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CORE COURSE
209 FAMILY LAW - II

Imp ---> There will not be any updates/ versions before Apr-2017 Uni exams.
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Source : Public domain print/ internet contents. URLs of some such resources are listed
herein. Credits/ copyrights duly acknowledged.
03-Apr-2017. Exam centric version-1.3 compiled by ketan.bhatt@iitbombay.org in
academic pursuit. Follow URLs for details. Dedicated to students of the subject. No
claim is made/ implied about truthfulness of this document.
Gujarat University Syllabus is in BOLD text. References to questions listed herein below,
are to such questions which were asked in Gujarat University examinations.
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Thank you.
Refer (not in any particular order) :
Bare acts are a good source, in any subject of law.
http://www.hrln.org/hrln/images/stories/pdf/TrainingModuleRightsOfWomenUnderT
hePersonalLawsInIndia.pdf <--- By WJI Team & Varsha C. Sinha, Human Rights
Law Network, New Delhi
http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U5_Legal_Studies.pdf
Family Law II Notes by Mohit Diwan -
https://www.scribd.com/document/262979857/Family-Law-II-Notes
http://kuklawnotes.blogspot.in/p/family-law.html
http://14.139.60.114:8080/jspui/bitstream/123456789/738/23/Family%20Law.pdf

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CONTENTS
209 FAMILY LAW II

Module-1) Joint Family.

Module-2) Inheritance.

Module-3) Gifts.

Module-4) Family Court Act and Miscellaneous Provisions.

OBJECTIVE OF THE COURSE :


The course structure is designed mainly with following objectives in view. One is to
provide adequate sociological perspectives so that the basic concepts relating, to family
are expounded in their social setting. The next objective is to give an overview of some
of the current problems arising out of the foundational inequalities writ large in the
various family concepts. The third objective is to view family law not merely as a
separate system of personal laws based upon religions but as the one cutting across the
religious lines and eventually enabling us to fulfill the constitutional directive of uniform
civil code. Such a restructuring would make the study of familial relations more
meaningful.

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Module-1) JOINT FAMILY :

1.1) Mitakshara joint family <Why Dayabhaga joint family is not in syllabus ?>
1.2) Mitakshara coparcenary
1.2.1) formation and incidents
1.2.2) Property under Mitakshara law-separate property and
coparcener/ property
1.3) Dayabhaga coparacenary
1.3.1) formation and incidents
1.3.2) Property under Dayabhaga law
1.4) Karta of the joint family - his position, powers privileges and obligations
1.5) Alienation of property - separate and coparcenary.
1.6) Partition and re-union.
1.7) Joint Hindu family as a social security institution and impact of Hindu
Gains of Learning Act and various tax laws on it.

GO TO CONTENTS.

MODULE-1 QUESTIONS :

General notes on schools of Hindu Laws :


Write short note : Difference between Hindu Undivided Family and coparcenery.
(Apr-2012, Apr-2013)
Differences between Mitakshara and Dayabhaga.
Hindu Women in Coparcenary Property : Hindu Succession (Amendment) Act, 2005.
Explain in detail : (i) Mitakshara coparcenary, (ii) Dayabhaga coparcenary.
Discuss : formation and incidents of Mitakshara coparcenary. (Mar-2014)
Discuss : formation and incidents of Dayabhaga coparcenary. (Mar-2014)
Explain the coparcenery property under the Hindu Law and state its characteristis.
(Oct-2012)
Write short note : Coparcenery property. (Apr-2012, Mar-2015)
Discuss : Position, powers privileges and obligations of Karta of joint family.
Write short note : Powers of karta. (Apr-2012, Oct-2012, Apr-2013, Mar-2014, Mar-
2015)

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Explain the self acquired property and state various mode by which it can be
acquired under the Hindu Law. (Oct-2012, Apr-2016)
What is partition ? Discuss the methods of partition and which properties are liable to
partition and which properties can not be partitioned ? (Apr-2012, Oct-2012, Apr-2013,
Mar-2014, Mar-2015)
What is partition? Explain how partition may be affected under Hindu law. (Apr-2016)
Write short note : Re-opening and Re-union of Partition. (Mar-2015)
Discuss : Joint Hindu family as a social security institution and impact of Hindu
Gains of Learning Act and various tax laws on it.
Write short note : Mahant and Sevayat. (Apr-2012, Mar-2015)

GO TO CONTENTS.

MODULE-1 ANSWERS :

General notes on schools of Hindu Laws :


Answer :
Refer :
http://www.caaa.in/Image/Sucession%20Laws.pdf
good - http://notes-law.blogspot.in/2008/08/hindu-law-part-1.html
https://en.wikipedia.org/wiki/Muktik%C4%81
Intro :
What is Hindu ? The term Hindu is not to be found anywhere in the
Dharmashastras. It is a foreign word. It is derived from the word Sindhu. Sindhu
is the name of a major (3200km) river in the Indian sub-continent (Origin : Mt
Kailash, Mansarovar, 2% Tibet, 5% India, 93% Pakistan).
The word Sindhu was mis-spelled as Hindu by the Persians. Europeans spelled
Sindhu as Indus. The sub-continent came to be known as Hindustan/ India and its
people as Hindus/ Indian.
Civilization that prospered in the region came to be known as Indus Valley
Civilization or ". Thus the word Hindu, in true sense, does not have
religious connotation (feeling which a word invokes for a person). Rather, it refers
to a territory and the culture/ way of social living in the region.
In legal parlance, Hindu Law is a personal law applicable to Hindu, Sikh, Buddhist
and Jain. It is also applicable to all people who reside in India and who are neither
of Muslim, Christian, Jew.

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Sources of Hindu Law :


In contemporary India, sources of Hindu Law are,
Legislation,
Customs (having their origin in Dharma, justice, equity and good conscience),
Case-laws,
In Hindu culture, Law is a subset (part) of Dharma as articulated in Vedic
Scriptures. So the sources of Dharma (ie Vedic Scriptures) are also the sources of
Hindu Customs.
Just for the sake of general awareness (& not for exam!), here is a detailed graphic
on Vedic Scriptures, which are origins of Hindu customs :

Essentials of a valid custom :


i) Ancientness A custom must be minimum 100 years old.
ii) Certainty - Universality in observance is absolutely necessary.
iii) Reasonableness It should be in accordance with rules of justice, equity
and good conscience.

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iv) Continuity It must be continuous without interruption.


v) Public policy It must NOT be against public policy.
vi) Uniformity It must be uniformly performed.
If a custom meets the abovementioned requirements, it becomes binding.
Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 :
Clear proof of usage will outweigh the written text of the law.
Legislation : A portion of Hindu law has been codified by Parliament as follows :
Hindu Marriage Act, 1955
Hindu Minority and Guardianship Act, 1955
Hindu Adoption and Maintenance Act, 1955
Hindu Succession Act, 1956
Caste Disabilities Removal Act, 1850
Hindu Widow Remarriage Act, 1856
Transfer of Property Act, 1882 (overrides the Hindu Law of Property).
Child Marriage Restraint Act, 1929
According to these Acts, a Hindu is a person who,
Is a Hindu by religion in any of its form or development,
Is a Buddhist, Jain or Sikh by religion,
Any person who domiciled in India, who is not a Muslim, Christian, Persi or Jew
by religion,
Hindus domiciled in the territories to which the Act extends
Followers of Hindu law
Schools of Hindu Law :
School means rules and principles of Hindu Law which are divided in their opinion.
Hindu law is divided into two schools,
Dayabhaga and
Mitakshara.
Dayabhaga prevails in West Bengal, Assam, Tripura and in most parts of Orissa
Mitakshara is followed in the rest of India. Mitakshara law is again divided into
Benaras ,
Mithila,
Mayukha (Bombay) and

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Dravidia (Southern) sub-schools.


Important features of Hindu Laws
In the modern Hindu law, schools have relevance only in respect of the uncodified
Hindu law; they have lost all their relevance in regard to the codified Hindu law.
However, a person will be governed by custom if he is able to establish a custom
applicable to him, even though such a custom is in derogation to Hindu law.
Thus, although the codified Hindu law overrides all rules and customs of Hindu law,
yet such has been the impact of custom that in certain areas custom has been
expressly saved
The Mitakshara and Dayabhaga Schools differed on important issues as regards the
rules of inheritance. However, this branch of the law is now codified by the Hindu
Succession Act, 1956, which has dissolved the differences between the two.
Today, the main difference between them is on joint family system/ coparcenary.
Effect of migration on application of School of laws :
A person follows the school of his area. But if he migrates to another place, will
he follow the School of new locality, or will he carry his old school ? This has
been decided in various cases :
If a Hindu governed by a school migrates to another religion (where different
school has jurisdiction), he will continue to be governed by his own school,
unless he gives up his school and adopts the law of the place where he has
settled.
Gope v. Manjura Govalin- The burden of proving migration lies on him who
pleads it. The original place of a family can be inferred from the chief
characteristics of that family.
Moolchand v. Mrs. Amrita Bai- A person migrates will all of his personal laws.
Personal law unlike local law moves with whom he covers.
Notraz v. Subba Raya- A person can be given an option to give up the law of the
old place and adopt the new one.
Kinds of properties under Hindu Laws (Mitakshara and Dayabhaga) :
Ancestral property (referred to as joint family property or coparcenary property) :
Ancestral properties consists of,
property inherited from one's father, paternal grandfather and paternal great-
grand father.
Share obtained from partition,
accretions to joint properties and self-acquisitions thrown into common stock.
Separate (e.g. property inherited from mother),

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self-acquired properties,
Applicability of Hindu Succession Act 1956 : The Hindu Succession Act applies
to :
(a) to any person, who is a Hindu by religion in any of its forms or developments
including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya
Samaj.
(b) to any person who is Buddhist, Jain or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion
unless it is proved that any such person would not have been governed by the
Hindu law or by custom or usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been passed.
The following persons are considered as Hindus, Buddhists, Jains or Sikhs by
religion :
(a) any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jains or Sikhs by religion.
(b) any child, legitimate or illegitimate one of whose parent is a Hindu, Buddhist,
Jain or Sikh by religion and who is brought up as a member of the tribe,
community, group or family to which such parent belongs or belonged.
(c) any person who has converted or re-converted to the Hindu, Buddhist, Jain
or Sikh religion.

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Write short note : Difference between Hindu Undivided Family and coparcenery.
(Apr-2012, Apr-2013)
Answer :
Refer :
https://taxworry.com/what-is-hindu-coparcenary-huf/
http://www.srdlawnotes.com/2017/01/distinction-between-joint-family-and.html
https://www.lawctopus.com/academike/interest-of-hindu-women-in-coparcenary-
property-under-hindu-succession-act-2005/
http://www.shareyouressays.com/117190/what-are-the-structural-differences-
between-mitakshara-and-dayabhaga-coparcenaries
From following discussion it is apparent that a Hindu coparcenary is a narrower term
than a Hindu joint family.

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Under the Hindu Law there are two distinct concepts being those of
(i) A Hindu Undivided Family and
(ii) A Hindu coparcenary.
(i) Hindu Undivided Family or an HUF :
<Note that for whatever reason Dayabhaga joint family is not in syllabus.
HUF simply means a Hindu family consisting of all persons lineally descended
from a common male ancestor together with their wives and unmarried daughters.
Thus, the term Family signifies group of people or plurality of members mutually
related by blood or by marriage or by adoption.
Since 2005 amendment in Hindu Succession Act 1956, neither is it necessary that
there must be two existing male members to constitute a Hindu joint family nor is
it necessary that there must be at least one existing male member in the family to
constitute a HUF.
(ii) A Hindu coparcenary :
A Hindu coparcenary, under Mitakshara School of Hindu Law, consists of a common
male ancestor together with his lineal descendants in the male line within three
generations (degrees) next to him or within four generations/degrees inclusive
of such ancestor, in unbroken line of male descent.
No coparcenary can commence without, a common male ancestor, though after his
death, it may consist of collaterals like brothers, uncles and nephews, cousins, etc.
Thus, a Hindu coparcenary will include a common male ancestor, his sons, his
grandsons and his great-grandsons.
These male persons, three generations next to the holder of joint/ coparcenary
property are coparceners or the members of Hindu coparcenary (under Mitakshara
School) and they acquire by birth an interest in the coparcenary property.
A coparcener has a right to enforce partition of coparcenary property.
Coparcenary is purely a creation of law that cannot be created by act of parties,
except by adoption.
In order to be able to claim a partition, it does not matter how remote from the
common ancestor a person may be, provided he is not more than four degrees
removed from the last male owner who has himself taken an interest by birth.

No Joint family Coparcenary

1 Both Males and Females are Only male member are the members

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the members of the joint of Coparcenary.


family

2 There is no limitation of In Coparcenary, Males upto four


degrees or generations with degrees (including senior most male)
regard to the membership of or generations from the senior most
the Joint Family. male members are the members of
the Coparcenary.

3 Some members, i.e. Female In Coparcenary all members have the


members have no right by right in the property by birth.
birth in the property.

4 Certain females like Fathers In Coparcenary all the members have


wife, Mother, Grandmother the right to demand partition.
etc. have no right to demand
partition.

5 The membership of Joint A Coparcenary is, much narrower


Hindu Family is acquired by body and it includes only those
birth or by marriage and persons who acquired by birth or in
consists of all persons literally exceptional case adoption by sons.
descended from a common
ancestor and their wives and
unmarried daughters.

6 Every joint family is not a Every Coparcenary is a Joint Family.


Coparcenary.

7 A Joint Hindu family shall A Coparcenary may come to an end


constitute even after the with the death of the last coparcener
death of Manager/male/Karta or sole surviving coparcener.
and consisting only females.

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Conclusion :
Hindu coparcenary is certainly narrower and different than a HUF. Coparcenary is a
narrow body of persons within a joint family.

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Differences between Mitakshara and Dayabhaga :


Answer :
Refer :
http://www.shareyouressays.com/117190/what-are-the-structural-differences-
between-mitakshara-and-dayabhaga-coparcenaries
In Dayabhaga, sons do not acquire any right by birth :
Under the Mitakshara law as it existed prior to the 2005 Amendment of the Hindu
Succession Act, each son acquired, at his birth, an interest equal with his father, in
all ancestral property held by the father, and on the death of the father, the son got
this property, not as his right, but by survivorship.
However, under the Dayabhaga law, the sons do not acquire any interest in the
ancestral property by birth. Their rights arise, for the first time, on the death of the
father. Even on his death, they take the fathers property, whether separate or
ancestral, as heirs, and not by survivorship.
Since the Dayabhaga sons do not take any interest in the ancestral property as
long as the father is alive, there can be no coparcenary, in the strict sense of
that term, between the father and his sons under the Dayabhaga law.
In Dayabhaga father has absolute power to dispose of ancestral property :
under the Mitakshara law, the powers of a father to dispose of ancestral property
are limited.
However, Section 30 of the Hindu Succession Act, 1956, enables a male Hindu in
a Mitakshara coparcenary to dispose of his interest in a coparcenary property by
will.
Since under the Dayabhaga law, the sons do not acquire any interest by birth in the
ancestral property, the father can dispose of such property (whether movable or
immovable) by sale, gift, will or otherwise, in the same way as he can dispose of
his separate property.
Hindu Succession Act also recognises, in effect, the right of a male Hindu
governed by the Dayabhaga law to dispose of his interest in coparcenary
property by will.

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Dayabhaga gives no right of partition or accounts against the father :


under the Mitakshara law the sons cannot demand a partition of ancestral property
from the father
Under the Dayabhaga law, the sons cannot demand a partition of ancestral
property from the father. Nor can they call for accounts of the management from
the father.
Under the Dayabhaga system, the father is the absolute owner of all the
property, and he can manage it in any way he likes.
Concept of ancestral property is SAME under the Mitakshara as well as Dayabhaga law
:
Ancestral property is that property which is inherited from a father, fathers father,
or fathers fathers father.
Coparceners according to the Dayabhaga law :
Under the Mitakshara law, when a son is born, immediately the father and son
became coparceners.
Not so in Dayabhaga. Foundation of a coparcenary is laid only on the death of the
father. As long as the father is alive, there is no coparcenary, in the strict sense of
that term, between the father and his male issues. It is only when he dies, leaving
two or more male issues, that the coparcenary is first formed
Illustration : A dies leaving a son B, who has two sons, and D.
In this case, the son, B, will not form a coparcenary along with the grandsons,
and D.
succeeds to the separate or ancestral property left by A.
and D do not get any interest in ancestral property by birth. However, when
dies, and D will together succeed to such property, and they will form a
coparcenary under the Dayabhaga law.
Males and females as coparcenars :
Under the Mitakshara law before the 2005 Amendment, no female Hindu could be a
coparcener.
Even before 2005 amendment in Hindu Succession Act, a coparcenary under the
Dayabhaga law can of males as well as females.
Until 2005 amendment, Females could not be Karta under Mitakshara as well as
Dayabhaga laws. Thus, before 2005 if a male died leaving NO male child and
two/more daughters, such daughters would not constitute a coparcenary.
What is included in coparcenary property ?
In BOTH, Mitakshara law ass well as Dayabhaga law, coparcenary property may
consist of (i) ancestral property, or (ii) joint acquisition or (iii) property thrown into

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the common stock, or (iv) property which represents accretions to such property.
However, under the Mitakshara law, the children of the coparceners take interest by
birth in the coparcenary property.
while under the Dayabhaga law, every coparcener takes a definite share in the
coparcenary property. And like his separate property, it passes by succession to his
heirs and not by survivorship to the remaining coparceners.
Each coparcener takes a defined share :
The essence of a coparcenary under the Mitakshara law is unity of ownership.
On the other hand, the essence of a coparcenary under the Dayabhaga law is unity
of possession, and there is no unity of ownership at all.
Fluctuating share and fixed share :
In the Mitakshara system, a coparcenar has a fluctuating share, which fluctuates
with births and deaths in the family.
The ownership of the coparcenary property, under the Dayabhaga system, is not in
the whole body of coparceners. Rather, every coparcener takes a defined share in
the property, and he is the owner of that share. Even before a partition of the
property, a coparcener under the Dayabhaga system can say with certainty that he
is entitled to a particular share (say, for example, 1/3 or 1/4) of the property.
No right of survivorship :
As every coparcener under the Dayabhaga law takes a defined share of the
coparcenary property, on his death, his share will pass to the heirs, and not to the
other coparceners by survivorship.
Absolute power of coparcener to dispose of his share :
In Mitakshara, a coparcenar ask for partition of the joint property, but can not
alienate his share by sale or mortgage.
Since every coparcener under the Dayabhaga law takes a defined share of the
coparcenary property, it follows that a coparcener can alienate his share by sale or
mortgage or dispose it of by gift or by will, in the same manner as he can dispose
of his separate property.
Enjoyment power of coparcenary property :
In Mitakshara laws, a coparcenar does not get exclusive enjoyment of joint
property.
Since every coparcener under the Dayabhaga law takes a definite share in the
coparcenary property, he is entitled to make any use he likes of the portion of the
coparcenary property in his possession. It has been held that he can even lease out
his share and put the lessee in possession thereof.
Right to enforce partition :

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As under the Mitakshara law, so also under the Dayabhaga law, every adult
coparcener has a right to call for and enforce a partition of the joint family.
Note that under Dayabhaga laws, until, father is alive, his children can NOT
enforce partition.
Powers of Manager :
From the several judicial decisions on the point, it can be concluded that the
powers of a manager under the Dayabhaga law are the same as those of a
manager under the Mitakshara law.
He can contract a debt for a joint family purpose, and a decree passed against him
for such a debt will bind the other members, although they are not parties to the
suit.
He can also mortgage the family property for the purposes of the family business.
Presumption as to coparcenary property :
The presumptions with regard to joint family and joint family property under the
Mitakshara law and Dayabhaga law are same.
However, it may be noted that there is no presumption under the Dayabhaga law
that property purchased by a son in his name in the fathers lifetime, and which has
been in the possession of the son ever since the purchase, is joint family property.
The burden of proof in such a case lies on those who deny the ownership of the
son.
Widows Right to Inherit :
Mitakshara system that several undivided brothers are like joint tenants, each
having an unascertained interest in the whole of the joint property, so that when
on the death of one of the brothers, the joint property belongs exclusively to the
survivors. This does not leave any no right of survivorship to the widow to
succession in her husband's share in joint property. ie The widow is entitled to
inherit her deceased husbands share in ancestral property ONLY when husband
dies leaving behind (i) no male issue and (ii) husband got ancestral property
partitioned before his death.
Under the Dayabhaga system, the widows inheritance is not determined by
whether he died separated or united. By granting the widow the right to inherit
her deceased husbands property when he leaves behind no male issue, the
Dayabhaga school dilutes the heavily patriarchal system prevalent in India at the
time.
Mitakshara system lays out that the sons do have an interest since birth in their
fathers self acquired property, be it movable or immovable.
According to the Dayabhaga, the father is given absolute rights over his self-
acquired property and sons have no inherent interest in it (atleast during his

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lifetime of the father). Therefore, the father possesses the right to dispose of his
self acquired property in a manner he chooses, without involving his sons. He
may also decide to divide it amongst his sons at will in a proportion determined
by him.
Both schools the Dayabhaga and the Mitakshara concur and state, on the basis of
the Yajnavalkas, that when a person divides his property whilst he is alive, he must
treat both his son as well as his wife alike. He must give his wife an equal share
as that given to his son
Table of differences between Mitakshara and Dayabhaga Coparcenary :
Above discussion can be put in tabular form as follows : <work on this>

Mitakshara Dayabhaga

Right of a son by birth in the ancestral A son is entitled to his ancestral


property equal to the interest of his property only on the death of his
father. father. The father is the absolute owner
of his property in his lifetime.

A son becomes coparcener right after A son becomes coparcener by death of


his birth. His right is applicable to the his father. This right is not available
property of his grandfather and grand- within the property of his father,
grandfather. grandfather or grand-grandfather.

Everyone is entitled to the property as Everyones share is defined. There is


a unit. Their shares are not defined. tenancy-in-common.
They have only the commodity of
ownership. There is joint-tenancy.

One cannot transfer his share to the One can transfer his share.
third party.

The joint-property can be partitioned. As the shares are defined, one can
In that case, it will be partitioned as it easily partition with his share.
was in case of the father.

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

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Hindu Women in Coparcenary Property : Hindu Succession (Amendment) Act, 2005 :


Answer :
Refer :
https://www.lawctopus.com/academike/interest-of-hindu-women-in-coparcenary-
property-under-hindu-succession-act-2005/
Intro :
India has been a patriarchal society where women had been unfairly discriminated
against. This was reflected in laws like the Hindu Succession Act, 1956, which did
not give women a birth right in the joint family property under Mitakshara
coparcenary as well as Dayabhaga coparcenary.
The Hindu Succession Act was amended in 2005 with a view to re-affirm the
equality granted to women under Article 14 of the Constitution. The amendment
provided daughters equal rights in coparcenary property on birth, at par with sons.
After the amendment, daughters have the same rights and liabilities as sons. In
case of a notional partition, daughters have been given equal rights.
Giving women rights in coparcenary property has made them secure economically
and has provided them stability.
Equality under the Constitution of India :
The framers of the Indian Constitution took note of the adverse and hidebound
place of women in society and displayed unique concern to make sure that the
State took positive steps to give them equal status. Articles 14, 15 and 16 of the
Constitution not only deter discrimination against women, but also in appropriate
circumstances provide a free hand to the State to deliver protective discrimination
in favour of women.
Hindu Succession (Amendment) Act, 2005 :
The Hindu Succession Amendment Act, 2005 was enacted to enlarge the rights of a
daughter- both married and unmarried and to bring her at par with a male member
of a joint Hindu family governed by the Mitakshara law. It also sought to bring the
female line of descent at an equal level with the male line of descent, including
children of pre-deceased daughter of pre-deceased daughter.
By this amendment, the daughter is a coparcener in her own right and has the
same rights and liabilities in the coparcenary property as the son. This means a
daughter along with a son is liable for debts of joint family. The daughter is also
entitled to dispose of her share of the coparcenary property thereof by way of a
will.
The basic concept of coparcenary is that only male members of a joint Hindu family
can constitute a coparcenary, completely excluding the female members of the
family, This concept has been substantially modified with the amendment of

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Section 6 of the Act. Although the daughter has been included as a coparcener by
way of this amendment the wife, mother and widow still cannot be admitted to the
coparcenary.
The courts have played a vital role in making this amendment effective by
interpreting it liberally and bringing in the concept of notional partition, without it
being expressly mentioned in the amended section.
In Gurupad vs. Hirbai,[ix] Supreme Court observed that
ignoring a womans right to get a share at the time of notional partition
essentially means that: One unwittingly permits ones imagination to boggle
under the oppression of the reality that there was in fact no partition between
the plaintiffs husband and his sons. The fiction created by Explanation I has to
be given its full and due effect.
In M. Yogendra and Ors. vs. Leelamma N. and Ors., the Supreme Court held that
The Act indisputably would prevail over the Hindu Law. We may notice that the
Parliament, with a view to confer right upon the female heirs, even in relation to
the joint family property, enacted Hindu Succession Act, 2005.
In G. Sekar vs. Geetha and Ors[xii]., the Supreme Court held that :
It is, therefore, evident that the Parliament intended to achieve the goal of
removal of discrimination not only by Section 6 of the Act but also by conferring
an absolute right in a female heir to ask for a partition in a dwelling house wholly
occupied by a joint family as provided for in terms of Section 23 of the Act.
Women as absolute owners of property
Section 14 : Hindu Succession Act 1956 : Section 14 reads Property of a female
Hindu to be her absolute property:
(1) 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.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by
way of gift or under a will or any other instrument or under a decree or order of
a civil court or under an award where the terms of the gift, will or other
instrument or the decree, order or award prescribe a restricted estate in such

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property.
A plain reading of the section 14 reveals that female Hindu is conferred the
absolute right to her property.
In Komalam Amma vs. Kumara Pillai Raghavan Pillai and Ors,[xiii] the Supreme
Court has laid down that
Maintenance, as we see it, necessarily must encompass a provision for
residence. Maintenance is given so that the lady can live in the manner, more or
less, to which she was accustomed.
The concept of maintenance must, therefore, include provision for food and
clothing and the like and take into account the basic need of a roof over the
head.
Provision for residence may be made either by giving a lump sum in money, or
property in lieu thereof. It may also be made by providing, for the course of the
ladys life, a residence and money for other necessary expenditure.
In G. Sekar vs. Geetha and Ors, it was held that-
The Act brought about revolutionary changes in the old Hindu Law. It was
enacted to amend and codify the law relating to intestate succession amongst
Hindus. By reason of the Act, all female heirs were conferred equal right in the
matter of succession and inheritance with that of the male heir.
By way of Section 14, a woman who had limited interest in the property but was
possessed of the same was to become absolute owner.
Section 23 of the Indian Succession Act has been omitted so as to remove the
disability on female heirs contained in that Section.
Section 23 did not allow married daughters (unless separated, deserted or
widowed) even residence rights in the parental home.
Unmarried daughters had residence rights but could not demand partition.
The omission gives all daughters (married or not) the same rights as sons to
reside in or seek partition of the family dwelling house.
Section 24 : The Act also deleted Section 24, which barred certain widows, such as
those of predeceased sons, from inheriting the deceaseds property if they had
remarried. Now they can so inherit.
Main provisions of the Hindu Succession (Amendment) Act, 2005 :
In a Hindu Joint Family governed by Mitakshara law, the daughter by birth shall
become a coparcener in her own right in the same manner as a son.
She would have the same rights in the coparcenary property as that of a son.
She shall be subject to same liabilities in respect of the said coparcenary property
as that of a son.

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Any reference to a Hindu Mitakshara coparcener shall be deemed to include a


reference to a daughter as a coparcener.
Any property to which a female Hindu becomes entitled shall be held by her with
the incidents of coparcenary ownership and cannot be disposed of by her by
testamentary disposition.
In case of notional partition:
The daughter is allotted the same share as is allotted to a son;
The share of the pre-deceased son or a pre-deceased daughter shall be allotted
to the surviving child of such pre-deceased son or of such pre-deceased
daughter;
The share of the pre-deceased child of a pre-deceased son or of a predeceased
daughter, shall be allotted to the child of such pre-deceased child of the pre-
deceased so or a pre-deceased daughter, as the case may be.
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.
After the commencement of the Amendment Act, there shall be no obligation on
the 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.
Discussion of effect of changes :
Making all daughters (including married ones) coparceners in joint family property-
is also of great importance for women, both economically and symbolically.
Economically, it can enhance womens security, by giving them birthrights in
property that cannot be willed away by men. In a male-dominated society, where
wills often disinherit women, this is a substantial gain.
Symbolically, all this signals that daughters and sons are equal members of the
family. It undermines the notion that after marriage the daughter belongs only to
her husbands family. If her marriage breaks down, she can return to her birth
home by right. This enhances her self-confidence and social worth and gives her
greater bargaining power for herself and her children, in both parental and marital
families.
Conclusion :
These amendments can empower women- both economically and socially and have
far-reaching benefits for the family and society.
Independent access to property can reduce a woman and her familys risk of
poverty, improve her livelihood options, and enhance prospects of child survival,
education and health.

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Women owning land or a house also face less risk of spousal violence. Any land in
womens names can increase productivity by improving credit and input access for
numerous de facto female household heads.
It is clear that amendment to the Hindu Succession Act has made the daughter a
member of the coparcenary. These are significant advancements towards gender
equality.
Making all daughters coparceners likewise has far-reaching implications. It gives
women birthrights in joint family property that cannot be willed away.
Rights in coparcenary property and the dwelling house also provide social
protection to women facing spousal violence or marital breakdown, by giving them
a potential shelter. Millions of women as widows and daughters and their
families

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Explain in detail : (i) Mitakshara coparcenary, (ii) Dayabhaga coparcenary.


Discuss : formation and incidents of Mitakshara coparcenary. (Mar-2014)
Discuss : formation and incidents of Dayabhaga coparcenary. (Mar-2014)
Explain the coparcenery property under the Hindu Law and state its characteristis.
(Oct-2012)
Write short note : Coparcenery property. (Apr-2012, Mar-2015)
Answer :
Refer :
https://en.wikipedia.org/wiki/D%C4%81yabh%C4%81ga
v good - https://articlesonlaw.wordpress.com/2014/10/23/practical-questions-on-
ancestral-property-answers-with-support-of-the-high-courts-and-the-supreme-
court-rulings-part-i/
https://www.lawctopus.com/academike/interest-of-hindu-women-in-coparcenary-
property-under-hindu-succession-act-2005/
http://www.shareyouressays.com/117746/what-are-the-characteristic-features-of-
mitakshara-coparcenary
http://shodhganga.inflibnet.ac.in/bitstream/10603/54475/9/09_chapter%202.pdf
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=738d295a-bce4-
45b8-b908-51dd762d6f70&txtsearch=Subject:%20Family%20Law
Mitakshara School :

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Under the Mitakshara law, on birth, the son acquires a right and interest in
the family property. A son, grandson and a great-grandson form a class of
coparceners-based on birth in the family. Under this system, joint family property
devolves by survivorship within the coparcenary. This means that with every birth
or death of a male in the family, the share of every other surviving male either gets
diminished or enlarged.
Incidents of Coparcenary Property under Mitakshara School :
Four generation rule The lineal male descendants of a person, up to third
generation (excluding him), acquire on birth, an interest in the coparcenary
property.
Creation of law- Coparcenary is a creation of law and CANNOT be formed by an
agreement between the parties.
Only males No stranger can be introduced in the coparcenary. Only a male
child, born in the family or validly adopted, can become a coparcener. Since
2005 amendment, discrimination against female child has been removed.
Collective enjoyment The proceeds of undivided family must be brought to the
common chest or purse and then dealt with according to the modes of
enjoyment by the members as an undivided family till a partition takes place
because they hold everything jointly.
Acquisition of interest by birth A coparcener in a joint family is born with an
interest in the coparcenary property which means that the moment he is born in
the family he gets a right by birth in the ownership of the coparcenary property.
Fluctuating and not a specific interest A coparcener on birth gets an interest in
the coparcenary property. His interest in the property is not a specific share and
is subject to fluctuation with the deaths and births of other coparceners in the
family.
For example, a joint family comprises a father and two sons. Each of these is
a coparcener and entitled to one- third share in the coparcenary property but
on the death of any one coparcener, it will fluctuate and will increase.
Doctrine of Survivorship Under the traditional law, on the death of a
coparcener, his interest in the family property is immediately taken by those
coparceners who survive him. This phenomenon is called doctrine of
survivorship.
Alienation of undivided interests Generally, a coparcener is individually not
entitled to alienate his undivided interest in the coparcenary property. Only in
certain situations the father or senior most male member or the karta can
alienate the undivided interest or even the whole property.
Supreme Court : 6 Essential Characteristics of Hindu Coparcenary : In CED v. Alladi
Kuppuswamy[1977] 108 ITR 439 (SC), the Apex Court has held that Hindu

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coparcenary has six essential characteristics, namely :


(1) that the lineal male descendants up to the third generation acquire an
independent right of ownership by birth and not as representing their ancestors;
(2) that the members of the coparcenary have the right to work out their rights
by demanding partition;
(3) Unity of Ownership : that until partition, each member has got ownership
extending over the entire property conjointly with the rest. Ownership of
property is not vested in a single coparcener. It is vested in whole body of
coparcenary. According to the true notion of an undivided family governed by the
Mitakshara law, no individual member of that family whilst it remains undivided,
can predicate, of the joint and undivided property, that he has a definite share.
(4) that as a result of such co-ownership the possession and enjoyment of the
property is common;
(5) that there can be no alienation of the property without the concurrence of
the other coparceners unless it is to be for legal necessity; and
(6) that the interest of a deceased member lapses on his death and merges in
the coparcenary property.
It should be noted that the last characteristic is subject to the provisions of
the Hindu Succession Act, 1956 which assumes a notional partition if a Hindu
Coparcener governed by the Mitakshara School of Law dies intestate and is
survived by a female relative in Class I.
Other characteristics of Mitakshara School :
A. The moment a person is born in the family, he acquires an interest in the
coparcenary property in the sense that he has a right of common enjoyment and
common use of all the properties, and assumes the membership of the
community.
B. Indeterminability of Shares : The interest of a coparcener in the coparcenary
property is a fluctuating interest which is liable to diminish with the birth and
bound in increase with the death of any coparcener in the family.
So long the family remains united; no individual coparcener can predicate that
he has a definite share in the property of the family.
In Commissioner of Gift-tax v. N.S. Getty Chettiar, the Court upholding the
above view held that
so long the family remains undivided; no individual coparcener can claim
any specific share in the joint family property. All the coparceners are the
owners of entire joint family property. Their shares can be specified only
after the partition is effected in the joint family. The share of any
coparcener is thus unpredictable and unspecified before partition.

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C. Exclusion of Females : (UNTIL 2005 amendment in Hindu Succession Act


1956)
In Mitakshara coparcenary no female can be its members, though they are
members of joint family.
Even the wife who is entitled to maintenance enjoys only the right to
maintenance but she can never become a coparcener.
Thus a female does not have the right to demand partition. Since she is not a
coparcener, she cannot become the Karta of the family. An alienation of the
property of the joint family by her will not be binding on her sons and
daughters. The alienation of her own share is not binding upon herself.
D. Devolution by Survivorship:
One of the distinctive features of coparcenary is that the coparcenary interest
of a coparcener in coparcenary property on his death does not devolve on his
heirs by succession but on the other hand it passes by survivorship to the
other coparceners.
Thus right by birth and right of survivorhsip are necessary incidents of
community of interest and unity of ownership, which signify joint possession
not an exclusive possession
E. Right of Maintenance:
All the members of coparcenary are entitled to maintenance by birth out of
joint family property.
They continue to enjoy this right so long the coparcenary subsists.
Where any member fails to get any share on the coparcenary property even
after partition he retains the right of maintenance.
Some special provisions have to be made for them at the time of partition.
Female members and other male members who do not get a share on
partition such as unmarried daughters, idiots or lunatics, are entitled to
maintenance out of joint family property.
Unmarried daughters have a right to be married out of joint family funds.
F. Where a coparcener married under Special Marriage Act, 1954, he is
separated from coparcenary. He can form separate coparcenary along with his
male descendants.
Summary :
Mitakashara school of Hindu law recognises a difference between ancestral
property and self-acquired property. It also recognises a coparcenary.
A coparcenary is a legal institution consisting of three generations of male heirs
in the family. Every male member, on birth, within three generations, becomes a

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member of the coparcenary.


This means that no persons share in ancestral property could be determined
with certainty. It diminished on the birth of a male member and enlarged on the
death of a male member.
One of the coparceners, generally the senior, was the kartar, that is, the
manager. Women could never become members of the coparcenary.
Any coparcener had the right to demand partition of the joint family. Once a
partition took place, a new coparcener would come into existence, namely the
partitioned member, and the next two generations of males would form the new
coparcenary.
As the member who sought a partition got his property from his ancestors, the
property became ancestral property and hence capable of being coparcenary
property.
Coparcenary rights does not exist in self-acquired property, which was not
thrown into the common hotchpotch of the joint family.
Thus the concept of a birthright, at which a person acquires rights on his birth
even if the ancestor is still alive, is fundamental to an understanding of the
coparcenary. In fact, the birth of a male child diminishes the right of the
ancestor instantly, as each coparcener has an equal share in the undivided
whole.
As contrasted with this, inheritance, whether testamentary or intestate, is a right
that accrues on the death of a person. Inheritance can only be in that property
which a man leaves on his death. Until then, a person has an unrestricted right
to enjoy the property or alienate it.
Dayabhaga School :
Both schools of medieval Hindu law the Dayabhaga and the Mitakshara are based
on the texts of the learned sage Manu. They are merely different interpretations of
the same treatise.
The Dyabhga is a Hindu law treatise written by Jmtavhana which primarily
focuses on inheritance procedure.
Dayabhaga prevails in West Bengal, Assam, Tripura and in most parts of Orissa
Due to the passage of the Hindu Succession Act of 1956 and subsequent revisions
to the act, both the schools of Hindu Laws are less relevant.
The Mitks
ar, which was developed first, represents the orthodox doctrine of
Hindu law, while the Dyabhga represents the reformed version developed after
Jmtavhana's critical study of Mitks
ar.
It must be noted that the approach adopted by both schools is radically different.
The difference really stems from the interpretation of who is a sapinda.

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Both schools concur on the principle that property should be inherited by the
sapindas, but the definition of the word itself given by the schools is different.
According to the Mitakshara system it means one that has the same body which
can be construed as a close relative who is a descendent of a common ancestor.
But such descendence should always be from the male line.
Thus, in this system only agnates have the right to inherit. There distance in
relationship is not a factor determining inheritance but their sex does play an
important role. In this system, for example, property of the deceased may
devolve upon a distant male cousin but not to his own daughters son.
The Mitakshara system founded by Vijaneswara, following a rigid
patriarchal system based such a theory on the principle established by the
school of the Black Yajurveda" which quoted Nirindriya hyadayadah strio
nritam" as the reason backing it. This can be translated as women are
generally incompetent and do not have the power to inherit"
Such a rigid patriarchal system was not agreeable to Jimutvahana who
founded the Dayabhaga sytem.
According to him, sapinda is any relative who can offer pindas, the balls of
rice offered during the funeral of the deceased.
Apart from agnates, this would also include cognates, the women in the family
as well, allowing them to freely inherit property.
The Dayabhaga School bases its law of succession on the principle of religious
efficacy or spiritual benefit. It means that the one who confers more religious
benefit on the deceased is entitled to inheritance in preference to the others who
confer less benefit.
Under the Dayabhaga School, the distinction between unobstructed and obstructed
heritage does not exist as the principle of son's birth right is not recognized and all
properties devolve by succession on the all properties devolve by succession on the
demise of the father.
ie So long as the father is alive, he is the master of all properties whether
ancestral or self acquired.
Dayabhaga coparcenary comes into existence for the first time on the death of the
father. When sons inherit their father's property, they constitute a coparcenary. And
if son dies leaving behind a widow or daughter without a son, then she will succeed
and become a coparcener.
Thus under Dayabhaga school a coparcenary could consist of males as well as
females. The only difference between a male and a female coparcener was that
the property in the hands of a female coparcener was her limited estate and
after her death the property passed not to the heirs, but to the next heir of the
male from whom she inherited.

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According to the Dayabhaga School, the son does not acquire an interest by birth in
ancestral property. Sons right arises only on the death of his father. On the
death of the father he takes such property as is left by him whether separate or
ancestral, as heir and not by survivorship.
<Exclusive internet contents on Mitakshara are easily available. However, it is
difficult to find exclusive internet contents on Dayabhaga. Almost always, there is
comparison with Mitakshara. -----> Read the part of Dayabhaga School from
Differences between Mitakshara and Dayabhaga discussed elsewhere in this doc>

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Discuss : Position, powers privileges and obligations of Karta of joint family.


Write short note : Powers of karta. (Apr-2012, Oct-2012, Apr-2013, Mar-2014, Mar-
2015)
Answer :
Refer :
https://bharatchugh.wordpress.com/2012/08/24/all-you-need-to-know-about-
hindu-law-property-joint-hindu-familycoparcenoryancestral-self-acquired-property/
http://www.legalserviceindia.com/articles/karta_hsa.htm
https://blog.ipleaders.in/karta-hindu-joint-family-powers-responsibilities/
Concept of Joint Hindu Family or Hindu Undivided Family (HUF A Tax term)
A Joint Hindu Family is the normal condition of Hindu Society, or atleast it was until
the last few decades.
A joint Hindu family is a group of relatives tied together by ties of kinship &
marriage and descended from a common ancestor.
A Hindu joint family consists of the common ancestor and all his lineal male
descendants upto any generation together with the wife/ wives (or widows) and
unmarried daughters of the common ancestor and of the lineal male descendants.
A joint Hindu Family is normally joint in worship/kitchen/business.
Even daughter in laws/widowed daughters who has returned back to their parental
side are part of a hindu joint family.
A joint family may encompass countless generations.
A Coparcenory :
Within the joint family there is a narrower body called the Coparcenory. This
includes the eldest male member + 3 generations.

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For eg : Son Father Grandfather Great Grandfather. This special group of


people are called coparcenors and have a definitive right in ancestral property.
This right vests in the coparcenars since the moment of their conception.
Prior to 2005 amendment, only a male progeny were coparcenors now
daughters are equally coparcenors after 2005. They can get their share culled
out by filing a suit for partition at any time.
A coparcenors interest is not fixed it fluctuates by birth and deaths in the family.
Ancestral & Self Acquired properties.
A property is ancestral when acquired through inheritance from ancestors, this
property is always shared by members of a coparcenary equally.
On the other hand property is self acquired if it is earned by own efforts/ learning
or other human endeavour. Here, the person acquiring the property is the sole
owner and nobody exercises any right on the same during lifetime of person who
acquired the property.
Karta :
A joint family is headed by a karta who is normally the eldest living male member
of the family.
Karta has some peculiar rights and obligations under traditional Hindu Law, he has
the power and duty of superintendence of how the joint family is run, who is
getting what ?, how the members are being maintained ?
He is also entitled to dispose off the property in times of dire need/necessity.
Note : After 2005 amendments by which women have been given equal proprietary
rights in ancestral property even women can be Kartas.
The English word manager is wholly inadequate in understanding unique position
of Karta of HUF.
In the entire Hindu joint family, the karta occupies a very important position. Karta
is often the eldest male member of the family. Only a coparcener can become
Karta. Since 2005 female can be a coparcenar.
Such unique is Kartas position that there is no office or any institution or any other
system of the world, which can be compared with it. Peculiarity lies in the fact that,
in terms of his share/interest, the Karta is not superior and has no superior
interests in the coparcenery. If partition takes place he is entitled to take his
share.
He is a person with limited powers, but, within the ambit of his sphere, he
possesses such vast powers as are possessed by none else.
His position is recognized /conferred by law. No stranger can ever be qualified to
be a karta, but an adopted son who is the eldest in the family can be qualified

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Who can be a Karta ?


Ordinarily the senior most male (or female, since 2005 amendment) member is the
Karta of the joint family.
Prior to 2005, female were not empowered to act as Karta. However, since
amendment in Hindu Succession Act, the daughter of coparcener shall by birth
become a coparcener in her own right in the same manner as the son.
Karta does not owe his position to agreement or consent of other coparceners. So
long as he is alive, may be aged, infirm, or ailing, he will continue to be Karta.
However, in cases of insanity or any other disqualifications, the next senior male/
female member generally takes over the Kartaship.
If all the coparceners agree, even a junior member can be a Karta.
There can be more than 2 Kartas : Two or more persons may look after the
affairs of the family; the authority is based not on any Hindu Laws but on
the members of the authority who confer faith on them. The most important
qualification required to become a Karta is that a person should be a coparcener
in the family.
Position of Karta :
The position of karta is sui generis. The relationship between him and other
members are not that of principal/ agent/ partners. He is not like a manger of a
commercial firm.
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.
Undoubtedly, he is the master of the grand show of the joint family and manages
all its affairs and its business. His power of management is so wide and almost
sovereign that any manager of business firm pales into insignificance.
At the same time, the karta stands in a fiduciary relationship with the other
members but he is not a trustee.
Ordinarily a Karta is accountable to none. Unless charges of fraud,
misrepresentation or conversion are leveled against him.
He is the master and none can question as to what he received and what he spent.
He is not bound for positive failures such as failure to invest, to prepare accounts,
to save money.
Karta may discriminate i.e. he is not bound to treat all members impartially.
He is not bound to pay income in a fixed proportion to other members.
However large powers a karta might have, he has blood ties with other members of
the family. After all he has liabilities towards members. Any coparcener can at any
time ask for partition.

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Karta obtains no reward for his services and he discharges many onerous
responsibilities towards the family and its members. His true legal position can be
understood only when we know the ambit of his powers and liabilities.
Obligations / Liabilities / responsibilities of a Karta :
Maintenance : The most basic duty of a Karta is to provide food, shelter, clothing,
etc. to the members of the joint family.
All coparceners, from the head of the family to the junior most members, have
the inherent right to maintenance. It is the responsibility of the Karta to
maintain all the members of the family. Those who would be entitled to share
the bulk of property are entitled to have all their necessary expenses paid out of
its income.
If he unjustly excludes a member from getting maintenance or if he does not
maintain a member properly, he can be sued for both, the maintenance and
arrears of maintenance.
Marriage :
The Karta is responsible for each unmarried members marriage, especially the
marriage of daughters since it qualifies as a sacrosanct duty in Hindu law.
The expense of the marriage is taken out of the joint family property. If the
expenses are met externally, they must be reimbursed out of the joint family
funds.
Duty to Spend Reasonably:
It is the duty of the Karta to spend the joint family funds only for the purposes of
the family. He must spend reasonably. If he spends unreasonably and it is not
approved by other members of the family, the remedy would be to demand
partition.
Accounts at the time of Partition :
Partition means bringing the joint status to an end.
On partition, the family ceases to be a joint family. Under the Mitakshara law,
partition means two things :-
(a) Severance of status /interest, and
(b) Actual division of property in accordance with the shares so specified,
known as partition by metes and bounds (system of describing real property
by measurements and boundaries).
The former is a matter of individual decision, the desire to sever himself and
enjoy the unspecified and undefined share separately from others while the
latter is a resultant consequent of his declaration of intention to sever but which
is essentially a bilateral action.

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Taking of accounts means an enquiry into the joint family assets. It means
preparing an inventory of all the items of the joint family property.
The Mitakshara Karta is not liable to accounts and no coparcener can even at the
time of partition, call upon the karta to account his past dealings with the joint
family property unless charges of fraud, misappropriation/conversion are made
against him. Eg when a coparcener suing for partition is entirely excluded from
the enjoyment of property he can ask for accounts.
Representation :-
The karta represents the family. He is its sole representative vis-a vis the
government and all outsiders and in that capacity he has to discharge many
responsibilities and liabilities on behalf of the family.
He has to pay taxes and other dues on behalf of the family and he can be sued
for all his dealings on behalf of the family with the outsiders.
Powers of Karta :
Powers of Karta are vast and limitations are few. The ambit of his powers can be
considered under two heads :-
(A) power of alienation of joint family property,
(B) other powers.
In the former case, his powers are limited since a karta can alienate in
exceptional cases. In the latter case his powers are large, almost absolute.
(A) power of alienation of joint family property :
Although no individual coparcener, including the karta has any power to dispose
of the joint family property without the consent of all others, the Dharma
Shastra recognizes it that in certain circumstances any member has the power to
alienate the joint family property.
The Mitakshara is explicit on the matter. According to Vijnaneshwara :
....even one person who is capable may conclude a gift, hypothecation or sale
of immovable property, if a calamity (apatkale) affecting the whole family
requires it, or the support of the family (kutumbarthe) render it necessary, or
indispensable duties (dharmamarthe), such as obsequies of the father or the
like, made it unavoidable.
The formulation of Vijnaneshwara has undergone modification in two respects :-
Accordingly, The power cannot be exercised by any member except the karta.
The joint family property can only be alienated for three purposes :-
(a) Apatkale (Legal Necessity)
(b) Kutumb arthe (Benefit of Estate)

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(c) Dharmam arthe (Religious obligations)


(a) Legal Necessity : Apatkale :
It cannot be defined precisely. The cases of legal necessity can be so
numerous and varied that it is impossible to reduce them into water tight
compartments.
Loosely speaking it includes all those things, which are deemed necessary for
the members of the family.
What need to be shown is that the property was alienated for the satisfaction
of a need. The term is to be interpreted with due regard to the modern life.
Where the necessity is partial, i.e. where the money required to meet the
necessity is less than the amount raised by the alienation, then also it is
justified for legal necessity.
Dev Kishan v. Ram Kishan AIR 2002 Raj 370
Facts:- Ram Kishan , the plaintiff filed a suit against appellants, defendants.
Plaintiffs and defendants are members of a Joint Hindu Family. Defendant
no.2 is the karta, who is under the influence of defendant no.1 has sold and
mortgaged the property for illegal and immoral purposes as it was for the
marriage of minor daughters Vimla and Pushpa. The defendants contention
was that he took the loan for legal necessity.
Judgment: - The debt was used for an unlawful purpose. Since it was in
contravention of Child Marriage Restraint Act, 1929, therefore it cannot be
called as lawful alienation.
(b) Benefit of Estate : Kutumb arthe :
Broadly speaking, benefit of estate means anything, which is done for the
benefit of the joint family property.
There are two views as to it.
One view is that only construction, which is of defensive character, can be a
benefit of estate. This view seems to be no longer valid.
The other view is that anything done which is of positive benefit, will
amount to benefit of estate. The test is that anything which a prudent
person can do in respect of his own property.
(c) Indispensable Duties : Dharmam arthe :
This term implies performance of those acts, which are religious, pious, or
charitable.
Vijnaneshwara gave one instance of Dharmam arthe, viz., obsequies of the
father and added or the like. It is clear that this expression includes all other
indispensable duties such as sradha, upananyana, and performance of other

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necessary sanskars.
For the discharge of indispensable duties the karta may even alienate the
entire property.
A karta can even alienate a portion of the family property for charitable/pious
purposes. However, in this case, the powers of the karta are limited i.e. he
can alienate a small portion of the joint family property, whether
movable/immovable.
Note :
Alienation Is Voidable : It may be taken as a well-settled law, that alienation
made by karta without legal necessity / benefit of estate/ discharge of
indispensable duties is not void but merely voidable at the instance of any
coparcener.
Separate Property : It is now settled that the karta can alienate the joint
family property with the consent of the coparceners. Alienation without the
consent of the coparcener, which is not for legal necessity, is void.
It is well established that there is no presumption under Hindu Law that a
business standing in the name of any member of the joint family is a joint
family business even if that member is the manager of the joint family. Unless
it could be shown that the business in the hands of the coparcener grew up
with the assistance of the joint family property or joint family funds or that
the earnings of the business were blender with the joint family estate, the
business remains free and separate.
A Hindu, even if is is a member of HUF, may possess separate property. Such
property belongs exclusively to him. No other member of the coparcenary, not
even his male issue, acquires any interest in it by birth, and on his death
intestate, it passes by succession to his heirs, and not by survivorship to the
surviving coparceners.
(B) Other powers :
Powers of management :
As the head of the family, kartas powers of management are almost absolute.
He may mange the property of the family, the family affairs, the business the
way he likes, he may mismanage also, nobody can question his
mismanagement.
He is not liable for positive failures.
He may discriminate between the members of the family. But he cannot deny
maintenance /use/occupation of property to any coparcener.
The ever-hanging sword of partition is a great check on his absolute powers.
But, probably, the more effective check is the affection and the natural

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concern that he has for the members of the family and the complete faith and
confidence that members repose in him.
Right to income :
It is the natural consequence of the joint family system that the whole of the
income of the joint family property, whosoever may collect them, a
coparcener, agent or a servant, must be handed over to the karta.
It is for the karta to allot funds to the members and look after their needs and
requirements.
The income given to the karta is an expenditure incurred in the interest of the
family.
Jugal Kishore Baldeo Sahai v. CIT (1967) 63 ITR 238
The salary paid to Karta has to be held to be an expenditure incurred in the
interest of the family. The expenditure having been incurred under a valid
agreement, bonafide, and in the interest of and wholly and exclusively for
the purpose of the business of the Hindu undivided family, is allowable as a
deductible expenditure under section 37(1) of the Indian Income Tax Act,
1922 in computing the income of the Hindu undivided family.
Right to representation :
The karta of a joint family represents the family in all matters- legal, social,
religious.
He acts on behalf of the family and such acts are binding on the family.
The joint family has no corporate existence; it acts in all matters through its
karta.
Dr. Gopal v. Trimbak AIR 1953 Nag 195
In this case, it was held that a manager/ karta can contract debts for
carrying on a family business/ thereby render the whole family property
including the shares of the other family members liable for the debt.
Power of Compromise :
The karta has power to compromise all disputes relating to family property or
their management. He can also compromise family debts and other
transactions.
However, if his act of compromise is not bonafide, it can be challenged in a
partition.
He can also compromise a suit pending in the court and will be binding on all
the members, though a minor coparcener may take advantage of Order 32,
Rule 7 C.P.C., which lays down that in case one of the parties to the suit is a
minor the compromise must be approved by the court.

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Power to refer a dispute to arbitration :


The karta has power to refer any dispute to arbitration and the award of the
arbitrators will be binding on the joint family if valid in other respects.
Kartas power to contract debts
The karta has an implied authority to contract debts and pledge the credit of
the family for ordinary purpose of family business.
Such debts incurred in the ordinary course of business are binding on the
entire family.
The expression family purpose has almost the same meaning as legal
necessity, benefit of estate, or performance of indispensable and pious duties.
Loan on Promissory note :-
When the karta of a joint family takes a loan or executes a promissory note
for family purposes or for family business, the other members of the family
may be sued on the note itself even if they are not parties to the note.
Their liability is limited to the share in the joint family property, though the
karta is personally liable on the note.
Power to enter into contracts :-
The karta has the power to enter into contracts and such contracts are binding
on the family.
It is also now settled that a contract, otherwise specifically enforceable, is also
specifically enforceable against the family.
Karta of a Dayabhaga HUF :
The kartas powers and liabilities and the kartas power of alienation of property
under the Dayabhaga school are same as that of the Mitakshara karta. The main
difference between the two schools is that in case of Dayabhaga the karta must
render full accounts at all times, whenever required to do so by the coparcener,
while in case of Mitakshara the karta is required to render accounts only at the
time of partition or unless there are charges against him for
fraud/misappropriation.
Conclusion :
Analyzing the position of karta, it can be said that he has less liabilities and more
powers.
Though at the same time it cannot be said that he holds the position of a despot.
When it comes to determination of the position of karta it can be said that he holds
a unique position.
In totality it can be said that all family members are duty bound to accept what
karta says until/ unless it is detrimental to them

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GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Explain the self acquired property and state various mode by which it can be
acquired under the Hindu Law. (Oct-2012, Apr-2016)
Answer :
Refer :
v good - https://articlesonlaw.wordpress.com/2014/10/23/practical-questions-on-
ancestral-property-answers-with-support-of-the-high-courts-and-the-supreme-
court-rulings-part-i/
http://jcil.lsyndicate.com/wp-content/uploads/2016/09/Article-Self-acquired-
property-of-intestate-Hindu-female-Upasana.pdf
Self-acquired property :
What is self-acquired property ?
[C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953
AIR 495, 1954 SCR 243]
The definition is based upon the text of Yagnavalkya that whatever is
acquired by the coparcener himself without detriment to the fathers estate as
present from a friend or a gift at nuptials, does not appertain to the co-heirs.
A property is ancestral when acquired through inheritance from ancestors, this
property is always shared by members of a coparcenary equally. On the other
hand property is self acquired if it is earned by own efforts/learning or other
human endeavour. In the latter the person acquiring is the sole owner and
nobody exercises any right on the same during his lifetime.
A Mitakshara father can make a partition of both the ancestral and self-acquired
property in his hands any time he likes even without the concurrence of his sons.
The ancient Hindu Mitakshara scriptures have only articulated the rules with
respect to succession of the Joint Hindu Family property. This is because the
economic social settings of the ancient Hindu society meant that all property was a
part of the collective stock, called the Joint Hindu Family property, and thus, there
existed no concept of self-acquired property.
The Indian society has undergone massive social and economic changes since then
and these alterations were taken cognizance of by the legislators while codifying
the Shastra laws. One of the reflections of this avant garde law is the Hindu
Succession Act, 1956, (hereinafter referred to as The Act), which, in 8 2, has
provided the mode of devolution of self- acquired property of an intestate Hindu
male as well.

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However, in spite of these strides, the legislators have still failed to address the
issue of devolution of the self-acquired property of an intestate Hindu female. This
grey area in the law has resulted in ambiguities in the succession to such property
and has, more often than not, resulted in judicial interpretations that go against
justice and equity.
Case laws :
[C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953
AIR 495, 1954 SCR 243]
In the ancestral or grand fathers property in the hands of the father, the son
has equal rights with his father;
while in the self-acquired property of the father, his rights are unequal by
reason of the father having an independent power over or predominent
interest in the same.
ARUNACHALA V. MURUGANATHA [AIR 1963 SC 496]
Under the Mitakshara father had complete power of disposition of his self-
acquired property and if he made any deed of gift in favour of his son or some
other relation, there would be no presumption that the bequest was to confer
the nature of a joint family so that the property bequeathed became ancestral
in the hands of the legatee unless there were express words to indicate the
same.
Meaning of Ancestral property :-
[U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising
out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling].
Property inherited by a Hindu from his father, fathers father or fathers fathers
father, is ancestral property.
[Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20] : In
Mullas Principles of Hindu Law (15th Edition),
it is stated at page 289 : . if A inherits property, whether movable or
immovable, from his father or fathers father, or fathers fathers father, it is
ancestral property as regards his male issue. If A has no son, sons son, or sons
sons son in existence at the time when he inherits the property, he holds the
property as absolute owner thereof, and he can deal with it as he pleases .
A person inheriting property from his three immediate paternal ancestors holds
it, and must hold it, in coparcenary with his sons, sons sons and sons sons
sons but as regards other relations he holds it and is entitled to hold it, as his
absolute property. [Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983
SCR (3) 20]
Again at page 291, it is stated : The share which a coparcener obtains on

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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 issue, it passes to his
heirs by succession.
[Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099].
The Honble Supreme Court observed that Ancestral property means, as regards
sons, property inherited from a direct male lenial ancestor, and as regards
collaterals property inherited from a common ancestor .
[CASE NO.:Appeal (civil) 7122 of 1997, Ranbir singh and others Vs.Kartar Singh
and others, DATE OF JUDGMENT: 25/02/2003]
Under custom, the term `ancestral immovable property has been understood in
the sense in which it has been defined in explanation 1 to Art. 59 of Rattigans
Digest of Customary Law and under all canons of construction of statutes it will
not be permissible to resort to the dictionary in preference to this definition. The
term has a technical meaning in Hindu law and any use of the dictionary
meaning of the term in construing statutes dealing with Hindu law subjects will
be questionable. The same is the case where a statute regulates limitation for
suits under custom.
[U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising
out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling.]
The essential feature of ancestral property is that if the person inheriting it has
sons, grandsons or great-grandsons, they become joint owners coparceners with
him. They become entitled to it due to their birth.
What is separate property?
[Madanlal Phulchand Jain vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992
SCR (2) 479]
It is equally well settled that excluding the property inherited from a maternal
grandfather the only property which can be characterised as ancestral property
is the property inherited by a person from his father, fathers father, or fathers
father. That means property inherited by a person from any other relation
becomes his separate property and his male issue does not take any interest
therein by birth. Thus property inherited by a person from collaterals such as a
brother, uncle, ect., cannot be said to be ancestral property and his son cannot
claim a shre therein as if it were ancestral property. There can, therefore, be no
doubt that the property which the appellant inherited from his uncle (natural
father) was his separate property in which his major son could not claim any
share whatsoever.

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[Madanlal Phulchand Jain vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992
SCR (2) 479] : Each son upon his birth takes an interest equal to that of his father
in ancestral property
It is true that under the Mitakshara Law each son upon his birth takes an
interest equal to that of his father in ancestral property, both movable and
immoveable. This right is independent of his father.
What is coparcenery property?
[Amit Johri vs Deepak Johri & Ors. (2014), Ruling of Delhi High Court]
Coparcenary property means and includes: (1) ancestral property, (2)
acquisitions made by the coparceners with the help of ancestral property, (3)
joint acquisition of the coparceners even without such help provided there was
no proof of intention on their part that the property should not be treated as
joint family property, and (4) separate property of the coparceners thrown inot
the common stock.
[Uday Narendra Shah vs Narendra Amritlal Shah, NOTICE OF MOTION (L) NO. 2347
OF 2013 IN SUIT (L) NO. 1069 OF 2013. Bombay High Court ruling]
Coparcenary property. The expression Coparcenary property includes property
in which the deceased husband had an interest as a joint owner during his life
time and, therefore, ancestral property. Coparcenary property means the
property which consists of ancestral property, or of joint acquisitions, or of
property thrown into the common stock and accretions to such property.

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

What is partition ? Discuss the methods of partition and which properties are liable to
partition and which properties can not be partitioned ? (Apr-2012, Oct-2012, Apr-2013,
Mar-2014, Mar-2015)
What is partition? Explain how partition may be affected under Hindu law. (Apr-2016)
Answer :
Refer :
http://www.shareyouressays.com/117719/8-different-modes-of-partition-of-hindu-
joint-family-properties
http://www.srdlawnotes.com/2017/01/distinction-between-joint-family-and.html
http://taxguru.in/income-tax/partial-and-full-partition-of-hindu-undivided-family-
huf-and-income-tax-provisions.html

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Intro :
The Joint family of Hindu Law is an institution sue generis. It is peculiar to Hindu
society. It consists a male, his wife and unmarried daughters and his male
descendants, their wives and unmarried daughters. It is Thus patriarchal in
character. Inside this joint family there is what called the Coparcenary. The
coparceners are the owners of the joint family property. The coparceners have the
right of partition in that property.
Coparcenary consists of common ancestor and three degrees of male lineal
descendants.
Example : AB1B2B3B4
If A dies B4 is added so on. To begun with the Coparcenary father and son
relationship is necessary and for its continuation father's presence is not
necessary.
What is partition of joint hindu family property ?
Simply stated : Partition means bringing the joint status to an end.
Meaning of Partition : Partition is the severance of the status of Joint Hindu
Family, known as Hindu Undivided Family under tax laws.
Under Hindu Law once the status of Hindu Family is put to an end, there is notional
division of properties among the members and the joint ownership of property
comes to an end. However, for an effective partition, it is not necessary to divide
the properties in metes and bounds. But under tax laws for an effective partition
division by metes and bounds is necessary.
Metes and bounds is a system of describing real property by measurements and
boundaries.
Total partition :
Partition under Hindu Law, can be total or partial. In total partition all the
members cease to be members of the HUF and all the properties cease to be
properties belonging to the said HUF.
Partial partition :
Partition could be partial also.
It may be partial vis-a-vis members, where some of the members go out on
partition and other members continue to be the members of the family.
It may be partial vis-a-vis properties where, some of the properties, are divided
among the members other properties continue to be HUF properties.
Partial partition may be partial vis-a-vis properties and members both.
Difference between partition under the Hindu Law and that under the Income-tax

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Act : There is a difference between a partition under Hindu Law and a partition
recognised under the Income-tax Act. Though the concept of partition is the same
under Hindu and tax laws, in two respects, recognition of partition under tax laws
differs from that under Hindu Law.
For recognition of partition under Hindu Law division of properties by metes and
bounds is not necessary.
However, for recognition of partition under tax laws, division of properties by
metes and bounds is necessary.
Again under Hindu Law partial partition is recognised.
However, in view of provisions of S.171(9) of Income-tax Act, 1961, partial
partitions will not be recognised for tax purposes.
Right to claim Partition :
Under the Hindu law, any coparcener can make a claim for partition.
It is not necessary that other coparceners should agree to the partition sought by
one of the coparceners.
{CIT vs. Govindlal Mathurbhai Oza [1982] 138 ITR 711 (Guj.)}
Merely because one member severs his relations with others there is no
severance between others. The other members continue to remain joint.
A minor can claim partition through his guardian.
After amendments in Hindu Succession Act, females can be coparcenars and also
have a right to claim partition.
Modes/ methods of Partition of Hindu Joint Family Properties :
When a partition takes place, the presumption is about the total partition. But
where some members contend that the partition was partial with respect to
members or property, onus is on them to prove it.
The following modes/ methods of partition :
(1) Partition by Mere Declaration
(2) Partition by Will
(3) Conversion to another Faith
(4) Marriage under Special Marriage Act, 1954
(5) Partition by Agreement
(6) Partition by Arbitration
(7) Partition by Father
(8) Partition by Suit
(1) Partition by Mere Declaration :

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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. The filing of a suit for partition is a clear expression
of such an intention.
The oral or written communications by a coparcener could be enough to sever the
joint status but the communication could be withdrawn with the consent of other
coparceners and with its withdrawal partition would not take place.
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.
In Puttorangamim v. Rangamma, The Supreme Court 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.
(2) 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.
An ineffective will, sometimes though not always, cannot in absence of consent of
all members bind them as family arrangement.
Where partition takes place on an unilateral will of a coparcener, it cannot be
brought to an end by revocation of the will. The same consequence will follow
where a desire to severance has been expressed by the guardian of a minor
coparcener and the court has upheld its propriety.
(3) Conversion to another Faith :
Conversion of a coparcener to any other religion or faith operates as partition of the
joint status as between him and other members of the family.

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The coparcener, who has converted, no longer possesses the right of survivorship
as he ceases to be a coparcener from the moment of his conversion and he takes
his share in the family property as it stood at the date of his conversion.
Reconversion of the convert to Hinduism does not ipso facto bring about his
coparcenary relationship in absence of subsequent act or transactions pointing out
to a reunion.
(4) Marriage under Special Marriage Act, 1954 :
Marriage of a Hindu under the Special Marriage Act, 1954 causes severance of joint
status.
(5) Partition by Agreement :
An unequivocal expression of the desire to use the joint family property in certain
defined shares may lead the members of joint family to enter an agreement to
effect a partition.
The two ideas, the severance of joint status and a de facto division of property are
distinct.
As partition under the Mitakshara law is effected on severance of joint status, the
allotment of shares may be done later.
Once the members of joint family or heads of different branches of the coparcenary
agree to specification of shares, the same can be treated to result in severance of
joint status though the division by metes and bounds may take place later on.
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.
(6) Partition by Arbitration :
An agreement between the members of joint family whereby they appoint an
arbitrator to arbitrate and divide the property, operates as a partition from the date
thereof.
The mere fact that no award has been made is no evidence of a renunciation of the
intention to separate.
Where all the coparceners jointly have referred the matter relating to the partition
of their shares in the joint family to an arbitrator, this very fact expressly indicates
their intention to separate from joint status.
In such cases even if award is not given, their intention is not dissipated.
(7) Partition by Father :

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The father may cause a severance of sons even without their consent. It is the
remnant of the ancient doctrine of Patria Potestas.
The father during his lifetime is competent to effect such partition under Hindu law
and it would be binding on his sons.
It would be binding on the sons not because they have assented to it but because
the father has got the power to do so, although this power is subject to certain
limitations on the basis of its utility and general interest of the family. It has to be
considered as to whether it is lawful in accordance with the spirit of Hindu law or
not.
According to Supreme Courts decision is Kalyani v. Narayanan,
a Hindu father under Mitakshara law can effect a partition among his sons even
in the lifetime of karta of joint family and such partition would be binding on
them.
In such a case he can define and specify his share along with his sons and thus
effectuate a separation among them. But in no case he can divide the joint
family property among the different members by virtue of a Will, although he
could do it with their consent.
Where the father has divided the property unequally amongst his sons, then too it
would be binding. The sons have the right to challenge the unequal division of
shares or an act of unilateral division of shares by the father, but it will have no
bearing on the severance of their joint status.
Where the father has divided his self-acquired property unequally among his
sons, it could not be challenged by them, nor is there any need of a registered
deed to this effect.
No person can give his consent to the unequal share on behalf of a minor.
(8) 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, fathers 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.

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When the plaintiff files a suit for partition the share which he received in the earlier
partition would not be free from charges and liabilities. If the creditors have
obtained the decree against the joint family property, then even that share of the
plaintiff which he did not receive, would also be liable in the same manner as that
of the other coparceners.
Exception :
The general rule mentioned above will not apply where a suit is withdrawn
before trial by the plaintiff on the ground that he did not want separation any
more. In such a case there would be no severance of joint status.
Where the suit is proved to be fraudulent transaction resorted to with an intent
to create evidence of separation, no severance in the joint status takes place. If
the defendant dies and the suit is withdrawn on that ground there is no
separation.
Mere institution of a suit for partition by a minor followed by abatement of the
suit by death of the sole defendant does not effect the severance of the joint
status.
Note :
The above 8 modes of partition are not exhaustive. There may be other situations
as well which, if expressed in equivocal intention for partition, will be admissible.
Conclusion :
It is not necessary under Hindu law that the partition should be executed by a
registered instrument. Even a family compromise between the coparceners would
be sufficient to effect a partition and by virtue of that they become entitled to
individual share and use thereof.
Mitakshara : Property of a deceased Hindu is partitioned into two ways as the
property is of two types-
(a) Ancestors property : partitioned in accordance to the Rules of Survivorship.
(b) Separate property : partitioned to the descendants.
Dayabhaga : Property is of two types (a) Joint, (b) Separate. The descendants
inherits the property in both cases.

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Write short note : Re-opening and Re-union of Partition. (Mar-2015)


Answer :
Refer :

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http://legalsutra.com/1076/reopening-and-reunion-of-partition-a-study-through-
case-laws/
https://www.academia.edu/10969284/Partition-and-Joint-Family-and-Coparcenary
http://www.thehindubusinessline.com/iw/2000/05/21/stories/0721g201.htm
Intro :
if there is any member of the Hindu Joint Family who is hopelessly dissatisfied with
the management of the joint estate, his only remedy remains in claiming for
partition. This he can always do, as there is no compulsion upon the members of
Hindu Family to live in common. Partition may be effected either amicably or
through intervention of the court. After a change in status by partition, a member
can no longer be deemed as agent or representative of the family. Partition once
made can not ordinarily be reopened for Shastras say, once is the partition of
inheritance made, once is a damsel given in marriage, and once does a man say, I
give; these three are by good men done once and for all[3].
However there are certain well-recognised exception to this principle. One of such
is mentioned in Yajnavalka. As per Yajnavalka, The settled rule is that co-heirs
should again divide on equal terms that wealth which being concealed by one co-
heir from another is recovered after partition.[4] A few of other such exceptions
are of where by mistake stranger property was included while partitioning and the
same was later lost; where partition was done by fraud.
If two or more coparceners after partition agree to annul the partition and to live
together jointly as before and make a junction of their property with affection, with
the declaration that mine is thine and thine is mine, they are said to be reunited.
[5] However there are certain complicated questions relating to reunion like who
may reunite, how to reunite..etc .
REOPENING OF PARTITION :
MINOR COPARCENERS :
A minor after becoming of age can reopen the partition if he can prove that the
partition was not for his benefit or it was unfair with regard to him.
This can best be explained with the help of the case of Ratnam Chettiar v. S M
Kuppuswami Chettiar 1976 AIR, 1 1976 SCR (1) 863. In this case two brothers
made a partition and at that time plaintiffs were minors. Under the partition
deed both immovable and movable property were divided with the help of family
auditor of one brother.
Plaintiffs here alleged that the partition was secured by practising fraud and
undue influence and by suppressing large assets belonging to the family which
were taken by their uncle (Def.1) by taking advantage of the weakness of the
plaintiffs father who was a person of weak intellect.

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With regard to partition of moveable property the Honble Supreme Court after
making a detailed study also reached the same conclusion that it was an unequal
partition and the silence of the father (Def. 5) or even his acquiescence in
allowing his elder brother to swallow the amount was not a prudent act and it
had caused serious detriment to the interests of the minors which he had to
protect, because the minors at that time were members of the Hindu undivided
family.
The Supreme Court laid the following propositions :
A partition effected among the members of HUF with consent cannot be
reopened, unless it is shown that consent is obtained by fraud, coercion,
misrepresentation or undue influence.
A strict proof of facts is required to reopen the partition because an act inter
vivos cannot be lightly set aside.
If the partition is done in good faith and in bona fide manner keeping into
account the interests of the minors, the same will be binding upon them.
If the partition effected between the members of the Hindu undivided family,
which consists of minors, is proved to be unjust and unfair and is detrimental
to the interests of the minors the partition can be reopened irrespective of the
length of time when the partition took place.
Where there is a partition of immovable and moveable properties but the two
transactions are distinct and separable or have taken place at different times,
if it is found that only one of these transactions is unjust and unfair it is open
to the Court to maintain the transaction which is just and fair and to reopen
the partition that is unjust and unfair.
THE RULE OF REOPENING OF PARTITION DOES NOT APPLY TO A DECREE IF THE
MINOR IS PROPERLY REPRESENTED BEFORE THE COURT UNLESS THE MINOR CAN
SHOW FRAUD OR NEGLIGENCE ON THE PART OF HIS NEXT FRIEND.
RE-UNION OF PARTITION :
Need for Reunion of partition :
It may happen that out of many coparcenars, only few want partition and
majority see benefit in continue the joint family.
Under the circumstances, HUF may be partitioned and interested coparcenars
may choose to reunite back in to the HUF.
Even after a total partition, it is possible for the coparceners to reunite undoing the
earlier partition among themselves. The effect of such reunion is to bring back to
life, the former status of the HUF.
However, a reunion can only take place between persons who are parties to the
original partition.

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If a joint Hindu family separates, the family or any member of it may agree to
reunite as a joint Hindu family.
The conditions precedent for a valid reunion under the Hindu Law are :
There must have been a previous state of union. Reunion is possible only among
persons who were on earlier date members of the HUF.
There must have been a partition in fact.
The reunion must be effected by the parties or some of them who had made the
partition.
There must be a junction of estate and reunion of property because reunion is
not merely an agreement to live together as tenants in common.
Reunion is intended to bring about a fusion in the interest and in the estate among
the divided members of an erstwhile HUF once again.
Reunion creates a right on all the reuniting members in the joint family properties
which is the subject matter of partition among them to the extent they were not
dissipated before the union.
There should, however, be a proper agreement between the parties so that the
intention to revert to the original status of the HUF is expressed clearly and
unambiguously.
The burden of proof of reunion is on the party asserting the reunion and must be
discharged along with proof by the persons reuniting.
It should also be remembered that if the partition comprising immovable properties
was by a registered deed then the reunion, which follows if it is to be valid in law,
must also be effected by a registered deed.
In a reunion, a few of the properties of the former HUF and also a few members of
the former HUF may remain out of the reunited HUF. Thus, one may observe that it
is possible that a partial partition which is not otherwise recognised by the tax law
may to a limited extent be possible by the use of the reunion of a HUF.

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Discuss : Joint Hindu family as a social security institution and impact of Hindu
Gains of Learning Act and various tax laws on it.
Answer :
Refer :

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GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Write short note : Mahant and Sevayat. (Apr-2012, Mar-2015)


Answer :
Refer :
http://notes-law.blogspot.in/2008/08/hindu-law-part-2.html
Intro :
Under Hindu law, the idols of god which are installed in the temple have their own
judicial personality.
Priest of the temple who is engaged in serving the idol and conducting various
rituals, is called Mahant or Sevayat.
Intro :

Endowment is the dedication or entrustment of property either for a


religious purpose or for a charitable purpose or for both.
Religious endowment means all property belonging to or given or endowed
for the support of a religious institution or given for the performance of any
service or charity connected therewith and includes the premises of the
religious institution as well as the idols, if any, installed therein and any
public charity associated with a religious institution or not, but does not
include gifts of property made as personal gifts to the trustee or hereditary
trustee or working trustee of such institution or to any service holder or
other employee thereof.[1]
Endowment in favour of the idol :
The idol has been recognized by Hindu law as a juristic person. As a legal
person it can own property. A temple is the property of the idol. Besides
the temple, the idol may own other movable or immovable property. It is
subject to the laws relating to the income tax and wealth tax. So, an
endowment in favour of the idol is possible.
Who is Sevayat ?
The property of the idol is called Devottar property.
The human agent who administers its affairs is called Sevayat. The literal
meaning of Sevayat is one who renders service.
Rights of Sevayat :

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i) Rights in general- He has the right to do all that is necessary, reasonable and
proper for the benefit and protection of the property of the idol;
ii) Right in possession of Devottar- He has the right to the possession and custody
of the Devottar;
iii) Right of remuneration- Ordinarily he has no right. But if the deed of the
endowment or the custom gives him some remuneration for his service, he can
take it.
iv) Right of residence- He has a right to live in the temple dedicated to the idol;
v) Right of reimbursement for expenses- He has the right to reimburse for the
expenses that he incurs from his purse for the acts authorized regarding the
Devottar and the idol;
vi) Right of litigation- He can file a suit for the benefit of the idol or the Devottar. If
any suit is filed against the idol or the Devottar, he has the right to defend it on
behalf of the idol;
vii) Right to defend Sevayati rights- He can sue to obtain Sevayati rights and if
there is any challenge to such rights, he can defend them.
viii) Right to borrow money- He can borrow for the purpose of the idol or its
property.
ix) Right to alienate Devottar- The property of an endowment is res extra
commercium. Ordinarily it cannot be alienated. But if it is necessary or benefitted
for the idol, he can alienate it.
Case law :
In Hunoomanpersaud v. Mst. Babooee- The Privy Council held that the Sevayat
of an idol has the same powers in respect of the alienation of the Devottar as the
manager of an infant in respect of the property of the minor ward.
Disabilities of Sevayat :
i) Levy of temple fees- He cannot levy fees on the general public for entry into the
temple.
ii) Removal of idol- He cannot remove an idol in a public temple at his will. The
worshippers may by unanimity remove it to a better place.
iii) Appointment of successor- He cannot appoint his successor. This is the privilege
of the founder.
iv) Sale of office of Sevayat- He cannot for his personal benefit transfer his right to
manage the idol.
v) Alienation of deity or temple- He cannot alienate it for a pecuniary benefit.
vi) Secularization of endowment- He cannot convert the religious endowment into a
secular one.

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Duties of Sevayat :
i) to keep accounts of the Devottar
ii) to discharge duties personally- He cannot delegate his duties to any other
person.
iii) Not to purchase Devottar- He cannot buy it for himself or benami.
iv) Not to claim Devottar as personal property-
v) Not to embezzle Devottar- He cannot make use of the idols property for his
personal purpose.
Comparison between Sevayat and Mahant :

Temple Math

i) Manager is called Sevayat i) Manager is called Mahant

ii) Sevayat is in the position of a ii) Property may vest in trustees


trustee as regards temple property other than Mahants

iii) By virtue of his office, the iii) A Mahants functions and duties
Sevayat is the Administrator of are regulated by custom
temple property

iv) Devolution of office of the iv) Succession of the office of the


Sevayat depends upon the terms of Mahant depends upon the rules of
the deed or will by which the the Math.In some, the holder may
endowment is created; failing that, nominate his successor, or he may
succession follows the line of be elected by all the members of
inheritance from the founder the math.

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

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Module-2) INHERITANCE :

2.1) Hindus
2.1.1) Historical perspective of traditional Hindu Law as a background
to the study of the Hindu Succession Act., 1956
2.1.2) Succession to property of a Hindu male dying intestate under the
provisions of the Hindu Succession Act, 1956.
2.1.3) Devolution of interest in Mitakshara coparcenary with reference
to the provision of Hindu Succession Act, 1956
2.1.4) Succession to property of Hindu female dying intestate under the
Hindu Succession Act, 1956
2.1.5) Disqualification relating to succession, General rules of
succession
2.2) Muslims
2.2.1) General rules of Succession and exclusion from Succession.
2.2.2) Classification of heirs under Hanafi and Ithana Ashria school and
their share and distribution of property
2.3) Christians, Parsis and Jews
2.3.1) Heirs and theirs shares and distribution of property under Indian
Succession Act of 1925
2.3.2) Testamentary Succession under the Indian Succession Act : Rules
for distribution of property of Christians, Parsis and Jews
2.3.3) Distribution of property of Christians, Parsis and Jews dying
intestate

GO TO CONTENTS.

MODULE-2 QUESTIONS :

General Intro to Succession Laws of India : General topics of interest :


General : Intestate succession :
Discuss : Historical perspective of traditional Hindu Law as a background to the
study of the Hindu Succession Act., 1956.
Define the will and discuss the essential elements of a will.
Write a note : Void Will. (Apr-2016).
Define the will and discuss the essential elements of a will under Muslim Law. (Oct-

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2012).
Write short note : Will under the Muslim Law. (Mar-2015).
Discuss : Probate of Will.
ALL inclusive question on principles of succession ---> Discuss in detail rules for
distribution of property of Hindu, Muslim, Christian, Parsi and Jew MALE/ FEMALE
dying intestate or with testament (will).
Write short note : General rules of succession in case of Hindu males. (Apr-2012,
Apr-2013).
Discuss : Disqualification relating to succession, General rules of succession.
Discuss the provisions regarding distribution of property among heirs of Hindu male
dying intestate as provided under the Hindu Succession Act 1956. (Oct-2012).
Discuss - How does the property of a Hindu male dying intestate devolve on her
death. (Apr-2016).
Discuss in detail the provisions regarding distribution of shares amongst different
heirs of property of Hindu female dying intestate. Also discuss the provisions
provided under the Hindu Succession Act 1956 (Apr-2012, Oct-2012, Apr-2013, Mar-
2014).
Discuss how the property of the deceased Muslim shall be distributed among
his Successors (heirs). (Mar-2015).
Describe the various successors under Muslim Law. Discuss the not distributable
property according to Muslim Law. (Oct-2012).
Write short note : Persons disqualified from inheritance under Muslim law. (Apr-
2012, Oct-2012, Apr-2013, Mar-2014).
Explain the principles of Hindu and Muslim law regarding testamentary and
intestate succession. (Apr-2016).
Explain the principle of Hindu Law regarding intestate and testamentary
succession. (Mar-2015).
Discuss : Rules for distribution of property of Christians, Parsis and Jews.
Write short note : Shares of heirs of Parsi male dying intestate. (Apr-2012, Apr-
2013, Mar-2015).
Discuss the distribution of property of an intestate Parsi. (Mar-2014).
Discuss : Distribution of property of Christians dying intestate.
Discuss : Distribution of property of Jews dying intestate.
State the provisions regarding property rights of women under the Hindu,
Muslim, Parsi and Christian law. Is there any amendment made recently in this
connection ? (Apr-2012).

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Write short note : property rights of women (Hindu, Muslim, Parsi, Christian). (Apr-
2013).
Discuss : Devolution of interest in Mitakshara coparcenary with reference to the
provision of Hindu Succession Act, 1956.
Discuss : Classification of heirs under Hanafi and Ithana Ashria school and their
share and distribution of property.
What are the requirement of a valid adoption under the Hindu Adoption and
Maintenence Act 1956 ? Discuss. (Apr-2012, Oct-2012, Apr-2016).
Explain the provisions relating to adoption and acknowledgement of paternity and
maternity under Hindu law. (Apr-2012, Apr-2013).
State the different kinds of guardians under the Hindu Law and discuss the powers
of natural guardian. (Oct-2012).
State who are natural guardians of a Hindu minor. What are the powers of such
natural guardian ? (Apr-2012, Apr-2016).
Write short note : natural guardians of a Hindu minor and their powers. (Apr-2013).
Write short note : Doctrine of increase and return. (Apr-2012, Apr-2013, Mar-2015).
Write short note : Doctrine of Rudd and Increase. (Oct-2012).
Write a note : Guardianship in marriage (Under Muslim law). (Apr-2016).
Write short note : Domicile under Indian Succession Act. (Apr-2012, Apr-2013, Mar-
2015).

GO TO CONTENTS.

MODULE-2 ANSWERS :

General Intro to Succession Laws of India : General topics of interest :


Answer :
Refer :
TrainingModuleRightsOfWomenUnderThePersonalLawsInIndia.pdf
http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U5_Legal_Studies.pdf
http://www.caaa.in/Image/Sucession%20Laws.pdf
What is succession of property ?
Succession means where one person inherits an estate or title from a deceased
person. Succession of property of a deceased person can be either testamentary or
intestate.

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Testamentary succession this means that the deceased has made a will during his
life time and legacy is decided on the basis of what has been written in the will.
Intestate succession is called inheritance where property is divided equally between
the legal heirs of the deceased upon the death of the deceased person.
What does an heir mean ?
Heir means a person, male or female, who is entitled to succession to the
property of an intestate.
Applicability of the Succession law to a person belonging to a particular community is
explained in the following diagram :

What are the laws governing succession in India ?


The Indian Succession Act, 1925 is a central legislation and is applicable to every
person, unless and until anyone is governed by any law particularly applicable to
them. This Act is not applicable to Hindus and Muslims.
The law relating to testamentary succession (ALL religious communities), is
contained in the Indian Succession Act, 1925. This law does not make any
distinction between the rights of women and men under a will.

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The law of inheritance in India is governed on the basis of religion that a person
follows-
a) Hindus are governed by the Hindu Succession Act, 1956
b) Muslims follow the Muslim Law, and
c) Christians, Parsis & Jews follow the secular law called the Indian Succession
Act, 1925.
d) People of all religions who are married under the secular Special Marriage Act
follow the Indian Succession Act, 1925. Exception : 2 Hindus married under
Special Marriage Act are governed by Hindu Succession Act.
Initially, the entire law of succession was uncodified but with the advent of modern
government and legislature, most of the succession laws have been codified and
consolidated. There is no uniformity in the succession law relating to women
following different religions.
Applicability of Special Marriage Act :
If a Hindu marries a non-Hindu under the Special Marriage Act, he shall be
severed from the undivided family. However, if two persons who are Hindus get
married under the Special Marriage Act, no such severance takes place.
If a Hindu marries a non-Hindu under the Special Marriage Act, succession to
the property of such person, and to the property of the issue of such marriage,
shall be regulated by the provisions of the Indian Succession Act.
However, if two persons who are Hindus get married under the Special Marriage
Act, the above provision does not apply and they are governed by the Hindu
Succession Act.
Testamentary succession :
The law relating to testamentary succession (ALL religious communities), is
contained in the Indian Succession Act, 1925. This law does not make any
distinction between the rights of women and men under a will.
When a person disposes off his property by making a will, it is known as
testamentary succession.
Muslim :
An executor under Mohammedan law is called a wasi, derived from wasiyyat,
which means a will.
A Muslim who is of sound mind and who is not a minor, may make a valid will.
No particular form is required to make a valid will.
Any unequivocal expression of a testamentary nature will suffice. It may be
made either verbally or in writing.
Any property which is capable of being transferred and which exists at the time

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of the testator's death, may be disposed off by a will. Needless to say, property
that belongs to another cannot be bequeathed by a will.
A Muslim can dispose off only one third of his property, which is left after the
payment of his funeral expenses and his debts. The balance two thirds of the
property goes to the heirs of the deceased.
The rules relating to testamentary succession among Hindus, Parsis and Christians
are contained in the Indian Succession Act, 1925.
This Act does not deal with substantive law, such as what property may be
transferred or what estates and interest may be created. The Act primarily deals
with
formalities related to the execution (Validation of a legal document by the
performance of all necessary formalities),
revocation (to recall, withdraw, or reverse the will),
revival (restoration to use, acceptance, activity, or vigor after a period of
obscurity) and
interpretation (an explanation or conceptualization) of wills,
grant of probate (the process of legally establishing the validity of a will before a
judicial authority)
and other legal representations, powers and duties of the executors (a person
who is appointed by a testator to execute the testator's will.)
Testator is a person who has made a legally valid will before death
administrators are persons authorized to manage an estate, especially when the
owner has died intestate or without having appointed executors.
Indian Succession Act is a secular law that is applicable to each and every
community in matters of testamentary succession.
Consanguinity :
Part IV of the Indian Succession Act deals with Consanguinity. This part does not
apply to intestate or testamentary succession to the property of any Hindu,
Muhammadan, Buddhist, Sikh, Jain or Parsi.
Consanguinity is the connection or relation of persons descended from the same
stock or common ancestor.
Lineal consanguinity is that which subsists between two persons, one of whom is
descended in a direct line from the other, as between a man and his father,
grandfather and great-grandfather, and so upwards in the direct ascending line;
or between a man and his son, grandson, great-grandson and so downwards in
the descending line.
Collateral consanguinity is that which subsists between two persons who are

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descended from the same stock or ancestor, but neither of whom is descended in a
direct line from the other.
For the purpose of succession, there is no distinction
(a) between those who are related to a person deceased through his father, and
those who are related to him through his mother; or
(b) between those who are related to a person deceased by the full blood, and
those who are related to him by the half blood; or
(c) between those who were actually born in the lifetime of a person deceased,
and those who at the date of his death were only conceived in the womb, but
who have been subsequently born alive.
Legitimacy of a person under Muslim Law :
Parentage is only established in the real father and mother of a child, and only if
they beget the child in lawful matrimony.
In Hanafi Law maternity is established in the case of every child but
in Shiite Law, maternity is established only if the child is begotten in lawful
wedlock.
Sunnis or the Hanafis adopt a view that an illegitimate child, for certain purposes,
such as for feeding and nourishment, is related to the mother. For these purposes
the Hanafi Law confers some rights on its mother.
In Muslim Law, a son to be legitimate must be the offspring of a man and his wife
or that of a man and his slave; any other offspring is the offspring of Zina, which
is illicit connection, and hence is not legitimate.
The term 'wife' essentially implies marriage but marriage may be entered into
without any ceremony, the existence of marriage therefore in any particular case
may be an open question.
Direct proof may be available, but if there be no such proof, indirect proof may
suffice. Now one of the ways of indirect proof is by an acknowledgement of
legitimacy in favour of a son. This acknowledgement must be made in such a way
that it shows that the acknowledger meant to accept the other not only as his son,
but also as his legitimate son.
Thus under Muslim Law acknowledgement as a son prima facie means
acknowledgement as a legitimate son. Therefore, under the Muslim Law there is no
rule or process, which confers a status of legitimacy upon children proved to be
illegitimate.
The Privy Council in Sadiq Hussain v. Hashim Ali pithily laid down this rule :
"No statement made by one man that another (proved to be illegitimate) as his
son can make other legitimate, but where no proof of that kind has been given,
such a statement or acknowledgement is substantive evidence that the person

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so acknowledged is the legitimate son of the person who makes the statement,
provided his legitimacy is possible."
In Muslim law, the illegitimate child has no right to inherit property through the
father and in the classical law, as well as in some modern Islamic jurisdictions, the
mother of an illegitimate child may well find herself subject to harsh punishments
imposed or inflicted on those found guilty of zina.
Thus, the difficult status of legitimacy in Islamic law has very important
consequences for children and their parents, especially mothers.
Under no school of Muslim law an illegitimate child has any right of inheritance in
the property of his putative father.

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

General : Intestate succession :


Answer :
Intestate means when a person dies without making a will, which is capable of taking
effect.
Applicability of laws in case of intestate death :
Hindus, Muslims, Buddhist, Sikh, Jain :
Indian Succession Act does NOT apply to the property of any Hindu,
Mohammedan, Buddhist, Sikh or Jain.
Mohammedans are governed by the Mohammedan Law of Inheritance.
Hindus, Buddhists, Sikhs and Jains by the Hindu Succession Act, 1956.
Special Marriage Act : Notwithstanding anything contained in the Indian Succession
Act with respect to its application to members of certain communities, succession
to the property of any person whose marriage is solemnised under the Special
Marriage Act and to the property of the issue of such marriage shall be regulated
by the provisions of the Indian Succession Act.
However, if two persons who are Hindus get married under the Special
Marriage Act, the above provision does not apply and they are governed by the
Hindu Succession Act.

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

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Discuss : Historical perspective of traditional Hindu Law as a background to the study


of the Hindu Succession Act., 1956.
Answer :
Refer :

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Define the will and discuss the essential elements of a will.


Write a note : Void Will. (Apr-2016).
Define the will and discuss the essential elements of a will under Muslim Law. (Oct-
2012).
Write short note : Will under the Muslim Law. (Mar-2015).
Discuss : Probate of Will
Answer :
Refer :
TrainingModuleRightsOfWomenUnderThePersonalLawsInIndia.pdf
http://www.caaa.in/Image/Sucession%20Laws.pdf
Intro :
Will means a legal declaration of the intention of a testator with respect to his
property which he desires to be carried into effect after his death.
It can be revoked or altered by the maker of it at any time he is competent to
dispose of his property.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the
Indian Succession Act, 1925.
However Muslims are not governed by the Indian Succession Act, 1925 and they
can dispose their property according to Muslim Law.
Discussion on will may be divided in to 2 categories :
1. Wills (Hindu, Christian, Parsi, Jew) : Indian Succession Act, 1925 :
2. Will under Muslim Law :
Who Can Make A Will ?
Every person who is of sound mind and is not a minor can make a will.

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Persons who are deaf or dumb or blind can make a will provided they are able to
know what they do by it.
A person who is ordinarily insane may make a will during an interval in which he is
of sound mind.
No person can make a will while he is in such a state of mind, whether arising from
intoxication or from illness or from any other cause, that he does not know what he
is doing.
What property can be disposed by a Will ?
Any movable or immovable property can be disposed of by a will by its owner.
Competency to make will :
Every person who is of sound mind and is not a minor can make a will.
Any married woman can make a will of any property which she could alienate
during her life time.
Persons who are deaf or dumb or blind can make a will provided they are able to
know what they do by it.
A person who is ordinarily insane may make a will during an interval in which he is
of sound mind.
No person can make a will while he is in insane state of mind, whether arising from
intoxication or from illness or from any other cause, that he does not know what he
is doing.
1. Wills (Hindu, Christian, Parsi, Jew) : Indian Succession Act, 1925 :
A will made by a Hindu, Christian, Parsi, Jew is governed by the provisions of the
Indian Succession Act, 1925.
However, Mohammedans are not governed by the Indian Succession Act, 1925
and they can dispose their property according to Muslim Law.
Execution of a Will : Every person, not being a soldier employed in an expedition or
engaged in warfare, or an airman so employed or engaged, or a marine at sea shall
execute his will accordingly :
He shall sign or fix his mark to the will or it shall be signed by some other person
in his presence and by his direction
The signature or mark should be so placed that it shall appear that it was
intended thereby to give effect to the writing as a will
The will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark on the will or has seen some other person sign the
will, in the presence and by the direction of the testator or has received from the
testator a personal acknowledgement of his signature or mark, or of the
signature of such other person.

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Each of the witnesses shall sign the will in the presence of the testator, but it
shall not be necessary that more than one witness be present at the same time,
and no particular form of attestation is necessary.
Kinds of Wills :
Conditional Will :
This is a Will made so as to take effect only on a contingency.
For example - the operation of the document may be postponed till after the
death of the testators wife.
Joint Will :
Two or more persons may make a joint Will. It will take effect as if each has
properly executed a Will as regards his own property.
If a Will is joint and is intended to take effect after the death of both, it will
not be admitted to probate during the lifetime of either.
Mutual Will :
A Will is mutual when two testators confer on each other reciprocal benefits as
by either of them constituting the other his legatee, that is to say, when the
executants fill the roles of both the testator and legatee towards each other.
Mutual Wills are also called Reciprocal Wills.
Holograph Will :
A holograph is a Will entirely in the handwriting of the testator.
Naturally there is a greater guarantee of genuineness attached to such a Will.
But in order to be valid it must also satisfy all the statutory requirements.
Concurrent Wills :
The general rule is that a man can leave only one will at the time of his death.
But for sake of convenience a testator may dispose off some properties. e.g.,
those in one country by one Will and those in another country by another Will.
Concurrent wills may be treated as wholly independent of each other, unless
there is any inter-connection or the incorporation of one in the other.
Duplicate Will :
A testator, for the sake of safety, may make a will in duplicate, one to be kept
by him and the other deposited in some safe custody with a bank, executor or
trustee.
Each copy must be duly signed and attested in order to be valid.
A Valid revocation of the original would affect a valid revocation of the
duplicate also.

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Onerous Will :
This is a Will, which imposes an obligation on the legatee that he gets nothing
until he accepts it completely.
Registration of Will :
A will need not be registered compulsorily but if so desired it may be registered
by the testator during his lifetime. Will may be deposited with the registering
authority under Sec.42 of the Indian Registration Act, 1908.
A Will or Codicil is not required to be stamped at all.
Wording of a Will :
Sec.74 of the Indian Succession Act, 1925 lays down that the use of technical
words or terms of art is not necessary in a will but the wording should be such
as to clearly indicate the intention of the testator.
A will must be construed as a whole to give effect to the manifest intention of
the testator;
Nathu v. Debi Singh, AIR 1966 Punj 226.
Revocation of Will :
A Will may be revoked at any time before the death of the testator but a will
executed by two persons jointly cannot be revoked after the death of any one of
them, if the survivor has given effect to the directions of the deceased testator.
In case of two Wills, the latter one will prevail; Badari Basamma v. Kandrikeri,
AIR 1984 NOC 237 (Kant).
In case of revocation, the testator should give it in writing that he has made
certain changes or has revoked the will. It must be signed by the testator and
attested by two or more witnesses. There should be a clause stating that the
present will is the last will of the testator and any will made prior to this would
stand revoked.
The testator cannot revoke the will by just striking it off or scratching it. He must
sign it and have it attested by at least two witnesses.
Probate of Will :
Probate means copy of the will certified under the seal of a Court of a competent
jurisdiction.
Probate of a will when granted establishes the will from the death of the testator
and renders valid all intermediate acts of the executor as such.
Probate is conclusive evidence of the validity and due execution of the will and of
the testamentary capacity of the testator.
Probate differs from a Succession Certificate.

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A probate is issued by the Court, when a person dies testate i.e. having made
a will and the executor or beneficiary applies to the court for grant of probate.
In case a person has not made a will, his legal heirs will have to apply to the
Court for grant of a Succession Certificate, which will be given as per
applicable laws of inheritance.
To whom can a probate be granted :
Probate can be granted only to the executor appointed by the will.
The appointment may be expressed or implied by necessary implication.
It cannot be granted to any person who is a minor or is of unsound mind, nor
to any association of individuals unless it is a company that satisfies the
conditions prescribed by the rules made by the state government.
Persons eligible for grant of letter of administration :
Where the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain or an
exempted person and has died intestate, the Court may grant administration
of his estate to any person, who according to the rules of distribution of the
estate applicable for in the case of such deceased would be entitled to the
whole or any part of such deceased estate.
When several of such persons apply for such administration, it shall be the
discretion of the Court to grant it to any one of them.
When no such person applies, it may be granted to a creditor of the deceased.
Letters of administration entitle the administrator to all rights belonging to
the, intestate as effectively, as if the administration has been granted at the
moment after his death.
They, however, do not render valid any intermediate acts of the administrator
tending to the damage of the intestates estate.
For obtaining a letter of administration, the beneficiary has to apply to the
Court. The Court on receiving satisfactory proof of valid execution of the will,
issues letter of administration to the beneficiary.
Procedure For Obtaining Probate :
A petition for probate must be filed in Court along with the will in question.
It should contain the following facts.
a. the time of the testators death
b. that the writing annexed in his last will and testament
c. that it was duly executed
d. the amount of assets which are likely to come to the petitioners hands,
and

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e. the petitioner is the executor named in the will


The application for probate shall be signed and verified by the executor or
beneficiary.
The petitioner shall furnish a blank stamp paper of value equal to the requisite
court fee, along with the application. The court shall grant the probate on the
said stamp paper.
After receipt of the petition, the court issues notice to the next of kin of the
deceased to file their objections, if any, to the grant of probate.
A general public notice is also given in a newspaper.
The petitioner is thereafter asked to establish the :
a. Proof of death of the testator;
b. Proof that the will has been validly executed by the testator, and
c. Will is the last will and testament of the deceased.
Proof of Death :
Proof of death is usually shown by submission of original death certificate
If a person was killed in an action while serving in armed forces, the official
notification may be produced in proof of death of the testator.
Where there is an air crash or sunk ship on the high seas and there is no
possibility of survival and a persons body is not recovered; the court may
take notice of the occurrence and be satisfied regarding the fact of death.
Where a person disappears or is missing, such a person as per law is
presumed to have died if he is not heard of for a period of seven years.
Issue of probate by the Court :
On the satisfaction that the will in question has been validly executed, the
court will grant probate to the executor named in the will.
2. Will under Muslim Law :
Intro :
Will is the Anglo Mohammedan word for Wasiyat.
Will is a conferment of right to ones property on another.
This conferment of right is to take effect after the death of the testator.
As a general rule, no formality is required for making a will. It may be made
either orally or in writing and it does not need to be signed or attested. Any
expression of unequivocal expression will suffice.
Though oral will is possible it is difficult to prove.
In general, a will means a document containing the desire, regarding how a

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person wants to utilize or divide his property, after he is dead.


Definition : Section 2(h) of Indian Succession Act 1925 : 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.
For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It
offers to the testator a means to change the course of inheritance to certain extent
and to recognize the value of those relatives who are excluded from inheritance or
strangers who might have helped him in life or in last moments. Prophet
Mohammad has declared that this power is not unrestricted and should not be
exercised to the injury of the lawful heirs.
Elements of a valid Muslim Will :
1. The testator must be competent to make the will :
Any Muslim, including a man or a woman, who is major and is of sound mind
can make a will.
Regarding wills, the age of majority is governed by Indian Majority Act.
A will made by a minor is invalid but it can be validated by ratification after he
attains majority.
A person of unsound mind is not competent to make a will and a will made by
such a person is invalid.
A will made by a person while of sound mind, who later becomes of unsound
mind, becomes invalid.
In Abdul Manan Khan vs Mirtuza Khan AIR 1991, Patna HC held that
any Mohammadan having a sound mind and not a minor may make a valid
will to dispose off the property. So far as a deed is concerned, no formality
or a particular form is required in law for the purpose of creating a valid
will. An unequivocal expression by the testator serves the purpose.
Will of a person committing suicide -
Under Sunni Law the will is valid.
Under Shia law, the will is valid ONLY if it is made before doing of any act
towards committing suicide
2. The legatee (person who receives a legacy) must be competent to take legacy
or bequest :
Any person capable of holding property may be the legatee under a will.
Thus, sex, age, creed, or religion are no bar. However, no one can be made
the beneficial owner of the shares against his will, therefore, to complete the
transfer, the legatee must give his express or implied consent to accepting the
legacy.

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An institution can be a legatee.


A non-muslim can be a legatee if he is not an enemy of Islam and is not
hostile towards Islam.
In Sunni law, a testator's murderer cannot be a legatee.
In Shia law, if the act of the murderer was an accident, he can be a legatee
otherwise not.
Unborn person -
In Sunni Law, a child born within 6 months of the date of making of the will
is considered to be in existence and is a valid legatee.
In Shia law, the period is 10 months, which is the maximum period of
gestation.
Bequest for a charitable object is valid.
3. The subject of bequest must be a valid one : To be able to will a property, it
must be -
capable of being transferred.
in existence at the time of testator's death even if it is not in existence at the
time of making will. Thus, a bequest cannot be made of any thing that is to be
performed or produced in future.
in the ownership of the testator.
A bequest that is to take effect only upon any uncertain event happening is a
contingent bequest, and is void.
However, a bequest with a condition that derogates from its completeness is
valid and will take effect as if the condition did not exist. For example, a grant
is made to X for his life and then it is stipulated to go to Y after death of X. In
this case, X will get the grant completely and Y will get nothing. Thus, a
bequest of life estate is not valid either under Shia or Sunni Law.
4. The bequest must be within the limits imposed on the testamentary power of
the Muslim : The testamentary power of a muslim is limited in two ways -
Limitations as regards to person :-
The general rule is laid down in Ghulam Mohammad vs GhulamHussain
1932 by Allahbad HC, that a bequest in favour of a heir is not valid unless
the other heirs consent to the bequest after the death of the testator.
Note that, whether a person is a heir or not is determined at the time of
testator's death.
Under Shia law, a testator may bequest a heir as long as it does not exceed
one third of his property and no consent of other heirs is required. In
Hussaini Begam vs Mohammad Mehdi 1927, it was held that if all the

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property was bequested to one heir and other were not given anything, the
bequest was void in its entirety.
Limitations as regard to the amount :- The general principle is that a muslim
is not allowed to will more than 1/3rd of his property after taking out funeral
charges and debt. However,
under Hanafi law, it may be valid if heirs give the consent after the death of
the testator.
under Shia law, such consent can be taken either before or after the death.
Another exception is that if the testator has no heir, he can will any
amount. The govt. cannot act as a heir to the heirless person.
Applicability of the Indian Succession Act, 1925 :
The provisions of the Indian Succession Act, 1925 are not applicable to Muslims.
However, a Muslim cannot claim immunity if his marriage 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.
Where a will is governed by the Muslim Law, it will be subjected to the provisions
of the Shariat Act 1937.
Revocation : The Mohammedan Law confers on a testator unfettered right to
revoke his will. He may revoke it at any time. The revocation may be :
Expressed, or
Implied
Differences between Shia and Sunni Law on Will :

Sunni Law Shia Law

Bequest to an heir without consent of Bequest up to 1/3 of the property is


other heirs is invalid. valid even without consent.

For a bequest of more than 1/3 to a Heir's consent may be obtained before
non-heir, the consent of heir must be or after death
obtained after the death of testator.

Bequest to unborn child is valid if the Valid if the child is born within 10
child is born within 6 months of making months of making the will.
the will.

Legatee who causes death even by Legatee who causes death by accident
accident is incapable of receiving any is capable.
legacy.

Will of a person committing suicide is Valid only if the will is made before the

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Sunni Law Shia Law

valid. person does


any act towards committing suicide.

Recognizes rateable distribution. Does not recognize rateable


distribution.

If the legatee dies before testator, the The legacy lapses only if the legatee
legacy lapses and goes back to the dies without heirs otherwise, it goes to
testator. legatee's heirs.

Legatee must accept the legacy after Legatee can accept the legacy even
the death of the testator. before the death
of the testator.

Differences between Will and Gift under Muslim laws :

Gift Will

It is an immediate transfer of right or It is a transfer after death.


interest.

Delivery of possession is necessary. Delivery of possession is not


necessary.

Subject of gift must exist at the time of Subject of will must exist at the time of
making gift. death of the testator.

Right of donor is unrestricted. It is limited up to 1/3rd of the


property.

Cannot be revoked. Can be revoked by making another


will.

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

ALL inclusive question on principles of succession ---> Discuss in detail rules for
distribution of property of Hindu, Muslim, Christian, Parsi and Jew MALE/ FEMALE
dying intestate or with testament (will).
Answer :
<This is an detailed and broad discussion on succession laws of different
communities>.

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Refer :
TrainingModuleRightsOfWomenUnderThePersonalLawsInIndia.pdf
SUB-MENU of ALL inclusive question on principles of succession :
Rights to Succession under Hindu Laws :
Intro : Hindu Succession Act :
General rules of succession (Hindu Male - Intestate) :
Distribution of property under the Hindu Succession Act :
Succession Rights of women in Hindu Laws :
Rights of children born from a void or voidable marriage and of illegitimate
children :
Testamentary succession Hindu Laws :
Hindu male dying intestate :
Hindu female dying intestate (HSA 1956 as well as ISA 1925) :

Rights to Succession under Muslim Laws :


Intro to Muslim succession laws :
Not distributable property according to Muslim Law :
Persons disqualified from inheritance Muslim Law :
Distribution of property under Muslim Laws :
Succession Rights of women in Muslim Laws :
Testamentary succession Muslim Laws :
Intestate succession Muslim Laws :

Rights to Succession under Christian, Parsi, Jew Laws :


Intro to Christian, Parsi, Jew succession laws :
Distribution of property under Indian Succession Act 1925 :
Succession Rights of women in Indian Succession Act 1925 :
Testamentary succession Indian Succession Act 1925 :
Intestate succession Christian & Jews Indian Succession Act 1925 :
Intestate succession Parsi Indian Succession Act 1925 :

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

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Rights to Succession under Hindu Laws :


Intro : Hindu Succession Act :
What is Hindu Succession Act?
The Hindu Succession Act 1956 is a law that governs intestate succession,
which means that if a person dies without writing a will and that person is a
Hindu, the property of the person will be distributed according to the law laid
down in the Hindu Succession Act.
To whom does this law apply?
The Hindu Succession Act applies only to Hindus, Buddhist, Jains and Sikhs.
If a Hindu marries a Non-Hindu, the property law applicable to them is the
Indian Succession Act.
If two Hindus get married under the Special Marriage Act without undergoing
any ceremony under the Hindu law or custom, the property law applicable to
them is the Indian Succession Act.
What are the types of property under the Hindu law?
There are two kinds of property under Hindu Law
(a) Coparcenary Property or Joint family property,
(b) Self acquired property
Property can be immovable like land and houses and movable like cash,
furniture, jewellary and ither things that can be moved from place to place.
What is Coparcenary/ joint/ ancestral Property?
Under Hindu family the head of the family is known as the karta. This concept
of joint family and karta developed in order to ensure that the property
remained within one family and people who had the same blood.
The word ancestral property, joint family property or coparcenary property
means the same. A joint family essentially means a man, his wife, his
unmarried daughters, his male descendants, their wives and unmarried
daughters.
Coparcenary or joint property or ancestral property belongs to a group of
people known as coparceners.
Who are the Coparceners? Cam women be coparceners after the amendment?
Historically, in the Hindu Law woman were not allowed to be coparceners, and
only a male child in the family was considered to be coparcener and thus had
a share in the property.
Since the constitution of India guarantees equality to men and women and

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therefore, this law also needed to be amended.


Since September 2005 all women in India have a right to become coparceners
in the Joint family property.
The right of coparceners in a joint family property cannot be taken away by
the father or even the other coparceners. It is the right by birth.
What are the features of a Coparcener?
Under the Hindu Law, a coparcener could only be a male but now with the
amendment to the Hindu Succession Act, woman have also been given the
right to be coparceners.
A person cannot be a coparcener by an agreement or arrangement.
All coparceners jointly own and enjoy the property. No person can claim that a
specific item or thing belongs to them until partition has taken place.
A coparcener gets a share in the joint family property on his or her birth, but
this share keeps changing based on the birth/ death of other coparceners. The
rights of a coparcener are clearly defined only when there is a partition.
While the coparcener has the right to share in the joint family property by
birth, the other members of the joint family also have such rights, such as
right to residence of a female member such as mother, daughter and wife.
The joint family property is available for all until partition takes place.
A coparcener (once he or she has attained the age of 18 years) has the right
to ask the karta of the family for a partition of the ancestral (Coparcenary or
Joint family) property at any time in case the family does not agree, the
partition suit can be filed in a court of law.
A coparcener on himself/ herself cannot sale or mortgage the property. This
can only be done by the karta of the family, under some circumstances.
Self acquired property is the property which an individual has created or
which has been inherited from someone other than his or her father or a gift
received from someone.
Examples :
Salary earned by a person from a job.
Property received by way of price or scholarship.
If Ramana received property from his mothers father this would be
treated as self acquired property.
When Sharads father died, he gave Sharad a house which was part of
his self acquired property. This house will be Sharads self acquired
property and will not form part of the joint family property.
What is the difference between Joint family property and self acquired property?

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Joint family property cannot be bequeathed (gifted) through a will; only self-
acquired property can be bequeathed through a will.
Joint family property cannot be given away by any of the coparceners. For
example, a gift would not be valid.
What are the rights of the coparcener in a joint family property?
Right by birth.
Ownership of the property is joint. Thus the property is to be enjoyed jointly
and the liabilities such as debts have to be borne jointly. The property cannot
be generally given away without consent of all coparceners.
Right of Survivorship : This means that the share of the coparcener in a joint
family property keeps changing, based on births and deaths in a family.
Example :
Naresh has five children, Durgesh, Ravi, Suresh, Anil and Subhadra. None
of them are married. So in a joint family property, each had one-sixth share
but if Naresh dies the share of the others become one-fifth each in the
property. This right of surviving coparceners to increase their share is called
the right of survivorship.
Right to ask for accounts
Right to ask for partition
Right to stop improper action by other coparceners which is against the
interest of the joint family property, and
Right to have other self acquired property

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General rules of succession (Hindu Male - Intestate) :


Disqualification relating to succession :

(Sec-10 of HSA 1956) General rules of succession among Class-I heirs :
Widow gets one share
The sons, daughters and mother get one share each
Heirs of each branch of the predeceased son or daughter get one share each
The property is distributed in such a way that the widow of pre-deceased son

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and the children all get one share each


The children of a predeceased daughter get equal portions
Class-I heirs :
1. Son
2. Daughter
3. Widow
4. Mother
5. Children of predeceased son
6. Children of predeceased daughter
7. Widow daughter-in-law
8. Children of a predeceased grandson
9. Widowed grand daughter-in-law
Example : Ramesh was a government servant and when he died in 2000
and left behind his mother Leela, his widow Kamini and his two sons Suhas,
Paras and two daughters Manisha and Asha. Suhas had died but Suhass
wife and three children were alive. Ramesh had one bungalow which he had
inherited from his father and a plot of land which he had purchased from
his own money. Since Ramesh died without a will, his property would be
divided as follows :
Leela (mother)1/6 th
Kamini (Widow) 1/6 th
Suhas (dead sons share) 1/6 th
Paras (son) 1/6 th
Manisha (daughter) 1/6 th
Asha (daughter) 1/6 th
(Sec-11 of HSA 1956) General rules of succession among Class-II heirs :
There are nine entries under class-II heirs Property must be shared equally
among people mentioned in each entry.
It will only be possible to move from one entry to the next, if there are no
heirs alive mentioned in that entry.
Class-II heirs :
1. Father
2. Sons daughters son, sons daughters daughter, brother, sister
3. Daughters sons son, daughters sons daughter, daughters daughters

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son, daughters daughters daughter


4. Brothers son, sisters son, brothers daughter, sisters daughter
5. Fathers father, fathers mother
6. Fathers widow and brothers widow
7. Fathers brother and fathers sister
8. Mothers father and Mothers mother
9. Mothers brother and mothers sister

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Distribution of property under the Hindu Succession Act :


The discussion may be divided in to following outline,
I) Distribution of property of a Hindu male :
Self acquired property :
Ancestral property
II) (Section 14) Property of a female Hindu to be her absolute property
III) (Section 15) Distribution of property of a Hindu female
Self acquired property :
Ancestral property
I) Distribution of property of a Hindu male :
<include here >
Self acquired property :
Testamentary Succession : If a Hindu male has written a will then his self
acquired property will be divided as per his will.
Intestate Succession : However, if there is no will, the property will be
distributed as follows : <Hindu male dying intestate : detailed discussion
elsewhere in this doc>
Firstly among his class-I heirs.
Secondly if there are no class-I heirs, the property will be distributed to
class-II heirs.
Agnates : Thirdly if there are no class-II heirs, the property will be
distributed among the agnates (two people who are related by blood or

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adoption wholly by man) of the deceased person.


Cognates : Lastly, if there are no agnate (descendant from the same
male ancestor), the property will be distributed among the cognates of
the deceased. Cognate is the relation between two people either by
blood or adoption but not by man. (Section 8, The Hindu Succession Act,
1956)
Ancestral property :
When a male dies leaving behind an interest in his ancestral property, his
interest in the property will be distributed among surviving coparceners by
the rule of survivorship.
But, if the male dies leaving behind any female or any male relative
mentioned in the list of class I heirs, who can claim through a female
relative, in this case, the property will devolve either through testamentary/
intestate succession as per the Hindu Succession Act.
The share of the Hindu male in the property would be the share that would
have been allotted to him had there been a partition at the time of his
death.
The share of the pre-deceased son or a pre-deceased daughter shall be
allotted to the surviving children of such pre-deceased son or of pre-
deceased daughter.
The share of a pre-deceased child of a pre-deceased son or of a pre-
deceased daughter shall be allotted to a child of the predeceased son or a
predeceased daughter.
II) (Section 14) Property of a female Hindu to be her absolute property :
Any property of a Hindu female is considered of her own and absolute
property. This includes all types of movable and immovable property like-
Salary earned or anything purchased by woman
Property received as inheritance or by way of partition
Property received in lieu of maintenance
Arrears of maintenance
Gift from any person before marriage, at marriage and after marriage.
Stridhan
III) (Section 15) Distribution of property of a Hindu female :
Self acquired property : (Section 15(1) of HSA, 1956)
Testamentary Succession : If there is a will, the property will be distributed
as written in the will

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Intestate Succession : if there is no will, the property of the women will


devolve as follows : <Hindu female dying intestate : detailed discussion
elsewhere in this doc>
Firstly, to the sons and daughter including children of a pre-deceased son
and daughter and the husband;
Secondly, If there is no one from the above category, then to the heirs of
the husband;
Thirdly, if there is no one from the second category, to the mother and
father;
Fourthly ,if there is no one from the third category, then to the heirs of
the father;
And lastly, if there is no one from the fourth category to the heirs of the
mother.
But if the Hindu female inherited property from her mother or father and
she has no sons or daughter or any grand children then this property will
go to the heirs of a father. (Section 15(2)(a) of the HSA,1956)
If the female inherited property from her husband or her father- in- law and
if she dies without living behind the son daughter or any grand children
then the property will go to the heirs of the husband. (Section 15(2)(b) of
the HSA, 1956)
The reason behind this rule is to ensure that the property goes back to the
source from where it came in case of women who does not live behind any
children or grand children.
(Section 16) The order of succession among the heirs referred to in section
15 shall be, and the distribution of the intestate's property among those
heirs shall take place, according to the following rules, namely :-
Rule 1- Among the heirs specified, those in one entry shall be preferred
to those in any succeeding entry and those including in the same entry
shall take simultaneously.
Rule 2- If any son or daughter of the intestate had pre-deceased the
intestate leaving his or her own children alive at the time of the
intestate's death, the children of such son or daughter shall take
between them the share which such son or daughter would have taken if
living at the intestate's death.
Ancestral Property :
After the amendment of the Hindu Succession Act, 1956 in 2005, women
have equal share in ancestral property on birth in the same manner as
men.

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The general rule of inheritance of ancestral property is the rule of


survivorship. This means that if a woman coparcener dies her interest in
the property will go to the surviving member of the coparcenary.
But if the woman leaves behind a child or a child of a predeceased child
then her interest in the coparcenary property will devolve by testamentary
succession (through a will) or intestate succession under the Hindu
Succession Act and the rule of survivorship will not be followed.
The share of the pre-deceased son or a pre-deceased daughter shall be
allotted to the surviving child of such pre-deceased son or of such pre-
deceased daughter.

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Succession Rights of women in Hindu Laws :


Refer :
TrainingModuleRightsOfWomenUnderThePersonalLawsInIndia.pdf
Intro :
The law that governs Hindu womens right to succession is the Hindu
Succession Act, 1956.
Womens right to property in the Hindu Law has been a very contentious issue
which has changed slowly and with the codification of the law in 1955, a
pragmatic change took place in the Hindu Law.
Prior to 1937, a women did not have a right to own property except for her
stridhan.
In 1937 a law called the Hindu Women Right to Property Act was passed
which made it possible for a woman to have limited interest in property apart
from a stridhan. This meant that when a man died, his property would go to
his widow so that she could maintain herself from her husbands property. She
had limited right of ownership in property which meant that she could not own
it completely but she could use the property to take care of herself until she
died or until she remarried.
In 1956 the Hindu Succession Act was passed. This law improved the position
of women to great extent. Henceforth, a woman has the right to own the
property completely. She was the absolute and full owner and the law also
gave a woman an equal share in the property of her husband. She could get
the same share in the property as her children would get.

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But even these developments were not sufficient for women because in the
fundamental principle of the Hindu Law, men got a share in their ancestral
property by birth but women only got a share in their fathers self acquired
property or husbands property. So, men not only had a share in the ancestral
property but they also got a share in the fathers property. Woman on the
other hand did not get a share in the ancestral property by birth; they only
got a share in the property of the dead father or husband. There are
significant changes in this position after 2005 amendment in the Hindu
Succession Act, 1956.
Amendment in the Hindu Succession Act, 1956 :
Historically, in the Hindu Laws, woman were not allowed to be coparceners.
A coparcener could only be a male.
While women had no right to ask for partition of the joint family property,
she did enjoy certain rights on the joint family property such as right to
residence. And till the property was divided, the woman enjoyed the rights
to use the joint family property, but upon partition the woman did not get a
share in the property. Only the co-parceners (ie males) did. This concept
violated the fundamental right to equality as envisaged in the Constitution
of India.
Since family laws are a concurrent (Constitution of India) subject, in order to
correct this inequality, several states amended the Hindu Succession Act so
that women in their state could attain the same and equal rights to property
as men.
Andhra Pradesh made an amendment in 1985,
Tamil Nadu in 1989,
Maharashtra and Karnataka in 1994,
In September, 2005 Government of India introduced an amendment Bill of the
Hindu Succession Act to give equal property rights to women by birth. The
Hindu Succession (Amendment Act 2005) came into force from September 9,
2005.
Sep-2005 amendment made all Hindu women in India coparceners in the Joint
family property.
Note that, the right of woman to be coparcener started from the date the law
was changed.
In some states of India, this change was introduced even earlier. Eg in
Karnataka change came into effect on July 30, 1994.
ie Woman who was married after date of change taking effect will be
considered as a coparcener.

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and a woman who was married before date of change taking effect will
not have the coparcenary right in ancestral property. She will only get a
share from her fathers property.
If ancestral property has been partitioned before date of change taking effect,
a woman cannot claim right as a coparcener in the ancestral (Coparcenary or
Joint family) property, she will only be entitled to her share from the fathers
property.
What are the property rights of a woman under Hindu laws ?
A woman is considered as coparcener in the ancestral property and thus has a
right to ask for partition in the ancestral property.
A woman has several rights depending on who she is
as a married daughter,
as an unmarried daughter,
as a widowed daughter in law,
as a sister and
as a mother.
A Hindu daughter, after 2005, is considered a coparcener and thus enjoys the
right to ancestral property by birth. She enjoys the following rights :
Right to Maintenance under section 125 CrPC
Right to Maintenance under section 18 of the Hindu Adoption and
Maintenance Act
Right to Maintenance under section 25 of the Hindu Marriage Act
Right to Maintenance can be claimed by widowed daughter in law under
section 19 of the Hindu Adoption and Maintenance Act
Right to residence (a daughter has a right to reside in her fathers house if
she is unmarried, deserted or separated from her husband or is a widow)
Right to stridhan, and
Right to a share in husbands property and fathers property
How can a woman get her property rights enforced ?
Under the Hindu law ancestral property is jointly held by all the coparcener.
Even if the property is in the name of the Karta, the other coparceners have a
share as per the law, but this share is a notional share when a person cannot
claim that one share of the property belongs to him. This can only be enforced
once a partition is asked for by the coparceners or anyone of the coparcener.
If they agree to a partition the property will be divided and distributed later.
Division takes place on the basis of principle as discussed earlier.

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There is no need to go to the Court if everyone agrees. But if there is


disagreement a case could be filed in the Court. If one person wants partition
of the property and the others would like to continue as joint family, in that
case, if the family agrees they can give the person his or her share of the
property and the rest of them can continue as a joint family property.
What are the basic problems or impediments to woman accessing their property
rights ?
The law recognises equal rights of women to property but the problem occurs
the way the society looks at their right to property of a women :
(a) Women themselves are very reluctant to ask their fathers and brothers
for property because they feel it will disturb the harmony in the family.
After the property is asked for, the daughter is likely to stop her visits to
her parents home.
(b) The members of the parents home feel that when a woman gets
married and dowry is given which was equivalent to the amount that the
brother would inherit it is not considered necessary to give the sister any
share.
(c) In most of the cases, she is often abused and upon the death of the
husband, no property is given because she is seen as an outsider.
What can a woman do if her brother or her in-laws threaten to throw her out of
the house ?
The woman can approach the Court and ask for an order of protection under
the Protection of Women from Domestic Violence Act 2005 (PWDVA Act) and
can also obtain an injunction order.
In many cases in-laws take away jewellary of the woman saying it belongs to
the family and often throw the woman out of the house.
Jewellary given to a woman is considered to be her stridhan, therefore, it is
her personal property and no one else has any claim over it. All gifts and
property given to a woman before, during and after her marriage are her
stridhan, dowry given to her marriage is also her stridhan, and these are her
personal property.
Mother, Grandmother, married/ separated/ divorcee daughter, widow
daughter-in-law all have right to live in the family home and they cannot be
thrown out of the family. A woman has a right to live in her in-laws home as
well as at her parents home.

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Rights of children born from a void or voidable marriage and of illegitimate


children :
Rights of children born from a void or voidable marriage :
The Hindu Marriage Act Section 16, Special marriage act Section 26 were
amended in 1976 to make a very important change. The law today recognizes
children born of a void marriage (for example second marriage) and children
born of voidable marriage, where the parties to marriage have gone to the
Court and had the marriage nullified, as legitimate children.
The reason for this is that, if the marriage had been a legal marriage the
children would have all the rights of legitimate marriage. Just because the
marriage is void/ voidable the children should not suffer.
The children born out of such marriage have following rights :
Right to maintenance until the age majority
Right to the property of their mother and father only
Rights of illegitimate children :
Under the Hindu Law, prior to its codification, illegitimate children had several
rights. Since the codification and enactment of the Hindu Succession Act and
Hindu Adoption and Maintenance Act, 1956, the rights of illegitimate children
have been curtailed and they are limited.
An illegitimate Hindu child has the right to claim of maintenance from his
father and mother until he or she is 18 years of age. This right is available
under the Hindu Adoption and Maintenance Act, 1956. (Section 20)
If the father and mother are dead and the illegitimate child is below 18 years
of age, the child has right to maintenance from the property of the deceased
person. Therefore the heirs of the deceased person should maintain the
illegitimate child.
No right to inherit from father but has the right to inherit property from the
mothers side such as :
Property of mother, self acquired and ancestral property
Property of brother and sisters (born to the same mother)
The mother can inherit from an illegitimate child but the father cannot inherit
from an illegitimate child

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Testamentary succession Hindu Laws :


(Section 29 of HSA 1956) Any Hindu may dispose of by will or other
testamentary disposition any property, which is capable of being so disposed of
by him, in accordance with the provisions of the Indian Succession Act, 1925, or
any other law for the time being in force and applicable to Hindus.
In short, testamentary succession in case of a Hindu is according to the Indian
Succession Act, 1925.
<refer to General Intro to Succession Laws of India in this doc>

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Hindu male dying intestate :


Heirs belonging to a Hindu male are classified into four categories
class I,
class II,
agnates, and
cognates
The heirs in earlier categories are preferred over the heirs in later categories.
Class I heirs are the most preferred heirs and include mother, wife, son as well
as daughter and their descendants upto the third generation.
Class II heirs include father, brother as well as sister and their children, maternal
and paternal uncles and aunts, maternal and paternal grandfather and
grandmother etc. Class II heirs will inherit property only in absence of Class I
heirs.
Agnates : If there are no heirs belonging to Class I or Class II then property
goes to agnates. When two persons are related by blood or adoption wholly
through males, they are called agnates. For example, the son of a great
grandson (son, grandson, great grandson being dead)
P ---> S ---> SS ---> SSS ---> SSSS1
In the above diagram, S is son of P, SS is son of S and grandson of P, SSS is
son of SS and great grandson of P, SSSS1 is son of SSS and great great
grandson of P.

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Here, SSSS1 is agnate to P as he is tracing relation wholly through males i.e


his father (SSS), grandfather (SS), and greatgrandfather (S). No female has
intervened in-between.
Cognates : When two persons are related by blood or adoption but not wholly
through males, they are called cognates.
In case like P ---> F ---> FM ---> FMF1 , all the heirs i.e. Class I, Class II and
agnates are absent then property will go to cognates.
For example father of paternal grandmother i.e. FMF1 is a cognate as female
(father's mother) has intervened in between.
In the above diagram, F is father of P, FM is mother of F and paternal
grandmother of P, FMF1 is father of FM. Here, FMF1 is cognate to P as a
female has intervened in between, i.e., father's mother (FM).

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Hindu female dying intestate (HSA 1956 as well as ISA 1925) :


If a female Hindu dies interstate then heirs are divided into five categories.
First category : husband, son, daughter and children of pre-deceased son and
daughter.
Second category : heirs of husband.
Third category : Father and mother
Fourth category : Heirs of father
Fifth category : Heirs of mother
The heirs in earlier categories are preferred over the heirs in later categories.
But if the Hindu female inherited property from her mother or father and she has
no sons or daughter or any grand children then this property will go to the heirs
of a father. (Section 15(2)(a) of the HSA,1956)
If the female inherited property from her husband or her father- in- law and if
she dies without living behind the son daughter or any grand children then the
property will go to the heirs of the husband. (Section 15(2)(b) of the HSA, 1956)
The reason behind this rule is to ensure that the property goes back to the
source from where it came in case of women who does not live behind any
children or grand children.

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Rights to Succession under Muslim laws :


v good ---> https://www.academia.edu/8794744/family_law
Intro to Muslim succession laws :
Principles of Pre-Islamic Law :
Before reforms :
Females could not inherit
Nearest male agnates (descended from the same male ancestor) used to
inherit property
Descendants were preferred over parents and other ascendants
After reforms :
Females are allowed to inherit land as the Quran introduced a new class of
legal heirs constituting female and aged parents,
Husbands and wives have been made legal heirs of each other,
Parents and ascendants are entitled to inherit even in the presence of
descendants.
Normally the share of a female is half of that of a male
What is heritable property ?
Heritable property is property which is available to legal heirs for inheritance.
The legality of the heirs is predecided by the Hanafi or the Shia law depending
upon their relationship to the deceased.
Is there a birth right that Muslims enjoy to inheritance ?
Muslim Law does not recognize right by birth. There are various rules that
need to be followed.
Inheritance depends upon various situations. Different persons inherit
different share of property on pre-decided rules which focus on the degree of
relation with the deceased person.
There are also different category of persons who will stand to inherit, such as
residuaries and distant kindred.
Inheritance opens only after death and no Muslim may be an heir while the
person is still living.
Do unborn and step children have a right to inheritance ?

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Step children cannot inherit property of their step parents,


Step parents can also not inherit property from their step children.
Can a missing persons property be inherited ?
As per the Hanafi Law, a missing person would be considered dead only after
he would have reached the age of 90 upon which the property would be open
for inheritance.
However, under section 108 of the Indian Evidence Act, it was changed to
presume that if a Muslim has been missing for the last seven years and if it
could not be proven that he was alive, the person would be legally presumed
to be dead and his property would be opened for inheritance.

GO TO SUB-MENU of ALL inclusive question on principles of succession.


GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Not distributable property according to Muslim Law :


GO TO SUB-MENU of ALL inclusive question on principles of succession.


GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Persons disqualified from inheritance Muslim Law :


GO TO SUB-MENU of ALL inclusive question on principles of succession.


GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Distribution of property under Muslim Laws :


Upon the death of a Muslim person, there are three ways in which the property
is divided.
Firstly, the property is used to pay off debts or government dues that the
person may have had as well as the funeral expenses.
Secondly, it is divided as per the will left behind by the deceased, and

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thirdly, the remaining property is heritable property. This is inheritance.


How does succession of property happen ?
Succession of property takes place through two means;
one is per capita and the other is per strike succession.
Per capita means per head, that is the property is divided equally amongst the
number of heirs.
Per strike succession means that several heirs belonging to different branches
of the family will derive a share only from the amount of property that has
been allotted to their branch of family and not from the total amount of
property left behind by the deceased.
What are the main principles in the Hanafi/ Sunni Law of inheritance ?
Under the Hanafi Law of Inheritance there are three classes of heirs.
(a) Sharers : those who are entitled to a prescribed share of inheritance.
That is, property would be given after the funeral expenses, debts and
legacies have been paid off. The share that each person gets depends on
the context of the situation and the relation of each sharer to the deceased.
Under the Hanafi Law, the sharer has been traditionally male. However,
after the Islamic reforms, women too have been included as Quranic
heirs though their share is usually half of that of the male.
(b) Residuaries: If there are no sharers or there has been a residue of
property left after filling the share that the sharers are entitled to, THEN
the remaining property will be given to the residuaries.
(c) Distant kindred: if there are no sharers or residuaries, the property
would be divided amongst distant kin. These are again classified into the
categories of people who are related to the deceased by blood
Apart from above there are also successors who are unrelated by blood. These
are
Successors by contract : if there is a default in a sharer, residuaries and
distant kin then the inheritance is devolved upon the successor by contract.
This is a person who gains the right to inherit property of the deceased on
the consideration of an undertaking given by him to pay any fine or ransom
to which the deceased may have become liable.
Universal legatee : this is a person to whom the deceased has left his
property through a will.
AFTER above, if there is any property of the deceased Sunni Muslim, it goes to
the Government.
What are the main principles in the Shia Law of Inheritance ?

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Under the Shia Law of Inheritance, heirs are divided into two groups. These
are:
(A) heirs by consanguinity or nasab i.e. by blood relations (same father)
they consist of
(I)
(i) Parents
(ii) Children and other lineal descendants
(II)
(i) Grandparents however high soever
(ii) Brothers and sisters and their descendants
(III)
(i) Paternal uncle and aunts of the deceased, and of his parents and
grandparents --- how high so ever and their descendants how low so
ever
(ii) Maternal Uncle and aunts of the deceased, and of his parents and
grandparents --- how high so ever and their descendants how low so
ever
(B) Heirs by marriage, The husband or wife is never excluded from
succession. The husband or the wife inherits property along with the nearest
heirs who are related by blood. The wife usually gets half of what is entitled to
the husband.
Categories of inheritance :
Unlike hanafi, the heirs under Shia law of inheritance are divided under
sharers and residuaries. There are no classification for distant kindred.
There are nine sharers ---> husband, wife, father, mother, daughter,
uterine brother, uterine sister, full sister and consanguine sister.
The remaining are residuaries.
Distribution of property :
If the deceased lives only one heir, the heir gets all the succession. In case
the heir is a wife, she is entitled only to one fourth of inheritance and the
remaining will go to the government.
In case the deceased leaves two or more heirs, the first step would be to give
a share to the husband or the wife and the remaining share will be given to
the successor as per rules that have been laid down in doctrine of return
(radd).
If there is residue left and there are no residuaries, the remaining inheritance

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is given to the sharers as per each one share.


In the succession, husband and wife are not entitled to a return or radd.
Escheat (reversion of property to the state) :
If there are no natural heirs then the estate of the deceased escheats to
the government.
Eldest son : The eldest son if of sound mind is exclusively entitled to the
fathers apparel; for example, his Quran, sword and ring.
Illegitimate child does not inherit at all, even from his mother or her relation
nor does she/he inherit from him.

GO TO SUB-MENU of ALL inclusive question on principles of succession.


GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Succession Rights of women in Muslim Laws :


<include here appropriate text from Right to Succession under the Muslim laws
discussed elsewhere in this doc>
Do Muslim women in India have right to property ?
Under the Muslim Law in India, women are entitled to property. All schools of
Islamic Law recognize that women have a right to inheritance in immovable
property even though, this is unequal to the rights that Muslim men have.
The share of a male is usually double than that of a female. The justification
has been made on the basis that the female heir is entitled to maintenance
and mehr from her husband.
Muslim women can inherit property through mainly three ways,
(a) Succession
(b) Mehr or dower
(c) Hiba or gift
Intro : What are the laws relating to Muslims Womens right to Inheritance/
Succession ?
Muslim Law in India is governed by mainly two schools of law. These are
the Hanafi and Shia School of Law.
Muslim property rights are derived from the school of law, they are governed
by relation to a male or a female.
Under the Hanafi Law, only those will be considered heirs, who are related to

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a deceased person through a male.


Under the Shia law, even those will be considered heirs who are related to the
deceased person through a female.
In India majority of the Muslims are Sunni and, therefore, governed by the
Hanafi school of law, while a small number are governed by shia laws which is
also known as Ithna Ashari Shiite School.
Rights of Muslim women under the Hanafi School of Law :
A daughter only will receive half of the deceased parents estate when there is
no son and can be excluded by no other heir because she is a Quranic heir.
If there are two or more daughters and no sons, they jointly get a two third
share which is divided equally between them.
If there is a son then the daughter, ceases to be considered as a quranic heir
and will be considered an agnatic (descended from the same male ancestor)
co-sharer which means she will get only half of what the son gets.
Sons and daughters can be excluded by no other heirs.
Husband and wives are also considered Quranic heirs and they too can not be
excluded by any other heir.
A widow will receive one fourth or one eighth of the share depending upon
whether there is a child or a sons descendants.
A widower will receive half or one fourth.
If there is more than one widow, there collective share will be one eighth of
the total inheritance. This will have to be shared equally between all the
widows.
Blood related (Consanguine, same father) and uterine (same mother) sisters
are considered as Quranic heirs but can be excluded by male agnatic
descendants and ascendants depending on the circumstances.

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Testamentary succession Muslim Laws :


<refer to General Intro to Succession Laws of India in this doc>

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GO TO CONTENTS.

Intestate succession Muslim Laws :


There is no codified law for Muslims in the area of succession. They are governed
by their religious texts.

Sunnis :
Among Sunnis, heirs are divided into three categories
sharers (Quranic heirs),
residuaries (agnatic heirs), and
distant kindred (uterine heirs).
Sharers are the most preferred heirs. First of all, sharers are allotted their
Quranic shares. If their shares exhaust the entire estate, then sharers exclude
residuaries and distant kindred.
If something is left behind after allotting shares to Quranic heirs, then, it goes
to residuaries.
The distant kindred are not entitled to succeed so long as there is any heir
belonging to the class of Quranic heirs or residuaries.
But there is one case in which distant kindred will inherit with the sharer :
when there is only one sharer i.e. the wife or husband of the deceased and no
other sharer or residuary exist.
Shias :
Among Shias, heirs are divided into two categories,
heirs by consanguinity, which in turn has 3 categories,
Class I includes parents and children.
Class II includes grandparents, brothers and sisters, and their
descendants etc.
Class III includes paternal and maternal uncles and aunts of the
deceased, and of his parents, grandparents etc.
heirs by marriage i.e. husband and wife.
Among the heirs by consanguinity, the first group excludes the second and the
second group excludes the third.
The claimants in both the categories i.e. heirs by consanguinity and heirs by
marriage succeed together, if there are heirs of both the categories.

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Rights to Succession under Christian, Parsi, Jew Laws :


Intro to Christian, Parsi, Jew succession laws :
Indian Succession Act, 1925 is applicable in this case :
The Indian Succession Act came into operation on 30th September 1925 and it
seeks to consolidate all the Indian Laws relating to succession.
Indian Succession Act has no retrospective operation and is applicable to
intestate and testamentary succession.
Inheritance in absence of a Will Under the Indian Succession Act :
Section 27 of the Indian Succession Act, 1925 states that there is no
distinction for the purposes of succession,
(a) Between those who are related to a person deceased to his father and
those who are related to him through his mother
(b) Between those who are related to a deceased person by full blood and
those who are related to him by half blood
(c) Between those who are actually born and those who were only
conceived in womb, but who have been subsequently born alive.

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Distribution of property under Indian Succession Act 1925 :


<read elsewhere in this doc>

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Succession Rights of women in Indian Succession Act 1925 :


What are the laws relating to Christian Womens right to succession ?
The Indian Succession Act, 1925 provides that succession to immovable

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property in India of a deceased person who is not a Hindu, Muslim, Buddhist,


Sikh or Jain shall be regulated by the said law.
Note that, the provisions of the Indian Succession Act, 1925 are not applicable
to Muslims. However, a Muslim cannot claim immunity if his marriage 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.
Where a will is governed by the Muslim Law, it will be subject to the provisions
of the Shariat Act 1937.

GO TO SUB-MENU of ALL inclusive question on principles of succession.


GO TO MODULE-2 QUESTIONS.
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Testamentary succession Indian Succession Act 1925 :


<refer to General Intro to Succession Laws of India in this doc>

GO TO SUB-MENU of ALL inclusive question on principles of succession.


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Intestate succession Christian & Jews Indian Succession Act 1925 :


CHAPTER II (Sec-31-49) of India Succession Act 1925 contains Rules in cases of
Intestates other than Parsis : Intestate succession to Christians & Jews :
Section 32 of the Indian Succession Act, 1925 : the property of an intestate
devolves upon the wife, husband or upon those who are kindred of the
deceased.
A widow will not be entitled to provisions, if by a valid contract, she has been
excluded from her share of her husbands estate.
Section 33 Indian Succession Act 1925 : the intestate has left a widow :
(a) If he has also left any lineal descendant, one third of his property shall
belong to the widow and the remaining two third shall go to the lineal
descendants according to the rules herein after being contained.
(b) If no lineal descendant is left but persons who are kindred to him have
been left, one or half of his property shall belong to the widow and the other
half shall go to those who are kindred to him.

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(c) If none of the kindred relative are alive his entire property shall belong to
his widow.
Note : Lineal descendants mean descendant born in lawful wedlock only.
Section 33-A of the Indian Succession Act 1925 :
(1) intestate has left widow and no lineal descendant a net value of the
property that does not exceed Rs.5,000 and the whole of his property shall
belong to the widow.
(2) When the net value of the property exceeds Rs. 5,000, the widow shall be
entitled to Rs. 5,000 thereof and shall have a charge upon the whole of such
property for such sum of five thousand rupees, with interest thereon from the
date of the death of the intestate at 4 per cent. per annum until payment.
(3) The net value of the property shall be ascertained by deducting from the
gross value all the deeds, funeral expenses, administration expenses of the
intestate and any other lawful liabilities and charges to which the property
shall be subject.
Section 34 of the Indian Succession Act, 1935 where the intestate has left no
widow, and where he has left no kindred his property shall go to lineal
descendant and if none are there, it shall go to the government.
Section 35 of the Indian Succession Act : intestate has left a widower :
A husband surviving his wife has the same rights in respect of her property, if
she dies intestate, as a widow has in respect of her husbands property, if he
dies intestate.
(Section 36-40) Where an intestate has left lineal descendants, the rules
for the distribution of his property (after deducting the widows share. If he has
left a widow) are as follows :
(Lineal descendants mean descendant born in lawful wedlock only.)
Where the intestate has left surviving him a child or children, but no more
remote lineal descendant through a deceased child, the property shall belong
to his surviving child, if there is only one, or shall be equally divided among all
his surviving children.
Where the intestate has not left surviving him any child, but has left a
grandchild or grandchildren and no more remote descendant through a
deceased grandchild, the property shall belong to his surviving grandchild if
there is only one, or shall be equally divided among all his surviving
grandchildren.
Where intestate has left only great-grandchildren or remoter lineal
descendants, the property shall go to the surviving lineal descendants who are
nearest in degree to the intestate, where they are all in the degree of great-

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grandchildren to him, or are all in a more remote degree.


Where intestate leaves lineal descendants, not all in same degree of kindred
to him, and those through whom, the more remote are descended, are dead :
1. If the intestate has left lineal descendants who do not all stand in the
same degree of kindred to him, and the persons through whom the more
remote are descended from him are dead, the property shall be divided into
such a number of equal shares as may correspond with the number of the
lineal descendants of the intestate, who either stood in the nearest degree
of kindred to him at his decease, or, having been of the like degree of
kindred to him, died before him, leaving lineal descendants who survived
him.
2. One of such shares shall be allotted to each of the lineal descendants
who stood in the nearest degree of kindred to the intestate at his decease;
and one of such shares shall be allotted in respect of each of such deceased
lineal descendants; and the share allotted in respect of each of such
deceased lineal descendants shall belong to his surviving child or children
or more remote lineal descendants. As the case may be; such surviving
child or children, or more remote lineal descendants, take the share which
his or their parent or parents would have been entitled to, respectively, if
such parent or parents had survived the intestate.
(Section 41-48) Where an intestate has left no lineal descendants, the
rules for the distribution of his property (after deducting the widows share, if he
has left a widow) are as follows :
If the intestates father is living, he shall succeed to the property.
If the intestates father is dead, but the intestates mother is alive, and if any
brother or sister and the child or children of any brother or sister who may
have died in the intestates lifetime were also alive, then the mother and each
living brother or sister, shall be entitled to the property in equal shares, such
children (if more than one) will take in equal shares which their respective
parents would have taken if they were alive during the intestates death.
If the intestates father is dead, but the intestates mother is living, and the
brothers and sisters are all dead, but all or any of them have left children who
survived the intestate, the mother and the child or children of each deceased
brother or sister shall be entitled to the property in equal shares, such
children (if more than one) will take in equal shares only the shares which
their respective parents would have taken if living at the intestates death.
If the intestates father is dead, but the intestates mother is living, and there
is neither brother, nor sister, nor child of any brother or sister of the intestate,
the property shall belong to the mother.

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Where the intestate has left neither lineal descendants, nor father, nor mother,
the property shall be divided equally between his brothers and sisters and the
child or children of such of them as may have died before him. Such children
(if more than one) will take in equal shares only the shares which their
respective parents would have taken if living at the intestates death.
Where the intestate has left neither lineal descendants, nor parents, nor
brother, nor sister, his property shall be divided equally among those of his
relatives who are in the nearest degree of kindred to him.
NOTE : Where intestate has left no widow/ widower, no lineal descendants and
where he has left no kindred, all property shall go to the government.
Illustration : The property devolves upon the wife or husband or upon the
relatives of the deceased in the following manner :
If A has left no will - He has died intestate in respect of the whole of his
property.
A has left a will, whereby he has appointed B as his executor; but the will
contains no other provisions - A has died intestate in respect of the
distribution of his property.
A has bequeathed his whole property for an illegal purpose A has died
intestate in respect of the distribution of his property.
When a will is partially incapable of being operative eg. A has bequeathed Rs.
1000 to B and Rs. 1000 to the eldest son of C, and has made no other
bequest; and has died leaving the sum of Rs. 2000.00 and no other property.
C died before A without having ever had a son. A has died intestate in
respect of the distribution of Rs.1000.

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Intestate succession Parsi Laws :


CHAPTER III (Sec-50-56) of Indian Succession Act 1925 contains Special Rules
for Parsi Intestates :
Section 50 of the act. Intestate succession among Parsis
(a) There is no distinction between those who were born and those who were
conceived in the womb.
(b) If an intestate dies without leaving a widow or widower or any lineal
descendant the property shall be divided.

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(c) Where a widow of an intestate has been married, she shall not Division of
the male property among widow, children and parents- Section
51 of the Indian Succession Act, 1925 provides property of a male parsi who dies
intestate, shall be divided between a widow and children so that the share of
each son and of the widow shall be double than the share of each daughter :
(a) Where the children are there and wife is no more, the property is divided
among children so that the share of each son shall be double the share of
each daughter.
(b) Where the male Parsi dies leaving one or both parents in addition to
children or a widow, the property shall be divided so that father receive the
equal share to the half share of the son and the mother shall receive a equal
share to half the share of a daughter.
(c) In the division of female intestate property among a husband and children,
section 52 of the Indian succession act the property of which a female Parsi
dies intestate, shall be divided :
(i) When she dies, and there remains only a husband and children.
Husband and each child shall receive equal shares.
(ii ) Where she dies and there remain only children the property would be
divided among the children in equal shares
Division of share of pre deceased child of intestate living lineal descendant :
According to section 53 of the Indian Succession Act 1925 in all cases, where a
parsi dies living any lineal descendant, if any child of such intestate has died in
the lifetime of the intestate, the division of the share of the property of which
the intestate has died, which such child would have taken if living at the
intestate dead shall be in the following manner-
(a) If such deceased child was a son, his widow and children shall take shares
as if he had died immediately after the intestates death. But if such deceased
son has left a widow or widow of a son, but no children, the residue of his
share after such distribution shall be divided taking into account as though he
were alive.
(b) If such deceased child was a daughter, her share shall be divided equally
among her children.
(c) If any child of such deceased child has also died during the life time of the
intestate ,which he or she would have taken if living at the intestate death,
shall be divided as stated in clause a & b
Distribution of property where the intestate leaves no children but leaves a
widow or a widower or a widow of the lineal descendent
section 54 of the Indian Succession Act, 1925, when a Parsi dies without living

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any lineal descendant but leaves a widow or a widower or a widow of a lineal


descendant, the property shall be divided in the following manner :
(a) If the intestate leaves the widow or a widower, both shall take half of the
same property.
(b) But if the intestate leaves a widow or widower and also a widow of any
lineal descendent, his widow or her widower shall receive one third of the said
property and the widow of any lineal descendant shall receive another one
third.
(c) If the intestate leaves no widow or widower but one widow of a lineal
descendant, she shall receive one third of the said property. If there is more
than one widow of a lineal descendant, two third of the said property shall be
divided among such widows in equal shares.
(d) Distribution among relatives shall be made in the following manner :
(i) Father and mother
(ii) Brother and sister (other than uterine brother and sister)
(iii) Paternal grandfather and paternal grandmother
(iv) Children of paternal grandfather and lineal descendants of such of them
as have pre-deceased the intestate.
(v) Paternal grand-fathers father and mother.
(vi) Paternal grandfather, fathers children and lineal descendant of such of
them as have pre-deceased the intestate.
Section 55 of the Indian Succession Act : Where there are no relatives entitled to
residue share Distribution of property may intestate may leave neither lineal
descendants nor a widow or a widower nor a widow of lineal descendant :
When a Parsi dies leaving neither lineal descendants nor a widow or widower
nor "a widow or widower of any lineal descendant"
his or her next-of-kin, in the order set forth in Part II of Schedule II, shall
be entitled to succeed to the whole of the property of which he or she dies
intestate.
The next-of-kin standing first in Part II of that Schedule shall be preferred
to those standing second, the second to the third, and so on in succession,
provided that the property shall be so distributed that "each male and
female standing in the same degree of propinquity shall receive equal
shares".
Section 56 of the Indian Succession Act, 1925 : Division of property where there
is no relative entitled to succeed under the provisions of the chapter :
the estate of a parsi and the property shall be divided equally among those of

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the intestate relative who are in the nearest degree of kindred to him.

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Discuss : Devolution of interest in Mitakshara coparcenary with reference to the


provision of Hindu Succession Act, 1956.
Answer :
Refer :
<read from module-1>

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Discuss : Classification of heirs under Hanafi and Ithana Ashria school and their
share and distribution of property.
Answer :
Refer :
read from Critical study between Hanafi & Shia Law as to Succession --->
https://www.academia.edu/8794744/family_law

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

What are the requirement of a valid adoption under the Hindu Adoption and
Maintenence Act 1956 ? Discuss. (Apr-2012, Oct-2012, Apr-2016).
Answer :
Refer :
Taken from Sem-3 notes :-)
What is adoption ?
Simply stated : Adoption is a process whereby a person assumes the parenting for
another who is not kin and, in so doing, permanently transfers all rights and
responsibilities from the original parent or parents.
Sec.2 (aa) of the Juvenile Justice (Care and Protection of Children) Act, 2000,

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defines adoption as follows :


Adoption means the process through which the adopted child is permanently
separated from his biological parents and becomes the legitimate child of his
adoptive parents with all rights, privileges and responsibilities that are attached
to the relationship.
Adoption can be a beautiful solution not only for the childless couples and single
people but also for homeless children. It enables a parent-child relationship to be
established between persons not biologically related.
Adoption is defined as a process by which people take a child not born to them and
raise it as a member of their family.
Adoption is the transplantation of a son/daughter from the family in which he/she
is born, into another family by gift made by his/her natural parents to his/her
adopting parents.
What is the history of adoption under the Personal Law in India ?
Adoption as a legal concept was available only among the Hindus. It allowed to
legally adopt a child and the other communities could only act as a legal guardians
of the child.
The religion-specific nature of adoption law was a very retrograde step. It
reinforced practices that were unjust to children and hindered the formation of a
Uniform Civil Code.
Article 44 of the Constitution declares: The State shall endeavour to secure for the
citizens a Uniform Civil Code throughout the territory of India. Over the years,
several attempts were made to formulate a general secular law on adoption. The
attempts of Parliament in this direction did not bear fruit, all these went in vain on
account of a number of reasons. The history of all such efforts does not bring credit
to the secular credentials of the Indian polity.
The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it.
The Adoption of Children Bill, 1980, aiming to provide for an enabling law of
adoption applicable to all communities other than the Muslim community, was
opposed by the Bombay Zoroastrian Jashan Committee, which formed a special
committee to exempt Parsis from the Bill.
The National Adoption Bill, tabled twice in Parliament in the Seventies, has yet to
enter the statute books.
The history of attempt to bring in the concept of secular adoption into our system
of laws narrates a sad tale of inaction and action without conviction on the part of
the legislature.
ADOPTION UNDER THE HINDU LAWs :
Adoption in the Hindus is covered by the Hindu Adoptions and Maintenance Act

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(HAMA), 1956 and after the enforcement of this Act all adoptions can be made in
accordance with this Act. It came into effect from December 21, 1956.
Salient provisions :
Before enactment of this Act, only a male could be adopted, but with the passing
of the Act it makes a provision that a female may also be adopted.
One of the features of this Act is that no Hindu person can adopt a son or
daughter, if they already have a child of that sex.
The HAMA provides that there should be an age difference of 21 years between
the adoptive parent(s) and the adopted child whenever they are of opposite sex.
This is intended to prevent sexual abuse.
What are the laws under which adoption can be made ? There are three legislations
under which adoption can be made. They are :
The Hindu Adoptions and Maintenance Act (HAMA), 1956
Guardians and Ward Act ,1890
The Juvenile Justice (Care and Protection of Children) Act, 2000.
Who has a right for adoption under the HAMA ?
Only Hindus, Buddhists, Jains and Sikhs and to any other person who is not a
Muslim, Christian, Parsi by religion. (section 2(1)(a)(b)(c))
WHAT ARE THE REQUIREMENTS FOR A VALID ADOPTION ? As given in section 6,
no adoption can take place unless :
(A) The person adopting has the capacity and the right, to take in adoption
(B) The person giving a child in adoption has the capacity /right to do so:
(C) the person adopted is capable of being taken in adoption
(A) The person adopting has the capacity and the right, to take in adoption :
Capacity of male to adopt (Section 7) : Any male Hindu, who is of sound mind
and is not a minor, has the capacity to take a son or daughter in adoption.
Provided that,
if he has a wife living, he shall not adopt except with the consent of his
wife, unless his wife has completely and finally renounced the world or has
ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind.
if a person has more than one wife living at the time of adoption the
consent of all the wives is necessary unless the consent of one of them is
unnecessary for any of the reasons specified in the preceding provision.
Capacity of female to adopt (section 8) : Any female Hindu
who is of sound mind

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who is not a minor, and


who is not married, or if married, whose marriage has been dissolved or
whose husband is
dead or has completely and finally renounced the world or has ceased
to be a Hindu, or has been declared by a court of competent jurisdiction
to be of unsound mind,
has the capacity to, take a son or daughter in adoption.
In case the woman is married it is the husband who has the right to take in
adoption with the consent of the wife.
(B) The person giving a child in adoption has the capacity /right to do so :
Section 9 of Hindu Adoptions and Maintenance Act (HAMA), 1956
No person except the father or mother or guardian of the child shall have
the capacity to give the child in adoption.
The father alone, if he is alive, shall have the right to give in adoption, but
such right shall not be exercised except with the consent of the mother
unless the mother has completely and finally renounced the world or has
ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind.
The mother may give the child in adoption if the father is dead or has
completely and finally renounced the world or has ceased to be a Hindu, or
has been declared by a court of competent jurisdiction to be of unsound
mind.
Where both the father and mother are dead or have completely and finally
renounced the world or have abandoned the child or have been declared by
a court of competent jurisdiction to be of unsound mind or where the
parentage of the child is unknown - the guardian of the child may give the
child in adoption with the previous permission of the court.
The court while granting permission shall be satisfied that the adoption is
for the welfare of the child and due consideration will be given to the
wishes of the child having regard for the age and understanding of the
child.
The court shall be satisfied that no payment or reward in consideration of
the adoption except as the court may sanction has been given or taken.
(C) the person adopted is capable of being taken in adoption : (section 10) No
person can be adopted unless
He or she is a Hindu;
He or she has not already been adopted;

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He or she has not been married, unless there is a custom or usage applicable
to the parties, which permits persons who are married being taken in
adoption;
He or she has not completed the age of fifteen years unless there is a custom
or usage applicable to the parties which permits persons who have completed
the age of fifteen years being taken in adoption.
WHAT ARE THE OTHER CONDITIONS FOR A VALID ADOPTION ? Section 11
provides for the conditions to be complied with. They are as follows :
i) If the adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son. The sons son or sons sons son
living at the time of adoption
ii) If the adoption is of a daughter, the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or sons daughter living at the
time of adoption;
iii) If the adoption is by a male and the person to be adopted is a male, the
adoptive father is at least twenty one years older than the person to be adopted;
iv) If the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty one years older than the person to be
adopted;
v) The same child may not be adopted simultaneously by two or more parents;
vi) The child to be adopted must be actually given and taken in adoption with an
intent to transfer the child from the family of birth.
WHAT ARE THE EFFECTS OF ADOPTION ?
An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of adoption.
However, any property which vested in the adopted child shall continue to vest in
such person subject to the obligations if any attached to the ownership of such
property including the obligation to maintain relatives in the family of his or her
birth.
Similarly the adopted child shall not divest a person of any estate which vested
in him or her before adoption.
Subject to any agreement to the contrary, an adoption does not deprive the
adoptive father or mother of the power to dispose of his or her property by
transfer inter vivos or will.
REGISTRATION :
The adoption deed is not required to be registered (except in Uttar Pradesh),
except where it declares or reserves an interest worth Rs. 100 or more for a

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third person in an immovable property.


However, authority to adopt is required to be registered under section 17(3),
Indian Registration Act. The Hindu Minority and Guardianship Act, 1956 (32 of
1956) has codified laws of Hindus relating to minority and guardianship.
Other provisions :
Natural guardian for both boys and unmarried girls is first the father and then
the mother.
Prior right of mother is recognised only for the custody of children below five.
In case of illegitimate children, the mother has a better claim than the putative
father.
The act makes no distinction between the person of the minor and his property
and, therefore guardianship implies control over both. The Act directs that in
deciding the question of guardianship, courts must take the welfare of child as
the paramount consideration. A guardian may be a natural guardian,
testamentary guardian or a guardian appointed by the court. In deciding the
question of guardianship, two distinct things have to be taken into account
person of the minor and his property. Often the same person is not entrusted
with both.
ADOPTION UNDER MUSLIM, CHRISTIAN AND PARSI LAWs :
(The Guardians and Wards Act, 1890)
Personal laws of Muslims, Christians, Parsis do not recognise complete adoption.
Muslims, Christians and Parsis can take a child under the said Act only under foster
care. Once a child under foster care becomes major, he is free to break away all
his connections. Besides, such a child does not have legal right of inheritance.
Foreigners, who want to adopt Indian children have to approach the court under
the aforesaid Act. In case the court has given permission for the child to be taken
out of the country, adoption according to a foreign law, i.e., law applicable to
guardian takes place outside the country.
As non-Hindus do not have an enabling law to adopt a child legally, the people
belonging to these religions who are desirous of adopting a child can only take the
child in guardianship under the provisions of the Guardians and Wards Act, 1890.
The statute does not deal with adoption as such but mainly with guardianship.
However, these persons can adopt the children from orphanage by obtaining
permission from the court under the Guardians and Wards Act.
The process makes the child a ward, not an adopted child. Under this law, when
children turn 21 years of age, they no longer remain wards and assume
individual identities. They do not have an automatic right of inheritance.
Adoptive parents have to leave whatever they wish to bequeath to their children

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through a will, which can be contested by any `blood relative.


The aforesaid enactments remain silent about the orphan, abandoned and
surrendered children. There was no codifi ed legislation dealing with the adoption of
the children of these categories. As a result, several misconceptions or irregularities
appeared in respect of the custody, guardianship or adoption of these types of
children, which were prejudicial to the interest of the children.
Considering all the aspects mentioned above laudable attempt were undertaken
by the legislature by the stipulations, which have been made in Chapter IV of the
Juvenile Justice (Care and Protection of Children) Act, 2000. This enactment
shows that the legislature may be found to have accepted the concept of secular
adoption whereby without any reference to the community or religious
persuasions of the parents or the child concerned, a right appears to have been
granted to all citizens to adopt.
It is pertinent to mention here that there arises confusion as to the interpretation
as well as concept of adoption as because the expression Adoption has not been
defined at all in the enactments like HAMA or GAWA. Moreover, the legal status of
the adopted child has not declared to be equal to that of a biological legitimate
child. Though at the initial stage the Juvenile Justice (Care and Protection of
Children) Act, 2000 did not contain these factors, these are introduced in Juvenile
Justice (Care and Protection of Children) Amendment Act, 2006.
Islam does not recognise adoption. In Mohammed Allahabad Khan v. Mohammad
Ismail, it was held that there is nothing in the Muslim Law similar to adoption as
recognised in the Hindu System.
Acknowledgement of paternity under Muslim Law is the nearest approach to
adoption. The material difference between the two can be stated that,
in adoption, the adoptee is the known son of another person,
while one of the essentials of acknowledgement is that the acknowledgee
must not be known son of another.
However, an adoption can take place from an orphanage by obtaining permission
from the court under Guardians and wards Act.
Likewise, the Personal Laws of Christians and Parsis communities also do not
recognise adoption and here too an adoption can take place from an orphanage by
obtaining permission from the court under Guardians and Wards Act.
National Commission on Women has stressed on the need for a uniform adoption law.
The general law relating to guardians and wards is contained in the Guardians and
Wards Act, 1890. It clearly lays down that fathers right is primary and no other
person can be appointed unless the father is found unfit. This Act also provides that
the court must take into consideration the welfare of the child while appointing a
guardian under the Act.

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GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Explain the provisions relating to adoption and acknowledgement of paternity and


maternity under Hindu law. (Apr-2012, Apr-2013).
Answer :
Refer :

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

State the different kinds of guardians under the Hindu Law and discuss the powers
of natural guardian. (Oct-2012).
State who are natural guardians of a Hindu minor. What are the powers of such
natural guardian ? (Apr-2012, Apr-2016).
Write short note : natural guardians of a Hindu minor and their powers. (Apr-2013).
Answer :
Refer :
Taken from Sem-3 notes :-)
http://hanumant.com/MinoriyAndGuardianship.html
Hindu Minority and Guardianship Act 1956
Evolution of the concept of guardianship :
In Hindu dharma shastras, not much has been said about guardianship. Due to the
concept of joint families, a child without parents was usually cared for by the head
of the joint family. Further, it was well accepted that the king is the guardian of all
the orphans. Thus, no specific laws were required regarding guardianship.
During British period, guardianship was primarily based on the extension of
paternal authority. Thus, after parents, elder brothers,paternal uncles, and then
maternal relations used to look after the interests of the minor. The British also
introduced the concept of testamentary guardians in India.
The concept of guardianship has changed from paternal power to the idea of
protection in modern times and the Hindu Minority and Guardianship Act 1956
(HMG Act 1956) codifies the laws regarding minority and guardianship with the

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welfare of the child at the core.


A person below the age of 18 yrs is considered to be a minor as per Section 4 of
HMGA 1956. Such a person is not capable of taking care of himself or of handling
his affairs and thus requires help, support, and most importantly, protection, which
is usually provided by the parents. However, in many unfortunate cases, parents
are not available and in those cases other relatives or persons come to the rescue.
Thus, parents and other people who look after a minor are called as guardians in
general parlance. Sec 4 of HMGA 1956 defines Guardian as follows:
Kinds of guardians :
Definition : Section 4 of HMG 1956 : Guardian means a person having the care of a
person of a minor or of his property or of both the person and his property. This
includes :
1. natural guardian
2. guardian appointed by the will of a natural guardian (testamentary guardian)
3. a guardian appointed or declared by court
4. a person empowered to act as such by the order of Court of Wards.
Above list of 4 types of guardians is not exhaustive.
5. a person who is taking care of a minor without authority of law, can also be
a guardian under the above definition and is called a de facto guardian. De
facto guardians include self appointed guardians and guardians by affinity,
such as guardians for a minor widow. However, a person does not have right
to sell or deal with minor's property if he is merely a de factor guardian as per
section 11.
1. Natural Guardian :
Section 6 of HMG Act 1956 defines only three natural guardians:
For a legitimate boy or a girl, the father, and after father, the mother, provided
that the custody of a child less than 5 yrs of age will be with the mother.
For an illegitimate boy or a girl, the mother, and after mother, the father.
For a married woman, the husband.
It further states that no person shall be entitled to be a natural guardian of a minor
if,
he ceases to be a Hindu or
he renounces the world completely by becoming a sanyasi.
Note that, here, by 'father' and 'mother', natural father and mother are meant.
Step father or step mother do not have any right to guardianship unless
appointed by court.

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As per section 7, natural guardianship of an adopted son passes on to his adoptive


father and after adoptive father, to adoptive mother.
Positions of father, mother and husband :
Position of Father : Pre- 1956, the right of the father was supreme. He could
even appoint a person to act as a guardian after his death even if the mother
was alive. This is not the case now. Further, as held in the case of Lalita vs.
Ganga AIR 1973 Raj., a fathers right to guardianship is subordinate to the
welfare of the child. In the case of Githa Hariharan vs RBI AIR 1999 SC held the
mother to be the natural guardian in spite of the father being alive and further
held that the word "after" means "in the absence" rather than "after the life" of
the father. Thus, if a father is incapable of protecting the interests of a minor due
to any reason, he can be removed from guardianship.
Position of Mother : The mother is the natural guardian of her illegitimate
minors. In case of legitimate minors, the mother has right to custody of a minor
less than 5 yrs of age. This does not mean that mother does not have the right
to custody after 5 yrs of age. In case of Sheela vs Soli, 1981 Bom HC, it was
held that a mother's right to guardianship is not lost upon conversion to another
religion if she is able to provide proper care to the minor. Further, in Kumar vs
Chethana AIR 2004, SC has held that the mother's right to guardianship is not
lost automatically after her remarriage. In all such cases, welfare of the child
has to be considered above all including the convenience and pleasure of the
parents.
Position of Husband : In Hindu shastras, husband and wife are considered to be
one. Thus, it is believed that the guardianship of a minor wife belongs to the
husband. However, due to section 13, a court may revert the guardianship to the
father or mother depending on the best interests of the minor.
Powers of a natural guardian (Sec 8) :
Section 8 of HMGA 1956 describes the powers of a natural guardian as follows :
A guardian can do any act, subject to provisions of this section, that are
necessary or are reasonable and proper for the benefit of the minor or the
benefit of the minor's estate. But the guardian, in no case, shall bind the
minor by a personal covenant.
The guardian cannot, without prior permission from the court,
mortgage, charge, or transfer the immovable property of the minor by way
of sale, gift, exchange, or otherwise.
lease the immovable property for a term more than 5 years or where the
lease ends one year after the minor attains majority.
Any sale of immovable property in violation of the above two points, is voidable
at the insistence of the minor.

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The court shall not give permission for sale of immovable property unless it is
necessary or clearly in the benefit of the minor.
Powers of a natural guardian also include the following :
right in education
right to determine religion
right to custody
right to control movement
right to chastisement
Case-law : In the case of Manik Chandra vs Ram Chandra AIR 1981 SC has held
that the meaning of "necessity" and "advantage" of a minor are quite wide and
the courts have the power to widen their scope as per the case facts before
giving the permission. As per section 12, no guardian can be appointed for the
undivided interest in the joint property of the minor. However, the court may
appoint a guardian for the complete joint family if required.
2. Testamentary Guardian (Sec 9) :
A person who becomes a guardian due to the will of a natural guardian is called a
testamentary guardian. Section 9 defines a testamentary guardian and his powers.
For a legitimate boy or a girl, the father, who is a natural guardian, may appoint
any person to act as the guardian of the child after the death of the father.
However, if the mother is alive, she will automatically become the natural
guardian and after her death, if she has not named any guardian, the person
appointed by the father will become the guardian.
A widow mother who is a natural guardian, or a mother who is a natural
guardian because the father is not eligible to be a natural guardian, is entitled to
appoint a person to act as a guardian after her death.
For an illegitimate child, the power of appointing a testamentary guardian lies
only with the mother.
Powers of a Testamentary Guardian :
A testamentary guardian assumes all powers of a natural guardian subject to
limitations described in this act and to the limitations contained in the will. A
testamentary guardian is not liable personally for the expenses and he can ask
the guardian of the property of the minor to meet the expenses through the
property.
The rights of the guardian appointed by will cease upon the marriage of the girl.
Guardianship by Affinity :
In Paras Nath vs State, Allahbad HC 1960, held that the father-in-law is the rightful
guardian of a minor widow. However, this view has not been adopted by Nagpur

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HC. Madras HC also did not hold this view and held that the welfare of the child is
to be considered first before anything else.
De Facto Guardian :
Section 11 says that a de facto guardian is not entitled to dispose or deal with the
property of the minor merely on the ground of his being the de facto guardian.
There is controversy regarding the status of a de facto guardian. Some HC consider
that alienation by de facto guardian is void while alienation by de jure guardian is
voidable (Ashwini Kr vs Fulkumari, Cal HC 1983), while some HC have held that
both are voidable (Sriramulu' case 1949). It is now well settled that de facto
guardian does not have the right to assume debt, or to gift a minor's property, or
to make reference to arbitration.
Who gets custody of a minor ?
Custody of a minor is also subordinate to section 13, which declares the welfare of
the child to be of paramount interest. Regarding a child, who is at the age of
discretion, his wishes are also to be considered, though his wishes may be
disregarded in his best interest.
That a mother is preferred to father for custody is not right. Better economic
condition of the father than maternal grandfather is considered to be in favor of the
father. In Kumar vs Chethana AIR 2004, SC has held that mother's remarriage is
not a sufficient cause in itself to lose custody of a minor. It was further held that
convenience of the parents is irrelevant.
To ensure the welfare of the child, the custody may even be given to the third
person as was given to the mother and grand father by SC in case of Poonam vs
Krishanlal AIR 1989.
In the case of Chakki vs Ayyapan 1989, a mother who says she will keep living with
friends and may beget children from others, was not considered appropriate for
custody in the minor's interest.
Guardians power over minor's property :
In general, a guardian may do all acts that are in the interest of the minor. A third
party may deal safely with the guardian in this respect. However, this excludes
fraudulent, speculative, and unnecessary deals. Before this act, a natural and
testamentary guardian had the power to alienate the minor's property if it is
necessary as determined by SC in Hanuman Prasad vs Babooee Mukharjee 1856.
However, this rule has been restricted through sec 8, which mandates courts
permission before alienating the minor's interest in the minor's property. Also, a
guardian does not have any right over the joint family interest of a minor.
In the case of Vishambhar vs Laxminarayana, 2001, SC has held that a sale of
minor's immovable property without courts permission is voidable and not void ab-
initio. It further held that Sec 60 of Limitations Act would be applicable when the

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minor repudiates the transaction.


In case, a minor repudiates an improper alienation made by the guardian, he is
liable to return the consideration.
Liabilities of a guardian :
Since the legal position of a guardian is fiduciary, he is personally liable for breach
of trust.
he is not entitled to any compensation unless explicitly specified in a will.
A guardian cannot take possession of minor's properties adversely.
must manage the affairs prudently.
liable to render all accounts.
If the minor, after attaining majority, discharges the guardian or reaches a
settlement of account, the guardian's liability comes to an end.
Rights of a guardian : A guardian has a right to
represent the minor in litigations.
get compensation for legal expenses from minor's property.
sue the minor after he attains majority to recover expenses.
refer matters to arbitration if it is in the best interest of the minor.
have exclusive possession of minor's property.
Removal of a guardian : Court has the power to remove any guardian in accordance
to section 13.
ceases to be a Hindu.
becomes hermit or ascetic.
court can remove if it finds that it is not in the best interest of the child.
Welfare of the minor is of paramount importance (Sec 13) :
While appointing or declaring a guardian for a minor, the count shall take into
account the welfare of the minor.
No person shall have the right to guardianship by virtue of the provisions of this act
or any law relating to the guardianship in marriage if the court believes that it is
not in the interest of the minor.
Thus, under this doctrine, any guardian may be removed depending on the
circumstances on per case basis and the court may appoint a guardian as per the
best interests of the minor.

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

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Write short note : Doctrine of increase and return. (Apr-2012, Apr-2013, Mar-2015).
Write short note : Doctrine of Rudd and Increase. (Oct-2012).
Answer :
Refer :
http://www.shareyouressays.com/117394/what-is-doctrine-of-increase-aulmuslim-
property-law-in-india
http://www.shareyouressays.com/117396/what-is-the-rule-of-return-radd-under-
the-muslim-law-of-inheritance
https://www.academia.edu/8794744/family_law
What is Doctrine of Increase (Aul)?
According to Muhammadan law, the shares of various sharers are fixed.
Where several sharers co-exist, it sometimes happens that the total of their
respective shares exceeds unity (one).
Example : suppose the deceased leaves behind a husband and two full sisters.
Ordinarily, the husband will take 1/2, as there is no child or child of a son how
lowsoever, and the two sisters together will take 2/3, as there is no son. 1/2 +
2/3 = 7/6 which exceeds unity, and the property falls short in distribution. How
then is the deceaseds property to be divided?
This difficulty is solved by increasing the common denominator to the sum of the
numerators, and thus reducing the fractions without disturbing the proportion
between them. Thus, in the illustration taken above, on reducing the fractions to
the common denominator one gets1/2 = 3/6 and 2/3 = 4/6.
Thus, with the common denominator the shares are: husband = 3/6 and two
sisters = 4/6. (The sum of the numerators is 7.] Now, the common denominator
is increased to the sum of the numerators, (i.e., 7). On doing this, the shares
would be as follows: husband: 3/7 and two sisters 4/7 (3/7 + 4/7 = 1.)
It may be noted that this doctrine is called increase, not because the shares
are increased, which is quite the opposite, the very object of the doctrine being
to diminish the shares, but because the unity is reached by increasing the
denominator of the fractional shares.
In other words, if it is found, on assigning their respective shares to the sharers,
that the sum total of the shares exceeds unity, the share of each sharer is
proportionately diminished, by reducing the fractional shares to a common
denominator and increasing the denominator, so as to make it equal to the sum
of the numerator.
Difference between Shia and Sunni Law of Increase :

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According to the Sunni law, the doctrine implies proportionate reduction of all
the shares.
According to the Shia law, on the other hand, it implies the reduction of the
shares of the daughter or the daughter and full or consanguine sister or sisters
only. Other heirs do not suffer.
What is Doctrine of Return (Rudd/ Radd)?
If, on assigning their shares to the sharers, it is found that the total of the shares
does not exhaust the whole, the residue will go to the residuaries.
But if there are no residuaries, the residue will not go to distant kindred, but would
be distributed among the sharers in proportion to their shares. This right of
reverter is called radd (return).
Sunni Law :
The residuaries take the surplus between them, after the shares are satisfied.
But instances may occur where there is surplus left, but there are no residuaries
to take it. Thus, suppose A dies leaving behind his mother and a sons daughter
(both sharers), and no residuaries. Their shares respectively are 1/6 and 1/2.
This together makes 2/3 of, 4s property, leaving 1/3 of his property as surplus,
with no residuary to take it. In such a case, the surplus reverts to the sharers in
proportion to their shares. This is done by reducing the fractional shares to a
common denominator, and by decreasing the denominator of those shares, so as
to make it equal to the sum of the numerators. (This mathematical procedure is
just the reverse of what is done in the doctrine of aul.)
Thus, in the above illustration, the shares of the mother and the sons daughter
are 1/6 and 1/2 respectively. Reducing them to the common denominator, gives
1/6 and 3/6. The sum of the numerators is (1+3) = 4. By decreasing the
denominator of the shares to make it equal to the sum of the numerators, one
arrives at 1/4 and 3/4.
These will be the shares of the two sharers. Thus, the Return (Radd) is the
apportionment of surplus among the sharers, when the shares do not exhaust
the property, and there are no residuaries.
Exception : The husband or wife of the deceased is not entitled to share in the
return, so long as there is any other heir. If there are any other sharers, they will
share the return among themselves, without giving his or her share, the residue
will go to the distant kindred, if any.
It is only when there is no other heir belonging to any of the three classes of
heirs, sharers, residuaries or distant kindred, and the husband or wife is the
only heir, that he or she will take the residue by return, i.e., the whole of the
estate. (Mir Isub v. Isab, (1920) 20 Bom. L.R. 942.)

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Illustration :
A Sunni woman dies, leaving a husband and a mother. How will the estate
devolve?
Ans: The husband is entitled to 1/2 as a sharer, and the mother to 1/2 (1/3
as sharer and 1/6 by return).
A Sunni woman dies, leaving a husband and a daughter. How will the estate
devolve?
Ans: The husband will get 1/4 as sharer, and the daughter 3/4 (1/2 as
sharer and 1/4 by Return).
Shia Law :
Under the Shia law, if there is a surplus after satisfying the shares, it is not
necessary that there should be no residuaries in order to apply the doctrine of
return.
If there is a surplus left after the allotment of shares of the sharers, but there
are no residuaries in the class to which the shares belong, the surplus reverts to
the sharers in the proportion of their respective shares.
Difference between Increase and Return :
The doctrine of return is the converse of the doctrine of increase.
In increase, the shares exceed unity, and suffer a proportionate reduction.
In return, the shares fall short of unity, and are proportionately increased. In
return, the husband and wife do not benefit if there is any other sharer or a
distant kindred, but they are not saved from the operation of the doctrine of
increase.
Thus, the important points of difference between the two are as under:
1. In Increase, the total of the shares adds up to more than unity;
whereas in return the total falls short of unity.
2. In Increase, the shares undergo rateable reduction.
In Return, the shares undergo a rateable increase.
3. In Increase, the share of the husband or wife suffers a proportionate
reduction along with other sharers.
In Return, the husband or wife is not entitled to the Return so long as there
is any other heir, whether sharer or distant kindred.

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

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Write a note : Guardianship in marriage (Under Muslim law). (Apr-2016).


Answer :
Refer :
http://sanamurtaza.blogspot.in/2012/11/guardianship-under-muslim-law.html
Intro :
The term guardian is defined in the Guardians and Wards Act as a person having
the care of the person of a minor or of his property, or of both his person and his
property.
Kinds of guardianship under Muslim law :
(1) Guardianship in marriage (jabar)
(2) Guardianship of person of the minor for custody (hizanat)
(3) Guardianship of property
Here our discussion shall be limited to (1) Guardianship in marriage (jabar).
Muslim law makes a distinction between guardian of the person, guardian of the
property and guardian for purposes of marriage in case of minors.
Guardianship in marriage (jabar) :-
The following persons can act as guardians in the marriage of a minor, in the order
of enumeration :-
(i) Father
(ii) Fathers father
(iii) Full brother and other male relations on the fathers side
(iv) Mother
(v) Maternal relations within prohibited degrees
(vi) Qazi or the court
Shia law recognizes only the father and failing him the fathers father howsoever
high as guardian in the marriage of a minor.
The rule of Muslim law is that when a remote guardian allowed marriage, when the
nearer one is present, the validity of the marriage is dependent upon the latters
ratification and consent. A marriage by a remoter guardian when the nearer
guardian is present and has given his consent is not only irregular but void.
Removal of guardian : A guardian can be removed in the interest of the minor. The
court may remove a guardian appointed or declared by court or a guardian appointed
by will or other testament if :
(1) He abuses trust
(2) Fails to perform his duties

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(3) Incapacity to perform duties


(4) Ill-treatment or neglect of ward
(5) Continuous disregard of provisions of Guardianship and Wards Act or of any
order of the court
(6) Conviction of an offence showing moral turpitude
(7) Having interest adverse to his duties as a guardian
(8) Ceases to reside within limits of the court
(9) Goes insolvent (guardian of property)
(10)Cease to be under the law to which the minor is subject
Cessation of authority of guardianship :
(1) Death, removal or discharge
(2) By the court of wards assuming superintendence of the person of the minor
(3) Ward ceases to be minor
(4) In case of female, her marriage
(5) In case of minor whose father was unfit for guardianship, with father ceasing
to be so.
Difference between shia and sunni law :
(1) Under shia law, only father and true grandfather are guardian for marriage
while under sunni law, a number of other relations are also guardians.
(2) Under shia law, marriage by any other guardian is ineffective unless ratified
while under sunni law it maybe repudiated upon attaining majority.
(3) Under shia law, mother is guardian of son upto age of 2 years and of daughter
upto age of 7 years
while under sunni law, she is guardian of son upto the age of 7 years and of
daughter till she attains puberty.

GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Write short note : Domicile under Indian Succession Act. (Apr-2012, Apr-2013, Mar-
2015).
Answer :
Refer :

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GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

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Module-3) Gifts :

3.1) Essentials of valid gift under different family laws :


3.2) kinds of Gift : Competency of donor and donee, Subject matter of gift,
properties which can be and cannot be the subject matter of gift, void
gifts
3.3) Essentials of valid Hiba (Gift) under Muslim Law, kinds of Hiba,
Sadquah, Marz-ul maut, Revocation of gift

GO TO CONTENTS.

MODULE-3 QUESTIONS :

Discuss in detail : Essentials of valid gift under different family laws.


Explain the provisions of Gift under the Hindu Law and Hiba (Gift) under the
Muslim Law. (Apr-2012, Apr-2013, Mar-2015, Apr-2016)
Define Hiba (Gift) and describe various kinds of Hiba under the Muslim Law.
(Oct-2012, Mar-2014)
Write short note : Gift of musha. (Apr-2012, Apr-2013, Mar-2015)
Write short note : Gift to unborn child (Hindu Law). (Oct-2012)
Write short note : Bequest to an unborn person. (Mar-2015)
Write short note : Void gifts. (Mar-2014)
Discuss : Kinds of gift.
Discuss : Competency of donor and donee.
Discuss in detail the properties which can be and can not be subject matter of
gift. (Mar-2014)
Write short note : Difference between Sadkah (Sadquah) and Hiba. (Mar-2015)
Write short note : Marz-ul-maut gift. (Apr-2012, Apr-2013, Mar-2015)
Define wakf and discuss fully its essential characteristics. (Apr-2012, Apr-2013, Mar-
2015, Apr-2016)
Write short note : Mutawalli. (Apr-2012, Apr-2013, Apr-2016)

GO TO CONTENTS.

MODULE-3 ANSWERS :

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Discuss in detail : Essentials of valid gift under different family laws.


Explain the provisions of Gift under the Hindu Law and Hiba (Gift) under the
Muslim Law. (Apr-2012, Apr-2013, Mar-2015, Apr-2016)
Define Hiba (Gift) and describe various kinds of Hiba under the Muslim Law. (Oct-
2012, Mar-2014)
Write short note : Gift of musha. (Apr-2012, Apr-2013, Mar-2015)
Write short note : Gift to unborn child (Hindu Law). (Oct-2012)
Write short note : Bequest to an unborn person. (Mar-2015)
Write short note : Void gifts. (Mar-2014)
Discuss : Kinds of gift.
Discuss : Competency of donor and donee.
Discuss in detail the properties which can be and can not be subject matter of gift.
(Mar-2014)
Answer :
Refer :
https://lawstudyhelp.blogspot.in/2013/10/gift-in-hindu-law-definition-which.html
http://www.shareyouressays.com/117176/legal-provisions-regarding-gifts-under-
the-hindu-law
https://www.scribd.com/document/262979857/Family-Law-II-Notes
http://www.shareyouressays.com/117413/which-gifts-are-void-gifts-under-the-
muslim-law-in-india
Gift under Hindu law :
What is gift ? Definition of Gift :
In Hindu Law gift means creation of another persons proprietary right after the
extinction of ones own proprietary right in the subject matter of the gift.
Section 122 of transfer of property Act 1882, defines Gift as :
Gift is the transfer of ---- certain existing movable or immovable property
----- made voluntarily and ----- without consideration, ----- by one person
called the donor; ----- to another called the done, and ----- accepted by or on
behalf of the donee.
According to the Mitakshara,
A gift consists in the relinquishment without consideration of ones own right
of property, and the creation of the right of another. The creation of another
mans right is completed on that others acceptance of the gift, but not

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otherwise.
According to Hindu law, an acceptance of a gift can be made in three ways :-
Mental acceptance;
Verbal acceptance;
Corporeal acceptance;
Essentials of valid gift :
The essential elements of a gift are :
property to be gifted must exist
gift must be voluntary
The absence of consideration
The donor
The donee
The transfer of title and the acceptance by donee
Mere registration of a deed of a gift is not equivalent to delivery of possession; it
is not therefore sufficient to pass the title of the property from the donor to the
donee.
Gift when complete :
The traditional Hindu Law rules as to gifts were radically modified in 1882, by the
passing of the Transfer of Property Act in that year.
Under S. 123 of that Act, a gift of immovable property can only be effected by a
registered instrument signed by or on behalf of the donor and attested by at
least two witnesses.
Thus, delivery of possession is not an ingredient of a gift under that Act. As
regards movable property, the Act provides that a gift may be effected by a
registered instrument signed as aforesaid, or by delivery.
It may, however, be noted that there are certain areas in Punjab where the
Transfer of Property Act does not apply. And therefore, in such places, a gift is
still governed by traditional Hindu law, under which the gift may be in writing or
may even be oral.
However, such a gift is not valid, unless it is accompanied by delivery of
possession from the donor to the donee.
Kalidas v. Kanhaya Lal. 11 Cal. 121
In case the subject-matter of the gift is of such a nature that it is not possible
to gift physical possession, in order to validate the gift, it is enough if the
donor has done all that he could do to complete the gift, so as to entitle the
donee to obtain possession thereof.

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Thus, if a gift is made of a property which is in the adverse possession of a third


person, such a gift can be completed by the execution of a gift deed by the
donor in favour of the donee.
Similarly, a gift of property in the occupation of tenants can be completed by the
tenants atoning to the donee at the request of the donor. (This would mean that
the tenants would undertake to regard the donee as their landlord in place of
donor, and would agree to pay all future rent to donee instead of to the donor.)
Likewise, if the property to be gifted is already in the possession of the donee,
such a gift can be completed by the declaration of the gift on the part of the
donor and by acceptance thereof by the donee.
In cases where the Transfer of Property Act applies, the Hindu law rules that
delivery of possession is essential to the validity of the gift, has been abrogated
by S. 123 of that Act. Under the Act, delivery of possession is not necessary to
complete a gift.
Revocation of Gift :
Under Hindu law, once a gift is complete, it is binding on the donor, and it cannot
be revoked by him, unless it has been obtained by fraud or under influence.
(Ganga Bakash vs. Jagat Bahadar)
The courts have also observed that where a gift is made by a Hindu widow, the
burden lies upon the donee to show that the widow made the gift with a full
understanding.
In Deo kura vs. Man kura (1894), a gift was set aside in a suit brought eight
years after the date of the gift on the ground that the document of the gift
was not explained to the donor.
Gift to unborn child :
Under pure Hindu law, a gift cannot be made in favor of a person who was not in
existence at the date of the gift.
This rule still holds good, except in cases covered by any of the three following
Acts,
the Hindu Transfers and Bequests Act 1914,
the Hindu Disposition of Property act 1916, and
the Hindu Transfers and Bequests (City of Madras) Act 1921
Above three Acts have modified the provisions of the traditional Hindu law, by
providing that no gift will be invalid only because the persons for whose benefit
the gift has been made were not born at the date of the gift.
However, even this altered rule is now subject to the provisions contained in the
Chapter II of the Transfer of Property Act. These provisions may be summed up

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in the following four propositions :


(a) If the gift made to an unborn person is preceded by a prior disposition, the
gift should be of the whole residue.
(b) The gift must not contravene the rule against perpetuities laid down in S.
14 of the Transfer of Property Act.
(c) If the gift is given to a class of persons with regard to some of whom it is
void (under Rule 1 or Rule 2 above), the gift will fail with regard to such
persons only, and not in regard to all such persons.
(d) If the gift to an unborn person is void under Rule 1 or Rule 2 above, any
gift intended to take effect after such gift, will also be void.
Kinds of gifts :
Movable immovable,
???
Void gifts :
Where property is given subject to a condition absolutely restraining the donee from alienating it, or it
is given to two or more persons subject to a condition restraining them from alienating it,
the condition is void, but the gift itself remains good.
A gift of property is not void just because the donor reserves the usufruct of the property to himself for
life.
A gift made with the intent to defeat or defraud creditors is voidable at the option of the creditors.

Competency of donor and donee :


Donor :
Every Hindu Male or Female, who is not a minor and is of sound mind, can
dispose of his property by gift or Will.
The donor must be a major within the meaning of Section 3 of the Majority
Act; if he is not, he cannot make a gift.
A coparcener of Hindu joint family cannot make a gift of his undivided interest
without the consent of all the other coparceners. However, he can make a Will
of such property
Donee :
A donee must be a person in actual existence or in contemplation of law when
the gift or bounty is to take effect.
The donee may be a minor or an idiot or one incapable of inheriting due to
some personal disability.
However, in such cases, since the donee is not competant to give
acceptance of the gift, hence the gift is void if it is not in the interest of the
donee.

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properties which can be and can not be subject matter of gift :


The subject matter of the gift must be certain existing movable or immovable
property.
It may be land, goods, or actionable claims.
It must be transferable under s 6. But it cannot be future property.
Under Hindu law, the following property can be disposed of by Gift :-
1) A Hindu entitled to dispose of his separate or self-acquired property by gift.
Provided that if the members of the family who are legally entitled to get
maintenance from that person, claim against that gift, then the Hindu
cannot dispose his property by gift.
2) Under Dayabhaga School, a coparcener can gift away his coparcenary
interest, subject to the claims for maintenance of those members who are
entitled to be maintained by him.
Under Mitakshara School, A coparcener cannot do so except when he is the
sole surviving coparcener.
3) Under Dayabhaga law, a father can dispose of even the whole of the
property by gift, subject to the claims of those who are entitled to be
maintained by him.
4) According to section 14 of the Hindu Succession Act, 1956, A female Hindu
can dispose of all her property by gift.
But in ancient Hindu law, she was entitles to dispose of only her stridhana
property by gift.
5) A widow can dispose of a part of her widows estate by gift to her daughter
or son-in-law on the occasion of the daughters marriage. But it cannot be
done by a will.
A gift of a right of management is valid; but a gift of future revenue of a village
is invalid.
In a Calcutta case, it was said that the release of a debt is not a gift, as a gift
must be of tangible property.
It is submitted that the release of a debt is not a gift as it does not involve a
transfer of property but is merely a renunciation of a right of action.
It is quite clear that an actionable claim such as a policy of insurance may be the
subject of a gift,
In a deed of gift the meaning of the word 'money' should not be restricted by
any hard and fast rule but should be interpreted having regard to the context
properly construed in the light of all the relevant facts.
Therefore in order to constitute a valid gift, there must be an existing property.

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Gift under Muslim law :


Intro :
Gift is a generic term that includes all transfers of property without
consideration.
In India, Gift is considered equivalent to Hiba but technically, Gift has a much
wider scope than Hiba.
The word Hiba literally means, the donation of a thing from which the donee may
derive a benefit.
Gift must be immediate and complete.
The most essential element of Hiba is the declaration, "I have given".
As per Hedaya, Hiba is defined technically as, "unconditional transfer of property,
made immediately and without any exchange or consideration, by one person to
another and accepted by or on behalf of the latter".
According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus
of the property without any return.
The gift of the corpus of a thing is called Hiba and the gift of only the usufructs
of a property is called Ariya.
In Mohammedan law any property or right which has some legal value may be
the subject of a gift.
Essential Elements of a Gift :
Since muslim law views the law of Gift as a part of law of contract, there must
be an offer (izab), an acceptance (qabul), and transfer (qabza).
In Smt Hussenabi vs Husensab Hasan AIR 1989 Kar,
a grandfather made an offer of gift to his grandchildren. He also accepted the
offer on behalf of minor grandchildren. However, no express of implied
acceptance was made by a major grandson.
Karnataka HC held that since the three elements of the gift were not present
in the case of the major grandchild, the gift was not valid. It was valid in
regards to the minor grandchildren.
Thus, the following are the essentials of a valid gift -
1. A declaration by the donor - There must be a clear and unambiguous
intention of the donor to make a gift.
2. Acceptance by the donee - A gift is void if the donee has not given his
acceptance. Legal guardian may accept on behalf of a minor.
3. Delivery of possession by the donor and taking of the possession by the
donee.

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In Muslim law the term possession means only such possession as the
nature of the subject is capable of. Thus, the real test of the delivery of
possession is to see who - whether the donor or the donee - reaps the
benefits of the property. If the donor is reaping the benefit then the
delivery is not done and the gift is invalid.
Conditions which must be satisfied for a valid gift :
1. Competency of donor and donee - There must be two parties to a gift
transaction - the donor and the donee.
Conditions for Donor - (Who can give) :
1. Must have attained the age of majority - Governed by Indian Majority
Act 1875.
2. Must be of sound mind and have understanding of the transaction.
3. Must be free of any fraudulent or coercive advice as well as undue
influence.
4. Must have ownership over the property to be transfered by way of gift.
Note :
A gift by a married woman is valid and is subjected to same legal rules
and consequences.
A gift by a pardanashin woman is also valid but in case of a dispute the
burden of proof that the transaction was not conducted by coercion or
undue influence is on the donee.
Gift by a person in insolvent circumstances is valid provided that it is
bona fide and not merely intended to defraud the creditors.
Conditions for Donee (who can receive) :
1. Any person capable of holding property, which includes a juristic person,
may be the donee of a gift. A muslim may also make a lawful gift to a non-
muslim.
2. Donee must be in existence at the time of giving the gift. In case of a
minor or lunatic, the possession must be given to the legal guardian
otherwise the gift is void.
3. Gift to an unborn person is void. However, gift of future usufructs to an
unborn person is valid provided that the donee is in being when the interest
opens out for heirs.
2. What can be gifted ?
1. It must be designable under the term mal.
2. It must be in existence at the time when the gift is made. Thus, gift of
anything that is to be made in future is void.

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3. The donor must possess the gift.


Note :
Muslim law recognizes the difference between the corpus and the usufructs
of a property. The gift of the corpus of a thing is called Hiba and the gift of
only the usufructs of a property is called Ariya.
Corpus, or Ayn, means the absolute right of ownership of the property
which is heritable and is unlimited in point of time,
Usufructs, or Manafi, means the right to use and enjoy the property. It is
limited and is not heritable.
In Nawazish Ali Khan vs Ali Raza Khan AIR 1984, it was held that
gift of usufructs is valid in Muslim law and that the gift of corpus is subject
to any such limitations imposed due to usufructs being gifted to someone
else.
gift of life interest is valid and it doesn't automatically enlarge into gift of
corpus.
This ruling is applicable to both Shia and Sunni.
Subject of Gift :- The general principle is that the subject of a gift can be -
1. anything over which dominion or right of property may be exercised.
2. anything which may be reduced to possession.
3. anything which exists either as a specific entity or as an enforceable right.
4. anything which comes within the meaning of the word mal.
In Rahim Bux vs Mohd. Hasen 1883, it was held that gift of services is not valid
because it does not exist at the time of making the gift.
Gift of an indivisible property can be made to more than one persons.
Extent of Donors right to gift :- General rule is that a donors right to gift is
unrestricted.
In Ranee Khajoorunissa vs Mst Roushan Jahan 1876, it was recognized by the
privy council that
a donor may gift all or any portion of his property even if it adversely affects
the expectant heirs.
However, there is one exception that the right of gift of a person on death bed
(Marz ul maut) is restricted in following ways
He cannot gift more than one third of his property and he cannot gift it to
any of his heirs.
Kinds of Gift : There are several variations of Hiba. For example, Hiba bil Iwaz,
Hiba ba Shart ul Iwaz, Sadkah, and Ariyat.

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Hiba Bil Iwaz :-


Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means gift for
consideration already received.
It is thus a transaction made up of two mutual or reciprocal gifts between two
persons. One gift from donor to donee and one from donee to donor.
The gift and return gift are independent transactions which together make up
Hiba bil Iwaz.
In India, it was introduced as a device for effecting a gift of Mushaa
(undivided share) in a property capable of division.
So a Hiba Bil Iwaz is a gift for consideration and in reality it is a sale. Thus,
registration of the gift is necessary and the delivery of possession is not
essential and prohibition against Mushaa does not exist.
The following are requisites of Hiba bil Iwaz -
1. Actual payment of consideration on the part of the donee is necessary.
In Khajoorunissa vs Raushan Begam 1876, held that adequacy of the
consideration is not the question. As long is the consideration is bona
fide, it is valid no matter even if it is insufficient.
2. A bona fide intention on the part of the donor to divest himself of the
property is essential.
Gift in lieu of dower debt :- In Gulam Abbas vs Razia AIR 1951, All HC held
that
an oral transfer of immovable property worth more than 100/- cannot be
validly made by a muslim husband to his wife by way of gift in lieu of
dower debt which is also more than 100/-. It is neither Hiba nor Hiba bil
Iwaz. It is a sale and must done through a registered instrument.
Hiba ba Shart ul Iwaz :-
Shart means stipulation and Hiba ba Shart ul Iwaz means a gift made with a
stipulation for return.
Unlike in Hiba bil Iwaz, the payment of consideration is postponed.
Since the payment of consideration is not immediate the delivery of
possession is essential. The transaction becomes final immediately upon
delivery. When the consideration is paid, it assumes the character of a sale
and is subject to presumption (Shufa). As in sale, either party can return the
subject of the sale in case of a defect.
It has the following requisites -
1. Delivery of possession is necessary.
2. It is revocable until the Iwaz is paid.

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3. It becomes irrevocable after the payment of Iwaz.


4. Transaction when completed by payment of Iwaz, assumes the character
of a sale.
Note :
In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense
that they are both gifts for a return and the gifts must be made in compliance
with all the rules relating to simple gifts.
Table of differences between different kind of Hiba :

Hiba Hiba bil Iwaz Hiba ba Shart ul Iwaz

Ownership in property is Ownership in property is Ownership in property is


transfered without transferred for transferred for
consideration. consideration called iwaz. consideration called iwaz,
But there is no with an express agreement
express agreement for a for a return.
return. Iwaz is voluntary.

Delivery of possession is Delivery of possession is Delivery of possession is


essential. NOT essential. essential.

Gift of mushaa Gift of mushaa is valid. Gift of mushaa is invalid.


(undivided share) is
invalid.

Barring a few exceptions It is irrevocable. It is revocable until the


it is revocable. iwaz is paid. Irrevocable
after that.

It is a pure gift. It is like a contract of In its inception it is a gift


sale. but becomes a
sale after the iwaz is paid.

Exceptions in delivery of possession : The following are the cases where deliver
of possession by the donor to the donee is not required -
1. Gift by a father to his minor or lunatic son. In Mohd Hesabuddin vs Mohd.
Hesaruddin AIR 1984,
the donee was looking after the donor (donees mother) while other sons were
neglecting her.
The donor gifted the land to the donee. After donors death the donee
changed the name on the land records.
It was held that it was a valid gift even though there was no delivery of land.

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2. When the donor and the donee reside in the same house which is to be gifted.
In such a case, departure of the donor from the house is not required.
3. Gift by husband to wife or vice versa. The delivery of possession is not
required if the donor had a real and bona fide intention of making the gift.
4. Gift by one co-sharer to other. Bona fide intention to gift is required.
5. Part delivery - Where there is evidence that some of the properties in a gift
were delivered, the delivery of the rest may be inferred.
6. Zamindari villages - Delivery is not required where the gift includes parcels of
land in zamindari if the physical possession is immpossible. Such gift may be
completed by mutation of names and transfer of rents and incomes.
7. Subject matter in occupation of tenant - If a tenant is occupying the property,
the gift may be affected by change in ownership records and by a request to the
tenant to attorn (transfer) the donee as a new owner.
8. Incorporeal rights - The gift may be completed by any appropriate method of
transfering all the control that the nature of the gift admits from the donor to the
donee. Thus, a gift of govt. promissory note may be affected by endorsement
and delivery to the donee.
9. Where the donee is in possession - Where the donee is already in possession
of the property, delivery is not required. However, if the property is in adverse
possession of the donee, the gift is not valid unless either the donor recovers the
possession and delivers it to donee or does all that is in his power to let the
donee take the possession.
Void Gifts :
The following six kinds of void gifts are discussed below :
1. Gifts of future property
2. Contingent gifts
3. Gifts to unborn persons
4. Conditional gifts
5. Gifts of undivided share (mushaa)
6. Gifts of property held adversely to the donor.
1. Gifts of future property :
Under Muhammadan law, a gift of future property cannot be made. The
property to be gifted must be actually in existence at the time when the gift is
made. If, however, the donor is entitled to a right to receive the fruits of any
property, the gift of the right would be a legal gift, provided the owner divests
himself wholly of the property gifted. A gift which is made to take effect in
future is void.

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Where a Muslim donor does not reserve his right over the corpus of the
property, but stipulates that he would, during his life, enjoy the recurring
income thereof, the gift is valid.
Yusuf v. Collection of Tippera, (1822) I.L.R. 9 Cal. 138. Where a donor
executed a deed of gift containing the words, So long as I live, I shall enjoy
and possess the properties and I shall not sell or make a gift to anyone, but
after my death, you will be the owner,
the gift was held to be void.
2. Contingent gifts :
If a gift is made contingent upon the happening or not happening of a future
uncertain event, such a gift is void in Muhammadan law.
Eg Gift of Insurance Policies :
According to Muslim law, a declaration purporting to be a transfer of certain
property by way of hiba to the donee at a future time contingent on the
happening of a certain event is void; again, if the hiba is attached with a
condition annexed, the gift is valid, but the condition is void.
Illustration :
A Muslim husband, H, insures and assigns his policy to his wife, W, with the
condition that if W predeceases H, the assignment will be inoperative, and
in that event, will revert to H.
This transaction can be looked at from different points of view.
It may be considered as creating a valid contractual obligation between
the insurrer and the assured; or it may be regarded as a gift by a Muslim
vitiated by a contingency, and therefore, invalid under Muhammadan
law. Or,
it may further be argued that it is a gift with a condition attached, and
hence the condition is void and the gift is valid.
3. Gifts to unborn persons :
A gift made to a person not in existence at the date of the gift is not valid.
The only way in which a disposition may be made to an unborn person is by
way of wakf.
4. Conditional gifts :
When a gift is made subject to a condition which derogates from the
completeness of the grant, the gift is valid, but the condition is void.
However, where the condition is not for the return of the corpus of the thing
itself or any part of the corpus, but only for the payment of the interest or
profits of the corpus, both the condition and the gift are valid.

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Illustration :
A gifts B his house on a condition that B will not sell it or B will sell it only
to C, then
the condition is void, and
B takes the gift, ie full rights of the house.
5. Gifts of undivided share (mushaa) :
In Muhammadan law, a gift of an undivided share in a property which is
capable of division is not valid. An undivided share in property whether
movable or immovable, is called mushaa. A valid gift may be made of a
mushaa in property which is not capable of division.
However, a gift of mushaa is valid under the Shia law, even if the property is
capable of division.
A gift of an undivided share (mushaa) in property which is capable of division
is irregular (fasid), but not void (batil),
but a gift undivided share in a property which is incapable of division (e.g
a staircase which is common between the gifted property and the
neighbouring property) is valid.
Thus A, who owns a house, makes a gift to of the house and the right to use
the staircase used by him jointly with the owner of an adjoining house. Is the
gift of the right to use the staircase valid?
Yes, the gift of the right to use the staircase, though it is a gift of mushaa is
valid, for a staircase is not capable of division, i Hussain v. Sharif-un-Nissa.
(1883) I.L.R. 5 All. 285)
Delivery of possession is a necessary condition to validate a gift. The gift of an
undivided share where property is capable of divisionis, as a general rule, not
valid, because, in such cases, deliver of possession becomes impossible,
unless the part given is divided off.
So long as the property remains undivided, possession cannot be said to be
effectively given. Such a gift, however, may be perfected and rendered
valid by subsequent partition and delivery of possession.
(Muhammad Mumtaz v. Zubaida Jan, (1869) 16 I. A. 205) : A makes a gift of
her undivided share in certain lands to B. The share is not divided at the time
of gift, but it is subsequently separated and the possession thereof is
delivered to B.
Here the gift is irregular in its inception, but it is validated by subsequent
delivery of possession.
6. Gifts of property held adversely to the donor.

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A gift of property by one who claims it adversely to the donor is not valid,
unless the donor obtains and delivers possession of the property to the donee,
or does anything to put it within the power of the donee to obtain possession.
In Maqbool Alam v. Khodaija (A.I.R. 1966 S.C. 1194), it was held that
there can be a valid gift of property in the possession of the lessee or a
mortgagee, and a gift may be sufficiently made by delivering constructive
possession of the property to the donee.
The view that a property in the possession of a usurper cannot be given
away, is too rigid.
The donor may make a valid gift of a property in the possession of a
trespasser, provided he either obtains and gives possession of the property to
the donee or does all that he can to put it within the power of the donee to
obtain possession.
A gift of a property in the possession of a trespasser is not established by a
mere declaration of the donor and the acceptance of the donee.
There must also be delivery of possession or some overt act on the part of
the donor to put it within the power of the donee to get possession.
Gift of a Life-Estate (Amree), how Far Valid :
An Amree (or life-grant) is nothing but a gift and a condition; and the
condition is invalid, but the gift is not rendered null by involving an invalid
condition (Hedaya, 489)
On this point, there is a difference of opinion between the Hanafi and the
Shia law.
The Hanafi law treats such a gift as a gift with a condition, the gift being
valid and the condition being void; but,
in Shia law, the creation of a life-estate is valid, and therefore, the gift of
a life-estate (Amree) is also valid.

Mushaa (Hiba bil mushaa) :
http://www.lawkam.org/muslim/mohammedan-law-gift-of-mushaa-where-
property-divisible/6384/
Mushaa means undivided share in a property, movable or immovable.
The gift of undivided share in an indivisible property is valid under all schools,
but there is no unanimity of opinion amongst different schools about gift of
undivided share in a divisible property.
In Shafai and Ithna Asharia laws it is valid if the donor withdraws his control
over the property in favor of the donee.

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but under Hanafi law, such a gift is invalid unless it is separated and delivered
to the donee. However, if property is indivisible, the gift of undivided share is
valid under Hanafi law as well.
Illustration -
A, B, and C are the co-owners of a house. Since a house cannot be divided, A
can give his undivided share of the house to D in gift. Such a gift is valid
under ALL schools of muslim laws.
A, B, and C are the co-owners of 3 Tons of Wheat,
under Shafai and Ithna Ahsharia law, A can give his undivided share of the
wheat to D if he withdraws control over it,
but under Hanafi law, A cannot do so unless the wheat is divided and the A
delivers the possession of 1 ton of wheat to D.
In case of Kashim Hussain vs Sharif Unnisa 1883, A gifted his house to B along
with the right to use a staircase, which was being used by C as well. This gift
was held valid because staircase is indivisible.
Revocation of a Gift :
Under muslim law, all voluntary transactions are revocable,
under Hanafi law a gift is generally revocable, though it is held to be
abominable (disgusting, bad moral).
under Shia law, a gift can be revoked by mere declaration
under Sunni law, it can be revoked only by the intervention of the court of law
or by the consent of the donee.
The following gifts, however, are absolutely irrevocable -
1. When the donor is dead.
2. When the donee is dead.
3. When the donee is related to the donor in prohibited degrees on
consanguinity.
However, in Shia law, a gift to any blood relative is irrevocable.
4. When donor and the donee stand in marital relationship.
However, in Shia law, a gift to husband by wife or vice versa is revocable.
5. when the subject of the gift has been transfered by the donee through a
sale or gift.
6. when the subject of the gift is lost or destroyed, or so changed as to lose
its identity.
7. when the subject of the gift has increased in value and the increment is
inseparable.

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8. when the gift is a Sadaqah. Sadaqah (charity) is that which is given for the
sake of Allaah as an act of worship, without intending to give it to a specific
person and without seeking anything in return, rather it is given to charitable
causes, such as to the needy.
9. when anything as been accepted in return.

GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.

Write short note : Difference between Sadkah (Sadquah) and Hiba. (Mar-2015)
Answer :
Refer :
http://www.shareyouressays.com/117476/provision-of-sadqa-or-religious-gifts-
under-muslim-law
http://www.islamhelpline.net/node/10440
What is Sadkah (Sadquah) ?
Where the object of a gift is to secure religious or spiritual gains, the transaction is
called; sadqa.
Nature of Sadqa :
The essential requirements of a valid sadqa are the same as that of a Hiba
i.e. there must be declaration, acceptance and the delivery of possession.
Sadqa may be made in favour of rich or poor donee.
Even if the sadqa is made to a rich donee with an object of getting religious
merits, it is valid.
Any property which may be the subject matter of a gift may also be the subject
matter of a sadqa.
The Hanafi doctrine of mushaa is applicable also to a sadqa.
Difference between Sadkah (Sadquah) and Hiba :
(i) A Hiba is made out of mutual love and affection i.e. just to please a person in
whose favour it is made.
On the other hand, sadqa is made to please the God.
Thus, hiba is a secular or non-religious gift whereas; a sadqa is a religious
gift.
Wilson observes thus :
The Muhammadan Law distinguishes two kinds of gifts (properly so called) by

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the terms sadqah and hiba. Both are voluntary transfers of property without
consideration;
whereas the use of the term sadqah indicates that the special motive for
the gift is to acquire religious merit or nearness to God,
the presumed motive of hiba is either to manifest affection towards, or to
win the affection of an individual donee.
(ii) In Hiba express acceptance is essential,
in sadqa, express acceptance is not necessary; it may be implied and -inferred
from the circumstances.
(iii) Hiba is invalid if it is made to two or more persons without specifying their
shares and without dividing the property
A sadqa is not invalid if made to two or more persons without specifying their
shares and without dividing the property.
(iv) Hiba ba Shart ul Iwaz, a kind of Hiba, is revocable until consideration (iwaz) is
paid,
A sadqa is irrevocable; once made it cannot be revoked subsequently.
Wakf & Sadqa : It may be noted that the object of waqf is also religious and
charitable. But, there is a fundamental difference between a waqf and a sadqa.
In a waqf the subject-matter is tied up forever and ONLY its usufruct is utilised.
That is to say, in wakf the property becomes non- transferable but its benefit is
used for the religious or charitable purposes.
On the other hand, when a sadqa is made, its religious object is achieved as
soon as the property is transferred to the donee. Thereafter, the donee becomes
the owner of the property and he may transfer the property as he likes.

GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.

Write short note : Marz-ul-maut gift. (Apr-2012, Apr-2013, Mar-2015)


Answer :
Refer :
http://www.shareyouressays.com/117471/get-complete-information-on-death-bed-
gifts-under-muslim-law
http://www.legalservicesindia.com/article/article/marz-ul-maut-in-muslim-law-
1412-1.html
Intro :

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In India Muslims follow their own personal civil law. This is a legacy of the British
Raj which allowed all religions to have their own personal civil laws.
The governing tenet of Muslim personal civil law is the Shariat. One of the Muslim
laws enshrined in the Shariat is the Marz-ul Maut or gifts made by a Muslim
on his death bed. Muslim law in India means that portion of Islamic civil law
which is applicable only to Muslims.
Generally the trend among Muslims earlier was not to make a will or Wasiyat.
Hence Islamic law thought it prudent to lay down a set of laws regarding disposal
of property when a Muslim was on his death bed. This is referred to as Marz-ul-
Maut.
Gift during Marz-ul-Maut is one form of testamentary succession.
Gift during Marz-ul-Maut means gift on the death bed. When a person is very
seriously ill and on the apprehension of death and he makes a gift at that time,
then it will be a gift during Marz-ul-Maut.
Gift or a will ?
Gifts made by Muslims during death-illness (Marz-ul-maut) are regarded as wills.
Where a Muslim makes any gift of his properties while on his death-bed, the legal
effects of the transaction are not of a Hiba but of will.
Actually Marz-ul-Maut is a hybrid of 'hiba' or gift and will. It includes some essential
elements of will and some essential elements of gift.
As per Islamic personal law a gift made at a time when there is reasonable
apprehension of death of the testator will be distributed as per the canons of the
Shariat. This is called death bed gifts and is valid only if the testator dies after
executing a will.
There are two aspects of a gift made during death-illness; in its formation it is a
pure gift but in its legal consequences it is a will.
Describing the nature of a gift during death-illness (donatio mortis causa) Buckley,
L.J. observed that it is a gift of amphibious nature; not exactly a gift nor exactly a
legacy but partaking of the nature of both.
Characteristics of Marz-ul-Maut :
The doctrine of death-bed gifts is based on the donors state of mind at the time of
the transfer. When a person makes a gift during death- illness, he intends to
distribute his properties according to his own scheme giving up all the hopes for his
life.
A person suffering from mortal-disease believes, beyond reasonable doubt that he
would die very soon. With these apprehensions in mind, he attempts to give away
his properties.

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The result is that although the transfer is inter-vivos but the idea behind such
transfer is that it is likely to take place only after the donors death.
Through a gift, a Muslim donor on his death-bed may transfer his properties
without any restriction of its quantity although in its effects, the transaction is a
will. This may frustrate the very purpose of one-third rule in respect of Muslim
wills. Accordingly, in order to prevent the evasion of restrictions on the
testamentary capacity of a Muslim, a death-bed gift is interpreted as a will.
Essentials of a Death-bed-Gift :
A gift during death-illness is a pure Hiba in its formation but after the donors death
it operates like a will. Therefore, the essential conditions for a gift during death-
illness are :
(i) there is a valid and complete gift, and
(ii) this gift is made during death-illness (Marz-ul-maut) of the donor.
(i) A valid and complete gift :
The only difference between a simple gift and a death-bed gift is that if a gift is
made by a donor during his death-illness, the gift is testamentary; if it is made
normally, the gift is inter vivos i.e. pure Hiba. Thus, in a death-bed gift all the
essentials of a valid Hiba are necessary.
There must be declaration, acceptance and the actual or constructive delivery of
possession. In brief, the gift must be valid in all respects according to the
provisions of Muslim personal law.
(ii) Death-illness (Marz-ul-maut) :
Death-illness is an illness which ultimately results in the death of a person.
However, there must also be a reasonable apprehension in the mind of that
person that he would die on account of that illness.
In other words, any disease or ailment may be regarded as a death-illness if the
person suffering from it believes that there are no chances of his survival.
It is to be noted that the crucial test for Marz-ul-maut is the subjective
apprehension of death in the mind of the donor.
The seriousness of the disease or apprehension of death caused in the minds of
other persons is not relevant. Whether a disease is a death-illness or not depends
upon the donors state of mind rather than the gravity of that disease.
According to Tyabji, for establishing the existence of death-illness following
conditions are necessary :
(a) The illness must have caused death;
(b) There must have been proximate danger of death, so that there was
preponderance of apprehension of death (i.e. at given time death is more

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probable than life);


(c) Some degree of subjective apprehension of death in the mind of sick person;
and
(d) Some external indicia, chief among which are inability to attend to ordinary
avocations.
There cannot be any objective criterion for determining the existence of death-
illness. If a disease causes the death and the donor thought it highly probable that
this illness would soon end fatally, it is death-illness.
Whether an illness is mortal-illness or not is a question of fact and each case
must be examined in the light of evidence produced before the court.
It has been held that paralysis is not a death-illness.
In Mohammad Gulshere v. Mariyam, it was held by the Allahabad High Court that
boils or corbuncle for long continuance for over a year may not cause
apprehension of death, therefore, it cannot be regarded as death-illness.
Similarly, asthama, lingering consumption and sudden bursting of blood-vessels
have not been regarded as death- illness.
But, a rapid consumption, tumour in the stomach and tuberculosis of the last
stage has been held to be death-illness.
A serious case of pneumonia was held to be a death-illness.
In Abdul Hafiz v. Sahib Bi,4i an aged Muslim of over eighty years remained ill very
seriously for four days. On the last day, i.e. just before his death, he made a gift.
It was held by Bombay High Court that the gift was made during a death- illness.
The Court observed that
what are required to be proved upon the preponderance of probabilities are
whether the gift was made by the ailing person while under the apprehension
of death and, that whether in such ailing he died.
During the delivery of a child, the pains of child-birth may also be regarded as
death-illness.
Important note :
It is to be noted that a gift during Marz-ul-maut is established only where the
donor dies. If the donor survives that illness, the transaction continues to be a gift.
Legal Consequences of Death-Bed Gifts :
The Shariat law is inviolable, except with the consent of the heirs. Thus on his own
no Muslim can disown any heir while making a will during Marz-ul-Maut.
Gifts made during mortal-disease have testamentary effects. That is to say,
although the transaction may be constituted as a gift but, it would be interpreted

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like a will.
In its operation, such a gift is governed by the Muslim law of wills. Accordingly,
where the donee is a stranger or non-heir, he cannot get more than one-third of
total assets without consent of the donors legal heirs.
Where donee is one of the legal heirs of the donor, the consent of the remaining
legal heirs is necessary even though the property given is less than one-third.
However, if the donor is a Shia Muslim, a gift during death-illness is valid up to
one-third even if the donee is an heir of the donor.
To conclude, in the words of Wilson :
A gift made in mortal sickness is so far regarded as a bequest that it cannot
operate on more than one-third of the testators net assets unless with the
consent of all the heirs nor in favour of one heir without the consent of all heirs.

GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.

Define wakf and discuss fully its essential characteristics. (Apr-2012, Apr-2013, Mar-
2015, Apr-2016)
Answer :
Refer :
copied from Sem-3 notes.
What is waqf/ wakf ? A waqf, also spelled wakf is, an inalienable religious endowment
in Islamic law, typically donating a building or plot of land or even cash for Muslim
religious or charitable purposes with no intention of reclaiming the assets.
Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazim
vs A Asghar Ali AIR 1932.
Technically, it means a dedication of some specific property for a pious purpose or
secession of pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf
is the detention of a specific thing that is in the ownership of the waqif or
appropriator, and the devotion of its profits or usufructs (right to enjoy
another's property without destruction) to charity, the poor, or other good
objects, in the manner of areeat or commodate loan.
Wakf Act 1954 defines Wakf as, "Wakf means the permanent dedication by a
person professing the Islam, of any movable or immovable property for any
purpose recognized by Muslim Law as religious, pious, or charitable."
Comparisons with trust law :
The waqf in Islamic law, which developed in the medieval Islamic world from the

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7th to 9th centuries, bears a notable resemblance to the English trust law.
Every waqf was required to have a waqif (founder), mutawillis (trustee), qadi
(judge) and beneficiaries.
IMP ---> Under both a waqf and a trust, "property is reserved, and its usufruct
(right to enjoy another's property without destruction) appropriated, for the benefit
of specific individuals, or for a general charitable purpose; the corpus becomes
inalienable; estates for life in favor of successive beneficiaries can be created" and
"without regard to the law of inheritance or the rights of the heirs; and continuity is
secured by the successive appointment of trustees or mutawillis."
The only significant distinction between the Islamic waqf and English trust was "the
express or implied reversion of the waqf to charitable purposes when its specific
object has ceased to exist", though this difference only applied to the "waqf ahli
(Islamic family trust)" rather than the "waqf khairi (devoted to a charitable purpose
from its inception)". Another difference was the English vesting of "legal estate"
over the trust property in the trustee, though the "trustee was still bound to
administer that property for the benefit of the beneficiaries". In this sense, the
"role of the English trustee therefore does not differ significantly from that of the
mutawalli".
Essentials of a valid Wakf :
1. Permanent Dedication of any property - There are actually three aspects in this
requirement. There must be a dedication, the dedication must be permanent, and
the dedication can be of the property.
There is no prescribed form of dedication. It can be written or oral but it must be
clear to convey the intention of dedication. According to Abu Yusuf, whose word
is followed in India, mere declaration of dedication is sufficient for completion of
Wakf. Neither delivery of possession or appointment of Mutawalli is necessary.
The dedication must be permanent. A temporary dedication such as for a period
of 10 yrs or until death of someone is invalid.
The subject of Wakf can be any tangible property (mal) which can used without
being consumed. In Abdul Sakur vs Abu Bakkar 1930, it was held that there are
no restrictions as long as the property can be used without being consumed and
thus, a valid Wakf can be created not only of immovable property but also of
movable property such as shares of a company or even money.
Some subjects that Hanafi law recognizes are immovable property, accessories
to immovable property, or books.
The subject of the Wakf must be in the ownership of the dedicator, wakif. One
cannot dedicate someone else's property.
2. By a Muslim - A Wakf can only be created by a Muslim. Further, the person must
have attained the age of majority as per Indian Majority Act and should be of

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sound mind.
3. For any purpose recognized by Muslim Law - The purpose is also called the
object of Wakf and it can be any purpose recognized as religious, pious, or
charitable, as per Muslim Law. It is not necessary that a person must name a
specific purpose. He can also declare that the property may be used for any welfare
works permitted by Shariat. In Zulfiqar Ali vs Nabi Bux, the settlers of a Wakf
provided that the income of certain shops was to be applied firstly to the upkeep of
the mosque and then the residue, if any, to the remuneration of the mutawalli. It
was held to be valid however, it was also pointed out that if a provision of
remuneration was created before the upkeep of the mosque, it would have been
invalid.
Valid purposes : The following are some of the objects that have been held valid
in several cases - Mosques and provisions of Imam to conduct worship,
celebrating birth of Ali Murtaza, repairs of Imambaras, maintenance of
Khanqahs, burning lamps in mosques, payment of money to fakirs, grant to an
idgah, grant to colleges and professors to teach in colleges, bridges and caravan
sarais.
Invalid purposes :
In Kunhamutty vs Ahman Musaliar AIR 1935, Madras HC held that if there are
no alms, the performing of ceremonies for the benefit of the departed soul is
not a valid object.
Some other invalid objects are - building or maintaining temple or church,
providing for the rich exclusively, objects which are uncertain.
Shia Law - Besides the above requirements, Shia law imposes some more
requirements for a valid Wakf. These are -
1. Delivery of possession to the first person in whose favour the Wakf has been
created is essential.
2. Dedication must be absolute and unconditional.
3. The property must be completely taken away from the wakif. It means that
the wakif cannot keep or reserve any benefit or interest, or even the usufructs of
the dedicated property.
Creation of Wakf : Muslim law does not prescribe any specific way of creating a Wakf.
If the essential elements as described above are fulfilled, a Wakf is created. Though it
can be said that a Wakf is usually created in the following ways -
1. By an act of a living person (inter vivos) - when a person declares his dedication
of his property for Wakf. This can also be done while the person is on death bed
(marj ul maut), in which case, he cannot dedicate more than 1/3 of his property for
Wakf.

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2. By will - when a person leaves a will in which he dedicates his property after his
death. Earlier it was thought that Shia cannot create Wakf by will but now it has
been approved.
3. By Usage - when a property has been in use for charitable or religious purpose
for time immemorial, it is deemed to belong to Wakf. No declaration is necessary
and Wakf is inferred.
Kinds of Wakfs :
Public and Private : A Wakf can be classified into two types - Public and Private.
As the name suggests, a public Wakf is for the general religious and charitable
purposes while a private Wakf is for the creators own family and descendants
and is technically called Wakf alal aulad.
It was earlier considered that to constitute a valid wakf there must be a
complete dedication of the property to God and thus private wakf was not at all
possible. However, this view is not tenable now and a private wakf can be
created subject to certain limitation after Wakf Validating Act 1913. This acts
allows a private wakf to be created for one's descendants provided that the
ultimate benefits are reserved for charity.
Muslim Law treats both public and private wakfs alike. Both types of wakf are
created in perpetuity and the property becomes inalienable.
Quasi public Wakf : Some times a third kind of wakf is also identified. In a Quasi
public wakf, the primary object of which is partly to provide for the benefit of
particular individuals or class of individuals which may be the settler's family, and
partly to public, so they are partly public and partly private.
Contingent Wakf : A wakf, the creation of which depends on some event happening
is called a contingent wakf and is invalid. For example, if a person creates a wakf
saying that his property should be dedicated to god if he dies childless is an invalid
wakf. Under shia law also, a wakf depending on certain contingencies is invalid.
In Khaliluddin vs Shri Ram 1934, a muslim executed a deed for creating a wakf,
which contained a direction that until payment of specified debt by him, no
proceeding under the wakfnama shall be enforceable. It was held that it does not
impose any condition on the creation of the wakf and so it is valid.
Conditional Wakf : If a condition is imposed that when the property dedicated is
mismanaged, it should be divided amongst the heirs of the wakf, or that the wakif
has a right to revoke the wakf in future, such a wakf would be invalid. But a
direction to pay debts, or to pay for improvements, repairs or expansion of the
wakf property or conditions relating to the appointment of Mutawalli would not
invalidate the wakf. In case of a conditional wakf, it depends upon the wakif to
revoke the illegal condition and to make the wakf valid, otherwise it would remain
invalid.

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Wakf alal aulad (can a wakf be created for one's family?) :


Wakf on one's children and thereafter on the poor is a valid wakf according to all
the Muslim Schools of Jurisprudence. This is because, under the Mohammedan Law,
the word charity has a much wider meaning and includes provisions made for one's
own children and descendants. Charity to one's kith and kin is a high act of merit
and a provision for one's family or descendants, to prevent their falling into
indigence, is also an act of charity.
The special features of wakf-alal-aulad is that only the members of the wakifs
family should be supported out of the income and revenue of the wakf property.
Like other wakfs, wakf alal-aulad is governed by Muhammadan Law, which makes
no distinction between the wakfs either in point of sanctity or the legal incidents
that follow on their creation.
Wakf alal aulad is, in the eye of the law, Divine property and when the rights of the
wakif are extinguished, it becomes the property of God and the advantage accrues
to His creatures. Like the public wakf, a wakf-alal-aulad can under no
circumstances fail, and when the line of descendant becomes extinct, the entire
corpus goes to charity.
The institution of private wakf is traced to the prophet himself who created a
benefaction for the support of his daughter and her descendants and, in fact,
placed it in the same category as a dedication to a mosque.
Thus, it is clear that a wakf can be created for one's own family. However, the
ultimate benefit must be for some purpose which is recognized as pious, religious
or charitable by Islam.
Completion of wakf :
The formation of a wakf is complete when a mutawalli is first appointed for the
wakf. The mutalwalli can be a third person or the wakif himself. When a third
person is appointed as mutawalli, mere declaration of the appointment and
endowment by the wakif is enough. If the wakif appoints himself as the first
mutawalli, the only requirement is that the transaction should be bona fide. There
is no need for physical possession or transfer of property from his name as owner
to his name as mutawalli. In both the cases, however, mere intention of setting
aside the property for wakf is not enough. A declaration to that effect is also
required. In Garib Das vs M A Hamid AIR 1970, it was held that in cases where
founder of the wakf himself is the first mutawalli, it is not necessary that the
property should be transferred from the name of the donor as the owner in his own
name as mutawalli.
Shia law -
1. Delivery of possession to the mutawalli is required for completion when the
first mutawalli is a third person.

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2. Even when the owner himself is the first mutawalli, the character of the
ownership must be changed from owner to mutawalli in public register.
Legal Consequences (Legal Incidents) of Wakf : Once a wakf is complete, the
following are the consequences -
1. Dedication to God - The property vests in God in the sense that no body can
claim ownership of it. In Md. Ismail vs Thakur Sabir Ali AIR 1962, SC held that
even in wakf alal aulad (private wakf), the property is dedicated to God and only
the usufructs are used by the descendants.
2. Irrevocable - In India, a wakf once declared and complete, cannot be revoked.
The wakif cannot get his property back in his name or in any other's name.
3. Permanent or Perpetual - Perpetuality is an essential element of wakf. Once the
property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a
specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad
HC that the wakf of a house built on a land leased for a fixed term was invalid.
4. Inalienable - Since Wakf property belongs to God, no human being can alienate
it for himself or any other person. It cannot be sold or given away to anybody.
5. Pious or charitable use - The usufructs of the wakf property can only be used for
pious and charitable purpose. It can also be used for descendants in case of a
private wakf.
6. Extinction of the right of wakif - The wakif loses all rights, even to the usufructs,
of the property. He cannot claim any benefits from that property.
7. Power of court's inspection - The courts have the power to inspect the
functioning or management of the wakf property. Misuse of the property of
usufructs is a criminal offence as per Wakf Act.1995.
Revocation of Wakf :
In India, once a valid wakf is created it cannot be revoked because no body has the
power to divest God of His ownership of a property. It can neither be given back to
the wakif nor can it be sold to someone else, without court's permission.
A wakf created inter vivos is irrevocable. If the wakif puts a condition of
revocability, the wakf is invalid. However, if the wakf has not yet come into
existence, it can be canceled. Thus, a testamentary wakf can be canceled by the
owner himself before his death by making a new will. Further, wakf created on
death bed is valid only up till 1/3 of the wakif's property. Beyond that, it is invalid
and the property does not go to wakf but goes to heirs instead.

GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.

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Write short note : Mutawalli. (Apr-2012, Apr-2013, Apr-2016)


Answer :
Refer :
http://www.shareyouressays.com/117464/get-the-complete- information-on-
mutawalli-of-a-wakf
Who is Mutawalli ? Mutawalli is the manager of a wakf. He is not the owner or even a
trustee of the property. He is only a superintendent whose job is the see that the
usufructs (right to enjoy another's property without destruction) of the property are
being utilized for valid purpose as desired by the wakif. He has to see that the
intended beneficiaries are indeed getting the benefits. Thus, he only has a limited
control over the usufructs.
In Ahmad Arif vs Wealth Tax Commissioner AIR 1971, SC held that a mutawalli has
no power to sell, mortgage, or lease wakf property without prior permission of the
court or unless that power is explicitly provided to the mutawalli in wakfnama.
Who can be a mutawalli ? A person who is a major, of sound mind, and who is capable
of performing the functions of the wakf as desired by the wakif can be appointed as a
mutawalli. Females and the non-Muslims are also legally qualified to be appointed as
a mutawalli. A mutawalli is primarily concerned with the superintendence or
management of the waqf- property. Supervision and management is a non-religious
activity.
When a female and a non- Muslim CAN NOT be appointed as mutawalli : When the
nature of the functions to be discharged are religious, the mutawalli must be a
male and a Muslim.
(i) Where the mutawalli is to act as Sajjadnashin or a spiritual head.
(ii) Where the mutawalli is to act as imam, i.e. where he is required to lead
the assembly of people for religious prayers.
(iii) Where the mutawalli is to act as a Mulla. A land assigned to a Mulla as
remuneration of his office, cannot be succeeded by any female successor.
(iv) Where the mutawalli is required to give religious preaching i.e. where he
has to act as Khatib.
(v) Where the mutawalli is required to act as mujavar of a Durgah.
Thus, if religious duties are a part of the wakf, then a female or a non-muslim
cannot be appointed. In Shahar Bano vs Aga Mohammad 1907, Privy council
held that there is no legal restriction on a woman becoming a mutawalli if the
duties of the wakf do not involve religious activities.
When a female and a non- Muslim CAN be appointed as mutawalli : Where the
functions are not purely religious, a female is not disqualified to be appointed as
mutawalli. Thus, in the following instances a female is competent to be appointed

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as a mutawalli.
(i) Where the office of mutawalli is purely secular in nature and no religious
performance is required to be done under the waqf, a female can be appointed
as mutawalli.
(ii) A woman can be appointed as head mujavar of Astan (a platform where
Muharram ceremonies are performed annually). The religious duties in some
cases may be delegated by a female mutawalli to any male Muslim. It has been
held that if certain religious functions were such as could be performed by a
proxy, the woman may hold the office of mujavar.
Who can appoint a mutawalli :-
Generally, the wakif appoints a mutawalli. He can also appoint himself as a
mutawalli.
Sunni law : If a wakf is created without appointing a mutawalli, in India, the
wakf is considered valid and the wakif becomes the first mutawalli
Shia law : even though the wakf remains valid, it has to be administered by the
beneficiaries.
The wakif also has the power to lay down the rules to appoint a mutawalli. The
following is the order in which the power to nominate the mutawalli transfers if the
earlier one fails -
1. founder
2. executor of founder
3. mutawalli on his death bed
4. the court, which should follow the guidelines -
a. it should not disregard the directions of the settler but public interest must
be given more importance.
b. preference should be given to the family member of the wakif instead of
utter stranger.
5. By Congregation
Powers of a mutawalli :- Being the manager of the wakf, he is in charge of the
usufructs of the property. He has the following rights -
1. He has the power to utilize the usufructs as he may deem fit in the best interest
of the purpose of the wakf. He can take all reasonable actions in good faith to
ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee,
he is not an owner of the property so he cannot sell the property. However, the
wakif may give such rights to the mutawalli by explicitly mentioning them in
wakfnama.
2. He can get a right to sell or borrow money by taking permission from the court

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upon appropriate grounds or if there is an urgent necessity.


3. He is competent to file a suit to protect the interests of the wakf.
4. He can lease the property for agricultural purpose for less than three years and
for non-agricultural purpose for less than one year. He can exceed the term by
permission of the court.
5. He is entitled to remuneration as provided by the wakif. If the remuneration is
too small, he can apply to the court to get an increase.
Restrictions on mutawalli :
A Mutawalli has no power to transfer his office to any other person. His office is not
transferable during his life. The office of mutawalliship (Tawliyat) is created on the
basis of certain personal qualifications; therefore, it would be against the nature of
this office to allow a mutawalli to alienate his assignment to some other person.
Mutawalliship cannot be regarded as a property. As this office is not any property, it
cannot be subject of any transfer.
He is also not empowered to appoint any co-mutawalli to share his responsibilities.
But, if the founder has given the power of transferring his office, he can lawfully
transfer his assignment to another person.
Similarly, with an authority from the founder a mutawalli can appoint co-
mutawallis. However, in the absence of any express prohibition by founder, the
mutawalli has a right to appoint his deputy or assistants to help him in the
management of the dedicated property.
A mutawalli has no right to appoint any official or servant against any express
direction by the founder. Where such officials or servants have already been
appointed by the founder, the mutawalli has no power to make any change in those
appointments.
Moreover, the mutawalli has no right to make any changes in the salaries and
allowances of the officials who have already been appointed by the founder. This
power is vested in the court of law; the mutawalli can neither remove those
officials nor increase their allowances where it has already been fixed by the
founder.
Removal of a mutawalli :- Generally, once a mutawalli is duly appointed, he cannot be
removed by the wakif. However, a mutawalli can be removed in the following
situations :-
1. By court -
if he misappropriates wakf property.
even after having sufficient funds, does not repair wakf premises and wakf falls
into disrepair.
knowingly or intentionally causes damage or loss to wakf property. In Bibi

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Sadique Fatima vs Mahmood Hasan AIR 1978, SC held that using wakf money to
buy property in wife's name is such breach of trust as is sufficient ground for
removal of mutawalli.
he becomes insolvent.
Failure of a mutawalli to perform religious services where it is an essential part
of his duties;
Where the mutawalli utilises the waqf-property or its benefits for his private use;
Where a mutawalli applies the income of the waqf-property against directions of
the waqf-deed;
Where a mutawalli otherwise exceeds his powers in dealing with the property, or
Where the mutawalli suffers from any physical or mental incapacity.
2. By wakf board - Under section 64 of Wakf Act 1995, the Wakf board can remove
mutawalli from his office under the conditions mentioned therein.
3. By the wakif - As per Abu Yusuf, whose view is followed in India, even if the
wakif has not reserved the right to remove the mutawalli in wakf deed, he can still
remove the mutawalli.

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GO TO CONTENTS.

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Module-4) Family Court Act and Miscellaneous Provisions :

4.1) Family Courts: Concept, need, Law Commission Reports


4.2) Powers and jurisdiction of the Family Court
4.3) Issues to be decided by the Family Court, Qualifications of Family Court
Judge
4.4) provisions regarding appearance of advocates in family courts
Exemption from court fees etc.
4.5) Provisions of Appeal under the Family Courts Act
4.6) Salient Features of the Protection against the Domestic Violence Act,
2005

GO TO CONTENTS.

MODULE-4 QUESTIONS :

Explain in detail the objects, constitutional jurisdiction and procedure of the


family courts. (Apr-2012, Apr-2013, Mar-2015)
Write short note : Family court. (Oct-2012, Apr-2016)
Explain the powers and jurisdiction of the family court. (Mar-2014)
Write short note : Issues to be decided by the family court. (Mar-2014)
Write a short note : provisions regarding appearance of advocates in family courts
Exemption from court fees etc.
Discuss : Provisions of Appeal under the Family Courts Act.
Discuss the salient features of the protection against the Domestic Violence Act
2005. (Mar-2014)

GO TO CONTENTS.

MODULE-4 ANSWERS :

Explain in detail the objects, constitutional jurisdiction and procedure of the


family courts. (Apr-2012, Apr-2013, Mar-2015)
Write short note : Family court. (Oct-2012, Apr-2016)
Explain the powers and jurisdiction of the family court. (Mar-2014)

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Answer :
Refer :
http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U5_Legal_Studies.pdf
http://kuklawnotes.blogspot.in/p/family-law.html
Intro :
In 1984, the Family Courts Act was enacted by the Indian parliament to lay down
procedures for the creation and functioning of family courts with expertise to deal
with matrimonial and family law matters.
The Act is procedural and does not override the substantive family laws, and
accordingly, the rights and obligations of parties to disputes are based on
applicable family, personal or matrimonial laws.
During the late 1980s and 1990s, many family courts were established in most
major cities in India and the matrimonial and family law cases were shifted from
the district civil and criminal courts to the newly created special courts.
Background :
The need to establish the Family Courts was first emphasized by late Smt Durga
Bai Deshmukh after her visit to China in the year 1953, where she had the
opportunity to study the working of Family Courts.
Women associations and organizations have also played critical role in the creation
of family courts. In the 1980s, the women's rights movement groups were vocal
about legislative reforms, such as the creation of special courts to deal with family
matters to curb violence against women including rape, dowry harassment, and
wife murder. These issues of gender justice were an important motivating factor for
the creation of family courts.
Accordingly, family courts aimed at creating women-friendly court procedures that
were less formal and more accessible to women, especially those from the
marginalized section. For this the family courts intended to rely less on the
traditional lawyers and to depend more on counselors to help the parties to the
dispute to reach at mutually amicable solutions.
The conciliators were to increase the power of negotiation of women in
reconciliations and settlements in issues such as quantum of maintenance upon
divorce, custody and access of children, protection against domestic violence, and
right of residence in the matrimonial home.
Family courts were created :
1) to make litigation process less formal and intimidating;
2) to speed up justice delivery;
3) to facilitate conciliation and settlements

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The personal or family law subject matters that fall within the jurisdiction of family
courts include :
nullity of marriage; restitution of conjugal rights; judicial separation; validity of
marriage; matrimonial status; disputes regarding property of either of the parties
or joint property; injunction arising out of marital relations; legitimacy of any
person; maintenance; and guardianship, custody and access to any minor.
Applicable statutes that come within the purview of Family Courts Act include the
following :
The Hindu Marriage Act, 1955:
Special Marriage Act, 1954
Dissolution of Muslim Marriage Act, 1939
Foreign Marriages Act, 1969
The Indian Divorce Act, 1869
The Parsi Marriage and Divorce Act, 1936
Muslim Women (Protection of Rights & Divorce) Act, 1986
Muslim Personal Law/Application of Shariat Act, 1937
Hindu Adoption and Maintenance Act, 1956
The Indian Christian Marriage Act, 1872
Hindu Minority and Guardianship Act, 1956
Guardian and Wards Act, 1890
Chapter IX of the Criminal Procedure Code, 1973
Protection of Women from Domestic Violence Act, 2005
Jurisdiction of Family Courts :-
1. The family courts may exercise the entire jurisdiction exercisable by and District
Court or any subordinate civil court under any family laws for the time being in
force.
2. The Family Courts have the jurisdiction to accept a suit for proceeding between
the parties to a marriage with respect to the property of the parties of either of
them.
3. Family Court has the jurisdiction to suit for proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring the marriage to be null &void
or as the case may be annulling the marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage.
4. Family Court may accept the suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of any person.

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5. The Family Court may commence a suit or proceeding for an order or injunction
in circumstances arising out of a marital relationship.
6. Proceeding for declaration about the legitimacy of any person is accepted by the
Family Court.
7. The family court has the jurisdiction to suit or proceeding for maintenance and in
relation to the guardianship of the person or the custody of, or access to any minor.
PROCEDURES AND SALIENT FEATURES :- Section 9 of Family Courts Act, 1984, laid
down the following procedures :-
Duty of Family courts to make efforts for settlement :- Every suit or proceeding
endeavour shall be made by the Family Court in the first instance, with the nature
of circumstances of the case to assist and persuade the parties in arriving at a
settlement and follow those rules framed by High Court as deemed fit.
Family Court may Adjourn :-If any suit or proceeding at any stage seems to be that
there is a reasonable possibility of a settlement between the parties, the Family
Court may adjourn the proceedings for such period as it thinks fit to enable
attempts to be made to effect such a settlement.
The power to adjourn :- conferred by sub-sec.2 shall be in addition to and not in
derogation of any other Power of the Family Court to adjourn the proceedings.
Sec.10 of Family Courts Act also provides subject to other provisions of this act and
the rules of provisions of the Code of Civil Procedure and of any law for the time
being in force shall apply to such proceedings under criminal procedure code.
Family Courts shall deem to be a civil court and shall have all the powers of such
court.
Section 10(2) : Provisions shall prevent a family Court from laying down its own
procedure with a view to arrive at a settlement in respect of the subject matter of
the suit or proceedings or at the truth of the facts alleged by the one party and
denied by the other.
Section 11 :Proceedings to be held in Camera :-In every suit or proceeding to
which this act applies, the proceedings may be held in camera if the Family Courts
so desires and shall be so held if either party so desires.
Assistant of Medical & welfare :- Under sec. 12 of the Act, every suit or
proceedings, it shall be open to family court to secure the services of a medical
expert or such person (preferable a woman where available) for the purpose of
assistance in discharging the functions imposed by this act.
Record of oral evidence :-In suits or proceedings before a family court it shall not
be necessary to record the evidence of witnesses at length but the judge as the
examination of each witness proceeds shall record or cause to be recorded a
memorandum shall be signed by the witness.

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Act to have overriding effect :- One of the salient feature that the provisions of this
act that this act shall have the effect notwithstanding anything inconsistent there
with contained in any other law for the time being in force or in any instrument
having effected by virtue of any law other than this act.
Section 21, 23 of the act provides that the State Govt, by issue of gazette
notification, shall make rules in consultation with High Court.
Power of Central Govt. :- Sec.22 provides that the central govt. May with the
concurrence of the Chief Justice of India make rules for appointment of Judges by
gazette notification.
Association of social welfare agencies :
The State Government may, in consultation with the High Court, provide, by rules,
for the association, in such manner and for such purposes and subject to such
conditions as may be specified in the rules, with a Family Court of,-
(a) institutions or organizations engaged in social welfare or the representatives
thereof;
(b) persons professionally engaged in promoting the welfare of the family;
(c) persons working the field of social welfare; and
(d) any other person whose association with a Family Court would enable it to
exercise its jurisdiction more effectively in accordance with the purposes of this
Act.
Counselors, officers and other employees of Family Courts :
(1) The State Government shall, in consultation with the High Court, determine the
number and categories of counselors, officers and other employees required to
assist a Family Court in the discharge of its functions and provide the Family Court
with such counselors, officers and other employees as it may think fit.
(2) The terms and conditions of association of the counselors and the terms and
conditions of service of the officers and other employees, referred to in sub-section
(1), shall be such as may be specified by rules made by the State Government.
Conclusion :
Though the Act was aimed at removing the gender bias in statutory legislation, the
goal is yet to be achieved.

GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.

Write short note : Issues to be decided by the family court. (Mar-2014)


Answer :

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Refer :

GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.

Write a short note : provisions regarding appearance of advocates in family courts


Exemption from court fees etc.
Answer :
Refer :

GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.

Discuss : Provisions of Appeal under the Family Courts Act.


Answer :
Refer :
copied from bare act
CHAPTER V - APPEALS AND REVISIONS
19. Appeal
(1) Save as provided in sub-section (2) and notwithstanding anything contained in
the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure,
1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or
order, not being an interlocutory order, of a Family Court to the High Court both on
facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the
consent of the parties 2[or from an order passed under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974) :
PROVIDED that nothing in this sub-section shall apply to any appeal pending
before a High Court or any order passed under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family
Courts (Amendment) Act, 1991.]
(3) Every appeal under this section shall be preferred within a period of thirty days
from the date of judgment or order of a Family Court.

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(4) The High Court may, of its own motion or otherwise, call for and examine the
record of any proceeding in which the Family Court situate with in its jurisdiction
passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the
purpose of satisfying itself as to the correctness, legality or propriety of the order,
not being an interlocutory order, and, as to the regularity of such proceeding.]
(5) Except as aforesaid, no appeal or revision shall lie to any court from any
judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting
of two or more Judges.

GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.

Discuss the salient features of the protection against the Domestic Violence Act
2005. (Mar-2014)
Answer :
Refer :
http://www.hrln.org/hrln/images/stories/pdf/TrainingModuleRightsOfWomenUnderT
hePersonalLawsInIndia.pdf
good - http://nyaaya.in/law/557/the-protection-of-women-from-domestic-violence-
act-2005/#section-22
What is Domestic violence ?
For the first time in India a very conclusive and extensive definition was given in
PWDVA Act which conformed to the United Nations Framework and to the
Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW) to which India is also a signatory.
(Section (3) of the PWDVA) Domestic Violence is any act or conduct of a person :
which harms or
injures or
endangers
the health, safety or well being of the aggrieved person which includes :
Physical abuse
Sexual abuse
Verbal and emotional abuse
Economic abuse

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Which causes harassment, harms or injures a person with a view to coerce


her or anyone related to her to meet an unlawful demand for dowry or
property; or
Which has the effect of threatening the aggrieved person or anyone related to
that person; or
Injures or causes physical or mental harm to the aggrieved person.
WHEN did the PWDVA become enforcable ?
The PWDVA was passed by the Indian Parliament in 2005 but it became
enforceable only on October 26, 2006. The Rules under the Act were passed and
notifi ed in 2006.
Retrospective effect : Retrospective law is one, that looks backwards or
contemplates the past, affecting facts or acts that existed before the Act came into
effect
it is an established legal principle that criminal statutes cannot have retrospective
application as they create new offences and impose penalties thereon.
Case of Dennison Paulraj and Ors. vs Mrs.Mayawinola (Crl OP No. 7156 of 2007)
decided by the High Court of Madras on the April 2, 2008 :
The wife in her application, stated that she was forced to leave the matrimonial
home following continuous harassment and dowry demands by her husband and
in-laws. Although she left the matrimonial home prior to the enactment of
PWDVA 2005, she claimed that the threat and harassment continued.
ISSUE : Whether the wifes application is maintainable as the alleged acts of
domestic violence took place before the PWDVA 2005 was enacted.
The husband and in-laws argued that entertaining this application would amount
to giving retrospective effect to the Act, which is not permissible as the Act
contains penal sections under section 31.
Rejecting the contention of retrospective operation, the court concluded that the
respondent had suffered part of the abuse after the commencement of the Act in
the form of anonymous phone calls threatening violence.
The issue of penal statutes not being retrospectively applicable does not hold
true in the case of PWDVA 2005 as section 31 penalises the breach of the
protection order rather than the act of domestic violence itself. A protection
order can be granted only after the Act came in to force and thus, penalties on
its breach cannot be said to have retrospective application.

Salient features of Protection of Women from Domestic Violence Act 2005 : The law is
crucial, as the it helps in the protection of the weaker sex women from the
violence she face in the place she live in.

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1. Includes physical and mental ill-treatment.


2. Primarily meant for the (i) protection of wife or female live-in partners, (ii)
daughter-in-laws, (iii) widows or (iv) sisters & mothers.
3. Harassment in the form of dowry demands also included in this law.
4. Gives women right to secure housing.
5. Court can also issue protection orders that prevent the abuser from harassing
the women :.
6. Act proposes appointment of protection officers and NGOs.
7. Bail could be refused for breach of protection order.
Detailed discussion of features :
1. Includes physical and mental ill-treatment.
Domestic violence under this law can include different kinds of abuse and
violence. It does not need a positive act - not doing something can also be a
form of domestic violence. It is any kind of abuse which causes harm to a
woman, her health and well-being. It includes any act which causes her physical
or mental pain. Being abusive could mean physical, sexual, verbal and emotional
as well as economic abuse.
Forcing woman to engage in any humiliating and degrading sexual act. This
includes forcing sex on her when she does not want it.
verbal and emotional could be insulting or taunting a woman, insulting her for
not giving birth to a child or male child, or scaring her by saying that they will
hurt her loved ones.
2. Primarily meant for the (i) protection of wife or female live-in partners, (ii)
daughter-in-laws, (iii) widows or (iv) sisters & mothers. : This law aims to protect
women who are living in the same house with people who are related through :
Marriage : eg husband-wife, daughter-in-law with father-in-law/ mother-in-law
and other members of the family, sister-in-law with other members of the family,
widows with other members of the family;
Relationships in the nature of marriage : live-in relationships, legally invalid
marriages (for e.g. husband has married a second time, husband and wife are
related by blood etc.)
Blood : eg mother-son, father-daughter, sister-brother, widows,
3. Harassment in the form of dowry demands also included in this law.
Domestic violence under this law can include threatening to be abusive or
threatening to hurt a woman or her relatives for dowry, money or property.
Here, dowry shall have the same meaning as assigned to it in section 2 of the
Dowry Prohibition Act, 1961.

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4. Gives women right to secure housing :


To ensure that the victim has a place to stay, the Magistrate can order the
offender not to sell or give away their house. He can instead also ask the
offender to pay the rent at another house or leave their shared house. These
kind of orders are called 'residence orders'.
A shared household is the house where the victim lives or earlier lived with the
offender. This could be their own house or a house taken on rent. The house
could also be the offender's joint family house. Who owns the house does not
matter.
5. Court can also issue protection orders that prevent the abuser from harassing
the women :
Even before making the final decision in a domestic violence case, the Magistrate
can pass a 'protection order' if she is somewhat convinced that such violence has
taken place or can take place in the near future. In this order, the Magistrate can
do the following :
She can order the offender not to commit or help commit domestic violence.
She can order the offender not to disturb the victim at her office. If the victim is
a child, she can order the offender not to disturb her at her school.
She can order the offender not to contact the victim personally or through e-
mail, telephone or similar means.
She can order the offender not to do the following without her permission:
sell or give away their things
use their joint bank account, or
use their joint bank locker.
If such property includes the victim's stridhan (wedding gifts), the Magistrate
can also pass such orders even if it is not jointly owned or operated.
She can order the offender not to harm anyone who depends on the victim, her
relatives and anyone else who has helped her.
6. Role of a 'protection officer' : Act proposes appointment of protection
officers and NGOs : There is a duty on every State Government to appoint as
many women as possible for the Protection Officer posts.
Example : Rimi has been married to Tyagi for five years. They live in Delhi, have
two girls and now Rimi is pregnant again. Tyagi is forcing her to get an abortion
because he thinks she is going to give birth to a girl child. What can Rimi expect
if she goes to Protection Officer for help ?
The Protection Officer has a general duty to help the Magistrate with her
various duties under the Act.

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Step 1 - Rimi can approach a Protection Officer for help. The Protection Officer
will first record her complaint in a particular format. This is known as the
'domestic incident report'. The Protection Officer will then send a copy of this
complaint to the local police station and Service Providers.
Step 2 - If Rimi wants to approach the courts which can pass orders under
this law, the Protection Officer has to make an application on Rimi's behalf
and present it to the Magistrate.
Step 3 - If Rimi does not have money to pay for a lawyer, the Protection
Officer has to ensure that she has access to a lawyer who will take up her
case for free.The Protection Officer has to maintain lists of all the NGOs in the
area which provide legal help or counsel victims like Rimi in such situations.
She also has to maintain lists of local shelter homes and hospitals which are
designated by the government to provide help in such situations.
Step 4 - If Rimi believes that her husband might hurt her, she can ask the
Protection Officer for help. The Protection Officer has to find a safe shelter
home for her. When she has found a safe shelter for Rimi, she needs to report
this to the local police station and Magistrate.
Step 5 - If Tyagi hits Rimi and she is bleeding, she needs the help of doctors.
The Protection Officer has to make sure that a doctor helps Rimi. Once she
has made sure that a doctor has examined Rimi, she has to send a copy of
the medical report to the local police station and Magistrate.
Step 6 - If the Magistrate has ordered Tyagi to give Rimi money for her
injuries, the Protection Officer has to make sure that Tyagi actually pays Rimi
the money.The main duties of the Protection Officer are provided in this law.
However, the government has imposed additional duties on the Protection
Officer under rules.The Protection Officer is answerable to the local Magistrate
and the government
7. Bail could be refused for breach of protection order :
This Act is not considered as a criminal law as it is more concerned with
providing relief to the victim. However, if the offender does not comply with a
final or temporary protection order, he can be :
sent to jail for up to one year;
ordered to pay fine of up to Rs. 20,000; or
sent to jail and ordered to pay fine.
As far as possible, the Magistrate deciding if the offender goes to jail must be
the Magistrate who heard the victim's case of domestic violence. When the
Magistrate is deciding if the offender goes to jail, she can also charge the
offender with committing crimes of cruelty or taking dowry.

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An offender who violates a protection order can be arrested by the police officer
without permission of the Magistrate. Also he will need to approach a court to
get bail - the court may or may not grant him bail. The Magistrate can decide to
listen only to the victim when deciding if the offender has violated the protection
order.
Even the Protection Officer can be punished for not performing his duties as per
the orders of the Magistrate. She can be:
sent to jail for up to one year;
ordered to pay fine of up to Rs. 20,000;
sent to jail and ordered to pay fine.
Criticisms of Protection of Women from Domestic Violence Act 2005
Abused men not covered; the law is specially for women ONLY.
Violence against women are often perpetrated by women herself Eg: Mother-
in-law/ Daughter-in-law.
Verbal abuse and mental harassment are subjective terms.

GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.

*** End-of-Compilation ***


Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
Credits/ copyrights duly acknowledged.

Suggested Reading :
Paras Diwan, Family Law
Paras Diwan, Law of Instestate and Testamentary Succession (1PPS), Universal
Basu, N.D. Law of Succession, Universal
Kusem, Marriage and Divorce Law Manual, Universal
Machanda S.C. Law and Practice of Divorce in India, Universal
P.V. Kane, History of Dharmasastras Vol.2 Pt1 at 624632
A. Kuppsuwami (e.d.) Mayne's Hindu Law and Usage Ch.4
B. Sivaramayys, Inequalities and the Law

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K. C. Daiya, "Population control through family planning n India. Indian Journal of


Legal Studies,
J.D.M. Derrett, Hindu Law past and present
J.D.M. Derrett, Death of marriage Law
A.A.A. Fyzee outline of Muhammadan Law
Alladi Kappuswami (ed) Mayne's Hindu Law and Used J.D.M. Derret a Critique of Modern
Hindu Law
Paras Diwan Hindu Law

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