Intestate succession and testamentary succession
Intestate Succession-HSA1956; Muslim inheritance laws; Indian Succession Act 1925(covers all other communities and those marrying under special marriage Act)
Hindu Succession Act 1956-aims uniform succession system of succession amongst Hindus by merging various schools especially the Mitakshara, Dayabhaga, Marumakattyam, Aliyasantana and Nambudiri, etc. It is based fundamental principles of Hindu Jurisprudence viz. VYAVAHARIKA DHARMA
Muslim laws of inheritance are derived from the customs and usages prevalent among the tribes of Arabia before the revelation of Quran, and supplemented and modified by the Quranic principles and Sunnah of the Prophet (saw).
Christian Law of succession is contained in the Indian succession Act 1925 and it deals with both intestate and testamentary successions. This is also applicable to Parsis. (Part V, Chapter III)
Laws of Wills is contained in the Indian succession Act 1925. It does not however applies to Muslims. Muslim can make will for only 1/3 of their total properties and that too not for their own heirs.
MODULE I. HINDU JOINT FAMILY AND COPARCENARY
CONCEPT AND COMPOSITION OF JHF AND COPARCENERY
Joint and undivided family is the normal condition of a Hindu society. They are joint together not only in estate but also food and worship. Estate is most important as family can continue to be JHF even in absence of joint food and worship. A JHF consists of all persons lineally descended from a common male ancestor and includes their wives and unmarried daughters.
The existence of joint estate/property is not an essential requisite to constitute joint family and family which does not own any property, may nevertheless be joint. JHF is by birth and JHF property is only adjunct of the JHF.
Members of JHF– There is no limit to the number of members in a HJF as long as they are related to each other by a common male ancestor but there has to be minimum two members. It may consists of a male Hindu and his wife. It may even consists of two joint members. However, there should be at least two members to constitute JHF (In case of coparcenery, 2 males in the old law before 2005). A daughter ceases to be a member of her father’s family, on marriage and becomes member of her husband’s family. Joint or HuF may consists of single male member and widows of deceased male members. The property of a JHF does not cease to be a joint family property belonging to any other family merely because the family is represented by a single male member. Vigneshwara in Mitakshara School said-JHF consists of all male members lineally descendants from common male ancestors along with their mothers, wives, widows and unmarried daughters. Before 2005, at least two Male members were required for the continuance of JHF. After 2005 amendment, though male is still needed for the beginning of JHF but once established can be continued by females.
Presumption of Jointness-The natural presumption is that they are living in a state off union unless contrary is established. This presumption is stronger in case of brothers than cousins.The general principle is that a Hindu Family it presumed to be Joint unless the contrary is proved.
ORIGIN of JHF-Post Vedic period Aryans settled and lived in guilds to protect their person and properties.
Rights arise by birth-Each person is merely entitled to reside and be maintained in the family house and with his death his claim cease. Death of coparceners may increase the beneficial interest of survivors as new births can diminish that interest. There is no definite share for anyone so long as the HUF continues. Each coparcener has right to claim a partition but until he does so, the property continues to devolve by survivorship (S.6) and not by succession (S.8). Members of JHF are bound by Sapinda relationship. Relationship arises by birth, marriage and adoption.
Sushila Devi v Income Tax officer 1959-Larger tax exemption if taxed as JHF than individually.
Severance-By Partition, conversion to another religion, marriage to non-Hindu, on being given in adoption, and for daughter on getting married.
RIGHTS-Maintenance and residence, joint possession and enjoyment, right to call for an account as incidental, right to have partition.
Status– JHF is not a juristic person and is a unit represented by the Karta. All members don’t have equal rights. HuF and JHF are almost synonymous but for tax purposes HUF is used.
Bhagwani v Mohan Singh 1925 (Presumption of Jointness)
It is presumed that sons of a Deceased, who originally must had been joint, continued to be joint so long until contrary was shown. No evidence had been given to prove that sons of Deceased, ever separated or that after their death separation took place between sons of Deceased. That presumption is peculiarly strong in the case of the sons of one father.
Hindu coparcenary is a much narrower entity than JHF. Only males are coparceners. When a coparcener dies, his rights goes to the other coparceners by survivorship but if a member of JHF dies, his rights does not go to all other coparceners but to only his own heirs. A JHF in this sense differs from what is called a Hindu coparcenery, which is a much narrower body. A Hindu coparcenery includes only those male members who take by birth an interest in the coparcenery property. (This Principle No longer applicable after 2005) This is what is known as Apratibandha Daya or unobstructed heritage, which devolves by survivorship. These are the three generations; next to the last holder in unbroken male descent. However right of survivorship has now been repealed with the ‘Hindu Women’s Right to Property Act 1937’ as per which the interest of male coparceners in a Mitakshara family devolve on their death upon their widows as for a Hindu women’s estate. The male issue however continues to remain coparcener with other male coparceners governed by the rule of survivorship.
CIT v Arun Kumar 1997 (2 Males not necessary to constitute JHF)
Facts-The assessee Arun Kumar was a HUF governed by the Mitakshara school of Hindu Law. The said assessee derived share of income from two firms, namely, Pawan Kumar Arun Kumar & Ors and H. U. Textile, Shillong. The share income from the said two firms was included in the return filed by the assessee in the status of an HUF. The Assessing Officer took the view that there should be at least two male members to form an HUF and in the absence of a second male member the assessee could not be assessed in the status of the HUF.
Held, in order to constitute a HJF, it is not always necessary that there should be two male coparceners. Arun Kumar after his marriage could duly form HUF and assessee could be recognized as assessee in status of a HUF and not as an individual.
Surjit Lal v CIT-JHF consists of all male members lineally descendants from common male ancestors along with their mothers, wives, widows and unmarried daughters.
CIT v Laxmi Narayan-replaced the word male with persons.
Gur Narayan Das v Gur Tahal Das-illegitimate Child member of JHF only has right in Separate Property. (In Islam they have full right or their father can make it)
Gouri Buddappa v CIT Mysore (Sole surviving coparcener still constitutes JHF with mother and wife)
In this case, one Buddappa, his wife, his two unmarried daughters and his unmarried son, Buddanna, were members of a HUF. Buddappa died and after his death the question arose whether the income of the properties held by Buddanna as the sole surviving coparcener was assessable as the individual income of Buddanna or as the income of the Hindu Undivided Family. To bring JHF into existence, common male ancestor-unit represented by Karta. That under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess. It was held by this Court that since the property which came into the hands of Buddanna as the sole surviving coparcener was originally joint family property, it did not cease to belong to the joint family and income from it was assessable in the hands of Buddanna as income of the Hindu Undivided Family.
Anant Bhikappa v Shankar Ramachandra– JHF continues till its possible in the nature of things to add a male member in the family. Not dependent on presence of male members
AG of Ceylon v A. R. Arunachalam Chettiar, 1957 (Property of Sole surviving coparcener to be assessed as JHF for tax purposes)
It is only by analyzing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as ‘joint property’ of the undivided family. In this case one Arunachalam Chettiar and his son constituted a HJF governed by the Mitakshara school of Hindu law. The father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern countries. The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the HUF to which a number of female members belonged. Arunachalam died in 1938, shortly after the Estate Ordinance no. 1 of 1938 came into operation in Ceylon. By Section 73 of the Ordinance it was provided that property passing on the death of a member of the Hindu undivided family was exempt from payment of estate duty. On a claim to estate duty in respect of Arunachalam’s estate in Ceylon, the Judicial Committee held that Arunachalam was at his death a member of the Hindu undivided family, the same undivided family of which his son, when alive, was a member and of which the continuity was preserved after Arunachalam’s death by adoption made by the widows of the family and since the undivided family continued to persist, the property in the hands of Arunachalam as a single coparcener was the property of the Hindu undivided family.
CIT Bombay v Gomedalli Laxminarayan-Where an HUF consists of a person, his mother, and his wife, the income received by right of survivorship by the person as the sole surviving male member of the family is liable to be taxed as the income of a Hindu undivided family for the purposes of super-tax under S.55 of the Indian Income Tax Act, 1922, and not as his own individual income.
Bhagwani v Mohan Singh AIR 1925 PC 141-A definition of shares in revenue and village papers affords, by itself, but a very slight indication of an actual separation in a Hindu family, and certainly in no case that has ever come before us could we have regarded such a definition of shares standing alone as sufficient evidence upon which to find, contrary to the presumption in law as to jointure, that the family to which such a definition referred had separated.
Jagat Singh v Bhavani Singh AIR 1996 Delhi 14 (Rights of Coparceners-Maharaja of Jaipur Case)
The characteristic feature of ancestral coparcenery property is that members of the family by acquire an interest in the property by birth or adoption and by virtue of such interest they can claim for right;
The right of partition;
The right to restrain alienations by the head of the family except for necessity;
The right of maintenance; and
The right of survivorship
Khetra Mohan v CET-Although HUF is included in the ‘Person’ and defined in the Indian Income Tax Act, yet it is a not Juristic person for all purposes.
Prem Kumar v CIT-
CONCEPT OF PROPERTY IN HINDU LAW
KINDS AND SOURCES OF PROPERTY
Apratibandha Daya/unobstructed heritage is a right in coparcenery property by birth. The existence of this right is not obstructed/affected by the existence of the owner of the properties unlike in Dayabhaga school. Earlier (pre 2005) A Hindu coparcenery included only those male members who take by birth an interest in the coparcenery property. This is what is known as apratibandha daya or unobstructed heritage, which devolves by survivorship. These are the three generations; next to the last holder in unbroken male descent.
Sapratibandha Daya/obstructed right. The accrual of right is obstructed one.
Self acquired property
Joint family property
Property acquired through Doctrine of Blending-when coparcener throws/puts his separate property with coparcenery property. It’s an irrevocable act if done intentionally.
Property acquired through Doctrine of Accretion-Benefits arising out of JHF property. If a Karta recovers the joint property using his own wealth, it become his separate property. If other coparcener recovers a joint property using their own wealth only 1/4 will be their separate property and 3/4 will be joint property. If the property is recovered using the JHF fund, then joint property. Karta can gift the coparcenery property to a reasonable extent to his daughter.
Dipo v Wassan Singh and Ors 1983 (Punjab Customary Law case)
Mrs. Dipo and Bua Singh were sister and brothers. Bua Singh died issueless in 1952. Mrs. Dipo filed a suit to recover the properties of her brother Bua Singh. But collaterals of Bua Singh ie his paternal uncle and his decedents usurped the properties citing prevailing customs of the area, that collaterals and not sisters are preferential heirs to ancestral property in hands of propositus, while sister and not collateral is preferential heir in regard to non-ancestral property.
Held-Property inherited from paternal ancestors of course, ‘ancestral property’ as regards the male issue of the propositus it is his absolute property and not ancestral Property as regards other relations. If ‘A’ inherits property, whether movable or immovable, from his father or father’s father or father’s father’s father, it is ancestral property as regards his male issue. If A has no son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. A person inheriting property from his three immediate paternal ancestors holds it, in coparcenery with his sons, son’s sons and sons’ sons’ sons’ but as regards other relations he holds it and is entitled to hold it, as his absolute property. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue they take an interest in it by brith, 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. After the 1956 Act and 2005 amendment separate property passes to Class 1 heirs under Section 8.
Badri Prasad Jagan Prasad v CIT-It is to be presumed in partition that what was divided was not merely assets but business. It is true that co-ownership of assessed merely does not ipso facto mean co-ownership of the business but to hold them as co-owners of business is evidenced from the facts of this case and the subsequent conduct can be taken into consideration in certain cases like this.
Arunchala Mudaliar v Murugantha Mudaliar
Jagat Singh v Bhavani Singh AIR 1996 Delhi 14 (Characteristics of Coparcenery Property)
Right to partition cannot be acceded in the case of impartible State (Jaipur princely State). Defendant No. 1(Raja Bhavani Singh) being the eldest son would have preferential right to succeed to the Gaddi as well as to the private properties of late Maharaja Sawai Man Singh by the principle of primogeniture as held by Supreme Court, (sic) in an Impartible Estate though other rights which a coparcener acquires in the joint family do not exist, right by birth of the senior member to take by survivorship still remains. That for individual properties to be placed in the common notch potch clear intention on the part of the coparcener to waive his separate rights must be there. Such an intention will not be inferred merely from acts which may have been done for kindness or on wrong advise. Mere declaration of individual properties as HUF properties by defendant No. 1 (for tax purposes) was not sufficient but intention to waive this claim with full knowledge of his right to it as his separate property must be proved.
The characteristic feature of ancestral coparcenary property is that members of the family by acquire an interest in the property by birth or adoption and by virtue of such interest they can claim for right;
The right of partition;
The right to restrain alienations by the head of the family except for necessity;
The right of maintenance; and
The right of survivorship
It is obvious from the nature of a sovereign Estate that there can be no interest by birth or adoption in such Estate and these rights which are necessary consequence of community of interest cannot exist. The Chief of a Sovereign Estate would hold the Estate by virtue of his sovereign power and not by virtue of municipal law. He would not be subject to municipal law; he would in fact be the fountain head of municipal law. The municipal law cannot determine or control the scope and extent of his interest in the Estate or impose any limitation on his powers in relation to the Estate.
S.8 of HSA 1956-Devolution of separate property
CWT v Chandrasen 1986 3 SCC 567 (IMP)
Facts-A family comprised the father Rangilal, his son (Chandrasen) and grandsons. After effecting a partial partition in 1961, both the father and the son carried on their respective businesses. On the death of the father in 1965, the son inherited his separate properties and received the undivided share, by survivorship. The son, Chander Sen, was now the Karta of his family comprising two sons. In the capacity of the Karta, he filed a return of his net wealth and showed the joint family income, including the one that he had got by survivorship, but did not include in it, the property that he had inherited from his father, on the ground that it was his separate property. The wealth tax officer did not accept his contention and maintained that the property received from the father, either by survivorship or through inheritance, was coparcenary property in the hands of the son. (A person might prefer separate property over joint property because he has more freedom and absolute right in separate property than JHF property)
Issue-Whether, income or asset which a son inherits from his father when separated by partition should be assessed as income of HUF of son or his individual income?
Held, The answer to this question would depend upon whether the amount standing to the credit of late Rangi Lal was inherited, after his death, by Chander Sen in his individual capacity or as a Karta of the assessee joint family consisting of himself and his sons. The amount in question represented the capital allotted to RangiLal on partial partition and accumulated profits earned by him as his share in the firm. While RangiLal was alive this amount could not be said to belong to any JHF and qua Chander Sen and his sons, it was the separate property of RangiLal. On Rangi Lal’s death the amount passed on to his son, Chander Sen, by inheritance. The High Court was of the opinion that under the Hindu Law when a son inherited separate and self-acquired property of his father, it assumed the character of HJF property in his hands qua the members of his own family. But the High Court found that this principle has been modified by S.8 of the HSA 1956. S.8 of the said Act provides, inter alia, that the property(separate) of a male Hindu dying intestate devolved according to the provisions of that Chapter in the Act and indicates further that it will devolve first upon the heirs being the relatives specified in class I of the Schedule. Heirs in the Schedule Class I includes and provides firstly son and thereafter daughter, widow and others but is does not include grandson when son is alive. It is not necessary in view of the facts of this case to deal with other clauses indicated in Section 8 or other heirs mentioned in the Schedule. In this case as the High Court noted that the son, Chander Sen was the only heir and therefore the property was to pass to him only. There is no dispute among the commentators on Hindu Law nor in the decisions of the Court that under the Hindu Law as it is, the son would inherit the same as karta of his own family. But the question, is, what is the effect of Section 8 of the Hindu Succession Act, 1956? In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by S.8 he takes it as karta of his own undivided family.
It would be difficult to hold that a property which devolved on a Hindu under S.8 of HSA would be HUF in his own son as that would amount to creating two classes among heirs. However, heirs in class I of Schedule under S.8 of Act included widow, mother, daughter of predeceased son, etc. Thus, express words of S.8 of Act could not be ignored and must prevail. Hence, sums standing to credit of Deceased father belongs to the son in his individual capacity and not to HJF, interest was an allowable deduction in respect of income of family from business.
Inheritance after this case is now separate property. Old law was that whatever son inherits from his father is his coparcenery property. However under S.8 of HSA, son’s son(grandson) has not been included in the class 1 heirs which shows that separate property of intestate is not meant to be passed as a coparcenery property. Because if it were coparcenery property his grandson would not have been disqualified from that.
Bhagwata v Digamber AIR 1986 79
Rajkumar Singh v CIT
Gopal Chand v Hukum Chand
Prabhawati Kaur v Sargangadhar AIR 1960 SC 403
THE HINDU GAINS OF LEARNING ACT, 1930-
S.3-Gains of learning not to be held, not to be separate property of acquirer merely for certain reasons such as-
his learning was in whole or in part, imparted to him by any member, living or deceased, of his family, or with the aid of the joint funds of his family or with the aid of the funds of any member thereof, or
Himself, or his family having, while he was acquiring his learning been maintained or supported, wholly or in part, by the joint funds of his family, or by the funds of any member thereof.
Before this act, gains of learning of a Hindu used to be the part of JHF property. Now whatever the person earns in his own capacity and specialization is his/her separate property.
COPARCENARY AND SEPARATE PROPERTY
A coparcener is one who shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. A person to whom an estate descends jointly and who holds it as an entire estate. But sometimes, two or more persons together constituted the heir and in this case they took the land as ‘parceners’ or ‘coparceners’, the latter expression being the more common. In theory of law, coparceners together constituted a single heir; they be but one heir and yet several persons’. They were called parceners because, every coparcener had a common law Right to have a partition made. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. In other words, three generations comes to the holder in unbroken male descendant. Coparcenary is a creature of law. It cannot be created by act of parties. By adoption, a stranger may be introduced as a member thereof. It is a family unit. A Hindu coparcenary is, however, a narrower body than the joint family, only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. No female could be a coparcener before 2005. A coparcener is in relation to father is a person who can offer a funeral cake to him (up-to 3 generations after him) Consists of father and three male lineal descendants in the old law .
Alienation of Coparcenary Property not possible because of community of Interest as each coparcener has a share in the property.
SBI v Ghamandi Ram 1969 (Incidents of Coparcenery Property-Pakistan Evacuee property case)
Facts and Issue-M/S. Ghamandi Ram was a HJF firm consisting of Ghamandi Ram as a Karta used to carry business in Bahawalpur State of Punjab now in Pakistan. Before the partition of India, the HJF firm had a cash credit account in its name in the then Imperial Bank of India, Bahawalpur State now within Pakistan territory. After partition, Pakistan passed an ordinance Pakistan (Administration of Evacuee Property) 1949 and vested such amounts in the Custodian of Evacuee Property, Pakistan. HUF of Ghamandi Ram was treated as individual by SBI the successor of the Imperial Bank in India and it refused to pay the credit to Ghamandi Ram in India as it has already deposited the amount in Pakistan by the virtue of the Act. When contested, SC ruled that
Held-According to doctrine of Mitakshara school HJF firm cannot be treated as an individual and said firm must be treated as body of individuals. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. I. 1-27). The incidents of coparcenership under the Mitakshara law are:
The lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties is common;
Secondly, No alienation of the property any time work out their rights by asking for partition;
Thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest:-JOINT TENANCY
Fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common;
Fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and
Sixthly, that the interest of a deceased member lapses on his death to the survivors.
Right by birth
Right to demand partition
Community of Interest and
Unity of possession
No Right to alienation
Right to survivorship
Can renounce his interest
Right to restore an improper act
Right to challenge alienation
Karta can alienate only in case of legal necessity but with the consent of other coparceners.
A coparcenary under the Mitakshara School is a creation of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter. Status of adopted child is same as begeted one. When partition occurs, Mother and wife can ask their share post 2005. But they cannot ask for partition since they are not coparceners.
The managership of a JHF is a creature of law and in certain circumstances, could be created by an agreement among the coparceners of the joint family. Coparcenership is a necessary qualification for managership of a joint Hindu family.
Bhagwan Dayal v Reoti Devi  (Creation of Law and Sui generis)
Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognises a branch of the family as a subordinated corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family.
UOI v Shree Ram Bohra SC 1965-The fact any other member or members other than the manager of the HJF, carry on business etc, on behalf of the family, does not mean that such members who act for the family do so as Kartas of the family.
Difference between Coparcenary and JHF
Hindu coparcenary is a much narrower entity than JHF. Only males used to be coparceners before 2005. When a joint family member dies, his rights goes to the other members by survivorship but if a coparcener dies, his rights does not go to all other coparceners but to only his own heirs. An undivided Hindu family in this sense differs from what is called a Hindu coparcenery, which is a much narrower body. A Hindu coparcenery includes only those male members who take by birth an interest in the coparcenery property. This is what is known as apratibandha daya or unobstructed heritage, which devolves by survivorship. These are the three generations; next to the last holder in unbroken male descent.
State of Maharashtra v Narayanrao 1985 SC (Bombay Land Organisation Act-Notional Partition benefit case)
The joint and undivided family is the normal condition of a Hindu society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship but it is not necessary that a joint family should own joint family property. Joint family can exist even without a joint family property. At para 264 of the Mayne on Hindu Law and Usage (1953 Edn. ) it is observed thus: It is evident that there is no limit to the number of persons of whom a Hindu joint family consists, or to the remoteness of their descent from the common ancestor, and consequently to the distance of their relationship from each other. But the Hindu coparcenary is a much narrower body for, coparcenary in the Mitakshara Law is not identical with coparcenary as understood in English law: when a member or a joint family dies,’his right accrues to the other members by survivorship, but if a coparcener dies his or her right does not accrue to the other coparceners, but goes to his or her own heirs. When we speak of a HJF as constituting a coparcenary we refer not to the entire number of persons who can trace descent from a common ancestor, and amongst whom no partition has ever taken place; we include only those person who, by virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu law by legislation. A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. While under the Mitakshara Hindu law there is community of ownership and unity of possession of joint family property with all the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, there is no unity of ownership of coparcenary property with the members thereof. Every coparcener takes a defined share in the property and the property and he is the owner of that share. But there is, however, unity of possession. The share does not fluctuate by births and deaths. Thus it is seen that the recognition of the right to a definite share does not militate against the owners of the property being treated as belonging to a family in the Dayabhaga law.
CIT Bombay v Gomedalli Laxminarayan
There is a sharp distinction in the Hindu law between the expressions ‘HUF’ and ‘coparcenery’. The expression ‘HUF’ includes females, and is much wider than the expression ‘coparcenery’ which includes only those male members of the family who take by birth an interest in the coparcenery property. A JHF consists of all persons lineally descended from a common Ancestor, and includes their wives and unmarried daughters.
Mitakshara-undivided share of a Mitakshara coparcener could be attached and sold in execution of money decrees against the coparcener. Some high courts hold that coparcener can seem his undivided share himself while some hold that he cannot. After 1956, he can gift his share only with the consent of other coparceners.
Dayabhaga-a coparcener possesses full power over his property both self acquired as well as his share in the joint family property. Nature of coparcenery is like Tenants-in-common
1956 Act-has made the law single. Now every Hindu has full power of disposing his separate property by will. He can even disinherit his daughters by making testamentary disposition of his property. The act is based on the basis Mitakshara Principle of Propinquity ie. Preference of shares on the basis of proximity of relationship. It only applies to intestate successions. Testamentary succession is governed by the Indian succession Act 1925. S.6 of the HSA deals with devolution of interest of a male Hindu in the coparcenary property through the rule of survivorship. Before the 2005 amendment females were not coparcener and thus were deprived of the right to inherit the ancestral property.
Sushil Kumar v Ram Prakash 1988 (PRINCIPLE OF PROPINQUITY)
A HJF consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters. They are bound together by the fundamental principle of sapindaship of family relationship which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another. The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcener-ship is so limited is to be found in the tenet of the Hindu religion that only male descendants upto three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners.
Sources of coparcenery property-
Ancestral property unless received from collaterals
Doctrine of blending-when coparcener throws/puts his separate property with coparcenery property. It’s an irrevocable act if done intentionally. See, Pushpa Devi v CIT case regarding blending by Daughters before and after 2005
Doctrine of accretion-Benefit from JHF property
Recovery of JHF
Sole surviving coparcener
Sources of separate property-
Recovered property-if someone has an adverse possession and later acquired
After the Chander Sen case, inheritance of self-earned property of father is also a separate property.
Gains of learning
PUSHPA DEVI v CIT 1977 (Doctrine of Blending) Position changed after 2005.
Facts, The appellant, Pushpa Devi, is a member of a JHF consisting of herself, her husband, her father-in-law, her mother-in-law, her minor son and three daughters. In 1958 the entered into a partnership with her father-in-law, Gur Narain Khanna. Her minor son Ravi was admitted to the benefits of the partnership. Each of the three partners had a one-third share in the profits of the partnership, while the appellant and her father-in-law had an equal share in the losses. They earned various profits. In 1961 she made a sworn declaration stating that she was the sole and absolute owner of the amounts standing to her credit and of her share in that business and declaring unequivocally her intention to treat both her capital and her share in the business JHF property of the HUF of which she was a member. She stated that she had abandoned forever her separate interest and ownership over the capital investment of Rs. 67,284.57, her one-third share in the net profits and one-half share in the net losses in the business of Nishat Talkies, in favour of the JHF to be wholly and exclusively enjoyed and possessed by it. Income Tax officials didn’t agree to this arrangement and did not treat it as HUF for taxation purposes. Hence appeal.
Issue-Whether Hindu female who is member of an undivided family can blend her separate property with joint family property?
Held, to blend property is to share along with others and not to surrender one’s own interest in favour of others to exclusion of oneself. Hindu female who is member of undivided family property if impresses her absolute property with character of joint family property then she has no right to demand share of family property by means of partition. By blending her property she only creates new claimants to her property to exclusion of herself. As she is not a coparcener so she has no right to the joint family property. She is only entitled for maintenance out of joint family property. Expression blending is used in opposite context in case of Hindu female. It is well settled that a Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the three generations next to the holder in unbroken male descent (see Mulla’s Hindu Law, 14th Ed. p. 262, para 213). A Hindu female therefore is not a coparcener. Even the right to reunite is limited under the Hindu law to males (Mulla, p. 430, para 342). It does not therefore militate against the fundamental notions governing a HJF that a female member of the joint family cannot blend her separate property, even if she is an absolute owner thereof, with the joint family property. (NO LONGER HOLDS GOOD)
Coparcenery property changes its character depending upon who the claimant is.
The property which a coparcener obtains on partition does not become for all time his individual property. There is an obligation on him to maintain to maintain his wife and children.
Self Acquired Property-Under the Shashtric Hindu law, women were as a general rule incompetent to inherit properties. Before 1929, only widow, the daughter, the mother, father’s mother, father’s fathers’s mother, father’s father’s father’s mother till the fifth hierarchy were the only females entitled to inherit the property. But after Hindu Inheritance (Amendment) Act 1929, a son’s daughter, daughter’s daughter and sister were added as heirs.
Unmarried daughter is a member of the JHF but after marriage she become a member of her’s husband’s JHF and therefore leaving the biological JHF BUT SHE CONTINUES TO REMAIN A COPARCENER IN BOTH FAMILIES IE IN HER FATHER’S AND HUSBAND’S AFTER THE 2005 ACT.
CIT Bombay v Gomedalli Laxminarayan (Power of Sole Surviving Coparcener)
Facts-CIT contested that the sole surviving coparcener under the Shashtric law was free to deal with the property in any way he liked, and that being so, there was no HJF and therefore is liable to be taxed as an individual.
Held-Where an HUF consists of a person, his mother, and his wife, the income received by right of survivorship by the person as the sole surviving male member of the family is liable to be taxed as the income of a HUF for the purposes of super-tax under Section 55 of the Indian Income Tax Act, 1922, and not as his own individual income.
CIT Bombay v Gomedalli Laxminarayan (Sole Surviving Coparcener)
Facts-CIT contested that the sole surviving coparcener under the Shashtric law was free to deal with the property in any way he liked, and that being so, there was no HUF and therefore is liable to be taxed as an individual.
Held-Now under the Hindu law undoubtedly the sole surviving coparcener has wider powers to deal with property which he takes by survivorship. But these powers are subject to restrictions as well: recognized rights of the female members of the family. Thus the widow of a deceased coparcener has a right to be maintained out of the family property and a right to a due provision for her residence. An unmarried daughter has a right to maintenance and residence and to marriage expenses. Similarly the disqualified heirs, as the blind, the deaf, etc., have similar rights. If the-rights of these persons are threatened, or if the holder of the estate is dealing: with the property in a manner inconsistent with or so as to endanger the rights of these persons, he may be restrained by a proper action from acting in that manner. Similarly, the widow of a deceased coparcener may adopt a son to her deceased husband and he would therefore become a coparcener with the sole surviving coparcener. Then the expenses of religious ceremonies such as the Shraddha relating to deceased coparceners have also to come out Of the property. I need not refer to the other restrictions on the power of the sole surviving coparcener. Therefore because there is no coparcenery, it does not follow that there is no undivided Hindu family. The joint status of the family does not come to an end merely because for the time being there is only one member of the family who is in possession of the family property.
As regards the property of such family, the ‘unobstructed heritage’ devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate ‘unobstructed heritage’ which, with its accretions, may be exclusively owned by such branch as a corporate body.
Rules of inheritance for males is in S.8 of HSA and for females in S.15.
Incidence of Separate property-absolute ownership
Proof of absolute ownership-
After the death, property goes to own heirs
KARTA-POSITIONS, POWERS AND DUTIES
Nopany Investments v Santokh Singh (HUF) AIR 2008 SC 673-(More than one Karta-tenant eviction case)
Hunooman Persaud Panday v Musasumat Babooee (1856) 6 M.I.A. 393.
The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need and necessity, or for the benefit of the estate. This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an HUF certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.
Sunil Kumar v Ram Prakash 1988 2 SCC 77 (Position of Karta)
In a Hindu family, the karta or manager occupies a unique position. It is not as if anybody could become manager of a HJF. “As a general rule, the father of a family, is alone entitled to manage the joint family property.” The manager occupies a position superior to other members. He has greater rights and duties. He must look after the family interest. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties. In other words, the actual possession and management of the joint family property must vest in him. He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of them. The Legal position of a karta or manager is Sui generis ie the relation between him and the other members of the family is not that of principal and agent, or of partners, it is more like that of a trustee and cestui qua trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft-quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v MT Babooee (1856) 6 MIA 393. There it was observed p. 423: (1)“The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate.” This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate”
Although the power of disposition of joint family property has been conceded to the manager of HJF for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Court of law. The other members of the family have right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager’s share in Madras, Bombay and Central Provinces. The purchaser could get only the manager’s share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne’s Hindu Law 11 ed. para 396]
Can females be Karta?
Yes, after the 2005 amendments and they can also be coparceners (only daughters). Mother cannot be Karta.
Earlier, there was conflict of view on this question. The Nagpur High Court held that a widow could be a karta: see CIT v Seth Laxmi Narayana Raghunathdas; Pandurang Dahake v Pandurange Gorle. The Calcutta High Court expressed the view that where the male members are minors and their natural guardian is the mother, the mother can represent the HUF for the purpose of assessment and recovery of taxed under the Income-tax Act : see Sushila Devi Rampuria v Income-tax Officer and Smt. Champa Kumari Singhi v Additional Member, Board of Revenue, Wes he question now raised. The Madras and Orissa High Courts held that coparcenership is a necessary qualification for the managership of a joint Hindu family and as a widow is not admittedly a coparcener, she has no legal qualifications to become the manager of a joint Hindu family. The decision of the Orissa High Court in Budhi Jena v Dhobai Naik followed the decision of the Madras High Court in VMN Radha Ammal v Commissioner of Income-tax, wherein Satyanarayan Rao J. observed : “The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family. Further, the right is confined to the male members of the family as the female members were not treated as coparceners though they may be members of the joint family.”
CIT Nagpur v Seth Govindram Sugar Mills SC 1965 (FEMALE AS KARTA)
Direct Taxation – registration of firm – Sections 16 and 26A of Income Tax Act, 1922 – A partnership firm consisted of two partners representing two families. Under partnership deed legal heirs of partner were to become partners of the firm on death of partner. When one of them died, his widow and minor children were made partner and the firm applied for registration under Act for relevant assessment year. Income-Tax Officer denied registration on ground of non existence of firm. Whether firm continues to exist and entitled to registration and legal heir to be treated as member? Whether the widow of Nandlal could under Hindu law be a Karta of the Joint Hindu Family consisting of three widows and two minors?
Held-High Court agreed. CIT appealed by certification arguing that under scheme of Partnership Act, 1930 the firm dissolved on death of partner subject to contrary agreement and that the agreement was enforceable only if there are at least two members. CIT also argued that minors are not to be counted as member and a widow is not entitled to represent deceased family under scheme of family law and therefore under circumstances alleged the firm is not in existence. SC held, that firm to be treated as association of persons not entitled to registration for purpose of Act. It will be revolutionary of all accepted principles of Hindu law to suppose that the senior most female member of a joint Hindu family, even though she has adult sons who are entitled as coparceners to the absolute ownership of the property, could be the manager of the family. She would be guardian of her minor sons till the eldest of them attains majority but she would not be the manager of the joint family for she is not a coparcener.
Sujata Sharma v Manu Gupta 2016 Delhi HC (FEMLAE AS KARTA)
A Suit was filed for declaration that Plaintiff was a coparcener of HUF and legally entitled to be Karta. Whether Plaintiff, being first born amongst coparceners of HUF property, would by virtue of her birth, be entitled to be its Karta?
Held-Plaintiff was eldest surviving member of HUF and right of Plaintiff accrued to her upon demise of eldest Karta. Indeed there was correspondence in this regard between her and Land and Building Department. It was not denied that she was eldest of coparceners. Eldest coparcener was to be karta of HUF by law. Impediment which prevented a female member of a HUF from becoming its Karta was that she did not possess necessary qualification of coparcenership. This disqualification has been removed by amendment in Act in 2005, and there was no reason that Hindu women should be denied position of a Karta. Court finds no restriction in law preventing eldest female coparcener of an HUF, from being its Karta. Plaintiffs father’s right in HUF did not dissipate but was inherited by her. Suit decreed.
Karta’s position is Sui-generis. He is the representative owner. It is his duty to provide for maintenance of the entire JHF
Primus Inter Pares-He is the first amongst equals
Can the senior most male member who has been undisqualified be the Karta?
Narendra Kumar v CIT 1976 SC (JUNIOR MEMBER AS KARTA)
Proceeding for assessment of income tax for assessment year 1955-56 against HUF, income tax officer disallowed claim under Section 25A by asserting that in year 1965 Civil Court passed decree for partition. Income tax authorities took step for realisation of income-tax dues against appellant’s family and got attached various properties.
Held-Section 25A (3) provides that where an Order accepting partition had not been passed in respect of a Hindu family assessed as undivided such family shall be deemed for purpose of Act to continue to he HUF. Partition decree came much later and income tax authorities not bound by decree. Appeal dismissed.
Can there be more than one Karta?
Tribhuvan Das v Gujarat Revenue Tribunal 1991
The managership of the joint family property goes to a person by birth and is regulated by seniority and the karta or the manager occupies a position superior to that of the other members. A junior member cannot, therefore, deal with the joint family property as manager so long as the karta is available except where the karta relinquishes his right expressly or by necessary implication or in the absence of the manager in exceptional and extraordinary circumstances such as distress or calamity affecting the whole family and for supporting the family or in the absence of the father whose whereabouts were not known or who was away in remote place due to compelling circumstances and that his return within the reasonable time was unlikely or not anticipated. A younger member of the joint hindu family can deal with the joint family property as manager in the following circumstances:
If the senior member or the Karta is not available;
Where the Karta relinquishes his right expressly or by necessary implication;
In the absence of the manager in exceptional and extra ordinary circumstances such as distress or calamity affecting the whole family and for supporting the family;
In the absence of the father:
Whose whereabouts were not known or
Who was away in a remote place due to compelling circumstances and his return within a reasonable time was unlikely or not anticipated.
Nopany Investments v Santokh Singh (HUF) 2008 (MORE THAN ONE KARTA)
Facts-Santokh Singh (A) HUF person gave his promises on lease of 4 years to ‘B’. After 4 years, Jasraj Singh (C) claiming to be the karta of ‘A’ HUF issued notice of eviction to B followed by an eviction petition. In the mean while Delhi Rent Control Act 1992, C sent a notice to B for enhancement of rent by 10% and also termination of tenancy. B denied the right of C to do so. C sent another termination notice and withdraw the eviction petition. B did not concede to these demands. Then in 1993, ‘A’ calming himself to be the Karta of HUF filed a suit for eviction.
Issue-Whether Jasraj Singh could file the suit for eviction, in the capacity of the Karta of Dr. Santokh Singh HUF, when, admittedly, an elder member of the aforesaid HUF was alive ?
Held-In a Hindu family, the Karta or Manager occupies a unique position. It is not as if anybody could become Manager of a HJF. As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property. Also, in Tribhovandas’s case, it has been made clear that under the aforesaid circumstances, a junior member of the JHF can deal with the joint family property as manager or act as the Karta of the same. In the present case Jasraj Singh, in his cross examination before the trial court had explained that his eldest brother Dhuman Raj Singh (supposed to be the Karta of the HUF) has been living in United Kingdom for a long time. Therefore, the trial court had rightly presumed that Dhuman Raj Singh was not in a position to discharge his duties as Karta of the HUF, due to his absence from the country.
UOI v Shri Ram Bohra 1965-(MORE THAN ONE KARTA)
A suit had been brought by the two named plaintiffs as the kartas of the joint family. It is said that on the death of one of the kartas, the other karta continued to represent the joint family, the real plaintiff-respondent, and that therefore there could not be any abatement of the appeal. We do not consider the contention sound. The very idea of there being two kartas of a JHF does not appear, prima facie, consistent with the concept of a karta. Their describing themselves as kartas of the JHF owning the firm and their suing as such cannot make them kartas of the JHF if the Hindu Law does not contemplate the existence of two kartas. The existence of two kartas cannot lead to the smooth management of the property of the HJF and the other affairs of the family in view of the powers which the karta of a joint HJF under the Hindu Law, powers which are not restricted to only such powers which ordinarily the manager of property of certain persons who confer authority on him to manage the property possesses. The karta of the HJF is certainly the manager of the family property but undoubtedly possesses powers which the ordinary manager does not possess. The karta cannot therefore be just equated with the manager of property. Two persons may look after the affairs of a JHF on the basis of the members of the HJF clothing them with authority to represent the family. They would be two persons entitled to represent the family and their power to represent would depend on the terms of the authority conferred on them by the members of the HJF. Their authority to act for the family is not derived under any principle of Hindu law, but is based on the members of the JHF conferring certain authority on them. It cannot, therefore, be said that when two such representatives of a JHF sue and obtain a decree in their favour for the benefit of the JHF, and an appeal is filed against both of them as respondents representing the JHF, the other representative would continue to represent the JHF on the death of one of the representatives. He could not possibly do so when the authority given by the joint Hindu family be to the effect that both of them were to act jointly. In the absence of any knowledge about the terms of authority of the two representatives, it is not possible to urge successfully that on the date of one of the representatives, the other representative still continued to represent the JHF. On the death of one of the representatives, the karta of the family, in accordance with the principles of Hindu law, will automatically be the person entitled to represent the JHF till such time that the family again decides to confer the authority on specified members of the JHF to represent it. There is no material on the record to indicate the terms and scope of the authority conferred on the two plaintiffs by the JHF. We, therefore, consider the matter in appeal on the basis that the suit was brought by two persons as plaintiffs. They can at best be taken to represent the JHF which owned that firm Bansidhar Ganpat Rai. Any one of them cannot represent the joint family after the death of the other till his authority to represent the family is confirmed by the members of the family.
Remuneration for services-Karta can be paid for carrying on family business
Jugal Kishore Baldeo Sahai v CIT-
Duties and liabilities of Karta-
Maintenance of other members
Marriage of unmarried daughters and sons
Duty to render accounts to other coparceners on demand
Duty to spend reasonably
Cannot start new business without the consent of other coparceners
Can’t alienate the coparcenery property at whims and fancies
Duty to recover debts due to the JHF
Karta’s powers of alienation of JHF are under two heads-
Limited-Only under the following reasons-
Aapatkale (emergency)/Legal necessity but with these conditions-
Existence of a need or purpose
The family does not posses monetary or alternative resources
The course of action taken by the Karta is such as an ordinary prudent person
Kutumbvarte (for the sake of family)/Benefit of estate
Dharmatre (for religious purposes)/indispensable duties
Unlimited-He has unlimited power under following circumstances but test of reasonableness is there-
To mange the family affairs
For legal representation
Right to provide home and shelter
Right to compromise
Power to refer a dispute to arbitration
Power of acknowledgement
Power to contract debt
To enter into a contract
Hunoomanpersaud Panday v Mussumat Babooee Munraj Koonweree 1884 PC 393 (POWERS OF KARTA)
Power of Karta is limited and qualified, see para 6, 7, 8, 17, 18, 23, 25, 29.
It is well settled that in a Joint Hindu Mitakshara Family, a son acquires by birth an interest equal to that of the father in ancestral property. The father by reason of his paternal relation and his position as the head of the family is its Manager and he is entitled to alienate joint family property so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt. The power of the Manager of a HJF to alienate a joint Hindu family property is analogous to that of a Manager for an infant heir. The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is by the Hindu Law, a limited and qualified power, which can only be exercised rightly by the Manager in a case of need, or for the benefit of the estate. But where the charge is one that as prudent owner would make in order to benefit the estate, a bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, or the criteria to be regarded. If that danger arises from any misconduct to which the lender has been a party, he cannot take advantage of his own wrong to support a charge in his favour against the heir, grounded on a necessity which his own wrong has helped to cause. A lender, however, in such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. If he does inquire, and acts honestly, the real existence of an alleged and reasonably credited necessity is not a condition precedent to the validity of his charge, which renders him bound to see to the application of the money.
Bonafide alienee is not affected by previous mismanagement of estate but alienee is bound to make proper inquiries as to the existence of legal necessity, benefit of estate, etc. If he acts bonafide and makes proper inquires before purchasing the Karta’s properties, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent.
Alienee is not supposed to see the actual application of money.
ALIENATION OF JOINT HINDU FAMILY PROPERTY
As a general coparcenary property cannot be alienated. Transfer of property by sale, gift, pledge, mortgage, Hindu law for coparcenery property while TPA Act shall be applicable for transfer of separate property-
Hunooman Persaud Panday v Musasumat Babooee
4 persons have power to alienate the HJF property-
Sole surviving coparceners
But a child in a womb can challenge such alienation
An adopted child cannot challenge such alienation
S.6 of the HSA
- ALIENATION BY KARTA
Karta of a HJF has limited and qualified power to alienate the HJF property. He/She can alienate or mortgage the coparcenary property for his personal debts only when the debt is Antecedent debt which means-
It is prior in Fact-
It is prior in Time-
As a general Karta cannot alienate in general, however due to his unique position he has been given the right to alienate either by-
Consent of other coparceners
Without consent of other coparceners in the condition as mentioned in the table below.
The power of alienation has been given to Karta to save him from going to hell. Under Hindu Jurisprudence, a person goes to hell/born as slave in his creditors home if he dies without paying his debt. He can alienate the JHF in these three situations-
Karta can alienate the coparcenary property only when these conditions are met-
Existence of Need and necessity
Lawful and moral purpose
No other alternative exists
Acts as a reasonable and prudent person
Examples-court cases, serious illness, to feed the family, benefit of estate.
Dev Kishan v Ram Kishan AIR 2002 Raj. 370 (ANTECEDENT DEBT-MARRIAGE OF MINOR CHILDREN CASE)
Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. A borrowing made on the occasion of the grant of a mortgage is not an antecedent debt. The father of a JHF may sell or mortgage the joint family property including the son’s interest therein to discharge a debt contracted by him for his own personal benefits, and such alienation binds the sons provided.-
the debt was antecedent to the alienation, and
It was not incurred for an immoral purpose.
In the present case, the debt taken by the defendant No. 2 from the appellant/defendant No. 1 cannot be regarded as debt for payment of antecedent debt. The properties were not mortgaged or sold by the defendant No. 2 in favour of the appellant-defendant No. 1 for the purpose of discharging a debt contracted by him for his own personal benefit, but for the purposes of marrying his minor children and since the loan was taken by the defendant No. 2 from the appellant defendant No. 1 for the purposes of marriage etc, hence the present transactions cannot be regarded as transactions for payment of antecedent debt. Also the debt taken by the defendant No. 2 from the appellant defendant No. 1 for the purposes of marriages of his minor children, which were not lawful, was not a lawful debt. Furthermore, expenses incurred in the marriage of minor children, which has taken place in contravention of the Act of 1929, cannot constitute legal necessity.
Alienation under LEAGAL NECESSITY
Rani v Shantabala Devnath AIR 1971 SC 1028 (ALIENATION BY WIDOW CASE)
Facts, Sarala and Kunj Bihari were husband and wife under dayabhaga law. They had two minor sons and four married daughters. Kunj Bihari died in 1937 and in 1941 Sarala executed a deed, agreeing to sell a part of the land (90 acres) for Rs. 1,100 to Chapalabala. As per the deed-on account of financial needs and to meet certain debts and out of other legal necessity, I announced to sell 90 acre land at rent of Rs. 23 per annum free from defects and encumbrances leaving a portion of homestead land measuring 08 acre. Sarala died on April 12, 1950. In 1953 Tulsi and Gobinda sons of Sarala filed a suit, for a decree declaring that the sale deed dated March 13, 1942, executed by Sarala was not binding upon the plaintiffs, because it was executed without legal necessity.
Held, Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular instance must be considered. Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Kunja Behari husband of Sarala had died in 1937 after a protracted illness : there is no reliable evidence that he left any property except the residential house built on a part of the land which Sarala had inherited from her father. Sarala had two sons who were then minors and two daughters who were yet to be married. There were five members in the family to be fed and clothed, and the marriage expenses of two daughters had to be met. The case that Tulsi the eldest son obtained gainful employment shortly after his father’s death and before the sale deed was executed was rightly disbelieved by the Trial Court. The story that Gobinda had taken to hawking vegetables has also been rightly disbelieved by the Trial Court. Sarala had to meet several obligations : she had to pay the annual rent accruing due in respect of the land in dispute and also to pay municipal taxes : she had to feed and clothe herself and her children and to perform the marriage of her daughter Radha. She had no other property and she had no income. The recitals in the deed about the existence of pressure upon the estate are therefore amply corroborated by the circumstances. Therefore, In our view the case of the defendants 1 and 2 that the sale deed was supported by legal necessity of Sarala was amply made out and the Trial Court was right in holding that the sale deed was executed for legal necessity.
Dev Kishan v Ram Kishan AIR 2002 Raj. 370 (DEBT FOR MARRIAGE OF MINOR KIDS)
Facts-Two houses mentioned were joint properties of a JHF and the plaintiffs in 1969 came to know that the defendant 2 on 12/05/1967 sold those two houses to the appellant-defendant No.1 through registered sale deed for a consideration of Rs. 2000 though the value of these two houses was about Rs. 16,000/- and not only this, the defendant No.2 also got the signatures of the defendants No.3 to 5 on that sale deed by undue influence and the amount taken by the defendant No.2 after sale was not distributed by him to any other members of the family. The suit of the plaintiffs was contested by the appellant-defendant No.1 on grounds that the defendant No.2 was Karta of the family and he took loan from him for the legal necessity of the family or that loan should be termed as antecedent debt and for that, the plaintiffs and defendants No. 2 to 5 were bound to pay. The allegations of influence and immoral or illegal transactions were denied by the appellant-defendant No.1 and it was further averred that from the mortgage deed dated 06/12/1962, it was clear that the properties in question were mortgaged by the defendant No.2 in favour of the appellant-defendant No.1 for the purpose of marrying his daughter Vimala and later on, the same properties were further mortgaged by the defendant No.2 in favour of the appellant-defendant No. 1 through mortgage deed dated 19/05/1964 for the purpose of marrying Vimala and Pushpa (daughters were minors). Hence, all the transactions were for legal necessity and thus, the suit of the plaintiffs be dismissed.
Issue-Whether alienation of coparcenery property for daughter’s marriage falls under legal necessity?
Held, that the Manager of a JHF has power to alienate for value, JHF, so as to bind the interest of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate. An alienation by the Manager of a joint family made without legal necessity is not void, but voidable at the option of the other coparceners. The marriage expenses of male coparceners and of the daughters of coparceners with no doubt can be termed as legal necessity. In this case however, where the marriage of the minor was performed in violation of the provisions of the Act of 1929, the debt having been incurred for that purpose, which was not lawful, cannot be regarded as a lawful debt and alienation on that ground cannot be regarded as lawful alienation binding upon the minors. If the property was mortgaged or sold for the purpose of marrying minors, such transactions would be opposed to public policy, in view of the prohibition of child marriage under the Act of 1929.
Raj Kumar v Ambika Prasad AIR 1971 SC 776 (FORCEFUL EVICTION CASE)
Facts, Raja Bahadur gave 15 Bighas of his JHF estate to Ambika Prasad in 1936. Raja’s son filed in 1942 a suit for partition of the joint family estate. The suit was compromised. Claiming that the land settled upon Ambika Prasad were allotted to his share by that compromise, he forcefully dispossessed him. When matter reached court, It was urged that even on the findings recorded, no decree could be passed in favour of respondents because they had failed to establish that the lands were settled for legal necessity or for benefit to the estate of the joint family, and since they had failed to make out any such case, the suit must fail.
Held, In any event an alienation by the Manager of the JHF even without legal necessity is only voidable and not void. On the findings of the Trial Court, respondents were in possession of the land, since the year 1936. The appellant forcibly deprived respondents of possession of the land. In the circumstances respondents were entitled to be restored to possession of the land, unless the appellant in an action for partition of the joint family established his claim to the land in dispute. No such attempt was made by the appellant.
So Alienation by Karta without legal necessity, benefit of estate or discharge of indispensable duties is only voidable and not void. Burden of Proof rests upon the Alienee (to whom the property was given). See the case below-
Hunooman Persaud Panday v Musasumat Babooee
The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is by the Hindu Law, a limited and qualified power, which can only be exercised rightly by the Manager in a case of need, or for the benefit of the estate. But where the charge is one that as prudent owner would make in order to benefit the estate, a bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, or the criteria to be regarded. If that danger arises from any misconduct to which the lender has been a party, he cannot take advantage of his own wrong to support a charge in his favour against the heir, grounded on a necessity which his own wrong has helped to cause. A lender, however, in such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. If he does inquire, and acts honestly, the real existence of an alleged and reasonably credited necessity is not a condition precedent to the validity of his charge, which renders him bound to see to the application of the money.
Alienation for the BENEFIT OF ESTATE
Other coparceners can challenge alienation made by Karta in this regard.
Balmukand v Kamlawati AIR 1964 SC 1385
The appellant entered into a contract with the karta for the purchase of property belonging to a JHF. As the karta did not execute the sale deed, the appellant instituted a suit for specific performance. The suit was resisted on the ground that there was no legal necessity and that the contract for sale was not for the benefit of the family.
Held-It was held that for a transaction to be regarded as one which was of benefit to the family, it need not necessarily be only of a defensive character, but what transactions would be or the benefit of the family would depend on the facts and circumstances of each case. When the transaction was opposed by the adult members of the family, then no part of the joint family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family. In the present case, the appropriate pleas were not raised by the plaintiff nor, the necessary evidence led. The granting of specific performance was always in the discretion of the Court. In the facts and circumstances of the case, the Courts below were justified in refusing to order specific performance and the appeal was dismissed.
Hanooman Persaud Pandey v Babooee Munraj Koonweree (1856) 6 Moo. I.A.393
Transactions justifiable on the principle of benefit to the estate are not limited to those which are of a defensive nature (to save the property). According to the High Court if the transaction is such as a prudent owner of property would, in the light of circumstances which were within his knowledge at that time, have entered into, though the degree of prudence required from the manager would be a little greater than that expected of a sole owner of property.
Sital Prasad Singh v Ajablal Mander (Patna HC)
Facts-the questions which arose for consideration was the power of a manager to alienate part of the JHF property for the acquisition of new property.
Held-the karta of a JHF being merely a manager and not an absolute owner, the Hindu law has, like other systems of law, placed certain limitations upon his power to alienate property which is owned by the joint family. The Hindu law-givers, however, could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The only reasonable limitation which can be imposed on the karta is that he must act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct. In exceptional circumstances, however, the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirements of the family are convinced that the proposed purchase of the new property is for the benefit of the estate.
A T Vasudevan v Minors A.I.R. 1949 Mad. 260.
High Court held that the manager of JHF is competent to alienate joint family property if it is clearly beneficial to the estate even though there is no legal necessity justifying the transaction.
Sellappa v Suppan A.I.R. 1937 Mad. 496.
That was a case in which the question which arose for consideration was whether borrowing money on the mortgage of joint family property for the purchase of a house could be held to be binding on the family because the transaction was of benefit to the family. While holding that a transaction to be for the benefit of the family need not necessarily be of a defensive character (to save the property) the learned Judges, upon the evidence before them, held that this particular transaction was not established by evidence to be one for the benefit of the family.
Alienation for DISCHARGE OF INDISPENSABLE DUTIES
It includes religious ceremonies, funeral rites, etc. Karta can alienate for these purposes without the consent of other coparceners though law confers rights on other coparceners to chilling this alienation but that right is not exclusive of the right of Karta to alienate. Karta’s right to alienate cannot be challenged by permanent injunction at the behest of the coparceners. One can challenge the alienation only after the alienation as legal necessity require immediate action.
Sunil Kumar v Ram Prakash 1988 2 SCC 77 (PERMANENT INJUNCTION CASE)
Facts, The defendant 1, Ram Prakash as Karta of HJF executed an agreement to sell the suit property for a consideration of Rs. 21,400/- and he received a sum of Rs. 5,000 as earnest money from the defendant 2. Later when he refused to execute the sale deed, the defendant 2 instituted a suit for specific performance of the agreement to sell and in the alternative for a decree for recovery of Rs. 10,000. The sons of the defendant 1 filed for a permanent injunction stating inter alia that the said property was JHF coparcenary property; and that there was no legal necessity for sale of the property nor it was an act of a good management to sell the same to the defendant No. 2 without the consent of the plaintiffs and without any legal necessity. It was, therefore prayed that a decree for permanent injunction be passed in favour of the plaintiffs and against the defendant No.1 restraining him from selling or alienating the property to the defendant No. 2 or to any other person and also restraining defendant No. 2 from proceeding with the suit for specific performance pending in the civil court. Defendant No. 2, contended that the defendant No. 1 disclosed that the suit property was owned by him and that he was in need of money for meeting the expenses of the family including the education expenses of the children and also for the marriage of his daughters. It has also been pleaded that the house in question fetched a very low income from rent and as such the defendant No. 1 who has been residing in Delhi, did not think it profitable to keep the house.
Issue, Whether coparcener can file suit to restrain manager of Joint Hindu Family from alienating family property? Can permanent Injunction be granted in this regard?
Held, coparcener entitled to challenge alienation made by manager without any legal necessity. But a coparcener is not entitled to interfere in the manager’s right to manage family property. The manager is entitled to take any decision regarding alienation of family property for benefit of family. Coparcener not entitled to interfere in management of family property including right of manager to alienate such property. Court further opined that injunction can be granted only for grounds enumerated in provisions of Specific Relief Act. Injunction cannot be granted when efficacious remedy is available to plaintiff. At the outset it is to be noticed that in a suit for permanent injunction under S.38 of the Specific Relief Act by a coparcener against the father or Manager of the JHF property, an injunction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property. If such a suit for injunction is held maintainable the effect will be that whenever the father as Karta of the Joint Hindu coparcenary property will propose to sell such property owing to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided.
It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in they alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. For the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property.
Jujhar Singh v Gian Talok Singh 1986
If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of. Legally speaking unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognized in law to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for preventing waste by a manager or karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning. We are, therefore, of the considered view that a coparcener has no right to maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to challenge the same and to recover the property after it has come into being.
2 modes of alienation–
Voluntary-When person willingly transfers the property and can be done in 3 ways-
With consideration (mortgage, lease, etc)
Without consideration (gift, exchange etc)
Involuntary-in which court alienates the property
Since no coparcener is absolute owner as there exists community of interest and unity of possession, hence cannot be alienated in general circumstances. Moreover it also has a possibility of adding 3rd parties to the JHF. There is no separate demarcation of coparcenery property till partition.
By Sole surviving coparcener
But a child in a womb can challenge it
An adopted child cannot challenge it
S.6 of the HSA
MODULE III-LIABILITY OF JOINT FAMILY PROPERTY FOR FATHER’S DEBT
DEBTS OF FATHER
Hindu law is based on duty based approach. Son, son’s son, son’s son’s son has duty to pay debts of the deceased after hence there is this right sell, mortgage the coparcenery property to pay of the debts. This power has been give to him to save him from hell. Under Hindu Jurisprudence, a person goes to hell/born as slave in his creditors home if he dies without paying his debt. But there is a Limited power to alienate. One can alienate or mortgage the coparcenary property for his personal debts only when the debt is Antecedent debt which means-
Prior in fact
Prior in Time
Not for illegal/Immoral purposes
Dev Kishan v Ram Kishan AIR 2002 Raj. 370 (Marriage of minor children)
Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. A borrowing made on the occasion of the grant of a mortgage is not an antecedent debt. The father of a joint Hindu family may sell or mortgage the joint family property including the son’s interest therein to discharge a debt contracted by him for his own personal benefit, and such alienation binds the sons provided.-
The debt was antecedent to the alienation, which means-
Prior in fact
Prior in Time and
It was not incurred for an immoral purpose.
In the present case, the debt taken by the defendant No. 2 from the appellant/defendant No. 1 cannot be regarded as debt for payment of antecedent debt. The properties were not mortgaged or sold by the defendant No. 2 in favour of the appellant-defendant No. 1 for the purpose of discharging a debt contracted by him for his own personal benefit, but for the purposes of marrying his minor children and since the loan was taken by the defendant No. 2 from the appellant defendant No. 1 for the purposes of marriage etc, hence the present transactions cannot be regarded as transactions for payment of antecedent debt. Also the debt taken by the defendant No. 2 from the appellant defendant No. 1 for the purposes of marriages of his minor children, which were not lawful, was not a lawful debt. Furthermore, expenses incurred in the marriage of minor children, which has taken place in contravention of the Act of 1929, cannot constitute legal necessity.
Karta has a special right to gift a reasonable portion of the coparcenery property to daughters. Father has all the rights of a Karta.
Can adopted child challenge alienation?
Any class 1 heir should not alienate her share at the time when he is acting as a sole surviving coparcener. S.6 HSA if there is a child in a womb
Child in a womb if he is a coparcener can challenge such alienations
Dependents can also challenge such alienation
If adoption is made post alienation then cannot challenge. See the case below-
Sitabai v Ramchandra (ADOPTED CHILD AND RELATION BACK)
Facts-There were 2 brothers Dulichand and Bhagirath. Bhagirath Died in 1930 and his widow Sitabai developed relationship with Dulichand and gave birth to an illegitimate child Ramchandra (Defendant) in 1935. Sitabai adopted another child Sarat Chandra (Plaintiff) in 1958. Dulichand died in 1958. Ramchandra took possession of all coparcenary properties. The High Court thought that on the date of adoption Dulichand was the sole coparcener and there was nobody else to take a share of his property and plaintiff no. 2 had no concern with the coparcenary property in the hands of Dulichand.
Issue-Whether, Plaintiff no. 2, when he was adopted by Bhagirath’s widow became coparcener of Dulichand in Hindu joint family properties?
Held, Section 14(4) HAMA 1956, provided that where widow adopted child and subsequently married, husband became step-father of adopted child-Hence, Plaintiff no. 2, when he was adopted by Bhagirath’s widow, became adopted son of both widow and her deceased husband Bhagirath. Therefore, after death of Dulichand, Plaintiff no. 2 (Sarat Chand) became sole surviving coparcener and was entitled to possession of all joint family properties. Property, which is joint family property of HUF, does not cease because of temporary reduction of coparcenaries unit to single individual.
Gift made to DAUGHTERS.
Alienations were binding except the one made to the strangers. He cannot alienate to strangers and other females except his daughters. It is moral duty of a father to gift some of his properties to his daughter. See the cases below-
Guramma v Malappa AIR 1964 SC 510 (GIFT TO DAUGHTERS-Pre-2005 amendment case)
Facts, Chanbasappa died possessed of a large extent of immovable property on January 8, 1944. He left behind him three wives, Nagamma, Guramma and Venkamma and two widowed daughters, Sivalingamma and Neelamma, children of his pre-deceased wife. A few days before his death, Chanbasappa executed gift deeds in favour of his wives, widowed daughter, a son of an illegitimate son, and a relative. The plaintiff, one of the three surviving windows of Chanbasappa, filed the aforesaid suit for recovery of her share after setting aside the alienations made by her husband on January 4 and 5, 1944. The alienees sought to sustain the validity of the alienations in their favour and contended that the said gift was for pious purposes and, therefore, valid in law.
Issues, Whether the alienations in favour of daughters and relatives are binding on the members of the family? Can it be said that a gift of this nature to a relative out of love and affection is a gift for “pious purposes” within the meaning of that expression in Hindu law?
Held-A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenary has an absolute power to alienate the family property as at the time of alienation there is no other member who has joint interest in the family. The gift was made in token of love for the services rendered by the donee to the donor during the latter’s lifetime. The gift was made, as it was narrated in the document, out of love and affection for the donee. Even a single individual may conclude a donation, mortgage, or sale of immovable property, during a season of distress, for the sake of the family and especially for pious purposes. The expression “pious purposes” is wide enough, under certain circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere been precisely drawn. STRANGERS-But what we are concerned with in this case is the power of a manager to make a gift to an outside of a joint family property. The scope of the limitations on that power has been fairly well settled by the decisions interpreting the relevant texts of Hindu law. DAUGHTERS-The decisions of Hindu law sanctioned gifts to strangers by a manager of a HJF of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. It must be remembered that the manager has no absolute power of disposal over HJF property. The Hindu law permits him to do so only within strict limits. Hindu law texts not only sanction the giving of property to daughters at the time of partition or at the time of their marriage, as the case may be, but also condemn the dereliction of the said duty in unequivocal terms. It is true that these Hindu law texts have become obsolete. The daughter has lost her right to a share in the family property at the time of its partition. But though the right has been lost, it has been crystallized into a moral obligation on the part of the father to provide for the daughter either by way of marriage provisions or subsequently. (But after 2005 amendment, she again has got this right) The Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a moral obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by Court, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity or the reasonableness of a gift does not depend upon the plurality of document but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift an invalid one.
Kudutamma v Narasimhacharyalu (1907)
It is was held that a Hindu father was entitled to make gifts by way of marriage portions to his daughters out of the family property to a reasonable extent. The father has undoubtedly the power under the Hindu law of making, within reasonable limits, gifts of movable property to a daughter. The question whether a particular gift is reasonable or not will have to be judged according to the state of the family at the time of the gift, the extent of the family immovable property, the indebtedness of the family, and the paramount charges which the family was under an obligation to provide for, and after having regard to these circumstances if the gift can be held to be reasonable, such a gift will be binding on the JHF members irrespective of the consent of the members of the JHF
Kuppayewe v Raja Gounder 2003
Issue-Validity of Gift of ancestral immovable property to married daughters by father
Held, Father can make gift of ancestral immovable property within reasonable limits to his daughter at time of or even long after her marriage. Out of 3.16 acres of land owned by family, father making gift of 12 cents along with house standing on gifted land to his married daughters (appellants) is valid. Simply because gifted property is house it cannot be held that gift was not within reasonable limits. A father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her marriage. The total property held by the family was 3.16 acres. 12 cents would be approximately 1/26 share of the total holding. The share of each daughter would come to 1/52nd or 1/26 share of the total holding of the family which cannot be held to be either unreasonable or excessive under any circumstances. Question as to whether a particular gift is within reasonable limits or not has to be judged according to the status of the family at the time of making a gift, the extent of the immovable property owned by the family and the extent of property gifted. No hard and fast rule prescribing quantitative limits of such a gift can be laid down. The answer to such a question would vary from family to family. This apart, the question of reasonableness or otherwise of the gift made has to be assessed vis-a-vis the total value of the property held by the family. Simply because the gifted property is a house, it cannot be held that the gift made was not within the reasonable limits. As stated earlier, it would depend upon a number of factors such as the status of the family, the total value of the property held by the family and the value of the gifted property and so on. It is basically a question of fact. However, on facts, if it is found that the gift was not within reasonable limits, such a gift would not be upheld. It was for the respondent to plead and prove that the gift made by the father was excessive or unreasonable, keeping in view, the total holding of the family. In the absence of any pleadings or proof on these points, it cannot be held that the gift made in this case was not within the reasonable limits of the property held by the family. The respondent has failed to plead and prove that the gift was made to unreasonable extent, keeping in view, the total holding of the family. The first appellate court and the High Court, thus, erred in non-suiting the appellants on this account.
So there are following restrictions-
Love and affection and to daughter only
Post 2005, daughter has a right in itself
Two stages of Partition-
De Jure Partition/Division of Rights
De Facto Partition/Division of properties; See the case below-
COMMUNICATION OF INTENT OF PARTITION
Raghavamma v Chenchamma 1964 (RELATION BACK and Communication of intent for partition is necessary)
Facts-‘Veeranna’ had two sons Chimpirayya and Pitchayya respectively and before dying he allegedly partitioned his property equally between his sons. Chimpirayya had one son ‘Venkayya’. ‘Pitchayya’ was married to ‘Raghavamma’ but was issueless and thus allegedly adopted ‘Venkayya’ (his brother Chimpiryaa’s only son) in 1905 at a very young age of 25. ‘Venkayya’ married ‘Chenchamma’ and had a son ‘Subbarao’. Chimpirayya before dying allegedly executed a will and gave all his properties to his grandson Subbarao. Since Subbarao was minor he directed his brother’s widow Raghavamma to manage all the properties till he becomes major and if he dies then his share will go to her. He did not gave anything to his daughter-in-law but Raghavamma allowed Chenchamma to manage the properties and slowly she came into possession of the entire properties. Subbarao died in 1949. So Raghavamma filed a suit for getting possession of the properties. Chenchamma claimed that there was no adoption and partition and that Chimpirayya died undivided from his grandson Subbarao and therefore after his death Subbarao became absolute owner of all his properties by survivorship and now after Subbarao’s death, being her mother, she had right over his properties.
Issues, Whether a will executed by a member of a HJF would of itself be operative to effect a severance between him and the other members of the family by reason of the disposition contained in the will? (2) Whether a member of a HJF becomes separated from the other members of the family by a mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family?
Held-A person who seeks to displace natural succession to property by alleging an adoption must discharge burden that lies upon him by proof of factum of adoption and its validity. Pitchayya was about 25 years old and, therefore, ordinarily he had every prospect of having children of his own; it is, therefore highly improbable, unless there are special circumstances, that an only son of an elder brother was taken in adoption by his younger brother; though there is no legal prohibition, it is well known that ordinarily an only son is neither given nor taken in adoption. P.W.I. admits that the concerned family is a prominent and affluent family in the village. But curiously no document of adoption was executed, no invitations were sent to relatives and village officers, and no expenditure incurred in connection with the adoption was entered in the accounts. Unless there were compelling and extraordinary circumstances which necessitated dispensing with all formalities, it is unthinkable that in a village there could have been an adoption made in such an affluent family without pomp and show. It is settled law that a member of a JHF can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty. Omitting the will, the earlier documents filed in the case do not disclose any such clear intention. We have already held that there was no partition between Pitchayya and Chimpirayya. Whether a member of a JHF becomes separated from the other members of the family by a mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family? In this context a reference to Hindu law texts would be appropriate, for they are the sources from which the Courts evolved the doctrine by a pragmatic approach to the problems that arose from time to time. The evolution of the doctrine can be studied in two parts, namely, (1) the declaration of the intention, and (2) the communication of it to others affected thereby. So far, therefore, the law is well settled, namely, that a severance in estate is a matter of individual discretion and that to bring about that state there should be an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by authoritative decisions of Courts. But the difficult question is whether the knowledge of such a manifested intention on the part of the other affected members of the family is necessary condition for constituting a division in status. One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. “Others” must necessarily be those affected by the said declaration. Therefore a member of a HJF seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may very with circumstances. But there should be some manifestation, indication, intimation or expression of that intention to become divided, so as to serve as authentic evidence in case of doubt or dispute. What from that manifestation, expression, or intimation of intention should take would depend upon the circumstances of each case, there being no fixed rule or right formula. The despatch to or receipt by the other members of the family of a communication or notice announcing the intention to divide on the part of one member of the family is not essential nor its absence fatal to a severance in status. In our view, it is implicit in the expression “declaration” that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.
DOCTRINE OF RELATION BACK-There are two ingredients of a declaration of a member’s intention to separate. One is the expression of the intention and the other is bringing that expression to the knowledge of the person or persons affected. When once that knowledge is brought home, it relates back to the date when the intention is formed and expressed. But between the two dates, he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family : with the result, his interest survives to the other members. A manager of a HJF may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and common sense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable than to suggest that the doctrine should not affect vested rights? By imposing such a limitation we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate, the rights accrued to other in the joint family property between the said manifestation and the knowledge of it by the other members would by saved. (VERY IMPORTANT)
Can ask for partition
Can challenge alienation
RIGHTS OF STRANGERS ACQUIRING INTERESTS OF A COPARCENER
Can sue for partition but
Can’t ask joint possession; See the cases below-
Mmidi Venkata Rao v Mandela 1965 (Auction and subsequent birth of a son)
Facts, A Decree passed against ‘A’ and his four sons who were members of JHF. Share of four sons which amounted to 4/5 was auctioned in execution of decree and purchased by ‘B’. Fifth son born to ‘A’ on date of auction sale. A’s share was not put up for auction as application for his adjudication as insolvent was pending. ‘B’ got 4/6 shares excluding share of father and newly born son. Suit filed by ‘B’ claiming 4/5 share ignoring share of newly born son. Trial Court held that plaintiff not entitled to 4/5 share but only to 4/6 share because before the decree 5th son had been born who had not been made party to suit so his share did not pass under auction sale. Defendants appealed to High Court. Appeal allowed on ground that suit barred by limitation under Article 144 of Limitation Act.
Held, on appeal Supreme Court observed that 6th defendant was born before Court sale. Execution case taken out only against 4 sons who were party to the suit. Hence, Plaintiff not entitled to recover possession of share of the new born, in execution proceedings. It is true that an alienee of an undivided interest of a Hindu coparcener is not entitled to joint possession with the other coparcener and he is also not entitled to separate possession of any part of the family property. But the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition. What the alienee acquires by a purchaser is not any interest in specific family property but only an enquiry to enforce his right in a suit of partition and have the property alienated set apart for the alienor’s share, if possible. In the present cease the alienee has instituted a suit for general partition with the prayer that he may be put in possession of that part of the family property which may be allotted to his alienor. It is not right to consider such a suit as a suit for more partition. The main relief sought by the plaintiff is the relief for possession of that part of the property which may be allotted to the alienor’s share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor’s share. What the plaintiff seeks is actual delivery of possession. In my opinion, such a suit falls within the purview of Article 144 of the Limitation Act and the law on this point is correctly stated in that v Dakshinamurthy. What is the legal position of persons who purchase shares of some of the coparceners of the Hindu Joint Family? It is well settled that the purchaser does not acquire any interest. In the property sold and he cannot claim to be put in possession of any definite piece of family property. The purchaser acquires only an equity to stand in the alienor’s shoes and work out his rights by means of a partition. The equity depends upon the alienation being one for value and not upon any contractual nexus. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession with them. The alienee is suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in the family property. Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. (Mayne’s Hindu Law, eleventh edition, page 489)
Yelumalai Chetti v. Srinivasa Chetti
It was held that the purchaser at a court sale of the share of an undivided member of a HJF acquires only a right to sue for partition and for delivery of what may be allotted as the share of such undivided member and the Court cannot, on a mere application for execution by such purchaser, enforce his right by an order for partition. It was further held that no such order can be made under S.318 of the Code of Civil Procedure and the dismissal by the Court of an application by the purchaser under S.318 cannot be a bar to a suit by the purchaser for partition. Even assuming that the grant of symbolic delivery of possession ought not to have been made and that the executing court acted illegally in making such an order, it cannot be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye or law.
Sant Lal Jain v. Avtar Singh 1985
Facts, The original owner had leased the property which was held by the licensee through the lessee; that a sale had been effected in favour of the licensee but the lease in favour of the original lessor was continued; that his interest was different from that of the original owner which was transferred to the licensee and thus there would be no merger of interests.
Held, that during the term of tenancy or in the suit for recovery of possession thereof after termination of such tenancy, the tenant cannot set up title in himself and he has to surrender possession on tenancy being terminated and he has to seek his remedy separately in case he acquires title subsequent to the decree through some other person. It is also made clear therein that he need not do so if he had acquired title to the property from the lessor or someone claiming through him in which case there would be a merger of two rights.
Jagdish Dutt v Dharam Pal 1999
Facts, Respondent No. 2 claimed that he had purchased the undivided interest of the coparceners in the HUF of the decree holder and, therefore, actual physical possession cannot be given but only symbolic possession can be given to the appellant-decree holder. The Executing Court, after inquiry, upheld this contention. That order was challenged in the High Court. The High Court set aside the order made by the executing court and remitted the matter to it to investigate the quantum of share purchased by respondent No. 2. If a good or larger share as opposed to an insignificant share had been purchased by respondent No. 2, khas possession cannot be given to the appellant and if only an insignificant portion had been purchased by him, the khas possession shall be given to the appellant. It is against this order the present special leave petitions are preferred.
Held, When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree holder can seek for execution of a decree in the whole and not in part of the property, A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the share of the decree holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing court cannot find out the shares of the decree holders and dispute between joint decree holders is foreign to the provisions of Section 47, CPC. Order XXI, Rule 15, CPC enables a joint decree holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto. Various decisions cited by either side to which we have referred to do not detract us from the principle stated by us as aforesaid. Therefore, a detailed reference to them is not required.
Kailash Pati Devi v Bhubneshwari Devi 1984
Facts, Question arose that purchaser of JHF property from a member of a JHF may have the right to file a general suit for partition against the members of the joint family and may be the proper remedy for him to adopt to effectuate his purchase.
Held, The purchaser of joint family property from a member of a HJF may have the right to file a general suit for partition against the members of the joint family and, indeed, that may be the proper remedy for him to adopt to effectuate his purchase. But, that question is of academic importance here since it appears that the property involved in this suit, which was purchased by the appellant from one of the members of the HJF, is the only joint family property available for being partitioned. There are, therefore, no equities to be adjusted as between the parties.
DOCTRINE OF PIOUS OBLIGATION
In Mitakshara law, unpaid Debt to be paid by son for the salvation of father’s soul provided that they were not taken for illegal or moral purposes. 3 other liabilities-
Religious purpose-to rescue father from going to hell
Moral obligation as he has inherited his father’s property
Son being the legal heir, creditor would look to him to repay debt as he is an agent of the father
In old law, this liability is only on son, great grandson and great grandson. The liability used to be personal in nature as a son has right in the coparcenery property since birth.
For son it was the principle amount+interest
For grandson, only the principle Amount
For great grandson, only to the extent of his share in the JHF property.
Masti v Damodar 1926 53 IA 204
Peda v Srinivasa 1918 41 Mad 136 PB
Jumbo Rao v Amappa 1914 Bom 177 QB
Under the current law-
There is no personal liability on sons to pay the fathers debt. However their liability is to the extent to which they have a share in the JHF property. Doctrine of pious obligation has been abolished under S.6(4) of the HSA.
Raja Brij Narayan v Mangla Prasad 1924
Facts, In 1908, Sita Ram, being manager of a JHF property mortgaged it for Rs. 11,000 in favour of Raja Brij Narayan Rai and Jagdish Narain Rai. The mortgage was secured on ancestral and joint property of which Sita Ram was at that time manager, the other members of the joint family being his two sons, minors. In 1912 the mortgagees brought a suit on the mortgage and obtained a decree ex-parte. In 1913 the present suit was raised by the mother on behalf of her two minor sons (the elder has since become major) to have it declared that the mortgage was not binding on them and that the decree granted was so far as they were concerned null and void.
Held, Destructive as it may be of the principle of independent coparcenery rights in the sons, the decisions have for some time established the principle, that the sons cannot, set up their rights against their father’s alienation for an antecedent debt, or against his creditor’s remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate, their Lordships think that there is now no conflict of authority. The law is now well established that under the Hindu law the pious obligation of a son to pay his father’s debts exists whether the father is alive or dead.
The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity;
If he is the father and the other members are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.
If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.
Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of he transaction impeached.
There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.
Applying these propositions to the present case, their Lordships consider that the present mortgage was raised in order to pay an antecedent debt, namely, the two older mortgages, and consequently binds the estate.
Anthony Swami v MR Chinnaswami 1970
Facts, ‘A’ had two sons ‘B’ and ‘C’. ‘B’ had a son ‘D’. B became the Karta of JHF after death of ‘A’. C and D were minors. B started living an immoral life and incurred debts for immoral purposes and then mortgaged most of the HJF properties to ‘E’. ‘C’ filed for partition claiming his 1/2 share in the JHF property. When B was unable to pay the debt. ‘E’ sold the properties to ‘F’ in an auction. Now ‘D’ son of ‘B’ also claimed his own 1/4 share contenting to have a birth right in the properties. It was also said that debt was not incurred for legal necessity but was incurred for immoral purposes and so the mortgage debts were not binding on the him. He was, therefore, entitled to one-fourth share in the properties and to partition of his one-fourth share. The buyer, contested the suit. He claimed to be a bona fide purchaser for value of the entire interest in the property. It was said that he had no notice of any vitiating circumstance affecting the title at public auction conducted by E. After the sale, he became the absolute owner of the properties and was in full possession and enjoyment of the same. It was also contended that the D could not claim any interest in the properties during the life-time of his father. There was no customary right of birth in the community to which the D belonged and even if such right existed the he was bound to pay off his father’s debts on the doctrine of pious obligation before claiming any partition in respect of the properties. It was also said that the debt undertaken by B was not tainted by illegality or immorality.
Issue, Whether the liability of the son was excluded because at its inception the debt was tainted by immorality?
Held, Under the Smiriti texts there was only a religious and not a legal obligation imposed upon the sons to pay the debt of their father. Also the obligation of the son to pay the debt arose not in the father’s lifetime but after his death. The text of Narada says that father’s desire male offspring for their own sake reflecting “this son will redeem me from every debt due to superior and inferior beings”. Therefore, a son begotten by him should relinquish his own property and assiduously redeem his father from debt lest he fall into a region of torment. If a devout man or one who maintained a sacrificial fire die a debtor, all the merit of his devout austerities or of his perpetual fire shall belong to his creditors. But with passage of time, Doctrine of pious obligation is not merely a religious doctrine but has passed into the realm of law. The doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property and both these conceptions are correlated. The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu law but is a salutary counter-balance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property. The High Court held that the allegation of the appellant that the debt was tainted by immorality was not established. We see no reason to differ from the view taken by the High Court on this point.
Sidheshwar Mukherjee v Bhubneshwar Singh 1953 (Whether still applicable?)
Facts, One Bhubneshwar Prasad borrowed a sum of money from one Panchanan Banerjee. Panchanan instituted a suit against Bhubneshwar for recovery of this loan and having obtained a decree, put the decree in execution. Bhubneshwar’s 4 annas share in his family property was put up to sale and purchased by Panchanan himself in 1932 and got delivery of possession on January 25, 1935. Panchanan sold the interest purchased by him at the execution sale to the Sidheshwar Mukherjee by a conveyance dated the 1 February 1935, and the plaintiff instituted the present suit claiming specific allotment of a 4 annas share in the suit properties. Bhubneshwar and his three sons are the main defendants in the suit and it is not disputed that at the present moment they own the remaining 12 annas share in the suit properties. The plaintiff averred that he was entitled to a 4 annas share in the schedule lands. The suit was contested primarily by defendant No. 1 and the substantial contention put forward by him was that as the money suit was instituted by Panchanan against him alone and his sons were not made parties either to the suit or the execution proceeding, his own undivided interest in the joint family properties and not that of his sons passed by the sale. Consequently, the execution creditor could not by his purchase acquire more than 1 Anna 4 pies share in the suit properties and to this share alone the plaintiff could legitimately lay a claim.
Issue, Whether the sons of defendant No.1 were legally liable to pay the decrement debt due by their father and could this liability be enforced by attachment and sale of their undivided coparcenary interest in the joint family property along with that of their father?
Held, the question whether the sons of defendant No. 1 were liable in law to discharge the decretal debt due by their father could be answered only with reference to the doctrine of Mitakshara law which imposes a duty upon the descendants of a person to pay the debts of their ancestor provided they are not tainted with immorality. This doctrine, as is well known, has its origin in the conception of Smriti writers who regard non-payment of debts as a positive sin, the evil consequences of which follow the undischarged debtor even in the after-would. It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their father’s debts. The doctrine, as formulated in the original texts, has indeed been modified in some respect by judicial decisions. Under the law, as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets; it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts. We do not find any warrant for the view that to saddle the sons with this pious obligation to pay the debts of their father, it is necessary that the father should be the manager or karta of the joint family, or that the family must be composed of the father and his sons only and no other male member. No such limitation is deducible either from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions. Whether a debt is incurred for necessity or benefit of the family, the manager, whether he be the father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts, irrespective of the fact as to who actually contracted the debts. The authority of the manager is based upon the principle of agency or implied authority which has been formulated in a text quoted by Mitakshara. “Even a single individual,” thus runs the text, “may make a donation, mortgage or sale of immovable property during a season of distress, for the sake of the family and especially for religious purposes” (Mitakshara 1. L. 28) Such family debt, however, stands on quite a different footing from a personal debt contracted by the father which does not benefit the family. The liability of his sons to pay such debt does not rest on the principle indicated above, according to which the junior members of a family are made to pay the family debts. It is a special liability created on purely religious grounds and can be enforced only against the sons of the father and no other co-partner. The liability, therefore, has its basis entirely on the relationship between the father and the son. There is no authority to show that it is in any way dependent upon the constitution of the family either at the time when the debts was contracted or when the obligation is sought to be enforced. The father’s power of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu law imposed upon the sons; or it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligation. If the creditor’s rights are deemed to be based exclusively upon the father’s power of disposition over the son’s interest, such rights must necessarily come to an end as soon as the father dies, or there is a partition between him and his sons. It is settled law that even after partition the sons could be made liable for the pre-partition debts of the father if there was no proper arrangement for the payment of such debt at the time when the partition was effected, although the father could have no longer any right of alienation in regard to the separated shares of the sons. It is true that under the Mitakshara law, as it is administered in the State of Bihar, no coparcener can alienate, even for valuable consideration, his undivided interest in the joint property without the consent of his coparceners; but although a coparcener is incompetent to alienate voluntarily his undivided coparcenary interest, it is open to the creditor, who has obtained a decree against him personally, to attach and put up to sale his undivided interest, and after purchase to have the interest separated by a suit for partition. A personal decree obtained against the sons could certainly be executed against them by attachment and sale of their undivided interest. The position, in our opinion, cannot be different if they are under a legal liability to discharge the decretal debt due by their father; and this liability must be capable of being enforced in the same manner as a personal decree against them. Whether this could be done only by making the sons parties to the sale or execution proceeding, is another matter to which we would advert presently; but so far as the legal liability of the sons is concerned, as the debts incurred by the father have not been shown to be immoral or irreligious, it must be held that under the rule of Hindu law mentioned above, there is a legal liability on the part of the sons to discharge these debts and the creditor can enforce this liability by attachment and sale of the sons’ interest in the same manner as if it was a personal debt due by them. The fact that the father was not the karta or manager of the joint family or that the family did consist of other coparceners besides the father and sons, does not affect the liability of the sons in any way.
Faqir Chand v Harnam Kaur 1966 (MORTGAGE FOR LOAN)
Facts, Murari Lal is the manager of a joint family consisting of himself and his son, Faqir Chand. On June 7, 1949, he borrowed Rs. 75,000 from Sardarni Harnam Kaur, and by a registered deed of the same date, he mortgaged an immovable property for securing repayments of the loan. The mortgaged property belongs to the joint family. By a covenant in the mortgage deed, Murari Lal bound himself to repay the loan. Part of the loan was borrowed by Murari Lal for discharging an antecedent mortgage debt. On July 4, 1952, Harnam Kaur instituted Suit No. 219 of 1952 against Murari Lal claiming the usual preliminary decree for sale of the property. On March 13, 1953, Faqir Chand instituted the present suit against Harnam Kaur and also Murari Lal claiming a declaration that the mortgage deed was for immoral and illegal purposes and without legal necessity and was not binding on him and for consequential reliefs.
Issue, whether a son could seek stay against execution of mortgage decree passed against his father?
Held, It was held that the father had mortgaged the family property for payment of his debts and the same was not for legal necessity or for payment of his antecedent debts – Thus the son could not restrain the execution of decree passed against his father without establishing that his father was not personally liable for the debt or the debt was incurred for an illegal or immoral purpose. In the case of a Hindu joint family consisting of a father and sons when a mortgage has been created by the father of joint property, and a decree has been obtained on the basis of the mortgage, the only ground on which the sons can challenge the mortgage and the decree is that the debt was incurred for illegal or immoral purposes and that for this purpose it is immaterial whether the mortgaged property has actually been brought to sale in execution of the decree or not. The first and the main question arising in this appeal may be formulated thus; in a case where a father mortgages a property of a joint family consisting of himself and his sons for payment of his debt, but the mortgage is neither for legal necessity nor for payment of his antecedent debt and the mortgagee has obtained a decree against the father for sale of the property but the sale has not yet taken place, have the sons any right to restrain the execution of the decree or the sale of the property in execution proceedings without showing either that there is no debt which the father is personally liable to repay or that the debt has been incurred for an illegal or immoral purpose ? We think that this question should be answered in the negative. Brij Narain v Mangla Prasad, the Privy Council laid down following propositions in this regard-
The managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but
If he is the father and the other members are the sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.
If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.
The second proposition laid down in Brij Narain’s case is founded upon the pious obligation of a Hindu son limited to his interest in the joint family property to pay the debt contracted by the father for his own benefit and not for any immoral or illegal purpose. By incurring the debt, the father enables the creditor to sell the property in execution of a decree against him for payment of the debt. The son is under a pious obligation to pay all debts of the father, whether secured or unsecured. We think that the second proposition applies not only to an unsecured debt but also to a mortgage debt which the father is personally liable to pay. The father could voluntarily sell the property for payment of his debt. If there is no voluntary sale by the father, the creditor can ask the Court to do compulsorily what the father could have done voluntarily. The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such a sale by the intervention of a suit. See Ramasamayyan v Virasami Ayyar ILR (1898) Mad. 222. Even where the mortgage is not for legal necessity or for payment of antecedent debt, the creditor can, in execution of a mortgage decree for the realisation of a debt which the father is personally liable to repay, sell the estate without obtaining a personal decree against him. After the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illegality. It is well settled that the second proposition applies in the case of a money decree for payment of the debt before the sale is held, and we see no reason why it should not so apply in the case of a mortgage decree for payment of the debt by the sale of the property. If there is a just debt owing by the father, it is open to the creditor to realize the debt by the sale of the property in execution of the mortgage decree. The son has no right to interfere with the execution of the decree or with the sale of the property in execution proceedings, unless he can show that the debt for which the property is sold is either non-existent or is tainted with immorality or illegality. It follows that the appellant is not entitled to restrain the sale of his interest in the property in execution of the mortgage decree for sale.
MODULE II. PARTITION AND REUNION
WHAT IS PARTITION?
Partition means bringing an end to the joint family status. Some members of a joint family can ask for a partition and their shares in the property while some can only ask for their specific shares. JHF can exist even in absence of coparcenery property and members of JHF can separate even in absence of coparcenery property. Father’s wife and widows cannot ask for partition as they are not the coparceners but they can ask their shares during partition. Partition has been defined in S. 171(8) of the IT Act as-
where the property admit of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition; or
where the property does not admits of a physical division then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition;
Partial partition means a partition which is partial as regards the person constituting the HUF, or the properties belonging to the HUF, or both
Partition is the division of the coparcenery property among the Individuals owning it jointly. Interests are crystallized into fixed shares. There are no more subject to fluctuations due to birth and deaths. Partition means severance of the Joint family status.
There are two stages of Partition in the Mitakshara Law-
Division of Rights/De-Jure
Division of Property/De-Facto
PUSHPALATA v Padma 2010 IMP
Partition, according to that law, consists in a numerical division of the property, in other words, it consists in defining the shares of the coparceners in the joint property. Once the shares are defined, whether by an agreement between the parties, or otherwise, the partition is complete. After the shares are so defined, the parties may divide the property by metes and bounds or they may continue to live together and enjoy the property in common as before. The property ceases to be joint and immediately the shares are defined and henceforth the parties hold the property as tenants-in-common. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right. From the time of such disruption, each member holds his allotted share as tenant-in-common irrespective of whether there is actual division of the properties by metes and bounds. It is established law that actual physical division or partition by metes and bounds is not an essential ingredient for the purpose of effecting severance of status. That is really a formality in the process of partition. Partition is a severance of joint status, and as such it is a matter of individual violation. All that is necessary, therefore, to constitute a partition is a definite and unequivocal indication of his intention by a member of joint family to separate himself from the family and enjoy his share in severalty. A partition may be effected without any instrument in writing. An instrument of partition in respect of immovable property of the value of rupees 100 and upwards requires registration under Section 17(1) of the Indian Registration Act, 1908. An unregistered deed of partition is not admissible to prove the contents or the shares allotted. However, if it merely acknowledges a prior partition it is admissible. An unregistered memorandum of partition can be relied on for collateral purpose of proving intention to separate. But an agreement which by itself does not create any right or interest in immovable property but only a right to obtain an instrument on partition does not require registration. However, a memorandum of family settlement being not a partition deed does not require registration. Partition does not, however, amount to a transfer of property as partition means that the totality of the property of the family in which all the coparceners jointly had subsisting title would be transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. The institution of suit for partition by a member of a joint family as an unequivocal intimation of his intention to separate, and there consequently is a severance of his joint status from the date when it is instituted. A decree may be necessary for working out the results of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether the obtains a consequential judgment or not. A suit must in substance be a suit for partition with a desire on the part of the plaintiff to hold his share in severalty without being subject to the obligation of the joint status. These concepts of partition as understood in Hindu Law has no application, while interpreting amended S.6 of the HSA. The legislature has defined ‘partition’ for the purpose of Section, which alone is to be taken into consideration while interpreting Section 6 of the Act.
Vasantiben Prahladji Nayak v Somnath Mooljibhai Nayak 2004 3 SCC 376
Facts-According to the appellants, the suit land was ancestral property belonging to her father-in-law and after his death the property came in possession of her husband. After his death, the respondents started constructing a compound wall without her permission. In these circumstances, she filed a suit in 1968 to prevent the respondents from disturbing her possession. The respondents contended that they were in possession of the suit land for more than twelve years and that they were owners by adverse possession. They also contended that the suit was barred by limitation. The appellants submitted that they became owners of the suit land as reversioners under registered deed of partition dated 29 November 1965 and consequently the suit filed by the appellants was neither barred by limitation nor by adverse possession.
Held-In the case of Ram Kisto Mandal v Dhankisto Mandal, it has been held by this Court that the right of the reversioner to recover possession of the property within twelve years from the death of the widow is not only based on provisions of the limitation act but on the principles of Hindu Law and the general principles that the right of a reversioner is in the nature of spes successionis (estate in expectancy) and such reversioner does not trace his title through the widow. Under the common law, there are two types of estates namely, estates in possession and estates in expectancy. Estates in remainder/reversion are estates in expectancy as opposed to estates in possession. Consequently, adverse possession against a life-tenant will not bar the reversioner/remainder from succeeding to the estate on the demise of the life-tenant. This is the reason for enacting explanation (a) to Article 65 of the said Act, which has no application to the facts of this case. At this stage, it is important to bear in mind that partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. In the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title. Therefore in the present case, the appellants cannot be heard to say that they became the owners of the property only when the partition deed was executed on 29 November 1965. Lastly, the facts above-mentioned show that the appellants had asserted not only their own possession, they had also asserted the possession of Prahladji (husband of appellant no.1 and father of remaining appellants) prior to his death. In the case of Hanamgowda v Irgowda it has been held that in cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendants’ possession became adverse. Therefore, in the present case, the starting point of limitation for adverse possession cannot be taken as 29 November 1965 and one has to take the date when the respondents’ possession became adverse. The appellants next contended that in the present case the respondents have failed to prove the ouster along with other three circumstances, namely, hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. It is correct to say that the defendants have to prove three elements mentioned above to establish ouster in cases involving claim of adverse possession. However, in the present case, there is a concurrent finding of fact recorded by the courts below to the effect that the respondents are in possession of the suit land from 1935 or in any event from 1941; that they have paid revenue cess from 1940; that they have paid property taxes; that their names were recorded in the revenue records and they were granted permission by the panchayat to construct compound wall. Moreover, in her deposition before the trial Court, appellant no.1 had deposed that her husband had died six years prior to the institution of suit; that the suit land was in possession of her father-in-law and after his death it came in possession of Prahlad (husband); that during the life time of Prahlad, the defendants had told Prahlad to allow them to construct a building on the land which he refused and that the respondents constructed the compound wall without their permission. In view of the above concurrent findings of fact recorded by the courts below on the issue of adverse possession, we do not see any reason to interfere in the matter.
Division of Rights/De-Jure-ascertaining and fixing with an intention to become separate and to take the share to which each coparcener is entitled.
Division of Property/De-Facto-Actually assigning the property
EFFECT OF PARTITION-End of JHF status
VN Sarain v Ajit Kumar Popal AIR 1966 (Partition is not transfer of interests under TPA)
Principle contention of appellant that as property was got by partition it meant that he had acquired premises by ‘transfer’ within meaning of S.14 (6) of Delhi rent control Act and therefore he cannot be evicted. Contention turned down as the court observed that object of S.14 (6) was to prevent transfers by landlords as a device to enable purchasers to evict tenants from the premises let out to them. Object sought to be achieved by S.14 (6) of Delhi Rent control Act (to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to them) cannot take within its sweep those who acquired property by partition. Properties got by partition did not tantamount to ‘transfer’ within meaning of S.14 (6) therefore suit was maintainable.
Debts on JHF must be deducted before partition-
Personal debt of father not tainted by illegality/immorality
Maintenance of dependents
Marriage expenses of unmarried daughter
Expenses on religious ceremonies
Widows have been given right in the coparcenery property by the 1937 Act during Partition.
WHO CAN ASK FOR PARTITION?
Those who can ask for and have a share
Those who cannot ask but have a share
Following persons can demand partition as a right-
Widow under S.3 of Hindu Women’s Right to Property Act 1937
Alienee can ask for partition
Sons, grandsons and great grandsons
Existing and prospective coparceners
Prospective coparceners include child in a womb
Sons of void and voidable marriages
Live in relationships
Persons who are entitled to share if partition takes place
If Partition takes between father and son
Share-that of a son or daughter
If no share given then she can reopen the partition
She is the absolute owner of Stridhan given by her father but if Stridhan given by husband or father-in-law, such amount may be deducted
Widowed mother-her share is equal to that of her son/daughter. (After 2005 amendment)
Paternal Grandmother-equal to her grandson if own son dead. Though there still exists confusion regarding the paternal grandmother and her share when her own son is alive and when he is dead. But father’s wife gets a share equal to that of a coparcener. She gets a portion of husband’s share as well through the fictional partition in case of coparcenery property. FATHER IS A CLASS II HEIR AND WON’T GET SHARE IN MINOR’S PROPERTY.
Those who can ask for partition and have a share don’t disrupt the JHF status-eg Alienee, widow (after the Hindu women’s Right to property Act 1937), deceased’s widow, son’s widow and grandson’s widow.
Those who can ask and have their share and disrupt the JHF status. Father has right to ask for partition even between his son and grandson.
After the 2005 amendment, even daughters, daughter’s son and daughter’s son’s son can ask for partition.
Under Bombay and Punjab schools, son has no right to ask for partition if he is still living in a JHF with father and brothers.
Under Punjab customary laws, son cannot ask for partition from his father whether or not he is in JHF.
CHILD IN A WOMB-In such cases-
Partition is deferred
If not deferred, then share of child to be decided as well
PROSPECTIVE COPARCENERS-Newborns post partition. If father did not take his share during partition, newborn can reopen the partition. But if father had taken his share, then there will be division between father, newborn and father’s wife. Prospective coparceners do not include adopted kids if father did not take his share.
In every other circumstances adopted child is treated a natural son.
S.12 Hindu Adoption and Maintenance Act
Before 1956, there was difference between separated son and son born after partition. If father dies intestate, his separate property would devolve to all his sons except the separate son. What is he has only son who was separated? See the case below-
After 1956, this difference between the separated son and sons born post partition was abolished
S.8 of HSA will now apply in case of devolution of separate property of male dying intestate on all his class of heirs as mentioned in the schedule
Some General rules-
Minor coparcener can ask for Partition through their guardian.
Absent coparceners, who were unaware, living far away can claim their share by way of reopening the Partition.
Children of void/voidable marriage cannot ask for partition from the JHF property but can ask from their father’s separate property. S.11 and S.12 of HMA talks about void and voidable marriages.
Children from live-in relationships are not treated as legitimate and thus have rights only in the separate property of their Father.
Caste disabilities Act 1850-removed the mischief that those change their religion will lose their share in the coparcenery property.
HSA S.26-Decedents of converted person would have no right in the coparcenery property
If coparcener renounces his share even his son’s daughter born after the partition cannot ask for re-opening of the Partition.
Hindu removal of disabilities Act 1928-Mentally challenged and disabled coparceners were earlier denied from claiming partition. This disability has been removed except in case of insane persons.
Women have absolute right over her Stridhan.
Widowed Mother cannot ask for partition but during partition she will get an equal share as her sons and daughters
Widowed Paternal Grandmother gets equal share as her grandson if her son is dead.
Father’s wife receives equal to that of a son. If Stridhan was given to wife by father in law/husband that amount will be reduced from her share.
MODES OF EFFECTING PARTITION
Since a major coparcener, who is also of a sound mind, has a right to demand a partition at his pleasure, all that he needs to do is to expressly manifest this demand to the other coparceners. A demand, in order to bring a severance of status, must comprise three essentials, viz.,
Formation of an intention to separate from the joint family;
A declaration of this intention; and
Communication of this intention to the Karta and if he is unavailable, to other coparceners. To how many coparceners?-To everyone interested
Manners of Partition-
Partition by instituting a suit
By an agreement-Appovier v Rama Subbyyan 1886
By way of Arbitration (See slides)
Appovier v Rama Subbyyan 1886
When the members of an undivided family agree among themselves with regard to a particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter ‘ so agreed to be dealt with, and in the estate each member thence forth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided”. A physical division of the property which is the subject-matter of partition is not necessary to complete the process of partition in so far as that item of property is concerned under Hindu law. The parties to the partition may enjoy the property in question as tenants in common. Privy Council further laid down that if there is a conversion of the JOINT-TENANCY of an undivided family into a TENANCY-IN-COMMON of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by de facto actual division of the subject-matter. This may, at any time, be claimed by virtue of the separate right.”
Three conditions for Partitions-(IMPORTANT)
Formation of intention
Communication/Knowledge to the Karta and other interested coparceners
Mesne Profits-If partition by status, In TPA Act. Profit on adverse possession
RULES FOR CALCULATION OF SHARES IN A PARTITION BY METES AND BOUNDS-
On a partition among the members of a joint family, all the members may effect a division among themselves, or only the branches may separate. The followings rules are to be observed while calculating the shares of the members who separate:
A partition has to be effected between two generations as the first step, for example, between a father and his sons.
The shares are to be so calculated that the share of the father on the one hand, and the share of each of the son on the other, are absolutely equal.
The father takes the share as his exclusive or separate property with respect to the sons, while the son takes it as coparcenary property when he has male issues. In the absence of any male issues, he takes the property as a sole surviving coparcener.
Where one son dies during the lifetime of the father and leaves behind male issues, the branch of the deceased son takes the share that he would have taken had he been alive, ie the benefit of the death of a son will be taken by his male descendants, and not by his collaterals or ascendants. (Doctrine of representation)
Where a joint family comprises only brothers, each of them takes an equal share. This is called a per capita (per person) distribution.
Each branch takes the property as per stirpes (according to the stock), but the members of each branch will take per capita as regards each other.
When female members, who are entitled to get a share, are present, they must be given a share at the time of partition. The father’s wife takes a share equal to that of a son, the mother’s (widowed) share is equal to that of the brothers and the paternal grandmother’s share is equal to that of a grandson.
Note-AFTER THE 2005 AMENDMENT TO HSA, THE SHARE OF FATHER’S WIFE, WIDOWED DAUGHTER AND PATERNAL GRANDMOTHER IS EQUAL TO THAT OF A SON.
Raghavamma v Chenchamma 1964 IMP (PARTITION THROUGH WILL?)
Facts-‘Veeranna’ had two sons Chimpirayya and Pitchayya respectively and before dying he allegedly partitioned his property equally between his sons. Chimpirayya had one son ‘Venkayya’. ‘Pitchayya’ was married to ‘Raghavamma’ but was issueless and thus allegedly adopted ‘Venkayya’ (his brother Chimpiryaa’s only son) in 1905 at a very young age of 25. ‘Venkayya’ married ‘Chenchamma’ and had a son ‘Subbarao’. Chimpirayya before dying allegedly executed a will and gave all his properties to his grandson Subbarao. Since Subbarao was minor he directed his brother’s widow Raghavamma to manage all the properties till he becomes major and if he dies then his share will go to her. He did not gave anything to his daughter-in-law but Raghavamma allowed Chenchamma to manage the properties and slowly she came into possession of the entire properties. Subbarao died in 1949. So Raghavamma filed a suit for getting possession of the properties. Chenchamma contested her claim and she also claimed that there was no adoption and partition and that Chimpirayya died undivided from his grandson Subbarao and therefore after his death Subbarao became absolute owner of all his properties by survivorship and now after Subbarao’s death, being her mother, she had right over his properties.
Issues, Whether a will executed by a member of a HJF would of itself be operative to effect a severance between him and the other members of the family by reason of the disposition contained in the will? (2) Whether a member of a HJF becomes separated from the other members of the family by a mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family?
Held, a person who seeks to displace natural succession to property by alleging an adoption must discharge burden that lies upon him by proof of factum of adoption and its validity. Pitchayya was about 25 years old and, therefore, ordinarily he had every prospect of having children of his own; it is, therefore highly improbable, unless there are special circumstances, that an only son of an elder brother was taken in adoption by his younger brother; though there is no legal prohibition, it is well known that ordinarily an only son is neither given nor taken in adoption. P.W.I. admits that the concerned family is a prominent and affluent family in the village. But curiously no document of adoption was executed, no invitations were sent to relatives and village officers, and no expenditure incurred in connection with the adoption was entered in the accounts. Unless there were compelling and extraordinary circumstances which necessitated dispensing with all formalities, it is unthinkable that in a village there could have been an adoption made in such an affluent family without pomp and show. It is settled law that a member of a JHF can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty. Omitting the will, the earlier documents filed in the case do not disclose any such clear intention. We have already held that there was no partition between Pitchayya and Chimpirayya. Whether a member of a JHF becomes separated from the other members of the family by a mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family? In this context a reference to Hindu law texts would be appropriate, for they are the sources from which the Courts evolved the doctrine by a pragmatic approach to the problems that arose from time to time. The evolution of the doctrine can be studied in two parts, namely, (1) the declaration of the intention, and (2) the communication of it to others affected thereby. So far, therefore, the law is well settled, namely, that a severance in estate is a matter of individual discretion and that to bring about that state there should be an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by authoritative decisions of Courts. But the difficult question is whether the knowledge of such a manifested intention on the part of the other affected members of the family is necessary condition for constituting a division in status. One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. “Others” must necessarily be those affected by the said declaration. Therefore a member of a HJF seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may very with circumstances. But there should be some manifestation, indication, intimation or expression of that intention to become divided, so as to serve as authentic evidence in case of doubt or dispute. What from that manifestation, expression, or intimation of intention should take would depend upon the circumstances of each case, there being no fixed rule or right formula. The despatch to or receipt by the other members of the family of a communication or notice announcing the intention to divide on the part of one member of the family is not essential nor its absence fatal to a severance in status. In our view, it is implicit in the expression “declaration” that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.
DOCTRINE OF RELATION BACK-There are two ingredients of a declaration of a member’s intention to separate. One is the expression of the intention and the other is bringing that expression to the knowledge of the person or persons affected. When once that knowledge is brought home, it relates back to the date when the intention is formed and expressed. But between the two dates, he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family : with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and common sense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable than to suggest that the doctrine should not affect vested rights ? By imposing such a limitation we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate, the rights accrued to other in the joint family property between the said manifestation and the knowledge of it by the other members would by saved. (VERY IMPORTANT)
PARTITION HOW EFFECTED (IMP)
Date from which severance occurs-when communicated to 1st coparcener
Division of property-Date when communicated to all coparceners and Karta. Person who wants the property must be alive till Karta finds out.
Partition by metes and bound-In Mitakshara law,
Shares are allotted to coparceners on the basis of division between father and sons wherein each son takes a share equal to that of a father.
Then division between brothers wherein each brother takes an equal share
Then division between branches wherein each branch will take PER STRIPE (according to the stock) and within a branch they take PER-CAPITA ie per head.
Doctrine of representation-Under this coparceners represent their father’s share. Only three generations after the father are eligible for share. Always check if all the generations are coparceners. AFTER THE 2005 AMENDMENT TO HSA, THE SHARE OF FATHER’S WIFE, WIDOWED DAUGHTER AND PATERNAL GRANDMOTHER IS EQUAL TO THAT OF A SON. Though there still exists confusion regarding the paternal grandmother and her share when her own son is alive and when he is dead. But father’s wife gets a share equal to that of a coparcener. She gets a portion of husband’s share as well through the fictional partition in case of coparcenery property. Father is a class II heir and won’t get share in minor’s property.
Under Hindu law partition may be either total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belong to it. Where, there has been a partition, it is presumed that it was a total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendants. It is, however, open to a party who alleges that the partition has been partial either as to persons or as to property to establish it. The decision on that question depends on proof of what the parties intended whether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be undivided so far as properties in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property. After such partial partition, the rights of inheritance and alienation differ accordingly as the property in question belongs to the members in their divided or undivided capacity. Partition can be brought about-
By a father during his lifetime between himself and his sons by dividing properties equally amongst them,
By an agreement or
By a suit or arbitration, A declaration of intention of a coparcener to become divided brings about severance of status.
Appovier v Rama Subba Aivan  11 MIA 75
When the members of an undivided family agree among themselves with regard to a particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter ‘ so agreed to be dealt with, and in the estate each member thence forth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided. A physical division of the property which is the subject-matter of partition is not necessary to complete the process of partition in so far as that item of property is concerned under Hindu law. The parties to the partition may enjoy the property in question as tenants in common. Privy Council further laid down that if there is a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by de facto actual division of the subject-matter. This may, at any time, be claimed by virtue of the separate right.
If in a family there are 5 members, Father, Mother, Son 1, Son 2, and Son 3 and two sons want partition but the rest of the family want to live together. In such a case those wanting partition can get their shares and separate from the JHF. After the HSA amendment 2005, a separated son still has share in the separate property of his father.
Partial partition cannot be assumed, it has to be established.
Examples of PP-4 brothers can divide the 20 acres of land between them but can remain in joint ownership of the dwelling house.
But Partial Partition is treated as full partition for Taxation purposes.
Religious Conversion-the converted coparcener can take his/her share from the date of conversion while remaining members can continue to be the members of the JHF.
Special Marriage Act-If both parties to marriage are Hindus, then no effect.
For partial partition, there has to be an agreement between the remaining members to stay in the JHF. PP should be registered for evidentiary value. Family arrangements need not be registered.
PP can also be just the division of estates.
Partition Act 1893-
S.4-PRINCIPLE OF OWELTY/Money Compensation-whenever a partition is effected relating to the JHF property, it won’t be possible to divide the property by metes and bounds. There being a necessity and allocation of property of unequal values among the member of the JHF. Property of a larger value may go to one member and property of smaller vale to other member but adjusting the values by way of payment from the former to the latter and this equalisation is the principle of Owelty. The idea is that the intrinsic value of the property must not be destroyed by partition.
Kalloomal Tapeswari Prasad v CIT Kanpur 1982 (PARTIAL PARTITION)
Facts, Mr. Chandoolal and Sitaram were two brothers forming JHF. Chandoolal had 5 sons and Sitaram had 2 sons. Unless a partition was inflicted, income derived from HUF properties would be accounted as a JHF income only. There was a partial partition in the family in the year 1951 when a capital of Rs.12 lakh was divided amongst the different branches of the coparceners. Kripa Devi-wife of Sitaram did not receive, any share at that partition. The said partial partition was accepted and acted upon by the IT Department where after the cloth business was treated as the business of a firm consisting of most of the coparceners as partners. In 1963 there was another partial partition orally as a result of which its eighteen immovable properties were divided amongst the ten members of the family and they held those properties as tenants-in-common from that date. Chandoolal and his five sons had been allotted 1/12 each and Sitaram, his wife and his two sons had been allotted 1/4 each. When asked by Income-tax Officer as to why the properties were not divided in definite portions as required by S.171 of the IT Act, the assessee stated that physical division of the properties was impossible and the only possible way to partition those properties was to define their respective shares and to enjoy the income from them separately. The IT Officer did not agree with the assessee’s contention that it was not possible to divide the, properties in question in definite portions. Accordingly he rejected the claim of partial partition in respect of the eighteen immovable properties and proceeded to assess the income derived there from in the hands of the assessee.
Held, It is clear that Hindu law does not require that the property must in every case be partitioned by metes and bounds or physically into different portions to complete a partition. Disruption of status can be brought about by any of the modes referred to above and it is open to the parties to enjoy their share of property as tenants-in-common in any manner known to law according to their desire. But the income-tax law introduces certain conditions of its own to give effect to the partition under S.171 of the gAct. It is common knowledge that in every partition under Hindu law unless the parties agree to enjoy the properties as tenants in-common, the need for division of the family properties by metes and bounds arises and in that process physical division of several items of property which admit of such physical division does take place. It is not necessary to divide each item into the number of shares to be allotted at a partition. If a large number of items of property are there, they are usually apportioned on an equitable basis having regard to all relevant factors and if necessary by asking the parties to make payments of money to equalize the shares. Such apportionment is also a kind of physical division of the properties contemplated in the Explanation to S.171. Any other view will be one divorced from the realities of life. The case before us is not a case where it was impossible to make such a division. Nor is it shown that the members were not capable of making payment of any amount for equalisation of shares. We are of the view that there is no material in the case showing, that the assessee ever seriously attempted to make a physical division of the property as required by law. As long as a finding is not recorded under S.171 holding that a partial partition had taken place the HUF should be deemed for the purposes of the Act to be the owner of the property which is the subject matter of partition and also the recipient of the income from such property. The assessment should be made as such and the tax assessed can be recovered as provided in the Act.
Badri Prasad Jagan Prasad v CIT-
CWT v Chandrasen 1986 3 SCC 567 (IMP)
Facts-.A family comprised the father-Rangilal, his son (Chandrasen) and grandsons. After effecting a partial partition in 1961, both the father and the son carried on their respective businesses (after partition between father and son, father’s share becomes his separate property). On the death of the father in 1965, the son inherited his separate properties and received the undivided share, by survivorship. Chander Sen, was now the Karta of his family comprising two sons. In the capacity of the Karta, he filed a return of his net wealth and showed the joint family income, including the one that he had got by survivorship, but did not include in it, the property that he had inherited from his father, on the ground that it was his separate property. The wealth tax officer did not accept his contention and maintained that the property received from the father, either by survivorship or through inheritance, was coparcenary property in the hands of the son. (What is the economic rationale?-A person might not want to integrate his separate property into JHF property)
Issue-Whether, income or asset which a son inherits from his father when separated by partition should be assessed as income of HUF of son or his individual income?
Held, The answer to this question would depend upon whether the amount standing to the credit of late Rangi Lal was inherited, after his death, by Chander Sen in his individual capacity or as a Karta of the assessee joint family consisting of himself and his sons. The amount in question represented the capital allotted to Rangi Lal on partial partition and accumulated profits earned by him as his share in the firm. While Rangi Lal was alive this amount could not be said to belong to any JHF and qua Chander Sen and his sons, it was the separate property of Rangi Lal. On Rangi Lal’s death the amount passed on to his son, Chander Sen, by inheritance. The High Court was of the opinion that under the Hindu Law when a son inherited separate and self-acquired property of his father, it assumed the character of JHF property in his hands qua the members of his own family. But the HC found that this principle has been modified by S.8 HSA 1956. S.8 of the said Act provides, inter alia, that the property(separate) of a male Hindu dying intestate devolved according to the provisions of that Chapter in the Act and indicates further that it will devolve first upon the heirs being the relatives specified in class I of the Schedule. Heirs in the Schedule Class I includes and provides firstly son and thereafter daughter, widow and others but is does not include grandson when son is alive. It is not necessary in view of the facts of this case to deal with other clauses indicated in S.8 or other heirs mentioned in the Schedule. In this case as the High Court noted that the son, Chander Sen was the only heir and therefore the property was to pass to him only. There is no dispute among the commentators on Hindu Law nor in the decisions of the Court that under the Hindu Law as it is, the son would inherit the same as karta of his own family. But the question, is, what is the effect of S.8 of the HSA 1956? In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family.
It would be difficult to hold that a property which devolved on a Hindu under S.8 of Succession would be HUF in his own son as that would amount to creating two classes among heirs. However, heirs in class I of Schedule under S.8 of Act included widow, mother, daughter of predeceased son, etc. Thus, express words of S.8 of Act could not be ignored and must prevail. Hence, sums standing to credit of Deceased father belongs to the son in his individual capacity and not to joint Hindu family, interest was an allowable deduction in respect of income of family from business.
Inheritance of separate property after this case is now separate property. Old law was that whatever son inherits from his father is his coparcenery property. However under S.8 of HSA, son’s son(grandson) has not been included in the class 1 heirs which shows that separate property of intestate is not meant to be passed as a coparcenery property. Because if it were coparcenery property his grandson would not have been disqualified from that.
S.6(5)-partition has to be duly registered.
SUBJECT MATTER OF PARTITION
RE-OPENING OF PARTITION
From two angles
Readjustment of properties
Reopening of the partition
General Principle-once partition has happened, it becomes final and cannot be revoked.
Situations when it can be reopened in case of fraud, coercion, misrepresentation, undue influence etc-
Son in a womb
Adopted son by a widow
Son conceived and born after partition
SON IN A WOMB
If there is a child in a womb, partition can either be deferred or the child can reopen it.
Guramma v Malappa 1964 (SON IN A WOMB and GIFT Made to daughters)
Facts, Chanbasappa died on January 8, 1944(Death). He left behind him three wives, Nagamma, Guramma and Venkamma and two widowed daughters, Sivalingamma and Neelamma, children of his pre-deceased wife. It is alleged that on January 30, 1944(Adoption), Nagamma, the senior most widow, took her sister’s son, Malappa, in adoption It is also alleged that at the time of his death Venkamma was pregnant and that she gave birth to male child on October 4, 1944(Birth). A few days before his death, Chanbasappa executed gift deeds in favour of his wives, widowed daughter, a son of an illegitimate son, and a relative. Guramma, one of the windows of Chanbasappa, filed a suit for setting aside the alienations made by her husband.
Issues, Whether the alienations in favour of defendants 2, 5, 6, 7 and 8 are binding on the members of the family? Whether the adoption was void as it was made at a time when a male child had already been conceived?
Held-A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family. Under the Hindu law a son conceived or in his mother’s womb is equal in many respects to a son actually in existence in the matter of inheritance, partition, survivorship and the right to impeach an alienation made by his father. His right to set aside an alienation hinges on his secular right to secure his share in the property belonging to the family, as he has a right by birth in the joint family property and transaction effected by the father in excess of his power when he was in embryo are voidable at his instance. If another member was in existence or in the womb of his mother at the time of the alienation, the power of the manager was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member or the member who was in the womb but was subsequently born, as the case may be, unless it was made for purpose binding on the member of the family or the existing member consented to it or the subsequently born member ratified it after he attained majority. If another member was conceived in the family or inducted therein by adoption before such consent or ratification, his right to avoid the alienation will not be affected. But there is an essential distinction between an alienation, partition and inheritance on the one hand and adoption on the other in the case of adoption, it secures mainly spiritual benefit to the father and the power to adopt is conferred on him to achieve that object. The doctrine evolved wholly for a secular purpose would be inappropriate to a case of adoption. We should be very reluctant to extend it to adoption, as it would lead to many anomalies and in some events defeat the object of the conferment of the power itself. The scope of the power must be reasonably construed so as to enable the donee of the power to discharge his religious duty. We, therefore, hold that the existence of a son in embryo does not invalidate an adoption.
ADOPTED SON OF A WIDOW
If partition has already happened before the adoption and the properties have already devolved, the adopted child cannot divest anyone from the already devolved properties as per S.12(c) of the Hindu Adoption and Maintenance Act. (see. Mulla)
Shrinivas Kango v Narayan Kango 1955
The principles to be educed from what was said in this case may be summarised as follows-
An adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption on the ground that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son.
As a preferential heir, an adopted son (a) divests his mother of the estate of his adoptive father; and (b) divests his adoptive mother of the estate she gets as an heir of her son who died after the death of her husband.
A coparcenary continues to subsist so long as there is in existence a widow of a coparcener capable of bringing a son into existence by adoption; and if the widow made an adoption, the rights of the adopted son are the same as if he had been in existence at the time when his adoptive father died and that his title as coparcener prevails as against the title of any person claiming as heir to the last coparcener
The principle of RELATION BACK applies only when the claim made by the adopted son relates to the estate of his adoptive father. The estate may be definite and ascertained, as when he is the sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitle to take as on the date of his death. This principle of relation back cannot be applied when claim made by adopted son relates not to the estate of his adoptive father but to that of a collateral. With reference to the claim with respect to the estate of a collateral, the governing principle is that inheritance can never be in abeyance, and that once it devolves on a person who is the nearest heir under the law, it is thereafter not liable to be divested. When succession to the properties of a person other then an adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested.
The estate continues to be the estate of the adoptive father in whosoever’s hands it may be, that is, whether in the hands of one who is the absolute owner or one who is a limited owner. Any one who inherits the estate of the adoptive father is his heir, irrespective of the inheritance having passed through a number of persons, each being the heir of the previous owner. This Court considered the case of Amarendra Mansingh v. Sanatan Singh 1923 which related to an impartible zamindari. The last of its holder was Raja Bibhudendra. He died on December 10, 1922, unmarried. A collateral, Banamalia, succeeded to the estate as the family custom excluded females from succeeding to the Raj. On December 18, 1922 Indumati, mother of Bibhudendra, adopted Amarendra to her husband, Brajendra. The question for determination, in that case was whether Amarendra could divest Banamalia of the estate, and it was answered in the positive by the Judicial Committee. This Court said at page 19 : “The estate claimed was that of his adoptive father, Brajendra, and if the adoption was at all valid, it related back to the date of Brajendra’s death, and enabled Amarendra to divest Banamalai.”
Krishnamurthi v Dhruvraj 1962 (Is this case holds good or Namdev Vyankat Ghadge? Given Below)
Facts, Bandegouda, father of the respondent, died in 1882, pre-deceasing his father Narasappagouda, who died later in 1892. Bandegouda left his widow Tungabai, who adopted Dhruvraj as her son on July 31, 1945. Narasappagouda, on his death, left two daughters, Krishnabai and Shyamabai alias Chamavva. The two sisters succeeded to their father’s property in equal shares.
Held, It has been overlooked that the heir of a collateral succeeding to the sole surviving coparcener inherits the property absolutely, but subject to defeasance, and that the right in the property devolves on his heir, who must consequently take that property absolutely, but still subject to defeasance, as no better title could have been inherited so long as there was the possibility of the defeasance or the absolute title by a widow of a family of the last surviving coparcener adding a member to the Coparcenary by adopting a son to her deceased husband, and in overlooking what was stated in this connection by this Court in Shrinivas Krishnarao Kango’s Case, though not as a decision, but as a reasoning to come to a decision in that case.
Namdev Vyankat Ghadge v Chandrakant Ganpat Ghadge 2003
Facts, ‘A’ and ‘V’ were two coparceners in a JHF. ‘A’ died in 1930 leaving behind his widow Krishnabai. ‘V’ died on 8/2/1978. On death of ‘V’ joint family properties in his hand devolved on his heirs as per S.6 of HSA subject to right of maintenance of Krishnabai-widow of ‘A’. On 10/6/1978 Krishnabai (widow of ‘A’) adopted defendant No. 6 as her son. Krishnabai adopted defendant No.6 four months after the death of ‘V’. By that time the properties had already vested in heirs of ‘V’.
Issue, Whether defendant No.6 was entitled to claim any share in the properties already vested in the heirs of ‘V’ before his adoption?
Held, On the date of death of ‘V’ the properties of the joint family in his hands devolved on his heirs, i.e., his sons and daughters as per Section 6 of the Hindu Succession Act, 1956, subject to rights of maintenance of his brother’s widow Krishnabai. Opening of succession and devolving of properties operated immediately on the death of Vyankat and the joint family properties stood vested in the heirs of Vyankat. Defendant No. 6 was adopted by defendant No. 2 about four months after the death of Vyankat by which time the properties had already been vested in his heirs. On the death of Vyankat, in the present case, property in his hands devolved and vested in his heirs. In view of proviso (c) of S.12 of the HAMA 1956, defendant No. 6 Dattatraya by virtue of his adoption four months after the death of Vyankat could not divest the properties vested in the heirs of Vyankat so as to claim his share. This being the legal position, defendant No. 6, having been adopted after the death of Vyankat and after the properties vested in his heirs, is not entitled for share in the suit properties.
Disqualified coparcener can reopen the partition one the disability has been removed.
Son conceived and born after partition
If father has already taken his share, then no share but if he has not taken his share than yes.
The condition is that it must be for the benefit of minor to be verified by court
Ratnam Chettiar v Kuppuswami 1976 (Cancellation of unjust Partition)
Facts, The appeal arises out of a partition suit filed by plaintiffs Nos. 1 to 4 for cancellation of partition made between the father of the plaintiffs Ranganatham-defendant No. 5, and his elder brother Kuppuswami-defendant No. 1. Partition happened in 1940 by virtue of a registered partition deed. At that time plaintiffs Nos. 2 to 4 were minors. The plaintiffs’ case was that the two brothers who were members of the HUF along with the plaintiffs and other minor coparceners betrayed the interests of the minors and the division made between them was both unjust and unfair and had the effect of depriving the minors of their legal shares in the properties the lion’s share having fallen to the lot of elder brother defendant No. 1 Kuppuswami. The plaintiffs’ father who is defendant No. 5 being a person of weak intellect did not care to protect the interests of the minors and he accordingly accepted any share that was allotted to him without any objection. Plaintiffs also alleged that the partition was secured by practicing fraud and undue influence and by suppressing large assets be longing to the family which were taken by defendant No. 1 by taking advantage of the weakness of the plaintiffs’ father.
Held, It is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor’s benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside. There are numerous authorities which have consistently held that where a partition is unjust and unfair and detrimental to the interests of the minors the partition should be reopened irrespective of the question, of bona fide. In Lal Bahadur Singh v Sispal Singh (1892) ILP 14 All 498 it was observed that even though the ground of fraud and mistake failed, the partition which affected the interests of the minors could be reopened. Thus on a consideration of the authorities discussed above and the law on the Subject the following propositions emerge-
A partition effected between the members of the HUF by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter-vivos cannot be lightly set aside.
When the partition is effected between the members of the HUF which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
Where, however, a partition effected between the members of the HUF which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.
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 facts of the present case in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above.
RE-UNION OF PARTITION
A reunion can be made only between the original parties to partition; and can only take place-
Between father and son
Between the paternal uncle and nephew
Reunion is an agreement based on desire of the parties to come back together again.
Balabux v Rukhmabai (1903) 30 IA 130
Minor can also reunite with separated coparceners
YNM Arunchala Nadar v CET 1962 44 ITR 352 SC (MINORS REUNITING)
Effect of reunion-is to merit the reunited members to their former status as members of a Joint Hindu Family ie. Both community of interest and unity of possession get revived after re-union.
Bhagwan Dayal v Reoti Devi 1964 (REUNION-Agra Business case)
Facts, There was a JHF in Farrukhabad with Lakshman Prasad as Karta. He had two sons Kashi Ram and Jwala Prasad each having sons and grandson. Three of the members of the said family, namely, Kashi Ram, his son Raghubar Dayal and Bhagwan Dayal from branch of Jwala Prasad, jointly started a business at Agra, that they jointly acquired some properties and houses during the lifetime of Kashi Ram, some after his death, and others after the death of Raghubar Dayal, and that the said properties were the JHF properties of the said members, under the Hindu law. Alternatively, it is alleged that even on the assumption that there was a partition in the family of Lachhman Prasad, a reunion should be inferred from the conduct of the said three members during the lifetime of Kashi Ram and thereafter.
Held, It is well settled that to constitute a reunion, there should be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a JHF. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. The legal position has been neatly summarized in Mayne’s Hindu Law, 11th edn., thus at p. 569 : “As the presumption is in favour of union until a partition is made out so after a partition the presumption would be against a reunion. To establish it, it is necessary to show not only that the parties already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of farming a joint estate with all its usual incidents. It requires very cogent evidence to satisfy the burden of establishing that by agreement between them, the divided members of a joint Hindu family have succeeded in so altering their status as to bring themselves within all the rights and obligations that follow from the fresh formation of a joint undivided Hindu family. “
Though as a matter of law two or more members of a JHF belonging to different branches can form a smaller joint family and acquire properties with all the attributes of a JHF property, in the instant case the evidence does not establish that Kashi Ram, Raghubar Dayal and Bhagwan Dayal constituted such a unit and acquired the properties; the properties were the self-acquired properties of Kashi Ram, but were bequeathed by him in equal shares to Raghubar Dayal and Bhagwan Dayal, and after his death they held those properties and those acquired subsequently only as co-tenants and not as members of a JHF. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remain united; whether the latter remain united or not must be decided on the facts of each case. In the present case brothers were living separately and earning their livelihood. In Government record names of different members of family entered against different portions of property. Onus of proving reunion lies on the party alleging it. Moreover there should be an agreement between parties with intention to reunite. No evidence of alleged agreement in plaint. Sufficient documentary evidence to suggest that deceased never constituted joint family with his nephew.
As per Halsbury’s Laws of England, A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family, either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agreement may be implied from a long course of dealing , but it is more usual to embody or to effectuate the agreement in a deed to which the term family arrangement is applied.
It can be defined as an arrangement among the family members to find a solution for their disputes, settle and solve their conflicting claims permanently and to buy peace of mind. Essential elements :
Family – group of persons, recognized in law , having a right of succession or having a claim to a share in the property in dispute.
Existence of dispute: to be settle by an equitable division or allotment of property.
Titles to members : have some antecedent title, claims, or interest.
Registration of arrangement : It should be in writing but not for mere memorandum.
Benefit for the family.
F.A must be bonafide, honest, voluntary not induced by fraud, coercion or undue influence.
Consideration – preservation of family property, peace and honour of the family, avoidance of litigation.
A family arrangement is not treated as a conveyance. It is only in the nature of allocation, distribution, re-distribution or recognition of pre-existing rights. This is like a re-alignment of rights. In the process some of the pre-existing rights of one or more members may be even extinguished by their consent.
Maturi Pulliah v Maturi Narasimhan 1966
Family Arrangement needs registration only if it creates any interest in immovable property. It was held that even if there was no conflict of legal claims but the settlement was a bona fide one, it could be sustained by the Court. Similarly it was also held that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement. In this connection this Court observed as follows: It will be seen from the said passage that a family arrangement resolves family disputes, and that even disputes based upon ignorance of parties as to their rights may afford a sufficient ground to sustain it. Briefly stated, though conflict of legal claims in present or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it.
Kale v Deputy Director of Consolidation 1976
Facts, one Lachman-the last propositor was the tenant and the tenure holder of the property in dispute. Lachman died in 1948 leaving behind three daughters, namely, Tikia, Har Pyari and Ram Pyari. Tikia was married during the lifetime of Lachman and the appellant No. 1 Kale is the son of Tikia. Thus after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughter’s son Kale. Under the UP Tenancy Act, 1939 which applied to the parties only ‘unmarried daughters’ inherit the property. The first round of dispute appears to have arisen soon after the death of Lachman in the year 1949 when Panchayat Adalat of the village was asked to decide the dispute between Prem Pal nephew of Lachman and the appellant Kale regarding inheritance to the property left by Lachman. Panchayat held that Har Pyari having been married had lost her right in the estate and Ram Pyari was also an heir so long as she was not married and after her marriage the legal heir to the property of Lachman would be the appellant Kale. In the year 1952 the UP Zamindari Abolition and Land Reforms Act, 1950 was made applicable and amongst the list of heirs enumerated under the statute, “Unmarried daughters” was substituted by “daughter” only. While the matter was pending adjudication, the Revenue Court was informed that talk of compromise was going on between the parties which ultimately culminated in a compromise or a family arrangement under which the appellant Kale was allotted Khatas Nos. 5 and 90 whereas others were allotted Khatas Nos. 53 and 204 as between them. A petition was filed in1956 before the Revenue Court informing it that a compromise had been arrived at and in pursuance thereof the names of the parties may be mutated in respect of the Khatas which had been allotted to them. This petition was signed by both the parties and ultimately the Assistant Commissioner, I Class. This state of affairs continued until the year 1964 when proceedings for revision of the records under Section 8 of the UP Consolidation of Holdings Act, 1953 were started in the village and changes were made in entries which were obviously contrary to the mutation made in pursuance of the family arrangement entered into between the parties in 1956. So the appellant Kale filed his objections before the Assistant Consolidation Officer for changing the entries in respect of those Khatas.
Held, By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs But even those persons who may have some ” sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the Rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. Additionally, following propositions were laid down regarding the binding effect and the essentials of a family settlement-
The FS must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
The said settlement must be voluntary and should not be induced by fraud , coercion or undue influence.
The FA may be even oral in which case no registration is necessary.
It is well settled that registration would be necessary only if the terms of the FA are reduced into writing. A distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the FA do not require registration.
The members who may be the parties to the FA must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.
Even if bonafide dispute, present or possible , which may not involve legal claims are settled by a bonafide FA which is fair and equitable the FA is final and binding on the parties to the settlement.
Family Arrangement v/s Partition-
Family arrangements and partition are not transferrable.
Both are not covered under the TPA 1882
Both require intention
No end of JHF status in FA while JHF status ends in Partition
In FA only allocation of property takes place while in Partition, there is an actual disposition of property.
Law Commission of India (208 report) recommended that FA and oral Partition should be defined in S.6 of the Hindu Succession Act 1956
HINDU SUCCESSION ACT 1956-(for mid-semester till S.11)
Though it includes both intestate and testamentary successions as is evident from the title however the preamble suggests intestate succession only. Keeps the principle of Propinquity of the Mitakshara school.
Applicable all over India except J&K. HMA has extra-territorial application. Not applicable on Schedule Tribes
Agnate-relatives from father’s side
Cognate-relatives from mother’s side
Custom and usage-signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
Full blood, half blood and uterine blood-
Heir-In Indian Trustee Act, heir has been defined as a person claiming an interest in the immovable property of a deceased person.
Intestate-testamentary will and it should be valid
S.6 HSA-After the 2005 amendment, a daughter by birth becomes a coparcener in the same manner as a son and has same rights and liabilities as that of a son.
She also become a coparcener by birth.
But the question is whether only those girls born after 2005 have the right or everyone? Both
The daughter has been allowed same share as a son.
Drawbacks-The act provides for notional partition in case of death of male members but is silent on whether there will be notional partition after death of daughter or unmarried daughter as well?
So in case of death of son of JHF, a notional partition is done to ascertain the shares of the heir of the deceased who get the property by doctrine of representation.
The amendment makes it very clear regarding separated property share for a separated daughter or son. Explanation 2 of S.6
6(4)-Abolishion of Doctrine of Pious obligation-No court shall proceed to recover debt from son, grandson and great grandson taken by his father, grandfather or great grandfather solely by the doctrine of pious obligation. It has no retrospective application ie it applies only after the 2005 amendment. Only those children who are born after the 2005 amendment are exempt of this obligation. The drawback is that there is discrimination between children of same father just on the basis of their birth.
Cases on S. 6 DEVOLUTION OF INTEREST IN THE COPARCENERY PROPERTY
Pushpalata v Padma 2010 Karnataka (Decision regarding retrospective application of the 2005 amendment has been settled in the Badri Narayan Shankar v Omprakash)
Facts, Mr. Vasanth Kumar came to acquire the suit properties in 1967 by a deed of partition. He died in 1984, intestate. He left behind him, his wife Padma, two sons and two daughters as the legal heirs. All the children after his death have succeeded to his estate. They are all in joint possession. Plaintiff Pushpalata demanded 1/5 share in all the properties. Defendants denied the claim of the plaintiff to be entitled to 1/5 share in the joint family properties, but are ready to give the plaintiff the 1 /20 share, to which she is entitled to in law.
What was the right of the daughter of a coparcener in a JHF governed by Mitakshara Law in coparcenary property by virtue of the amendment?
What was the right of a married daughter in a coparcenary property?
Whether the amended provision was prospective or retrospective in operation?
Whether the amended provision applies to the pending proceedings before the Court?
What happens to the vested right under repealed S.6 of (a) other female members, (b) male members?
Held, by virtue of the 2005 amendment, the daughter of a coparcener by birth became a coparcener in her own right in the same manner as the son. Daughter of a coparcener would have the same rights in the coparcenary property, as she would have had, if she had been a son. The rights and liabilities were to be shared equally by the son and daughter. When the status of a coparcener was conferred on the daughter on and from the date of the commencement of the Amendment Act, as the right was given to her by birth. Daughter of a coparcener who was born after the Act came into force alone will be entitled to a right in the coparcenary property and not a daughter who was born prior to 17 June 1956. Unless a partition was by a registered instrument, the daughter’s right to the property was not taken away. (REGISTRATION NOT NECESSARY FOR PARTITION BEFORE 2005) The daughter’s marriage will not put an end to the right of the daughter to a coparcenary property which she acquired by birth (For Karnataka Or Whole India?). When the Parliamentary legislation which was subsequent in the Karnataka Amendment conferred the status of a coparcener on the daughter of a coparcener and gave right by birth in the coparcenary property and did not exclude the married daughters from such status and right expressly or by necessary implication, the Central Act to that extent was repugnant to the State law. As the amended law was passed by the Parliament it prevailed over the State law and the law passed by the State stood impliedly repealed to the extent of repugnancy. Thus, married daughter cannot be deprived of her right to a share in the coparcenary property by birth. Parliament had expressly made its intention clear to the effect that the amendment was retrospective. Till a partition was effected by a decree of a Court (before 2005 amendment), the daughter could not be deprived of her legitimate right in the said property. Substituted/amended Section applied to all pending proceedings as the partition was not yet effected by a decree of the Court. In respect of female members left behind by a male coparcener dying before the commencement of the Amendment Act, succession to the property was governed by the unamended S.6 by virtue of S.6 of the General Clauses Act. Rights which accrued to the male members of the coparcener on the succession being open prior to the amended Section was affected, their share get reduced. Plaintiff the daughter of a coparcener in a Joint Hindu Family governed by the Mitakshara Law by birth became a coparcener in her own right. She was entitled to equal share in the coparcenary property. On the date of death of her father, the Amendment Act had not come into force. Therefore, the unamended S.6 of the Act was applicable. Impugned judgment set aside. Appeal allowed.
The answer to these questions depends on the interpretation to be placed on the amended S.6. For a proper appreciation of the substituted S.6 of the Act, four things are to be discerned and considered. They are:
What was the law before the amendment?
What was the mischief and defect for which the earlier law did net provide for?
What is the remedy the parliament intended by amending the law?
The true reason for such remedy?
LAW BEFORE 1956
The two systems of inheritance which is predominant amongst the Hindus in India are; Mitakshara system and Dayabhaga system. Mitakshara recognises two modes of devolution of property, namely, survivorship (for JHF property) and succession (for separate property). The rule of survivorship applies to joint family property; the rule of succession apply to property held in absolute severalty by the last owner. (IMPORTANT) Dayabhaga recognises only one mode of devolution, namely, succession and so does Muslim Law. It does not recognise the rule of survivorship even in the case of joint family property. The reason is that while every member of a Mitakshara joint family has only an undivided interest in the joint property, a member of a Dayabhaga joint family holds his share in quasi-severalty, so that it passes on his death to his heirs as if he was absolutely seized thereof, and not to the surviving coparceners as under Mitakshara law. Under the Mitakshara law, on birth, the son acquires a tight and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the shore of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one-third of the property. If another son is born in the family, automatically the share of each male is reduced to one-fourth. The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognised. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father’s life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son’s daughter, daughter’s daughter and sister, thereby creating a limited restriction on the rule of survivorship. Another landmark legislation conferring ownership rights on woman was the Hindu Women’s Right to Property Act 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights.
The Law After 1956 And Before 2005
The Hindu Succession Act, 1956 enacted by the Parliament conferred on women and in particular to a daughter equal rights as that of the son. The limited ownership rights in the property conferred under earlier laws blossomed into full ownership in respect of any property possessed by a female Hindu whether acquired before or after the commencement of the Act by virtue of S.14 of the Act. The explanation to S.14(1) made it clear, the property referred to in S.14 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 the Act. Therefore, a Hindu women with the advent of the Act enjoys the absolute ownership rights in the property possessed and acquired by her and she was at liberty to exercise her right in the same as such absolute owner. In respect of the property of a male Hindu dying intestate, equal rights were given to a female Hindu by treating her as Class I heir along with son of the deceased. However, HSA 1956 had no application to coparcenary property. Prior to 1956 Act, the daughter in a HJF governed by Mitakshara law was not considered a coparcener. Even after 1956 Act the position continued to be the same. The Act of 1956 did not deal with devolution of interest in the coparcenary property. S.6 made it clear that, when a male Hindu dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. Therefore, the Act was not made applicable to coparcenary property. However, the proviso to the said Section provided that, if a male Hindu dies leaving behind a surviving female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship.
Hindu Succession (Amendment) Act 2005 (Act No. 39 of 2005)
Pre-amended S.6 of the Act dealt with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributed to her discrimination on the ground of gender but also had led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Mitakshara coparcenary property and The 2005 amendment removed the discrimination as contained in S.6 of the HSA, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. With the change in the law, the legal concept of coparcenary underwent a radical change. The coparcenary hitherto the monopoly of male lineal descendants, and consisting of only male member of a Joint Hindu Family now has to accommodate a daughter, a female also. Therefore, a declaration is made to the effect that any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. The exclusive club of males, a Hindu Mitakshara coparceners is now thrown open to the daughters also. If Father and daughter are alive post 2005, daughter can take benefit of the amendment.
When the amendment came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right?
The parliament realised this problem and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this “right is by birth” leaving no scope for interpretation. This amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force ie, 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the coparcener was not a coparcener and she became a coparcener only from 9-9-2005. Though her status was so declared on 9-9-2005, she has been given right in the coparcenery property from the date of her birth. Therefore, what the parliament did was to use the phrase,“on and from the commencement of the Hindu Succession (Amendment) Act. 2005” as the opening words of the Section, thus removing the absurdity. The proviso to Sub-section (1) of S.6 provides that the substituted Section has no application and it shall not affect or invalidate any disposition or alienation or partition or testamentary disposition which has taken place before the 20th day of December 2004. In other words, if there is no disposition or alienation of a property belonging to a Joint Hindu Family, the daughter who is conferred the status of a coparcener by virtue of which she gets a right by birth is entitled to the same rights in the coparcenary property in the same manner as the son. The language employed in the proviso is unambiguous and clear. The intention was to save disposition, alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004. Sub-section (3) of the amended Section provides that, where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a JHF governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place. Therefore, with the passing of the Amendment Act, 2005, the concept of survivorship has been done away with.
Partition-The concepts of partition as understood in Shashtric Hindu Law has no application now, while interpreting amended S.6 of the Act. The legislature has defined ‘partition’ for the purpose of Section, which alone is to be taken into consideration while interpreting Section 6 of the Act. Unless the partition is evidenced by a registered document (not necessary) and that come into existence prior to 20 day of December 2004, the daughter who has now been conferred the status of a coparcener cannot be denied the right to the coparcenary property which she has now acquired by birth.
What is the Right of a MARRIED DAUGHTER?
Now marriage, has no relevance to the succession or inheritance of the property. When a male Hindu marries, his right to succeed to a property or inherit a property is in no way affected by the act of marriage. However, in the case of a daughter in a Hindu Family, a distinction was sought to be made. After her marriage as she ceased to be a member of the Hindu Undivided Family and becomes a member of the HUF of her husband, she was denied the right in the undivided family of her father. If she did not marry, her right was intact. The marriage had the effect of denuding her right to property in the family by birth. It stands to no reason. Therefore, the Parliament consciously has not used the word ‘married daughter’ in the entire Section.
Retrospective Operation-A declaratory law is retrospective in operation because the object of such declaratory law is to supply the omission. In the instant case, in 1956 when the Act was passed, the daughters of a coparcener was not treated as coparcener nor any right in the coparcenary property by birth was conferred on her. Now, by a declaration such a right is sought to be conferred. It is done by way of substitution. In other words, the legislative intent is to supply the omission in the original Act. The parliament has not kept any one in doubt about their intention. The effect is that the Act as enacted in 1956 is to be read and construed as if the altered words/new section had been written into the earlier Act with the pen and ink and the old Section/Words scored out, so that thereafter there is no need to refer to the amending Act at all. The constitutional validity of the substituted section is not under challenge. On the contrary the substituted section is in conformity with the constitutional provision. The effect is old Section 6 is superseded by the new Section 6, the amended section taking the place of the original section, for all intents and purposes as if the amendment had always been there. This is the way the parliament has expressly made its intention clear to the effect the amendment is retrospective.
PENDING SUITS-If a suit is filed for partition by any of the members of the family either seeking a partition in respect of coparcenary property or a suit filed by a member of the joint family including a female heir in respect of coparcenary property, on the death of a coparcener as provided under proviso to S.6 of the unamended provision, the female members would be entitled to equal share with the sons in the share of the deceased coparcener. If the suit is between coparceners then each of them would be entitled to equal share and no female member of the joint family would be entitled to any share.
Gaundri v Chakwendri AIR 2012 SC 169 (PENDING LEGISLATION)
Facts, partition had taken place between father and two sons, each of them getting 1/3rd of the coparcenary property. Thereafter, when the father died, his interest in the coparcenary property was divided on notional partition in terms of proviso to erstwhile S.6(1) of the Principal Act between two daughters and two sons. A preliminary decree was passed in 1999, which was amended in 2003. The final decree for partition was not yet passed, when the Amendment Act 2005 came into force on 9 September 2005. In view of the said amendment, two daughters sought a share in the property claiming to be equal to their brothers’ share and prayed for amendment of the preliminary decree on that basis.
Held, that the amended S.6 will apply to a partition suit wherein the final decree was not passed before the date of commencement of the Amended Act of 2005. The new S.6 provides for parity of rights in the coparcenary property among male and female members of a JHF on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new S.6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in S.6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
Badri Narayan Shankar v Omprakash 2014 Bombay (DECISIVE)
Issue-Whether Substituted S.6 of HSA Act was prospective or retrospective in operation?
Held,-A bare perusal of sub-section (1) of S.6 would, thus, clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) is retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force. Hence, if a daughter of a coparcener had died before 9 September 2005, since she would not have acquired any rights in the coparcenary property, her heirs would have no right in the coparcenary property. Since S.6(1) expressly confers right on daughter only on and with effect from the date of coming into force of the Amendment Act, it is not possible to take the view being canvassed by learned counsel for the appellants that heirs of such a deceased daughter can also claim benefits of the amendment. It is not possible to accept the contention urged on behalf of the appellants that the Amendment Act 2005 is retrospective in nature and that it relates back to 17 June 1956 when the Principal Act came into force, so as to unsettle all the partitions which were not effected by decrees of Court or registered documents even if executed prior to 20 December 2004. The learned counsel for the Appellants went so far as to contend that the retrospective effect of the Amendment Act of 2005 would even set at naught all notional partitions under the proviso to S.8 of the pre-amended Principal Act if such notional partition is not followed by partition by metes and bounds. We are not impressed because the Amendment Act of 2005 affects partitions inter vivos which were effected without decree of Court or by registered partition deed. There is nothing in the Amendment Act to indicate that statutory partitions are rendered nugatory. In case of statutory partition, there would be no possibility of any contrived or got up partition. The correct legal position is that S.6 as amended by the 2005 Amendment Act is retroactive in nature meaning thereby the rights under S.6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date of coming into force of the 2005 Amendment Act i.e. on 9 September 2005, though born prior to 9 September 2005. Obviously, the daughters born on or after 9 September 2005 are entitled to get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). In other words, the heirs of daughters who died before 9 September 2005 do not get the benefits of amended S.6. On an examination of amended S.6 of the Principal Act and bearing in mind the words ‘on and from commencement of the Hindu Succession Act, 2005 found in S.6, it must follow that the rights under the amended S.6 can be exercised by a daughter of a coparcener only after the commencement of the Amendment Act 2005. Therefore, it is imperative that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act, 2005 was brought into force. It would not matter whether the daughter concerned is born before 1956 or after 1956. This is for the simple reason that the HSA 1956 when it came into force applied to all Hindus in the country irrespective of their date of birth. The date of birth was not a criterion for application of the Principal Act. The only requirement is that when the Act is being sought to be applied, the person concerned must be in existence/living. The Parliament has specifically used the word “on and from the commencement of Hindu Succession (Amendment) Act, 2005” so as to ensure that rights which are already settled are not disturbed by virtue of a person claiming as an heir to a daughter who had passed away before the Amendment Act came into force. Summarising-
S.6 of HSA 1956 as amended by the Amendment Act of 2005 is retroactive in operation, as explained in this judgment. In brief:
Clause (a) of sub-section (1) of amended S.6 is prospective in operation;
Clauses (b) and (c) and other parts of sub-section (1) as well as sub-section (2) of amended Section 6 are retroactive in operation, as indicated hereinafter.
Amended S.6 applies to daughters born prior to 17 June 1956 or thereafter (between 17 June 1956 and 8 September 2005), provided they are alive on 9 September 2005 that is on the date when the Amendment Act of 2005 came into force. Admittedly amended S.6 applies to daughters born on or after 9 September 2005.
Vasiashali v Satish AIR 2012 Bom 101
Rambilas Singh v Uttamraj AIR 2008 Pat 81
Prakash v Phulawati 2016 2 SCC 26
Issue, Whether Hindu Succession (Amendment) Act, 2005 (‘the Amendment Act’) will have retrospective effect?
Held, that the rights under the amendment are applicable to living daughters of living coparceners as on 9 September 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20 December 2004 as per law applicable prior to the said date will remain unaffected.
Danamma v Amar Civil Appeal No. 188-189 of 2018
Rangubai v Laxman AIR 1966 Bom 160
Rajrani v Chief AIR 1985 SC 1234
Sushilabai v Narayan AIR 1975 Bom 257
Jai Lakshmi v Dhupti Devi AIR 2010 Del 37
CASES ON NOTIONAL/FICTIONAL PARTITION UNDER S.6 Notional Partition is done only in case of coparcenery property. For separate property, S.8 is applicable-class 1 heirs.
Gurupad Khandappa Magdum v Hirabai Khandappa Magdum 1978
Khandappa died in 1960. He had 2 sons and 3 daughters. Khandappa’s wife Hirabai filed a suit for partition and separate possession of 7/24 share in the joint family property on the basis of S.6 of the HSA. She claimed that if a partition had taken place between her husband and her two sons immediately before the death of her husband Khandappa, she, her husband and two sons would have each been allotted a 1/4 share in the family property and on the death of her husband the 1/4 share which would have been allotted in his favour had devolved in equal shares on her, her two sons and three daughters. Thus she claimed the 1/4 share which had to be allotted in her favour on the notional partition and 1/24 share (which was 1/6 of the 1/4 share of her husband under S.8 because of her being class 1 heir) ie 7/24 share in total. Prior to 2005, a Hindu dying intestate’s property shall be devolve by survivorship. But if any class 1 heir is there then HSA shall be applicable. So Khandappa died leaving behind 1/4 share (notional partition). Then there are 6 class 1 heirs. So 1/4*1/6=1/24. Her share will be 1/4+1/24=7/24. It was contended on behalf of the contesting defendant that she could net get the 1/4 share since actually no partition had taken place. Justice Chandrachud observed that-In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant’s share. Explanation I to S.6 resorts to the simple expedient, undoubtedly fictional, that 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 that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.
State of Maharashtra v Narayanrao 1985 SC (it was pre-2005, what would be the case after 2005 and what would have been the case before 1956 and 1937)?
Facts, Sham Rao Bhagwant Rao Deshmukh and his son, Narayan Rao were members of a JHF governed by the Mitakshara School of law. His wife Sulochanabai and his mother Gangabai alias Taibai were also the members of that family. The said family owned extensive properties of 305 acres. Sham Rao died in 1957 after the coming into force of the HSA, 1956 and on his death his interest in the coparcenary property devolved on his son, wife and mother in equal shares under S.6 of the Act, such interest being the share that would have been allotted to him if a partition of the family property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. So one-third share devolved in equal shares on Narayan Rao, Sulochanabai and Gangabai alias Taibai. They, how ever, continued to live together enjoying the family properties as before. In 1962 the Maharashtra Agricultural Lands Ceiling Act, came into force. As required by the Act, a JHF could only retain 96 acres. Now they claimed that they had separated to avoid the take over of the extra land by Government.
Issue, Whether females who inherits a share in a joint family property by reason of the death of a member of the family ceases to be a member of the family?
Held, that there was a disruption of the family in question on the death of Sham Rao as for the purpose of determining the interest inherited by Gangabai alias Taibai and Sulochanabai it was necessary to assume that a notional partition had taken place immediately before the death of Sham Rao and carried to its logical end as observed in the above decision, Gangabai alias Taibai and Sulochanabai should be deemed to have become separated from the family. When a female member who inherits an interest in the joint family property under Section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which have been notionally allotted to her, as stated in Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under Section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow the language of the statute. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members, the members there of do constitute a family. That might also be the case of families of persons who are not Hindus. In the instant case the theory that there was a family settlement is not pressed before us. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed. Even after notional partition, the joint family continues unless they intentionally separate by way of actual partition.
Anad Devi v Parmeshwar Devi AIR 2006 SC 3332
Rohit Chauhan v Surendra Singh 2013 9 SCC 419
CASES ON S.8 GENERAL RULE OF SUCCESSION IN CASE OF MALES (SEPARATE PROPERTY)
Eramma v Veerupana AIR 1966 SC 1879
Facts, deceased had 3 step-mothers. Dispute was whether step-mothers can have share in that?
Held, As per S.14 Widow have full possession. SC held, that NO because Succession Act enacted in 1956 does not allow that. Though S.14 allows possession but they should have some title to it and in the present case they have no title.
CWT v Chandrasen 1986 (IMP)
Facts-.A family comprised the father Rangilal, his son (Chandrasen) and grandsons. After effecting a partial partition in 1961, both the father and the son carried on their respective businesses. On the death of the father in 1965, the son inherited his separate properties and received the undivided share, by survivorship. The son, Chander Sen, was now the Karta of his family comprising two sons. In the capacity of the Karta, he filed a return of his net wealth and showed the joint family income, including the one that he had got by survivorship, but did not include in it, the property that he had inherited from his father, on the ground that it was his separate property. The wealth tax officer did not accept his contention and maintained that the property received from the father, either by survivorship or through inheritance, was coparcenary property in the hands of the son.
Issue-Whether, income or asset which a son inherits from his father when separated by partition should be assessed as income of HUF of son or his individual income?
Held, The answer to this question would depend upon whether the amount standing to the credit of late Rangi Lal was inherited, after his death, by Chander Sen in his individual capacity or as a Karta of the assessee joint family consisting of himself and his sons. The amount in question represented the capital allotted to Rangi Lal on partial partition and accumulated profits earned by him as his share in the firm. While Rangi Lal was alive this amount could not be said to belong to any JHF and qua Chander Sen and his sons, it was the separate property of Rangi Lal. On Rangi Lal’s death the amount passed on to his son, Chander Sen, by inheritance. The High Court was of the opinion that under the Hindu Law when a son inherited separate and self-acquired property of his father, it assumed the character of JHF property in his hands qua the members of his own family. But the High Court found that this principle has been modified by Section 8 of the HSA, 1956. S.8 of the said Act provides, inter alia, that the property(separate) of a male Hindu dying intestate devolved according to the provisions of that Chapter in the Act and indicates further that it will devolve first upon the heirs being the relatives specified in class I of the Schedule. Heirs in the Schedule Class I includes and provides firstly son and thereafter daughter, widow and others but is does not include grandson when son is alive. It is not necessary in view of the facts of this case to deal with other clauses indicated in Section 8 or other heirs mentioned in the Schedule. In this case as the High Court noted that the son, Chander Sen was the only heir and therefore the property was to pass to him only. There is no dispute among the commentators on Hindu Law nor in the decisions of the Court that under the Hindu Law as it is, the son would inherit the same as karta of his own family. But the question, is, what is the effect of S.8 of the HSA 1956? In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by S.8 he takes it as karta of his own undivided family.
It would be difficult to hold that a property which devolved on a Hindu under S.8 of Succession would be HUF in his own son as that would amount to creating two classes among heirs. However, heirs in class I of Schedule under Section 8 of Act included widow, mother, daughter of predeceased son, etc. Thus, express words of Section 8 of Act could not be ignored and must prevail. Hence, sums standing to credit of Deceased father belongs to the son in his individual capacity and not to joint Hindu family, interest was an allowable deduction in respect of income of family from business.
4 major reasons-
Express language of the Provision and intentional omission of grandson from Class 1 heirs.
Would amount to creating two classes among heirs mentioned in class 1 of the schedule as while daughter would inherit it as her absolute property but son as a coparcenery property. (S.14)
The Preamble speaks to amend the law of intestate succession which means old law (which provided that whatever a son inherits from his father is in the nature of coparcenery property w.r.t to his sons) is no longer applicable
S.19 says that of two or more heirs succeed together the property of an intestate, they will take the property per-capita and not per stripes; and as tenants in common and not joint tenants. Tenants in common means ascertained share.
Inheritance after this case in case self acquired property of Father is now separate property. Old law was that whatever son inherits from his father is his coparcenery property. However under S.8 of HSA, son’s son(grandson) has not been included in the class 1 heirs which shows that separate property of intestate is not meant to be passed as a coparcenery property. Because if it were coparcenery property his grandson would not have been disqualified from that.
Bhanwar Singh v Puran AIR 2008
Facts, Bhima was Karta of a HuF and he dies in 1972. He had one son Sant Ram and 3 daughters but all the property in his disposition was his self-acquired/separate property. After death of Bhima, a partition was done between the son and the daughters. The son Sant Ram mortgaged the property of his share which was later challenged by his son Bhanwar Singh who was born in 1977.
Held, Going by S.4,6,8,19 it was held that since the property devolved was in the nature of separate property and he was absolute owner and he can alienate or dispense with it as per his wishes. Section 8 lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-I heirs but a grandson, so long as father is alive, has not been included. S.19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stripes, as also tenants-in-common and not as joint tenants. Indisputably, Bhima left behind Sant Ram and three daughters. In terms of S.8 of the Act, therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4 share in the property. Apart from the legal position, factually the same was also reflected in the record of rights. A partition had taken place amongst the heirs of Bhima. Furthermore, in terms of S.19 of the Act, as Sant Ram and his sisters became tenants in common and took the properties devolved upon them per capita and not per stripes, each one of them was entitled to alienate their share, particularly when different properties were allotted in their favour.
CIT v M Karthikeyan 1994 Supp 2 SCC 112
Balwant Kaur v Chanan Singh AIR 2000 SC 1908
Lehja Bai v Sewant Bai 2009 6 SCC 800
Dwarka Prasad v Nirmala 2010 2 SCC 107
Rule 3 and 4 of S.10-is to be read with S.19-If two or more succeed to the property of intestate,
X-a male Hindu governed by Mitakshara law dies in the year 2017 leaving behind separate properties worth 20 crores and joint family properties worth 90 crores and leaving behind his widow, 2 sons-S1, S2, two daughters-D1 and D2 and 2 brothers BR1 and BR2. Ascertain the share of each. What will be your answer if X died in 2003? (Ans-In case of X dying in 2017, all his class 1 heirs receiving 10 crores each which his brothers share will be 30 crore each); (Had X died in 2003, W=9+4 crores; S1=9+4 crores; S2=9+4 crores; D1=1.5+4 crores; D2=1.5+4 crores) PLEASE CONFIRM
X a male Hindu governed by Mitakshara law died in 2018, leaving behind his father, mother, 2 sons, son’s wife SW and son’s Son SS and unmarried sister and unmarried daughter. (IMPORTANT) (Ans-F=1/4; M=1/4+1/20; Sister=1/4; S(unmarried)=1/20; D=1/20; S(married)=1/60; SW=1/60; SS=1/60) PLEASE CONFIRM
A person X dies leaving behind his father, mother, brother, 2 sisters, two daughters, 3 sons of whom 2 are married having a son and a daughter each. (Ans-F=1/6; M=1/6+1/36; B=1/6; Sis1=1/6; Sis2=1/6; S1=1/44; S2=1/144; S3=1/36; D1=1/36; D2=1/36; S1W=1/144; S2W=1/144; S1S=1/144; S1D=1/144; S2S=1/144; S2D=1/144) PLEASE CONFIRM
S.14 HSA (IMPORTANT)
Hindu Females had right to property in ancient times but she gradually lost it due to patriarchy. The 1937 Act limited the Right to survivorship and granted limited estate to widows. She could alienate it but only in cases of extreme necessity or benefit of estate.
Limited Estate-Person has possession and enjoyment but cannot alienate it
Vested interest-An interest is said to be vested when there is immediate right of present enjoyment or present right for future enjoyment. Person does not have possession of property. For example-vested interest in unborn person.
Life Interest-No vested interest; gets extinguished at the death of the holder
2 essential conditions-
Possession (could be actual or constructive)
Concept of Stridhan is a very old concept present in most ancient civilizations such as Romans, Persians, Egyptians, Chinese and Muslims however unlike the Hindu concept of Stridhan.
Two kinds of female property-
Definition of Stridhan
According to Smritis
According to Digests and commentaries
According to Judicial decisions
According to Smritis-
Adhyagani- gifts received at the time of marriage
Adhyavahanikam- gifts received during the bridal procession
Pritidattam and Padavandaika- gifts received out of love and affection and gifts received while touching the feet of elders
Vishnusmriti- added gifts made by sons and gifts received at the time of remarriage of Husband
According to Commentaries and digests-
Yagnavalkyas- Gifts given by father, mother, husband, brother, etc before nuptial fire, at the time of husband’s remarriage and ‘Aadhya’ is denominated as Stridhan.
What is Aadhya?
The property received in inheritance, partition, purchase, seizure, and finding
According to Katyayana, earnings received through her arts and learning, skill etc during her unmarried status. Whatever gift she received during her marriage and widowhood.
Dayabhaga-That alone is stridhan which she has power to give, sell or use independently of her husband’s control applying it nearly exclusively to the kinds of the women’s property enumerated in the Smriti Texts.
Gifts under different heads-
Saudaika-her absolute property
Non-saudaika-can alienate but with the consent of husband
According to Judicial Decisions-
Vinod Kumar Sethi v State of Punjab 1982 (CRIMINAL BREACH OF TRUST)
Facts-Veena Rani got married to Vinod Kumar Sethi in 1979, according to Hindu Vedic rites. The marriage did not subsist and in 1980, Veena Rani respondent addressed an application to the Senior Superintendent of Police, Bhatinda alleging that at the time of her marriage she had received substantial presents of ornaments, valuable clothes, furniture and other household articles besides Rs. 21000 from her parents and relations as also from her husband and mother-in-law as dowry and in consideration of the marriage. She claimed that all these items of property over which she had absolute control had become her Stridhana. It was further stated that as a dutiful wife and as daughter-in-law she reposed full faith in her husband and her parents-in-law and entrusted all the properties aforesaid to them. It was then alleged that after the marriage, all the three petitioners started maltreating her for extracting more dowry and when these demands were not satisfied she was expelled from the house deprived of all the articles of her dowry around January 1981. Thereafter she made demands for the return of the aforesaid property which allegedly had been entrusted to the petitioners but refused to do so. On these facts it is alleged that the three petitioners in conspiracy with each other were misappropriating her dowry and converting it to their own use in breach of the entrustment made to them. On the basis of the application aforesaid, a FIR was registered under S. 406, IPC and for other offences. According to the petitioners during the course of the investigation of the aforesaid FIR the three petitioners were arrested on the in July 1981 and locked up in the Police Station tortured to the maximum extent and the respondent with the help of the police extracted Rs. 50,000 which were given to the police. The party was also handed over gold weighing 30 tolas. After investigation, challan was filed in the Court of the Judicial Magistrate, Bhatinda, and the petitioners then preferred the petition seeking the quashing of the whole proceedings as a blatant abuse of the process of the Court.
Issue-Whether dowry, as commonly understood, and the traditional presents given at the time of the marriage is Stridhana of the bride? Do the bonds of matrimony inhibit a prosecution for breach of trust betwixt the spouses inter-se, and in particular with regard to the wife’s dowry?
Held-It seems untenable and indeed odd in the extreme to contend that in the late twentieth century, a Hindu wife is not capable of holding any property separately from her husband. Once it is held that a Hindu wife can own property in her own right, then it is purely a question of fact whether the dowry or the traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone or jointly to the couple. Once it is found as a matter fact that these articles of dowry were so given to her individually and in her own right, then I am unable to see how the mere factum of marriage would alter any such property right and divest her of ownership either totally or partially. Manu enumerates six kinds of Stridhana:
Gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nuptial (AADHYAGNI)
Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her husband (AADHYAVAAHANIKAM)
Gifts made in token of love, that is says Katyayana, those made through affection by her father-in-law and mother-in-law (PRITIDATTA), and
Those made at the time of her making obeisance at the feet of elders (PADAVANDAIKA).
Gifts made by father.
Gifts made by the mother.
Gifts made by a brother.
All the commentators are agreed that the above is not an exhaustive enumeration of stridhana. To the above list Vishnu adds-
Gifts made by a husband to his wife on supersession, that is, on the occasion of his taking another wife (ADHIPEDANIKA).
Gifts, subsequent, ie those made after marriage by her husband’s relations or her parent’s relations (ANWADHAYAKA)
SHULKA, or marriage-fee, a term which is used in different senses in different schools.
Gifts from sons and relations.
It is manifest from the well-settled rule that Stridhana cannot be attached for the debts of her husband. Equally well-acknowledged is it that the husband has no right of alienation to that which is the Stridhana of his wife. These facets highlight the clear-cut recognition by the oldest treatises of Hindu law with regard to individual ownership of her separate property by a Hindu wife. It is, therefore, wholly idle to contended today that articles of dowry and traditional presents given at the time of the wedding cannot be the individual property of a Hindu wife. Once she owns property exclusively, she would continue to hold and own it as such despite marriage and coverture and the factum of entering the matrimonial home.
The dowry and the traditional presents given to a bride in a Hindu wedding may usually be put in three categories as under-
Property intended for exclusive use of the bride, eg. her personal jewellery and wearing apparel, etc.
Articles of dowry which may be for common use and enjoyment in the matrimonial home;
Articles given as presents to the husband or the parents-in law and other members of his family.
Obviously as regards the third category those presents and gifts intended for the husband or his relations after delivery would pass into their ownership and may well cease to be the property of the bride. This would be so also as the traditional presents etc given by the husband and parents-in-law to the bride at or about the time of wedding would pass into her ownership. Similarly as regards the first category of articles meant for the exclusive use of the bride, she would retain her pristine ownership therein irrespective of her entry and presence in the matrimonial home or that of her parents-in-law. As regards category (ii) it is purely a question of fact whether the articles of common use and enjoyment were given and intended to be the exclusive property of the bride or otherwise. I am inclined to the view that the normal presumption would be that the ownership in such like article would vest in the Hindu wife unless it can be clearly established to the contrary that these were given expressly for the joint-ownership of the couple. Dowry of this nature would be commonly used and enjoyed with the implied leave and license of the wife. Mere joint enjoyment thereof does not necessarily divest a Hindu wife of her exclusive ownership or to make it joint property by the mere factum of such use. This seems to be so on general principles of law. An individual owner of property, apart from a Hindu wife, may well allow the use of the property jointly by others. But that by itself cannot divest him of the ownership or make a licensee a joint owner forthwith. I, therefore, see no reason how a Hindu wife is to be treated invidiously and on a different plane from any other owner of property in this context. The break down of the marriage or the splitting up of the matrimonial home would inevitably involve the revocation of such leave and licence by the wife thus resuscitating her right to exclusive possession. The plain words of the S.27 of HSA refer to property ‘which may belong jointly to both the husband and the wife’. It nowhere says that all that all the wife’s property belongs jointly to the couple or that Stridhana is abolished and she cannot be the exclusive owner thereof. To conclude on this aspect, I find nothing in the codification of Hindu Law which in any way abolishes the concept of Stridhana or the right of a Hindu wife to exclusive individual ownership. Indeed the resultant effect of such enactments is to put the Hindu female wholly at par with the Hindu male, if not at a higher pedestal with regard to individual ownership of the property. The necessary result, therefore, is that the same set of facts allegedly constituting an offence under the Dowry Prohibition Act 1961 cannot possibly come within the ambit of S.406 IPC. This would be plainly a contradiction in terms. As pointed out above, one offence is rested on property forming the consideration for the marriage as such, whilst the other visualises the entrustment and passing of dominion over property individually owned. The offences under the Dowry Prohibition Act 1961 and under S.406 of IPC (Breach of Trust) thus cannot stand together on the same set of facts. What indeed is the true legal relationship of the husband and wife qua the property individually owned by each within the four walls of the matrimonial home? Does the wife stand entrusted with the property belonging to her husband individually and vice versa the husband stands entrusted with such property vesting in the exclusive ownership of the wife? It is the answer to this question which in essence would determine the attraction and applicability of S.405, IPC betwixt the spouses.
Purported allegations of breach of trust between husband and wife so long as conjugal relationship lasted and matrimonial home subsisted could not constitute an offence under S.406 of IPC subject to any special written agreement. Equally, as against close relations of husband, no facile presumption of entrustment and dominion over dowry could be raised prima facie and this inevitably had to be by a subsequent conscious act of volition which must be specifically alleged and conclusively established by proof.
Devolution of Stridhan according to Smritis-
In the following order of preference-
On unmarried daughters
Then on that married daughter who is need or not settled properly
Daughter who is settled
Pratibha Rani v Suraj Kumar 1985 (Wife initiated criminal proceedings for reclaiming her stridhan-criminal breach of trust)
Facts-Criminal Breach of trust-S.405 and S.406 of Indian Penal Code, 1860 and S.482 of CrPC 1973. Pratibha was married to Suraj. Pratibha’s parent in the marriage gave dowry worth Rs.60000 inclusive of gold ornaments clothes and other things. Aforesaid articles were never given by Suraj to the complainant and the same was illegally and malafidely retained by Suraj in order to make a wrongful gain for themselves.
Held-If either husband or wife commit a breach of criminal law then he or she will be liable for the consequences of such breach. ‘Stridhan’ is a property which always remains with in the possession wife and if husband or any other member of her family fails to hand over ‘stridhan’ to the wife they will be liable for offence of criminal breach of trust under S.405 and S.406. Evidence showed that there was prima facie there was a case under S.406 and allegations were both specific and unambiguous and thus appellant cannot be denied the right to prove her case by preempting it. Held, Order of High Court set aide.
S.14(1)-Property of Hindu female to be her absolute property and not a limited owner
S.14 Explanation-Property includes those which inherited…stridhan. Concept has become more wider
Find out the differences between S.14(1) and S.14(2)-Tulasamma v Sesha Reddy
Find out the cases which fall under S.14(2)-Sharad Subramanyan and Sadhu Singh case
Cases on S.14 HSA
Gumalapura v Setra Veeravva 1958 (Possession can be Actual, Constructive and Legal)
That the words ‘possessed of’ mean the state of owning or having in one’s hand or power. Possession need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognized by law.
Mangal Singh v Rattno 1967 (Possession can be Actual, Constructive and Legal)
That the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. When, as in the present case the property is reconvened to the widow, she does acquire a title to the property in view of the fact that the property has been conveyed to her and the right that she acquires by such a conveyance is a limited right which was possessed by the alienee and which had originally been conveyed to that alienee by the widow herself.
Jagat Singh v Teja Singh 1970 (RECONVEYANCE)
Facts, On the death of Dalipa, his widow Uttam Devi inherited her husband’s estate in the year 1938. On 18 February 1938, she gifted the entire estate to Daulat Singh and Charan Singh in equal shares. This gift was challenged on 29 June 1939, by reversioners under Customary Law to the effect that the gift will not affect their reversionary rights which was decreed. Some 20 years thereafter, in 1959, Daulat Singh, one of the donees, made a gift back to the widow. In June 1959 the widow sold this property to Hazara Singh and Teja Singh. In October 1959 the widow died. In March 1961 Jagat Singh claiming to be the next reversioners and heirs of Dalipa, filed a suit for possession of the entire land which formed the subject-matter of 1938 gift.
Issue-what is the effect of a reconveyance of the aforesaid alienation to the widow sometime after the enforcement of the Act?
Held, when an alienee from a widow or other alienor with restricted power comes to know, either because he is threatened with litigation or a suit is actually filed or otherwise, of the defect or the lacuna in the title of his alienor, there is nothing either in the Hindu Law or the Customary Law or any other law which stands in his way of re-conveying the property back to the alienor and thus restoring the position of the property as it existed prior to the alienation which is being challenged. In other words, the alienation should be treated as nonexistent so far as the body of the reversioners are concerned.
The second point that may be considered in this connection is the effect of the declaratory decree obtained by the reversioners, that is, if the reconveyance is made after the decree had been obtained by the reversioner, would that make any difference? It is now well settled and In fact the nature of the decree that can be obtained by the reversioners makes it quite clear that such a decree does not create any vested right in the presumptive reversioner or reversioners. However, as she has come to possess this limited right after the enforcement of the Act, Sub-section (1) of S.14 will become applicable to her and this right will get enlarged into an absolute estate. The gift deed, by which the property was conveyed by Daulat Singh to the widow in June 1959, does not prescribes any restricted estate. Daulat Singh, in the deed, makes it absolutely clear that what he intends to transfer is all the bundle of rights that he possessed in the property. This bundle of rights could be nothing more or less than the bundle of rights that were conveyed to him by the widow in the year 1938. Thus the gift deed by which the widow came to acquire a right or title in the property does not, in any manner, prescribe a restricted estate in such property. Sub-section (2) is, therefore, altogether inapplicable. S.14(1) would apply and enlarge the estate reconveyed to the widow into an absolute owner, even though the title or the right to possession accrued only after the Act came into force.
Jagannathan Pillai v K Pillai 1987 (RECONVEYANCE DEED)
Facts-A Hindu widow gained possession of a property after death of her husband prior to coming of HSA Act and therefore in nature of a limited owner. She lost the possession due to a sale deed under legal necessity. But the property was re-transferred to her after HSA 1956.
Issue-Whether after this reconveyance deed she will become a full and absolute owner?
Held-To get the benefit of S.14(1) she should have been in possession (actual and constructive) of the property. It doesn’t matter when she acquired the property. Even if the property in question was possessed by her in lieu of her right to maintenance as against the estate of her deceased husband or the joint family property, she would be entitled to become a full or absolute owner having regard to the fact that the origin of her right was traceable to the right against her husband’s estate. The expression ‘any property possessed by a Hindu female whether acquired before or after the commencement of the Act’ on an analysis yields to the following interpretation:
Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.
Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as a limited owner.
In other words, all that has to be shown by her is that she had acquired the property and that she was ‘possessed’ of the property at the point of time when her title was called into question. When she bought the property from the alienee to whom she had sold the property prior to the enforcement of the Act, she ‘acquired’ the property within the meaning of the explanation to S.14(1) of the Act. The right that the original alienee had to hold the property as owner (subject to his right being questioned by the reversioner on the death of the female Hindu from whom he had purchased the property) was restored to her when she got back the right that she had parted with. Whatever she had lost ‘earlier’, was ‘now’ regained by her by virtue of the transaction. The status-quo-ante was restored in respect of her interest in the said property.
Different between restricted and limited Interest-restricted estate is wider than limited estate
Difference between S.14(1) and S.14(2)
In S.14(1) she already had an antecedent right. Its retrospective in operation
In S.14(2) the right has been granted subsequently. Its prospective in operation
Tulasamma v Sesha Reddy AIR 1977 (talks about the problem in S.14) IMPORTANT
Facts, The husband of Tulasamma had died in the year 1931 in a state of jointness with his step-brother, leaving Tulasamma as his widow. Tulasamma approached the court in the year 1944 claiming maintenance against the step-brother of her husband. Her claim was decreed. She put the decree in execution and at the stage of execution, on 30/7/1949, a compromise was entered into. Under the compromise, Tulasamma was allotted the properties but she was to enjoy only a limited interest therein, with no power of alienation. Tulasamma alienated the property, a portion by way of lease and another portion by way of sale after 1956. These transactions were challenged by Sesha Reddi on the ground that Tulasamma had only a restricted estate under the terms of the compromise and her interest could not be enlarged into an absolute estate by virtue of S.14(1) of the Act in view of S.14(2) of the Act. The alienees from Tulasamma pleaded that the estate Tulasamma possessed as on the date of the coming into force of the Act had ripened into an absolute estate in view of S.14(1) of the HSA and S.14(2) cannot be invoked to restrict her right.
Issue-Whether it is Sub-section (1) or Sub-section (2) of S.14 of the HSA 1956 applies where property is given to a Hindu female in lieu of maintenance under an instrument which in so many terms restricts the nature of the interest given to her in the property?
Held, JHF widow is entitled to maintenances out of her deceased husband’s estate irrespective whether that estate may be in hands of male issue or in hands of coparceners. JHF estate in which deceased husband had share is liable for maintenance of such widow and for purpose of maintenance such widow can follow JHF property into hands of anyone who takes as volunteer or with notice of her having set to claim for maintenance. When specific property is allotted to widow in lieu of her claim for maintenance such allotment would be in satisfaction of her jus ad rem. Where property is allotted to widow under an instrument, decree, Order or award prescribing restricted estate for her in property, S.14 (2) of Act of 1956 would have no application but would be governed by S.14 (1) of Act of 1956.
S.14 is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in Sub-section (1). It cannot be interpreted in a manner which would rob Sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by Sub-section (1). If language of Sub-section (2) is to be interpreted widely, the Explanation to Sub-section (1) which includes within the scope of that Sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision pre-scribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting Sub-section (2). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by Sub-section (1) of S.14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Shashtric law, to abridge the stringent provisions against propriety rights which were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent and absolute owner of property.
Sub-section (2) must, therefore, be read in the context of Sub-section (1) so as to leave as large a scope for operation as possible to Sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. This constructional approach finds support in the decision in Badri Prasad’s case (supra) where this Court observed that Sub-section (2) “can come into operation only if acquisition in any of the methods enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property”. This Court culled out the principles arising thereunder in the following words:
That the provisions of S.14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times;
It is manifestly clear that Sub-section (2) of S.14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this Court in Badriprashad’s case: 2SCR95
That the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession;
That Sub-section (2) of S.14 is merely a proviso to Sub-section (1) of S.14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision: 3SCR261
It was pointed out that S.14(2) had carved out a completely separate field and before it could apply, the following three conditions must be satisfied:
That the property must have been acquired by way of gift, will, instrument decree, order of the Court or by an award;
That any of these documents executed in favour of a Hindu female must prescribe a restricted estate in such property; and
That the instrument must create or confer a new right title or interest on the Hindu female and not merely recognise or give effect to a pre-existing right which the female Hindu already possessed: 3SCR261
Thota Sesharathamma v Thota Manikyamma 1991 [S.14(1)]
Facts-It is a case under which the legatee had obtained under a will a limited estate known as widow’s estate, prior to the HSA came into force.
Held, The stranger legatee cannot take shelter under subsequent change of law to enlarge the operation of restrictive covenant to claim absolute ownership in the property bequeathed to her. But socio-economic amelioration under the Act engulfs an instrument under the sweep of S.14(1) thereof; it extinguishes the pre-existing limited estate or restrictive condition and confers absolute and full ownership of the property possessed by a Hindu female as on the date when the Act had come into force, namely, June 17, 1956. Accordingly, this Court held that her right acquired under the award was in recognition of her pre-existing right to maintenance and that, therefore, it had blossomed into an absolute right Under S.14(1) of the Act.
Masilamani Mudaliar v The Idol of Sri Swaminathaswami Thirukoli 1996
Facts-Somasundaram dies in 1950 after having executed a will and bestowing life estate on his wife Sellathachi. As per the will after the death of his wife the benefit of his estate was to go to the village temple. The wife alienated the property in 1970 which was challenged.
Issue-Whether Sellathachi, the widow of Somasundaram Pillai, had become the absolute owner, by operation of S.14(1) of the HSA Act?
Held-S.14(1) recognises this right of widows and by operation of provisions of S.14(1) right of maintenance is pre-existing right and absolute one.
Sharad Subramanyan v Soumi Mazumdar 2006 [S.14(2)] (Important As They Have Talked About All The Precedents-para 11)
Facts-Kamal entered into an agreement in 1989 with Sharad by which Kamal agreed to lease the whole of terrace of the Suit Property for 21 years to enable the appellant to construct at his cost an additional floor. In 1991 Kamal executed his last Will under which he had given all his movable properties to his wife Reba Mitra, but she was given only a life interest in the Suit Property. The Will further provided that on the death of the said Reba Mitra, the Executors Sharad would execute the Will and realise and collect the rents, issues and profits arising out of the Suit Property and distribute the same in the manner as prescribed in the Will. Kamal died in 1991 leaving behind his wife, Reba Mitra, as his sole heir. In 1992 Reba Mitra made dispositions of the said property by her Will in favour of the appellant and died in 1998. The alienation was thus challenged? By reversioner?
Held, S.30 of HSA Act empowers a Hindu possessed of any property to execute a Will; and confer a grant in favour of another either absolutely or to a limited extent; even to the extent of depriving his natural heirs from enjoying the estate left by him. That there was no material on record from which it could be concluded that the disposition of life estate in favour of Reba Mitra in the Will of her husband, Kamal Kumar Mitra, was in lieu of or in recognition of her right of maintenance. Consequently, we agree with the finding of the High Court that Reba Mitra had only a limited right, namely, life interest in the Suit Property. Thus, she could not have created a long-term lease as she has purportedly done.
Sadhu Singh v Gurdwara Sahib SC 2006 [S.14(2)]
Facts, One Ralla Singh held some self-acquired. Isher Kaur was his wife. They had no children. In 1968, Ralla Singh executed a will died in 1977. His widow Isher Kaur purported to gift the property in favour of a Gurdwara. The appellant filed a suit challenging the deed of gift. He also prayed for recovery of possession after the death of Isher Kaur. The appellant claimed that under the will of Ralla Singh, Isher Kaur took only a life estate and the properties were to vest in the appellant and his brother.
Held-When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17.6.1956 leaving his widow as his sole heir, she gets the property as class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate. There is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in S.14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking S.14(1) of the Act. Invocation of S.14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make S.30 and S.14(2) redundant or otiose. It will also make redundant, the expression ‘property possessed by a female Hindu’ occurring in S.14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Here, Ralla Singh has validly disposed of his separate property by a Will. This is permissible as he has the capacity to so dispose it of. He is also enabled to do so by S.30 of the HSA. He is thus entitled to interfere with the succession that would have ensued if he had died intestate.
S.15 GENERAL RULES OF SUCCESSION IN CASE OF FEMALE HINDUS. (SEPARATE PROPERTY)-IMP
S.15-General rules of succession in the case of female Hindus.
The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,
firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
secondly, upon the heirs of the husband;
thirdly, upon the mother and father;
fourthly, upon the heirs of the father; and
lastly, upon the heirs of the mother.
Notwithstanding anything contained in sub-section (1),
any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
In case of Judicial Separation, if wife dies, Husband will not be excluded.
18-22 of the module-
SR Srinivasa v S. Padmavathamma (2010) (ON S.15)
Facts-Sivaramaiah and Puttathayamma were husband and wife. Sivaramaiah died in 1950 and Puttathayamma died in 1979. She had four children. Lalithamma (daughter) who died in 1990, Subbaramaiah (son) who died issueless in 1973, Kamalamma (daughter) died issueless in 1998 and Indiramma also died issueless in 1985. Subbaramaiah died in 1973, Puttathayamma being his class 1 heir inherited the suit property and became its absolute owner. When Puttathayamma died in 1979, Lalithamma, Kamalamma and Indiramma inherited her property but whole possession remained with Indiramma. The dispute about the property arose soon after the death of Indiramma. Since Lalithamma and Kamalamma were residing outside, they did not come to know about the death of their sister, Indiramma. Defendant No. 1, Padmavathamma, claiming to be close relative of deceased took over all properties of Indiramma including, her house, a lot of movable properties such as gold and silver jewellery and other articles of considerable value and lakes of rupees. On learning about the death of their sister, appellants and Kamalamma came to Mysore and demanded that Padmavathamma should hand over the possession of the house and moveable properties. He, however, refused to do so asserting that he was the absolute owner of the entire property. So a suit was filed but Lalithamma also died during its pendency and was replaced by her legal heir S. Srinivasa. Defendant Padmavathamma claimed that Puttathayamma had executed a will in favour of Indiramma and consequently, there was no intestate succession. Testamentary succession devolved on late Indiramma. He also claimed that during the life time of Indiramma, her sister did not care to even look after her but moment she died, they have claimed to be heirs of her estate. It is also pleaded him that Indiramma was the second wife of one Chalapati Rao, who pre-deceased her. Although Chalapati Rao did not beget any children with Indiramma, he died leaving four sons and two daughters from his first wife. According to the first defendant, the legal heirs of Chalapati Rao would have preference over the appellants and defendant No. 4. Therefore, under any circumstances, no relief could be granted to them.
Held-The High Court held that since the property had been acquired by Indiramma through Will, Section 15(2) of the Act would not be applicable and that may be, the children of deceased husband of Indiramma being step sons, are not entitled to succession under S.15(1)(a), but however as heirs of the husband, under S.15(1)(b) of S.15, they will be entitled to succeed to the estate. Object of S.15(2) Hindu Succession Act is to ensure that inherited property of an issueless female Hindu dying intestate goes back to the source. It was enacted to prevent inherited property falling into the hands of strangers. S.15(2) carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under S.15(2)(a). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under S.15(2)(b). Clearly if the Will dated 18.61974 is held not to be genuine, the property would be inherited by the appellants under Section 15(2) of the Act. There is no dispute on this proposition of law by either side. The only question that needs determination in this case is as to whether the Will executed by Puttathayamma has been proved to be duly executed and the same was genuine? Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. And in the present case, the will has not been validly proved under S.63 of Succession Act with proper attestation and witnesses. In our opinion, the High Court also committed a serious error by totally disregarding the suspicious circumstances surrounding the execution of the Will. Since there were suspicious circumstances, the registration of the Will by itself was not sufficient to remove the suspicion.
Bhagat Ram v Teja Singh 2002
Facts-One ‘A’ was owner of certain land in Pakistan. He died and his widow ‘W’ became owner of that property. W had two daughters, ‘D1’ and ‘D2’. After death of ‘W’ her property was inherited by ‘D1’ and ‘D2’. ‘D1’ died without any children. The High Court held that property held by ‘D1’ on her death devolved on her deceased husband’s brother. Supreme did not agree with this and held that If property held by a female was inherited from her father or mother, in absence of any son or daughter of deceased including children of any pre-deceased son or daughter, it would only devolve upon heirs of the father. Admittedly D1 inherited the property in question from her mother. If property held by a female was inherited from her father or mother, in absence of any son or daughter of the deceased including children of any pre-deceased son or daughter, it would only devolve upon heirs of the father and, in this case, her sister, Smt. I was the only legal heir of her father. Deceased, Smt. S, admittedly inherited the property in question from her mother. It is not necessary that such inheritance should have been after the commencement of the Act. The intent of the legislature is clear that the property, if originally belonged to the parents of the deceased female, should go to the legal heirs of the father. So also under clause (b) of sub-section (2) of section 15, the property inherited by a female Hindu from her husband or her father-in-law, shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. Court does not think that the fact that a female Hindu originally had a limited right and later, acquired the full right, in any way, would alter the rules of succession given in sub-section (2) of section 15.
Omprakash v Radhacharan SC 2009 (Important but controversial)
Facts-One Narayani Devi was married to one Dindayal Sharma in the year 1955. She became widow within three months of her marriage. Concededly, she was driven out of her matrimonial home immediately after the death of her husband. After that she never stayed in her matrimonial home. At her parental home, she was given education. She got an employment. She died intestate in 1996. She had various bank accounts; she left a huge sum also in her provident fund account. Appellants are her brothers, while Respondents are the sons of sister of the Narayani’s husband. The appellant contended that in a case of this nature where the husband of the deceased or her in-laws had not made any contribution towards her education or had not lent any support during her life time, Sub-section (2) of Section 15 of the Act should be held to be applicable. It was urged that the Parliamentary intent as contained in Clause (a) of Sub-section (2) of Section 15 of the Act should be the guiding factor for interpreting the said provision.
Held-There is no doubt or dispute that the properties of the deceased were self-acquired ones and were not inherited from her parents’ side. In that view of the matter, we are of the opinion that Sub-section (1) of S.15 of the Act would apply and not the Sub-section (2) thereof. This is a hard case. Narayani during her life time did not visit her in-laws’ place. We will presume that the appellants contentions that she had not been lent any support from her husband’s family is correct and all support had come from her parents but then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible. It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.
S.18-29 HSA-General Rules relating to Succession
S.18-Full blood preferred to half blood.
Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.
S.19-Mode of succession of two or more heirs.
If two or more heirs succeed together to the property of an intestate, they shall take the property,
save as otherwise expressly provided in this Act, per capita and not per stirpes; and
as tenants-in-common and not as joint tenants.
S.20-Right of child in womb.
A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.
S.21-Presumption in cases of simultaneous deaths.
Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.
Joint Family members who are going to affect the share
S.184 of the TP Act of England
Illustration-If both father and son died then father will be presumed to have died first. It is important because if father died first, the son will get the father’s share but if the son dies first then father will not get share in that.
S.22-Preferential right to acquire property in certain cases-
Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation-In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.
This section is similar to Pre-emption clause-
If one class 1 heir wants to alienate his share of immovable property, then class 1 heirs rights will have preferential right over strangers.
S.25-Murderer Disqualified-A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.
This section is based on principle of justice, equity and good-conscience and public policy. Section 25 has to be read with S. 27.
Committed murder or abets a murder of the person whose property he was to inherit.
Example of in furtherance of the succession to which he/she committed or abetted the commission of murder-A reversioner killing a widow. These are properties which he is going to inherit indirectly.
S.26-Convert’s descendants disqualified-Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.
S.27-Succession when heir disqualified-If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before intestate.
Those person cannot claim who are claiming through the person who has murdered.
Vellikannu v R. Singaperumal 2005 SC
Facts-A son murdered his father ‘F’. Hence by the virtue of S.25/27 of HSA, he was disqualified from inheriting his father’s property. However, his wife claimed the properties of his father-in-law through her husband.
Issue-Whether wife of murderer entitled to inherit property of deceased/murdered?
Held-An only son of a father killed his father. By virtue of S.25 read with S.27 he was disqualified from inheriting the property. Therefore son’s wife claimed the entire property being the sole surviving member of the JHF but SC refused saying that in such a case the whole stock while be presumed to be non-existent. They interpreted the word ‘died intestate’ used in S.27 as ‘non-existent’ So if the son was presumed non-existent then his heirs including wife also stand disqualified from inheriting the estate. Decision was justified on the basis of public policy and justice, equity and good conscience. The Privy Council had held that murderer’s stock is not to be regarded as fresh line of decent. S.25 of the HSA 1956 clearly enunciates that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. Therefore, once it is held that a person who has murdered his father or a person from whom he wants to inherit, stands totally disqualified. S.27 of the HSA makes it further clear that if any person is disqualified from inheriting any property under this Act, it shall be deemed as if such person had died before the intestate. That shows that a person who has murdered a person through whom he wants to inherit the property stands disqualified on that account. That means, he will be deemed to have predeceased him. The effect of S.25 read with S.27 of the Hindu Succession Act, 1956 is that a murderer is totally disqualified to succeed to the estate of deceased. The framers of the Act in the objects and reasons have made a reference to the decision of the Privy Council that the murderer is not to be regarded as the stock of a fresh line of descent but should be regarded as non-existent. That means that a person who is guilty of committing the murder cannot be treated to have any relationship whatsoever with deceased’s estate. Therefore, the effect of Sections 25 and 27 of the Hindu Succession Act, 1956 is that the respondent No. 1 cannot inherit any property of his father as he has murdered him on the principle of justice, equity and good conscience and the fresh stock of his line of descent ceased to exist in that case. Once the son is totally disinherited, then his whole stock stands disinherited, ie wife or son. The defendant-respondent No. 1 son himself is totally disqualified by virtue of Sections 25 and 27 of the Hindu Succession Act and as such, the wife can have no better claim in the property of the deceased. When son cannot succeed, then the wife who succeeds to the property through the husband cannot also lay a claim to the property of her father-in-law.
Q. If the Husband kills the wife, whether heirs of husband will be entitled to inherit her property?
Q. If A, B, and C are brothers and C’s son killed B. Whether CS will inherit the property of ‘A’ and ‘C’ after their death?
Answer-If they are claiming the share through the disqualified person, they will not get but if the person claiming are claiming the share in their own right, they will be entitled to get the share.
S.28-Disease, defect, etc not to disqualify-Prior law was Hindu inheritance removal of disabilities Act 1929. Only person who is idiot from birth is disqualified now.
S.29-Failure of heirs-Government will take over the property if there are no qualified heirs left.
A coparcener can make a will of his coparcenery share but he cannot gift it. Why?
Because in case of will after his death, his share will become ascertained but Gift is always between living persons as per S.122 of TOPA.
S.30 has to be read with Part-6 and Schedule 3 of Indian Succession Act 1925
INDIAN SUCCESSION ACT 1925
Not applicable on Muslims
Applies only to Hindus, Christians, Jews and Parsis
Some sections are not applicable to Hindus
Executor-It means a person to whom the execution of the last will of a deceased person is by the testator’s appointment confined.
Will-means 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.
Administrator-a person appointed by a competent authority to administer the estate of a deceased person when there is no executor to execute the will of the deceased if he had not appointed an executor.
Codicil-means the instrument made in relation to a will, and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. It’s an explanation attached to the will. It’s a minor alteration to the provisions of the will
Probate-means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.
S.4-S.56 talks about intestate succession for Christians
S.56-91 talks about testamentary succession of Hindus
Mathai Samuel v Eapen 2013 (IMPORTANT)
Held-3 essential elements of a valid will-
Legal declaration of testators will
Declaration must be with respect to his absolute property
Declaration to be effected only after his death. It means it is revocable before his death
The primary rule of construction of a document is the intention of the executants, which must be found in the words used in the document. The question is not what may be supposed to have been intended, but what has been said. We need to carry on the exercise of construction or interpretation of the document only if the document is ambiguous, or its meaning is uncertain. If the language used in the document is unambiguous and the meaning is clear, evidently, that is what is meant by the executants of the document. Contemporary events and circumstances surrounding the execution of the document are not relevant in such situations.
Procedure relating Testamentary Succession in case of coparcenery property of Hindus-
Part 6-Testamentary Succession (applicable on All except Muslims)
S.57-Application of certain provisions of Part to a class of wills made by Hindus, etc.
S.58-General application of Part
The provisions of this Part shall not apply to testamentary succession to the property of any Muslim nor, save as provided by S.57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jain; nor shall they apply to any will made before the first day of January 1866.
Save as provided in sub-section (1) or by any other law for the time being in force the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession.
CHAPTER II-Of Wills and Codicils
S.59-Person capable of making wills-
Sound mind-S.12 of Indian Contract Act-capable of understanding his acts and its consequences.
Not a minor (Indian majority Act)
Explanation 1-A married woman may dispose by will of any property which she could alienate by her own act during her life. (No longer valid)
Explanation 2-Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
Explanation 3-A person who is ordinarily insane may make a will during interval in which he is of sound mind.
Explanation 4-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.
S.60-Testamentary guardian-A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority. (S.9 of HMGA 1956) It’s also an exception to S.59 which talks about the majority of the person making will.
VOID AND INVALID WILLS
S.61-Will obtained by fraud, coercion or importunity-A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. (misrepresentation and concealment of facts) to be read with S.89, S.124, S.126 and S.127
S.89-Will or bequest void for uncertainty-A will or bequest not expressive of any definite intention is void for uncertainty.
S.124-Bequest contingent upon specified uncertain event, no time being mentioned for its occurrence-Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.
S.126-Bequest upon impossible condition-A bequest upon an impossible condition is void.
S.127-Bequest upon illegal or immoral condition-A bequest upon a condition, the fulfilment of which would be contrary to law or to morality is void.
S.62 has to be read with S.69 and S.70
TYPES OF WILLS-
Mutual/Reciprocal Will-when two testators confers upon each other reciprocal benefits. It becomes irrevocable after death of any one of them.
Joint Will-For disposing the separate or joint property by two persons make a will in single document but in law it contains two documents and if one person dies, it operates as the will of the deceased without awaiting the death of the joint maker of the will.
Conditional Will-If a contrition is attached to the will but the condition should be certain, moral and not illegal
Holograph-If a will is written by the testator himself
After the commencement of the Indian Succession Act 1925, will are now divided into two categories-
Unprivileged will (S.63)-All wills except the privileged Wills are unprivileged wills. S.63 has to be read with S.68 and S.118 of Indian Evidence Act.
Privileged will (S.65)-Any soldier being employed in an expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or any mariner being at sea, may, if he has completed the age of 18 years, dispose of his property by a Will made in the manner provided in S.66. Such Wills are called privileged Wills.
S.63 Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged] or a mariner at sea, shall execute his will according to the following rules-
The testator shall sign or shall affix 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 of the testator, or the signature of the person signing for him, shall 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 to 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 acknowledgment of his signature or mark, or of the signature of such other person; and 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 shall be necessary.
S.66 Mode of making, and rules for executing, privileged wills.-
Privileged wills may be in writing, or may be made by words of mouth.
The execution of privileged wills shall be governed by the following rules-
The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested.
If the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the testator’s directions or that he recognised it as his will.
If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument. (IMP) Illustration please?
If the soldier, [airman] or mariner has written instructions for the preparation of his will, but has died before it could be prepared and executed, such instructions shall be considered to constitute his will.
If the soldier, [airman] or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his will, and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his will, although they may not have been reduced into writing in his presence, nor read over to him.
The soldier, [airman] or mariner may make a will by word of mouth by declaring his intentions before two witnesses present at the same time.
A will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will.
Fraud, Coercion and Undue Influence S.61
Illegal or immoral purpose S.127
S.62 Will may be revoked or altered-A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.
It has to be read with S.69 and S.70
S.69 Revocation of will by testator’s marriage (Involuntary)-Every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
Explanation.–Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property. (S.69 not applicable on Hindus by virtue of S.57)
S.70 Revocation of unprivileged will or codicil (Involuntary)-No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same
Durga Prassad v Ram Charan 1979
Facts-One Mrs. Jog Maya adopted a son Devi Charan. However, relationship between them soured so much that Jog Maya through a will in 1947 expressly excluded Devi Charan form inheriting her properties and also from her funeral. The appellant Durga Prasad on the other hand was looking after the affairs of the lady and doing her work from time to time. It was perhaps in lieu of the services rendered by the appellant that Smt. Jog Maya executed a will in his favour dated July 1947. After death of Jog Maya in 1955, the probate was contested by Devi Charan who denied the execution of the will on the ground that Smt. Jog Maya was not of sound disposing mind when she is said to have executed the will but had been persuaded to do so by undue influence exercised by the Durga Prasad in executing the will. It was also alleged by the respondent Devi Charan that the will was subsequently revoked and that is why it was not found in the house despite every possible search.
Held-HC held in favour of Devi Charan only on the ground that as the will was not found on the death of the testatrix despite every attempt to search for it, a presumption would have to be drawn that the testatrix had revoked the will by destroying it before her death. SC reversed the HC decision and held that there was no evidence to show that Devi Charan succeeded in winning confidence of deceased at any time before her death so as to put her in a mood to leave entire property absolutely to him after her death by revoking will. Moreover, will being registered one and being product of free will of testatrix, there must be strong and cogent reasons for holding that it was revoked. Therefore, Respondent who would be interested in destroying will had an access to house of testatrix, presumption would be that will was either stolen or misplaced by him. The correct legal position may therefore be stated as follows :
That where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not, will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people.
That the presumption is a rebuttable one and can be rebutted by the slightest possible evidence, direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted.
That in view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully.
That where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the act of revoking the will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn.
That in view of the express provision of S.70 of the Act the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will.
When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator, it may well be that the will was misplaced or lost or was stolen by interested persons.
N Chamanlal v Ram Katori 1972
Facts-Ramanand had two sons Chamanlal and Ajodhya Prasad. Ajodhya Prasad and Sonia Devi had a daughter named Makhmali. Makhmali was married to Shanti Prasad. After death of Ajodhya Prasad in 1928, an arbitration award decreed the suit property & a large amount of cash to Sonia Devi absolutely. Makhmali died in 1944 and in 1947, Sonia Devi (70 years old) executed a Will leaving all her property to her brother’s widowed daughter-in-law, Ram Katori, and her daughter, Kiran Lata. They are defendants 1 and 2. Ram Katori was given a life interest in the property and after her death Kiran Lata was to be the absolute owner. In the event of her death without any issue the property was to go to Ram Katori’s husband. Sonia Devi’s brother in law Chamanlal challenged the will and claimed the property. He alleged that Sonia Devi who was an Illiterate Pardanashin lady could not have executed the Will by intelligently understanding the contents thereof.
Issue-Whether the Will was genuine and intelligently executed?
Held-there was intrinsic evidence in the Will itself to show that testator had intelligently followed Will when it was read over to her. After fair copy was prepared and read over to her, it seemed that she changed her mind a bit with regard to disposition of the amount. Instead of balance being deposited, she directed that same may be spent over construction and repair of houses which were dilapidated at time. This change was incorporated in first note above her signature. Therefore, when Will was read over to her, she intelligently understood its contents and directed some change at last moment. Therefore, view of High Court was correct there was really no evidence of any sort of artifice at time of execution of the Will. Will was also registered on the same day and Defendant lived thereafter for about three years. The relations between Sonia Devi and the respondents were so bitter that she was anxious that her property which she had got under the award should not go to them. At the time when she made the Will, she had no issue. Both her son and daughter had died. Her daughter had died in 1944 but she had regard for her son-in-law Shanti Prasad, and this regard has been clearly reflected in the Will. But she has made no disposition in favour of Shanti Prasad also. All her property has been given to her brother’s daughter-in-law and her daughter Kiran Lata. The testator records in the Will that Ram Katori and Kiran Lata had been living with her for a long time and that she had brought up Kiran Lata from her childhood like her own daughter. That accounts for the disposition in their favour. She has also recorded the fact that Kiran Lata’s betrothal with Naresh Chandra was performed by her. Taking it for granted that they will marry soon, she was suggested that either shanti Prasad or Naresh Chandra shall realize the rents of her shop in Bazar Har Saran Das and give the same to Ram Katori during her life time. She has also suggested that if Naresh Chandra should enter the business of shop-keeping the shop should be given to him, though the absolute ownership of the same was to remain with Kiran Lata. She further authorize Kiran Lata, Naresh Chandra and Shanti Prasad to evict the tenants in possession of the shop, if necessary. While she gave her property to Ram Katori and Kiran Lata she requested Shanti Prasad and Naresh Chandra to help in the management because, after all, the dispositions were in favour of two ladies and Shanti Prasad and Naresh Chandra could be relied upon to help in the management and the collection of rents. There is nothing complicated in the Will. It is true that Sonia Devi was illiterate but that does not mean that she was unintelligent. She had raised disputes with her brother-in-law with regard to her share in the family properties and had been able to get her share not as a mere life estate but absolutely. As the Will shows, she has been able to preserve that property without much detriment.
Jaswant Kaur v Amrit Kaur 1977 SC
Facts-G had two wives, W1 and W2. W1 had a daughter W1D1 and W2 had a daughter W2D1 and a son W2S1. W2S1 had two children, a son W2SS and a daughter W2SD. W2SS died in 1968 leaving behind a widow W2SW and three sons. After death of G, W1 had filed for a maintenance suit which was contested by W2SS. While the case was pending, he produced a will contending that by the will, his father had left almost the entire property to him and that the plaintiff W1 was not entitled to any share in the property under the will but was unable to prove its authenticity.
Issue-Whether evidence led by propounder of Will such as to satisfy conscience of Court that Will duly executed by testator?
Held-Explanation of defendant that he found Will by chance while going through papers of grandfather was patently lame and unacceptable. No evidence led as to who drafted Will and typed it and it does not show where it was executed and contains no description whatsoever of extensive properties bequeathed to defendant. Attesting witnesses in cross-examination admitted that they knew nothing about testator’s family or family affairs. Utter improbability of testator accosting strangers for getting Will attested and fundamental contradictions in their evidence render it impossible to hold that they attested Will at instance of testator. Defendant failed to discharge onus of explaining that document which he propounded was last Will and testament of grandfather. Appeal allowed.
Abhay Charan Mazumdar v Raimya Devi AIR 1982 Gau 94 (Sound Mind)
Facts-An octogenarian had a son suffering from life threatening disease and his grandsons were minors. Fearing the death of his son and gradual decay of his hard-earned properties due to the incapacity of his grandsons, he made a will and thereby dispossessing his grandsons from inheriting the property after his death in case his own son predeceases him. His son did not die before him. After his death, the grandson challenged the validity of will on account of unsound mind of their grandfather.
Held-Mere forgetfulness to comprehend some property or to recollect the claims of those excluded, would not seem sufficient to invalidate the will, unless such forgetfulness establishes incapacity such as illusory notions and beliefs. It is essential that no disorder of the mind should poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion should influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound would not have been made. Perversion of moral feeling does not constitute unsoundness of mind. Eccentricity alone does not prevent a man from disposing of his property by will; and the extravagance of the provisions of a will is not necessarily in itself conclusive evidence of unsoundness of mind.
Sridevi Amma v Venkitaparasurama Ayyan (Conditional and contingent wills)
Held-A conditional or contingent will is one which depends for its operation upon the happening of a specified condition or contingency. If the condition fails, the will is inoperative and void thereafter. If a will is conditional only, it will be null on the contingency not happening even though the testator subsequently refers to it as his will and though after his death it be found in his writing desk. In fact such a will can also be revoked either by implication or by express words. Whether or not a writer to be regarded as contingent depends upon the intention of the testator. Courts will not regard a will as conditional or contingent unless the intention of the testator to make it so clearly appears either expressly or by necessary implication from the language of the will as a whole. A will is not made conditional by statements therein which have no reasonable or logical relation to the testator’s property or to the objects of his bounty. A statement in the will of circumstances which merely indicate the necessity or serve as the occasion or inducement for making the ‘will’ will not render it contingent. Where it is doubtful whether the will is contingent upon the occurrence of an event the circumstances under which the will was executed or the language of the instrument may be considered.
Ryali Kameswara Rao v Bindapudi 1962 AP (Soundness of Mind)
Facts-In 1954, one Ramamma, the widow of Seshagiri Rao, died in the house of her sister Chandramathi. Ryali Kameswara Rao, the brother of late Seshagiri Rao filed a suit claiming the lands houses, personal effects, outstanding and deposits that Ramamma possessed of and also for a declaration that the will alleged to have been executed by her on 21-8-1954 is neither genuine, nor valid, that she died intestate. Her sister pleaded that Seshagiri Rao before his death from illness bequeathed all his properties on his wife through a will and therefore his brothers have no right in that property.
Issue-Whether or not the two wills in question are true and genuine?
Held-Seshagiri Rao was childless and was devoted to his wife who appears to have been a lady of some education as, it is stated, she acted as a bench Magistrate for sometime. There is evidence in this case to show that Seshagiri Rao was attached to the children of his wife’s sister. Seshagiri Rao fell ill a few months before his death. It does not appear that he ever wrote to the plaintiff when he was ill, or that the plaintiff ever visited him during his illness. On 26-2-1942 Seshagiri Rao died leaving a will, which was registered on the same day and which is one of the questions in controversy in this appeal. In Barry v Butlin (1838) a passage that has since become a locus classicus, Baron Parke formulated two rules regarding the proof of wills. These two rules are-
That the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator.
The second is, that if a party writes or prepares a will under which he takes a benefit that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.
What those suspicious circumstances are cannot be defined precisely or enumerated exhaustively. They must depend necessarily upon the facts of each case. Though a propounder has the obligation to prove the will in accordance with law and remove all well grounded suspicions, the quantum of proof that can be expected cannot conform to scientific exactitude or mathematical precision. The standard of proof can only be one that will satisfy a normal prudent person. In the present case, the will of Seshagiri Rao was true and genuine will because there is nothing unnatural in the will executed by him and the attestators and scribe who gave evidence regarding his soundness of mind do not having any pecuniary interest. And therefore through the will of her Husband, Ramamma had absolute estate not only in her stridhana properties which already belonged to her but also such of the properties that were devised in her favour by her husband.
Tagore v Togore 1872 9 Bengal 377
The fundamental rule of Will and Gift
Hindu may will or bequeath her property to anyone he likes. He may not only direct who will take the estate but may also direct what quality of estate they will take. However the person who is to take should be alive when gift of bequeath is to take effect and estate given to that person must be an estate recognised by Hindu Law.
Matthew Omen v Suseela Mathew 2006 SC
Facts-‘A’ Father bequeathed his properties to his son by executing a Will.
Issue-Whether scribe of Will can also be attesting witness?
Held-Yes. Though Will in this case is a very short document yet nothing abnormal or unnatural therein. It has also been well proved and signatures of testator is not disputed. And there exists no reason to dislodge the Will just because beneficiary never applied for probate or mutation of his name after death of his father.
S.73 Revival of unprivileged will
No unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.
When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.
Registration of Wills? (IMPORTANT)
Not compulsory but it has to be registered under S.40 and S.41 of the Registration Act 1908
Indian Registration Act 1908
S.17-Documents of which registration is compulsory.
Instruments of gift of immovable property;
Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of 100 and upwards, to or in immovable property;
Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
Leases of immovable property from year to year, or for any term exceeding 1 year, or reserving a yearly rent;
Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
S.18-List of Documents for which registration is optional-
Instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;
Instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
Leases of immovable property for any term not exceeding one year, and leases exempted under section 17;
Instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;
Instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;
All other documents not required by S.17 to be registered.
Why Registration is Important?
S.105-In what case a legacy lapses?
If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator’s property, unless it appears by the will that the testator intended that it should go to some other person.
In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.
The testator bequeaths to B “500 rupees which B owes B”. B dies before the testator; the legacy lapses.
A bequest is made to ‘A’ and his children. A dies before the testator, or happens to be dead when the will is made. The legacy to ‘A’ and his children lapses.
A legacy is given to A, and, in case of his dying before the testator, to B. A dies before the testator. The legacy goes to B.
A sum of money is bequeathed to A for life, and after his death to B. A dies in the lifetime of the testator; B survives the testator. The bequest to B takes effect.
A sum of money is bequeathed to ‘A’ on his completing his eighteenth year, and in case he should die before he completes his eighteenth year, to B. ‘A’ completes his eighteenth year, and dies in the lifetime of the testator. The legacy to A lapses, and the bequest to B does not take effect. (IMP)
The testator and the legatee perished in the same ship-wreck. There is no evidence to show which died first. The legacy lapses.
S.107-Effect of words showing testator’s intention to give distinct shares.-If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then,if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator’s property.
IllustrationA sum of money is bequeathed to A, B and C, to be equally divided among them. ‘A’ dies before the testator. B and C will only take so much as they would have had if A had survived the testator.
- When lapsed share goes as undisposed of.-Where a share which lapses is a part of the general residue bequeathed by the will, that share shall go as undisposed of.
Illustration The testator bequeaths the residue of his estate to A, B and C, to be equally divided between them. ‘A’ dies before the testator. His one-third of the residue goes as undisposed of.
S.191-Property transferable by gift made in contemplation of death. (S.129 TPA)
A man may dispose, by gift made in contemplation of death, of any moveable property which he could dispose of by will.
A gift is said to be made in contemplation of death where a man, who is ill and expects to die shortly of his illness, delivers, to another the possession of any moveable property to keep as a gift in case the donor shall die of that illness.
Such a gift may be resumed by the giver; and shall not take effect if he recovers from the illness during which it was made; nor if he survives the person to whom it was made.
‘A’ being ill, and in expectation of death, delivers to B, to be retained by him in case of A’s death, a watch: a bond granted by C to A: a bank-note: a promissory note of the Central Government endorsed in blank: a bill of exchange endorsed in blank: certain mortgage-deeds. A dies of the illness during which he delivered these articles. B is entitled to, the watch: the debt secured by C’s bond: the bank-note: the promissory note of the Central Government: the bill of exchange: the money secured by the mortgage-deeds.
‘A’ being ill, and in expectation of death, delivers to B the key of a trunk or the key of a warehouse in which goods of bulk belonging to ‘A’ are deposited, with the intention of giving him the control over the contents of the trunk, or over the deposited goods, and desires him to keep them in case of A’s death. A dies of the illness during which he delivered these articles. B is entitled to the trunk and its contents or to A’s goods of bulk in the warehouse.
A, being ill, and in expectation of death, puts aside certain articles in separate parcels and marks upon the parcels respectively the names of B and C. The parcels are not delivered during the life of A. A dies of the illness during which he set aside the parcels. B and C are not entitled to the contents of the parcels. Person claiming right by succession to property of deceased may apply for relief against wrongful possession.
S.60, 61/89/124/127, S.69/70, S.63,65,66, S.74, 105-108, S.191, S.126-128
Registration Act 1908-S.17-18
MODULE 3-ISLAMIC INHERITANCE AND SUCCESSION
The Will-The Arabic synonym is ‘Wasiyat’-A will is an instrument by which a person makes the disposition of his property to take effect after his death
The document is called ‘Wasiyatnama’
Islamic succession is the most Progressive and advance system of succession
A Muslim can make the will only for 1/3 of his whole property
Why will is different?
It takes place only after the death of the testator
It is revocable
Will can be oral or written. However for the purpose of proper evidence, it should be made in writing. There is no need to sign or attest. But the intention of testator should be very clear.
Competency of testator
Should be Major (Indian Majority Act 1975 is applicable for matters of property)
Minor can make a will but its validity has to upheld and rectified by him after reaching the age of majority
Competency of the legatee
Any person who is capable of holding property can be a legatee
Legatee can be an unborn person as well, but he/she should come into existence within 6 months of the death of the testator under Sunni Law. In Shia law, it is 10 months.
Person must be in existence at the time of making the will (under Indian succession Act)
Bequest cannot be made to the heirs of the testator except with the consent of other heirs.
For any Islamic religious or charitable purpose
Subject matter of a valid bequest
Could be anything except those which are prohibited under Islam
Will made under apprehension of death is valid under Sunni Law. It is also valid in Sunni law if the person commits suicide after making will but invalid under Shia law. Regarding taking of poison, Under Sunni Law, will is valid regardless when a person has taken poison but in Shia law if a person consumes poison and then writes a will, it is invalid.
In Sunni law, it becomes invalid if legatee causes the death of testator intentionally or accidentally but in Shia law, death must have been caused intentionally.
The property must exist at the time of death of testator but not necessary at the time of making the will.
It is permissible that the corpus may be given to one person and the usufruct of the same property to another.
Suppose ‘A’ bequeaths the usufruct of property to B for his lifetime and the whole property to ‘C’. C has vested interest in the property.
Bequest to be within permissible limit
Cannot be made to one’s own heirs
Only 1/3 of the whole property
Limits of testator-
Can’t bequeath to his own heirs (Sunni Law)
He can’t bequeath more than 1/3 of his property. The reason for this is to prevent a testator from depriving his own heirs from getting property according to law. Bequest has to happen only after deduction of funeral expenses and debts of the testator. If other heirs consent, then he can bequeath even 1/3 to his own heirs. If he bequeath to heirs without consent of other heirs, then ‘abatement of will’ takes place ie. It will be reduced proportionally. Consent of heirs can be obtained both before or death of the testator.
Under the Shia law, a person can bequeath 1/3 of his property even to his heirs but he cannot exceed 1/3 without consent of other heirs.
Exceptions-When there are no heirs and when heirs themselves consent to the bequest in excess of 1/3.
A Muslim man executes a will giving 30000 to ‘A’ and 20000 to ‘B’ who are not his heirs. He had property worth 75000 after deducting his debts and funeral expenses. He can only bequeath 1/3 ie 25000. But he made a will for 50000 ie exceeding the 1/3 limit by 25000. What will be the shares? Ratio of ‘A’ and ‘B’ is 3:2. So A’s share will be 250003/5 which is 15000. B’s share will be 250002/5 which is 10000.
A testator bequeaths 15000 to ‘A’ and 30000 to ‘B’ and 45000 to ‘C’. Net value of his asset is 90000. What will be the shares? Limit is 30000. The ratio of A:B:C is 1:2:3. A will get ⅙30000=50000. B will get 2/630000=10000 and C will get 15000.
A dies leaving behind assets 150000 He made a will giving rupees 50000 to his daughter and 50000 to his friend. He has not taken consent of his wife and son. What will be the shares? Bequest to daughter is invalid while to the friend is valid. (IMP)
A sunni Muslim has assets worth 180000. He has given bequest to 3 persons X, Y and Z in equal amounts ie 60000 each. Each will get 20000 in Sunni Law. But under Shia Law only Z will get 60000. IMP
There is no Proportional reduction under Shia Law-
He can even bequeath 1/3 to his heirs but not more than that.
In Shia law the rule of chronological order applies in place of gradable reduction. For example-A person has property 90000. He bequest 30000 to B, 20000 to C and 10000 to D. Here B had already exhausted the 1/3 limit so others will not get.
A testator ‘X’ dies leaving behind assists worth 120000. He leaves a will, be-questing 20000 on A, 30000 on B and 40000 to C. Limit here is 40000. So A will get his 20000 and B will get 20000 and others will get nothing.
A testator who has property worth 180000, makes a will in favour of his wife giving rupees 30000 and his friend giving him Rs 50000. In sunni law, wife will get nothing as she is his own heir and friend will get 50000. In Shia law, each will get 30000. (IMP)
Exceptions (Only for Shias)-
When whole 1/3 amount has been equally given to everyone
Illustration-If a testator dies leaving behind properties worth 120000 and under a legacy he gave A 40000, B 40000 and C 40000. 1/3 Limit is 40000. But in this case there will be exception under which only the last person will get ie only C will get. (IMP)
If a ‘Will’ made for pious purposes exceed the legal limit of one third, the property will be determined in the following order-
Bequest for Fard ie those duties which are made obligatory by Holy Quran eg performance of Haj
Bequest for Wajibat ie those acts that are recommended by the Holy Quran but are not obligatory eg. Charity on breaking of Fast, etc
Bequest for Nawfil ie voluntary acts eg building of bridge or mosque etc
Bequest of the first class takes precedence over that of the second and so on.
Revocation of Will-
Testator may revoke a will either expressly or impliedly or by a subsequent will but intention has to be taken into account
Express Revocation-An express revocation is one where the testator revokes the bequest in express terms either orally or in writing
Implied Revocation-where testator does an act from which revocation is inferred, For example-bequest of a piece of land is revoked if the testator subsequently builds a house upon it.
Revocation by Subsequent will-where a testator makes a will gives the same property to someone else, prior bequest is revoked. But where, in the same will, the same thing is given to two different persons, the property is shared equally by both.
Denial-where testator denies that he ever made a will, it would amount to revocation of will. Intention of the testator has to be kept in mind.
If the legatee dies before testator,
Under Shia law, if legatee dies but has heirs, it goes to heirs, but if he has no heir then it lapses
Under Sunni law, it becomes void in both cases.
RIGHT OF PRE-EMPTION (SHUFA)
Shufa means adding a person who has a right to purchase.
This is the addition of any person who has right to purchase in preference to other person, then he can exercise the right of Shufa.
Also called the right of Substitution.
This is to prevent the land from any disadvantage that may arise due to the introduction of stranger in neighbourly property
Talab-i-Muwazibat-Once the property has already been sold, then the pre-emptor shall exercise his right. He should claim his right of pre-emption as soon as he comes to know of the alleged sale.
Talab-i-Ishad-He has to bring two witnesses along with him to substantiate his right and claim.
This right arises on three persons-
Shafi-e-Sharik -The co-owner/sharer of the property
Shafi-e-Khalit-Participator in appendages ie who is co-enjoying the properties or anyone who has right to appendages. If ‘A’ and ‘B’ are neighbour and B had a well located in his land from which A had been benefiting since years. Common stairs etc
Shafi-e-Jar-It means the immediate neighbour. For example-there are three lands adjoining each other. A well is located in between ‘A’ and B’s land and B benefits from it. If B sells his land, A will have preference over C
Some basic conditions for Right of Pre-emption-
There has to be sale of some immovable property.
The sale must be complete and bonafide.
The offer must be made immediately after sale and on the same terms that were offered to the bonafide purchaser.
The Right of pre-emption is given for a peaceful enjoyment of the property.
This right does not exist in case of Gift/Hiba because there is no sale or consideration.
It also does not exist in case of creation of Wakf.
But in case of Mehar this right exists.
Wherever the sale is with consideration, the right of Shufa arise.
It does not even arise in case of Inheritance.
Suit has to be against the original vendor and not bonafide purchaser. It’s a right-in-personam.
Grounds for justification-In order to prevent the hardship and inconvenience upon the joint owners of the property, the stranger vendee can be substituted by the participator in the land who may be at a dis-advantage. Also before the inheritance arises which may lead to disintegration of the property, the right of pre-emption has been constituted to preserve the property and advantages that lie in the property.
Three formalities as it is a formal right-
An Immediate demand (Talab-e-Muwazibat) has to be made first, after the sale in the form of a simple announcement declaring the right of pre-emption
A confirmatory demand (Talab-e-Ishad) has to be made which has to be accompanied by two witnesses.
Demand for possession has to be made which confirms the transfer of the property.
Once these formalities are complete, stranger’s right ends.
Cases on Shufa-
Rajendra Kumar v Rameshwar Das 1981 All
Facts-Appellant Rajendra Kumar, filed a suit for pre-emption of the sale of the part of a Haveli situated in Muzaffarnagar, by sale deed dated 27-12-1972 for Rupees 15,000 by the defendants Nos. 2 and 3 to the defendant No. 1. He contended that the custom of pre-emption was prevalent since times immemorial among all the residents of that locality irrespective of religion. He claimed that he was a co-sharer in the Haveli; that the inner courtyard, the Dahlij of the Haveli, the Rasta, the bathroom, the drain and the Chabootra were common between the houses of the plaintiff and the house in suit. Thus it was said that the plaintiff was Shafi-e-Shariq (co-owner) and also Shafi-e-Khalit, i.e., a participator in the appendages and immunities and was entitled to pre-empt the sale of the house in suit. The plaintiff further alleged that the defendants Nos. 2 and 3 had effected the sale of the portion of the Haveli in suit with the common Sahan, Dahlii and bath-room etc in favour of the first defendant by sale deed in 1972 for Rs. 15,000 without any information to the plaintiff, and they did not care for the plaintiff’s right of preemption. The first defendant, it was said, was a stranger and had no right or share in the house in suit and the plaintiff was entitled to pre-empt the sale. It was then alleged that on coming to know of the sale deed, the plaintiff made the demand for pre-emption, in accordance with the custom, to the first defendant, and when the sale deed was registered, he again made a demand for pre-emption in the end of December 1972, and thereafter also he made certain demands, but the first defendant avoided to comply. It was then said that thereafter a notice dated 23-2-1973 was served by the plaintiff on the first defendant demanding preemption of the property in suit, to which the said defendant sent a wrong reply, hence the suit.
Issue-Does the defendant had the right of pre-emption? Whether the notice dated 23-2-1973 could be deemed to be a demand required to be made in accordance with the customary right of pre-emption, and second whether it could be said to have been made within a reasonable time?
Held-the evidence on record, suggest that the appellant was a participator in common amenities or appendages and immunities of the Haveli. The Supreme Court had in BHAU RAM v BAIJ NATH SINGH held the law of pre-emption, solely on account of vicinage (vicinity or neighbourhood), to be unconstitutional and void as it imposed an unreasonable restriction on a citizen’s right to acquire, hold and dispose of property, while the right of pre-emption based in common ownership or in common enjoyment of appendages and immunities was held to be valid as a reasonable restriction on the said fundamental right. It is, therefore, not necessary to decide this controversy in the present case, for even when the right to acquire, hold and dispose of property was a fundamental right, the right of pre-emption on the ground of common enjoyment of appendages and immunities was held to be valid, and as noticed above it has been found in the present case that the plaintiff did enjoy the property, already owned by him, the appendages and immunities in common with the property in suit, of which the sale was sought to be preempted, and thus the plaintiff had a lawful right to pre-empt the sale. The plaintiff’s right of pre-emption is then claimed on the basis of common enjoyment of the inner courtyard, the bath-room, the Dahlij and the Chabootra. It is then said that the plaintiff made a demand for pre-emption as soon as he came to know of the sale, and also after the completion of the registration. The last demand was said to have been made at Shamli before witnesses in the end of December, 1972; and that the demand was repeated on some occasions thereafter, but the first defendant avoided to comply with them. In Lokman Das v Sheorai Kumar 1955, this Court held that in a case of claim for pre-emption according to custom, the making of Talabs according to the technical rules of the Muslim Law was not necessary, but a demand has to be made by the pre-emptor on his coming to know of the transfer. He is to demand a transfer “of the property to him on payment of the price paid by the vendee.” The pre-emptor should be in a position to buy the property and to decide then and there whether he wants to buy it or not? He could not be allowed to wait for some months to decide whether it was profitable for him to buy the property and make a demand thereafter. Supreme Court held that in order to give the right of pre-emption a sale is complete only when the sale is registered, of course, in case of tangible immovable property worth Rs.100/- and more; and registration is not complete till the document to be registered has been copied out in the records of the registration department. The Supreme Court held that a Talab made before such completion of registration was premature and invalid.
Krishna v State of Haryana AIR 1994 SC 2536
Issue-Whether, S.15 of Punjab Pre-emption Act was violative of Article 14 and Article 19(1)(f) Constitution? And whether a stranger can also acquire the right of co-owner/sharer?
Held-The law of pre-emption is, historically speaking, a product of custom of the Muslim world. It came to be enforced here after the advent of Muslim Rule. To start with it was accepted as a part of custom and was applied by the courts, particularly in Northern India accordingly. It received statutory recognition in S.22 of HSA 1956. Though this Court has regarded this right as archaic, feudal and weak in character, yet in Bhau Ram’s case 1961 SC held that this right was founded on a valid classification and did not infringe either Articles 14 or 15 of the Constitution and therefore upheld its constitutionality qua Article 19(1)(f). The right of pre-emption on co-sharers, had been upheld as constitutionally valid and reasonable for reasons noted above. The word co-sharer has to be taken as inter-changeable with co-owner. As to who would be co-owner would depend upon who would have succeeded to the property, that is, on the line of succession. Another point mentioned in the written submission is that though a sister can have such a claim, a brother cannot, and so, the same results in discrimination. This argument is misconceived inasmuch as under the aforesaid Hindu Succession Act, both brother and sister are Class II heirs and both of them are in Entry II result of which is that because of what has been provided in Section 11 of the Act, such heirs share the property equally. The objection which applies qua stranger ceases to have any significance after he has acquired the right of the co-sharer. No objection regarding acquisition of a co-sharer’s property having been taken earlier, the stranger cannot be treated differently from other co-sharers afterwards. In such a situation he has himself to be taken as a co-sharer.
Razzaque Sajan Sahib v Ibrahim Hazi Muhammad Hussein AIR 1999 SC 2043
Facts-The plaintiff-respondent Ibrahim Hazi claiming a right of pre-emption on the ground of being Shafi-i-jar (Immediate neighbor) and Shafi-i-sharik (The co-owner/sharer of the property) filed a suit and prayed for a decree of pre-emption in the sale deed executed by appellant’s sisters. The Trial Court held that the respondent was no longer a co-sharer, as the suit property was partitioned and the Suit House No. 85 went to the two sisters and the appellant became the owner of House No. 84-B. The Trial Court, therefore, held that being the immediate neighbors of the two sisters, both appellant and respondent are entitled to claim the right of pre-emption. As the respondent and the appellants belong to the same class both are entitled to half share in the suit property. Accordingly, it partly decreed the suit. But the High Court reversed this finding. Hence the appellants choose to appeal to this court.
Held-Supreme Court has already held that law of pre-emption based on vicinage (Shafi-i-jar/immediate neighbor) is void. Unfortunately, the High Court did not consider this aspect. As the very basis of claim has been held to be unconstitutional by this Court, the suit filed by the plaintiff-respondent ought to have been dismissed. We, therefore, allow this appeal, set aside the judgment and order passed by the High Court and dismiss the suit filed by the respondent.
S.22 of HSA 1956-talks about similar provision. But it is limited to family members and class I heirs only.
Shufa can also be called a Right of substitution-
Article 19(1)(f) speaks about to right to property however Article 19(5) talks about reasonable restriction. As to whether pre-emption is a reasonable restriction, SC in Bhau Ram v Baij Nath 1961, it validated Shufa except Shufa solely based on Shufa-e-jar.
In Sant Ram v Labh Singh, SC again justified right of pre-emption
Then 44th amendment removed property as fundamental right. After this amendment the full right of pre-emption was revived.
Still, there is a difference between Sunnis and Shias over pre-emption.
In Shia law,
Only co-sharer/co-owner (Shafi-e-Sharik) has right of pre-emption.
If there are more than one co-sharers, then law of pre-emption will not be applicable.
Illustration-There are 4 co-owners of a property. A(Sunni), B(Sunni), C(Shia) and D(Hindu). A wants to sell his share to a stranger E. B, C and D jointly filed a petition for the pre-emption-
A Hindu cannot claim right of pre-emption so D’s claim is null
Since C is Shia, and in this case there are more than 2 co-sharers, he cannot claim right of Shufa
If B had filed alone, it would have been valid but since there was joint petition it is invalid. In a joint petition filed by B and C, if C’s assertion fails, then B’s claim also falls.
If vendor and pre-emptor are sunni then sunni law will be applicable. The sect of vendee is immaterial.
If Vendor is sunni and pre-emptor is Shia, then Shia law will be applicable. If vendor is Shia and pre-emptor is Sunni, Shia law is applicable.
Gobind Dayal v Inayatullah-It was held by Allahabad and Patna HC that sect of vendee is immaterial and it is also not essential, that all parties should be Muslim but Bombay and Calcutta HC disagreed with this view, and said that if the vendee is not a muslim then, right of pre-emption cannot be claimed.
When the right of pre-emption is lost?
Upon the death of pre-emptor ie if the pre-emptor dies during the pendency of suit, the claim fails. In sunni law, it extinguishes but in Shia law heirs can claim the right.
If the pre-emptor has a compromise agreement with the vendee, then Shufa extinguishes.
If the pre-emptor enters into a lease deed with the vendee, then also he loses his right of Shufa.
If in anyway, the pre-emptor gives his assent to the agreement between vendee and vendor, the right extinguishes.
The claim has to be made immediately.
If the pre-emptor transfers his land to 3rd party, in this case too, the right extinguishes.
If pre-emptor had earlier stated to vendor that he will not claim shufa and yet he claims it after the sale, it is valid.
Govind Dayal v Inayatullah ILR 7 ALL 775
Justice Mahmood-It (right of pre-emption) is simply a right of substitution, entitling the pre-emptor, by means of a legal incident to which sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale, under which lie, derived his title. It is, in effect, as if in a sale deed the vendee’s name were rubbed out and pre-emptor’s name inserted in its place.
Bishan Singh v Khazan Singh AIR 1958 SC 838
The court summarised rules of pre-emption in India-
The right of pre-emption is not a right to the thing sold but to the offer of a thing about to be sold. This right is called the primary or inherent right.
The pre-emptor has a secondary right or a remedial right to follow the thing sold. The secondary right is simply a right of substitution in place of the original vendee.
It is a right of substitution but not of re-purchase ie the pre-emptor takes the entire bargain and steps into the shoes of the original vendee.
Three Demands-No person is entitled to pre-empt
Talab-e-Ishad-means a demand with the invocation of witnesses. This demand is also called Talab-e-Taqrir which means demand of confirmation
Talab-e-Tamlik-The third demand is not a really a demand but seeking of legal remedy
Important case laws-
Motto Devi v Damodar Lal (2001) 6 SCC 330
Meher and Maintenance and she gets property in both parents and in-laws house. Her marriage and other expenses are borne by her male relatives
Duties and financial responsibilities of men are far greater
Prevailing circumstances-Preservation and securing of Islamic egalitarian values. Look at the example of Kashmir where laws disinherit females from succession who marry outside the valley.
Practicability aspect-Look at Hindu Scriptures and laws, either talk about shit or become over-idealistic. Look at the effectiveness of the law on equal property to women and laws on prohibition of Dowry.
Quran Sunnat Society v State of Kerala
GIFT UNDER ISLAM
Important case Laws-
Musa Miyan v Kadar Bux AIR 1928 PC 108
Facts-Abdul Rasul’s daughter Rahimatbi, was married to one Mohammad Shaffi and had two children Isa and Musa. The entire family used to live with Abdul Rasul. Abdul Rasul before departing for Haj, invited several persons to dinner, and after the dinner announced he had made a gift of his property to his two grandsons and made them the owners thereof, and this announcement, was made known to the ladies of the household and Mohammad Shaffi that both his children, Isa and Musa, are the owners of his property. On his return from pilgrimage, Abdul Rasul resumed the management of his property and it remained in his possession until his death. Some heirs (Brothers) of Abdul Rasul contested that the gift was not complete as there was no delivery of possession.
Held-The Gift was held to be invalid in this case as GF cannot be a guardian of a minor when minor’s father is present. Also, Principles and Precedents of Gifts in Muslim Law-
A gift is defined to be the conferring of property without a consideration.
Acceptance and seisin, on the part of the donee, are as necessary as relinquishment on the part of the donor.
It is necessary that a gift should be accompanied by delivery of possession and that seisin should take effect immediately or at a subsequent period by desire of the donor.
A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it.
The case of a house given to a husband by a wife and of property given by a father to his minor child form exceptions to the above rule. Where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession and will presume the subsequent holding of the property to be on behalf of the minor.
Formal delivery and seisin are not necessary in the case of a gift to a trustee having the custody of the article given, nor in the case of a gift to a minor. The seisin of the guardian in the latter case is sufficient.
The Gift was held to be invalid in this case as GF cannot be a guardian of a minor when minor’s father is present.
Hafeeza Bibi v Sheikh Farid AIR 2001 SC 1695
Held-And as per the Muslim law, the essential requirements for a valid gift are-
A declaration of Hiba by the donor also known as IJAB;
An implied or express acceptance of the gift by the donee (QABOOL); and
Delivery of possession of the property (QABZA)
The court said that upper conditions are sufficient and no written instrument is required necessarily. A gift under Muslim law, even if it is written but above formalities are not satisfied is invalid.
The other important issue in this case was whether Hiba under Muslim law has to be compulsorily registered under the registration Act? S.17 of the Registration Act 1908 requires mandatory registration of gift of immovable property. This is so to effect the transfer of property from one person to another person in whose favour the gift has been executed. The court held that Registration act does not apply to a deed of gift by a Muslim as it does not affect immovable property.
Valia Peedikakkandi Kutheessa v Pathakkalan AIR 1964 SC 273
Facts-M was married to S(minor) and gifted all his property to her by a registered deed. Since S was minor, it was accepted on behalf of S’s mother. M died 2 years later. M’s brother claimed the property under Islamic law claiming the gift to be invalid.
Held-It is necessary that property should be given to a guardian appointed by civil court. However there is no evidence in Hanafi law that mother cannot receive a gift on behalf of minor daughter. Intention of the donee was clear and hence the gift is valid.
Types of Gift
Disposition Inter-vivos (HIBA)-Transfer of certain existing movable or immovable property made voluntary and without consideration by one person called donor to another person called donee.
Testamentary disposition (WILL)-limited to 1/3 of the property
Requirement of valid Gift
The Donor (Waheb)
The donee (Mohublahu)
Immediate delivery of possession (کبزا) but there are some exceptions-
Where the gift is by husband to the wife or vice-versa
Father to child
When donor and donee are residing in same premises
Any sex, sect
Gift to unborn person is void but if a child is in womb-then in Sunni law 6 months and Shia law 10 months
Subject Matter-can be property that is capable of being owned. The subject-matter of a gift must be in existence
Corpus and Usufruct-A corpus is the thing itself. It donates transfer of absolute ownership, but usufruct refers to the produce of the thing. When the gift is of corpus, it is absolute ownership rights in favor of the donee that are both transferable and heritable. It is called Hiba. Where the gift is of usufruct only not of the corpus, it is not absolute but limited in point if time and enjoyment. It impersonal in character and it is neither transferable or heritable and it is called Ariyat.
Gift with conditions-condition, contingency and Insurance policy
Generally a person can revoke a gift before delivery of possession but after delivery of possession only in exceptional cases.
Formalities for effecting a valid gift-
Written document is not essential
Registration and attestation is also not necessary
Maqbool Alam Khan v Khuteja Bee AIR 1966 SC 1194 (SC laid down three pillars of valid Gift)
Held-For a valid gift inter vivos under the Muslim law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus-
Manifestation of the wish to give on the part of the donor
The acceptance of the donee either impliedly or expressly; and
The taking of possession of the subject-matter of the gift by the donee, either actually or constructively.
Gift of Insurance policy-prior to 1938 Insurance Act S.38(7) a conditional assignment of a life policy made by a Muslim is to be considered a contingent gift, the gift being absolute and the condition void.
Under TP Act is can be made.
Insurance Act 1938 S.38(7)-Notwithstanding any law or custom having the force of law to the contrary, an assignment in favour of a person made with the condition that it shall be inoperative or that the interest shall pass to some other person on the happening of a specified event during the lifetime of the person whose life is insured and an assignment in favour of the survivors of a number of persons shall be valid.
Sadik Ali v Zahida Begum AIR 1939 744-These word are wide enough to exclude the country rules of Muslim law on Gift and the result is that where a muslim makes a gift of his insurance policy, the gift is valid because insurance act of 1938 will be applicable and not Muslim law.
Doctrine of Musha refers to an undivided share in the property. So every joint-undivided property is a Musha. Two possibilities may be there-
Undivided share can be in a property which can be divided without affecting the intrinsic value. This can be gifted.
That is incapable of being divided. For example-vehicles
Delivery of possession-
Where the undivided share is incapable of division. If the undivided part is indivisible the gift is valid. Example well, staircase, right of way
Where the property is capable of division; divided possession handed over to the donee. In Shia law it is valid but in Sunni Law it is irregular and can become valid by subsequent separation and delivery.
Exceptions to doctrine of Mushaa
Gift to co-heir
Co-sharers in an undivided land or Zamindari
Gift to two or more persons
Freehold property in a commercial town
Shares in a land company
Types of Gifts in Muslim Law-
Hiba-Simple Gift without consideration
Hiba-bul-Iwaz- (Gift with Exchange) It’s a kind of mutual exchange
Hiba-ba-Shart-ul-Iwaz-(Gift with Stipulation)-When the gift is made on the basis of a consideration.
Ariyat-Gift of usufruct
Sadqa-Gift for a religious and charitable purposes.
Wakf-Gift for religious moral and religious purpose.
Revocation of Gift-
Revocation-a tradition of the Prophet Muhammad shows that he was entirely against the revocation of gifts. Its moral point not legal
It is revocable till it is complete or even after its completion because it is purely a voluntary transaction
With the consent of the donee or in absence of his consent by a decree of the court
Donor or donee is dead
Donor and donee are husband and wife and vice-versa
Donor and donee are within prohibited degrees of relationship
Donor has received a return
Subject matter lost or destroyed
Gift has substantially increased in value
Gift was for obtaining religious merit
Mode of Revocation-
In Sunni Law-Decree by the court is essential (IMP)
Shia Law-mere declaration by donor
Gift in contemplation of Death and illness Donatiao Mortis Caususa (Marz-ul-Maut)
3 essential features-
Illness should cause death
Illness should cause apprehension of death
There should be some external indica of serious illness
Such gifts are valid but it takes into account all necessary characteristics of gift with all the limitation as well of a will.
MUSLIM LAW OF SUCCESSION
Prof. Afzal Wani
Knowledge of sources of any law and its interpretation and articulation is what distinguishes a good lawyer from average lawyer. He knows the logic, reasoning, object and purpose of the law.
For knowing Islamic law, one has to know the circumstances in which it came into being.
Pre-Islamic Arabs were interested in wine, women and war. There was continuous warfare, and factionalism. They were tough and rough and uncivilised and barbaric. Negativity has replaced the positive aspects of tribal culture. And this negativity in any culture comes due to derangement of Human mind.
Quran says that one sees the sun, moon, planets, stars, day, night, highness of the sky and the vastness of the land and everything goes with harmony but then comes the problem. Falamha, Fuzuraha wa Taqwa means that in the human minds come the idea of disruption and harmony. If Fuzur (disruption) is dominant then there is problem and injustice. And when Taqwa (Harmony) is dominant, then prevails the harmony.
Here arise the need of the law and mechanism of its enforcement so Taqwa can prevail over Fuzur.
We cannot say that primitive was always bad and disruptive than present. Most primitive is the most progressive and most primitive sometimes gives certain principles which humans are still following.
For Harmony to prevail, it is necessary to bring Human to one line of harmonious of thought.
Property plays an important role in the harmony and disruption. Thomas Hobbes says that man is always at war and life is nasty, brutal and short. Locke says that life is always at peace and Rousseau will say that it depends.
When idea of property came in the mind of Humans, disruptions arose. For ensuring peace, equitable distribution of property and resources is necessary.
Equitable means just and fair. For example-A mother has two sons. To one son she gives, 20 gram of almonds and a glass of milk but to other son she gives 100 grams of almond and 1kg of milk. How can she do it? The reason is that first one is a student and other is a wrestler.
But when the sense of equitably is gone, disruptions arise. In todays time as well, we need a strict and equitable laws.
Islamic Law is powerful in terms of its structure, prolificacy and it’s being present in the History for a long time. All other laws have undergone tremendous change and codification but Islamic law has largely survived is still followed by scores of countries all over the world. It came into being purely on the basis of faith. And therefore it is good to know that how it came into being and still prevails in many places.
Pre-Islamic Arab society was divided in different tribes who were always at war with each other. They also had different religions and social values and their inheritance would be according that. Then they were made one by a message that was given by Prophet Muhammad who told them that they all were progenies of one man and women-Adam and Eve, peace be upon them and that they have been divided into tribes only for recognition and nothing more and that all are equal and one in the eye of the creator almighty. Despite some violent reactions and resistance, he finally succeeded and prevailed. And all that struggle has some impact in shaping the Islamic law.
In earlier days when tribal heads were dominant, they used to fight with each other and humiliate each other. The worst of humiliation they would do was the humiliation against women and children and so on. For example, when Prophet Moses was born, somebody told the Pharaoh that he will kill him and in panic Pharaoh orders culling of all newborn babies. Same is true of Krishna.
But Muhammad succeeded in uniting them through peace and war and for the unity to prevail, it was necessary that the new system should be just, fair, reasonable, equitable and comprehensive. Till then women had no property rights. Muhammad declared as a Quranic provision-
That women also have a share in the property.
That whatever she earns, will be her own property
Women have right to keep the Mehar. It will go to her because she can own the property
That her consent is must for marrying her. She can say no to a marriage.
For all this to become effective, change in inheritance laws was made. And therefore one finds in Islamic law a class of people and relatives who get the share of property of the deceased are 12 in numbers. They are called Quranic heirs and they are mostly women. Whenever there is a question of distribution of resources of a propositus who dies, first one has to give the property to women.
It must be appreciated if it is good. If one don’t do it, then one find resistance and reaction.
The question is if we have some modern element in Human Rights law and we impose it one Muslims without appreciating their role in History, they may resist it.
It was long back in 6th century that women were given property rights which is of very late occurrence in rest of the world and could only materialise just few centuries ago. Now if these rights were given by Islam in 6th century itself and Magna-Carta in 13th Century, American and French Revolution in 18th century and UDHR in the 20th century, then role of Islam in empowerment of women must be appreciated. If that gesture of Islam is not appreciated the one is not underling the jurisprudence of property rights of women correctly and fairly.
A cunning lawyer will first appreciate the role of Islam in giving property rights to women and then will say that todays situation is different which demands even more rights for women and not just half of what a man gets. Today in many cases, women are more capable to manage the property better than man. So there is no harm in giving her at least equal share. In place of this if one says otherwise ie that Islamic law is primitive, cumbersome, unjust etc, then they have 100 other arguments to contradict you.
Even when women was not able to take care of property, Quran assured her, her fixed share.
Certain features of Islamic law-
The share of women is half of the equivalent share of a man
Murderers are disqualified-If somebody commits murder of the person from whom he is supposed to inherit, then he is divested from inheriting the property of the deceased.
Only Muslims will inherit from a Muslim and not a non-muslim. It must have had a same reason that nobody wanted to dilute their group and community. As a matter of principle this is true in hindu law as well that only Hindu gets the share.
One can divest only 1/3rd of his total property can be divested by will
It does not differentiate between movable and immovable property. In this manner, Islamic law has taken a very wiser view, considering the different nature of property coming into being such as cryptocurrencies etc
One cannot divest his whole property to only one son or daughter. This problem persisted in feudal world where primogeniture would take primacy
One cannot even relinquish his/her share. In some societies, daughters give in writing that they don’t want the share. Islam does not accept that given its unfair implications. Even in case of Mehar, if a women forgoes his Mehar but later demands it, her demand will have to be met because there is an implicit assumption that she relinquished it due to some pressure and inducement.
Illegitimate children get share only in mother’s share. Today we technology to prove fatherhood but earlier when it was not possible, there were certain shortcomings as any child will claim to be the son of some influential and rich person. So under Hanafi law, illegitimate child only gets share in mother’s property. But in Islamic law, Doctrine of acknowledgment is there under which if the father acknowledges the child as his own child, (and there is no other barrier such as prohibited relationship) the defect of illegitimacy is cured and child gets his full share. Today doctrine of acknowledgement can be extended to DNA testing etc as well to determine fatherhood. This doctrine can also be helpful in case of live-in relationships. So primitive principles can help in many cases.
Doctrine of Representation-If a father ‘F’ has two sons ‘A’ and ‘B’ and AS is the son of ‘A’ and BS is the son of B. If A passes away in the lifetime of ‘F’ what will be status of AS regarding the inheritance of property? As regards the existing Islamic law, AS will not get the share of his father A who pre-deceased him because in Islamic law the principle nearer excludes the farther apples. So property will go to B and not AS because B is more nearer to F than AS. This is creating a problem because it disentitles the grandchildren from inheriting when they become orphans. Where will they go? Many countries including Pakistan have adopted a doctrine of representation under which grandchildren steps into the shoes of their father for the purpose of inheritance. Many people believe that if we tamper with this law, then some other injustice takes place. For example in this case, if a person has a son and a daughter and son has also a daughter and the son dies. If son’s daughter gets the position of son, she will get double share as under and his own daughter will be getting half share. So again there is an element of injustice. There is another solution-This is a problem mostly with joint families in which whatever is earned is put into a common pool and considered a property of father under Islamic Law which does not recognise Spec-successionis ie right in property from birth. The solution is that he can gift a potion of his property to children of his deceased son. In such case, they will also be better placed than their cousins who will get property only after death of their father but under gift there is immediate transfer of possession to the donee. So within the system there is a solution. That’s why many people argue that there is no problem that cannot be addressed in the Islamic Law.
Why does a father or mother hold the right for whole of their life? In Hindu coparcenery everyone jointly owns the property but in Islamic law, father holds the property till his death. Has it any relevance in modern times? Yes, because today there is a big problem of parents being abandoned by their children and grandchildren even by affluent families. So the Islamic principle property till death is a security to senior citizens.
INTESTATE SUCCESSION AMONGST MUSLIMS
The duty of administering an Estate of the deceased vest in the state acting through the Qazi
In Islamic law of Jurisprudence no executor or administrator is there
Probate and Administration Act 1881:-administrator based on fabric of English law
Holistic approach:it is as through the estate where a round cake which from a distance seems entire but as each heir approaches the table, his share has to be cut in proportion of his share.
In India the estate of deceased Muslim is administered under the provisions of ISA 1925 (S.217 and 218)
The order of priority for payments are as follows-
Funeral expenses and death-bed charges including the medical attendance/board and lodging for one month prior to death (S.320)
Expenses of Judicial proceedings for obtaining probate (S.321)
Wages for services rendered to the deceased with in the three months of his death by a labourer or servant (S.322)
Debts according to their priorities (S.323
Legacies not exceeding 1/3 of the residue after all the above payments have been made (S.325)
Administration of Estates
First Principle-when a person dies leaving behind property four duties are to be performed
His funeral ceremony and burial without superfluity of expense and yet without deficiency
Vesting of the Inheritance: Jafri Begum v Amir Muhammad Kahn 1885 (7) All 822
Whether upon the death of an intestate Muslim who had left unpaid debts, ownership of the estate devolved immediately on the heirs of the deceased or whether such devolution is contingent upon payments of debts? The devolution of the inheritance takes place immediately upon the death of the ancestors from whom the property is inherited.
Whether a decree for a debt passed against those heirs who are in possession of the deceased’s estate binds the other heirs? Muslim heirs are independent owners of specific shares and if they take their shares subject to the charge of the debts of the deceased, their liability is in proportion to the extent of their shares. They take the share as tenants-in-common.
Can one of the heirs who was out of possession and who was not a party to the proceedings bring a suit against the decree holder for the recovery of his share of the estate? Yes, he can but he must pay his proportionate share of the debt before recovering possession of his share of the inheritance.
It is well known that the Muslim law of inheritance is based upon a passage in the fourth chapter of the Koran, which in Sale’s translation is thus rendered: “God hath thus commanded you concerning your children: A male shall have as much as the share of two females, but if they be females only, and above two in number they shall have 2/3 part of what the deceased shall leave; and if there be but one, she shall have ½. And the parents of the deceased shall have each of them a 1/6 part of what he shall leave, if he has a child; but if he has no child, and his parents be his heirs, then his mother shall have the 1/3 part. And if he has brethren, his mother shall have a 1/6 part, after the legacies which he shall bequeath, and his debts be paid. Ye know not whether your parents or your children be of greater use unto you. This is an ordinance from God, and God is knowing and wise. Moreover, ye may claim 1/2 of what your wives shall leave, if they have no issue; but if they have issue, then ye shall have the 1/4 part of what they shall leave, after the legacies which they shall bequeath, and the debts be paid. They also shall have the 1/4 part of what ye shall leave, in case ye have no issue; but if you have issue, then they shall have 1/8 part of what ye shall leave, after the legacies which ye shall bequeath, and your debts be paid. And if a man or woman’s substance be inherited by a distant relation, and he or she has a brother or sister, each of them two shall have 1/6 part of the estate, But if there be more than this number, they shall be equal sharers in a third part, after payment of the legacies which shall be bequeathed and the debts, without prejudice to the heirs.” The meaning of the explanation is, that the word “after,” as used in the Koran, simply refers to the balance of the estate after the payment of debts and legacies, but does not affect the question of devolution. That this is the interpretation accepted by the Muslim jurists in general is best shown by a passage in Al Sirajiyyah, a treatise of, the highest authority on the Muslim Law of inheritance, which Sir William Jones translated about a century ago; and in citing the passage I cannot do better than adopt his words: “Our learned in the law (to whom God be merciful) say: There belong to the property of a person deceased four successive duties to be performed by the Magistrate/Kazi
First, his funeral ceremony and burial without superfluity of expense, yet without deficiency;
Second, the discharge of his just debts from the whole of his remaining effects;
Thirdly, the payment of his legacies out of a third of what remains after his debts are paid; and
Lastly, the distribution of the residue among his successors, according to the Divine Book, to the Traditions, and to the assent of the learned scholars.
Kazim Ali Khan v Sadiq Ali Khan 1938 (65) IA 219 232
NK Mohammad Sulaiman v NC Mohammad Ismail 1966 SCR (1) 937 immediately devolves on heirs.
Vechil v Putumma AIR 1991 SC 720: Muslim law regulating the liability of a deceased person heirs in respect of his unpaid debts.
Sunni Law of inheritance-General Principles
Muslim jurists gave a great deal of importance to laws of inheritance (فراید)
The law consists of two distinct elements-
The custom of Ancient Arabia and rules laid down by Quran and the founder of Islam. The Quranic reform case as a superstructure upon the ancient tribal law, it corrected many social and economic inequalities then prevalent.
Quran is an amending act rather than an exhaustive code
The Islamic scheme of inheritance discloses three peculiarities-
The Quran gives specific shares to certain individuals
The residue goes to agnatic heirs and failing them to uterine heirs
The bequest is limited to 1/3 of the estate
Principles of pre-Islamic law
The nearest male agnates (اسابات) succeeded
Females and cognates were excluded
Descendants were preferred to ascendents and ascendents to collaterals
Where the agnates were equally distant, the estate was divided per capita
Reforms made by Islam
The husband and wife were made an heir
Females and cognates were made competent to inherit
Parents and ascendents were given the right to inherit even when there were male dependents
As a general rule, female was given one-half of the share of the male
Nature of Property (مال) distinction between joint, separate, movable and immovable, etc. Property includes corpus (این) and usufruct (منافی), doctrine of survivorship is not known shares of each Muslim is definite
No concept of Joint Family and heirs inherit as Tenants-in-common
Single scheme of succession for both male and female-blood relations or consanguinity is the primary principle, no affinity and source of acquisition of property is irrelevant
There is no birth right in the property and spec succession is not recognised and they have no value as rights in property arise only on death of the holder.
Doctrine of representation is not recognised in India (principle of nearer excludes the farther still applies)
Rights of females-absolute owner, half share of the male, no concept like widow’s estate
Inheritance in case of the child in a womb-entitled to inherit but must born alive
Inheritance in case of death resulting from common calamity or simultaneous deaths of two heirs, such heirs are regarded as if they did not exists at all.
Succession where marriage of the deceased was performed or registered under the Special Marriage Act 1954 ISA 1925
Primogeniture is not the principle of inheritance under which the eldest son of the deceased enjoy certain
Missing Persons-90 years in older Muslim law but now governed by S.108 by IEA which is 7 years
Escheat-where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by government through the process of escheat. State is regarded as the ultimate heir of every deceased
Relinquishment of a share-Relinquishment of a contingent right of inheritance (itself a nullity in law) by a Muslim heir is generally void in Muslim law but if it is supported by good and not necessarily valuable consideration and forms part of a valid family settlement, it is perfectly valid.
Apostate or difference of religion-change after the caste disabilities removal Act. Religion of person at the time of his death is important as the property devolve according it.
Illegitimate children-cannot inherit from father but mother.
Adopted child-Adoption is not recognised by Muslim law.
Classes of heirs-
Heirs are divided into seven classes, three principle and four subsidiary classes
Quranic heirs (Sharers)
Agnatic heirs (residuaries)
Uterine heris (distant kindred)
Disqualification/competence to inherit
Every person including a child in the womb provided it is born alive is entitled to inherit unless there is a specific rule of exclusion
Types of exclusion-
Imperfect or partial exclusion-Sister becomes agnatic heir in presence of brother
Perfect or total exclusion-father completely excludes a grandfather
Imperfect exclusion means exclusion from one share and admission to another. Eg-sister by herself is a Quranic heir but by the co-existence of a brother she may be excluded as a Quranic heir and admitted as an agnatic heir.
Perfect exclusion two sets of persons who inherit-
The primary heirs who are never excluded-husband or wife ie surviving spouse, father and mother, son and daughter, these heirs exclude others on occasion but are themselves never excluded
All the heirs, each of whom may be excluded by someone else. Brother is an heir but excluded either by son or by father.
The term perfect exclusion applies to cases where although a person is related to the propositus and is otherwise entitled to inherit, there is some legal cause which excludes him. These are religion, homicide, slavery and illegitimacy.
Classes of heirs-
Heirs are divided into seven classes, three principle and four subsidiary classes
Quranic heirs (Sharers) عشاب ال فرایز
Agnatic heirs (residuaries) عشابات
Uterine heris (distant kindred) دھاوئل عرھام
Class 1 heirs-Quranic heirs (12 in numbers)
Heirs by Affinity-husband and wife
Blood Relations-father, true grandfather HHS (How high so ever), mother true grandmother HHS, daughter, son’s daughter HLS (How low so ever), full sister, consanguine sister, uterine brother, uterine sister.
Class 2-Agnatic heirs
Group 1-agnates in their own right-son’s son HLS (descendants)
Group 2-agnates in the right of another father-Quranic heir, agnatic heir, or in both capacities at the same time, true grandfather, HLS-in the absence of father his place is taken by a true grandfather HHS (ascendants)
A Muslim woman dies leaving behind husband and father. Husband will get ½ and remaining ½ will be inherited by grandfather as an agnatic heir.
A Muslim man dies leaving behind widow and son. Widow will get ⅛. And the son will get remaining ⅞
A Muslim man dies leaving behind two widows, two sons and a daughter. Widows will jointly get ⅛ and shares of sons and daughter will be-2x+2x+x=⅞; 5x=⅞; x=7/40; sons will get 7/20 each and daughter will get 7/40.
A Muslim woman dies leaving behind husband, son and daughter. Husband will get ¼ and son will get ½ and daughter will get ¼.
A Muslim man dies leaving behind father and two sons. Father will get ⅙ and sons will get 1/12 each.
A Muslim man dies leaving behind father and daughter. Father will get ⅙ and daughter will get ½. Remaining ⅓ will go to father as agnatic heir. (IMP)-Inheriting in dual capacity
A Muslim man dies leaving behind mother, son and daughter. Mother will get ⅙ and remaining ⅚ will go to son and daughter.
A Muslim man dies leaving behind mother and brother. Mother will get ⅓ and brother will get remaining ⅔.
A Muslim man dies leaving behind mother and father. Mother will get ⅓ and remaining will go to Father.
A Muslim woman dies leaving behind husband, father and mother. Husband will get ½. Mother will get ⅓ of ½ ie ⅙ and remaining will go to father.
A Muslim man dies leaving behind father, mother and wife. Wife will get ¼ and mother will get ⅓ of ¾ ie ¼ and remaining ½ will go to father as an agnatic heir.
A Muslim man dies leaving behind father, mother and brother. Mother will get ⅓ and father will get remaining ⅔. Brother will get nothing as he has been excluded by the presence of father.
A Muslim woman dies leaving behind husband, mother, father and brother. Husband will get ½. Mother will get ⅓ of ½ ie ⅙. Father will get the remaining ⅓ as agnatic heir and brother will get nothing.
A Muslim man dies leaving behind father, mother and two daughters. Daughters will get ⅔. Mother will get ⅙ and father will get remaining ⅙ as an agnatic heir.
Doctrine of Increase-
- Aul or Awl method of reducing the sum total of shares to a unity in case after the assigning the shares to the sharers, it is found that the sum total of shares exceeds unity, then share of each sharers will be proportional reduced.
A woman dies leaving behind husband, mother and two daughters. Mother will get ⅙. Daughters will get ⅔ and Husband will get ¼. Total is coming as 25/24. Hence sum of numerator will be taken as denominator ie Mother will get 4/25, Daughters will collectively get 16/25 and father will get 6/25.
A woman dies leaving behind husband and two full sisters. Husband will get ½. Sisters will get ⅔. Total is 7/6 which is exceeding the total share so First we have to make the denominators equal which will be 3/6 and 4/7. Then we have to add the numerators and make it denominator ie in this case sum of numerator is 7 so the shares will be 3/7 and 4/7. (IMP)
A man dies leaving behind a wife, 2 daughters and father and mother. Wife gets ⅛. Daughters will get ⅔ collectively. Father will get ¼. Total is 1/8+2/3+¼=3+16+6=25/24 which is exceeding the total share. Sum of numerator is 25, hence 3/25;16/25 and 6/25.
A woman dies leaving behind husband, 2 full sisters and mother. Husband gets ½. Sisters will get ⅔ of ½ ie ⅓. Mother will get ⅙.
Doctrine of return-RAAD
This doctrine will apply when there are no residuaries.
According to this doctrine, when after the distribution of share among the heirs, some residuary is left and nobody is there to take it. Then leftover is distributed amongst the sharers in the proportion of their shares. This is done by reducing the factional shares to a common denominator and by decreasing denominator to those shares so as to make it equal to the sum of the numerators.
The surviving spouse is not entitled to take a share from the return or raad, as long as any other sharer or any distant kindred is present.
A person dies leaving behind husband and a daughter. Husband will get ¼ and daughter will get ½. ¼ is left and there are no agnatic heir so doctrine of return will be applicable. And therefore the remaining share will go to daughter.
A person dies leaving behind wife and a full sister. Wife will get ¼ Sister will get ½.
A person dies leaving behind husband, daughter and father. Husband will get ¼. Father will get ⅙ and daughter will get ½. Since father is also a residuary heir, he will get the remaining and doctrine of return will not be applicable. (IMP)
A person dies leaving behind mother and daughter. Daughter will get ½. Mother will get ⅙ and remaining ⅓ will be proportionally divided between mother and daughter ie by taking LCM their their share will be 3/6 and ⅙.
A person dies leaving behind mother, wife and father. Wife will get ¼. Mother will get ⅓ of ¾ which is ¼ and remaining will go to father.
WAKF IN ISLAM
Abdul Fatah v Rasamaya Dhur Chowdhary 1894 Vol 22 IA 76
Facts-Defendants executed a Wakf deed in 1868 in respect of all their immoveable property and appointed themselves mutwalis, but in 1874 revoked the wakf citing their certain necessities, and mortgaged and alienated numerous parcels of the property. In 1888 his heirs filed a suit to have it declared that all the property was wakf, and sought possession from the mortgagees all the property alienated by their father, and to have him removed from the post of mutwalis.
Issue-Whether there was a valid wakf?
Held-If the instrument in question did create a valid wakf when it was executed, no subsequent conduct of the wakfs could affect its validity; and unless from that conduct it can be inferred that they never intended to make a wakf at all, the consideration of it is not material to the question which we have to decide. From the passages of the deed it is quite clear that the purposes for which this wakf was made were, so to speak, secular rather than religious; and that it was intended to operate as a perpetual tying up of the properties for the sole benefit of the appropriators and their descendants for so long as any of them should exist in the world. The only definite religious or charitable object indicated is the support of the poor, the widows and orphans; and this object is contingent upon the total extinction of the appropriators’ family in some future age. To constitute a valid wakf there must be a dedication of the property solely to the worship of God, or to religious or charitable purposes. Most of the cases laid before us, seem to us to establish the fact that wakf must be in favour of a religious or charitable purpose, although there may be a temporary intermediate application of the whole or part of the benefits to the appropriator’s family. Precisely such, in our judgment, is the deed before us, and notwithstanding the fact that for a few years after its execution the owners of the property dealt with it nominally as mutwalis, it is certain that they had not really intended to give up their proprietary rights in it. And before very long they abandoned even the semblance of mere trusteeship. We cannot believe that the authors of Muslim law intended that, under cover of a pretended dedication to Almighty God, owners of property should be enabled to secure it for their own use, protect it for ever from their own and their descendants’ creditors, and repudiate alienations in respect of which they have received full consideration. In our opinion, then, the deed before us cannot be sustained as a valid wakfnamah.
Waqf is a an important branch of Muslim Law because it is interwoven with the entire religious life and social economy of Muslims
Purpose of Waqf
Preservation of religious, charitable & philanthropic Institution.
Educational & Economic development of a community as a whole.
S.2 of The Waqf Validating Act 1913-“Waqf means the permanent dedication by a person professing the Muslim faith of any purpose recognized by the Muslim Law as religious, pious or charitable.”
S.3 of The Waqf Validating Act, 1995-“Waqf means the permanent dedication, by person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable.”
Essentials of a Valid Waqf-
Permanent dedication of any property.
By a person professing Muslim faith.
For any purpose recognized by Muslim Law as religious, pious or charitable.
Legal incidents of Waqf-
Pious or charitable use of usufruct
Absoluteness and unconditional
Immediate and not contingent
Ownership of the Wakif ceases
Wakf property ceases to be heritable
Modes of Waqf-
By an act inter vivos
During death-illness (marz-ul-maut); or
By immemorial user
Who can create Waqf?
A waqf is created by the waqif in favour of whether mosque or organisation through waqfnama.
There are only two qualifications of waqif for making a valid waqf, namely
That he should be of sound mind; and
That he should be a major person.
He must be owner of the subject of the waqf.
The core beliefs of Islam do not recognize waqf made by a non-Muslim, although in certain cases the dedication of land as a graveyard by a Hindu has been held to be valid. Under S.104 of 1995 Act, non-muslims can make waqf.
For whom Waqf can be made?
According to Muslim law, waqf may be made
For the rich and the poor alike.
For the rich and thereafter for the poor.
For the poor alone.
The law does not insist that a man must necessarily be proved to be poor before he can take the benefit of a waqf. All persons regardless of wealth are entitled to come in as beneficiaries.
As regards relationship, the waqif or the family and the descendants of the waqif or unrelated persons are all capable of enjoying the benefits of a waqf.
A Non-muslim also is entitled to take benefit of a waqf, provided he/she is not an enemy.
Subject Matter of Waqf-
Abdul Rahim lays down that the property dedicated must possess three characteristics:
It must be tangible property, and
It must be capable of being used without being consumed.
Dedicated property should be in the possession of the waqif.
Immovable property , movable property , divisible or indivisible property , musha except construction of mosque , graveyard and leasehold property.
Doctrine of Cypress-Cypress means “as nearly as possible”. The doctrine of cypress lays down that if the wishes of the donor or testator cannot be carried out literally, they will carried as nearly as possible in the way desired.
Kinds of Waqf-
Public Waqf-Public Waqf is one for public, religious or charitable purposes
Private Waqf-Private Waqf is one for the settlor’s own family and descendants and is technically called, waqf-alal-aulad. It is family settlement by way of waqf.
Waqf by User-A waqf requires an express dedication but where there no such evidence to show as to when, how and by whom the dedication was made, the waqf may be established by evidence of user.
Waqf Mushrut-ul-Khidmat-It means grant burdened by condition of service. The grant is to perform services recognised by Muslim law as pious, religious or charitable.
Waqf-alal-aulad-The ultimate benefit is reserved for almighty, but the property vests in beneficiaries and all the income from the property is used for maintenance and support of the family of the founder and his descendants, and in case none of the family member is alive, it shall, then become a public waqf. This kind of waqf does not lay down the proper proposition of law.
Law before Waqf validating Act 1913-In Abdul Fata Mohammed Irshad v Russomoy Dhur Chowdhary (1894) 22 IA76, Privy Council laid down that if the primary object of waqf is the aggrandisement of family and the gift to charity is illusory where from the small amount or from its uncertainty & remoteness, the waqf is invalid and no effect can be given to it.
Law after Waqf validating Act 1913-
The above-noted decision of the privy council created dissatisfaction among the Muslims in India, who made strong representation to the effect that the Law as laid down was a departure from the Muslim Law. Accordingly the Waqf Validating Act of 1913 was passed, under which a Muslim can create a waqf for the benefit of his descendants, provided that the ultimate benefits is reserved for charity.
In Radha Kanta Deb v Commissioner of Hindu Religion Endowments Orissa AIR 1981 SC 798, Supreme Court observed that in a Wakf -alal-Aulad, the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the founder and his descendants. In case the family becomes extinct, the Wakf becomes a public Wakf and property is vested in God.
The Waqf Act 1955
The Waqf Act has been enacted by repealing the Waqf Act, 1954 to provide for the better administration of waqfs and for matters connected therewith or incidental there to and to bring uniformity in respect of waqf administration.
The Act consists of 113 sections in all.
S.3 of the Act defines terms such as beneficiary, mutawalli, waqf, waqf deed, benefit, Board, Tribunal.
The State government may appoint a Survey Commissioner of waqfs for the purpose of making a survey of waqfs existing in the state at the date of the commencement of the Act in order to prepare and submit a report to the State Government in this regard.
The Government forwards the report of the Survey Commissioner of the waqf to the Waqf Board. The Board shall examine the report and publish it in the Official Gazette. (Section 5). The total cost of survey shall be borne by the mutawalli.
The Central Government may establish the Central Waqf Council to advise on matters concerning the working of the Boards and the due administration of wakfs. The Council shall consist of the Union Minister in charge of wakfs ex-officio Chairperson.
The State Governments are empowered to establish a Board of Waqf each for Sunni and Shia Waqf separately provided the number of the Shia waqf in any state is more than fifteen percent of all the waqf in the State.
Under the S.32 of the Act the waqf Board is to administer, control, supervise the waqf, and to regulate the power of the mutawalli in so far as it relates to manage the waqf properties. The Waqf Board has power to sanction transfer of immovable property.
Under the S.23 of the Waqf Act, the CEO is appointed by the State Government in consultation with the Waqf Board. The CEO shall be a Muslim and he shall be ex-officio secretary of the Waqf Board and as such would work under the administrative control of the Board.
S.25 to 30 of the Act deals with the duties and powers of the CEO. The functions of the CEO shall include:
Investigating the nature and extent of waqf and waqf properties;
Inspecting or causing inspection of waqf properties and accounts, deeds or documents relating there to;
Doing generally of such acts as may be necessary for the control maintenance and superintendence of waqf.
The Act has clearly distributed powers between Waqf Board and the CEO who would be subordinate to the Waqf Board.
S.36 of the Act provides for the registration of a waqf at the office of the Board and the manner in which an application for registration of the Waqf is to be made in the form by mutawalli.
Under S.46 of the Act, every mutawalli is required to submit a full and true statement of accounts in the prescribed form and manner to the Board. According to Section the accounts submitted shall be audited and examined.
There are restrictions on to alienate waqf property by way of gift, sale or exchange under S.51. There are restrictions imposed on his power to grant lease of the waqf property. He is entitled for serious penalties under section 61 of the Act for violation of his duties.
Under S.52 of the Act the Waqf Board can recover the property transferred in contravention of S.51 of the Act and get delivery by sending a requisition to concerned collector.
The S.54 and S.55 of the Act incorporate the procedure for the removal of encroachment for the waqf property.
Mutawali-The manager or the superintendence of the Wakf is called mutawalli. Under the Muslim system, in case of a Wakf, all rights of ownership to the property vest in God. The mutawalli has no right in the property. He is merely a superintendent or manager.
Who can be made Mutawali?
Any person (male or female) who is of a sound mind, attained majority and is capable of performing the functions to be discharged under a particular waqf, can be appointed as mutawalli of the waqf.
Who can appoint Mutawali?
Wakif, founder of waqf
Court settlers family
Removal of Mutawali
By Waqf Board-S.64
To safeguard the existence of a large number of Wakf properties in India, a comprehensive Wakf Act was passed by Parliament in 1954.
Over the years, during the process of the implementation of the Wakf Act, many lacunae and loopholes were noticed and the Wakf Inquiry Committee recommended amendments that were incorporated in the Wakf Act of 1995.
Despite these efforts, the management of the Wakf Boards and the properties remains unsatisfactory. This is due to inadequate empowerment of the State Wakf Boards and the Central Wakf Council.
The basic problem comes in the implementation of the Act.
It has been found that even after the enactment of the Act, which lays down the provision for the survey of the waqf property still the exact amount of the property, is not known.
There has been increasingly misuse of the Waqf property, where it has been sold, in many metropolitan cities and even in Delhi.
The Waqf property is being sold to MNCs on which they make their offices or Malls.
One of the reason for this is that the officers who are to supervise all this, the CEOs are incompetent. Though the CEOs are entrusted with important responsibilities however, they are often promoted from lower ranks only.
As was found that one of the CEO was a graduate in Unani Medicine and the CEO of Shillong was a 10th standard fail person.
Even the State Waqf Boards are seen to misuse their power.
In a recent case, the Uttar Pradesh Waqf Board claimed Taj Mahal to be a waqf property, by laying down certain evidences to show that Shah Jahan intended it to be used as a Waqf and also that a part of the premises has been used by the people for religious purpose.
Rajinder Sachar committee was constituted to find the reason of such a condition of Waqf property and it reported that this condition is basically because the CEOs are incompetent.
The Sachar Committee Report suggested that an overhauling of the Waqf board is required as the government doesn’t get proper CEOs in most of the states and those who are there are either manning this post as an additional charge or are simply not qualified.
It also suggested that there should be an Indian Waqf Service (IWS) that should select the officers to work as CEOs.
Amendments shall be made to the existing Wakf Act by which a proper procedure for selection of the CEOs can be laid down, and they shall take their work seriously.
All the problems can be tackled only if the issue is taken seriously enough by the State and The Centre and proper implementation of the Act can be done otherwise these Boards will remain only paper tigers.
A Hindu female dies leaving behind mother, father, husband, son and daughter. She left behind 2 crores property. S.15(1)
A Hindu female dies issueless leaving behind father, mother, brother-in-law. She has 2 lakh of which 1 lakh she has received from provident fund.
A Hindu female dies leaving behind children of her deceased son, husband, sister, sister in laws and brother-in-laws. She left 1 lakh property.
Disclaimer– Pending review