DISQUALIFICATION RELATING TO SUCCESSION

Remoteness in relationship isn’t the only way a person gets disqualified from inheriting a
particular property. Certain physical and mental infirmities or a particular of conduct can also
get a person disqualified from inheriting property. The disqualified is not allowed to take part
in the inheritance of the property. Additionally, the disqualified person cannot transfer their
interest to their own heirs as a disqualified person was treated as having predeceased the
propositus.

Illustrations- Suppose P dies leaving behind two brothers, A and B and nephew AS, son of
A. If A is a disqualified heir, AS will also not inherit anything and B will take the entire
property

If a disqualified person recovers from his disqualification subsequent to the opening of

inheritance, in such a scenario the disqualified person can recover his estate already vested in
other heirs. (State of Punjab v. Balwant Singh, AIR 1991 SC 1581.)

VALID GROUNDS OF DISQUALIFICATIONS INCLUDE-

Remarriage of a Widow

Section 24 of the Act states that certain widow remarrying may not inherit as widow. The
person who is in a relationship with an intestate, as the widow of a predeceased son or widow
of a brother may not be entitled to inherit the property of the estate as a widow if on the date
of succession, she has remarried. As in law, remarriage incapacitates a widow of a gotraja
sapinda from succeeding to the property of a male Hindu on the date the succession arrives.
Under the Widow Remarriage Act, 1856 only three kinds of women are disqualified from
inheriting the property if they remarried before death.

1. Son’s widow
2. Son’s Son’s widow
3. Brother’s widow
Illustration- P, a Hindu, dies leaving behind a widow W and a widow of a predeceased
son, SW, who had remarried before P died. W will take the entire property as if SW was
dead.

The widowed mother and widowed stepmother are not disqualified firom inheritance
even if they have remarried.( Kasturi Devi v. Deputy Div. Commr., AIR 1976 SC 2595.)
In spite of all reasons, women cannot be disqualified from inheriting the property. The
question of the remarriage propositus' own widows does not arise. This is because even if
she has remarried during the lifetime of her husband, her second marriage is void under
the law and therefore she cannot be considered to have remarried. 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. But the subsequent marriage of the widow is no
disqualification.

Murderer-

Section 25, governs disqualification in cases of murder. It is important to note that the
murder should be done in the “furtherance of succession”. For instance, there was a
faction-fight among five brothers, A, B, C, D and E. The father tried to intervene and was
killed by an accidental sword blow from A. In this case, A will succeed to the property of
his father along with B, C, D and E, as A did not kill his father in furtherance of the
succession

Hindu Succession Act, disqualifies two sets of murderers :

1. If an heir himself murdered or abetted the murder of the propositus in furtherance of

succession, and
2. If an heir has murdered or abetted the commission of murder of someone other than
the propositus in furtherance of the succession.

The Commission of the murder of the intestate or the abetting of the commission of the
murder has one or the same result. It is a principle of general policy. In such a scenario
the murdered will be treated as non-existent. The privy council in the case of Smt.
Kasturi Devi v. D.D.C AIR 1976 SC 2105, held that on the principle of equity and justice
the murderer should be disqualified from succeeding to the person whom he had
murdered and would not be regarded as the fresh descent as he can be stated as the non-
existent. The court in the case of Kenchava v. Girimaillappa where the husband had
murdered his wife, neither he nor his parents were held entitled to inherit her property. A
similar reasoning was applied in the case of Janak Rani Chadha v. the State (NCT of
Delhi) where a husband had murdered his wife. This disqualification will still be valid in
cases where the son wasn’t convicted under section 302 of IPC but Section 324 of the IPC
due to the benefit of doubt.(Mannapuneni v. Nannapuneni, AIR 1970 AP 407). This
disqualification will not apply is he has been acquitted of the charges even if this acquittal
is on the basis of benefit of doubt. (Sarita Chawhan v. Chetan Chawhan AIR 2007
Bom. 133). This disqualification is applicable in cases where there was a murder to
accelerate succession. For instance, P has a daughter D daughter's son DS, P is on the
death bed. If DS kills D so that when P dies, he may take the inheritance. DS will not be
entitled to inherit when P dies as the murder was committed for acceleration of
succession.

This section not only applies to cases of testamentary succession as well. A murderer who
is guilty of murdering the testator cannot take any benefit under the will. The Section
applies to succession under the Act. It does not apply to any other enactment under any
other statue.

Conversion-

Section 26 of talks about the situation in which a Hindu has converted to a different
religion. Before the initiation off the act a Hindu ceased to be a Hindu by conversion to
any other religion. Under the current act when a Hindu converts to a new religion he still
has the right to all the property of his or her relatives but the convert’s descendants have
no right to the property.

Illustration- P died leaving behind three sons, A, B, and C. B had earlier converted to
Islam. Even though B had converted to Islam, he will take his 1/3 share as conversion is
not a disqualification of the heir.
The children and descendants of a convert cannot inherit to the propositus, unless they
are Hindus. If the child was born to them before or after the conversion of the religion,
the descendants will be disqualified from inheriting the property unless those descendants
are Hindu when the succession opens.

Illustration- P died leaving behind a son B and four grandsons, AS, AS 1 AS2, AS3 from a
predeceased son A who had converted to Christianity. AS and AS 1 were born to A before
conversion and AS2 and AS3 were born to him after conversion. In this case B, AS and
AS1 will inherit the property whereas AS 2 and AS3 will be excluded as they were born
after A had converted.

Succession to the property of a convert is governed by the personal law of the community
to which he converted(P. Patharakah v. Subbiah, AIR 1981 Ker 1980.)

This succession doesn’t apply in cases of testamentary succession. This section is

prospective in nature as the disqualification only arises when the commencement of the
succession opens. It is also retrospective in nature as the Act also applies to a case where
the conversion had taken place prior to the commencement of the Act.

Section 27-

This Section, provides the consequences of disqualification incurred by an heir from

inheriting under any provision of the Act. Under this Act, If any person got disqualified
from inheriting any of the property, it must be devolved as if such a person died before
the intestate. Section 27 says that if any heir is alive when he/she is disqualified, he shall
be considered non existent and not as some fresh line of descent.

Section 28-

This section states that there would be no disqualification for any disease and deformity.
Disease, deformity and unchastity are no longer disqualifications (Chandi v.
Bhagyadhar, AIR 1976 Cal 366; Ratti Ram v. Basanti, AIR 1986 HP 61.) The Section is
not retrospective. The section, applies to both testamentary and intestate succession. It
 comes into the operation when the succession opens after the commencement of the Act.
If the succession opens before the commencement of the Act the section shall not apply.

HINDU SUCCESSION ACT 1956 LAYS DOWN AN UNIFORM SYSTEM OF INHERITANCE TO

HINDUS. EXPLAIN THE SCHEME OF LAW AND DEVELOPMENT BROUGHT BY IT.

The Hindu Succession Act came into force on 17 June, 1956, with the basic objective of
providing a comprehensive and uniform scheme of intestate succession for Hindus. Prior to
the enactment of this Act, different religious communities were governed by different
succession laws, and within the Hindu community itself, there was a wide divergence with
respect to application of inheritance laws. Disputes relating to family relating to family,
between its members and with respect to property, were initially settled within the family,
and if outside interference and adjudication became imperative, then the traditional local
‘Panchayats’ were the best option. The advantage that these Panchayats had over any other
judicial mechanism later established was, the familiarity with the parties, with the disputed
matter, and also with the situation or environment under which the dispute arose.

With the active intervention of the British in the judicial system, the traditional Panchayats
were initially not affected as the nature of the cases dealt with by these courts were criminal
or civil and did not touch family matters. However, revenue matters and property disputes
relating to family soon dragged the family members to these formal courts where total
strangers were deciding their disputes in an unfamiliar language. Since there could not be a
direct interaction due to the difference of language and the technical procedures, a
representative of the litigant, who was well versed with the language became an intermediary

These courts relied on pundits and a few translated texts. The learned pundits, who were
primarily religious preachers and well conversant with the performance of religious rites and
ceremonies, were nevertheless, not legal luminaries and when asked to extract legal rules
from religious texts, often failed to fulfill the requirements of the courts. The result was that
in the absence of any other guidance, Hindu law was confined to a few texts only and rules
contained in other sources. This amalgamated Anglo-Hindu law, deviated from the original
precepts, and substantially modified, applied to all Hindus and created an uncertainty and an
unnecessary confusion. It necessitated the need for clarity and a codification of the law.
The later half of the 19th century called for the codification of the Hindu law for better
settlement of family issues relating to succession and inheritance. The main arguments under
against the codification as a lot of Hindus expressed no desire for codification and believed
that the bill was introducing changes of a revolutionary character that had the effect of
sweeping away the law laid down by the Smritis and of destroying the Dharma (rules) which
were based on high ideals befitting Hindu culture and character that served as an inspiration
to the world.

The Hindu code proposed by the Hindu Committee in 1948 included abolition of a right by
birth in the property and its devolution by the doctrine of survivorship. It recommended
replacement of joint tenancy by the rule of tenancy-in-common and an abrogation of rules
regarding pious obligations. The guiding principle of ‘religious efficacy’ under the
Dayabhaga law and of ‘consanguinity’ under the Mitakshara law and its sub-schools, were
substituted by a new line of heirs based on ‘natural love and affection’.

Basic features of the Hindu Succession Act, 1956

1. It amended the aspects related to joint Hindu family and Mitakshara coparcenary,
intestate succession and even testamentary succession.
2. It abolishes the distinct laws of succession under the Dayabhaga and Mitakshara
systems and provides a uniform law, based on natural love and affection and nearness
in relationship
3. It abolished the concept of limited estate for Hindu women and replaced it with
absolute ownership.
4. In case of female intestates, there is a further divergence linked with the source of
acquisition of the property for matters of succession of her estate
5. It alters the character of the property inherited by the son from his father, paternal
grandfather and makes it separate property in his hands.
6. The marital status of the daughter was made irrelevant for determining her rights of
inheritance and her heirs were made primary heirs as well.
7. It empowers a Hindu, male or female, to make a testamentary disposition of the
totality of properties, in favour of anyone with respect to testamentary succession
8. It abolished the doctrine of survivorship under Mitakshara coparcenary.
 9. The disqualifications for inheritance, based on physical and mental diseases,
disabilities and deformities, were removed.
10. The widow of an intestate was made a primary heir and unchastity was removed as a
ground for disqualification.
11. The Act specifically protected the rights of posthumous children.

The act made significant changes in terms of succession under Hindu law. Though the
changes that were brought in by the act were revolutionary and radical for the time period, it
helped in laying down the foundations a patriarchal history of succession under Hindu law.
The main achievement of the act was that it brought in uniformity throughout the country in
matters of Hindu succession and within the two gender. The guiding principle of ‘religious
efficacy’ under the Dayabhaga law and of ‘consanguinity’ under the Mitakshara law and its
sub-schools, were substituted by a new line of heirs based on ‘natural love and affection’.
The act also has made significant changes for the oppressed parts of a joint family, I.e. a
widow, a person suffering from deformities and disabilities. The act made a revolutionary
change by giving the right to property to a widow even if it was challenged on the grounds of
unchastity. This imperative as during the time the act came, in the late 1950s the rights of
widows were not protected under various laws. An allegation of unchastity was enough to
take away her right to property. The enactment of this legislature laid down the foundations
of a less gender biased succession system.

CHANGES MADE BY HINDU SUCCESSION AMENDMENT OF 2005.

The changes brought in by the 2005 amendment were brought in with two main objectives

1. To bring in a new section in place of the existing section 6 to give both females
and males equal rights.
2. To remove section 23 of the act which disentails the female rights to ask for
partition in a dwelling house occupied by the intestate family with the male heirs
initiating it.

There were other changes that were made along with these objectives. These include-

1. Omission of section 4(2)

2. Insertion of section 6
 3. Omission of Section 23
4. Omission of Section 24
5. substitution of words from “disposed by him” to “disposed by him or by her” under
section 30

OMISSION OF SECTION 4(2)

The deletion of s. 4(2), and an implied presumption that after the amendment, the Hindu
Succession Act applies to all kinds of property including rights in agricultural land, would
mean that now a diversity would exist state wise with respect to laws governing agricultural
property. This section excluded rights on agricultural lands from its purview and was
regulated by the State- level tenure laws, it was creating a discriminatory in favour of women
as the women were not getting any entitlement or interest in the agricultural lands. So with
the removal of this provision, the women’s interest in agricultural land as that of men is
ensured.

INSERTION OF SECTION 6
Abolition of doctrine of survivorship in case of male coparcenars

As per the present 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.

Illustration- A Hindu family comprises of a father F, and two sons S1 and S2, who form an
undivided coparcenary. Each of them would have a one-third share in the joint family
property. Then, S2 dies as a member of this undivided coparcenary. Under the old law, on the
death of S2, the surviving coparceners would have taken the share of S2 by survivorship and
their share would have increased to a half each. Thus, both F and S1 would have been entitled
to one half of the property on the death of S2.

The court in the case of Pushpalatha N V v. V. Padma, AIR 2010 Karn 124 held that the
traditional concept of coparcenary, where coparcenary property was held with incidents of
survivorship, stands abolished expressly by the legislature.

Introduction of daughter as coparcenary

The changes brought to the exclusive prerogative of males to be coparceners has been
conferred in favour of a daughters as well. At present, instead of only the son having a right
by birth, any child born in the family or validly adopted, will be a coparcener and would have
an interest over the coparcenary property. Thus, the traditional concept that only males could
be members of the coparcenary and ‘no female could ever be coparcener nor could own
coparcenary property’ is no longer the law. 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.

Section 6(2) makes it very clear that a female Hindu would be entitled to hold property with
the incidents of coparcenary ownership. 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 posses 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. In the landmark case of Vineeta
Sharma the Supreme court clarified the same.

This view of amendment being applied retrospectively in order to ensure the best interest of
the daughters was also upholded the Supreme Court in case of Danamma @Suman Surpur
v. Amar Singh, the Hon’ble court held that the amendment is applicable to all living
daughters of living coparceners as on 9th September’ 2005 and cannot be disputed further for
its implication.

In the case of Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., it was held that a
preliminary order passed by the Court in regards to a partition suit, do not prejudices the
rights of daughters conferred by the amendment.

Marital status of the Daughter-

The marital status of the daughter is of no relevance in cases of succession anymore. Only
daughters who were unmarried on such date could become coparceners. Besides, as the
legislature provided that their coparcenary rights were identical to that of sons, their future
marital status did not divest them of coparcenary rights. If the partition has taken place before
the amendment and the property has already been divested the section wouldn’t apply. . Thus
a partition that took place in 1974 would not be effected by this provision. Sumathi v.
Sengottaiyan, AIR 2010 Mad 145 . Though this section will apply if she got married after the
amendment.

Abolition of pious obligation of son to pay the debts of father

Under the classical Hindu law a son, grandson or great grandson was imposed with the
liability to pay their father’s debts. The emphasis to pay the father’s debts was so strong that
if the son had to pay his and his father’s debts, it was provided that he should pay his father’s
debts first, to free him from a leading a life of bondage in the next life.

This has been abrogated by the present amendment. At present, the repayment of debts
contracted by any Hindu would be his personal responsibility and the male descendants
would not be liable to the creditor.

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

OMISSION OF SECTION 24
Section 24 disqualified the right to the property of the widow on remarriage. It discriminated
three category of women related to the intestate as the widow of a predeceased son, the
widow of a predeceased son of a predeceased son or the widow of a brother, by virtue of their
remarriage on account of opening of the succession

The rational behind this was that the widow is the surviving half of her husband and virtue of
her remarriage ceased to be the same. And by way of this her right in the property was
divested. But certain other kinds of widow as that of intestate’s own wife have not been
divested even after remarriage to have right in property of her deceased husband. After the
amendment of the act the widow of the deceased and the widow of the son were made class 1
heirs and the widow of the brother was made an agnate. This ensured that they inherit the
property immediately after the dead of the intestate, and their rights get invested accordingly.
Once her right is invested in that property, she becomes an absolute owner as per section 15.

SUBSTITUTION OF WORDS FROM “DISPOSED BY HIM” TO “DISPOSED BY HIM OR BY HER”

UNDER SECTION 30
Section 30 specifically provides for substitution of words ‘disposed of by him or her’ in place
of ‘disposed of by him’. It should be remembered that under the classical law, a coparcener
was not empowered to make a testamentary disposition of his undivided share in Mitakshara
coparcenary, and it went by survivorship to the surviving coparceners. Permissibility of
testamentary disposition of undivided share would have defeated the application of doctrine
of survivorship and therefore such disposition was void. The Hindu Succession Act, 1956, for
the first time provided competency to an undivided coparcener to make a valid bequest of his
share in Mitakshara coparcenary and the present Act extends this competency to a female
coparcener as well.

With the 2005 amendment, the equality ensured under the Constitution was reestablished and
the provisions granted the equality in status of son and daughter in a Joint Hindu Family.

DISTINGUISH BETWEEN COPARCENARY PROPERTY AND SEPARATE PROPERTY. BRIEFLY

EXPLAIN THE DIFFERENT MODES OF PARTITION.

A coparcenary property is the property that gets divided between coparceners on partition. A
coparcenary property will only be considered if it has been in the family for 2 generations.
The ownership in the coparcenary property is with the coparceners collectively but it is
subject to the rights of the female members and other joint family member’s rights of
maintenance that includes unmarried daughter’s right to marriage expenses.

Separate property’ is owned by a person exclusively and he enjoys absolute powers of

disposal over it. He can sell it, mortgage it, gift it, bequeath it under a Will to anyone, or
donate it for religious or charitable purpose or for public benefit in general. He can even gift
it to his sons, in equal4 or unequal shares or to just one son to the exclusion of all others, or to
any other family member. No one can ask for its partition or control its disposal in any
manner. On his death, the property will go as per the laws of inheritance or testamentary
succession

COPARCENARY PROPERTY SEPARATE PROPERTY

Acquisition of The children, grandchildren and
interest by birth: great-grandchildren of the
coparcener acquire an interest in
the coparcenary property by
birth.
No one acquires any interest by
birth, in the separate property of a
Hindu. (not even his own son)

Nature of interest All the coparceners have Even if a Hindu is a part of a

community of interest and unity joint family his separate or self-
of possession in the joint family acquired property of a Hindu

or coparcenary property. belongs to him exclusively .

Predictability of As long as the family is As separate property belongs

share undivided, a coparcener cannot exclusively to its owner, the
predicate that he or she has, at a question of predicating shares
given share (say, one-third or does not arise in the case of such
one-fourth) in the coparcenary property.
property at any given time.
One’s share only crystallizes
after partition. Till then his share
will keep fluctuating i.e.
decreases with every birth and
increases with every death.

Alienation by gift No coparcener can, however, Separate property can be gifted

alienate his undivided interest away by the owner, to any extent,
in the coparcenary property by and to any person.
way of gift, without the consent
of the other coparceners.

Alienation by will Prior to 1956, no coparcener Separate property could be freely

could dispose of by will, his disposed of by will. No affect
undivided interest in the after 1956 Act.
coparcenary property. But now,
S. 30 of the Hindu Succession
Act, 1956, enables a Hindu to
 dispose of such interest under a
will.

Alienation by No coparcener can alienate his The separate property of a

mortgage and sale undivided interest in a coparcener can, on the other
coparcenary by sale or hand, be freely alienated by
mortgage, without the consent him, by way of sale or mortgage,
of the other coparceners. Only or otherwise.
the Karta can do this under
certain circumstances keeping
in mind the welfare of the
family.

Partition A joint family or coparcenary There can be no question of

property is liable to be partitioning the separate property
partitioned of a member of a joint Hindu
family.

DIFFERENT MODES OF PARTITION

‘Partition’ means to divide into parts or to separate, and under Hindu law, it generally means
a division or splitting of a joint Hindu family into smaller, separate and independent units,
with conferment of separate status on the undivided coparceners. No partition is possible
unless there are at least two coparceners in a joint family, as it is not merely the division of
the family, but in essence, it is the disruption of the undivided coparcenary in a joint family.
For a partition, at least two coparceners must be present, and no partition can take place if
there is only one coparcener, in which case, he would be called a sole surviving coparcener.

The Supreme Court in its observation said that the partition can be partial or total, Partition
could be partial with respect to members of joint family or joint family property. The onus of
proof lies upon the parties who claim it to be a partial partition. Partition could be partial with
respect to the members of joint family or joint family property. A partition can be effected by
the father even during his lifetime among his sons. A partition could also take place by (i)
agreement, (ii) institutution of a suit to that effect, (iii) arbitration. It is not necessary for
partition that the joint family property is divided by every bit of it.

Partition by mere declaration

Partition under the Mitakshara law is severance of joint status and as such it is a matter of
individual volition. An unequivocal indication of desire by single member of joint family to
separate is sufficient to effect a partition. One cannot, however, declare or manifest his
mental state in a vaccum. To declare is to make known, to assert to others. ‘Others’ must
necessarily be those affected by the said declaration. Therefore a member of a joint Hindu
family seeking to separate himself from others will have to make known his intention to the
other members of the family from whom he seeks to separate. The process of manifestation
may vary with circumstances. In Raghvamma v. Chenchemma, the Supreme Court laid
down that it is settled law that a member of joint Hindu family can bring about a separation in
status by a definite declaration of his intention to separate himself from the family and enjoy
his share in severalty. Severance in status is brought about by unilateral exercise of
discretion.

The Supreme Court in Puttorangamim v. Rangamma, reiterated that “it is, however,
necessary that the member of the joint Hindu family seeking to separate himself must make
known his intention to other members of the family from whom he seeks to separate. The
process of communication may vary in the circumstnaces of each particular case. The proof
of a formal despatch or receipt of the communication by other members of the family is not
essential, nor its absence fatal to the severance of the status.

Conversion

As the term ‘Hindu Joint family’ itself suggests, only a Hindu can be its member. Religion is
of utmost importance here and a non-Hindu therefore, cannot be its member. Coparcenary is
an institution within a joint family and therefore, unless and until a person is a member of a
Hindu joint family, he cannot be a member of a coparcenary. A coparcener who renounces
his religion and converts to the Muslim (as in the case of Rani Pergash v. Dahan Bibi, AIR
1924 Pat 420) or Christian faith (Vaithilinga v. Avyathorai, (1927) ILR 40 Mad 118),
immediately ceases to be a coparcener, as an automatic severance of status takes place. This
is because 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. Mitter Sen Singh v. Maqbul
Hasan Khan, AIR 1930 PC 251

Partition by Will

Partition may be effected by a coparcener by making a will containing a clear and

unequivocal intimation to the other coparceners of his desire to sever himself from joint
family or containing an assertion of his right to separate. In Potti Laxmi v. Potti
Krishnamma, the Supreme Court observed, “Where there is nothing in the will executed by a
member of Hindu coparcenary to unmistakably show that the intention of the testator was to
separate from the joint family, the will does not effect severance of status.”

Marriage under Special Marriage Act, 1954:

Marriage of a Hindu under the Special Marriage Act, 1954 causes severance of joint status.
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 Lal v. Fateh Chand, AIR 1955 MB 148 .

Partition affected by Father

The father, under Hindu law, has superior powers in comparison to the other coparceners. His
share in the joint family property is the same as that of his sons, but by virtue of his rights as
Patria Potesta, he has the power to not only separate himself from the rest of the joint family
by effecting a partition. (Apporva Santilal Shah v. Commissioner of Income Tax, AIR 1983
SC 409) In Approver v. Ram Subba Iyer the Privy Council had observed that no coparcener
can claim any defined share in the joint family property in a joint family, but where the
coparceners enter into an agreement to the effect that every member will have a specific and
defined share in future, the joint status is affected and every coparcener acquires a right to
separate his specific share and use the same to exclusion of others.

Partition by agreement

It is not essential that a desire to effect a severance must be initiated either by the father, or by
one coparcener alone. If all the coparceners decide to destruct their joint status, it is called a
partition by agreement. Rajendra Nath v. Commissioner of Income Tax, (1991) 188 ITR
753 (All). A partition by agreement should not be a sham agreement, in order to defeat the
provisions of law or the rights of a third party. Ramanna v. Jaannatha, AIR 1941 PC 48 .It
is not necessary in a partition by agreement, that the shares allocated to each and every
coparcener, be absolutely equal. It does not however, mean that they can be unjust, unfair or
can adversely affect the interests of a minor, as in such cases, it will be open to challenge. A
partition by agreement may also include within itself, a family arrangement, where doubtful
and disputed rights are compromised, with the primary aims of conserving family property
and avoiding litigation. Ramcharan v. Girijanandam, AIR 1966 SC 323

Partition by Suit:

Mere institution of a partition suit disrupts the joint status and a severance of joint status
immediately takes place. A decree may be necessary for working out the resultant severance
and for allotting definite shares but the status of a plaintiff as separate in estate is brought
about on his assertion of his right to separate whether he obtains a consequential judgment or
not. So even if such suit was to be dismissed, that would not affect the division in status
which must be held to have taken place when the action was instituted. Ordinarily a partition
is affected by instituting a suit to this effect. In case of a suit for partition in joint status,
father’s consent to the suit for partition is no longer necessary. The son is fully eligible to file
a suit for partition even during the lifetime of father.

“SECTION 14 OF HINDU SUCCESSION ACT CONFERS ABSOLUTE OWNERSHIP RIGHTS IN

PROPERTY ON HINDU WOMEN”. COMMENT CRITICALLY.
Section 14 of the present Act, converted the limited ownership into a full-fledged ownership
and also ended the confusion and controversy regarding the exact share that the widow took
on the death of her husband as an undivided member in the Mitakshara coparcenary. Any
property that a Hindu female acquires after the coming into force of the Act will be her
absolute property unless given to her with limitations. Thus, the property obtained on
succession or on partition is now her absolute property. Panchi v. Kumaran, AIR 1982 Ker
137.

Subsection (2) of section 14 enacts a well-established principle of law, viz., if the grant is
given subject to some restrictions, the grantee will take the grant subject to those restrictions.
Section 14(2) lays down that if the gift, will or any instrument, decree or order of a civil court
or an award grants only a restricted estate to a Hindu female, she will take property
accordingly. In the absence of such an intention, the woman's grant win be her absolute
property. Sub-section (2) is based on the principle of sanctity of contracts and grants.
Veddeboyina v. Veddeboyina, AIR 1977 SC 1944. In case of a restrictive clause she will be
governed by the or an award. Badri v. Kanso, AIR 1970 SC 1963.

There were two basic objectives of the Act. The first one was to remove the disability
imposed under Hindu law on a woman, to hold the property only as a limited owner. The Act
removed it expressly, enabling her to acquire the property from whatever may be the mode,
as a full owner, that included a power to dispose it of at her pleasure. Secondly, it also
converted the then existing limited ownership, into an absolute ownership, by providing that
where a Hindu female was in possession of the property as a limited owner, such limited
ownership would automatically mature into an absolute ownership from the date of the
commencement of the Act. As held in multiple cases including Ram Lubhaya v. Lachhmi,
and Sri Ramakrishna Mutt v. M Maheshwara. A woman who had no power to alienate her
share at her pleasure, a day before the commencement of the Act, overnight acquired such
power, and instead of her husband’s heirs taking her property, the property could be
transmitted by her to her own heirs, thus abolishing the concept of reversioners.

Section 14 provided:
Property of a female Hindu to be her absolute property. — Any property possessed by a
female Hindu, whether acquired before or after the commencement of this Act, shall be held
by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, ‘Property’ includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition or in lieu of
maintenance or arrears of maintenance or by gift from any person, whether a relative or not,
before, at or after her marriage, or by her own skill or exertion, or by purchase or by
prescription or in any other manner whatsoever and also any such property held by her as
stridhan immediately before the commencement of this Act.

By providing for absolute ownership and a very wide definition of the term ‘property’, the
Act also abolished the entire distinction between stridhan and non-stridhan, saudayika and
non-saudayika stridhan and the different modes of its acquisition and devolution.

Two conditions were required to be satisfied before the limited estate matured into an
absolute estate, viz.:

(i) she possessed the property as a limited owner; and

(ii) she had not remarried

From the undivided share of the deceased husband in the Mitakshara coparcenary, her
presence defeats the application of the doctrine of survivorship over his undivided share and
prevents it from going to the surviving coparceners. The share of the deceased husband is
ascertained by means of a notional partition and she inherits his share as his class-I heir,
taking it as an absolute owner.

Property given in lieu of maintenance.-The karta can grant some property to a member of the
family for his or her maintenance. The right of a Hindu female to get maintenance out of the
joint family property is an indefinite right, yet it is a right under the Hindu law. If she is put in
possession of certain properties in satisfaction of thatright for her life she is not a trespasser
on property. The court in the case of Chinnappa v. Valliammal, AIR 1969 Mad 187 that a
woman need not surrender the properties held by her under the maintenance deed even during
partition. Where no property is given in lieu of maintenance and only a sum of money is
given, then Section 14 does not apply. Suldbha v. Abhimanyu, AIR 1983 Ori 71.

For widows who, on the date of the passing of the Act, were in possession of the property as
limited owners, it was provided that henceforth, they would hold these estates as full owners
thereof. The question whether a limited estate conferred under a will becomes a full estate by
virtue of S. 14(1), came for consideration before the Supreme Court in Karmi v. Amru. AIR
1971 SC 745. It was held that where only life estate is conferred under a will, S. 14(2) will
apply, and the estate will not become a full estate. But if a will confers on her full estate, she
will take absolutely. Lalit Mohan v. Prafulla, AIR 1982 Cal 52. The properties given under a
settlement to the widow which were to revert to the settlor or his brother on her death, do not
get enlarged into a full estate. K. Satyanarayan v. G. Sithayya, AIR 1987 SC 353.

EXPLAIN THE PROVISIONS REGARDING THE SUCCESSION OF THE PROPERTY OF A HINDU

MALE DYING INTESTATE.

PROVISIONS REGARDING SUCCESSION TO THE PROPERTY OF A HINDU FEMALE DYING

INTESTATE.