M0DULE 1: JOINT FAMILY; COPARCENARY PROPERTY

Joint Family
• Joint Family consists of all lineal descendants from a common ancestor
including wives and daughters.
Karta of a Joint Family
• A joint Hindu Family is headed by a Karta, who is normally the eldest living
male member of the family.
• Karta has been created by Hindu jurisprudence.
• Karta withholds the maximum power and duty of superintendence such
as how the joint family is run, who is getting what? How the members are
being maintained?
• Karta is also entitled with the power to dispose of the property in times
of dire need/necessity.
• There cannot be 2 Karta(s) in a family
• After 2005 amendments in Hindu Succession Act, 1956, women have
been given equal proprietary rights in ancestral property.
• Women can also be Karta of the family.
• He is not supposed to be a dictator, as he/she holds a sensitive position
where he has to keep his family together by a balanced approach.
Power of a Karta
• Power of controlling income and expenditure of the joint family. He needs
to maintain an account but is not answerable to anyone/ for explanation
• Manager’s power; he has an implied authority

- regarding joint family business

- to contract debt for family purposes
- to enter into contracts
- to acknowledge debts or make a part payment of it

• Power to refer to arbitration any matter involving the interest of joint

Hindu family including minors
• Power to enter into compromise in any matter relating to joint Hindu
family property
• Legal Power to represent in suits

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 • Power of alienation of joint Hindu family property
Duties and Liabilities of a Karta

• He has pious obligations and indispensable duties.

• He has the duty to render accounts to the other coparceners regarding
the income from joint family property and expenditure thereon.
• He has the duty to realize the debt due to the family.
• He has the duty to spend the joint family funds only for the purposes of
the family and should spend reasonably.
• It is the duty of the Karta not to start a new business without the consent
of other coparceners.
• It is the duty of Karta not to alienate the coparcenary property without
legal necessity or benefit to the estate.
Coparcenary
• Within the joint family there is a narrower body called the Coparcenary.
• This includes the eldest male member + 3 generations. For example: Son
– Father – Grandfather – Great Grandfather. This special group of people
are called coparceners and have a definitive right in ancestral property
since the moment of their conception.
• Earlier only a Son/ Son’s son/ Son’s son’s son were coparceners – now
daughters are equal coparceners after 2005. They can get their share
culled out by filing a suit for partition at any time. A coparcener’s interest
is not fixed, it fluctuates by birth and deaths in the family.
• If a Mitakshara coparcener dies, immediately on his death his interest
devolves on the surviving coparceners.
Joint Family Property and Self-acquired Property
• Property can be divided into two categories:
✓ Ancestral/ Joint family property
✓ Separate/ Self-acquired property
• Concept of inheritance – Ancestral Property – devolves upon survivorship
upon the surviving members of coparcenary (Mitakshara Law) i.e. all the
lineal descendants in the 3 unbroken male line of descent.
• Before the 2005 amendment in the Hindu Succession Act, no female could
be a member of the coparcenary. However, after 2005 amendment in the
Hindu Succession Act, females too have right in the ancestral property.

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 • Concept of succession – Self-acquired Property – devolves upon heirs.
Madhu Kishwar v State of Bihar (AIR 1996 SC 1864)
In this case a three-judge bench had to consider the constitutional validity of
Sections 7 and 8 of the Chhotanagpur Tenancy Act, 1908. This Act was applicable
to the Scheduled Tribes in Bihar (now Jharkhand) and it denied the right of
succession to the females in favour of the males.
The constitutionality of this Act was challenged as being biased against females.
The Apex court had to decide whether the provisions of the Constitution would
be applicable to the tribals.
- The Apex Court by a majority of 2:1 held that the impugned provision
could not be held to be unconstitutional.
- In relation to the Hindu Succession Act, that the State Government can
exempt any race, sect or tribe from the operation of the Act and the State
of Bihar has exempted the tribes that are included in this petition.
- They decided that the right of the male successor would remain in
suspended animation until the right to livelihood of the surviving female
members of the deceased male is satisfied.
- In effect this means that as long as the female descendants are still
dependent on the land, the male successor’s right does not come into
operation.
- This is no doubt a very ingenious attempt by the Apex Court to uphold the
constitutional validity of these sections.
- But in effect, it is clear that even if certain provisions are blatantly biased
against women, some loophole in the law is going to be found to let such
bias continue.
- The dissenting judgement says that the customs of tribals are also subject
to the constitutional mandate of gender equality. He held the impugned
provisions to be violative of the constitution.
- This decision only reflects the general reluctance to let women be
economically independent. It would also appear as if this decision is a
great blow to the struggle for gender equity.

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Incidents of Coparcenary/ Ancestral Property under Hindu Law
• Four generation rule – The lineal male descendants of a person, up to third
generation (excluding him), acquire on birth, an interest in the
coparcenary property.
• Creation of law – Coparcenary is also a creation of law and cannot be
formed by an agreement between the parties.
• Only males – No stranger can be introduced in the coparcenary. Only a
male child, born in the family or validly adopted, can become a
coparcener.
• Collective enjoyment – The proceeds of undivided family must be brought
to the common chest or purse and then dealt with according to the modes
of enjoyment by the members as an undivided family till a partition takes
place because they hold everything jointly.
• Acquisition of interest by birth – A coparcener in a joint family is born with
an interest in the coparcenary property which means that the moment he
is born in the family he gets a right by birth in the ownership of the
coparcenary property.
• Fluctuating and not a specific interest – A coparcener on birth gets an
interest in the coparcenary property. His interest in the property is not a
specific share and is subject to fluctuation with the deaths and births of
other coparceners in the family. For example, a joint family comprises a
father and two sons. Each of these is a coparcener and entitled to one-
third share in the coparcenary property but on the death of any one
coparcener, it will fluctuate and will increase.
• Doctrine of Survivorship – Under the traditional law, on the death of a
coparcener, his interest in the family property is immediately taken by
those coparceners who survive him and thus he leaves nothing behind out
of his interest in the coparcenary property for his female dependents. This
phenomenon is called doctrine of survivorship.
• Alienation of undivided interests – Generally, a coparcener is individually
not entitled to alienate his undivided interest in the coparcenary
property. Only in certain situations the father or senior most male
member or the karta can alienate the undivided interest or even the
whole property.

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 • Two circumstances under which a Karta can alienate the Joint family
property: 1. When it is a legal necessity. 2. For the benefit of the estate.
Otherwise, a Karta cannot alienate the joint family property.

Doctrine of Blending – [IMP]

The rule of blending in Hindu Law postulates a coparcener deliberately and

intentionally throwing his independently acquired property into the joint family
stock so as to form a part of it. The rule may be founded, on the text of
Yagnavalkya and the commentary thereupon by Vijnyaneshwara, in the context
of augmenting the value of joint property by individual efforts of coparceners.

Mallesappa Bandeppa Desai and Ors. Vs. Desai Mallappa and Ors. (AIR 1961
SC 1268)

Whether Hindu Law—'Doctrine of blending’ applies to property held by female

in limited right.

Facts:

- In a partition suit certain immovable property acquired by a Hindu female

from her father as a limited owner were claimed to form part of the joint
family property of her husband by virtue of the ‘Doctrine of Blending’ rule
as an established doctrine of Hindu Law.
- Held, that the claim must fail.
- Held, further, that a Hindu female owning a limited estate cannot
circumvent the rules of surrender and allow the members of her
husband's family to treat her limited estate as part of the joint family
property of her husband. (‘Limited estate’ means ‘she cannot alienate that
property. She can enjoy this property only as long as she lives and
thereafter it automatically gets transferred to her family of birth).
- Before the said rule can be invoked, it must be shown that the owner
wanted to extinguish his title to the property in question and impress
upon it the character of joint family property.
The Supreme Court observed that the ‘Rule of Blending’ postulates that a
coparcener who is interested in the coparcenary property and who owns
separate property of his own, may by deliberate and intentional conduct treat
his separate property as forming part of the coparcenary property. If it appears

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that property which is separately acquired has been deliberately and voluntarily
thrown by the owner into the joint stock with the clear intention of abandoning
his claim on the said property and with the object of assimilating it to the joint
family property, then the said property becomes a part of the joint family estate.

Difference between Obstructed Heredity/ Heritage & Unobstructed Heredity/

Heritage
• The Mitakshara divides property into two classes, namely, Obstructed
heritage and Unobstructed heritage.
• Joint family or ancestral property in which the male issues, i.e., sons,
grandsons and great grandsons acquire an interest by birth is called
“Unobstructed heritage” while separate or self-acquired property of a
person in which no right is acquired by birth, but such right is acquired only
on the death of the last owner is called “obstructed heritage”.
• The property to which right accrues not by birth but on the death of last
owner is called obstructed because the accrual of right to it is obstructed
by the existence of the last owner. Thus, the property devolving on
parents, brothers, nephews, uncles etc. upon the death of last owner, is
obstructed heritage. For example, A inherited certain property from his
brother who died issueless. The inherited property in the hands of A will
be an obstructed heritage for the sons of A. The sons of A will inherit the
property from A only after his death.
• The property in which a person acquires an interest by birth is called
unobstructed because the accrual of the right to it is not obstructed by
the existence of the owner. Hence, the ancestral property in the hands of
last male owner is unobstructed heritage.
- Thus, property inherited by a Hindu from his father, father’s father
and father’s father’s father is unobstructed heritage as regards his
own male issues, that is, his sons, son’s sons and son’s son’s son.
- This right arises on account of their birth in the family and the male
descendants in whom the property vests, are called coparceners. For
example, A inherited certain property from his father. Two sons born
to A, namely M and N are coparceners with A. M and N will acquire
an interest by birth in the ancestral property possessed by A. Thus,
the property in the hands of A is unobstructed heritage, as the
existence of the father is no obstruction or impediment to his sons
acquiring an interest by birth in the property.

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 • Inheritance is Unobstructed Heritage whereas Succession is Obstructed
Heritage.
Debts – Doctrine of Pious Obligation and Antecedent Debt
Concept of Doctrine of Pious Obligation
Under the Hindu Law, a son is under a pious (religious) obligation to discharge
his father's debts out of his ancestral property even if he had not been benefited
by the debts, provided the debts are not avyavaharika (immoral).
‘Pious obligation’ means the moral liability of sons to pay off or discharge their
father’s debts. Thus, if the father is the Karta of a Hindu joint family, he may
alienate the coparcenary property for discharging the antecedent debts. The
sons are under the obligation to recover such alienated property by repaying the
debts.
The sons get exonerated (absolved) from their obligation to discharge the debt
of their father from the family assets only if the debt was one tainted with
immorality or illegality.
According to the Hindu law, the pious duty to pay off the ancestors' debts and
to relieve him of the death torments consequent on non-payment was
irrespective of their inheriting any property, but the courts rejected this liability
arising irrespective of inheriting any property and gave to this religious duty a
legal character.
In Sidheshwar v. Bhubaneshwar Prasad, the judge makes observation, “The
doctrine of pious obligation has its origin in the conception of Smriti writers who
regard non-payment of debt as a positive Sin, the evil consequences of which
follow the undischarged debtor even in the after world. 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."
Thus, a series of decisions in the courts of modern India have changed the
traditional interpretation of the liabilities of the son, grandson, and great-
grandson.The son, grandson, and the great-grandson are liable equally for
ancestral debts, but not personally liable, and that their liability is co-extensive
and confined to the extent that they have joint property in their possession.

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Extent of Liability to pay Debts
• In case of separate property, the liability lies upon the legal heir only to
the extent of the asset inherited by him from the deceased. However, the
heir is not personally liable.
• The undivided interest of a coparcener in coparcenary property is always
liable for the payment of debts in his life-time.
• Undivided coparcener’s interest may be attached in his life time in
execution of decree against him for his personal debts.
• Where a coparcenary consists of collaterals, that undivided coparcenary
interest of a coparcener is not liable for the payment of his debts after his
death unless his interest is attached in his life-time. ??? [Collateral means
something pledged as security for repayment of a loan, to be forfeited in
the event of a default].
• Where the coparcenary consists of an ancestor and his sons, grandsons
and great grandsons and the ancestor dies, leaving debts, the whole
coparcenary property is liable for his debts even after his death, provided
the debts was not incurred for an immoral or unlawful purpose.
Antecedentary Debt

• “Antecedent” literally means prior or preceding in point of time, but the

words “antecedent debt” as used in Hindu Law implies two things:
(a) antecedent in time, and
(b) antecedent in fact in nature, that is to say, the debt must be truly
independent of and not part of the transaction impeached.
• It is now well settled that the father of Hindu joint family enjoys full right
to sell or mortgage the joint family property including the son’s interest
therein to discharge antecedent debt.
• A sale of joint family property, which is made to discharge a debt taken at
that very time or as a part of the sale transaction, is not valid because the
debt in this case is not an antecedent debt.
• Thus, the father has got the power to sell or mortgage the joint family
property for the payment of the debt, may it be for his personal benefit.
It would be binding on sons, provided—
(a) the debt was antecedent to the alienation, and
(b) It was not contracted for an immoral purpose.

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• In Brij Narain Rai v. Mangala Pd. (1924), the Privy Council laid down the
following propositions:
✓ The Karta of a joint family except for legal necessity cannot alienate
the joint property nor can mortgage it.
✓ If a decree has been passed for the payment of the debt it can be
executed against the entire estate, provided the son and the father
are living jointly.
✓ The Karta cannot mortgage the joint family property unless the
mortgage was done for the payment of some antecedent debt.
✓ “Antecedent debt” means a debt which is prior in time as well as in
fact.
✓ The fact that the father is alive or dead does not affect the liability.

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MODULE 2: INTESTATE SUCCESSION – INHERITANCE
As an adjective “Intestate” means not having made a Will before dying. As a
noun it means a person who has died without having made a will.
Intestate Succession among Hindus
Succession of property to Hindu Male Dying Intestate under the provisions of
Hindu Succession Act, 1956

• The Hindu Succession Act, 1856: like the old Hindu law, succession to the
property of a Hindu male and a Hindu female is dealt with separately.
• Sections 8 to 13 deal with succession to the property of a Hindu male. The
heirs of a Hindu male are broadly of four types – Class I, Class II, agnates
and cognates. The persons included in these categories are mentioned in
the Schedule to the Act.
• Section 8 lays down the order of priority among these classes of heirs by
laying down that the property will first go to the Class I heirs and in their
default to Class II heirs, failing which to agnates and thereafter to
cognates.
• Section 9 lays down that Class I heirs are simultaneous heirs, i.e., no one
excludes the other, all take simultaneously in accordance with the rules
of distribution of property among them, while Class II heirs, who are listed
in nine categories in the Schedule. The heirs in the previous category are
preferred to later categories.
• Section 10: rules of distribution of property among Class I heirs.
• Section 11: rules of distribution of property among a category of Class II
heirs.
• Section 12: says that agnates, however remote, will always be preferred
over a cognate, however proximate.
• Section 13 provides the modes of computation of degrees among the
agnates and cognates for the purpose of determining their order of
succession.
• This is a divergence from classical Hindu law, where all the coparceners
succeeded to the property of the deceased and all other relations,
however proximate and all the legal heirs of the deceased were excluded.
Section 8: General rules of succession in the case of males―The property of a
male Hindu dying intestate shall devolve according to the provisions of this
Chapter:

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 (a) firstly, upon the heirs, being the relatives specified in class I of the
Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the
relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates
of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
[Intestate – not having made a will before one dies; Agnate – a person
descended from the same male ancestor; Cognate – a blood relative, especially
on the mother's side.]

The Schedule

Heirs in Class I and Class II

Class I

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-

deceased son; son of a pre-deceased daughter; daughter of a pre-deceased
daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-
deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of
a pre-deceased son of a pre-deceased son; son of a predeceased daughter of a
pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased
daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter
of a pre-deceased daughter of a pre-deceased son.

Class II

I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4)
sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s
daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s
daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.

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 IX. Mother’s brother; mother’s sister.
Explanation―In this Schedule, references to a brother or sister do not include
references to a brother or sister by uterine blood.

[Brother or sister by uterine blood means siblings of a common mother i.e. two
or more children of the same mother: Thus, uterine siblings are distinguished by
the same mother but different fathers. Step-brother or step-sister joined by
blood through their common mother.]

Thus, the heirs of a Hindu male are broadly of four types – Class I, Class II,
agnates and cognates. The persons included in these categories are mentioned
in the Schedule to the Act.

Section 8 lays down the order of priority among these classes of heirs by laying
down that the property will first go to the Class I heirs and in their default to
Class II heirs, failing which to agnates and thereafter to cognates.

Section 9: Order of succession among heirs in the Schedule―Among the heirs

specified in the Schedule, those in class I shall take simultaneously and to the
exclusion of all other heirs; those in the first entry in class II shall be preferred to
those in the second entry; those in the second entry shall be preferred to those
in the third entry; and so on in succession.

Section 9 lays down that Class I heirs are simultaneous heirs, i.e., no one
excludes the other, all take simultaneously in accordance with the rules of
distribution of property among them, while Class II heirs, who are listed in nine
categories in the Schedule, the heirs in the previous category are preferred to
later categories.

Section 10: Distribution of property among heirs in class I of the Schedule―The

property of an intestate shall be divided among the heirs in class I of the Schedule
in accordance with the following rules:―

Rule 1.―The intestate’s widow, or if there are more widows than one, all the
widows together, shall take one share.

Rule 2.―The surviving sons and daughters and the mother of the intestate shall
each take one share.

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Rule 3.―The heirs in the branch of each pre-deceased son or each pre-deceased
daughter of the intestate shall take between them one share.

Rule 4.―The distribution of the share referred to in Rule 3—

(i) among the heirs in the branch of the pre-deceased son shall be so made
that his widow (or widows together) and the surviving sons and daughters
get equal portions; and the branch of his pre-deceased sons gets the same
portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so
made that the surviving sons and daughters get equal portions.
Section 10 lays down rules of distribution of property among Class I heirs.

Section 11: Distribution of property among heirs in class II of the Schedule―The

property of an intestate shall be divided between the heirs specified in any one
entry in class II of the Schedule so that they, share equally.

Section 11 lays down rules of distribution of property among a category of Class

II heirs.

Section 12: Order of succession among agnates and cognates―The order of

succession among agnates or cognates, as the case may be, shall be determined
in accordance with the rules of preference laid down hereunder:

Rule 1.―Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2.―Where the number of degrees of ascent is the same or none, that heir
is preferred who has fewer or no degrees of descent.

Rule 3.―Where neither heir is entitled to be preferred to the other under Rule 1
or Rule 2 they take simultaneously.

Section 12 lays down that agnates, however remote, will always be preferred
over a cognate, however proximate.

Section 13: Computation of degrees―

(1) For the purposes of determining the order of succession among agnates
or cognates, relationship shall be reckoned from the intestate to the heir
in terms of degrees of ascent or degrees of descent or both, as the case
may be.

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 (2) Degrees of ascent and degrees of descent shall be computed inclusive of
the intestate.
(3) Every generation constitutes a degree either ascending or descending.
Section 13 provides the modes of computation of degrees among the agnates
and cognates for the purpose of determining their order of succession.

These provisions of the Hindu Succession Act, 1956 are a divergence from
classical Hindu law, where all the coparceners succeeded to the property of the
deceased and all other relations, however proximate and all the legal heirs of
the deceased were excluded.

Succession to the property of a Hindu Female Dying Intestate under the

provisions of the Hindu Succession Act, 1956

• In traditional Hindu law, a female Hindu’s property was of two kinds:

➢ Stridhana, and
➢ Women’s estate.
• Section 14 of the Hindu Succession Act has abolished the division of
property belonging to a woman into these two categories. It has
converted a woman’s estate and stridhana into her full estate. It applies
to those women’s properties which were in the possession of the woman
when the Act came into force.
• Sections 15 and 16 of the Act deal with the general rules of succession to
the property of a Hindu female dying intestate and the order of
succession.
• It is interesting to note that although there is no such thing as stridhana
and woman’s estate after the coming into force of this Act, the source of
acquisition of a female Hindu’s property is still important, as the order of
heirs depends upon the source of the property of a Hindu female.
Section 14: Property of a female Hindu to be her absolute property―

(1) Any property possessed by a female Hindu, whether acquired before or

after the commencement of this Act, shall be held by her as full owner
thereof and not as a limited owner.
Explanation.―In this sub-section, “property” includes both movable and
immovable property acquired by a female Hindu by inheritance or devise,
or at a partition, or in lieu of maintenance or arrears of maintenance, or
by gift from any person, whether a relative or not, before, at or after her

14
 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 stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired
by way of gift or under a will or any other instrument or under a decree or
order of a civil court or under an award where the terms of the gift, will or
other instrument or the decree, order or award prescribe a restricted
estate in such property.
Section 15: General rules of succession in the case of female Hindus―

(1) The property of a female Hindu dying intestate shall devolve according to
the rules set out in section 16―
(a) firstly, upon the sons and daughters (including the children of any
pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),―
(a) 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 in sub-section (1) in the order specified
therein, but upon the heirs of the father; and
(b) 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.
Section 16: Order of succession and manner of distribution among heirs of a
female Hindu―The order of succession among the heirs referred to in section 15
shall be, and the distribution of the intestate’s property among those heirs shall
take place according to the following rules, namely:

Rule 1.―Among the heirs specified in sub-section (1) of section 15, those in one
entry shall be preferred to those in any succeeding entry, and those included in
the same entry shall take simultaneously.

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Rule 2.―If any son or daughter of the intestate had pre-deceased the intestate
leaving his or her own children alive at the time of the intestate’s death, the
children of such son or daughter shall take between them the share which such
son or daughter would have taken if living at the intestate’s death.

Rule 3.―The devolution of the property of the intestate on the heirs referred to
in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15
shall be in the same order and according to the same rules as would have applied
if the property had been the father’s or the mother’s or the husband’s as the case
may be, and such person had died intestate in respect thereof immediately after
the intestate’s death.

Bhagat Ram v Teja Singh (AIR 2002 SC 1)

Issue: whether on the facts and circumstances of the case, sub-section (1) or
sub-section (2) of section 15 of Hindu Succession Act 1956 will apply.

Facts:

- Two sisters Santi and Indro inherited property from their widowed
mother. One of the sisters, Santi died. Mutation on the entire land was
done in favour of Indro, the other sister. Subsequently, Indro decided to
sell off the land which had come in dispute.

- Teja Singh is the brother of Santi's pre-deceased husband. He filed a suit

for possession of the half share of the suit land which had fallen to the
share of Santi.

- The trial court decreed the suit holding that Section .15(1)'will apply.

- High Court also dismissed the appeal filed by the appellant. Hence the
present appeal by special leave.

The SC held: under Section 15(1) (b) of the Act, if female Hindu dies intestate
and issueless, the devolution of property shall be on the basis of the source from
which property was inherited by female. If property held by a female was
inherited from her father or mother, in the absence of any son or daughter of
the deceased including the children of any pre-deceased son or daughter, it
would only devolve upon the heirs of the father

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In this case, Shanti’s sister, who was the only legal heir of the father of deceased
female Hindu, inherited the property because 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.

Disqualifications relating to Succession (Sections 24 – 28)

Under this Act the disqualifications are divided into three types:

(i) Widow’s re-marriage (S. 24)

(ii) A murderer (S.25)
(iii) Conversion to other religion (S. 26)
Section 24 repealed

In classical Hindu law, certain female heirs if they had remarried after the death
of their spouses, before the succession opened, were disqualified from
inheriting the property of the deceased intestate, for being unfaithful to their
obligations. Under the Hindu Widow Remarriage Act, 1956, if a Hindu widow
remarried, she could not inherit the property of her deceased husband. Under
Section 24 of the Hindu Succession Act, only three female heirs were disqualified
on such grounds, namely:

• Son’s widow
• Son’s son’s widow
• Brother’s widow
By the Amendment Act 2005, Section 24 has been omitted with effect from
09.09.2005. So, now such widow is also entitled to succeed the property
of the intestate.

Section 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 provision was not specifically provided for in traditional Hindu law.
- It was a disqualification in the Dayabhaga school, but only the
murderer himself was disqualified, not the abettor of the murder.
- Not provided for in the Mitakshara school.

17
 • Section 24 applies to both intestate and testamentary succession. The
section definitely applies in the cases where the property is to be
inherited as per the Act but it also applies where the testator has left
behind the will.
Section 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.

• Under the old Hindu law, conversion of any Hindu person into another
religion was a disqualification which was later removed by the Caste
Disabilities Removal Act of 1850 and upheld by this Act.
• However, although conversion does not disqualify a person form
succeeding to the property of an intestate under this Act, his descendants
are disqualified from inheriting such property.
• This section has no application to testamentary succession where the
terms of the testament govern the rules of succession but it is only
applicable to intestate succession.
• Thus, the children of a convert and their descendants are disqualified. But
if at the time of death of the intestate, any of them are Hindu, they are no
longer disqualified.
Section 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 the intestate.

• This means that no title or right to succeed can be traced through the
disqualified person. As the disqualified person is deemed to have died
before intestate, it follows that no person can claim a right of inheritance
to such property, through him or her. For, this can only happen if the
property had vested in the disqualified person, and he or she had
thereafter immediately died. The property, in fact, never vests in the
disqualified person. Therefore, a disqualified person cannot be a fresh
stock of descent and a person claiming as an heir of the disqualified
person cannot inherit.

18
Section 28: Disease, defect, etc., not to disqualify―No person shall be
disqualified from succeeding to any property on the ground of any disease,
defect or deformity, or save as provided in this Act, on any other ground
whatsoever.

• Under the old Hindu law some diseases, deformities and unchastity were
disqualifications of heirs, though they were not the same in both
Dayabhaga and Mitakshara law.
- Mitakshara law: some disqualifications were: congenial lunacy or
idiocy, adoption of a religious order (i.e. taking a sanyas) and
unchastity of widows.
- Dayabhaga law: the disqualifications were blindness, deafness,
dumbness, want of any limb or organ since birth, idiocy, lunacy,
unchastity of widows and, any virulent and incurable form of leprosy
rendering one unfit for intercourse.
• The widowed mother and widowed stepmother are not disqualified from
inheritance even if they have remarried.
- If she has remarried during the lifetime of her husband, her second
marriage is void and therefore she would not be considered to have
remarried.
- If she has remarried after divorcing her husband, and therefore has
ceased to be his wife so, she will not be his widow at propositus
(In making genealogical tables, the person whose relations it is desiro
us to find out, is called the propositus.) death.
- But the subsequent marriage of the widow is no disqualification.
General Rules of Succession

Section 18 – 23 lay down the general rules relating to succession. These

provisions apply to all the properties irrespective of the fact whether it is left by
a male or a female Hindu dying intestate.

Section 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.

19
 • According to Section 3(e) of the Act,
- full blood: two persons are said to be related to each other by full
blood when they are descended from a common ancestor by the same
wife,
- Related by half-blood: when they are descended from a common
ancestor but by different wives.
• Section 18 lays down a rule of general applicability to male and female
heirs alike.
• Section 18 makes it clear that the heirs related by full-blood shall be
preferred to heirs related by half-blood, provided “the nature of
relationship is same in every other respect”. Thus, the full sister’s
daughter shall be preferred to half-brother’s son. Similarly, a full sister
excludes a half-sister.
Section 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―

(a) save as otherwise expressly provided in this Act, per capita and not per
stirpes; and
(b) as tenants-in-common and not as joint tenants.
‘per capita’ & ‘per stirpes’:
‘per capita’: Suppose A dies, leaving behind B, his son, and C and D, who
are the sons of another son of A, (say X), who has died before A. If the
distribution of A’s property is to take place per capita, the estate will have
to be divided into three shares, and each heir will get one share. In this
illustration, therefore, B, C and D will each get one-third of the estate.
‘per stirpes’: On the other hand, in a distribution per stirpes, a claimant
gets a share as representing some other person. In this illustration, the
property would be divided into two shares, and B would get one share.
The other share (representing that of the deceased son, X) would be
divided between C and D. In other words, B, C and D would not get equal
shares. B would get one-half, and C and D, one-fourth each.
• Joint Tenancy and Tenancy-in-Common: When property is jointly held, it
may be held by the owners, either as tenants-in-common or as joint
tenants.
- tenants-in-common: means joint possession with separate ownership
without the right of survivorship. On the death of one of them, his
share would go to his heirs.

20
 - Joint tenany: means joint ownership with the right of survivorship. In
the case of joint tenants, the heirs of the deceased get nothing, and his
share devolves upon the remaining joint owner or owners.
Section 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.

• Section 20 expounds a legal fiction that the rights of a child born in justo
matrimonio are regarded with reference to the moment of conception in
the womb, and not of actual birth. Such an unborn child in the womb, if
later born alive, is treated as if it had been born at the time of the death
of the intestate.
Section 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.

• There may be controversy regarding inheritance in such situations as to

who will succeed to who’s property. Before the enactment of this Section,
there was no answer to such questions. The burden of proof was on the
party who asserted the affirmative. If the evidence before the Court was
balanced, the balance of probabilities was considered to be in the favour
of the younger.
• According to this Section, the presumption of survivorship applies, by
which the younger is presumed to have survived the older. In this Section,
‘younger’ means younger in status not in age and only when the status is
the same, younger in age. Thus, if an uncle aged thirty years and a nephew
aged thirty- five years, die in a plane crash or a ship wreck, it will be
presumed that the nephew died later, even though he is older in terms of
actual age. On the other hand, if two brothers die simultaneously in any
accident or calamity, the brother younger in age is presumed to have died
later.
• This is a peculiar feature of this Act, as it was altogether not provided for
at all in the classical law or the previous legislations regarding Hindu
succession.
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Section 22: Preferential right to acquire property in certain cases―

(1) 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.
(2) 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.
(3) 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.

• Section 22 recognizes the rules of pre-emption which has the tendency to

raise clogs on the full sale and purchase of property. But the rule of
preferential right to acquire property or business in certain cases is
subject to certain rules laid down under this section. The provisions of the
section were necessary in order to safeguard the interests of the co-heirs,
otherwise the very foundations of the Hindu family would have been
shattered.
• The preferential right can be claimed within 1 year of alienation and not
after 13 years. The right of co-heir to seek transfer of property proposed
to be sold is only a personal right which is neither transferable nor
heritable. By exercising the preferential right to purchase the share of a
co-heir in the business or estate, the strangers can be prevented from
stepping into the joint business or estate.

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Prakash v Phulavati (2016 (2) SCC 36)

Issue: retrospective application of Section 6 (1) of the Hindu Succession

Amendment Act, 2005, which grants equal rights to sons and daughters of a
coparcener, in his share of ancestral property.

Facts of the Case

- The Appellant contested that Respondent could claim only the self-
acquired property of her deceased father, and not his ancestral property.
- The suit was filed in the year 1992 and the Amendment Act was made
effective from 9th September 2005.
- The Respondent, during the pendency of the suit amended her plaint to
claim her share as per the Amendment Act.

Decision of the Supreme Court

The Supreme Court accepted the contention of the Appellant that the present
case was was governed by the Principal Act of Hindu Succession Act, 1956.

As the shares in the Ancestral Properties were already allotted to the heirs under
the Hindu Succession Act, 1956 (“Principal Act”). The said rights cannot be taken
away by a subsequent amendment to the Principal Act. The Amendment Act is
applicable only from 9 September 2005. Hence, the present case cannot be
governed by the Amendment Act.

The Supreme Court held that even though the Amendment Act is a social
legislation, it cannot be applied retrospectively, unless intended by the
legislature and expressly provided under such legislation.

Intestate Succession among Muslims (Islamic Intestacy)

• Muslim law of succession constitutes the following sources of Islamic law
– Quran, Shariat Laws and Pre-Islamic customs in Pre-Islamic Arab.
• Prophet Mohammad just modernized and revised the laws and customs
prevailing during pre-Islamic Arab.

23
 Shia Mode of Succession
• Islam
Sunni Mode of Succession (Sunnis are majority Muslims across world.
General Principle of Succession
• Both movable and immovable property can be succeeded by heir along
with obligations attached to it.
• They do not recognize the concept of joint ownership and hence no
question of partition arises. They succeed property as “tenants in
common”.
• They do not have the concept of “primogeniture” i.e. the right of
succession belonging to the firstborn child i.e. the eldest son because he
has to bear extra responsibilities.
• “Right to Representation” is not there in Islam. Doctrine of representation
states that if during the lifetime of an ancestor, any of his or her legal heirs
die, but the latter’s heirs still survive, then such heirs shall become
entitled to a share in the property as now they shall be representing their
immediate generation. Doctrine of Representation finds its recognition in
the Roman, English and Hindu laws of inheritance.
• In Islam, an heir can alienate his property to another heir for
consideration.
• Liability for debt incurred by the deceased – on every heir only to the
extent of his share (both movable and immovable).
• No life estate can be created in Muslims but they can create Waqf for
charitable or pious purposes. They say it is an English concept.
• Disqualifications: Conversion to another religion, illegitimate child (in
Shias), slaves. Slaves have no right to inherit property in Islam.
Hanafi Law of Succession (Sunni Law of Succession)

• Under Sunni law, the Heirs are divided into two broad categories:
(a) Related heirs and
(b) Unrelated heirs.
• Related heirs are further sub divided into three groups:
(a) Sharers,
(b) Residuaries and

24
 (c) Distant Kindred, that comprise only blood relatives with the
exception of surviving spouse of the deceased.
• Unrelated heirs comprise of three kinds of heirs viz.
(a) Successor by contract (gets the property under a contract),
(b) Acknowledged kinsmen (person of unknown descent, but the
deceased makes an acknowledgement of kinship in his favour) and
(c) Universal legate (recipient of the whole property of the deceased
by will).
Hanafi Law of Succession recognizes three class of heirs
I. Preferential/ Quranic Heirs/ Sharers
II. Residuaries
III. Distant Kindred
The property in the first instance is to be distributed among those sharers who
are entitled to get the property. Sharers are the heirs who were earlier excluded
but were introduced as heirs by Koranic revelations. Their shares are fixed.
Among the heirs, the Sharers are to be given their share first, and then the
residue is to be distributed among the Residuaries. In the absence of the Sharers,
the Residuaries take the entire estate. In the absence of both the Sharers and
the Residuaries, the estate devolves on the Distant kindred. In their absence, the
estate goes to the State.
The rule has one exception, viz., in absence of the residuaries, if either of the
spouses is present i.e., widow or the widower, then the spouse will take his/her
fixed share as a sharer and the rest of the property would be taken by the Distant
kindred.
Class I: Preferential/ Quranic Heirs/ Sharers
• Pre-Islamic succession law provided the following:
✓ Nearest male agnate/cognate succeeded to the total exclusion of
remoter agnate. [Agnate means a person descended from the same
male ancestor. Cognate means a blood relative, especially from the
mother’s side].
✓ Females were excluded from inheritance so were cognates. Old law
of succession was clearly agnatic.
✓ Descendants were preferred over ascendants and ascendants over
collaterals.

25
 ✓ Where there were more than one agnates of equal degree, all of
them inherited the property and shared it equally taking per capita
per head.
• The above law was improvised to provide for the following:
✓ The husband and the wife being equal are entitled to inherit each
other’s property.
✓ Some nearer females and cognates are also recognized as heirs.
✓ The parents and certain other ascendants are made heirs even
when there are descendants. (Slightly pragmatic approach now)
✓ The newly created heirs include both agnates and cognates and are
called Preferential/Quranic Heirs/ Sharers. They will be given
specified shares and these will be given along with the old heirs.
• The Sharers are twelve in number – 4 males and 8 females
4 males:
✓ Father
✓ Grandfather or lineal male ascendant
✓ Uterine Brother
✓ Husband
8 females
✓ Wife
✓ Daughter
✓ Son’s daughter/ Lineal Male ascendant’s daughter
✓ Mother
✓ Grandmother on the male line
✓ Full Sister
✓ Consanguine (blood) Sister
✓ Uterine Sister
• Widow will get 1/4th when there is no child.
• Daughter will get ½ when one or no son.
• Mother gets 1/6th.
• Consanguine sister shall get ½.
• Grandmother – 1/6th
• Full Sister – ½
• Uterine Sister – 1/6th

26
Class II: Residuaries
• The Residuaries are the left behind ones after Class I heirs. They inherit
the property when the shares of sharers had been given to them.
• Sharers and Residuaries shall take the property simultaneously i.e.
residuaries take the property along with sharers.
Class III: Distant Kindreds

• The distant kindred succeed to the estate of the deceased only in the
absence of the sharers and residuaries.
• Types of Distant Kindred:
✓ Children of daughter and their descendants.
✓ Daughter of full brother.
✓ Offspring of grandparents.
Doctrine of AUL or Doctrine of Increase (Total of shares – Fraction > 1)
• According to Muhammadan law, the shares of various sharers are fixed.
Where several sharers co-exist, it sometimes happens that the total of
their respective shares exceeds unity (one).
• For example, the deceased leaves behind a husband and two full sisters.
Ordinarily, the husband will take 1/2, as there is no child or child of a son
howsoever low, and the two sisters together will take 2/3, as there is no
son.
• 1/2 + 2/3 = 7/6 which is > 1. The property in such case falls short in
distribution. This difficulty is solved by taking up the following method.
• Reduce the fractional shares to common denominator:
1/2 = 3/6 and 2/3 = 4/6
• Increase the denominator to make it equal to sum of numerators
i.e. 3 + 4 = 7
• Allow the individual numerator to remain the same making the shares 3/7
and 4/7. (3/7 + 4/7 = 1)
• Thus, the husband gets 3/7 and the two sisters get 4/7 making the total
unity.
Doctrine of RADD or Doctrine of Return (Total Shares – Fraction < 1)
• If, on assigning their shares to the sharers, it is found that the total of the
shares does not exhaust the whole i.e. the total of fractions of shares is

27
 less than unity, the individual shares have to be proportionately
increased.
• For example, mother gets 1/6th and daughter gets 1/2.
• 1/6 + 1/2 = 2/3 which is < 1
• Reduce the fractional shares to common denominator:
1/6 & 3/6
• Decrease the denominator to make it equal to sum of the numerators i.e.
4.
• Shares become 1/4 and 3/4. (1/4 + 3/4 = 1)
• Thus, mother gets 1/4 and daughter gets 3/4.
Intestate Succession among Christians
• Christians are governed by the Indian Succession Act, 1925 in the matters
of succession.
• Depends on consanguinity and affinity.
• The property of intestate devolves upon wife/ husband and children.
• Distribution of property where there is no lineal descendant:
→ Widow – ½ of property.
→ Distant kindred – ½ of property if lineal descendants are not there.
→ If only widow is left and no one else, then only she gets the
property.
→ Where there is no widow, no kindred or no lineal descendant, the
property goes to the State.
→ If it is widower instead of widow, same rules are applicable.
→ If no lineal descendants are there but only widow and children –
widow gets 1/3rd and children get 2/3rd of property.
• Distribution of property where there is a lineal descendant:
→ Where there are both lineal descendant and a child – property shall
be equally distributed.
→ Where there is a child/ children, grand child/ grand children –
property shall be equally distributed.
Important questions
Q. 1: Where there is no widow and no child, how shall the property be
distributed?

28
Ans.: When there is neither a widow nor children, the property shall be
distributed amongst lineal descendants. Sections 42 to 48 of Indian Succession
Act provide for distribution of property amongst lineal descendants.
For reference (These rules are applicable to all except Parsis and Muslims)
Section 42: If the intestate's father is living, he shall succeed to the property.
Section 43: -If the intestate's father is dead, but the intestate's mother is living
and there are also brothers or sisters of the intestate living, and there is no child
living of any deceased brother or sister, the mother and each living brother or
sister shall succeed to the property in equal shares.
Section 44: If the intestate's father is dead but the intestate's mother is living,
and if any brother or sister and the child or children of any brother or sister who
may have died in the intestate's lifetime are also living, then the mother and
each living brother or sister, and the living child or children of each deceased
brother or sister, shall be entitled to the property in equal shares, such children
(if more than one) taking in equal shares only the shares which their respective
parents would have taken if living at the intestate's death.
Section 45: If the intestate's father is dead, but the intestate's mother is living,
and the brothers and sisters are all dead, but all or any of them have left children
who survived the intestate, the mother and the child or children of each
deceased brother or sister shall be entitled to the property in equal shares, such
children (if more than one) taking in equal shares only the shares which their
respective parents would have taken if living at the intestate's death
Section 46: If the intestate's father is dead, but the intestate's mother is living,
and there is neither brother, nor sister, nor child of any brother or sister of the
intestate, the property shall belong to the mother.
Section 47: Where the intestate has left neither lineal descendant, nor father,
nor mother, the property shall be divided equally between his brothers and
sisters and the child or children of such of them as may have died before him,
such children (if more than one) taking in equal shares only the shares which
their respective parents would have taken if living at the intestate's death.
Section 48: Where the intestate has left neither lineal descendant, nor parent,
nor brother, nor sister, his property shall be divided equally among those of his
relatives who are in the nearest degree of kindred to him.

29
Q. 2: Who are distant kindred?
Ans.: Distant kindred generally means group of people related by blood or
marriage.
S. 24 of the Indian Succession Act makes an initial reference to the concept of
kindred and consanguinity, defining it as “the connection or relation of persons
descended from the same stock or common ancestor.”
S. 25 qualifies ‘lineal consanguinity’ with regard to descent in a direct line. Under
this head fall those relations who are descendants from one another or both
from the same common ancestor.
S. 26 qualifies ‘collateral consanguinity’ as occurring when persons are
descended from the same stock or common ancestor, but not in a direct line (for
example, two brothers). It is interesting to note that the law for Christians does
not make any distinction between relations through the father or the mother. If
the relations from the paternal and maternal sides are equally related to the
intestate, they are all entitled to succeed and will take equal share among
themselves. Also, no distinction is made between full-blood/half-blood/uterine
relations; and a posthumous child is treated as a child who was present when
the intestate died, so long as the child has been born alive and was in the womb
when the intestate died.
Intestate Succession among Parsis
• Special Rules have been provided for Parsi intestates under the Indian
Succession Act.
• Whoever actually born in the lifetime of the deceased Parsi person or at
the date of his death only conceived in the womb and subsequently born
alive, is considered.
• If a lineal descendant i.e. a child or remoter issue dies before the deceased
Parsi without leaving widow or widower or lineal descendant or widow or
widower of lineal descendant, the share of such child shall not be taken
into consideration.
• Where a widow or widower of any relative marrying again during the
lifetime of the intestate Parsi, such widow or widower is not entitled to
receive any share in the property of the deceased Parsi.

30
General Rules for Division of the property of a Parsi died intestate among widow,
widower, children and parent
• Widow and children: Each of them receives equal shares.
• No widow and children: Equally among children.
• Parents in addition to widow or widower and children: Father’s share is
equal to half the share of the son and the mother’s share is equal to half
the share of the daughter. If one of the parents survives, he or she gets
the same share.
➢ Widow: 1
➢ Son: 1
➢ Daughter: 1
➢ Father: ½
➢ Mother: ½
• The parents get the share only when the son dies without the will and not
in the case of the daughter.
• Parents do not include stepfather & stepmother.
• Sons and daughters include both full blood & half blood.
Rules for Division of share of predeceased child of Parsi intestate leaving lineal
descendants:
• If the deceased child is a son: His widow & children shall take the shares
as per the above general rules as if he had died immediately after his
deceased father. Provided that where such deceased son has left a widow
or a widow of a lineal descendant but no lineal descendant, the residue
of his share after such distribution has been made shall be divided in
accordance with the above rules as property of which the intestate has
died intestate, and in making the division of such residue the said
deceased son of the intestate shall not be taken into account.
• If the deceased child is a daughter: Her share shall be equally divided
among her children.
• If any child of such deceased child has also died during the lifetime of the
Parsi intestate, his share will be divided in accordance with the above
general rules.
• If the remoter lineal descendants of the intestate have died during the
lifetime of the Parsi intestate, his or her widow and /or children will take
the share of their predeceased parent.

31
Rules for Division of property where Parsi intestate leaves no lineal descendant
but leaves widow or widower or a widow or widower of any lineal descendants
• Widow or Widower but no widow or widower of a lineal descendant:
➢ Widow or Widower: ½
➢ Relatives: ½
• Widow or Widower and also widow or widower of a lineal descendant:
➢ Widow or widower: 1/3
➢ Widow of lineal descendant: 1/3
➢ Relatives: 1/3
• No Widow or Widower but widow/(s)of a lineal descendant:
➢ One widow of lineal descendant: 1/3; Relatives: 2/3
➢ More than one widow of lineal descendants: 2/3; Relatives: 2/3
Where there is no relative, the property of the Parsi who has died intestate shall
be divided equally among those of the intestate's relatives who are in the
nearest degree of kindred to him.
-----------------------xx---------------------

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MODULE 3: TESTAMENTARY SUCCESSION
• The Law of Succession in modern times is divided into the Law of
Testamentary Succession and the Law of Intestate succession. The law of
Testamentary Succession regulates the devolution of the property of a
person who dies having made a will about devolution and distribution of
his property after his death. The law of Instate succession, on the other
hand, regulates the devolution and distribution of the undisposed
property of a deceased person.
• The law governing testamentary succession i.e. succession based on Will
in India is the Indian Succession Act, 1925 (ISA). Hindu Succession Act,
1956 was enacted to codify the law relating to intestate succession among
Hindus, Buddhist, Jain or Sikh. Section 30 of the Hindu Succession Act says
that any Hindu, Buddhist, Jain or Sikh may dispose of his property by Will
in accordance with the provisions laid under Indian Succession Act, 1925.
• However, Mohammedans are not governed by the Indian Succession Act,
1925 and they can dispose their property according to Muslim Law.
• Section 2(h) of the ISA defines a “Will” as “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.”
• A testator is the person making the Will.
Which Property can be disposed of by Will?

• Separate/ Self-acquired property.

• Coparcenary property.

Competence to Make a Will – Person capable to make a Will

Section 59 of the Indian Succession Act, 1925 talks about persons capable of
making Wills i.e. the competence of Testator. According to this section,
following persons are capable of making wills:

1) Person of sound mind.

2) Not a minor.
3) A married woman may dispose by will of any property which she could
alienate by her own act during her life.
4) Persons who are deaf or dumb or blind, provided they are able to know
what they are doing.

33
 5) A person who is ordinarily insane may make a will during interval in which
he is of sound mind.
6) 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.
7) Appointment of Guardian: It is by a will that a father can appoint a
guardian for a minor. Testament has equal value for appointment of
guardian. Provision of appointment of guardian can be made through a
will. However, consent of guardian is required.
8) Fraud, Coercion, influence takes away the free capacity of the testator and
will becomes void. Even if a part of the will is made under fraud, coercion
or influence, the whole will become void.
Important Features of Will
• Must be in writing
• Ambulatory in nature – can be changed, replaced, modified, amended
• Last Will shall prevail over all previous ones.
• It need not be mandatorily registered.
• Can be written both for self-acquired property and his part of the HUF
property.
• At least two witnesses must sign in presence of the testator.
Exception to Gift Inter Vivos
• A gift inter vivos means a gift between the living in Latin. It is a legal term
that refers to a transfer or gift made during the life of the grantor.
• A property that cannot be given as a gift inter vivos is not to be mentioned
in the will except undivided Mitakshara coparcenary interest.
Construction of Will
→ Preparation of list of testator’s assets – movable or immovable.
→ Preparation of list of his heirs whom he would like to bequeath the assets.
→ Manner of distribution.
→ Decide a person who would be the executor of the will.
→ Provide the eventuality.
→ Testator should state clearly that he revokes all the earlier wills or codicils.
→ It must be stated that the testator has made the will in sound mind and
that he is not a minor.

34
 → In case the testator wants to disentitle the legal heir he must cite the
reason for doing so.
→ It must be signed by the testator on every page and on every correction/
amendment.
→ Name and address of two witnesses must be given. Such witnesses must
be younger than the testator.
Revocation of Will
• A will may be revoked or altered by the maker at any point of time when
he is capable of disposing his property by a will.
• Will may also be revoked under the following circumstances:
(i) By marriage of the testator;
(ii) By another will or codicil i.e. subsequent will;
(iii) By some declaration in writing revoking the will;
(iv) Burning, tearing or destroying of will by the testator or by some
other person in testator’s presence and in his discretion.
Execution of Will
• The last word is the final Will.
• Executor – One who executes the Will. He is appointed by the testator. He
is also a witness.
• In general –
→ The testator should sign or fix his mark to the Will or it should be
signed by some other person in his presence or under his direction.
→ The sign of the testator or the sign of the person signing on his
behalf should appear clearly and should be legible.
→ A Will should be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark to the Will in the
presence/ direction of the testator.
→ Each of the witnesses should sign the Will in the presence of the
testator and no particular form of attestation is necessary.
Types of Will
• Privileged Will
• Unprivileged Will

35
Privileged Will and Unprivileged Will
• As it can be understood from the word ‘privileged’, this kind of Will is
provided to certain category of persons.
• For a soldier, a mariner, airman or anyone involved in actual warfare,
there are certain concessions or privileges with respect to execution of
Will.
• Definition of Privileged Will – Any soldier being employed in an expedition
or engaged in actual warfare or any mariner being at sea may dispose of
his property through a privileged will if he has attained the age of 18 years.
• All wills other than privileged wills are called Unprivileged wills.
Rules of execution of Privileged Will
→ A Will may be wholly written by the testator (soldier). In this case the Will
need not be signed by the testator.
→ The testator may write partly or it may be written by some other person
and signed by the testator. In that case the will need not be attested.
→ If a soldier has written instructions for preparation of his will but died
before preparation/ execution of the will, such instructions shall be
construed as a will.
→ If verbal instruction to prepare a will were given in the presence of two
witnesses and will was prepared but not executed, such instrument is also
called a will.
→ A soldier may make a will by word of mouth by declaring his intention
before two witnesses present at the same time.
Rules for execution of Unprivileged Will
→ The testator shall sign/ affix his mark on the will. It may also be signed by
any other person in his presence under his direction.
→ The signature and attestation should be done in such a way that it appears
that it was intended thereby to give effect to the writing of the will.
→ Each of the witnesses shall sign in presence of the testator and no
particular form of attestation is necessary.
→ A will need not be registered compulsorily but can be registered and
deposited with the registry.

36
Conditions of a valid Will
• Legal declaration
• In relation to property
• To be given effect after the death of the testator.
Will & Codicil
• One of the major advantages of creating a Will is that it comes into effect
only after the death of the testator. Until that event, the testator can
revoke or alter a Will any number of times. A document by which a Will is
altered is known as codicil.
• Section 2(b) of the Indian Succession Act defines a codicil as follows:
‘Codicil’ means an instrument made in relation to a Will, and explaining,
altering or adding to its disposition, and shall be deemed to form part of
the Will.
• A codicil is simply an amendment to an existing will. A codicil may involve
only changes or deletions to a will, or it may involve major alterations. The
original will and the subsequent codicil(s) are interconnected.
• A codicil must conform to the same requirements that the original will
had conformed to. For example, in most jurisdictions, a valid will must be
signed by the testator in front of two witnesses. Therefore, a codicil would
likewise have to be signed in the presence of two witnesses.
Probate
• It is the copy of the will which is given to the executor together with a
certificate granted under the seal of the court and signed, by one of the
registrars, certifying that the will has been proved.
• The application for probate shall be made by petition along with copy of
last Will and testament of the deceased to the court of competent
jurisdiction. The copy of the will and grant of administration of the
testator’s estate together, form the probate.
• It is conclusive evidence of the validity and due execution of the will and
of the testamentary capacity of the testator.
• A probate is obtained to authenticate the validity of the will and it is the
only proper evidence of the executor’s appointment.

37
Executor and Administrator
• Generally, the name of the Executor is mentioned in the will who
approaches the court. Executor can be a totally outsider whom the
testator trusts. However, if no Executor is mentioned in the will, the role
of Administrator comes up. An Administrator is appointed by the court.
Who is an Administrator?
• A person appointed by the court to administer the estate of the deceased
when there is no Executor in the will.
• A beneficiary may also be appointed as an Administrator.
• The Executor can be an outsider but the administrator cannot be a person
who is totally an outsider.
Who can be appointed as an Administrator?
• Where the dying intestate is Hindu, Buddhist, Jain, Sikh, Muslim or any
exempted person, the administrator may be any person who is entitled to
the whole or part of the property of the deceased. When some person
applies for appointment as administrator, it is left at the discretion of the
court.
• Where the dying intestate is Christian, Parsi or Jew, the administration
may be granted to a person either by marriage or consanguinity (i.e. near
and dear ones). Equal degree of kindred is equally entitled to administer.
• If there is a widow, administration may be granted to her unless the court
has excluded the person (on the grounds of adultery, remarriage, lunacy
etc.). Along with the widow the court may appoint some other person as
well as an administrator.
• Whether the mother is there as class I heir, she is solely entitled to
administer.
• Husband stands in the same position as wife in the matter of appointment
of administrator.
• Where there is no such person, a creditor may be appointed as the
administrator by the court.
• If the property is left situated in India, the letter of administration shall be
as per Indian rules.

38
Effect of Administration – When administrator is appointed by the court what is
the effect; what are the powers of administrator?
• Under no circumstance the administrator can diminish or divide the
property.
• If there is an executor present and the executor has not recused himself
from the job of executorship or when he has not been removed by the
court, administrator cannot be appointed.
Grant of administration to universal or residuary legatee
Legatee means someone entitled to claim the property. Universal or residuary
legatee can be appointed as an administrator only under the following three
conditions:
1. The deceased has not appointed an executor i.e. will has been made but
executor has not been mentioned.
2. The executor is legally incapable or refuses to act or died before the
testator or died before proving the will (i.e. before the probate of the will).
That is, where application is filed for probation of the will and during the
proceedings the executor dies. This means the executor dies before
proving the will.
3. The executor dies after proving the will but before administering the
whole estate.
Muslim Will (Wasiyat)
• A Will under Mohammedan Law is called as ‘Wasiyat’, which means a
moral exhortation or a declaration in compliance with moral duty of every
Muslim to make arrangements for the distribution of his estate or
property.
• The Muslim Will is not governed by the Indian Succession Act, 1925. The
Muslim personal laws in India, or the Shariat law, decrees certain rules
and regulations and ways in which an individual can dispose of his/her
property.
• Why Muslim Will is not governed by any enactment?

➢ Divine institution and pious intention

➢ Regulated by Quran

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 • Doctrine of Cypress: The Latin word cypress means for a purpose
resembling “as nearly as possible” the purpose originally proposed.
However, the intention of the testator has not to be compromised.
• Tyabji defined Will as a legal declaration of the intention of a Muslim with
respect to his property which he desires to be carried into effect after his
death.
• According to Quran, maximum of 1/3rd of property can be bequeathed in
will so that the heirs are not fully deprived of the property.

Formalities/ conditions of Muslim Will/ Wasiyat

• Wasiyat may be oral or written.

• It may not be even signed by the testator or attested by witnesses.
• Intention of the testator must be clear.
• Wasiyat can be made by a sick man.
• It can be revoked (if written).
• A will can be made in favour of a particular heir only if all other heirs
consent.
• A Muslim can make a Will at a time when a property may not even be
under existence during the time of such making but should be existing at
the time of the death of the testator.
Q. When can a Muslim bequeath all his property under will?

Ans.: A Muslim can bequeath all his property under will under the following
conditions:

(i) Under valid custom.

(ii) When absolutely there is no heir.

Revocation of Wasiyat

Revocation of Wasiyat may be express or implied.

Wasiyat for bequeathing complete property

• “Faraij” – For pious purposes like Haj or pilgrimage.

• “Waziwat” – For charity on breaking of fast
• “Nawafih” – For construction of mosque etc.

40
MODULE 4: ADOPTION
Adoption
• Taking of a child from a different family as their son.
• Hindus – under Hindu Law.
• Guardians and Wards Act does not directly talk of adoption.
• Hindus have recognized adoption since time immemorial for the purposes
of salvation, inheritance, etc.
• Law of adoption among Hindus: based on two texts and one metaphor.
• Texts: Manusmriti and Vashistha Smriti.
• Manusmriti implies that:
✓ the father and mother only can give a boy in adoption;
✓ the donee must be in distress on account of sonlessness,
✓ the boy must be of the same caste.
• Vashisthasmriti implies that:
✓ the father and mother have power to give, to sell and to abandon
their son.
✓ An only son should neither be given, nor accepted, since he must
remain to continue the line of his ancestor.
✓ A woman should not give or take a son in adoption, without her
husband’s consent.
• Both these texts are based on the concept of Son-ship.
• Metaphor: Saunaka’s Metaphor – “The adopted child must bear the
reflection of natural born son”.
• Adoption Legislations:
➢ Hindu Adoption Maintenance Act, 1956 (HAMA)
➢ Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act)
→ Model JJ Rules, 2016
→ Adoption Regulations, 2017
Hindu Adoption and Maintenance Act, 1956 (HAMA)
• The Hindu Adoptions and Maintenance Act 1956, replaced the common
Hindu law and has codified the law on adoption.
• HAMA is applicable to a Hindu, Buddhist, Jain or Sikh by religion. A
Muslim, Christian, Parsee or Jew cannot adopt under this Act.
• One of the basic aims of the Act is to remove the caste divisions in the
Hindu society.
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 • Adoption, under the common Hindu law, was permissible only between
persons belonging to the same caste but this restriction was done away
with by the Hindu Adoptions Act. There is no express prohibition in the
Act that adoption has to take place only within the community.
• Daughters can be adopted.
• Now, Wife can adopt to herself. However, if husband is there, his consent
is required and vice versa.
• Doctrine of relation back: [IMP]
✓ This doctrine means that an act done at a later time is, under
certain circumstances, treated as though it occurred at an earlier
time.
✓ According to this doctrine under Hindu Law, a son adopted by the
widow under the authority of her husband was deemed to have
come into existence in the adoptive family on the day the husband
died and all his relations in the adoptive family related back to the
date of the death of his adoptive father by legal fiction.
✓ This theory was based on a doctrine that there should be no hiatus
in the continuity of the line of adoptive father. The doctrine has got
the relevance with respect to succession of the property of the
adoptive father.
✓ The HAMA does away with the theory of “relation back” and the
adopted child gets a status equivalent to that of a natural-born child
in the adoptive family only from the date of adoption.
Essentials/ Requisites of Valid Adoption under HAMA (Section 6)
Section 6 of the Hindu Maintenance and Adoption Act, 1956 (HAMA)
enumerates the following requisites of a Valid Adoption:
1. The person adopting has the capacity and also the right to take in
adoption.
2. The person giving in adoption has the capacity to do so,
3. The person adopted is capable of being taken in adoption and
4. The adoption is made in compliance with the other conditions mentioned
in this Chapter
Therefore, no adoption is considered valid unless it fulfils the abovementioned
conditions under Section 6 of the Hindu Adoption and Maintenance Act, 1956.
According to Section 5 of the Act, an adoption made in contravention of the

42
provisions of Chapter II of the Hindu Adoptions and Maintenance Act, 1956 is
void.
Capacity of a male Hindu to take in adoption (Section 7)

• According to Section 7 of Hindu Adoption and Maintenance Act, 1956: any

male Hindu has the capacity to take a son or a daughter in adoption, if he
is of
- sound mind
- not a minor
- if married has the consent of his wife.
• In the case of Sarabjeet kabir v. Gurumal Kaur, AIR 2009 NOC 889 (P & H),
the Court held that if adoption is taken by the husband without the
consent of the wife, that adoption will be illegal.
• But the consent of the wife of a male Hindu is not necessary in the
following three conditions:
➢ The wife has completely and finally renounced the world, or
➢ The wife has ceased to be Hindu, or
➢ The wife has been declared by a Court of competent jurisdiction to
be of unsound mind.
Capacity of a female Hindu to take in adoption (Section 8)
• Earlier only those married women were allowed to adopt whose marriage
was dissolved among other things.
• However, the 2010 amendment of the Section 8 of the Hindu Adoption
and Maintenance Act, 1956 has brought a radical change in the Hindu
Law.
• The newly enacted Section 8 reads as under,
“Any female Hindu who is of sound mind and is not a minor has the
capacity to take a son or daughter in adoption,
Provided that, if she has a husband living, she shall not adopt a son or
daughter except with, the consent of her husband unless the husband has
completely and finally renounced the world or has ceased to be a Hindu
or has been declared by a court of competent jurisdiction to be of
unsound mind.”

43
Amarendra Man Singh v. Sanatan Singh (1933)

• In Amarendra Man Singh v. Sanatan Singh (1933), the Privy Council finally
dissociated the temporal consequences from the essential spiritual
purpose of adoption.
• In this case Amarendra was adopted by A’s widow Indumati after A’s son
В died unmarried at the age of 20. On the death of B, his estate (Dompara
Raj) vested not in his mother Indumati but in a collateral Banamali,
because by a family custom, females were excluded from succession to
immovable property. Banamali questioned the validity of the adoption.
• The High Court of Patna held the adoption to be invalid on the ground
that the property had already vested in Banamali and not in Indumati, and
the adoption, if valid, would disturb the vested rights of persons other
than the widow herself.
• On appeal the Privy Council held that such a view was consistent only with
a ‘secular’ theory of adoption, a theory which would ignore the essentially
religious purpose to be served by adoption. The Privy Council preferred
the religious theory to the secular theory.
• Delivering the judgment of the Privy Council his Lordship observed that
the power of the mother to adopt would not become extinct until “the
duty of providing for the continuance of the line for spiritual purposes
which was upon the father, and was laid by him conditionally upon the
mother, had been assumed by the son and by him passed on to a
grandson or to the son’s widow; Here the son died unmarried and so it
was held that his widowed mother could exercise the power of adoption
for subserving the religious purpose to be fulfilled by a son.
• The Privy Council pointed out that the question whether the son adopted
by a widow can divest anyone in whom the adoptive father’s property had
vested earlier is irrelevant in considering the validity of the adoption itself.
Thus, the spiritual basis of adoption was separated and emphasized as the
raison d’ etre (reason/purpose of existence), of the institution of
adoption.
• Applying these principles, the Judicial Committee decided that the
adoption was valid, and that Amarendra took the estate as the
preferential heir.

44
Persons: Who may be adopted? (Section 10)

• Section 10 of the Hindu Adoption and Maintenance Act, 1956 provides

that the person who fulfils the following conditions are capable for
adoption:
(1) He or she should be Hindu.
(2) He or She should not already be adopted earlier. (Critically analyze
“Once an adoption, always an adoption.” Refer to s. 10 & 15))
(3) He or She has not been married unless there is a custom applicable
which permits such adoption.
(4) He or She has not completed the age of fifteen years which is to be
considered for being taken for adoption.
• Adoption of an orphan: Under the present law an orphan could also be
taken in adoption. In such cases the guardian of the orphan can obtain the
permission of the court to this event and thereafter could give the child
in adoption.
• It has been held by the Courts that where customs or traditions allow, a
person above 15 years of age or married can be adopted.
• Where, as among Maharashtra School and Jains a person of any age can
be adopted. (Bishan v. Girish,1986)
• In Dev Gonda v. Sham gonad (1992), the Bombay High Court held that any
insane can also be adopted. Further, any orphan found child or
abandoned child may be adopted.

Other conditions for a valid adoption (Section 11)

According to Section 11, in every adoption, the following conditions must be
complied with:

• if the adoption is of a son, the adoptive father or mother by whom the

adoption is made must not have a Hindu son, son’s son or son’s son’s son
(whether by legitimate blood relationship or by adoption) living at the
time of adoption;
• if the adoption is of a daughter, the adoptive father or mother by whom
the adoption is made must not have a Hindu daughter or son’s daughter
(whether by legitimate blood relationship or by adoption) living at the
time of adoption;

45
 • if the adoption is by a male and the person to be adopted is a female, the
adoptive father must at least 21 years older than the person to be
adopted;
• the capacity of Single female to adopt a male child would be:

- Not a minor;
- Of sound mind;
- Age difference: 21 years

• the same child may not be adopted simultaneously by two or more

persons (does not refer to if both persons are adoptive mother and
father);

• the child to be adopted must be actually given and taken in adoption

Provided that the performance of datta homam shall not be essential to
the validity of adoption. (Datta homam is a ceremony that is carried out
for the purposes of adoption).
Effect of Adoptions (Section 12)
According to Section 12 of HAMA the following are the effects of Adoption:
An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of the adoption and from such
date all the ties of the child in the family of his or her birth shall be deemed to be
severed and replaced by those created by the adoption in the adoptive family:
Provided that—
(a) the child cannot marry any person whom he or she could not have married
if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall
continue to vest in such person subject to the obligations, if any, attaching
to the ownership of such property, including the obligation to maintain
relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in
him or her before the adoption.
• The effect of adoption under HAMA (Section 12) is that an adopted child
shall be deemed to be the child of his or her adoptive father or mother
for all purposes with effect from the date of the adoption and from such
date all the ties of the child in the family of his or her birth shall be deemed

46
 to be severed and replaced by those created by the adoption in the
adoptive family.
• The main object of the present section is to codify the old Hindu law that
considered doctrine of “relation back”.
• But, the theory of relation back which was expressly abolished has again
revived by the decisions of Supreme Court. In Ankush v. Jenabai, AIR 1966
Bom. 174, the main question involved was whether the son adopted by a
widow is also to be treated as the son of her Late husband also.
Bombay HC held that on a widow adopting a son the necessary
consequence that arise under the provisions of the Act is that the child
would be the adoptive son of the deceased husband”.
• In Subhash Misir v. Thagainisir, the Allahabad High Court allowed the
adopted son to take the properties as the adopted son of the deceased
husband and of the widow. Thus, the doctrine of relation back was revived
through these decisions.
• In Hanumantha Rao v. Hanumayya, ILR (1966) AP 140. (contrary opinion)
the HC held that on a fair interpretation of the provisions of section 12 of
the Act, we are of the opinion that the section has the effect of abrogating
rule of Relation back of Mitakshara law.
• In Sawan Ram v. Kalawanti AIR 1967 SC 1761. (Emphasis shifted to the
rights of the adopted son)
Facts:
➢ Ramjit Dass died leaving behind a widow, Smt. Bhagwani. Later on,
she executed a deed of gift in favour of Smt. Kalawanti who was
related to her as a grandniece.
➢ Pending different related suits, she adopted Deep chand, son of
Kalawanti.
➢ Smt. Bhagwani died on 31st October, 1959.
➢ The appellant after the death of Bhagwani brought a suit for
possession of the house and the land which had been gifted by Smt.
Bhagwani to kalawanti as well as for possession of the land which
she had mortgaged.
➢ It was claimed that Smt Bhagwani had only a life interest in all these
properties, because she had divested herself of all the rights in
those properties on 22 August, 1949, before the Hindu Succession
Act, 1956 came into force.

47
 ➢ Deep Chand who was the adopted son of Smt. Bhagwani could not
succeed to the properties of Ramji Dass.
The suit was dismissed by the trial court:
→ holding that the adoption of Deep Chand was valid
→ that though Smt. Bhagwani had not become the full owner of the
property under the Hindu Succession Act, 1956,
→ Deep Chand was entitled to succeed to the property of Ramji Dass
in preference to the appellant.
The High Court of Punjab upheld the decision of the Trial Court.
SLP at SC: In support of the above proposition, emphases was put on
Sections 8, 12 and 14 of the Act
SC Held:
‘The section, in its principal clause, not only lays down that the adopted
child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of the adoption, but in
addition goes on to define the rights of such an adopted child.
It lays down that from such date all the ties of the child in the family of his
or her birth shall be deemed to be severed and replaced by those created
by the adoption in the adoptive family. A question naturally arises what is
the adoptive family of a child who is adopted by a widow. It is well-
recognized that, after a female is married, she belongs to the family of her
husband. The child adopted by her must also, therefore, belong to the
same family. On adoption by a widow, therefore, the adopted son is
deemed to be a member of the family of the deceased husband of the
widow.
This provision in Section 12 of the Act, thus, itself makes it clear that on
adoption by a Hindu female who has been married, the adopted son will,
in effect, be the adopted son of her husband also. Thus, the appeal was
dismissed in this particular case.
It was held by the Court that as compared to Sawan Ram, the adopted son
has a preferential right to the property left by Ramji Dass.
What has been said indirectly in this case has been said directly by the
Supreme Court in Sita Bai v. Ram Chander case.
• Sita Bai v. Ram Chander AIR 1970 SC 343.
Facts:
➢ Two brothers constituted a coparcenary.

48
 ➢ One of them died issueless leaving behind his widow, who later on
adopted a son.
➢ After some time, the other brother also died leaving behind his
widow and an illegitimate son.
➢ The son adopted by the first widow was held to be the only
surviving coparcener of the family and thus, entitled to inherit the
entire coparcenary property.
➢ The Court held that the son adopted by one widow would become
a member of the coparcenary as he would be treated as a son of
the deceased husband also. Since the other brother died leaving
behind an illegitimate who cannot become a coparcener the
adopted son alone will acquire the status of a sole serving
coparcener and thus, entitled to entire coparcenary property.
• Thus, The ratio of both cases Sawan Ram v. Kalawati, and Sitabai v.
Ramchandra clearly goes to show that the exception provided in clauses
(c) is meant only to protect the others of the rights vested in them prior
to adoption and is not intended to deprive the adopted child of the rights
with regard to the property belonging to the joint family.
• It has been held by the Supreme Court that when a widow in Mitakshra
Joint Family adopts a son, the son becomes coparcener with other
coparceners in the family and there is no question of a divesting any one
from the estate vested in the members of the joint family.
• To sum up:
Consequences of Adoption (Section 12) [IMP]
According to Section 12 of the Act, an adopted child shall be deemed to
be the child of his or her adoptive father or mother for all purposes with
effect from the date of the adoption and from such date all the ties of the
child in the family of his or her birth shall be deemed to be severed and
replaced by those created by the adoption in the adoptive family.
Exceptions to the consequences of adoption
(a) the child cannot marry any person whom he or she could not have
married if he or she had continued in the family of his or her birth;
(as per the theory of consanguinity marriages are not allowed in
prohibited degree of relationship).
(b) any property which vested in the adopted child before the adoption
shall continue to vest in such person subject to the obligations, if

49
 any, attaching to the ownership of such property, including the
obligation to maintain relatives in the family of his or her birth;
This is based on the principle that property once vested cannot be
divested. In other words, if there is a property vested in the person before
adoption, such property cannot be divested post adoption.
Property can be either Ancestral/ Joint family property (Concept of
inheritance: devolves upon survivorship) or Separate/ self-acquired
property (concept of Succession: devolves upon heirs)
Property includes interest.
• Before 2005, females did not have right to ancestral property.

Valid adoption not to be cancelled (Section 15)

No adoption which had been validly made can be cancelled by the adoptive
father or mother or any other person, nor can the adopted child renounce his
or her status as such and return to the family of his or her birth.
Thus, once an adoption, always an adoption.
The Juvenile Justice (Care and Protection of Children) Act, 2000 [JJ Act]
• This Act seeks to protect (who needs to be adopted):
✓ a ‘child in need of care and protection’ (i.e. destitute children), and
✓ juveniles in conflict with law
The Act provides for a process of rehabilitation and social reintegration of
the child through various means including adoption and foster care.
• The Act recognizes the preliminary responsibility of the family for
providing care and protection to children and adoption shall be resorted
to for the rehabilitation of the children who are orphaned, abandoned,
neglected and abused through institutional and non-institutional
methods.
• The Act empowers the Juvenile Justice Board to give children in adoption
and carry out such investigations as are required for giving children in
adoption (in accordance with the guidelines issued by the State
Government from time to time).
• In this regard, the children’s homes or the State Government run
institutions for orphans shall be recognized as adoption agencies both for
scrutiny and placement of such children for adoption.

50
 • Procedure of adoption and guidelines have been framed as stated by the
Supreme Court in the PIL namely Lakshmikant Pandey vs. UoI.
• Central Adoption Resource Authority (CARA) came in existence because of
this PIL. It is the sole Nodal Agency looking after the matters of adoption.
• The concept of adoption in JJ Act is a rudimentary (basic) form of Uniform
Law.
Inter-Country Adoption
• Adoption may be classified into the following two categories:
(i) In-Country Adoption, and
(ii) Inter-Country Adoption.
• In-country adoption means adopting the Indian child by the Indian
adoptive parents.
• Inter-country adoption is where the adoptive parents are foreigners that
is the adoptive parents are from other country.
• Lakshmikant Pandey vs. UoI (1984): The verdict of the Supreme Court in
a PIL, was a paradigm shift. The focus was shifted from adoption for
interest of parents to adoption for interest of Children.
• the Apex Court stated that every child has a right to love and be loved.
Only if a child is brought up in a family will he grow in an atmosphere of
love, and secure moral and material security. But if it is not possible for
the biological parents or anyone to look after the child, or if the child is
abandoned by his/her family, then adoption of the child will be best for
the security of the child.
• The practice of inter-country adoption gained momentum around the
mid-1940s to protect those children who became orphans in the World
War II.
• On the international front, the Convention on the Rights of the Child (CRC)
deals with the matters of inter-country adoption. It is also regulated by
the Hague Convention on the Protection of Children and Cooperation in
Respect of Inter-Country Adoption, 1993 and it has been ratified by about
90 countries.

• India is signatory to both, the CRC and the Hague Convention. The primary
law which relates to the issue of adoption under the Hindu System is the
Hindu Adoption and Maintenance Act, 1956 (HAMA).

51
 • The Juvenile Justice (Care and Protection of Children) Act, 2000 and all the
Amending Acts (2006, 2010 and the latest being in 2015) guarantee those
rights to an adopted child which are recognized under the Hague
Convention.
• The 2000 Act did not, however, define adoption, and the term was added
in the 2006 Amendment. This was a major development as till then,
adoption by a non-Hindu was guided by the Guardians and the Wards Act,
1890.

Central Adoption Resource Authority (CARA)

• CARA is an autonomous body which has been set up under the Ministry
of Women and Child Development and looks after matters of intra-
country and inter-country adoption.
• CARA Guidelines state that any foreign couple who wants to adopt a child
from India must be sponsored by a child welfare agency or a social agency
which is recognized by the government of the country in which the foreign
couple resides.
• CARA Guidelines also states that intra-country adoption is preferred first.
As per CARA Guidelines, only three type of children are recognized as
adoptable.
(i) Those children who have been surrendered.
(ii) Those who are abandoned.
(iii) Those who are orphans and are under the care of some specialized
adoption agency.

• The foreign adoption agencies enlisted by CARA are called “Enlisted

Foreign Adoption Agency”.
• RIPA: “Recognized Indian Agencies for Inter-Country Adoption”
• CARA publishes once a year in newspapers, journals etc. the list of
approved adoption agencies.
Lakshmikant Pandey v. Union of India (AIR 1984 SC 469)

• This is a landmark case in which the Apex Court laid down few principles
governing the rules for Inter-Country adoption.
• The Supreme Court in this PIL considered the issue of alleged adoption
agency malpractice and neglect when approving inter-country adoptions.
52
 The Court in its judgment set forth safeguards so that adoptions by
foreigners would be handled in a manner promoting children’s welfare
and their right to family life.
• The petitioner, Lakshmi Kant Pandey, an attorney, wrote to the Supreme
Court alleging neglect and malpractice on the part of social organizations
and private adoption agencies facilitating the adoption of Indian children
to foreign parents.
• He noted the long and hazardous journeys these children made to foreign
countries, along with instances of neglect they experienced from their
adoptive parents resulting in impoverishment or sexual exploitation of
the children. The Court treated his letter as a writ petition and this
instituted the basis of the PIL.
• The Supreme Court laid out a comprehensive framework of normative
and procedural safeguards for regulating inter-country adoption as
protection against abuse, maltreatment or exploitation of children and to
secure them a healthy, decent family life.
• While formulating standards and procedures the Court referenced
various relevant laws and policies including Articles 15(3), 24, and 39 of
the Indian Constitution regarding child welfare, and the principles
embodied in the U.N. Declaration on the Rights of the Child (1959).
• Another important rule framed by the Court: since there is no statutory
enactment in our country providing for adoption of a child by foreign
parents, the provisions of Guardian and Wards Act, 1890 must be referred
to for the purpose of facilitating such adoption.
• The safeguards, amongst several others, include the following:
✓ The requirement that foreigners wishing to adopt be sponsored by
relevant licensed agencies in their own country.
✓ No adoption application from a foreigner should be entertained
directly by any adoption agency in India.
✓ Agencies working on inter-country adoptions and licensed by the
Government of India must meet certain stipulated criteria and
undertake specific responsibilities in ensuring the safety and well-
being of adopted children.
✓ All inter-country adoption proceedings must be approved by the
local courts.

53
 ✓ Setting up a Central Adoption Resource Agency (CARA).
✓ If a child is to be given in Inter-Country adoption, it should be done
before he/she attains the age of 3, then he/she has more chances
of assimilating to the new environment and culture.

CARA guidelines based on Lakshmi Kant Pandey

The realization of the unscrupulous practices in adoptions (intra and inter-

country) especially after the judicial verdict in Lakshmi Kant Pandey prompted
the Central Adoption Resource Authority (CARA) to set up the following
guidelines:

1. CARA shall maintain regular contacts with Indian diplomatic missions

abroad to safeguard the interests of children of Indian origin adopted by
foreign parents.
2. A detailed ‘home study’ of foster parents by professional social workers
must be sent to CARA and the Indian agency. The ‘home study’ should
contain the details of the adopting family including its back ground;
economic status; attitude of grand-parents and other relatives towards
adoption; and the reasons for wanting to adopt an Indian child.
3. The process of adoption abroad can begin only after securing a ‘no
objection certificate’ from CARA, which is given after scrutinizing all the
documents and papers from the foreign sponsoring agency.
4. Among the documents needed for the ‘no-objection certificate’ are:

- undertakings from the foreign agency that the child would be legally
adopted by the foreign parents according to the local laws within 2
years of the child reaching the country
- a report on the progress of the proceedings would be sent regularly
for 5 years;
- in case of disruption of the adoptive parents’ family the foreign agency
would take care of the child until it finds another suitable family.

5. The Indian agency is entitled to recover from the adoptive family the costs
incurred in preparing and filing the application in the court, the passport
and visa expenses, preparation of the child study report and medical
expenditure incurred on the child, all not exceeding Rs.6,000/- and
maintenance expenditure for a day (subject to revision from time to time)
54
 from the date of selection of the child. The cost of travel of the child and
also an escort needs to be reimbursed. If any recognized agency exploits
the foreign enlisted agency financially, CARA may, after giving an
opportunity to the agency to explain, suspend or revoke its recognition.
Children’s Homes
As per Section 2 (20) of the Juvenile Justice (Care and Protection of Children)
Act, 2015 [The JJ Act], “Children’s Home” has been defined to mean a Children’s
Home, established or maintained, in every district or group of districts, by the
State Government, either by itself, or through a voluntary or non-governmental
organisation, and is registered as such for the purposes specified in section 50
of the Act.
The Act also defines “Child Care Institution (CCI)” as Children Home, open
shelter, observation home, special home, place of safety, Specialised Adoption
Agency and a fit facility recognised under this Act for providing care and
protection to children, who are in need of such services.
Functions of the State Government
(1) To monitor the adoption programme and the activities of all adoption
agencies.
(2) To encourage and promote the placements of such children in adoption
or guardianship with families within the country.
(3) To receive all applications from adoption agencies for a fresh recognition
or renewal of recognition.
(4) To set up a State Adoption Resource Agency for dealing with adoptions
and related matters in the State under the guidance of Authority (CARA).
The State Adoption Resource Agency shall be headed by Principal
Secretary or Secretary of the department of the State Government
dealing with adoption and the Governing Body of the agency shall have
following members:
✓ Director of the department of the State Government dealing with
adoption who shall be the Member Secretary;
✓ Director of the Department of Health or Hospital Administration of
the State Government;
✓ Chairperson of a Child Welfare Committee;
✓ Representative of a Specialised Adoption Agency;

55
 ✓ One member from the civil society involved in child welfare and
protection for at least ten years;
✓ One member from the State Legal Services Authority.
(5) To ensure that the guidelines etc. laid down by the Supreme Court and
the State JJ Rules framed under the JJ Act and the guidelines laid for inter-
country adoptions are followed.
(6) To issue directions to Child Welfare Committees (CWC) to submit
periodical data regarding working of adoption agencies/ orphanages/
Children Homes.
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56
MODULE 5: GIFT

Definition of Gift

• Also called Daan or Dena: In Hindu law

• Narada Smriti tells of concept of gift/daan which differs from modalities
and procedures as of now.
• Under Old Hindu Law, there were restrictions with respect to Hindu
Female, Gift to Unborn Child etc.
• Undivided Mitakshara coparcenary interest can be a subject of will but
not of gift.
• According to Section 122 of the Transfer of Property Act, 1882 Gift is a
transfer of certain existing moveable or immoveable property made
voluntarily without consideration, by one person, called the donor to
another, called the donee and accepted by or on behalf of the donee.
Further, such acceptance must be made during the lifetime of the donor
and while he is still capable of giving. If the donee dies before acceptance,
the gift is void.
Essentials of Gift (Section 123 of Transfer of Property Act, TP Act)

• For the purpose of making a gift of immoveable property, the transfer

must be effected by a registered instrument signed by or on behalf of the
donor, and attested by at least two witnesses.
→ In writing
→ Signed by the donor
→ Signed by at least two witnesses.
• For the purpose of making a gift of moveable property, the transfer may
be effected either by a registered instrument signed as aforesaid or by
delivery. Such delivery may be made in the same way as goods sold may
be delivered.
• Under the Registration Act, 1908, for moveable property worth less than
Rs. 100, delivery of possession is enough, Registration is not required.
• Under the old system, more importance was given on delivery of
possession. However, now the main thrust is given to registration of the
property signed by the donor.
Gift by a Hindu woman

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A Hindu woman can make a gift of her property that she can dispose.

Can a coparcener make a gift of his coparcenary property?

No. He cannot. Undivided Mitakshara coparcenary interest can be a subject of

will but not of gift.

Gift to Unborn Child

• Gifts to unborn persons were not recognized by the traditional Hindu law.
• However, The Hindu Transfers and Bequests Act 1914 modified the
provisions of the traditional Hindu law. This Act provides that no gift will
be invalid only because the persons for whose benefit the gift has been
made were not born at the date of the gift. In other words, the Act
acknowledges gift to unborn Hindu child.
• The TP Act lays down the following conditions regarding gift to unborn
child:
(1) If the gift made to an unborn person is preceded by a prior
disposition, the gift should be of the whole residue.
(2) The gift must not contravene the rule against perpetuities laid
down in S. 14 of the Transfer of Property Act. Section 14 of the
Transfer of Property Act says that “No transfer of property can
operate to create an interest which is to take effect after the life
time of one or more persons living at the date of such transfer, and
the minority of some person who shall be in existence at the
expiration of that period, and to whom, if he attains full age, the
interest created is to belong.”
(3) If the gift is given to a class of persons with regard to some of whom
it is void (under Rule 1 or Rule 2 above), the gift will fail with regard
to such persons only, and not in regard to all such persons.
(4) If the gift to an unborn person is void under Rule 1 or Rule 2 above,
any gift intended to take effect after such gift, will also be void.

Gift under Hindu Law

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 • Reservation of life estate or life interest
This pertains to a situation where a gift is made where the donor reserves
the usufructuary rights (usufruct means the right of enjoying the fruits of
property of another person) of property to himself for life.
Lalu Singh v. Gur Narain (1923) 43 All 115
→ The daughter got immediate possession of 6 villages.
→ For the remaining 7 villages, the donor will enjoy whatever profit
comes from these villages and immediate possession was not given.
That is, the donor did not transfer the property with respect to
these 7 villages during his life time to anyone else.
→ Gift was held to be a valid gift.
→ The court looked into the intention of the donor which was to
transfer the property rights to his daughter.
• Where a donor makes gift of a property but restrains the donee from
alienating or partitioning of the property. In this case the gift will be valid
but the condition shall be invalid.
Donatio Mortis Causa – Death Bed Gift
Donatio Mortis Causa, a legal maxim used in India, means a death-bed gift, made
by a dying person, with the intent that the person receiving the gift shall keep
the thing if death ensues.
A gift is a gratuitous transfer of the ownership of property. It is usually effected
by a transfer during the lifetime of the donor or through the donor’s Will. A gift
that has the same characteristics as an inter vivos gift (i.e. “between the living”
or “from one living person to another”) but does not take effect until death is
known as a donatio mortis causa (gift in contemplation of death).
Following are the essential elements that must be present for a transfer of
property to be classified as a donatio mortis causa:
1) The gift must be of movable property only;
2) It should have been made in contemplation of death;
3) The donor is suffering from an illness and has an immediate apprehension
of death;
4) The possession of property is delivered to the donee;
5) The gift becomes void if the donor recovers from his illness or the donee
predeceases him.

59
The donor of a donatio mortis causa may revoke the gift at any time before
death. The gift is conditional until the donor dies. The essence of a donatio
mortis causa is that the property will revert to the donor if the imminent death
does not occur.
Under Hindu law gift under expectation of death has been recognized. Any such
death bed gift is valid unless the donor recovers from his death bed illness.
The ‘Death Bed Gift’ is valid only when the donor dies. It has no effect before
the death of the donor.
Under Section 129 of Transfer of Property Act, 1882, such gifts have been
repealed from the chapter of Gifts. Section 129 of the Act says that “Nothing in
this Chapter relates to gifts of moveable property made in contemplation of
death, or shall be deemed to affect any rule of Muhammadan law”.
However, Section 191 of the Indian Succession Act, 1925 provides for the
property transferable by gift made in contemplation of death.
Section 191 of Indian Succession Act, 1925 says that:
(1) A man may dispose, by gift made in contemplation of death, of any
moveable property which he could dispose of by will.
(2) 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.
(3) 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.
Hiba – Gift under Muslim law

In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer
of Property Act, 1872. However, the provision of Transfer of Property Act, 1872
does not apply to Muslim law. The English term, ‘gift’ is of a wider connotation
and applies to all transactions where one transfer’s one’s property to another
without any consideration. The term ‘hiba’ has a narrow meaning.

According to Ameer Ali, “A hiba is a voluntary gift without consideration, of

property or the substance of thing by one person to another so as to constitute
the donee the proprietor of the subject-matter of the gift.” Muslim law allows a

60
Muslim to give away his entire property by a gift inter-vivos, even with the
specific object of disinheriting his heirs. [Inter vivos means both donor and done
are living]

Essentials of Hiba

1) Capacity of the donor.

2) Subject matter has to be present.
3) Donee – Whether done is present or not?
4) Formalities which are to be complied with.
5) Declaration by the donor with respect to gift.
6) Delivery of possession – from donor to the done.
7) Acceptance by the done.
Capacity of the donor – Whether one is in a position to gift or not.

Mental capacity

Financial capacity

Mental capacity

Every Muslim, male or female, married or unmarried is capable to gift provided:

• He/ she has attained majority under the Indian Majority Act (i.e. 18/ 21
years).
• Is of sound mind. However, a person of unsound mind can make a valid
gift during lucid intervals.
• Gift under compulsion – Doctrine of ikrash - The Muslim law-givers
recognize the doctrine of ikrash or compulsion, and a gift-deed executed
under compulsion is not valid. In such a case the gift is voidable, and it can
be voided by the donor whose consent was so obtained.
Hussaina Bai v. Zohra Bai AIR 1960 MP 60
In this case Hussaina Bai, a pardanshin woman, was in a fit of hysteria
(state of shock) when she was made to sign a gift deed. She was not
allowed to take advice of any independent person nor she was allowed to
read the terms of the gift. When this was challenged in the court of law,
the Madhya Pradesh High Court held that the gift was under compulsion
and not voluntary.

61
Financial capacity

• Unequivocal and bonafide intention is required by the donor.

• The intention should not be to defraud creditors. If it is so then the gift
will be invalid.
• Under Hanafi law, insolvency is not an incapacity. The Qazi has the power
to negate the gift if the gift is intended to defraud the creditors.
Subject matter of the gift

• Where dominion (control) over property may be exercised.

• anything which could be taken into possession.
• Specific entity – The property should be something which exists i.e. it is a
specific entity.
• Enforceable right – one can move the courts.
• Hiba can be made of the entire property.
• Muslim law, in this context, makes no distinction between ancestral or
self-acquired or between movable and immovable property.
• Under Muslim law in modern times, rights like zamindari rights can be
made by way of Hiba.
• Equity of redemption – Gift of equity of redemption under mortgage.
Q. Whether you can transfer the right when mortgage is there?

Ans. With respect to mortgage, whether Hiba is allowed or not, there are two
different views:

• One high court view – Hiba will be valid if it is assumed that the donee has
a constructive possession. Constructive possession is a legal fiction to
describe a situation where an individual has actual control over chattels
or real property without actually having physical control of the same
assets. At law, a person with constructive possession stands in the same
legal position as a person with actual possession.
• Another high court view – Hiba cannot be made as the possession cannot
be physically given.
Subject matter adversely held by donor

This relates to the property of the donor but not under his control. Under
Muslim law, if someone has falsely taken control over the property then the

62
owner cannot gift the said property through Hiba. For example, when a
trespasser is in possession of the property, the owner of the said property
cannot make Hiba.

Gift of non-existent object

Fatwa Alamgiri, a sharia-based compilation on statecraft, general ethics etc.

categorically mentions that gifts of objects which are non-existent in nature
cannot be made. For example, a gift of butter shall not be valid because butter
is not there while making the Hiba.

Assignment of Insurance policy

Mr. “X” has an insurance policy survived by his wife “Y”. Mrs. Y will be claiming
after his death. By way of Hiba, assignment of insurance policy may be done to
Mr. “Z”.

Musha – Gift of Musha

• The word “musha” means an undivided share or part of a property,

movable or immovable.
• Among the Shafis and Ithana Asharis, the gift of musha is valid, if the
donor withdraws his dominion (control) and allows the donee to exercise
control.
• But the rule is otherwise among the Hanafis. The general rule is thus laid
down in the Hedaya, “A gift of a part of a thing which is capable of a
division is not valid unless the said part is divided off and separated from
the property of the donor, but a gift of an indivisible thing is valid.”
• The doctrine of musha has been subject to much criticism. It has been said
that the doctrine is “wholly unadapted to a progressive society”. The
doctrine has been confined to within the strictest rules by judicial
interpretation and has been cut-down considerably.
Who can be a donee in case of Hiba

1) Any person can be a done irrespective of age, gender or religion.

2) Whether gift can be given to unborn child or not? – There is a difference
of opinion in this regard.

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 (a) According to one school of thought, among Ithana Asharis, gift is
possible provided the child is born within 6 months from the date
of gift (Hiba).
(b) According to another, among Hanafis, Hiba is not allowed to
unborn child.
3) Gift of life estate – i.e. Right of the estate till life.
(a) Ithana Asaris – Hiba creating a life estate is valid and the property
reverts to the donor after the donee’s death.
(b) Hanafi – Making hiba of life estate is valid and the donee becomes
absolute owner.
4) When the donee is minor or of unsound mind Hiba is valid provided
delivery of possession is made to the guardian.
Formalities of Hiba

1) Acceptance of the donee is necessary.

2) Delivery of possession must be made.
3) Donor should completely divest himself from ownership.
4) Delivery of possession is of 3 types:
(a) Actual
(b) Constructive
(c) Symbolic.
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64
MODULE 6: ENDOWMENTS AND WAKFS

Endowments

• Part and Parcel of Hindu Law.

• Dedicating certain property by way of will or gift for certain religious or
charitable purpose.
• An endowment is a permanent fund of property or money established to
benefit an institution or person.
• It has a defined & specific purpose for which the income derived from the
money or property is to be applied.
• In an endowment fund, the principal is invested, and only a portion of the
investment earnings is spent. The rest of the earnings are directed back
into the fund, so that the endowment grows over time. In this manner,
the endowment becomes a perpetual source of funding for whatever the
donor wishes to achieve.
• For example, Trust for advancement of education or charitable purposes.
• There is a thin demarcation between trust and endowments
• Pandit Prannath Saraswati has written a book on Endowment “Hindu Law
on Endowment”.
• Two concepts are engrained in Hindu law from time immemorial:
1. Istha: Sacrifices in different forms
2. Pushtha: charity.
• Definite purpose of endowment is very essential and the instrument (Gift
or Will) that has created endowment is a must. If no instrument has been
created then the endowment is invalid.
• For establishment of idol; donating land for temple; Feeding of poor;
Feeding of Brahmins; Making an educational institution; creation of
hospitals etc. – If endowment for these purposes are there then it is a
valid endowment.
• Interpretation of endowment by Britishers

➢ It was difficult to accept the concept of idol so it was considered to

be just a superstition.
➢ In our culture one can make an endowment in favour of an idol,
whereas, it cannot be done in Christianity.

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Ramchandra v. Shree Mahadeoji AIR 1970 SC 458

• Endowment was made by Mr. X for the purpose of creation of ‘Akhada’.

A photo of Hanumanji was kept by the side of the Akhada. The wrestlers
used to enter the Akhada, seek blessings of Hanumanji and fight. While
leaving too they took the blessings of Hanumanji.
• Endowment was challenged.
• The Supreme Court observed that Akhada was made for the purpose of
sports and games. Its ulterior motive should be to spread education
among masses through games and sports. The Court ruled that if
education to the masses is being given then the endowment is valid but if
it is only for sports simpliciter without any education value it cannot be
termed as endowment.

Ranchor Das v. Parvati Bai (1899) 23 Bom 725

• One endowment was made in the name of “Dharam” constructing

Dharamshala for spread of Sanskrit education.
• The questions before the court were:
Is the endowment valid?
Are the purposes of the endowment clearly defined?
• The Court observed that everything must be clearly spelled out in the will
or gift. Construction of Dharamshala and spreading of Sanskrit education
is clear but “Dharam” includes everything. Wilson Dictionary defines
Dharam as law, virtue and moral duty. This contains a wide sphere and if
someone is making an endowment for the purpose of Dharam, it is not
possible to ascertain what work is to be carried out.
• The court held endowment to be invalid. The court held that it has to be
clearly and specifically mentioned the exact purpose for utilizing the
endowment funds. The court interpreted that if one single part could not
be made out of the endowment instrument, the instrument becomes
void.

Nagu Raddia v. Banu Raddia AIR 1978 SC 1174

• “Samadhi” – Devotees or followers make Samadhi of a saint. People come

and worship at the Samadhi.

66
 • A person died and all his family members made a samadhi of him from an
endowment fund that he kept for making of his own samadhi.
• The Endowment was to the effect that after his death, his samadhi would
be made.
• When the samadhi was made, it was challenged that can a normal person
make an endowment for the creation of a samadhi himself.
• Samadhi is something which is linked to spirituality
• The Court Held: If an ordinary man makes such an endowment, it is not
valid. The court maintained that Samadhi is something related to spiritual
gurus or saints who possess power.

Essentials of a Valid Endowment

1. No writing is necessary except when created by a will. If it is in writing, it

has to be attested by two witnesses.
2. Expression of purpose is necessary
3. Religious and charitable purpose should be clearly specified
4. A specific property, be it moveable or immoveable, needs to be endowed.
5. A Trust or creation of a Trust is not required (One can engage specific
entities).
6. The property which is endowed should be set apart and dedicated. (Joint
Family Property cannot be given in endowment)
7. Dedication in favour of an idol can be made. It will be the trustee who will
be holding land on behalf of idol.
8. No religious ceremonies like ‘sankalp’, ‘Pran-pratishtha’, ‘Kumbh-
abhishekam’, ‘Samarpan’ are required for making an endowment.
9. Clear and unequivocal manifestation of intention of the donor is enough
Can an Endowment once made be revoked?
No, it can never be revoked.

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Conditions for a Valid Endowment
Following are the conditions which are to be established for a valid endowment.

1. Absolute Dedication of property

2. Object Must Be Definite
3. Property Must Be Definite
4. Person setting or creating the Endowment should be a Competent Person
5. Endowment must not be opposed to Law
1. Absolute Dedication

For the creation of a valid endowment it is necessary that the property is

absolutely and in perpetuity dedicated for the worship of deity by the donor or
the dedication is for a charitable purpose. It is necessary that the donor has
divested himself of the beneficial interest in the property.

• There is no legislative concept for endowment, it is purely an act of law

by judiciary and judicial decision.
• There should be a ceremony of dedication for recitation of intention of
endowment with all details. The ceremony of dedication starts with
Sankalpa and ends with utsarga.
• The principle upon which a gift cannot be made in favour of unborn
person is inapplicable upon idols.

The Supreme Court in Devakinandan v. Murlidhar, observed that the essentials

of a dedication are

1. Sankalapa (determinations): There should be formal declaration by the

settler of his intention to dedicate the property.
2. Utsarga (renunciation of ownership in the property): The owner of the
property should renounce his interest in the property. If the renunciation
is made for the public interest or for the use of public it becomes a public
endowment.
3. Prathista (installation): There should be formal installation, if it is of
temple, the installation should be of deity.
Gift & Endowment: The Court further observed that in case of creation of an
endowment there is no question of acceptance of the dedication of property,
whereas in case of a gift in secular sense the acceptance of gift is necessary.

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Similarly, the court in Nirmala Bala v. Balaichand has held that where
renunciation of the property is made and none of its part is retained for the
successors then the dedication is absolute. The fact that the ancestors gave
other persons the right to use, will not affect the validity of the trust.

For example,

✓ A dedication to the ‘Dharma’ is invalid, the dedication being vague and

uncertain.
✓ In the same manner leaving the charitable trust at the will of trustees to
decide the purpose is invalid.
✓ A trust created for the worship of any deity, is invalid, the specific name
of the deity being not mentioned.
2. Object Must Be Definite

It is necessary that the object of the dedication is definite, that is, it should be
specific and free from ambiguity. It must be made explicit - for which deity the
dedication has been made and the charitable purpose for which the bequest has
been made.

3. Property Must Be Definite

Any endowment is not valid unless some definite property is dedicated. Any
uncertainty regarding the subject matter of the bequest is fatal for its validity.

4. Person setting or creating the Endowment should be Competent Person

• It is necessary that the settler is major, of sound mind and is not legally
disqualified for creating an endowment.
• A person governed by Mitakshara can only dedicate his separate or self-
acquired property but not his coparcenary interest.
• But a person governed by Dayabhaga School, for example, a father is
competent to create an endowment of his whole property in which his
coparcenary property is also included.
5. Endowment must not be opposed to Law

In spite of the fact that the endowment must not be opposed to law, yet
bequests to idols and temples are not treated invalid for transgressing the rule
which forbids perpetuities.

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But endowment is void

- If an endowment created for saving the property from creditors

- If it is made within two years of the insolvency of the transferor.
- Where a part of the property is dedicated for performing puja of a deity
it cannot be a valid religious endowment.
In M. Appala Ramanujacharyalu v. Venkatavanara Sorhacharyulu, the Andhra
Pradesh High Court has held that to constitute a valid endowment, it must be
established that the donor intended to divest himself of his ownership in the
property dedicated.

✓ Now we have Endowment Commission to look after and keep a record of

such Endowments.
✓ Settler: One who settles the endowments
Maths (Monastic Orders)

• A Matha is a spiritual and religious establishment of dharmic traditions

including Jainism and Buddhism.
• Both Temple and Math can be made by endowment. Numerous
temples/Maths in our country have been made through endowment.
• The concept of ‘Math’ was brought by Shankar Adicharya for spreading
Hinduism. Simply speaking, Math means an abode or residence of
ascetics.
• In its legal connotation, it is a monastic institution presided over by its
head, known as Mathadhish or Mahant, a superior ascetic.
• It is established for the use and benefit of ascetics generally or of ascetics
belonging to a particular order, ordinarily, the disciples of mahant.
• The basic purpose of a math is to encourage and promote spiritual
learning and knowledge.
• There can be sudra maths also.
• Math is a juristic person. Although, the mahant is the head of the math,
but the property dedicated to a math doesn’t vest in him, but it vests in
the math itself as a juristic person.

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Mahants – Power & Legal position
• Concept of Mahant is made out of the Brahminical society.
• Mahant acts on behalf of the math and Shebait (one who serves the deity
in temple) acts on behalf of the temple. They have fiduciary relationship.
• The mahant is neither a trustee nor a corporate sole. He is just the
manager of the math, with wider powers than those possessed by a
manager, trustee or dharmakarta of a temple.
Functions attributed to the Mahant of a Math
• He has a dual capacity as he is the manager of the properties, and the
spiritual head of the math.
• Unless the founder has directed otherwise, the management and
possession of properties of a Math belong to the Mahant.
• The Mahant holds the properties of the Math for certain specific purposes
as laid down by the founder or by usage. In this regard the duties of the
Mahant are upkeep of the Math and the performance of the religious
rites, ceremonies and the festivals of the religious order to which the
Math belongs.
• Matha can alienate the property through Mahant
• Mahant is capable of holding, vindicating, acquiring a legal right through
human agency.
• The property of the Math is held by Mahant as the spiritual head of the
institution, but the property may vest in trustees other than the spiritual
head.
• A mahant is not same as trustee. His functions and conduct are mostly
regulated by customs and regulations.
• A mahant can institute a suit, can sue and can be sued.
• Mahant’s Power of Alienation: Mahant’s power of alienating the property
are the same as those of shebait. He can alienate the properties for legal
necessity or for the benefit of the Math Properties.
• Property held by an idol ideally belongs to the idol, but possession and
management must be entrusted to the shebaits.
• Property held by mathas, like idol, is a juridical person capable of acquiring
or holding rights.

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 • Liability to Account: Mahant has wider powers over to the income of the
endowed properties than the shebait. However, he can be charged with
the maladministration of properties.
Right of Representation
The mahant of an Akhara or Math has both the right to institute a suit on its
behalf as also the duty to defend one brought against it. A judgment against
Mahant will bind his successors. When the Mahant himself is guilty of
mismanagement or misappropriation then a suit can be filed by any person
interested in the endowment.
Mahantship – Neither Partible nor Transferable:
The office of Mahant as well as properties of the Math are not subject to
partition. Similarly, the Mahant has no power to transfer the office or the right
of management. Even in those cases where one Math is subordinate to another,
Mahant of the subordinate Math cannot by deed or otherwise, transfer his
rights to Mahant of the superior Math. Mahant cannot also delegate his powers
and functions.
Succession to the office of Mahant
• Question: Whether the institution of Mahantship is hereditary or not. NO
• The general rule of the devolution of property or the office of Mahant is
that it will devolve in accordance with the rules of devolution laid down
by the founder of the endowment.
• Such rules will be given effect to, if they do not violate the provision of
any law.
• The successor must be appointed or nominated by the reigning Mahant
during his life time or shortly before his death either by a written
declaration or some sort of testamentary document.
• In various Mutts such appointment has to be confirmed by the members
of the religious fraternity to which the late Mahant belonged.
• When a Mahant resigns during his life time and installs his successor, on
the gaddi the fraternity is made aware of the proposed vacancy in the
office and is given an opportunity of confirming or refusing to confirm the
nominee.
• In default of Chela, the office goes to the gurubhai of the last holder.
Ordinarily, the eldest Chela succeeds, but even a junior Chela may

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 succeed if he is found more capable and if he was selected by the last
Mahant as his successor.
Personal Properties of Mahant:
The personal property of a Mahant, where he is permitted to have personal
property, does not devolve on his natural heirs, but on his spiritual heirs. When
a Mahant inherits personal properties, these are not the properties of the Math
and properties purchased of these are also his personal properties.
Debuttar (Property which Belongs to the Deities)

• An endowment for a temple or an idol does not come into existence by

establishment of the deity or by consecration of the idol. The debuttar
comes into existence when some property is dedicated to it.
• It is a fundamental rule of Hindu Law that whatever idol may be installed
in a temple, or whatever deity or God a Hindu may worship, the idol
represents the Supreme God and none else. This implies that the
dedication of property is not to image that is installed in a temple, but to
the Almighty. In Hindu law when dedication is made to an idol, the
property vests in the idol itself as a juristic person.
• The nature of the property, therefore, is debuttar, that is, belonging to
the deities. It would be proper at this stage to notice the distinction
between the properties dedicated to temples and that to Maths.
• When the dedication is to a temple, the property is held by the idols, but
the possession and its management must, in the nature of things be
entrusted to some person as shebait or manager who is a human agency
of the deity to conduct worship.
• A math like an idol in Hindu Law is a juridical person capable of acquiring,
holding and vindicating legal rights, but the position of the Mahant,
however, is that the property of a Math is held by him as the spiritual head
of the institution.
Idol as Juristic Person

• Under the Hindu Law, the image of a deity of the Hindu pantheon is, as
has been aptly called a ‘juristic entity’, vested with the capacity of
receiving gift and holding property. When the gift is directly to an idol or
a temple, the action to complete the gift is necessarily effected by human

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 agency. Called by whatever name, he is only the manager and custodian
of the idol or the institution.
• The idol has a juridical status with the power of suing and being sued.
• But two essential ideas are involved in the notion of debutter
endowments:
1. It is in ideal sense that the endowed property vests in the deity as
juristic person, and
2. The ideal personality of the idol is linked up with the natural
personality of Dharmakarta, shebait or manager.
• An interesting question came before the Supreme Court in the case of
Jogendra Nath v I T Commissioner, that, could the income of the deity be
liable to income tax assessment. It was answered by the Supreme Court
in affirmative. The court said we have to make a distinction between the
spiritual and legal aspect of idol.
Alienation of Debottara Property (endowment)

Property given for religious /charitable purpose cannot be alienated usually, but
Shebait or Mahants are capable of alienating for purposes of incurring debts,
mortgage property for performing religious worship and preservation of
property.

Hanuman Prasad v. Musmat Babooee (1856)

• The powers of the guardian of a minor’s property under the Hindu Law
prior to the Hindu Minority and Guardianship Act, 1956, were governed
by the Rule in Hanuman Prasad vs. Babooee.
• In general, a guardian may do all acts that are in the interest of the minor.
A third party may deal safely with the guardian in this respect. However,
this excludes fraudulent, speculative and unnecessary deals. Before the
Act of 1956, a natural and testamentary guardian had the power to
alienate the minor’s property as determined by the Privy Council in
Hanuman Prasad v. Babooee Mukherjee (1856)
• The principles enunciated in the Privy Council are as follows:
(i) The guardian has a limited or qualified power to create a burden on
the minor’s property.

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 (ii) This power can only be exercised in the case of necessity or for the
benefit of the estate – Doctrine of necessity and benefit of estate.
• However, this rule has been restricted through Section 8 of the Act, which
mandates court’s permission before alienating the minor’s interest in the
minor’s property. Also, a guardian does not have any right over the joint
family interest of a minor.

Polaniappa v. Devasikamony (1917)

Under the rule in Hanuman Prasad’s case, a ground of justification for an
alienation by the manager is the ‘benefit’ to the estate. In Palaniappa v.
Devasikamony, the Privy Council pointed out that benefit to the estate is not
susceptible to precise definition.
They pointed out; “The preservation of the estate from extinction, the defence
against hostile litigation affecting it, the protection of it or portions thereof from
injury or deterioration by inundation, these and such like things would obviously
be benefits”.
Prasunno Kumari v. Golab Chand (1875)

• Shebait who was in-charge of the temple of profitable nature.

• Income which was coming from the Debuttar property was spent by the
shebait for his personal use.
• At one point of time that source of income was exhausted
• He borrowed Rs. 4,000 in the name of the temple and in order to return
the money he mortgaged the Debuttar property
• A challenge was made
• The court held that the shebait can borrow money but there should be a
legal necessity. In the present case there was no legal necessity.
Public and Private Debutter

It is competent for Hindu to create a public or a private debutter. The Supreme

Court has held that when property is dedicated for the worship of a family idol,
it is a private and not a public endowment, as the persons who are entitled to
worship at the shrine of the deity can only be the members of the family, and
that is an ascertained group of individuals. But where the beneficiaries are not
members of a family or a specified individual, then the endowment can only be
regarded as public, intended to benefit the general body of worshippers.
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The distinction between public and private endowment has assumed added
importance as the State statutes regulate the public debutter and the private
debutters are not within their purview. In State of Bihar v Mahant Shri
Biseshwar, it was held by the Supreme Court that:

“……. unless the Asthal (Math) itself is a public endowment, properties

appertaining thereto would not be properties of public endowment. Installation
of an idol permanently on a pedestal and the fact that the temple is constructed
on grounds separate from residential quarters of Mahant are not conclusive
proof that temple is a public temple. “

If the public is allowed freely to enter the temple and has been worshipping
there for a long period of time, it may be a good evidence to indicate that temple
is a public temple, but it is not conclusive. Similarly, the feeding of Sadhus and
giving hospitality to wayfarers is not by itself indicative of the public character
of the temple.

Real and Nominal Debutter

The dedication of the property should be real and not a colourable device to tie
up the property for the benefit of the founder and his descendants. If the
dedication is complete and the founder has completely divested himself from
the dedicated properties, the debutter is real, otherwise it is partial. In
determining whether a debutter is real or nominal, the manner in which the
properties are held and enjoyed is the most important. The burden is very heavy
on the person who alleges that a document solemnly executed is fictitious.

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Wakfs

• The literal meaning of the word waqf is ‘detention’. In the legal context,
waqf means detention of a property so that its produce or income may
always be available for religious or charitable purposes. When a waqf is
created, the property is detained or, is ‘tied up’ forever and thereafter
becomes non-transferable. There is an object behind making a wakf.
Office of Mutawalli (manager) is very important. There are many modes
to create waqf. Wakf is binding and enforceable by law, it has legal
consequences. The law of waqf is the most important branch of
Mohammedan Law for it is interwoven with the entire religious, social,
and economic life of Muslims.
Meaning of Waqf

• When a Muslim, who is working for a charitable purpose under religious

faith and sentiments and for the benefit and upliftment of the society, has
donated his property in the name of Allah is called waqf.
• Waqf literally means ‘detention’ stoppage or tying up, meaning thereby
that the ownership of dedicated property is taken away from the person
making waqf and transferred and detained by God. Details are given in
old texts about wakf made by the prophet.
• It is observed in M Kazim vs A Asghar Ali that technically, it means
dedication of some specific property for a pious purpose or secession of
pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is
the detention of a specific thing that is in the ownership of the waqif or
appropriator, and the devotion of its profits or usufructs to charity, the
poor, or other good objects, to accommodate loan.
• According to the Waqf Act, 1954 “Waqf means the permanent dedication
by a person professing the Islam, of any movable or immovable property
for any purpose recognized by Muslim Law as religious, pious, or
charitable.”
Characteristics of Muslim Waqfs

The essential conditions/ characteristics of a valid Waqf are as follows:

1. There must be Permanent Dedication.

2. The founder of the Waqf i.e. Waqif must be a competent person.

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 3. The subject matter must be a transferable property.
4. The object of the Waqf must be religious, pious or charitable, under
Muslim Law.
5. The formalities required to constitute the Waqf must be duly completed.
(1) Permanent Dedication

The dedication of waqf property must be permanent and Waqif himself must
devote such property and give it for any purpose recognized by Muslim law, like
religious, pious or charitable. If the waqf is made for a limited period it won’t be
a valid waqf. Also, there should be no condition or contingency attached
otherwise it will become invalid. The motive behind Waqf is always religious.

In Karnataka Board of Waqfs v. Mohd. Nazeer Ahmad [1982], the dedication of

house by a Muslim for use of all travelers irrespective of religion and status was
held not to be a Waqf on the ground that under Muslim law a Waqf should have
a religious motive and it should be only for benefit of Muslim community, and if
it is secular in character, the charity should be to the poor alone.

When a Waqf is constituted, it is presumed that a gift of some property has been
made in favor of God. This is ensured through a legal fiction that waqf property
becomes the property of God.

Although the definition of waqf under the Act does not require that there should
be an express dedication to God, it is implied that dedication becomes
permanent only by vesting the property in God.

In Mohd. Ismail v. Thakur Sabir Ali [1962], the Supreme Court has observed that
the expression, “permanent dedication” in the definition of waqf under Sec. 2(1)
of the Musalman Waqf Validating Act, 1913, signifies that the waqf property is
vested in God.

The court further observed that even in the Family Waqf, (Waqf-al-al-Aulad), the
property remains in the implied ownership of God. Thus, for constituting a
lawful waqf, it is necessary that there should be a permanent settlement of a
property for some religious or charitable purpose.

‘Permanent dedication’ or, the concept of vesting of the waqf-property in God

has following legal effects:

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 (a) Non-Transferability: After completion of the Waqf, the waqf-property
becomes non-transferable i.e., it is ‘tied up’ forever.
(b) Irrevocability: By permanent dedication the waqf becomes irrevocable.
Once a waqf has lawfully been constituted, it cannot be revoked. In the
creation of waqf it is implied that since the ownership of the property is
presumed to vest immediately in God, the settlement is irrevocable. The
waqif as a human being cannot subsequently revoke it because this would
amount to taking back from God whatever is given to Him.
(c) Absolute and Unconditional: Another important feature of ‘permanent
dedication’ is that the dedication is absolute and unconditional. There
cannot be any waqf subject to any condition or contingency. A conditional
or contingent waqf is void. Dedication cannot be permanent if its
existence depends on some condition.
Thus, where the waqf deed provided a condition that in the case of any
mismanagement, the property would be divided among the descendants
of the waqif it was held that the waqf was void.
(2) Competency of the Waqif – Who can create a Waqf?

The person who constitutes the waqf of his properties is called the ‘founder of
waqf or, Waqif’. The Waqif must be a competent person at the time of
dedicating the property in waqf. For being a competent waqif, a person must
possess the capacity, as well as the right to constitute the waqf.

(a) Capacity to Constitute Waqf.

(b) Right to make Waqf
Capacity to constitute Waqf

• Every Muslim, who is of sound mind and has attained the age of majority,
has capacity to constitute a waqf. In other words, as regards capacity of a
Muslim for making a waqf, there are only two requirements:
(i) soundness of mind and,
(ii) majority.
• A person of unsound mind has no capacity to create any waqf because he
or she is incapable of knowing the legal consequences of the transaction.
Waqf constituted by an insane person is void.
• The waqif must also be adult. For purposes of making waqfs, the age of
majority is eighteen years (or twenty-one years if the minor is under
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 supervision of courts of wards). Thus, a person below the age of eighteen
years (or twenty-one years as the case may be) is a minor and has no
capacity to constitute any waqf.
• Waqfs constituted by minors are void ab initio and cannot be validated by
any subsequent ratification. The guardian of a minor cannot make any
waqf on behalf of the minor. Waqfs constituted by guardians on behalf of
minors are void ab initio.
• Waqf by Non-Muslims: The dedicator must profess Islam i.e., he believes
in the principles of Islam, he need not be a Muslim by religion. The Madras
and Nagpur High Courts have held that a non-Muslim can also create a
valid Waqf provided the object of waqf is not against the principles of
Islam.
Patna High Court has also held that a valid Waqf may be constituted by a
non-Muslim. However, according to Patna High Court, a non-Muslim waqf
may constitute only a public waqf; a non-Muslim cannot create any
private waqf (e.g. an Imambara).
Right to make waqf

• A person having the capacity but no right to make Waqf cannot constitute
a valid waqf. The subject matter of waqf should be owned by the waqif at
the time when waqf is made. Whether a person has the right to constitute
a waqf or not depends on the fact whether the dedicator has a legal right
to transfer the ownership of the property or not.
• A widow cannot constitute any waqf of the property which she holds in
lieu of her unpaid dower because she is not an absolute owner of that
property.
• Waqf by a Pardanashin Lady: A Pardanashin lady is that lady who
generally lives in seclusion (pardah) and does not move in public. Such a
lady has right to make waqf of her properties provided she possesses the
required capacity and right. But where the waqif is a pardanashin lady,
the beneficiaries and the mutawalli have to prove that she had exercised
her independent mind in constituting the waqf and had fully understood
the nature of the transaction.
• Amount of property dedicated: A person has right to constitute a waqf of
his entire properties without leaving anything for his heirs. But, in the case

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 of a ‘testamentary- waqf, the founder has no right to constitute a waqf of
more than one third of his properties.
In other words, in the cases of inter vivos waqfs the founder is competent
to constitute a waqf of his entire properties whereas, in respect of
testamentary waqf the founder has no right to constitute waqf of more
than one-third of his properties without consent of his legal heirs.
(3) Subject-Matter of Waqf: The Property

• Any property, whether movable or immovable, tangible or intangible,

may be the subject-matter of a waqf. But, the earlier Muslim jurists had
given conflicting opinions regarding the nature of the waqf property.
• According to Abu Hanifa, only immovable property could be dedicated in
waqf. On the other hand, the Shafie and the Shia jurists held that lands
and everything lawfully saleable such as horse, arms etc. may be a valid
property for a waqf.
• But, after some time, almost all the Muslim jurists agreed that besides
lands, other moveable properties were also the subject matter of a waqf.
• Before the Waqf Validating Act, 1913, the opinions of the various High
Courts of India were divided.
• After 1913, the courts in India have followed the definition of waqf given
in the Waqf Validating Act. Under Section 2(1) of this Act, ‘any property’
may be dedicated in waqf. At present, a waqf may be constituted of both
the kinds of properties, movables as well as immovable.
• Moreover, the expression ‘any property’ means not only tangible
property but, it also includes intangible properties. Any beneficial
interest, which is owned by the dedicator, may be a lawful subject-matter
of waqf. Accordingly, it has been held that a valid waqf may be constituted
of the following properties:
→ Government promissory note.
→ Money in cash.
→ Offerings in a shrine or dargah.
→ Proprietary rights held as a grove holder.
→ Shares in a company, and
→ Government securities.

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 • What cannot be Subject-matter of Waqf? – It has been held by the courts
that the following kinds of property cannot be subject-matter of a waqf:—
→ A dower-debt.
→ Right to recover money from debtor under a simple money decree.
→ Rights of a usufructuary mortagagee.
Unpaid dower is like a debt in which husband is like a debtor and wife is
like a creditor. Right to claim dower from husband is wife’s ‘beneficial
interest’ and as such, it is her ‘property’. But, until it is realized by the wife,
the dower-debt is regarded as future property. Therefore, the courts have
held that since dower-debt or the decree for recovery of this debt is a
future-property and does not exist at the time of making of waqf,
therefore, a dower-debt cannot be subject matter of waqf.
Right to recover money under a simple money-decree is also a future
property which does not exist at the time of constitution of waqf.
Therefore, right to realize money (from debtor) under a simple money-
decree is not a subject-matter of waqf. However according to Fyzee, the
right to recover money from the debtors under a money decree, may be
dedicated in waqf because the decree holder is entitled to sell his interest
and invest the proceeds in a profitable form.
Similarly, right of usufructuary-mortgagee to recover his debt being a
future- property is not a subject-matter of waqf. But Tyabji holds that the
rights of an usufructuary mortgagee may be a lawful subject-matter of
waqf because in this case the waqf is not constituted of the property
mortgaged but of the ‘rights of mortgagee’ and the rights of the
mortgagee are his beneficial interest owned by him; therefore, a waqf of
rights of an usufructuary mortgagee is not invalid.
• In view of the wide meaning given to expression ‘any property’ in Section
2(1) of the Waqf Validating Act, 1913, anything transferable may be
dedicated in waqf provided it is owned by the Waqif. The subject-matter
of a waqf may be a tangible or intangible (i.e. any beneficial interest) or,
movable or immovable property provided it is owned by the waqif.
(4) The Object of Waqf

• The purpose for which a waqf is constituted is called its object. The object
of a waqf must be religious, pious or charitable. Under Muslim law, a waqf

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 is constituted for getting spiritual or religious benefits. Therefore, a waqf
may be created for any object which is recognized in Islam as religious,
pious or, charitable.
• The object of a waqf must not be un-Islamic. If the object of any waqf is
un-Islamic, the waqf is void. Section 2(1) of the Waqf Validating Act, 1913,
provides that a waqf may be constituted “for any purpose recognized by
the Musalman law as religious, pious or charitable.” The Act does not lie
down as to what objects are regarded as religious, pious or charitable
under Muslim law.
• This is to be decided by the courts on the basis of the principles of Islam.
There is no exhaustive list of the objects of which a waqf is permissible
under Muslim law. The reason is that the word ‘religious’ does not signify
only those purposes which are laid down in the religious books of Islam.
It includes also the way of life.
• In Durghah Committee, Ajmer v. Syed Hussain Ali, the Supreme Court
observed: “a religion may not only lay down a code of rules for its
followers… it might prescribe rituals and observance, ceremonies and
modes of worship which are regarded as integral parts of religion and
these forms and observances might extend to matters of food and
distress.”
• Therefore, any practice, ceremony or ritual which is common among the
Muslims, may be regarded as ‘religious’. A waqf for all such activities are
permissible under Muslim law. Similarly, the words ‘pious’ and
‘charitable’ too have wide meanings under Muslim law and include every
purpose which may be recognized as ‘good’ in Islam. According to Ameer
Ali, the test of what is pious or charitable is the approval of the Almighty.
• Every ‘good purpose’ (wajah-ul-khair) which God approves or, by which
approach is attained to Deity (God), is a fitting purpose (i.e. pious and
charitable object) for a lawful dedication. It may be stated, therefore, that
any object which is intended for the benefit of the human beings, may be
a valid object of a waqf. However, it must be noted that those purposes
which are against the principles of Islam, are not regarded as beneficial to
mankind and a waqf cannot be created for such purposes.
• For example, construction of a mosque, hospital, school etc. is regarded
in Islam as beneficial to mankind therefore; a waqf may be validly

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 constituted for these purposes. But, use of liquor, gambling, idol worship
etc. is not regarded as beneficial to mankind under the religion of Islam.
Therefore, a waqf for the construction of a wine-shop or, for a gambling
house or, for construction of a temple, is void.
• It is significant to note that under Muslim law, making provisions for the
maintenance of one’s own children and descendants is also regarded as a
pious work. Therefore, provision for the maintenance of exclusively the
family members of the dedicator, is a lawful object. Such waqf is called a
family-waqf, or waqf-al-aulad.
• According to Muslim jurists, benefit of the poor is the most approved form
of charity. Therefore, in the absence of any purpose or upon the
extinction of an object laid down in a waqf, the usufruct of the dedicated
property may be lawfully utilized for the poor.
• Legal Objects: The following objects have been recognized as lawful for
the creation of a valid waqf:
→ Construction or maintenance of mosque and Imambara and
provision for the conduct of worship or religious prayers.
→ Keeping Tazias during the month of Muharram and provision for
camels and Duldul for the religious procession.
→ Burning lamps in mosques and maintenance of Khankah.
→ Construction of a free boarding-house for pilgrims at Mecca.
→ A shrine or tomb of any Pir or Fakir or a holy person, which has been
given profound respect by the public.
→ Reading Quran in public or private places.
→ Celebrating the birth of Ali, the fourth caliph and son-in-law of the
Prophet.
→ Construction and maintenance of schools and colleges and
providing for the teachers therein.
→ Works of general utility such as bridges, drains, wells, tanks, burying
grounds, hospitals etc.
→ Distribution of money to the poor and helping the poor to enable
them to go on a holy pilgrimage.
→ A feast for the community or a feast in honour of a saint.
→ Provision for the residence of founder’s brother and his
descendants in the waqf property.
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 → Provision for the maintenance and support wholly or partially of
waqif’s family, children or descendants. Where waqif is Hanafi
Muslim, provision for his own maintenance and support during his
life-time or, for the payment of his debts out of the income of the
property dedicated.
(5) The Formalities: Modes of Creation

• Muslim law does not prescribe any special formality for the creation of a
waqf. It may be made orally or in writing. Writing is not necessary even if
the property dedicated is an immovable property of high valuation.
• A waqf of an immovable property worth several thousand rupees may be
lawfully constituted by an oral declaration. If it is fully established that a
dedicator has intended to make a waqf, its form is immaterial. It may be
noted that even the use of the word ‘waqf’ is not necessary. A waqf-deed
may be lawfully constituted by using any expression provided it is clear
that the dedicator has intended to create waqf.
• Registration is not necessary for the validity of a waqf even though the
property dedicated is immovable. As discussed earlier, even writing is not
necessary. But, where a waqf of some immovable property is constituted
through writing and the value of property is Rs. one hundred or more, the
deed must be registered. If such a deed is un-registered it would not be
accepted as a deed of waqf by any court of law.
• Section 17(l) (b) of the Indian Registration Act 1908 provides that a non-
testamentary document which purports to create any title or interest of
an immovable property of the value of Rs. one hundred and upwards,
must be registered.
• Thus, where a waqf is created through a document (i.e. in writing) and the
property dedicated is an immovable property worth Rs. one hundred or
more, the existence of the waqf cannot be proved on the basis of that
document.
• Such a document would not be admissible by court of law as an evidence
of the creation of waqf. But, this provision does not apply to a
testamentary document (i.e. will). Therefore, a testamentary waqf is not
compulsorily registerable. In other words, registration is not necessary in
the oral and testamentary-waqfs.

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 • Mode of creation of Waqf: Muslim law does not prescribe any specific way
of creating a Waqf. If the essential elements as described above are
fulfilled, a Waqf is created. However, a Waqf is usually created in the
following ways:
→ By an act of a living person (inter vivos) – when a person declares
the dedication of his property for Waqf. This can also be done while
the person is on death bed (marj-ul-maut), in which case, he cannot
dedicate more than 1/3 of his property for Waqf.
→ By will – when a person leaves a will in which he dedicates his
property after his death. Earlier it was thought that Shia cannot
create Waqf by will but now it has been approved.
→ By Usage – when a property has been in use for the charitable or
religious purpose for time immemorial, it is deemed to belong to
Waqf. No declaration is necessary and Waqf is inferred.
Power of Mutawalli

• Mutawalli is nothing but the manager of a waqf. He is not the owner or

even a trustee of the property. He is only a superintendent whose job is
the see that the usufructs of the property are being utilized for valid
purpose as desired by the waqif. He has to see that the intended
beneficiaries are indeed getting the benefits. Thus, he only has limited
control over the usufructs.
• In Ahmad Arif vs Wealth Tax Commissioner, the Supreme Court held that
a mutawalli has no power to sell, mortgage, or lease waqf property
without prior permission of the Court or unless that power is explicitly
provided to the mutawalli in waqfnama.
• Who can be a mutawalli? – A person who is a major, of sound mind, and
who is capable of performing the functions of the waqf as desired by the
waqif can be appointed as a mutawalli. A male or female of any religion
can be appointed. If religious duties are a part of the waqf, then a female
or a non-muslim cannot be appointed.
In Shahar Bano vs Aga Mohammad, the Privy Council held that there is no
legal restriction on a woman becoming a mutawalli if the duties of the
waqf do not involve religious activities.

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 • Who can appoint a mutawalli? – Generally, the waqif appoints a
mutawalli. He can also appoint himself as a mutawalli. If a waqf is created
without appointing a mutawalli, the waqf is considered valid and the
waqif becomes the first mutawalli in Sunni law. But in such cases,
according to Shia law, even though the waqf remains valid, it has to be
administered by the beneficiaries. The wakif also has the power to lay
down the rules to appoint a mutawalli. The following is the order in which
the power to nominate the mutawalli transfers if the earlier one fails –
1. founder,
2. executor of the founder,
3. mutawalli on his death bed.
4. the Court, which should follow the following guidelines –
(a) It should not disregard the directions of the settler but public
interest must be given more importance.
(b) Preference should be given to the family member of the
wakif instead of an utter stranger.
Powers of a mutawalli

Being the manager of the waqf, he is in-charge of the usufructs of the property.
He has the following powers –

(1) He has the power to utilize the usufructs as he may deem fit in the best
interest of the purpose of the waqf. He can take all reasonable actions in
good faith to ensure that the intended beneficiaries are benefited by the
waqf. Unlike a trustee, he is not an owner of the property so he cannot
sell the property. However, the wakif may give such rights to the
mutawalli by explicitly mentioning them in wakfnama.
(2) He can get a right to sell or borrow money by taking permission from the
court on appropriate grounds or if there is an urgent necessity.
(3) He is competent to file a suit to protect the interests of the waqf.
(4) He can lease the property for the agricultural purpose for less than three
years and for the non-agricultural purpose for less than one year. He can
exceed the term by permission of the court.
(5) He is entitled to remuneration as provided by the wakif. If the
remuneration is too small, he can apply to the court to get an increase.

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Removal of a mutawalli

Generally, once a mutawalli is duly appointed, he cannot be removed by the

wakif. However, a mutawalli can be removed in the following situations –

(1) By Court –
(a) if he misappropriates waqf property.
(b) Even after having sufficient funds, does not repair waqf premises
and waqf falls into disrepair.
(c) Knowingly or intentionally causes damage or loss to waqf property.
In Bibi Sadique Fatima vs Mahmood Hasan, SC held that using waqf
money to buy property in wife’s name is such breach of trust as is
sufficient ground for removal of mutawalli.
(d) If he becomes insolvent.
(2) By waqf board – Under section 64 of the Waqf Act 1995, the Waqf board
can remove mutawalli from his office under the conditions mentioned
therein.
(3) By the waqif – As per Abu Yusuf, whose view is followed in India, even if
the wakif has not reserved the right to remove the mutawalli in Waqf
deed, he can still remove the mutawalli.
Difference between Waqf and Trust

Both, in waqf as well as in trusts, the property is detained and its usufruct is
utilized for religious or charitable purposes. But, a waqf under Muslim personal
law may be distinguished from a trust at least on the following matters:

(1) A waqf may be constituted only for those purposes which are recognized
as religious, pious or charitable in Islam whereas, a trust may be
constituted for any lawful object.
(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit
for himself, but the founder of a trust may himself be a beneficiary.
(3) The powers of a mutawalli (manager of the waqf-property) are very
limited as compared to the powers of a trustee.
(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not
be perpetual and may also be revoked under certain conditions.
Because of the above-mentioned differences between waqf and trust, the
Indian Trust, Act, 1882, is not applicable to Muslim waqf in so far as the nature

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and operation of waqfs are concerned. But, for purposes of instituting any suit
in the cases of irregularities and mismanagement of waqf property, a waqf has
been regarded as a ‘trust’ within the meaning of Section 92 of the Civil
Procedure Code, 1908.

However, it must be noted that the Indian Trusts Act is applicable also to
Muslims. Therefore, if a Muslim wants to settle his properties in a Trust, he may
do so under this Act instead of creating waqf under Muslim personal law.

Case Laws

Krishna Singh v. Mathura Ahir (AIR 1980 SC 707)

In this case, a two judge Bench of the Supreme Court was considering whether
a shudra could become a sanyasi. While holding that if the custom and usage
permitted, he could so become, the Court held that in the absence of such usage
or custom he could not be so ordained. The High Court had held that any
handicap suffered by a Shudra according to the personal law would be in
violation of Articles 14 and 15 of the Constitution. It would be violative of the
equality clause as also it would be discrimination on the basis of caste. Frowning
upon this observation the Supreme Court stated,

“In our opinion, the learned judge failed to appreciate that part III of the
Constitution does not touch upon the personal laws of the parties. In applying
the personal laws of the parties, the High Court could not introduce the concepts
of modern times but should have enforced the law as derived from recognized
and authoritative sources of Hindu laws, i.e. Smritis and commentaries referred
to, as interpreted in the judgments of various High Courts, except where such
law is altered by any usage or custom or abrogated by statute."

The Supreme Court held that personal laws, whether codified or uncodified,
whether in force at the time of coming into force of the Constitution or enacted
thereafter, are not susceptible to the Chapter on fundamental rights and cannot
be voided on the touchstone of Part III of the Constitution. In this case curiously
there is no discussion whatsoever as to why Part III of the Constitution does not
touch upon the personal laws of the parties. Personal laws are as much laws as
any other laws. Just because they may be derived (at least at times) from some

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religion or the other they do not cease to be laws. In fact, much of what passes
as personal law does not even have any basis in religion.

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MODULE 7: FAMILY COURT AND UNIFORM CIVIL CODE

Family Courts

• Marriage is an institution which is considered as sacred in India. But with

the changing times marriage has become a subject of great judicial
scrutiny. Before 1984, all family matters were seen by ordinary civil court
judges who used to deal with matters like recovery of money or property.
• The need to establish the family courts was first emphasized in India by
Late Smt. Durgabai Deshmukh, after a tour of China in 1953, where she
had an occasion to study the working of family courts. She discussed the
subject with certain judges and legal experts and then made a proposal to
set up family courts in India to Prime Minister Jawaharlal Nehru.
• Another reason for setting up of family courts was the mounting pressures
from several women’s associations, welfare organizations and individuals
for establishment of such courts with a view to provide a forum for speedy
settlement of family related disputes.
• In view of increase in the incidence of matrimonial disputes and
increasing pendency of the cases in civil and criminal courts, Judges,
women organizations etc. requested the Central Government to pass a
special legislation to deal exclusively with matrimonial matters. The
Government of India, after the recommendation of the Law Commission
in its 59th Report, enacted the Family Courts Act, 1984 which led to the
establishment of Family Courts in India. The Family Courts are designed
for speedy trial and quick disposal of matrimonial disputes (i.e., the
dispute between the husband and wife). The whole idea behind the Act is
to ensure speedy and inexpensive relief with least formalities and
technicalities.
• In M.P. Gangadharan vs. State of Kerala (2006 SC), the Supreme Court has
held that Family Court should be established not only because it is
provided in the Act but the state must be alive to the situation that it has
a duty to provide all infrastructure to the forum of dispute resolution.
Auxiliary Services provided by the Family Court

• Family counselling.
• Reconciliation and mediation service.

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 • Investigational service.
• Legal aid service.
• Enforcement service.
• Medical service.

Appointment of counsellors, officers and other persons for auxiliary services are
made by the Family Court.
Principles on which the family courts are based

• Principle of natural justice, i.e.

→ Fair Trial;
→ Audi alteram partem – No person should be condemned unheard
i.e. the rule of fair hearing.
→ Nemo judes causa sua – No one should be made a judge in his own
cause or the rule against bias.

Formation of Family Courts

• The Family Courts Act, 1984 envisages the establishment of Family Courts
by the State Government by a Notification in the Official Gazette, after
consultation with the High Court of the State.
• As observed by the Supreme Court, State Governments should establish
Family Courts not only because it is so provided in the Act, but also to
discharge its social obligation to provide a less formal platform for
resolving family disputes. (Gangadharan v. State of Kerala, AIR 2006 SC
2360)
• Under the Act, the State Government must establish one Family Court for
every area in the State comprising of a town or city which has a population
of one million or more. Family Courts may also be established for other
areas in the State as the State Government may deem necessary.
• One or more judges:

→ Principal Judge
→ Additional Judge
→ Having minimum 7 years of experience as an advocate or in
judicature.

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Status of Family Court

• More than a District Court but lesser than the High Court.

Matters that may be brought to the Family Court

• Matrimonial causes (suits) – Section 7 (a) of the Family Courts Act, 1984
• Suit for declaration of validity of marriage.
• Suit for spousal status.
• Suits regarding the property of spouses, joint or individual.
• Suits regarding maintenance.
• Suits for guardianship of minor.
• Suits regarding dowry.

Objectives of the Family Courts/ Family Courts Act, 1984

• The object of the Family Courts Act is to provide for the establishment of
Family Courts with a view to promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and family affairs and for
matters connected therewith.
• In Abdul Jaleel v. Shahida, the Supreme Court held that the Family Courts
Act, 1984 was enacted to provide for the establishments of family courts
with a view to promote conciliation and secure speedy settlement of
dispute relating to marriage and family affairs and for matters connected
therewith by adopting an approach radically different from that adopted
in ordinary civil proceedings.
• Matters relating to maintenance allowance to wives, children and parents
are provided under Sec.125 of the Code of Criminal Procedure, 1973.
After enactment of the Family Courts Act, 1984, a proceeding for
maintenance falls within the jurisdiction of the family courts at the places
where such courts have been established. At other places, the magistrate
of the area exercises the jurisdiction in such matters.
• The family courts are specialized as civil courts, which deal exclusively
with dissolution of marriage; declaration of the matrimonial status of any
person; declaration of ownership of properties of the parties concerned;
interim order of injunction arising out of marital relationships; declaration

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 of legitimacy of any person, or guardianship of a person, or the custody
or access of any minor and suits for maintenance.
• The Family Courts Act, 1984 was part of the trends of legal reforms
concerning women. The Act was expected to facilitate satisfactory
resolution of disputes concerning the family through a forum expected to
work expeditiously in a just manner and with an approach ensuring
maximum welfare of society and dignity of women.
Proceedings in Family Court

• Under Sections 14, 15 and 16 of the Act.

• Social therapeutic approach.
• Proceedings to be conducted in camera and not to be publicized.

Uniform Civil Code

• Article 44 of the Constitution (Directive Principles) says that “State shall

endeavour to provide for its citizens a uniform civil code (UCC) throughout
the territory of India.” The objective of this endeavour should be to
address the discrimination against vulnerable groups and harmonize
diverse cultural practices. The stand taken by B.R. Ambedkar in the
Constituent Assembly debates has survived the years. Dr. Ambedkar had
said a UCC is desirable but for the moment should remain voluntary.
• The Law Commission of India notes that the tracts of the Constituent
Assembly debates reveal a lack of consensus on what a potential uniform
civil code would entail. While many thought the UCC would coexist
alongside the personal law systems, others thought that it was to replace
the personal law.
• There were yet others who believed that the UCC would deny the
freedom of religion. It was this uncertainty that led it to be included in the
Directive Principles of State Policy rather than the chapter on
Fundamental Rights in the Constitution.
• The codification of personal laws has historically generated protests. The
Hindu Code Bill, one of the foremost pieces of social legislation, had
triggered enormous opposition.
• The debate on the UCC is centred on the argument to replace individual
personal customs and practices of marriage, divorce, adoption and

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 successions with a common code. Those in favour of one code argue that
it will end discrimination in religions. Detractors contend that it will rob
the nation of its religious diversity and violate the fundamental right to
practise religion enshrined in Article 25 of the Constitution. In fact, they
hold that a state action to introduce the UCC is against the quintessence
of democracy. The secular state is, after all, an enabler of rights rather
than an inhibitor in sensitive matters of religion and personal laws.
• In the Shah Bano case, the court lamented that Article 44 remained a
“dead letter.” Chances are that it may continue to remain so. In its
consultation paper, the Law Commission chose codification of personal
laws over the UCC as a way to end discrimination within religions.
Codification of various practices and customs would make them ‘law’
under Article 13 of the Constitution. Any ‘law’ that comes under Article
13 should be consistent with the fundamental rights, the Law Commission
has reasoned. This would protect the plurality of religions, too, and may
be the way forward for the near future. In fact, the Law Commission has
suggested in no uncertain terms that the UCC is “neither necessary nor
desirable at this stage in the country.” It said a unified nation does not
necessarily need to have “uniformity.”
Formation of the Uniform Civil Code – Bridges & walls

Why do we need Uniform Civil Code? – The Bridges

• To provide equal status to all citizens: In the modern era, a secular

democratic republic should have a common civil and personal laws for its
citizens irrespective of their religion, class, caste, gender etc.
• To promote gender parity: It is commonly observed that personal laws of
almost all religions are discriminatory towards women. Men are usually
granted upper preferential status in matters of succession and
inheritance. Uniform civil code will bring both men and women at par.
• To accommodate the aspirations of the young population: A
contemporary India is a totally new society with 55% of its population is
below 25 years of age. Their social attitudes and aspirations are shaped
by universal and global principles of equality, humanity, and modernity.
This view of shedding identity on the basis of any religion has to be given

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 a serious consideration so as to utilize their full potential towards nation
building.
• To support the national integration: All Indian citizens are already equal
before the court of law as the criminal laws and other civil laws (except
personal laws) are same for all. With the implementation of Uniform Civil
Code, all citizen will share the same set of personal laws. There will be no
scope of politicization of issues of the discrimination or concessions or
special privileges enjoyed by a particular community on the basis of their
particular religious personal laws.
• To bypass the contentious issue of reform of existing personal laws:
Existing personal laws are mainly based on the upper-class patriarchal
notions of the society in all religions. The demand of UCC is normally made
by aggrieved women as a substitute for existing personal laws as
patriarchal orthodox people still deem the reforms in personal laws will
destroy their sanctity and oppose it profusely.
Impediments in the formulation of Uniform Civil Code – The Walls

• Practical difficulties due to diversity in India: It is practically tough to come

up with a common and uniform set of rules for personal issues like
marriage due to tremendous cultural diversity India across the religions,
sects, castes, states etc.
• Perception of UCC as encroachment on religious freedom: Many
communities, particularly minority communities perceive Uniform Civil
Code as an encroachment on their rights to religious freedom. They fear
that a common code will neglect their traditions and impose rules which
will be mainly dictated and influenced by the majority religious
communities.
• Interference of state in personal matters: The constitution provides for the
right to freedom of religion of one’s choice. With codification of uniform
rules and its compulsion, the scope of the freedom of religion will be
reduced.
• Sensitive and tough task: Such a code, in its true spirit, must be brought
about by borrowing freely from different personal laws, making gradual
changes in each, issuing judicial pronouncements assuring gender
equality, and adopting expansive interpretations on marriage,

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 maintenance, adoption, and succession by acknowledging the benefits
that one community secures from the others. This task will be very
demanding, time and human resource wise. The government should be
sensitive and unbiased at each step while dealing with the majority and
minority communities. Otherwise, it might turn out to be more disastrous
in a form of communal violence.
• Time is not yet suitable for this reform: Considering a major opposition
from Muslim community in India over this issue overlapping with
controversies over beef, saffronization of school and college curriculum,
love jihad, and the silence emanating from the top leadership on these
controversies, there needs to be given sufficient time for instilling
confidence in the community. Otherwise, these efforts towards common
will be counterproductive leaving minority class particularly Muslims
more insecure and vulnerable to get attracted towards fundamentalist
and extremist ideologies.
Case References

Shah Bano Case

Mohd. Ahmed Khan v Shah Bano Begum & Ors (1985) 2 SCC 556

The Supreme Court for the first time directed the Parliament to frame a Uniform
Civil Code in the year 1985 in this case popularly known as Shah Bano Case. In
this case, a penurious Muslim woman claimed for maintenance from her
husband under Section 125 of the Code of Criminal Procedure after she was
given triple talaq by him. The Supreme Court held that the Muslim women have
a right to get maintenance from her husband under Section 125 CrPC. The Court
also held that Article 44 of the Constitution has remained a dead letter. The then
Chief Justice of India, Y.V. Chandrachud observed that “A common civil code will
help the cause of national integration by removing disparate loyalties to law
which have conflicting ideologies”.

Facts

• Shah Bano Begum was married to Ahmed Khan in 1932, three sons and
two daughters were born out of the marriage. In 1975, Ahmed Khan drove
her out of the matrimonial home and in April 1978, she filed a petition
against Ahmed Khan for maintenance under section 125 of CrPC. On
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 November 6, 1978, Ahmed Khan divorced his wife Shah Bano by an
irrevocable talaq. Ahmed Khan was an advocate and was having a
flourishing practice. He got married to another woman and had two
children from his second wife too.
• Shah Bano Begum was thrown out of the house with her children, and she
had no other means or source of income to maintain herself and her
children. Thus, she asked for maintenance.
• Ahmed Khan had a defense to the Shah Bano petition that she is a
divorced wife and therefore he was under no obligation to maintain her
under Muslim laws as he had paid a dower of Rs. 3000/- during the iddat
period. The Magistrate Court directed Ahmed to pay an amount of Rs.
25/- per month to Shah Bano. In the Revision Application, the High Court
of Madhya Pradesh enhanced the amount to Rs. 179.20 per month.
Issues

1. Whether the payment of Mehr by the Husband on divorce is sufficient to

absolve him of any duty to pay maintenance to the wife?
The Supreme Court held that there is no escape from the conclusion that
a divorced Muslim wife is entitled to apply for maintenance under Section
125 and that, Mehr is not a sum which, under the Muslim Personal Law,
is payable on divorce. The Court reached this conclusion in support of the
ruling in Bai Tahira where it was held that the payment of illusory
amounts (referring to Mehr) by way of Customary or Personal Law
requirement will be considered in the reduction of maintenance rate but
cannot annihilate that rate unless it is a reasonable substitute.
2. Whether there is any provision in the Muslim Personal Law under which a
sum is payable to the wife ‘on divorce’?
Referring to the views put forth by learned scholars (Mulla, Tyabji and
Paras Diwan), the Court concluded that “These statements in the text
book are inadequate to establish the proposition that the Muslim
husband is not under an obligation to provide for the maintenance of his
divorced wife, who is unable to maintain herself”. “The sum settled by
way of Mehr is generally expected to take care of the ordinary
requirements of the wife, during the marriage and after. But these
provisions of the Muslim Personal Law do not countenance cases in which
the wife is unable to maintain herself after the divorce. We consider it not
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 only incorrect but unjust, to extend the scope of the statements extracted
above to cases in which a divorced wife is unable to maintain herself. We
are of the opinion that the application of those statements of law must
be restricted to that class of cases, in which there is no possibility of
vagrancy or destitution arising out of the indigence of the divorced wife”.
“Since the Muslim Personal Law, which limits the husband’s liability to
provide for the maintenance of the divorced wife to the period of iddat,
does not contemplate or countenance the situation envisaged by Section
125, it would be wrong to hold that the Muslim husband, according to his
personal law, is not under an obligation to provide maintenance, beyond
the period of iddat, to his divorced wife who is unable to maintain
herself.” The Court concluded that the liability of the husband to pay
maintenance to the wife extends beyond the iddat period if the wife does
not have sufficient means to maintain herself.
3. Whether Section 125 CrPC applies to Muslims?
Referring to Section 125 of the Code, the Court observed that the religion
professed by a spouse or by the spouses has no place in the scheme of
these provisions. Whether the spouses are Hindus or Muslims, Christians
or Parsis, is wholly irrelevant in application of these provisions. The reason
for this is axiomatic, in the sense that Section 125 is a part of the Code of
Criminal Procedure, not of the Civil Laws which define and govern the
right and obligations of the parties belonging to particular religions, like
the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi
Matrimonial Act. Clause (b) of the Explanation to Section 125 (1), which
defines “wife” as including a divorced wife, contains no words of
limitation to justify the exclusion of Muslim women from its scope. “Wife”
means a wife as defined, irrespective of the religion professed by her or
by her husband. Therefore, a divorced Muslim woman, so long as she has
not remarried, is a ‘wife’ for the purpose of Section 125. The statutory
right available to her under that section is unaffected by the provisions of
personal law applicable to her.
4. Whether there is any conflict between the provisions of Section 125 and
those of the Muslim Personal Law on the liability of the Muslim husband
to provide for the maintenance of his divorced wife?

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 The Court observed that the true position is that, if the divorced wife is
able to maintain herself, the husband’s liability to provide maintenance
for her ceases with the expiration of the period of iddat. If she is unable
to maintain herself, she is entitled to take recourse to Section 125 of the
Code. The outcome of this discussion is that there is no conflict between
the provisions of Section 125 and those of the Muslim Personal Law on
the question of the Muslim husband’s obligation to provide maintenance
for a divorced wife who is unable to maintain herself.
Judgment

Dismissing the appeal of the husband the Supreme Court held:

(i) The payment of mehr by the husband on divorce is not sufficient to

absolve him of the duty to pay maintenance to the wife.
(ii) The liability of the husband to pay maintenance to the wife extends
beyond the iddat period if the wife does not have sufficient means to
maintain herself.
(iii) Section 125 of the Code applies to all citizens irrespective of their religion.
(iv) Section 125 overrides the personal law, if there is any conflict between
the two.
(v) There is no conflict between the provisions of Section 125 and those of
the Muslim Personal Law on the question of the Muslim husband’s
obligation to provide maintenance for a divorced wife who is unable to
maintain herself.
Smt. Sarla Mudgal v Union of India (1995) 3 SCC 635

The second instance in which the Supreme Court again directed the Government
to frame Uniform Civil Code as directed under Article 44 of the Indian
Constitution.

In this case, the question was whether a Hindu husband, married under the
Hindu Law, by embracing Islam, can solemnize second marriage. The Court held
that a Hindu marriage solemnized under the Hindu Law can only be dissolved on
any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to
Islam and marrying again would not, by itself, dissolve the Hindu marriage under
the Act. And, thus, a second marriage solemnized after converting to Islam
would be an offence under Section 494 of the Indian Penal Code.

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The Supreme Court in this case also opined that Article 44 has to be retrieved
from the cold storage where it is lying since 1949. The Court referred to the
codification of the Hindu Personal Law and held. “Where more than 80 percent
of the citizens have already been brought under the codified personal law there
is no justification whatsoever to keep in abeyance, any more, the introduction
of the ‘Uniform Civil Code’ for all the citizens in the territory of India.

John Vallamattom v. Union of India (1997)

Facts of the case

The petitioner was an Indian citizen and a Roman Catholic. The petitioner
claimed that under the Indian Succession Act 1925 (the Act) he was prevented
from bequeathing property for religious and charitable purposes. The petition
was that the relevant s. 118 of the Act is unconstitutional under Article 32 of the
Constitution of India.

Arguments of the petitioner

• The applicant argued that s. 118 of the Act violates Article 14 (equality
before law) and Article 15 (prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth) of the Constitution because it
discriminates
→ against Christians;
→ against testamentary disposition by a Christian;
→ against religious and charitable use of property;
• Furthermore, it was argued that a citizen of India has a right of a freedom
to choose his beneficiaries under his Will as well as the purpose of
bequest.

Arguments of the Respondent (UoI)

The respondents argued that the Act pre-dates the Constitution and so
continues to be in force. Likewise, the Indian Parliament was not bound by any
legislative changes or development in this behalf in England or any other foreign
country. They also argued that Indian Christians form a separate and distinct
class and cannot be treated on equal footing to Muslims or Hindus as regards
bequests for religious or charitable purposes. Finally, they submitted that

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marriage and succession were of secular character and cannot be included in
the religious guarantees within the Constitution.

Decision

The Court stated that Article 14 of the Constitution guarantees equality before
the law or the equal protection of the laws within the territory of India. The
restriction imposed by reason of a statute, however, can be upheld in the event
that the person to whom the same applies forms a separate and distinct class
and such classification is a reasonable one based on intelligible differentia
having nexus with the object sought to be achieved.

The underlying principle contained in Section 118 of the Act indisputably was to
prevent persons from making ill-considered death-bed bequest under religious
influence. Restrictions imposed thereby have a great impact on a person who
desires to dispose of his property in a particular manner which would take effect
upon or after his death. The concept of ownership of a person over a property
or a right although is a varying one includes right to dispose of his property by
Will. The Indian Succession Act confers such a right upon all persons irrespective
of caste, creed or religion he belongs to.

The Court held that there is no justification in restricting testamentary

disposition of property for charitable purpose. Charitable purpose includes relief
to poor, education, medical relief, advancement of objects of public utility, etc.
As the aforesaid charitable purposes are philanthropic and since a person's
freedom to dispose of property for such purposes has nothing to do with
religious influence, the impugned provision treating bequests for both religious
and charitable purposes is discriminatory and violative of Article 14 of the
Constitution.

The Court further felt that the right conferred by Article 15 was personal rather
than applicable to a group and therefore it was not relevant to the case.

Finally, the judge allowed the petition by a unanimous decision of the Court and
declared s. 118 of the Indian Succession Act unconstitutional as violating of
Article 14 of the Constitution.

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