Sample Paper 1 - Answer Key

1. The Family Tree:

Mangla Alok Latika

D4 D3 S1 D1 S2 D2

W2 H W3

DD1 S SS2

SS1 D DD2
SOLUTION DISCUSSED IN CLASS.

2a. The ownership in order to be complete needs the alienation of the property as a right. The
alienation hence is one of the basic incidents of ownership. A coparcenary is a subset of Joint
Family, and hence, all the coparceners have an equal right over the property among them. So no
single coparcener can acquire the power to alienate the whole joint family property, unless and
until the co-owners authorizes him to do so.

The position of Karta in a Joint Family is different from the other members of the family. He is
entrusted with the management of the joint family property. But this doesn’t mean that he owns
the property as a whole, but he also has an interest in it just like any other coparcener. With
regards to the alienation aspect, if all the members consent to sell the property then such a
transfer would absolutely be valid and will be binding on all the members, but if one of the
members withholds his consent to this transfer then ordinarily the property cannot be transferred.
This can however lead to a situation where such transfer is important for the benefit of the
members but due to the absence of consent, the alienation cannot take place and hence the failure
on the part of the Karta regarding maintenance of the members of the family.

So to avoid such a situation where actually because of the absence of consent of one of the
coparceners, the remaining members might face difficult situations, the ancient texts regarding
the Hindus have mentioned some situations where the alienation of the property can take place
even without the consent of the coparceners.

Situation in Dharmashastras

In Dharmashastra there are 3 ways to alienate the property:

Apatkale: It refers to a situation where the family as a whole or one of its members faces an
emergency, or with respect to its property. This nature of this transaction is meant for averting
the danger, or an attempt to avoid the calamity for which money has to be raised. When it refers
to the property, it indicates the transfer as being necessary for its protection, or conservation, and
for which immediate action is to be taken.

This is not a mere profitable transaction, but a transfer which if not effected may result in the
loss to the family, to this property, or any other property owned by the family.

Kutumbarthe: Kutumbarthe means “benefit of Kutumb,” kutumb meaning the family members.
It, therefore, allowed as the proceeds of such transfer are utilized for the sustenance of the
family members, such as for providing for their needs of food, clothing, shelter, education,
medical expenses etc.

Dharmarthe : The term Dharmarthe means “for pious purposes” which is for the performance of
religious and charitable purposes.
With the evolution of time and due to the colonial influence and their attempt to codify the
Hindu laws, these terms were translated as a Legal necessity, Benefit of Estate, Religious and
Charitable Purposes, respectively.

Legal Necessity

Legal necessity means any necessity which can be sustained by law or is justified by law. This
concept has emerged as a combination of the Apatkale and Kutumbarthe. With respect to the
joint family, it means a necessity with respect to its members and also with respect to its
property, which can be justified in law.

The term “legal necessity” itself explains enough about the concept. The term “legal” here
signifies its justification in law, “necessity” signifies the existence of a situation, need or a
purpose that requires money and that the family does not have that kind of money or alternative
resources, with which that need can be satisfied.

Conditions which need to be fulfilled for validating a transaction under legal necessity are:-

1. Existence of need or purpose, i.e. a situation with respect to family members or its
property which requires money,
2. Such requirement is for a lawful purpose, i.e. it must not be for an immoral, illegal
purpose.
3. The family does not possess monetary or alternative resource which the requirement can
be met with,
4. The course of action taken by the Karta is such as an ordinary prudent person will take
with respect to his property.

However, while such alienation, the consideration for the sale of coparcenary property must not
be inadequate. Further the Dev Kishan case explains that no act done against the law would
qualify as legal necessity.

Benefit of Estate

This term has evolved with time and is not capable of precise definition. But if by the transfer of
joint family property or by its sale proceeds, their property or any other family estate is
benefited, the transaction would be for the benefit of the estate.
‘Benefit’ means an advantage, betterment or to profit, ‘Estate’ means landed property. Since here
the expression is used in connection with joint family property, ‘estate’ would mean joint family
landed property.

The term ‘benefit of estate’ to begin with covered cases purely of defensive nature, such as to
protect it from a threatened danger or destruction, but gradually also included alienations that an
ordinary prudent man would view as appropriate for the given set of situations.

Defensive Transaction

This type of transaction has been illustrated in the case of Hanooman Prasad Pandey v
Mussammat Babooee. In this case, Hanooman was in a business of providing loans. He entered
into a loan contract with Raja Singh. After taking a loan, he died leaving behind a minor son Lal
Singh and his wife, Mussammat. There was an order of Malgoozaree which stated that there can
be confiscation of property, so the wife entered into a transaction of the mortgage.

On attaining majority, Lal singh challenged the transaction on the grounds that:

1. Mussammat was a pardanashee woman and, therefore, the transaction was a vitiated one.
2. The transaction was with specific reference to ancestral property, and hence, she cannot
deal with that kind of property and hence the transaction is void, and the appellant must
return the property.

The court for the first time used the term ‘benefit of estate’ but did not explain it properly. But it
laid down certain facts:

1. Mussammat was de facto guardian whose guardianship with respect to the property
matters are not in dispute, and the revenue is proof of that.
2. The transaction entered into was for avoiding the danger which was impending on the
shape of malgoozaree, which could have led to the confiscation of property.
3. Mussammat was very much capable of entering into a contract for the reason that she
didn’t enter into the unequal

Hence, the court concluded that the transaction entered into was validated in law as it was in the
nature of averting a danger to the ancestral property.

Prudent/Imprudent Transactions
This type of transactions has been discussed by the court in the case of Balmukund v Kamlavati.
In this case, a Hindu joint family owned a small portion of a big plot owned by the alienee, who
approached the Karta for the purchase of the joint family land, and offered him a higher
consideration than the market value. Initially accepting this offer, the Karta accepted the earnest
money, but he later failed to execute the sale deed. The alienee, therefore, filed a suit for specific
performance of the contract, but the other coparceners objected to it on the grounds of invalidity.

Court held that the doctrine of ‘benefit of estate’ emerged from the doctrine of ‘defensive
transaction.’ However such transaction also requires a minimum degree of prudence on the part
of the Karta. The idea of ‘benefit of estate’ doesn’t fit in this case as the family was in affluent
circumstances and that there was no evidence to show that the Karta was finding it difficult to
manage this property.

The courts have laid down some guidelines so as to check that validity of transaction under this
doctrine:

1.When the alienation is for defensive or protective purpose.

2.When it brings any sort of advantage or improvement to the family estate.

3.Where the Karta exercises his prudence suitable to family estate subject to:

4.The degree of prudence is higher than the level expected in the case of exclusive property.

5.How the sale proceeds are used; because it has to be used for the benefit of the family property.

Indispensable Duties

This term implies the performance of those acts which are religious, pious or charitable.
Examples of indispensable duties are the obsequies of father, marriages, grihapravesham, it may
also include many rituals and religious duties like sradha, upanayana, and performance of
necessary Sanskara.

There is a difference in the powers of Karta while alienating properties for indispensable duties
and gifts for charitable purposes. While discharging indispensable duties, the Karta has unlimited
powers in the sense that he can alienate the entire property for that purpose, whereas in the case
of gifts for charitable purposes, only a small portion of the property can be alienated.
The obligation to get the family members married would come under the purview of both legal
necessity as well as a pious obligation as it is considered as the most essential sanskara.

Conclusion

The position of Karta is such which has a duty to maintain all the members and to take care of
their needs and must act for their welfare. With such a duty, he needs to be entitled to some
rights by which he can fulfill the duties he is expected to. The right to alienate is one such right
given to him by the law so as to fulfill the duties of his office. However, there are certain
loopholes which are present and needs to overcome by passing the requisite legislations.

The burden of proof of the alienee to prove that he took sufficient care to ascertain whether there
was actual need should be lifted, instead in cases of invalid alienation it should be demanded of
the transferor to prove that there was an actual condition which demanded instant redress. This
should be so because the alienee being an outsider is not in a favorable position to ascertain it
and such an obligation imposed on these transactions would make lenders unwilling to deal in
joint property which would in turn adversely affect the rights of joint family members.

Another such loophole is the law according to which the purchaser loses all his interest in the
joint property along with all the chance of getting back the purchasing amount is grossly unjust.
It should be noted that the courts in their haste to safeguard the interest of the non-alienating
coparceners, forget the interest of the innocent purchaser who has made a bona fide deal. Hence
sufficient recourses should be made for this.

The concept of alienation has come a long journey, and the courts have also played a very
important role in its development still the flaws are present in the present situation, and they also
need to overcome, and hence to make much favorable laws keeping in mind the interests of all
the individuals concerned.

2b. The legitimacy of a child in Hindu law depends on the validity of the marriage under Hindu
Marriage Act. The Hindu Marriage Act applies to a person who is Sikh, Jain or Buddhist by
religion. Therefore, the illegitimacy criteria followed in above three religions will be the same as
followed in Hindu law. The strict interpretation of Hindu texts leads to a conclusion that a child
should have been conceived after marriage to be considered as legitimate. A Privy Council
judgment, however, held that only birth during wedlock was a necessary criterion of legitimacy
under the Hindu law, which is a binding law. Under the ordinary law, a child for being treated as
legitimate must be born in lawful wedlock. If the marriage itself is void on account of
contravention of the statutory prescriptions, any child born of such marriage would have the
effect, per se, or on being so declared or annulled, as the case may be, of bastardising the
children born of the parties to such marriage.

Valid marriage under Hindu Marriage Act, 1955

Under the Hindu Marriage Act, marriage is void under following circumstances:

1.If the marriage is a bigamous marriage.

2.If the persons who are married are sapindas of each other.

3.If the persons who are married are within prohibited degrees of relationship.

The effect of categorizing such marriages as void will be that the marriage was never in
existence. Marriage is valid if all the conditions laid down in Section 5 and 7 are fulfilled and
the children born of such marriage are considered as legitimate. In following situations,
marriage will be voidable at the option of one party:

1.when the other party was insane at the time of marriage;

2.when the other party was impotent at the time of marriage;

3.when the wife was pregnant at the time of marriage by some person other than the husband
(without the latter’s knowledge); and

4.(If) when the consent of the other party (or the guardian’s consent in regard to a minor bride)
was obtained by force or fraud.

In above situations, option rests with the party to get the decree of annulment from courts (in
void marriages, decree of annulment is granted). The children will be considered legitimate till
court grants decree. However, if the parties under Section 12 are seeking a decree of divorce,
then the question of illegitimacy does not appear as divorce can be granted only in cases of valid
marriages.

Originally the Hindu Marriage Act provided that a child born out of a marriage declared void or
annulled by the court will have the same status as that of marriage dissolved by decree of
divorce. But the courts have interpreted Section 16 of the Hindu Marriage Act differently; the
section was applicable only if a decree of nullity was passed by a court; in the absence of such a
decree, the children remained illegitimate in the case of void marriages. This lacuna was
however removed after the Marriage Laws (Amendment) Act, 1976, which amended Section 16.
Now, the children of all void and voidable marriages shall be deemed to legitimate. However, the
children born out of void or voidable marriages cannot inherit the property of their relatives.

If the marriage of child’s mother with her previous husband is not legally dissolved, he won’t be
considered illegitimate if born out of second marriage. Declaration of Validity of marriage on a
petition of either party declare marriage as nullity under a decree which was pre-condition under
Section 12 of Act, 1955 is done away with

Inheritance

An illegitimate child is not entitled to succeed to his father. But under the Hindu Succession Act,
illegitimate children are deemed to be related by illegitimate kinship to their mother and to one
another, and their legitimate descendants are deemed to be related by legitimate kinship to them
and one another, and can therefore inherit from each other under the said Act. An illegitimate
child can inherit the property of his or her mother or of his or her illegitimate brother or
sister(uterine blood). A mother also can inherit the property of her illegitimate child. The father
has no right to inherit the property of his illegitimate child.

Joint Family Property and Partition

Unlike a legitimate son, an illegitimate son does not acquire any interest in the ancestral property
in the hands of his father; nor does he can be a coparcenary in a Joint Hindu Family. He is also
not entitled to enforce partition against the family. The father may, in his lifetime, give him a
share of his property, which may be a share equal to that of the legitimate sons.

Prior to the passing of the Hindu Succession Act, on the death of his father, an illegitimate son
succeeded to his estate as a coparcener with the legitimate son of his father, and was entitled to
enforce a partition against the legitimate son. Now, under the said Act, however, he cannot
succeed his father, as he is not related to him by legitimate kinship.

Though the amendment of 1976 in Section 16 now enacts a legal fiction deeming the
illegitimate children as legitimate for all practical purposes including succession to their family
properties but the court’s jurisprudence until now has been : Child born of void or voidable
marriage can only claim share in self-acquired properties of parents not in ancestral property.
Children born out of live-in relationship do not have an inheritance right over the ancestral
property. In S PS Balasubramanyam vs Sruttayan, the SC had said, “If a man and woman are
living under the same roof and cohabiting for a number of years, there will be presumption under
Section 114 of the Evidence Act, that they live as husband and wife and the children born to
them will not be illegitimate.” The crucial pre-conditions for a child born from live-in
relationship to be not treated as illegitimate are that the parents must have lived under one roof
and co-habited for a considerably long time for society to recognize them as husband and wife. It
must not be a “walk in and walk out” relationship, as the court pointed out in its 2010 judgment
in Madan Mohan Singh vs. Rajni Kant.

However in a very recent judgment by Supreme Court, Revanasiddappa v. Mallikarjun, it was

held that ‘Child born in illegitimate relationship/Void marriage is innocent and is entitled to all
rights to property to which his parents are entitled whether ancestral or self-acquired property.’ A
Bench of Justices G.S. Singhvi and A.K. Ganguly, hearing an appeal by Revanasiddappa,
differed with earlier judgments in interpreting Section 16 (3) of the HMA that “such children are
only entitled to the property of their parents and not of any other relation.” Underlining the need
for a liberal interpretation of Section 16 (3), the Bench said: “with changing social norms of
legitimacy in every society, including ours, what was illegitimate in the past may be legitimate
today. The concept of legitimacy stems from social consensus, in the shaping of which various
social groups play a vital role.”
Quoting an earlier judgment, the Bench said: “the HMA intends to bring about social reforms,
and conferment of social status of legitimacy on innocent children is the obvious purpose of
Section 16. This is a law to advance the socially beneficial purpose of removing the stigma of
illegitimacy on such children who are as innocent as any other children.”

Since there was no restriction imposed in Section 16 (3), such children would have a right to
whatever “becomes the property of their parents whether self-acquired or ancestral,” the Bench
said.

3. What most of the society does not understand is that women will no longer burden be an on
the family if she inherits like her other male siblings. If a woman inherits property, she will get
equal status like a man but if no property is given to her, she has a lower status than a man and it
results in the subjugation of woman’s status. All these thoughts led to the enactment of The
Hindu Succession Act Amendment 2005. The act came into force due to the disappointment
expressed by a section of the society against the discontent position and unsatisfactory legal
status of women inheritance rights. This act bought some revolutionary changes not only which
affect the coparcenary laws but also partition laws, property alienation, adaptation, and
inheritance. It was believed that these discriminations are eliminated as The Hindu Succession
Amendment Act, 2005 was a direct hit on the roots of the patriarchal system. Gender
discrimination has been removed from Mitakshara coparcenary to some extent by raising the
female member’s status of Hindu Undivided Family and makes them equal to the male
coparcener. Both male and female become heirs by birth and inherit their father’s property if
father had prepared no will for his property. Due to this Act in a joint family there are now three
successive generations i.e. grandfather, father, and grandson or granddaughter. And after the
death of the eldest member or Karta of Hindu joint family, the property of Hindu joint family is
owned collectively by coparcenary property related to the deceased person and the joint Hindu
family will distribute between each coparcener collectively. Coparcener male or female or both
will get their share. After the amendment of 2005, the share of Karta or any coparcener devolves
by way of succession and not by survivorship. The Hindu Succession Amendment Act, 2005
allows a daughter to claim her rights as a coparcenary in parental property. This was a landmark
change in our society, the revolutionary rights that make a woman capable to inherit her share in
the parental property, especially sisters or daughters after the death of their parents. The Hindu
Succession Act, 1956 was the bold attempt that makes female Class I heirs and provides the
opportunity to get access and control over the property40. However, this was not without
loopholes. Such as women will have only maintenance right of property, which means she can
only maintain the property but not get ownership right over it. The transfer of agricultural land
and land holding, and control rights are coming under laws of the state which kept out from
Succession Act circumferences but mostly states of India placed women as a last heir in the land
ownership issues. According to the succession rights of Hindu Succession Act, 1956 only
unmarried daughter who was deserted, or divorced or a sister had permission by law to live in a
house, but the married daughter was not permissible to do so. With the Hindu Succession
Amendment Act, 2005 all these discriminations were abolished.

Regardless to the fact The Hindu succession Act, 1956 was a landmark change in our society. It
was still criticized on the grounds of gender inequality. According to the 174th Report of the
Law Commission of India on 'Property Rights of Women, many citizens felt that The Hindu
succession Act, 1956 was on only progressive at face value and had no real progressive weight.
A similar was seen during the social reform movement during the pre-independence era. During
that time also similar issues were raised about women inheriting property and even though steps
were taken to improve this situation back then, we call all see that no real change has truly been
made to this. Some examples of this are, in the Hindu Succession Act, 1956 women cannot
inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes
his share, and females get nothing. Only when one of the coparceners dies, a female gets a share
of his interest as an heir to the deceased. A married woman is denied the right to residence in her
parental home unless she widowed, deserted, or separated from her husband. None of these
provisions are fair but they still allow a woman to inherit some property. So, society calls the Act
progressive and a landmark judgment. But after truly understanding this act can one actually say
that inheritance is the same for men and women? No, it is not. It was not the same during
Aristotle’s time, it wasn’t the same during the pre-2005 judgment and it isn’t the same now.
Unfortunately, many women still live in an oppressive and male-dominated world that has made
women so dependent on their male counterparts throughout their life and led them to neglect
their rights and claim in the partition of property. Only a few a women are conscious of their
legal rights which is why most women do not claim their rights in parental property. Hardly few
females get their rights and access to property, especially inland property. Property ownership is
control and reserved only for male members of the family and is practiced under the guise of
customary laws those which are in the favour of men rather than equality. This is why there is a
huge difference between reality and practices of inheritance laws at the grass-root level. Does
this raise questions like Why do women not get an equal share in the parental property as
compared to her male siblings? Why do the male siblings of women get the whole parental
property? What are the ways through which the male sibling of a woman gets the whole parental
property? How do male siblings manipulate women’s inheritance rights? A solution to this issue
about female inheritance is to bridge the gap between theory and practice. It is possible to bridge
the gap but is a long and tedious process. But the research has shown me the reality at a grass-
root level. I have understood that no matter what women are not going to be able to claim their
share in the parental property the majority of the time, and our socio-legal system plays a big role
in preventing women from claiming their legal rights. One may feel it is easy to solve the
problem by simply changing our socio-legal system, but is not that simple because for our socio-
legal system to change one has to change the mindset of the society as a whole. The very mindset
that has been there for centuries. As a result, Hindu women in India do not exercise or enjoy
equal legal rights as men do. Especially succession rights. Even in today’s modern society where
women are considered equal to men in every regard. They still do not have the inheritance rights
that equal men. Which shows how little development has occurred for women from the time of
Aristotle in the 384 BC to the Mitakshara School in the 11th century to the present in the 21st
century.