Family Law 2 by AK Jain (Dukki)

FAMILY LAW - II
[LEADING CASES, MATERIALS & Q.A.]
[Hindu Law relating to Joint Family, Coparcenary, Partition, Succession, Woman's Property;
Muslim Law of Inheritance, Gifts and Wills]
Dr. ASHOK K. JAIN

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

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

Abbay Chandra v Pyari Mohan 127
ABDUL HAFIZ BEG v SAHEBBI 386,387
Abdul Hameed v Mahomed Yoonus 328
Abdul Manan Khan v Mirtuza Khan 328
Abdul Rahim v Sk Abdul Zabar 381
Abhay Chandra v Pyari Mohan 60
ACIT v Chettiar 45
Advocate-General v Jimbabai 332
Ammathayee v Kumaresan 109
Anandi v Naik 171
Anani v Gopal 64
Anant v Shankar 6
Anar Devi v Parmeshwar Devi 193
Apaji v Ramchandra 129
Appalaswami v Suryanarayana Murti 171
Arun Kumar v Jnanendra 238
ARUNACHALAM v MURUGANTHA 28,40
ARVIND v ANNA 73
Aryan Kamal Wadhwa v Biharilal Wadhwa 171
Ashwani Kumar v Rajinder Kumar 88
Atterson v State of Alabama 244
Babulal Kewani v State of Bihar 293
Badri Prashad v Smt. Kanso Devi 271,278
Baijnath Prasad v Bindi Prasad 76
Balabux v Rukhmabai 160
Balgobind Das v Narain Lai 89
BALMUKAND v KAMLAWATI 75,78,100
Benaras Bank v Hari Narain 74
Beni Bai v Raghubir Prasad 295
Beni Madho v Chander Prasad 76
,'T !9f1I
0 .Mf
MQ
Family Law-ll (vi)
Beni Ram v Man Singh 102
BHAGAT RAM v TEJA SINGH 265
Bhagirathi v Jhoku Ram 101
Bhagwani v Mohan Singh 3
Bhagwant P. Sulakhe v Digambar Gopal Sulakhe 51,128
Bhola Prasad v Ramkumar 61
Bhubaneswari Debi v Nilcomul Lahir 150
Bhura v Kashiram 276
Bishambar Nath v Lata Amar 159
Bishnudeo v Seogant 172
Chamanlal v Mohan Lai 202
Chet Ram v Ram Singh 80
Chhakauri Mahton v Ganga Prasad 119
Chinna v Venkatta 32
Chinnappa v Valliammal 275
Chintaram v Rushibai 255
Chodrashewer v Ramchandra 28
CIT v Rakshapal 45
CIT v Veerappa Chettiar 23
COMMR. OF INCOME TAX v GOMEDALLI LAXMINARAYAN 21
Commr. of Wealth Tax, Kanpur v Chander Sen 34
Commr., I. Tax v Seth Govind Ram Sugar Mills 58
Commr, IT. v DC. Shah 52
Commr., Income Tax v Kalu Babu 51 *

CWT v CHANDER SEN 43,45,47
D. Velusamy v D. Patchaiammal 179
D.S. Lakshmaiah v L. Balasubramanyam 34
Damodar Misra v Sanamali Misra 57
Daya Singh v Dhan Kaur 271
Deen Dayal v Jugdeep Narain 83
Desari v Desari 76
DEV KISHAN v RAM KISHAN 71,05
Dhanistha Kalita v Ramakanta Kalita 255
Dhanwantry v Commr, IT. 52
Dharma Shamrao Agalawe v Pandurang Miragu Agalawe 148
Dropadi Devi v Jagdish 83
Family Lau-ll (viii) Ibrahim Goolam Ariff v Saiboo 389 Indranarayan v
Roopnarayan 136
JAGANNATHAN PILLAI v KUNJITHAPAOAM PILLAI 289,272 Jagat Narain v Mathura Das 76,104
Jamunabai Bhalchandra Bhoir v Moreshwar Mukund Bhoir 294 Janabai v T.S. Palani 237,239 Janak Rani Chadha v State of NCT of Delhi
205 Jinnappa Mahadevappa v Chimmava 110 Jivaji Annaji v Hanmant Ramchandra 150 Jugal Kishore v CIT 60 Jujhar Singh v Giani Talok
Singh 92 K. Stanumurthiayya v K. Ramappa 204 K.O. Reddy v Venkata Narayan Reddy 3 K.V. Narayanaswami Iyer v K.V. Ramakrishna
Iyer 34 Kabisa Umma v Pathakla 363 Kaloo Singh v Sunderbai 68 Kalwa Devadattam v Union of India 153 Kamulammal v
Visvanathaswami 133 Karuppa v Palaniammal 186 Kasaram Jagamma v Jajala Lakshmamma 68 Kashiraim v Collector 24 parganas 118
Kedar Nath v Ratan Singh 155 Kenchava Kom Sanyellappa Hosmani v Girimallappa Channappa Samasagar
204 Kesar Bai v Ran Singh 30 Kewal Narain v Prabhu Lai 146 Kewal Narain v Prabhu Lai 152 Khalilul Rahman v
Govind Persuad 118 Kolasani Sivakumari v Kolasani Sambasiva Rao 80,116 Kollomal (HUF) v CIT 156 Krishna
Prasad v CIT, Bangalore 23 Krisnnamurthi v Chidambaram 61 Krishnan Namboodri v Chena Kesavan 86 Kudutamma
v Narasimhacharyalu 111 Kumaraswami v Subba 29 Kunji v Meenakshi 276
Family Law-ll (ix) Lachman Singh v Kirpa Singh 253 Lakshmanier v
Krishnamachary 142 Lakshmi Perumallu v Krishnavenamma 142 Lai Bahadur v Kanhaya Lai 30 Lalbarani v
Bhutnath 55 Lekh Raj v Muni Lai 244
Luhar Amrit Lai Nagji v Doshi Jayantilal Jethalal 120 M. Veraghaviah v M. Chini Veeriah 118 Mi. Subbaraya Setty v ML Nagappa Setty
125 M/S. NOPANY INVESTMENTS (P) LTD. v SANTOKH SINGH (HUF) 55 Madhavan Ezhuthasan v Vellayyappan 241 Mahboob
Sahab v Syed Ismail 357 Maheshwar Das v Sakhi Dei 72 Mahomed Buksh v Hosseini Bibi 367 Maimuna Bibi v Rasool Mian 357
MAKHAN SINGH v KULWANT SINGH 33,46 Maktul v Manbhari 39 Mallesappa v Mallappa 29 Mangla Singh v Rattno 269
Manikayala Rao v Narasimhaswami 97 Maqbool Alam v Mst. Khodaija 382 Maruthappan v Niraikullathan 102 Masoom Sab v Madan Sab
369 Mata Badal Singh v Bijay Bahadur Singh 204 MD. HUSAIN KHAN v BABU KISHVA NANDAN SAHAI 27,38 Meva Devi v Om
Prakash Jagannath Agarwal 156 Meyappa v Kannappa 247,253,283 Minoti v Mohan Singh 202 Minoti v Sushil Mohansingh Malik 204
Mitter Sen Singh v Maqbul Hasan Khan 154 Mohd. Sadiq Ali v Fakhr Jahan Begum 377 Mohib Ali Khan v Baldeo Prasad 76 Mohinder
Singh v Gurbax Singh 37 MORO VISHWANATH v GANESH VITHAL 6,24 Muhammad v Aulia Bibi 335 Mulan Chand v
Kanchhendillal 129
Family IMW-U (X)
Munna Lai v Raj Kumar 275
Murli v Bindeswari 68
MUSA MIYA v KADAR BUX 378
Nabi Sab v M. Papiah 377
Nagappa Chettiar v Subramanian 170
NAMDEV VYANKAT GHADGE v CHANDRAKANT GANPAT GHADGE 147
Nanu Ram v Radhabai 161
Narashimaha Murthy v Smt. Susheelabai 241
Narayanlal v Controller of Estate Duty 33
Narendranath v Commr. Wealth Tax 22
Neelawa v Bhimawa 193
Nemi Chand v Hira Chand 55
Nilkanta v Ram Chandra 30
Nirmal v Satnam 75
Official Assignee v Rajabadar 63
OM PRAKASH v RADHACHARAN 258,287
Onkar v Kishan Singh 101
P. Kunheema Umma v P. Ayissa Umma 360
P.G. Hariharan v Padaril 152
PS. Sairam v P.S. Ramarao Pisey 31
Palaniappa v Commr, Income Tax 51
Palaniappa v Deivasikamony 75,77
Pandu v Goma 97
Papayya v Venkata 142
Pappaya v Venkatakrishna Rao 172
Paraqmasivam v Rama Swami 30
Parasram v Smt. Naraini Devi 72
Parvati Kaur v Sarangadhar 33
Patel v Lakkireddigari 101
PEDASUBHAYYA v AKKAMMA 144,171,172
Lakkireddi v Lakshamma 171
Permanayakam v Sivaraman 98,100
Perumalakka v Balakrishnan 108
Piyare Lai v I.T Commr. 51
Ponnamma v Aspinwal 84
Pran v Rajendra 3
Family Law-11 (xi) Prasad v Govindswami Mudaiiar 117 Prem Singh v Dharam Singh 94 Pushpaiatha
N.V. v V. Padma 219 Puttrangamma v Ranganna 141,155,165,167 Qamar-ud-din v Mt. Hassan Jan 381 R. KUPPAYEE v RAJA
GOUNDER 114 Radha Ammal v CIT 58 Radha Krishna v Satyanarayan 155 Radhamoni v Dibaker 2 Radhika v Anguram 253,286
Raghubanchmani v Ambika Prasad 88 RAGHVAMMA v CHENCHAMMA 137,142,165,168 Raj Kumar Singh v Commr., Income Tax
51 RajmalvRajmal29
Rajrani v Chief Settlement Commr. 193 Ram Chander v Ganesh Das 270 Ram Nath v Ghurantial 75 Ram Saran v Prithipal 85 Ram Sunder
Lai v Lachmi Narain 74 Rama Nagappa Mahar v N Mallappa Mahar 137 Ramaswamy Aiyer v Vengudusami Iyer 112 Ramcharan v
Girijanandam 152 Ramrichpal v Bikaner Stores 76,104 Rani v Shanta 67
Ratan Lai Bora v Mohd. Nabiuddin 358 Ratnam v Kuppuswami 170 Re Alma Latifi 346 Rukhmabai v Laxminarayan 2 Rulia v
Jagdish 72 S. NARAYANAN v MEENAKSHI 240 Sadhu Singh v Gurdwara Sahib 280 Safia Begum v Abdul Razak 389 Sant Singh
v Mata Ram 89 Santosh v Saraswathibai 296 Sarda Prasad v Umeswar Prasad 55 Sarita Chauwhan v Chetan Chauwhan 202
Family Law-ll (xii) Sawan Ram v Kalawanti 151
Seetha Lakshmiammal v M. Iyengar 251
Seethalakshmi v Controller of Estate Duty 33
Selleppa v Suppan 77
Shahaji Kisan Asme v Sitaram Kondi Asme 249
Shamshad Ali Shah v Hassan Shah 386
Shantaram v Dugubai 132
Sharad Subramanyan v Soumi Mazumdar 296
Sharbati v Hiralal 278
Sheikh Muhammad Mumtaz Ahmad v Zubaida Jan 369
Sheogulam v Kisun Choudhuri 58
Siddappa v Linappa 55
Sirikant Lai v Sidheshwari Prasad 62
Siromani v Hemkumar 151
Sitabai v Ram Chandra 2,22
Sital Prasad Singh v Ajablal Mander 78
Sital Singh v Jamna Bai 88
SMT. DIPO v WASSAN SINGH 35
Sonia Parshini v Sheikh Maula Baksh 355
Srinivas Rao v Sesacharlu 68
State of Maharashtra v Narayan Rao 192
State of Punjab v Balwant Singh 256
Sumeshwar v Swami 275
Sundaramya v Seethamma 111
SUNDER YADAV v ASHA KUMARI 81
SUNIL KUMAR v RAM PRAKASH 56,89,90
Suraj Narain v Iqbal Narain 146
Surendra Nath Sharma v Rajendra Kumar 163
Surendranath v Sudhir Kumar 77
Suryanarayana v Sugamanathi 63
Sushil Kumar v Ram Chandra 136
Sushilabai v Narayanrao 189
T. Shesharathamma v T. Manikayyamma 292
T. Venkatasubramma v Rattamma 85
T.N. Sharufuddin v Mehrunissa 362
Tarni Prasad v Basudeo 68
Family Law-ll (xiii)
Teja Singh v Jagat Singh 271

The Benaras Bank v Hari Narain 107
Tirpurasunderi v Kalyanaranan 109
Toshan Pal Singh v District Judge, Agra 119
Tribhovan Das v Gujarat Revenue Tribunal 56
Tulasamma v Shesha Reddy 275
Ugre Gowda v Nage Gowda 250
Union of India v Shree Ram 57
Usha v Smriti 238,239
V. TULSAMMA v V. SHESHA REDDY 277,288
V.K. Thmmaiah v V.K. Parvathi 87
Vaikuntam v Avudiappa 60
Vaillammal Achi v Nagappa Chettiar 86
VALIA P. KATHEESA UMMA v PATHAKKALAN NARAYANATH KUNHAMU
360,376
Vanimisatti v Jayavarapu 69
Vasant v Dattu 148,149
Vasant v Sakharam 29
Veera Raghavamma v G. Subbarao 253
Vellayappa v Natarajan 133
VELLIKANNU v R. SINGAPERUMAL 203
Vankanna v Venkatanarayana 161
Venkata Subba v Ananda Rao 68
Venkatasubramania v Eswara 49
Venkayamma v Venkatanarayanamma 39
Vettorammal v Poochammal 110
Vidyaben v J.N. Bhatt 238
Y.S. Chen v Batulbai 361
Zaheda Begum v Lai Ahmed Khan 123
'
References
(Family Law-ll)
Hindu Law
1. Malta Principles of Hindu Law.
2. Mayne: Hindu Law and Usage.
3. R.N. Sarkar. A Treatise on Hindu Law.
4. Paras Dwan Modern Hindu Law/ Family Law.
5. Jaspal Singh: Hindu Law of Mairiage & Divorce.
6. Kvmud Desai: Indian Law of Marriage & Divorce.
7. R.K. Agarwal. Hindu Law.
8. U.P.D. Kesari: Hindu Law.
9. B.M. Gandhi. Hindu Law.
10. N.H. Jhabvala: Principles of Hindu Law.
11. Poonam Pradhan Saxena: Family Law-ll. Muslim Law
1. Mulla: Principles of Mohammedan Law.
2. A.A.A. Fyzee: Outlines of Muhammadan Law.
3. Dr. Tahir Mahmood: The Muslim Law of India.
4. F.B. Tyabji: Muslim Law.
5. Ameer AH: Muhammadan Law.
6. The Indian Law Institute: Islamic Law in India.
7. Aquil Ahmed: Mohammedan Law.
8. Khalid Rashid: Mohammedan Law.
9. N.H. Jhabvala: The Principles of Muhammadan Law.
Other Sources
1. Supreme Court Yearly Digests - SCYD (1995-2011): Shailendra Malik (Ed.) (Eastern Book Co.).
2. Cases and Materials on Family Law-ll: Faculty of Law, Delhi University, Delhi.
3. Question Papers Referred - Delhi and Other Indian Universities; Competitive Exams.
(xv)
1
Hindu Joint Family
and Coparcenary
Hindu Joint Family1

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

(1) It is a creation of law. In other words, it is a legally recognized unit which can neither be created by the
act of the members nor by an agreement between the parties. A stranger cannot be admitted into it except
by marriage or adoption.
1. Explain the concept and incidents of a Hindu joint family. [D. U -2010]
[1]
2 Family Law - II
(2) It has no legal entity distinct and separate from that of the members who constitute it. It is not a juristic
person. It is not a corporation either.
(3) It is a unit and in all affairs it is represented by its Karta (head or manager).
(4) Status can be acquired into it only by -birth, marriage to a male member, and adoption.
(5) Ouster of a member from joint family: Status can be lost by conversion to a non-Hindu faith, marriage to a
non-Hindu under the Special Marriage Act, 1954, on being given in valid adoption, and, on partition.
(6) ll is different from a composite family - a creature of custom and agreement, where two or more families
agree to live and work together, pool their resources, throw their gains and labour into the joint stock and
shoulder the common risk. The primary objective of composite families is convenience and efficient
management of the family properties.
(7) A joint family may consist of a single male member and his wife and daughters, or a single male member
and a widow of coparcener, or even when there are only widows. The rule is "that even on the death of
sole surviving coparcener, the Hindu joint family does not come to an end so long as it is possible in
nature or law (i.e. adoption) to add a male member to it" (Sitahui v Ram Chandra AIR 1970 SC 343). A
single male or female cannot make a joint family. There must be at least two members to constitute it.
/ Hindu Undivided Family - For the purposes of tax assessment, the ' revenue statutes use the
expression 'Hindu Undivided Family' (HUF),
which appears to be slightly different from the definition of a Hindu
joint family (See under the questions section).
Presumption of Jointness
/Every Hindu family is presumed to be a joint family (Radhamoni v Dibaker AIR 1991 Pat 15). The
normal state of every Hindu family is that it is a joint family, presumably joint in food, worship and estate,
and it continues to be joint (Rukhmabai v Laxminarayan AIR 1960 SC 335). However, if a family is not
joint in food, worship and estate, or in any
H i n d u J o i n t F a m i l y and C o p a r c e n a r y
3
one or all of them, it does not necessarily imply that it has ceased to be a joint family. Thus it is
not necessary that all members of a joint family live or work at the same place. The members of
a family may reside separately and mess apart, still they remain joint in estate. Thus, 'union in
estate' is quite essential for a joint family,
^The presumption is stronger among the nearer relations (viz. father and his sons or the real
brothers than as among an uncle and his nephew or as among cousins). Thus the strength of the
presumption of jointness varies with the degree of generations,
/There is no presumption that joint family possesses joint property (K.O. Reddy v Venkata
Narayan Reddy AIR 1984 SC 1171; Pran v Rajendra AIR 1986 Del 121). In Hindu law existence
of joint property is not a condition precedent to the existence of joint family, though it will be a
rare case where a joint family possesses no (joint) property. It will have at least household
utensils and articles which its members use in common. Acquisition of property in the name of
different members of the family is not inconsistent with the jointness. The rule is that one who
alleges that a particular property held by a member of joint family is Joint Family Property (JFP)
has to prove that it is so. When property is purchased in the joint names, it is for the person who
alleges it to be separate property, to prove it. \
(The presumption of jointness is rebuttable. There are only two
ways to rebut the presumption of jointness viz. partition and extinction
of the family {Bhqgwani v Mohan Singh AIR 1925 PC 141). It is for
"the persons alleging severance of the Hindu joint family to prove it. If
one takes the plea of partition, he has to prove it
Coparcenary2
The Mitakshara concept of coparcenary is based on the notion of son's birth right in the joint family
property. Not merely a son, but also a "son's son and son's son's son acquire an interest by birth
in the joint family property, j
A 'Mitakshara coparcenary' is a narrower body as compared to a Mitakshara joint family? Discuss with the help of case law.
"All coparceners are joint family members, but all joint family members are not
coparceners." Discuss. [LC.I-94; L.C.II-96 (Supp.)]
4 Family Law - II
Coparcenary is a narrower body of persons within a joint family, and consists of father, son, son's son
and son's son's son i.e. father and his three male lineal ascendants. It may be noted that in its
(coparcenary) continuance, the existence of the father-son relationship is not necessary. Thus a
coparcenary can consist of grand-father and grand-son, of brothers, of uncle and, nephew, and so on.
The coparcenary is limited to three generations of lineal male descendants of the last holder of the
property only. According to tenets of Hinduism, only descendants up to three generations can offer spiritual
ministration to the ancestor. Besides only males can be coparceners because the females invariably leave
the father's house and assume domestic and spiritual duties in their husband's house.-?
I The rule is that so long as one is not removed by more than four degrees from the last holder of the
property, howsoever removed one may be from the original holder, one will be a coparcener. Last holder
means the senior-most living lineal male ancestor.
Example 1.
A
I
B
I (Coparceners)
C
I
D
Ei
F 1 (Not coparceners)
GIH
(8 Generations)
P. Pradhan Saxena, Family Law II, 3nd ed.T p. 82 (2011).

Hindu Jo in t Fam ily and C o p a r c e n a r y
5
In the above example, if A (Last holder) dies, coparcenary will be of B, C, D and E. As on A's
death, B becomes the last holder and so E comes within the limit of four degrees. Similarly, if B
dies now, coparcenary will be of C, D, E and F.
(But, if B dies before A, coparcenary will be of A, C and D. As A be the last holder and so E
removed (five degrees distance from A). Now, if C dies, E's position won't be changed and the
coparcenary will be of A and D. And, if D dies now, only A will be a coparcener.
Example 2.
A
IB
IC
DS DS1 ES ESl
.During the lifetime of the common male ancestor (i.e. the last holder) the disappearance of any of
tire intermediary generation or generations does not extend the coparcenary beyond the fourth degree
of generation from him.
In the above example, if B dies first, and C dies next, then the coparcenary will consist of A, D
and E. If now E dies, coparcenary will consist of A and D and at this stage ES and ES1 get removed
by more than four degrees from the last holder of the property and their chance of ever becoming
coparceners comes to an end. If at this stage A dies, coparcenary will consist of D and his two sons
DS and DS1.
Extinction of Coparcenary4 |
A Mitakshara coparcenary comes to an end by partition or by the death of all the male members/last
or sole surviving coparcener. The case of
"The extinction of coparcenary does not affect the existence of joint family".
6omment. [D.U.-2008\[C.L.C.-92/93/94]
6
Family Law
- II
Mom Vishwanaih v Gane.ih Vithul, 1LR (1873) 10 Bom 444, gives an example of the extinction of
coparcenary (also see Example 2 discussed above),
Suppose there is a line of lineally descendant males A, B, C, D and E. A is the last holder of joint
family property. Now suppose B, C, and D die before A. The moment three immediate ancestors die,
the line cannot proceed in that direction. Thus E will never become a coparcener and the property in the
hands of A is the property of the sole surviving coparcener. After A's death, there will be an extinction of
coparcenary and the joint family property will pass by succession.
The coparcenary also becomes extinct when all the male members die. However, the death of ail the
male members does not ipso facto mean the extinction of the joint family, as a joint family can consist of
two female members. The joint family status cannot end till it is possible in nature or in law (i.e. adoption)
to add a male member to the family (Anant v Shankar AIR 1943 PC 196). \
Thus, if there is no coparcenary, it does not follow that there is no joint family {C.I.T. v
Lqxmmarayan, 37 Bom LR 692). Coparcenary is a unit within the institution of joint Hindu family.!
LEADING CASE: MORO VISHWANATH v GANESH VITHAL [ILR (1873) 10 Bom 444]
[A partition can be demanded by one more than four degrees removed from the acquirer or original
owner of the property sought to be divided but that it cannot be demanded by one more than four
degrees removed from the last owner, however remote, he may be from the original owner thereof.
Because, coparcenary extends to four degree from the last owner (extinction of coparcenary).
I The plaintiffs and defendants are descendants of one Udhav, the original acquirer and common
ancestor, of the property now in dispute between them. The former are beyond and the latter within,
the fourth degree from Udhav. Ganesh (plaintiff), the great grandson of Udhav who was removed more
than Tour decrees from Udhav, demanded partition of the joint family property from Moro
(defendant),
; The appellants' contention was that a partition could not, in any case, be demanded by
descendants of a common
Hindu J o i n t F a m i l y and C o p a r c e n a r y
ancestor, more than four degrees removed, of property originally descended from hi mi .Thus, the* issue,
was whether a person removed more than four degrees from the original acquirer of the property can
demand partition of the JFP?
lit is urged that the 'law of partition' is inseparably connected with, and is indeed a part of the 'law of
inheritance" which is clearly founded on the spiritual benefit which certain persons according to the
religious ideas of the Hindus are supposed to be capable of conferring on the deceased by the gift of
the funeral cake; that this capacity of benefiting the deceased does not extend beyond the fourth in
descent for Manu says, Chap. IX, 186, "but the fifth has no concern with * the gift of the funeral
cake;*' that this is made clearer by Kulluka in his commentary; and that as the fifth cannot inherit during
the lifetime of the fourth in descent, so neither can he claim any partition from the latter.
J To this it is replied that the authorities quoted do not support the contention of the appellants; that the
doctrine of ancestral properly vesting by birth in one's son, grandson, and great-grandson, was
overlooked by the other side; that if A died, leaving two or more sons forming an undivided family, and
they died each of them, leaving one or more sons, and the same thing happened regularly for several
generations, all the descendants of A, living in a state of union, as in this case, the authorities quoted did not
prevent any such descendants below the fourth demanding a partition of their JFP; that they only went so far
as to lay down that, if A die, leaving B a son, E a grandson, G a great-grandson, and J, a great-great-
grandson, the intermediate persons having all predeceased him, J, who stands fifth in descent from A cannot
demand a partition of A's property, because A had not vested in him by birth any interest in such
property. Further, the text which apparently limits the right of partition to the fourth in descent refers
only to cases of reunited coparceners and not to undivided ones (as in the present case).)
/The Court gave some illustrations:
(i) A is the original owner of the property in dispute. His three lineal descendants include: B (son), C
(grandson) and D (great-grandson). D had two sons E and F (great-great-grandsons). No partition
8
Family Law - II
of the family property has taken place, and D, E, and F, are living in a state of union. Can E and F compel
D to make over to them their share of the ancestral property? According to the law prevailing, they can, sons
being equally interested with their father in ancestral property.
In the same way, suppose B and C die, leaving A and D members of an undivided family after which A
dies whereupon the whole of his property devolves upon D, who thereafter has two sons E and F. They,
or either of them, can likewise sue their father D for partition of the said property, it being ancestral, (ii) A
is the original owner of the property in dispute. His three lineal descendants include: B (son), C
(grandson) and C's two sons: D and Dl (great-grandsons).
Now, suppose B and C die, leaving A, D, and Dl, members of an undivided family, after which A dies,
whereupon the whole of his property devolves upon D and Dl jointly, and that D thereafter has two sons
E and F, leaving whom D dies. A suit against Dl for partition of the joint ancestral property of the
family would be perfectly open to E and F; or even to G (son of E) and F, if E died before the suit. It
would be a suit against Dl by a deceased brother's sons or son and grandson. J3ut E and F are both fifth
and G sixth in descent from the original owner of the property, whereas D and Dl are only fourth.
Suppose, however, that A dies after D, leaving a great-grandson Dl and the two sons of D i.e. E
and F. In this case, E and F could not sue Dl for partition of property descending from A, because it is
inherited by Dl alone, since, E and F, being sons of a great-grandson, are excluded by Dl, A's surviving
great-grandson, the right of representation extending not farther from great-grandson.)
The Court concluded: The rule, then, is not that a partition cannot be demanded by one more than
four degrees removed from the acquirer or original owner of the property sought to be divided but
that it cannot be demanded by one more than four degrees removed from the last owner, however
remote, he may be from the original owner thereof.] ,
Hindu J o i n t F a m il y and C o p a r c e n a r y
9
Essential Characteristics of Coparcenary5

(Some members in a HJF may constitute a coparcenary, viz. the father and his three male lineal
descendants. An illegitimate son cannot be a coparcener. Under Hindu law, an insane coparcener
has no right to claim partition, but this does not make him cease to be a coparcener. Further, his
son is not excluded from taking a share in partition. If a Hindu performs a marriage under the
Special Marriage Act, 1954 with a non-Hindu, his interest in the JFP is severed. But it does not
mean that there cannot be a coparcenary between such a Hindu and a son born to him out of the
marriage. A coparcenary will come into existence between him and his son provided his son is a
Hindu. J
The characteristic features of a coparcenary are:
Existence Of-property - Existence of JFP is essential in a coparcenary. If a Hindu acquires property in his
lifetime, on his death, the property inherited by his son shall be held by the latter as JFP and he
will form a coparcenary along with his sons by operation of law, whether he likes it or not. \
(2.) Only males - Only males (till 2005), including the adopted ones, can be members of a coparcenary.
An illegitimate son, although a member of a joint family, is not a coparcener. An insane son is a
coparcener, though he has no right to claim partition^
(3) Four generation rule - Only such males as are within four generation from, and inclusive of, the
last male holder or owner of property - the eldest surviving male member in the family -form a
coparcenary.,
, (4) Interest by birth - Coparceners acquire interest in the joint family property from their birth, rather
conception (i.e. a child in mother's womb). The doctrine of the right by birth is a unique feature
of the coparcenary as it gives a right in the
5. Elaborate the essential characteristics of a Mitakshara Coparcenary. In what respects does it differ from a Mitakshara Joint
Family? [LC.t-96; LC.//-95/96]
Explain the concept and incidents of a Mitakshara Coparcenary. [D.U.-2010]
10
Family Law - II
property of a person to another during the lifetime of the former, the owner
(5) Rule of survivorship and fluctuation of interest - On the death of a coparcener, his interest in the JFP
devolves on the surviving coparceners by rule of survivorship and not according to law of succession.
Suppose Ram has two sons SI and S2. On death of S2, his share in the family property will vest in the
surviving two coparceners Ram and SI; and the share to which each coparcener would have been entitled
during the lifetime of S2 on partition (one-third), would be enlarged in case of Ram and SI on the death
of S2 to half each.
If after death of S2, two more sons S3 and S4 are born to Ram, there will be four coparceners and
hence four shares on partition. As a result, the interest of the coparceners in the coparcenary property
fluctuates with the birth (diminishes) and death (enlarges) of the coparceners; hence no coparcener
can claim a definite share in the JFP whilst the family remains joint
6) Coparcenary within a coparcenary - Within a joint family, there can be coparcenaries more than one in
different branches of the family. Likewise there can be a coparcenary within a coparcenary. This is
because a coparcenary is formed automatically by operation of law, and the moment a Hindu inherits
property, from his father, grandfather or great grandfather, he immediately forms a coparcenary with his
sons, grandsons and great grandsons.
For example, a coparcenary consists of A and his three sons B, C and D. C and D had two sons each. If
C and D acquire separate property and dies, the sons of C (and D) inherit the separate property of C
(and D) and between themselves constitute a coparcenary. If sons are born to sons of C and D, they
will get a birth right not merely in the coparcenary headed by A but also in the sub-coparcenary created
among the sons of C and D
from a common ancestor, and
Hin du Joint Family and Coparcenary 11 includes their wives and
unmarried daughters. (2) Females,
Distinction between Joint Family and Coparcenary6 and illegitimate son are members of
the HJF.
(3) Limitation of tour generations

Hindu Joint Family Coparcenary applicable to coparcenary does not
apply to a HJF.
(1) It is a wider body consisting of all (1) It is a much narrower body
persons lineally descended than the joint family and
(4) Death of all the male members does
not ipso facto mean the extinction of the joint family, as a joint family can consist of two female members. The joint family
status cannot end till it is possible in nature or in law to add a male
member to the family.
consists of father and his three male lineal descendants.
(2) Only a male can be a coparcener; an illegitimate son is not a coparcener.

(3) Only such males as are within four generations from, and inclusive of the eldest surviving male member in the family form a
coparcenary.
(4) The coparcenary becomes extinct when all the male members die.
(5) in joint family, existence of
- property is not essential.
(6) Law of succession determines the rights and interests of joint family members.
7)
The members of the joint family enjoy very limited rights, viz. of maintenance and marriage expenses of unmarried daughters.
(5) Existence of JFP is essential in a coparcenary.
(6) On the death of coparcener, his interest in the JFP devolves on the surviving coparceners by rule of survivorship and not
according to law of succession.
(7) The coparceners enjoy very wide rights, viz. a right to partition and a right to alienate (their undivided interest in the family
property). Each coparcener is owner of the entire family property, although he can't set up an individual title to any specific
portion.
6
Distinguish between Joint Hindu Family and Mitakshara Coparcenary [D.U.-2009]
12 Family Law - II
[Similarities - A Hindu joint family as well as coparcenary come into existence by operation of law and
cannot be brought into existence by agreement amongst the strangers. Thus the basis of formation of both
joint family and coparcenary is close relationship.^
Illustration
B C
I I
D E
A is the holder of the ancestral property. He has two sons B and C. B has a son D and C has a son E.
D has a son F and E has a son G F also has a son X. All are alive.
The joint family consists of all of them but the coparcenary does not include X in it so long as A is
alive. X has no interest in the property in the life-time of A. After A's death, X becomes coparcener
with others. \
Distinction between Joint Tenancy and Hindu Coparcenary

'Joint tenancy' is a English concept. It resembles a 'Hindu coparcenary' in as much as the existence of
the right of survivorship and the right to obtain a partition is there. However, it differs in certain other
aspects:
- Coparcenary comes into existence by operation of law and cannot be brought into existence by
agreement amongst the strangers, as in case of joint tenancy. Thus, there is no common ancestor in joint
tenancy.
- The interest of a coparcener fluctuates from time to time, whenever there are births or deaths in the
family; a joint tenant continues to hold his specified share throughout. Also, the title of all the joint
tenants arises simultaneously (from the date of agreement).
- The widow of a deceased coparcener is entitled to maintenance; a widow of a joint tenant has no such
right.
Hindu Joint Family and Coparcenary 13
Tenancy-in-common: It is another kind of joint tenancy. Two or more persons hold property jointly or
otherwise than by joint inheritance (coparcenary). Tenants-in-common are persons who take property as
co-owners and hold it by several and distinct titles with only the unity of possession, in common. On
the death of each tenant-in-common his interest in the property passes by succession to his own heirs.
Changes in Mitakshara Joint Family and Coparcenary by H.S. (Amendment) Act, 2005 7
f The 1956 Hindu Succession Act (HSA) could not remove completely the persisting inequalities in
favour of women. When the HSA was passed in 1956, the Mitakshara coparcenary system was
retained in spite of protest by the All India Women's Conference.)
(The sons as coparceners in the joint family property can additionally claim a direct birth right to an
independent share, besides a claim in the deceased man's notional partition. A female could not be a
coparcener. The female heirs (e.g. daughter, widow, mother) could claim only in the deceased man's
notional partition. Consequently, in every joint family, a daughter got a much smaller share than her
brother because she shared equally with him in the father's property, whereas the brother in addition
had a share in his own right. In this way, a son can effectively inherit at least three times as much of the
ancestral property as a daughter. Also, sons could demand partition daughters could not
The Law Commission in its 174th Report (2000) - 'Property Rights of Women- Proposed Reforms
Under Hindu Law' - recommended for am ending the Hindu Succession A ct 1956.8 Its primary aim was to
remove gender inequalities under the Act, as it stood before the amendment. The Hindu Succession
(Amendment) Act, 2005, assented by President of India on September 5, 2005, came into force on 9th
7. In what manner the concept of a Mitakshara Hindu joint family and coparcenary affected by the Hindu Succession (Amendment) Act, 2005?
[D.U.-2009/2011]
8. The Law Commission said that granting daughters equal coparcenary rights with sons in joint family property should be made
applicable to women who marry after the new amendment comes into force and not to those who married before the change. It felt that
women received quite a lot as dowry at the time of their marriage. However, the said suggestion of the Commission did not find a place
in the 2005 Amendment Act.
14
Family Law - II
September 2005. It has effected some significant changes in the concept of Mitakshara coparcenary/JFP,
parental dwelling house, and certain widow's rights. The main significant change making all daughters
(including married ones) coparceners in joint family property is of great importance for women, both
economically and symbolically. The amendment abolishes the doctrine of survivorship, modifies the
provisions relating to devolution of interest in Mitakshara coparcenary, the provisions relating to intestate
succession, the category of class I heirs, rules relating to disqualification of heirs and marginally touches
the provision relating to testamentary succession,
I The amendment had also become necessary in view of the changes in Hindu Succession Act 1956, in
five Indian States namely, Kerala, Andhra Pradesh, Tamil Nadu, Kamataka and Maharashtra. These States
gave daughters, including married daughters, an equal share in the father's ancestral property. These
States (excluding Kerala) have granted daughters the right by birth to the family property. In Maharashtra,
the amendment came into force in 1994 and allows a daughter who married after that date to get her due
share in the ancestral property. Kerala has adopted a more radical course by abolishing the right by birth
to the family property altogether.
The 2005 Amendment Act is reportedly similar to the laws enacted in Andhra Pradesh and Kerala.9
Both the Central and State laws will now co-exist. But if there is any repugnancy or contradiction in a
State law, then that will be overtaken. The Union Act will prevail over an existing or even future law.
Devolution of Interest in Coparcenary Property
• According to Sec. 6(1), H.S. Act, 1956, on and from the commencement " of the Hindu Succession Act
(Amendment) Act, 2005, in a joint Hindu
family governed by the Mitakshara law. the daughter of a coparcener
shall:
It is noteworthy that while in Kerala, the joint family concept and the pious obligation of the son to pay his father's debts were abolished;
the other four States retained both, additionally, introducing an unmarried daughter as a coparcener. The present Amendment Act
incorporates changes that are a combination of the Andhra and the Kerala model, It retains the concept of joint family and introduces
daughters as coparceners but abolishes the pious obligation of the son to pay the debts of his father. See P. Pradhan Saxena, Family Law
II, 2nd ed., p. 338 (2007).
Hin d u J o i n t F a m i l y and C o p a r c e n a r y
15
(a) by birth become a coparcener in her own right (irrespective of her marital status) in the same manner
as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son;
(d) and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener.
Daughter as Coparcener/'Karta
One of the major changes brought in by the 2005 Amendment is that in a Hindu joint family, the
exclusive prerogative of' males to be coparceners has been changed altogether and the right by birth in
the coparcenary property has been conferred in favour of a daughter as well. This radical change has
fundamentally altered the character of a Mitakshara coparcenary. Now, the daughters have been made
coparceners in the Mitakshara joint family property, with the same rights as sons to shares, to claim
partition and (by presumption) to become Karta (Manager), while also sharing the liabilities. The
discrimination against daughter has been brought to an end, as her rights and liabilities are the same
as that of a son.}
Further, daughters would not only be empowered to form a coparcenary along with their other siblings
(irrespective of gender), but would also be competent to start a joint family herself. She can even be a
Karta, throw her self-acquired Earnings into the joint family fund, something that was not possible before
the amendment. The rule that females cannot form or start a joint family on their own but can continue
it even on the death of a male member in the family but provided they have the capacity to add a male
member to it by birth or through adoption, stands abrogated now.10 After the 2005 Amendment, thus, a
'daughter', like a son, can not only continue a joint family, but also form one with her father and
brothers.)
It may be noted that the daughters have been made coparceners irrespective of their marital status. Thus,
after the marriage of a daughter,
10. See, P. Pradhan Saxsna, Family Law II, 2 ed., p. 338 (2007)
16
Family Law - II
she will continue to be a coparcener as well as member of joint Hindu

family because all the members of a coparcenary are necessarily the
members of a joint Hindu family too (coparcenary being a narrower
body than the joint family). That means, after marriage, the daughter
will be a member of two joint Hindu families. Similarly, children born
to her will be members as well as coparceners in their maternal family
as well as paternal family. According to Sec. 6, HSA, after the
amendment, daughters become coparceners in the same manner as a
son implies not only the daughter but also her children will be
coparceners.''
It may further be noted that after the amendment, a female can become Karta where the family is
joint and if she happens to be the senior-most member. She will continue to be Karta even after her
marriage. However, she may face practical difficulties in managing the affairs of joint family comprising
her natal family members after her marriage. As a Karta, a female will be entitled to represent the family
and can even acquire the status of the head of the family.1^)
: It needs to be clarified that after the 2005 Amendment, a daughter has been introduced as a
coparcener. A mother and all females who become members of a Hindu joint family upon their marriage
to male coparceners are not coparceners themselves. Therefore, a distinction has been created between
female members of joint family in relation to their rights over the joint family property. The two classes
of females are one, who are born in the family and secondly, those who become members-of this joint
family by marriage to the coparceners. Females, who are born in the family i.e. daughters, sisters
possess a right by birth in the coparcenary property and those who become members of the joint family
by marriage to a coparcener, are subject to the same law as it stood before the amendment. Their rights
over the joint family property continue to be the same, like maintenance out of its funds, a right of
residence in family house, etc.13)
11. Id., pp. 136-138.

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

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

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

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

with her husband and son, living in her father's house? Can
a brother and sister (unmarried) constitute a joint family?
[C.LC-96]
(e) Under what situations can joint family continues at the instance
of only the female members in the family? Can two unmarried
sisters constitute a joint family? [D.U.-201O\
(a) Determination of Joint Family Status (Creation and Continuance)
A Hindu joint family (according to Mitakshara law) consists of all persons lineally descended from a
common male ancestor, and their
H i n d u J o i n t F a m i l y and C o p a r c e n a r y
21
wives and unmarried daughters. However, for the purpose of tax assessment, the revenue
statutes [including the Income Tax Act, Sec. 2 (31)] uses the expression 'Hindu Undivided
Family' (HUF), which appears to be slightly different from the definition of a 'Hindu Joint
Family^
{Distinction between HUF and Hindu Joint Family: The basic principle of taxation is that where a
person has absolute power of disposition over his property, it is taxed as his individual property;
where, however, there is no such power and the property in the hands of an individual has other
claims (i.e. subject to the rights of other family members) then it is taxed as joint property or
HUF property. A large tax exemption is allowed in the latter case. The more liberal allowance is
presumably given because the whole income of the family would not go to one individual, but, a
small portion only for each member. Also, where there is only one male member, then in that
case, the maintenance of the female members might absorb a large share of income.
It may be noted that every Hindu family is presumed to be a joint Hindu family until contrary is
proved. There is no such presumption for KUF. Further, while there is no presumption that a Hindu
joint family owns joint family property, the concept of HUF is linked only with the property.!
ADING CASE: COMMR. OF INCOME TAX v GOMEDALLI LAXMINARAYAN (AIR 1935 Bom. 412)
[Property in the hands of so\e surviving coparcener could be taxed as that of HUF i.e. Hindu
Undivided Family.]
tin this case, the joint family consisted of the son, his wife, and his mother. Thus, the son was the sole
surviving coparcener^ [The issue was whether property in the hands of sole surviving coparcener
should be taxed as his individual property or that of HUF. A Hindu undivided family is taxed as a 'unit,' the
individual . members thereof are not liable to be charged in respect of what each member received as
his or her share of the joint income It was contended that the expression 'Hindu Undivided Family' as
used in revenue statutes indicates that it must consist of at least two male members, i.e. there should be
coparceners. )
22 Family Law - II
The court, however, observed: The Supreme Court, in its recent decision said that the expression 'Hindu
Undivided Family' in the Wealth Tax Act used in the sense in which a Hindu joint family is understood in
the personal law of Hindus and a joint family may consist of a single male member and his wife and daughters
and there is nothing in the scheme of the Wealth Tax Act to suggest that a HUF as assessable unit must
consist of at least two male members (Narendranath v Cummr. Wealth r Tax AIR 1970 SC 14)
Thus, the joint status of the family does not come to an end merely because for the time being there is
only one male ^member of the family who is in possession of the family property. It is clear therefore that
"there is a sharp distinction between what is understood in the Hindu law by the expressions
"undivided Hindu family" and "coparcenary" (consisting of male members)^
it was further contended that the assessee was the sole survrving coparcener and, therefore, free to
deal with property in any way he liked, and so there was no undivided family. The court, however, observed
that under Hindu law, the sole surviving coparcener has wider powers to deal with the property, but,
subject to rights of female members e.g. maintenance, marriage expenses, adoption by widow, etc
The court noted that a large tax exemption is allowed in the case of HUF. The more liberal
allowance is presumably given because the whole income of the family would not go to one individual,
but, a small portion only for each member. Also, where there is only one male member, then in that case,
the maintenance of the female members might absorb a large share of income.!
Comments - There can be joint family consisting of a single male coparcener and a widow of
coparcener. There can also be a joint family where there are only widows. The rule is "that even on the
death of sole surviving coparcener, the joint family does not come to an end so long as it is possible in
nature or in law (i.e. adoption) to add a male member to it {Sitabai v Ramachandra AIR 1970 SC 343).
Hindu J o i n t Fam ily and C o p a r c e n a r y
23
(According to a learned writer (Paras Diwan 'Modern Hindu Law'), where there is joint
family consisting of female members and a male member, the male member can treat the joint
family property, almost, as his separate property. As long as another male member does not
come into existence, it assumes the character of self-acquired property, subject to the rights of
maintenance of female members. But for the purpose of tax such a family will be called
'undivided family'.
Decision of the case in question

(i) In view of the law discussed above, a joint family consisting of son, widow and stepmother is a joint
Hindu family. Therefore, all ancestral property in the hands of this family must be taxed as HUE
However, the separate properties in the hands of A's heirs will be taxed individually, (ii) In Krishna
Prasad v CIT, Bangalore (AIR 1975 SC 498), it was held that a joint Hindu family can consist of a
male Hindu and his wife. It may even consist of two female members. But there must be at least two
members to constitute it. A joint family can never consist of single male or single female (CIT v
Veerappa Chettiar AIR 1970 SC 240). Thus a family consisting of son and his wife will be a joint
family. The ancestral property of A in the hands of his son will be taxed as HUF. The separate
property of A in the hands of A's son will be taxed as the property of an individual (as the son will be an
absolute owner of such property).
(b) (i) A husband and wife; and (ii) widows of two brothers, both constitute a joint Hindu family.
(c) Determination of Coparcenary
A coparcenary consists of father, son, son's son, son's son's son (i.e., father and his three male lineal
descendants). The rule is that so long as one is not removed by more than four degrees from the last
holder (senior-most living lineal male ancestor), one will be a coparcener. Thus, coparcenary extends
to three degrees below the last holder (The four degrees is inclusive of last holder).
24
F a m i l y Law - II
H (Last Holder)
i 1
1 1 S1 I (First Degree)
S2 D'/D2
,1 1 1
.
(Second Degree)
s3 s4
1 (Third Degree)
5
s
1
S6 is not a coparcener; he can become so if H dies, for then he will come within the four degree
rule. S6 will be completely eliminated from the coparcenary if H remains alive and S1, S3 and S5 die. The
moment the three immediate ancestors die, line cannot proceed in that direction [Moro Vishwanath v
Ganesh Vithal, ILR (1873) 10 Bom 444].
(d) A daughter, after her marriage, gets excluded from the joint family of her parents (as she now gets
included in the joint family of her husband/or makes a joint family with him). However; a widowed
daughter may lay claim on the bounty of the joint family. A brother and sister (unmarried) constitute a
joint family (as there are two members present to constitute a joint family).
(e) Two Unmarried Daughters could form a Joint Family
It may be noted that before 1956, a daughter (unmarried) lacked the capacity to add a member to her
father's joint family. Thus, if a daughter or daughters was/were left in the family, the joint family of the
father ended. The Hindu Adoptions and Maintenance Act, 1956, has granted an unmarried female the
ability to carry on her father's joint family by adding a male member to the family.
Further, after the 2005 Amendment to the Hindu Succession Act, 1956, a 'daughter', like a son, is a
coparcener and can not only continue a joint family, but also form one with her father and brothers.
2
Property in Hindu Law
CLASSIFICATION OF PROPERTY
(I) Obstructed and Unobstructed Heritage

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

According to the Hindu law, the property is divided into two classes, namely:- (1) Joint family property or
coparcenary property, and (2) Separate property.
(1) JOINT FAMILY PROPERTY (COPARCENARY PROPERTY)
The joint family property is the most important aspect of the law of the Hindu Joint Family. The HJF
property is like a big reservoir into which property flows in from various sources and from which all
members of the joint family draw out to fulfill their multifarious needs. Thus 'coparcenary property' is
that in which every coparcener has a joint interest and joint possession. It devolves by survivorship
(interest by birth), not by succession.' The coparceners are in fact defined in
1. What is meant by 'coparcenary property" under Mitakshara law? Discuss its

importance. [LC.//-96]
P r o p e r t y in H i n d u Law
27
reference to JFP as a narrow body of those specific members of HJF who acquires by birth an
interest in JFP.
It may be noted that although the Hindu Joint Family and Hindu Coparcenary are two distinct
concepts, Joint Family Property and Coparcenary Property are synonymous expressions
Types/Sources of Joint Family Property

The Hindu Joint Family Property includes;-
(1) All ancestral property.
(2) Property acquired with aid/assistance of ancestral property (Doctrine of Accretion).
(3) Property acquired at the cost of ancestral property (Doctrine of Detriment).
(4) Separate property of a coparcener which is voluntarily thrown by him into the common stock to
such an extent that it cannot be distinguished from joint family property (Doctrine of Blending).
(5) Other types of property e.g. recovered joint family property, j
. (1) Ancestral Property2 - Broadly speaking, property inherited
from any ancestor or ancestress may be called ancestral property. But it is not this sense in which it is
used in Hindu law. It has a technical meaning. It is the property inherited from father, father's father or
father's father's father (three immediate ancestors) which is called 'ancestral property'. Property inherited
from any other relation e.g. mother, uncle, aunt, brother, etc. (including maternal grandfather) is not
ancestral property but it is the separate property of the person inheriting it [Md. Husain v Kisheva
(1937) ALL 655] (See under the Questions section The essential feature of the ancestral property,
according to Mitakshara law, is that the sons, grandsons and great grandsons of the person who inherits
acquire an interest in it by birth Thus, ancestral property is the same thing as apratibandha daya
(unobstructed heritage). .
2. Define the concept of 'ancestral property' under Mitakshara law and discuss
its attributes. [LC. M~95]
Op
** Family Law - II
I It may be noted that the self-acquired property (separate property of the grandfather in the hands of
the father is ancestral property because all property inherited by a male Hindu from his father or
father's father or father's father's father is ancestral property. It is immaterial whether the property was
ancestral or self-acquired in the hands of the deceased. Further, a gift of his self-acquired property by the
father to son will be an ancestral property, if the father intends that the son will take it as joint family
property (and not as his separate property) (See Arunachalam v Murugantha AIR 1953 SC 495 under the
Questions section
, (2) Doctrine of Accretion - Here the term 'accretion' has been
used in a wider sense including all income, accumulations (viz.
rent, mortgages, etc.), or acquisition of property made with the
joint family nucleus. In its ordinary meaning, accretion means
(i) accumulation of income of the joint family property, (ii)
property purchased/acquired with the joint family income, and
(iii) proceeds of the sale of joint family property or property
purchased out of such sale-proceeds
■ The joint family nucleus must not be small or inadequate; where the nucleus is considerable the
presumption arises that the acquisition of property made with its aid is joint family property. But the
income yielding capacity of the nucleus is an equally important factor. Any property acquired by the
Karta out of his own income in the name of his son will not constitute the joint family property
(Chodrashewer v Ramchandra AIR 1973 Pat 215). Where the property is purchased by the Karta, in the
name of the female member, there is no presumption that it is the JFP. Thus, the presumption varies
depending upon who the acquirer and the beneficiary are.
,The burden of proof is upon the person who alleges that it is the JFP, to establish it. If he
establishes that there was sufficient joint family nucleus from and out of which the said property
could have been acquired, the burden shifts to that member of the family who claims it to be his
separate or personal property. If, however, the nucleus is such that with its help, the property claimed to
be joint, could not have been acquired, the burden will not shift.)
(where the joint family property is under separate and convenient enjoyment of members, any
property acquired by a coparcener out of
29
the income of such property will be joint family property (Kurnaraswami Subba AIR 1977 Mad 353).
Where there is no joint family nucleus, the property acquired is separate property In Rajmal v
Rajmal (AIR 1953 M.B. 28) the Karta acquired certain properties by pre-emption and it was not
proved that the pre-emption price was paid out of family funds; it was held that property so
acquired could not be held to joint family property
(3) Doctrine of Detriment - Generally, any property acquired (by Karta or other coparcener) to the
detriment of JFP, would itself take the character of JFP. For instance, if a Karta instead of taking a
loan, sells a piece of family land and with the sale proceeds, renovates his own house; that is to the
detriment of JFP and would result in the alteration of the separate property and give it the colour of
JFP. However, if this rule is followed without any exceptions then it can lead to strange consequences.
For instance, if a coparcener receives education, or acquires a job or some other benefit, which was
financed out of joint family funds, then strictly according to the doctrine of detriment the income
received from education, job, etc. should be joint family property. However, it is not always and
necessarily so (See under the heading 'Separate or Self-acquired Property').^ . (4) Doctrine of
Blending - When a coparcener deals with his separate property in a manner that he leaves no doubt
that he wants to treat it as part of joint family property, such property becomes joint family property
('throwing into the common stock"). If he mixes his property with the JFP, it is known as 'blending'.
The act of blending is an unilateral act. The mere act of physical mixing of property is not enough, but
his own volition and intention by waiving or surrendering his rights in it as separate property, will
make such property the JFR. thus, a mere intention to benefit the members of the family (out of
kindness and affection) by allowing them the use of the income from the separate property may not
necessarily be enough to justify an inference of blending (Mallesappa v Mallappa AIR 1961 SC
1268). A female member of the joint family has no power of throwing her separate property into the
common stock, only coparceners possess this right (Vasant v Sakharam, AIR 1983 Bom. 495).)
30
Family Law - II
If a father effects partition of his separate property, it may mean that he is treating it as joint family
property. But it may be a gift deed clothed in the language of partition deed, then in such a case it will be
a gift and sons will take it as their separate property [Paraqmasivam v Rama Swami (1970) MLJ 492]/
Where a Karta has income from his separate property as well as from the joint family property, and he
deposits all the incomes in the same bank account, without keeping separate accounts then it is a clear case of
blending [Lai Bahadur v Kanhaya Lai (1906 26 All 244].
If a coparcener builds a house on joint family land out of his separate funds, the other coparceners
will be entitled to compensation for their share of land, unless it is clearly shown that the coparcener
wanted to blend his separate property with the joint family property. The onus that house was
constructed out of self-acquired property is on the coparcener, and if blending is shown it will be part of
joint family property (Nilkanta v Ram Chandra AIR 1991 Bom. 10).
In Kesar Bai v Ran Singh (AIR 2003 P&H 289), the deceased coparcener had inherited property
from his collateral, which in his lifetime, he never intended to keep as separate property. It was held to
be joint family property as per the doctrine of blending.
(5) Other Types of Property - e.g. "recovered joint family property/' When one coparcener without
any assistance from the joint family funds or from his fellow coparceners recovers any ancestral
property which has been lost of the joint family, the property so recovered will be the separate
property of the recoverer if recoverer is the Karta; and of other coparcener if property is movable (and
in case of immovable property, the coparcener will take one fourth of it as his separate property and
the rest will become JFP).j I Property jointly acquired by coparceners - with their joint labour and
without the aid of the joint family property, will be joint family property in which sons will acquire an
interest by birth, unless it is proved that the acquirers intended to own the property as co-owners
between themselves in which case it will, be joint property and not joint family property,
Property obtained on partition - When a coparcener partitions from the joint family and obtains his share
of property, then in respect of his own
P r o p e r t y in Hindu Law
31
son, son's son and son's son's son it will continue to be joint family property, but in respect of all
others it will be his separate property. And, when that coparcener (father) further partitions with
his sons, then his share would constitute his separate property. His sons no longer would have a
right of survivorship in it and on the father's death, the property would go by inheritance. If,
however, the father gets a son after his separation from the family, he will form a coparcenary with
that son.
(2) SEPARATE OR SELF-ACQUIRED PROPERTY
, A member of the Hindu joint family or coparcener can, under Hindu law, make separate'
acquisition of property. The separate property may be obtained from several sources; the key words
in the doctrine of self-acquisition are "what has been acquired without any detriment to the joint
family property." Placitum 1, S.4 of Mitakshara says regarding self acquisition: "Whatever is
acquired by coparcener without detriment to father's estate (or joint family property) as present
from a friend or gift at nuptials, doesn't appertain to the co-heirs.
•Thus, the property acquired by a Hindu in his/her individual capacity or through individual efforts
without the assistance of family funds is called 'separate or self-acquired' property. He/she has
absolute ownership over it. On the death of the owner, the separate property of a person goes via
inheritance (intestate succession), or by testamentary succession in case he dies after making a Will.
The doctrine of survivorship is inapplicable to a separate property; thus, the right of the son over the
separate property of the father is a mere spes successionis i.e. the chance of an heir to succeed to
the father's property.]
Mere use of the JFP by the Karta as a business premise for running his separate business cannot
be said to be detrimental to the JFP and therefore earnings or property acquired through those
earnings are his separate property [P.S. Sairam v P.S. Ramarao Pisey AIR 2004 SC 1619]. In this
case, Karta started business by taking loan from market, in the premises of JFP. This property was
not only used by the Karta but also by junior members of the family.]
32 Family Law - II
Sources of Separate Property

Property acquired in the following ways is the separate property of the acquirers:-
4f¥f Property inherited as obstructed heritage i.e. property inherited by a Hindu from a person other than his
father, father's father and father's father's father.
u(2) Gift of his self-acquired property by father to his son; if the father intends that the son will take it as his
separate property.
j(3)'Gift of a small portion of ancestral movable property made through affection by a father to his son,
wife, daughter, daughter-in-law, son-in-law, etc.
(4) Property obtained by a coparcener who has no male issue on partition.
(5) Property held by a sole surviving coparcener, when there is no widow in existence who has power to
adopt.
6) Government grants - If property is granted to a coparcener by the Government, it will constitute the separate
property of the grantee unless it has been specially given to him as joint family property.
(7) Income from the separate property - or property acquired with such income will be coparcener's separate
property.
8) Separate earnings or earnings by self-exertion - Such earnings, without the aid of the joint family property
constitute separate property of the coparcener.
(9) Income of the joint family property allotted to a member for his maintenance - If some surplus income
remains after the maintenance, or any property is purchased out of surplus, such income or property will
be separate property of the coparcener. Because the acquisitions were as much the result of his own
industry and thrift as they were the natural products of the land itself ('money saved is money earned'). In
Chinna v Venkatta (AIR 1954 Mad 282), the court said that even if the coparcener invests a portion of such
property in business and earns profits these profits will be his separate property, as to hold otherwise will
go to kill "the spirit of initiative and enterprise".
33
10) Benefits of insurance policy - In every case, where joint family funds are used for payment of
premium of a life insurance policy, there is detriment to the joint family, but that is not the sole
criterion. If Joint family funds are advanced to members of the coparcenary for their individual
benefit, there is strictly speaking a detriment to the family, nonetheless the intention with which
that money was given and the use of it by the individual for his own benefit would determine the
character of the income or the amount earned therefrom (Narayanlal v Controller of Estate Duty
AIR 1969 A.P. 188).
Thus, a member of a coparcenary may with the moneys which he might receive from the
coparcenary effect insurance upon his own life for the benefit of the members of his immediate
family. His intention to do so and to keep the property as his separate property would be
manifested if he makes a nomination in favour of his wife or children [Seethalakshmi v Controller of
Estate Duty (1966) 61 ITR 317]. Earlier in Parvati Kaur v Sarangadhar (AIR 1960 SC 403), the
Supreme Court held that if the intention was to benefit the family as a whole, the policy should be
treated as JFP, but, where the premium was paid out of joint family funds, but the intention was that
the insured or his immediate family should alone be benefited, then the policy should go to him or
for his legal heirs benefit.
11) Gains of learning - See under the Question section.
12) Salary and remunerations - See under the Questions section.
Case Law
Presumption regarding Joint Family Property
LEADING CASE: MAKHAN SINGH v KULWANT SINGH (AIR 2007 SC 1808)
[A property could not be presumed to be a Joint Hindu Family property merely because of the
existence of a Joint Hindu Family. The one who asserts has to prove that the property is a joint family
property.]
In this case, the issues were whether a property purchased in the name of a member of a family
could be presumed to be a Joint Hindu Family property merely because of the existence of
Family Law - II
a Joint Hindu Family, and, who is required to prove the nature of property whether it is joint Hindu
Family property or self--acquired property.
It has been pleaded that there was no evidence whatsoever to show that the aforesaid property had
been purchased from the income of the joint family so as to give it the character of a Joint Hindu
Family property and that the onus which lay on the defendant as the propounder of the joint family, as
envisaged by the judgment of this Court in D.S. Lakshmaiah v L. Balasubramanyam (2003) 10 SCC 310,
had clearly not been discharged. It has, further, been argued that the finding of the High Court that a
decree for 11 Marias of land could not be granted as this land had been purchased by Dula Singh during
his life time and had passed on to his sons by succession after his death in 1966 was therefore Joint Hindu
Family property in the hands of his sons too was wrong as observed in K. V. Narayanaswami Iyer v K.V.
Ramakrishna Iyer (1964) 7 SCR 490, as there was no presumption in law that a property purchased in
the name of a member of a family had ipso-facto the character of Joint Hindu Family property unless it
could be shown that the family possessed a nucleus for the purchase of the same.
It has, further, been pleaded that the finding of the High Court that the 11 Marias purchased by Dula
Singh in his own name which devolved on his sons after his death in 1966 too had the character of Joint
Hindu Family property was also an erroneous assumption in the light of the judgment of this Court in
Commr. of Wealth Tax, Kanpur v Chander Sen (1986) 3 SCC 567. in which it has been held that there could
be no presumption that if the property purchased by a father fell to his son by inheritance it was deemed to
be in his position as a Karta of a Hindu Undivided Family.
In D.S. Lakshmaiah case, it had been observed that a property could not be presumed to be a Joint
Hindu Family property merely because of the existence of a Joint Hindu Family. The one who asserts
has to prove that the property is a joint family property. If, however, the person so asserting proves that
there was nucleus with which the joint family property could be acquired, there would be presumption
of the
property being joint and the onus would shift on the person who claims it to be self-acquired property
to prove that he purchased the property with his own funds and not out of joint family nucleus that was
available.
The court, in the present case, held: The High Court has also rightly observed that there was no
presumption that the property owned by the members of the joint Hindu Family could a fortiori be
deemed to be of the same character and to prove such a status it had to be established by the propounder
that a nucleus of Joint Hindu Family income was available and that the said property had been purchased
from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it.
The ratio of K. V. Naraycmaswami Iyer case is thus clearly applicable to the facts of the present case.
It is the admitted case that the 11 Marias had been purchased by Dula Singh from his income as
an employee of the Railways and it was therefore his self-acquired property. Such a property falling to
his sons by succession could not be said to be the property of the Joint Hindu Family.
Property held by a Sole Surviving Coparcener
LEADING CASE: SMT. DIPO V WASSAN SINGH (AIR 1983 SC 846)
[The property held by a sole surviving coparcener may constitute his "separate property' and on his death it will
devolve by succession on his heirs, and any custom giving preference to collateral would be void. The character
of the property varies, depending upon who the claimant is.]
In this case, two brothers inherited the property from their
father. One brother 'X'
had a daughter and a son. His son took the X's properties by survivorship on X's death, but the son died
without leaving any male descendants. Therefore, his sister (X's daughter) claimed the properties by
succession. However, the sons of other brother 'Y' raised a dispute that they were the rightful owners of
the X's property. They contended that the properties in the hands of X's son were ancestral property
and in Punjab, a female cannot own ancestral property.)
36
Family Law - II
(The Supreme Court held that the property held by a sole surviving coparcener may constitute his
separate property and on his death it will devolve by succession on his heirs, and any custom giving
preference to collateral would be void. The court observed that the character of the property varies,
depending upon who the claimant .is. In the absence of any male issue, X's son held it during his
lifetime as a sole surviving coparcener and its character with respect to both his sister and the collaterals
(sons of 'Y') was that of a separate property, which will go by inheritance to the nearest "heir (his
sister).
If X's son had the male issues, the character of the property would have been ancestral. In the
absence of male issues, though he holds it as a sole surviving coparcener and is entitled to treat it as
his separate property, its character as a coparcenary property will revive the moment he gets a son. Thus,
in the absence of any surviving member of joint family be it a descendant or otherwise, who could take
the property by survivorship, his property was not ancestral or coparcenary, but was his separate or
absolute property
(The court cited Mulla s Principles of Hindu Law (15th Ed., p. 289): "If A inherits property,
whether movable or immovable, from his father or father's father or father's father's father, it is ancestral
property as regards his male issue has no son, son's son, or son's son's son in existence at the time when
he inherits the property, he holds the property as absolute owner thereof. A person inheriting property from
his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons,
or son's son's sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute
property."}
Again at p. 291, it is stated: "The share which a coparcener obtains on partition of ancestral property is
ancestral property as regards his male issue. They take an interest in it by birth, whether they are in
existence at the time of partition or are born subsequently. Such share, however, is ancestral property
only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies
without leaving male issues, it passes to his heirs by succession"].^
37
The sole surviving coparcener holds the family property as his separate property, but it would be
subject to its becoming coparcenary at any moment when he has male issue or when an adoption
is made by or to him or to a predeceased coparcener in the family [Mohinder Singh v Gurbax
Singh (2004) 138 P.L.R. 154]. Similarly, in Fateh Singh v Lakhbir Singh (2004) 136 P.L.R. 881, it
was held that the sole surviving coparcener can deal with such property in the manner he deems fit
and can also bequeath the same by way of will
FURTHER QUESTIONS
Q.1 Nishant, a Mitakshara Hindu, living in Delhi owns the following properties:-
(i) a house, which he inherited from his maternal grandfather/or brother;
(ii) a shop, which he got from his father under a Gift/Will;
(iii) a flat, which he inherited from his father on the latter's death in 1990;
(iv) a share received on partition.
His son, Subhash seeks partition and demands his half share in all the said properties. Will he succeed?
[D.U.-2008/2009][C.LC.-92/93/95; LC./-96]
A.1 (i) Nature of Property Inherited from Maternal Grandfather
^The essential feature of the ancestral property, according to Mitakshara law, is that the sons, grandsons
and great grandsons of the person who inherits acquire an interest in it by birth. Under the Mitakshara,
property inherited from any person, other than the father, father's father and father's father's father, is
obstructed heritage and a person cannot acquire an interest in it by birth. Mitakshara Placitum - 1-27
also says property in which a son acquires interest jointly with his father is property descending to
the father from his male ancestor in male line.
38
Family Law – II 38
LEADING CASE: MD. HUSAIN KHAN v BABU KISHVA NANDAN SAHAI

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

to be ancestral. The 'ancestral estate' in which under the Hindu
law, a son acquires jointly with his father an interest by birth,
must be confined to the property descended to the father from his
male ancestor in the male line.].
I In this case, one Ganesh Prasad inherited certain village property from his maternal grandfather. Under
a Will made by Ganesh the said property was to go to his son, Bindeshri Prasad for his life, and on his
death, it was to vest in his widow, Giri Bala. In execution of a decree for money obtained by a
creditor against Bindheshri Prasad, the said property was sold in court auction. Bindeshri filed a suit
claiming possession of the property on the ground that the sale was vitiated by fraud. During the
pendency of proceeding, Bindeshri died and his widow, Giri Bala, was brought on record.
The widow asked for leave to amend the plaint on the
ground that under a Will made by her father-in-law, Ganesh
Prasad, her husband got the estate only for his life, and that on
the latter's death his life interest came to an end, and the devise
(Will) in her favour became operative, making her absolute
owner of the disputed property. She accordingly prayed that.
even if the sale be held to be binding upon her husband, it
should be declared to be inoperative as against her rights of
ownership in the property The validity of the Will executed by
Ganesh is challenged by the appellant on the ground that the
testator had no authority to dispose of the property, as it belonged
to a Hindu coparcenary consisting of Ganesh and his son. ,
The court observed: "The word 'ancestral' ordinarily means
an ascendant in the maternal as well as paternal line. But the
'ancestral estate' in which under the Hindu law, a son acquires
jointly with his father an interest by birth, must be confined to
the property descended to the father from his male ancestor in_ the male line. As shown by the Mitakshara
text, it is the property of paternal grandfather or 'pitamaha' (referring to word 'ancestral') in which a
joint interest is there.
39
The court further observed: '"The primary reason for this is the Hindu society was
patriarchal in nature which means that for mother's father (maternal grandfather) the
primary heir would be his son and hence, any inheritance by the daughter's son would be
obstructed heritage.'! Thus, estate inherited from maternal grandfather is "separate property'
and one has full power of disposition over it so a device [Will) made by person over his
separate property is fully operative,
In the present case, the estate which was inherited by Ganesh Prasad from his maternal grandfather
cannot in their lordships' opinion be held to be ancestral property in which his son had an interest jointly
with him. Ganesh Prasad consequently had full power of disposal over that estate, and the devise made by
him in favour of his daughter-in-law, Giri Bala, could not be challenged by his son or any other person
On the death of her husband, the devise in her favour came into operation and she became the absolute
owner of the property; and the sale of that property in execution proceedings against her husband could
not adversely affect her title.ljf
In Venkayamma v Venkatanarayanamma (1902) 25 Mad 678, a wrongly decided case, two
brothers, members of a joint family, inherited certain properties from their maternal grand-father.
One of them died without a male issue and his widow claimed his share by inheritance, while the
other brother claimed it by survivorship. The Privy Council held that it was joint family property
and passed by survivorship to the other brother.
In Maktul v Manhhari (AIR 1958 SC 241), the Supreme Court held that the property inherited
by a person from his maternal grandfather
is not ancestral qua his descendants.
(ii) Gift (or Will) by Father of Self-acquired Property to Son
Two important principles of Hindu law are: (1) Every Hindu has full "power of disposal over his
separate property. (2) When separate or self-acquired property of a Hindu devolves on his son by
inheritance or by partition, the son takes it as ancestral property in which his son has an interest
by birth. The difficulty arises when the father make a gift (or will) of his separate property,
because in that case the property do not passes by inheritance and thus the question is whether
such property-is 'ancestral property' or 'separate property' in the hands of donee (son)
\c*
40 Family Law - II
it may be noted that if A who has three sons - B, C and D, makes a gift of his separate property to C to the
exclusion of B and D, the question is not whether B or D can challenge it. They obviously cannot. The question
is: Can C's son claim an interest in it by birth?}
LEADING CASE: ARUNACHALAM V MURUGANTHA3

(AIR 1953 SC 495)
Mitakshara father is not only competent to sell his self-acquired
property to a stranger without the concurrence of his sons but he
can make a gift of such property to one of his own sons to the
detriment of another; and he can make even an unequal distribution
amongst his heirs.
In view of this settled position of Saw, it is not possible to hold that such property bequeathed or gifted to a
son must necessarily, and under all circumstances, rank an ancestral property in the hands of the donee in
which his sons would acquire co-ordinate interest,
In this case, the issue was - if a father gives his self-acquired property by gift inter vivos or by will to one of
his sons, the son will take it as ancestral property and son's son will have interest in it or not. The will, in this
case, recites that the testator is aged 65 and his properties are all his own which he acquired from no nucleus
of ancestral funds. His three sons are to enjoy the properties, mentioned in the will, allotted to them with
'absolute rights and with powers of alienation such as gift, exchange, sale, etc. from son to grandsons
hereditarily.' The Supreme Court, after considering the texts and the various decisions of the High Courts,
said that the answer to the question primarily depends upon the intention of the father.) The Court held that
(1) When a person receives gift, he receives it not because he is son or has any legal right, but because his father
choose to bestow a favour on him which he could have bestowed on any other person as
3
Write a short note on principle of law as discussed in Arunachaiam v
Murugantha. [LC.I-94\
41
well. The expression 'obtained through favour of father', which occurs in Placitum 28, S.4 of
Mitakshara is very significant. When he makes a gift of separate property, he has an absolute
discretion. | (2) Further, the Mitakshara has placed the father's gift under a separate category, and
has declared them exempt from the partition If was contended that such gifted property must be
held partible as it does not come within the definition of 'self-acquisition'. As such gift can't be
said to be acquired by son without detriment to father's estate, it cannot be regarded as 'self-
acquired property and consequently cannot be exempt from partition The court, rejecting this
argument, said that the rather's gift being itself an exception, provisions in Placitum 28 cannot be
read as requiring that gift must also be without detriment..., for it would be A1"-1", j" a palpable
contradiction to say that there could be any gift by a father out of estate without any detriment to
estate) (3) As a Mitakshara father has complete power of disposition over his self-acquired
property, it must follow as a necessary consequence that father is quite competent to provide
expressly when he makes a gift, either that donee would take it exclusively for himself, or the gift
would be for the benefit of his branch of family. Thus, the question primarily depends upon the
intention of the father. ,
(4) The intention is to be gathered from the terms of the deed. In case the father has not
expressed his intention clearly, then the intention is to be gathered from the language of the deed and
the surrounding circumstances. Thus, if it is shown that so-called gift was not a gift but an integral
part of a scheme of partition, then the donee-son will take the
42
Family Law - II
property as joint family property.4 On the other hand, if the father expressed a clear intention in the
deed that the son will take it as his separate property, the son will take it accordingly
[It is submitted that simple rule should be that the donee-son takes it as his separate property, subject
to any restrictions that the father might have imposed on the gift - Paras Diwan 'Modern Hindu Law'.]
(iii)
(5) The Court held that, in the present case, the Will expressly vests son with absolute rights (of alienation),
and no reference is made to son's son. Thus he (father) did not intend that 'he property should be taken
by son as ancestral property.
(6) Thus, a property gifted by father to his son could not become ancestral property in the hands of
donee simply by reason of the fact that the donee got it from his father as ancestor. Theory of equal
ownership is not applicable to the father's gifts, as father has a predominant interest in his self-acquired
property.ly
Nature of Property Inherited from Father under Hindu Succession Act, 19565
X, the father of a JHF dies in 1950 bequeathing by a will his separate property to his two sons (S1 and S2) in the following terms:
"My two sons aforesaid who are now alive, together with all the sons who may be born to me thereafter, shall divide all my properties into
as many equal shares as there be sons and each son would take one share."
S1 gifts his part of the property obtained through the will to his sister and dies.
His son, S3, challenges the validity of the gift, contending that the property
bequeathed to S1 by X is ancestral. Decide. [C.LC-96]
[Note: S3 can challenge the gift]
Discuss the character of the property that a son inherits from his father post 1956. What are the judicial developments in this regard? What
would be your answer if the property is left to the son under a testamentary disposition?
[D.U-201O]
[Note: For testamentary disposition (i.e. under a Will) see Arunachalam v Murugantha.]
P r o p e r t y in H i n d u Law 43
LEADING CASE: CWT V CHANDER SEN6 (AIR 1986 SC 1753)
[The son inheriting the separate property from his father, grandfather or great grandfather, under the
Hindu Succession Act, 1956, would take it as his exclusive or absolute property, with no right of his
male descendants over it. The son does not inherit the property as the Karta of his branch, but does it
in his individual capacity as the son of the intestate, and not as the representative of his male issue]
The question in this case was whether income/asset which a -, son inherits from his father dying intestate
(without making a Will), when separated by partition (i.e. the separate property of father), the same should
be assessed as income of HUF of son or of his own individual income^
.In this case, the family comprised the father, his son and grandsons. A partial partition was effected and the
father and the son carried on their respective businesses. On father's death, the son inherited his separate
properties and received the undivided share, by survivorship. The son (Chander Sen) was now the Karta of his
family comprising two sons. In the Karta's capacity, he filed a return of his net wealth and showed the joint
family income (including the one that he had got by survivorship), but. did not include in it, the property
inherited from his father on the ground that it was his separate property. The Wealth Tax Officer maintained that
the property received from the father, either by survivorship or through inheritance, was coparcenary property in
the hands of the son. .
The Supreme Court held that after the passing of the Hindu Succession Act, 1956, the properties
inherited by a son from the father would constitute his separate property and not
A Mitakshara family comprising of a father and son had considerable JFP. In

addition they were running a rice-mill in partnership. Father died intestate in
1990. The son did not include in the wealth tax return for the undivided family
the share he inherited from his father in the rice-mill under the Hindu Succession
Act. The Wealth Tax Commissioner did not accept son's plea. The son challenged
this decision in the High Court. How the court would decide? [LC.J-95]
[Wore: The son will succeed in the present case.
Family Law
- II
coparcenary property The Apex Court noted that Allahabad, M.P., Madras and Andhra Pradesh High
Courts hold such property as separate property of the son, but Gujarat High Court takes a contrary
view.
The Court observed: Under the traditional Hindu law, when a son inherits separate property from his
father, vis-a-vis his own sons, he takes it as 'JFP.' But that position has been changed by the Hindu
Succession Act, 1956. The H.S. Act both modifies and codifies the Hindu law. Sec. 4 of it lays down
that any rule of Hindu law or custom, inconsistent with the provisions of the Act, would cease to have
any effect and it is the statutory provisions that would prevail. With respect to the joint family property
inherited by the son, from his three paternal ancestors in the male line, the law remains the same i.e. it
would be coparcenary property in his hands with respect to his male descendants up to three generations,
who would acquire a right by birth in it and would also be entitled to enforce a partition.
The Court found that under the scheme of intestate succession to the separate property of a Hindu
male, as contained in Sees. 8 to 13, the 'grandson' of the intestate, whose father is living, is not specified
as a Class 1 heir; and that the Class I heirs succeed to the exclusion of all other heirs. The Act uses the
expression 'son', 'son of a predeceased son', and 'son of a predeceased son of a predeceased son', and
not 'son', 'grandson', and 'great grandson.'
The H.S. Act has introduced a new set of heirs, when a Hindu inherits property from his father u/s. 8,
he takes it as his 'separate property' vis-a-vis his sons. Because, if such property be HUF in his hands then
it would amount to creating two classes among heirs in Class-I, the male heir in whose hands it will
be JFP vis-a-vis son and female heirs with respect to which no such concept could be applied (Heirs in
Class I include widow, mother, daughter of a pre-deceased son). The Act never intended it to be so (as
all Class I heirs inherit together) and the express provisions of Sec. 8 cannot be ignored and must prevail.
45
In ACIT v Chettiar (1978) 114 1TR 523, and, CIT v Rakshapal (1968) 67 ITR 164, held
that a Hindu who succeeds to his father's property takes it as his separate property and his sons
do not acquire any interest in it by birth. As S.8 excludes grandson and son alone inherits
property. Thus, similarly after-born son of son will not get any interest which son inherits
from father.
The Parliament wanted to make a clean break from the old Hindu law in certain respects
consistent with modern and egalitarian concepts (welfare for all) and Sec. 4 of the Act makes
it very clear that one should look to the Act in case of doubt, and not to the pre-existing Hindu
law. As a result the view taken by Gujarat High Court is not correct.
Comments - The basis for conferring a right by birth in the property of the father or a paternal
ancestor, was the spiritual benefit that the son, grandson, or a great grandson could confer on
such ancestor. Under the Act, however, this spiritual benefit rule has been replaced by the rule of
'nearness in relationship.' The rule of equality, affinity and nearness in blood 7s~very evident,
as the children of a predeceased daughter (who previously ranked after the intestate's father,
brother, his son, grandson and paternal grandmother), have been promoted and made Class 1
heirs on the basis of nearness in relationship to the intestate.7
The whole scheme of the H.S. Act shows that the legislature wanted to be fair towards
women, and this is the reason why the concept of joint family, though not abolished, has been
narrowed down. The concept of coparcenary property is gender discriminatory and the principles
underlying Sees. 8-13 are generally, based on equality and nearness in relation and affinity. These
equitable principles leave no room for encroachment by inequitable principles of an automatic
conversion of separate property into coparcenary property by the operation of law.8
In Gaurav Sikri v Kaushalya Sikri (AIR 2008 Del 40), the court quoted apex court's
pronouncement in CWT v Chander
7. P. Pradhan Saxena, Family Law II.. 3* ed., p. 121 (2011).

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

(i) The house which Nishand inherited from his maternal grandfather/or brother is his separate property.
Subhash can’t claim partition of it as he has no interest in it by birth.
(ii) The shop which Nishant got under a gift/Will from his father is not necessarily ancestral property in his
hands, if the intention of the grantor was to make it ancestral property in his hand, then Subhash can
claim partition in the shop.
9. to., p. 126.
47
(iii) The flat which Nishant inherited from his father can only be his separate property, thus, Subhash
cannot claim partition in this
flat (CWT v Chandra Sen AIR 1986 SC 1753). (iv) The share which Nishant received on
partition continues to be
JFP as regards his son Subhash and thus Subhash can claim
partition in it.
Q.2 Balram was possessed of property comprising of agricultural
land which he inherited from his father in 1955, a shop in
Kamla Nagar inherited by his wife from her father and Rs.
4,00,000 which his separated paternal uncle sent from Africa.
His only son claims half share in above-mentioned properties.
Decide. [LC. l-95\
A.2 SeeAA.
(i) Under the old Hindu law (before the passing of Hindu Succession Act. 1956). when 9 son inherits
property from his father vis-a-vis his own son, he takes it as joint family property. Thus, Balram's son
can claim half share in agricultural land which Balram inherited from his father.
(ii) The shop which Balram inherited via his father-in-law is his separate property and his son cannot
claim share in it.
(iii) Rs. 4,00,000 which Balram got from his separated paternal uncle is his separate property and his son
cannot claim share in it.
Q.3 A Hindu father 'A' died in 2006, survived by his widow W, one
son S and a daughter D. S had two children SS and SD.
Before his death, 'A' had executed a Will, whereunder he
bequeathed three flats (of similar value) that constituted his
separate property in favour of W, S and D. Two days prior to
his death, 'A had purchased a farm house using his own
money with respect to which no Will was executed. On his
death, his children and widow took possession of the flats
individually and of the farm house collectively. SS filed a suit
for partition against S, claiming a share out of the flat and the
farm house, on the ground that he being a coparcener had
a right by birth in the same. Discuss whether he would be
successful? [D.U.-2011]
A.3 See A.l.

48 Family Law - !!
(i) When a father makes a Will in respect of his separate property, it will devolve on the donee as the
donee's property (his/her heirs cannot claim a share in it on the ground of 'ancestral property'). Thus, in
the present case, SS cannot claim a share out of flat, which the donee (S) got from his father 'A.'
(ii) When a father left behind a separate property without making a Will in respect of that, then it will (like an
ancestral property) devolve by inheritance/succession. Thus, in the present case, SS can claim a share
out of the farm house, on the ground that he being a coparcener had a right by birth in the same.
Q.4(a) Harish, a Mitakshara Hindu living in Delhi, owned the following properties:-
(i) The property which was purchased by Harish in his name, out of his earnings made in the course of his pursuing medical
profession. The family incurred all the expenses of Harish to have a formal education.
(ii) Share certificates worth Rs. 6 lacs purchased in his name out of HUF funds.
His son claim share in these properties. Discuss, whether he

will succeed? [D.U.-2009][C.L.C.-92/93/94\
(b) Vivek as karta of Hindu undivided family owned 200 shares in a company. The capital of the Company consists of 5,00,000
shares of Rs. 100 each. Vivek became the Managing Director of the company on the basis of M.B.A., LL.B. degree and 200
shares owned by the family. He was entitled to a remuneration of Rs. 25,000 p.m. and 2% of the company's profits.
Can his son claim a share in the above-mentioned income

of his father? Decide. [C.LC.-95]
A.4 (a) Gains of Learning - whether Separate Property?
A member of the Hindu Joint Family or a coparcener can, under Hindu law, make separate acquisition of
property. The key words in the doctrine of self-acquisition are "what has been acquired without any
detriment to the joint family property."
49
The 'gains of learning' mean those gains which are made on account of some education or
training that a coparcener has received, he main question is: if the training or education has been
received at le expense of the joint family property, does it mean that anything acquired by the
acquirer on account of training or education is "to the detriment of the joint family property."
Before 1930, our courts made a distinction between a 'specialized' raining and 'ordinary'
training. In the former case the earning of a coparcener out of his education/training were treated
as part of JFP, while in the latter case it constituted his self-acquired property. It led to strange
consequences because 'maintenance' also includes educational expenses of the children. Further,
education is imparted at a time when a person cannot even be seen as capable of having an
income of his 3wn or of taking any decision as to how to finance his education.
In 1930, the Hindu Gains of Learning Act was passed and this distinction was done away
with. It is laid down that whether the training is ordinary or specialized, any gains made on account
of training/ education will constitute 'separate property* of the acquirer. Thus, a member of the joint
family is the exclusive and separate owner of the gains of his learning,
The Act defines "learning" as education whether elementary, technical, scientific, special or
general and, "training" as every kind of training which is usually intended to enable a person to
pursue any trade, industry, profession or avocation in life[Sec. 2 (c)]. Sec. 2 (b) of the Act states
"gains of learning" mean all acquisition of property ma3e substantially by means of learning,
whether before or after the commencement of the Act, or whether such acquisition be the ordinary
or extraordinary result of such learning. Thus, the Act is retrospective as well as prospective. .
Sec. 3 of the Act states 'Notwithstanding any custom, rule or interpretation of Hindu law, no
gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by
reason of his learning having been, in whole or in part imparted to him by any member of his family,
or with the aid of joint family funds.' It is also immaterial that while he was receiving
training/education, he or his family was maintained or supported out of joint family funds
(Venkatasubramania v Eswara AIR 1966 Mad. 266).
50
Family Law
- II
The said Act is a step in the right direction. Success in a profession depends much more on 'personal
skill' than on 'training' one has received (e.g. one doctor or lawyer may have a flourishing practice, while
the other languishes). The .mental and physical capability of each person varies; that is why in spite of
getting similar education, the ability to make money varies with each individual. The 'joint family' concept
has nothing to do with it. The Act has rightly snapped the nexus between the support for learning and
the fruits of learning. Even if the support is provided by the joint family or any of its members, the fruits
belong to the earner
, However, if the joint family funds are invested in the business, industry or profession which the
coparcener takes up after receiving education/training, the acquisition may not be his separate property. For
instance, if a coparcener is trained as an engineer/doctor, and the joint family, in view of his training, opens
up an industry/hospital in which joint family funds are invested, the profits of this industry/hospital will
not be separate property of the engineer/doctor-coparcener, though if he is allowed to draw a salary or
allowed to take a part of profit for his skill, that will constitute his separate property. If the
engineer/doctor coparcener establishes an industry/hospital either himself or in a partnership concern
with any other person, using his own finances, the gains would be his separate property.

(i) The property purchased by Harish from his 'gains of learning' is his separate property, and in it his son
cannot claim partition.
(ii) The Share Certificates worth Rs. 6 lacs purchased in Harish's name out of HUF funds are ancestral
property in his hands (According to the Doctrine of Accretion, all income, accumulations, or acquisitions
of property made with the joint family nucleus, is joint family property). Thus, his son can claim share
in it.
(b) Salary and Remuneration - whether Separate Property?
It often happens that joint family properties are invested in an enterprise, industry or undertaking and by
reason of such investment, the karta/ coparcener (whether on behalf of the family or otherwise), is
employed by the enterprise, etc., the salary, remuneration, fee or commission that he may receive in that
capacity is 'a coloured disguise to hide a share
51
in the profits of the enterprise itself to avoid the incidents of income tax.
The present position in law is: if remuneration, salary, profit or commission is earned by the
karta or any other coparcener on account of substantial investments of the joint family funds in the
business, enterprise or industry, it will constitute JFP, even if the personal skill and labour of the
Karta/coparcener is an important factor in the earnings. But if no joint family funds or properties are
invested or only nominal investment is made or the joint family is, apart from the earnings of
Karta/coparcener, receiving profits, dividends, etc. on investments without any detriment to the
joint family funds or properties (except the usual risk involved in any business), the earnings will
constitute the separate properties of the earner.)
In Raj Kumar Singh v Commit., Income Tax (1970) 78 1TR 128, the Supreme Court has held
that the main principle is to determine, whether the income received by the coparcener was in
substance though not in form, one of the modes of return on joint family investment or whether it
was compensation for services rendered by the individual coparcener. If the income was essentially
earned as a result of funds invested, the fact that coparcener had rendered some service would not
change the character of the receipt which in this case would be income of HUE On the other hand,
if it is essentially a remuneration for the service rendered by the coparcener, the circumstances that
the services were availed by the qualification share brought by the joint family would not make the
income of HUF and it will be the separate income of the coparcener. This principle was reiterated in
Bhagwat v Digambar (AIR 1986 SC 1251).
Thus, where karta became the Managing Director of a company solely on the basis of joint
family investment, the income was held to be JFP (Commr., Income Tax v Kalu Balm AIR 1959 SC
1288). On the other hand, where joint family investment was only used to purchase a qualification
share (i.e. to obtain dividends and other advantages of being shareholders) and karta became M.D. of
a company on the basis of his own qualifications, the income was held to be a separate property j
(Palaniappa v Commr., Income Tax AIR 1968 SC 678). Earlier, in Piyare Lal v IT. Commr. (AIR
1960 SC 997), where the karta was a manager of a business concern and the joint family had given
security of its properties for the karta"s honesty, the court said that the earnings
52
Family Law
- II
of karta as manager were not the result of family investment, but were the outcome of karta's personal
skill and labour.
In Dhanwantiy v Commr, IT (AIR 1968 SC 683), the Supreme Court said that the salary which the
coparceners earned as partners constituted JFP. In this case, coparceners with a view to avoid incidence of
tax, invested the joint family assets in a partnership and it was agreed that the profits earned were to be
taken as personal salary by each coparcener. The court found that there was a complete nexus between
the earning and the detriment to JFP. However, in Commr., IT v D.C. Shah (AIR 1969 SC 927), where the
partnership deed showed that one of the coparceners as partner was to be given a salary on account of
his rich experience and skill, the court held that the salary constituted his self-acquired property, despite
the fact that the family contributed a large part of the capital to the firm, as the connection between the
salary and the detriment was not sufficient.
Concluding Remarks - The test is whether a nexus or connection can be established between the
emoluments given to one coparcener, and detriment to the JFP. If yes, then the character of the
emoluments would be that of JFP, but if no nexus can be established, it would be taken as his separate
property.
The recent trend, however, is that the Apex Court has started giving due recognition to special skill
and rich experience of a person in drawing salary as a member of joint family and treating such income as
his personal income irrespective of investment of joint family funds and properties. ,

Vivek became the MD of company mainly because of his qualifications; the joint family investment is very
nominal (200 shares out of 5,00,000 shares of the company). Thus, his son cannot claim a share in it.
Q.5 What are the differences between joint family property and separate property?
Discuss essential features of coparcenary property distinguishing it with the separate property of a person.
[D.U.-2009/2010/2011)
53
A.5 Distinction between JFP and Separate Property
Joint Family Property Separate or Self-acquired

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

Karta is the "senior-most" male member (un-disqualified coparcener) e.g. father, uncle, eldest brother.
The presumption is very strong as this
1. Who can be a Karta of the Hindu Joint Family? [LC.//-95/96] [D.U.-2008(Supp)]
[54]
Rights and Powers of Karta and Coparceners 55
position is regulated by seniority (Lalbarani v Bhutnqth AIR 1974 Cat 09) and does not depend upon
merely the consent of the other family members. In the case of a conflict, the senior-most will be
presumed o be and would continue as the karta.
So long as father is alive, he is karta. If he is very old/ infirm or absent for a long period or
relinquishes his right, then the other senior-most male member of the family becomes karta. However,
so long as the karta is alive no one else on his own can be a karta and if the karta so desires, he
continues to occupy the representative capacity even though he may be unable to look after the
family affairs by reason of age or health.
L.A temporary absence of the father is not sufficient for the son to become a karta, if there is nothing
to show that the father is in a remote country or his whereabouts are not known or his return within a
reasonable time is out of question (Siddappa v Linappa, 42 Mys HCR 669).
LA senior-most coparcener may not in all cases be the karta of the family. If all coparceners agree, a
junior male can be a karta; the senior-most member can expressly relinquish his position as a karta
[Nemi Chand v Hira Chand (2000)d H&R 250 (Raj)]. However, the fact of assumption of karta's
poweroy a junior member has to be proved by cogent evidence (because, the presumption in favour of
the senior-most member as the karta of the family is very strong). Further, junior member owes his
appointment as karta to the agreement or consent of the coparceners; they may withdraw consent
"aT"ariy~timej
IJI has been held that even a minor can act as karta and represent the family through the guardian
[Sarda Prasad v Umeswar Prasad (1963) 1LR Pat 274k,
Junior Member of Coparcenary as Karta
LEADING CASE: M/S. NOPANY INVESTMENTS (P) LTD. v SANTOKH

SINGH (HUF) [2007 (13) JT 448]
[Ordinarily, the right to act as the Karta of HUF is vested in the senior-most male member but in his
absence, the junior members can also act as Karta in exceptional circumstances.]
56
Family Law
- II
In this case, the issue was whether a younger coparcener could file the suit for eviction, in the
capacity of the Karta of a HUF, when, admittedly, an elder member of the aforesaid HUF was alive. .
The court observed: In Sunil Kumar v Ram Prakash (1988) 2 SCC 77, it was laid down that, in
general, the father of a family, if alive, and in his absence the senior member of the family would be
entitled to manage the joint family property. In Tribhovan Das v Gujarat Revenue Tribunal (1991) 3 SCC
442, the court observed that a younger member of the joint Hindu family can deal with the joint family
property as manager in the following circumstances:
(i) if the senior member or the Karta is not available;
(ii) where the Karta relinquishes his right expressly or by necessary implication;
(iii) in the absence of the manager in exceptional and extra ordinary circumstances such as distress or calamity
affecting the whole family and for supporting the family;
(iv) in the absence of the father: (a) whose whereabouts were not known or (b) who was away in a remote place
due to compelling circumstances and his return within a reasonable time was unlikely or not anticipated, i
- The trial court relied upon the law discussed in the books "" namely, "Principles of Hindu Law" by
Mulla and Mulla and Shri S.V. Gupta on "Hindu Law", wherein it has been observed that ordinarily, the
right to act as the Karta of HUF is vested in the senior-most male member but in his absence, the junior
members can also act as Karta.
The High Court rejected the argument of the appellant that Tasraj Singh could not have acted as
the Karta of the family as his elder brother, namely, Dhuman Raj Singh, being the senior-most member
of the HUF, was alive. It is true that in view of the decisions of this court in Sunil Kumar's case and
Tribhovandas's case, it is only in exceptional circumstances that a junior member can act as the Karta of
the family. But we
venture to mention here that Dhuman Raj Singh, the senior member of the HUF, admittedly, has
been staying permanently in the United Kingdom for a long time. In Tribhovandas case itself, it
was held that if the Karta of the HUF was away in a remote place (in this case in a foreign
country) and his return within a reasonable time was unlikely, a junior member could act as the
Karta of the family.
»In the present case, the elder brother Dhuman Raj Singh, who is permanently staying in United
Kingdom, was/is not in a position to handle the joint family property for which reason he has
himself executed a power of attorney in favour of Jasraj Singh. Furthermore, there has been no
protest, either by Dhuman Raj Singh or by any member of the HUF to the filing of the suit by Jasraj
Singh. That apart, in our view, it would not be open to the tenant to raise the question of
maintainability of the suit at the instance of Jasraj Singh.
There can be only one Karta

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

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

4. Id, p. 146.
position post 2005 - After coming into force of 2005 Amendment to H:S. Act, 1956, a daughter is also
a coparcener in the same manner a son (having similar right in the coparcenary property). Therefore,
the father's absence, she can be a karta, if she is the senior-most member in the family and she will be
entitled to represent the family in legal proceedings.
Position of Karta
the Hindu Joint Family, karta or head occupies a pivotal position. The position of karta is determined by
birth and he is not appointed by anyone, nor does the consent of other coparceners is required. He is
entitled to be the karta because he is the senior most. So long as he is alive, may be aged, infirm, or
ailing, he will continue to be the karta. Thus a karta cannot be removed. Whether insanity or other
disqualifications will defeat his right is not clear, but it seems that in such a case the next senior male
member will take over. The position of a karta is terminable by resignation and relinquishment but is not
indefeasible.]
The position of karta is sui generis,(of its own kind or unique creation of Hindu jurisprudence).
The relationship between him and other members are not that of principal or agent, or partners. He is
not like a manager of a commercial firm, as he not only manages the JFP but also look after all other
affairs of the joint family. He is the head of the family, and acts on behalf of other members, but he is
not like a partner, as his powers are almost unlimited. At the same time he is a person of limited
powers. He has liabilities towards members. Any coparcener can, at any time, ask for partition. He
obtains no reward for his services and he discharges many onerous responsibilities towards the family
and its members. He is the custodian of the family interest and his actions are backed by a presumption
of the promotion of general family affairs,
The karta represents the joint family/other coparceners to the strangers, but the relationship is not
that of principal and agent (i.e. master and servant) under the Contract Act.,, A karta is neither a servant
of the other coparceners nor he is the principal of other coparceners (any coparcener can ask for
partition of JFP; can challenge improper alienation of JFP). He is, however, the respected head of the
family and occupies the principal position among the coparceners. His position is superior to other
members,
equitable or even impartial. The karta has a right to decide or allocate specific portions of the house for
family member's residence, which the latter have to obey.
No individual coparcener can either retain the exclusive possession of a specific joint family property or
joint family income, without his permission. Further, if a coparcener's presence in the family home
proves to be a nuisance due to his disorderly behaviour or bad habits, the karta has the power to
throw him out of the house. The only remedy available to such a coparcener is to ask for partition. .
(iii) Right to income and expenditure - All income of the family must be handed over to karta and it is for
karta to allot funds to members. The decision of how to spend the joint family income and on whom
to spend it is with the karta. .
(iv) Right to representation - in all matters e.g. legal, social, religious, revenue, etc. He acts on behalf of
family and his acts are binding on the other members including minors. The karta may sue or be sued in
respect of any transaction entered into by him on behalf of the family. If a decree is passed against him
in such a suit, it would be binding on all the members of the family.
The karta is expected to pursue the litigation with utmost sincerity, but
if he does not do so and because of this, the family loses a case and
a decree is passed against the family, such decree cannot be set aside
on the ground that, had the karta been more vigilant, the family might
have won the casa [Krishnamurthi v Chidambaram (1946) ILR Mad
J
670].
(v) Power of compromise - of all disputes relating to family properties '"* or their management. But, he has
no right to give up a substantial portion of a debt... out of charity, or sympathy with debtors. Thus, a
compromise must be for the family's benefit; if his act is not bona fide, it can be challenged in a
partition. Thus, the karta cannot enter into a compromise which is for his personal advantage [Bhola
Prasad v Ramkumar (1932) ILR 11 Pat 399].
The karta has also power to refer disputes relating to JFP to 'arbitration,' provided he does so bona fide and
for the family's benefit. The dispute could be between the members of the family or between family
members and outsiders,
62
Family Law - Il
(vi) Power to contract/acknowledge debts - He has an implied authority to contract debts and pledge the
credit of family for ordinary purposes of family business. Such debts are binding on the entire family.
However, it is necessary for him to prove that loan was taken for family purposes or business... if the
creditor seeks to make entire family liable for debts.
The karta has the power to acknowledge a debt, but he cannot relinquish a debt due to the family. Also, he
cannot pass a promissory note to revive a time-barred debt. Where a loan is raised by the karta (for a-
lawful purpose) by executing a promissory note in his name, such a note binds the other coparceners,
but only to the extent of their shares, unless they were parties to this contract (Sirikant Lai v Sidheshwari
Prasad MR 1937 Pat 455).
In certain cases, the karta has the full power to give a valid discharge for all debts due to the
family.
. (vii) Power to enter into contracts - ordinarily incidental to the family business and such contracts are
binding on the family.
Karta's Duties and Liabilities (Responsibilities)

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

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

64 Family Law - II
[Anani v Gopal, 1895, 19 Bom 269]. Thus, a coparcener has a 'right against exclusion from JFR'
(iii) Right by birth and right of survivorship - The moment a son is born in family, he acquires an interest in
joint family property. Yet, when he dies he leaves behind nothing; and his interest devolves on the
surviving coparceners (by survivorship). Thus, if a coparcener had died with some personal debts, these
debts can't be enforced against his interest in joint family property after his death.
In our society, where concept of individual property dominates, the rights of person who is born and
the rights of person who survives, have to be expressed in terms of individual interests.
(iv) Right of maintenance - marriage, etc., out of joint family property.
(v) Right of alienation - of undivided interest in the coparcenary property.
(vi) Right to challenge and restrain alienation - when improper and made without his consent.
(vii) Right to restrain improper acts - Every coparcener has the right of restraining improper acts on the part
of other coparceners, where such acts cause substantial injury to his rights as a member of the joint
family. For example, if a coparcener erects a building on land belonging to the joint family, so as to
materially alter the condition of the property, he may be restrained from doing so.
(viii) Right to make self-acquisition - A coparcener has the right to acquire property of his own, and keep it as his
self-acquired property.
(ix) Right of partition/relinquishment of interest - A coparcener could get his interest 'individualized' by way
of partition. This right is almost absolute; it is not subject to consent of the other coparceners.
Also, a coparcener has the right to renounce his interest in the coparcenary property in the favour of
other coparceners.
4
Alienation of Hindu
Joint Family Property
A Hindu has unrestricted power to alienate (i.e. transfer) his personal property, but in case of joint family
property his competence to alienate is determined by his status in the joint family. Only the Karta/father
and other coparceners possess the right to alienate the JFP. It may be noted that ordinarily, neither the
Karta nor any other coparcener singly possesses full power of alienation over the JFP or over his interest in
the JFP. This is so in view of the 'collective ownership' of the joint family property. Alienation of the
property may be made voluntarily (i) for consideration e.g. by sale, mortgage, lease or exchange (ii) by
gift, and (iii) by Will
Karta's Power of Alienation1

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

[D.U.-2011]
[65]
66
Family Law
- II
when the family needs money can be disadvantageous to the family itself. Thus, the Karta can do it
when the alienation was unavoidable, where, but for this transfer, the interests of the family would have
been adversely affected and to protect or benefit the family members or the property itself.
The Karta may alienate the JFP in the following three cases:
(a) Legal necessity.
(b) Benefit of estate.
(c) Acts of indispensable duty,
Vijananeshwara recognized three exceptional cases in which alienation of the JFP could be made:
(i) Apalkale i.e. in the time of distress or emergency (to avert a danger).
(ii) Kutumbarthe i.e. for the sake of the family (benefit of estate).
(iii) Dharamarthe i.e. for pious purposes. ,
^The Karta's alienation in the aforesaid cases binds the interest of the minor coparceners also. Therefore, it
is submitted that the correct basis of Karta's power seems to be the authority inherent in his position as
karta, and not the implied consent of the coparceners. The Karta has a right to manage the joint family
affairs and in course of its management, he can also decide whether there exists a need of the family,
justifying an alienation of the property, or not. However, for an alienation to be valid, it must be shown
that the family did not possess alternative resources from which money could be raised to spend in
these cases.
When Karta exercises power of alienation in these exceptional cases, the consent of other
coparceners will be 'implied.' This authorization is also called 'judicial' (when either the other
coparceners do not consent to the alienation or are minors, but the alienation is for one of the three
permitted purposes, as aforesaid). Though this authorization had its origin in the Dharmashastras, it has
been recognized and upheld as valid all along by the judiciary Also, Karta can alienate the property even
if none of the above cases exists, but with the consent of other coparceners. The latter is an 'express'
authorization for alienation of JFP by the Karta.
Alienation of Hindu Joint Family Property 67
[ One of the 'undivided coparcener' alone cannot alienate the JFP even to the extent of his share
even for a permitted purpose as this authority is available only to 'Karta.' Such alienation would be void
and lot binding on the JFP at all
[a) Legal Necessity

Broadly speaking, 'legal necessity' will include all those things which ire deemed necessary for the
members of the family. It means a necessity of the family, with respect to its members, and in certain
cases, also with respect to its property, that can be justified in law,
The concept of legal necessity in Mitakshara refers to apat kale (famine, epidemic, floods, etc.).
However, this is a very narrow conception of legal necessity. It is now established that 'necessity' is
not to be understood in the sense of what is absolutely indispensable but what, according to the notions
of a Hindu family, would be regarded as proper and reasonable (Mayne, Hindu Law and Usage, 11th
Ed.). The concept has moved beyond the apat kale and kutumb arthe and what has emerged is a
combination of the two2
In Rani v Shanta (AIR 1971 SC 1028), the Supreme Court has held that for 'legal necessity' actual
compelling necessity is not the sole test but pressure upon the estate which in law may be regarded as
serious and sufficient. If it is shown that the family's need was for that thing or article, and if property
was alienated for the satisfaction of that need, it would be enough. The term is to be interpreted with due
regard to the conditions of modern life.
For an alienation to be valid under 'legal necessity' there must be existence of a need or lawful
purpose, and, the family does not possess monetary or alternative resources from which the requirement
can be met. Also, the course of action taken by Karta should be such as an ordinary prudent person
would have taken with respect to his property. For example, a joint family owns considerable financial
resources and property; it has to pay government dues (a purpose). But, there is no 'necessity', as
sufficient resources are available from which dues can be paid. A prudent person should pay the dues
or even debts, from his
2. See P. Pradhan Saxena, Family Law //, 3rd ed., p. 165 (2011).
68 Family Law - II
savings rather than from the sale of JFP, and if that is not possible, from a mortgage rather than a sale.
A sale of JFP for inadequate or no consideration cannot be valid, despite legal necessity Kastfram Jagamma
v Jajala Lakshmamma (1998) 2 HLR 79 (A.P.)p
(Legal necessity may change its content with the passage of time. It must therefore depend on the
facts and circumstances of each case)
Illustrative Cases of Legal Necessity
(i) General maintenance - Food, shelter, clothing, education, and, medical care for the members of family.
(ii) Marriage of the members of family including daughters, towards
whom there is a special duty. -^M
iii) Marriage of daughter's daughter, when a daughter is not indigent is not a legal necessity (Nagpur High Court).
But, Madras High Court takes a different view. In Venkata Subba v Ananda Rao (1934) 57 Mad. 772, held
that it does not matter that the daughter is indigent or not. In Srinivas Rao v Sesacharlu (1962) Mad. 42,
the court reasoned that the marriage of virgins is a pious and meritorious act conferring spiritual benefit on
a Hindu.
(iv) Defence of a member involved in a serious criminal charge (Murli v Bindeswari AIR 1933 Pat 708),
provided he is not involved in murder of another coparcener. This is to defend the family honour.
v) Payments of Government revenue and debts binding on the family. Repayment of loan raised for family
business.
(vi) Performance of necessary funeral or family ceremonies.
vii) Payment of rent/arrears of rent; to discharge a mortgage of the family property.
viii) Sale of land to construct a pakka house (Tarni Prasad v Basudeo AIR 1981 Pat 33). Similarly, expenses
for repairing a family house.
(ix) Cost of necessary litigation in recovering or preserving the family estate (Kaloo Singh v Sunderbai AIR
1926 Nag 449).
3. Id., pp.165-166.
Alienation of Hindu Joint Family Property
69
(x) To avert a sale or avoid the destruction of whole or part of the
property.
(xi) For migrating to a new place for better living (Vanimisatti v
Jayavarapu AIR 1955 A.P. 105). (xii) For the establishment of the adoption of a minor son
{Govind
Gurunath v Deekappa Mallappa AIR 1938 Bom 388).
Case Law: Legal Necessity
LEADING CASE: HUNOOMANPERSAUD PANDAY V MUSSUMAT BABOOEE MUNRAJ KOONWEREE [(1856) 6 MIA 393]
[This case is a guide to all those who had limited powers of disposal over any property. The
power of the guardian/manager/ karta for an infant heir to charge an estate, which is not his own, is
a limited and qualified power.
The burden of proof is on the alienee/transferee/lender to show that he acted bona fide and that there
was necessity.] , Facts - A certain mortgage executed by a widow in her character of the guardian of
her infant son was challenged by the son on becoming major on the ground that it is inalienable
by the act of the guardian, and so he is not liable for it. The said mortgage was made for the
payment of arrears of revenue due to the |. government. Thus, it was for the benefit of the minor's
estate, to prevent a sequestration and probable confiscation due to non-payment of government
revenue. { Observation and Decision - The Privy Council propounded the following five
propositions:-
. (i) The power of the guardian/manager for an infant heir (or the power of karta) to charge an estate
which is not his own, is under the Hindu law, a limited and qualified power. It can only be exercised
rightly in the case of legal necessity or for the benefit of estate. _, (ii) In case a guardian/manager
makes alienation as a prudent man, in order to benefit the estate, the
70
Family Law - II
bona fide lender or alienee is not affected by the previous mismanagement of estate, provided the lender or
alienee was not a party to mismanagement. In other words, he shouldn't have acted mala fide.
The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in the
particular instance, is the thing to be regarded.
iii) The alienee is bound to make proper and bona fide enquiries as to the existence of necessity.
iv) If the alienee acts bona fide and makes proper enquiries, the real existence of an alleged sufficient and
reasonably credited necessity is not a condition precedent to the validity of alienation. In other words, the
alienee's position is not affected by the fact that if the minor's property were properly and better managed,
the danger or necessity would have not arisen.
(v) The alienee is not bound to see as to the actual application of money for the legal necessity. He is not an
administrator of fund.
(vi) The guardian/manager is under an obligation to make an alienation as a prudent man, but the mere creation
of a charge on the minor's property for securing properly a debt cannot be viewed as imprudent
management because money to be secured on any 'estate' is likely to be obtained on easier terms than a
loan which rests on mere 'personal security.',
In other words, whenever alienation is challenged it is for the alienee to show ('burden of proof) that
there was necessity. It is because, when one deals with a person whom one knows or is supposed to
know to be a person of qualified powers, it is one's duty to satisfy oneself that such a person has
power to make alienations. However, what he is required to prove is - either there was actually a need
or that he made proper enquiries as to the existence of need and acted honestly. If he does that he has
discharged his burden, it is immaterial if it
71
turns out that actually there was no need for alienation or that he was deceived
In the present case, there was no suggestion that the debt -of infant's>-father was contracted for
illegal or immoral purposes. During her management, the widow (guardian/manager) with the object of
saving the estate, of paying the debt of her , predecessors, executed the mortgage bond. No greater
benefit
could well be conferred upon an estate than to save it from v ;
.: extinction by sequestration, the payment of arrears of revenue ;
due to the government by mortgage bond was in the nature of
salvage expenditure. Therefore, the alienation will be binding on
the son
/ Moreover, a bond of this nature does not extinguish the title of the infant, it follows
then, as a matter of justice and equity, that the mortgage bond is valid and of effect.
LEADING CASE: DEV KISHAN V RAM KISHAN (AIR 2002 Raj. 370)
[For an alienation to be valid under 'legal necessity' there must be existence of a lawful purpose.
Thus, a debt incurred for the marriage of a minor child cannot be said to be for lawful purpose,
as a child marriage is restrained by law and is opposed to public policy.]
In this case, the validity of alienation of certain properties belonging to the joint family by the
Karta of the family was in issue. The substantial question of law was whether the taking of
the debt by a major member of the family for the marriage of a minor member of the family
is a debt incurred for a legal necessity or is for illegal purpose?
The Karta of the family executed a mortgage, a submortgage and a sale of two houses (JFP)
worth around Rs. , 8,000-9,000 for a consideration of Rs. 400-900 for the alleged necessity of
marriage of his three minor children who were in the age 'group of 8-12 years.
. The court held that where the marriage of the minor was performed in violation of the
provisions of the Child Marriage
Family Law - II
Restraint Act, 1929, the debt having been incurred for that purpose, which was not lawful, cannot be
regarded as a lawful debt and alienation on that ground cannot be regarded as a lawful alienation
binding upon the minors If the property was mortgaged or sold for the purpose of marrying minors, such
transactions would be opposed to public policy, in view of the prohibition of child marriage under the Act of
1929. The Bombay High Court in Ramhhau Ganjaram and the Orissa High Court in Maheskwar Das v
Sakhi Dei (AIR 1978 Ori 84) case similarly opined^
.Also, the Calcutta High Court in Hansraj Bhuteria held that when the minor's estate is in the hands
of a receiver appointed by the court and an application is made on behalf of the minor for the sanction of
the expenditure for the marriage of his minor sister with a minor boy, the court should not sanction
such expenditure for facilitating the child marriage \ within the meaning of the Act in British India. The
application could not be granted as the court should not facilitate conduct which the legislature in British
India had made penal even if such marriage was not punishable according to law of Bikaner.
The court did not found the view taken by the Allahabad High. Court in Parasram v Smt. Naraini
Devi (AIR 1972 All 357) and *hat by the Punjab and Haryana High Court in Rulia v Jagdish (AIR
1973 P&H 335) to be correct. In the latter case, it was held that where the Karta effected sale of the
ancestral land to make provision for the marriage of his son who was nearing the age when he could
have been lawfully married, the sale was a valid sale for necessity.
(In the present case, the court also reasoned that the members of the family (brothers and mother
of the minor children) were earning and there was no need to sell the family property to raise the money.
Also, the property was grossly undervalued and if there was a need of money, the transfers should have
been effected for an adequate consideration^
Partial Necessity
LEADING CASE: ARVIND V ANNA (AIR 1980 SC 645)
[Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk
of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted
for will not invalidate the sale.
Thus, for an alienation to be valid it has to be seen that the consideration received is adequate and that it
has been properly utilized i.e. there was legal necessity or benefit to the estate.].
In this case, the Karta executed a deed of mortgage in favour of father of the appellants for a sum of
Rs. 1,600 in respect of a single item of land. Later, he executed another deed of mortgage in favour of
the same mortgagee for a sum of Rs. 1,000 in respect often items of land including the land previously
mortgaged. Both the mortgages were possessory mortgages but it appears from the evidence that the
land was leased back to the mortgagor for a stipulated rent (the mortgagors started living in their own
premises but were required to pay rent to the mortgagee).
The Karta died leaving behind him an adult son and two minors. The adult son purporting to act as
the manager of the joint family and the guardian of his minor brothers executed a sale deed (for a
consideration of Rs. 3,000) in favour of father of the appellants in respect of four out of the ten items of
land mortgaged. The other six items of mortgaged properties were released from the mortgage and came
back to the family.
The two minor brothers, on attaining majority, filed a suit for a declaration that the aforesaid sale
deed was not for legal necessity and not for the benefit of the estate and, therefore, not binding on them
The trial court found that there was legal necessity for the sale to the extent of Rs. 2,600 only, that the
consideration of Rs. 3,000 for the sale was inadequate as the lands were worth about Rs. 4,000, that
there was no such compelling pressure on the estate as to justify the sale and therefore, the sale was not
for the benefit of the family.
74 Family Law - II
, The Supreme Court upholding the validity of sale held that the sale was for legal necessity
as it had the effect of releasing six items of properties from the burden of the mortgage. The family was
also relieved from the burden of paying rent to the mortgagee under the lease back. Further, the
consideration was not grossly inadequate. Where ancestral property is sold for the purpose of
discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the
fact that a small part of the consideration is not accounted for will not invalidate the sale.
In Gauri Shankar v Jiwan Singh (AIR 1927 PC 246), it was found that Rs. 500 out of the price
of Rs. 4,000 was not fully accounted for and that there was legal necessity for the balance of Rs.
3,500. The Privy Council held that if the purchaser had acted honestly, if the existence of a family
necessity for a sale was made out and the price was not unreasonably low, the purchaser was not
bound to account for the application of the whole of the price."^
Comments - Where the property is sold with an intention that the sale proceeds are to be applied for a
legal necessity, but the amount realized is in excess of the requirement and the excess amount is not
substantial, the sale would be valid in its entirety (Ram Sunder Lai v Lachmi Narain AIR 1929 PC
143).£However, where the excess amount is substantial, the sale would be termed as for 'partial
necessity' and would be partially valid; it would bind the shares of the other coparceners to the
extent of the necessity only (Benaras Bank v Hari Narain AIR 1932y PC 182).(For example, where
the property is sold for Rs. 43,500, but" the necessity was for Rs. 38,000. It is necessary to
establish in these cases that the alienee had acted in good faith and after making due inquiries.]
(b) Benefit of Estate

According to Mitakshara law, a karta can alienate the joint family property for the sake of the family i.e.
kutumharthe. Broadly speaking, 'benefit of estate' means anything that is done which will benefit the JFP.
The term contemplates 'defensive transaction' as well as 'prudent transaction/ The following is the case-law
on the point.
75
(i) In Palaniappa v Deivasikamony (1917) PC 68, the Privy Council said that it is impossible to define
the word 'benefit of estate' for all cases.. But some instances are: preservation of estate from
extinction, the defence against hostile litigation affecting it, protection of it from injury, and such like
things. It may be noted that in all these instances, there was threat to estate. Thus, only that will be
'benefit of estate' which is of a defensive character., (ii) In view of the above decision, anything done
merely to improve the property will not amount to benefit of estate. However, this view seems to be no
longer valid. The other view is that anything done which is of positive benefit or advantageous to the
estate would amount to benefit of estate. In Balmukund v Kamla Wati (AIR 1964 SC 1385), the
Supreme Court observed that for a transaction to be regarded as the benefit of the estate it need not be
of defensive character.
(iii) The test is of prudent owner' (caution, foresight and absence of hasty, reckless and arbitrary
conduct). Anything which a prudent person can do in respect of his own property, the karta can do in
respect of JFP. The karta, as prudent manager, can do all those things which are in the furtherance of
the family's advancement or to prevent probable losses, .provided his acts are not purely of a
speculative or visionary character (Nirmal v Satnam AIR 1960 Raj 313). However, the degree of
prudence required from the karta is higher than the level that is expected of a person when he deals
with his exclusive property (Balmukund v Kamla Wati). (iv) This implies that the karta cannot
alienate property merely for the purpose of enhancing its value or convert property into money just
because' the property does not yield any income, without replacing it with some more advantageous
property. But if the karta's power is to be continued to purely defensive acts, there would be no
progress and the family would stagnate (Ram Nath v Ghurantial AIR 1935 All 221). In other words,
sale of property to convert it into money simpliciter or to spend it into speculative transactions (e.g.
stocks/shares/chit funds) would not amount to benefit of estate, even if the consideration fetched after
the sale of property is in excess of the market
Family Law
- II
value. If the intention was to use the money raised for the purchase of more productive land, the sale
would be for benefit of estate.
(v) The following transactions were held to be for the 'benefit of estate':
(a) Karta sold a property which was 18-19 miles away (thus inconvenient to manage it) and purchased a more
accessible property [Jagatnarain v Mathura Das, ILR (1928) 50 All 969].
(b) Sale of property to enable the family to migrate to another place and to purchase more productive lands
there (Desari v Desari'AIR 1973 A.P. 215).
(c) Karta, running a hotel business, mortgaged the family property with a view to raising funds for renovation
of hotel (Gallamudi v Indian Overseas Bank AIR 3978 A.R 37). Thus, investment in family business is
a benefit to the estate.
(d) Land yielding no profit sold to purchase land yielding profit (Hari Singh v Umrao Singh AIR 1979 All 65).
(e) Land worth Rs. 15,000 offered a price of Rs. 1.5 lakh (A.T. Vasudevan' case AIR 1949 Mad 260).
(f) A mortgage of property so as to use the loan for purchase of a share in the village property, to consolidate
the existing share (Beni Madho v Chander Prasad AIR 1925 Pat 189).
(g) Mortgage of the property for money at a less rate of interest for the purpose of repaying a debt at a
higher rate.
(h) Sale of a portion of property to make the family landlords instead of tenants (Baijnath Prasad v Bindi
Prasad AIR 1939 Pat 97) or sale to reclaim a portion of property to prevent it from leased to others.
Similarly, a gift of a small portion of land to defeat the pre-emption claim of the family property [Mohib
Ali Khan v Baldeo Prasad (1939) ILR All 305].
(i) Application of sale proceeds for making additions and improvements in the family home (Ramrichpal v
Bikaner Stores AIR 1966 Raj 187).
77
(j) Within reasonable limits, transfer of a property to a company with a view to preserve it.
(k) A sale of a house in a dilapidated condition, in respect of which a notice has been issued by the
municipality to pull it down.
(vi) The following transactions were held not to be for the benefit of estate:
(a) Entire homestead land was sold for the purpose of buying another piece of land for construction of a
residential house. Held that the sale could not be considered to be an act of prudent management for
benefit of estate or legal necessity, as there is no evidence that the house sold was dilapidated or that
the consideration was gainful {Surendranath v Sudhir Kumar AIR 1982 Ori 30).
(b) Borrowing money on the mortgage of joint family property for purchase of a house [Selleppa v
Suppan, 1LR (1937) Mad 906].
(c) Transactions merely for the purpose of purchasing another property, or for increasing the income of
the family, or that the property was fetching higher price than the market rate.
d) An alienation by father of the entire family property with a view to stay with his father-in-law since his
wife was not willing to come and stay with him.
(e) A permanent lease of land for a fixed rent (Palaniappa v
Deivasikamony).
f) Alienation for acquisition of mortgage rights in the property of the brother who has separated from the
family [Hans Raj v Khushal Singh (1933) ILR 14 Lah 162].
(vii) In each case the court must be satisfied from material before it that it was in fact such as conferred
or was reasonably expected to confer benefit on the family 'at the time it was entered into.' What
was once for the benefit of the estate may not be the same in a changed set of circumstances and in
fact may be just the opposite.
78
Family Law - II
In Sital Prasad Singh v Ajablal Mander (AIR 1939 Pat 370), it was held: In exceptional circumstances,
the court will uphold the alienation of a part of the joint family property by a Karta for the acquisition of
new property as, for example, where all the adult members of the joint family with the knowledge
available to them and possessing all the necessary information about the means and requirements of the
family are convinced that the proposed purchase of the new property is for the benefit of the estate.
^Conclusions - Whether transaction is for the benefit of estate or not is to be decided keeping in mind the
facts and circumstances existing at the time of transactions and not by looking at the ultimate result of one
transaction many years later. Factors like, status and position of family, nature of property
(movable/immovable), difficulty in managing it, nature and quantum of yield from transaction, etc., are
important in determining whether transaction should be upheld as beneficial to the family, i
LEADING CASE: BALMUKAND V KAMLAWATI (AIR 1964 SC 1385)
[When the alienation of JFP by the Karta was not for any legal necessity or benefit to estate, the said
alienation is voidable at the instance of coparceners.]
. Facts - In this case, the plaintiff desired to acquire a particular " share of land held by the joint
family of karta and his brothers. A contract was entered into by the karta regarding the said land,
but karta failed to execute sale deed in his favour. The brothers of karta defended that the transaction
was not binding on them because the sale was not for the benefit of family nor there was any
necessity.
The plaintiff contended that the sale was beneficial to family, as their fractional share in land
which they sold is not of practical benefit to them, and by converting it into money (sold at more than
market value) the family stood to gain. The manager of a joint Hindu family has power to sell...not
only for a defensive purpose (to avert an imminent danger) but also for where circumstances are such
that a 'prudent owner' of property would alienate it for a consideration which he regards to be adequate.)
79
Ôbservations and Decision - The karta, as 'prudent manager', can do all those things which are in
furtherance of family's advancement or to prevent probable losses, provided his acts are not
purely of a speculative or visionary character. This implies that karta can't convert family property
into money just because property doesn't yield any income, without replacing it with some more
advantageous property. But, if the karta's power is to be continued to purely defensive acts, there
would be no progress. In A.T. Vasudevar’s case, the court held that the karta can alienate...if it is
clearly beneficial, even though there is no legal necessity. If a land not yielding anything is sold,
then it is...benefit
Thus, in each case, the court must be satisfied that "it was, in fact, such as conferred or was
reasonably expected to confer benefit on the family at the time it was entered into." In the
present case, there is nothing to suggest that the karta found the property difficult to manage or
that the family was incurring losses by it, nor there is anything to suggest that idea was to invest
sale proceeds in some profitable manner. The consolidation of property by the plaintiff doesn't
make a benefit to estate. Also, as brothers of the karta were adults, their consent as coparceners is
necessary. In view of the opposition of alienation by coparceners, and the fact that the alienation
was not for any legal necessity or benefit to estate, the said alienation is voidable at the instance of
coparceners.
(c) Indispensable/ Religious Duties

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

sin
In Mitakshara (Chapter 1, Section 1, v. 28], it is stated: "Even a single individual may conclude a
donation, mortgage, or sale of immovable property, during a season of distress, for the sake of the
family and especially for pious purposes." Pious purposes include a 'charitable' purpose besides a
'religious' purpose. "In the Hindu system there is no line of demarcation between religion and charity.
On the other hand charity is regarded as part of religion" (Mukherjea's Hindu Law of Religious and
Charitable Trust, 2nd Edn., p. 12).
t The 'totality' of the property can be alienated for legal necessity or for the benefit of estate or for
the performance of indispensable religious ceremonies (e.g. marriage, death), but only a 'small portion'
of the property can be alienated for pious purposes. In Gangi v Tammi (1927) 54 IA 136, the Privy Council
said that a dedication of a portion of family property for the purpose of religious charity may be validly
made by the karta, if the property allotted is small as compared with the total means of the family. Such
alienation cannot be made by a Will.
Father's (Special) Power of Alienation

Father is usually the Karta of the family (being the seniormost male member), and, possess the same
powers of alienating the JFP. However, he also possesses some 'special powers' in relation to the JFP. In
other words, where the Karta happens to be the father, he has wider powers of alienation:
(i) Gift of love and affection of a reasonable property to his daughter (discussed later).
(ii) Sale or mortgage of the property for payment of his antecedent
debts (personal) not contracted for illegal or immoral purposes
/ (Chet Ram v Ram Singh AIR 1922 PC 247). The debt may be
incurred in connection with a trade started by him or for
constructing a house.
It may be noted that where the Karta is the 'elder brother', the younger brothers are not bound by the
alienation to satisfy his personal debts unless it is for legal necessity or for benefit of the family [Kolasani
Sivakumari v Kolasani Sambasiva Rao, 2000 AIHC 2512 (A.P.)].
/
it may also be noted that though a son gets a right by birth in the JFP of his father equal to his, yet
the father has more powers e.g. in the matter of gifts through love and affection, alienations for the
discharge of his antecedent debts, and, effecting a partition amongst his sons
Alienation by Father of JFP in favour of Daughter
LEADING CASE: SUNDER YADAV v ASHA KUMARI (AIR 2009 Pat 131)
[When the father happens to be the Karta of the family, he has some special powers to dispose of the
JFP unlike an ordinary Karta of the family. Thus, he can sell the JFP without the consent of his sons in
favour of his daughter for the satisfaction of the debts.
In this case, the issue was whether a father as a Karta can sell the JFP without the consent of his sons
in favour of his daughter for the satisfaction of the debts she contracted while looking after him in
wake of the neglect of the sons.
The father (Karta) had two sons and two daughters. He purchased some lands and executed a
registered sale deed in favour of his wife's brother and another property in favour of his daughter. The
sons who in pursuance of these sales were dispossessed of the property, challenged the validity of both
the sales pleading that the property was JFP; they were coparceners and without their consent such
sales would be void.
The High Court observed and held: When the Karta happens to be father as well, he has special
powers of alienating coparcenary property which no other coparcener has. In the exercise of these
powers he may make a gift of the ancestral property or may sell or mortgage ancestral property
whether movable or immovable including the interest of his son, grandson or great grandson therein for the
payment of his own antecedent debt (not incurred for immoral or illegal purposes). Thus, the powers of
an ordinary Karta and Karta who happens to be the father are slightly different.
In the present case the court noted that it was in evidence that when the Karta became old, the sons
neglected him: did
83
COPARCENER'S POWERS AND RIGHTS (ALIENATION OF JFP)
Coparcener's Power of Alienation

The ownership of the coparcenary property is with the coparceners, and if there are several
coparceners, the whole of the property can be alienated with their consent ('Alienation by all adult
coparceners as one body'). If the alienation is for legal necessity or for the benefit of the estate, it
will bind the non-coparcener members also. If the alienation is otherwise, it will operate subject
to their rights in that property (viz. right of maintenance).
The Mitakshara didn't permit 'individual alienations' by coparceners. This is in view of the nature
of the JFP, also known as coparcenary property (a coparcener may be said to own interest in the
whole property in unison with all the other coparceners). According to Mayne, such alienation
without partition (i.e. undivided interest) would have the effect of introducing strangers into the
coparcenary, without their consent and defeating their right of survivorship.
However, where an 'undivided coparcener' incurred a financial liability by taking a loan or
otherwise, and had no other property for the satisfaction of this loan or pecuniary liability, he could
plead his inability to pay off the debt on the ground that the undivided interest could not be
alienated. Though nothing would ordinarily prevent him from enforcing a partition and selling his
share, or the family could collectively decide to alienate the property to pay off the debt, in
absence of such a decision taken either by the coparcener or the Karta, the creditors could be put to
a disadvantage. These beneficial provisions that were meant to protect the interests of the family
members could be misused or exploited by them to their undue advantage and to the disadvantage
of the creditors or third parties.^
This rigidity (or inequity) was broken by the courts by directing that the money decree be
enforced against the undivided interest of the coparcener [Deen Dayal v Jugdeep Narain (1877) 4
IA 247; Dropadi Devi v Jagdish AIR 1989 Raj 110]. Such interest when sold through a court
auction, could be purchased by any person. This was the starting
5. Id., p. 185.
84
Family Law
- II
point of 'judicial permissibility of involuntary alienations of the undivided interest of a coparcener.' The court
reasoned that such alienation (whether voluntary or compulsory) though inconsistent with the strict theory
of a joint Hindu family, is founded upon equity, which a purchaser for value has to be allowed to stand
in his vendor's shoes and to work out his rights by means of a partition ('Equitable rights of alienee for
consideration'). Further, under the Mitakshara law, there was special emphasis on the payment of debts
and therefore, the sanctity that was attached to this obligation enabled them (the courts) to allow so?)
The law of coparcener's power of alienation is, thus, the product of judicial legislation:
(1) Undivided interest of a coparcener can be attached and sold in execution of a money decree against him
(payment of debts) Involuntary alienation* However, it can't be executed against the interest of
coparcener after his death. But, if interest has been attached during his life-time/or before judgment and
coparcener dies during pendency of suit, his interest can be sold. Thus, if the coparcener dies before the
filing of the suit by the creditor or before his undivided interest could be attached by the court, such
undivided interest then, could not be attached by the court. As on the death of a coparcener, his undivided
interest devolved by survivorship, on the surviving coparcener and he left behind nothing that could be
attached.
(2) A coparcener is entitled to alienate his undivided share either in the whole of property or in a certain
specific item of property - Voluntary alienation'.] According to Bombay, Madras, M.P and J&K High
Courts, a coparcener has power to sell, mortgage or alienate for value (consideration) his undivided interest
without the consent of other coparceners; but in rest of Mitakshare jurisdiction, consent is required. In the
former, non-alienating coparcener's only right is that property should bear proportionate share of common
burden of family.
In Ponnamma v Aspinwal (AIR 1988 Karnt 99), it was held that in areas where a coparcener is
permitted to alienate his undivided share a mortgage effected by a coparcener will be valid to the extent
of his share and the mortgagee's rights will be unaffected with the deaths and bi.ths of other coparceners in
the family, j
85
According to Mitakshara law prevailing in Bengal, Bihar, Orissa, U.P., Punjab and Delhi, a
coparcener cannot sell his undivided interest even for consideration) without the consent of the
other coparceners, en where it is in favour of another coparcener.
Alienations without Consideration

Though the concept of voluntary alienation has been recognized in some States, the gifts and
Wills were not recognized due to there being no equity in the favour of alienee. After 1956, the
individual coparcener in dispose of his undivided interest by Will vide Sec. 30 of the Hindu accession
Act. But as regards gifts, the law, even after 1956, is the same and no coparcener can make a valid
gift of his undivided interest, such a transaction is void. However, he can make a gift with the
3nsent of other coparceners provided it is in favour of all other aparceners.
A 'Gift' is the transfer of certain existing movable or immovable property lade voluntarily and without
consideration. In case of 'separate/self-acquired' property, a Hindu has competence to dispose it by
way of gift; the only limitation is that if any person (e.g. female members, minors) has a right to
get maintenance out of the property to be gifted, hat right cannot be prejudiced.
In case of 'joint family property', if all the coparceners are adult hey can make a gift of the JFP
by unanimous consent. Whether an ndividual coparcener can gift a JFP depends upon his status i.e.
is he m ordinary coparceper or the Karta or the father. (
, An 'ordinary coparcener' cannot make a valid gift of undivided share unless it is with the
consent of all the coparceners (T. Venkatasubramma v Rattamma AIR 1987 SC 1775) or is in favour
of all the coparceners to the extent of his total share {Ram Saran v Prithipal AIR 1950 All 224).
Thus, a gift by a coparcener in favour of another coparcener, to the exclusion of others is void and
can be recovered back by the coparcener who had earlier executed it. This is the position even after
passing of the Hindu Succession Act, 1956. The object of this strict rule against alienation by way of
gift is to maintain the jointness of ownership and possession of the coparcenary property.
86
Family Law - II
[Note: The gift of JFP by 'Karta' and/or 'Father' has been discussed under the 'Questions Section.']
(b) Renunciation
A coparcener has power to 'renounce' his interest in the JFP, though * it does not amount to alienation.
However, a coparcener is empowered to renounce his share in favour of the other coparceners as a
whole. As a result of it, the shares of the other coparceners fluctuate and increase collectively. Once a
coparcener renounces his share he remains a member of the family (unless there is an intention to
separate), but his interest in the coparcenary property comes to an end. Thus, a son born to him
subsequent to such renunciation, will not have a right by birth, in the coparcenary property [Krishncm
Namboodri v Chena Kesavan AIR 1959 Ker 336].
A father may renounce his interest in favour of his sons on the condition that they will maintain him
(Guruswamy v Marappa AIR 1950 Mad 140).
(c) Will
A 'Will' is the legal declaration of the intention of a testator with respect to his property which he desires to
be carried into effect after his death.
Under the classical Hindu law, no coparcener, including a father (except in some situations, a sole
surviving coparcener) was empowered to dispose of his undivided share under a Will {Vaillammal Achi v
Nagappa Chettiar AIR 1967 SC 1153) even with the consent of the other coparceners. In fact,
'testamentary disposition' was opposed to the basic incidents of coparcenary, as a Will, if allowed to be
validly operative, could have frustrated the application of the doctrine of survivorship.
• However, after coming into force of the Hindu Succession Act, 1956, any coparcener can make a
valid Will with respect to his undivided share in favour of 'anyone.' The H.S. Act, which primarily deals with
succession to the separate property of a Hindu, specifically empowers an undivided coparcener to make a
testamentary disposition of his undivided interest. The expression used in Sec. 30, 'Notwithstanding
anything contained in the Act or in any other law for the time being in force', has an obvious reference
and clear intention of the abrogation of the classical Hindu law rule,
There is no limitation on the quantum of the property under a Will that can, be bequeathed. Further, it
can be given to any coparcener to all the coparceners, to his sons or to a non-coparcener, to a family
member or to a total stranger, to a living person or even dedicated to religious/charitable purpose.
However, the entire joint family properties cannot be disposed of by Will. A Will executed by the
father, of the entire JFP (including the share of the sons), even post 1956, will be invalid (V.K.
Thmmaiah v V.K. Parvathi AIR 2003 Karnt 245). \
Where a coparcener bequeaths his undivided interest, on his death, ne doctrine of survivorship would no
longer apply to his interest. The legatee (even a stranger) will step into his shoes and would be entitled
to ask for a partition and specification of the share as it stood at the time of the testator's
(coparcener's) death. Where a coparcener makes a Will of his undivided share, it is not necessary for
him to bring it to the knowledge of the Karta/other members. As a Will is operative only from the death
of the testator, the Karta can alienate the interest so bequeathed, during the lifetime of such coparcener,
for a legal necessity and a situation may arise that there may not be any property that can go under a
Will.
Sols Surviving Coparcener's Right of Alienation

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

88 Family Law - II
(4) If he makes a 'Will' of the property, and before his death (i.e. before the Will to become operative), another
coparcener comes into existence (subsequently born son or an adopted son), the Will, will become invalid
as he is no longer a sole surviving coparcener. It is only when at the time of his death he has the same
status (i.e. of a sole surviving coparcener), the Will, will be valid. In this case, it also does not matter that
there was a coparcener in the womb of his mother; the Will, will be valid.
(5) A 'gift' of the property by a sole surviving coparcener in favour of persons who looked after him is
valid (Ashwani Kumar v Rajinder Kumar AIR 2010 H.P. 44)
Coparcener's Right to Challenge Alienation by Karta 7

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

share when the Karta wants to sell the same for legal necessity without
consulting them. [D.U.-2008 (Supp.)]
89
sunil Kumar v Ram Prakash AIR 1988 SC 576) (discussed below), However, in case of waste or
ouster, an injunction can be granted [Sant singh v Mata Ram (1989) 1 HLR 214 (SC)].
(Where the coparceners do not consent to the alienation, they have two remedies in the
alternative/The first remedy is available when the transfer has not been effected by the Karta; the non-
consenting coparcener an demand his share in the JFP (i.e. partition) and cease to be a member of
the family. The Karta, then, cannot alienate his share.) Where tie coparceners, though against the
alienation, do not express their dissent by challenging it as invalid or by asking for partition and
ascertainment of their shares before it is effected, the alienation remains valid. The second remedy is
available when the transfer has been effected, The coparceners can challenge the validity of the
transfer in the court, on the ground that none of the categories for which the Karta is permitted in
law to alienate the property, existed.,
Where the challenging coparcener was a minor at the time of alienation, he can file a suit for
setting aside such alienation within three years of his attaining majority. A coparcener who is in the
womb of his mother 'at the time of alienation' can get the alienation set aside after his birth. Under
Hindu law a son conceived is, in many respects, equal to a son born. An after-born coparcener cannot
challenge the alienation. But if an alienation is made by a father who has sons and before all the sons
die another son is born to him, then such son can challenge the alienation; it is necessary that at the
time of his conception there must have existed an unexpired right among some coparceners to
challenge the alienation. It is settled law that a son adopted subsequent to alienation has no right to
challenge alienation^
Challenge to Alienation by Undivided Coparcener In the States where an undivided coparcener is
entitled to alienate his "interest in a Mitakshara coparcenary, such alienation cannot be challenged.
However, in the States where he is not permitted to do so, any coparcener in existence at the time of
the alienation, or was conceived and subsequently born alive, can set it aside with the court's help.]
In Balgobind Das v Narain Lai (1893) 20 I.A. 116, it was held that in Bengal, Bihar and U.P.,
on the suit of a coparcener, the alienation will be set aside wholly as under these schools a coparcener
has no
90
Family Law - II
right to alienate his undivided interest in the JFP. The non-alienating coparceners are also entitled to a
declaration that alienation is void in its totality.
Right to Challenge Alienation does Not extend to Right to Obstruct Alienation
LEADING CASE: SUNIL KUMAR v RAM PRAKASH (1988) 2 SCC 77]

[A coparcener cannot move the court to grant relief by injunction (temporary or permanent) restraining the
Karta from alienating the coparcenary property for a permitted purpose as ascertained by the Karta. An
injunction cannot be granted when a parry could obtain an efficacious relief by any other usual mode of
proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the
alienation made by the Karta.]*
In this case, the issue was whether a suit for permanent injunction by a coparcener against the father for
restraining him from alienating the house property belonging to the joint Hindu family for legal necessity
was maintainable,,
The lower court observed: At the outset it is to be noticed that in a suit for permanent injunction under
Section 38 of the Specific Relief Act by a coparcener against the father or Manager of the joint Hindu family
property, an injunction cannot he granted as the coparcener has got equally efficacious remedy to get
the sale set aside and recover possession of the property. Thus, a suit for permanent injunction by a
coparcener against the father for restraining him from alienating the house property belonging to the joint
Hindu family for legal necessity was not maintainable because the coparcener had got the remedy of the
challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. \
It has, however, been submitted on behalf of the appellant that the High Court should have held that in
appropriate cases where there are acts of waste, a suit for permanent injunction may be brought against the
Karta of the joint Hindu family to restrain him from alienating the property of the family.
Although the power of disposition of joint family property has-been conceded to the Manager of
joint Hindu family, the law raises no presumption as to the' validity of his transactions. His acts could
be questioned in the court of law. The other members of the family have a right to have the
transaction declared void if not justified. When alienation is challenged as being unjustified or illegal it
would be for the alienee to prove that there was legal necessity in fact or that he made proper and
bona fide enquiry as to the existence of such necessity. If the alienation is found to be unjustified, then
it would be declared void. Such alienations would be void except to the extent of Manager's share in
Madras, Bombay and Central Provinces. The purchaser could get only the Manager's share. But in
other provinces, the purchaser would not get even that much. The entire alienation would be void
[Mayne's Hindu Law, 11th Edn., para 396])
In the light of these principles, it was contended: First, that a" coparcener has as much interest as
that of Karta in the coparcenary property. Second, the right of coparcener in respect of his share in the
ancestral property would remain unimpaired, if the alienation is not for legal necessity or for the
benefit of the estate. When these two rights, are preserved to a coparcener, why should he not prevent
the Karta from dissipating the ancestral property by moving the court? Why should he vainly wait till
the purchaser gets title to the property
.The Supreme Court observed: The significance and social necessity behind 'collective ownership'
of JFP, and, the unique and vital position of the Karta/manager of the HJF cannot be overlooked. A
Karta may consult the family members and if necessary take their consent, but he is not answerable to
each of them. The Karta/manager has not only the power to manage but also the power to alienate
JFP so as to bind the interests of both adult and minor coparceners in the property, provided that
alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent
debt. Thus, managing the JFP is one of the inherent powers of the Karta.]
It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled
to separate possession
92
Family Law
- II
of the coparcenary estate. His rights are not independent of the control of the Karta. It would be for the
Karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger
to be averted. And it would be for him to examine as to how best the joint family estate could be
beneficially put into use to sub-serve the interests of the family. A coparcener cannot interfere in these
acts of management, j j Apart from that, a father-Karta in addition to the aforesaid" powers of
alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent
debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk
and the right and interest of coparcener will remain unimpaired in the alienated property.
No doubt the law confers a right on the coparcener to challenge the alienation made by Karta, but
that right is not inclusive of the right to obstruct alienation. For the right to obstruct alienation could be
considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the
right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The
other is a right to interfere with the act of management of the joint family affairs. The coparcener
cannot claim the latter right and indeed, he is not entitled to it. Therefore, he cannot move the court to
grant relief by injunction restraining the Karta from alienating the coparcenary property. An injunction
cannot be granted when a party could obtain an efficacious relief by any other usual mode of
proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the
alienation made by the Karta. The decision of the Punjab and Haryana High Court in Jujhar Singh v
Giani Talok Singh (AIR 1987 P&H 34) has correctly laid down the law. There it was observed at p. 348:
"If it is held that such a suit would be competent the result would be that each time the manager
or the Karta wants to sell property, the coparcener would file a suit which may take number of years
for its disposal. The legal necessity or the purpose of the proposed sale which may be of pressing and
urgent nature, would in most cases be frustrated by the time
93
the suit is disposed of. Legally speaking, unless the alienation in fact is completed there would
be no cause of action for any coparcener to maintain a suit because the right is only to
challenge the alienation made and there is no right recognized in law to maintain a suit to
prevent the proposed sale. The principle that an injunction can be granted for preventing waste
by a manager or Karta obviously would not be applicable to such a suit because the proposed
alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste by
any stretch of reasoning.
The Apex Court, however, made it clear that in case of waste or ouster, an injunction
may be granted against the manager of HJF at the instance of the coparcener. But nonetheless
a blanket injunction restraining permanently from alienating the JFP even in the case of legal
necessity cannot be granted.]!
ALIENEE'S DUTIES RIGHTS AND REMEDIES
Burden of Proof (Duties of Alienee)

The 'burden of proof in the case of alienation of JFP is on the alienee. An alienee is the person in
whose favour the transfer has been effected i.e. the transferee; he is the beneficiary i.e. the person who
claims the benefit of the alienation. Thus, alienee has to prove that the transaction entered into by the
Karta is for a legal necessity or for the benefit of the estate. The burden does not lie on the
alienor/transferor (Karta). This burden also does not lie on the coparcener who challenges the
alienation
( The logic behind is that where a transferee enters into a transaction with a transferor who is not
the exclusive owner of the property, but has limited or qualified powers of alienation, the duty is on the
transferee to act with caution and due diligence and enter into the transaction only when he satisfies
himself after making bona fide inquiries about the transfer being permissible in law. If the alienation is
in future challenged in a court of law and being declared invalid by the court, it is the alienee
94 Family Law - II
who has to suffer. Thus, he has a right to come forward to discharge the burden of proof. Otherwise the
Karta and other coparceners may collude against him. A bona fide alienee/creditor should not suffer when
he has acted honestly and with due caution, but is himself deceived^
I However, there are factual difficulties in the discharge of burden of proof by an alienee, for
example, the alienee cannot assess independently the needs of the family (a private matter of the family).
Further, he has no control over the proper application of money by the Karta. The courts have, thus,
relaxed the rules of burden of proof, making them practical, workable and rationale:
- The nature of inquiries by the alienee should be such as would be made by a 'reasonable prudent person.'
He has to not only prove the existence of a purpose, but he also has to show that the family had a legal
necessity, and for that he has to show that the family did not possess enough alternative financial
resources from which the required money could be raised and that there was sufficient pressure on the
family to sell or mortgage the property.
- The transaction should be finalized by the alienee only when he satisfies himself with respect to the
competency of the Karta to effect the alienation.
- The alienee must show that he had acted honestly and his actions were not mala fide i.e. he was not a
party to the mismanagement of property by the Karta If he was a party to such mismanagement, the
alienation in his favour is not valid. However, the alienee is not concerned whether the necessity arose
from an earlier mismanagement of the family property.
- The alienee has to prove that he had paid a fair price for the alienation. A 'need based' transfer can never be
for inadequate consideration. At the same time, he has to prove that the terms of alienation and the rate of
interest on the money borrowed were not unreasonable and onerous (i.e. very high), j
- The alienee is not bound to see the actual application of the money advanced or of the consideration and it is
sufficient for him to show that he had became a party to the transfer after making due inquiries^ In Prem
Singh v Dharam Singh (2005) 139 P.L.R. 334, the vendor (alienor) required money for the
treatment of a medical disorder. The vendee (alienee) proved that the vendor needed money for legal
necessity. It was held that the vendee had discharged his onus and just because the vendor was shown
to having money in the bank account is not enough to disprove the fact of legal necessity.
- The alienee is also not bound to go into the question as to what
mode of alienation, sale or mortgage, etc. would be better for
the family. The Karta has to decide it. j
- Recitals of necessity in the transfer deeds executed by the
Karta. are not conclusive proofs of the existence of a necessity
justifying the transfer, but are admissible in evidence, and if supplemented with other proof, can be of
importance with the passage of time. 1
Alienee's Rights and Remedies
(I) Authorised Alienations

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

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

There is a difference of opinion on the question whether the alienee has a 'right of possession' of the
specific properties alienated to him (by the undivided coparcener) before he seeks partition. It may be
noted that
8. For example, in a joint family, three coparceners collectively own a house and four pieces of land (A, B, C and D). One of the coparceners, X,
sells D, a land whose value was to the extent of one-third of the total property, to the purchaser. Since the entire interest is undivided, in a suit
for partition and handing over of the share to the alienee, he cannot insist on obtaining only land D, as which property will go to which
coparcener's share can be ascertained only after a partition. To claim a specific property would go against the basic incident of unity of
possession or collective ownership associated with coparcenary. That is why also alienee's suit for partition stands on a different footing in
comparison to a suit for partition filed by an ordinary coparcener, as it does not affect the status of the rest of the joint family. See P.
Pradhan Saxena, Family Law II, 3'" ed., p. 191 (2011).
97
once the partition is effected, the alienee can get an exclusive possession of the same. ,
where the property was in possession of the coparceners, including the snare alienated by one
coparcener, the purchaser (alienee) cannot claim joint possession with the other coparceners; he
can only sue for a general partition (Pandu v Goma AIR 1919 Bom 84). In case the property has
been delivered to the purchaser and he takes the possession, the other coparceners are entitled to have
joint possession with him, or they can file a suit for recovering possession from him. The discretion
lies with the court to either pass an order for eviction of purchaser (for instance, where the
purchaser is a stranger), or allow him to retain the joint possession as a tenant-in-common (for
instance, where the purchaser is a relative and has been in possession for a long time). (Where the non-
alienating coparceners do not want to have joint possession, the remedy is to sue for partition (Bhau
Laxman v Budha Manku AIR 1926 Bom 399). This is the position in Bombay
(in other States (Madras, U.P., W.B., Patna, M.P.), the purchaser does not "nave a right to joint
possession of the property with the coparceners. He can never be given joint possession, nor can he
become a tenant-in-common with the other coparceners. He has merely an equity to enforce his
rights by enforcing a partition .If the possession has been delivered to him by the alienating
coparcener, he can be ejected at the instance of the non-alienating coparceners (in a 'collective' suit).
The reason for not permitting him to have joint possession with the coparceners is to avoid the
introduction of a stranger into the family.
The Supreme Court in Manikayala Rao v Narasimhaswami (AIR 1966 SC 470) held that it is
well settled that a, purchaser cannot claim to be put in joint possession with the other coparceners.
He has only the right to ask for a general partition of the family property.
(IV) Refund of Consideration in Unauthorised Alienations

When alienation is invalid and set aside by the court (on the ground that it was not permitted under
Hindu law), the alienee is not entitled to any equity or charge on the alienor's share for the money
paid by alienee to him. The alienee, however, can proceed against the alienor personally, for a refund
of the amount (consideration) that was advanced by him.
98 F a m i l y Law - II
The alienee would be entitled to a refund of the amount by the coparceners, only where he is able to
prove that the consideration that he had paid went to the joint family assets or were used in paying off
charges on the property (Permanayakam v Sivaraman AIR 1952 Mad 419). Thus, the alienee has to show
that the coparceners had benefited from the consideration; otherwise there would be no refund. Where the
coparcener who sued to set aside the sale, had taken a benefit or an advantage out of the money paid by
the alienee, the court will set aside the alienation subject to the condition that the coparcener refund the
money to the alienee. This is based on equity.
Where the alienation is by the Karta (not being the father), the Karta alone is liable, and the
coparceners are not bound to refund the money paid by the alienee, for an unauthorized alienation.
Where the sale is completely invalid, it is not obligatory on the son to refund the amount paid by the
alienee to the father. But, where the sale is partially valid, it will be set aside on the condition of refund
of the excess amount. In Permanayakam v Sivaraman (AIR 1952 Mad 419), the father of a Mitakshara
joint family sold some family property for consideration. His son attacked the sale, as he and his father were
undivided on the date of the sale and the sale was neither for any legal necessity nor for benefit of estate.
As a result of this, a decree for partition and recovery of possession of son's half share in properties
was granted, without making any provision for payment by son of a proportionate (half) share of binding
consideration to alienee.
The High Court, however, held that the son has to pay it. The court observed: If a non-alienating
coparcener challenges the sale made by father/karta on the ground that it is not binding on him but
institutes a suit only to recover his share in property alienated, thereby admitting the right of alienee to the
other share, and if it is found that alienation is supported by partial necessity, the common burden
discharged from and out of the consideration should be distributed proportionately.
The court also held that if alienation is made either by father/karta/ coparcener, though purporting to
be for value, is in fact a devise to make a gift and not transfer for consideration, the alienation is void. A
non-alienating coparcener is otherwise entitled to dispute the adequacy or fairness of the consideration
and his only right is to insist that the property alienated should bear proportionate share of the common
burden of family.
FURTHER QUESTIONS
Q.1 Discuss the validity of the following sales of the joint family property made by the karta of the Hindu joint family. Also,
discuss the nature of rights and remedies available to alienee.
(1) Sale of a part of joint family property to meet the expenses of the re-marriage of a widowed daughter.
(2) The joint family land is sold by the karta to meet the expenses of his daughter's marriage, but the amount is spent by him in
gambling.
(3) Karta sold the dwelling house to meet the expenses of higher education of his second son SB. Karta, himself and his first
son SA are employed as peons in a Government office.
(4) Karta, aged 45 years, sold some portion of ancestral property to perform his own second marriage.
(5) Karta sold some ancestral property for the second marriage of his brother Naresh, after the death of Naresh's wife.
(6) A house of the joint family is sold to meet the expenses of appeal to defend one of the coparceners, convicted by the lower
court, of raping a minor girl and then killing her.
(7) Karta mortgaged the jewels belonging to the family for obtaining money for the purpose of assisting prosecution of person
accused of murder of his (Karta's) daughter.
[L.C.II~94/95/96; C.LC.-91/95\
A.1 Karta's Power of Alienation: Legal Necessity
Alienation (transfer of property by an act inter vivos i.e. gift, sale, etc.) is a very important, though
controversial, power vested in the karta. The karta can alienate the joint family property only in three
circumstances:-
(i) Apat Kale (time of distress/emergency i.e. legal necessity). For details see the text.
(ii) Kutumb Arthae (benefit to estate).
100 Family Law - I!
(iii) Dhuram Arthae (for the sake of indispensable religious duties;
Alienee's Duties and Rights/Remedies

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

1) There is a special duty towards 'daughters' on the part of karta and other coparceners, in Hindu law.
Moreover, it is a policy of law to encourage remarriage. Also daughter not being a coparcener can
claim her (second) marriage expenses from JFP (under the head of 'maintenance'). Therefore, the
alienation by karta is supported by legal necessity.
(2) If the alienee has made a proper and bona fide enquiry as to the existence of legal necessity, then he is
not required to see that the money is applied to the legal necessity for which it was taken. Thus, the
alienation will be valid in such a case.
(3) Selling of the dwelling house for higher education of his second son by karta, when the karta himself
and his first son were peons, cannot be justified on account of legal necessity, as in this case the
pressure upon the estate cannot be regarded as serious and sufficient. In other words, the family's need
for higher education of karta's son was not serious enough to sold off the dwelling house. The 'legal
necessity' means need, not luxury.
(4) Second marriage of the karta is not a legal necessity and if he wants second marriage it would be in the
fairness of things to use his own assets. Moreover, karta's liabilities and responsibilities towards family
members are numerous; he has to sacrifice a lot. Alienation of JFP for his personal benefits (like his
own second marriage) is not expected of him.
(5) In Bhagirathi v Jhoku Ram, ILR (1910) 32 All 475, it was held that the second marriage of a coparcener
can be held to be legal necessity depending upon the facts and circumstances of the case. But in Patel v
Lakkireddigari (AIR 1947 Mad 379) and Onkar v Kishan Singh (1930, Nagpur High Court), it was held
that first marriage of coparcener is a legal necessity because it is a religious duty to marry. However, second
marriage of the coparcener is not a legal necessity and if a coparcener wants second marriage it would be
in the fairness of things to use his own assets.
102
Family Law - II
(6) Defence of a family member involved in a serious criminal charge has been held to be legal necessity
[Beni Ram v Man Singh, ILR (1912) 34 All 4], unless the charge is of murder of a family member. It has
been held that to spend joint family money for assisting the prosecution of a person accused of murder of
the member of the family is not legal necessity because prosecution of murderers is the duty of the State
[Maruthappan v Niraikallathan (1937) Mad 943].°
Q.2 Explain in brief: Concept of 'Benefit of Estate.' [D.U.-2G08\
Discuss the validity of the following sales of the ancestra property made by the karta of the joint family:
(1) Karta sold the paddy field in order to escape the risk of successive droughts which he had experienced earlier. Out of the sale
proceeds he constructed a 5-star hotel and a sprawling shopping complex.
(2) The joint family have extensive coparcenary propertie including a valuable piece of land in Faizabad, near Ayodhya Karta is
anxious to sell away the land, in view of the alleged deteriorating law and order situation of the State. Seth Govind Ram is
eager to purchase the land. He approaches Kart and makes a lucrative offer of Rs. 10 lacs.
(3) The family owns agricultural land, situated 40 km away from the town where the family resides. The land has not been
cultivated for the last few years because karta and his firs son are not keeping good health and his second son is minor. Karta
sells the land at the market rate and deposits the money in a bank.
9. A Hindu joint family comprised of two brothers A and B, their wives, two sons
and a daughter of A (AS1, AS2 and AD) and two sons of B (BS1 and BS2). A
daughter, AD, who was 19 years old eloped with a man of lower caste and
this left the family stunned AS1 vowed to kill AD to save the family honour and
took out the pistol BS1 tried to pacify him, but in the scuffle between them
BS1 died of gunshot. AS1 was booked for the murder of BS1 and in order to
give him the best legal assistance, A sold the entire JFP without taking the
consent of the other coparceners. B, however, challenges the validity of the
alienation. Decide. [D.U.-201
(4) The family owns an ancestral house in Shakti Nagar. Karta sells the house and purchases another house a few yards away
without the consent of his two sons.
(5) The family owns a land (1000 sq. yds.) in Patna. Since the family finds it very difficult to manage it, karta sells it and with
the sale proceeds, buys another land (300 sq. yds.) in Delhi.
(6) A house belonging to the joint family worth Rs. 50,000 is sold by the karta for Rs. 80,000.
(7) Karta sells a joint family house worth Rs. 80,000 for Rs. 50,000 with a view to deposit the money so received in a Bank for
earning interest.
[C.LC-92/93/94/95; LC.II-94/95/96]
A.2 Karta's Power of Alienation: Benefit to Estate
According to Mitakshara law, a karta can alienate the joint family property for the sake of the family, i.e.,
kutumbarthe. Broadly speaking, 'benefit of estate' means anything that is done which will benefit the
JFP. The term contemplates 'defensive transaction' as well as 'prudent transaction.' For det see the text.
Decision of the case(s) in question

(1) The alienation made by karta in order to build a hotel and a shopping complex appears to be for the
benefit of the estate. It is like land yielding no profit sold to purchase land yielding profit. Thus the karta
has acted as a prudent person and the alienation can be justified.
(2) The karta cannot convert family property into money just because the property does not yield any income,
without replacing it with some more advantageous property. Thus, such a transaction cannot be said for
the benefit of the estate, unless it is shown that the sum of Rs. 10 lakhs was to be profitably invested.
Moreover, where other adult coparceners are in existence, judgment is not alone of the karta but other
coparceners as well.
(3) The said transaction is not for the benefit of the estate, as land is safer and more stable property than
keeping the money in the
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Family Law
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bank and earning interest on it. Thus, the transaction is not advantageous.
(4) In this case also the transaction is not advantageous, as there is no profit in selling one property to
buy a similar property.
(5) Here, karta has acted as a prudent person and the alienation made by him is for the benefit of the estate
{Jagal Narain v Mathura Das AIR 1928 All 454, similarly decided).
(6) The transaction is not for the benefit of the estate. See answer to part (2) above.
(7) The transaction is clearly not for the benefit of the estate. See answer to part (3) above.
Q.3 A Mitakshara coparcenary consists of Rohit, the Karta and his two adult sons, Sonu and Monu. The family lives in Raigarh.
They have extensive coparcenary properties in the form of 40 miles away from Raigarh. Rohit sells the land to Pawan and
utitlises the sale proceeds for the following purposes:
(i) making additions to and improvement in the family house;
(ii) discharging a debt taken by Rohit's father for gambling purpose; and
(iii) for the marriage of Rohit's 16 years old daughter.
Sonu and Monu challenge the alienations that it is not binding on them as they never consented to such transaction and are
not for legal necessity or benefit of estate. Decide. Also discuss the rights and remedies of Pawan if transaction is effected.
[D.U.-2009]
A.3 (i) Application of sale proceeds for making additions and improvements in the family home has been held to
be for the 'benefit of estate' (Ramrkhpal v Bikaner Stores AIR 1966 Raj 187). Sonu and Monu could not
challenge it.
(ii) A son is under a pious obligation to pay his father's debts (not immoral or illegal) incurred when they were
joint {pre-partition debt). In the present case, Rohit's father took debt for gambling purposes, which is
illegal as well as immoral. Thus, such
alienation by Rohit is not for legal necessity or benefit of estate. Sonu and Monu could challenge it. i)
A debt incurred for the marriage of a minor child cannot be said to be for lawful purpose, as a child
marriage is restrained by law and is opposed to public policy (Dev Kishan v Ram Kishan AIR 2002
Raj 370). Thus, such alienation by Rohit is not for legal necessity. Sonu and Monu could challenge
it. For rights and duties of alienee (Pawan), See A.l.
3.4 (a) A karta of a JHF mortgaged some items of family property
representing to the mortgagee that the money was needed
for paying off actually existing family debts. But he diverted the
money for purchasing a farm-house. Minors in the family
challenge the alienation. Decide. [L.C.l- 95
(b) A JHF comprises of karta, two major sons and three minor
sons. Karta sells the family land of 5 acres in a village to X,
who was holding 95% of the village land. The market rate of
the land was Rs. 1,750 per acre but the same was sold at
the rate of Rs. 2,500 per acre. The minor sons challenged the
said alienation. Decide. [L.C./-94]
(c) A Mitakshara karta agrees to sell 2 acres of agricultural land

owned by the family at double the market price, make a gift
of a small family house to his widowed sister and mortgages
family -esidence to add apartments of first floor to increase
the family income by renting out the same. Determine the
validity of the above transactions. [LC./-96]
,4 (a) If the alienee has made a proper and bona fide enquiry as to the existence of legal necessity, then
he is not required to see that the money is applied to the legal necessity for which it was taken. Thus,
the alienation will be valid in such a case. Minor sons cannot challenge the said alienation. (b) It has
been held that the transactions merely for the purpose of purchasing another property, or for increasing
the income of the family, or that the property was fetching higher price than the market rate, cannot be
said to be for the benefit of estate {See A.2). thus, the karta, in the present case, cannot make the
106
Family Law - II
alienation of land on the ground of 'benefit of estate'. However, he can alienate the land with the consent
of other adult coparceners.
The position of minor coparceners is that they cannot challenge the alienation, if made for the benefit of
estate or legal necessity; but they can challenge the alienation if it was not for the benefit of estate, etc.
(and even if the other adult coparceners have consented to it) on their attaining the age of majority.
(c) The selling of agricultural land cannot be said to be for the benefit of the estate, unless the karta can
show that he is investing the money in a profitable manner.
The karta can make a gift of a reasonable extent of joint family property to a daughter or sister under
varying circumstances {Guramma v Mallappa AIR 1964 SC 510).
The transaction (mortgaging of family residence) merely for increasing the income of the family
cannot be said for the benefit of the estate.
Q5. Dinanath and his son Amar constitute a Mitakshara coparcenary. The family is an agricultural family. Dinanath borrows Rs.
80,000/- from a bank mortgaging JFP. He utilizes the amount for renovating the ancestral house, for running it as a lodging
house. Two years later Dinanath dies in an accident. The bank seeks to enforce mortgage. Amar contends that the mortgage
is not binding on him. Decide.
Would it make any difference in your answer, if Dinanath created the mortgage before Amar was born? [C.LC-96]
A.5 An improper alienation of JFP by the karta can be challenged by the other coparceners. In the present
case, the ancestral business of the family was agriculture. The Karta (Dinanath) mortgaged the JFP for a
new or different business. The alienation made by him cannot be said to be for a legal necessity or
benefit of estate. Thus, his son (Amar) can challenge the alienation.
However, if the mortgagee bank can prove that there was actually a need or necessity for the purpose
of the business and it made proper and bona fide enquiries as to the existence of need or necessity,
then
107
the alienation can't be challenged (even if the money is applied for a purpose different from that for
which the money was taken) (See 'unoomanpersaud case).
In The Benaras Bank v Hari Narain (AIR 1932 PC 182), the coparceners mortgaged the JFP to
the bank and thus borrowed some money which was applied for starting of a theka business (the
family had an ancestral business of mortgagors). The court held the alienation invalid, as there was
no legal necessity, and the bank failed to make bona fide enquiries about the necessity.
An improper alienation can be challenged by a coparcener existing it the time of alienation. An
after-born coparcener can't challenge the alienation, unless at the time of his conception there must
have existed in unexpired right among some coparceners to challenge the alienation. Thus, if alienation
is made by a father who has sons and before all the sons die another son is born to him, then such son
can challenge the alienation. In the present case, Amar is the only son of his father. Thus, if his father
created the mortgage, before he was born, then he cannot challenge it.
Q.6 Write short notes on the following Power of Karta to make a gift of ancestral property/ Gift of immovable JHF property by
a father coparcener in favour of his daughter.
[D. U.-2008/2009][L. C. 1-93/94]
Can the Karta of the Hindu Joint family make a gift of joint Hindu family immovable property to his
married daughter after 10 years of her marriage without the consent of the other coparceners under Classical
Hindu Law? [D. U.-2008 (Supp.)j A.6 Gift of Ancestral Property by Karta/ Gift of Love and **
Affection by Father to Daughter The father (karta/coparcener) has power to make a gift of love and
affection of a small portion of movable JFP, Such gifts may be made by him to his own wife,
daughter, son-in-law, son, daughter-in-law or to any other near relation. These may consist of jewels,
gold, cash, etc. Such gifts are usually made on occasion like marriage, upanayana, mundana, birth of
a child, etc. Two conditions are necessary for the validity of such gifts: (1) It should be a gift of love
and affection, i.e., the father should stand in some relationship of affection to the donee,
108
Family Law
- II
and (2) the gift should be of a small portion of movable JFP. What is a small portion is a relative term
and has to be considered in relation to the entire JFR
Such gifts (i.e. of love and affection) cannot be made of immovable property. The power of gift is
much more circumscribed in the case of immovable property than in the case of ancestral movable
property. An immovable property can be donated only for a 'pious' purpose by the father (Perumalakka
v Balakrishnan AIR 1967 SC 569). Pious purpose includes religious and charitable purposes (acts of'
indispensable duties,' for which property can be alienated also), but does not include gift of love and
affection. Thus, gift within reasonable limit can be made for 'pious' purposes, e.g. feeding the poor,
alms, or gift of a small portion of immovable property for a permanent shrine for a family idol or to an
idol in public temple
There is a distinction between alienation made in the discharge of indispensable duties and gifts of
small portions of property for pious purposes. In former, the karta's powers are unlimited, and he may
alienate the entire property. In the latter case, he can alienate only a small portion of property.
Rationale behind gift to daughter. The meaning of 'Pious purpose^ has been extended to cases where a
Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in
fulfillment of an antenuptial promise made on the occasion of the settlement of the terms of her
marriage. The same can also be done by the mother/brother when the father is dead. A daughter's place is
different from that of other females (viz. mother, daughter-in-law) in a joint family. This is so because
on her marriage, her rights of maintenance end as she ceases to be a member of the family. Further,
unlike her brothers (coparceners) she does not get an interest in the coparcenary property (though the
position of a daughter post 2005 has substantially changed in this regard).
A gift of JFP to her by the father, therefore, is neither a religious act nor a charitable one, but is in
the nature of a contribution of the natal family property to a member of the family, with whom the
threads of the relation remain intact even after her marriage.1 According to
10 See P. Pradhan Saxena, Family Law II, 3," ed., p. 174 (2011).
Dharmashastras, the father, and in his absence, the brothers were under a duty to give a portion of the
property (one-fourth of the share of each brother or a reasonable portion of the property) to her at the
time of partition/ her marriage. A refusal to do so was pronounced to be a sin and degraded. Therefore,
the father/brother could save themselves from this degradation or sin by giving to her a portion of the
property, which in fact, means that property could be given to a married daughter also (i.e. any time
after her marriage). 1
. Since, at the time of partition or subsequent thereto, what a daughter gets is not a share in her
own right, but something out of the share of the brother at his instance, it takes the shape of a gift.' It is
obvious that such gifts of love and affection cannot be made to other relations (wife, intended wife,
concubine, daughter-in-law, sons, coparceners, even where it is supported by a renunciation of the
Karta's own share) or to a stranger. This rule is confined to daughters (Gauramma v MallappaAIR 1964 SC
510; Ammathayee v Kumaresan AIR 1967 SC 569). In firpurasunderi v Kalyanaranan (AIR 1973 Mad
99), a gift in favour of mother was held void. Similarly, the father-in-law was held incompetent to make a
gift to daughter-in-law of immovable property at the time of the marriage!
Gift of immovable JHF property by a father coparcener in favour of his daughter
LEADING CASE: GAURAMMA v MALLAPPA

(AIR 1964 SC 510)
[Various judicial decisions and Hindu texts recognize the validity of a gift of a reasonable extent of JFP
(immovable) to a daughter out of love and affection under varying circumstances. This right of daughter
has crystallized into a moral obligation.
But a gift of immovable property, even to a small extent and out of love and affection, to a relative/stranger, is
not permitted by Hindu law. That is so when 'pious purpose' is said to include religious and charitable
purposes.]
. (a) Gift to Daughter
In this case, a gift of joint family immovable property to daughter (window) made by the father after her
marriage was held valid. At the time of making of this gift, the father had three wives,
110 Family Law - II
one out of which was pregnant and later gave birth to a son. The" Supreme Court justified such gift by
saying that it was given in lieu of daughter's share in partition which was recognized in ancient law.
The Apex Court analysed various Hindu Texts and decisions of the courts on the point. In Jianappa
Malyadevappa v Chintmava [(1935) ILR 59 Bom 459] the Bombay High Court held that under the
Mitakshara'school of Hindu law, a father /has no right to make a gift even of a small portion/of joint
family immovable property in favour of his daughter^ although it is made on the ground that she looked
after him in his old age. The learned Judge observed: "Undoubtedly, the gift is a small portion of the
whole of the property; but, if one were to ignore the elementary principles of Hindu law out of one's
sympathy with gifts of this nature, it would be difficult to say where the line could be drawn, and it might
give rise to difficulties which no attempt could overcome."
I The Apex Court, however, in the present case observed: We agree with the learned Judge that
sympathy is out of place in laying down the law. If the Hindu law texts /clearly and expressly prohibit
the making of such a gift of the family property by the father to the widowed daughter in indigent [
circumstances, it is no doubt the duty of the Court to accept the law, leaving it to the legislature to
change the law. We shall, therefore, consider the relevant Hindu law texts bearing on the subject:
(i) Verses 27, 28 and 29 in Chapter I, Mitakshara, describe the limitations placed on a father in making gifts
of ancestral estate. They do not expressly deal with the right of a father to make provision for his
daughter by giving her some family property at the time of her marriage or subsequently. The right is
defined separately by Hindu law texts and evolved by long catena of decisions, based on the said texts.
(ii) The relevant texts have been collected and extracted in Vettorammql v Poochammal [(1912) 22 MLJ
3211., Section 7 of Chapter I, Mitakshara, deals
with provision for widows, unmarried daughters, etc. Placitum 10 and 11 provide for portions to
sisters when a partition is made between the brothers after the death of the father. The allotment of a
share to daughters in the family is regarded as obligatory by Vi jnaneswara. The says: "The allotment of such
a share appears to be tndtspcnsaMy requisite, since the refusal of it is pronounced to be a sin.
(iii) Manu says: "To the unmarried daughters by the same mother let their brothers give portions out of
their allotments respectively, according to the class of their several mothers. Let each give one-fourth
part of his own distinct share and those who refuse to give it shall be degraded.", (iv) In Madhaviya, a
text of Katyayana is cited authorizing the gift of immovable property by a father to his daughters
besides a gift of movables up to the amount of 2000 phanams a year. | Ay) These and similar other
texts indicate that Hindu law texts not only sanction the giving of property to daughters at the time of
partition or at the time of their marriage, as the case may be, but also condemn the dereliction of the
said duty in unequivocal terms., C (vi) Courts even recognised, making of such a provision not only by
the father but also after his death by the accredited representative of the family and even by the widow.
The decision in Kudutamma v Narasimhaeharyalu [(1897) 17 MLJ 528] is rather instructive. There, it
was held that a Hindu father was entitled to make gifts by way of marriage portions to his daughters
out of the family property to a reasonable extent.}
vii) Division Bench of the Madras High Court considered the question in Sundaramya v Seethamma [(1911)
21 MLJ 695] and declared the validity of a gift of 8 acres of ancestral land by a Hindu father to his
112
Family Law
- II
daughter after marriage when the family was possessed of 200 acres of land. The marriage took place
about forty years before the gift Another Division Bench of the Madras High Court in Ramaswamy Aiyer
v Vengudusami Iyer [(1899) 21 MLJ 695], held that a gift of land made by a widow, on the occasion of
her daughter's marriage, to the bridegroom was valid. |
, In the present case, the Court observed and held: The right was lost by efflux of time. But it became
crystallized into a moral obligation. The father or his representatives can make a valid gift, by way of
reasonable provisions for the maintenance of the daughter, regard being had to the financial and other
relevant circumstances of the family.
By custom or by convenience, such gifts are made at the time of the marriage, but the right of the
father or his representative to make such a gift is not confined to the marriage occasion. It is a moral
obligation and it continues to subsist till it is discharged. The obligation can be discharged at any time,
either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule,
prescribing the quantitative limits of such a gift, as that would depend on the facts and circumstances of
each case. It can only be decided by the courts, regard being had to the overall picture of the extent of
the family estate, the number of daughters to be provided for and other paramount charges and other
similar circumstances.
The validity of the gift depends on the power of the father to make a gift and the reasonableness of
the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the
mode or timing of conferring gift cannot make the gift an invalid one. The Court held: In the present
case, the gift made by the father to the daughter was within his right and certainly reasonable. The
family had extensive properties (worth lakhs), and, the father gave the widowed daughter only a life-estate
in a small portion of land (worth Rs. 5000). Thus, the gift to the daughter is valid
113
(b) Gift to Relative
In this case, the father also executed a gift deed in favour of a relative, in respect of immovable
property valued at Rs. 1500. The gift was made in token of love for the services rendered by the
donee to the donor during the latter's lifetime. The gift was made, as it was narrated in the
document, out of love and affection for the donee. It is contended that the said gift was for
pious purposes" and, therefore, valid in law. The issue
arose: Can it be said that a gift of this nature to a relative out of love and affection is a gift for
"pious purposes" within the meaning of that expression in Hindu law? ,
In Mitakshara [Chapter 1, Section 1, v. 28], it is stated: "Even a single individual may
conclude a donation, mortgage, or sale of immovable property, during a season of distress, for
the sake of the family and especially for pious purposes.",
,In support of his contention that pious purposes include a 'charitable' purpose besides a
'religious purpose,', /learned counsel relies upon certain passages in Mukherjea's Hindu Law of
Religious and Charitable Trust 2nd Edn., p. 12: "In the Hindu system there is no line of
demarcation between religion and charity. On the other hand charity is regarded as part of
religion.... All the Hindu sages concur in holding that charitable gifts are pious acts par excellence,
which bring appropriate regards to the donorA
The Apex Court, in the present case, observed: It may, therefore, be conceded that the
expression "pious purposes" is wide enough, under certain circumstances, to take in charitable
purposes though the scope of the latter purposes has nowhere been precisely drawn. But what we are
concerned with in this case is the power of a manager to make a gift to an outsider of a joint family
property. The scope of the limitations on that power has been fairly well settled by the decisions
interpreting the relevant texts of Hindu law%
,The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu
family of a small extent of property for pious purposes. But no authority went so far, and none has
been placed before us, to sustain such a gift to a stranger however much the donor was beholden
to him on the
114 Family Law - II
ground that it was made out of charity. It must be remembered that the manager has no absolute
power of disposal over joint Hindu family property. The Hindu law permits him to do so only
within strict limits. We cannot extend the scope of the power on the basis of the wide
interpretation give to the words "pious purposes" in Hindu law in a different context. In the
circumstances, we hold that a gift to a stranger of a joint family property by the manager of the
family is void
LEADING CASE: R. KUPPAYEE V RAJA GOUNDER
[(2004) 1 SCC 295]
[The father can make a gift of ancestral immovable property to his daughter within reasonable limits. He
can make such a gift at the time of her marriage or even long after her marriage. A gift of one-
twenty-sixth share of the total holding of the family cannot be held to be either unreasonable or
excessive under any circumstances.].
In this case, the father had executed a registered deed of settlement in favour of his married daughter
and had delivered possession to her. Later, he himself wanted to vitiate the g, settlement. He took the
ground that this being a joint family property, he was incapable of making a gift in favour of the daughter
and even if he were so capable, the gift was bad as it was not of a small portion.!
( The issue was whether the gift/settlement made by the father in favour of his married
daughter out of natural love and affection of a reasonable extent of immovable property (one-
twenty-sixth) out of the joint family property is valid The trial court held that since the property in
dispute was ancestral in nature, the respondent father had no power/authority to make a gift of a
part of the ancestral property in favour of his daughter. The High Court also took the similar
view.
The Supreme Court, however, upheld the validity of the gift. The Apex Court held that the
father can make a gift of ancestral immovable property to his daughter (a pious purpose) within
reasonable limits. Though the alienation must be by an act inter vivos and not by Will, but the
extended meaning given to the words "pious purposes" enables the father to make such
115
A gift of JFP at the time of her marriage or even long after her marriage. However, the extended
meaning has not been extended ) the gift made in favour of other female members of the
family
• The question as to whether a particular gift is within reasonable limits or not has to be
judged according to the status f the family and the extent and value of the property gifted, limply
because the gifted property is a house, it cannot be held that the gift made was not within the
reasonable limits. If a gift vas not within reasonable limits, such a gift would not be upheld as
gift. No hard and fast rule prescribing limits of such a gift can be laid down. It was for the
respondent to plead and prove that the gift made by the father was excessive or unreasonable,
keeping in view, the total holding of the family, n the present case, one-twenty-sixth share of
the total holding of the family cannot be held to be either unreasonable or excessive under any
circumstances.
"
5 Pious Obligation of a Son
Liability of a Son to Pay Debts of His Father 1

The doctrine m pious obligation of sons to discharge the personal d of the father is peculiar to Hindu law
(Smritis). The basis of it is spiritual benefit which will accrue to the soul of the father by discharge of his
earthly obligations. It may be noted that under Hi law, there is a special emphasis on the payment of
one's debt necessary for the salvation of the soul. ,
The doctrine is not intended in any sense for the benefit of creditor. He who having received a sum
lent or the like does not re it to the owner will be born hereafter in his creditor's house, a slave a servant,
a woman, or a quadruped" (a text of Brihaspati). Thus, emphasis was not that the creditor should get his
due, but that father should not incur the wrath of a destiny that may see him living the life of bondage
and drudgery.
Thus, the liability does not arise from contract (ex contractu) depends upon the relationship between
the father and the son. No other relative (brother, uncle, father, wife, etc.) is under an obligation to his
debts even though the father dies as an undivided member coparcenary. When a brother as a Karta
contracts debts, the doc of pious obligation has no application and the other members of the family are
bound only when the debt was for legal necessity or for the family's benefit [Kolasani Sivakumari v
Kolasani Sambasiva, '. AIHC 2512 (A.P.)].
1. Write a note on: 'Pious obligations of a Hindu son to repay debts of father
[D.U.-
[116]
Pio u s Ob lig at io n of a Son
117
A son (as well as grandson and great-grandson) is under a pious obligation to pay his father's
debts (not immoral or illegal) incurred
they were joint (pre-partition debt), and his obligation continues
after a partition between them,2 but is limited to his share in the
thus, the liability is not personal). It cannot and does not bind the
ate property of the son. These debts bind only the undivided share
JFP (thus the liability is not personal) It cannot and does not bind the separate property of the son
in the coparcenary property. The son, however, is not liable for a debt contracted by the father
after partition.
The obligation exists whether the sons are major or rriinor,_or
Ker the father is alive or dead. The liability exists even during the
:r's life-time (then, both son and father will be liable), and subsists
ng as the father is liable. Th.us, for a time-barred debt or when the
;r is adjudicated insolvent, the son is not liable. (u)
jThe father in a HJF may sell or mortgage the whole of JFP luding the son's interest therein), to
discharge a debt contracted by
for his own personal benefit. The father, therefore, has special ers to alienate the JFP to pay his
antecedent debts. The coparceners lot prevent him from doing so; the only remedy they have is to ask
partition. If they separate under a partition, then their shares cannot touched by the father to repay his
own debts.' -
Such alienation will bind the sons provided that:
(i) the debt was antecedent to the alienation;
(ii) the debt was not incurred for an immoral purpose (untainted
debt),3 and; (iii) the father acted like a prudent man, and did not sacrifice the property for an
inadequate consideration! [Prasad v Govindswami Mudaliar (1982) 1 SCC 441].
A partition effected soon after taking debts by the father, has to be examined, as to whether it was effected fraudulently, so as to
defeat the rights of the creditors, or was a genuine partition. Even if it was a bona fide partition, the sons cannot escape the liability
of payment of their father's debts {Panna Lai v Naraini AIR 1952 SC 170).
It may be noted that where the son inherits the property of the father, he can be compelled to pay the debts of the father from out of that
property. In such cases, the character of debt is immaterial i.e. it does not matter that it was incurred for illegal or immoral
purposes.
118 Family Law - II :
An 'antecedent debt' is one which is antecedent in fact as well in time i.e. the debt must be truly
independent, and not part of the transaction (alienation) which is impeached. It means a debt that is prior in
time to the present alienation of property by the father for the payment of that debt (a liquidated or
ascertained sum of money). Thus it implies an indebtedness of the father- prior in time to, and, independent
in origin of, the particular dealing with the family property, whether way of sale or mortgage, which it is
sought to enforce against the son.
Antecedent debt need not be for legal necessity or for the benefit of the estate. It may be even for a
new business started by the father or it may even be for his own personal benefit. It may be for liabilities
incurred by the father viz. the liability for mesne profits or for torts committed by him in relation to the
property (Kashiraim v Collector parganas AIR 1958 Cal 524).4
Avyavaharika Debts
An 'immoral or illegal' (avyavaharika or 'adharmic') debt is "repugnant to good morals". It includes all
debts which the court regards inequitable or unjust to make the son liable. According to Hindu text the
sons are not compellable to pay debts incurred for: (i) losses at play (ii) alcoholic drinks, (iii) promises
without consideration, (iv) promises made out of lust, etc., (v) suretyship, or (vi) fines or bribes
The son is not liable to pay debt incurred by the father in the circumstances which would render the
father liable to a criminal prosecution; but he is liable for money which the father has to account in a
purely civil capacity. Where the father's act which give rise t debt is a mere tort or breach of contract,
the debt, is not avyavahari and the son will be liable for it. However, a debt contracted by father to
fight litigation against the son himself, to defeat the legitimate rights of the sons is held to be
avyavaharika (M. Veraghaviah v M Chini Veeriah AIR 1975 A.P. 350).
Avyavaharika does not mean debts contracted due to lack prudence, lack of good managerial skills
or negligence [Khalilul Rahn
4
'The father's power to alienate the joint family property to pay his antecedent debts, goes contrary to the whole theory of limited
permissibility of alienation of the coparcenary property, to be exercised in special cases only' Discus
Piou s O b l i g a t i o n of a Son
119
v Govind Persuad (1893) ILR 20 Cal 328], It is not every impropriety or every lapse from right
conduct that stamps the debt as immoral. The son can claim immunity only where the father's
conduct is utterly repugnant to good morals, or is grossly unjust or flagrantly dishonest. It may be
noted that a 'time-barred debt' is not avyavaharika.
To examine whether a debt is avyavaharika or not, the relevant time is the inception when the
loan is raised. If the debt, in its inception is not immoral, subsequent dishonesty of the father does not
exempt the son. Therefore, where receiving money was not a criminal offence, a subsequent
misappropriation by the father would still bind the son, unless the misappropriation was done under
circumstances that rendered the act criminal [Chhakauri Mahton v Ganga Prasad (1912) ILR 39
Cal 862]. Further, where the father, in his capacity as a secretary of a school committee, received
government grant for school purposes, and, he deposited a part of the money in a fixed deposit and
another in his own account, which he misappropriated and then died, it was held that the drawing of
money for unauthorized purposes amounted to a criminal breach of trust and it was not binding on
the sons to pay it; but, there was also a civil liability for the money that was received by the father,
but was never accounted for, the sons were liable for paying that amount [Toshan Pal Singh v
District Judge, Agra (1934) 61 IA 250].
Where at the time of partition between two brothers, one brother undertook to hand over a
promissory note to the other, in exchange of a loan, but failed to do it deliberately and wrongfully,
forcing the other to take the matter to the court, it was held that the former was liable to pay the
money due and passed a decree against him. Such decree was binding on his sons also, as at the
time when the amount was taken by him, it was lawful. His subsequent act of wrongfully not
returning the money was an 'illegal and improper act.' The debt, therefore, was binding on his sons
[Hemraj v Khem Chand (1943) ILR All 727].5
Burden of Proof
.The burden of proof that the debt is 'tainted' is not on the creditor, but on the son. If the sons wanted
to escape the liability of payment of their father's tainted debts, they had to prove not only that the debt
was for immoral, illegal or improper purposes, but also that the creditor or
5. See P. Pradhan Saxena, Family Law II, 3d ed., p. 199 (2011).

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

I After the commencement of the U.S.A. (Amendment) Act, 2005, no court shall recognize any right to
proceed against a son, grandson or great-grandson for the recovery of any debt due from his father,
grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of
such son, grandson or great-grandson to discharge any such debt. .
, Provided that in the case of any debt contracted before the commencement of the H.S.A.
(Amendment) Act, 2005, the creditor shall have a right to proceed against the son, grandson or great-
grandson [born or adopted prior to the H.S.A. (Amendment) Act, 2005]; or, any alienation made in respect
of or in satisfaction of, any such debt, such right or alienation shall be enforceable under the rule of pious
obligation [Sec. 6(4)].
Pio u s O b l ig a t io n of a Son
121
One of the features of classical Hindu law that imposed upon a grandson or great grandson the
liability to pay their father's debts Pious obligation of son'), has been abrogated by the 2005
amendment. At to the present, the repayment of debts contracted by any Hindu would be personal
responsibility and the male descendants would not be liable to the creditor. Only the debts contracted
before the enforcement of the amendment are subject to the rules of classical Hindu law. The
subclause is prospective and thus the liability of son, grandson, etc. under Pious obligations for debts
contracted before the Act of 2005 continues.
Partition and Reunion
*
Meaning of Partition
Partition means numerical division of property, and bringing the joint status to an end. On partition, the joint
family ceases to be joint, and nuclear families or different (new) joint families come into existence
^Partition means fixing the share of each coparcener, which was not fixed before the partition as the
coparceners hold the coparcenary property as one/common unit. Partition implies 'the crystallization o
the fluctuating interest of a coparcenary into a specific share in the JFP." Thus, partition is a process
whereby joint tenants become tenants in-common
It may be noted that there can be no partition unless there are a least two coparceners because then
only there would be state of jointness amongst coparceners which shall cease by partition. A partition is no
merely the division of the family, but in essence, it is the disruption o the undivided coparcenary in a joint
family. That also means that unless and until a coparcenary within a family exists, a partition cannot be
effected
Partition v Family Arrangement - After partition, two coparceners may; hold the property jointly without
affecting the status of property. A joint family may make an arrangement for convenience sake under- which
the coparceners divide the property, while remaining joint. Even a sole surviving coparcener may make
such arrangement; he can separate himself from the family after making due provisions for the female
members. In this way, he can absolve himself from the responsibilities
[122]
of managing the joint family. A 'family arrangement', though recognized as valid and enables a
coparcener to maintain a status distinct from the rest of the joint family members, is not the same
thing as a 'partition.' A 'family arrangement' is a unique permissible concept (may be oral, but legally
enforceable) whereby the members of the family may come to a consensus based on an agreement for
allocation of JFP for maintenance of the members, or for defraying marriage expenses of the
daughters/children in the family or for other legitimate purpose viz. payment of family debts, etc. It can
also be in the nature of compensation to a member who takes a lesser share than what is due to him.
Where as per a family arrangement a specific portion/share in the property is allocated to a person
(even a non-family member), such person acquires a right in the JFP and becomes competent to ask for
its partition (Zaheda Begum v Lal Ahmed Khan AIR. 2010 A. P.1
A 'family arrangement' can be oral; however, where it is written, it is not required to be registered
(unlike a 'partition').
De Jure and De Facto Partition1

Under the Mitakshara School, partition means two things:
(i) Severance of status or interest (de jure). This happens when the community of interest (joint ownership
of coparcenary) is
broken, either at the instance of one of the coparceners or by a mutual agreement among all the coparceners.
The shares
(extent of ownership) become clearly specified or demarcated, and are no longer 'probable' or 'fluctuating', with
no scope of the application of the doctrine of survivorship..
(ii) Actual physical division of property in accordance with shares so specified, known as partition by
metes and bounds (de facto). This happens when the unity of possession (common possession and
enjoyment of property) is broken. It may be no noted that even after a de jure partition, the coparceners
may enjoy JFP with unity of possession e.g. living in the joint family house. It is only after the de facto
partition, the 'one-half'/ 'one-third' share (as fixed by the de jure partition) becomes the exclusive share
(i.e. exact portion of the JFP) of a coparcener..
1 Distinguish between a de facto and a de june partition? [D.U.-2011]

124
Family Law
- II
Thus, according to Mitakshara law, partition has two distinct meanings: Firstly, it means the
severance of the joint status with the legal consequences resulting therefrom; Secondly, it means the
adjustment into specific shares the diverse rights of different members according to the whole of family
property.( Existence of coparcenary is essential but existence of joint property is not essential for
demanding partition in Mitakshara school. Where there is no joint property to divide, there can be
partition by the simple declaration (of intention to sever) for a partition merely indicates 'state of mind.
«A partition, strictly speaking, is complete by the severance of status i.e. de jure partition. The de
facto partition (or allotment of shares) may or may not follow and the members may continue to hold
the property in joint possession as tenants-in-common Thus, partition by metes and bounds is not a
must for completing the process of partition. Whether the property is divided physically or not, affect
only the mode of its enjoyment and management and not the nature of its tenure.
Ljhus, partition does not mean simply division of property into specific shares; it basically means
severance of status or interestjAll that is necessary to constitute a partition is a definite and unequivocal
indication of intention by coparcener to separate himself from the family. -This is unlike Dayabhaga
school, where partition means division of property in accordance with the specific shares of the
coparceners.)
The de jure partition is a matter of "individual/bilateral" decision, the desire (intention) to sever
himself and enjoy his hitherto undefined and unspecified share separately from others; the de facto
partition is a consequence of one's declaration of intention to sever but which is a "multilateral"
action, arrived by agreement, arbitration or suit.
Subject Matter of Partition

For a partition, the property should be a coparcenary property; the separate or self-acquired property of a
coparcener cannot be the subject matter of partition amongst all the coparceners in the family,
Partible and Impartible Properties
Some properties of a joint family could be easily divided while others are incapable of division e.g.
dwelling house, elephant, wells, books, clothes, ornaments, stair-cases, family shrines, temples and
idols, etc.
125
In trying to divide them, either their intrinsic value is lost, or is substantially diminished, or the
property itself would be destroyed. Thus, a basic rule of partition is that if property can be
partitioned without destroying the intrinsic value of the whole property or of the shares, such
partition ought to be made. Otherwise, certain rules should be observed at the time of partition. |
, In such cases 'equitable division' is resorted to. It is important to note that the previous
enjoyment of a JFP by a coparcener is irrelevant at the time of partition. A coparcener might be
having an exclusive control/occupation of a particular JFP (e.g. vehicle, portion of a house), but that
fact would not give him a better claim over that portion. This rule applies even in those cases where a
coparcener substantially improves his portion, but without the consent of, or in the absence of an
agreement with the other coparceners.}
An impartible estate (which devolved by a custom, or a grant, etc., for example, a raj or
municipality) may be enjoyed by coparceners turn by turn, assets like well/stair-cases, temples/idols
may be left for common use, and properties like elephant may be allotted to one coparcener and
others compensated for the same, or in the alternative, may be sold and proceeds distributed. Where
no balancing is possible due to the difference in the value of the properties, then such items can be
allotted to one person, while the other is given a compensation in terms of money equivalent
('principle of owelty/ equality of partition').
In M.L. Subbaraya Setty v M.L. Nagappa Setty (AIR 2002 SC 2006), the court observed: If the
JFP consist of movable and immovable properties then each party must necessarily be given a share
in all movable and immovable properties. However, while effecting partition of JFP, it may not be
possible to divide every property by metes and bounds. The allocation of properties of unequal value
may come to the share of a member of a joint family at the time of effecting partition but for that
necessary adjustments have to be made. It can also happen that some of the co-sharers on partition
may not get any share in immovable property. No hard-and-fast rule can be laid. It depends upon
the facts of each case. It depends upon the nature of the immovable property and number of such
properties as also the number of members amongst whom it is required to be divided. Properties of
a large value may go to one member. Property of lesser value may go to another. What is necessary,
however, is the "adjustment of the value" by providing for
126 Family Law - II
payment by one who gets property of higher value. In short, there has to be 'equalization of shares.' The
property allotted to each co-sharer should bear approximately the same value as corresponds to his share.^
(The rule that a dwelling house should not be partitioned is not sacrosanct. A partition of a dwelling
house will be decreed if insisted on but the court will (if possible) try to effect such an arrangement as
will leave it in the hands of one or more of the coparceners. If no agreement is agreeable which is
equitable, the dwelling house may be sold and sale proceeds divided among the coparceners. It may also
be noted that the Legislature may also render certain property indivisible for some social cause e.g.
prevention of fragmentation of holdings. In such a case, the court will first see whether the partition is
permitted or prohibited by legislature, j
Deductions and Provisions
Before the division can take place, out of joint family property, provisions should be made for certain
liabilities of the family. It must be noted that although the ownership of the coparcenary property is with
the coparceners only, the right to possess and enjoy it is held by all the joint family members (including
non-coparceners). This is called 'Adjustment of claims before partition of property
i(a) Debts - debts taken by karta for a purpose binding on joint family; untainted personal debts of father,
when joint family consists of father and sons (no provisions have been made in Hindu law for individual
debts of coparceners)^
(b) Maintenance - of the following members:
(i) Disqualified coparcener and their immediate dependants,
(ii) mother, step-mother, etc.,
(iii) illegitimate sons,
(iv) unmarried sisters, till they are married,
v) widowed daughters of deceased coparceners^
2
While effecting partition of joint family properties, whether it is possible to divide every property i.e. movable or immovable by metes and
bounds? Discuss.
Partition and Reunion 129
,(b) In Bombay school, the son has no right to partition without the assent of father in some situations,
(c) Father's right to partition is superior to that of all others, he can not only effect a partition between
himself and his sons, but can also impose a partition on his sons inter se. This power of father is a part
of the Patria Potesta (Paternal power) that was recognized by Hindu law. A grandfather does not have
a similar power to effect a partition among the grandsons
the following persons have a right to partition and entitled to a share on partition:-
(1) Father - In exercise of this power (either severance of status
or actual partition by metes and bounds), the consent of sons
is immaterial Mttlan Chand v Kanchhendillal AIR 1958 M.P. 304) However, father's special power is not
without restrictions. He must act bona fide. If division made by him is unequal or fraudulent or vitiated by
favoritism, partition can be re-opened Gurusami v Jayaraman AIR 1996 Mad 212). If all the
coparceners agree to such an unequal division it will then operate as family arrangement^
Further, the father can't exercise this power by Will except with the son's consent. Thus, he can
divide his sons during his lifetime but not by his Will after his death unless his son consents to it. Still
further, the father cannot effect partial partition amongst his sons without their consent.
With respect to a minor's share, the father retains his control as his guardian. However, after a
partition, the minor's share would constitute his separate property, and the father would have no power
to alienate it except with the court's permission. It may be noted that a minor coparcener cannot avoid
a partition effected by his father, till he attains majority: then, he can repudiate it.
(2) Son, grandson and great grandson - They have a right to
partition. But, in Bombay school the son has no right to partition
without the assent of father, if father is joint with his own
""father, brothers or other collaterals. If the father is separate from them, then son can ask for partition
[Apaji v Ramchandra (1892) 16 Bom 29 (FB)]. Under Punjab customary law also sons have no right to
partition against their father (here, sons do not have a right by birth in the property held by the father). ,
130
Family Law
- II
Son conceived at the time of partition but born after partition - The Hindu law has for many
purposes equated person in womb to a person in existence. If pregnancy is known, the partition
should be postponed till the birth of child, but if coparceners do not agree to this, than a share equal to
share of a son should be reserved. In case, no share is reserved for a son in womb, he can, after his birth,
demand re-opening of partition. If pregnancy is not known and so the share is not reserved, then also the
after-born son can get partition reopened. Thus, an 'after-born' son can take a share equal to the share of
another son.
Son begotten and born after partition
The right of such a son depends upon whether his father has taken a share for himself at the time of
partition from his sons. When the father has not taken a share for himself, the after born son has a right to
get partition reopened (this includes the acquisitions made to the property after the earlier partition)The
rule applies, like the former, to a partition between father and sons. For example, a coparcenary consists
of a father A and his two sons B and C. Partition takes place. Subsequent to the partition, another son
D born to A, and a son BS is born to B. If A hasn't taken the share, D can get partition reopened. But
BS has no such right.
When the father has taken or reserved a share for himself, the after born son becomes a
coparcener with his father (however, such a child cannot become a member of the joint family that was
disintegrated before his birth). Such after born son is entitled to have the partition reopened, but in lieu
thereof he is entitled, after the father's death, to inherit not only the share allotted to the father on partition,
but also the separate property of the father. It is to be noted that if there are other sons to father which
have separated from him, then they can also claim a share or inherit father's (separate) property along
with undivided (after born) son (Sec. 8 of H.S. Act makes no distinction between separated sons and
undivided sons in the matter of succession to the separate property of Mitakshara Hindu).
[Note - Where a coparcener renounced/relinquished his interest in JFP, then a son begotten after his
renunciation can't claim status of a coparcener, as his father can no longer be regarded as a member of
coparcenary.]
P a r t i t i o n and R e u n i o n
131
(4) Adopted son: Adopted son has the same right of partition. Also, *"* if after his adoption, a son
born to father, then also shares of adopted son and natural born son will be equal (Sec. 12 of Hindu
Adoptions and Maintenance Act, 1956). Since the passing of this Act, the law relating to adoption has
been modified and clarified)
[Under the Dayabhaga law, in Bengal, if a son born, after adoption of a son, then adopted son get
only 1/3 of the estate; and in Benaras - 1/ 4, and in Bombay and Madras - 115 of the estate.]
(5) Minor coparcener - In partition, the right of minor coparcener is same as that of major
coparcener. However, a minor is a person of immature intellect and the court acting as parens patriae
has the duty to protect minor's interests. Thus, if a Katra is squandering JFP to the prejudice of minor
coparcener or if he is ill-treating him, the minor's guardian or the next friend of guardian may file a
suit for partition on minor's behalf (The severance of status takes place from the date of institution of
suit). And the court has to see whether partition is for the benefit of minor or not; if it is not for his
benefit then partition will not be allowed. It may be noted that a suit by a major coparcener itself
brings about the partition.
(6) Absent-coparcener - When coparcener is absent at the partition time, a share has to be allotted to
him. In case, no share is allotted to him, he has a right to get partition reopened..
7) Alienee - A purchaser of a coparcener's interest in a court sale, or in a private sale where the
coparcener has such a power (Bombay, Madras and M.P.), can demand partition. Thus, a partition
can be demanded in certain situations by an alienee or a purchaser, in the execution of a court's decree of
the undivided share of a coparcener In States where a coparcener is not permitted to alienate his share,
if he contracts a debt and the debtor brings a decree against him, the purchaser of his share in
execution of the money decree, is also entitled to demand a partition and ascertain his share.
(8) Daughter - A daughter can claim a share equal to the son in a partition (after the 2005
Amendment Act). She can now also demand a partition like a son.
132 Family Law - II
. The right of the married daughter to demand a partition of the coparcenary property after the
amendment of 2005 is absolute and not subject to any rider [Ganachari Veeraiah v Ganachari Shiva
Ranjani AIR 2010 NOC 351 (A.P.)]- Even if she converts to Muslim religion after her marriage to a
Muslim man, the right to ask for partition of coparcenary property cannot be defeated. Regarding her
succession rights (relatable only to separate property of her father) she has to wait till his death,
. Persons Entitled to a Share on Partition5
There is another category of members of the joint family who have no
right to partition but, if partition takes place, they are entitled to share It may be noted that all
coparceners, whether major or minor, are entitled to get a share at the time of partition After-born or
adopted son can get a share even later. The position of other coparceners is as follows:
. (1) Son born of a void/voidable marriage: Such a child is a legitimate child of the parents and is statutorily entitled
to inherit their separate property; but he cannot inherit from any other relation of the parents. Thus, he
cannot inherit the property of the brother who is a legitimate offspring of the father. For example, if father
had two wives (one legitimate, another illegitimate) and a son from both, the son of illegitimate wife
cannot inherit from the son of legitimate wife.
The rights of such a child are better than those of an illegitimate child, but inferior to those of a child born
of a valid marriage. This 'statutory legitimacy' is therefore, different from a 'perfect legitimacy.' A perfectly
legitimate child would not only inherit the separate property of the parents, but would also have a right by
birth, in the coparcenary property. .A statutory legitimate child would be entitled to inherit the property of
the father, but would not be a coparcener with him (Shantaram v Dugubai AIR 1987 Bom 182) and
would not get a share at the time of partition. In other words, he is not entitled to seek partition during the
lifetime of the putative father; it is only after the father's death, he is entitled to a share on partition.
5. Who are the persons entitled to a share on partition of JFP? [LC./-95]

133
(2) Illegitimate son: It falls under two categories - (a) the dasiputra — or a son born to a
concubine, pennanently kept by a Hindu, (b)
an illegitimate son born of a woman who is not a dasi.
An illegitimate son of both categories is not entitled to partition, as he is not a coparcener.
He is however entitled to maintenance out of the joint family funds of the putative father's joint
family [Vellayappa v latarajan (1931) 58 IA 402]. It may be noted that an illegitimate son inherits
only from the mother and not from the father. .
Among Sudras, a dasiputra has a superior position. A dasiputra does not acquire by birth any
interest in JFP, he is thus not a coparcener and has no right to partition against his father. However, the
father can give him a share (even equal to share of a legitimate son) during his lifetime, but that
depends upon the father's discretion. There can be no share at all.
If his father dies while in joint family, he can't claim partition (and entitled only to maintenance).
But, a dasi son can get a share from his father's separate property. But his share would be only one-
fourth to that of a legitimate son {Kamulammal v Visvanathaswami AIR 1923 PC 8). In other words, on
the father's death, a dasi son will be a coparcener with the brother and has a right to ask for a partition
and to get a share equal to one-fourth of the latter's share. If the brother dies before a partition has
been effected, the dasi son would take the whole of the property under the doctrine of survivorship.
(3) Disqualified coparceners: Persons suffering from any defect *- which disqualifies them from
inheriting are equally disentitled to a share on partition. Various grounds of disqualification were
recognized by Hindu law viz. congenital and incurable blindness, idiocy/insanity, deafness and dumbness,
virulent and incurable leprosy, and other incurable diseases that made sexual intercourse virtually
impossible]|AU these grounds with the exception of congenital lunacy or idiocy have ceased to exist
as part of the Mitakshara law by virtue of the Hindu Inheritance (Removal of Disabilities) Act, 1928j It
may be noted that these prohibitions are purely personal and do not extend to the legitimate issue of
the disqualified person. Further, if a member of the family has no congenital (i.e. by birth)
disqualification, but later becomes insane, he will not be deprived of his interest.
134
Family Law
- II
Position of Female Members6

No female has a right to partition, but if partition occurs, there are certain females who are entitled to a
share viz. father's wife, mother and paternal grandmother. This rule is applicable m all the sub-schools
of Mitakshara, except the Dravida or Madras School where no female gets a share at the time of
partition
Unlike in the case of a coparcener, where a severance of status is enough, and his subsequent
demise would not disentitle his legal representatives to claim his share, for females, the entitlement to
take a share arises only when not merely a severance of status among the coparceners, but a partition by
metes and bounds takes place. If a partition takes place and she, though entitled, is not given a share,
only then is she empowered to reopen the partition and claim her share. If she dies before a partition
has been effected, her share does not pass to her legal representatives, but remains in the common
pool as the JFP.7
- Mother and wife are entitled to maintenance, this doesn't mean they are not entitled to a share on
partition. But on getting a share, their maintenance rights are affected.
- No provision of U.S. Act affects, adversely, her right to take a share on partition.
- Whenever father's wife or widowed mother is given a share on partition and she has also received stridhan
from her husband or father-in-law, her share will be subject to deduction to the extent of the value of her
stridhan.
- The share vested in her, on partition, becomes her absolute property (and not limited or women's estate,
as prior to H.S.A., 1956) (Sec. 14, H.S.A.) and after her death it devolves on her own heirs.
. (1) Father's wife - On a partition between her husband and her son, the wife is entitled to a share equal to
the share of a son. She can hold it and enjoy it separately (If there are more than one wife, as permitted
before 1955, each wife is entitled to a
6. Discuss whether a female can get a share if a partition of the JFP takes place under the classical law. [D.U.-2011]
7. See P. Pradhan Saxena, Family Law II, 3'" ed., p. 241 (2011).
135
share equal to the share of son). If no share is allotted to her, she can get the partition reopened
(2) Mother - A widowed mother has a right to take share equal to that of a son, if partition occurs
among the sons. This right accrues to her only when partition by metes and bounds is made. (Mother
and step-mother each take a share equal to the share of a son) If there are two sons, and before
partition, one son dies, the other son becomes the sole surviving coparcener and will take the whole
property (no partition can take place unless there are two coparceners).
(3) Grandmother - The paternal grandmother and step grandmother are entitled to a share on
partition. When partition occurs between her grandsons, her son being dead, she gets a share equal to
the share of a grandson When partition occurs between her son and sons of a predeceased son, she gets
a share equal to that of grandson. When partition occurs between her sons and their sons, then
according to Allahabad and Bombay High Courts, she is not entitled to a share, but according to Patna
and Calcutta High Courts, she is entitled so.
(4) Coparcener's widow - Under the Hindu Women's Right to Property Act, 1937, in respect of
separate property, the widow (intestate's own widow, his son's widow and his grandson's widow) took
a share equal to the share of a son, and in default of the son, took the entire property. If there were
more than one widow, then all of them together took one share.
In case of a JFP, the widow of a deceased coparcener took the same interest in property which her
husband had in JFP at the time of the partition.
Example - If A dies, leaving behind his separate property and his own widow, son's widow and son's
son's widow - each of the widow will get 1/3 share. If A dies, leaving behind 2 widows and 2 sons,
each son will get 1/3 share, while each widow will get 1/6 share (both widows together taking 1/3
share).
When two or more widows succeed to property of their husband, each widow has a right to
partition (with or without the consent of others) and put an end to the joint status. Even when a father's
widow succeeds along with her son (i.e. widowed mother), she has a right to partition.
136 Family La w - II
However, a partition made at the instance of a widow is entirely different from that made at the instance of a
coparcener. In such a partition, the severance of status doesn't occur. The female gets her share ascertained, and her share is
separated, while the family continues to be joint. She was given the same power of partition as any coparcener had, but
thereby she didn't become a coparcener.
The interest of the widow does not arose by inheritance or by survivorship but by statutory substitution i.e. her
interest in coparcenary property in place of her husband. Thus on the death of coparcener there is no dissolution of
coparcenary so as to carve out a defined( interest in the favour of widow in coparcenary property.
Her interest was subject to all incidents of coparcenary interest
If she didn't ask for partition, her interest was subject to fluctuations and on her death, passed by survivorship to
other coparcener:
(reversioners).
How Partition is Effected {Mode of Effecting Partition)

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

" (AIR 1964 SC 136)
[A Will containing a declaration of intention to separate will not result in severance of status unless it is
brought to the notice of the Karta and other coparceners. An uncommunicated expression of intention, at
best, can amount to a desire to partition, it cannot amount to severance of status. Further, the declaration of
the intention, in order to be effective, must be communicated during the lifetime of the one who expresses it)
8. Id., p. 224.
138 Family Law - II
Under the Hindu law, presumption is always in favour of joint family. The burden to prove the partition lies on
the plaintiff and this burden was not discharged in the present case. Even if the "Will" may be presumed to
contain the intention of the executant to separate, partition cannot be effective unless such an intention is
known to other coparceners.] |
(
Facts - One X, a common male ancestor, had two wives - W, and W2.
w, w2
I[S 1] (d-1945) I
[S 2] - Raghvamma (widow-plaintiff)
SS 1 -Chenchamma (wife-defendant) (d 1938)
Minor son (d-1949)
[Note - SS, stated to be adopted by S2, so Raghvamma was his adoptive mother.]
S, executed a "Will", whereby he gave his properties to SS,, as SS, died, so S|'s properties devolved upon
the minor son. Under the will, executed by SI on 14 Jan., 1945, he didn't give any share to his daughter-in-law
(widow of SS,), but directed that during the minority of minor son, their properties would be entrusted to
Raghvamma, till the minor son become major.
Par ti tio n and
Reu n io n
139
Raghvamma, by mutual agreement, allowed properties to remain in the hands of

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

uncommunicated expression of intention, at best, can amount to a desire to partition, it can't amount to
severance. A series of decisions of Madras High Court laid down that severance of status is effective
from the date on which communication is put into transmission (and not from the date on which it
reaches coparceners)A
In the present case, the court came to the following conclusions:
(a) Communication of intention must be made to all interested parties i.e. coparceners.
(b) Doctrine of 'relating back' - Although communication might be received by coparceners on different
dates, their receipt will relate back to the date of notice i.e. severance will be effective from the date on
which communication is put into transmission (when the intention is framed and expressed); but this is
subject to the next proposition.
(c) The vested rights that might accrue in the interval, between the date of transmission and date of receipt,
are preserved This was explained thus:
"But between the two dates, the person expressing his intention may lose his interest in property, he may
withdraw his intention to divide, he may die before his intention conveyed, with the result that his interest
survives to other members. A manager of a joint family may sell away the entire family property for
debts binding on the family.
Thus, if doctrine of relation back invoked without any limitation thereon, vested rights so created will
be affected and settled titles may be disturbed. The principle of retroactivity, usually, saves vested rights.
As the doctrine of relation back involves retroactivity by parity of reasoning, it can't affect vested
rights.* Thus the rights accrued to others in JFP, between
141
the two dates, would be saved." Thus, if the Karta has alienated the_ JFP in the, meantime
for a legal necessity the transaction will bind the separating coparcener also.
The court observed that "Will" do not communicate the intention to separate. And as the person
making the Will dies, the right of survivorship applies, and the doctrine of relation back doesn't apply,
which is limited in scope and not absolute. Even if the contents of "Will" be presumed to contain an
intention to separate or the factum of partition, it would not be effective as the contents were not made
known to other members i.e. minor son and his guardian (Girja Bai v Sada Shiv AIR 1916 PC 104).
Held - Thus, the plaintiff couldn't claim possession of properties, since by survivorship the properties
devolved upon the minor son, and after his death, upon his guardian i.e. Chenchamma. .
Comments - In the present case, the court didn't provide
answers to the following questions:- (i) mode of service and
its efficacy; (ii) whether the service of notice on a Karta would
be enough, or on major members, or on all coparceners; (iii)
how notice is to be served on minor members.
In Puttrangumma v Rangamma (AIR 1968 SC 1018), the ' court, regarding the first
question observed that the process of communication may vary with circumstances of each
case.
Sumit, a coparcener living in Delhi sends an e-mail to his father/Karta at Bombay expressing his intention to separate from the joint
family on 20~ May 2003. He then executed a gift of his share in the property in favour of a person on the same day. The Karta was
very busy as the elder brother of Sumit was involved in a motor vehicle accident that had seriously injured the life of a young boy.
The Karta sold the JFP including the shar3 of Sumit to pay compensation to the accident victim and to save the eldest son from a
possible penal litigation. Due to this incident, Karta failed to check his mails and came to know about the demand of Sumit only on
30 May, 2003. Sumit filers a suit against Karta challenging the validity of the sale. Discuss whether he would be successful?
[D.U.-201O]
[Hint: If there is a gap between the time when the coparcener expresses his intention, puts it in course of transmission and when it
comes to the knowledge of the Karta, the doctrine of relation back applies. Thus, Sumit will not succeed.]
142 Family Law - II
The proof of formal dispatch or receipt of communication by other members is not essential, nor its
absence fatal to severance of status. What is necessary is that declaration to be effective should reach
the affected persons by some process appropriate to given situation and circumstances of the case.
In this case, a coparcener posted a letter communicating intention to sever, but before the letter could
reach its destination, it was withdrawn from post office. But the news of intention reached affected
parties indirectly. Held that the communication was sufficient and effective and it could not be
withdrawn^
As to the second question, no direct answer has yet been given, but the court in Raghavmma v
Chenchamma case held . that the communication to the karta alone will not be sufficient. Thus a
notice should be communicated to all coparceners. If a notice is given to a coparcener who refuses to
accept it, the communication is enough and effective.) In Puttrangumma case and Lakshmanier v
Krishnamachary [1976 (1) Mad LJ 452],it was observed that the most appropriate person to whom if
should be communicated, is the Karta, but if he, for the time being, is unavailable, it can be brought to
the notice of the other coparceners. Since the Karta manages the property and plays a lead role in its
actual division, a partition by metes and bounds cannot take place unless the Karta is informed about the
intention to separate. However, there is no need to inform each and every coparcener individually
and a communication to the Karta is sufficient {Lakshmi Perumallu v Krishnavenamma AIR 1965 SC
825).
As to the last question, the notice to the karta is notice to the minor Papayya v Venkata (\968) 1 An.
WR 36].
Effective Date of Severance of Joint Status

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

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

it of by a Will; it does not matter that Will is received by the Karta at
a later date.
If a coyarcener dies after communicating his intention to separate,, but Before it reaches other
coparceners, then it cannot amount to partition. Because, for a partition to be effective, the separating
coparcener must communicate his intention during his lifetime. The moment a coparcener dies, he loses his
interest in the coparcenary property, the communication of his intention to separate after his death becomes
meaningless. According to the doctrine of "relation back", the vested rights that might accrue in the
interval between the date of transmission and date of receipt are preserved (thus, the separating
coparcener may die before his intention conveyed, with the result that his interest survives to other
members). Therefore, where a coparcener communicates his intention to separate to the Karta, through a
letter, and executes a Will of his share in favour of his friend, the Will became void if he dies before its
receipt by the Karta. But, where there has been a communication, the coparcener can make a valid Will
or gift his share
Severance of Status in case of Minor
LEADING CASE: PEDASUBHAYYA V AKKAMMA (AIR 1958 SC 1042)
C [A partition of the JFP through the filing of a suit by the next friend can be validly effected. The court
has to be convinced in such cases that the partition would be in the interests of the minor and not
effecting a partition would adversely affect his interests.
In the case of a minor coparcener, the effective date for severance of status would be the date of
institution of the suit, provided the
11. A Hindu joint family comprised of the father, and his three sons: St, S2 and S3. On coming to know that the father was trying to sell some of
the JFP without any legal necessity, S1 who is aged 30 years, walks up to Karta and says, "I want partition and please hand me my share."
Karta refuses. S1 executes a gift of 1/4* share of the property in favour of his friend and dies. Is the gift valid?
[Hint. The moment S1 communicated his intention to separate, he became separated from the joint family; it does not matter that Karta
refused. S1 could make a valid gift of his share after separation.]
145
court actually effects a partition. If minor dies during pendency of the suit, the same can be
continued by legal representative of minor.] \
Facts - In this case, the maternal grandfather of a minor "coparcener, filed a suit for the
partition on behalf of said minor, as the next friend of minor. The facts established clearly proved
that the defendants (father, his first wife and his sons) were continuously dissipating the
ancestral estate by selling lands, and by incurring large-scale debts without any legal necessity,
The family properties were sold and fresh ones purchased in the names of adult coparceners.,
The petition was admitted, but during the pendency of the litigation, the minor died. The issues
arose regarding the status of the minor on his death" (undivided or separate member) and
whether the suit be abated on his death.
Observations and Decision - The Court observed: Assuming that there was no intention to
defeat the rights of plaintiff at the time when transactions were entered into, does not conclude
the matter. The real point for decision is whether defendants were acting adversely to minor,
and if, after he was born, they used documents which might have been innocent when they came
into existence, for the purpose of defeating his right to the properties comprised therein, that
would be a conduct hostile to him justifying partition.
The defendants contended that whereas in case of an adult coparcener a clear expression
on his part of an intention to become divided will have the effect of division in status, and the
filing of a suit for partition would amount to such an expression, the rule can have no
application in case of a minor, as he is incapable of a volition of his own. So such a volition can
be exercised by the court, in that case the division of status will take effect from the date when the
court concludes that division is beneficial for the minor or not. If minor dies during pendency of
such a suit, it was contended, he dies as an undivided coparcener.
• The court observed that under Hindu law, there is no distinction between the rights of a
minor and a major coparcener, as far as the coparcenary property is concerned. However, as
146
Family Law -, II
he is a minor, the court acts as parens patriae, in order to protect his interests and assess whether a
partition will benefit him or not. But even this action will not make the effective date of severance any
different in the case of a minor, than in the case of a major coparcener. Therefore, where the suit is
filed by a minor, through his next friend, and the court comes to the conclusion that effecting a partition
would be in the interests of the minor, the severance of his status would relate back to the date of the
institution of the suit and he would be deemed to be a separate member from the date when the-petition
was presented in the court.
The court observed citing decisions in Suraj Narain v Iqbal Narain (1913) 40 IA, Kewal Narain v
Prabhu Lal (AIR 1917 PC 39), a decree may be necessary for working out the result of severance and for
allotment of shares, but the status of plaintiff as separate in estate is brought about by his assertion of right
to separate, whether he obtains a consequential judgment or not. The true effect of a court's decision that
action is beneficial to minor is not to create in minor proprio vigore ('by its own force') a right which he
did not possess before but to recognize rights which had accrued to him, when person acting on his behalf
instituted the action. Thus, what brings about the severance in status is the action of the next friend in
instituting the suit, the decree of the court merely rendering it effective by deciding that what the next
friend has done is for the benefit of the minor.
Regarding the question, as to whether the suit should abate on the minor's death, the court held
that the moment a suit was filed on behalf of the minor, a severance of status has taken place, and the
only difference between the cases of a major and a minor coparcener is, that here, it was conditional
upon the court coming to the conclusion that it will further the interests of the minor. Till the court
examines that issue, the status of a minor at the time of his death, would remain uncertain. As the status
can be determined only when the court decides the suit, the suit will not abate with the minor's death and
the court will decide the case on merits, to determine whether, in the light of the facts and
circumstances of the case, a partition would have advanced the interests of the
147
minor. In the present case, the partition was desirable, and with the application of the doctrine of
relation back, minor's severance from the joint family took place on the date of filing of the
partition suit and at the time of his death, he was a separate member. Therefore, his share in the
property would go by inheritance to his mother arid not to the coparceners under the doctrine of
survivorship.
Thus, if minor dies during pendency of the suit, the same can be continued by legal
representative of minor (mother of the plaintiff in the present case). It was urged that the
cause of action for suit for partition by a minor was personal to him, and that on his death before
hearing, the suit must abate on the principle of the maxim actio personalis moritur cum persona
(action dies with the person). But that maxim has application only when the action is one for
damages for personal wrong, and as a suit for partition is a suit for property, the rule in
question has no application here.
No Divesting of any Estate in any person before Adoption
G CASE: NAMDEV-AHWWHAT GHADGE v CHAN0RAKANT GANPAT GHADGE [(2003) 4 SCC 71]
[The adopted child shall not divest any person of any estate, which vested in him or her before the
adoption. If the property by inheritance goes to a collateral and the adopted son is adopted after the
death of the collateral, the adoption cannot divest the property which has vested in the heir of the
collateral.]
In this case, the only question that arises for consideration is whether the adopted son Dattatraya
could divest the property, which devolved on the heirs of Vyankat (sole surviving coparcener)
and vested in them prior to his adoption so as to claim share in the suit property. Vyankat died on
8-2-1978. Adoption of Defendant 6 (Dattatraya) by Defendant 2 (widow of the Vyankat's
brother) took place on 10-6-1978 i.e. about four months after the death of Vyankat.
In other words, the issue was whether adoption of Defendant 6, after the death of the sole
surviving coparcener.
148
Family Law
- II
makes any difference in determining the rights of the adopted son in relation to the family properties. If
the adoption had taken place during the lifetime of Vyankat, there would have been no difficulty
whatsoever in confirming the judgment under challenge in the light of the decision of this Court in Dharma
Shamrao Agalawe v Pandurang Miragu Agalawe (AIR 1988 SC 845).
In the case of Dharma Shamrao, the question that came up for consideration was whether a person
adopted by a Hindu widow after coming into force of the Hindu Adoptions and Maintenance Act (HAMA),
1956, can claim a share in property which had devolved on a sole surviving coparcener on the death of
the husband of the widow, who took him in adoption. The facts in that case were that one Shamrao, who
was governed by the Mitakshara Hindu Law, died leaving behind him two sons Dharma and Miragu.
Miragu died issueless in the year 1928 leaving behind him his widow Champabai. The joint family
property of Dharma and Miragu passed on to the hands of Dharma, the sole surviving coparcener.
Champabai had only right of maintenance in the joint family properties under the law, as it stood then.
She took Pandurang in adoption on 9-8-1968, long after the HAMA came into force. Immediately
thereafter the adopted son Pandurang and Champabai filed a regular civil suit for partition and separate
possession of one-half share in the properties of the joint family. Before the adoption took place, two items of
the joint family properties had been sold in favour of others for consideration. Dharma resisted the suit on
the ground that the adopted son Pandurang was not entitled to claim any share in the properties, which
originally belonged to the joint family in view of clause (c) of the proviso to Sec. 12 of the HAMA.
In Vasant v Dattn, AIR 1987 SC 398, interpreting clause (c) of the proviso to Sec. 12 of the
HAMA, Chinnappa Reddy J., speaking for the Bench, observed that where the joint family property had
passed on to the hands of the remaining members of the coparcenary on the death of one of the
coparceners, no vesting of the property actually took place in the remaining coparceners while their share
in the joint family properties might have increased on the death of one of the coparceners.
149
which could decrease on the introduction of one more member into the family either by birth or
by adoption. It did not involve any question of divesting any person of any estate vested in him
and that the joint family continued to hold the estate, but, with more members than before with
introduction of a member into the joint family by adoption; there was no fresh vesting or
divesting of the estate in any way.
This Court in the case of Dharma aforementioned respectfully agreed with the above
observations made in Vasant v Dattu: "The joint family property does not cease to be joint family
property when it passes to the hands of a sole surviving coparcener. If a son is born to the sole
surviving coparcener, the said properties become the joint family properties in his hands and in
the hands of his son. The only difference between the right of a manager of a joint Hindu family
over the joint family properties where there are two or more coparceners and the right of a sole
surviving coparcener in respect of the joint family properties is that while the former can alienate
the joint family properties only for legal necessity or for family benefit, the latter is entitled to
dispose of the coparcenary property as if it were his separate property as long as he remains a
sole surviving coparcener and he may sell or mortgage the coparcenary property even though
there is no legal necessity or family benefit or may even make a gift of the coparcenary property.
If a son is subsequently born to or adopted by the sole surviving coparcener or a new
coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener
an alienation made by the sole surviving coparcener before the birth of a new coparcener or the
induction of a coparcener by adoption into the family, whether by way of sale, mortgage or gift
would however stand, for the coparcener who is born or adopted after the alienation cannot object
to alienations made before he was begotten or adopted."
Finally, this Court concluded that the joint family property continued to remain in the hands
of Dharma, the appellant, as joint family properties and that on his adoption, Pandurang, the first
respondent, became a member of the coparcenary entitled to claim one-half share in them
except the items, which had been sold by Dharma, the appellant.
Family Law
- II
From the facts in Dharma case it is clear that adoption of Pandurang took place during the lifetime
of Dharma and as such Pandurang became a member of the coparcenary to claim the share. In the present
case, on the date of death of Vyankat, the properties of the joint family in his hands devolved on his heirs
i.e. his son and daughter as per Sec. 6 of the Hindu Succession Act, 1956, subject to rights of
maintenance of Defendant 2 Krishnabai. Opening of succession and devolving of properties operate
immediately on the death of Vyankat and the joint family properties stood vested in the heirs of Vyankat.
Defendant 6 was adopted by Defendant 2 about four months after the death of Vyankat by which time
the properties had already been vested in his heirs.
It is plain and clear that an adopted child shall be deemed to be the child of his or her adopted father
or mother for all purposes with effect from the date of adoption as is evident from the main part of
Section 12, HAMA. Proviso (c) to Sec. 12 in clear terms states that 'the adopted child shall not divest
any person of any estate, which vested in him or her before the adoption.*
In Jivaji Annaji v Hanmant Ramchandra (AIR 1950 Bom. 360), dealing with a case of adoption after
the collateral's death and the principle of relation back, after referring to a number of Privy Council
decisions, the court held: An adoption relates back to the death of the adoptive father and an adopted son
must be looked upon as if he was in existence, at the date of the death of the adoptive father. But it is
not correct proposition to say that the rights of an adopted son are in all respects identical with that of a
natural-born son. The principle of relation back is not an absolute principle but it has certain limitations.
For instance, one limitation is that any lawful alienation made by the last absolute owner would be
binding on the adopted son. The question we have to consider is whether there is further limitation on
the rights of the adopted son, viz. if the property by inheritance goes to a collateral and the adopted son is
adopted after the death of the collateral, the adoption cannot divest the property which has vested in the
heir of the collateral. Reliance is placed on the Privy Council decision in Bhuhaneswari Debi v Nilcomiil
Lahir, 1LR (1885) 12 Cal 18. There it was
P a r t i t i o n and Reu n io n
151
expressly held that according to Hindu law, an adoption after the death of a collateral does not
entitle an adopted son to come in as heir to the collateral.
In Sawan Ram v Kalawanti (AIR 1967 SC 1761), the Apex Court observed that the
HAMA by virtue of proviso (c) to Sec. 12 has narrowed down the rights of an adopted child as
compared with the rights of a child born posthumously. Under the Shastric law, if a child was
adopted by a widow, he was treated as a natural-born child and, consequently, he could divest
other members of the family of rights vested in them prior to his adoption. It was only with the
limited object of avoiding any such consequence on the adoption of a child by a Hindu widow
that proviso (c) to Sec. 12 has been incorporated.
Thus, in the present case, Defendant 6, after having been adopted after the death of
Vyankat and after the properties vested in his heirs, is not entitled for share in the suit properties.]
Modes of Partition12
Partition may be effected by institution of a suit, by submitting the dispute as to division of the
properties to arbitration, by a demand for a share in the properties, or by conduct which evinces an
intention to sever the joint family; it may also be effected by agreement to divide the property.
Partition can be made orally also. It need not be in writing. It may be noted that a" partition does
not amount to a 'transfer' within the meaning of the Transfer of Property Act, 1882.Jf partition is
reduced to writing and the value of the property partitioned is more than Rs. 100, it must be
properly attested and registered (otherwise it will not be admissible in evidence). However, where it
is not registered but acknowledges a prior partition or an intention to separate it can be admitted in
evidence (Siromani v Hemkumar AIR 1968 SC 1299). Post 2005 Amendment, partition is now required
to be registered (discussed later).
Partition by conduct - There can be numerous circumstances from which a 'partition by conduct' could
be inferred. For instance, a partition
12. What are the modalities of demanding or effecting a partition? [D.U.-201C\

152
Family Law
- II
is effected by a unilateral declaration of a coparcener 'I am separate from thee.' Similar would be the
case when a coparcener renounces or relinquishes his share in the JFP.
When the family members actually divide the property by metes and bounds and each member is
in separate possession and enjoyment of the share allotted to him, a partition is said to take place by
conduct. A partition merely requires an intention to separate; it can therefore be effected by a notice,
whether followed by a suit or not.
Partition by suit/arbitration - When a coparcener files a suit for partition, it amounts to an unequivocal
intimation of the intention to sever, and consequently, severance of status takes place from the date the suit
is instituted. A decree may be necessary for working out the result of severance but severance has taken
place as from the date of the filing of the suit and not from the date of the decree. Partition is not
effected by a decree of court. Even if such a suit were to be dismissed, that would not affect the
division in status, which must be held to have taken place, when the action was instituted (Kewal
Narain v Prabhu Lai AIR 1917 PC 39). If the plaintiff dies during pendency of the suit, the same can be
continued by his legal representatives.
An agreement between the members of the joint family whereby they appoint an arbitrator to
arbitrate and divide the property operates as a partition from the date thereof. It does not matter that no
award has been made.
Partition by agreement - All the coparceners might decide to end their joint status; it is called 'partition by
agreement.' It is not necessary that a desire to effect a severance must be initiated either by the father
or by one coparcener alone. The moment there is a genuine and bona fide agreement to effect a severance
of status, the shares becomes fixed and the doctrine of survivorship no longer applies (P.G. Hariharan v
Padaril AIR 1994 Ker 36). In a partition by agreement, the shares of coparceners may not be equal;
however, they should not be unjust or unfair or adversely affect the minor's interest. A partition by
agreement may also include within itself, a family arrangement, where disputed rights are compromised so
as to conserve family property and avoid litigation (Ramcharan v Girijanandam AIR 1966 SC 323).
There might be an agreement not to effect a partition till a specified time or till the happening of a
certain event or even till the life of a
153
coparcener. However, it cannot be a postponement of a partition in perpetuity or an agreement

not to effect a partition at all, ever.
Partition cannot be recognized by the court if the agreement of partition is not acted upon
(Kctlwa Devadattam v Union of India AIR 1964 SC 880). If the partition is in fact acted upon, it
will be upheld even if its object was to defeat the creditors.
Automatic severance of status - This is called Tnvoluntary/Forced partition' or 'Partition by specific
conduct.' In certain cases a coparcener may not demand a partition voluntarily, yet, due to a particular
conduct or some action on his part, he finds himself out of the coparcenary with his share handed over
to him. It is not an expulsion. Two specific conducts of a coparcener would bring upon him, an ipso
facto separate status: the first is where he renounces his religion and the second is where he gets
married to a non-Hindu under the Special Marriage Act,
1954.
Conversion of a coparcener to a non-Hindu religion (i.e. Islam, Christianity, etc.) operates as an
automatic severance of status of the member from others, but it does not amount to severance of
status among the other members inter se. From the date of conversion, he ceases to be a coparcener,
and therefore, loses his right of survivorship. He is entitled to receive share in the JFP as it stood "at
the date of
conversion
For example, a coparcenary consists of a father and his two sons 51 and S2. Each of them, so long
as they are undivided, owns a probable one-third (l/3rd) share in the coparcenary property. SI renounces his
religion and, thus, becomes a separate member from the family. From that very moment, his probable
share becomes a fixed share (1/ 3rd). Even before his share is physically demarcated and handed over
to him, his father dies. The share of SI will continue to be l/3rd, and the father's l/3rd share will be taken
by S2 as a sole surviving coparcener. S1, already a separated member, will not get the benefit of the
father's death, as his conversion resulted in a severance of his status instantly and he was no longer a
member of the family which his father headed.14
13. Prior to the Caste Disabilities Removal Act, 1850, the conversion of a coparcener to another religion resulted in an expulsion from the joint
family and operated as a forfeiture of his rights in the coparcenary property
14. See P. Pradhan Saxena, Family Law II, 3'" ed., pp. 218-219 (2011).
154 Family Law - II
The primary reason why a convert ceases to be a member of the HJF and coparcenary is that in
India, amongst the multiplicity of family laws, the religion of a person determines which family law will
govern his family relations. Till a person is a Hindu, it is the Hindu law that applied to him, but the
moment he converts to another religion, his family law also changes (Milter Sen Singh v Maqhul Hasan
Khan AIR 1930 PC 251). Re-conversion of the convert to Hinduism does not ipso facto bring about his
coparcenary relationship in the absence of subsequent act pointing to a re-union.
Exactly, the same result follows if a coparcener marries a 'non-Hindu' under the Special Marriage
Act, 1954. The religion of a spouse became a material factor after 1976. Before 1976, where a Hindu man
marries a Hindu or a non-Hindu woman under this Act, there occurred an automatic severance from
coparcenary. Post 1976, where a Hindu man marries a non-Hindu woman, under this Act, such marriage
effects his automatic severance from the coparcenary. But where his spouse is a Hindu, he continues to be
a member of the coparcenary as before. Therefore, presently, it is not the performance of the marriage of
a coparcener under the Special Marriage Act, that would effect his severance from the coparcenary,
but his marriage to a non-Hindu, under this Act, that would operate as an automatic partition from the
coparcenary (Girdhari Lai v Fateh C'hand AIR 1955 MB 148).15
Partition by Will - After 1956, the intention of a coparcener to separate expressed in his Will would bring
about partition. Before 1956, there was no scope for the operation of a Will. Because Will of a person
operates from his death, and the undivided interest of a coparcener in the JFP devolved on his death by
the rule of survivorship on his surviving coparceners.
Sec. 30 of the H.S. Act has now conferred the right upon a coparcener to make a testamentary
disposition of his interest in the JFP. He can use this right for separation also from the joint family. He can
make a valid Will to the effect that his interest should be separated to be donated for a charitable
purpose or to a particular person.
15. Id, pp. 219-220.

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

A HJF comprised of four brothers, A, B, C, and, D. B, who was unhappy with the style of functioning of A as the Karta, filed a suit
for partition against him in a court of law, claiming one fourth share in the coparcenary property. During the pendency of the
litigation, A (Karta) died and now B wanted to withdraw the suit, and assume charge as the Karta. Can he do so? Discuss. [D.U.-
2011]
[Hint. B cannot withdraw the suit i.e. demand for partition. By filing the suit, B became a divided or separated member of the family.
Thus, B cannot assume charge as the Karta of the family.]
156
Family Law
- II
post office, the family members intervened, tried to bring about an amicable settlement. At this, the
Karta withdrew the notice. However, no agreement could be reached subsequently. The Karta signed a
vakalatnama and instructed his lawyer to institute a suit for partition. The Karta, however, died on the
same day when the suit was instituted.
The Apex Court held that it is not necessary that the communication of intention to separate must be
through a notice, sent through post. In other words, it is not necessary that there should be a formal
dispatch to or receipt by other family members of the communication. When the Karta dictated and signed
the notice in the hospital, one of the coparceners was present. Also, the other family members came to know
about the Karta's notice, and, persuaded to withdraw it. That means the demand made by the Karta was
"sufficiently known" to all the coparceners, and therefore, the severance of status had already taken place.
The withdrawal of notice took place subsequent to the severance of status. Further, the family members
could not agree to an amicable solute 'on (for reunion). Still further, the deceased Karta had instructed
his lawyer to file a suit for partition, which was filed on the day he died. The Karta, thus, died as a
separate member of the family. He became a divided member from the date of notice.
Partial Partition
It often happens that only some coparceners want partition, while the others do not. In such cases, those
who want partition may take away their share and the rest will continue to remain joint. A partial partition
may be: partial as to property, or partial as to persons. Despite the permissibility of a partial partition by
agreement among all coparceners, where a partition occurs, the presumption will be that it is a complete
partition [Kollomal (HUF) v C/T (1982) 1 SCC 447]. Where a person alleges that it was a partial
partition, it is he who will have to prove it.
A person cannot be a separate member with respect to some of the members, while remaining
joint with the others, unless the latter are from his own branch. The separated member cannot claim any
share out of the coparcenary property on the death of any c arcener in the family of which he previously
was a member {Meva Devi v Om Prakash Jagannath Agarwal AIR 2008 Chh 13). In this case, the
separated son was allowed by the father to live in the joint family home as he had no
suitable alternative accommodation. Upon the father's death, the youngest son became the owner of the
entire JFP. He filed a suit for eviction of his elder brother. It was held that he was entitled in law to
reclaim the possession of this property from his separated elder brother.
A partition may be partial with respect to property. All coparceners may maintain a joint status with
respect to some of the property viz. the house. Further, certain properties are impartible, or are under a.
lease or mortgage, etc. or are situated outside India, thus not subject to partition. Still further, there
might be statutory prohibitions regarding the division of the property viz. the anti-fragmentation laws.
Rules relating to Division of Property

(Allotment and Distribution of Shares)
(1) A partition has to be effected between two generations as the first step e.g. between a father and his
sons. The father takes the share as his exclusive or separate property with respect to the sons, while
the son takes it as coparcenary property when he has male issues. In the absence of any male issues, he
takes the property as a sole surviving coparcener.
(2) Father, sons and mothers (including the step-mother) share equally i.e. per capita (per head).
Similarly, brothers get an equal share.
(3) If partition takes place between branches, rule of per stripes (i.e. according to the stock) and per capita
applies. Each branch takes one share and members of each branch take equal share (per capita). In other
words, the head of a branch gets one share and then that share is further divided between him, his
sons, their mothers equally and so on.
(4) Son of predeceased son takes equal to his father's share by the 'doctrine of representation.' Thus the
branch of a dead coparcener is also entitled to a share if he leaves behind one or more coparcener sons,
grandsons and great grandsons.
(5) The following females are entitled to a share on partition -
father's wife (if partition occurs between father and son),
mother (if partition occurs between sons), and grandmother (if
partition occurs between son and son of a predeceased son).
158 Illustrations
Family Law - II
W2-W'-Father
w3-s'
S2
s3 s4
W4-SS!
SS5 SS2
sss1
ssss1
In this figure, per capita distribution of share will be made first between father, W,, W2 (two wives), S,,
branch of S2, and S3, each of the six getting an equal share (1/6). The branch of S2 (dead) will be
represented by SS2. Since S4 died without a male issue, his branch remains unrepresented and hence
gets nothing.
The l/6th share going to S, will further be divided equally between S1, SS,, SS5 and W3, each sharing
equally, i.e. 1/24 each. The 1/24 share of SS, will further be divided between SS,, W4 and SSS, each
sharing equally, i.e. 1/72 each.
SSSS, will get nothing since he is more than four degrees removed from the last male holder, i.e.,
Father, and hence not a coparcener.
In another illustration, a HJF consists of the father F, his wife W, two sons S, and S2 and their wives
W, and W2, and one grandson S3 (son of S, and W,). Here, the partition will be effected between the
father and his two sons S, and S2. The father's wife would also be entitled to get a share equal to that
of a son. Thus, F, W, S,, and S2, each will take l/4th of the property.
F and W will take it as their separate shares, but S, will take it with his branch. Therefore, the
next partition will be between S, and his son S3; similarly, W, will get a share equal to that of S3.
Thus, 1/
P a rt i t io n and R e u n i o n
159
4th
share of S, will be divided into three equal parts and each of them will get l/12th share.
The one-fourth share given to S2 will be held by him as a 'sole surviving coparcener.' W2 will
not get any share, as there is no partition n this branch.
The final shares and character of property will be as follows: F - l/4th (separate); W - l/4th
(separate); S, - 1/12* (separate); W, -[/12th (separate); S3 - 1/12th (sole surviving coparcener); S2 -
l/4th sole surviving coparcener); W2 - Nil.
Re-opening of Partition
Under Shastric law, 'once a partition is made, once a damsel is given in marriage and once a gift is
made is irrevocable and irretractable' (Manu). A partition, therefore, is generally irrevocable. The
logic behind is that erstwhile coparceners hold their shares as their separate and exclusive
properties; they may enter into transactions relating to them, so as to create valid titles in favour of
even third parties.
However, there are certain exceptions to this general principle that 'shares are divided only once.'
It may become imperative in certain situations to have a re-distribution of properties in order to
prevent gross injustice to the members of a family. However, a plea that the partition was unfair
cannot be countenanced when the facts show that it has been undertaken after due and proper
deliberations.
Where readjustment of properties is not possible the entire partition has to be re-opened. A
partition can be re-opened under the following circumstances:
(1) Fraud - fraudulent distribution of properties, unless the person affected by the fraud acquiesces in with
full knowledge of all material facts. A coparcener may conceal the JFP at the time of partition, to
gain an unjust and undue advantage over the others; the partition can be re-opened on the discovery
of this fraud (Bishambar Nath v Ida Arnar AIR 1937 PC 105). However, in a suit for a re-opening
of partition, fraud cannot be added as a ground at a later stage of trial.
(2) Son in womb if at the time of partition a son is in womb, and no share is reserved for him, he can get
the partition re-opened.
160
Family Law
- II
(3) Son conceived and born after partition -- can get the partition re-opened where the father does not take a
share on partition.
(4) Adopted son - is entitled to re-open the partition.
(5) Disqualified coparcener - recovering from his disqualification can get the partition re-opened.
(6) Absentee coparcener - if at the time of partition a coparcener is absent and no share is allotted to him, he
can get the partition re-opened.
(7) Minor coparcener - when a partition is effected during the minority of a coparcener, he can get the
partition re-opened ii he can show that partition was unfair, prejudicial or unjust.
(8) Property added after partition - when some properties were left out, either by mistake or deliberately,
or when some properties (which have been earlier lost/seized) were discovered/ recovered. If a distribution
of the additional properties can be effectively made without re-opening the partition, then the earlier partition
should not be disturbed.
Re-union
'Reunion' means to unite again. In relation to a HJF, it signifies a joint status, followed by a partition and
then, followed again by a restoration of the joint family status. The coparceners may live or trade
together after a partition, but that is different from a formal reunion. The reunion restores the joint family to
its former status and position; it became subject to all the incidents of coparcenary.
"He who, being once separated, dwells again, through affection with father, brother or a paternal
uncle, is termed re-united with him' (a text of Brihaspati). It is not available, generally, to all
coparceners
Reunion is, thus, permitted exclusively between (a) father and son, (b) paternal uncle and
nephew, and (c) brothers {not cousins) Reunion is not permitted with grandsons or after-born sons.
Thus, if a partition took place between a father F and two sons A and B Subsequently, a son, S, is born to
F. A or B can reunite with their Father F or with each other but they cannot reunite with S. Thus, a
reunion can only take place between persons who were parties to the origins petition [Balabux v
Rukhmabai (1903) 30 IA 130]. Further, it is only
161
at the instance of a coparcener that a reunion can take place [Nanu Ram v Radhabai (1942) ILR
Nag 24].
Reunion may be effected through an express agreement, even oral, or may be implied from
conduct. Mere living together is not enough to establish reunion. An unequivocal intention re-
establishing community of interest and unity of possession must be there. A minor cannot reunite
since he has no capacity to agree. However, his father or guardian may enter into a reunion on his
behalf.
A reunion is viewed as a desire on the part of coparceners to become a part of the family
again for the sake of love and affection; it is not seen as a profitable, commercial opportunism.
Therefore, it is not necessary at all that the parties bring into the common pool, the properties in the
same ratio in which they had, at the time of partition, taken them. Where the son has dissipated all his
properties, a reunion between him and his father is valid [Venkanna v Venkatanarayana (1947)
ILR Mad 382].17
Reunion, unlike partition, is very uncommon. Thus, a reunion has to be very strictly proved.
The burden of proof is heavy on the party asserting reunion. It may be noted that while partition
could be a unilateral act, a reunion can only be effected through mutual agreement whereby all the
members agree to form a Hindu joint family again.
Daughter's Right to Challenge Partition, etc. [2005 Amendment]

Sec. 6 (1): On and from the commencement of the H.S.A. (Amendment) Act, 2005, in a joint Hindu
family governed by the Mitakshara law, the daughter of a coparcener shall:
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener.
17. See P. Pradhan Saxena, Family Law II, 3,:l ed., p. 252 (2011).
162
Family Law - II
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken place before
the 20th day of December 2004.
Proviso to Sec. 6(1)

Under the Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra amendments to the Hindu Succession
Act 1956, daughters of coparceners, who were married on the day the amendment was enforced in each
State respectively, could not become coparceners. Only daughters who were "unmarried on such date"
could become coparceners (they, however, continued to be coparceners even after marriage). It was
considered necessary as a contrary stand would have disturbed settled claims and titles.
Under the 2005 Amendment, a daughter of a coparcener is included as a coparcener herself without
any reference or limitation with respect to her marital status. Therefore, after 6th September 2005, a
daughter who was married even before this date would be a coparcener. However, to avoid unnecessary
confusion and litigation, proviso to Sec. 6(1) states: 'Provided that nothing contained in this sub-section
shall affect or invalidate any disposition or alienation including any partition or testamentary disposition
effected before 20th December 2004'. This was necessary so that settled rights should not be disturbed.
The married daughter, even though might have been a coparcener, would not be entitled to reopen the
partition already effected, nor would be empowered to challenge the alienation effected before such date i.e.
20th December 2004. She could succeed if the male members have not effected a partition before such
date.18
The amendment is prospective in application and does not benefit daughters where an undivided
coparcener dies prior to the amendment.
Where a partition suit is pending amongst brothers (before the amended provision became effective),
and the sisters are sought to be joined as parties in the suit (after the amended provision), they would be
entitled to be joined, as the partition contemplated in the section had not taken place and the sisters are to
be treated as coparceners on an
18. See P. Pradhan Saxena, Family Law II, 2 Ed., p. 344 (2007).
Partition and R e u n i o n 163
al footing with the brothers {Surendra Nath Sharma v Rajendra nor (2009) 1 HLR 105 (Jhar)].
partition to be Registered [2005 Amendment]

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

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

coparcenary. A, who is displeased with B (Karta) informs him
on 4-6-86 on phone: "I am thinking of separating from the
joint family". Two days later A sends a registered letter to B
expressing his unequivocal intention to separate from the
joint family. On 15-6-86 A makes a gift of all property in favour
of D. A's death occurs on 20-6-86. Before the receipt of the
letter B alienates an item of JFP on 14-6-86 to meet the
marriage expenses of C's daughter. The letter sent by A
actually reaches B on 2-7-86. Examine the validity of A's gift
and of B's alienation. [C.LC-91; L.C.II-96 (Sopp.)]
164
Family Law - II
A.l Partition
According to the Mitakshara law, no individual member in the coparcenary property has any specific
share in the property so long as the family is joint. So partition according to the law, consists in a
numerical division of property. In other words, partition consists in defining the share of the coparceners
in the JFP ('severance of status" an actual division of the property by metes and bounds is not necessary
Thus, even after partition, the coparceners may hold the property jointly without affecting the status of
property.
In Mitakshara law, every coparcener has the right to demand partition (major/minor/adopted, but
not illegitimate or disqualified e.g; insane). No female (except the widow under 1937 Act) has a right to
partition (the position has been changed after the 2005 Amendment to the H.S. Act), but if partition
occurs, there are certain females who are entitled to a share, viz. father's wife, mother and grandmother.
Effecting of Partition
The moment a clear, definite, unambiguous and unequivocal intention to separate ('1 separate from thee') is
communicated to other coparceners during the lifetime of the coparcener demanding the partition, the
division in status takes place. The following important points may be noted in this regard :-
Coparcener must have formed a fixed and definite intention to separate, must not merely be in contemplation of it
(viz., 'I am thinking of separating').
(ii) There must be intimation, indication or representation of this intention to other coparceners.
There should be a clear and unequivocal expression, by words (written or oral) or conduct (separation in food,
dwelling, separate income and expenditure, separate business transaction, etc.)
iii) The intention may be communicated by telephone, post, third person (e.g. friend) etc.
iv) The unequivocal communication of intention must be the conscious and informed act of the coparcener.
V) Unless intention is brought to the knowledge of other coparceners, it is uncommunicated intention, which is
no intention in the eyes of law.
165
vii) The partition is effected from the date on which communication is put into the transmission (i.e.
letter is posted) and not from the date on which it reaches other coparceners (Raghavamma v
Chenchamma AIR 1964 SC 136).
iii) If a coparcener dies after communicating his intention to separate but before it reaches other coparceners,
then it cannot amount to partition. Because for a partition to be effected, the separating coparcener
must communicate his intention during his lifetime. And, as noted above, an intention not brought to
the knowledge of other coparceners is uncommunicated intention. Moreover, according to the
doctrine of "relation back", the vested rights that might accrue in the interval between the date of
transmission and date of receipt are preserved (thus, the separating coparcener may die before his
intention conveyed, with the result that his interest survives to other members).
ix) Generally, notice (communication of intention) to Karta should be there, in order to corroborate, notice
must also go to other adult coparceners.
x) Going for partition is a matter of individual decision of the coparcener (unilateral act), assent or
dissent of the other coparceners is immaterial. Also, motive of the separating coparcener is
immaterial in this context.
xi) If third party informs and the separating coparcener says he is not authorized, there is no partition. In
case third party informs and coparcener dies, he was the only one who could have said that third party
was not authorized therefore valid communication has taken place, and partition is effected
(Puttrangamma v Rangamma AIR 1968 SC 1018).
xii) Once there is communication, the intention to separate cannot be withdrawn, for example, when a letter
was posted and letter withdrawn from the post office, but the news of contents of the letter
somehow reached other coparceners, partition was complete and irrevocable (Puttrangamma v
Rangamma).
Importance (Effect or Consequences) of Partition

The importance of the partition lies in the following respects:
166
Family Law - II
(i) By partition, the shares of the coparceners become defined and stop fluctuating as a result of births and
deaths in the family
(ii) After partition, a person's share is his separate property and will pass by succession to his heirs.
, (iii) A member of an undivided joint family has no right to dispose of his share in the property by will, gift or
alienation for value (except in some States). A divided member can make a gift or devise it by will or
alienate it for value like his separate property
(iv) The undivided interest of a coparcener passes on his death to the surviving coparceners. The share
allotted to a coparcener on partition passes on his death to his heirs, except where he has remained
joint with his own male issues. In such case it will pass to them by survivorship.
(v) Wife, mother and grandmother are entitled to a share in join property in case there is a partition between
male members.
(vi) In case a coparcener separates but had no male/female issue he would hold the property as a sole
surviving coparcener. The male collaterals from whom he had separated would have no claim over his
property. If he dies as a bachelor (without making a Will), and is survived by his father or brothers, from
whom he had earlier separated, they would take the property as per the laws of inheritance and not
under the doctrine o survivorship.

i A is an undivided coparcener because the communication of his intention to separate becomes complete (i.e.
brought to the knowledge of B) after A's death. The telephonic conversation ('I am thinking of
separating' did not make out a clear unequivocal intention on the A's part.
Even after 1956, a coparcener cannot make a valid gift of undivided coparcenary interest. Therefore D
is not entitled to A's share under a gift-deed. B, being the karta can make alienation of property for legal
necessity. Marriage of a coparcener's daughter is legal necessity therefore B's alienation is valid. .
Q.2(a) Mohan, a coparcener, writes a letter on March 10, 1945 addressed to the karta expressing his intention to separate from
the joint family and also informs Kumar (a common
167
friend of the family) of his intention. Intending to post the letter, while on his way to office, his pocket gets picked in a
bus and he loses the letter. In the meantime, on March 13, 1945, Kumar conveys to the family of Mohan's desire to
separate. However, on March 12, 1945, a portion of the family property was attached in furtherance of a court decree.
Is Mohan still supposed to be joint with his family or severance of status has taken place? How does the court decree
affect his share in JFP? Decide.
(b) Gurupad, a coparcener, met with a road accident on April 3, 1993 and was admitted to private nursing home. He wrote a
letter on April 6, 1993 expressing his intention to separate from the joint family. He executed a Will on April 7, 1993
with respect to his undivided interest in favour of his wife, Shantabai and died on the same day. The letter was received
by the other members of the family on April 10, 1993. Shantabai, being the only heir of her deceased husband, claims
the coparcenary interest of her husband under the Will. Can she succeed? Also discuss her claims under the following
circumstances:-
(i) If Gurupad had died without making a Will in 1993 and 1953 respectively.
(ii) If Gurupad had died in 1952 after executing a Will. „•■
(lii) If Gurupad's share in JFP had been attached in an execution proceeding after he sent the letter but before his death?
[D.U.-2008\[C.LC.-92/93/94/95J96\
A.2 (a) For the law relating to partition See A.l. When a coparcener communicates his clear intention to
separate from the joint family, partition takes place. This intention may be communicated by a third
person e.g. friend (Puttrangamma v Rangamma). The attachment of a part of family property by a
court decree on March 12, 1945 tantamount to the creation of a vested right, and it is binding on
all undivided coparceners.
The partition, in the present case, becomes complete when on March 13, 1945 Mohan's intention
was conveyed to the family by Kumar. But the partition will be effective from the date when Mohan
expressed his
168 Family Law - II
intention to separate, i.e., March 10, 1945 (Doctrine of Relation Back, Raghavamma v Chenchamma).
But vested rights (which occurred between March 10 and March 13) are not affected by this doctrine.
Therefore, even though Mohan has been separated from joint family, his share in the JFP is reduced
proportionately to the property attached by the court decree.}
u (b) Before 1956, a coparcener could not bequeath his undivided interest by Will. But under Sec. 30, Hindu
Succession Act, a coparcener can make a Will of his undivided share.
In the present case, the partition has not been effected because Gurupad's letter reached the other
coparceners after his death. The communication must have reached the other coparceners during the
lifetime of the separating coparcener {Raghavamma v Chenchamma). However, in view of Sec. 30, H.S.A.,
Gurupad can validly make a Will of his undivided coparcenary interest. Therefore, Shantabai can
succeed to the coparcenary interest of her husband under the Will,
. (i) If Gurupad had died without making a Will then also Shantabai would get this property because she is a
female Class I heir and proviso to Sec. 6 (Hindu Succession Act) would apply to the devolution of
coparcenary interest of the deceased. If Gurupad had died without making a will, before 1956, then she
would get a limited estate in his coparcenary interest.)
(ii) If Gurupad had died in 1952 after executing a Will, then such Will would be invalid because the Hindu
Succession Act (which validates such Wills) came into operation in 1956. But, here also, Shantabai
would get a limited estate in his coparcenary interest due to the provisions of the Hindu Women's
Right to Property Act, 1937.
(iii) The attachment of Gurupad's share is a creation of vested right. If Gurupad's share had been attached
before his death, then Shantabai cannot get any property, because the vested rights which accrue in between
the date of expression of intention and the date when such expression is brought to the knowledge of
other coparceners, are preserved {Raghavamma v Chenchamma).
169
3.3 (a) A JHF based in Delhi comprises of karta X, his brother Y, two
sons of X, wife of Y. On 1-1-90, Y went to Haridwar and from
there he wrote a letter to X seeking partition of JHF property.
The said letter was received by X on 8-1-90. On 4-1-90, X had
sold the entire property of the JHF to meet out the medical
expenses of his older son who was suffering from cancer. Y
files a suit for separate possession of his share and
challenged the sale. Decide, j [L.C.I-94]
(b) A mitakshara coparcener Sent a registered letter from Bombay

to his family at Delhi on 7-2-95 demanding his share in the
JFP. On his way back from post office he met with a serious
accident and went into coma and ultimately died in state of
unconsciousness on 15-2-95. On 11-2-95 the family received
the letter but claimed that the said coparcener died
unconscious and hence undivided. Plead for the widow of the
coparcener. [L.C./-95]
(a) For the law relating to partition, See A.l. the present case, the partition became complete on 8-1-
90, when Y's letter- was received by X. But the partition will be effective from the date when Y
sent his letter, i.e. 1-1-90 (doctrine of relation back). However, the vested rights which accrued
between these two dates will preserved {Raghavamma v Chenchamma). X, the karta, can alienate ;
JFP to meet out the medical expenses of his elder son (on account 'legal necessity'). Therefore, Y
cannot challenge the alienation made by X (b) The communication of the intention to separate must
reach the other coparceners during the lifetime of the separating coparcener. In the present case, the
partition didn't became complete on 11-2-95 when the family received the letter. Because a person in
state of 'coma' is considered 'dead' for many purposes. Brain-death has also been recognized in recent
times. Thus the coparcener's widow cannot claim the separate share of the deceased,
0..4(a) Can a minor coparcener ask for partition of the JFP ? If so,
in what circumstances and how can he exercise his right?
Discuss. [D.U.-2008 (Supp.)l2009][L.C.II-95\ L.C./-94]
170 Family Law-II
(b) A Mitakshara joint family consisted of F, his wife W and his minor son aged 2 years. F developed illicit relations with a
widow and started ill-treating W and S. W files a suit for partition of the JFP against F, claiming 1/3 property for S and 1/3
property for herself. How would you decide the dispute What would be your answer in case S dies during the pendency of the
suit? [LC.//-9I
(c) A minor Mitakshara coparcener sends, through his maternal uncle, a registered notice to other coparceners for partition of
JFP. The adult coparceners pay no heed to the notice; on the contrary, they sell a good part of family property and purchase
residential flats in their own names out of the proceeds. A day before the suit was to be filed for partition, the minor dies in
an accident. Plead for the heirs of the minor. [LC./-9I
A.4 (a) Minor's Right to Demand Partition
,'A minor coparcener has an equal right with the adult coparceners to demand partition (Hindu law makes no
distinction between a major and minor coparcener in respect of their rights in JFP). But since a minor
lacks legal capacity, he has to exercise this right through a next friend (well-wisher) or his guardian. When
the guardian or the next friend files a suit for partition on behalf of the minor, the court has to be satisfied
that the partition will be for the minor’s benefit.
If the court comes to the finding that the proposed partition is not for the minor's benefit, the partition
will not be allowed. The court is not bound to pass the decree for partition unlike in the case of a major
coparcener's suit. It cannot be said that in all cases where a suit for partition is instituted on minor's
behalf, the court will actually effect a partition. "A minor is a person of immature intellect and the court
acting as parens patriae has the duty to protect minor's interest. The onus of proof that the partition was
just and fair is on the party supporting the partition", [Ratnam v Kuppuswami (1976) 1 SCC 214].
A refusal of the father to maintain a minor son, his (father's) immoral behaviour and the
investment of joint family funds into speculative transactions, would be sufficient for the courts to
conclude that a partition would benefit the minor [Nagappa Chettiar v Subramanian (1946) ILR Mad
103]. However, the mere fact that minor sons were born to the second wife, would not lead to a
presumption
Pa rtit io n and R e u n i o n 171
that a partition would be beneficial to the minor [Appalaswami v Suryanarayana Murti (1948) ILR
Mad 440].
Partition takes effect from the date of institution of the suit and not from the date of the court's
order finding that the partition is for the welfare of the minor.| In Pedasubhayya v Akkamma (AIR 1958
SC 1042) the court observed: "The true effect of a court's decision that the action is beneficial to the
minor is not to create in the minor proprio vigore a right which he did not possess before but to
recognize the right which had accrued to him, when the person acting on his behalf instituted the
action. Thus what brings about the severance in status is the action of the next friend in instituting the
suit.". It is also now settled that even if a minor dies during the pendency of the suit, and before the
court's determination whether the partition will be for the minor's benefit, the suit can be continued by
the legal representative of the minor Pedasubhayya v Akkamma; Lakkireddi v Lakshamma AIR 1963 SC
1609).
In Aryan Kamal Wadhwa v Biharilal Wadhwa (AIR 2009 Bom 80), the daughter-in-law of the
Karta was having a matrimonial problem with Karta's son. She was awarded maintenance by the court
under the Hindu Marriage Act, 1955. She on behalf of her minor son sought partition of the HUF
property as his next friend claiming one sixth share. The husband (Karta's son) contended that the
family was ready to maintain the child out of the share in the JFP and there was no need of a formal
partition as minor's financial interests were adequately protected by the family. It was held that a
partition of the JFP through the filing of a suit by the next friend (mother in the present case) can be
validly effected. The court opinioned that that the possibility of the father (being young) getting married
again may not be ruled out. In that event he would get other children and may not be in a position to take
care of the interests of this minor. On the other hand, the mother offered to deposit the share of the
minor in the court and to invest it according to the directions of the court showed bona fide on her part.
/It may be noted that it is not necessary that the minor can claim partition only by instituting a suit. He
can do so by giving a notice ^through his friend or guardian. In other words, the partition can be •
effected out of the court. The suit becomes necessary when the adult coparceners are not willing to
effect a partition. It may also be noted that when father partitions, it does not mean that his minor
son's interest also gets severed (Anandi v Naik AIR 1981 Ori 21).
172 Family Law - II
It is also an established rule of Hindu law that presence of minor coparcener is no bar effecting
partition by adult coparceners. Thus, a partition by agreement entered into by adult coparceners, when
there are minor coparceners will be binding on the minors, unless it is unfair or prejudicial to their
interest (Bishnudeo v Seogant AIR 1951 SC 280). In the latter case, the minors can get it aside on
attaining majority. On attaining majority, minors may also sue for the enforcement of the partition.
. (b) If a karta is squandering the JFP to the prejudice of the minor
coparcener, or if he is ill-treating him or discriminating him, or
is, on the whole, unfavourably disposed of towards the minor,
the minor's guardian may deem it proper to effect a partition
on behalf of the minor.
In the present case, W (mother of S), acting as a guardian of her son,
can file a suit for partition but on the behalf of S. since under Hindu
law a female has no right to partition. However, if partition takes place,
she is entitled to a share equal to that of son. If S (minor) dies during
the pendency of the suit, the suit can be continued by W as legal
representative of S (Pedasubhayya v Akkamma, See under the text).J
(c) The severance of status takes place when guardian gives a notice of partition on behalf of the
minor (Grandhi v Grandhi AIR 1953 Mad. 146; Pappaya v Venkatakrishna Rao (1968) 1 An. WR 36).
In the present case, the partition is effected when the minor sends, through his maternal uncle, a registered
notice to other coparceners. As the other coparceners are unwilling to effect a partition, the filing of suit
becomes necessary. However, the minor dies before the filing of the suit. But, still the action can be
continued by the legal representative of the minor. The pleadings on the part of the legal heirs could be
as follows:-
(i) When the law permits a person interested in a minor to act on his behalf, any declaration to become
divided made by him on behalf of the minor must be held to result in severance of status, subject only
to the court's decision that what the next friend has done is for the minor's benefit.
(ii) Thus the status of the minor as separate in estate is brought about by his assertion of right to separate,
whether he obtains a consequential judgment or not.
173
(iii) The rule that 'action dies with the person' has application only when the action is one for damages
for personal wrong, and as a suit for partition is a suit for property, this rule has no application here.
Q.5 How would you distinguish between the terms 'Severance of status' and 'Partition by metes and bounds'?
[LC.II-95/96 (Supp.)]
A.5
Severance of Status
(1) It is the desire to sever himself and enjoy his hitherto undefined and unspecified share separately from others.
Partition by metes and bounds
(1) It consists in a division by which the share of each coparcener with respect to all or any of the joint property is fixed or
defined. In short, it means actual or physical division of JFP.
(2) It is partition in a strict sense, or be jure partition.

(2) It is partition in a larger sense, or de facto partition.
(3) It is a unilateral act, which may be effected orally.

(3) It is essentially a bilateral action, and may be arrived at by agreement, by arbitration or by suit.
(4) Partition in the sense of severance of status or disruption of joint status is complete by partition by metes and bounds.
(4) Thus it is the consequence of a separating coparcener's declaration of the intention to sever.
7 Hindu Law of Succession
Today, we have uniform secular law of succession for all Hindus. Old Hindu law and the customary law
of succession stand abrogated. The Mitakshara bias of preference of males over females and of agnates
over cognates has been considerably whittled down. The Hindu Succession Act preserves the dual
mode of devolution of property viz. by survivorship and by succession, under the Mitakshara School.
The Act bases its rule of succession on the basic Mitakshara principle of propinquity, i.e.,
preference of heirs on the basis of proximity of relationship (based on natural love and affection i.e.
nearness of blood). It does not interfere with the special rights of those who are members of Hindu
Mitakshara coparcenary except to provide rules for devolution of the interest of deceased male in certain
cases. The Act lays down a uniform and comprehensive system of inheritance and applies to persons
governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the other
laws.
The law of succession is classified under the two heads:
(i) Testamentary succession - The testator i.e. person who made the Will, enjoys full freedom of
bequeathing his property -separate (divided) or undivided interest. It deals with rules relating to
devolution of property on relations as well as others.
(ii) Intestate succession - It is based on the law of inheritance viz. rules which determine the mode of
devolution of property of the deceased on the heirs solely on the basis of their relationship to the deceased.
If the person dies without leaving a Will, it is the object of the law of inheritance.
[174]
Hindu Law of S u c c e s s i o n
175
Distinction between Succession and Inheritance - The law of inheritance consists of rules which
determine the mode of devolution of the property of the deceased on heirs solely on the basis of their
relationship to the deceased, while law of succession deals with the rules relating to devolution of
property on relations as well as others.
The Hindu Succession Act, 1956 deals with both testamentary succession (Sec. 30) and intestate
succession. The subject could be divided under the four heads: (1) Succession to a Hindu male,
(2) Succession to a Hindu female, (3) Disqualification of heirs and (4) General rules of
succession. It is important to note that succession opens at the time of the death of the person
whose estate is in question and is governed by this law in force at the time.
Notable Features of the Hindu Succession Act, 1956

The Act not only codifies the law relating to the intestate succession but also amends it. The Act
purports to ovenide all existing laws whether in the shape of texts, enactments, custom or usage
(Sec. 4). The following are some of the distinguishing features of the Act:-
(1) The Act shall apply to all intestate Hindu succession, except to the property of a person to whose
marriage provisions of the Special Marriage Act, 1954 apply, and to the impartible estates, of Rulers
of Indian States, succession to which is regulated by special covenants or agreements or any existing
enactments (Sec. 5).
(2) The Act will not apply to a Mitakshara coparcenary property except when a coparcener dies leaving
behind female heirs mentioned in Sec. 6. The Act lays down new provisions for the devolution of the
property of a male Hindu (Sec. 8) and of a female Hindu (Sec. 15), dying intestate.
(3) H.S.A. and the Joint Family Property - The Act modifies in certain respects law relating to JFP.
Now the undivided interest of a Mitakshara coparcener in the JFP on his death does not necessarily
devolve by an absolute rule of survivorship, but may go by any of the following modes -
(a) By testamentary disposition - A Mitakshara coparcener may dispose of his undivided share through a
Will (Sec. 30).
176 Family Law - II
(b) By survivorship - In case he does not make a Will of his share, it will devolve on the surviving coparceners
by rule of survivorship, except when he dies leaving behind female heirs, etc. under Sec. 6.
(c) By rule of intestate succession - In case he dies intestate survived by one or more of Class I female heirs or
a male heir claiming through a female, his undivided interest in the JFP shall not devolve by survivorship
but by intestate succession to the separate property of a Hindu male (Sec. 6)
(4) The Act abolishes Hindu Women's limited estate and confers on her absolute property right (Sec. 14).
(5) Sec. 23 gives right of residence to a female heir in the dwelling house of his intestate family, if she is
unmarried or is married but discarded or is a widow.
(6) No person shall be disqualified from succeeding on the ground of any disease, defect or deformity or on
any other ground not provided in the Act (Sec. 28).
(7) The rights are created in favour of heirs irrespective of the generations they might have been removed
from the intestate
Important Terms (Sec. 3, H.S.A.)

Intestate - A person who dies without making a Will.
Heir - A person who is entitled to inherit property after the death of the intestate.
Descendants - It mean the offsprings of a person e.g. sons and daughters. The children of sons and
daughters and their children, and so on (up to any degree of descent), are also descendants.
Ascendants - It mean the ancestors of a person e.g. father and mother The father and mother of his father
and mother are also his ascendants and so are their parents up to any degree.
Collaterals - These are descendants in parallel lines, from a common ancestor or ancestress. For instance,
brother is a collateral, so is sister Similarly, paternal uncle and paternal aunt and their children are collaterals
and so are maternal ones.
Agnates - When a person traces his relationship with another wholly through males, he or she is an
agnate. His sex or the sex of the
H i n d u Law of S u c c e s s i o n 177
deceased Hindu is immaterial. For instance, brother, brother's son, son's son, son's son's son, father,
father's father, father's mother, father's father's father or mother, son's daughter, etc. are agnates, thus,
agnates can be descendants, ascendants or collaterals.
Cognates - Whenever in the relationship of a person with another, a female (or females) intervenes
anywhere in the line, one is a cognate to another. For instance, sister's son and daughters; daughter's
sons and daughters; mother's mother and father; father's mother's father and mother; mother's father’s
son and daughters (i.e., maternal uncles and aunts) are all cognates. Thus a cognate may be a
descendant, ascendant or collateral.
Full blood - When the father and mother of two persons are the same,
e.g. 'real' brothers and sisters.
Half blood - When two persons have the same 'father but different mothers. Also called 'consanguine'
brothers and sisters; they are agnates because they inherit through a male (common father).
Uterine blood - When two persons have the same mother but different fathers. They are cognates
because they inherit through a female (common mother).
Legitimate/illegitimate relationship - A person who is born within a lawful wedlock is legitimate, and
he or she is related to his or her parents by legitimate relationship. A person born outside the lawful
wedlock is illegitimate. With father, only legitimate relationship-is recognized. The illegitimate
relationship is recognized to the mother.
SUCCESSION TO A HINDU MALE
The Hindu Succession Act, 1956 debris with the inheritance to - (a) the separate properties of a Mitakshara
male, (b) to the undivided interest in the JFP of a Mitakshara coparcener. The H.S.A. (Amendment) Act,
2005 does not touch 'separate property' except broadening the Class I heirs. However, as discussed later, it
abolished the doctrine of survivorship implicit in Mitakshara coparcenary.
180
Family Law - II
daughters were born out of this relationship. Their relationship had been accepted not only by the society
but also by the family members.
The Supreme Court observed: The courts have consistently held that law presumes in favour of
marriage and against concubinage, when a man and woman have cohabited continuously for a number of
years. In such a case there will be a presumption under Section 114 of the Evidence Act, that they live as
husband and wife and the children born to them will not be illegitimate. However, such presumption can
be rebutted by leading unimpeachable evidence.
It is submitted that conferring legitimacy on children of such relationships would create confusion
and uncertainties regarding the succession rights.
Daughter, son's daughter, son's son's daughter

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

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

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

he computation of the shares of heirs is to be done in accordance with
le rules laid down in Sec. 10.
(i) Sons, daughters, mother and widow of propositus each take one share. If there are more than one
widow, all of them together took one share (On death of any widow, her share will not pass by
survivorship to other widows, but will pass by succession to her own heirs). Thus, all Class I heirs
are not entitled to an equal share.
I
IPI
S> S2 D1 i)2
Each of the above heirs will take one share i.e. 1/5.
[Note - In the above and following illustrations, the deceased Hindu i.e. propositus is indicated by [P];
and, predeceased person enclosed in brackets.]
W1
2 [AH widows will take
together 1/4 share, i.e. 1/12 w3
each.]
(ii) The sons and daughters of the intestate who are living at the
time of his death take one share each. These children of the
intestate may be from different wives. But they will get equal
shares individually. t
(Hi) Among the heirs of branches of predeceased son and predeceased daughter the doctrine of
representation applies, i.e., heirs in each branch would take the same share their parent would have
had if alive. The heirs would take per capita
182
Family Law - II
i.e. per head. Thus, the common share that the branch of the each predeceased son or predeceased
daughter gets will be distributed equally among the heirs of that branch.
It may be noted that unlike the widow of the predeceased son of the intestate, the widower husband of
predeceased daughter will not get any share.
(S1)
SW DS
(D) (S)
—[ (s|s)
DD
SSW SSD SSS
In the above diagram, there are four branches, each will take 1/4. In the branch of (SI) (predeceased)
there is only one heir, SW, she, representing (SI), will take 1/4. In the branch of D there are two heirs,
they, representing (D) will take 1/4 and thus each will get 1/8. In the branch of (SS), there are three
heirs, and each will get 1/12.
Class II Heirs and their Shares

When there is no heir of Class I, the heirs of Class II get a chance to succeed to the property of the
intestate (Sec. 8). According to Sec. 11, U.S.A., Class II heirs are divided into nine categories - the heir in
an earlier category (entry) excludes all heirs in later categories (Sec. 9). Thus, the heirs have preference
in the order of entries.
However, all heirs in one i.e. same category take simultaneously and per capita. Thus the property
will be so divided between them that every one of them (who are in same entry) gets an equal share.
However, full-blood is to be preferred to half-blood.
Before the 2005 Amendment, there were 23 heirs in Class II; four of them have now been placed in
Class I. Thus the number of heirs in Class II is 19. The Nine entries and the heirs are as follows:
H i n d u Law of S u c c e s s i o n
183
(I) Father - He is the only nearest heir who hasn't found a place in Class 1 heirs as under the Mitakshara law,
mother was considered to have greater propinquity than the father. Father is the sole heir in category/entry
I, and in the absence of Class I heirs, takes entire property.
(II) Son's daughter's son; Brother; and Sister - Sister inherits simultaneously with the brother and other heirs
mentioned in Entry II. The rule is when there is any brother or sister by full blood, the brother or sister by
half blood is excluded (Sec. 18). When there is no former, the latter inherits. In the following illustration FS
and FD1 being full blood brother and sister get a share, and half blood sister (FD2) gets excluded.
The brother and sister by uterine blood are excluded. In other words, uterine brothers/sisters are not entitled
to succeed to one another as 'brothers/sisters' under this entry although related by legitimate kinship.
However, if propositus and his brother and sister are all illegitimate children of their mother, such brothers
and sisters are heirs to him.
(F)
------------------------------------------- 1
[P] FS FD1 FD2

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

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

Agnates are as a rule preferred over cognates. Here, agnates and cognates as heirs are those agnates and
cognates which are not included in Class 1 and Class II heirs.
185
Agnates are those relatives which are related wholly through males whether by blood or by
adoption). Cognates are the relatives who are not wholly through males. It would be extremely
rare that a deceased will not be survived by an agnate up to any degree ad infinitum. This makes
the chance of succession to the cognates quite illusory.
B] Succession to a Mitakshara Coparcener's (Undivided) Interest

Sec. 6, H.S.A. - "When the male Hindu dies after commencement of this Act, having at the time of
his birth an interest in a Mitakshara coparcenary property, his intercut in property shall devolve by
survivorship, upon the surviving members of coparcenary, and not in accordance with this Act"
Proviso - If a MitaksHSfa coparcener dies leaving behind a female relative/or a male relative
claiming through a female in Class I, this undivided interest will not devolve by survivorship, but
by succession as provided under the Act (Relations include mother, widow, son's widow, son's
son's widow, daughter, son's daughter, son's son's daughter's son).
Explanation I to Sec. 6 - "For the purpose of this section, the interest of a coparcener shall be
deemed to be the share in property that would have been allotted to him if a partition had taken place
before his death, irrespective of whether he was entitled to claim partition or not."
Note: The expression "whether he was entitled to claim partition or not" becomes significant in
certain cases e.g. in Punjab, a son cannot enforce partition during his father's lifetime. Likewise, in
Bombay, a son is not entitled to ask for a partition in the lifetime of his father without his consent
when the father is not separated from his father.
It may further be noted that it is not necessary for the Proviso to come into operation that the
deceased coparcener should have himself been competent to claim partition. Thus, the Proviso will
apply to the case of a minor coparcener.]
The crucial question is - What is the interest of the deceased coparcener when he dies? Under the
Mitakshara, immediately on the death of coparcener, his interest passes by survivorship to other
coparceners, with the result that on his death he leaves behind nothing (there was no succession
before 1956). It is also a Mitakshara rule that coparcenary interest in JFP can be specified and secured
by partition. Thus, to know
186 Family Law - II
the share or interest of a deceased coparcener, the Parliament was left with no option but to import the
fiction of "notional partition" in the Hindu Succession Act, 1956.
Notional/or deemed partition - Death of a coparcener leaving behind a female does not mean automatic
partition among the heirs. The notional partition is not a real partition, it neither effects a severance of
status nor does it demarcate interest of other coparceners or those who are entitled to a share on
partition. It has to be used to demarcate the interest of deceased coparcener, once that specific purpose
done, rest should be forgotten. His share gets fixed on the date of his death, subsequent fluctuations in
the fortunes of coparcenary do not affect it, and it is this share which will go by inheritance (Karuppa v
Palaniammal AIR 1963 Mad 254). As the allotment of shares is only a fiction, it is called notional or
deemed partition.
Examples - A joint family of A, his two sons B and C and a son BS and daughter BD of B. Suppose B
dies. Since he leaves behind BD, a female in Class I, his interest will devolve by succession.
(B) C
I --------------------------------
BS BD
If partition had taken place during B's lifetime, he would have got 1/ 6 share (A will get 1/3, C-1/3,
and B's branch-1/3). In the branch of B, B and BS, on partition, will take 1/2 of 1/3, i.e., 1/6 each (since
daughters does not take a share on partition like a coparcener before 2005). In notional partition, we start
with the assumption that B is alive. After demarcating B's share, we forget about partition and note that
B is dead and his 1/6 interest as demarcated by the notional partition will go by succession (A, C or BS
do not get any share. They continue to remain joint in the remaining 5/6).
The next step is to divide 1/6 among B's heirs in accordance with the H.S.A, A is his father who is
in Class II, C is his brother who is
187
also in Class II, and BS and BD are his son and daughter who are in Class I. Class I heirs are
preferred over Class II heirs. Thus BS and BD will take 1/12 each. It may be noted that BS will
also get 1/6 share in addition to 1/12. In absence of Sec. 6, on the father's death, the son would be
entitled to the complete property under the doctrine of survivorship and the daughter would get
nothing. Thus, introduction of Sec. 6 in H.S. Act, 1956, did work to the advantage of women but
could not remove the discrimination regarding women (unequal distribution of property). The
discrimination was removed by the 2005 Amendment to the Act.
When a notional partition is effected, and there are females entitled to a share, they too are to be
allotted their shares. For example, A dies leaving behind two sons B and C and a widow W.
(A) = W
B C
On notional partition, i.e., when A is alive, and so A's widow (his wife), each of them will take 1/4
share (In partition, father's wife, mother and grandmother are entitled to a share). A's 1/4 share will go
by succession and in remaining 3/4 share family will continue to be joint. In the notional partition
neither B nor C takes anything, nor does W takes anything.
Notional Partition or Real Partition?

To a very limited extent of ascertaining and separating the interest of the deceased coparcener, the
fiction of notional partition has to be applied. This was the legislative intent. But when the female
relative happened to be the wife or the mother living at the time of the coparcener's death,
conflicting judicial decisions emerged.
The issue was whether this notional partition is to be restricted to the devolution by succession
of the interest of deceased coparcener or it goes further and results in a (real) partition among all
the members who would be entitled to a share in the coparcenary property when a regular partition
takes place i.e. brings about severance of status among the surviving coparceners.
According to 'Narrow approach', the presumption that a partition had taken place is for a
specific purpose only i.e. to find out the interest
188 Family Law - II
of the deceased coparcener, which now is available for succession. Once that is calculated there is no
need to go any further i.e. there is no need to give shares to others in the family, whether male or
female. The logic behind is that there is no presumption that rest of the members are also divided.
According to 'Wider approach', prominence is to be given to the intention of the legislature in
interpreting Sec. 6. When the share of the deceased is ascertained, the consequences of a real partition
follow, and if there are female members who would have been entitled to get a share if a real partition
had taken place, they must be given such a share.
The 'Wider approach' has been adopted largely since the consequences of a notional partition and
those of a real partition are the same. However, the death of one coparcener would not mean a disruption of
the entire joint family as the other coparceners can maintain a joint status.
In Rangubai v Laxman (AIR 1966 Bom 160), a Hindu A died leaving behind his widow W and
adopted son S. He and his son constituted a coparcenary. A's share was to devolve by succession,
since A died leaving behind W. Then what was his share? On this, two views have emerged:
(a) Bombay school - Widow, in fact, takes a share when notional partition takes place, and she will take her 1 /3
share (so notional partition becomes a real partition for her), and in addition to this, she will take 1/2 of
1/3, i.e. 1/6 as her share as a heir. Thus, she will take 1/3 + 1/6 = 1/2 of the total JFP.
(b) The other view is that, she, like other co-sharers, does not actually take share in a notional partition. So,
she takes only 1/ 6 share by succession.1
1. W will end at 1/6 as there is no possibility of her getting any share in a real partition. On death of A, S becomes sole surviving coparcener
and there is no question of any other coparcener asking for partition. This may be hard for W. Had her husband died leaving behind 2 sons,
she could get a share (equal to son's) whenever her sons partitioned. The shastrakars allowed her a share only in the event of a
partition, not otherwise. She was allowed a life-long right of maintenance and when partition took place, certain ferrules are entitled to a
share. If a partition does not take place, no female will even get a share in JFP. Thus, by virtue of Sec. 6, in some cases women may be
losers and in some gainers. This 'Narrow approach' thus does not further the intention of the legislature in improving the condition of
women in respect of JFP.
189
In Rangubai's case, Patel J. propounded the view thus - "When the interest of the deceased
coparcener is to be determined, the court should first determine what is the property available for
partition, then partition the coparcenary property setting aside the widow's share to which she is
entitled in her own right and divide the share of the deceased coparcener amongst the heirs: and by
decree make proper provision for the maintenance and marriage expenses of the daughters and
award the widow her due share in the coparcenary property and divide the property of her
husband among the heirs."
This (wider) view has been confirmed in Sushilabai v Narayanrao [AIR 1975 Bom 257 (F.B.)]
and in Gurupad v Hirabai (AIR 1978 SC 1239). In Sushilabai v Narayanrao, the issue was whether
the mother was entitled to her actual share on deemed partition which she would have got on actual
partition. It was observed: "We are merely affirming the right which the mother has when partition
takes place between father and son. Such right is conferred by pure (Shastric) Hindu law and as
the notional partition takes place she has to be given her share as a result of that partition." It was
held that any of the Class I female heirs can claim to succeed not only to her share in the interest of
the intestate deceased coparcener but also her share in the JFP as she would be entitled has the
actual partition taken place.
LEADING CASE: GURUPAD v HIRABAI2 (AIR 1978 SC 1239)
[The Explanation to Sec. 6 i.e. legal Fiction should be given its due and full effect. The assumption
which the statute requires to be made is 'that a partition had in fact taken place' between the
deceased and coparceners immediately before the death. This interpretation will further the
legislative intention with regard to the enlargement of the share of the female heirs, qualitatively
and quantitatively. Sec. 6 is a measure to ameliorate or improve the lot of Hindu women.
& Discuss the facts and law as laid down in Gurupad v Hirabai (AIR 1978 SC
" 1239) [LC.I-94]
F, a Mitakshara male Hindu dies on 1-1-94, leaving behind his widow, W, two
sons S1 and S2, and three daughters D1, D2 and D3. W files a suit for partition
of the JFP under Sec. 6 of the H.S.A , 1956. What would be the share of each
in the joint property ? Discuss the points of law involved in the case. Refer
case law. [LC. 11-96 (Supp.)]
190
Family Law - II
The widow's share must be ascertained by adding the share to which she is entitled at a notional partition
during her husband's lifetime and the share which she would get in her husband's interest upon his
death.]
Facts - In this case, one Khandappa died in 1960 leaving behind his widow (Hirabai), two sons and
three daughters. Hirabai filed a suit for partition and a separate possession of a 7/24 share in the
properties of Khandappa. The suit was challenged by Gurupad, a son of the deceased coparcener.
Khandappa — Hirabai (W)
Gurupad Biyawwa Bhagirathi Dhandubai Shivpad

(S) (D) (D) (D) (S)
In a partition (notional) of the coparcenary property, Khandappa would have obtained a 1/4 share (the three
other shares being his two sons and his wife). The widow will get a 1/6 share in 1/4 share of her
husband as a heir, thus she will get a 1/24 share (the other five sharers being two sons and three
daughters). The question arises whether the widow would get a 1/4 share also along with her 1/24 share,
i.e. 7/24 share in all. If the partition occurs during the life time of a coparcener, the wife (of coparcener)
is entitled to a share (equal to that of a son). The issue is whether she can claim such share after her
husband's death when a notional partition occurs (in notional partition, one start with the assumption
that the coparcener was alive).
In this case, Khandappa having died, leaving female heirs specified in Class 1, possessed of an interest
in Mitakshara coparcenary property, Sec. 6 of Hindu Succession Act is squarely attracted. Sec. 6 deals with
devolution of the interest which a male Hindu has in a Mitakshara coparcenary property at the time of
his death. Proviso to Sec. 6 reads: If a Mitakshara coparcener dies leaving behind a female relative/or a male
relative claiming through a female in Class I, this undivided interest will not devolve by survivorship, but
by succession as provided under the Act. Explanation I to Sec. 6 reads: For the purpose
191
of this section, the interest of a coparcener shall be deemed to be the share in property that
would have been allotted to him, if a partition had taken place before his death, irrespective of
whether he was entitled to claim partition or not.
Observations - The Court observed: The proviso to Sec. 6 contains the formula for fixing the
share of the claimant while Explanation 1 contains a formula for deducing the share of the
deceased. Since Explanation I is intended to be explanatory of the provisions contained in the
section, what the Explanation provides has to be co-related to the subject-matter which the
section itself deals with. In order to ascertain the share of heirs in the property of a deceased
coparcener, it is necessary in the very nature of things, and as the very first step, to ascertain
the share of the deceased in the coparcenary property. For, by doing that alone one can determine
the extent of the claimant's share. Explanation 1 incorporate a fiction that the interest of a
coparcener "shall be deemed to be" the share in the property that would have been allotted to
him if a partition had taken place immediately before his death.
The fact that it is a mere notional partition should not "boggle" our imagination. The
Explanation to Sec. 6 i.e. legal fiction should be given its due and full effect. The assumption
which the statute requires to be made 'that a partition had in fact taken place' (between the
deceased and coparceners immediately before the death) must permeate the entire process of
ascertainment of ultimate shares of heirs through all its stages. The assumption once made is
irrevocable. To make the assumption at the initial stage for the limited purpose of ascertaining
the share of the deceased and then to ignore it for calculating the quantum of the share of the
heirs is truly to permit one's imagination to boggle.
All the consequences which flow from a real partition have to be logically worked out,
which means that the heir's share must be ascertained on the basis that they had separated and
received a share in the partition which had taken place during the lifetime of the deceased. The
allotment of this share is not a processual step devised merely for the purpose of working out
some other conclusion. It has to be treated and
Family Law
- II
accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in
an actual partition cannot generally be recalled. The inevitable corollary of this proposition is that the
heir will get his or her share in the interest which the deceased had in the coparcenary property at the
time of his death, in addition to the share which he or she received or must be deemed to have received in
the notional partition.
The court further observed: The interpretation which we are placing upon the provisions of Sec. 6
will further the legislative intention with regard to the enlargement of the share of the female heirs,
qualitatively and quantitatively... By restricting the operation of the fiction enacted by Explanation I, we
shall be taking a retrograde step, putting back as it were the clock of social reform which had enabled
the Hindu women to acquire an equal status with males in matters of property [viz. Hindu Women's Right
to Property Act, 1937; Sec. 14(1), H.S. Act, 1956]. Even assuming that two interpretations of Explanation
I are reasonably possible, we must prefer that interpretation which will further the intention of the
legislature and remedy the injustice from which the Hindu women have suffered over the years. Sec. 6 is a
measure to ameliorate or improve the lot of Hindu women.
Held - Thus, it was held that the widow (Hirabai) is entitled to a 1/4 share plus 1/24 share i.e. 7/24
share.
Comments - It is submitted that the court in the above case does not say that the notional partition
must bring about severance of status of the joint family, or that the coparcenary ceases to exist even if
the deceased was survived by two coparceners (In other words if a coparcener dies leaving behind a
female heir under Sec. 6, there is automatic statutory partition and Mitakshara coparcenary comes to an
end).
Thus, in State of Maharashtra v Narayan Rao (AIR 1985 SC 716), it was observed that Gurupad's
case has to be treated as an authority only for Explanation I to Sec. 6; it is not an authority for the
proposition that a female member ceases to be a member of the family on the death of a male member
whose interest devolves on her without her volition to separate herself
Hindu
Law of S u c c e s s i o n
193
from the family. In Rajrani v Chief Settlement Commr. (AIR 1985 SC 1234) the Gurupad's
decision followed.
In Anar Devi v Parmeshwar Devi (AIR 2006 SC 3332), held that Explanation I provides a
mechanism under which the undivided interest of a deceased coparcener can be ascertained. For
that, a notional partition has to be assumed immediately before his death and the same shall
devolve upon his heirs by succession, including the surviving coparcener, who, apart from the
devolution of the undivided interest of the deceased upon him by succession, would also be
entitled to claim his undivided interest in the coparcenary property which he could have got in
notional partition.
In Neelavva v Bhimavva (AIR 1962 Karnt 307), P a coparcener died leaving behind his
mother M and widow W. Thereafter, W adopted X as his son. X sued for partition and claimed
1/2. The court allowed only 1/4, as on P's death, M and W each will take 1/2. When W adopted
X he became a member of joint family with his adoptive mother W in this 1/ 2 share, therefore,
in a partition against his mother he can claim only 1/4.]
Legal Position after 2005 Amendment

The amended Sec. 6 ('Devolution of Interest in Coparcenary Property') reads:
Sec. 6 (3): "Where a Hindu dies after the commencement of the H.S.A. (Amendment) Act, 2005, his
interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and
the coparcenary property shall be deemed to have been divided as if a partition had taken place and
-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been
alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such
pre-deceased daughter;
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such
child would have got had
194
Family Law
- II
he or she been alive at the time of partition, shall be allotted to the child of such pre-deceased child of
the pre-deceased son or a pre-deceased daughter, as the case may be."
Explanation - For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall
be deemed to be the share in the property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective of whether he was entitled to claim
partition or not.
As noted above, after the amendment, a daughter is allotted the same share as is allotted to a son.
Further, the surviving child of the predeceased son or daughter would get the share of his or her
predeceased father or mother, as the case may be. Thus, son as well as daughter of the daughters and
son as well as daughter of the predeceased son will get the share of their predeceased mother or father at
notional partition, irrespective of whether such a child is entitled to claim partition or not. Similarly, the
child of pre-deceased child of the pre-deceased son or a pre-deceased daughter i.e. grand-child is entitled
to a share on partition.
Abolition of Doctrine of Survivorship/Retention of Notional Partition

The 2005 Act, thus, abolishes the incidents of survivorship - one of the primary incidents of coparcenary
- when a male coparcener dies. Further, in all cases where a Hindu male dies, his interest in the Mitakshara
coparcenary would be ascertained with the help of a deemed/ notional partition. The amendment retains the
concept of notional partition but modifies its application. Prior to this amendment, notional partition was
effected only if the undivided male coparcener had died leaving behind any of the eight Class I female
heirs or the son of a predeceased daughter and did not apply generally in every case of death of a male
coparcener.
Survivorship implies that on the death of a corparcener, his interest was taken by the surviving
coparceners and nothing remained for his female dependents. This rule was first modified by the Act of
1937, where the coparcener's widow was permitted to hold on to his share for the rest of her life, and
only on her death, the doctrine of survivorship applied and the male collateral could take the property. The
rule was further diluted in 1956. when the Hindu Succession Act was enacted.
195
The Act confined the application of survivorship only to cases where a male Hindu died as a
member of Mitakshara coparcenary, having an undivided interest in the property and did not leave
behind him, a class I female heir or the son of his predeceased daughter [see, proviso, Sec. 6(1)]. In
such cases, the application of doctrine of survivorship was defeated and the interest of the male
Hindu in the Mitakshara coparcenary, calculated after effecting a notional partition, went by intestate
succession in accordance with the Act.3
Thus, practically, the rule of survivorship did not apply because generally a Hindu male, on his
death, leaves behind a female relative specified in Class I or a male relative who claims through such
female relative.4 It should be noted that with the retention of doctrine of survivorship, the legislature
in 1955, had not distorted the concept and incidents of coparcenary, and at the same time had not
given the females an unfair deal. This doctrine was applicable only when none of the class 1 female
heirs was present.
As per the 2005 Act, the doctrine of survivorship has been abolished unconditionally. Now, if any
male Hindu dies, having at the time of his death an undivided interest in Mitakshara coparcenary, the
rule of survivorship would not apply at all. His interest in the JFP devolves on his death by
testamentary or intestate succession. The abolition of the doctrine might create unequal rights between
surviving coparceners visa-vis each other, which is contrary to the basic concept of coparcenary. For
example, a Hindu family comprises of a father F, and two sons SI and S2 who form an undivided
coparcenary. Each of them would have a one-third share in the joint family property. On the death of
S2, the surviving coparceners would have taken his share by survivorship and their share would have
increased to a half each. After the amendment, the share of S2 would be calculated after effecting a
notional partition, and that would come to one-third. This one-third would not go by doctrine of
survivorship and would go by testamentary (via Will) or intestate succession. If there is no Will,
then this one-third would go
3. See P. Pradhan Saxena, Family Law II, 2nd Ed., pp. 340-341 (2007).
4. For example, a Hindu joint family comprises father F, his wife W, and two sons S1 and S2. If any of the male members died between
1956 to September 2005, the doctrine of survivorship, even though expressly retained by and not abolished by the legislature,
would not have applied, due to the presence of W, who is a class I femaje heir.
196 Family Law - II
according to the Hindu Succession Act, as per which as between the father and the brother, the father
will be preferred and the brother will be excluded from inheritance in his presence. Therefore, the father
will get two-third of the total property and the brother would take one-third.5
Another implication of the abolition of the doctrine of survivorship would be that a 'separated' son
after having taken his share from the joint family property would again claim a share, if and when
any member of the coparcenary dies intestate. Under the old law,6 if a son sought partition during the
lifetime of father, and separated from the family after taking his share, the remaining family continuing
and maintaining the joint status, on the death of the father, neither such separated son nor any of his
heirs were eligible to stake any claim out of the share of the father because the surviving coparceners
would be there to take the father's share. After the amendment, if the separated son dies before the
father and the father dies later, even then the heirs of the separated son (viz. his widow and the son)
could stake a claim out of the share of the (grand) father in the capacity of widow of a predeceased son
and son of a predeceased son. It appears not only anomalous but inequitable too.7
5. Supra note 3, pp. 341-342.

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

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

On death of F, by notional partition, the property will be divided into five shares, one each for F, W, S,
D and D3. F's l/5th share will devolve by succession on all Class 1 heirs viz. W (widow), S, D,
predeceased D3 (represented by a son and daughter) - thus, four shares. Therefore, 1 /20th falling to
shares of W, S, D and D3 each. Since D3 is dead, her l/5th plus 1 /20th i.e. 1 /4th share will be divided
equally between S2 and D2, each getting 1 /8th. D4, SI and Dl will not get anything in the presence of
their parents.
The shares will be as follows: W - 1/5 + 1/20 i.e. 1/4.
S- 1/5 + 1/20 i.e. 1/4 (S's share will be divided in three parts i.e. 1/4 x 1/3 = 1/12 each to S, SI and Dl).
199
(2) Unchastity is no disqualification under this Act because it has not been specified anywhere in this
Act.
(3) Remarriage of three widows, before succession opens, disentitles them from inheritance. These
widows are son's widow, son's son's widow and brother's widow (Sec. 24).
Under Sec. 24 of the un-amended H.S.A., 1956, the widow of a predeceased son, or of a
predeceased son of a predeceased son or of i a brother, is not entitled to inherit the intestate's
property as a widow, if on the date the succession opens she has re-married. The 2005
Amendment Act has deleted this section. However, the effect of the deletion has not been
clarified.
That means the above-mentioned categories of widows can inherit even if they have re-married.
It may, however, be noted that even without Sec. 24 being on paper, the situation with respect to
these widows has remained the same. Sec. 24 was superfluous and its deletion therefore would not
alter the situation at all. The disqualification of remarriage is attached to those heirs who entered
the family "by marriage." became widows on the death of the respective male members to whom
they were married, and went out of the family again by a remarriage. Marriage or remarriage of "blood
relatives" such as daughters, sisters, mother, is of no consequence, but remarriage of son's widow,
son's son's widow, or brother's widow would mean that they cease to be members of the intestate's
family, and their inheritance rights would be created in the family they are married into.8
The widowed mother/step-mother is not disqualified from inheritance even if they have
remarried (however, if she has remarried after divorcing her husband, she has ceased to be his wife
and therefore will not be his widow when propositus dies).
(4) Conversion: Where before or after the commencement of this Act, a Hindu has ceased or ceases to be
a Hindu by conversion to another religion, children born to him or her after such conversion and
their descendants shall be disqualified from inheriting the property of any of their Hindu relatives. A
person who converts is not disqualified, but his children or descendants are disqualified. So also the
descendants of the children cannot
8.
Supra note 3, pp. 353-354.
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Family Law - II
inherit, unless such children or descendants are Hindus at the time when the succession opens (Sec.
26).
For instance,
[P]
A B C
I B1
P died leaving behind the sons A, B and C. B had earlier converted to Islam, but he will take his 1/3 share.
But Bl, son of B, cannot inherit. However, if Bl was born before B's conversion, then he can inherit.
Also, if B after the conversion gets married to a Hindu (under the Special Marriage Act, 1954) and
after a son was born to him, B dies. B's wife (being a Hindu) goes back to her parent's family and the
child is brought up as a member of her Hindu parent's community. The child will be a Hindu, and even
though a convert's descendant born to him after conversion, will be entitled to inherit because he is a
Hindu.
So, for the descendants to be disqualified from inheriting the property of the intestate, two things
should co-exist: first, they should be born after the conversion, and, second, they should not be Hindus
at the time of opening of the succession (i.e. time of the death of the intestate). If the descendant was not
a Hindu at the time of opening of the succession, but converts to the Hindu faith later, he would still not
be entitled to succeed.
Illustration: A Hindu male H (having a father F) gets married to a Hindu female and a son SI is born to
him. On his wife's death, H converts to the Muslim faith and gets married to a Muslim girl and a son S2
is born to him from her. If SI dies, H (a convert) is entitled to inherit the property of his Hindu son,
because of the Caste Disabilities (Removal) Act, 1850. However, if instead of SI, H dies, because H was
a Muslim at the time of his death, the Muslim law of succession will apply to his property and SI being a
non-Muslim, will not inherit from his father. If, after H's death, H's father, F dies, SI being the son of his
predeceased son (born to him before conversion) would inherit the property. But, S2 (born after
conversion) would be disqualified.9
9. See P. Pradhan Saxena, Family Law II, 3* Ed., pp. 419-420 (2011).
201
(5) Murderer. Sec. 25 disqualifies two sets of murderers: (i) if a heir

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

202 Family Law - II
The civil courts are not bound by the verdict of the criminal courts. Thus, a planned murder might not
be equated differently from a murder committed under grave and sudden provocation or to save
one's/another's life, by the civil courts. The term 'murder' must be construed in its popular sense and not
in its technical sense as defined in the Indian Penal Code. The object of the provision is not here, unlike the
IPC, to punish for murder; the object is to prevent him from getting a benefit from his own wrong (Minoti
v Mohan Singh AIR 1982 Bom. 68).
If an heir is not convicted under Sec. 302, IPC, but by giving him benefit of doubt, he is convicted
under Sec. 324, the disqualification attaches to him. But if he is acquitted of the murder charge even on the
basis of benefit of doubt, the disqualification does not attach to him (Chamanlal v Mohan Lai AIR 1977
Del 97). Likewise, where an heir is acquitted as her involvement in the murder is not established at all,
such an heir is not disqualified (Sarita Chauwhan v Chetan Chauwhan AIR 2007 Bom 133).
Murder does not mean being 'responsible for death.' Thus, where on account of the son's deviant
behaviour, his father commits suicide or dies of heart attack, the son is not a 'murderer' and would not be
disqualified.
The murderer should be treated as non-existent and not as one who forms the stock for a fresh
line of descent. Thus, the heir of the murderer is also disqualified from inheriting the property of person
murdered. For the property does not vest in the murderer and consequently does not devolve on his or
her heirs.
Effect of Disqualification
Sec. 27 lays down that "if any person is disqualified from inheriting any property under this Act, it shall
devolve as if such person had died before the intestate." Thus, a disqualified person should be treated as
non-existent, and no title or right to succeed can be traced through him. For instance, P, a Hindu dies
leaving behind a widow W and a widow of predeceased son, SW, who had remarried before P died. W
will take the entire property as if SW was dead.
The disqualified heir is presumed to be dead, and the succession opens to the next eligible heir. If the
next heir is a representative of the disqualified heir, such heir would also be disqualified. And the succession
passes to the next heir in line.
Effect of Disqualification on Succession
LEADING CASE: VELLIKANNU V R, SINGAPERUMAL [(2005) 6 SCO 622]
[If a person has murdered his father or a person from whom he wants to inherit, he stands totally
disqualified. Once he (son) is totally disinherited then his whole stock stands disinherited i.e. wife or
son. When the son cannot succeed then the wife who succeeds to the property through the husband
cannot also lay a claim to the property of her father-in-law.]
In this case, the question was when the sole male Survivor had incurred the disqualification under the
Hindu Succession Act (HSA) by murdering his own father, can he still claim the property by virtue
of Mitakshara school of Hindu law? If he cannot get the property by way of survivorship, then the
question is whether his wife who succeeds through the husband can succeed to the property?
Learned counsel for the appellant contended that the appellant being the sole female survivor
of the joint Hindu family property as her husband stands disqualified, she under proviso to Sec. 6 of
the Act, is entitled to the whole of the estate as a sole surviving member of the coparcenary property
read with Sec. 8 of the Act as a Class 1 heir. As against this, learned counsel for the respondent-
defendant has submitted that this disqualification which was attached to the son equally applies in the
case of the wife as she is claiming the estate because of her marriage with the respondent and if he
is disqualified, then she is also equally disqualified to claim any property being a coparcener from the
estate of her deceased father-in-law.
The court observed: It is now well settled that a member of a coparcenary acquires a right in the
property by birth. His share may fluctuate from time to time but his right by way of survivorship in
coparcenary property in Mitakshara law is a settled proposition. In the present case. Defendant 1 and
the Plaintiff who was married to Defendant 1 were members of joint Hindu family. If the defendant-
respondent had not incurred the disqualification under Sees. 25 and 27, HSA, then they
Family Law - II
would have inherited the property as per Mitakshara school of Hindu law. In fact, prior to the enactment
of the Hindu Succession Act in 1956, sections like Sees. 25 and 27 were not there but the murderer of
his own father was disqualified on the principle of equity, justice and good conscience and as a measure
of public policy.
This position of law was enunciated by the Privy Council in 1924 in Kenchava Kom Sanyellappa
Hosmani v Girimallappa Channappa Samasagar (AIR 1924 PC 209). Their Lordships held that in Gangu
v Chandrabhagabai [ILR (1908) 32 Bom 275), the wife of a murderer was held entitled to succeed to
the estate of the murdered man but that was not because the wife deduced title through her husband,
but because of the principle of Hindu family law that a wife becomes a member of her husband's gotra,
an actual relation of her husband's relations in her own right, as it is called in Hindu law a gotraja-
sapinda. The decision, however, has no bearing on the present case. Therefore, the principle which has
been enunciated by Their Lordships in no uncertain terms totally disinherits the son who has murdered his
father. Their Lordships have observed as follows: "A murderer must for the purpose of the inheritance, be
treated as if he were dead when the inheritance opened and as not being a fresh stock of descent; the
exclusion extends to the legal as well as beneficial estate, so that neither he can himself succeed nor
can the succession be claimed through him."
This Privy Council decision made reference to the decisions of the High Courts of Madras and
Bombay and Their Lordships have approved the ratio contained in those decisions that a murderer should
be totally disinherited because of the felony committed by him. This decision of the Privy Council was
subsequently followed in cases: K, Stanumurthiayya v K. Ramappa (AIR 1942 Mad 277); Mata Badal
Singh v Bijay Bahadur Singh (AIR 1956 All 707); Minoti v Sushil Mohansingh Malik (AIR 1982 Bom 68).
This position of law was incorporated by way of Sec. 25, HSA, 1956, which clearly enunciates that a
person who commits murder or abets the commission of murder shall be disqualified from inheriting the
property of the person murdered, or any
205
other property in furtherance of the succession to which he or she committed or abetted the
commission of the murder. The objects and reasons for enacting Sec. 25 read as under: "A
murderer, even if not disqualified under Hindu law from succeeding to the estate of the person
whom he has murdered, is so disqualified upon principles of justice, equity and good conscience.
The murderer is not to be regarded as the stock of a fresh line of descent but should be regarded
as nonexistent when the succession opens." That means that a person who is guilty of committing
the murder cannot be treated to have any relationship whatsoever with the deceased's estate.
Therefore, once it is held that a person has murdered his father or a person from whom he wants
to inherit, he stands totally disqualified. Sec. 27, HSA, makes it further clear that if any person is
disqualified from inheriting any property under this Act, it shall be deemed as if such person had
died before the intestate. That shows that a person who has murdered a person through whom he
wants to inherit the property stands disqualified on that account. That means he will be deemed
to have predeceased him.
Now, adverting to the facts of the present case, the effect of Sections 25 and 27 is that
Respondent 1 cannot inherit any property of his father on the principle of justice, equity and good
conscience as he has murdered him and the fresh stock of his line of descent ceased to exist in that
case. Once the son is totally disinherited then his whole stock stands disinherited i.e. wife or son.
When the son cannot succeed then the wife who succeeds to the property through the husband cannot
also lay a claim to the property of her father-in-law.] In Janak Rani Chadha v State of NCT of Delhi
(AIR 2007 Del 107), the husband murdered his wife. He was thus disqualified from inheriting the general
property of the wife. The next category of heirs was 'heirs of the husband', who were also disqualified
(being the representative of the disqualified heir). The parents of the husband were also disqualified from
inheriting the property of the deceased daughter-in-law. It was held that the property would be taken
by the heirs in the next category i.e. parents of the deceased wife.
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GENERAL RULES OF SUCCESSION ACT
(1) Half blood and full blood (Sec. 18) - Heirs related to the propositus by full blood shall be preferred to
heirs related by half blood. The rule, however, cannot be invoked when a particular heir is preferred to
another by operation of any rule affecting the order of succession. In other words, the rule of preference of
heirs applies only in cases of conflict between the heirs of same degree of propinquity or proximity to
the deceased and does not apply if the claimants of the full blood and half blood stand in different
degrees in relation to the deceased.
(2) Per stripes and per capita rules ('Mode of succession of two or more heirs'') (Sec. 19) - If two or more
heirs succeed together to the property of an intestate, they shall take the property per capita (i.e. per
head) and not per stripes (branch-wise), and as tenants-in-common and not as joint tenants (unless the Act
otherwise provides).
Under the Act, heirs in no case take as joint tenants, but as tenants-in-common. In both cases, property is
held jointly, but there are vital differences in the incidence of both. Joint tenancy means that the shares
of joint owners are not specified and in the event of the death of one, the other takes his interest by
survivorship. Tenants-in-common means that the share of each co-owner is a specified share and on his
death it devolves on his heirs (thus the property in such case will be treated as separate property). So, if
two widows succeed together to the property of the (same) husband, the property in their hands will to
their separate property.
(3) Posthumous child ('child in womb') (Sec. 20) - Such child is a heir, but the child must be in the womb at
the time of the death of intestate and the child must be born alive. A child in mother's womb is presumed to
be born before the death of the intestate, although subsequently born. The inheritance shall be deemed to
vest in such a case with effect from the date of the death of the intestate.
(4) Presumption in case of simultaneous death (Sec. 21) - Where two persons have died in circumstances
rendering it uncertain
207
whether either of them, and if so which, survived the other, then for all purposes affecting
succession to property, it shall be presumed, until contrary is proved (thus the presumption is not
conclusive), that the younger survived the older. For instance, a Father F and a son S die in an air
crash. S will be presumed to have survived F. This means that F's property will pass to S, and will
go to S's heirs. Younger means younger in relationship, not necessarily in age.
(5) Preferential right or right of pre-emption (Sec. 22) - When heirs simultaneously succeed to immovable
property/business of a Hindu male as Class 1 heirs and if any of heirs wants to dispose of his or her
share in the immovable property/business, the other heirs will have a preferential right to acquire that
share. Any transfer in derogation of that right would be voidable, at the instance of the co-heirs, who
are denied their preferential right.
The provisions of the section were necessary in order to safeguard the interests of the co-heirs (of Class
I only), otherwise the very foundations of the Hindu family would have been shattered (it avoids any
stranger to become the owner of JFP). Prior agreement between the parties shall decide the
consideration for the transfer. In case of disagreement, consideration shall be determined by the
court on an application made by either party. If there are two or more heirs proposing to acquire
interest, the heir offering the highest consideration shall be preferred.
(6) Partition of dwelling house (Sec. 23) - It has been omitted by the 2005 Amendment to the H.S. Act (See
under the Questions section).
NOTABLE FEATURES OF HINDU SUCCESSION (AMENDMENT) ACT, 200511
The 1956 Hindu Succession Act could not remove completely the persisting inequalities in favour of
women. The amendments were thus made in 2005. The amendment had also become necessary in
view of the changes in Hindu Succession Act 1956, in five Indian States namely,
11
. What are the major features of the Hindu Succession (Amendment) Act, 2005?
[D. U. -2009]
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Family Law - II
Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra. The 2005 Amendment Act is reportedly
similar to the laws enacted in Andhra Pradesh and Kerala.
Certain other amendments were also made in the Hindu Succession Act. The primary changes
introduced by the 2005 Amendment are discussed below:
(1) Deletion of provisions exempting application of the Act to Agricultural Holdings

Inheritance of agricultural land is subject to State-level tenurial laws12 and not to the Hindu Succession
Act (it is only if a particular State did not have any such law, then the Hindu Succession Act applied by
default). Many of the tenurial laws specify inheritance rules that are highly gender unequal.
Sec. 4 (2) prior to the Amendment Act, 2005 laid down that 'nothing contained in this Act shall
be deemed to affect the provision of any law for the time being in force providing for the prevention of
fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy
rights in respect of such holdings.' In Anudhar v Chandrapati (AIR 2003 SC 4389), the Supreme Court
observed that where the tenancy law is involved, the succession would be governed by special mode of
succession in tenancy law and not by the personal law i.e. Hindu law.
The 2005 Amendment Act has deleted this sub-section i.e. the provision exempting application of the
Act to agricultural holdings. Now, inheritance rights in all agricultural land are subject to the Hindu Succession
Act (overriding State laws inconsistent with the Act) and so effectively are gender equal.
However, by deleting Sec. 4 (2), confusion has been created. State laws, which provide for
prevention of fragmentation of agricultural holdings, fixation of ceilings and devolution of tenancy rights,
apply to the inhabitants of the State uniformly, irrespective of their religion. The deletion of Sec. 4 (2), and
an implied presumption that after the amendment, the Hindu Succession Act applies to all kinds of
property
12. State laws exist in Delhi, UP., M.P., Punjab and Haryana. See, Dr N Bharihoke Modern Hindu Law, Delhi Law House, p. 287 (2007).
209
including rights in agricultural land, would mean that now diversity would exist State-wise with
respect to laws governing agricultural property. All inhabitants of a particular State, to whom Hindu
Succession Act does not apply, such as non-Hindus, would still be governed by the ate laws, while
property of those subject to Hindu Succession Act would devolve in a different manner. An
exception therefore would be created in favour of Hindus, generally diversifying the application of
laws governing agricultural property.13
!) Abolition of Doctrine of Survivorship/Retention of Notional Partition

the 2005 Act abolishes the incidents of survivorship - one of the primary incidents of coparcenary -
when a male coparcener dies as a member of undivided coparcenary.
Further, in all cases where a Hindu male dies, his interest in the Mitakshara coparcenary would be
ascertained with the help of a deemed/ notional partition. The amendment retains the concept of notional
partition but modifies its application. Prior to this amendment, notional partition was effected only if the
undivided male coparcener had died leaving behind any of the eight Class I female heirs or the son of a
predeceased daughter and did not apply generally in every case of death of a male coparcener. Now, if
any male Hindu dies, having at the time of his death in undivided interest in Mitakshara coparcenary, the
rule of survivorship would not apply at all.14
13. P. Pradhan Saxena, Family Law II, 2M Ed., pp. 339-340 (2007).
14. From the use of the term "his interest" in Sec. 6(3), it appears that the doctrine of survivorship has been abolished for male coparceners but
has been retained for 'females.' Because according to Sec. 6(2), a female would hold the property with incidents of coparcenary ownership
and survivorship is one of the basic incidents of coparcenary.
Further, the present Act provides in detail the calculation of shares while effecting a notional partition. At present, if a minor child
dies, irrespective of the sex, his or her share would be calculated after effecting notional partition and such share would go by intestate
or testamentary succession, as the case may be. See, P. Pradhan Saxena, Family Law II, 2nd Ed., pp. 346-347 (2007).
211
At present, the repayment of debts contracted by any Hindu would his ; personal responsibility and
the male descendants would not be liable to the creditor. Only the debts contracted before the
enforcement of the amendment are subject to the rules of classical Hindu law. The sub-clause is
prospective and thus the liability of son, grandson, etc. under pious obligations for debts contracted
before the Act of 2005 continues.
Partition to be Registered (De-Recognition of Oral Partition)

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

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

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

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

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

Before the 2005 Amendment, a separated son or his heirs do not get a share at the time of notional partition
nor do they get a share out of the deceased coparcener's share, even if it goes by intestacy (Explanation II,
Sec. 6). However, they could inherit the separate property of the father under Sec. 8.
After the 2005 Amendment, a separated son (and his heirs) could take a share at the time of
distribution of the property in accordance with the rules of intestate succession, but not at the time of
effecting a notional partition (Explanation II, Sec. 6, deleted now). This is so
Hin d u
Law of S u c c e s s i o n
213
because a person who has already separated from the joint family after taking his share cannot get a
share again if partition takes place subsequent
to his separation. But since the share of the deceased father goes by intestate succession, the rules
applicable with respect to separate property will govern such share. As for succession to separate
property, there
is no difference between a separated (divided) son and the undivided son.
LI) Devolution of Coparcenary interest held by a Female

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

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

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

18. The Times of India, New Delhi, 10 March 2005.
19. U.P.D Kesari, Modern Hindu Law, Central Law Publications, p. 269 (2006).
H i n du Law of S u c c e s s i o n
215
inherit little, as Will often disinherit them. However, since the 2005 Act does not touch testamentary
freedom, retaining the Mitakshara system and making daughters coparceners, while not the ideal
solution, at least provides women assured shares in joint family property.20
FURTHER QUESTIONS
Q.1 Surendra's properties comprise of Rs. 8 lacs he obtained on

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

The amended Sec. 6 ('Devolution of Interest in Coparcenary Property')
reads:
Sec. 6 (3): "Where a Hindu dies after the commencement of the H.S.A.
(Amendment) Act, 2005, his interest in the property of a joint Hindu
family governed by the Mitakshara law, shall devolve by testamentary
20. Ibid.
Under Sec. 8, however, only a specified/divided/fixed interest can devolve. Therefore, Explanation
to Sec. 6 (3) has provided for a notional or deemed partition, in which a partition is made assuming that
the deceased coparcener is alive (allotment of shares by a fiction).
The following important points may be noted regarding the partition:
(i) Father, sons (brothers), daughters (sisters) and mothers (including the step mother) share equally i.e. per
capita (per head). Now a daughter has acquired the right to claim partition and a share on partition as
if she were a son.
(ii) If partition takes place between branches, each branch take one share (per stripes) and members of each
branch share equally.
(iii) Son/daughter of predeceased son/daughter takes equal to his father's share by the doctrine of
representation.
(iv) The following females are entitled to a share on partition -father's wife (if partition between father and
son), mother (if partition between sons), and grandmother (if partition between son and son of a
predeceased son).
(v) When a notional partition is effected, and there are females entitled to a share on partition, they too are to
be allotted their shares (thus notional partition becomes a real partition for them, Gurupad v Hirahai AIR
1978 SC 1239). Thus, if a Hindu H, dies leaving behind his widow and a son, the widow will get her
1/6 share as a heir (1/2 of H's 1/3 share) plus 1/3 share on account of notional partition. Thus, she will
take 1/2 share.
Partition of Ancestral Property under various Sub-schools of Mitakshara
(After respective State Amendments)

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

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

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

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

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

1
S will get - 1/4 + 1/12 share
D will get -- 1/14 + 1/12 share
[In Andhra Pradesh, the position after 2005 Amendment would be same, as in Andhra Pradesh,
amendment giving daughter a right to partition had been enacted in 1985.]
[If there are two widows, then both of them together will take one share. Thus, on notional partition,
each widow will get 1/4 * 1/2 = 1/ 8 share. And, on succession, each will get 1/12 * 1/2 = 1/24 share.
Thus, each widow will get 1/8 + 1/24 share in the property.]
Q.2(a) X dies intestate in 1991 leaving behind his father F, mother M, widow W, two sons (Sv S2), one married daughter D, one
unmarried daughter Dt and a son of predeceased daughter DS as his heirs. S., became Christian during the lifetime of X.
Ascertain the shares of the aforesaid heirs in the separate property of X, if X is a Hindu.
(b) Amit, along with two sons Sumit and Ankit constitute a
coparcenary. Sumit is deaf and dumb. In 1994, Amit dies
intestate and is survived by two daughters Sonia married in
1986 and Sriya, widow Laxmi and two sons Sumit and Ankit.
Ascertain their shares in the ancestral properties held by Amit
if Amit is governed by Mitakshara law as applicable in: (a)
Bombay, and (b) Andhra Pradesh. [C.LC.-94]
A.2(a) The rules laid down in Sees. 8, 9 and 10 will determine the succession to the separate properties of X. The
father of X is excluded from succession, because he is a Class II heir, who cannot take in the presence of
Class I heirs. The conversion of Sj to Christianity will not disqualify him from succession to X's
property (Sec. 26).
Therefore, the remaining heirs (Class I) (including Sj) of X are entitled to take property simultaneously
and equally. Each will get 1/7 share.
(b) Sec. 6 along with Sees. 8, 9 and 10 will determine the succession to the ancestral property of Amit. Due to
the presence of Class I female heirs, proviso to Sec. 6 applies and a notional partition has to be performed.
It may be noted that the physical deformity
223
is no longer a disqualification to succession under the Act (Sec 28).

tombay: On notional partition- Amit (intestate), Sumit, Ankit
and Lakshmi will get l/4vshare
each.
(Daughters will get no share).
On succession Amit's 1/4 share will pass to
ns
' Class 1 heirs (Sons,
daughters, and widow), 1 / 4 x 1 / 5 = 1/20 share each.
is, Sumit, Ankit and Lakshmi will get 1/4 + 1/20 share each. Sonia, and Sriya will
iition after 2005 Amendment get 1/20 share each.
nbay: On notional partition -
;
.. ' .
■
.■..-'.(..
Amit (intestate), Sumit, Ankit, Sonia, Sriya and Lakshmi each will get
On succession - 1/6 share. Amit's 1/6 share will pass to his Class I heirs (Sons,
daughters, and widow), 1/6x1/ 5 = 1/30 share each. Thus, Sumit,
Ankit, Sonia, Sriya, and Lakshmi will get 1/6 + 1/30 share
each. I) Andhra Pradesh: On notional partition- Amit (intestate), Sumit,
Ankit, Sonia, Sriya and Lakshmi, each will get 1/ 6 share. [Sonia will get 1/6, because she is married in
1986, after the Andhra Pradesh Amendment Act, 1985 came into force. Had she married before the Act
came into force, she would not get 1/6 share.]
On succession - Amit's 1/6 share will go
to his heirs (1/6 * 1/5 ■ 1/30 share each).
fhus,the final shares of each heir will be 1/6
224
Family Law
- II
[In Andhra Pradesh, the position after 2005 Amendment would be same, as in Andhra Pradesh,
amendment giving daughter a right to partition had been enacted in 1985. However, the 2005 Amendment
has given married daughters the same right as that to an unmarried daughter: it being a Central Amendment, it
will prevail over the State Amendment: like Andhra Pradesh where a daughter married before the
Amendment Act came into force would not get a share on partition.]
Q.3 A and his son S1 and S2 constituted a Mitakshara coparcenary

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

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

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

coparcenary. D separated in 1970 after getting his share in
the coparcenary properties. In 1990, B dies intestate and is
survived by his father A, mother M, widow W and two daughter
D1 (married in 1983) and D2 (married in 1989). Ascertain their
shares in the ancestral and separate properties held by B if
B is governed by Mitakshara law as applicable in (i) Andhra
Pradesh, and (ii) Kerala. {C.LC.-94/9i
(b) What will be your answer if B dies in 1924; B's wide remarries?
A.4 (a)
W — [B]. C D (separated)
D, D2
(/') Artdhra Pradesh:

On partition, 1/5 share each to A, B, C, D and M. When B died in 1990, there would be a notional
partition as D2 is a coparcener, and also W being B's widow. Thus, B, D2 and W would get 1/5 * 1/3 1/15 each.
[D2 is a coparcener because she is married in 1989, after the Andhra Pradesh Amendment Act, 1985 came into
force. D, is not a coparcener because she married in 1983 i.e. before the Amendment Act came into force.]
227
Now, B's 1/15 share will go by succession to his Class I heirs.

THUS, 1/15 x 1/4 = 1/60 each to W, D,, D2 and M. Thus, final shares
will be as follows: A = 1/5, W= 1/15 + 1/60, D, = 1/60, D2 = 1/15
1/60, and, M = 1/5 + 1/60.
) Kerala:
On partition in 1970, 1/5 share each to A, B, C, D and M. B's 1/
share (separate property) will go by succession to his heirs in 1990,
id W, Dj, D2 and M each will get 1/20 share. (b) In 1924, the old Hindu law would have applied. The
property would pass by rule of survivorship to other coparceners. Also no female gets any share in the
ancestral properties in old Hindu law.
'B's widow remarries, before 1956, she would be a disqualified heir
under the old Hindu law. If she remarries, after 1956, she would not
e disqualified.
Q.5 A, a Hindu, dies intestate in 1993 leaving behind his father F, mother M, widow W, two sons S., and S2, two daughters D1
and D2 and a son of predeceased son as his heirs.
S1 who became a convert to Christian religion during the lifetime of A, is married to a Christian woman W 1 and has a
son S3.
D, is a widow and has a minor son D-,S, and she is living with A.
Ascertain the share of the aforesaid heirs in the separate properties of A. Will your answer be slightly different if D2 is an
illegitimate daughter of A; or an adopted daughter of A? What will be your answer if widow W is unchaste?
[C.LC-94/95; LC.I-94; LC.II-96 (Supp.)]
A.5 In the present case, the Class I heirs of A are - M, W, S, and
S2, D1 and D2 and son of predeceased son. All of these heirs
take equally and simultaneously (Sees. 8, 9, 10, H.S.A.). Thus,
each heir will get 1/7 share.
The father, F, being a Class II heir is excluded. The conversion
of S, will not affect his claim to A's properties, but his son S3 will be
disqualified. D,S, the daughter's son, is also excluded in the presence
of Class 1 heirs.
228
Family Law - II
If D2 is an illegitimate daughter of A, then she would not be a heir, as an illegitimate child is related to
the mother only. But if D2 is an adopted daughter then she will inherit A's property.
The unchastity of W would not bar her from inheriting the property (Sec. 28).
Q. 6 X, a male Hindu governed by Mitakshara law, died as an

undivided coparcener in 2006 leaving behind his Father F
Mother M; two Sons S.,, S2; Son's wife S.,W and Son S.,S
unmarried sister S; and, unmarried daughter D. Ascertain the
shares of all aforesaid persons in the coparcenary properties
if X was governed by the law applicable in (a) Delhi (b) Tami
Nadu. [D.U.-2008/2011
A.6
(/) Delhi:
On notional partition - X, F, M and S will get 1/4 share each
On second partition - X's 1/4 share will be divided as: 1/4 >
1/4 = 1/I6 each to X, S,, S2 and D Thus, X's separate share would be 1/16 which
will devolve on his heirs by intestate succession.
On succession - X's l/l6 share will be divided as: 1/l6
x 1/4 = 1/64 each to M, S,, S2 and D.
The father F is excluded, being a Class II heir, in the presence of Class 1 heirs M, S,, S2 and D.
F = 1/4
M = 1/4 + 1/64 - 17/64
S = 1/4
S, = 1/16 + 1/64 = 5/64
S2= 1/16 + 1/64 = 5/64
D = 1/16 + 1/64 = 5/64
[Note: S,'s 5/64 share will be inherited by S,W and S1S; assuming that S| dies, than on a notional
partition, S,, S]W and S,S get 5/64 x 1/ 3 5/192 share. And, on succession, S,W and S,S will get 5/192
* 1/2 i.e. 5/384. Thus, both S,W and S,S will take equal share i.e. 15/384.
229
) Tamil Nadu:
On notional partition X, F, and S will get 1/3 share each (In Dravida/Madras/ Tamil Nadu,
mother/widow do not get a share on partition).
On second partition - X's 1/3 share will be divided as: 1/3 x 1/4 = \m each to X, S,, S2
and D. Thus, X's separate share would be 1/12 which will devolve
on his heirs by intestate succession.
On succession X's 1/12 share will be divided as: 1/12 x 1/4 = 1/48 each to M, S1, S2 and
D.
F = 1/3
M = 1/48
S = 1/3
S, = 1/12 + 1/48 = 5/48
S2 = 1/12 + 1/48 = 5/48
D - 1/12 + 1/48 = 5/48 Note: S,'s 5/48 share on a notional partition: S( and S,S get 5/48 x i/2 =
5/96 share (StW will not get any share). And, on succession, >,W and S,S will get 5/96 x 1/2 i.e.
5/192. Thus, S,W will get 5/192 ihare and S,S will get 5/96 + 5/192 = 15/192.]
Q.7 X, a male Hindu governed by Mitakshara law dies in 2008 leaving behind separate properties worth Rs. 40 crores and joint
family property worth 100 crores to his widow W; two sons S1 (who ceased to be Hindu) and S2; two daughters D1 (married
in 1982) and D2 (unmarried but deaf, dumb and blind) and two brothers Br., and Br 2. Ascertain the shares of all aforesaid
persons in the separate and coparcenary properties. What will be your answer if X had died in 2000?
[D.U.-2009]
A.7 X's property will devolve as per the 2005 Amendment to the Hindu Succession Act, 1956.
230 Family Law - II
(I) Separate property: The rules laid down in Sees. 8, 9 and 10 will determine the succession to the separate
properties of X. The brothers of X are excluded from succession, because they are Class II heirs, who
cannot take in the presence of Class I heirs.
The conversion of S| will not disqualify him from succession to X's property (Sec. 26). The marriage of
daughters does not matter after the 2005 Amendment. Likewise, physical disability of D2 will not disqualify
her from succession (Sec. 28).
Therefore, the Class I heirs of X (viz. W, S,, S2, D1 and D2) are entitled to take property
simultaneously and equally. Each will get 1/f share i.e. 8 crores.
(II) Ancestral/Joint family/Coparcenary property:
On notional partition - X, Br1 and Br2 will get 1/3 share each
i.e. 33.3 crores.
On second partition - X's 1/3 share will be divided as: 1/3 >
1/6 = 1/18 each to X, W, S,, S2, D, and D2. Thus, X's separate share would be 1/18 (5.55 crores)
which will devolve on his heirs by intestate succession.
On succession - X's 1/18 share will go to his heirs (1
18 x 1/5 = 1/90 each to W, S,, S2 Dj and D-,). Thus, each will get 1.11 crores.
Brj= 1/3 i.e. 33.33 crores.
Br2 = 1/3 i.e. 33.33 crores.
W = 5.55 + 1.11 i.e. 6.66 crores.
Sj = 5.55 + 1.11 i.e. 6.66 crores.
S2 = 5.55 + 1.11 i.e. 6.66 crores.
Dj = 5.55 + 1.11 i.e. 6.66 crores.
D2 = 5.55 + 1.11 i.e. 6.66 crores.
[Note: It may be noted that if in 'Second Partition' and 'Succession' the heirs are same, there would be
no need to effect a second partitioi
Hin d u Law of S u c c e s s i o n
231
the result would be the same. Thus, if in the above case, no second irtition is done and one goes
directly to succession:
succession - X's 1/3 share will go to his heirs (1/3 * 1/ 5 = 1/15 each to W, SI, S2, Dl and D2). Thus, each will get
6.66 crores.
Br, = 1/3 i.e. 33.33 crores.
Br2 = 1/3 i.e. 33.33 crores.
W = 1/15 i.e. 6.66 crores.
S, = 1/15 i.e. 6.66 crores.
S-, = 1/15 i.e. 6.66 crores.
Dp 1/15 i.e. 6.66 crores.
D2 ■ 1/15 i.e. b.o6 orores.]
Legal Position (If X had died in 2000)
onal partition - X, Br, and Br2 will get 1/3 share each i.e. 33.33 crores.
ond partition - X's 1/3 share will be divided as: 1/3x1/4 = 1/12 each to X, W, S,, and S2. Thus, X's separate share
would be 1/12 (8.33 crores) which will devolve on his heirs by intestate succession.
On succession - X's 1/12 share will go to his heirs (1/12
x 1/5 = 1/60 each to W, Si, S2, D, and D2). Thus, each will get 1.66 crores.
Br,= 1/3 i.e. 33.33 crores.
Br2 = 1/3 i.e. 33.33 crores.
W = 8.33 + 1.66 crores i.e. 9.99 crores.
S, = 8.33 + 1.66 crores i.e. 9.99 crores.
S2 = 8.33 + 1.66 crores i.e. 9.99 crores.
Dj= 1.66 crores.
D2 = 1.66 crores.
Family Law
- II
Q.8 A dies in 2007 as an undivided member of Mitakshan

coparcenary and is survived by his parents, F and M, two
brothers Br., and Br2, a sister Si, three sons S,, S2 and S3
one daughter D and three grandsons SS^ SS2 and S2S. S
was married to W,, but as they could not get any child with
this marriage, with the consent of W,, during the subsistence
of this marriage he got married to W2 and got two sons from
the second wedlock, SS1 and SS2. S2 married a Christian
woman and had one son S2S from her. The property consist
of. Rs. 2 crores in cash and immovable property worth 11
crores. Discuss who will get the property and what would be
their shares? [D.U.-201C
What will be your answer if S3 had separated during the life time of A, before and after the 2005 Amendment to the H.S
Act?
A's property (12 crores) will devolve as per the 2005 Amendment to the Hindu Succession Act, 1956.
On notional partition - A, F, M, Br,, Br2, Si will get 1/6 share
each i.e. 2 crores.
On second partition - A's 1/6 share will be divided as: 1/6
1/5 = 1/30 each to A, S,, S2, S3 an D. Conversion of S2 will not disqualify him from inheriting A's property
(but his son S2S and wife will hi disqualified).
Thus, A's separate share would be 1/30 (40 lacs) which will devolve on his heirs by intestate
succession.
On succession - A's 1/30 share will go to his heirs (1
30 x 1/5 - 1/150 each to M, S,, I S3 and D). Thus, each will get 8 lac:
Sj 's property (40 lacs + 8 lacs = 48 lacs) will devolve a follows:
onal partition - S,, W,, SS, and SS2 will get 1/ share each i.e. 12 lacs. W2 being illegal wife of S, would not get any share
SS, and SS2 (though illegitimate child would get a share because of the
233
statutory protection/legitimacy conferred on them by Sec. 16, Hindu Marriage Act (under which they
could inherit the property of their parents alone and not the JFP).
On succession - Sj's 1/4 share will go to his heirs
(1/4 x 1/3 = 1/12 each to W,, SS, and SS2). Thus, each will get 4 lacs.
le final shares will be as follows:-
F = 2 crores.
■ ■ ■ ..
M = 2 crores + 8 lacs.
Br, = 2 crores.
Br2 = 2 crores.
Si = 2 crores.
S, = 40 lacs + 8 lacs = 48 lacs.
[W,= 12 lacs + 4 lacs = 16 lacs
W2 = Nil.
SS, = 12 lacs + 4 lacs = 16 lacs
SS2 = 12 lacs + 4 lacs = 16 lacs]
52 = 40 lacs + 8 lacs = 48 lacs.
[S2's wife = Nil. S2S = Nil.]
53 = 40 lacs + 8 lacs = 48 lacs.
D = 40 lacs + 8 lacs = 48 lacs.
Position of Separated Son

Before the 2005 Amendment, a separated son or his heirs do not get a share at the time of notional
partition nor do they get a share out of the deceased coparcener's share, even if it goes by intestacy
(Explanation II, Sec. 6). However, they could inherit the separate property of the father under Sec.
8.
After the 2005 Amendment, a separated son (and his heirs) could take a share at the time of
distribution of the property in accordance with the rules of intestate succession, but not at the time of
effecting
234 Family Law - II
a notional partition (Explanation II, Sec. 6, deleted now). This is so because a person who has already
separated from the joint family after taking his share cannot get a share again if partition takes place
subsequent to his separation. But since the share of the deceased father goes by intestate succession, the
rules applicable with respect to separate property will govern such share. As for succession to separate
property there is no difference between a separated (divided) son and the undivided son. Thus, in the case
in question, before the 2005 Amendment, Sj would not get any snare out of A's property. After the 2005
Amendment, S3 would not get a share at the time of notional (second) partition (thus S3 will not get 40
lacs), but S3 will get a share on succession (thus S3 will get 8 lacs).
Q.9 X, a Hindu male, dies intestate in 2009 and leaves behind his
separate property worth Rs. 5 crores. He is survived by his
parents F and M, a brother Br and a widow W. Soon after his
marriage in 2.000, W HAD LEFT x to elope with her paramour H2,
with whom she had an affair even before her marriage. She
then started living with H2 in the same locality and gave birth
to his two children. A devastated and humiliated X became
depressed and developed illness and then died nine years
later. Discuss who would get his property stating the reasons
for the same? [D.U.-2010]
A.9 The rules laid down in Sees. 8, 9 and 10 will determine the succession to the separate properties of X. The
father F and brother Br (of X) are excluded from succession, because they are Class II heirs, who cannot
take in the presence of Class I heirs viz. mother M.
X's widow W is entitled to inherit as Class I heir. Under old Hindu law, unchaste females were
disqualified from succession. The unchastity of a widow/daughter has ceased to be a disqualification for
succession after the H.S. Act, 1956. Unchastity is not a disqualification under this Act because it has not
been specified anywhere in the Act (the only disqualifications under the Act are those mentioned in Sees. 25
and 26 of the Act).
Therefore, the following Class I heirs of X are entitled to take his separate property, simultaneously
and equally: Mother (M) and Widow (W). W's children from H2 are not related to X in any way; they
will be related to H2, thus, not entitled to any share in X's property.
235
Q.10 A Hindu male A dies in 2008 and is survived by his parents F and M, two widows W 1 and W2, one daughter SD.,, two
grandchildren SS., and SS2 and two widows of his predeceased sons S.,W and S2W respectively. A had married W, in
1978 and during the subsistence of this marriage had married W2 in 1980. From W., he had a child S1 who converted to
Muslim faith, got married to a Muslim girl S.|VV and had a son SSV From W2, A had a son S2 and a daughter SDV S2
married S2W and had a child SS2. S., and S2 died in 2000 in a car accident together. A had separate property worth Rs.
20 crores at the time of his death? Discuss who would get his property and what would be the quantum of their shares?
[D.U.-2011]
V.10 The rules laid down in Sees. 8, 9 and 10 will determine the succession to the separate properties of
A. The father F is excluded from succession, because he is Class II heir, who cannot take in the
presence of Class 1 heirs viz. mother M.
(i) A had two widows W, and W7; the question of having more than one wife (and thus widow) can arise
only in the case of marriages before the commencement of Hindu Marriage Act, 1955, and not in
marriages thereafter. Thus, W2 is disqualified from succession. W1 is entitled to succeed and she is
a Class 1 heir.
(ii) S1 (A's child from Wt) converted to Muslim faith, but, because S , pre-deceased A, at the time of his
death he was not a disqualified heir on account of the Caste Disabilities Removal Act, 1850. Even if
S, had died after A, his conversion would not disqualify him from succession.
but Sj's wife SjW and descendant (son SS,) would be disqualified because beyond protecting the
convert personally, the Caste Disabilities Removal Act, 1850 did not extend the protection any further. A
convert's descendant should be Hindu in order to inherit the property of the intestate, at the time
when the succession opens. The father and mother of SSj were Muslims so it can not be presumed
that SSj was a Hindu ,when the succession opens in 2008. Thus, Sj's interest in A's property would go
in vain.
(iii) S2 (A's son from W2), though born out of a void marriage, was a competent heir in view of the statutory
protection/legitimacy
236
Family Law
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conferred on him by Sec. 16 of the Hindu Marriage Act, 1955 But S2 predeceased A. S2's son SS2 could not
succeed to A':s property (though SS2 is son of a predeceased son, normally a competent heir). This is so
because if the father was born out of a void/annulled voidable marriage, he would be entitled to inherit the
property of his parents, but on his death, his children would not be deemed to be related to the grandfather,
and thus they would not inherit his property. The legitimacy conferred by Sec. 16 is personal in character
and is subsisting only between the parents and the child, and is not carried forward to the second
generation.
Similarly, S2's wife S2W (though widow of a predeceased son, normally a competent heir), would be
disqualified, because she is the wife of a son whose parents had a void marriage. Thus, S2's interest in
A', property would go in vain.
(iv) SD1 (A's daughter from W2) though born out of a void marriage was a competent heir in view of the
statutory protection legitimacy conferred on her by Sec. 16 of the Hindu Marriage Act, 1955.
Therefore, the only eligible heirs of A entitled to succeed to A's property simultaneously and equally are:
Mother (M), Widow (W1) and Daughter (SD,).
Q.11(a) A had a son, S and two daughters D1 and D2. His property consists of a palatial house, part of which is leased out to a
multinational company on rent. The remaining portion was ii the occupation of the family. D2 wants to file a suit for partition
and separate possession of her share in the house. Advise D2.
(b) A, a male Hindu dies intestate leaving behind a son S and a daughter D. His properties include a dwelling house. [ wants to
file a suit for partition and separate possession o her share in the house as S contends that the house is impartible. Can she
succeed ?
(c) A, a male Hindu dies intestate leaving behind a son and i married daughter D. His properties include a dwelling house
237
S alienates a portion of the house in order to discharge his personal debts. D wants to file a suit for a partition and
separate possession of her share in the house as S contends that the house is impartible? Can she succeed ?
[C.L. C.-92/93/94/95/96\
.11(a) Sec. 23. Partition of a Dwelling House
Where a Hindu intestate has left surviving him or her both male and female heirs (Class I) and his or
her property includes a dwelling house wholly occupied by members of his or her family, then,
notwithstanding anyything contained in this Act, the right of any such female heir to claim partition of
house shalln't arise until the male heirs choose to divide their respective shares therein; but the
female heir shall be entitled to a right of residence therein.
provided that where female heir is a daughter she shall be entitled to residence right only if she is
unmarried or has been deserted by or has separated from her husband, or is a widow."
it may be noted that a married daughter who left her husband of her own accord is not entitled to
such right).
In Hindu law, dwelling house has been given a special position. The Smhtikars laid down that
partition shouldn't be ordinarily be made if a dwelling house. Hindu tenets treasured the house of
family as an mpartible asset between a female and male member.
The object of this section is to prevent fragmentation of house to the prejudice of males. If
daughters were allowed to have such house partitioned, the strangers will be introduced in house, (as
females after their marriage will live in their husband's houses) and the males to be put to great
hardship and be compelled to alienate/sold house, if it is incapable of division. [Note: Sec. 23 will not
apply if all heirs are males or females.]
In Janabai v T.S. Palani (AIR 1981 Mad 62), the question was whether Sec. 23 restricts the right
of female heir to demand partition of house even in cases where there is only one male heir of
intestate.
The Orissa High Court has held that the expression "until male heirs choose to divide" in Sec. 23,
to be deemed...intended that restriction is to operate only if there are two or more male heirs. If
restriction would operate even in a case of single male heir, the right of a female to claim partition of
her share would practically be defeated as there is
238
Family Law
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no likelihood or possibility of any division of house so long as single heir (may not exercise his claim for
partition) is in occupation of house {Hemaatha v Uma AIR 1975 Ori 208).
The Calcutta and A.P. High Courts took the view that Sec. 23 applies even when there is a single
male heir. A partition by females when there is only one male heir... may cause great hardship to him If
the male members choose to divide among themselves, or if single male heir chooses to divide it among
(him and females) respective shares, or alienates his share to a stranger, then it would mean that
contingency has arisen whereby male members are no longer capable of preserving house. The hardship
that would be caused to female heirs in not being able to claim partition is certainly relatively less...than
that to son, because the house may not be capable of partition and in that case it will have to be sold
(Arur. Kumar v Jnanendra AIR 1975 Cal 232).
In Janabai case, the Madras High Court gave the following reasons for agreeing with the view of the
Calcutta High Court: (1) Sec. 13 I of the General Clauses Act which states that words in singular shall
include plural and vice-versa is not applicable to Sec. 23. (2) If Parliament had intended that Sec. 23 will not
apply in case of single male heir could have added a proviso and in view of the wording of the section
it must be held that female cannot ask for partition in this case.
In Usha v Smriti (AIR 1988 Cal 115) the dwelling house was partially tenanted (two rooms in
ground floor). It was contended that the word "wholly" in Sec. 23 shouldn't be given its plain and natural
meaning, but to be interpreted in a manner consistent with the purpose and object of the Act. When so
interpreted it would mean so much of house as was "wholly" occupied by members of family and
consequently the plaintiff herein could legitfmately claim partition only of that portion of house which was
in occupation of the tenant, (vide Vidyaben v J Bhatt AIR 1974 Guj 23).
The Court, however, observed that the word "w7?o//y" (on a plain meaning) meant the house must be
completely, totally and fully occupied by the family. Even if one considers the meaning in the light of
purpose and object of Sec. 23, one reaches the same conclusion. By tenanting a portion of house, the
members of family part with possession house to certain extent and the whole purpose of keeping house
as exclusive domain of male heirs is similarly lost. The word "then" appear
In Sec. 23 makes it clear that restrictive part of section come into operation only if the first
requirement is fulfilled, i.e. the house is wholly occupied by members of the family. Thus, if part of the
house is rented at the female will have right to partition.

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

The fragmentation of the dwelling house at the instance of male heirs only was permissible despite the
fact that they might be the owners of a fractional share (for example, a joint family consisting of
coparcener's widow, his three daughters and a son). The practical implication of this statutory interdict on
a female heir to claim partition of the house till the male heir decides otherwise, resulted in the denial of
any claim over the house. They had its ownership but no right to ascertain which portion of the house
had come as their share.
This section has been deleted by the 2005 Amendment. The married daughters will also benefit by the
deletion of Sec. 23, since now they will have residence and partition rights in the parental dwelling
house. This will benefit women facing spousal violence. The unmarried daughters too have the same rights
as sons to reside in and to claim partition of the parental dwelling house. The deletion of Sec. 23 is a
positive step towards gender parity in inheritance laws.
240 Family Law - I!
Now, daughters are eligible to inherit and enjoy the property of the father/mother in the same manner
as the son. Further, irrespective of the nature of property, whether it is a house, cash, jewellery, shares and
stocks, or commercial ventures, they have not only an equal right to own their share, but they can seek its
partition and enjoy it without am, impediment.
LEADING CASE: S. NARAYANAN v MEENAKSHI (AIR 2006 Ker. 143)
The questions of law involved in this case are the following:

(1) Whether a suit for partition at the instance of a daughter of the deceased could be defeated by invoking
Sec. 23 of the Hindu Succession Act by the legal representatives of a deceased son of the intestate?
(2) Whether Sec. 23 would be applicable in a case where the deceased intestate has left behind him only
one male issue and whether it is necessary that there must be more than one male issues to invoke
Sec. 23?
(3) Whether the protection in favour of the male heir under Sec. 23 would be available if he inducts a third
party in the dwelling house or any portion thereof?
(4) Whether omission of Sec. 23 by the Hindu Succession (Amendment) Act, 2005 would have any
impact on a suit for partition or appeal therefrom pending on the date of the commencement of the
Amendment Act?
The property sought to be partitioned was owned by Ramayi who died on 12-9-1979. Ramayi left
behind her four daughters including the plaintiff and a son, the defendant. After the death of Ramayi,
plaintiff obtained purchase certificate from the Land Tribunal in her name, but on behalf of the other co-
owners as well. The three sisters of the plaintiff released their fractional rights in the property to the
plaintiff. Thus the plaintiff claimed 4/5 share and contended that the defendant has only 1/5 share.
241
The plaintiff also raised a contention that the defendant unauthorisedly allowed a stranger to
occupy a portion of the house for conducting soda business. The trial court held that in view
of Sec. 23, the plaintiff cannot claim partition. On appeal by the plaintiff, the Appellate Court
held that Sec. 23 does not apply since there is only one male heir.
Regarding the second question whether the intestate should be survived by more than one
male heir in order to apply Sec. 23, in Madhavan Ezhuthasan v Vellayyappan (ILR 1981 Ken
643), held that Sec. 23 would apply even if the deceased is survived by only one male heir along
with female heir or heirs. The Supreme Court in Narashimaha Murthy v Smt, Susheelabai (AIR
1996 SC 1826) considered the scope and object of Sec. 23 and held that the object is to prevent
fragmentation or disintegration of the family dwelling house at the instance of the female heir
to the prejudice of male heirs.
"Though the words 'the male heirs choose to divide their respective shares,' suggest that at
least two such male heirs must exist and decide not to partition the dwelling house in which
event the right of the female heir is postponed and kept in abeyance until the male heir or heirs of
the Hindu intestate decide to partition it, it does not necessarily lead to the only inevitable
conclusion that the operation of Sec. 23 must stand excluded in the case of the Hindu intestate
leaving behind him/ her surviving only son and daughter.... One way to look at it is that if there
is one male heir, the section is inapplicable, which means that a single male heir cannot resist
female heir's claim to partition. This would obviously bring unjust results, an intendment least
conceived of as the underlying idea of maintenance of status quo would go to the winds. This
does not seem to have been desired white enacting the special provision. It looks nebulous that if
there are two males, partition at the instance of female heir could be resisted. But if there is one
male, it would not.
The emphasis in the section is to preserve a dwelling house as long as it is wholly
occupied by some or all members of the intestate's family which includes male or males.
Understood in this manner, the language in plural with reference
Family Law
- II
to male heirs would have to be read in singular with the aid of the provisions of the General Clauses
Act. It would thus read to mean that when there is a single male heir, unless he chooses to take out his
share from the dwelling house, the female heirs cannot claim partition against him. It cannot be forgotten
that in the Hindu male oriented society, where begetting of a son was a religious obligation, for the
fulfillment of which Hindus have even been resorting to adoptions, it could not be visualized that it was
intended that the single male heir should be worse off unless he had a supportive second male as a
Class I heir. The provision would have to be interpreted in such manner that it carries forward the spirit
behind it."
The second question would thus have to be answered in favour of the proposition holding that where a
Hindu intestate leaves surviving him a single male heir and one or more female heirs specified in Class I of
the Schedule, the provisions of Sec. 23 keep attracted to maintain the dwelling house impartible as in the
case of more than one male heir, subject to the right of re-entry and residence of the female heirs so
entitled, till such time the single male heir chooses to separate his share; this right of his being personal
to him, neither transferable nor heritable.
The next question to be considered is whether the protection available to the male heir under Sec.
23 would be lost if he inducts a third party in a portion of the dwelling house. The expression used in
Sec. 23 is "includes a dwelling house wholly occupied by members of his or her family". The Supreme
Court in Narashimaha Murthy's case held that if strangers are inducted into the dwelling house it must be
taken that the male heir had lost his animus possedendi. The Supreme Court held: If the male heirs derive the
right under the provision to resist partition of the dwelling house unless they chose to divide their
respective shares therein, then correspondingly it is incumbent on the male heirs to keep the property well
arranged, inhabited or occupied by themselves keeping the property available for the female heirs to
enforce the right to residence therein. But if the latter right is frustrated on creation of third party rights or a
contractual or statutory tenancy, there remains no right with the males to resist partition.
243
The protection under Sec. 23 is not indefeasible. Sec. 23 curtails the rights of female heirs
to claim partition until the male heirs choose to divide their respective shares, only in the
contingencies mentioned is Sec. 23. Sec. 23 is an exception to the general rule that Class 1 heirs
are entitled to claim partition of their shares in the property of their predecessor. The exception is
conditioned with the conditions mentioned in Sec. 23. Sec. 23 must be strictly construed. The
male heirs can claim the benefit only if they fully satisfy all the conditions laid down in Sec. 23,
the defendant admittedly having inducted a stranger in a portion of the dwelling house wherein
that stranger is conducting business. Thus, the defendant is not entitled to claim any protection
under Sec. 23. Where a portion of the dwelling house is put in the possession of a stranger, it
cannot be said that the dwelling house is wholly occupied by the members of the family of the
intestate.
The Hindu Succession (Amendment) Act, 2005, was enacted on the basis of the 174th
Report of the Law Commission. The representations made by the various women's organization
were considered by the Law Commission. Even at the time when the Hindu Succession Act, 1956
was enacted, women's organizations had voiced the grievance that though the 1956 Act made
commendable in-roads into the erstwhile Hindu system of inheritance, still the gender discrimination
against women was not fully done away with by the 1956 Act. As per the Amendment Act, 2005,
Sec. 23 of the Hindu Succession Act, 1956 is omitted.
The question is whether the omission of Sec. 23 in view of the commencement of Act of
2005 during the pendency of a suit for partition or an appeal therefrom has relevance in
deciding the question whether the male heir or male heirs could resist the suit for partition under
Sec. 23. As held by the Supreme Court and this Court, the right to claim the benefit of Sec. 23 is
personal to the male heir of the deceased Hindu intestate. Such a right is not heritable or
alienable. Therefore, it cannot be said that cessation of such personal right during the pendency
of a suit for partition would not entitle the female heir to claim partition taking note of the
subsequent events, if the contention that the state of affairs as on the date of the suit
Family Law
- II
alone would be relevant is to be accepted, then it would have the effect of indirectly holding that the
personal right of the male heir to resist partition could be continued by his legal representatives, in case
such male heir dies during the pendency of the suit. It has been held that the personal right of the male
heir cannot be claimed by his legal heirs. Therefore, whenever the personal right of a male heir under
Sec. 23 comes to an end, the right of the female heir to claim partition cannot be defeated. In other
words, a defaceable right of a male heir would get defeated the moment the personal right of a male
heir is taken away by the omission of Sec. 23 by the Amendment Act, 2005. The effect of such omission
would be retroactive. In Lekh Raj v Muni Lai (AIR 2001 SC 996), the Supreme Court held: The law on
the subject is also settled. In case subsequent event or fact having bearing on the issues or relief in a
suit or proceeding, to which any party seeks to bring on record, the Court should not shut its door. All
laws and procedures including functioning of Courts are all in aid to confer justice to all who knocks its
door. Courts should interpret the law not in derogation of justice but in its aid. Thus, bringing on record
subsequent event, which is relevant should be permitted to be brought on record to render justice to a
party
....... The Court quoted with approval the decision of the Supreme
Court of the United States in Patterson v Slate of Alabama [1934 (244) US 600], wherein it was held
that in determining what justice does require, the Court is bound to consider any change, either in fact or
law, which has supervened since the judgment was entered.
The above decisions of the Supreme Court would fortify the conclusion that the omission of Sec. 23
by the 2005 Amendment would have retroactive effect and the changed law could be taken note of and
applied in pending litigations. Therefore, by the omission of Sec. 23, the right of the male heir to claim
the benefit of Sec. 23 would get defeated even in pending litigations.]
8 Hindu Woman's Property
The Hindu Succession Act, 1956 made a revolutionary change in the law for female Hindus. For the
first time, a Hindu female could become absolute owner of property. She could inherit equally with a
male counterpart and a widow was also given importance regarding the succession of her husband's
property as also to her father's property, The 2005 Amendment made the daughter, like a son, a
coparcener in joint family. The amendment was meant to ensure that women and men became equal
heirs to ancestral property.
Though these measures have encouraged some marginal difference in property ownership, the scenario
remains largely unchanged as women are yet to assert their rights. For example, a mother shares equally
with the children and the widow when a son predeceases her. But when married daughter dies, the
mother ranks after the husband's heirs. This is the law as enacted in 1955-1956.
Further, in India, a woman's property rights vary depending on her religion, her marital status, the
State she comes from and her tribal identity. This means that no single set of laws governs the rights of an
Indian woman to property.
The skewed reality in which gender is positioned in the social, political, economic and cultural
transactions shows up the fact that law is not gender-based - sometimes it is not even gender-neutral.
Gender-neutrality will not be enough if it merely maintains the status quo which is nothing but the
perpetuation of gender discrimination. Women
12451
246 Family Law - II
need, and must have, affirmation of their equality. For example, Sec. 15 of the H.S. Act that determines
the order of succession in the case of a Hindu woman who dies intestate should be amended for it reflects
an entrenched system of subjugation of women.1
INTESTATE SUCCESSION TO PROPERTY OF A HINDU FEMALE2
The Hindu Succession Act, 1956, deals with succession to the property
of a Hindu female intestate. Prior to 1956, there were varied rules under
the uncodified Hindu law. Sees. 15 and 16, H.S. Act, are applicable to
the absolute property of a female 'including an undivided interest in
Mitakshara coparcenary in which a female was a coparcener' (2005
Amendment to the Act). Only that property will be subject to the
application of these sections which are heritable and over which
woman had full powers of disposal. Thus, the scheme of succession
is not applicable to any property held by a Hindu woman as a limit
owner [Sec. 14(2)], or even otherwise, or to which the Act does r
apply [Sec. 4(2)/(5)j.
The order of succession to the property - whole of it being
separate - of a Hindu female, dying intestate (i.e. without making
Will), is not the same as in case of a Hindu male. The H.S. Act, 19
agrees with the old Hindu law of succession in as much as that there
is a difference between succession to a male and that of a female.
other major succession law in India lay down a uniform scheme for
intestates. The reason for not providing a uniform scheme under Hindu
law is linked closely to the emphasis on the conservation and protection
of the property in the family of a male Hindu. A woman under
patriarchal setup is visualized as having no permanent family of her own
(even in her husband's family she can remarry on husband's death
1. Prabha Sridevan, "A Law that Thwarts Justice", The Hindu, Delhi, Jun (2011).
2. Write a short note on - Law governing intestate succession to Hindu femi
[LC,
s
Hindu Woman's P r o p e r t y 247
divorce and move out of this family). In contrast, the husband's family does not change with his
marriage or remarriage.3
Although Hindu woman's limited estate has been abolished and, so long as the woman is alive, she
has absolute power over all types of property, yet for the purpose of intestate succession the 'source
of property' is still material. For the purpose of succession, the property " a Hindu female falls under
the following three heads:
(a) Property inherited by a female from her father or mother,
(b) Property inherited by a female from her husband or father-in-law, and
(c) Property obtained from any other source, by inheritance or otherwise.
It may be noted that if female has her children, than the first two heads would not become operative.]
Sec. 15 deals with succession to the property of a Hindu female dying intestate after the
commencement of the Act. The property of a female Hindu shall devolve according to the rules set out
in Sec. 16. lees. 15-16 are prospective in operation and does not govern succession to the property of a
female Hindu whose death took place before the Act came into force.
I] Sec. 15 (1) (General Property)

sec. 15(1) covers all those properties 'other than that which was inherited by a female Hindu from her
parents, husband or father-in-law.' Thus, a property received from these relations (parents, husband, etc.)
not by way of inheritance but through any other device (e.g. gift, Will, settlement, prescription, a transfer
for consideration i.e. purchase) will be covered by Sec. 15(1). The gifted property (even from her
father) is not equal to inherited property, thus Sec. 15(1) and not Sec. 15(2) will apply in such a case
(Meyappa v Kcmnappa AIR 1976 Mad. 184).
3. See P. Pradhan Saxena, Family Law II, 3"1 Ed., p. 363 (2011).
248
Family Law
- II
Further, 'self-acquisitions' made by a female are covered under Sec. 15(1). A female may receive
property from any other source whatsoever, including a property inherited from 'any other relation.'
Thus, a female may inherit property from her brother (in the capacity of his sister), or from her
husband's brother (as his brother's widow). That property would be her 'general property' covered by
Sec. 15(1).
The heirs are divided into five categories called 'entries', heirs in the earlier entry excludes that in
the latter entries. So long as a single heir is present in the earlier entry, the property will not go to the
next entry (Sec. 16). If there are no heirs in any of these five entries, property goes to the government
by escheat.
[Entry (a) - Sons and daughters, sons and daughters of a predeceased son or daughter (i.e. grand-children), and, the
husband.
Entry (b) - Heirs of husband.
Entry (c) - Father and Mother of the proposita (i.e. deceased female).
Entry (d) - Heirs of the father.
Entry (e) - Heirs of the mother.]
Entry (a) - Sons and daughters, sons and daughters of a predeceased son/ daughter (i.e. grand-children), and, the
husband4
These heirs shall succeed simultaneously, sharing equally, to the exclusion of all other heirs (Sec. 16).
However, the children of a predeceased son/ daughter will not take per capita with the son or daughter or
husband of the intestate, but will take between them the share which their father or mother would have
taken if alive at the time of the death of the intestate i.e. they will take per stripes (branch-wise). In
other words,
4. Thus, this entry includes seven heirs and the list is much shorter than that of Class I heirs of a Hindu male. The following have been omitted in
this entry though they are included in the list of Class I heirs of a Hindu male: (i) The widow of a predeceased son; (ii) the widow and
children of a predeceased grandson. See MR. Mallick, Ray's Commentaries on The Hindu Succession Act, 1956, Kamal Law House, 4m Ed.,
p. 301 (2010).
Hindu Woman's P r o p e r t y
249
such children will divide the share falling to the share of their father or mother (predeceased).
The 'sons and daughters' include son and daughter by natural h, legitimate or illegitimate;
posthumous children; and adopted children en by a single woman). Children of void and voidable
marriages are 3 included. However, step-children are not included in the expression, with respect to the
children (excluding step-children), the marital status of the mother (married or divorced or even
unwed) or the validity of marriage is of no consequence. The children may be born from different
husbands, yet they would still, inherit together.
The 'grand-children' do not include illegitimate children, or step-children, or children of a
void/voidable (annulled) marriage (it is because sec. 16, Hindu Marriage Act provides that such
children can inherit the property of their parents alone). Thus, in order to be eligible for inheritance,
such grandchildren must be the legitimate offsprings of their parents, and born out of a valid
marriage between them {Shahaji san Asme v Sitaram Kondi Asme AIR 2010 Bom 24).
Similarly, their 'deceased parents' should also be legitimate and born out of a valid marriage. For
example, a Hindu woman W married an already married man H, thus, it is a void marriage. Two sons
SI and I are born to her. SI and S2 could inherit the property of W in view I statutory legitimacy
conferred on them by Sec. 16, H.M., Act. But,
If during the lifetime of W, S2 dies and left behind a daughter S2D, then, SI alone will inherit her
property, as S2D will not be deemed to e related to W. The relationship in case of children born of a
void/ voidable marriage is personal between the parents and children and they are not deemed to be
related to any other relative of either.
In a case, a Hindu woman A dies, leaving behind a son S, and a granddaughter D from her second
son S2. S2 had got married to W2, tut had later discovered that his consent had been obtained by
fraud. s2 filed a petition in court for obtaining a decree of nullity. D was conceived before the
discovery of fraud by S2. The marriage was declared null and void. S2 died and D was brought up by
A, her grandmother. Now, A also dies. D could not inherit A's property as
/
250 Family Law - II
children born of annulled voidable marriages do not inherit the property of any relative of their parents.5
A
s, V- — w2
D
It may be noted that children of a predeceased son/daughter will also be disqualified from inheriting the
property of the intestate, if before their birth, their parents had ceased to be Hindu by conversion.
In Ugre Gowda v Nage Gowda (AIR 2004 SC 3974), the Apex Court observed that an adoption of
son does not deprive the adoptive mother of the power to dispose of her separate property by transfer or
by will. Hence, such adoption would not divest the widow of the suit property which vested in her by
succession on the death of her husband,
'Husband' means the last lawfully married husband (where a woman marries more than once), not
divorced one. But, it would include a husband who had deserted the intestate or was deserted by her or
was living apart from her under a decree of judicial separation. The husband'; immoral or even criminal
conduct would not disqualify him unless he murders her. Similarly, the husband of a void/ annulled voidable
marriage is not included (however, the husband in the latter case inherits if a petition praying for a
decree of nullity is pending in the court).
Entry (b) - Heirs of husband

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

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

Since the property is deemed to be that of her mother the inheritance will be determined by the law
relating to succession to the property of a Hindu female (Sees. 15-16). Thus, the mother shall be
deemed to have died immediately after the female Hindu died (Sec. 16). Heirs of the mother do not mean
'all persons who could have been the heirs of such mother.'
The category will include the uterine brother/sister and their descendants.
[II] Sec. 15 (2) (a) (Property Inherited from Father or Mother)

Sec. 15(2)(a) provides: "Notwithstanding anything contained in sub-sec. (1), any property inherited by a
female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the
deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to
in sub-sec. (1) in the order specified therein but upon the heirs of the father." Thus, Sec. 15(2)(a) is an
exception to Sec. 15(1).
6. Thus, where an unmarried female inherited the property from her mother and died leaving her brother and a widow of another brother, it
was held that as the property is to revert to her father and will devolve as if it belonged to the father, on his heirs, the deceased brother
would be the son of the father and his widow would be related to the father as the widow of a predeceased son. Thus, both - a son and
a widow of a predeceased son - will inherit the property as Class I heirs of the father, in equal shares [Yoginder Parkash Duggal v Qm
Prakash Duggal, 2000 AIHC 2905 (Del.)].
253
Sec. 15(2) governs only that property which was acquired by the intestate by 'inheritance' as an
heir (not 'received' from parents e.g. via gift, Will). It may be noted that gifted property is not equal to
inherited property. Any property gifted at the time of marriage is her stridhan and succession to it is
governed by Sec. 15 (1) (Meyappa v Kannappa AIR 1976 Mad. 184). Similarly, if she has converted
the property she inherited from her parent into some other property succession will not be governed
under Sec. 15(2) (Emana v Gudiseva AIR 1976 A.P. 337).
Likewise, the inherited property should be available at the time of her death. If the identity of the
property is changed or it is substantially altered/improved or if it is substituted. Sec. 15(2) has no
application. Thus, if she inherits property from father, sells it, and out of sale proceeds, purchases
another property, this property again would be her general property and Sec. 15(1) will apply (Veera
Raghavamma v G. subbarao AIR 1976 A.P. 377).
If she had inherited property from 'father or mother' (not "father's side" or "mother's side") the
heirs fall under the two categories:
Category (1): Sons, daughters, sons and daughters of predeceased son or daughter
In the absence of any of the preferential heirs (sons, daughters, etc.), the property devolves upon the
heirs of the intestate's father (next category). In other words, the property inherited by a female from
her parents, in the absence of her issue (children), will revert to her father's heirs. The 'husband' is
excluded here.
Thus, where a Hindu female died leaving behind her daughter from a previous marriage and
the second husband, and property that she had inherited from her father, it was held that since the
deceased had inherited the property from her parents, her daughter alone will be entitled to succeed and
the husband here, cannot succeed [Radhika v Anguram (1994) 5 SCC 761].
A 'step-son' is not an issue, and cannot inherit the property of a woman that she inherited from
her parents (Lachman Singh v Kirpa Singh AIR 1987 SC 1616).
254
Family Law - II
Category (2): Heirs of the father

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

Sec. 15(2)(b) provides: "Notwithstanding anything contained in sub-sec. (1), any property inherited by
a female Hindu from her husband or father-in-law, shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased son or daughter) not upon the
other heirs referred to in sub-sec. (1) in the order specified therein but upon the heirs of the husband."
Thus, Sec. 15(2)(b) is also an exception to Sec. 15(1).
The heirs to such property are:
Category (1): Sons, daughters, sons and daughters of predeceased son or daughter.
Category (2): Heirs of the husband.
Thus, the husband shall be deemed to have died immediately after the female Hindu died. It may be
noted that a woman inherits the property
Hindu Woman's Property 255
Of her husband on his demise, as his widow. She also inherits from her father-in-law as the widow of
his predeceased son (provided she does not remarry before the date of the opening of the
succession).
Here, if the female had been married more than once, the properties inherited by her from her
respective husbands and their fathers should go to heirs of respective husbands. However, if she
remarried after inheriting property from her deceased husband and died leaving behind issues from her
second husband, she has not died issueless and her children and second husband will succeed to the
property. But if she dies issueless, the second husband will not succeed and the property will revert to
the first husband's heirs. Likewise, where a woman inherited property from her second husband and
died leaving behind a son from the first husband, the son would take the property [Chintaram v
Rushibai, 2000 AIHC 1308 (M.P.)].
In a recent case, a woman died leaving behind a son and a daughter, born to her from the husband
whose property she had inherited. She also had a son from a previous marriage. The Gauhati High Court
held that the son born of the previous marriage was not entitled to get the property, as it was the
property that was inherited by the woman from her second husband and he was not the progeny of that
husband, the expression 'son and daughter' would mean the son and daughter of that husband from
whom or from whose father, she had inherited the property. The court reasoned that if such property is
allowed to be drifted away from the source through which the deceased female has actually inherited the
property, the object of Sec. 15(2) would be defeated. The object of Sec. 15(2) is to ensure that the property
left by a Hindu female, does not lose the real source from where the deceased female had inherited the
property (Dhanistha Kalita v Ramakanta Kalita AIR 2003 Gau 92).
It is submitted that the expression that the legislature has used in Sec. 15(2)(b) is, in absence of
'any son or daughter of the deceased.' The expression is without any qualification and the words 'any son
or daughter' means any son or daughter and not the son/daughter of a particular husband. It would include
all kinds of sons and daughters -legitimate, illegitimate, etc. These are the only relations that are described
256
Family Law
- II
with reference to her and not with reference to her father/husband/ mother. All children have equal rights
over the property of their mother.7
It has been held that where the 'heirs of husband' are not present, and a female Hindu dies issueless,
leaving behind property 'inherited by husband/father-in-law", the property would be treated as the general
property and devolve as per Sec. 15(1), if any of heirs (her brother's grandson, in the present case) is
present. In other words, this would not be treated as a case of "failure of heirs" and the property would
not go to the government under the application of doctrine of escheat. The object behind Sec. 15(2) was
not to eliminate the other heirs specified in Sec. 15(1), but to give an order of preference (State of
Punjab v Balwant Singh AIR 1991 SC 2301). It was held that it is important to remember that female Hindu
being the full owner of the property become; a fresh stock of descent. If she leaves behind any heir either
under sub section (1) or under sub-section (2) of Section 15, her property cannot be escheated.
Coparcenary Interest acquired by Female governed by Sec. 15(1 and not Sec. 15(2)
After the 2005 Amendment to the H.S. Act, 1956, a daughter (married or unmarried) has become a
coparcener like a son with incidents of coparcenary ownership. As noted earlier, a coparcenary interest is
acquired by a daughter by birth and though it comes from the family of her father, it is not an interest
that she has 'inherited' from her parents. In such a situation, her heirs would be her husband, her
children and children of predeceased children. These heirs would succeed to her property whether she dies
without seeking partition or she dies after partition.
Thus, in case of a female dying intestate, her interest as determine under Sec. 6(3) will be succeeded
to by her heirs in accordance with Sec. 15(1). Sec. 15(2) cannot apply here because the interest calculate
under Sec. 6(3) is not a share which she inherits from her father.
7. Supra note 3, p. 376.

257
Succession to Property of a Hindu Female (Example) Hindu joint family consisting of Father (F), his
Wife (W), his Son (S) having two children (i.e. grandchildren - Sj and Dt); his Daughter (D) having a
daughter (i.e. granddaughter D4); and, a predeceased Daughter D3) having a son (S2) and a daughter (D2).
In the aforesaid example, the succession to the property of predeceased daughter D3 survived
by her husband (H) and a son (S-,) and a daughter (D2) will be as follows:
D3's share in the coparcenary property was l/5th. This share of hers is 'coparcenary property'
even against her son and daughter because sec. 6(2) provides that any property to which a female Hindu
becomes entitled by virtue of Sec. 6(1) shall be held by her with the incidents of coparcenary
ownership. Thus, her interest in coparcenary property will be divided as per notional partition
between her and her son S2 and laughter D2. Thus, D3, S2 and D2, each will get 1/15th.
This 1/15th will go by intestate succession to her heirs under Sec. 15(1), as provided in Sec. 6(3)
that 'his interest in the property of a joint Hindu family governed by the Mitakshara, shall devolve by
testamentary or intestate succession and not by survivorship.' Here portion of Sec. 6(1) which
provides 'any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener' becomes important. Thus, the expression 'his' applies to 'her' too.
Therefore, this 1/15th is treated at par with her "separate property" which thus is her "absolute
property." According to Sec. 15(1), this 1/15th will be divided in three parts equally between her
husband H, her son S2 and her daughter D2, each getting l/45th share.
The shares will be as follows:
F- 1/5.
W- 1/5.
S- 1/5.
D- 1/5.
D2- 1/15 + 1/45.
S2- 1/15 + 1/45.
H- 1/45.
258 Fam ily Law - II
Special Rules for Females governed by Matrilineal Systems

The Marumakkatayam system practised among the Nairs of Kerala, the Aliyasantana observed by the Bunts
in Karnataka, and the Marumakkal vazhi followed by the Pillais of Tamil Nadu are some of the prominent
matrilineal systems of inheriting property in India. Although the Hindu Succession Act, 1956 applies to all
Hindus, Sec. 17 of the Act makes some exceptions for these practices.
Thus, when a woman who follows the matrilineal custom dies intestate, her 'general property' would
first devolve upon the children and the mother (and not the children as well as the husband). Then it
would devolve upon father and husband (in same category). 'Heirs of the mother' gain precedence over
the heirs of the father who in turn are given precedence over the heirs of the husband, an order that is
inverted in the case of other Hindus.
Case Law
A Woman's Self-acquired Property covered by Sec. 15(1) and not Sec. 15(2)
LEADING CASE: OM PRAKASH V RADHACHARAN8 [(2009) 15 SCC 66]
[In this case the law views the man's estate and the woman's estate through different spectacles: her
autonomy over her property is less complete than his.
8. A, a Hindu female was married at the age of 15 years to H, who died of a

snake bite shortly after marriage. Branded as a bad omen, her in-laws threw
her out. She was taken in by her parents and was given education and support.
She qualified the IAS exam and serving the nation died at the age of 58 years.
All through this time period, the in-laws never bothered to check on her. She
leaves behind property in the nature of a house in Delhi worth Rs. 5 crores
and Rs. 70 lakhs in cash. She is survived by her in-laws comprising of her
mother-in-law, ML, the younger brother of her late husband, HB and his two
sons; and, her parents, M and F and her brother, Br. Discuss who would gel
her property and what would be their shares. [D.U.-2010\
[Hint A's self-acquired properties will devolve upon the 'heirs of her husband, H. The Class I heirs of H will succeed first and exclude other
heirs. H's mother (A's mother-in-law), ML, is the only Class I heir of H in the present case, thus, ML will take the whole property. A's heirs
from the natal family get excluded by the heirs of the husband.]
Family Law
- II
obstante clause, however, carves out an exception viz. when the property is devolved upon the deceased
from her father or mother, on her death (dying without children) the same would relate back to her
parent's family and not to her husband's family [Sec. 15(2) (a)]. Similarly, in a case where she had
inherited some property from her husband or father-in-law, on her death the same would revive to her
husband's family [Sec. 15(2) (b)].
The law is silent with regard to self-acquired property of a woman. Sec. 15(1), which deals with
'general property', however, apart from the exceptions specified in sub-sec. (2) thereof, does not make any
distinction between a self-acquired property and the property which she inherited from any other relation. It
refers to a property which has vested in the deceased absolutely or which is her own. The 'self-acquired
property' of a female would be her absolute property and not the property which she had inherited from
her parents.
The basis of inheritance of a female Hindu's property who dies intestate would thus be the source
from which such female Hindu came into possession of the property and the manner of inheritance
which would decide the manner of devolution. In case of 'self-acquired property' Sec. 15(1) will apply
and not Sec. 15(2). The H.S. Act does not put an embargo on a female to execute a Will. Sec. 15(1) would
apply only in a case where a female Hindu dies intestate (i.e. without making a Will). In such a situation,
normal rules of succession as provided for in the statute will apply.
The court further observed: "It is now a well-settled principle of law that sentiments or sympathy
alone would not be a guiding factor in determining the rights of the parties which are otherwise clear
and unambiguous under the Hindu Succession Act. This Court cannot issue a direction only on sympathy
or sentiments. If the contention of the appellants is to be accepted, we will have to interpret Sec. 15(1) in
a manner which was not contemplated by the Parliament. The Parliament has bestowed equality upon married
and unmarried Hindu women
261
in the matter of property. The golden rule of interpretation must be applied."

The court, thus, held that only because a case appears to be hard would not lead us to
invoke different interpretation of a statutory provision which is otherwise impermissible. In that
view of the matter, we are of the opinion that Sec. 15(1) of the Act would apply and not Sec. 15(2)
thereof. Appeal is dismissed accordingly.
Comments - The Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha, did
not contain any clause corresponding to Sec. 15(2). It came to be incorporated on the
recommendations of the Joint Committee of the two Houses of Parliament. The intent of the
legislature is clear that the property, if it originally belonged to the parents of the deceased female,
should go to the legal heirs of the father. Likewise, if it originally belonged to her husband or father-
in-law, it should go to the heirs of the husband. It is the source from which the property was
inherited by the female, which is more important for the purpose of devolution of her property.
The fact that a female Hindu originally had a limited right and after acquiring the full right, would
not, in any way, alter the rules of succession given in Sec. 15(2).
In the 21sl edition of Principles of Hindu Law (Mulla), however, it is observed that Sec. 15(2)
"seem to have been made on the ground that they prevent such property passing into the hands of
persons to whom justice would require it should not pass and on the ground that the exceptions
are in the interest of the intestate herself." If the intention of this provision is to prevent property
from devolving on persons to whom justice "would require it should not pass", then the family
that has refused to take care of Narayani should not have got anything. Justice A.M. Bhattacharjee
wrote in Modern Hindu Law under Constitution: "Why the source of acquisition should be a
determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. Unless
we still want to perpetuate in a somewhat different form the old outmoded
263
It is time that this law is made gender-balanced. Sec. 15 should be amended. The order of
succession should be altered. In addition to "inheritance*', other modes of acquisition from
parents or because of parents could be added.]
Law Commission's Recommendations12

The 174th Report of the Law Commission (2008) also examined the subject of "Property Rights of
Women: Proposed Reforms under the Hindu Law" and had noted that the rules of devolution of
the property f a female who dies intestate reflects patriarchal assumptions.
The three alternative options emerge for consideration, namely:
1. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the
natal family.
2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her
husband and the heirs from her natal family.
3. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her
husband.
The third option may be taken first as this can be disposed of summarily. The option essentially means
continuation of the status quo. Socip-economic changes warrant corresponding changes in the law
as well.
We may now take up the first option. The protagonists of this approach contend that the general
order of succession reflects a gender bias. The supporters of the said approach contend that the joint
family system has slowly eroded and that an increasing number of nuclear and semi-nuclear families
have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more
economically independent. With the growth of the nuclear family, a married woman's dependency on
her natal family and continued closeness to it is much greater today even if it was not so earlier. Most
married women would prefer that their parents should be the most preferred heirs to inherit her
12. Justice A.R. Lakshmanan, "Let us Amend the Law, It is Only Fair to Women", The Hindu, Delhi, July 24 (2011).
264
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property if her children and husband are not alive. She would also prefer that her sister and brother
have a better right to inherit her property than her brother-in-law and sister-in-law.13
The second option in this regard is that the property of a female Hindu dying intestate devolves
upon the heirs depending upon the source from which, the said property was acquired by her, the self-
acquired property of such female be simultaneously inherited by her heirs both from the husband's
family as well as the natal family in equal share. The fact remains that in spite of her closeness to and
dependence on her natal family, her relations with her husband's family are not separated and uprooted in
entirety. She continues to be a member of her husband's family, getting support from it in all walks of
life. One cannot afford to ignore the ground realities in this regard. The social ethos and the mores of
our patriarchal system demand that the existing system should not be totally reversed as claimed by the
protagonists of the first option. Lest, there may be social and family tensions which may not be in the
overall interest of the family as a whole and as such, ought to be avoided. In any case, it is open to the
female Hindu to bequeath her property the way she likes by executing a Will.
In the present scenario, when amendments are made to the effect that women have been entitled to
inherit property from her parental side as well as from husband's side, it will be quite justified if equal
right is given to her parental heirs along with her husband's heirs to inherit her property.
It is therefore, proposed that in order to bring about a balance, Sec. 15 should be amended, so that
in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in
Clause (a) of Sec. 15(1), the property should devolve on her husband's heirs and also on the heirs of
her parental side.
13. P. Pradhan Saxena - Succession Laws and Gender Justice in Re-defining Family Law in India by Archana Parasar, Amit Dhanda, New
Delhi.
265
Success/on to Property of a Female Hindu (originally inherited from her Mother)
LEADING CASE: BHAGAT RAM v TEJA SINGH (AIR 2002 SC 1)
[Section 15(2)(a) uses the words 'any property inherited by a female Hindu from her father or
mother.' Thus property inherited by a female Hindu from her father and mother is carved-out from a
female Hindu dying intestate. In other words any property of female Hindu, if inherited by her from
her father or mother would not fall under Sec. 15(1), and, it should go the legal heirs of her father
under Sec. 15(2)(a).
It is the source from which the property was inherited by the female, which is more important for
the purpose of devolution of her property. Even if the female Hindu who is having a limited
ownership becomes full owner by virtue of Sec. 14(1) of the Act, the rules of succession given under
Sec. 15(2)(a) can be applied. | In this case, a female Hindu along with her sister inherited property
their mother on the latter's death. After inheriting the property one sister died issueless. The other
sister took the property as her 'father's heir' [under Sec. 15(2)(a)] and entered into an agreement to
sell the same to a person A. The deceased sister's husband's brother challenged the validity of
this sale and claimed the property as an heir under Sec. 15(l)(b).
The question arose whether the said property would devolve on the legal heirs of the father
(her sister) or on the heirs of predeceased husband (husband's brother). The court held that under
Sec. 15(l)(b) of the H.S. Act, if female Hindu dying intestate and issueless, the devolution of
property has to be on the basis of the source from which property was inherited by female. If the
property held by a female was inherited from her father or mother, in the absence of any children
of the deceased, it would only devolve upon the heirs of the father and in this case her sister,
who was the only legal heir of the father of the deceased, admittedly inherited the property because
Family Law
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the intent of the legislature is clear that the property, if originally belonged to the parents of the deceased
female should go to the legal heirs of the father. Thus, a sale of such property by the sister of the female
Hindu is valid.
The learned Counsel for the respondents (heirs of husband) contended that deceased female acquired
property from her mother (who died on 25-12-1951) and at that time deceased female had only a limited
right over this property, but by virtue of Sec. 14(1) of the H.S. Act, she became the full owner of the
property and, therefore, on her death, the property held by her would be inherited by her legal heirs as per
the rules set out in Sec. 15(1). He also contended that Sec. 15 of the H.S. Act will have only prospective
operation and, therefore, the words used in Sec. 15(2)(a) viz. "any property inherited by a female Hindu"
are to be construed as property inhen'ed by a female Hindu after the commencement of the Act.
The Court, however, observed: It is not necessary that such inheritance should have been after the
commencement of the Act. The intent of the legislature is clear that the property, if originally belonged
to the parents of the deceased female, should go to the legal heirs of the father. So also under Sec.
15(2)(b), the property inherited by a female Hindu from her husband or her father-in-law, shall also under
similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was
inherited by the female, which is more important for the purpose of devolution of her property. We do not
think that the fact that a female Hindu originally had a limited right and later, acquired the full right, in any
way, would alter the rules of succession given in Sec. 15(2).
The source from which she inherits the property is always important and that would govern the
situation. Otherwise persons who are not even remotely related to the person who originally held the
property would acquire rights to inherit that property. That would defeat the intent and purpose of Sec.
15(2), which gives a special pattern of succession. Properties inherited by
Hin d u Woman's Property
267
her from her father revert to the family of the father in the absence of issue and similarly
property inherited from her husband or father-in-law reverts to the heirs of the husband in the
absence of issue. Such a provision would prevent properties passing into the hands of persons to
whom justice would demand they should not pass.]
HINDU WOMAN'S PROPERTY
sec. 14, Hindu Succession Act, 1956, introduces fundamental changes in the concept of woman's
property. Under the classical Hindu law, there were various restrictions on a woman's ownership
of property, and, her right to dispose it (including her testamentary powers). The restrictions imposed
on the proprietary rights of a woman depended on her status as a maiden, as a married woman and as a
widow. They also depended upon the source and nature of the property.
Before 1956, woman's property was divided into - (a) woman's estate (or widow's estate) and
(b) Stridhan. While the term 'stridhan' s found in the ancient texts, the term 'Hindu woman's estate'
has been used in the Hindu Women's Right to Property Act, 1937.
(a) 'Stridhan'' is her 'absolute' property over which she has full rights of disposal or alienation e.g. gifts
from relations/ strangers; property acquired by self-exertion; property acquired by compromise;
property obtained in lieu of maintenance.
(b) 'Woman's estate'' - She is a 'limited' owner of it, as she can't ordinarily alienate it (like karta, she
can alienate it only in exceptional cases); and on her death it devolves not upon her own heirs but upon
the next heir of the last full owner (i.e. reversioners e.g. husband's brother) e.g. property obtained by
inheritance (whether from a male or female) and a share obtained on partition (Sec. 3, Hindu Women's
Right to Property Act, 1937).
268
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The Hindu Women's Right to Property Act, 1937, modified the old Hindu law so as to confer greater
rights on women. It conferred upon the widow, right of inheritance to her hsuband's property, even
where the husband left male issue. She was also given power to claim partition. But in all these cases, the
widow was given only a limited interest in the property ('woman's estate). She had no power of
disposition by sale, lease, mortgage, gift or Will.
Sec. 14 (H.S. Act, 1956)

(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act. shall be held by
her as a full owner thereof and not as a limited owner.
Explanation - The term "property" includes both movable and immovable property acquired by a female
Hindu by inheritance or device/or at partition/or in iieu of maintenance or arrears of maintenance/or by gift
from any person, before, at or after her marriage/or by her own skill or exertion/or by purchase or
prescription/or in any other manner/and also any such property held by her as stridhan immediately before
the commencement of this Act.
(2) Property given with limitations - Nothing contained in sub-sec
(1) shall apply to any property acquired by gift/Will/or and
other instrument/under a decree or order of court/or under an
award, where the terms of gift, Will, other instrument, decree
or award prescribe a restricted estate in such property.
[Note - There is nothing in Sec. 14 (2) or other sections to qualify the absolute ownership or led to forfeiture
of estate on her remarriage. The H.S. Act overrides the Widow Remarriage Act or any other Act. Once her
limited (woman's) estate becomes her full or absolute estate (i.e stridhan) by virtue of Sec. 14, a Hindu
female can alienate it by gift or otherwise.
Once a widow succeeds to the property of her husband and acquires absolute right over the same
under Sec. 14, she would not be divested of that absolute right on her remarriage. A limited entitlement of
maintenance would necessarily fructify into a full estate for a widow provided she had not remarried
before the H.S. Act came into force,
269
Thus, the traditional limitation on the power of disposition of a Hindu female has been done
away by Sec. 14 which has "enlarged" her limited estate into her full estate. The H.S. Act recognized
her as an independent and absolute owner of property. As the property is now her II estate, she
becomes a fresh stock of descent in respect of that property. It devolves after the Act upon her
own heirs and does not revert to the next heirs of the last full owner (i.e. reversioners). However, the
reversioners do exist in those cases where the Hindu female lost the juridical possession of the
property (discussed below).
Pre-Act Woman's Estate ('Limited Estate*) [Sec. 14(1)] 14

Sec. 14(1) has been given retrospective effect. Two conditions are necessary for this:
(a) ownership of property must vest in her, and
(b) she must be in possession of the estate when the Act came in force.
She must be owner of the property i.e. she must have acquired title to It (where there is no title or
interest in the property she cannot be said to be "possessed" of the property). The property must be
in her possession or she has a right to possession of it. The term "possession" has very wide
connotation, and includes actual (physical) as well as constructive possession e.g. where she is
entitled to possession of property, such as when the property is in possession of a trespasser; property
is in possession of mortgagee, lessee or licencee.
The term "possession" is co-extensive with the "ownership". Thus wherever woman has ownership
of property vested in her she will be deemed to be in possession, and if ownership doesn't vest in her,
even if she is in actual possession she will not be deemed to be in possession. In Mangla Singh v Rattno
(AIR 1967 SC 1786), a widow who had entered into possession of land belonging to her husband in
1946, and had been illegally dispossessed by her husband's brothers in 1954, brought a suit for
possession. During the pendency of suit, H.S. Act came into force, and widow died in 1958 and her
legal representatives
14. Write a short note on: 'Abolition of Limited Estate.' [D.U.-2006]

270 Family Law - II
carried on the battle. Held that since the land was possessed by the widow (in a constructive sense)
when she died in 1958, her legal representative succeeds. If her possession is that of a trespasser or of
a licencee, she can't be said to be in possession. Her possession must be legal.
It may be noted that Sec. 14(1) does not mean at all that if there is any want or defect in the full
ownership of that property under 'some other law,' that want or defect has also disappeared.
It may also be noted that Sec. 14(1) uses the expression "whether acquired before or after the
commencement of the Act''. Thus, this provision is retrospective as well as prospective.
If property is not in her possession when the Act came into force
Then, in that case, the old Hindu law continues to apply. Sec. 14 has
abolished the woman's estate, but the reversioners are still relevant in
respect of the woman's estate alienated by her before 1956. It is
important to note that a suit filed by reversioners before 1956 can be
continued and a fresh suit can be filed after 1956.
Rights of reversioners - Reversioners are the heirs of the last full
owner. Had the female not intervened he/they would have inherited the
property (Hindu woman's estate) in question. The nature of reversioner's
interest was not a vested but a contingent interest. It was a spes
successionis i.e. a mere chance of succession. This is so because as
long as the limited owner (woman) had the ownership of the property
nobody could lay any claim to it. It could not be predicted with certainty
who would succeed to the property on the expiry of the woman’s
interest in that property because nobody could say who would survive
the limited owner {Ram Chander v Ganesh Das AIR 1984 SC 42).
Their rights are as follows:-
(i) They can sue for a declaration that an alienation by widow is void, and will not be binding on them
after the death of widow, (ii) They can, after the death of widow or after termination estate, file a suit
for the possession of 'improper' alienation made by widow, from alienee.
H i n d u Woman's Property 271
The Hindu female is bound by that alienation because the old law made such a transaction
enforceable against her but the reversioners are not bound by such transfer. They are entitled to the
restoration of the property from the alienee. The rights of alienee are co-extensive with t of the
widow; the alienee can retain property so long as the widow alive. The alienee does not get the full
ownership of the property by virtue of Sec. 14(1), because this provision is meant for the benefit of
Hindu female and not for the transferee from her.
The law in force at the time of the death of the limited female owner governs the succession to
reversioners. The husband's heirs/ reversioners would be ascertained as if husband had died at the time
of widow's death [Daya Singh v Dhan Kaur (1974) 1 SCC 700]. In this case, on the death of a Hindu
in 1933 his widow inherited his property as a limited owner. She had made an unauthorized gift of the
property before the H.S. Act was passed. As she was not in possession of the property at the time of
the commencement of the Act, she could not become the full owner thereof under Sec. 14(1). She
died in 1963. Thus, succession to property will be governed by the H.S. Act, 1956. accordingly, his
daughter would succeed to his property, to the exclusion f the collaterals (brothers of husband).
Acquisition under Sec. 14(1) covers Re-acquisition the Explanation to Sec. \4(V) makes it clear that
Sec. \4(V) \s large in its amplitude and covers every kind of acquisition of property. The word
"acquired" has to be given the widest possible meaning [Badri Prasad v Kanso Devi (1969) 2 SCC
586].
A conveyance can be annulled by a re-conveyance by consent of both the parties. Thus, if she
purchases back or if she is donated back the property which she once sold or donated to some person, it
would come within the meaning of 'acquisition.' The re-acquisition might have taken place either before
the Act or thereafter. It may take place either before the reversioners filed a suit against the alienation by
the limited female owner or during litigation or after a decree is passed in their favour.
In Teja Singh v Jagat Singh (AIR 1970 P&H 309), a Hindu female alienated properties before the Act
came into force, but alienation is held
272
Family Law - II
invalid, consequent to which the possession is reconveyed to her. Here, the 'defect' is cured and the widow
becomes absolute owner, by virtue of Sec. 14(1). So, the rights of reversioners defeated here. In other
words, if a woman make a gift before 1956, and there had been a gift back to her in 1954 (or in 1959),
the 'defect' is cured.
G CASE: JAGANNATHAN PILLAI V KUNJITHAPADAM PILLAI (AIR 1987 SC 1493)
[It is futile to contend that the female shall be in possession of property 'before' the coming into
operation of the H.S. Act. If the property itself is acquired after the commencement of Act, there could be
no question of property being either in physical or constructive possession of female before the coming
into operation of the Act. All that is required to be shown by her is that she had acquired the property and
that she was 'possessed' of property at the time when her title was called into question.
If reconveyance takes place before or after 1956, the female would certainly be deemed to be in possession of
property, with the result Sec. 14 will apply. By reversal of the original transaction, her rights would have
to be ascertained as if she became possessed of the property for the first time, after the commencement of the
Act.]
In a situation where a Hindu widow regains possession of a property (limited estate) subsequent to the
commencement of H.S. Act upon the retransfer (reconveyance) of same property by transferee in
whose favour she had transferred it prior to the Act, then according to the A.P. and Orissa High
Courts, she would only be a 'limited owner' of such property, while according to Madras and
Bombay view, she would be a 'full owner.' In the present case, the widow was not in possession on
the date of the commencement of the Act, but the possession was restored to her later.
The Apex Court observed and held as follows:
(i) The H.S. Act applies even to properties possessed by a Hindu female which are acquired 'after' the
commerxement of Act, it is futile to contend that
273
the female shall be in possession of property 'before' the coming into operation of the Act. If the
property itself is acquired after the commencement of Act, there could be no question of property
being either in physical or constructive possession of female before the coming into operation of
the Act. (ii) The legislative intent is abundantly loud and clear. The intention of the legislature
was to do away with the concept of limited ownership in respect of the property owned by a Hindu
female altogether. All that is required to be shown by her is that she had acquired the property and
that she was 'possessed' of property at the time when her title was called into question, (iii) A
conveyance can be annulled by a re-conveyance by consent of both the parties. When she bought
the property from alienee to whom she had sold property prior to the Act, she 'acquired' property
within the meaning of Explanation to Sec. 14(1). Whatever she had lost earlier was now regained
by her by virtue of the transaction. The status quo ante was restored in respect of her interest in
the said property, (iv) When the transaction was reversed and what belonged to her was
retransmitted to her, what she acquired was a right which she once possessed (namely, a limited
ownership) which immediately matures into a full ownership in view of Sec. 14(1). By the reversal of
transaction no right of reversioner affected, for he had merely a spes successionis or a chance of
succession, which may or may not accrue to him. (v) It was contended that the donee or
transferee who retransfers property to widow can't transfer a title higher than the title they
themselves had in property.
274
Family Law
- II
As they had only a limited interest, so they can transmit only a limited interest.
(vi) The court observed that there is a difference between retransfer to a stranger, and the original owner
(i.e. widow). It is only in the former case, that they could transfer limited interest. In the latter case,
upon retransfer, the original transaction is obliterated, and the position reversed and the original rights of
widow restored. By reversal of the original transaction, her rights would have to be ascertained as if she
became possessed of the property for the first time, after the commencement of the Act. During the
time the property is under the title of the alienee, it is under an eclipse.
Therefore, if reconveyance takes place before or after 1956, the female would certainly be deemed
to be in possession of property, with the result Sec. 14 will apply]
Post-Act Woman's Estate ('Restricted Estate') [Sec. 14(2) or (1)1

Any property acquired by a Hindu female after the coming into force of the Act, will be her absolute
property [Sec. 14(1)], unless given to her with limitations as mentioned in Sec. 14(2). Sec. 14(2) enacts a
well-established principle of law viz. if grant is given subject to some restrictions, the grantee will take the
grant subject to these restrictions. Thus, Sec. 14(2) is based upon the principle of sanctity of contracts
and grants.
Sec. 14(1) removes the legal inability of the recipient Hindu female to take a full ownership, but at the
same time Sec. 14(2) recognizes the power of an absolute owner to make any kind of disposition of his
property (viz. via Will) in accordance with his wishes. Thus, Sec. 14(2) is more in the nature of a proviso
or exception to Sec. 14(1). But Sec. 14(2) should be construed in a strict manner so that the reformative
flow of Sec. 14(1) may have only few obstructions. It may be noted that Sec. 14(1) need to be
construed liberally.
Hindu Woman's Property 275
Sec. 14(2) uses the term 'restricted estate' and not 'limited estate.' The latter term is well-known
under the traditional Hindu law. The former term is not so; it is not even defined by the H.S. Act. The
term restricted estate' has much wider import than the term 'limited estate'; the latter admits only those
limitations or restrictions which are recognized by the personal Hindu law, the former will admit any
limitation or restriction which can be lawfully attached to a property. Every 'limited' ate is a type of
'restricted' estate.
It is interesting to note that Sec. 14(1) as well as Sec. 14(2) mentioned almost same methods or
modes of acquisition of property (e.g. gift, any other instrument, in any other manner whatsoever,
etc.) t the consequences mentioned are different. This is a classic instance a statutory provision which,
by reason of its inapt draftsmanship, s created endless confusion for litigants and proved a paradise for
lawyers. Finally, the Supreme Court resolved this conflict in Tulasamma Shesha Reddy case (discussed
below).
The proper test to determine whether a case falls under Sec. 14(1) or (2) (as laid in Sumeshwar v
Swami AIR 1970 Pat 348): If the female is no right or interest in the property prior to grant, she will take it
accordance with grant, but if she had an interest prior to grant and the grant merely embodies that
interest, Sec. 14(1) applies, while in the former case, Sec. 14(2) applies. The Supreme Court took the
same view in Munna Lai v Raj Kumar (AIR 1962 SC 1493): Sec. 14 (2) applies where grant itself is
the source or origin of interest created, and not where grant is merely decalatory or definitive of pre-
existing right.
examples
(1) Where daughter-in-law sued for partition to get her share of inheritance, other members said that she
could get her share only if she agreed to include properties given to her for maintenance in suit
properties. Held that she claimed her inheritance and her claim of maintenance is a separate question
(Chinnappa v Valliammal AIR 1969 Mad. 187).
(2) Where under an agreement, widow took a share in the estate of joint family as a life-estate with a vested
remainder in favour of others and there was no indication to show that she took
Family Law - II'
those properties for her maintenance the case falls under Sec 14(2) {Kunji v Meenakshi AIR 1970 Ker.
284).
(3) A share obtained by a Hindu female in a partition is a type of property falling under Sec. 14 (1), even though
her share is described as a limited estate in decree/award.
(4) Where a widow inherited some properties from her husband subsequently she entered into a compromise
with the reversioners that she would hold the estate as limited owner and would not cut trees on land.
Here, widow didn't acquire any right under the compromise so case falls under Sec. 14(1)
(5) Where a widow having no right to any share in property
except her right of maintenance and residence, was allotted
some property for her residence and maintenance during her
life-time under an agreement, the agreement prohibited her from
alienating properties. She was in possession of properties when
the Act came into force. Held that the case falls under Sec.
14(2).
(6) Where a Will confers a life estate, Sec. 14 (2) applies, and where Will confers a full estate, Sec. 14(1)
applies.
(7) Where no property is given in lieu of maintenance and only a sum of money given, then Sec. 14 does
not apply.
(8) If she has only a charge on the property that property does not get converted into her full estate.
(9) Where under a settlement, property was given to the widow
which were to revert to the settler or his brother after her death
do not get enlarged into full estate. The testator gave an estate
to his daughter for her maintenance stating that the estate in the
last resort (i.e. on his failure to get a son before his demise
should go to his brother, he meant to give a life estate (Bhura
v Kashiram AIR 1994 SC 1203). Thus, Sec. 14(2) applies
277
Expansive Interpretation of Sec. 14(1) and Restrictive Interpretation of Sec. 14(2)
EADING CASE: V. TULSAMMA v V. SHESHA REDDY15 (AIR 1977 SC 1944)
[It will depend on the facts of each case whether the same is covered by Sec. 14(1) or (2). The
question in such cases will be mostly one of construction of the instrument and ascertainment of the
intention therein expressed. Sec. 14(2) is merely & proviso to Sec. 14(1).
Where the property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in
virtue of a 'pre-existing' right and thus covered by Sec. 14(1) and not Sec. 14(2) even if the instrument,
decree, etc. allotting the property prescribes a restricted estate in the property. Sec. 14(2) must be
confined to cases where property is acquired for the first time as a 'new grant' without any pre-existing
recognized right.] Facts - The properties in suit (filed by the widow Tulsamma for maintenance)
were allotted to her, under a compromise certified in 1945, by the court... "in which the appellant had
taken only a life-interest in the properties and there was clear restriction prohibiting her from alienating
her properties." Despite these restrictions, she continued to be in possession of properties till 1956; and she
made alienations in 1960-61 on the plea that she had acquired an absolute interest in properties. Thus
the question is: What happens when a female Hindu is given some properties as a settlement recorded in
a decree, which prescribes as one of the conditions that the properties will revert to her reversioners.
15. W, a Hindu widow, got a house as limited owner under a decree of the court,
in lieu of her maintenance out of JFP, in 1950. Now she wants to make a gift of
the house in favour of her brother. Can she do so? Discuss in the light of sub
section (2) of Sec. 14 of the H.S.A., 1956. Refer to case law. Explain the points
of law involved in the case. [LC.H-94/96\
278
Family Law
- II
Observations - The Court observed: The right of the widow to be maintained is of course not a jus in
rem, it doesn't give her any interest in JFP, but it is certainly jus ad rem, i.e., a right against JFP.
Therefore, when specific property allotted to the widow in 'lieu of her claim for maintenance', the
allotment would be in satisfaction of her jus ad rem - the right to be maintained out of the JFP. It would
not be a grant for the first time, without any pre-existing right in widow. The instrument giving the
property is merely a document effectuating a preexisting right.
Decision - In Sharbati v Hiralal (1964) A. Punj. 114, held that the application of Sec. 14(2) was limited
to only those cases where a female acquired a title for the first time. In the present case, Fazal AH J.
concluded:-
(i) Provisions of Sec. 14 must be liberally construed so as to advance the object of the Act which is to
enlarge the limited interest of widow. The promotion of socio-economic needs sought to be achieved by this
long needed legislation should not be lightly interfered with.
(ii) The words "any property" in Sec. 14(1) are, even without any amplification, large enough to cover any
and every kind of. property. Whatever be the kind of property (as proved by the Explanation) and
whichever be the mode of acquisition, it would be covered by Sec. 14(1).
(iii) Sec. 14(2) doesn't refer to any transfer which merely recognizes a pre-existing right {Badri
PrashadvSmt. Kanso Devi AIR 1970 SC 1963).16
16. In this case, a partition of the property was effected and an award was made by the arbitrator that the second wife of the intestate (who died in
1947) would have a widow's estate in the share allotted to her. It was held that she had acquired an interest in the property left by the
intestate by virtue of the Hindu Women's Right to Property Act, 1937, and became full owner of the property allotted to her by virtue of Sec.
14(1) and Sec. 14(2) was not attracted simply because there was a partition and an award.
279
Sec. 14(2) must be confined to cases where property is acquired for the first time as a new grant
without any pre-existing recognized right, (iv) Where, however, the property is acquired by a
female Hindu "in lieu of pre-existing right", such an acquisition would not be within the scope
and ambit of Sec. 14(2), even if the instrument, decree, order or award allotting the property
prescribes a restricted estate in the property, (v) Sec. 14(2) does not require that the restricted
estate must be prescribed in express terms. Normally any acquisition of property covered by Sec.
14(2) would be an instrument in writing or by decree or award. Whether any 'restricted estate' has
been created or not in any such case must obviously be a question of construction to be
determined in accordance with the canons of construction applied with regard to such instrument,
decree, etc. (vi) The antecedents of the property, the possession of the property as on the date of
the Act and the existence of a right in the female over it, however limited it may be, are the
essential ingredients in determining whether Sec. 14(1) or Sec. 14(2) would come into play.
(vii)Sec. 14(2) is merely a proviso to Sec. 14(1) and has to be interpreted as a proviso and not in
manner so as to destroy the effect of main provision. In other words, Sec. 14(2) must be read in the
context of Sec. 14(1) so as to leave as large a scope for operation as possible to Sec. 14(1).
(viii)The use of express terms like "property acquired by a female at a partition", "or in lieu of
maintenance" or "arrears of maintenance" in Explanation to Sec. 14(1) clearly makes Sec. 14(2)
280
Family Law - II
inapplicable to these categories, which have been expressly excluded from operation of Sec. 14(2).
(ix) The Act of 1956 has made revolutionary changes in the Hindu society and every attempt should be
made to carry out the spirit of the Act i.e. to emancipate women in India.
The Court, thus, held that, in this case, the properties in question were allotted or acquired by the
widow under the compromise in lieu of satisfaction of her pre-existing claim for maintenance. The
widow is the absolute owner and the restrictions mentioned in the decree to be ignored. Whatever
limited interest in the property she had, any restriction on her right being a "disability imposed by law"
would be wiped out and her limited interest would be enlarged under Sec. 14(1). In other words, a
provision in the instrument prescribing that she would have only a limited interest in the property
would be 'merely recording the true legal position' and that would not attract Sec. 14(2) but Sec.
14(1).]
Acquisition after H.S. Act, 1956

Any acquisition or possession of property by a Hindu female after the H.S. Act, 1956, would attract Sec.
14(1) or (2) will depend on the nature of right acquired by her. It cannot normally attract Sec. 14(1).
However, if she takes it as an heir under the Act, she takes it absolutely. If while getting possession of the
property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the
restriction will have effect in view of Sec. 14(2) of the Act (Sadhu Singh v Gurdwara Sahib AIR 2006
SC 3282).
Restricted Property under a Will covered by Sec. 14(2)
LEADING CASE: GUMPHA V JAIBAI [(1994) 2 SCC 511]
[Sec. 14(1) does not enlarge or enhance the rights which a Hindu female gets under a Will giving her a
limited estate under Sec. 30. Sec. 14(1) has to be read in conformity with Sec. 30 and Sec.
281
14(2). A Hindu may impose restrictions on the property bequeathed by him under a Will. He can do so
in the case of a female as well as a male.
The Explanation to Sec. 14(1) does not include acquisition by Will. Therefore, a right of maintenance
under a Will after 1956 would fall under Sec. 14(2), even on the ratio of Tulasamma case. It would
be creation of right for the first time and not recognition of pre-existing right.]
In this case, the Supreme Court explained the scope of operation of sub-sees. (1) and (2) of Sec.
14, U.S. Act. The question which fell for consideration is if testamentary disposition of property
by a male Hindu by a Will which comes into operation after 1956, creating life interest in favour of
his widow, subsists as such after his death or she becomes an absolute owner by operation of Sec.
14(1) read with Explanation. In other words, what is the dichotomy between two sub-sees, of Sec.
14 which forms the bedrock of revolutionary changes brought out in Hindu Law of Succession
in 1956.
Held - The purpose and legislative intention which surfaces from a combined reading of Sec.
14(1) and (2) is that it attempts to remove the disability which was imposed by the customary Hindu
Law on acquisition of rights by a female Hindu, but it does not enlarge or enhance the rights
which she gets under a Will giving her a limited estate under Sec. 30.
Sec. 14(1) has to be read in conformity with Sec. 30 and Sec. 14(2). Tulasamma case was
concerned with the right of maintenance granted to a widow in a decree. Since the property was
given to Tulasamma in lieu of her right to maintenance, she acquired it as provided by the
Explanation appended to Sec. 14(1). But since this right she got under a decree of a court which
prescribed a restricted estate, the right and interest which she got fell under Sec. 14(2) as well. The
court by interpretative process removed the anomaly arising out of 'inapt drafting' by construing
sub-sec. (1) widely and reading sub-sec. (2) as a proviso or exception to sub-sec. (1) so that it
may impinge as
282
Family Law
- II
little as possible on the broad sweep of the ameliorative provision contained in sub-sec. (1).
The Explanation to Sec. 14(1) widens the ambit of sub-sec. (1) and extends it to any acquisition
mentioned in it. The use of words acquisition 'in lieu of or 'arrears of appear to be significant. The
expression is no doubt very wide but its width cannot be extended to those acquisitions which are
specifically dealt with by sub-sec. (2). A reading of the two sub-sees, together indicates that even
though the law was revolutionized and a female Hindu was made an absolute owner in respect of any
property acquired by her either before or after the date of enforcement of the Act yet the law did not
intend to confer a higher and better right than what was enjoyed by a male Hindu. The possession
must be founded on some basis which may be acceptable in law and the right she acquires under
Sec. 14 depends on the nature of possession she enjoyed over the property. Thus if a female Hindu
acquires possession after the enforcement of the H.S. Act and that possession was traceable to an
instrument/document described in sub-sec. (2) then she could not get higher right than what is
stipulated by the document itself.
The concept of 'pre-existing right' takes the acquisition of property out of the ambit of Sec.
14(2). But if that concept is extended to a Will executed under Sec. 30 it would militate against express
provisions in Sec. 30. Sec. 30 creates absolute power in a Hindu to dispose of his property by a Will
and includes the right to create limited or restricted estate in favour
of a female. The property disposed of by Will by a Hindu shall
Thus, if a Will gives a female only a limited estate (or life interest), she would be
entitled only to a limited estate under Sec. 14 (2) and not absolute estate under Sec.14(1) The right of
maintenance under a will would be covered by Sec.14(2) as it is not pre-existing right.]
H i n d u Woman's Property FURTHER QUESTIONS
283
Q.1(a) At the time of Mala's marriage, her father presented her with a Fixed Deposit Receipt of Rs. 25,000. Mala died two years
later. Mala's husband H and her brother B claim the amount as her sole heir under the H.S.A., 1956. How will you
decide?
What will be your answer if Mala had been survived by her husband H, a son S and illegitimate daughter of predeceased
illegitimate daughter D?
(b) Gangaram had a son Gopal and a daughter Shikha. Gangaram

died in 1985 possessed of ancestral properties comprising
of 20,000 shares of a company, and two houses in Delhi. He
left behind his son and daughter as his only heirs. Shikha
was married to Kumar, and she died issueless in 1990. At the
time of her death she also had an amount of Rs. 1 lacs in
her RF. Account. Distribute the shares of Shikha among her
heirs. [C.LC-91/93/94/95\
(c) In 1992, W a female Hindu died leaving behind her husband H as her sole heir. Discuss the rights of H in the following
properties of W:-
(i) a house which W had inherited from her father in 1989, and
(ii) some movable properties which she got by way of gift from her father after her marriage.
Will your answer be different if W had been survived by her husband H and a minor daughter D? Give reasons.
[C.LC.-93/96\
A. 1(a) Intestate Succession to the Property of a Hindu Female

The gifted property is not equal to inherited property, thus Sec. 15 (1) and not Sec. 15 (2) will apply
in such a case (Meyappa v Kannappa AIR 1976 Mad 184). A female's husband is a heir in entry (a)
of Sec. 15 (1), while a female's brother is a heir in entry (d) ('heirs of father')
284
Family Law
- II
of Sec. 15 (1). As the heirs in an earlier entry exclude those in the later entry, the husband will succeed
in the present case.
The heirs in Sec. 15 (1), entry (a) includes 'sons, daughters, sons and daughters of a predeceased
son or daughter and husband.'All these heirs succeed simultaneously, sharing equally. Illegitimacy is not
a disqualification, but the 'heirs of illegitimate parents' could not succeed. In other words, the
grandchildren, in order to succeed, should have
been born out of a valid marriage. Thus, D will not succeed.
Thus, if N4ala -was survived toy W, S and O. only H and S -would lake reer property.
(b) Shikha's share in her father's property could be determined by applying Sec. 6 and effecting a
notional partition. On
such partition, Gangaram and his son will get 1/2 share each; Gangaram's 1/2 share will go by
succession to his heirs - son and daughter (Shikha). Thus, Shikha will get 1/4 share, i.e.,
position before 2005 Amendment to the H.S. Act, 1956.

As the above mentioned property is the 'property inherited from her father', Sec. 15(2) (a) applies,
category (2) of which includes 'heirs of the father.' Thus, such property will go to her brother Gopal.
The amount of Rs. 1 lacs in her RF. Account is her own property and thus Sec. 15 (1) applies, entry
(a) of which includes 'husband.' Thus, such amount of money will go to her husband Kumar.
(c) The house which W inherited from her father will go by succession to the heirs of the father [Sec. 15(2)
(a)], if she has no child and H is the sole heir of the house. As to the gifted property, Sec. 15(1) applies
and the husband would take it.
If W had a child, the house which she inherited from her father would go to her minor child D, the child
being in an earlier category than the heirs of the father, under Sec. 15(2) (a); the husband is excluded
here. In the second case, the child and the husband would share the gifted property equally [Sec. 15(1),
entry (a)j.
285
Q.2 X dies intestate in 1994, and leaves behind her parents F and M, surviving spouse H, two sons S1, and S2, two daughters
D1 and D2. X also had an illegitimate son S3. S1 during the lifetime of X, had converted to Muslim faith and had married a
Muslim girl. X leaves property worth Rs. 20 lakhs. Ascertain the shares of aforesaid heirs in X's property if X was a female
Hindu and the property was acquired by her? [D.U.-2008\ The scheme of succession to X's property will be governed by
Sec. 15(1), since the properties are 'self-acquired' ones. The 'children and the husband' of the deceased female are placed in
the first category under Sec. 15(1). Her parents being placed in a later category will be excluded. The illegitimacy of a child
will not disqualify him; likewise conversion of a child is also not a disqualification. Thus, the property will be divided
equally among husband H, SI, S2, S3, Dl and D2.
Q.3 A, a female Hindu dies intestate in 2006, and has left behind
property worth Rs. 80 lakhs. She had three children from her
husband H who also survives her. Her one son S1 died
during her life time leaving behind his widow SW. Her other
two children a son S2 and a daughter D were married to non-
Hindu spouses. She also had an illegitimate child SS born
to her before marriage as a result of an illicit affair with H2.
Besides theses relations her parents M and F were also
living with her. Discuss who gets her property and what would
be their shares? [D.U.-2008 (Supp.)]
3 The scheme of succession to A's property will be governed by Sec. 15(1), since the properties are 'self-acquired' ones. The
'children and the husband' of the deceased female are placed in the first category under Sec. 15(1). Her parents being
placed in a later category will be excluded. The illegitimacy of a child will not disqualify him; likewise marriage of a child
with non-Hindu spouse is also not a disqualification. The widow of a predeceased son (SW) being placed in a later
category ('heirs of husband') will be excluded. Thus, the property will be divided equally among husband H, S2, SS, and D
(each will get 20 lakhs).
286 Family Law - II
Q.4 Priya dies in 2005 leaving behind her property inherited from
her father and the following relations - husband, adopted
daughter, deaf son and mother. Discuss who would get the
property of Priya? [D.U.-2009]
A.4 The scheme of succession to Priya's property will be governed by Sec. 15(2)(a), since the properties are
'inherited from father'. The 'children' of the deceased female are placed in the first category under Sec.
15(2)(a). Her husband will be excluded because he cannot succeed to the property of his wife which she
had 'inherited from her parents.' Thus, the property will be divided equally among her children - daughter and
son. Adoption of daughter does not matter; similarly, physical disability of son is not a disqualification for
succession. The deceased female 'Mother' being placed in the later category ('heirs of father') will be
excluded in the presence of children.
A Hindu female died leaving behind her daughter from a previous marriage and the second husband, and
property that she had inherited from her father, it was held that since the deceased had inherited the
property from her parents, her daughter alone will be entitled to succeed and the husband here, cannot
succeed [Radhika v Anguram (1994) 5 SCC 761].
Q.5 W, a female Hindu died intestate in 1968 and leaves behind

her spouse H, son S1, illegitimate son S2, unmarried daughter
D1 and married daughter D2. Ascertain the shares of aforesaid
heirs in W's property. [D.U.-2009 (Supp.)]
A.5 In view of the scheme of Sec. 15(1), the property of W will be divided equally among H. SI, S2, Dl and
D2. illegitimacy of children is no disqualification. Also, the marital status of the daughter is of no
consequence.
Q.6 Ramesh and Meena, a couple with a son Mohit, divorced. Meena then migrated to America along with Mohit. Ramesh then
married Radha, and started living in her house, that she had bought with her savings and loan from her provident fund. She
was the only daughter of her parents, and at the
287
time of her marriage was living in her house with them and maintaining and supporting them also. Three years later
both Radha and Ramesh died in a plane crash. Discuss who would get the property of Radha? [D.U.-2011]
A.6 Radha died issueless; the property acquired by her was 'self-acquired', thus, Sec. 15(1) will apply. In
view of the decision in Om Prakash v Radhacharan (2009), the self-acquired properties of Radha
will devolve upon the 'heirs of the husband' Ramesh. In such a situation, the 'step-son of Radha' (who
is otherwise a disqualified heir) could succeed as the 'son of the husband' (born to him from a previous
marriage). Thus, Mohit would get the property of Radha.
Q.7(a) A Hindu Karta died intestate in 1950 leaving five sons and a widow, W. A dispute arose among his sons, and the
appointed arbitrator awarded a residential house (for residence purpose) to W and interest on a sum of Rs. 8 lacs for her
maintenance. The award specifically provided that W would only have a Hindu women's estate in both assets. W
executed a Will in 1959 bequeathing both properties to her brother's daughter D. Examine whether D is entitled to the
bequests.
[C.L.C-91/99]
(b) W, a Hindu widow whose husband died in 1939 gets a house

'H', in lieu of maintenance. She also got another house 'H1'
from her brother-in-law as a gift which however said that after
her death it would revert back to him. In 1960, W dies leaving
behind a Will saying: "Ail the properties that I possess on my
death shall go to X." On the basis of the Will X claims both
the houses. Decide. [C.LC-92]
L.7(a) Hindu Women's Estate/Property
before the passing of the Hindu Succession Act, 1956, a female Hindu ,ad a 'limited estate' in the JFP.
But, Sec. 14(1) of the H.S.A. gave her absolute ownership' over such property, subject only to the
restrictions mentioned in Sec. 14(2). The term 'property' under Sec. 14 includes he property
obtained in lieu of maintenance.
288
Family Law
- II
While the limited owner has the right of possession, right of management and right of exclusive
enjoyment, such owner do not have the right of disposal by an act inter vivos (e.g. sale, gift, Will) which
only an absolute owner possess. Further, on the death of the limited owner, the property goes to
reversioners (heirs of the last full owner) while on the death of absolute owner, property devolves to one's
own heirs by succession.
The word 'maintenance' includes food, clothing and shelter Therefore, the property which W gets
can be said to be in lieu of maintenance. She has a limited estate in such property which gets transformed
into absolute estate under Sec. 14(1). Thus, she can make a valid Will of such property in 1959.
(b) According to Sec. 14(1), U.S.A., all property in which a woman
has a pre-existing right gets transformed into her absolute estate
However, where a property is acquired under a document which
prescribes a restrictive estate, it does not get converted to
absolute estate [Sec. 14(2)]. It is important to note that if the
source of right is the document. Sec. 14(2) will apply; if the
document merely reaffirms a pre-existing right. Sec. 14(2) w
not apply (V. Tulsamma v V. Shesha Reddy AIR 1977 S
1944).
The house 'H' which W got 'in lieu of maintenance' will get transform
into her absolute estate by virtue of Sec. 14(1) and she can make a valid
Will and pass it on to X. But, in respect of the house 'HI', Sec. 14|
will apply as here the document (gift-deed) is the source of her right
In 1960 when W dies it will revert back to her brother-in-law and X
can't claim it.
Q.8 W inherited certain property from her husband in 1950, which she gifted to X in 1952. S, the brother of her husband filed a suit
and obtained a decree in 1953 to the effect that the gift was not binding upon him. In 1957, X made a gift back to w of the
same property which he had received in 1952 Thereafter, W sold the property to Y in 1958 and died in 1959 On W's death, S
claimed the property from Y. Will he succeed ?
289
What will be your answer:-
(i) if there had not been a gift back to W in 1957 and subsequent sale to Y in 1958?
(ii) if there had been a gift back to W in 1954?
(iii) if W had mortgaged the property in favour of X instead of making the gift and had died in 1959 without redeeming the
property?
(iv) if W had died in 1954?

[D.U.-2006/2008/2009][C.LC.-93; LC.II-95/96\
A.8 In cases of mortgage, lease or licence, ownership still vests with the transferor and therefore the
female can still take benefit of Sec. 14. But where she sells or gifts her limited estate, she loses her
possession as here she parts with her title to property. Here her limited right will not be transformed
into an absolute right and on her death the property will go to the reversioners. It may be noted that in
respect of pre-Act woman's estate, if she is not in the possession of property when the Act came into
force, the old Hindu law continues to apply. An important issue with regard to the application of Sec.
14 is the effect of reconveyance i.e. property is returned to the alienor (transferor) as if the transaction had
never been entered into. If reconveyance had taken place before 1956, the female would be deemed to be
in possession of property, thus Sec. 14 will apply. Even if reconveyance occurs after
1956, it would become her absolute property as Sec. 14 also uses the
phrase 'property acquired after the commencement of this Act'
Jagannathan v Kunjithapadam AIR 1987 SC 1493).
W had a 'limited estate' in her husband's properties in 1950. Thus when she gifted it in 1952 she
could only convey a limited title. In
1957, when X made a gift back to W of the same property, it amounts
to a reconveyance; this property becomes her absolute property in view
of Sec. 14(1). Thus when W sold it to Y in 1958, she conveyed a good
title to him and Y becomes the absolute owner of it. The suit by S in
1953 was only a declaratory decree of his reversionary rights. S could
290
Family Law - II
have filed a fresh suit after 1956 (it may be noted that the reversioners are still relevant i.e. after the
passing of 1956 Act, in respect of the woman's estate alienated by her before 1956). But S will not
succeed in it because of reconveyance of the property and consequent absolute ownership in W and later
on in Y.
(i) The property would have remained a limited estate, had there been no gift back to W in 1957, and in
such a case on W's death, S as a reversioner can claim it.
(ii) It has been noted earlier that if a reconveyance is made before or after the 1956 Act, the female will
become an absolute owner of it. In this case, S cannot claim the property after W's death.
(iii) In mortgage, the title to the property still vests in the mortgagor (transferor). Thus, in case of mortgage, W
would become an absolute owner of this property in 1956, and her heirs will succeed to the equity of
redemption of mortgage. S cannot claim this property.
(iv) If W had died in 1954, the right of reversion will operate in favour of S and he can claim back this
property.
Q.9 In a family compromise in 1950, a Hindu widow, W, was given sufficient movable properties in lieu of her husband's interest
in the coparcenary. On humanitarian grounds, she was also provided with a residence till an alternative arrangement was
made for her accommodation. However, the compromise deed precluded her from alienating any of the aforesaid properties
in any manner whatsoever. But in 1954, she sold all the properties to Dinanath so as to meet the marriage expenses of her
daughter, D. This transaction was challenged by W's deceased husband's brothers. Before the disposal of the suit, W died in
1960. Advise Dinanath as to his rights.
What will be your answer if W had mortgaged all the properties in favour of Dinanath instead of making the sale and had
died in 1960 without redeeming the properties? Give reasons.
[C.LC-94]
291
A,9 W had a 'limited' estate in the movable properties which she got in 1950. She could have an
'absolute' estate in this property if she has been in possession of it at the time of the passing of the
1956 Act. As she alienated it before 1956, she cannot take the benefit of Sec. 14(1). Thus, after
her death, the properties should go to the reversioners i.e. her husband's brothers.
However, it is important to note here that a female can alienate her limited) woman's estate in
exceptional cases e.g. legal necessity marriage, maintenance of members of family, etc.). The
alienation made by her in such cases will be binding on the reversioners/ coparceners. As in the
present case, W alienated the property for the marriage expenses of her daughter, which is a legal
necessity, the alienee (Dinanath) would take absolute interest in the property.
If W had mortgaged the property, the title to it would have remained with her and she would have
become .absolute owner of it in 1956. Then the equity of redemption (of mortgage) would pass to
her heirs
would not revert back to the reversioners. However, the house will revert back to the reversioners,
as W had no pre-existing rights in it
(the house was given on humanitarian grounds). If a Hindu female is in possession of properties
other than as a limited owner, her estate not become full estate after the coming into force of the
Hindu cession Act.
Q.10 K had two wives W1 and W2. In 1941, he executed a Will of his properties giving one half share to each of his wives, till
their life. Divya, his daughter through W2 was to be the ultimate beneficiary. K died in 1960. W1 died in 1970, but
before few months before her death she had executed a Will in favour of her domestic servant Kanta.
While claiming her right under the Will, Kanta contends that whatever property was given under the Will by K to W1
was in lieu of maintenance, which had become absolute property of W1 on coming into force of the H.S.A., 1956. W1
being the absolute owner was capable of creating the Will in her favour thus her claims should succeed. Decide.
H in du Woman's P r o p e r t y
293
A.11 Remarriage of Widow and its Effect on Women's Estate

Once a widow succeeds to the property of her husband and acquires absolute right over the same
under Sec. 14, she would not be divested that absolute right on her remarriage. A limited
entitlement of maintenance would necessarily fructify into a full estate for a widow provided she
had not remarried before the H.S. Act came into force (Because then the provisions of the Hindu
Widow Remarriage Act, S6, would apply: A remarriage makes her available an alternative viz.
second husband would take care of her maintenance. Thus, a low remarrying will be presumed to
be dead as far as her rights in the former husband's property are concerned, and the reversioner's
right to suucced will be immediately activated).
The H.S. Act, 1956 overrides the Widow Remarriage Act, 1856,
Or any other Act. In fact, the latter Act was repealed in 1983. Once her limited (woman's) estate
becomes her full or absolute estate by virtue Sec. 14(1), a Hindu female can alienate it by gift or
otherwise.
In the present case, as the remarriage was subsequent to the enactment of the 1956 Act, her
limited rights had already matured into solute ownership and her remarriage would have no adverse
effect on [Babulal Kewani v State of Bihar AIR 2007 Pat 70).
Q.12 (a) A Hindu male died prior to 1937, leaving behind his widow, son and daughter. The mother as a guardian took the
possession of the property as the children were infant, and, died in 1990. Thereupon her daughter filed for mutation of
names with respect to half of the property. It was resisted by her brother contending that as the father's death had taken
place before the coming into force of the Hindu Women's Act, 1937, his mother had no 'limited estate/ownership' in the
property but only a right of maintenance and the same could not mature into an absolute estate and therefore he alone
inherited the property of the father? Decide.
(b) The maternal uncle and aunt of a widow gave her the possession of a property for her life. They had no moral or legal
obligation to maintain her. Discuss whether such an interest in the property would be covered by Sec. 14(1).
294
Family Law - lII
A.12(a)As the widow had no subsisting right in the property beside only a right to claim maintenance this right
could not mature into absolute ownership in 1956, the complete right in the property vested in the son
(Jamunabai Bhalchandra Bhoir Moreshwar Mukund Bhoir AIR 2009 Bom. 35).
(b) According to Sec. 14(1), H.S.A., all property in whicn a worm has a pre-existing right gets transformed into
her absolute estate However, where a property is acquired under a document which prescribes a restrictive
estate, it does not get converted absolute estate [Sec. 14(2)].
Thus, where a widow had no pre-existing right of maintenance, but was given the right of possession
of the property for her lifetime, out of love and affection, such rights will not mature into an absolute
interest. Thus, Sec. 14(1) has no application in the case in question {Gorachand Mukherjee v Malabika
Dutta AIR 2002 Cal 26).
Q.13 A testator (male) states in his Will that he is duty bound to maintain the widow and that was the reason why he was giving a
life-estate to her. Discuss whether such an interest will be converted into a full interest after 1956?
A.13 Right of Widow to Maintenance under a Will
If a Will gives a female only a limited estate (or life interest), she would be entitled only to a limited
estate under Sec. 14(2) and not absolute estate under Sec. 14(1). The right of maintenance under a Will
would be covered by Sec. 14(2) as it is not a pre-existing right [Gumpha v Jaibai (1994) 2 SCC 511].
However, it needs to be clarified that where under a Will, a widow gets the life estate in lieu of her
maintenance, the limited rights are converted into absolute rights by virtue of the Act, but where the
testator, as an absolute owner, wants to give a life-estate to the widow not because she needs to
maintain herself out of it, but because the testator wanted her to be the legatee and the beneficiary
under the will it will remain a life interest and would not become an absolute interest In other words,
where the testator states in his Will that he is duty bound to maintain the widow and that was the
reason why he
was
295
giving a life-estate to her, such interest will be converted into a full interest after 1956.
The mode of acquisition is immaterial if it is received in lieu of maintenance. It may be received
under a 'Will' [Beni Bai v Raghubir Prasad MR 1999 SC 1147; Henumayamma v Todikamalla
Kotilingam MR 2001 SC 3062].
Q.14 (a) The property was given by the husband to his wife for her maintenance before his death. She took possession of the
property and the same was also accepted by the other male relatives (including reversioners) in a consent decree.
According to that decree, no one was to disturb the peaceful possession of the widow and the land after her death was to
revert back to the reversioners. The widow died in 1992 and her legal representatives (heirs) filed a suit claiming the
land on the ground that since the enactment of the H.S. Act, 1956, in view of Sec. 14(1) she had become the absolute
owner of the property and thus the reversioners will be excluded. The reversioners contended that in view of the terms
of consent decree, the widow could not be called the absolute owner despite the provisions of the H.S. Act, as it did not
apply to her case. The land was allotted to her only for her lifetime expressly for the purpose of maintenance, and thus it
also prevented the property from vesting in her. Decide.
(b) The testator created a life interest in his landed property and absolute ownership with respect to his complete movable
property in favour of his wife under a Will. After his death the wife executed a lease of the landed property and died six
years later. Discuss whether the case is covered by Sec. 14(1) or Sec. 14(2).
A. 14(a) The possession of the widow in the present case even prior to the institution of the present suit was
accepted by the reversioners in the consent decree and they undertook not to interfere in her peaceful
possession thereof. After the husband's death, who died after 1956, the widow became the co-owner
of the property of her deceased husband and had half share in it. The succession
296 Family Law - II
to this property was governed by the H.S. Act, 1956. She was therefore in possession of the land not
merely as a possessor of the property but as the co-owner of the property, thus, the question of divesting
her of the property invoking Sec. 14(2) does not arise. Thus the existing right of the widow in light of
the consent decree was crystallized by reason of the consent decree and she took the property as a full
owner thereof after the passing of the Act {Santosh v Saraswathibai AIR 2008 SC 500).
(b) The widow had acquired a limited ownership expressly and it was not in lieu of her pre-existing rights of
maintenance. Thus, the case is covered by Sec. 14(2) and not Sec. 14(1). Therefore, the widow was not
competent to execute a lease as an absolute owner of the property {Sharad Subramanyan v Soumi
Mazumdar AIR 2006 SC 1993).
9 Muslim Law of Inheritance
The Islamic law of inheritance, like the rest of the Islamic personal law is a combination of the pre-Islamic
custom and the rules introduced by the Prophet. The greater part of Islamic law of inheritance is founded on
the Quran.
The Muslim law of inheritance is comprehensive, logical and complete in all respects. It contains rules
which are just and equitable, For instance, Quran has introduced a new class of legal heirs constituting female
and the aged parents (which was not so under the customary law). These "newly created heirs" are given the
shares first of all. Further, the husband and wife have been made each other's legal heirs.
The Muslim law of inheritance is peculiar in the sense that the scheme of distribution has been framed in
such a manner that besides specifying the respective shares of the legal heirs, it has also made revision for the
conflicting claims of other relatives of a deceased. A reasonable balance has been maintained between the
nearness of the heirs and the amount of their shares in the deceased's property.
important Terms Heirs (Sunni law)

Descendants - It mean the offsprings of a person e.g. sons and daughters. The children of sons and daughters
and their children, and o on (up to any degree of descent), are also descendants.}
12971
298
Family Law - II
, Ascendants - It mean the ancestors of a person e.g. father and mother The father and mother of his
father and mother are also his ascendants and so are their parents up to any degree
Collaterals - These are descendants in parallel lines, from a common ancestor or ancestress. For instance, brother is
collateral, so is sister Similarly, paternal uncle and paternal aunt and their children are collaterals and so are maternal ones
Agnates — When a person traces his relationship with another -wholly through males, "he or she is an agnate. His sex
or the sex of the deceased Hindu is immaterial. For instance, brother, brother's son, son's son, son's son's son,
father, father's father, father's mother, father's father or mother, son's daughter, etc. are agnates. Thus, agnates can be
descendants, ascendants or collaterals^ £ Cognates - Whenever in the relationship of a person with another,
female (or females) intervenes anywhere in the line, one is a cognate to another. For instance, sister's son and
daughters; daughter's sons and daughters; mother's mother and father; father's mother's father and
mother; mother's father's son and daughters (i.e., maternal uncles and aunts) are all cognates. Thus a
cognate may be a descendant ascendant or collateral!
Full blood - When the father and mother of two persons are the san e.g. 'real' brothers and sisters
Half blood - When two persons have the same father but different mothers. Also called 'consanguine''
brothers and sisters; they are agnate because they inherit through a male (common father)
Uterine blood — When two persons have the same mother but different fathers. They are cognates because they inherit
through a female (common mother).
True/False Grandfather - The paternal (agnatic) grandfather between whom and the deceased no female link intervenes is 'true
grandfather.' The grandfather between whom and the deceased one or more female links intervene is 'false
grandfather' e.g. father's mother's father, mother's father,
Muslim Law of Inheritance 299
True/False Grandmother - A female ancestor between whom and the deceased, no false (or maternal)
grandfather intervenes is 'true grandmother.' If a false (or maternal) grandfather intervenes, she is
'false grandmother/)
What is Heritable Property?

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

(1) In Muslim law, all property is one and there is no distinction between ancestral and self-acquired
(separate) property. Exclusive ownership with full powers of alienation is an essential feature of property
ownership under Muslim law. Whenever a Muslim dies, his properties devolve on his heirs in definite
share of which each heir becomes an absolute owner. Subsequently, upon the death of such heir, his
properties are again inherited by his legal heirs, and this process continues. (2) There is no such thing
as joint Muslim family nor does the law recognizes a tenancy-in-common in a Muslim family. The
estate of a deceased Muslim devolves on his heirs separately and the heirs are entitled to hold the
property as tenants-in-common (such tenancy-in-common implies only a group of individuals living and
messing together), each having a definite share in the property. The shares of heirs under Muslim law
are definite and known before actual partition. Therefore, on partition of properties belonging to a
deceased Muslim,
300 Family Law - It
there is division by metes and bounds in accordance with the specific share of each heir being already
determined by the law.
(3) The right of an heir, for the first time, comes into existence on the death of the ancestor. A right by birth
is unknown in Muslim law.
(4) Muslim law does not recognize the doctrine of representation. The estate of a deceased person devolves
upon his heir at the moment of his death. The estate vests immediately in each heir in proportion to the
share ordained by the Muslim law. As the interest of each heir is separate and distinct, one of a number
of heirs cannot be treated as representing the others. Thus, if A's son S dies in the lifetime of A, the
son of S i.e. grandson of A cannot claim his father's share as representing him.
(5) Muslim law does not recognize any interest expectant on the death of another i.e. spes successionis.
(6) Muslim law does not recognize any distinction between succession to the property of a male and female
(as under the Hindu law).
[Note: Like the Hindu law, the Muslim law of inheritance and succession does not apply to the property of
a Muslim intestate, if he gets married to a Muslim or even a non-Muslim under the Special Marriage
Act, 1954. The general provisions of inheritance available under the Indian Succession Act, 1925, will
then apply.]
(Q, /General Rules of Inheritance (Sunni Law)

I (1) Inheritance opens on the death of the person - Before his death nobody can claim any right in the property
on the basis of his being heir-apparent or heir-presumptive. In other words, no person may be an heir of a
living person. It is only when an heir-apparent survives a Muslim, he can be regarded an heir. Thus, B
(A's son) is not entitled to any interest in A's property during A's lifetime. If A gifts his property to C, B
cannot file a suit to set aside the gift on the ground of undue influence. This is so because B has not
'right to succeed' during the lifetime of A.i
Muslim Law of Inheritance
301
Therefore, an heir-apparent has nothing more than a mere chance of succession i.e. spes
successions. His right may be defeated in a number of ways; the owner may transfer it in his
lifetime. The mere chance/hope of an heir-apparent can neither be transferred nor renounced in favour
of anyone. But if he receives consideration and so conducts himself as to mislead an owner, the
expectant heir could be debarred from setting up his right when it doe? vest in him. This principle
of equitable estoppel is in consonance with Muslim law [Gulam Abbas v Haji Ali (1973) 1 SCC 1].
(2) Vested Inheritance - The moment succession opens, the heirs takes a vested interest in the
estate of the deceased. Their ownership in their respective shares is not dependent upon its actual
distribution by metes and bounds. (Thus, even if such heir dies before the distribution, his right (of
inheritance) remain^ intact and immediately passes to his own heirs. This is so because what passes
on death is the right of inheritance, the corpus is only the result of such right,
j(3) Rule of representation - The expectant right of an heir-apparent cannot pass by succession to his heir,
nor can it pass by bequest to a legatee under his Will. Suppose, X has two sons, the first son dies in
the lifetime of his father, but leaving a son. Afterwards X dies leaving behind his second son and
the grandson by the predeceased son. The surviving (second) son will get the whole property
excluding his nephew i.e. grandson of X. The grandson cannot claim his father's share because in the
lifetime of X, the first son died. The grandson is not entitled to claim his father's share as
representing him because his father never inherited from his grandfather. Thus, the 'son of a
predeceased son' is not an heir
Under Muslim law, the 'nearer excludes the remoter,' Thus, the principle of representation could not be
applied for the purposes of deciding who are entitled to inherit. The reasoning behind is that a person
has not even an inchoate (incomplete) right to the property of his ancestor during his lifetime.
However, in recent years, several countries have made provisions to mitigate hardships of the son of
a predeceased sonj
302 Family Law - II
\(4) disqualifications from inheritance - A person who causes the death of a person (homicide) is not entitled
to inherit the property of that person, no matter whether the death was caused intentionally or by
accident. An illegitimate child is entitled to inherit from his mother but not from his lather.
A 'child in womb' is regarded as a living person and, as such, is competent to inherit provided it is born
alive. But, if such child is not born alive, the share already vested in it is divested and it is presumed as
if there was no such heir in the womb at all
insanity, want of chastity (adultery) or any other physical deformity is not a disqualification.
Conversion to another religion is not a disqualification due to the Caste Disabilities Removal Act, 1850.
But the religion of the propositus is still an important factor because the properties devolve under the
personal law to which the propositus belonged "just before his death." Thus, a Hindu (converted to Islam)
when dies as a Muslim, his Hindu relatives cannot claim a share in inheritance by virtue of the Caste
Disabilities Removal Act.)
(. Though a daughter is entitled to succeed to the property of the parents, at some places daughters are
excluded on account of local customs, etc. in Jammu and Kashmir, a daughter can succeed only in
absence of all male agnates of the deceased. In Bombay, a daughter is excluded from Inheritance in the
presence of paternal uncle. (5) Doctrine of exclusion
(a) Partial or imperfect exclusion. For instance, exclusion from one share and admission to another (thus,
daughter in the presence of a son is excluded as a 'sharer' and becomes 'residuary'). Likewise, partial
reduction of the specific share because of the presence of certain heirs (thus, the share of
a wife is either 1/4* or J/8111 according to the absence or presence of a child or child of a son how low
soever).
(b) Total or perfect exclusion. It applies to cases when although a person related to the propositus and
otherwise entitled to inherit is excluded by some legal cause. This doctrine consists of a set of three rules which
govern inheritance
and exclude certain heirs by recognizing the preferential claims of certain other heirs,
(i) A person who is related to the propositus (deceased) through another is excluded by the
presence of the latter. For instance, A has two sons X and Y. Y dies leaving heritable property. Now
X cannot claim inheritance on the basis of his being brother of the deceased, because his relationship
with Y arises through A, their father and hence the presence of A excludes X.J ere is an exception viz.
Mother does not exclude brother or sister, (ii) Within the limits of each class of heirs, an heir
nearer in blood excludes the more remote (theory of propinquity). For instance, A has a son P and a
grandson X from P. P being nearer in blood will exclude X.
A (Propositus)
I P(Son)
I
X (Grandson)
.
It may be noted that this principle applies only as between relations belonging to the 'same class of
heirs/ Thus, if the surviving relations be a daughter and brother's son, the daughter though she is
nearer in degree, does not exclude the brother's son (because the daughter in this case inherits as a
sharer and the brother's son a residuary).
(iii) Full blood excludes half-blood. However, uterine relations
are not excluded on this ground, (iv) A person excluded, may exclude others. Thus, the person who
himself is excluded from inheritance may affect the share of others i.e. he will not be supposed to be
non-existing for excluding others^J
304 Family Law - II
Heirs (Sunni /Hanafi Law)

The heritable property first goes to the relations of the deceased who on the basis of their preferential
claim have been divided into the following three groups:-
(a) Sharers (Quranic heirs) - They are the relations whose share have been specifically fixed by Quran. Their
shares cannot be altered by any human effort. They are given precedence owing to the respect paid to
Quran.
(b) Residuaries (Agnatic heirs) - Who succeed to the residue, any, left after satisfying the sharers.1 They
don't get any fixe share; it varies according to the residue. In certain combination the sharers themselves
are treated as residuaries e.g. daughter with son, sister with brother.
(c) Distant kindred (Uterine heirs) - They are those relations who are neither sharers nor residuaries; they
are related to the propositus through blood.]
[The 'Subsidiary' or 'Unrelated heirs', which comes after these three groups, inherit only in exceptional
cases. For example, "Successor by (special) contract"; "Acknowledged kinsman" (a man may
acknowledge another unknown descent as his brother, uncle, etc. but not as his son "Universal legatee" (in
default or absence of all of the above, a testator is empowered to bequeath the whole of his estate to any
person); "the State" (by escheat).])
(a) Sharers
They are 12 in number, majority being females. The male sharers are husband, father, true grandfather (how
high soever) and, uterine brother The female sharers are wife, mother, true grandmother (how high
soever), daughter, son's daughter'(how low soever), uterine sister,(full sister, and, consanguine sister,
Son is not a Quranic heir
If the total property of the sharers is equal to the heritable property, the whole property is divided among the sharers. But if there still
remains some property (residue), then the second step is to distribute it among the residuaries. However where a propositus has no sharers at all.
the whole property is inherited directly by the residuaries.
of these the 'primary heirs' (according to Mulla) are 6 in number: Father, Mother, Son (though a
residuary), Daughter, Husband, and Wife. The above persons are the most favoured heirs; that are
always entitled to some shares of the inheritance and they are in no case liable to exclusion. Next to
these, there are three substitutes of the corresponding primary heirs (who inherit in their absence).
These are child of a son (for a child), true grandfather (for the father), and, true grandmother (for the
mother). The surviving spouse (husband or wife) by the very nature of relationship cannot have a
substitute.
It is important to note that anyone claiming interest through primary heir is excluded. Thus, father's
father will be excluded by father, similarly son's *son's son will be excluded by son's son.]
b) Residuaries
They are all male agnates (descendants, ascendants, and collaterals -inherit through male relations) and
only four females who are 'sharers' but are converted into residuaries in some cases (viz. daughter, son's
laughter, full sister, and, consanguine sister.
The descendants are son, son's son (how low soever). The
ascendants are father, true grandfather (how tew soever). The
descendants of father (collaterals) are full brother, full sister, consanguine
brother, consanguine sister, etc. The descendants of true grandfather
(collaterals) include full/consanguine paternal uncle, his son,
. If all the residuaries are males, the property is divided among them squally. But if the residuaries
include also females the property is divided in such a way that share of a male is double the share of a
female. It may be noted that Quranic heirs consists mainly of females. The reason is that the bulk of the
property in the majority of cases is sought to be kept intact for the residuary heirs who are mostly
males
Âccording to Sirajyyah, there are three classes of residuaries: (i) residuaries in their own rights - these
are males, listed above.
(ii) residuaries in the right of another - these are females e.g. daughter of deceased is not a residuary but a
sharer,
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Family Law - II
nevertheless when the deceased person leaves a son also, the same daughter who as a general rule is
sharer, becomes a residuary.
(iii) residuaries with others - e.g. full sister and consanguine sister, they inherit as residuaries
with daughter and son's daughter (how low soever).
(c) Distant Kindred

This class covers blood relations who are neither sharers nor residuaries Thus, daughter's children, children
of son's daughters, full brother's daughters, full paternal uncle's daughters, paternal andrnaternal aunts
etc.
If the propositus has neither any sharer nor any residuary then the property is taken by the distant
kindred. However, in cases, when the only heirs are the husband (or widow) and the distant kindred, the
latter gets the residue after the allotment of share to husband (or widow)
Shares of Primary Heirs (Sunni Law)
i(1) Father ^
(i) He gets 1/6 share when there is a child or son's child low
soever, (ii) He takes as a residuary when there is no child or son's child A Father inherits in
double capacity; he is a sharer but in certain case he inherits also as a residuary. Thus, when the only
relations entitled to inherit are the father and the daughter, the father will inherit both as ; sharer and as a
residuary. This is the only case of an heir inheriting ii two different capacities at the same time
The Father can take to the extent of total property in absence o any other sharer. The presence of father
excludes all brothers and
sisters on the basis of' the principal of exclusion that when a person is related to the intestate through another
person, he is excluded in the
presence of that relative, who is the connection.
307
Mother
(i) She takes 1/6 when -
(a) there is a child or son's child how low soever.
(b) there are two brothers, one brother and one sister, or two sisters of the deceased (whether full,
uterine or consanguine).
(ii) She takes 1/3 when there is no child or son's child, and, not
more than one brother or sister (if any)j : if there is also spouse (widow/husband) and the father,
then only
of what remains after deducting the widow's or husband's share, this peculiar combination, the
mother (even without children) does
not get 1/3 of the whole property because in that case father's share would become half of the
mother which is against the general principle t share of a male should be double the share of a
female.
Husband (Widower) (i) He takes 1/4 when there is a child or son's child how low soever. She gets
her 1/4 share only out of the movable properties of the deceased husband, (ii) He takes 1 12 when there
is no child or son's child. .
) Wife (Widow)
(i) She takes 1/8 when there is a child or son's child how low
soever. Also, two or more wives take 1/8 collectively. (ii) She takes 1/4 when there is
no child or son's child,
i) Daughter (i) A daughter inherits as a sharer only in absence of a son. She takes 1/2 when there is
no son. If there are two or more daughters they take 2/3 collectively. (ii) When there is a son present,
the daughter takes as a residuary (similarly, son's daughter is a residuary in the presence of son's son).
She gets half of the share of the son. i
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Family Law - II
[As noted above, the share of a female is one half of the corresponding male relations' share. This is
because of her lesser responsibilities and
obligations in comparison to males.
(6) Son
The son always takes as a residuary. But the rules governing inheritance are such that although the son
always takes as a residuary, he would always inherit.
When there is no daughter, the son takes the entire residue. When the son is together with a
daughter, the son gets the double the share of daughter.!
* Important Points
(i) First of all the shares are allotted to the husband or wife (widow), as the case may be. Husband and wife
are always entitled to succeed with other claimants.
(ii) Presence of a child (son/daughter) or son's child creates a lot of difference in the application of law of
inheritance of primary heirs.
(iii) 'Full sister' (a sharer) has the same share as that of a 'daughter. Thus, a single sister's share is 1/2; that of
two or more is 2 3. However, she gets the above-mentioned share in the absence of (a) parents (b) lineal
descendants (c) full brother, and, (d father's father. In the presence of (a) full brother and (b father's
father, she inherits as a residuary,
Some Illustrations
(a) Father - 1/6 (as sharer, because there are daughters) Father's father - (excluded by father) Two
daughters - 2/3 (collectively) Mother - 1/6 because there are daughters)
Mother’s mother - (eluded by mother)
Son's daughter - (excluded by daughters)
309
(b) Son - 2/3

Daughter - 1/3 (as residuaries)
it if the heirs be a daughter and a son's son, the daughter as a sharer I take 1/2, and the son's son as
a residuary will take 1/2.]
(c) Two sons - 4/7 (as residuaries, each son taking 2/7) Three daughters - 3/7 (as residuaries, each daughter
taking 1/7)
(d) Widow - 1/8 (as sharer)
Son - 2/3 of 7/8 = 7/12 (as residuaries) Daughter - 1/3 of 7/8 = 7/24
(e) Mother - 1/3 (as sharer) Father - 2/3 (as residuary)
(f) Daughter - 1/2 (as sharer)
Father - 1/2 (1/6 as sharer + 1/3 as residuary)
(g) Husband - 1/4 (as sharer)
Mother - 1/6 (as sharer)
Son - 2/3 of 7/12 = 7/18
Daughter - 1/3 of 7/12 = 7/36 (as residuaries) le residue in the above case is 1 -
(1/4 + 1/6) = 7/12.]
GENERAL RULES OF INHERITANCE (SHIA LAW)
The Shias group the heirs of a Muslim deceased in two categories: (i) Consanguine heirs viz. related
to the deceased by blood; and (ii) Relation by marriage i.e. husband and wife
consanguine Heirs
These heirs are divided into three groups, the former excluding the latter and each of these groups
is sub-divided into two sub-groups, within each group, heirs mentioned in the sub-groups inherit
together
310
Family Law
- II
*)
and do not exclude each other. These groups and sub-groups are as follows:
I. (i) Parents
(ii) Children and other lineal descendants how low so ever.
II. (i) All grandparents how high so ever
(ii) Brothers and sisters and their descendants how low so ever
III. (i) Paternal and
(ii) Maternal uncles and aunts of the deceased, and of his parents and grandparents how high so ever, and
their descendants how low so ever
In absence of heirs of first class namely parents, children and other lineal descendants, the heirs of
second class take the property. This class comprises grandparents, brothers and sisters and their
descendant They inherit along with the surviving spouse of the deceased if any and from the share that is
left after the spouse has been allotted his/her share.
When none of the heirs in the preceding two classes is present the property passes to the heirs in
the third class.)
Classification of Heirs (Shia)

Shias divide the entire group of heirs into sharers and residuaries. There is no corresponding category to
distant kindred under Shia Law.
Sharers
There are nine sharers three of them are males and six are females and include the parents, surviving spouse
(husband or wife as the case may be), daughter, full and consanguine sister and uterine brothers and sisters
The descendants of daughter, full, consanguine and uterine sister and uterine brother are also
sharers,
. Husband
(i) He gets 1/4 when only one heir is present (in presence a lineal descendant).
311
(ii) He gets 1/2 in absence of a descendant)

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

The Sunni jurists have given strict interpretation to the Quranic provisions. They kept the old framework
intact e.g. preference of agnates over cognates, and super-imposed the Quranic principles on this old set-
up. The Shia jurists have preferred to give a liberal interpretation to the provisions of Quran. They have
taken the Quranic provisions as completely altering the old customary law. Because of this difference in
the approach to the interpretation of Quranic provisions, there has been a marked difference in the
Sunni and Shia law of inheritance.
(1) Shares of husband/wife/mother/father: On the death of a Shia female, her husband (widower) has a fixed
1/4 share in presence of the lineal descendants and 1/2 in their absence. Under Sunni law, the variation
depends upon the presence or absence of children (son/daughter) or son's child. Under Shia law, a child
or lineal descendant (including that of the daughter) would affect the share of the surviving spouse.
Similar is the case of a widow/mother/father. The fixed ratio (of shares) is same in both Sunni and Shia
laws.
(2) Son and daughter: The rules and shares in respect of a daughter and son are similar under the Sunni and
Shia laws.
For example, a Shia Muslim A dies and is survived by his parents M and F, a son S and two daughters
D, and D2. M and F will take 1/6 each as sharers. Dj and D2 will inherit as residuaries with S and their
shares would be as follows: M (1/6); F (1/6); S (1/3); D, (1/6), and D2 (1/6).
Under Sunni law also the distribution would be the same.
(3) Principle of Primogeniture: According to it, where a person
has several sons, the eldest son has a preferential claim over
the estate of the deceased father. Generally, this rule is not
recognized by Muslim law. However, under the Shia law, the
eldest son has an exclusive right to inherit his father's garment
sword, ring, and, the copy of Quran. For that the eldest son should be of sound mind and the father
should have left certain properties besides these articles. 4) Lineal descendants: Under Shia law, all
'lineal descendants' are grouped in one category and are not spread over all the three categories of
Sharers, Residuaries and Distant Kindred like under the Sunni law. This makes the difference in the
distribution of shares of heirs,
For example, a Shia Muslim A dies and is survived by his parents and F and two sons of his daughter
DS, and DS2. Here in presence of the lineal descendants, the father would take 1/6 as a sharer; M will
also take 1/6. DS, and DS2 (being lineal descendant) would represent r mother and take 2/3 together
(1/3 each).
Under Sunni law, M would have taken 1/3 and father would have taken 2/3 as a residuary.
Daughter's sons under Sunni law are 'distant kindred' and would not have been entitled to inherit in
presence of the sharers.
(5) Doctrines of representation and exclusion: Muslim law does not recognize the doctrine of
representation. Thus, the nearer excludes the remoter. Under Sunni law, the principle of representation
is recognized neither in the matter of determining the claim of an heir i.e. who is an heir, nor in
determining the quantum of shares of each heir. Shia law, however, accepts the principle of
representation as a cardinal principle for the very limited purpose of ascertaining the quantum of share
of any given person, if he is entitled to inherit in some other capacity, Thus, under Shia law, where the
heirs are the descendants of two or more children but are in the same degree of relationship to the
deceased, r the purposes of calculating their shares, the rule of representation applicable. The lineal
descendants of one child would take the share it would have been inherited by their respective parent
and would vide it amongst themselves.
For example, a Shia Muslim A dies leaving behind two sons SI and S2 and two sons of a
predeceased son, SS, and SS2. Due to the application of the principle of nearer in blood excluding the
remoter, in
314 Family Law - II
presence of these two sons, grandsons would be excluded. S, and S, will divided the property between
them taking one-half of the property. This is the position under Sunni law also.
Take another example. A Shia Muslim A dies and is survived by two daughters of a predeceased son
SD, and SD2 and three sons of a predeceased daughter DS,, DS2 and DS3. Here all the descendants are
in the same degree of relationship with the deceased. For the purpose of calculation of their shares, the
doctrine of representation would be applied. The property would be divided in such a manner that the
branch of deceased son takes two-third (2/3) and the branch of the daughter takes one-third (1/3). This
two-third (2/3) would be divided equally between SD, and SD2 who would take one-third (1/3) each
One-third (1/3) would be divided equally among DS,, DS2 and DS3 each taking one-ninth (1/9) of the
property. The shares of all the heir will be as follows: SD, = 1/3 SD2 = 1/3 DS, = 1/9 DS2 = 1/9
DS3 = 1/9 If the deceased was a Sunni male, the three sons of the daughter would have been excluded
as they would be called distant kindred. The two daughters of the son would have taken two-third
(2/3) as sharers, and the surplus of one-third (1/3) under the doctrine of return.
(6) Homicide (Disqualification from inheritance): Under Sunni law
the rule is applied very strictly, irrespective of whether the
death was caused accidentally or even intentionally. Under Shia
law, the disqualification is operative only where death was
caused intentionally.
(7) Illegitimate child: Under Sunni law, an illegitimate child is deemed
to be related to its mother, and inherits from her and her
relations only but does not inherit from the father/any of his
relations. Under Shia law, an illegitimate child does not inherit
from any of the parents nor from any of their relatives.
315
(8) Child in womb: Under Shia law, the share of two sons should be reserved as a measure of
precaution.
(9) Succession per stripes or per capita: Under Shia law, succession among the lineal descendants is per
stripes and not per capita. Under Sunni law, it is per capita.
Shia male A dies and is survived by two sons of one predeceased son 5Sj and SS2 and three sons of
another predeceased son S,S1, S1S2 and SjS3. The property here would be divided into two equal
parts, one each going to the branch of S and S1. Out of this half given to the branch of S, his two
sons will share equally taking one-fourth (1/4) each. The half going to the branch of SI will be taken
by his three sons who would take one-sixth (1/6) each.
The shares of each heir would be as follows: SS, = 1/4
CO — 1 IA
SjS, - 1/6
S,S2 = 1/6
SjS3 = 1/6 If the deceased was a Sunni Muslim all grandsons would have taken one-fifth (1/5)
each following the per capita succession.)
, Doctrine of Return (Radd)

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

This doctrine is applied if the sum total of the shares exceeds unity. Then there is consequent
proportional deduction of shares by increasing the denominator of the sum total of the shares of all the
heirs. This is the position under the Sunni law.
Shias do not recognize the doctrine of increase. Here, if the sum total exceeds the unity the excess
share is deducted from the share of the daughters or full/consanguine sisters.
317
For example, the survivors of a Shia female are her parents F and , two daughters D, and D2,
and her husband H. Here the shares of and M would be 1/6 each, that of H will be 1/4, and, two
daughters I and D2 together are entitled to 2/3. The sum total of these shares Duld be 1/4 + 1/6 +
1/6 + 2/3 = 15/12. The excess share is 3/12 or 4. This 1/4 would be deducted from the share of the
daughter viz. 3 - 1/4 = 5/12. Each daughter will take 5/24.2
FURTHER QUESTIONS
Q.(a) Aziz had two sons Ashraf and Rashid and a daughter Mumtaz. Rashid died during the life time of his father leaving behind his
son Ghulam. What will be the shares of the descendants of Aziz under the Sunni law?
(b) X, a Sunni Muslim, dies intestate in 1990 leaving behind his father F, mother M, widow W, two sons S! and S 2,
one married daughter D, one unmarried daughter D1 and a son of predeceased daughter DS as his heirs. S.,
became Christian during the life time of X and is married to W1 and has a son S3. Ascertain the shares of the aforesaid heirs
in X's property.
What will be your answer if D1 is a widow and has a minor son D.,S, and she is living with X? Will your answer be different
if she has an illegitimate child? What will be your answer if X had two widows?
What will be your answer if D is an illegitimate daughter of

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

In the present case, the heirs of Aziz are as follows -
- Ashraf (son)
- Mumtaz (daughter)
[Rashid's son Ghulam is not an heir, as doctrine of representation is inapplicable in Sunni law. Ghulam is
not entitled to claim his father's (Rashid's) share as representing him because father never inherited
from his grandfather (Aziz).]
The shares of Ashraf and Mumtaz will be as follows:-
Ashraf - 2/3
Mumtaz-1/3 (as residuaries)
[When there is a son present, the daughter takes as a residuary. The daughter gets half of the share of the
son, under Muslim law.]
(b) According to the Sunni law of inheritance, the following are entitled to a share in the properties of X:-
- Father, F
- Mother, M
- Widow, W
- Son, S1 (convert)
- Son, S2
- Daughter, D (unmarried)
- Daughter, D, (married)
The following heirs will be excluded from inheriting X's property:-
(i) DS, son of predeceased daughter (there is no doctrine of representation in Sunni law).
(ii) W,, wife of son S1 (anyone claiming interest through primary heir is excluded).
(iii) S3, son of S1 (the son's son will be excluded in the presence of son).
(iv) D(S. son of D, (anyone claiming interest through primary heir is excluded).
-
319
shares of heirs (which are not excluded) arc-Father - 1/6 (child present) Mother - 1/6 (child
present) Widow - 1/8 (child present)
Now, the residue is = 1 - (1/6 + 1/6 + 1/8)
= 1 - 11/24 = 13/24
As two daughters collectively take 2/3, one daughter will take 1/3. Further, daughter takes half of
the share of the son in the residue; here Lighter takes as a residuary due to the presence of the son.
Thus, :h daughter will take 1/6.
Daughter (married) = 13/144 (1/6 * 13/24)
Daughter (unmarried) = 13/144 (1/6 x 13/24) le son takes double to the daughter
in the residue.
Son, S, = 13/72 (1/3 * 13/24)
Son, S2 - 13/72 (1/3 * 13/24)
Decision of the second part of the question

It does not matter that the daughter is married, unmarried or widow, An illegitimate child is related
with her mother, but such child (even if
legitimate) cannot claim interest through her mother i.e. primary heir. If H is an illegitimate daughter of
X (father), she is not entitled to inherit. If X had two widows, then the widows will collectively take 1/
, thus each widow will take 1/16.
Q.2 Y, a male, died leaving behind father, widow, illegitimate son,
unchaste daughter, and, a son of a predeceased son of a
predeceased son. Ascertain the shares of the heirs if Y died
as a Sunni Muslim. [C.LC-7998]
A.2 An 'illegitimate child' is related to mother; thus, he is excluded.
Want of chastity is not a disqualification; thus, unchaste daughter
is entitled to inherit.
320
Family Law - lI
In the absence of son, daughter inherits as a sharer. In the absence of a son, and, son's son,
"son's son's son" also inherits as a residuary. It may be noted that the principle of exclusion
(nearer in degree excluding the remoter) applies only as between relations belonging to the 'same
class of heirs." Thus, if the surviving relations be a daughter and brother's son, the daughter
though she is nearer in degree, does not exclude the brother's son (because the daughter in this
case inherits as a sharer and the brother's son a residuary). However, if there had been another son
(legitimate) to Y, the son of a predeceased son of predeceased son would get excluded.
Thus, the legal heirs of Y are: Father, Widow, Unchaste daughter
and, Son's son's son. Their shares are:
-
Father - 1/6 (child present) Widow - 1/8 (child present) Daughter - 1/2 (no son present)
Now, the residue is = 1 - (1/6 + 1/8 4 1/2) = 5/24 The son's son's son will take as a
residuary ■ 5/24.
Q.3(a) Mazhar died survived by widow Mumtaz, son Sohail and so of a predeceased son Abdul? Ascertain the shares of the
heirs under Sunni law.
■
(b) Tabassum died survived by a son Hamid and daughter Noori Ascertain the shares of the heirs under Sunni law.
[C.L.C.- 2001
A.3 (a) The widow Mumtaz will get 1/8 (in the presence of son). The son Sohail will take as a residuary;
thus he will get 1-1/8 7/8.
The son Abdul (son of a predeceased son) got excluded due to 'doctrine of representation' and
'doctrine of exclusion.' He could have got share had there been no son Sohail.
(b) Due to the presence of son, daughter inherits as a residua and son takes double to the daughter
in the residue. Thu Hamid will get 2/3 and Noori will get 1/3.
Q.4 A, a Sunni Muslim, died in 2001, leaving behind properties worth Rs. 50 lakhs and is survived by the spouse W, two sons
S1 and S2, and a daughter D. Discuss who will get the property and what would be the quantum of their shares if-
(a) A was a male.
(b) A was a female. [D.U.-2008\ .4 (a) The share of widow W in

the presence of child as a sharer is
1/8. The sons always take as residuaries, and a daughter take as residuary in the presence of son.
The son takes double to the daughter in the residue.
XI .U A ■ - 1 I/O - 119
Now, the residue is = 1 - 1/8 = 7/8. he shares of two sons and a daughter as a residuary
are:
Son S, = 7/20 (2/5 x 7/8)
Son S2 = 7/20 (2/5 x 7/8)
Daughter D - 7/40 (1/5 x 7/8) (b) The share of widower (husband) in the presence of child as a
sharer is 1/4.
Now, the residue is = 1 - 1/4 = 3/4. the shares of two sons and a daughter as a
residuary are:
Son S, = 3/10 (2/5 x 3/4)
Son S2= 3/10 (2/5 H 3/4)
Daughter D = 3/20 (1/5 x 3/4)
Q.5(a) X, a Sunni male, died in 2002, survived by widow \N, son S and son of a predeceased son SS. X left behind properties worth
20 lakhs. Ascertain the shares of the heirs under Sunni law.
(b) Y, a Sunni female died in 2002, survived by a son S, daughter D and husband H. Y left behind properties inherited from her
father. Ascertain the shares of the heirs under Sunni law.
[D.U.-2009]
322 Family Law - II
A.5(a) The share of widow W in the presence of child as a sharer is 1/8. The son S takes as a residuary.
The son of predeceased son SS is excluded on account of doctrine of representation. Now, the residue
is = 1 - 1/8 = 7/8, which will be the share of son S. (b) Under Muslim law, the source of acquisition
of property is immaterial - whether it is ancestral or self-acquired, the rules of succession remain the
same. The share of widower (husband H) in the presence of child as a share is 1/4. The son always take
as residuary, and a daughter take as residuary in the presence of son. The son takes double to the
daughter in the residue.
Now, the residue is = 1 - 1/4 = 3/4. The shares of son S and a daughter D as a residuary are: Son
S = 1/2 (2/3 * 3/4) Daughter D = 1/4 (1/3 * 3/4)
Q.6 A, a Sunni male, died leaving behind his parents F and M, his
widow W, one son S and three daughters Dv D2 and D3.He
leaves behind property worth Rs. 80 lakhs. Ascertain the
shares of the heirs. What would be your answer if A was
female? [D.U.-201
A.6 The shares of F, M and W (widow) as a sharer in the presence
of the child are: F - 1/6; M = 1/6; W = 1/8.
The son always take as residuary, and a daughter take as residuary in
the presence of son. The son takes double to the daughter in the residuary
If there are two or more daughters, they together will take 2/3.
Now, the residue is = 1- (1/6 + 1/6 + 1/8)= 1 - 11/24=13; The shares of son S and three
daughters Dv D2 and D3 as a residuary
are:
Son S = 13/60 (2/5 * 13/24) Daughter D, = 13/120 (1/5 * 13/24)
Daughter D2 = 13/120 (1/5 n 13/24) Daughter D3 = 13/120 (1/5 * 13/24).
When A was a Muslim Female

The shares of F, M and W (widower-husband) as a sharer in the presence of the child are: F = 1/6; M
= 1/6; W = 1/4.
Now, the residue is = 1 - (1/6 + 1/6 + 1/4) = 5/12.
The shares of son S and three daughters D,, D2 and D3 as a residuary
Son S = 5/30 (2/5 * 5/12) = 1/6 Daughter D, = 5/60 (1/5 * 5/12) - 1/12 Daughter D2
= 5/60 (1/5 ? 5/12) = 1/12 Daughter D3 = 5/60 (1/5 * 5/12) * 1/12.
Q.7 A, a Muslim male, dies leaving behind his father F, his widow
W, and two daughters D1 and D2. He leaves behind property
worth Rs. five crores. Ascertain the shares of the heirs. What
would be your answer if A was a female and W was the
widower? [D.U.-2011]
A.7 Doctrines of Radd and Aul
le shares of father F and W (widow) as a sharer in the presence of the child are: F = 1/6; W = 1/8. In
the absence of son, daughters will also inherit as sharer. If there are two or more daughters as a sharer,
they will collectively get 2/3. Thus, D1 will get 1/3 and D2 also 1/3.
The sum total of shares of F, W, D, and D2 is: 1/6 + 1/8 + 1/ + 1/3 = 23/24, which is less than 1.
Thus, the residue is 1 - 23/24
Here, the 'Doctrine of Return' or 'Radd' will apply, and the

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

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

2/13 + 3/13 + 4/13 + 4/13 = 13/13 - 1.
Q.8 A died leaving behind his father F, mother M and widows W., and W 2. Ascertain the shares of the heirs under Sunni law.
[C.L.C-1999]
A.8 Shares of Primary Heirs in Absence of Child/Son's Child
he 'father' inherits as a residuary in the absence of a child (son/ daughter) or son's child.
The mother takes 1/3 when there is no child or son's child. But 'there is also spouse
(widow/husband) and the father, then only 1/3 f what remains after deducting the widow's or
husband's share. In his peculiar combination, the mother (even without children) does not et 1/3 of the
whole property because in that case father's share would become half of the mother which is against the
general principle that share of a male should be double the share of a female.
The shares of the heirs (sharers) in the present case will be as follows:
Widows (W, and W2) = 1/4 (Absence of child); 1/8 each Mother (M) = 1 - 1/4 (i.e. 3/4) x 1/3 = 3/12 =
1/4 Father (F) (Residuary) = 1 - (1/4 + 1/4) = 1/2.
Q.9 A Muslim, A, dies and leaves behind his parents F and M and
a widow W and property worth Rs, 10 crores. Discuss who
would get the property and also specify their shares. What
would be your answer, if A was a female and W was the
widower? [D.U.-2011]
A.9 When A is a Male
Widow (W) = 1/4 (Absence of child)
Mother (M) = 1 - 1/4 (i.e. 3/4) x 1/3 = 3/12 = 1/4
Father (F) (Residuary) = 1 - (1/4 + 1/4) = 1/2.
326
Family Law - II
When A is a Female
Widower (W) = 1/2 (Absence of child)
Mother (M) = 1 - 1/2 (i.e. 1/2) * 1/3 = 1/6
Father (F) (Residuary) = 1 - (1/2 + 1/6) = 1 - 4/6 = 1/3,
/
10 Muslim Law of Wills
■■ ■
A Will or Testament or Wasiyat has been defined an "an instrument by which a person makes
disposition of his property to take effect after his death/Tyabji defines Will as "conferment of right of
property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of the
testator/]
The distinguishing feature of a Will is that it becomes effective after the death of the testator and
it is revocable. Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the
property bequeathed till he is alive; the legatee or beneficiary under the Will cannot interfere in any
manner whatsoever in the legator's power of enjoyment of the property including its disposal or
transfer (in that case the Will becomes revoked).|
Object and Significance of Wills

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

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

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

of the Will." A Will operates only after the death of the legator; before
his death, it is simply a mere declaration on the basis of which the
legatee may get the property in future. There may be cases where a
person was Muslim at the time when he made the Will but, has
subsequently renounced Islam and at the time of his death he was a
non-Muslim. If a Will has been executed by a Muslim who ceases to
be a Muslim at the time of his death, the Will is valid under Muslim law.
Also, the Will is governed by the rules of that school of Muslim law to
which the legator belonged at the time of execution of the Will. For
example, if the legator was a Shia Muslim at the time when he wrote
the Will, only Shia law of Will is made applicable.
(2) Legatee and his Competence (To whom Will can be made?)
Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child in its mother's
womb, etc.) may be the legatee under a Will. Thus, sex, age, creed or religion3 is no bar to the taking
of a bequest. Legatee (including a child in its mother's womb) must be in existence at the time of making
of the Will. Thus, a bequest to a person not in existence ('unborn person') is void.
3. Even a 'non-Muslim' can be a beneficiary under the Will, but he should not be against Islam. Therefore, a person who renounces Islam and
embraces another religion is not a competent legatee, but a person who was born into another religion can be a competent legatee provided
he is not hostile towards Islam. See P. Pradhan Saxena, Family Law II, z" Ed., p. 484 (2011).
Muslim Law of Will 331
A bequest may be validly made for the benefit of 'juristic person' or an institution (but it should
not be an institution that promotes a religion other than the Muslim religion viz. Hindu temple,
Christian church, etc.). A bequest for the benefit of a religious or charitable object is valid. The only
requisite is a general intention to "charity or public benefit" e.g. where a bequest is made in the way of
God, it is valid and the legacy must be spent on good and pious objects A class of persons ("all the
poor of this town") may be made a legatee. It is important to note that it is unlawful to make a bequest
to benefit an object opposed to Islam e.g. to an idol in Hindu temple, because idol worship is opposed to
Islam. I
No one can be made the beneficial owner of shares against his
will. Therefore, the title to the subject of bequest can only be completed
with the express or implied consent of the legatee after the death of the
testator. The legatee has the right to disclaim. .
A person who has caused the death of the legator (i.e. murderer), cannot be a competent legatee. A
Will operates only after the death of a legator, therefore, a greedy and impatient legatee may
cause the legator's death to get properties immediately. However, it is also immaterial whether the
legatee knew about him being a beneficiary under the Will or not.
Joint Legatees: A bequest may be made to two or more legatees jointly, and, when no specific
share of any of them has been mentioned, the property is divided equally amongst all the legatees.
Where a Will is made in favour of a specified class of persons, the class as such is treated as a
single legatee and each person gets the property equally. For example, if a testator makes a Will
under which his properties are to be given to the Fakirs and the 'poor people of his locality' then,
half of the bequeathable property is to be given (equally) to the Fakirs and the remaining half is to
be distributed equally amongst the poor persons of that locality. But, where the legator himself has
specified the respective shares of the legatees then, each legatee would get the shares allotted to
him.
332 Family Law - II
(3) Subject Matter of Will (Bequeathable Property) and its Validity

The testator must be the owner of the property to be disposed by Will; the property must be capable of
being transferred; and, the property must be in existence at the time of testator's death, it is not
necessary that it should be in existence at the time of making of Will.4 Any kind of property, movable
or immovable, corporeal or incorporeal, may be the subject-matter of a Will.
, In order to be a valid bequest the grant in the bequeathed property
must be complete or absolute. A bequest has to be unconditional. If any
condition is attached, say the legatee shall not alienate the subject of
legacy, the condition is void and the bequest is effective without condition
(Likewise, a bequest in futuro (intended to take effect not immediately on the death of the testator but
at a later date) is void, and so does a
'contingent bequest' (bequest to take effect on the happening or non-
Happening of an uncertain event). C bequeaths one-third of his property
to the would-be-son of his brother B, who is a bachelor. The bequest
is contingent on the happening of uncertain events (C's brother may not
marry; he may not have any child even if he marries, or he may not
have a son child)., , ,,
However, an alternative bequest of property (i.e. to one or failing him to the other person) is valid.
Thus, when the testator willed that his son if existing at the time of his death will take the bequest, if
not in existence his son's son will, and failing both it will go to a charity, was held valid [Advocate-
General v Jimbabai (1917) 41 Bom 141].
.Creating of 'life estate' is not permissible under Sunni law; the bequest of a life estate in favour of
a person would operate as if it is an absolute grant. For example, A makes a bequest in favour of X of
his house for life and after him to B absolutely. The bequest in favour of X would operate absolutely
and "Bwill not get anything under Shia
For example, A makes a Will of his all properties in favour of B. At the time of making of the Will A has only a house. After sometimes A
purchases a garden and when he dies, he owns the house as well as the garden. B is entitled to get the house as well as the garden under
the Will although the garden was not owned by A when the Will was executed. The property must exist and must be in the ownership
of the testator at the time of his death.
Muslim Law of Will
333
v, however, the bequest of a life estate in favour of one and a vested remainder to another after his
death is valid.
Testamentary Power and its Limits5 (Bequeathable One-Third)

Muslim does not possess an unlimited power of making disposition
Will. There are two-fold restrictions on the power of a Muslim to
dispose of his property by Will, which are in respect of the person in
whose favour the bequest is made, and as to the extent to which he can
dispose of his property. This is obvious, because the object behind this
restriction is to protect the interests of the testator's heirs.
(i) No Muslim can make a bequest of more than one-third of his
net assets after payment of funeral charges and debts. If the
bequeathed property exceeds one-third, the consent of other
heirs is essential (Sunni and Shia laws). A bequest of entire
property to one heir to the exclusion of other heirs is void
[Husaim Begum v Mohd Mehdi (1927) 49 All 547. Where the
heirs refuse to give their consent, the bequest would be valid
only to the extent of one-third of the property and the rest of
the two-thirds would go by intestate succession.
(ii) In respect of bequest of one-third to an heir, the consent of
other heirs is required in Sunni law,6 but not in Shia law. In
case of a non-heir (stranger) the consent of heirs is not required
in both Discuss: Testamentary powers of a Muslim. [D.U.-2009
(Sopp.)] State the testamentary capacity of a Muslim and the restrictions on the same.
5. The reason behind this rule is that when a Muslim testator makes any Will in favour of one of his heirs, such heir (legatee) gets
double advantage out of the testator's properties and this may cause jealousy and enmity among the
heirs.
7. The bar against bequest to stranger (i.e. a non-heir) in excess of one-third is
subject to the following exceptions i.e. may be relaxed in the following cases -
where such excess is permitted by a valid custom; where there are no heirs
of the testator; and, where the heirs existing at the time of the testator's death,
consent to such bequest after his death. Thus, a bequest of entire property
can be made to a stranger.
334
Family Law - II
Under the Shia law, there is no difference between a bequest to an heir or non-heir so long as it does
not exceed one-third of the net estate of the legator. Such a legacy is valid without the consent of the
other heirs. Shia law gives more extensive power to make a Will in comparison to Sunni law.
,(iv)
(v)
The above rule of bequeathable one-third will not apply to a case where the testator has no heir. The
right of Government to take the estate of an heirless person will not, in any way, restrict the right of a
person to make a disposition of his property, as he likes. Thus, Government is no heir to an heirless
person..
A bequest made for pious purposes is valid to the extent of one-one-third of the property, both under
Sunni as well as Shia law.
The 'l/3rd limit' rule will not apply if a Muslim marries under the Special Marriage Act, 1954, because
then he has all the powers of a testator under the Indian Succession Act, 1925
Bequeathed H Heir Non-heir Sunni
Sunni Shia
Property Shia
Upto one- Valid only Valid without Valid without Valid without
third if consent consent of consent of consent of
In excess of of heirs heirs heirs heirs
1/3 -do- Valid only Valid only Valid only
if consent if consent if consent
of heirs of heirs of heirs
Illustration: A, a Muslim dies leaving behind him property of Rs. 4,000. His funeral charges are Rs. 100
and his debts Rs. 900. The remaining money is Rs. 3,000 and 1/3 of it is Rs. 1,000 which may be the
subject of Will. The remaining two-third must pass to the heirs of the testator according to law.
Consent of Heirs
• Consent must be of heirs and not of presumptive heirs. Whether a person is an heir or not, will be
determined at the time of the testator's
Mu slim Law of Will 335
death because a person who is an heir at the time of making the Will may not remain an heir at the
time of testator's death and vice versa. For instance, a testator has a son and a grandson. Grandson is
not an heir in the presence of a son. But if the testator and the son die in an accident, the grandson
becomes an heir on death of his father. Consent by heirs under Sunni law, shall be given only after
death of the testator, while in Shia it may be before or after the death of the testator,
Consent must be definitive, whether express or implied by positive conduct, and mere silence on the
part of an heir will not amount to implied consent. The attestation of the Will by the heirs and
acquiescence in the legatee taking possession of the property has been held to be sufficient consent. In
cases where only some of the heirs give their consent the shares of those consenting will be bound,
and the legacy in excess is payable out of the consenting heir's share. The consent of heirs who are
insolvent has been held effective in validating a bequest. Consent once given cannot be later rescinded.
Similarly, consent cannot be given after an heir has previously repudiated it.
Bequest to Heirs and Non-heirs

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

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

valid if born within 6 months.
. In case of murder of the testator by the legatee, the legatee is deprived of his legacy - be the murder intentional or
accidental.
1. A bequest to the extent of 1/3 can be made to an heir without the consent of other heirs.
-2: Heir's consent may be given before or after the death.
X It is valid only when the Will is made before taking any step towards the act of suicide.
-4rlt is valid even if born in the longest period of gestation i.e. 10 months.
Shia legatee suffers only if it is intentional.
Rateable abatement of legacy applies (See under the questions section).
7. Acceptance of the legacy before the testator's death is of no

effect.
6rRule of chronological priority applies.
Acceptance of the legacy during the testator's life time is lawful.

legatee dies, before, the testator, the legacy lapses and reverts to the testator.
The legacy does not lapse but passes to the heirs of legatee.
[Note: Shia law gives more extensive power to make a Will in comparison to Sunni law. Under it, heir's consent
may be given before or after the death of testator. Under Sunni law, heir's consent should be given after the
death of testator (when the rights and claims of the heirs are
338 Family Law - II
specific and clear without any ambiguity or confusion with respect to possible or unforeseen events taking
place). It may be noted that because a Will takes effect from the date of the testator's death, in between
the time of making the Will and his death, the births and deaths in the family may include or exclude
potential heirs.
For example, a Muslim man having a wife, a son and a son's daughter makes a Will in his wife's
favour. The son's daughter is not an heir in presence of the son of the testator; so her consent is not
required to validate this bequest. The son gives his consent. Suppose after executing this Will, the
testator's son dies. Now if the testator dies, the son's daughter is an heir, and the bequest in favour of the
wife would be subject to her consent.
The rule of prohibiting an heir to take under a legacy as well as in accordance with succession is
applied strictly under Sunni law, as it would otherwise enable an heir to take a greater portion of the
wealth of the testator, then what was ordained for him under the Quran, and this may upset the ties of
kindred.9]
FURTHER QUESTIONS
Q.1(a) Discuss the rules relating to abatement of legacies under

Sunni and Shia laws. [D.U.-2009/2010/2011
M, a Muslim died leaving properties worth Rs. 1 lakh. Rs 6,000 were spent on his funeral and he had left a debt of Rs 16,000
undischarged. Before his death M had executed three Wills on different dates. By his first Will he bequeathed Rs. 26,000 to
his wife W; by second Will he bequeathed Rs. 26,000 to a dancing girl; and, by his last Will he bequeathed Rs. 26,000 for
repair and renovation of a temple of Lord Krishna.
9. See P. Pradhan Saxena, Family Law II, 3'" Ed., p. 485 (2011).
M u s l i m Law of Will 339
How will the bequests operate -(i) under Sunni law, (ii) under
Shia law? [LC. 11-94]
(b) Total net estate available at the time of death of a Muslim is

Rs. 12 lakhs. He bequeaths Rs. 1,50,000 worth of property to
Mohan another Rs. 1,50,000 worth of property to Rakesh. In
addition, he bequeaths Rs. 3 lakhs worth of property to a
mosque. What will be the legacies in favour of the above
legatees under Sunni and Shia laws. [LC./-96]
.l(a)|A Will or wasiyai is a device which needs no formality (writing, attestation, etc.) - through which a,
(i) Muslim testator capable of giving (sound mind, major) having formed an intention (unequivocal) to
give,
(ii) makes unconditional disposition of his own net property existing at the time of death - (estate available
after providing for his debts and funeral expenses) - intended to take effect after death,
(iii) in favour of anybody - Muslim, non-Muslim, insane, minor, juristic person,
(iv) which shall be accepted (expressly or impliedly) by legatee after testator's death, and is
(v) revocable in testator's life time. |
There are some restrictions on the power of a Muslim to dispose of his property by Will. No Muslim can
make a bequest of more than one-third of his net wealth. If the bequeathed property exceeds one third, the
consent of other heirs is essential (Sunni and Shia laws). In respect of bequest of one-third to an heir, the
consent of other heirs is required in Sunni law, but not in Shia law; in case of a non-heir, the consent of
heirs is not required in Sunni law also. Where a testator has no heir, he can dispose of his property as he
likes.
It is important to note that it is unlawful to make a bequest to benefit an object opposed to Islam
e.g. to an idol in Hindu temple, because idol worship is opposed to Islam.
340 Family Law - II
Rateable Abatement (Sunni Law) - In cases where the bequests * made by the testator, taken in the
aggregate, exceed the bequeathable limits and the heirs do not give their consent, the legacy abates or
decreases so as to bring it within the bequeathable limits. For instance, where a bequest of more than
one-third of property is made to two or more persons and the heirs do not give their consent, the shares
are reduced proportionately to bring it down to one-third, or in other words, the bequest abates rateably.
The above rule applies in Sunni law only, it Abatement means, 'to deduct' or 'to make less'. Rateably
means 'proportionately'. The property given to each legatee is reduced in proportion of the share
allotted to him in such a manner that the aggregate of the property given to all of them does not
exceed bequeathable one-third. The deduction is made from the share of each legatee in the ratio of
what they have got under the Will
Bequests for the purpose of rateable abatement are divided into bequests for pious purposes (e.g. alms
to poor, sacrifices, building mosque, a bridge or an inn) and bequests for secular purposes. Bequest for
pious purposes are decreased proportionately to bequests for secular purposes, and do not have
precedence (or priority) over them
For example, total net estate available at the time of death of a Sunni testator is Rs. 1,20,000. He
bequeathed Rs. 30,000 to A and B (non-heirs) in equal shares and another Rs. 30,000 for pious purposes
The total value of the bequests is Rs. 60,000 i.e. one-half of entire available assets. In the event of heirs
refusing their consent, the bequeathable one-third limit would be Rs. 40,000. As a result the bequests will
abate rateably i.e. in the same ratio for secular and pious purpose: Thus, out of the bequeathable amount of
Rs. 40,000, A and B will each get Rs. 10,000 and Rs. 20,000 will go for pious purposes. The excess
amount of Rs. 20,000 will be disregarded and only Rs. 40,000 will be deemed as part of the Will.
Mu slim Law of Will
341
other Illustrations
/ (1) A, a Sunni Muslim makes a Will of half of his properties
to X who is a non-heir. The heirs of A refuses to give their consent. X would get only 1/3^
( (2) A, a Sunni Muslim makes a Will to X, Y and Z ('non-heirs') in the following proportion: X: 1/2;
Y: 1/4; Z: 1/4
Here, the testator A has bequeathed his whole property. But without heir's consent, the
bequeathable property is only one-third of the net assets, not the whole. To deduct the excess
property from the shares f X, Y and Z, in proportion of their shares, the bequeathable property
would be taken to be 1/3 as against the whole (one) and their respective hares would remain
unaffected. Thus, the three legatees would finally get as under:
X: 1/2 of 1/3 - 1/6; Y: 1/4 of 1/3 = 1/12; Z: 1/4 of 1/3 - 1/12
now, under this distribution, the sum total of properties given to X, Y and Z is 1/3 (1/6 + 1/12 +
1/12) and in this way it does not violate the rule of 'bequeathable third.' At the same time the
proportion (or the rate) of the shares of property given to each legatee under the Will, has also not
been changed. \
( (3) A Sunni Muslim makes a Will of his properties to X and Y who are not his legal heirs. His heirs do
not approve the Will. Distribution of property under the Will is as under: X:
1/2; Y: 1/4.
Here, the total property given to X and Y is 3/4 (1/2 + 1/4), which exceeds the 'legal third' by 5/12
(3/4 -1/3). This excess property must be deducted from the share of each legatee. But the reduction of
their shares must be rateably or proportionally. There is a simple method for this. By taking the ratio
of the shares of X and Y, we find that their shares are in the ratio of 2:1 i.e. 2/3 and 1/3 respectively.
Now, without the consent of the heirs, the bequeathable property is only 1/3. Therefore, the respective
shares of X and Y would be as under:
X: 2/3 of 1/3 = 2/9; Y: 1/3 of 1/3 = 1/9 Thus, we find that total property given to the legatees is
1/3 (2/9 + 1/ 9) and the ratio of their shares has also not been disturbed.)
342
Family Law - II
/ (4) A dies leaving behind assets worth Rs. One and a half lakh. He made a Will giving Rs. 50,000 to his
daughter, and Rs. 50,000 to a friend. His wife and son, the other two heirs refuse to confirm the
bequest.
Here the bequeathable limit is Rs. 50,000. As under Sunni law, the bequest in favour of the heir is not
valid unless consented to by the heirs. Thus, bequest in favour of daughter would be inoperative. The
Will in favour of friend would be valid (being within 1 /3rd limit). The widow, son and daughter would
inherit from Rs. One lakh, as per the laws of inheritance. )
/(5) A Sunni Muslim having Rs. One Lakh, eighty thousand, makes a bequest in favour of three
persons A, B and C giving them Rs. 60,000 each (i.e. exact one-third) by the same Will. Sunnis apply
the rule of rateable or proportionate deduction irrespective of whether the amount given to each of the
legatees is an identical one-third or is different visa-vis each other. Here the bequeathable one-third is
Rs. 60,000 and Rs. 60,000 each is the amount given to the beneficiaries under the Will. The legacy of
each will be reduced to one-third viz. Rs. 60,000 x 1/3 * Rs. 20,000.)
(ii) Chronological Priority/ Preferential Distribution (Shia Law)
• - According to Shia law, if several bequests are made through a Will, priority would be determined by the
order in which they are mentioned (e.g. if A mentioned before B, A will get priority) or by the point of time
(bequests prior in date take priority over those later in date). Thus, legacies take effect in order of
preference.*
legatee mentioned first in the Will gets his share as mentioned under the Will. After giving his share, the
remaining goes to the second legatee. If there still remains something, it goes to the third and as soon as
the one-third property is exhausted, the distribution is stopped and the next legatee does not get
anything. Thus, here a legatee either gets his share (as mentioned in the Will) or gets 'some share' or gets
nothing at all
Muslim Law of Will
343
(For example, a Shia testator bequeaths Rs. 15,000 to A, an heir in 1981; Rs. 15,000 to B, a non-
heir in the same Will; Rs. 30,000 for pious purposes in 1984; and Rs, 20,000 to D in 1985. The
aggregate amount in the four bequests totals up to Rs. 80,000 out of testator's property of Rs.
1,20,000. Bequeathable one-third is Rs. 40,000 only, since heirs do not consent. The Wills prior in
time shall be served first, until the bequeathable one-third is exhausted. So out of Rs. 40,000 by
giving Rs. 15,000 to A and another Rs. 15,000 to B, only Rs. 10,000 are left for pious purposes
which will be given. Since one-third stands exhausted, D will get nothing.
her Illustrations
(i) T, a Shia Muslim, executes a Will in favour of three persons, A, B and C and specifies their
shares as: A: 1/12; B: 1/4; C: 1/ 6. The sum total of all the properties given to these legatees exceeds
one-third. T's heirs refuse to give consent; therefore, the principle of preferential distribution would be
applicable. Thus, A, the first legatee would get his share 1/12. But there still remains (1/3 - 1/12) =
1/4. This remaining 1/4 which is also the share of B would go to B. After giving the property to A and
B the bequeathable one-third exhausts and therefore C would get nothing, (ii) A testator (Shia) makes
a Will in favour of his wife, giving her Rs. 30,000 and his friend Rs. 50,000. His total assets amounted
to Rs. 2 lakhs. After deducting the funeral expenses and payment of debts, the net assets came to Rs. One
lakh, eighty thousand. The heirs did not confirm the bequest, here, a wife is an heir, but under Shia
law, to the extent of one-third, property can be bequeathed to anyone. It may be noted that consent of
heirs is not required under Shia law, to the extent of one-third, whether property is bequeathed to heir or
non-heir. The bequeathable one-third limit is Rs. 60,000. The amount given under the bequest is Rs.
80,000. Applying the rule of chronological priority, Rs. 30,000 will be given to the wife, and the rest
Rs. 30,000 will be taken by the friend. )
344 F a m i l y Law - II
Exception to Priority Rule The priority rule, however, admits an exception - where there are
successive bequests of the exact 1/3 to two different persons in the
same or successive Wills, the later bequest would revoke the earlier bequest (the order of reference is
reversed). Thus, in the above illustration, suppose Rs. 40,000 are bequeathed to A, another 40,000 to B,
and still another 40,000 for pious purposes. The bequest for pious purposes will be fully served to the tune
of Rs. 40,000 and A or B will get nothing. .
A Shia testator makes a Will of 1/3 of his properties to A, and 1/ 3 to B. Generally, under the Shia
rule, A should get his 1/3 share and since the legal third exhausts, B should get nothing. But, under the
exceptional Shia rule, B would get 1/3 and the first legatee, namely, A would get nothing. The reason
behind this peculiar rule is that where a Will is made of exactly one-third, the Shia jurists regard the last
Will as "implied revocation" of the first. However, this exceptional rule applies only where two or
more legatees are given exactly 1/3 each. .
Sunni law. (i) Total net wealth available to M is Rs. 78,000 (excluding Rs. 6,000 for funeral and Rs. 16,000 for debt.).
(ii) The total value of bequests is Rs. 52,000 (bequest of Rs. 26,000 made for Lord Krishna temple is void
under Muslim law) i.e. two-third of net wealth.
(iii) In the event of heirs refusing their consent, the bequeathable one-third limit would be Rs. 26,000.
(iv) The bequests will abate rateably - out of the bequeathable amount of Rs. 26,000, M's wife and the
dancing girl each will get Rs. 13,000.
(v) If heirs give their consent, then M's wife and the dancing girl could get Rs. 26,000 each.
M u s l i m Law of Will 345
Shia law: (i) As there is a bequest of exact 1/3 amount (Rs. 26,000) in the successive Wills, the exception to priority
rule will apply. The later Will revokes the earlier Will in such cases. Thus, Will in favour of dancing girl
will fully operate and M's wife will get nothing (The Will in favour of Lord Krishna temple is void
under Muslim law).
(b) Sunni law:
(i) Total net estate available is Rs. 12 lakhs.
(ii) The total value of bequests is Rs. 6 lakhs i.e. one-half of net wealth.
(iii) In the event of heirs refusing their consent, the bequeathable one-third limit would be Rs. 4 lakhs.
(iv) The bequests will abate rateably - out of the bequeathable amount of Rs. 4 lakhs, Mohan and Rakesh will
get Rs. 1 lakh each and mosque will get Rs. 2 lakhs. The legatees (secular purposes) and the pious
purposes - both will share equally as a group.
Shia law: (i) The Wills mentioned first shall be served first, until the bequeathable one-third (Rs. 4 lakhs) is exhausted.
(ii) Thus, out of Rs. 4 lakhs, by giving Rs. 1.5 lakhs to Mohan and Rs. 1.5 lakhs to Rakesh, only Rs. 1 lakh is
left for the purpose of mosque which will be given.
Q.2(a) A Muslim man M executed one Will under which he gave Rs. 60,000 to X, Rs. 45,000 to Y and Rs. 30,000 to Z. His net assets
on the date of his death were Rs. One lakh and thirty five thousand. Discuss who would get the legacy and what would be its
quantum both under Sunni law as well as Shia law.
What would be your answer if A had married under the Special

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

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

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

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

church and another half by a registered deed to Lord Krishna
temple in his locality. After his death his wife and children
wish to avoid both the Wills. Advise them as to the provisions
of Muslim law (Shia and Sunni) under which the validity of the
Wills can be challenged. [LC.//-96)
(b) Discuss the validity of the following Wills under Muslim (Sunni and Shia) Saws-
(i) A bequeaths one-third of his property to his wife. A has two sons SA and SB.
(ii) A bequeaths one-half of his property to his friend F. A is survived by his wife W.
(iii) C bequeaths one-third of his property to the would-be-son of his brother B, who is a bachelor.
[L.C.II-95/96 (Supp.)]
A.3 (a) Under Muslim law, if a bequest is made to benefit an object
opposed to Islam as a religion, such as for building a Hindu
temple, or a Christian church, the bequest would be void
Under both Sunni and Shia laws, a Muslim cannot make a bequest in
excess of one-third of his property, without the consent of the heirs.
Muslim Law of Will 349
Thus, on these grounds the Wills made by Rahim can be challenged by his wife and children.
(b) [Note: There are six primary heirs under Muslim law - Father, Mother, Son, Daughter, Husband, and
Wife.]
(i) The wife of A is an heir. A can bequeath one-third of his property to her, without the consent of other
heirs i.e. two sons (under Shia law) and with the consent of other heirs (under Sunni law).
i(ii) The friend of A is a non-heir. Under both Sunni and Shia
laws, the bequest is valid up to l/3rd without consent of
heirs. But a bequest in excess of l/3rd requires consent of
heirs.
However, where the only heir is the husband or wife and the bequest
of such excess does not affect his or her share, then such bequest will
be valid (a husband takes l/4 share, while a wife 1/^share). Thus, in
the present case, A's wife is the only heir, and her share will not be
affected by a bequest of one-half of A's property to F. The bequest will
be valid even without her consent^
(iii) The Will is not valid, because an unborn person cannot be a legatee. Further, the bequest is contingent on
the happening of uncertain events (C's brother may not marry; he may not have any child even if he
marries, or he may not have a son child). A contingent Will is void.
Q.4 Discuss the validity of the following Wills both under the Sunni and Shia laws:
(a) A Muslim bequeaths his entire property to one heir to the exclusion of other heirs.
(b) A Muslim bequeaths his entire property to a stranger/strangers (e.g. X - 1/3, Y - 1/3, Z - 1/3).
(c) A Muslim bequeaths 1/3 to an heir and 2/3 to a non-heir (e.g. friend). The bequest to heir is not assented to by other heirs.
350 Family Law - II
(d) A Muslim bequeaths 2/3 to an heir and 1/3 to a non-heir. The bequest to heir is not assented by other heirs.
(e) A Muslim bequeaths 1/6 to an heir, 1/6 to a stranger and 1/ 3 to a friend. [LC./-93/94]
.4 (a) The Will is void. When a bequest is made of the entire
'— property to one heir to the exclusion of other heirs, wasiyat
does not take effect without consent even to the extent of
one third. But the rule will not apply if the bequest is short
of entire property.
(b) The bar against bequest to stranger (i.e. a non-heir) in
excess of one-third is subject to the following exceptions, i.e., may be relaxed in the following cases - where such
excess is permitted by a valid custom; where there are no
heirs of the testator; and, where the heirs existing at the time of the testator's death, consent to such
bequest after his death. Thus, a bequest of entire property can be made to a stranger.
If the heirs do not consent, then under Sunni law, applying rateable reduction rule, X, Y and Z together
will get 1/3 only. Under Shia law, applying exception to the priority rule, Z will get 1/3 and X and Y nothing
(See A.l).
\ Under both Sunni and Shia laws, a bequest to a non-heir
in excess of 1 /3 is valid if heirs consent to it.. Under Sunni law a bequest to a Weir even of" 1 /3 require
consent of other heirs, while under Shia law, not. Thus, in the present problem, the bequest to non-heir when
consented by other heirs is valid. The bequest to heir is invalid even under Shia law because such bequest, after
taking into account 2/3 bequest made to non-heir, would exceed the bequeathable l/3rd limit and thus will
require consent of" other heirs.
(d) Bequest to heir is invalid, but that to non-heir is valid.
(e) If the heirs do not consent, then under Sunni law, the
reteable reduction rule will apply and bequeathable l/3rd will be divided between heir, stranger and
friend
Mu slim Law of Will
351
proportionately. Thus, heir and stranger both will get one

half of 1/3 (i.e. 1/6), thus, 1/12 each. While, the friend will
get other half of 1/3 i.e. 1/6.
Under Shia law, the bequests mentioned in first Will get priority until the
/3 limit is exhausted. Thus, when heir and stranger get their shares (1/
I X 2 = 1/3), the l/3rd is exhausted, and the friend will get nothing.
Q.5 Aziz had two sons Ashraf and Rashid and a daughter Sabina.
Rashid died during the life time of his father leaving behind
his son Ghulam. Aziz executed a Will giving all his property to
Ghulam. Examine the extent to which the Will is valid under
Sunni and Shia laws. [C.LC.-91]
A.5 Ghulam is not an heir to Aziz. A bequest in favour of a non-heir, in excess of 1/3, requires assent of other heirs for its validity
(Sunni and Shia laws). If such Will is to operate with respect to his entire property, the other heirs must consent.
Q.6 Discuss the validity of the following Wills both under the Sunni and Shia laws:
(a) A, a Muslim dies leaving a son B, a widow C and a grandson D by a predeceased son. A bequeathed one-third of his estate
to D. B and C do not consent to this bequest.
(b) A, a Muslim has got property worth Rs. 10 lakhs. He has to pay Rs. one lakh to his creditors and Rs. 50,000 to his wife as
dower. He bequeaths his entire property by Will in favour of his son. A dies without discharging his debts. Whether the son
will succeed?
A.6 (a) The son of a predeceased son (D) is not an heir. Therefore, the bequest to him is valid to the extent of
one-third without the consent of heirs (B and C) both under Sunni and Shia law. (b) The Will made by A
is not valid (both under Sunni and Shia law) because it exceeds the bequeathable one-third and also
352
Family Law - II
it is made in favour of an heir without the consent of other heirs. A bequest of entire property to one heir
(son) to the exclusion of other heirs (widow) is void \Husaini Besum
v Mohd. Mehdi (1927) 49 All 547].
Thus, first the debt due to a creditor and payment of dower to wife of deceased has to be made and then
the balance will be divided among heirs of deceased in accordance with provisions of succession under
Muslim law.
11 Muslim Law of Gifts
Gift, being a transfer of property, is generally governed by the Transfer of Property Act, 1882. But
Chapter VII of the T.P. Act does not apply to "Muslim gifts" (Hiba). The reason is that although there
is no difference in the gifts made by non-Muslim and a Hiba in so far as its basic nature is concerned
yet, the formalities of Hiba are different from that of a gift made by non-Muslim. In a Hiba, the
transferor intends to transfer the property immediately to the transferee. Unlike the situation under the
T.P. Act, 1882, the Hiba is operative with immediate effect and divest the donor of his control and
ownership over the property. The result is that gifts made by non-Muslims in India are governed by the
provisions of the T.P. Act, 1882, whereas the gifts made by Muslims are governed by the Muslim
personal law. However, other kinds of transfers inter vivos by Muslims, such as the sale, exchange,
mortgage or lease, are regulated by the T.P. Act and not by Muslim law. Under Muslim law, a person is
allowed to lawfully make a gift of whole of his property to another during his life time] A hiba or
simple gift or disposition inter vivos (between living persons) literally means "the donation of a thing
from the donee may derive benefit."
|Hedaya defines Hiba in the following words: "Hiba is an unconditional transfer of ownership in an
existing property, made immediately and without any considerationÂccording to Fyzee, "Hiba
[353]
354
Family Law - H
is the immediate and unqualified transfer of the corpus of the property without any return.",
I A gift under Muslim law is a:
(i) voluntary, unconditional and immediate transfer by donor
of, (ii) certain specified existing property (movable or immovable), (iii) without consideration
(ewaz), (iv) accepted by or on behalf of the donee.
In a gift, a living person voluntarily conveys his properties to another living person. Since gift under
Muslim law is a contractual transaction, the requirements of offer and acceptance are insisted upon. In
India it is often assumed that the term 'gift' is the exact equivalent of 'Hiba' and both are understood to
connote all transfers of property without consideration. The term 'gift' is generic and is applied to a large
group of transfers. The word 'hiba' is a narrow and well-defined legal concept. Juristically in Muslim law,
it is treated as a contract consisting of a proposal or offer on the part of the donor to give a thing and
the acceptances of it by the donee.
The transferor transfers ownership or 'absolute interest' in the property. There cannot be a gift of
limited or partial interest of property. Transfer of absolute interest also means that transferor cannot
impose any condition on transferee after the gift is completed. Conditions, restrictions or incomplete
rights in the property gifted, are against the very concept of a gift.
Êssential Requisites of a Gift1
(I) Who may Give: Donor

The person who makes the gift i.e. donor must have attained the age of majority, must be of sound mind,
must be free of any fraudulent or coercive influence, and, must have ownership over the property to be
transferred by way of gift.
1. Discuss the essentials of a valid gift under Muslim law. [D.U.-2010/2011]

Muslim Law of G i f t s
355
It must be his intentional, voluntary and free act untainted by coercion and undue influence.^ a
person was in a position to dominate any other person (e.g. fiduciary relationship-master and
servant), the transaction made by such person will carry no force unless the donee satisfies the court
that donor acted independently^ gift by apardanashin lady is valid, but in case of a dispute the
burden of proving that it was not induced by undue influence and the donor understood the nature
of based transaction while making it, lies on the done The condition is based on the special
protection extended by law to the weak, ignorant id infirm (Sonia Parshini v Sheikh Maula Baksh
AIR 1955 Cal 17).
The donor must also have the right to make the gift. A donor has right to gift only those properties
of which he is the owner A Muslim is a right to gift away all the properties which are under his
ownership the time when declaration of gift is made by him. A person who is simply a tenant in a
house, cannot gift that house because he is not owner of that house.
A person in insolvent circumstances can make a gift provided he is a bonafide intention to give
and the act is not merely intended to defraud the creditors.]
I) Who may Receive: Donee

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

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

The most important requisite of hiba is that it must satisfy the rules laid down by Muslim law for
making a gift. Mere presence of a donor and a donee, their ability to make and accept the gift and
the existence of a valid subject of gift will not have the effect of completing the Transaction. It
will have to satisfy certain formalities which in fact are the real tests of the validity of a gift
transaction. /The act of making a gift should fulfil the following three conditions:-
(1) A declaration by the donor,
(2) Acceptance by the donee, and
(3) Delivery of possession by the donor and taking of it by the donee {Mahboob Sahab v Syed Ismail
AIR 1995 SC 1205)j
Even when the declaration and acceptance are not expressed in words, so long as the intention is
evidenced by conduct, it would be sufficient. Under Muslim law, a gift of property can be made
verbally without recourse to written and registered document. Oral gift is as effective as one in
writingjln Maimuna Bibi v Rasool Mian (AIR 1991 Pat. 203), it was held that while oral gift is
permissible under Muslim law, to constitute a valid gift it is necessary that the donor should express
his intention of divesting the ownership in express and clear words ("Express Declaration").
A\) Declaration of gift - Declaration is a statement which signifies the intention of the transferor that he
intends to make a gift to the donee. There must be clear and unambiguous intention of the donor to
make the gift. When there is no real or bona fide intention on the part of the person making the gift,
the alleged
358 Family Law - II
gift will be void. There must be the bona fide intention of divesting himself inprasenti of his proprietary
title in the property gifted by the donor
Gifts without intention may be sham gifts, colourable or benami transactions, etc (A gift made with intent
to defraud the creditors of the donor is viodable at the option of the creditors. But the mere indebtedness
would not stand in the way of the competency of a donor to make a gift. The mala fide intention must
be established by cogent facts)
In Ratan Lai Bora v Mohd. Nabiuddin (AIR 1984 A.P. 344), the court observed: "In order that a
declaration of gift is established, it must be shown that the donor either in the presence of witnesses or
otherwise made a public statement that he gifted the property in favour of the donee and that The
divested himself of the ownership of the property by delivering such possession as the property is
capable of, to the donee who accepted the gift. It is inconceivable to think that a declaration of gift can
be made unilaterally by a Mohammedan without making a public statement of the gift."
I (2) Acceptance of gift - Gift is a bilateral transaction. There must be an acceptance of gift, by or on behalf
of the donee. It may be either actual or constructive according to the circumstances of the case. It may
be express or implied
Acceptance signifies the intention of the transferee (donee) to take the property and becomes its ownen
Without acceptance a gift is not complete. Under Muslim law, acceptance on behalf of a minor or a
person of unsound mind can be given by the guardian of his property.
.(3) Delivery of possession2 - Mohammedan law of gifts attaches great importance to possession or seisin of the
property gifted, especially of immovable property. The other elements of hiba will have no legal effect
unless they are accompanied by delivery of possession. The gift takes effect from the date on which the
possession of the property is delivered to the donee; not from the date on which the declaration was
made.
2. Explain in detail the requisite of "delivery of possession" under the Muslim law
of gifts. [L.C.II-96 (Supp.)]
359
Delivery of possession is so important in the Muslim law of gifts (Hiba) that without delivery of
possession to the donee, the gift is void even if it has been made through a registered document^
The following important points may also be noted regarding delivery of possession:-
) To validate the gift, there must be either the delivery (physical) of possession or, failing such
delivery, some overt act done by the donor to put it with the power of the donee to obtain
possession^
The mode of delivery of possession depends upon the nature of the property gifted. A donee is said
to be in possession of a property "when he is so placed with reference to it that he can exercise
exclusive control over it, for the purpose of deriving from it such benefit as it is capable of
rendering or as is usually derived from itJfThe term possession means, 'only such possession as
the nature of subject-matter of the gift is capable of, and therefore it can be actual, constructive or
even symbolic.)
i (ii) Delivery of possession must be immediate for without it the hiba is imperfect or incomplete, even
in the presence of a registered deed. In case the delivery of possession is not made immediately
after declaration and acceptance, the hiba will be complete only when the possession is transferred
at a subsequent time
, (iii) Only such possession need be transferred as the subject of a gift is susceptible of e.g. when the
property is in the possession of tenants the requirement of delivery of possession is complete when
the tenants are informed of the change in ownership of property; but where the property is held in
adverse possession by trespassers, the donor must do some overt act to enable the donee to acquire
possession, say like filing a suit, making donee a party along with him, to recover possession^
_(iv) Actual or constructive delivery: When the denee is in actual possession, he must physically depart
from it with all his goods and belongings and there must be a formal entry on the part of the donee.
In the case of tangible or corporeal
360
Family Law - II
or movable property, the actual delivery of possession is essential. Thus, money must be actually
transferred to the donee; a mere entry in the books of account to the effect that the amount has been paid
to the donee will not complete the gift. .
I 'Constructive' delivery of possession means a symbolic transfer of property. Where the subject matter
of the gift allows only the delivery of constructive possession, the gift is valid e.g. in the case of
incorporeal/ intangible property (right to repayment of debt, copyright, etc.). In this case, the donor does
some act due to which it is legally presumed that the possession has been given to the donee . Where
the property is tangible property but, under the situations, its actual or physical delivery of possession is
not possible, constructive delivery may be given.
(v)L.The donor must in any case divest himself of the dominion or control over the property gifted.
And if he has done everything in his power to perfect the contemplated gift by relinquishing
control over it, nothing more is required
Thus, where the donor reserves to himself the right to receive rents during his life time and also
undertakes to pay the taxes, the mere recital in the gift-deed that the delivery of possession has been given
will not constitute sufficient delivery of possession.)But the categorical statement in the gift deed that
possession had passed to the donee and the donor had not retained any right whatsoever in the property
coupled with the tax receipts in the name of donee would show that possession of property was
actually given to the donee (P. Kunheema Umma v P. Ayissa Umma AIR 1981 Ker 176).
When the Delivery of Possession is Completed?

When a donee becomes the owner of the property depends upon the Tact as to when the delivery of
possession was completed. In respect of movable properties, the delivery of possession is said to have
taken place at a time when the property is physically transferred to the donee. But, in respect of the
immovable or incorporeal properties, it is difficult to prove the exact time of the delivery of possession. In
India, there are two judicial views regarding the exact time of the completion of delivery of possession,
Mu slim Law of G i f t s
361
■ First, a constructive delivery of possession is complete as soon as he donee starts getting benefits
out of Rifled properties (directly or indirectly). This may be called as the 'Benefit theory.' The real
test is: from which date the donee is reaping the benefits of the property? Where the donor
continues to derive the benefits, the transfer is not complete. But. if the donee enjoys the benefits, the
delivery of possession is deemed to have taken place. This judicial proposition lays emphasis upon
the fact of donne's benefits from the gifted property instead of the act which symbolises
constructive possession. Thus, where a house an rent has been gifted, the delivery of possession is
given to the donee from the date on which the donee gets the rents from the tenant
Secondly, the delivery of possession is completed on the date on which the donor intends to
transfer the possession to the donee. This may be called as the 'Intention theory.' The intention of
the donor is to be proved on the basis of facts which may differ from case to case. But there must
be some cogent proof of the intention of the donor that he has physically done everything what he
could in the given circumstances. For example, where donor and donee are living in the same
house which is the subject matter of gift, the donor's intention to part with the possession is
sufficiently proved if the donee has been authorised to manage the house. In other words, a delivery of
possession is deemed to have taken place at a time when the bona fide intention of the donor to
complete the gift is fully established. Futher proof of the date from which the donee reaps the
benefits of the property donated, is not necessary
Who may Challenge the Delivery of Possession?

The question whether a delivery of possession has taken place at all or not, is relevant only when it
has actually been challenged in a gift. It is not necessary to prove separately in each and every case
that the delivery of possession was completed. (But, only donor or donee or persons claiming under
them, can challenge the validity the validity of gift on the ground that delivery of possession has not
taken place)
In Y.S. Chen v Batulbai (AIR 1991 MP 90), a Muslim woman made a gift of a portion of her
house to her daughter. The gifted portion of the house was occupied by a tenant who used to pay the
rents
362 Family Law - II
regularly to the daughter (donee) as landlady. After sometimes, he refused to recognize the daughter as his
landlady on the ground that gift in her favour was void because there was no delivery of possession. It
was held that objection as to the validity of gift on the ground of absence of delivery of possession
cannot be raised by the tenant who is a stranger to the transaction of gift.
Delivery of Possession - When Not Essential?3

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

under the Mohammedan law of hiba. [L.C./-95]
Discuss the exceptions to the principle of delivery of possession of property
under a gift under Muslim law. [D.U.-2010I
363
gift of his properties for the benefit of his minor daughter and her adult husband through the
medium of a trust. There was no formal delivery of possession and it could not be proved as to
who accepted the gift on behalf of the minor daughter. Held that the gift was void.)
w (ii) Gift by husband to wife and vice versa - No transfer of possession is required in such a case. The
reason behind this rule is simple. Joint residence is an integral aspect of this relationship. The fact
that the husband continues to live in the house after donation and receives the rent thereafter, will not
invalidate the gift as it is presumed that such acts of the husband, after the gift, are on behalf of his
wife and not on his own account
In Fatmabibi v Abdul Rehman (AIR 2001 Guj. 175)(the husband made an oral gift of a house to his
wife. Later the deed was also registered. The step-son, lived with his wife in the gifted house,
challenged the validity of the gift on the ground that there was no delivery of possession of the house.
It was held that, oral gift in presence of two persons amounts to a declaration; mentioning the
name of the wife in the registration deed amounts acceptance; and mutation in the name of the wife
at the instance of the wife amounts sufficient delivery of possession keeping in view the relationship
between the parties. In Kabisa Umma v Pathakla (AIR 1964 SC 275), held that where a gift was
made by a husband to his minor wife by a registered deed, and possession handed over to the
minor wife's mother, the gift was valid. Since the wife had no father or grandfather alive, nor any
executor, the delivery of the gift deed to her mother instead of the minor wife herself did not
invalidate the gift, as the intention was well established^
Donor and done residing in the same house which is to be gifted - Where the donor and the donee
both~resi3e in the "property, the physical departure or formal entry is not necessary. The donor, who
is owner of the house, may complete the gift without asking the donee first to vacate the house and
just after that, to take possession as a donee
364 Family Law - II
But, there must be some 'overt act' or apparent activity on the part of the donor from which his real and
bona fide intention to transfer the possession can be inferred. ln Humera Bibi v Najmunnissa (1905) 28
All 17, a Muslim lady executed a gift-deed of her house in favour of her nephew who was living with
her in the same house. The property was transferred in the name of the nephew but she continued to
live with him as before. But after the gift, the rents were collected in the name of the donee. Held, that
the gift was valid although there was neither any physical transfer to the donee nor any physical
departure of the donor from the house.^
, (iv) Where the donee is in possession - Where the donee is already in possession of the property to be gifted,
delivery of possession by the donor after taking it from the donee is not necessary (e.g. case of a bailee,
mortgagee or trustee). Donor's mere declaration of having gifted it to the donee will suffice
But if the owner of a house wishes to make a gift of it to his rent-collector, some overt act of transfer
of possession is necessary; for the rent-collector is not in possession of the house, he is merely an agent
and although he may have certain rights he is not in possession of the property (Mulla).
. (v) Gift by one co-sharer to another
Void Gifts
The following gifts cannot be validly made. They are void.
,(1) Gifts to unborn person - A gift to a person not yet in existence at the time of making it is void. The
reason is that donee's acceptance is one of the essentials of validity of a gift and if the donee is not in
existence his consent cannot be got. A gift to unborn person is void but life interest in favour of person
Examine the validity of the following gift: Habib makes a gift of his house to his nephew, Imraan who is staying with him. However,
there is no deliver/ of possession of house but rent receipts are issued in the name of Imraan.
[D.U.-2009]
M us lim Law of G i f t s 365
not in existence is permissible provided they come in existence when such interest opens out iJ2) Gift
to a dead person - is similarly void Contingent gift - A gift cannot be made to take effect on the
happening of contingency i.e. happening or non-happening of a future uncertain event because
contingency being a mere chance may or may not happen Thus, a gift by X to A for life and in the
event of death of A without leaving male issue to B, is so far as B is concerned, a contingent gift and
therefore void. However, a conditional assignment of a life insurance policy is valid according to the
Insurance Act, 1938. I (4) Gift in future - A gift cannot be made of anything to be produced in future
such as a gift of the crop which may be produced next year in the donor's field The subject matter of
the gift must be actually in existence at the time of making the gift This is so even when the
production of property may be within the competence of the donor and there may be no doubt as to its
coming into existence at some future time. A gift which is only to take effect after the death of the
donor and during his life time is expressly declared to be revocable by him is not a valid gift.
(5) Gift with a condition - If the donor attaches a condition to his offer, the condition is void and the gift
takes effect unconditionally. Thus, the gift is valid but the condition is void For instance, if a house is
given to A for life, and after his death to B, the legal effect of the gift is that A takes the house
absolutely, and B takes nothing. Likewise, if A makes a gift of his house to B on condition that he shall
not sell it or that he shall sell it to a particular individual, the condition is void, and B takes an absolute
interest in the house.
366 Family Law - II
IRREGULAR GIFT (MUSHAA)5
Mushaa means 'undivided share' in a property (movable or immovable). Mushaa is therefore, a co-owned or
joint property. The word Mushaa has been derived from the Arabic word 'Saayu' which literally means
'confusion'. If one of the several owners of joint property makes a gift of his own share, there may be a
confusion as to which portion or part of the property is to be given to the donee. There may be a practical
difficulty in the delivery of possession if gift of a joint property is made by a donor without partition of the
gifted share. To avoid any such confusion and difficulty at the stage of delivery of possession, the
Hanafi Jurists have evolved the principle of Mushaa^
The doctrine of Mushaa is applicable only to 'gifts.' It is not applicable to any other kind of
transfer e.g. sale, exchange, etc.
(^Gift of an undivided share in an indivisible property (e.g. staircase) is valid, but gift of an undivided
share in a divisible property is not valid in the latter case, the gift is considered 'irregular' (fasid), the
defect may be remedied by separating or specifying the subject of the gift (SujmMawÂccording to
Shiajaw, gift of mushaa is valid in each case (i.e. whether the property is divisible or not) provided the
donor gives to the donee possession of the property by vacating and permitting the donee to control it Shia
law, thus, does not recognize the doctrine of Mushaa.
A gift may be validity made of an undivided share (Mushaa) in a 'property which is incapable of
being divided; or where the property can be used to better advantage in an undivided condition.
According to all the schools of Muslim law, a gift of Mushaa-indivisible is valid without any partition and
actual delivery of possession. There are certain properties which are by nature indivisible. The physical
partition or division of such properties is not practical. Moreover, if against the nature of such
Discuss the concept of Mushaa under the Muslim law.

[D.U.-2008{Supp.)/2009/2011} [LC.I-93]
A. a Muslim, makes a gift of his undivided interest in the property. Discuss the
validity of the gift. [LC./-94]
Muslim Law of G i f t s 367
properties, their partition or division is effected at all, their identity (value or_character) is lost; they
do not remain the same properties which they were before the partition. For example, a bathing ghat,
a stair case or a cinema house etc. are indivisible Mushaa properties,
■ Where the subject-matter of a Hiba is Miishaa-divisble, the doctrine of Mushaa is applicable and the
gift is not valid unless the specific share, which has been gifted, is separated by the donor and is
actually given to the donee. In other words, a Mushaa-divisible may be divided easily without changing
the nature and without affecting the utility of the property.
Exception to Doctrine of Mushaa

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

Tie doctrine relating to the gifts of mushaa (restraint upon transfer) is wholly unadopted to a
progressive state of society (free transfer of property) and ought to be confined within the strictest
rules [Sheikh duhammad Mumtaz Ahmad v Zuhaida Jan (1889) 11 All 460]. However, n a later case, it
was said that doctrine of mushaa was not opposed o justice, equity and good conscience [Fakir
Nyanar v Kandasamy 1912) 35 Mad 120].
The doctrine of Mushaa originated for avoiding confusion in the simple cases of gifts of small
undivided properties. In the old days, no such technical formalities were needed in making divisions
of the joint properties as are required today. In the present commercially advanced society, the Mushaa
doctrine may operate as a restriction upon the right of a person to deal with his properties. Gifts are
not trade oriented transactions; they are voluntary and gratuitous transfers. Therefore, the gifts should
be free from as much restrictions as possible. Moreover, where a constructive delivery of
possession is sufficient to complete the gift, there is no need of making actual division; a symbolic
possession by the donee of the gifted share in property should validate the gift.
ln the present Indian society, the doctrine of Mushaa is neither legally required nor has any
practical significance. In Masoom Sab v Madan Sab (1973) 1 AP LJ 97, the Andhra Pradesh High
Court said that a gift of Mushaa is not invalid if the donor makes a constructive delivery of
possession. Therefore, there is no legal difficulty if the Mushaa doctrine is not applied to a gift of an
undivided property. The devices to avoid the Mushaa rule have been favoured by the courts^
6. The strict application of the doctrine invalidates the gifts of co-owned properties and operates disadvantageously in most of such cases.
Because of this reason, the Hanafi jurists themselves have evolved a method by which the mischief of the doctrine could be overcome,
it must always be remembered that the doctrine of Mushaa only renders the gift irregular (fasid) but not void (batil) and it is therefore
possible to employ a device in order to get over it. The device to overcome the doctrine of Mushaa is simple. The donor may sell the
undivided share without any prior partition and may return the consideration (price) immediately to the donee. Legally, this transaction
would be a sale in which the doctrine is not applicable; but, in effect it would mean a gift.
370 Family Law - II
Delivery of Possession in Mushaa
LEADING CASE: HAYATUDDIN V ABDUL GANI7 (AIR 1976 Bom. 23)
, [In this case, validity of the 'gift of undivided property' in absence of partition of the property gifted (Mushaa)
was in issue. A gift of an undivided share (mushaa) in property which is capable of division is irregular and not
void. The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition
and delivery to the donee of the share given to him. If possession is once taken the gift is validated.
The declaration in the gift deed that possession was handed over to the donee, the notices issued and
intimation to the tenants orally and subsequently by notices were sufficient evidence to show that the donors
have done everything that was possible in the circumstances to hand over possession.]
, In this case, A. a Sunni male, died leaving behind a house and his two widows and a sister. One of the widows
W1, and A's sister SI, executed a registered gift deed of their respective undivided shares in this house in
favour of Hayatuddin, an orphan who was brought up by A. W and SI then filed a suit in a court of law
asking for partition and handing over the share to Akram. During the pendency of the litigation, SI died and
her heirs claimed that the gift of her portion was invalid as she had not partitioned her share before executing
a gift of the same as per the requirements of the law
The recitals in the gift deed stated that the share of one of the widows was separated and handed over to
her, and that the property gifted was in possession of the donee (Hayatuddin) and that possession was handed
over to him, and that none of the heirs of the donors would have any interest in the gifted property. In 1955
the two donors and the donee filed a suit for a declaration that Hayatuddin was the owner of the property
7. A question based on the facts of this case. [D.U.-201

371
and an alternate relief of partition and separate possession was also claimed. Civil Judge held
that there was no partition in 1950 as alleged and the house was not allotted to the donors, and
that the gift had been made and that the donee was not placed in possession of the gifted
property.
The appellate Court took the view that there was no partition of the house at the time of
execution of gift deed and obviously Hayatuddin was not placed in possession of the gifted
property. Since delivery of possession was one of the two prerequisites of a valid gift and the
properties which were being enjoyed by tenants-in-common were incapable of being placed in
possession, since not divided, the gift could not be valid. It was however observed that "A
portion of an undivided property may be gifted to a co-owner also under certain circumstances
but that is not the case here."
Thus, the issues, were: How delivery of possession of immovable property should be given to
validate a gift of undivided portion? What was necessary to make a gift of an undivided portion
capable of partition valid?,
•The High Court observed: There was no partition before the gift was made But merely on
that account it is not possible to hold that was no transfer of interest of the two donors in
favour of the donee. There is a clear intention on the part of the donors to divest themselves
of the interest in the property of A and vest that property in the donee.] It is not disputed that
there can be a gift of an undivided share under Muslim Law. The law relating to the gift of
undivided property under Muslim Law is enunciated by Mulla: Â valid gift may be made of an
undivided share (mushaa) in property which is not capable of partition. A gift of an undivided
share (mushaa) in property which is capable of division is irregular (fasid) and not void (batif).
The gift being irregular, and not void, it may be perfected and rendered valid by subsequent
partition and delivery to the donee of the share given to him. If possession is once taken the gift
is validated"^
Family Law
- II
The Court further observed: How delivery of possession of immovable property can be given? It
contemplates three kinds of cases (1) where donor is in the possession (2) where property is in occupation
of tenants (3) where donor and donee both reside in the property. There is evidence in this case to show
that part of the property was in the occupation of tenants and Plaintiff Hayatuddin was already residing in a
part of the property. A gift of immovable property which is in the occupation of tenants may be completed by
a request by the donor to the tenants to attorn to the donee; and where the donor and the donee botn
reside in the property no physical departure or formal entry is necessary and in such a case the gift may
be completed by some overt act by the donor indicating a clear intention on his part to transfer possession
and to divest himself of all control over the subject of the gift-J
There is clear evidence which indicates the steps taken by the two donors to divest themselves of this
property after they had made the gift. Several notices were issued on behalf of the donors and the donee
intimating about the execution of gift and delivery of possession. The tenants also deposed that the donors
had told them that they had made the plaintiff the owner of the house and the rent was to be paid to him.
The property was thus in possession of the tenants and partly in possession of the donee himself who was
residing in the house. The declaration in the gift deed that possession was handed over to the donee, the
notices issued and intimation to the tenants orally and subsequently by notices were sufficient evidence to
show that the donors have done everything that was possible in the circumstances to hand over
possession.) In addition there is their conduct in joining Hayatuddin as co-plaintiff to have their share
separated and delivered possession of. This conduct also shows that the donors had done everything
possible to make the gift effective and to divest themselves of possession and to transfer the said
possession of the undivided portion of the property as the donors themselves had.
373
What was necessary to make a gift of an undivided portion capable of partition valid was
discussed by a Division Bench of the Allahabad High Court in Hamid Ullah v Ahmad Ullah (AIR
1936 All 473). In that case the property consisted of six houses and three parcels of land and the
donor who was not in physical but constructive possession of the property executed a deed of
gift and gift is registered. The document recited that the donor was in proprietary possession of
the property and was conveying to the donee the same sort of possession which she possessed,
that she had given up all proprietary rights in the subject-matter of the gift and that donee was at
liberty to make transfers of the property in any way he chose. The Division Bench held that the
gift was valid as the donor had done practically all that she was able to do in the way of
divesting herself of possession and giving to the donees the same possession as she had herself.
.In the present case, the Court held: Unless therefore, there are compelling reasons it will not be
possible to invalidatex a gift as in the instant case, a gift which has been reiterated by the donors at all
possible times whenever occasion arose. The appellate Court was in error in dismissing the plaintiff's
suit on the ground that the gift was invalid. Thus, plaintiff's appeal is allowed.].
Revocation of Gift
r Hiba once validly made, is generally irrevocable. Before the delivery of possession, the gift is not
complete and the donor has unrestricted right to revoke it. After the delivery of possession, the donor
has a right to revoke the gift either with the consent of the donee (in case the gifted property still
continues in the possession of the donee in original form) or by a formal decree of the court.
However, the following gifts are absolutely irrevocable - when the
^donor/donee is dead, when the donor/donee related by blood or marital relation, when the gifted
property is sold or gifted or is lost, destroyed or changed, when the gift is sadaqah or when
anything has been accepted in return. )
374 Family Law - II
Distinction between Gift and Will

Gratuitous transfer of ownership in a property may be made in two ways. First, the transfer may be
made inter vivos i.e. between living persons, which is called 'Gift.' Secondly, the transfer may be made
testamentary, which is called 'Will.' Thus, in so far as the legal concept of Wills is concerned,
essentially, it is a 'gift testamentary.'
Both Will and Gift are modes of transferring property from the person making the gift or Will to the
person in whose favour it is made. However, the two differ in many respects:
(i) Gift is an immediate transfer of right or interest; Will is a transfer of right to take effect after the death of
the testator.
(ii) In a gift transaction, delivery of possession is necessary; in a Will it is not required.
(iii) The subject of gift must be in existence at the time of gift; in case of a Will, it is sufficient if the subject
exists at the time of testator's death.
(iv) Right of donor to a gift is unrestricted. The right of making a bequest is limited (one-third of net wealth,
consent of heirs required).
(v) After completion a gift cannot be revoked unless by a formal decree of a court; a Will may be revoked
at any time after making of it. {
FURTHER QUESTIONS
Q.1 Discuss the validity of the following gifts under Muslim law:
(a) H makes a gift by a registered deed to his minor wife, W, who has attained puberty. The gift was accepted on W's behalf by
her mother in whose house H and W were residing. W's father and grandfather were dead.
375
(b) The grandfather made a gift to a minor without delivery of possession to the existing and competent guardian of the
minor i.e. minor's father.
Zafar, makes a gift of his land to his nephew, Hamid, who is

a minor. Hamid is living with his uncle as his father is working
in America. There is no delivery of possession, even though
the gift has been accepted on behalf of the minor by the
father. {D.U.-2008\[L.C.l-94\ LC.II-96\
L.I (a) Delivery of Possession in case of a Minor Donee
Gift to a minor or a person of unsound mind is valid. They may not have mature understanding but
they are persons in existence. Therefore, they are competent donee. But such gifts must be accepted
by the guardian of that minor or insane donee. A gift to a minor or insane donee is void without
acceptance by the guardian.^ For purposes of acceptance of a gift, the guardians of a minor or
insane donee are as under: (1) Father, (2) Father's executor, (3) Paternal grand-father, (4) paternal
grand-father's executor. This order of priority of the guardians of the minor's property must he
strictly followed..
I However, a father could appoint the mother as an executor under his Will, then, she is
competent to accept the gift offered to her minor child. But, if the father is alive, he alone is
competent to do so. A husband can take over possession as the guardian of his minor wife who
has attained puberty (even though her father might be living), i
In the absence of a 'guardian of property', acceptance of the gift may be made by any person
having 'custody' of the minor. It is significant to note that under Muslim law, mother has not been
regarded as 'guardian of property' of her minor children. Therefore, she is not entitled to accept the
gift on behalf of her minor child. But, where a minor donee has no legal guardian to accept the gift,
the completion of the gift for minor's benefit, is the sole consideration. In such cases, the mother
could accept the gift. Where a gift is made to a minor who has attained puberty i.e. has attained the
age of discretion, the gift is valid even if the acceptance of the gift and its delivery of possession
have been taken by a person who has no authority to accept the gift on
376 Family Law - II
behalf of the minor. Also, the donee who had already attained puberty (fifteen years) i.e. the age of
discretion is competent to accept the gift herself.)
ADING CASE: VALIA P. KATHEESA UMMA v PATHAKKALAN NARAYANATH KUNHAMU (AIR 1964 SC 275)
[A gift made by the husband to his minor wife by a registered deed but accepted on her behalf by minor
wife's mother is valid. A gift can be made through the mother or even a stranger (under whose care the
minor is living) in the absence of the guardians of minor i.e. father/grandfather or their executors.
,In this case, the husband made gift of his properties to his minor wife by a registered deed. A month
later he died issueless. After the death of his wife, the present suit was brought by Kunhumu for
possession of his share as an heir under Muslim law. He contended that the gift in favour of minor
wife was invalid as it was accepted on her behalf by her mothers/This contention has been accepted by
all the three courts below and that a gift by the husband to her minor wife to be valid must be
accepted on her behalf by a legal guardian of her property under the Muslim law i.e. by the father or
his executor or, by the grandfather or his executor. As Katheessa Umma, the mother of minor wife, was
not a legal guardian of the property of her, it was contended that the gift was void. (The husband
could have himself taken over possession as the guardian of his minor wife, but it was not done.)
Thus, the issue was whether a gift by the husband to his minor wife and accepted on her behalf by her
mother valid in absence of wife's father and father's father? Was it absolutely necessary that possession
of the property must be given to a guardian specifically to be appointed by the court in such cases
The court held that a gift to a minor is completed ordinarily by the acceptance of the guardian of the
property of the minor viz. father and grandfather including executors of these two. A
377
gift can be made through the mother or even a stranger (under whose care the minor is living) in
the absence of the above guardians. Minor himself can accept it, if he has reached the age of
discretion. A husband can take over possession as the guardian of his minor wife who has
attained puberty (even though her father might be living).!
(It is only actual or constructive possession that completes the giftjand registration does not
cure the defect nor is a bare declaration in the deed that possession was given to a minor of any
use, without the intervention of the guardian of the property unless the minor has reached the
years of discretion. If the property is with the donor he must depart from it and the donee must
enter upon possession. Exceptions to these strict rules are gifts by the husband to wife and by the
father to his minor child. L to Mohd. Sadiq All v Fakhr Jahan Begum (AIR 1932 PC 13), it was
held that even mutation (change) of names is not necessary if the deed declares that possession is
delivered and the deed is handed to the wife by husband8 or by a guardian to his minor ward In.
Nabi Sab v M. Papiah (AIR 1915 Mad. 972), it was held that gift did not necessarily fail because
possession was not handed over to the minor's father/guardian and the donor could nominate a
person to accept the gift on minor's behalf. The Mohammedan law of gifts, though strict, could
not be taken to be made up of unmeaning technicalities.
These cases show that the strict rule of Mohammedan law giving possession to one of
the stated guardians of the minor is not a condition of its validity in certain cases. One such
case is gift by the husband to his wife and another where there is a gift to a minor who has no
guardian of the property
8. Examine the validity of the following gift: Zakir, makes a gift of a house in favour
of his wife Zainab. The property so gifted continues to be under the management
of Zakir No mutation of the names was effected. [D.U.-200&]
[Note: Where the donor and donee reside together an overt act is necessary and this rule applies between husband and wife. In case of
gift by the husband to his wife, of the house that they were occupying, there is constructive delivery of possession and acceptance ana
the gift (even if oral) was valid - Fatmabibi v Abdul Rehman Abdul Karim AIR 2001 Guj 175]
378
Family Law
- II
in existence. In such cases the gift through the mother is a valid gift. All that is needed is that the donor
must evince an intention (bona fide) to make the gift and to complete it by some significant overt act
The court quoted with approval the following rule {Hedaya): "If a fatherless child be under charge
of his mother and she takes possession of a gift made to him it is valid... The same rule holds with respect
to a stranger who has charge of the orphan." Similarly, " A mother or any other having charge of
him/her are entitled to possess themselves of a gift in him/ her behalf, because the father be dead, absent,
or his place of residence unknown; for their power is in virtue of necessity, and not from any supposed
authority, and this necessity cannot exist when the father is present."
, In the present case, the husband, who was very ill, was living at the time of the gift in the house of his
mother-in-law. His minor wife, who had attained discretion was capable of accepting the gift. The intention to
make the gift was clear and manifest because it was made by a registered deed and handed over by husband
to his mother-in-law and accepted by her on behalf of the minor. If the husband had handed over the deed to
his wife, the gift would have been completed under Muslim law and it seems impossible to hold that by
handing over the deed to his mother-in-law in whose charge his wife was, during his illness and afterwards,
the husband did not complete the gift. Thus, in the case in question, gift by H to W is valid and
complete.] . (b) The present problem is based on the following case:
JLEADING CASE: MUSA MIYA V KADAR BUX (AIR 1928 PC 108)
. [A gift by a maternal grandfather to a minor without delivery of possession to the existing and competent
guardian of his property (i.e. father) is invalid under Muslim law.])
In this case the issue was whether a gift to a minor without delivery of possession to the existing and
competent guardian of his property
Muslim Law of Gif ts
379
valid under Muslim law?) (The donor (maternal grandfather) declared in the presence of his assembled
friends that he had made a gift of his property to his grandsons ("Now both the children, Essen Milan
and Moosa Mian, are the owners of my property"). A letter was also sent to the father of these minor
children by their maternal grandfather. However, there was no evidence of either an acceptance given by
the father or of the delivery of possession of this property to the father of these minors.!
• It was alleged that the grandfather had made a gift of property to his grandsons, but had
done nothing further to complete the gift, not only was there no deed executed and no mutation
effected, but it was proved that the grandfather had not relinquished but continued to manage
the property till his death, without in any manner having indicated that he regarded himself as a
trustee for his grandsons or that he was in possession of the property on their behalf. The
father of the minors was also living with them.
The counsel for the minor boys argued that in view of the facts of this case, that the minor
boys and their father were all along living with the donor, and the special relationship of the
grandfather and the grandson, there was no need for delivery of possession of the property and
it could be validly presumed that the donor was managing the properties on behalf of the minor
grandsons.
The only question before the Privy Council was whether the case fell within the exception
which provided that a gift by a father or other guardian of a minor does not require a change of
possession and their decision was that it did not it was held that it is a well established principle of
law that a gift in favour of a minor by any person other than the father or guardian of such minor
must be accompanied with delivery of possession to the father or guardian of the minor
It is not a case of a gift by father or mother to a minor, nor is it a case of a guardian
making a gift to his ward. It is true that the grandfather seems to have maintained and brought up
his grandsons, but during that time the father and mother
380 Family Law - II
of the two minors were also living with him. However, these facts are not sufficient to constitute the
grandfather a guardian within the meaning of the exception so as to make a gift by him to them
complete without any delivery of possession or relinquishment of control over the property to him..
The father of the minors was in a position to exercise his rights and powers as a parent and
guardian and to take the possession of the property on behalf of his children.]
Thus, in the cases in question, the gift is invalid.]
(a) D executes a gift deed in favour of his nephew of a house in which both of them were residing. He did not depart from the
house but paid taxes, etc. in the name of his nephew.
(b) Karim is the owner of a house which is in adverse possession of Kapil. Karim by a registered deed makes a gift of that house
to Salim. Shortly thereafter Karim dies. Salim makes an application to the court for recovery of possession of the house from
Kapil. Kapil argues that the gift is invalid.
Would your answer be different had Salim after the registration of the deed, filed a suit in the court against Kapil for the
recovery of the house and Karim had admitted in the court that he had gifted the house to Salim?
[L.C.II-94/95/96 (Supp.)]
A.2(a) Donor and Donee Living in the Same Property
Where the donor and the donee are living in the same house, the donor need not necessarily depart from the
house in order to make gift effective. Thus, no actual delivery of possession is required in such a case;
However, there must be a clear intention to make the gift and to part with possession of property (Ibrahim
Bibi v Pakkir Mohideen AIR 1970 Mad. 17).
In Humera Bibi v Najm-un-Nissa (1905) 28 All 147, a Muslim lady executed a gift deed in favour
of nephew, of a house in which both of them were residing. The property was transferred in the name of the
donee and the rents were recovered in his name. It was held that the gift was valid although there was
no physical delivery of possession.
M u s l i m Law of G i f t s 381
3ut where the deed contained no recital that possession was given and t was not delivered to the
nephew and the lady continued to pay municipal taxes, the gift was held invalid [Qamar-ud-din v Mt.
Hassan Jan (1935) 16 Lah 629]. The donor must divest himself of all control in such cases. In the
case in question, the gift made by D is valid.
A Muslim donor makes a gift in favour of the donee living with him with the help of a gift deed
containing a declaration that he was transferring the property in favour of the donee. After the execution
of the gift, if the donor:
(i) makes a declaration in presence of a number of friends, and entrusts the management of the property to
the donee; or
(ii) hands over the papers of the property to him and authorizes him to effect a mutation of names; or
(iii) authorizes the donee to take possession of the property; or
(iv) the donee starts paying municipal taxes in his name; or
(v) the property is transferred in favour of the donee and he starts collecting rent in his name;
the gift would be complete despite no physical delivery of possession.
In Abdul Rahim v Sk Abdul Zabar (AIR 2010 SC 211), a Muslim father executed a gift deed of his
properties that he had purchased in favour of his son in 1973. In 1975, he filed an application before the
Tehsildar for mutation of his son's name in his place as the owner. His other son challenged the validity
of this gift on the ground that since the possession of the property was not handed over to the younger son
(donee) by the father, the gift was void. The main argument of the donee was that as he was collecting
rent from the tenants of the land in his own capacity and not as an agent of the original owner of the
property, and an order of mutation was passed in his favour at the behest of the donor, the requirement
of delivery of possession of the property was met with for completion of the gift.
The High Court held that as the son was collecting rent even before the death of the donor, there
was no material to show that the father had divested himself of the title of the said property. The Apex
Court, however, accepted the claim of the son and held that the gift
382 Family Law - II
was valid as the essential requirement of delivery of possession of the property was adequately met with in
the case. It was held that the gift was registered and contained a clear and unambiguous declaration of
total divestment of property. A registered document carries with it a presumption of its valid execution.
The agency of collecting rent by donee during the lifetime of father came to an end and he started doing
it for his own self after the gift.
(b) Gift of Property held in Adverse Possession by Another
Where the subject matter of the gift is in the possession of a person holding the property adversely to the
donor, the gift is not valid, unless the donor either recovers possession or does all that he can which is
necessary to put the donee in possession. In the latter case, the constructive delivery of possession would take
place making the gift valid.
Thus, where A gifts a land to B but never obtain possession of land during his lifetime, the land
being held adversely to A by C, and after A's death, B sues C to recover possession, the suit will be
dismissed, because the gift was never completed by delivery of possession. But, if B sues C and A joins
him as a defendant and in the written statement A admits the claim of B, then in such a case the gift is
valid, because the donor (A) has done everything in his power to complete the gift (Maqbool Alain v Mst.
Khodaija AIR 1966 SC 1194).
Therefore, in the case in question, the gift by Karim is invalid unless he admits in the court that
he had gifted the house to Salim.
(i) Jaffar executes a gift deed of a house in favour of John, a Christian friend. The deed is duly registered but possession is not
delivered to John. After the death of Jaffar, his brother contests the validity of the gift.
(ii) A gift made by Sultan to the child in womb of his sister/a gift by M in favour of his daughter's son who is born three months
after the date of gift.
(iii) A widowed Muslim along with her minor son was living with her father and not with her father-in-law. The father gave the
383
residential house under a deed of hiba to his daughter's son. He delivered the deed to his daughter.
(iv) Gift of a life interest. [LC. 11-94/95; LC.I-95]

A.3 (i) The delivery of possession is an essential requisite of a gift under Muslim law. If the property is with
the donor he must depart from it and the donee must enter upon possession. It is only actual or
constructive possession that completes the gift, and registration does not cure the defect. A Muslim
can make a gift to a non-Muslim. In the present case, due to non-delivery of possession during the life
time of Jaffar, the gift to John remained incomplete and became invalid after his death.
(ii) The donee must be in existence at the time of making of the gift. A gift to an unborn person may be
made provided the child is born within 6 months from the date of the gift, because, in that case, it is
presumed that the child was actually existing as a distinct entity in the womb.
(iii) A gift can be made to a minor through his guardian - father or grandfather, and in their absence to their
executors, and in their absence to the person under whose care the minor is living e.g. mother or near
relative or even a stranger. In the present case, the minor's grandfather was alive, though not living with
him. Thus the gift must have been made through the grandfather and not through the mother of the
minor.
(iv) Gift of a life interest - Ajift_oQife interest is valid under both Sunni and Shia law. A 'life estate'
implies the transfer of the property to a certain person with certain limitations as to its use and
alienation. A life interest is not enlarged into an absolute estate, as a life interest implies the use of
property only during the life time of the donee.
Q.4 A Muslim registers, shortly before his death, a gift of his residential house in favour of his only minor married daughter
living with him along with her husband. He stipulates in the gift deed that he and his wife shall reside in the house till
their respective deaths and deposits the deed in a bank
384
Family Law
- II
locker hired by his wife. His heirs challenge the validity of

hiba. Decide. Can the widow enforce her right to residence
in the house? [LC./-96]
A.4 A Mohammedan can make reservation of rights in manqfi (i.e. use of property) so long as the ayn (substance of
a thing) is transferred does not render the gift bad. In other words, a condition in a gift that does not affect
the substance of the gift is valid.
Thus, in the present case, the gift with a stipulation that the donor and his wife shall reside in the house
(subject of gift) till their death, is valid and so does the condition. The registration of gift deed evince
his intention to make a gift to his daughter; it does not matter that he deposits the deed in a bank
locker hired by his wife. Thus, his heirs cannot challenge the validity of hiba. And the widow can
enforce her right to residence in the house.
Q.5 Write a short note on Marz-ul-Maut. [LC.i-93/95/96]
Write a short note on 'Death-bed Gifts.'

[D.U.-2008/2009 (Supp.)]
Discuss the essentials of a gift made during marz-ul-maut.

[D.U.-201O\
Javed is suffering from cancer and is bedridden. He makes

a gift of his entire property in favour of his daughter Salma
who was looking after him during his illness. He dies within
two months of his making aforesaid gift leaving behind his
son Zafar and daughter Salma. Zafar challenges the validity
of the gift. Will he succeed? [C.L.C.-92]
Abdul is suffering from cancer. When he comes to know about it, he makes a gift of all his property in favour of his wife.
Six months later he dies. Examine the extent to which gift will be operative under the Shia and Sunni Laws.
[D.U-2009][C.L.C.-93/96\
A.5 Marz-ul-Maut (Death-bed Gifts/Transactions)
_when a person suffering from a marz (malady/illness) is under the apprehension of maut (death) he is said to be
suffering from marz-ul-maut or 'death-illness'. It is an illness which is highly probable, will
385
ensue fatally Mulla defines it as a malady which induces an apprehension of death in the persons
suffering from it and which eventually results in his death. The concept has immense legal
significance because certain acts of a Muslim relating to disposition of his property, say through gift
or wakf performed during marz-ul-maut, are materially affected.)
An illness is death-illness when:
(i) Preponderance of apprehension of death - The illness must be such that produces an apprehension of
death in the mind of the person suffering from it (irrespective of the fact whether he is in bed or
not). It is the subjective apprehension or the sense of pressure of death in the mind of the patient
himself that is crucial to satisfy this requirement and not what others around think of his state of
health. There must be a subjective feeling in the mind of the patient that he is not going to recoverj
, (ii) External indicia - External indications must also reveal proximate
*"* "danger of death, for example, the inability of the person
concerned to attend to normal avocations of life like prayers,
calls of nature, etc. This is the objective criterion in form of
physical incapacity to assess marz-ul-maut
iiii) Eventual death - The disease must result in death shortly thereafter. Was the donor suffering at the
time of the gift from a disease which was the immediate cause of his death
.These three elements are primarily questions of fact which must be proved like any other fact.
Thus, whether an illness is a death-illness or not depends on the facts of each particular case.
Seriousness of illness cannot be a test for determining death-illness. A disease may be very
serious in its nature (e.g. cancer, asthma, etc.) yet may not produce in the mind of a person suffering
from it the fear that it will result in death. Because the patient might have become familiarized to the
disease while accepting eventual death as his lot. If it is a disease that is of long continuance, or it
is incurable or even if it cripples a person for life, that would not be called marz-ul-maut.
(^Whether a disease is a Marz-ul-Maut or not depends upon the donor's state of mind rather than
the gravity of that disease. What is important is that he should be under pressure of the sense of
"imminence of death." Thus, such harmless inflictions like common cold resulting in pneumonia, or
severe stomaches resulting from undetected appendicitis might create that pressure and end fatally, j
386
Family Law - II
However, this does not mean that diseases of long continuance, to which the patient has become
familiarized, can never reach a stage where the sense of imminence of death overtakes a person in sick
bed. He might suddenly lapse into the apprehension of death staring him in the face. [For example, an
apprehension on the part of an old man that merely because he is old, he may die suddenly, is not the man
involved in marz-ul-maut. But where an old woman of 65, suffering from pneumonia, died within two
hours of disposing of her property was held to be in marz-ul-maut [Shamshad All Shah v Hassan Shah,
PLD 1964 SC 143 (Pakistan)].^ Abdul Hafiz v Sahebbi (AIR 1973 Bom. 165), a Muslim of over 80,
remained ill very seriously for four days. On the day on which he died he made a gift just before his
death. It was held that the gift was made during death-illnessj
Though Hedaya prescribes that a disease which lasts a year or more may not be marz-ul-maut,
yet it cannot be taken as an absolute rule in view of what has been said above. (A transaction by a Sunni
woman dying during labour pains, at the time of child-birth, is treated as a death-bed transaction in
Sunni law, but not so in Shia law.]
Transactions during Marz-ul-maut
A Muslim may dispose of his property through a Will, gift or create a wakf during marz-ul-maut. While a Will
remains unaffected by the concept of marz-ul-maut, the other two transactions are substantially affected
/Though a Muslim has unlimited powers to dispose of his property by way of gift but the donor's
power to dispose of his property by a gift during Marz-ul-Maut is subject to certain limitations. Under
Muslim law, gift made where a person is suffering from Marz-ul-Maut is subject to very strict scrutiny for
its validity.
[A death-bed gift (donatio mortis causa) partakes of the nature of both the gift and legacy. The law
of such a transaction is also partly of Will and partly of gift. Thus, the gift must satisfy all the formalities
that are essential for making of any other gift (i.e. there must be declaration, acceptance and the actual
or constructive delivery of possession during the lifetime of the donor); on the other hand, the gift will
be subject to some restrictions as in case of a Will. Thus, a Muslin cannot make a gift of more than 1/3 of
his property in favour of a non heir unless the other heirs give consent; the gift to an heir during death
illness is altogether invalid unless the other heirs consent to it. The peculiarities of Shia and Sunni laws
also apply.
387
I In case the donor recovers from marz-ul-maut i.e. the malady does not end in death, the gift
during marz-ul-maut does not fail but takes effect as to the entirety of the subject of gift without the
restrictions envisaged by the law of Wills. In other words, it will become a gift simpliciter and
ceases to be a death-bed gift-j
Reasons for Combining Death-bed Gifts with Wills
Where a person makes a gift during an apprehension of death, his "mental faculties, and state of
mind is not on par with that of a person who is not under such an apprehension. Illness coupled with
apprehension of death may weaken a man's physical and mental powers and he is likely to make a
disposition, which may harm him spiritually and which may be to the detriment of his heirs. These
gifts are executed with a sense of urgency or haste and are "not a result of well-contemplated
actions of a reasonable man. It must be noted that since the gift takes effect immediately, the owner
has to relinquish his control over the property as a person can make a gift of his total property, the
divesting would extend to the whole of his estate without any return or consideration. This is the
exact reason why gifts executed by a person under an immediate apprehension of death, stand on a
different footing than ordinary gifts..Thus gifts made during marz-ul-maut i.e. made under pressure
and a sense of imminence of death are operative to the extent of the one-third of his property.,
LEADING CASE: ABDUL HAFIZ BEG v SAHEBBI (AIR 1975 Bom. 165)
[In a Marz-ul-maut, what is required to be proved upon the preponderance of probabilities is

whether the gift was made by the ailing person while under the 'apprehension of the death' and
further whether in such ailing he met his death.
Once the subjective apprehension of death, its posibility or preponderance is established and there
is evidence of accelerated dissipation of the life itself leading unto death due to malady or affliction
the dispositions made by such person are treated as if it were an outcry against the denomic fear of
death itself and thus basically a non-juristic actionOnce the subjective apprehension of death, its
posibility or preponderance is established and there is evidence of accelerated dissipation of the
life itself leading unto
388
Family Law
- II
death due to malady or affliction the dispositions made by such person are treated as if it were an outcry
against the denomic fear of death itself and thus basically a non-juristic action. |
, In this case, one Abdul Kadar was taken seriously ill from
" before 1st February and never recovered form that illness.
During the illness he was not even able to look after himself
and died shortly i.e. on 4th February. The deeds of gift were alleged to be executed by him during
this period. The gift was
challenged and the court held the gift to be invalid as it was hit by the doctrine of marz-ul-maut^S'mce
there was no report of the doctors nor was there any medical opinion adduced, the Courts relied on the
facts and circumstance under which Abdul Kadar was taken seriously ill and died four days thereafter.
The Court observed: In the celebrated work "Principles
of Muhammadan Jurisprudence" by Abdur Rahim, the learned
author had made a basic and notable effort to find out the
juristic principles behind the Mohammedan precepts of law and
has dealt with the topic of death-illness at some great length.
In his view, for which he takes his support of Heiaya and
Kifava the Murz-ul-maut is an illness from which death is
ordinarily apprehended in most cases and in particular cases it
has actually ended in death. He observes that: "The compilers
of Al-Maiallah lay it down that death-illness is that from which
death is to be apprehended in most cases, and which disables
the patient from looking after his affairs outside his house, if
he be a male and if a female the affairs within her house
provided the patient dies in that condition before a year has
expired whether he has been bed-ridden or not. If the illness
protracts itself into a chronic condition and lasts like that for
a year, the patient will be regarded as if he was in health and
his dispositions will be treated like those of a healthy person ....................... "
According to the learned author therefore while applying the true test of this doctrine the real
question must be the illness and its character from which death could be said to have been apprehended.
He observed: "It is a cardinal principle of Muhammadan jurisprudence that the law takes note only of
perceptible facts. The original authorities do not lay down that the fears entertained by the sick man
himself form any criterion of death-illness. In fact, it is an event of nature, the character of which cannot
depend upon what the patient might think of
389
it. The law in placing an embargo on a sick person s juristic acts puts it on the ground of
illness and not on the apprehension of death by the sick man. £The reason or motive underlying
the law is that illness weakens a man's physical and mental powers and he is likely therefore as
experience shows to act under such circumstances to the detriment of his spiritual interests by
disappointing his heirs in their just expectations".
In the present case, the court, however, observed: If this proposition on the exposition of the
doctrine and the test is the correct one then the apprehension in the mind of the sick man cannot
have the higher emphasis than the illness itself. Jn other words it is the proof of the illness that
will be decisive of the matter provided that has caused the eventual death of the man. That proof
can alone be tendered by the medical experts and mere subjective apprehension of the person
suffering illness could not carry the doctrine to its logical endjHowever, Abdul Rahim's view
about the exposition of this aoctrine does not appear to have found clear support in the
judicial pronouncements on the present doctrine.
(if there is preponderance of probabilities indicating that the gift was made under the
apprehension of death by the deceased it is invalid under the law of marz-ul-mautl/frrafc/m
Goolam Ariff v Saiboo [(1907) ILR 35 Cal 1 (PC)]; Sofia Begum v Abdul Razor: [AIR 1945
Bom 438]. It may be taken as settled that crucial test of marz-ul-maut is the (proof of the
subjective apprehension of death in the) mind of the donor that is to say the apprehension derived
from his own consciousness as distinguished from the apprehension caused in the minds of others and
the other symptoms like physical incapacities are only the indicia but not infalliable signs or a sine
qua non of marz-ul-maut.
. The court, in the present case, observed: It is true that mere apprehension on the part of
an old man who isviiot afflicted by any malady would not be sufficient to answer the doctrine.
Mere accident of death which is a fact certain in human life does not afford good reason to
invalidate the dispositions The basic juridical thinking and the pronouncement of the Courts upon
the instant doctrine clearly spell out that the English phrase "death-illness" is not a sufficient
adequate of complete connotation of the term 'marz-ul-maut', for that doctrine appears to
comprehend an affliction or malady leading unto death or involving the death of the person
concerned.
390
of death its causation and the condition of person have its own and clear significance. Death is the certain and central
in an illness it is common experience, casts ominous elongated shadows discernible along the lines of conduct of
process of dissolution of life. In that there is all the apprehension of withering away of human faculties and rational
ndition would get seized by the fright of the final full-stop and all winged and animated spirits involving free will
oseful action may be clipped and caught in the mesh of progressing paralysis. The apprehension that the curtain is
ch a state would easily grasp all the consciousness as the physical malady surely affects every faculty clouding the
. It is no doubt that when such preponderance of an onset of physical and psychological atrophy operating over the
an be inferred, the dispositions cannot be validated. It is conceivable therefore that the pragmatic philosophy of
e to put under eclipse the acts and dispositions done upon the promptings of a psychosis indicating apprehension or
d by or during the last suffering or illness of the person dying. Law assumes that apart from the dominant danger of
ay clearly lose touch with his spiritual dictates and may hasten even against the need of his clear obligations and
he might not have normally and in times of health done.
ounding the disposition that the physical and psychological condition of the person afflicted, the nature of the malady
he actual act of disposition and further the fact of death, are all the matters which should furnish to the Court as a
er the disposition is within the mischief of this doctrine. Once probabilities hold out that there was even some degree of
h in the mind of the sick person who eventually died, suffering from his last illness the subjective test implicit in the
nciple and policy.
Once *I-»e possihility otf~
Muslim Law of G i f t s 391
clearly the burden shifts to that party who takes under the disposition or sets up the title on its
basis. Such party may prove the facts and circumstance which would enable the Court to hold that the
disposition itself was not made while the suffering person was under the apprehension of death for, as
said earlier, there may be several answers to the problem and mere accident of death of the person
making the disposition would not be enough. An old man meeting natural death may be well disposed
to see that the matters are settled in his lifetime and such dispositions would be perfectly valid and
would not answer marz-ul-maut. It is, therefore necessary for the party setting up the disposition to
rebut the proof that may be indicative that the disposition is within the mischief of marz-ul-maut.
That cannot be done by merely relying on the abstract doctrine of onus of proof or insisting upon
the evidence of medical expert not tendered by the opposite party. In a given case such evidence
may not be available at all.
The court held: It is thus obvious that if there is preponderance of probabilities indicating that the gift
was made under the apprehension of death by the deceased it is invalid under the law of marz-ul-maut.
All the established facts in the present case indicates that the gift is within the law of marz-ul-maut as
understood by the Muslim law precepts and cannot be questioned.]
Distinction between Gifts made during Marz-ul-maut and Donatio Mortis Causa
1. Under Donatio mortis causa, as incorporated in Sec. 191 of the Indian Succession Act, 1925, only
movable property can form the subject of gift; whereas in the case of gift made during Marz-ul-maut
there is no such limitation and property of any description whether movable or immovable may be
gifted.
2. In Donatio mortis causa there is no limitation as regards to persons to whom or the extent to which the
property can be disposed of. No Marz-ul-maut gift can operate for more than one-third of the donor's net
assets unless with the consent of all the heirs. Neither it can be made in favour of one heir without the
consent of all the others.
3. In case of Donatio mortis causa, if the donor recovered from the illness, the gift entirely fails. Under the
Muslim law, a gift made during Marz-ul-maut would be valid like ordinary gift Quba) to the whole
extent if the donor subsequently recovers.

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FAMILY LAW - II

[LEADING CASES, MATERIALS & Q.A.]

Dr. ASHOK K. JAIN

Printed at: G.S. Offset, Delhi.

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

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

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

AT. Vasudevan' case 76

Commr., Income Tax v Kalu Babu 51 *

Teja Singh v Jagat Singh 271

Hindu Joint Family1

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

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

Essential Characteristics of Coparcenary5

(3) Limitation of tour generations

(2) Only a male can be a coparcener; an illegitimate son is not a coparcener.

Distinction between Joint Tenancy and Hindu Coparcenary

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

11. Id., pp. 136-138.

MITAKSHARA v DAYABHAGA SCHOOL

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

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

(i) his son, widow and stepmother;

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

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

(i) Husband and wife;

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

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

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

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

Decision of the case in question

(I) Obstructed and Unobstructed Heritage

(II) Joint Family Property and Separate Property

(1) JOINT FAMILY PROPERTY (COPARCENARY PROPERTY)

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

Types/Sources of Joint Family Property

(2) SEPARATE OR SELF-ACQUIRED PROPERTY

Sources of Separate Property

Presumption regarding Joint Family Property

LEADING CASE: MAKHAN SINGH v KULWANT SINGH (AIR 2007 SC 1808)

Property held by a Sole Surviving Coparcener

LEADING CASE: SMT. DIPO V WASSAN SINGH (AIR 1983 SC 846)

(i) a house, which he inherited from his maternal grandfather/or brother;

(ii) a shop, which he got from his father under a Gift/Will;

(iv) a share received on partition.

LEADING CASE: MD. HUSAIN KHAN v BABU KISHVA NANDAN SAHAI

. [Property inherited from the maternal grandfather cannot be said

LEADING CASE: ARUNACHALAM V MURUGANTHA3

LEADING CASE: CWT V CHANDER SEN6 (AIR 1986 SC 1753)

A Mitakshara family comprising of a father and son had considerable JFP. In

7. P. Pradhan Saxena, Family Law II.. 3* ed., p. 121 (2011).

Decision of the Case in Question

A.3 See A.l.

His son claim share in these properties. Discuss, whether he

Can his son claim a share in the above-mentioned income

Decision of the case in question

Decision of the case in question

A.5 Distinction between JFP and Separate Property

Joint Family Property Separate or Self-acquired

Who can be a Karta?1

1. Who can be a Karta of the Hindu Joint Family? [LC.//-95/96] [D.U.-2008(Supp)]

LEADING CASE: M/S. NOPANY INVESTMENTS (P) LTD. v SANTOKH

There can be only one Karta

Female Members as Karta2