c FAMILY LAW POINTERS

UNIT 1: INHERITANCE – HINDUS

HISTORY
 Indian Succession Act 1865- First codified act of India
Sir Henry Maine was responsible for its enactment (to unify conflicting laws)
 Before the British rule, laws of inheritance in India were rooted in religion and
customs.
 Muslims were governed by muslim law
Parsis had their own laws too
Hindus were governed by shastric/ customary laws

(basically depended on their schools or community or family)

After british came into india

evolved the two Christian communities> East Indian European laws
> Native Christians (converts or descendants)

 The act was supposed to be general laws of succession for all Indians. But it failed as
it had roman and English laws and unsuited Indian culture (Eg. Didn’t recog.jointfam)

 Efforts to extend the act’s application was done but it was resisted, resulting in
applicable to some Christians and jews only.

 Currently, multiplicity of succession laws are validly operative and applicable in

India. However, ST’s are still governed by their customary and uncodified laws.

SCHOOLS OF HINDU LAW

Yajanavalkyasmriti - MITAKSHARA
Jimutavahana – DAYABHAGA
These are the primary schools of Hindu Law, however they have differences with respect
to inheritance.

1. MITAKSHARA– Law of inheritance is the principle of propinquity and consanguity

(nearest of blood relations)
DAYABHAGA – It is based on principle of efficacy (who confers more spiritual benefits
to the deceased/// Linked to oblations). It rejects preference to agnates and cognates.

2. MITAKSHRA - They have community of interest and unity of possession. Interest

fluctuates at the death or birth of a male member.
DAYABHAGA – They have specified and ascertained shares in joint family property.
Interest does not fluctuate but they have unity of possession.
3. MITAKSHARA – Brothers and collaterals (as long as joint) do not have the right to
alienate their shares
DAYABHAGA – Brothers and collaterals hold their Quasi shares and even though
undivided, they have a right to dispose their shares
4. MITAKSHARA – Doctrine of survivorship applies on the death of coparcener and is
shared by surviving coparceners
DAYABHAGA – When coparcener dies, his wife has the right to succeed and enforce
partition

HINDU JOINT FAMILY

 May or may not have assets
 Members are bound together by principle of sapindaship
 Family is one unit and is managed by the head – karta
 Not a juriste person (cannot sure or be sued)
 It consists of all male members lineally descended from a common male ancestor
(Grandfather>father>son>) along with their wives (grandmother>wives (widows)>
unmarried daughters.

> A married daughter ceases to be a part of father’s family and becomes a part of
husbands. However, after 2005 amendment, she continues to be a part of father’s
> If a woman is widowed or deserted and returns to father’s house permanently, she
becomes a part of the father’s family
> Children of a widow or deserted wife will still be her husband’s part of the family
but not a coparcener
> A child in womb till its born alive is not a member but is considered as being in
existence for some purposes.
> Child given up for adoption, will cease to be a member of the family.
> Marriage of a lineal descendant to a non-hindu woman under special marriage act
1954 will automatically result in severance (ending connection) of joint family.

COPARCENARY

 It is a narrow institution in a joint family (limited to 4 generations) , consisting of

only male members (MINIMUM 2) and only they have a right to ask for partition.

 They are blood relations or are related through VALID adoption (cannot make
anyone a coparcener- through agreement or marriage)
 They jointly own the property until a partition (unity of possession community of
interest). No one claims ownership of specific item of coparcenary property

 If all the male members die, leaving behind one, then the sole-surviving
coparceners gets the property as his separate property and enjoys absolute power
over its disposal.

 Until 2005, under mitakshara, women could not be coparceners. Currently

daughters are coparceners but wives are not.

 Illegitimate son is not considered a coparcener but on partition, he may be given a

share (only half of a legitimate son)

 Children born out of void/voidable marriages can claim only their parent’s
property. So, they cannot ask for partition during the lifetime of their father.

 Insane male members are not a part of coparcenary. His right as one will be
suspended until he recovers. If a partition is instituted before he recovers, he gets a
share regardless.

 If he renounces his children or marries a non-hindu woman, he ceases to be a

coparcener. However, he is entitled to receive his share.

DOCTRINE OF SURVIVORSHIP

 Under the traditional law a coparcener takes interest of property and enjoys it
during his lifetime.
 On his death, the ones who survived him take the property immediately, leaving
nothing for his female dependents.

 SUCCESSION > Testamentary

> Intestate > Survivorship (Mitakshara)
> Inheritance (Dayabhaga)

*Under MITAKSHARA coparceners can ask for partition of property at any time.
A minor can file a suit of partition through next friend.

*A coparcener cannot alienate his interest in coparcenary property until he has the
consent of other coparceners.
DAYABHAGA JOINT FAMILY

 Dayabhaga was prevalent in Bengal, parts of Orissa and Bihar.

 The system does not recognise survivorship but follows rule of inheritance. It also
does not have a distinction- separate and coparcenary

 The father has absolute power of management and disposal of property. The son
has no right in father’s property but does inherit them as tenants-in-common. He
also cannot ask for partition

 Sons hold property quasi-severally and each have a specific share. On

coparcener’s death it does not pass to surviving, but to heirs

Coparcenary in dayabhaga

 The death of the father is the starting point of a new coparcenary. On his death, if
he leaves behind 2 sons or more, they inherit property and start coparcenary. If
sons bring in partition, coparcenary ends.

 Coparcenary exists only in one generation. Example., two brothers can start
coparcenary

 IF coparcener leaves behind his wife, she can start coparcenary with her brother-
in-law.

 In dayabhaga, father is not just the karta or manager but he is the absolute owner.

CATEGORIZATION OF PROPERTY

 Property > Separate property (Self-acquired property)

> Coparcenary property > Joint property
> Joint ancestral property

 SEPERATE PROPERTY
is owned by an individual and he enjoys and holds absolute power of disposal
(inter vivos or will)

Every Hindu may own a separate property regardless of sex or membership

 He may gift it to his sons in equal or unequal shares or to just one son or to any
other family member

On his death, the property will devolve as per INHERITANCE or testamentary

succession but not doctrine of SURVIVORSHIP

The right of son over father’s separate property is mere SPES SUCCESSION, i.e.
mere chance of an heir to succeed property BECAUSE- son could die before the
father, or, the father could dispose during his lifetime.

Separate property can be converted to coparcenary property by an intentional act

(voluntarily). The intention to blend it in family stock must be clear. However, a
female cannot blend her property but may gift it to the joint family property.

 (Before Hindu women’s right to property act)

Stridhan- property received by way of gifts given to a woman by her parents,
husband, close relations of parents or husbands at the time of marriage or on other
occasions or property acquired by her own exertions and ability or through
bequests of strangers or relations or money given for maintenance.

 Stridhan:
Sudayika- received from relations, she has absolute power of alienation
irrespective of marriage
non-Sudayika- received from non relations, husband’s consent needed for transfer
after marriage

 non-stridhan- inherited from male or female relation including husband- no power

to transfer

 Married women- Hindu law off Inheritance (amendment act), hindu Women’s
Right to Property Act

 sec 3 of Hindu Women Right to Property act- undivided interest in the joint family
property devoloved upon widow. But she had limited rights in her husband’s joint
family property.

 The 1956 HSA abolished the concept of limited estate and converted all her
interest in property to full ownership (sec 14)

 Property acquired of Hindu will be separate if acquired by:

1.His skill or knowledge or learning

 2. Received as a prize or scholarship

3. Inheritance – obstructed heritage

4.Property gifted or bequeathed by donor unless he expresses to make it

coparcenary property

5. Salary or remuneration (job)

6. Property inherited from other relations (father- 3 gens) (pre 1956)

Classification – Vijaneshwara – (obstructed/unobstructed)

> Sapratibandhya- with obstruction property – Obstructed heritage

Refers to heritage that is currently with an obstruction and can be

acquired/inherited provided obstruction/restraint is removed.

> Apratibandhya – w/o obstruction property – Unobstructed heritage

A heritage that comes to an individual without any obstruction or restraint. He

acquires an interest as soon as he is born.

 COPARCENARY PROPERTY

Joint family property + joint family ancestral property

JFAP- a hindu male inherits from father or father’s father or father’s father’s
father (changed after 1956- now becomes his exclusive and absoltue property. His
male descendants have no right over it). Received from another relative in male
line would be obstructed heritage and separate property.

gift of separate property to son would be absolute property of the son.

Property inherited from maternal grandparents will not be ancestral property in the
hands of the heir. Presence of son’s son’ will obstruct heritage for daughter’s son.

When inherited through will, it is important to determine the intention to see if its
ancestral or separate in the hands of son.
HINDU SUCCESSION ACT, 1956

 Came into force on 17th June 1956

 Objective- to provide comprehensive and uniform scheme of intestate succession
for Hindus.
 Before the enactment there were three main categories and it had sub-
communities and sub-schools with their own rules of succession

CHANGES-

The basic framework remains the same- retains principle of propinquity,

preference of fullblood to half bloods, separate rules for males and females, rule
of survivorship- (retained only for female coparceners) have been left untocuhed

 It retained the dual system- separate and joint family property

 It abolished distinction laws between the two schools- Mitaskahara and

Dayabhaga. It provided a uniform law based on – natural love, affection and
nearness in relation.

 It alters the character of the property that a hindu male receives from his paternal
ancestors (F, FF, FFF) and his progeny.

 It also abolished limited estate for woman and introduced absolute ownership.

 It introduced daughters and her children in her absence, as the primary heirs in
preference to male collaterals. Married status was made irrelevant to determine
rights of inheritance.

 It had to separate schemes of succession for males and females.

 Under this Act, the eligibility to succeed was not merely consanguinity but
affinity as well

 Act also modifies Mitakshara coparcenary devolution

 The widow of intestate is his primary hair, now. He rights to succeed cannot be
defeated on the grounds of unchastity.

 Matrilineal system in southern india was abolished

 Act protects right of pre-deceased child

  Disqualifications for inheritance

It is based on physical and mental diseases, disabilities and deformities were

removed.
Conversion does not disqualify a person from inheriting but his descendant born
after his conversion is disqualified.
The murderer of an intestate is also disqualified
All other disqualifications that were operative were done away with.

2005 AMENDMENT BILL

 It was introduced in December 2004 and was passed by Rajya Sabha on 16

August 2008 based on the recommendation of 174th Law Commission Report.
 Objective- remove the gender inequalities under 1956 Act
 Amendments:

1. It removed the provisions with respect to agricultural property

2. It removed the doctrine of survivorship
3. It introduced daughters as coparceners under Mitakshara irrespective of marital
status.
4. Retains concept of notional partition but modifies its condition of application of
three shares of property
Example: Father has a son and a daughter. Father dies. Allotting a share to dead
person, notion- dead person is alive and then allotted a share.
5. Abolishes pious obligation of son to pay debts (F, FF, FFF)
6. Adds 4 new heirs in class I to male intestate. Empowers female coparcener to
make testamentary disposition of share in coparcenary property.
7. Section 24 was deleted. Certain widows remarrying may not inherit as widows.

 In the old law, coparcenary property gets divided among the remaining
coparceners. If there are 4 coparceners, each gets ¼. SO if 1 dies, the remaining 3
get 1/3 each.
But this method of division will not take place if the coparcener’s female relative
(class 1- widow or mother) or a male relative who asks through a female for the
coparcener’s share. So, ¼ of deceased coparceners share will devolve according to
intestate succession or testamentary succession.

 Deemed partition (after 2005)

Daughter also becomes a coparcener here. She has the same rights and liabilities.
MARUMAKATTAYAM

 Marumakattayam is a body of customs and usage prevalent in the southern east

coast (Kerala ) of India.

 Marumakattayam family is also known as tarawad. The descent is from a common

ancestor.

 Every member of the tarawad has equal rights in the property simply because of
their birth in the tarawad

 Shares were on per capita basis. Interest devolved by survivorship goes to the
female in the absence of a male.

 The branches of tarawad is called tavazhi. It consists of one of the female member
of the family + her children + all her descendants in female line. Once the last
female member of the tavazhi dies, leaving behind male members – rule of
survivorship ceases to operate and male members inherit as tenants-in-common
and share the property equally.

 The Kerala Joint Hindu Family Abolition Act 1975 ended customary laws and
enforced Hindu Succession Act in 1956 .

GENERAL RULES OF SUCCESSION

Female Intestate and property of Hindu Female secs 14-16

 applicable to absolute property, her undivided interest in coparcenery sec 14

 sec 15 order of preference for devolution of property

 children, husband
 heirs of husband
 mother and father
 heirs of father
 heirs of mother

 Property inherited from mother or father, in the absence of children (and children
of pre deceased children) shall go to father’s heirs

 Property inherited from husband or FI in the absence of children (and children of

pre deceased children) shall go to husband’s heirs.

 Aliyasantana-

children including children of pre deceased children and mother

father and husband
heirs of mother
heirs of father
 heirs of husband

____MALE------
_____notional partition___
 UNIT 2: INHERITANCE – MUSLIMS

 Important to note that mahomedans are divided into 2 sect- Sunnis (Hanafi-
subsect) and Shia (athna-shariyas- subsect)

 In cases of non-testamentary succession (no will) Muslim personal laws

Application Act is applied. In case of testate death (will) it will be governed under
Muslim Shariat law (same as personal) as applicable to shia or sunni.

In cases of marriages under Special Marriage Act or even if only registered under
the act, the spouses and children will be governed by Indian Succession Act, 1925

WILLS

 A will is a legal declaration of the intention of testator with respect to his property
which desires to carried into effect after death.

 REVOCABILITY and TAKING EFFECT AFTER DEATH distinguishes a will

from other depositions of property (sale or gift). Unlike such depositions, until his
death, the testator has absolute power over his property and the beneficiary under
the will has no rights to it.

A will can be revoked by a formal cancellation or destruction or when another will

is executed by the testator or if the testator loses his sanity subsequent to the
execution.

Can be revoked- expressly or implication

 Objective of a will is two-fold.

1. to ensure that TWO-THIRD goes by succession and prevents people from
interfering and defeating claims of lawful heirs.
2. To ensure that ONE-THIRD (max) is bequeathed to charity or religious
purposes or even to a stranger (returning favour).

 Limit to testamentary powers- It is solely for the benefits of the heir

1. A mohamedan cannot by will dispose more than one-third of his estate after
payment of funeral expenses and debts.
 2. Bequests more than one-third need consent of other heirs.

 Executor need not be a Mohamedan. His powers and duties are determined by
Indian Succession Act 1925

 Making a will/ who can make a will: Wasiyat

1. Any mohamedan who is not a minor and of a sound mind can create a will.

2. There is no particular format or formalities. A will can be in written (does not

have to be signed) or can be oral (intention is very important). Written will is
easier to prove as intention in oral is difficult to ascertain. Even a nama will
operate as a will if it has the characteristics of a will.

3. Bequest must be one-third after meeting the funeral expenses and debts.
Bequest to heir is invalid unless other heirs consent to it (after death).

 SUBJECT OF BEQUEST

It could be any property capable of being transferred. It need not exist during the
execution of the will, but must exist after the death of testator.

BEQUESTS TO HEIR

 Bequest to heir (in whole or part) is invalid unless the other heir’s consent to it
after the death of testator.
 Neither inaction nor silence amounts to consent
 A single heir may consent so as to bind his own share.
 However, testamentary depositions are valid and is binding on the person
claiming through his estate.
 Once consent is given it cannot be

Illustrations:

A leaves – Son, Father and Paternal Grandfather.

Heir- Son and Father
Bequest to Grandfather will be valid w/o consent.

A leaves- son, widow, predeceased son’s son

Heir- Son and Widow
Bequest to Grandson (PDS’s Son) is valid as he is not heir.

A leaves- Grandfather, Son and Father. Lets say A writes a will when father was
live and he eventually dies during the lifetime of A.
 Heir- Since father died- Grandfather and son
Bequest to grandfather will be invalid until son consents to it.

 Under the Shia Law a testator may leave a legacy to an heir not exceeding one-
third and such legacy is valid without the consent of the other heirs. In case it
exceeds one-third, consent must be given before or after the death.

 BEQUESTS TO UNBORN PERSONS/CHILD IN WOMB

Bequests to a person not in existence at the time of testator’s death is void, but a
bequest can be made to a child in womb provided the child is born within six
months (sunni) or ten months (shia) of the testator’s death.

 Bequest in future is void

 A contingent bequest is void
 Alternative bequest is valid

INHERITANCE
SUNNI LAW

 Heirs- two categories >Related heirs > Sharers (first entitled, fixed)
> Residuary (surplus from sharers)
> Distant kindred (cognates, if no residuary&shs)
(all blood relatives except surviving spouse)
> Unrelated heirs

 Exclusions- Rule of who is nearer in degree. Applicable only to related heirs.

For example- Father would exclude paternal father

Son would exclude son’s son

If one is related to another through third party, in the presence of third party he would
be excluded too
Example- Brother is related to deceased through father. If father is present, brother
would be excluded.

Mother cannot compete in inheritance even if alone. Only through Radd.

 RADD

The rule is that the sharers get the fixed shares and the residue left passes on to the
residuary. In case there are no residuaries, it does not pass to the distant kindred. It
 returns to the sharers and they are entitled to take their proportion. This is called
doctrine of return or Radd.

However, the wife or husband of the deceased is not entitled to take from the radd as
long as there is no one is present. If there is no heir and only the widow is present, she
will take ¼ as sharer and ¾ from radd.
DOCTRINE OF INCREASE/ AUL

Sometimes, it happens that the sum of all the fixed shares taken by the sharers might
exceed unity. In that case, their shares are deducted proportionately.

__shia heir classification___

___share calculation___

UNIT 3: SUCCESSION CHRISTIAN

UNIT 5: GUARDIANSHIP
 Guardianship- refers to powers and rights that an adult has over a minor (person
itself and the properties he owns)

Custody – Refers to the upbringing and day-to-day care of the child. Usually
determined by the courts.

Hindu

 GUARDIAN TYPES

NATURAL GUARDIAN-

Section 6 of Hindu Minority and Guardianship Act – that if a child is legitimate or

(section7) adopted, the guardian is the FATHER.
MOTHER is usually given the Second Preference. However, if a child is less than
5 years of age, mother gets the custody preferably.

In the case of an illegitimate child -Mother is preferred to be the guardian first and
then comes the father.

In case of a minor girl (illegal and voidable)- husband is the guardian.

If the husband is a minor as well, father 1st, mother 2nd
 Disqualifications
If he ceases to be a hindu
If he renounces to the world—sanyasi types

Powers
Anything for the benefit of the minor or for his property can be done. But minor
will not be ‘binding’.
Guardian can lease the property not more than 5 years or until when the child
turns 19 ((if 17, not until he turns 18+1)
Immovable property cannot be sold, gifted or exchanged without court
permission. Court will allow only if it is found to be beneficial for the child. If at
all, it is violated the contract will be voidable as per the choice of the minor (when
he attains majority)

TESTAMENTARY GUARDIAN

When the parent has written in the will.

a. Father has made x guardian. No mother. The x will be the guardian after death
of the father.

b. Father has made x guardian but mother is present, so x will not be the guardian.
However, when thw mother dies, x will be the guardian

c. father has made x the guardian but mother is still alive. Mother makes y the
guardian so when the mother dies, y will be the guardian.

testamentary guardian- rights like natural guardian

DECLARED BY COURT
----

 OTHER PROVISIONS UNDER HINDU GUARDIANSHIP

S10 Minor can be minor’s guardian but not for his property.

S11 De facto- not natural, not testamentary, not court appointed. No powers.
Simply someone who takes care of him.

S 12 Undivided interest in joint family- minor has rights- he will not have
different manager for his property- only adult family member.

S13 says that the welfare of the child is the most important aspect.
 Case laws- Kirti kumar joshi v. Pradip kumar

The father and the maternal uncle sought for custody. However, the mother died
of unnatural causes and the father was facing 498 A – IPC charges after which the
children desired to stay with the uncle and the court granted custody in favour of
the maternal uncle.

ram nath v. ravi raj dudeja Same but with father and M grandparents.

Muslim

 TYPES OF GUARDIANSHIP

NATURAL GUARDIANSHIP

Normally with father. And then with grandfather

Custody is with the mother if the son is below the age of 2, or daughter below the
age of 7 – SHIA LAW

Custody is with the mother if the son is below the age of 7, or daughter until
puberty – SUNNI LAW

If the mother and father are deivorced, it does not affect the custodial position of
the mother. If the mother remarries then she loses the custody according to
muslim rules. However, the court can deviate from this rule for the benefit of the
child.
Case law- Irfan Ahmad Shaikh V. Mumtaz.
Divorced, remarries, child wanted to be with mother. Court granted minor’s wish.
Custody- mother. Basically, court can deviate from this not-so-rigid rule and taken
the minor’s wishes into consideration.

For Muslims, there must be a guardian for three aspects:

Minor person
Minor’s property
Minor’s marriage (wali) (he who takes the responsibility)

TESTAMENTARY GUARDIAN

Father has full right and power to appoint. After father, the executor has the right
to be the guardian of the child and, then the grandfather.

Mother has no right but exception:

 a. if father has made her executrix
b. if property is mother’s which will devolve after her death

Illegitimate children

Father has no right and he not the guardian. Mother is just custodian and not
guardian.

Custody to Muhrim (who is within the degree of prohibited relationships):

Who cannot marry her legally. Only to prohibited degree can. Otherwise no

 POWER OF GUARDIAN

Can sell property for essential necessity- food, clothing, education

Can alienate immovable property in exceptional circumstances, otherwise,

voidable at instance of minor

Can lease for benefit of child until he turns 18

Can carry on business of minor but like a prudent man

Can procure debt on behalf of minor in emergencies and it will not be binding on
the minor.

IF THERE IS A CONFLICT IN THE APPLUCATION OF PERSONAL LAWS

GAURDIAN AND WARDS ACT 1890 WOULD APPLY
POOLAKKAL AYISAKUTTY V. PA SAMAD HELD THAT.

CHRISTIAN LAW
ACT
Not important