956, women are granted
ownership of property, whether it was acquired before or after the
commencement of the Act, thus abolishing their ‘limited owner’ status. But it
was only in the Hindu Succession (Amendment) Act, 2005 that it was decided
that daughters would be entitled to an equal share in the property as the
son. Therefore, the 2005 Amendment serves as a defender for female rights.

The property in case of a female Hindu intestate dying will devolve through:

 Firstly, through the sons and daughters, which would also include
the children of a predeceased son or a predeceased daughter) and
the husband.
 Secondly, on the heirs of the husband.
 Third, upon the mother or the father.
 Fourth, on the father’s heirs.
 Fifth, on the heirs of the mother.
In the case of any property being inherited by a female Hindu by her father
or mother and there is no son or daughter of the deceased (including a child
of predeceased son or daughter), then it shall devolve in favour of the heirs
of the father.

Similarly, in the case of any property being inherited by a female Hindu by

her husband or her father in law, and there is no son or daughter of the
deceased (including the child of a predeceased son or daughter), it shall
devolve in favour of the heirs of the husband.

Conclusion

pg. 86
This article explored some basic terms and definitions used in the Hindu
Succession Act, 1956. There are four classes of heirs to which property
devolves in case if a Hindu dies leaving behind a will, in which case he
becomes intestate. This property devolves through these classes. If no one
from the earlier class is present, then it devolves to the next class and so on.
Lastly, this article also explored the 2005 Amendment to this Act, which
brought much needed protection to women rights regarding property.

Types of will under The Indian

Succession act, 1925
This article talks about types of will in India. Wills can however varied according to the customs
practiced by different sects and religious groups.

Types of will
According to the Indian succession Act there are basically two types of wills.
 Privileged Wills
 Unprivileged Wills

Privileged Wills
These are the wills made by a soldier employed in an expedition or actual warfare, or an airman
so employed or engaged or a mariner at sea. Persons such employed cannot be expected to have
the resources and time for completing all the formalities required for validation of the will,
therefore they have been excused from such legal requirements and given the privilege of making
simpler wills.

Execution of privileged will

1. Privileged wills may be in writing, or may made by word of mouth.
2. The execution of privileged wills shall governed by the following rules:–
3. The wills should be written wholly by the testator, with his own hand. In such
case it need not signed or attested.
4. It may written wholly or in part by another person, and signed by the testator.
In such case it need not attested.
5. If the instrument purporting as wills written wholly or in part by another
person and not signed by the testator. The instrument shall deemed as

pg. 87
 testators will, if shown that it was written by the testator’s directions or that he
recognized it as his will.
6. If it appears on the face of the instrument that the execution of it in the
manner intended by the testator was not completed, the instrument shall not,
by reason of that circumstance, may invalid, provided that his non-execution of
it can reasonably ascribed to some cause other than the abandonment of the
testamentary intentions expressed in the instrument.

Unprivileged Wills
All other kinds of wills, which are not privilege wills are called unprivileged wills. These are the
wills that need or require certain conditions to be fulfilled for the wills to be valid. These are the
wills commonly made by the masses.

Execution of unprivileged will

1. Testator shall sign or affix his mark to the will, or signed by other person in his
presence and direction.
2. The signature or mark of the testator, or the person signing for him, shall
placed that it shall appear as it intended to give effect to the writing as a will.
3. The will shall attested by two or more witnesses. Each of two seen the testator
sign or affix his mark to will or seen other person sign the will.
4. The signing of the will should be
 in the presence and by the direction of the testator,
 or has received from the testator a personal acknowledgment of his signature
or mark,
 or of the signature of such other person; and
 hence, each of the witnesses shall sign the will in the presence of the testator.
NOTE- It shall not be necessary that more than one witness be present at the same time.

Registration of a wills may not be necessary. It is although a convenience for the law, but it does
not affect the wills as such. It is advisable to register the wills with the registrar where the
registrar then becomes the legal guardian of the wills, the document then becoming strong
evidence in law for the validity of the wills.

Overview
A “Will” or “Testament” is a legal document by which a person (the ‘testator’) expresses as
to how his/her movable/immovable property needs to be transferred/ distributed on account
of his/her death. There are different types of wills and in this blog, we will discuss one of
these, namely, the privileged will.

pg. 88
What is a Privileged Will?
A privileged will is one that can be made by a member of the Armed Forces engaged in
actual warfare or employed in a certain expedition. As a will is nothing but a legal
declaration, certain formalities must be met with for making a valid will in India. However,
considering the associated possibility and dangers of sudden death and lack of time, owing to
the nature of their line of duty, such formalities are somewhat relaxed for the armed forces.
This is what separates a privileged will from other forms of wills such as an unprivileged
will. In India, the privileged will cases are governed by the Succession Act of 1925.

What are the benefits of a Privileged Will?

Most families in India do not follow the practice of creating a will. However, death is an
unavoidable scenario and having a privileged will in family law can help families to avoid
legal hassles related to property matters, that may arise on account of the death of the head of
the family.
Moreover, Armed Force personnel employed in actual warfare or warlike situations cannot
always have the time and resources for completing the entire formalities associated with
executing a legal will. Therefore, as per privileged will case law, they are allowed some
relaxation with regard to these formalities.
Here, we will look at some of the major benefits of having a privileged will in india -
The minimum age criteria is dispensed with
In contrast to other forms of will, even a person below the age of 18 years can create a valid
privileged will. This is important for young people under 18 years of age, who are recruited
in the Armed Forces. Because of their tender age, they would not be able to create a
conventional will otherwise.
Provision of Tax exemption
As per section 154 of the Indian Inheritance Tax Act of 1984, the exemption is allowed on
the assets passed on by a privileged will in india. This exemption is granted on the estates of
present/former members of the Armed Forces if an active service has led to their death.
Extended validity
The validity of privileged will gets extended after the creator has left the Armed Forces, has
no longer been amidst the dangers of operational duties or even after a war has ended. Also,
the creator is free to make alterations in his will even after the change of circumstances which
gave him the power to make the privileged will earlier. He will still be assumed to be in the
privileged status.
Can be executed at a short notice

pg. 89
Because of the inherent relaxations, a privileged will in family law can be executed at a short
notice. This is extremely helpful in situations when an Armed Force Personnel is about to put
his life at risk.

What are the points to consider while making a valid

Privileged Will? ( checklist)
The following conditions must be satisfied for making a valid privileged will in india-
 A privileged will in India can be made by a person in “active military service”. It would
normally include Service personnel who are in the likelihood of being posted in an
operational area.
 The power to execute such a will can be extended to civilian support staff including nurses,
administrators, cooks, and other front line personnel.
 The armed force personnel does not need to be in an active war zone to be eligible to create a
privileged will. He can do so even upon receiving an order to report in an operational area.
 As per privileged will case law, the person creating the will must be of sound mind (should
have “testamentary capacity”)
 A privileged will can be in oral form. It can be made by ‘word of mouth’, by declaring the
intentions clearly
 In contrast to other forms of will, even a person below the age of 18 years can create a valid
privileged will.
 A half-completed will is also a valid one if it can be proved, beyond a reasonable doubt that,
its non-execution was not because of an abandonment of intentions to create it.
 If an Armed Force soldier, under life-risk situations, has given his verbal or written
instruction for the preparation of a privileged will but has expired before it could be
prepared and executed, the Will is considered a valid one.

How to execute a Privileged Will?

As shown by privileged will cases, a privileged will can be executed by adhering to the
following rules-
 If the privileged will is written by the testator in whole, with his own hand, there is no need to
sign or attest the same
 If the privileged will is written in whole or in part by another person but, is signed by the
testator, there is no need to attest the same
 If the privileged will is written in whole or in part by another person but, is not signed by the
testator, the same will be deemed as a ‘will’ if
It is written at the direction of the testator, or
 The testator recognizes it to be his will

 It is not mandatory for a privileged will to be signed in the presence of two independent
witnesses. Also, there is no need for a witness to be present while making any alterations to
a privileged will.

pg. 90
A privileged will can be revoked as well, without completing the formalities required for that
of a conventional will, only if the testator has remained in privileged status. But, if the
testator is no longer in the war zone or has left the Armed Services altogether, he must revoke
the Will in complete accordance with the provisions mentioned in the Wills Act, 1837.

A Hindu Joint family consists of all persons lineally

descended from a common ancestor and includes thier
wives and umarried daughters" Elucidate

Hindu Joint Family and

Coparcenary: An Analysis
Read more at Legal Bites © Reserved: https://www.legalbites.in/hindu-joint-
family-and-coparcenary

Short Note on Hindu Joint Family- Under Mitakshara and Dayabhaga

ABSTRACT: Joint family is a fundamental aspect of Hindu Law in which the concept of
joint family is where their common ancestor and his male lineal descendants along with other
members such as wives, daughters, unmarried persons who stay together under one roof
sharing everything in common. In both the school i.e. Mitakshara and Dayabhaga. The
concept of joint family property is the area which makes each of them different from one
other. For every Hindu there will be no escape from the Joint Family, may be in one
generation or other the Hindu will come into the existence of Joint Family automatically.
Therefore it is mentioned under the Hindu Laws that there is a presumption that each family
will be considered as a Joint Family. So under this article would be focusing more on the
concept of Hindu Joint Family involved and the major roles played by of Karta, Coparcenary
in handling with the Joint Family Property. Apart from all the above will come into the major
difference between Mitakshara and Dayabhaga. Keywords: Hindu Law, Joint Family
Property, Mitakshara, Dayabhaga.

INTRODUCTION Before began with the study firstly we will understand the layman
language what is Joint Family Property? According to Oxford dictionary Joint Family means
were an extended family consisting of two or more generation and their spouses living
together as a single household. So similarly the Hindu Joint Family is the composition of a
common ancestor along with his lineal male descendants and their wives, daughter’s etc. So
for the existence of joint family there must be a common ancestor but it doesn’t mean that for
the continuance of Joint Family the common ancestor must require, by this it’s meant that
whenever a common ancestor dies there is always an addition to the lower link of the Family.
So once an upper link is removed it doesn’t means that the Joint Family will end. This
concept is followed under both Mitakshara and Dayabhaga but it is an area where it makes

pg. 91
distinguish between each of them. In most parts of India the Mitakshara concept of Joint
Family is followed but in West Bengal, Assam, and other part the Dayabhaga concept of
Joint Family is followed by the people. In a case Rajgopal v Padmini1whenever if two or
more families agree to live together by sharing their food, work, resources, gains etc. into a
common stock, then there will be an existence of Joint Family. In other case Ram Kumar v
Commr. Income Tax. It was observed that Hindu Joint Family is considered as a unit and it is
headed by a Person called as Karta.

In Mitakshara Joint Family Property son has a right over the property since the birth, even an
illegitimate son or a widowed daughter has a right over the property of their father’s Joint
Family Property. Another feature is the right to Maintenance and right of survivorship which
will be given to the unmarried daughters and other members respectively in the Joint
Family.Under Mitakshara only Joint Family property will be acquired by the coparcenary by
the concept of succession and survivorship. In case Board of Revenue v. Muthu Kumar it was
observed that when a son inherit the father’s separate property, he will acquire it as a separate
property even if he has a son under Section 8 of Hindu Succession Act4 .Whereas in
Dayabhaga Joint Family Property son have no right over the properties by birth. Even the
concept of Survivorship is not given to son and therefore there is no joint family between the
son and the father. Under Dayabhaga it includes all the properties both selfacquired and joint
family property will be devolve by succession

COPARCENARY UNDER MITAKSHARA SCHOOL OF JOINT FAMILY Coparcenary

idea under Hindu Law was mainly by the male member of the family where just children,
grandsons and great-grandsons son who have a right by birth, who has an interest in the
coparcenary property. No female of a Mitakshara coparcenary could be a coparcener but she
will always be a part of the Joint Family. So under Mitakshara a son, son’s son, son’s son’s
son can a coparcenary i.e. father and his three lineal male descendants can be a coparcener.
For Example: Suppose in a Joint Family a Coparcenary will be consisting of four members
including father and his three male lineal descendants. They will be form a coparcenary with
the limit of four degree Fig. No. 1. Fig. No. 1 Suppose if a Joint Family consist of eight male
lineal descendants i.e. B, C, D, E, F, G, H, I. then they will not be forming a coparcenary
because we have understood from the above example that only a coparcenary can be
consisted on four degree, then B, C, D, E, F, G, H, I Fig. No. 2will not form a coparcenary in
the Joint Family. If they have to a coparcener in the family then only four degree members
should be taken into the consideration i.e. B, C, and D Fig. No. 3 along with a common
ancestor. Then if anyone of the coparcener dies, the next person be added to the coparcenary
subsequently.
In case Venugopala v. Union of India5 it was held that under Mitakshara School of
coparcenary is based on the notion of birth right of son, son’s son, son’s son’s son. All this
concept were followed by the Hindu Succession Act, 1956 but there was recent amendment
made to the Hindu Succession (Amendment) Act, 2005 that even a daughter is entitled to a
coparcenary under the joint family. In SubhashEknathraoKhandekar v.
PragyabaiManoharBirader6 it was held that even a daughter can be a coparcener according to
the Section 6 of the Act7 , but widows of the son can’t be a coparcener according to the Act.
So all the examples it’s clear that a coparcenary can’t be consist of a female under Mitakshara
School either by entering into the agreement between the members of Joint Family nor with
the coparceners. It is a creation of law that only four degree lineal male descendants can be
coparcenary. We have noted under Mitakshara School the coparcener’s acquires a birth right
over the properties of the Joint Family property but the main issue is that the interest acquire

pg. 92
them will be fluctuating and unpredictable. It means that until the partition is done in the
Joint Family property share will not be fixed or specified. The interest of person will be
fluctuating and unpredictable because there can be birth and death happens in the family by
which the share of each individuals will be effected. Suppose, in a Joint Family a coparcenary
consist of a father F, and two son A and B. then if partition happens in this family each of
them will be entitled to a share of 1/3. But suppose if one more son is born to Father (F) i.e. C
and partition was not done in that family then we can say that the share of each person will be
fluctuating 5 AIR 1969 SC 1094 6 2008 Bom. 46 7 Hindu Succession ( Amendment) Act,
2005 A

because one more person is added to that family members. So it is understood that only by
the concept of partition the shares can be fixed for each persons. Under Mitakshara School
there’s a concept of community of interest and unity of possession. The coparceners have the
following rights:  Right to maintenance: Every person in the joint family property is entitled
to get maintenance. Mainly the female members, the persons who doesn’t receive any share
from the family because of disqualification grounds, or unmarried daughters, then all of them
will be getting maintenance from the Joint family.  Right to challenge alienation: The term
alienation means transfer of property in case of any legal necessity or benefit of the estate.
The coparcener, karta and the sole surviving coparceners have the right to alienate the
property for the debts of the family or for any kind of legal necessity of the Joint family. If
the above mentioned person alienate the property with any kind of improper intention or
without any clear intention then the coparcener can challenge the alienation.  Right to
partition: The coparcener’s have the right to partition in the joint family property. Until the
partition is done, the shares of the each individuals will be fluctuating and unpredictable. A.
COPARCENARY WITHIN THE COPARCENARY In Mitakshara school there’s a concept
of Coparcenary within the Coparcenary i.e. a separate coparcenary’s can be existed within a
coparcenary. Suppose a coparcener consist of P and three sons Q, R and S. Q having two sons
QS1,QS2. R having three sons RS1, RS2, RS3. Suppose P and three sons Q, R and S acquire
the separate property then when Q dies his separate property can be acquired by his sons
QS1, QS2 and they can form a separate coparcenary themselves. This concept is called
Coparcenary within the Coparcenary.

B. CLASSIFICATION OF PROPERTY Fig. No. 5 Apratibandha Daya (unobstructed

heritage) property inherit from direct male ancestor but not exceeding three degree who is
higher than him. In case Radha v Ram8 it was held that the property can be acquired by son
and son’s son by the interest of birth. Under the concept heritage is devolved by survivorship.
Sapratibandha Daya (Obstructed Heritage) property inherited from any other relations i.e.
paternal uncle or brother, nephew etc., under this its devolved by inheritance. Under Hindu
Law, the property is furthered divided into:  Joint Family Property: Important aspect of
Hindu Joint Family. Mainly under this properties are inherited from ancestral Property by any
Ancestor or ancestress.  Separate Property: In this property acquired by individuals will be
involved. C. KARTA Karta is a person who acquires a main position in the joint family
property. He is denoted a manager, occupier of the family. The position of Karta is known as
Sui Generic means he hold a unique position in the Joint family property. There can be more
than once Karta in the Joint Family9 . The Karta can be the Senior most male member of the
family. His main duty is to represent his family members or act behalf of them. He is a person
to whom all the family members are depended upon just they hold a fiduciary relation
between them that they always wants a person to manage and look after the wellbeing of the
family without any issues. So the Karta will look after the females, minors in the joint family

pg. 93
and also give them maintenance. If the Karta fails to give maintenance then he can be sued or
the maintenance as well as the arrears of the maintenance. He is responsible to give
maintenance to unmarried daughters in the Joint family along with the debts if the family is 8
AIR 1985 Pat. 285 9Darshan v. Prabhu, AIR 1946 ALL 67. Mitakshara school Apratibandha
daya or unobstructed heritage Sapratibandha Daya or Obstructed Heritage www.ijlmh.com
©2018 IJLMH | Volume 2, Issue 1 | ISSN: 2581-5369 International Journal of Law
Management & Humanities Page 6 having at any point of time. Thus all this will be the
liability of a Karta to maintain the Joint Family member as well the business carried on. The
following persons can be Karta in the Joint Family:  Senior Most Male Member: It is
observed in Shreeama v. Krishavenanama10that the Senior male can be Karta without the
agreement or consent of the coparceners and he hold the Kartaship  Junior Male Member: it
is observed in Narendra Kumar v. Commissioner of Income Tax11that Junior Male can be
Karta by understanding or agreement among the coparceners. In case M/s Nopany
Investments (P) Ltd. V. Santokh Singh12 it was held that the Junior Karta will not the
capacity to file a suit. In HariharSethi v. Ladu Kishore Sethi13 it was held by the Orissa High
Court that junior coparcener can be the Karta when the senior most coparcener waives his
right of Karta then a junior member can become Karta.  Female Member: It was observed
inPandurang v. Pandurang14that the females can be Karta in the absence of the male adult
member. In the case Commr. Of Income Tax v. Seth Govind Ram15 it was held that the
females can’t hold the position of Karta as per the Hindu Law text. It is contravention part of
the Joint Family. D. KARTA’S POWER IN THE JOINTFAMILY PROPERTY. 1. Power to
manage 2. Power to contract debt 3. Power to represent16 4. Power to enter into contracts 5.
Power to refer dispute to arbitration 6. Power of acknowledgment17 7. Power of alienation

COPARCENARY UNDER DAYABHAGA SCHOOL OF JOINT FAMILY

There is no concept of Joint Family under the Dayabhaga School as compared to the
Mitakshara. There is no coparcenary consisting of Father, son, son’s son, son’s son’s son.
The existing of Dayabhaga coparcenary comes only after the death of the father, by that the
son will inherit the property of him and constitute a coparcenary. The concept of Dayabhaga
is followed only in certain parts of India like West Bengal, Assam etc. in this school there is
no right by birth given to son. Son can inherit the property on his father’s death. Likewise
when son dies his heir’s male or females can succeed his property. If suppose the son dies
leaving behind widows or daughter’s then they can succeed the property and becomes
coparcener. The main difference between both the schools is that here the females can
become coparcener. Here the each coparceners takes a definite shares, unity of possession.
Suppose in a family consist of P and three sons B, C, D. On the death of A, the B, C, D will
consist a coparcener. On the Death of B his heirs will coparcener and so on. But under
Dayabhaga school the coparcenary can’t consist of only females, there should be a male in
first and followed by female’s members. So if a male dies leaving behind his widow and two
daughter they will succeed upon his property but will not be forming a coparcener

. A. CLASSIFICATION OF PROPERTY

Under Dayabhaga school also classify the properties in Apratibandha daya (Unobstructed
Heritage) and SapratibandhaDaya (Obstructed Heritage). But Unobstructed Heritage is not
recognised under this school. All the property under this school is governed by the
Obstructed Heritage. All other classification of Property under Mitakshara is similar to

pg. 94
Dayabhaga. B.KARTA Similar to other school, here the eldest male person will be Karta.
The power, its liabilities and power of alienation is similar to of the Mitakshara School.

IV. CONCLUSION

So by this paper we have understood the concept of Joint Family Property under Mitakshara
and Dayabhaga School. Coparcenary idea under Hindu Law was mainly by the male member
of the family where just children, grandsons and great-grandsons son who have a right by
birth, who has an interest in the coparcenary property. No female of a Mitakshara
coparcenary could be a coparcener but she will always be a part of the Joint Family. So under
Mitakshara a son, son’s son, son’s son’s son can a coparcenary i.e. father and his three lineal
male descendants can be a coparcener. There is no concept of Joint Family under the
Dayabhaga School as compared to the Mitakshara. There is no coparcenary consisting of
Father, son, son’s son, son’s son’s son. The existing of Dayabhaga coparcenary comes only
after the death of the father, by that the son will inherit the property of him and constitute a
coparcenary. The concept of Dayabhaga is followed only in certain parts of India like West
Bengal, Assam etc. in this school there is no right by birth given to son. Son can inherit the
property on his father’s death. Likewise when son dies his heir’s male or females can succeed
his property. If suppose the son dies leaving behind widows or daughter’s then they can
succeed the property and becomes coparcener. The main difference between both the schools
is that here the females can become coparcener. Here the each coparceners takes a definite
shares, unity of possession.

Power and Position of a Karta

under Hindu Law
The Joint Hindu family is a patriarchal body, and the head of the family is
called Karta. Karta is the senior most male member of the family who acts as
the representative of the family and acts on behalf of the family. There is a
fiduciary relationship between the Karta and the other family members
because every family needs a head member who can look after the welfare of
minor members and females in a Joint Hindu Family. The position of Karta is
unique in a joint Hindu family. Karta takes care of the whole family and its
property and the decision given by the Karta is bound to be followed by the
members of Hindu Joint Family. No one is equal to Karta in a Hindu Joint
Family. The powers and position of a Karta are wider than any of the
members of the Hindu Joint Family. No one can be compared with Karta
among the other members of the joint family.

pg. 95
Who can be a Karta?

Senior most Male Member

The senior most male member is entitled to become a Karta and it is his
right. Karta is always from the members of the family; no outsiders or
stranger can become a Karta. If the senior most male member of the family
is alive then he will continue as Karta, if he dies then the second senior most
member of the family will take the charge of Karta. Karta takes his position
by consent or agreement of all the coparceners.

Junior Male Member

If the coparceners agree, then a junior can also become a Karta of the
family. By making the agreement with the coparceners, a junior male
member can be a Karta of the family.

Female Member as Karta

According to Dharmastra, if there is an absence of the male member in a
family then in that situation female can act as a Karta. If in case male
members are present but they are minors, at that time also, females can act
as a Karta.

Characteristics of Karta
The characteristics of a Karta are:

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

and no one can be compared with him among the family members.
 He had unlimited power but even if he acts on behalf of other
members, he can’t be treated as a partner or agent.
 He controls all the affairs of the family and has wide powers.

pg. 96
  He is responsible to no one. The only exception to this rule is, in
case of fraud, misappropriation or conversion, he is held
responsible.
 He is not bound to invest, save or economise. He has the power to
use the resources as he likes, unless he is not responsible for the
above mentioned charges.
 He is not bound to divide the income generated from the joint
property equally among the family members. He can discriminate
one with another and is not bound to be impartial. The only thing is
he should pay everyone so that they can avail some basic
necessities like food, clothing, education, shelter etc.

Powers of a Karta
The powers of Karta are:

Powers of Management

Karta’s power of management is absolute. No one can question the duties of

the Karta like, he can manage or mismanage the property, family, business
any way he likes. Karta cannot deny the maintenance and occupation of
property to any member. Karta is not liable for the positive failures.

Rights to Income or Remuneration and Expenditure

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

pg. 97
Rights to Represent Joint Family

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

Right to Compromise

Karta has the power to compromise the disputes relating to management or

family property. He can compromise family debts, pending suits and other
transactions. The compromises made by the Karta, can be challenged in
court by heirs only on the ground of malafide.

Power to refer a Dispute to Arbitration

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

Power to Contract Debts

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

Power to enter into Contracts

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

Power of Alienation

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

pg. 98
 1. Legal Necessity
2. Benefit of estate
3. Indispensable duties

Legal Necessity

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

Dev Kishan Vs. Ram Kishan AIR 2002

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

The court held that the debt was used for the unlawful purpose. Since it
contravened the Child Marriage Restraint Act, 1929, therefore, it can be
called as lawful alienation.

Benefit of estate

Benefit of Estate means anything which is done for the benefit of the joint
family property. Karta as a manager can do all those things which are helpful
for family advancement.

Indispensable Duties

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

pg. 99
alienate only a small portion of the family property, whether movable or
immovable.

Loan on Promissory Note

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

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

Responsibilities of Karta

pg. 100
The duty of a Karta is to provide clothing, food, shelter etc, to the members
of the joint family. There are several responsibilities of Karta which include:

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

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

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

Accounts at the time of Partition

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

Severance of status and interest

It’s an individual decision, where a member wants to divide himself from the
joint family and enjoy undefined and unspecified share separately.

pg. 101
Actual division of Property

It is the consequence of the declaration of the desire to cut off. However, it is

a bilateral action.

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

Conclusion
Karta in a Joint Hindu family holds an extraordinary position with reference
to its understanding and complexity. The concept of Karta has its origin
centuries back and it still works due to some functional elements. Every joint
family should have a Karta to boost the cohesive aspect of such a family with
reference to its dealings and ventures. Looking at the position of the Karta, it
can be said that he has fewer liabilities and more powers. When it comes to
determining the position of Karta, he holds a unique position. The decisions
or statements given by the Karta are binding on the parties and they are
bound to do it. Section 6 of the Hindu Succession Act, 1956 gives equal
rights to the daughters as sons have. Hindu Succession Act, 1956 does not
accept woman as a Karta, except two circumstances- if there is an absence
of the male member of the family or in case there is a male member in the
family but he is a minor. These two circumstances are also mentioned in the
Ancient Hindu Law, Dharmasutras. The government should take some steps
to raise the position of women in other personal laws.

pg. 102
Difference in inheritance under Shia and
Sunni Laws:
Sunni and Shia laws of inheritance are different in their foundational structure as well as
detailed implications, though the both are inspired from the Quranic verses of inheritance.
Owing to the fact that Sunnis are in majority in Pakistan, their law of inheritance is relatively
well appreciated by lawyers and students of law, while Shia law of inheritance does not have
such an advantage. The paper aims to present in a simplified manner the salient features of
Shia law of inheritance so that the same may become comprehensible to anyone who is new
to this field but interested to develop his skills. The paper does not explain Sunni law of
inheritance in detail and assumes that the reader would be conversant with it and while
explaining the salient features of Shia law compares them with corresponding features of
Sunni law. The paper illustrates how these features are instrumental in conferring different
shares to legal heirs in Shia and Sunni schemes of inheritance. There is also an elaboration of
the space which is shared by the both legally different traditions of inheritance in Islam. Key
Words: Inheritance; Shia Law; Sunni Law. 1. Introduction: It is familiar in scholarship on
Islam that the most striking difference between Sunni and Shia legal systems is their distinct
laws of inheritance. 1 These differences are so deep rooted that it is almost impossible to
bridge them. But it does not mean that there is no space which is characterized by similarity.
At least there are a few junctures where these different legal traditions rely on the same types
of shares and suggest the same sort of solutions to practical problems. Taking into account
their distinct structures, it is an uphill task to explain them within one scheme of elaboration.2
This paper will elaborate the general principles of Shia law of inheritance. During this
elaboration, it will point out the different implications accrued by the application of Sunni
and Shia laws of inheritance to the same situation. It must be stated at the outset that this
paper is introductory in nature and written for those who are new entrants in this field;
consequently, it cannot elaborate the fine details of Shia scheme of inheritance.

In addition to this introduction and a conclusion at the end, the paper is divided into six
sections which will take up one aspect of Shia law of inheritance and explain its implications
along with the corresponding feature of Sunni law. These aspects include classes of legal
heirs, inheritance of spouses, principle of representation, rule of Radd/return, and principle of
Aul/increase. The penultimate section will discuss how these differently structured systems of
inheritance lead to the same sort of answers in certain situations.

pg. 103
Classes of Legal Heirs:

oter in degree. The daughter is located a degree nearer to the deceased as compared to the
grandson; so she will have the entire estate; the first half as a sharer while another half under
the principle of Radd/return. Shia law is similar with Sunni law to some extent and dissimilar
to another extent with respect to distribution of an estate among brothers of different kinds,
i.e. full, consanguine and uterine. Full brother excludes consanguine brother, but neither full
nor consanguine brother exclude uterine brother. In Sunni law, full sister does not exclude
consanguine brother except in a situation where the former is converted into Ausbaat ma’a
Ghayr (the residuaries together with another).14 Shia law is different from Sunni law on this
point as full sister excludes consanguine brother generally because the former’s status is
equivalent to her male counterpart in his absence. Some schools of Sunni law does not award
any share to deceased’s brothers and sisters in presence of true grandfather owing to the
reason that the former steps into the shoes of the father in case of his death. 15 But according
to Shia law, grandparents and brothers/sisters are all located in the same class; so none of
them will be instrumental in excluding others.16 As far as the class 3 of legal heirs is
concerned which includes paternal and maternal uncles and aunts and their descendants, there
is no preference on the basis that someone is linked to a deceased from paternal or maternal
side. As long as deceased’s heirs are situated at the same degree of relationship they will have
share in inheritance irrespective of their gender and origin of their relationship to a
deceased.17 For instance, a person dies leaving behind one paternal uncle and another
maternal uncle. The both will be entitled to inheritance and the paternal uncle will not have
any preference over the maternal uncle, though their shares will not be the same. But if the
same situation is solved according to Sunni law, then the paternal uncle will inherit the entire
estate as a residuary, while the maternal uncle will not have any share in the estate as he is
regarded as distant kindred. 3. Inheritance of Spouses: As is obvious from the above three-
fold classification of heirs in Shia law, spouses are not placed in anyone of them. The above
referred classes are jointly known as heirs by consanguinity in Shia law, while spouses are
termed as heirs by affinity.18 The heirs by consanguinity are also termed as heirs by Nasab,
while the heirs by Differences between Shia and Sunni Laws of Inheritance: A Comparative
Analysis 49 affinity are heirs by Sabab. 19 Thus, husband and wife form an independent
category similar to Sunni law which is only affected by presence or absence of deceased’s
children. If there are children of a deceased, husband or wife will inherit 1/4 or 1/8
respectively. But if a deceased dies issueless then husband or wife will have 1/2 or 1/4
respectively. If a deceased husband leaves behind more than one wife as legal heirs then they

pg. 104
will share jointly in their prescribed share, i.e. 1/4 or 1/8. 20 There are a few differences
between Sunni and Shia laws regarding inheritance of spouses. Some Shia schools recognise
temporary marriage as a valid marriage. According these schools, only permanently married
spouses are entitled to right of inheritance from each other.21 There is one important
distinction between Shia and Sunni laws regarding the inheritance of childless widow. In the
former law, she is not entitled to land or immovable property though she has a right to her
prescribed share from her deceased husband’s movable assets. 22 On the other hand, Sunni
law does not differentiate between immovable and movable properties of a deceased; hence a
childless widow is entitled to have her share from the both. In Sunni law spouses do not
benefit under the principle of Radd/return in the first place, i.e. in presence of other sharers;
the same is the rule under Shia law.23 For instance, if a person dies leaving behind his wife
and a daughter, the wife will inherit 1/8, and 7/8 will be given to the daughter (one half as a
sharer and the rest under the Radd). 4. Principle of Representation: Without getting into
technicalities of what is meant by principle of representation, this section explains another
fundamental difference between Shia and Sunni laws of inheritance as to how an estate
should be distributed among heirs of a predeceased heir. There is no difference between the
both laws that heirs of a predeceased heir will not inherit anything if other heirs of the
deceased are alive.24 For instance, if a person dies leaving behind one son and two grandsons
of a predeceased son, then the son will get the whole estate and nothing will be given to the
grandsons. Thus, the principle of representation has no relevance when there are other heirs
alive from the same class who are also a degree nearer as compared to the descendants of
predeceased heir. The classical law of these schools, which is being discussed in this section,
is different from the law applicable in this regard in Pakistan under Sec. 4 of the Muslim
Family Laws Ordinance, 1961.25 The occasion for application of representation arises when
there are descendants of predeceased heir (one or more than one) without there being any
direct descendent of the deceased alive. Shia and Sunni classical laws are in agreement on
this point, but they differ as to the manner of distribution of an estate among such heirs.26
For instance, a person dies leaving behind three grandsons of two predeceased sons (two
grandsons from one son and the third from another) Pakistan Journal of Islamic Research Vol
11, 2013 50 without there being any other son or daughter alive. They will be entitled to
inheritance. Now the question arises as to the manner of distribution among such heirs.
Taking the above example into sight, according to Sunni law, all grandsons will inherit from
the estate of their grandparent as per capita; which implies that this fact will not be taken into
account that how many descend from a particular predeceased heir. So, each will inherit 1/3
of the estate as if they are individually entitled to inheritance. 27 According to Shia law, the

pg. 105
distribution will be carried out per stripes (as per stocks); which implies that each son would
have his individual share had he been alive which will be further divided to his legal heirs.28
So, the descendants of predeceased sons will not inherit as if they are individually qualified
legal heirs; they merely represent their parents and will only have what their parents would
have inherited had they been alive. In the above example, two grandsons are linked to the
deceased grandparent by the same father, so their share will be half than that of the third
grandson as he is the only heir of his father whom he represents. While explaining the
principle of representation above, we have intentionally skipped two important issues to
avoid any confusion. These are the following: Firstly, the situation in Shia law will not be
very different had there been in the above example two grandsons from the predeceased son
and one grandson from the predeceased daughter as paternal and maternal grandchildren are
entitled to inheritance.29 But in Sunni law the maternal grandson is regarded as distant
kindred and is only entitled to inherit in absence of the sharers and the residuaries.30 So, he
will have nothing in this case as there are the residuaries, i.e. the paternal grandsons, who are
preferred over him. The only difference with respect to the inheritance of paternal and
maternal grandchildren in Shia law is that the children of daughter will have their shares from
the share of their mother, while the paternal grandchildren will represent their father and
consequently inherit from his share. The distribution among grandchildren of the same parent
will be carried out on the basis of double share for a male than that of a female heir.
Secondly, the principle of representation will also be applicable to heirs of other categories in
Shia law, e.g. descendants of collaterals (brothers and sisters), descendants of uncles and
aunts on the basis of the same rules we have just elaborated regarding children of
predeceased children of a propositus.31 5. Rule of Radd/Return: When an entire estate of a
Shia Muslim is not consumed by his/her heirs and something is left out of it, then the rule of
Radd/return is applied as is done in Sunni law. The application of Radd is more frequent in
Shia law because it accords less significance to Ausbaat/residuaries as compared to Sunni
law.32 In Sunni law an exhaustive list of the residuaries reduces the occurrences of
application of Radd. Whenever there is residue of an estate of a deceased Sunni Muslim that
will be given Differences between Shia and Sunni Laws of Inheritance: A Comparative
Analysis 51 to any eligible residuary irrespective of the fact how remotely he is related to the
deceased.33 While such an exhaustive list is not available in Shia law and even those who are
generally regarded as the residuaries they cannot operate beyond the sphere of their own
basic class. For example, deceased’s paternal uncle is a residuary in Sunni law and he will be
entitled to inheritance after the distribution of prescribed shares to the sharers. Suppose a
person dies leaving behind a daughter and his paternal uncle. As per Sunni law, the daughter

pg. 106
will have one half, while the rest will be inherited by his uncle. But if the deceased is a Shia
Muslim, then his daughter will take the entire estate the first half as a sharer and another half
after applying the Radd. The reason for this sort of distribution is that the daughter belongs to
the class 1 and the uncle is an heir located in the class 3; the uncle is only entitled to
inheritance if there is no heir from the class 1 & 2. Let us explain another example to
appreciate how the role of Ausbaat/residuaries is restricted in Shia law to allow more space to
the application of Radd. If a person dies leaving behind his father and a daughter. According
to Sunni law, the daughter will get one half and the rest will be inherited by the father as a
residuary. In Shia law, a father is not regarded as a residuary in presence of deceased’s
daughter as the both are placed in the same class. Thus, in the above example, the father and
the daughter will first inherit as sharers and the residue will be shared by them under the
Radd as per their respective shares. Father=1/6, Daughter=1/2, LCM=6, Father=1/6,
Daughter=3/6, After applying the Radd: Father=1/4, Daughter=3/4. In Sunni law, spouses are
not entitled to any benefit under Radd except in a case where there is no other relative of
deceased alive including distant kindred.34 Shia law has added into this list two more
persons; one is mother and other is uterine brother/sister. Under certain circumstances they
are only restricted to their prescribed share.35 There is no need to go into detail of those
circumstances as the paper is meant to be introductory. 6. Principle of Aul/Increase: This
principle is not recognized in Shia law of inheritance and Shia scholars have expounded rules
to avoid its application.36 In Sunni law, whenever the calculated shares of heirs of a deceased
are increased from the supposed shares of that estate, the supposed shares are increased to
match the number of the calculated shares. In Pakistan Journal of Islamic Research Vol 11,
2013 52 this manner, each sharer gets what is prescribed for him/her in the Quran in terms of
numbers, but the actual amount/quantity of his/her share is reduced.37 As it is not possible to
avoid situations which ask for application of principle of Aul, Shia jurists have devised an
innovative manner to resolve such situations. They have divided the sharers of a deceased
into those whose share is susceptible to reduction and those whose share is not liable to
reduction.38 They have placed daughters and sisters into the first category taking into
account the fact that their prescribed shares (one half and two thirds) could be reduced in
those situations where there is a male counterpart who converts them into residuaries. But on
the other hand, there are other sharers, e.g. parents, spouse and uterine sister, whose share is
minimally prescribed in the Quran which could not be reduced from that minimal amount in
any case.39 So, if there are heirs from both these categories and their calculated shares are
increased from the supposed shares, then the heirs of the second category will have their
prescribed shares, while the heirs of the first category will bear the burden of avoidance of

pg. 107
application of the principle of Aul. Let us explain this in an illustration. A female dies leaving
behind her husband and two sisters. The husband’s prescribed share in such a situation is 1/2,
while two sisters’ 2/3. If we solve this proposition, the husband will be entitled to 3/6 and the
sisters 4/6. So, according to Sunni law, the Aul will be applied to make the husband’s share
3/7 and the sisters 4/7. But Shia law resolves it differently by proposing that the husband
should be given 3/6 as his share cannot be reduced, while the sisters will jointly inherit 3/6
instead of 4/6 as their share could be subjected to reduction to circumvent the application of
Aul. 7. Similarities in Shia and Sunni Laws: Shia and Sunni laws of inheritance are
characterized by multi-layered differences as explained above. At the same time, there are
some similarities owing to the fact that the both laws are derived from the same Quranic
verses. These laws are similar as to who are Quranic sharers; they agree on their prescribed
shares and conditions under which their entitlement is regulated to a large extent. There are
twelve sharers according to Sunni law out of which Shia law recognizes nine sharers.40
These legal traditions differ regarding three persons namely son’s daughter, true grandfather
and true grandmother. According to Sunni law, these persons are included in Quranic sharers
as they step into the shoes of daughter, father and mother respectively in their absence.
According to Shia law, son’s daughter may inherit in that situation when there is no son and
daughter of the deceased alive, but she is not a Quranic sharer as regarded by Sunni law.
Moreover, true grandparents are placed by Shia law in the class 2 along with false
grandparents and their inheritance is dependent on absence of heirs of the class 1. As there
are nine sharers on which Sunni and Shia laws are in agreement, one may expect that there
will be situations in which both Sunni and Shia laws Differences between Shia and Sunni
Laws of Inheritance: A Comparative Analysis 53 suggest the same sort of distribution of
shares. Let us explain it by elaborating a few examples. a). A husband dies leaving behind a
widow and a son. The widow will have her prescribed share of 1/8, while the son will have
the residue of the estate. Wife/widow=1/8 as a sharer, Son=7/8 as a residuary. b). A wife dies
leaving behind her husband and a full sister. The husband and the full sister will get half of
the estate each as sharers in both Shia and Sunni laws. Husband=1/2 as a sharer, Full
sister=1/2 as a sharer. c). A person dies and leaves behind his wife and a full brother. His
wife will get 1/4 as a sharer, while the rest, i.e. 3/4 will be inherited by the full brother as a
residuary in both Shia and Sunni laws. Wife=1/4 as a sharer, Full brother=3/4 as a residuary.
d). A wife dies leaving behind her husband and one full brother and one full sister. The
husband will have one half of the estate and the rest will be divided between the full brother
and the full sister in both Shia and Sunni laws. The full brother will get double than that of
the full sister. Husband=1/2 as a sharer, Full brother & full sister= 1/2 as residuaries, The

pg. 108
proposition will be solved from 6 supposed shares. Husband=3/6, Full brother=2/6, Full
sister=1/6. 8. Conclusion: The paper has explained the basic features of Shia law of
inheritance with a hope to engender proper appreciation of this area of law among the legal
fraternity including students of law. It has been brought to forth that if some structural aspects
of Shia and Sunni laws are grasped then it would become relatively easy to master these
systems. For instance, division of legal heirs into three classes according to Shia law does not
have any comparable feature in Sunni law. As illustrated above, this difference has manifold
implications in determination of shares of legal heirs. There is another noteworthy distinction
that Shia law does not recognize distant kindred as another category of legal heirs as they are
identified in Sunni law. Most of those who are classed as distant kindred in Sunni law, they
are absorbed in the three basic classes of Shia law; hence, eligible to inherit an estate either as
a sharer or a residuary. Moreover, Shia law erects its foundational rules in such a manner to
exclude any possibility of Aul to take place; whereas the same principle is frequently resorted
to in Sunni law. As these schemes of inheritance in Islamic law are inspired from the verses
of the Quran, this is the reason there is a space where both these Pakistan Journal of Islamic
Research Vol 11, 2013 54 systems arrive on the same sort of solutions albeit the fact that this
space is too small in comparison to the area where they have different solutions to the same
problems. R Shia law divides legal heirs into three basic classes.3 These classes thereafter
determine distribution of an estate among legal heirs and how to give preference to one legal
heir over another. Appropriate appreciation of these classes helps one to understand Shia law
of inheritance as details of this system in one manner or another are linked to this basic
division. These classes are the following: Class 1: (i) Parents, and (ii) Children (male and
female). The children also include their descendants how low so ever irrespective of the fact
whether they are descendants of male or female children. Class 2: (i) Grandparents (true or
false) how high so ever, and (ii) Brothers and sisters (full, consanguine, and uterine) and their
descendants how low so ever irrespective of their gender. Class 3: (i) Paternal uncles and
aunts, (ii) Maternal uncles and aunts, and (iii) Their children how low so ever irrespective of
their gender. Once the heirs are divided into the above classes, there are two basic rules
which need to be understood.4 Firstly, as long as an heir (or more than one) is present from
the class 1, no one will be entitled to inheritance from the class 2: similarly, if there is an heir
(or more than one) from the class 2, no will have anything from the class 3. These classes lay
down a basic framework in which an estate of a Shia deceased is distributed except that
deceased’s spouse is dealt with differently. We will take up this matter in the next section.
Secondly, within the same class there is no difference between male and female heirs except
to the extent that a male heir will have double share than that of a female heir. For instance,

pg. 109
descendants of a Sunni deceased’s daughter are excluded from inheritance as per Sunni law
as they are regarded as distant kindred whose right to inheritance will only be entertained in
absence of the sharers and the residuaries,5 while his son’s descendants will be entitled to his
estate as they are regarded as the sharer or the residuary. Shia law does not differentiate
between descendants of son Differences between Shia and Sunni Laws of Inheritance: A
Comparative Analysis 47 and daughter and they are placed in the same class. 6 When one
descendant from the class is entitled the other would also have its share. Similar to
descendants of son and daughter, Sunni law divides descendants of brothers and sisters into
the residuaries and distant kindred respectively, while Shia law does not prefer males over
females in these situations nor place their descendants in different classes. An easy way to
appreciate this divergence is to comprehend an important difference between Sunni and Shia
laws. According to Sunni law, legal heirs are divided into three classes, i.e. the sharers, the
residuaries and the distant kindred, while Shia law recognizes only two classes, i.e. the
sharers and the residuaries. There is no concept of distant kindred in Shia law.7 Most of those
who are regarded as distant kindred in Sunni law relate to a deceased from his female
descendants (e.g. daughter’s children, son’s daughter’s children) or other female relatives
(e.g. mother’s father, mother’s brother and sister, sister’s children etc.).8 As Shia law places
these females and their ascendants and descendants in above mentioned classes along with
their male counterparts, there remains no need to have another class of legal heirs like the
distant kindred in Shia scheme of inheritance. Another aspect we take into account while
discussing Sunni law was distinguishing paternal and maternal grandfathers into true and
false grandfathers.9 As is apparent from the above classification, there is no such distinction
in Shia law.10 Both paternal and maternal grandfathers are placed in the same class. Again
this difference is an outcome of absence of the distant kindred in Shia scheme of inheritance.
The significance extended to the residuaries in Sunni law is not visible as such in Shia law.
Shia law has significantly reduced it by dividing the legal heirs into the above classes. For
instance, brother (one or more than one) is regarded as a residuary in Sunni law in absence of
deceased’s son (including son’s male descendants) and father. It means that if a Sunni person
dies leaving behind a daughter and a brother, then the daughter will have half as a sharer
while the rest will be inherited by the brother as a residuary. If the same kind of situation
arises with respect to a Shia person, then obviously the persons in the class 1 will exclude
those who are located in the class 2. This implies that the daughter will have the first half as a
sharer while another half will be given to her under the principle of Radd/return.11 The rule
propounded by Sunni law that the nearest in degree will exclude those who are linked to a
deceased by more remote relations12 is shared by Shia law of inheritance, but the

pg. 110
implications of this rule are quite different in the both. For instance, a true grandfather of
remoter degree cannot be excluded by any grandmother of nearer degree in Sunni law. It
means that the grandfather’s father cannot be excluded by the grandmother who is located a
degree nearer to the deceased. In Shia law, the grandmother excludes the grandfather’s father.
The reason Pakistan Journal of Islamic Research Vol 11, 2013 48 for this difference is that
Shia law does not differentiate between males and females in excluding the remoter relations:
female relatives are as effective as male relatives are in Sunni law.13 We will observe the
same kind of difference in outcome if a deceased leaves behind a daughter and a grandson. In
Sunni law, the daughter will have half of the estate while the rest will be inherited by the
grandson as a residuary. The situation will be different in Shia law because of variant
application of the rule the nearer in degree will exclude the remo oter in degree. The daughter
is located a degree nearer to the deceased as compared to the grandson; so she will have the
entire estate; the first half as a sharer while another half under the principle of Radd/return.
Shia law is similar with Sunni law to some extent and dissimilar to another extent with
respect to distribution of an estate among brothers of different kinds, i.e. full, consanguine
and uterine. Full brother excludes consanguine brother, but neither full nor consanguine
brother exclude uterine brother. In Sunni law, full sister does not exclude consanguine
brother except in a situation where the former is converted into Ausbaat ma’a Ghayr (the
residuaries together with another).14 Shia law is different from Sunni law on this point as full
sister excludes consanguine brother generally because the former’s status is equivalent to her
male counterpart in his absence. Some schools of Sunni law does not award any share to
deceased’s brothers and sisters in presence of true grandfather owing to the reason that the
former steps into the shoes of the father in case of his death. 15 But according to Shia law,
grandparents and brothers/sisters are all located in the same class; so none of them will be
instrumental in excluding others.16 As far as the class 3 of legal heirs is concerned which
includes paternal and maternal uncles and aunts and their descendants, there is no preference
on the basis that someone is linked to a deceased from paternal or maternal side. As long as
deceased’s heirs are situated at the same degree of relationship they will have share in
inheritance irrespective of their gender and origin of their relationship to a deceased.17 For
instance, a person dies leaving behind one paternal uncle and another maternal uncle. The
both will be entitled to inheritance and the paternal uncle will not have any preference over
the maternal uncle, though their shares will not be the same. But if the same situation is
solved according to Sunni law, then the paternal uncle will inherit the entire estate as a
residuary, while the maternal uncle will not have any share in the estate as he is regarded as
distant kindred. 3. Inheritance of Spouses: As is obvious from the above three-fold

pg. 111
classification of heirs in Shia law, spouses are not placed in anyone of them. The above
referred classes are jointly known as heirs by consanguinity in Shia law, while spouses are
termed as heirs by affinity.18 The heirs by consanguinity are also termed as heirs by Nasab,
while the heirs by Differences between Shia and Sunni Laws of Inheritance: A Comparative
Analysis 49 affinity are heirs by Sabab. 19 Thus, husband and wife form an independent
category similar to Sunni law which is only affected by presence or absence of deceased’s
children. If there are children of a deceased, husband or wife will inherit 1/4 or 1/8
respectively. But if a deceased dies issueless then husband or wife will have 1/2 or 1/4
respectively. If a deceased husband leaves behind more than one wife as legal heirs then they
will share jointly in their prescribed share, i.e. 1/4 or 1/8. 20 There are a few differences
between Sunni and Shia laws regarding inheritance of spouses. Some Shia schools recognise
temporary marriage as a valid marriage. According these schools, only permanently married
spouses are entitled to right of inheritance from each other.21 There is one important
distinction between Shia and Sunni laws regarding the inheritance of childless widow. In the
former law, she is not entitled to land or immovable property though she has a right to her
prescribed share from her deceased husband’s movable assets. 22 On the other hand, Sunni
law does not differentiate between immovable and movable properties of a deceased; hence a
childless widow is entitled to have her share from the both. In Sunni law spouses do not
benefit under the principle of Radd/return in the first place, i.e. in presence of other sharers;
the same is the rule under Shia law.23 For instance, if a person dies leaving behind his wife
and a daughter, the wife will inherit 1/8, and 7/8 will be given to the daughter (one half as a
sharer and the rest under the Radd). 4. Principle of Representation: Without getting into
technicalities of what is meant by principle of representation, this section explains another
fundamental difference between Shia and Sunni laws of inheritance as to how an estate
should be distributed among heirs of a predeceased heir. There is no difference between the
both laws that heirs of a predeceased heir will not inherit anything if other heirs of the
deceased are alive.24 For instance, if a person dies leaving behind one son and two grandsons
of a predeceased son, then the son will get the whole estate and nothing will be given to the
grandsons. Thus, the principle of representation has no relevance when there are other heirs
alive from the same class who are also a degree nearer as compared to the descendants of
predeceased heir. The classical law of these schools, which is being discussed in this section,
is different from the law applicable in this regard in Pakistan under Sec. 4 of the Muslim
Family Laws Ordinance, 1961.25 The occasion for application of representation arises when
there are descendants of predeceased heir (one or more than one) without there being any
direct descendent of the deceased alive. Shia and Sunni classical laws are in agreement on

pg. 112
this point, but they differ as to the manner of distribution of an estate among such heirs.26
For instance, a person dies leaving behind three grandsons of two predeceased sons (two
grandsons from one son and the third from another) Pakistan Journal of Islamic Research Vol
11, 2013 50 without there being any other son or daughter alive. They will be entitled to
inheritance. Now the question arises as to the manner of distribution among such heirs.
Taking the above example into sight, according to Sunni law, all grandsons will inherit from
the estate of their grandparent as per capita; which implies that this fact will not be taken into
account that how many descend from a particular predeceased heir. So, each will inherit 1/3
of the estate as if they are individually entitled to inheritance. 27 According to Shia law, the
distribution will be carried out per stripes (as per stocks); which implies that each son would
have his individual share had he been alive which will be further divided to his legal heirs.28
So, the descendants of predeceased sons will not inherit as if they are individually qualified
legal heirs; they merely represent their parents and will only have what their parents would
have inherited had they been alive. In the above example, two grandsons are linked to the
deceased grandparent by the same father, so their share will be half than that of the third
grandson as he is the only heir of his father whom he represents. While explaining the
principle of representation above, we have intentionally skipped two important issues to
avoid any confusion. These are the following: Firstly, the situation in Shia law will not be
very different had there been in the above example two grandsons from the predeceased son
and one grandson from the predeceased daughter as paternal and maternal grandchildren are
entitled to inheritance.29 But in Sunni law the maternal grandson is regarded as distant
kindred and is only entitled to inherit in absence of the sharers and the residuaries.30 So, he
will have nothing in this case as there are the residuaries, i.e. the paternal grandsons, who are
preferred over him. The only difference with respect to the inheritance of paternal and
maternal grandchildren in Shia law is that the children of daughter will have their shares from
the share of their mother, while the paternal grandchildren will represent their father and
consequently inherit from his share. The distribution among grandchildren of the same parent
will be carried out on the basis of double share for a male than that of a female heir.
Secondly, the principle of representation will also be applicable to heirs of other categories in
Shia law, e.g. descendants of collaterals (brothers and sisters), descendants of uncles and
aunts on the basis of the same rules we have just elaborated regarding children of
predeceased children of a propositus.31 5. Rule of Radd/Return: When an entire estate of a
Shia Muslim is not consumed by his/her heirs and something is left out of it, then the rule of
Radd/return is applied as is done in Sunni law. The application of Radd is more frequent in
Shia law because it accords less significance to Ausbaat/residuaries as compared to Sunni

pg. 113
law.32 In Sunni law an exhaustive list of the residuaries reduces the occurrences of
application of Radd. Whenever there is residue of an estate of a deceased Sunni Muslim that
will be given Differences between Shia and Sunni Laws of Inheritance: A Comparative
Analysis 51 to any eligible residuary irrespective of the fact how remotely he is related to the
deceased.33 While such an exhaustive list is not available in Shia law and even those who are
generally regarded as the residuaries they cannot operate beyond the sphere of their own
basic class. For example, deceased’s paternal uncle is a residuary in Sunni law and he will be
entitled to inheritance after the distribution of prescribed shares to the sharers. Suppose a
person dies leaving behind a daughter and his paternal uncle. As per Sunni law, the daughter
will have one half, while the rest will be inherited by his uncle. But if the deceased is a Shia
Muslim, then his daughter will take the entire estate the first half as a sharer and another half
after applying the Radd. The reason for this sort of distribution is that the daughter belongs to
the class 1 and the uncle is an heir located in the class 3; the uncle is only entitled to
inheritance if there is no heir from the class 1 & 2. Let us explain another example to
appreciate how the role of Ausbaat/residuaries is restricted in Shia law to allow more space to
the application of Radd. If a person dies leaving behind his father and a daughter. According
to Sunni law, the daughter will get one half and the rest will be inherited by the father as a
residuary. In Shia law, a father is not regarded as a residuary in presence of deceased’s
daughter as the both are placed in the same class. Thus, in the above example, the father and
the daughter will first inherit as sharers and the residue will be shared by them under the
Radd as per their respective shares. Father=1/6, Daughter=1/2, LCM=6, Father=1/6,
Daughter=3/6, After applying the Radd: Father=1/4, Daughter=3/4. In Sunni law, spouses are
not entitled to any benefit under Radd except in a case where there is no other relative of
deceased alive including distant kindred.34 Shia law has added into this list two more
persons; one is mother and other is uterine brother/sister. Under certain circumstances they
are only restricted to their prescribed share.35 There is no need to go into detail of those
circumstances as the paper is meant to be introductory. 6. Principle of Aul/Increase: This
principle is not recognized in Shia law of inheritance and Shia scholars have expounded rules
to avoid its application.36 In Sunni law, whenever the calculated shares of heirs of a deceased
are increased from the supposed shares of that estate, the supposed shares are increased to
match the number of the calculated shares. In Pakistan Journal of Islamic Research Vol 11,
2013 52 this manner, each sharer gets what is prescribed for him/her in the Quran in terms of
numbers, but the actual amount/quantity of his/her share is reduced.37 As it is not possible to
avoid situations which ask for application of principle of Aul, Shia jurists have devised an
innovative manner to resolve such situations. They have divided the sharers of a deceased

pg. 114
into those whose share is susceptible to reduction and those whose share is not liable to
reduction.38 They have placed daughters and sisters into the first category taking into
account the fact that their prescribed shares (one half and two thirds) could be reduced in
those situations where there is a male counterpart who converts them into residuaries. But on
the other hand, there are other sharers, e.g. parents, spouse and uterine sister, whose share is
minimally prescribed in the Quran which could not be reduced from that minimal amount in
any case.39 So, if there are heirs from both these categories and their calculated shares are
increased from the supposed shares, then the heirs of the second category will have their
prescribed shares, while the heirs of the first category will bear the burden of avoidance of
application of the principle of Aul. Let us explain this in an illustration. A female dies leaving
behind her husband and two sisters. The husband’s prescribed share in such a situation is 1/2,
while two sisters’ 2/3. If we solve this proposition, the husband will be entitled to 3/6 and the
sisters 4/6. So, according to Sunni law, the Aul will be applied to make the husband’s share
3/7 and the sisters 4/7. But Shia law resolves it differently by proposing that the husband
should be given 3/6 as his share cannot be reduced, while the sisters will jointly inherit 3/6
instead of 4/6 as their share could be subjected to reduction to circumvent the application of
Aul. 7. Similarities in Shia and Sunni Laws: Shia and Sunni laws of inheritance are
characterized by multi-layered differences as explained above. At the same time, there are
some similarities owing to the fact that the both laws are derived from the same Quranic
verses. These laws are similar as to who are Quranic sharers; they agree on their prescribed
shares and conditions under which their entitlement is regulated to a large extent. There are
twelve sharers according to Sunni law out of which Shia law recognizes nine sharers.40
These legal traditions differ regarding three persons namely son’s daughter, true grandfather
and true grandmother. According to Sunni law, these persons are included in Quranic sharers
as they step into the shoes of daughter, father and mother respectively in their absence.
According to Shia law, son’s daughter may inherit in that situation when there is no son and
daughter of the deceased alive, but she is not a Quranic sharer as regarded by Sunni law.
Moreover, true grandparents are placed by Shia law in the class 2 along with false
grandparents and their inheritance is dependent on absence of heirs of the class 1. As there
are nine sharers on which Sunni and Shia laws are in agreement, one may expect that there
will be situations in which both Sunni and Shia laws Differences between Shia and Sunni
Laws of Inheritance: A Comparative Analysis 53 suggest the same sort of distribution of
shares.

Let us explain it by elaborating a few examples.

pg. 115
a). A husband dies leaving behind a widow and a son. The widow will have her prescribed
share of 1/8, while the son will have the residue of the estate. Wife/widow=1/8 as a sharer,
Son=7/8 as a residuary.

b). A wife dies leaving behind her husband and a full sister. The husband and the full sister
will get half of the estate each as sharers in both Shia and Sunni laws. Husband=1/2 as a
sharer, Full sister=1/2 as a sharer.

c). A person dies and leaves behind his wife and a full brother. His wife will get 1/4 as a
sharer, while the rest, i.e. 3/4 will be inherited by the full brother as a residuary in both Shia
and Sunni laws. Wife=1/4 as a sharer, Full brother=3/4 as a residuary.

d). A wife dies leaving behind her husband and one full brother and one full sister. The
husband will have one half of the estate and the rest will be divided between the full brother
and the full sister in both Shia and Sunni laws. The full brother will get double than that of
the full sister. Husband=1/2 as a sharer, Full brother & full sister= 1/2 as residuaries, The
proposition will be solved from 6 supposed shares. Husband=3/6, Full brother=2/6, Full
sister=1/6.

8. Conclusion:

The paper has explained the basic features of Shia law of inheritance with a hope to
engender proper appreciation of this area of law among the legal fraternity including students
of law. It has been brought to forth that if some structural aspects of Shia and Sunni laws are
grasped then it would become relatively easy to master these systems. For instance, division
of legal heirs into three classes according to Shia law does not have any comparable feature
in Sunni law. As illustrated above, this difference has manifold implications in determination
of shares of legal heirs. There is another noteworthy distinction that Shia law does not
recognize distant kindred as another category of legal heirs as they are identified in Sunni
law. Most of those who are classed as distant kindred in Sunni law, they are absorbed in the
three basic classes of Shia law; hence, eligible to inherit an estate either as a sharer or a
residuary. Moreover, Shia law erects its foundational rules in such a manner to exclude any
possibility of Aul to take place; whereas the same principle is frequently resorted to in Sunni
law. As these schemes of inheritance in Islamic law are inspired from the verses of the Quran,
this is the reason there is a space where both these Pakistan Journal of Islamic Research Vol

pg. 116
11, 2013 54 systems arrive on the same sort of solutions albeit the fact that this space is too
small in comparison to the area where they have different solutions to the same problems.

Basic Principles Of The Christian Law Of Succession

The Concept Of Succession
Before venturing into a discussion on the Christian Law of Succession, we would do
well to first make a preliminary study of what exactly succession is. Succession, in
brief, deals with how the property of a deceased person devolves on his heirs. This
property may be ancestral or self-acquired, and may devolve in two ways:
1. By Testamentary Succession, i.e. when the deceased has left a will bequeathing his
property to specific heirs
2. By Intestate Succession, i.e. when the deceased has not left a will, whereby the law
governing the deceased (according to his religion) steps in, and determines how his
estate will devolve.

The Indian Succession Act, 1925

The religion of the deceased determines the succession to his estate. For example,
succession among Hindus is governed by the Hindu Succession Act, 1956. As such,
Christians in general are governed by the Indian Succession Act of 1925 for
succession purposes.
S. 2(d) of the Act defines an “Indian Christian” hereby: “Indian Christian” means a
native of India who is, or in good faith claims to be, of unmixed Asiatic descent and
who professes any form of the Christian religion.
This was further clarified in the case of Abraham v. Abraham where the scope of this
definition of an ‘Indian Christian’ was delineated with regard to its actual working.
This case laid down that a Hindu who has converted to Christianity shall not be
governed by Hindu law (customary or otherwise) anymore, and any continuing
obligatory force that the Hindu law may have exercised upon him stands renounced.
However, he was clearly given the option to permit the old law to continue to have
an effect on him, despite having converted out of the old religion into the new one.
In 1865, the original Indian Succession Act was passed and a new question arose as
to whether, even under the provisions of this new Act, the convert could elect to be
governed by the old law. In the case of Kamawati v. Digbijoy thereafter it was held by
the Privy Council that the old law ceases to be applicable with regard to inheritance
i.e. succession. Thereafter in a recent 2001 judgement, the Allahabad High Court
reiterated that Hindu converts to Christianity will be bound solely by the succession
laws governing Christians, inclusive of the Indian Succession Act, 1925, and it will not
be possible for them to elect to be governed by the old law in this or related matters.

pg. 117
Will, however, the incidents of the joint family (in the case of those converting out of
the Hindu religion) continue to apply? The Courts in this regard have not been able
to reach a uniform conclusion. In the case of Francis v. Gabri the Bombay High Court
held that if a family were to convert out of Hinduism into Christianity, the
coparcenary rights of that family would remain untouched. But the Madras High
Court held in the case of Francis v. Tellis that the effect of conversion out of
Hinduism would be to render all coparcenary rights thenceforth individual rights. In
this case, out of two brothers, one of them converted to Christianity. It was held that
upon his death it would not be possible for the other brother to succeed to the
entire estate by way of the doctrine of survivorship.
Intestate Succession Among Indian Christians
S. 30 of the Indian Succession Act, 1925 defines intestate succession thus: A person is
deemed to die intestate in respect of all property of which he has not made a
testamentary disposition which is capable of taking effect. Thus any property which
has not already been bequeathed or allocated as per legal process, will, upon the
death of the owner, insofar as he is an Indian Christian, devolve as per the rules
contained in Chapter II of the Act. It would be worthwhile to note at this point that
intestacy is either total or partial. There is a total intestacy where the deceased does
not effectively dispose of any beneficial interest in any of his property by will. There is
a partial intestacy where the deceased effectively disposes of some, but not all, of the
beneficial interest in his property by will.
Domicile
The Domicile of the deceased plays an integral role in determining the method of
devolution of his property. Halsbury defined ‘domicile’ thus: “A person’s domicile is
that country in which he either has or is deemed by law to have his permanent
home.” S.5 of the Act categorically states that succession to the movable property of
the deceased will be governed by the lex loci as per where he had his domicile at the
time of his death; whereas succession to his immovable property will be governed by
the law of India (lex loci rei sital), no matter where he was domiciled at the time of his
death. Also, S. 6 further qualifies this provision by stating that a person can have only
one domicile for the purpose of succession to his movable property. It must be noted
that domicile and nationality differ from each other – domicile deals with immediate
residence, whereas nationality implies the original allegiance borne by the person. S.
15 lays down that upon and during subsistence of marriage, the wife acquires the
domicile of her husband automatically.
Kindred Or Consanguinity
S. 24 of the Act makes an initial reference to the concept of kindred and
consanguinity, defining it as “the connection or relation of persons descended from
the same stock or common ancestor.” S. 25 qualifies ‘lineal consanguinity’ with
regard to descent in a direct line. Under this head fall those relations who are
descendants from one another or both from the same common ancestor. Now,

pg. 118
succession can be either ‘per capita’ (one share to each heir, when they are all of the
same degree of relationship) or ‘per stirpes’ (division according to branches when
degrees of relationship are discrete). For Christians, if one were to claim through a
relative who was of the same degree as the nearest kindred to the deceased, one
would be deemed to stand in the shoes of such relative and claim ‘per stirpes.’
S. 26 qualifies ‘collateral consanguinity’ as occurring when persons are descended
from the same stock or common ancestor, but not in a direct line (for example, two
brothers). It is interesting to note that the law for Christians does not make any
distinction between relations through the father or the mother. If the relations from
the paternal and maternal sides are equally related to the intestate, they are all
entitled to succeed and will take equal share among themselves. Also, no distinction
is made between full-blood/half-blood/uterine relations; and a posthumous child is
treated as a child who was present when the intestate died, so long as the child has
been born alive and was in the womb when the intestate died.
Christian law does not recognise children born out of wedlock; it only deals with
legitimate marriages. Furthermore it does not recognise polygamous marriages
either. However, a decision has been made to the effect that it does recognise
adoption and an adopted child is deemed to have all the rights of a child natural-
born, although the law does not expressly say so.
The law of intestate succession under S. 32 states that: The property of an intestate
devolves upon the wife or husband or upon those who are of the kindred of the
deceased, in the order and according to the rules hereinafter contained in this
Chapter. However, as aforementioned, the Act recognises three types of heirs for
Christians: the spouse, the lineal descendants, and the kindred. These shall be dealt
with now.
Rights Of The Widow And Widower
S. 33, S. 33-A, S. 34 of the Act govern succession to the widow. Together they lay
down that if the deceased has left behind both a widow and lineal descendants, she
will get one-third share in his estate while the remaining two-thirds will go to the
latter. If no lineal descendants have been left but other kindred are alive, one-half of
the estate passes to the widow and the rest to the kindred. And if no kindred are left
either, the whole of the estate shall belong to his widow. Where, however, the
intestate has left a widow but no lineal descendants, and the net value of his
property does not exceed five thousand rupees, the whole of the property will go to
the widow – but this provision does not apply to Indian Christians.
S. 35 lays down the rights of the widower of the deceased. It says quite simply that
he shall have the same rights in respect of her property as she would in the event
that he predeceased her (intestate).
Rights Of Children And Other Lineal Descendants
If the widow is still alive, the lineal descendants will take two-thirds of the estate; if
not, they will take it in whole. Per capita (equal division of shares) applies if they

pg. 119
stand in the same degree of relationship to the deceased. This is as per Sections 36-
40 of the Act. Importantly, case law has determined that the heirs to a Christian shall
take his property as tenants-in-common and not as joint tenants.
Also, the religion of the heirs will not act as estoppel with regard to succession. Even
the Hindu father of a son who had converted to Christianity was held entitled to
inherit from him after his death.
As per S. 48, where the intestate has left neither lineal descendant, nor parent, nor
sibling, his property shall be divided equally among those of his relatives who are in
the nearest degree of kin to him. If there are no heirs whatsoever to the intestate, the
doctrine of escheat can be invoked by the Government, whereupon the estate of the
deceased will revert to the State.
Testamentary Succession Among Indian Christians
A will is the expression by a person of wishes which he intends to take effect only at
his death. In order to make a valid will, a testator must have a testamentary intention
i.e. he must intend the wishes to which he gives deliberate expression to take effect
only at his death.
Testamentary Succession is dealt with under Part VI of the Indian Succession Act,
1925. According to S. 59, every person of sound mind, not being a minor, may
dispose of his property by will. The explanations to this Section further expand the
ambit of testamentary disposition of estate by categorically stating that married
women as also deaf/dumb/blind persons who are not thereby incapacitated to make
a will are all entitled to disposing their property by will. Soundness of mind and
freedom from intoxication or any illness that render a person incapable of knowing
what he is doing are also laid down as prerequisites to the process.
Part VI of the Act encompasses 134 Sections from S. 57 to S. 191, that
comprehensively deal with all issues connected with wills and codicils, and the
making and enforcing of the same, including capacity to make a will, formalities
needed for wills, bequests which can be validly made etc.
Conclusion And Suggestions
It has been argued by several prominent Christian lawyers and legal writers that “laws
with regard to touchy issues like succession, etc. should reflect customs and practices
for their acceptance and sustenance.” While the improvements introduced by the
Indian Succession Act, 1925 with regard to women’s property rights have been
welcomed, since “the majority of Christians do not seem to be opposed to giving
equal share to women in the matter of intestate succession,” there is also a faint vein
of resentment with regard to the total repeal of the Travancore Christian Succession
Act 1792 since it was considered to be an overall well-balanced legislation.
As these problems are still alive, it has become necessary to look for some solutions
in the constitutional context. “While in view of [the] distinction between legislative
and judicial functions, the legislature cannot by a bare decision, without more,
directly overrule, reverse or override a judicial decision, it may at any time in exercise

pg. 120
of the plenary powers conferred on it by Articles 245 and 246 of the Constitution
render a judicial decision ineffective by enacting a valid law on a topic within its
legislative field fundamentally altering or changing with retrospective, curative, or
neutralising effect the conditions on which such decision is based.” With this in mind,
the Travancore-Cochin Christian Succession (Revival and Validation) Bill, 1996 was
put forth. Unfortunately, all it looked to was a rehashing of the earlier law, and not an
arrangement for the validation of past transactions, which is in fact more significant.
I

he Hanafi Law of Succession

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There is no uniform civil code for law of inheritance. Every religion is governed by its own
personal laws. The Muslim law of inheritance is twofold in nature. These rules of inheritance
are based on:

a. Pre-Islamic customs which were approved by the Prophet.

b. Quran and the traditions of Prophet
The Pre-Islamic customs discriminated and excluded women from inheriting the property.
Later sizeable changes were made to benefit the female. This article concentrates on Hanafi
intestate succession. The four major categories of heirs who figure in the Sunni scheme of
succession-male agnatic heirs, Quranic heirs, agnatic co-sharers, and female agnatic heir.

Different types of heirs:

The inheritance is limited to three groups:
1. Quota-heirs, consists of daughters, parents, grandparents, husband and wife/ wives,
brothers and sisters, and others
2. After the shares of the Quota-heirs is distributed members of the asaba (usually a
combination of male and sometimes ʿ ṣ female relatives) inherit as residuaries.
3. In case a person leaves no direct relatives then his property becomes the property of
the state (escheat).

Sharers: There are 12 sharers and they are:

1. Husband,
2. Wife,
3. Daughter,
4. Daughter of a son (or son's son or son's son and so on),
5. Father,
6. Paternal Grandfather,
7. Mother,
8. Grandmother on the male line,
9. Full sister

pg. 121
 10. Consanguine sister
11. Uterine sister
12. Uterine brother

Pre-Islamic
a. Male agnatic
Male agnatic heirs play a significant role in the law of succession. The nearest male
agnatic or the highest ranking male relative of the propositus will inherit the
property.

Quranic reform
a. Agnatic Co-sharers
A female can participate in the succession of property as agnatic co-sharers if she is
led by a male agnatic heir who is related to the deceased. An agnatic co-sharer is
either a collateral or a descendant of the propositus. Therefore a grandmother can
never be made an agnatic heir (in some cases the mother is an exception). Only the
daughter, the son's daughter, the germane sister, the consanguine sister, can attain
the status of agnatic co-sharer.

Special case:
Mother becoming an agnatic heir
If the male agnate is the father and if there are no children, grandchildren or any
collateral present then the father becomes the agnatic heir and converts the mother
into an agnatic co-sharer.

b. Female agnatic heir

The sole female who inherits agnatically on her own is the germane or consanguine
sister. If germane or consanguine sister co-occur with a daughter or son’s daughter,
sister ceases to be a Quranic heir and functions as an agnatic heir. The female
agnatic heir will be replaced as agnatic heir or she will be excluded by the male.

c. Quranic heir
The husband and wife will always take the Quranic entitlement. The mother, father
and the daughter are also included in the inheritance however in some cases the
daughter and the mother may take as agnatic co-sharers or the father as male
agnate. [1]

Settling the shares

Muslim law of succession which allots fractional parts of unity to numerous heirs, and
sometimes these fractions can be more or less than the unity. In such cases the shares of
the heirs are reduced or increased accordingly. The process of the shares being reduced is
called the Doctrine of AUL (Increase), and the process by which the shares are increased is

pg. 122
called the Doctrine of Radd (Return)

a. Doctrine of Aul
The property of the deceased will be equal to the total shares of the heirs. But
sometimes the property existing is lesser than the shares specified. The
proportionate share reduces in the following manner.

1. The share of each sharer to bring under common denominator

2. The denominator to be increased to the total number of sharers
3. Allot the share as per the new denominator.

Illustration:
A woman dies leaving behind her 2 daughters, father and husband
Husband - 1/4
Father - 1/6
Daughters- 2/3

Take common denominator i.e 12

Husband - 3/12
Father - 2/12
Daughters- 8/12
TOTAL: 13/12
13/12 becomes 13/13

Shares allotted: Husband - 3/13

Father - 2/13
Daughters- 8/13
b) Doctrine of Radd

In this case the property available is more than the shares specified as per the Quranic
distribution of property. Here the first step is to bring the fractions to a common
denominator. Then the denominator is to be reduced to the value of total sum of all
sharers.

With the help of these doctrines, the Shares of the Sharers are increased and decreased
proportionately in such a manner that the Share of the property of the Sharers become
equal to unity.

Illustration:
A woman dies leaving behind her daughter and mother
Daughter - 1/2
Mother - 1/6

Take common denominator i.e 6

Daughter - 3/6

pg. 123
Mother - 1/6
TOTAL: 4/6
4/6 becomes 4/4

Shares allotted: Daughter - 3/4

Mother - 1/4

Rights of inheritance
a. Women Rights of Inheritance in Islam:
The Pre - Islamic customs denied and excluded women from inheriting the property.
But however Islam has honored women by issuing many laws to protect them and to
give them a noble life which most of us are unaware off. Islam has set a distinct and
fixed right of inheritance for women.

In Holy Quran Allah Almighty clearly defined the rights of inheritance for both men
and women in a way:
Allah thus commands you concerning your children: the share of the male is like that
of two females. If (the heirs of the deceased are) more than two daughters, they shall
have two-thirds of the inheritance; and if there is only one daughter, then she shall
have half the inheritance.

If the deceased has any offspring, each of his parents shall have a sixth of the
inheritance; and if the deceased has no child and his parents alone inherit him, then
one-third shall go to his mother; and if the deceased has brothers and sisters, then
one-sixth shall go to his mother. All these shares are to be given after payment of
the bequest he might have made or any debts outstanding against him.’ (Reference -
Quran, 4: 11) [3]

b. Rights of Widows in Islam:

In Islam a widow has the right to inherit from her husband and it is not legitimate for
anyone to take her share without her acceptance. In case the husband doesn’t leave
a share of his property or enough money to fulfill the needs then the society is
bound to support her. Charity becomes a must for her (widow) as Prophet Mohamed
(peace be upon him) said, that the one who looks after a widow or a person who’s in
need is like a “Mujahid (warrior) who fights for Allah’s Cause, or like him who
performs prayers all the night and fasts all the day.”

c. Step-Children:
The step-children cannot inherit the share of property from their step-parents and
vice-versa. For example, where a Muslim A marries a widow B who has a son from
her before husband, the son is a step son of A. The step-father and
step-son/daughter cannot inherit each other’s properties. That child can only inherit
from B and the before husband and vice-versa. However, the step-brothers/sisters
can inherit each other’s properties. There is a mutual rights of inheritance between
uterine and consanguine brothers or sisters in Muslim law.

pg. 124
 d. Missing Persons:
If a Muslim is missing for 7 years and if that could not be proved before the court
then he / she is considered to be dead and the inheritance of his/her properties
open. The courts held that the Hanafi rule of ninety years of life of a missing person
was only a rule of evidence and not any rule of succession; therefore, this Hanafi rule
must be replaced by the provisions of Indian Evidence Act 1872. [2]

e. Insanity:
Under Muslim law Insanity is not disqualifications and, therefore, an insane or
unchaste heir is entitled to inherit.
Grounds of disqualification
Disqualifications that exclude the heirs to succeed the property of the intestate
are:
a. Murderer:
Under the Hanafi law an heir who has caused the death of the deceased
intentionally, inadvertently, by accident, or negligence is eliminated from inheritance.

b. Illegitimate child:
An illegitimate child cannot inherit from his/her father but can inherit from his/her
mother and all relatives of the mother under Hanafi law. The mother is also allowed
to succeed the property of her illegitimate children.

c. Unborn child:
A child in the womb is considered as a living person. Therefore the child is entitled to
take over the property. However if the child is not born alive, it is assumed that no
such heir existed.

d. Difference in religion:
Under the Islamic law, a non-Muslim is not allowed to inherit the property of a
Muslim. In India this is not the case. A Muslim who had renounced Islam, or had in
any manner ceased to be a Muslim, will, nonetheless, be entitled to inheritance in
the property of his deceased Muslim relation whose heir he is.

But his non-Muslim kins (children) cannot inherit the property of the deceased
Muslim. At the same time, it should be noticed that the inheritance to the property
of a convert to Islam is governed by Muslim law.

e. Escheat:
If a Muslim has no legal heir then his property is inherited by the government
through the process of escheat. State is regarded as the ultimate heir of every
deceased. [4]

Case laws:
a. In Abdul Matin Vs Abdul Azeez AIR 1990 Gau 70 it was held that where one of the two
sisters who had inherited their father’s property died leaving behind a son only and
the other died later survived only by her husband, ½ latter’s property was allotted to

pg. 125
 her husband and the other ½ her sister’s son as a uterine heir.

b. In Ali Saheb Vs Hazara AIR 1968 Mys 351 it was held that though the principle of rad
(return) under the classical law never applies to the surviving spouse, if that spouse
is only survivor in India he/she gets the whole property. [2]

Various kinds of gift in muslims

Hiba-il-iwaz
Under Islamic law, Hiba means gift and iwaz means consideration. Hiba-il-
iwaz thus means, the gift for the consideration already given. Under all the
laws, there is no system where there is a consideration for the gift. But under
Muslim law, there is a system of gift with an exchange.

For example- If A makes a gift of his bungalow in favor of his friend B, and in
return, B makes a gift of his car to A, then it is known as Hiba-il-iwaz. The
second gift made by B to A is iwaz i.e. return.

Requisites of a valid Hiba-il-iwaz:

 Firstly, there must be a complete and valid gift made by the donor
to the donee. If the gift made is not according to the rule of Muslim
law then it is no gift.
 Secondly, there must be a payment consideration made by the
donee. In the case of Khajoorunissa vs Raushan Begam, the facts
were that the father gave one-third of his property to his eldest son
in return of Rs.10,000 but the consideration was never paid. It was
held that the quantum of consideration is not important, the only
thing important is that the consideration must be bona fide.

pg. 126
Hiba-ba-Shart-ul-Iwaz
It means a gift made with a stipulation for return. In this case, the
consideration is not paid by the donee by his own choice but it is paid
because it is a necessary condition here.

Requisites of a valid Hiba-ba-Shart-ul-Iwaz:

 Firstly, the delivery of possession is important; it is revocable until

the iwaz is paid.
 Secondly, as soon as the iwaz is paid it becomes irrevocable.
 Thirdly, a transaction when completed by payment of Iwaz, assumes
the character of a sale.

Concept of Gift Under Muslim Law

INTRODUCTION

A gift is a transfer of property where interest is transferred from one living person
to another, without any consideration. It is a gratuitous and inter vivos in nature.
This is the general definition that is accepted by all the religions, including Muslim
law. As per the Muslim Law, a gift is called as Hiba.

Under English laws, right in property is classified by a division on the basis of

immoveable and moveable (real and personal) property. Rights in the land
described as “estate” under English Law do not always imply only absolute
ownership but it also includes rights which fall short of it and are limited to the life
of the grantee or in respect of time and duration of use of the same[i].

Under Hindu Law, a gift is regarded as the renunciation of the property right by the
owner in the favor of donee. According to Jimutvahana, under Hindu law’s
concept of gift, ownership is not created by acceptance but by renunciation of the
donor. But however, the Mitakshara school of Hindu law considers acceptance as

pg. 127
an important ingredient for a gift. The donor can divest his interest by renunciation
but cannot impose the same on the donee if he is not ready to accept[ii].

Under Muslim Law, the concept of Gift developed much during the period of 610
AD to 650 AD. In general, Muslim law draws no distinction between real and
personal property, and there is no authoritative work on Muslim law, which affirms
that Muslim law recognizes the splitting up of ownership of land into estates. What
Muslim law does recognize and insist upon, is the distinction between the corpus
of the property itself (called as Ayn) and the usufruct in the property (as Manafi).

Over the corpus of property, the law recognizes only absolute dominion, heritable
and unrestricted in point of time. Limited interests in respect of property are not
identical with the incidents of estates under the English law. Under the
Mohammedan law, they are only usufructuary interest (and not rights of ownership
of any kind). Thus, in English law a person having interest in the immoveable
property for limited periods of time is said to be the “owner” of the property during
those periods and the usufruct is also regarded as a part of the corpus.

On the other hand, in Muslim law, a person can be said to be an “owner” only if he
has full and absolute ownership. If the use or enjoyment of property is granted to a
person for life or another limited period such person cannot be said to be an
“owner” during that period. The English law thus recognizes ownership of the land
limited in duration while Muslim law admits only ownership unlimited in duration
but recognizes interests of limited duration in the use of the property. This
basically differentiates Muslim Law’s concept of property and gift from that of
English Law[iii].

Under Muslim Law, the religion of the person to whom a gift is made is not
relevant. In India, there is a separate statute that governs the matters related to the
transfer of property. The Transfer of Property Act, 1882 under Chapter VII talks
about gifts and the procedure for making the same. Yet as per section 129 of the
Act, the Transfer of Property Act, 1882 does not apply to the Muslims making the
gift.[iv]

CONCEPT OF HIBA UNDER MUSLIM LAW

The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882 is
somewhat different from the practice under the Muslim Law. Under the Muslim
Law, a gift is a transfer of property or right by one person to another in accordance
with the provisions provided under Muslim law. Hiba (Tamlik al ain), is an
immediate and unconditional transfer of the ownership of some property or of
some right, without any consideration or with some return (ewaz); and the term
‘hiba’ and ‘gift’ are often indiscriminately used but the term hiba is only one of the
kinds of transactions which are covered by the general term ‘gift’. The other types

pg. 128
of gifts include Ariya (Tamlik al manafe), where the only usufruct is transferred
and Sadqah where the gift is made by the Muslim with the object of acquiring
religious merit[v].

A man may lawfully make a gift of his property to another during his lifetime, or
he may give it away to someone after his death by will. The first is called a
disposition inter vivos; the second, a testamentary disposition. Muhammadan law
permits both kinds of transfers; but while a disposition inter vivos is unfettered as
to quantum, a testamentary disposition is limited to one-third of the net estate.
Muhammadan law allows a man to give away the whole of his property during his
lifetime, but only one-third of it can be bequeathed by will.
The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property is
conferred in something specific without an exchange’. The Shias hold that ‘a hiba
is an obligation by which property in a specific object is transferred immediately
and unconditionally without any exchange and free from any pious or religious
purpose on the part of the donor’. Muslim law allows a Muslim to give away his
entire property by a gift inter vivos, even with the specific object of disinheriting
his heirs[vi].

ESSENTIALS OF HIBA
Since Muslim law views the law of Gift as a part of the law of contract, there must
be an offer (izab), an acceptance (qabul), and transfer (qabza).

In Smt Hussenabi v Husensab Hasan[vii], a grandfather made an offer of a gift to

his grandchildren. He also accepted the offer on behalf of minor grandchildren.
However, no express of implied acceptance was made by a major grandson.
Karnataka HC held that since the three elements of the gift were not present in the
case of the major grandchild, the gift was not valid. It was valid in regards to the
minor grandchildren.
Thus, the following are the essentials of a valid gift[viii]-

1. A declaration by the donor:

There must be a clear and unambiguous intention of the donor to
make a gift. A declaration is a statement which signifies the intention
of the transferor that he intends to make a gift. A declaration can be
oral or written. The donor may declare the gift of any kind of
property either orally or by written means. Under Muslim law,
writing and registrations are not necessary.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul[ix] it was

held that under Muslim Law, declaration, as well as acceptance of the
gift, may be oral whatever may be nature of property gifted. When

pg. 129
 the gift is made in writing, it is known as Hibanama[x]. This gift
deed need not be on stamp paper and also need not be attested or
registered.[xi] In the famous case of Md. Hesabuddin v Md.
Hesaruddin[xii], where the gift was made by a Muslim Woman and
was not written on a stamp paper, Gauhati High Court held that the
gift was valid.
The declaration made by the donor should be clear. A declaration of
Gift in ambiguous words is void. In Maimuna Bibi v. Rasool
Mian[xiii], it was held that while the oral gift is permissible under
Muslim law, to constitute a valid gift it is necessary that donor should
divest himself completely of all ownership and dominion over the
subject of the gift. His intention should be in express and clear words.
According to Macnaghten, “A gift cannot be implied. It must be
express and unequivocal, and the intention of the donor must be
demonstrated by his entire relinquishment of the thing given, and the
gift is null and void when he continues to exercise any act of
ownership over it.”[xiv]
The declaration should be free from all the impediments such as
inducement, threat, coercion, duress or promise and should be made
with a bona fide intention.

2. Acceptance by the donee[xv]

A gift is void if the donee has not given his acceptance. The legal
guardian may accept on behalf of a minor. Donee can be a person
from any religious background. Hiba in favor of a minor or a female
is also valid. A child in the mother’s womb is a competent done
provided it is born alive within 6 months from the date of declaration.
A juristic person is also capable of being a donee and a gift can be
made in their favor too. On behalf of a minor or an insane person, any
guardian as mentioned under the provisions of Muslim law can accept
that gift. These authorized people include[xvi]:

 Father,
 Father’s Executor,
 Paternal Grand-Father, and
 Paternal Grand Father’s Executor.
3. Delivery of possession by the donor and taking of the
possession by the done[xvii]:
In Muslim law, the term possession means only such possession as
the nature of the subject is capable of. Thus, the real test of the
delivery of possession is to see who – whether the donor or the donee
– reap the benefits of the property. If the donor is reaping the benefit
then the delivery is not done and the gift is invalid.

pg. 130
 The mode of delivery of possession depends completely upon the
nature of the property. Delivery of possession may either be: Actual,
or Constructive.

1. Actual Delivery of Possession: Where the property is physically

handed over to the donee, the delivery of possession is actual.
Generally, only tangible properties can be delivered to the done.
Tangible property may be movable or immovable. Under Muslim
law, where the mutation proceedings have started but the physical
possession cannot be given and the donor dies, the gift fails for the
want of delivery of possession[xviii]. However, in such cases, if it is
proved that although the mutation was not complete and the done
has already taken the possession of the property, the gift was held to
be valid[xix].
2. Constructive Delivery of Possession: Constructive delivery of
possession is sufficient to constitute a valid gift in the following two
situations:
 Where the Property is intangible, i.e. it cannot be perceived through
senses.
 Where the property is tangible, but its actual or physical delivery is
not possible.
Under Muslim law, Registration is neither necessary nor sufficient to validate the
gifts of immovable property. A hiba of movable or immovable property is valid
whether it is oral or in writing; whether it is attested or registered or not, provided
that the delivery of possession has taken place according to the rules of Muslim
Law[xx].

Constitutional Validity Of Hiba

The question of whether the first exemption was constitutionally valid in regards to
the right to equality (article 14 of the Indian Constitution) was rather rapidly solved
by the Courts, validating the disposition on the grounds of ‘reasonable
classification.

It is enough to say that it is now well settled by a series of decisions of this Court
that while Article 14 forbids class legislation, it does not forbid reasonable
classification for the purposes of legislation, and in order to pass the test of
permissible classification, two conditions must be fulfilled, namely[xxi]:

(1) That the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others left out of the
group; and,

pg. 131
(2) That differentia must have a rational relation to the object sought to be achieved
by the statute in question.

The classification may be founded on different bases such as geographical, or

according to objects or occupations and the like. The decisions of this Court further
establish that there is a presumption in favor of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there has been a
clear transgression of the constitutional guarantee; that it must be presumed that the
legislature understands and correctly appreciates the needs of its own people and
that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds; and further that the legislature is
free to recognize degrees of harm and may confine its restrictions to those cases
where the need is deemed to be the clearest.

It is well known that there are fundamental differences between the religion and
customs of the Mahomedans and those of others, and, therefore the rules of
Mahomedan law regarding gift are based on reasonable classification and the
provision of Section 129 of the Transfer of Property Act exempting Mahomedans
from certain provisions of that Act is not hit by Article 14 of the Constitution.

The most essential element of Hiba is the declaration, “I have given”. As per
Hedaya, Hiba is defined technically as[xxii]:

“Unconditional transfer of existing property made immediately and without any

exchange or consideration, by one person to another and accepted by or on behalf
of the latter“.
According to Fyzee[xxiii], Hiba is the immediate and unqualified transfer of the
corpus of the property without any return.

SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

Now the question which we have in mind is what can be a subject matter of Hiba,
under Muslim law. As per the provisions of Transfer of Property Act, 1882, the
subject matter of the gift must be certain existing movable or immovable property.
It may be land, goods, or actionable claims. It must be transferable under Section
6. But it cannot be future property. A gift of a right of management is valid, but a
gift of future revenue of a village is invalid.
These cases were decided under Hindu and Mohammedan law respectively but
they illustrate the principle. In a Calcutta case, it was said that the release of a debt
is not a gift, as a gift must be of tangible property. It is submitted that the release of
a debt is not a gift as it does not involve a transfer of property but is merely a
renunciation of a right of action.

pg. 132
It is quite clear that an actionable claim such as a policy of insurance may be the
subject of a gift It is submitted that in a deed of gift the meaning of the word
‘money’ should not be restricted by any hard and fast rule but should be interpreted
having regard to the context properly construed in the light of all the relevant facts.
Therefore in order to constitute a valid gift, there must be an existing property. In
Mohammedan law, any property or right which has some legal value may be the
subject of a gift[xxiv].

Under Muslim law, following constitute the subject matter of Hiba[xxv]:

1. It must be anything (moveable or immovable, corporeal or

incorporeal) over which the right of property may be exercised or
anything which exists either as a specific entity or an enforceable
right, or anything designable under the term mal (property).
2. It must be in existence at the time when the gift is made. Thus, the
gift of anything that is to be made in the future is void. For example,
a donor makes a gift the fruits of his mango garden that may be
produced this year. This gift is invalid since the mangoes were not in
existence at the time of making the gift.
3. The donor must possess the gift.
4. A gift of a part of a thing which is capable of the division is not valid
unless the said part is divided off and separated from the property of
the donor, but a gift of an indivisible thing is valid. For example, A,
who owns a house, makes a gift to B of the house and of the right to
use a staircase used by him jointly with the owner of an adjoining
house. The gift of A’s undivided share in the use of the staircase is
not capable of division; therefore it is valid.
5. According to Hanafi law, the gift of an undivided share in any
property capable of the division is, with certain exceptions,
incomplete and irregular (fasid), although it can be rendered valid by
subsequent separation and delivery of possession. For instance, A
makes a gift of her undivided share in certain lands to B, and the
share is not divided off at the time of the gift but is subsequently
separated and possession thereof is delivered to B, the gift although
irregular (fasid) in its inception, is deemed valid by subsequent
delivery of possession.Exceptions: Gift of such undivided share is
valid which is incapable of division:a) Hiba by one co-heir to the
other; For instance, A Muslim woman died leaving a mother, a son,
and a daughter. The mother made a gift of her unrealized one-sixth
share jointly to the deceased’s son and daughter. The gift was
upheld by Privy Council.

pg. 133
 b) Hiba of a share in freehold property in a large commercial
town; For instance, A wins a house in Dhaka. He makes a gift of one-
third of his house to B. The property being situated in a large
commercial town, the gift is valid.

c) Hiba of a share in a zamindari or taluka; According to Ameer

Ali, the doctrine of Musha is applicable only to small plots of land,
and not to specific shares in large landed properties, like zamindaris.
Thus, if A and B are co-sharers in a zamindari, each having a well –
defined share in the rents of undivided land, and A makes a gift of his
share to B, there is no regular partition of the zamindari, the gift is
valid.

d) Hiba of a share in a land company

Muslim law recognizes the difference between the corpus and the
usufructs of a property. Corpus, or Ayn, means the absolute right of
ownership of the property which is heritable and is unlimited in point
of time, while, usufructs, or Manafi, means the right to use and enjoy
the property. It is limited and is not heritable. The gift of the corpus
of a thing is called Hiba and the gift of only the usufructs of a
property is called Ariya.

In Nawazish Ali Khan vs Ali Raza Khan[xxvi], it was held that gift
of usufructs is valid in Muslim law and that the gift of corpus is
subject to any such limitations imposed due to usufructs being gifted
to someone else. It further held that gift of a life interest is valid and it
doesn’t automatically enlarge into the gift of corpus. This ruling is
applicable to both Shia and Sunni.
Hence critical scrutiny of the concept of Gift under Muslim law gives
us the following instances regarding what can be the subject matter of
Hiba:

 anything over which right of property may be exercised.

 anything which may be reduced to possession.
 anything which exists either as a specific entity or as an enforceable
right.
 anything which comes within the meaning of the word mal.In Rahim
Bux vs Mohd. Hasen[xxvii], it was held that gift of services is not
valid because it does not exist at the time of making the gift.
Kinds Of Gifts
There are several variations of Hiba. These include[xxviii]:

pg. 134
  Hiba bil Iwaz
 Hiba ba Shart ul Iwaz
 Sadkah
 Ariyat
HIBA- IL-IWAZ
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a gift
for consideration already received. It is thus a transaction made up of two mutual
or reciprocal gifts between two persons. One gift from a donor to the donee and
one from donee to the donor.

The gift and return gift are independent transactions. Therefore, when both i.e.,
hiba (gift) and iwaz (return or consideration) is completed, the transaction is called
hiba-bil-iwaz. For example, A makes a gift of a cow to S and later B makes a gift
of a house to A. If B says that the house was given to him by A by way of return of
exchange, then both are irrevocable[xxix].

So a Hiba Bil Iwaz is a gift for consideration and in reality, it is a sale. Thus,
registration of the gift is necessary and the delivery of possession is not essential
and the prohibition against Mushaa does not exist. The following are requisites of
Hiba bil Iwaz:

1. Actual payment of consideration on the part of the donee is

necessary. In Khajoorunissa vs Raushan Begam[xxx], it was held
that adequacy of the consideration is not the question. As long as
the consideration is bona fide, it is valid no matter even if it is
insufficient.
2. A bona fide intention on the part of the donor to divest himself of
the property is essential.
Gift in lieu of dower debt –
In Gulam Abbas vs Razia[xxxi], the Hon’ble High Court at Allahabad held that an
oral transfer of immovable property worth more than 100/- cannot be validly made
by a Muslim husband to his wife by way of gift in lieu of dower debt which is also
more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must be done
through a registered instrument.
HIBA-BA-SHARTUL-IWAZ
‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a
stipulation for return’. Unlike in Hiba bil Iwaz, the payment of consideration is
postponed. Since the payment of consideration is not immediate the delivery of
possession is essential. The transaction becomes final immediately upon delivery.
When the consideration is paid, it assumes the character of a sale and is subject to
preemption (Shufa). As in sale, either party can return the subject of the sale in
case of a defect.

pg. 135
It has the following requisites –

 Delivery of possession is necessary.

 It is revocable until the Iwaz is paid.
 It becomes irrevocable after the payment of Iwaz.
 Transaction when completed by payment of Iwaz, assumes the
character of a sale.
In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that
they are both gifts for a return and the gifts must be made in compliance with all
the rules relating to simple gifts.

REVOCATION OF GIFT
Although there is a tradition which indicates that the Prophet was against the
revocation of gifts, it is a well-established rule of Muslim law that all voluntary
transactions, including gifts, are revocable. The Muslim law-givers have
approached the subject of revocability of gift from several angles.

From one aspect, they hold that all gifts except those which are made by one
spouse to another, or to a person related to the donor within the degrees of
prohibited relationship, are revocable.

The Hedaya gives the reasons thus[xxxii]:

“The object of a gift to a stranger is a return for it is custom to send presents to a

person of high rank that he may protect the donor; to a person of inferior rank that
the donor may obtain his services; and to person of equal rank that the donor may
obtain an equivalent and such being the case it follows that the donor has the
power of annulment, so long as the object of the deed is not answered, since a gift
is capable of annulment”.
The texts of Muslim law lay down a long list of gifts which are irrevocable. The
contents of the list differ from school to school, and the Shias and the Sunnis have
the usual differences. The Muslim law-givers also classify gifts from the point of
view of revocability under the following two heads[xxxiii]:

 Revocation of gifts before the delivery of possession, and

 Revocation of gifts after the delivery of possession.
Revocation of gifts before the delivery of possession[xxxiv]:
Under Muslim law, all gifts are revocable before the delivery of possession is
given to the donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No
delivery of possession has been made to Q. P revokes the gift.

The revocation is valid. In this case, it will not make any difference that the gift is
made to a spouse, or to a person related to the donor within the degrees of

pg. 136
prohibited relationship. The fact of the matter is that under Muslim law no gift is
complete till the delivery of possession is made, and therefore, in all those cases
where possession has not been transferred the gift is incomplete, and whether or
not it is revoked, it will not be valid till the delivery of possession is made to the
donee.

The revocation of such a gift, therefore, merely means that the donor has changed
his mind and does not want to complete it by the delivery of possession. For the
revocation of such gifts, no order of the court is necessary. Fyzee rightly says that
this is a case of inchoate gift and it is not proper to apply the term revocation to
such a gift.

Revocation after the delivery of possession[xxxv]:

Mere declaration of revocation by the donor, or institution of a suit, or any other
action, is not sufficient to revoke a gift. Till a decree of the court is passed
revoking the gift, the donee is entitled to use the property in any manner; he can
also alienate it.

It seems that:

 all gifts after the delivery of possession can be revoked with the
consent of the donee,
 revocation can be made only by a decree of the court.
The revocation of a gift is a personal right of the donor, and, therefore, a gift
cannot be revoked by his heirs after his death. A gift can also not be revoked after
the death of the donee.

According to the Hanafi School with the exception of the following cases, a gift
can be revoked even after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a gift
can be revoked even after the delivery of possession. The exceptions to the same
are[xxxvi]:

 When a gift is made by one spouse to another.

 When the donor and the donee are related within the prohibited
degrees.
 When the donee or the donor is dead.
 When the subject-matter of the gift is no longer in the possession of
the donee, i.e., when he had disposed of it by sale, gift or otherwise
or, where he had consumed it, or where it had been lost or
destroyed.
 When the value of the subject-matter has increased.

pg. 137
  When the identity of the subject-matter of the gift has been
completely lost, just as wheat, the subject-matter of gift, is
converted into flour.
 When the donor has received something in return (iwaz).
 When the object of the gift is to receive the religious or spiritual
benefit or merit, such as sadaqa.
The Shia law of revocation of gifts differs from the Sunni law in the following
respects: First, gift can be revoked by a mere declaration on the part of the donor
without any proceedings in a court of law; secondly, a gift made to a spouse is
revocable; and thirdly, a gift to a relation, whether within the prohibited degrees or
not, is revocable.

Conclusion
The conception of the term gift and subject matter of gift has been an age-old and
traditional issue which has developed into a distinct facet in property law. Different
aspects related to gift in property act and its distinction with the Mohammedan law
and its implications has been the major subject matter of this article.

In considering the law of gifts, it is to be remembered that the English word ‘gift’
is generic and must not be confused with the technical term of Islamic law, hiba.
The concept of ‘hiba’ and the term ‘gift’ as used in the transfer of property act, are
different. As we have seen in the project that Under Mohammedan law, to be a
valid gift, three essentials are required to exist:

 Declaration of gift by the donor.

 Acceptance of the gift, express or implied, by or on behalf of the
done.
 Delivery of possession of the subject of the gift.
The English law as to rights in property is classified by a division on the basis of
immoveable and moveable (real and personal) property. The essential elements of
a gift are:

 The absence of consideration.

 The donor.
 The done.
 The subject-matter.
 The transfer; and the acceptance.
Thus this striking difference between the two laws relating to gift forms the base of
this project in understanding its underlying implications.

To conclude the researcher can say that, the gift is a contract consisting of a
proposal or offer on the part of the doner to give a thing and acceptance of it by the

pg. 138
donee. So it is a transfer of property immediately and without any exchange. There
must be a clear intention by the donor to transfer the possession to the doner for a
valid gift. It can be revoked by the doner. And the provisions for the same have
also been mentioned.

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Will under Muslim Law

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The law of wills is contained in Part–VI of the Indian Succession Act, 1925. All the provisions
of Part–VI do not apply to Hindus, Buddhists, Sikhs and Jains. In Muslim law, Gratuitous
transfer of ownership may be made testamentary. Testamentary transfer is called transfer
under a will. Will is a gratuitous transfer of ownership but, it takes effect only after the death
of the transferor.

Will signifies the last desire of a person regarding the distribution of his properties after his
death. Accordingly, in all the systems of law, rules have been made to honour the last
desires of a person regarding the devolution of his properties. Devolution of property
means transmission of property. In a will too the property passes on to the person in whose
favour the will is made. But a will is not governed by the provision of Transfer of Property
Act, 1882. Where a person dies after making any will the devolution of his properties after
his death is to be governed by his personal law i.e, will by a Muslim law is governed by
Muslim law.

A will executed by a Muslim is called wasiyyat. In respect of wills it is significant to note that
it actually modifies or sometimes negatives the distribution of properties of a deceased
under the law of inheritance. Under a will, the properties of the deceased devolve only upon
the person of his choice. It may be objected that a will made by a deceased Muslim may
amount modifications in the law of inheritance which is based on the rules laid down in
Quran.

A person must be mentally alert when he or she makes and signs a Will. Age or physical
condition is not a sign of incompetence. A person should also be free from undue influence,
persuasion or force while making the Will. [1]The law only requires that two witnesses, who
must not be related to you by blood or marriage or , to watch you sign & date the will and
that they know you have said it is your Will. [2]

pg. 139
To prove a Will, it has to be shown that:
1. The Will is the legal declaration of testators intention
2. The testator was of sound, disposing mind during execution
3. The testator executed it of his own free will.

Two essential characteristics of a Will are:

1. It takes effect after the death of the testator; and
2. It is revocable during the life time of the Testator
According to Tyabji, will means a legal declaration of the intentions of a Muslim with respect
to his property, which he desires to be carried into effect after his death.[3]

According to Baillie, will is a device for conferring a right of property in a specific thing, or in
a profit or advantage, in the manner of a gratuity, postponed till after the death of the
testator. A wasiyyat can be made orally and no writing is required under law.[4]

When this is the case, the beneficiary is required to prove beyond doubt the intention to
make the Will by the testator, [5]and the terms of the Will,[6] and to prove the same with
utmost precision.[7]

If the Will is a written one, the writing need not be described as a Will but the intention
should be decisive, and it need not be formally signed by the testator, and further it is not
required to be attested[8] or registered. All the properties that belong to the testator are
transferrable can be disposed of by the help of a Will.

The aggregate of assets and liabilities is known as the estate of the deceased. Except the
Wills made by Muslims, it is compulsory for all other religions to make their Wills in writing
and that should be duly executed. Registration of a Will is optional but desirable. The will
can be registered by testator during his lifetime or by the executor.

Conditions For A Valid Will

Under Muslim law, following essential conditions are necessary for a valid will:
1. The legator and the legatee must be competent.
2. Competency of the Legator: Who can make Will?
The person who makes a will is called legator or testator. The legato must have the capacity
to make a will and fulfill the following conditions: Muslim, soundness of mind, age of
majority, suicide attempt by Legator. The legato must be a muslim at the time of making of
the will. Only that will is governed by Muslim personal law in which the legato was a muslim
at the time of its execution. If a will has been executed by a muslim who ceases to be a
muslim at the time of his death, the will is valid under Muslim law.

At the time of execution of a will, the testator must be of sound mind. A will by an insane

pg. 140
person is void.

The testator must also be adult. He must have attained the age of majority at the time of
execution of the will. The age of Majority is 15 years, but it is not applicable to the wills in
India. The testator must be eighteen or twenty one years, as the case may be, at the time of
execution of the will. A will executed by a minor is void.

Under Shia Law, a will made after the testator who was injured by his own actions or tried to
commit suicide, such a will is declared as invalid. In Mazhar Hussain v Bodha Bibi[9] it was
held that a will of suicide is valid when made in contemplation of taking poison but before
poison was actually taken, onus of proving that the will was written afterwards rests on
party impugning with.

Competency of the legatee: Who can take under Will?

Any person may be a competent legatee provided he (or she) is in existence at the time of
the death of the testator. It is to be noted that devolution of property under a will takes
place only after the death of the testator, not from the date of making the will. A muslim can
lawfully make a will in favour of any person irrespective of religion, age, sex and the state of
mind. A juristic person is also a competent legatee.

A child in its mother's womb is treated as a living person in existence. Therefore, a child in
womb may be a competent legatee.

But a will in favour of a child in womb is valid subject to two conditions:

i. The child must be in existence in mother's womb at the time of testator's death.
ii. The child in mother's womb must be born alive within six months from the date of
testator' death

A person who causes the death of the legator, cannot be a competent legatee. If a person in
whose favour a will has been made, kills or causes the death of the legato, either
intentionally or accidentally, he is disqualified for getting any property under the will.
However, under Shia law, if a legatee causes the death of the legato negligently or
accidentally, he is not disqualified and the will in his favour is valid.

A bequest may be made to two or more legatees jointly. Where a will is made jointly to
several legatees and no specific share of any of them has been mentioned, the property is
divided equally among all the legatees. But, where the legator himself has specified the
respective shares of the legatee then, each legatee would get the shares allotted to him.
Where a will is made in favour of specified class of persons, the class as such is treated as a
single legatee and each person gets the property equally.

In Lapse of Legacy under Sunni law If the legatee dies before testator, the legacy lapses and
goes back to the testator but under Shia law The legacy lapses only if the legatee dies

pg. 141
without heirs otherwise, it goes to legatee's heirs. Under Shia law, in case the beneficiary
does not survive the testator, the bequest would pass to the heirs of the beneficiary unless
it is revoked by the testator. If the beneficiary dies without leaving any heirs, the bequest ill
pass to the heirs of the testator[10] but in Sunni law if the legatee dies before testator, the
legacy lapses and goes back to the testator.

There must be free consent.

The will must be executed by a legator and legatee must be necessary. Legator must be free
from fraud or undue influence. When a will has been executed by a pardanashin lady, the
legatee must prove of his ownself, that there was no undue influence and that she had
executed the will with her free consent exercising an independent in the matter.

The consent by the legatee may be either express or implied. If the legatee does not give his
consent for taking the property given to him, i.e. if he declines to become the owner of the
bequeathed property, his title to the property is not complete.

Formalities must be completed.

The only essential requirement is that there should be a manifestation of the intention of
testator that after his death, he wants to confer the ownership upon the legatee. Once this
intention is established, the form of the will is immaterial. A will may be made either orally
or in writing and if in writing it should be attested and registered. In case of a written will,
there should be two witnesses to the declaration of the will. If the testator fails to mention
the quantity or amount of bequeathed property, regard may be given to the number or
quantity owned by the testator at the time of death.

The property must be bequeath able property

Any kind of property, movable, immovable, corporeal or incorporeal, may be the subject
matter of will.

A testator may make a will of any property subject to two conditions:

a. the property is owned by the testator at the time of his death, and
b. the property is transferable. The property which is bequeathed under a will may or
may not exist at the time of making will but, it must exist and must be in the
ownership of the testator at the time of his death.

The legator must possess the testamentary right.

Under Muslim law, the testamentary right, i.e. the right to transfer the properties through
will, is restricted in two ways:
1. Firstly, there is a restrictions upon the quantity of property bequeathed.
2. Secondly, in respect of the person(legatee) to whom the property is given.
When a person dies, first of all his funeral expenses and the debts, if any, are satisfied out of
the property left by him and the property which remains after payment of all debts incurred

pg. 142
by a deceased person it is called bequeathable property if the deceased has made any will.
Where the testator is a Muslim, he is authorized to make will only of one-third of the
bequeathable property i.e. one-third of what remains after payment of is funeral expenses
and debts, if any.

Accordingly, the testamentary right of a Muslim under the following two heads:
1. Bequest to Stranger (Non-heir)
In Sunni law For a bequest of more than 1/3 to a non-heir, the consent of heir must
be obtained after the death of testator but under Shia law Heir's consent may be
obtained before or after death In both the sects consent of the heir is required
before bequesting it to a non-heir, but the only difference is in sunni law the consent
of the heir can be obtained only after the death of the testator and in shia law the
consent of the heir can be obtained before or after the death of the testator.

2. Bequest to an Heir
In Sunni law Bequest to an heir without consent of other heirs is invalid. Bequest to
an heir is invalid unless consent of heirs is obtained after death of testator but under
shia law Bequest up to 1/3 [11]of the property is valid even without consent.
Muslims can bequest one-third of their estate without consent of heirs. Consent of
heirs is required if bequest exceeds one third of estate. Mohammedan law does not
allow him to show any undue preference towards any particular heirs and a bequest
to some of his heirs without the consent of the other heirs will be altogether invalid.
[12]

The Court in the case of Damodar Kashinath Rasane v. Shahajsdibi And Ors[13]
observed that the Sunni Schools agrees in holding that a bequest in favour of an heir
is invalid but, according to the Shia law it would seem that a testator can leave a
legacy to one of his heirs so long as that legacy does not exceed one-third of his
estate, and that such a legacy would be valid without the consent of the other heirs
and if the legacy exceeds one-third of the estate, it will not be valid to any extent
unless the consent of all the heirs, given after and not before the death of the
testators, had been obtained.

When Does A Muslim Will Become Effective

A Muslim will becomes effective and the title to the property bequeathed is completed only
with the legatee‘s acceptance express or implied, after the death of the testator. If a legatee
accepts a bequest after the death of the testator it is valid even if he may have rejected it
during his life time. If however the legate survives the testator and dies without assenting to
the Will the assent is presumed. Acceptance of Will is presumed in case of infant or child in
the womb unless it would cause injury to the legatee.

pg. 143
When A Muslim Will Can Be Cancelled
Muslim law decrees that a person can cancel the will at his convenience without giving any
reasons, anytime before his death.

Which Muslim Will Is Valid

Another way of cancelling the will is to bequeath the property to someone other than the
heir who was mentioned in the first will. The last will that an individual makes becomes his
final will, and will be taken into account at the time of death.

Abatement Of Legacies
Abatement means, ‘to deduct' or ‘to make less'. IF there is only one legatee who has to get
more than the legal-third and, the testator's heirs do not give their consent for the bequest
in excess, then there would be no difficulty and the legatee would get only one-third
property even though the will is for more.
Under Sunni law, the distribution is rateable whereas under Shia laws the distribution is
preferential.

Rate able Abatement

Where a bequest of more than one-third of property is made to two or more persons and
the heirs do not give their consent, the shares are reduced proportionately to bring it down
to one-third, or in other words, the bequest abates rateably.

The above rule applies in Sunni law only:

a. Bequest for faraiz, that is, purposes expressly ordained in the Koran viz. hajj, zakat
and expiation for prayers missed by a Muslim.
b. Bequest for waji-bait, that is, purposes not expressly ordained in the Koran, but
which are proper such as charity given for breaking rozas.
c. Bequest for nawafali, that is, purposes-deemed pious by the testator, viz. bequest
for constructing a mosque, inn for travellers or bequest to poor. The bequests of the
first category take precedence over bequests of the second and the third category
and bequests of the second category take precedence over those of the third.

Chronological Priority
According to Shia law, if several bequests are made through a Will, priority would be
determined by the order in which they are mentioned or by the point of time. Thus, legacies
take effect in order of preference.
1. If a bequest is made partly for performance of incumbent and partly for
discretionary duties and one-third is not sufficient for both, then if the heirs refuse

pg. 144
 their consent, the incumbent duties must be discharged from the general mass of
the estate and the others from one-third of the remaining property in the order in
which they are mentioned by the testator.

2. If a second Will clearly shows the intention of the testator to revoke the first Will, the
second bequest shall alone take effect. Such an intention shall be presumed in the
case of bequest of exactly one-third to two different persons.

3. If no such intention appears, bequests will be entitled to priority in the order in

which they were made.

Importance of Islamic Will

The importance of Islamic will is clear from the two following
hadith:
1. It is the duty of a Muslim who has anything to bequest not to let two nights pass
without writing a will about it.
2. A man may good deed for 70 years but if he acts unjustly when he leaves his
testament, the wickedness of his deed will be sealed upon him, and he will enter the
Fire. If, (on the other hand) a man acts wickedly for 70 years, but is just in his last will
and testament, the goodness of his deeds will be sealed upon him, and he will enter
the garden.

Comparison Between Hindu And Muslim Law On The Basis Of

Law Of Will
Hindu Laws Muslim Laws

1. Under the Muslim Law, practice of

1. Under the Hindu Law, practice of
polygamy is present under the law.
polygamy is abolished.
2. Adoption is not there under the muslim
2. Adoption is there under the hindu law.
law.
3. Hindu law is a codified law.
3. Muslim law is not a codified law.
4. Under the Hindu law, there is concept of
4. Under the Muslim Law, there is concept
separate and ancestral property.
of only joint and single property.
5. Hindu Law is governed by the Hindu
5. Muslim law is governed by the Muslim
Succession Act, 1956.
Shariat Law Act of 1937.

Executor of a Muslim Will:

Under the strict Muhammadan law, an executor was simply an administrator to complete
the intentions of the testator. He was a trustee named by the testator to protect and deal
with his property and kids after his demise. He was not the lawful proprietor of the property
of the deceased and the property did not vest in him.

He had no energy to offer or contract or estrange the property in some other way. Now,

pg. 145
under the provisions of Section 211 of the Indian Succession Act, 1925. an executor of a
Muslim's will is his legal representative for all reasons and all the property of the deceased
vests in him; in this manner, he has the ability to dispose of the property at the appointed
time.

Conclusion
A Muslim will must be constructed primarily in accordance with the rules laid down in the
Mohammadan law, bearing in mind the social conditions that prevail, the language
employed and the surrounding circumstances. A will speaks as in modern law, from the
death of the testator. The court should as far as possible give effect to the intentions of the
testator when there is ambiguity in the will. The heirs may also be asked to interpret it.

The heirs may give consent either before or after the death of the testator. A bequest by
Will, in excess of one- third will not be valid without the heirs consenting to such a bequest.
In this matter we have put light on the basic difference between Shia law and Sunni law in
the concept of wills. Coming forth upon the views we have concluded that laws support the
laws of wills in proper manner, which presents a clear view of the person who makes the
will, on which way the will would provide service. Therefore, a will in Muslim law is a divine
disposition of property.

Law related to pre emption (SHUFFA)

The idea of ‘pre-emption’ finds its origin in the Mohammedan Law, and was unknown in India till
the advent of Moghal rule.[1] This was administered as general law of land and applied to both
Hindus and Muslim. Later, it was introduced by the Britishers on the grounds of justice, equity
and good conscience even on the Muslims.[2]

There are four sources of the right of pre-emption in India which include Muslim personal law,
Custom, Statute and Contract. For Muslims, the law of pre-emption was a part of their personal
law, while among Hindus the law of pre-emption was mainly recognized as a customary right.
[3]
In some areas, pre-emption was regulated by statutory law such as Punjab Pre-emption Act
1913 and Agra Pre-emption Act 1922. Lastly, the right of pre-emption was also created by
contract. Fourthly, pre-emption is also sometimes included in contracts apart from the custom or
any legal sanction. These types of contracts are generally entered by when one of the parties is
Muslim and other is Non- Muslim.[4]

Right of Pre-Emption and it’s Essentials

The right of ‘pre-emption’ is given to the owner of immovable property to acquire another
immovable property that has been sold to some other person. It is the purchase by one person
before all others. Therefore, it is a right of substitution and not of re-purchase. [5] The objective
behind this right is to maintain privacy and prevent strangers to come in neighbour or in a family.

pg. 146
The pre-emption has also been defined by Justice Syed Mahmood as a right given to the owners
of an immovable property for quiet enjoyment of that immovable property to obtain in
substitution for the buyer, possession of certain other immovable property, on such term that as
those on which such latter immovable property is sold to any other person[6].

However, to exercise the right of pre-emption, there are certain conditions that need to be
satisfied. Those conditions are-

1. ownership over an immovable property,

2. sale of the property which is not of the person exercising the right of pre-emption,

there should be some relation with respect to the property between the pre-emptor and the
seller of the land,

4. possession of the other property is given to the pre-emptor on the same terms as on which
the other person is given the right.[7]

To exercise the right of pre-emption, pre-emptor has to perform certain formalities. The pre-
emptor has to declare his intention to assert the right immediately after getting information
regarding the sale (this is called talab-i-mowasibat). The talab-i-mowasibat can also be made
by the person authorized by pre-emptor or by de facto guardians in case the pre-emptor is a
minor.[8] Such declaration of the intention should be made in the presence of two witnesses
(this is known as talab-i-ishhad). After that, the legal action gets initiated i.e. talab-i-tamlik.
However, the third stage to exercise the right is not mandatory while establishing the right of
preemption.[9]

The pre-emption right can be exercised by any of the following three categories of the
people-

1. co-owner of the property (shafi-i-sharik),

participator in appendage such as a right of way etc (Shafi-i-khalit), and

3. owner of an adjoin property (shafi-i-jar). In addition to that, the right of pre-emption arises
only out of a valid and complete sale. It does not arise out of a gift or mortgage.[10]

Constitutional Validity
In the case of Pyare Mohan v. Rameshwar the Court observed that the right of pre-emption is
a very weak right and a bona fide purchaser cannot buy land which he is legally entitled to
own.[11] Before 1978, the Indian Constitution also recognizes the right to property as a
fundamental right under section 19(1)(f). Therefore, pre-emption is not favoured by the law
as it seizes the property merely on the apprehension of inconvenience.

pg. 147
Though, the right to pre-emption was in direct contravention with the fundamental right to
property. However, the challenge to the right was justified on the basis of article 19(5). It was
contended that reasonable restriction can be put on the fundamental right to property. Also,
holding it unconstitutional will go against one of the important principles of Islamic law as the
practice of pre-emption is a part of Muslim personal law.[12]
In 1962, the Supreme Court got an opportunity to decide the question of constitutionality in the
case of Bhau Ram v. Baji Nath, wherein the Supreme Court held the statutory provision of pre-
emption on the basis of vicinage is unconstitutional. [13] Later, in the year 1965, in the case of Sant
Ram v. Labh Singh, the Court with similar line holds the customary practice of pre-emption by
vicinage is unconstitutional.[14]

The entire debate over the constitutionality got altered after 1978 due to the introduction of
44th amendment and application of the previous laws has to be deal with carefully. [15] It rendered
the right to property merely a constitutional right and not a fundamental right. [16] However, the
legality of pre-emption continues to remain under judicial scrutiny. Since, the right to property
was there as a constitutional right, its reasonableness was checked under article 14 and 15 of the
constitution.[17]

After the amendment, the validity of the Punjab Pre-emption Act, 1923 was challenged in two
important cases. Firstly, in the case of Atam Prasad v. State of Haryana, the Supreme Court has to
deal with s. 15(1)(c) of the Punjab Pre-emption Act, which provided for the right of pre-emption
to the co-sharer or kinfolks of the vendor. In that case, the Apex Court held pre-emption on the
basis of consanguinity is unconstitutional. [18] Secondly, in the case of Krishna v. State of Haryana,
[19]
the constitutional validity of s. 15(1)(b) was challenged, and the court declared that the pre-
emption on the basis of co-sharer is constitutionally valid.

When pre-emption by vicinage was made unconstitutional, this approach of the judiciary was
criticized by saying that such moves is uprooting old institution of Islamic Jurisprudence.
However, it is important to note that the only form of pre-emption that was held unconstitutional
is the pre-emption on the basis of vicinage that is recognized by customary and statutory
provisions and not Islamic law. Also, no interference has been made by the judiciary on the right
of pre-emption based on co-ownership.

Impact of Judicial Decisions on Islamic Law

Islamic law is not a monolithic legal system but has many schools and sub-schools following
different legal principle, and all the schools are valued equally. There are four major schools of
Islamic law – Shafi’i, Hanafi, Ismai’il & Ithna’ Ashari. All these schools follow a wide variety of
legal principles; therefore, the impact of judicial approach on Islamic jurisprudence can be
determined only by looking at the law of pre-emption followed in these different schools.

The Hanafi School recognizes three circumstances when the right of pre-emption can be
exercised, and that are–

1. co-ownership of the property (sharik),

pg. 148
2. a participator in appendage (khilt,) and

3. owner of adjoining property (jar).

But, the right given in the last category does not extend to the large estate.
The Ithan’Ashari school defines pre-emption right as a legal title of one of the partners on the
share of another partner in the joint property when any sale or transfer takes place. Under
the Shafi’i school, the right of pre-emption is very limited. This school gives pre-emption right
only to the co-owners of property. [20] The pre-emption by vicinage is not recognized in Shafi-i
school. In addition to that, the Ismai’il School specifically rejects the vicinage a ground to get
pre-emption right.[21]

On the basis of the above findings, in the Islamic Law, only the Hanafi School recognizes the pre-
emption right on the basis of the vicinage. Moreover, such right is not applicable for a large estate
that shows the purpose of this right is to prevent any newcomer in the locality. [22] It is only the
principle of one school that is contrary to laws and social condition of our country.

When the laws of one school are contentious then, such laws of one school can be replaced with
that of other schools. So, for the law of pre-emption on the basis of the vicinage, which is
contrary to the law, principle of other schools can be followed. It is not mandatory as well as
reasonable to adhere to Hanafi School of law and apply to all Muslims of the country exclusively.

Illustrations
1. X owns a land which he leases to Y. Y builds a house and sells it to Z. Here, X cannot claim
the right of pre-emption because he is neither a co-sharer, nor participator in the appendages of
the house, nor an owner of adjoining property.

2. Where a property is owned by 4 persons in equal proportion and one of them sells his share in
the property, the other three owners would have equal right of pre-emption and if they all take up
the right then they will pay equal amount and will acquire equal share it that property.

What is ‘Antecedent Debts’

under the Hindu Law?
“Antecedent” literally means prior or preceding in point of time, but the words
“antecedent debt” as used in Hindu Law implies two things, (a) antecedent in time,
and (b) antecedent in fact in nature, that is to say, the debt must be truly
independent of and not part of the transaction impeached. Lord Dunedin defined the
antecedent debt as “antecedent in fact as well as in time”. Thus, two conditions are
necessary—

(a) The debt must be prior in time, and

pg. 149
(b) The debt must be prior in fact.

The Supreme Court re-affirmed that the “antecedent debt” means antecedent in fact
as well as in time, that is to say, that the debt must be truly independent of and not
part of the transaction impeached. The debt may be incurred in connection with a
trade started by the father. The previlege of alienating the whole of joint family
property for payment of an antecedent debt is the privilege only of the father, the
grand-father and great grand-father qua the son or grand-son only.

Where the father executed a simple mortgage and total consideration of Rs. 10,000/-
was received by the mortgagor in which Rs. 7,000/- was received in instalments and
Rs. 3,000/- at the time of mortgage. Rs. 7,000/- was advanced on express condition
that a mortgage would be executed later. In this case it was held, that the amount of
Rs. 7,000/- was not an antecedent debt so as to fasten the liability on sons of
mortgagor.

Thus, it is now well settled that the father of Hindu joint family enjoys full right to sell
or mortgage the joint family property including the son’s interest therein to discharge
antecedent debt. A sale of joint family property, which is made to discharge a debt
taken at that very time or as a part of the sale transaction, is not valid because the
debt in this case is not an antecedent debt.

(b) The debt must be prior in fact.

The Supreme Court re-affirmed that the “antecedent debt” means antecedent in fact
as well as in time, that is to say, that the debt must be truly independent of and not
part of the transaction impeached. The debt may be incurred in connection with a
trade started by the father. The previlege of alienating the whole of joint family
property for payment of an antecedent debt is the privilege only of the father, the
grand-father and great grand-father qua the son or grand-son only.

Where the father executed a simple mortgage and total consideration of Rs. 10,000/-
was received by the mortgagor in which Rs. 7,000/- was received in instalments and
Rs. 3,000/- at the time of mortgage. Rs. 7,000/- was advanced on express condition
that a mortgage would be executed later. In this case it was held, that the amount of
Rs. 7,000/- was not an antecedent debt so as to fasten the liability on sons of
mortgagor.

Thus, it is now well settled that the father of Hindu joint family enjoys full right to sell
or mortgage the joint family property including the son’s interest therein to discharge
antecedent debt. A sale of joint family property, which is made to discharge a debt
taken at that very time or as a part of the sale transaction, is not valid because the
debt in this case is not an antecedent debt.

(b) The debt must be prior in fact.

pg. 150
The Supreme Court re-affirmed that the “antecedent debt” means antecedent in fact
as well as in time, that is to say, that the debt must be truly independent of and not
part of the transaction impeached. The debt may be incurred in connection with a
trade started by the father. The previlege of alienating the whole of joint family
property for payment of an antecedent debt is the privilege only of the father, the
grand-father and great grand-father qua the son or grand-son only.

Where the father executed a simple mortgage and total consideration of Rs. 10,000/-
was received by the mortgagor in which Rs. 7,000/- was received in instalments and
Rs. 3,000/- at the time of mortgage. Rs. 7,000/- was advanced on express condition
that a mortgage would be executed later. In this case it was held, that the amount of
Rs. 7,000/- was not an antecedent debt so as to fasten the liability on sons of
mortgagor.

Thus, it is now well settled that the father of Hindu joint family enjoys full right to sell
or mortgage the joint family property including the son’s interest therein to discharge
antecedent debt. A sale of joint family property, which is made to discharge a debt
taken at that very time or as a part of the sale transaction, is not valid because the
debt in this case is not an antecedent debt.

Thus, the father has got the power to sell or mortgage the joint family property for the
payment of the debt, may it be for his personal benefit. It would be binding on sons,
provided—(a) the debt was antecedent to the alienation, and (b) It was not
contracted for an immoral purpose. In Brij Narain v. Mangala Pd. the Privy Council
laid down the following propositions:—

1. The Karta of a joint family except for legal necessity cannot alienate the joint
property nor can mortgage it.

2. If a decree has been passed for the payment of the debt it can be executed
against the entire estate, provided the son and the father living jointly.

3. He cannot mortgage the joint family property unless the mortgage was done for
the payment of some antecedent debt.

Refer Shareyouressays.com

pg. 151