Dinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 Family Law i ‘Muslim Law of Inheritance (Muslim Intestate Succession) Meaning ‘©The expression inheritance isa concept related to property ‘Transfer of property from dead person to ving person ‘What the relatives get without the consent of the deceased # Thereare 3 class of Heirs © Sharers © Residuaries ©. Distant Kindred’s ‘© Muslim Law does not recognise Joint family system. There is no distinction between family property and ancestral properties. ©The property devolve on his heirs through Succession, ‘Whenever a female inherits the property she takes absolutely, Quran gives specific shares to certain relations, Residue of the property goes to agnatic heirs and in their absence to uterine hes Requests are limited to 1/3". ‘© Relations by affinity (Husband and Wife) ‘© Ascendants are allowed to inherit along with descendants The heirs inherit as tenants in common (Percapita method) ‘Application of the property of Deceased Muslim ‘There are 4 successive duties to be performed by Kazi, + Funeral Ceremony + Discharge of debts, + Payment of legacies ‘Distribution of Residue among is successors ‘The estate of the Muslim is tobe applied according to Indian Succession Act, ‘+ Payment of Funeral Expenses and Death Bed Charges 6.320 + Expense of obtaining Probate, Letter of Administration and Secession Certificates $321 Wages due for Service rendered to Deceased $322 + Alldebts of the deceased 5.323, + Legacies not exceeding 1/3" of what remains after payment of tems mentioned above $.325 + Residue is tobe distributed among the Heirs as. per Law. Hanafi Law of Inheritance Meaning ‘© According to Hanafi Law the Heritable property first goes to the relations of the deceased on the basis of their preferential claim. Doctrine of First born is not seen here. © No distinction between Movable and Immovable property. ‘Illegitimate child can inherit mother's property and not fathers. Doctrine of Aulis applicable to al sharers. The sharers or Cass 1 The Residuaries or Clas I The Distant Kindred or Class I The state by Escheat ‘The Sharers ~ Class! 1. Husband-1/4 Child * % No Chile 2. Wife (Widow}-1/8 Child * % No Child 3. Daughter-1/2{2/3) No Son, When Son- Residuary 4. Father-1/6 Child, No Child-Residuary 5. Mother-1/6 Child, Bro, Sis (Uterine, Consanguine) a. -1/3 No Child, Bro, Sis b._ If Wife, Husband or Father is present. Only 1/3 of what remains after deducting from Spouse 6. True GF-1/6 Child, No Father, GE 1. -No Child, he is residuary provided No Father or nearer True GF 7. True GM-1/6{2/6) No Mother, MTGM, PTGM, Father and Nearer TGM and Immediate TGF. 8. Sons Daughter HLS-1/2(2/3) No Son, Daughter 9. Sons Daughter-1/2(2/3) No S, D, SS=Residuary 10. SSD- (2/3) No Son, D, SS, SD, $55 LL. Uterine Brother-1/6(1/3) No Child, Child of Son, Father, True GF 12, Uterine Sister-Same 413, Full Sister- (2/3), No Child, Child of @ Son, Father, TGF or Full Brother=Residuary 414. Consanguine Sister-1/2(2/3) in absence of 2 child, Child of a son, Father, TGF, FB, FS or Consanguine Brother, Con Bro=Residuary ‘+ Son- When there is Daughter He takes double When there is no daughter he takes entire Residue ‘+ Son's Son-When there is Son's daughter he takes double portion + Nearer son excludes remoter ‘Two or more Son takes Equal ‘Ascendants 1+ Father-As residuary takes entire estate ‘+ TGF-As Residuary takes entire estate Nearer TGF excludes RemoterDinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 Collateral Descendant of Father ‘© Full Brother- Where there co-exsts full sister he take double In absence of Sister he takes entire residue, ‘Full Sister-in absence of Full brother and Residuary, She takes Residue * Consanguine Brother-When there is Consanguine Sister, he takes double. # Consanguine Sister-in default of Consanguine Brother she takes the Residue. ‘+ Fullbrother's Sor-in default of above residuary he takes entice residve. = Consanguine Brothers son Same ‘© Full brothers Son's Son- Same + Consanguine brothers son = Same Descendants of True Grand Father The below given people take the entire residue, Full Paternal Uncle * Consanguine Paternal Uncle Full paternal Uncle Son * Consanguine Paternal Uncle Son ‘+ Full paternal Uncle Son's son + Consanguine paternal Uncles son’s son ‘The Distant Kindred ~ Class = Female Agnates + Female Cognates # Descendants of the deceased ‘© Ascendants ofthe deceased * Collaterals Doctrine of Aul (Increase) Sometimes the Allotted Share will be more than the ‘Actual, so we have to increase the Denominator (x) 13/12 becomes 13/13 Doctrine of Radd (Decrease) Sometimes the Allotted Share will be less than the Actual, so we have to decrease the Denominator (x) 12/13 becomes 12/12 ‘The Shia Law of Inheritance They do not recognise distant kindred and therefore only 2 clas of heirs (©. Sharers and Residuaries ‘© Sharers and Residuaries are divided into 3 class inan order of preference. Doctrine of eldest son s applicable, ‘They adopt the principle of Consanguinity and not the agnacy. = Sharers are $in number * Childless widow cannot take any property in immovable property + Illegitimate child can inherit both the fathers and mothers property * Doctrine of Aul is applicable to Daughter and Sister of the deceased Classification of Heirs ‘© Heirs by Blood Relationship Heirs by Martiage Heirs by Consanguinity Class | © Parents (© Children and Other lineal Descendants Class ©. Grand parents © Brothers, Sisters and their Descendants Classi (© Paternal and (© Maternal Uncles and Aunt of deceased. Class | excluded Class I! and Class I! excluded Class I. Heirs within a class inherit together and do not exclude each other. ‘Table of Sharers under Shia Law 4. Husband-1/4 Lineal Descendant, % No Lineal Descendant 2. Wife-1/B Lineal Descendant, % No Lineal Descendant 3. Father-1/6(2/3) Lineal Descendant, as Residuary No Lineal Descendant 4. Mother-1/6 Lineal Descendant, Consanguine or Full Bro, Sis. 1/3 other case 5. Daughter-1/6(2/3) when no son, Residuary when son is there. 6. Uterine Brother-4/3 when no parents or lineal descendant 7. Uterine sister-1/6(1/3) same 8. Full sister-1/2(2/3) when no parent, Lineal descendant, Full brother, Fathers father and Residuary along with them all 9. Consanguine Sister-1/2(2/3) when no parent, Lineal descendant, Full brother, Full sister, Consanguine brother, Fathers father and Residuary along with them all ‘Muslim Law of inheritance ‘They do not recognize survivorship © No difference between ancestral and self- acquired ‘© Right of representation not seen, ‘© Rule of Male getting double is peculiar here + There's no Limited estate + A.son does not exclude father, Mother and daughter ‘+ Females are not excluded by males ‘+ Heirship is determined on basis on Blood relationship and Marriage. ‘+ Unchastity Is not a ground for exclusion from Inheritance, ‘+ Females does not inherit from their illegitimateDinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 Law of Wills (Testamentary Succession) Meaning ‘will or testament will come into force after the death of the testator and is revocable before the death of the testator. {A\Will contains the intention of the owner of the property as to how his property is to be disposed after his death. Under Sunni Law, the will of 2 person ‘committing suicide is Valid Under Shia law itis invalid Under Sunni law the unborn has to be born within 6 month Under Shia law the unborn has to be born within 10 months bequest toa Non-Muslim is valid upto 1/3" In Sunni law bequest to testator murder is invalid Under Shia law bequest to testator is valid only ifitis not done intentionally Even future property can be transferred through wil Exceptions to 1/3" Rule applies to Heirless person and Consent of Heirs. Will can be written or made orally Though its in writing, it need not be attested by witness. ill by gesture is allowed Will should be constructed as per the Intention of Testator [A Sunni Muslim can bequest to 2 non-heir more than 1/3 of hhis assets without the consent of other heirs. {A Shia Muslim can bequest more than 1/3" of his asset to an heir or non-heir without others consent. Limitation of Bequest in favour of Heir is invalid Under Sunni Law the consent should be elven after the death of Testator. Under Shia law the consent may be elven before the death of Testator. Essentials Competence of Testator Competence of Legatee Subject Matter Testamentary Capacity Revocation of Will Will can be revoked any time before Testator death Revocation may be express or implied ‘Will can be torn or burnt Extinction of Subject Matter Codicil Death Bed Gift-Marz UI Maut ‘© It is applicable only when the donor dies of illness during which the gift is made. is subject to 2 restrictions Disqualification of Heir ‘Property disposed of should not exceed 1/3°. Essentials ‘© There must be an apprehension as to immediate death ‘+ Inanticipation of death. ‘© Mere apprehension of death due to old age is not sufficient + It's related to movable property only Gift and will # Giftisan immediate transfer of Right, willisnot + Delivery of possession is necessary in Gift and notin will ‘+The subject matter of gift should not relate to future property, but notin will ‘© Rights of Donor of Gift is unrestricted, itis 2in will Gift cannot be revoked unless by a formal decree of court, but not for will ‘© Doctrine of Mushaa has no application in case of disposition made by will. Non-Muslim Will (Testamentary Succession of Hindus, Christians and Others) kinds of wills Privileged Will It can be made by a person who is in Army, Navy, Air force + Iemay be made orally orn writing ‘It should be made before two witnesses ‘© It becomes void after one month if testator is. alive Its handwritten t need not be signed ‘+ Fit is written by somebody it need not be attested, ‘© Verbal instruction in the presence of 2 witness ‘make the wil valid Unprivileged Will ‘© Ifa will is made by a person other than the persons stated above, itis called unprivileged will, ‘+ The testator has to sign or affix his mark on will ‘© The mark must be affixed by testator himself Probate and Letters of Administration ‘© Probate is the copy of the will certified under the seal of court of a competent jurisdiction with a grant of administration to the estate of the testator. Letters of Administration are granted by 2 court having probate jurisdiction to show thatDinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 the authority incident to the office and duty of ‘an administration has been devolved upon the person named therein. ‘Succession Certificate ‘tis issued by a court of competent jurisdiction Inrespect to a debt or security. ‘Main idea isto facilitate collection of debts on * Itavoids dispute among heirs Interest of debtor is protected * It contains details of whom the certificate is issued Revocation ‘When it s obtained by Fraud. © When certificate is found defective in substance + When it is obtained by fase allegation of fact * When it s found useless. ‘+ When decree passed by court is proper. Doctrine of Cy Pres + Asnearly as possible. ‘ Testator’s general intention and particular Intention is carried out in here. ‘When it isimpossible it’s carried out CY Pres. waar Meaning ‘It is dedication of property in perpetuity to God. The property can be both Movable and Immovable. ‘The person who create waaf is Waait ‘The property on whose favour itis transferred |s Mutawall + There is ownership of God Extinction of founders right # Benefitto mankind # Object should be Pious als *Itmmust be permanent + Itemust be irrevocable + Itemust be inalienable + Itmmust vest in God ‘Who can make Waaf + Only Muslim, + AMajor #Aperson with Sound Mind * AGuardian on behalf of Minor Mode of Creation + By Inter Vivos = By Will # During Death liness By immemorial user Kinds of waat © Public + Private Formalites © Itmay be Oral or in writing No formula for ereation ‘Language of dedication should be clear Revocation © By the author at any time ‘© When it is made without consent of Heirs ‘Wag created by Intervivos is irrevocable. Mutawall ‘© Apperson who manages the Waaf property ‘© Any Muslim Male or Female who is above 18 Yrs with Sound Mind can be Mutawalli © ANon-Musim can be a Mutawalli © Minor may act as @ Mutawalli He has the Power of Management Power of Alienation Powerto incur debts Powerto Sue He can be removed by the founder as stated in Waaf-deed * Court_may remove him on grounds of Dishonesty © Once removed he is not eligible to be reappointed for 5 Years. Special Marriage Act 1954 Christian ‘© -ACChristian is one who profess the religion of Jesus Chris. ‘Special Marriage ‘+ Any 2 persons of opposite sex respective of Religion can be married under this Act. Conditions of Valid Marriage S.4 ‘= Monogamy + Must not be Unsound Mind + Age Limit Prohibited Relationship Procedure for Solemnization of Marriage ‘+ $.5 Notice to be given before 30 days ‘5.6 Publication of Notice ‘5.8 Objection to marriage checked ‘© 5.11 Declaration for Marriage with 3 Witness signed #52 Place and Form of Marriage #53 certificate of Marriage Other provisions Void and Voidable Marriage 5.4 Restitution of Conjugal rights 5.22 Judicial Separation $23, Grounds for Divorce $27 Divorce by Mutual Consent 5.28Dinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 The Hindu Joint Family (Law of intestate Succession) Meaning ‘thas its origin in Smeitis ‘© Ithas evolved from Patriarchal family ‘It consists of all persons lineally descended froma common ancestor. It includes common ancestor wives and Unmarried daughters ‘© Adaughter cease to be member of the family fon her marriage and becomes part of Husband's marriage. + There can be joint family without joint estate, * Sapindaship arise by Birth, Marriage and Adoption, tis an institution "Sui Generis” Members (After 1956) ‘© Persons lineally connected in Male Line * Collaterals ‘Any person related by Adoption * Dependants Son born out of Marriage of Hindu & Special Marriage. + Wife or widows of deceased male members + Malden daughters. ‘= IWincludes illegitimate child also, treated to be members of father’ family + Married widowed daughters are also eligible for maintenance ‘The Joint Family and Co-Parcenary ‘© Head of the Family is Karta (Father) + Senior most male member can be Karta + Female can be a Karta Minor can be aKarta Enjoyment of Joint Family Property Right to Maintenance/ residence Right to have a Partition 4 Right to cal for an account ‘Right to joint possession and enjoyment Other Features ‘There is coparcenary among coparcenary * Coparceners are owners of Joint family property They acquire interest by Birth The Heirs and co-heirs are coparceners + 3 Generations next to Unbroken Male descendant ‘Sec 6 Hindu Succession Act 1956 ‘© The daughter becomes coparcener by Birth * They have same Rights They have same Liabilities ‘Their Interest by Births subject to change with Birth of another Coparcener Joint Hindu Family and Coparcenary ‘© tis Unlimited and its upto 4 degrees ‘+ InJFno difference between M/F , Coparcenary Is limited to M in Mitakshara or Old law ‘+ JF continues even after death of members, Unbroken Male Descendant is required ‘© JFisnot a coparcenary , coparcenary is IF © In JF membership acquires by Birth and marriage, in co-Parcenary it acquire by Birth and Adoption, Classification of Property Joint Family Property ‘+ Also called as Coparcenary property + Unobstructed Heritage ‘© Aprathibanda daya + Right acquires by Birth ‘© Itisinherited from F, FF.FFF and not exceeding 3 degrees and through others ‘© Separate property of others are thrown into ‘common stock + Ieconsists of (© Ancestral Property (© Property acquired by members of Joint family (© Separate property thrown into joint stock © Property acquired by Joint family funds (© Rule of Survivorship applies here ‘Self-Acquired property + Also called as Separate property Obstructed Heritage © Saprathibanda daya + Hels the sole owner + Interest doesn't get by Birth ‘© Interest acquired only on death of Last owner ‘Property inherited from other than F, FF, FFF # Property received by Gift, Government Grant Income ‘© All relations other than Son has Obstructed Heritage ‘The incidents of Separate property, (© Exclusively belong to him © Itmakes no difference that he ie joint owner (© No interest by Birth even for Male (© Hemay dispose it any manner he likes © It’s not liable to Partition on death if there is no will (© Rule of Survivorship does not apply here.Dinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 Karta ‘© Hels the Head of the Family Also known as Manager Father or Senior most Male Member Even a unior Most Male Member [A Minor Male also is a Karta through his Legal guardian tll he becomes a Major ‘Sui Generis: Not the postion of Principal and Agent Duties and Liabilities of Karta To maintain all members ofthe Family Performs marriage of all the members of unmarried ‘© Prepare the accounts Bound to pay Tax May be sued for failure of above duties Powers of Karta Power of Alienation + Legal Necessity # Benefitto Estate * Indispensable Religious duties Other Powers # Power over income and Expenditure # Power to manage Joint Family Business Power to Contract debt for Family Purpose Power to enter into contracts Powerto refer to arbitration Power to enter into compromise Power to get discharge Power to acknowledge debts * Power to represent in Suits Power of alienation of Joint Family property Doctrine of Pious Obligation ‘Its the holy duty of the son to pay off or discharge his father’s debts ‘tis attached with 5, $5 and SSS to pay along. with Interest = Itdoes not include Avyavaharika debts, debts for immoral purpose. ‘= Itincludes Non-Avyavaharika or Moral debts ‘The obligation arises even during the Lifetime of the Father ‘applies even to Polyandry case, where 2 fathers are there ike Thiyas of Calicut, Debts outside the Scope of Doctrine + Commercial debts + Suretyship debts, Gaming Debts = Avyavaharika debts Partition of Joint Family Property ‘© It’s process by which Joint family status is put toanend. = Coparcenary property becoming separate property ‘Subject matter of Partition is Co-Parcenary ‘© Separate properties like dwelling house, idols, temples, well, oraments are not subjects oft. Provisions to be made before Partition ‘© Debts of Joint family has to be cleared Personal debts of father should be cleared ‘+ Maintenance of dependent female members Maintenance of disqualified heirs ‘© Marriage expenses of unmarried daughters ‘Expenses of funeral ceremony of the widow. There should be an expression of distinct Intention ‘+ Division by metes and bounds not necessary + Existence of property is not necessary ‘© There is no need for telling the reasons for ‘© Presence of Minors will be no hindrance for Partition Who can claim Partition + Father #5,85,555, © Minor Coparcener + Adopted Son ‘legitimate Son + wife + Widow Mother + Grand Mother Allotment or Rules of Shares + lyesthansa-Eldest son taking double share because he offers Pinda is not applicable anymore. Father and Sons take Equal Share Brothers take equally Joint Tenants or Per stripe Rule Tenants in Common or Per capita Rule ‘Mother gets equal share with Sons Widow gets share of her Husband's property Wife, Widowed Mother, Widowed Grand ‘Mother and Daughter takes equal share. Daughter takes equal share with Son, Partition how effected + By filing 2 Suit ‘© By agreement among coparceners By arbitrationDinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 Reopening of Partition A partition can be reopened in following cases, + Fraud Son in Womb [Adopted Son Disqualified Co-parceners Son Conceived and born after partition Absentee Coparcener © Minor Coparcener Reunion ‘© After the partition if any 2 or more coparcenary reunite together and combine their assets itis called Re-union. ‘+ The parties to Reunion should have been the parties to original partition. Pras Smolen y uri 3 bewhdon Pear er warteaiteril o He"kn har siaihed Untied ete of a 2 Te" eboled Stiden and prod + renga sinclar ar shes Tepes cobs his ee deal st toisertontecrconee Tear alate lpn «+ nevenoner thee of he esta her einen Hindu Male Intestate Succession .8-13 Meaning \When a Male Hindu dies, the property devolves ‘© First upon Class | Hetrs ‘© Second upon Class Il Heirs ‘© Third upon Class ll Heirs # Next to Agnates * Inabsence of Agnates to Cognates, ‘© _Inabsence of above to State by Escheat Class Heirs They are 12 in number Percapita Mode = Son = Daughter © Widow © Mother Per Stripes Mode + SofPps. + DofPDs © SofPDD. © DofPoD = SofPDSofPDS © DofPo Sof PDS + Widow of POS + Widow of PDS of PDS ‘Addition in Hindu Succession Amendment Act 2005 + SofPDDofPDD + DofPD Def PDD © DofPOSofPDD © DofPODof PDS Conditions + Son © NaturaleAdopted © legitimate Son=Legitimate Son © Nostep Son Daughter © Sor Daughter © Natural, Adopted daughter © No Step daughter (© Unchaste daughter's included © illegitimate daughter is entitled for Maintenance only © Widow © Sor © Twowidows take single share (© Remarriage of widows is allowed © Mother ido (© Remarriage is allowed (© Unchastity is no bar © Includes Adoptive Mother Entitled to property of Illegitimate Son No step MotherDinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 Per Stripes Mode/Doctrine of represen ‘The Heirs of Deceased will get into the shoes of their parents ‘Usually nearer heir succeeds the Remoter # Here Remoter succeeds Nearer Heir SofPos Dof Pos, Sof PDD Dof PDD Sof PDS of PDS DofPDSof PDS Widow of POS © Widow of PD S of PDS ‘Addition in Hindu Succession Amendment Act 2005 © SofPDDOfPDD © Dof PDD of POD © DofPDSofPDD © DofPDO of POS ‘Glass il Heirs They are 9 Groups in number ‘The heirs of first entry are preferred to second and so on. Full blood preferred to half-blood. Brother/sister does not include uterine blood, Category | + Father Category It + Son's Daughter's Son Son's Daughter's Daughter * Brother # Sister Category Il Daughter's Son’s Son Daughter's Son’s Daughter Daughter's Daughter's Son Daughter's Daughter's Daughter Category 1V + Brother's Son + Brother's Daughter # Sister's Son Sisters Daughter Category V © Father's Father Father's Mother Category Vi © Father's Widow * Brother's Widow Category Vit Father's Brother Father's Sister Category Vil ‘© Mothers’ father * Mother's Mother Category IX ‘© Mother's Bother Mother's Sister Notional Partition ‘© Theshare should be allotted toll persons who are entitled to share the property in case of actual partition. ‘© Usually share willbe allotted to Living Persons. ‘© Under Notional partition share willbe allotted to Deceased and then partition is calculated, ‘Woman's Property (stridhan/Woman’s Estate) ‘The property of Woman is categorised under 2 heads, = Stridhan © Woman's Estate Stridhan according to Manu Property held by women in thelr exclusive right ‘© What was given before the nuptial fire ‘© What was given at bridal procession ‘+ What was glven as token of love + What was received froma brother What was received froma mother © Afather are considered as 6 forms of property of women. ‘The following properties are not Stridhan, ‘+ Property inherited by a Woman + Property inherited by her on Partition Gifts froma stranger Property acquired by mechanical arts ‘Stridhan according to Hindu Law ‘Gifts from Relatives + Gifts from strangers during Maidenhood + Property obtained in ‘©. Partition © Maintenance © Inheritance (© Technical sil/Art © Compromise © Adverse Possession (© Earnings of Stridhan © Acquired Lawfully Features ‘© Absolute Ownership She has Right to Use, Gift, Mortgage, Lease, and Exchange + She can choose to destroy Succession to tridhan ‘Ancient Times 1. Daughter 2. Uterine Brother 3. Mother 4. Father Hindu Law 1. Son/Daughter/Husband-No step Child Heirs of Husband-Property of Husband Father/Mother Heirs of Father-property of Father Heirs of MotherDinesh Rajasekaran / Family Law Il/ LLB YEAR / Dr Ambedkar Law College / 9551386967 ‘Woman's Estate ‘The non Stridhan property over which she had no power of disposal and which goes back to Reversioner who isthe full owner. The two categories of property which comes here are © Property obtained by Inheritance © Share obtained on Partition She could not alienate Property devolve to reversioner She has the power of Management She has the power of alienation (© Legal Necessity © Benefitof Estate © Religious Purpose Sec.14 of Hindu Succession Act 1956 has abolished Women’s estate Disqualifications Sec.24 Remarriage of Widow 1s no Disqualification Sec.25 Murderer is disqualified and not his heirs Sec.26 Convert Is not disqualified but his descendants See.28 Disease, Defect isnot disqualification The one who abetted to Murder is disqualified Unchaste women isnot disqualified Converts heir isnot disqualified See.29 Doctrine of Escheatment General Rules of Succession $5.18 Ful blood preferred to Half Blood 5.19 Mode of Succession (PC/PS) $.20 Child in Womb/Posthumous Child 5.21 Presumption in case of Simultaneous deaths $.22 Right of Pre emption 5.23 Partition of Dwelling House