Family Law - II Notes

Sources: Poonam Pradhan Saxena (ew)

Professor: Gade, Tanay Goyal

INTRODUCTION

Family Law 2 mainly talks about property. Section 27 of the Hindu Adoption and Maintenance Act
talks about property.

The laws that deal with intestate and testamentary succession is not the same for all and vary depending
on factors like religion or tribe of the parties, domicile, sect, marital status, religion of the spouse etc.
before British rule, laws of inheritance were influenced by religion or personal laws:

Muslims followed the Muslim law

Hindus were governed by the Shastric and customary law

Parsis had their own customary laws

The maximum diversity prevailed in the Christians, wherein there were two major Christian
communities, i.e., the East-Indian Christians who followed the European customs and the Native
Christians who were usually descendants of the converts from the Non-Christian communities. They
had their own distinct customary laws which were given judicial recognition. If a convert became
westernized, then English Law could apply to him.

With a view to simply the innumerable different succession laws, Sir Henry Maine, caused the
enactment of the Indian Succession Act in 1865. The act failed its objective of bringing in uniformity
because:

(i) It incorporated principles of Roman and English that were foreign in their contents but also
not suited for the Indian context

(ii) The act recognized a woman as an absolute owner of property and preferred her to male
collaterals, it did not discriminate between agnates and cognates and treated daughters as
being on par with sons. These provisions were different from those governing the Hindus,
Muslims and Parsis.

(iii) It did not recognize the concept of joint family property and no right by birth was granted.

HINDU LAW – HINDU SUCCESSION ACT, 1956

Under Hindu Law, the property that a person may own or have an interest in can be categorized into
two types:

1. Separate property

2. Joint family property

Law related to joint family property – Hindu Joint family system

Separate property – Hindu Succession Act, 1956

Exceptions:

1. Not applicable to people belonging to Scheduled Tribes

2. Not applicable to people who stay in J&K, Daman and Diu, Goa, Pondicherry

• ST’s would follow customs

• J&K - have their own laws

• Goa and Daman & Diu - follow the Portuguese Civil code

• Pondicherry - follows French Civil code

3. Marumakkattayam and Aliyasantana Laws

Hindu Joint Family

Chapter 2: Kusum & Poonam Pradhan Saxena

The Hindu Joint family is a normal condition in the Hindu society. The origin of the society can be
traced to ancient patriarchal societies where the patriarch was the head of the family and would make
all decisions for the family.

At the root of the joint family is the idea of general family welfare or promotion of family as unit for
which the personal interests of the family could be sacrificed.

The ancient system treated the property acquired by any of the members of the joint family as being
family property or joint property of the family with family members having one or the other right over
it.

With the transformation of the societal systems, the idea of separate property and rules for such an
inheritance were developed and introduced.
Composition of Hindu Joint Family
Hindu Joint family consists of all male members descended lineally from a common male ancestor
together with their mothers, wives or widows and unmarried daughters.

An unmarried daughter ceases to be a part of her father’s family and joins her husband’s joint family
when she gets married. If the daughter becomes a widow or is deserted by her husband and returns to
her father’s home permanently, she again becomes a part of her father’s joint family. Her children
however will continue to be part of their father’s joint family.

Even an illegitimate son or male descendent would be a member of his father’s joint family.

To bring into existence a joint family for the first time, the presence of the senior most male member is
an essential condition. Once it comes to existence, it continues despite the death of the senior most male
member.

The members of a joint family are bound together by the principle of sapinda-ship or family relationship,
which is the most essential feature of the institution.

Mitakshara doctrine is founded upon the existence of an undivided family as a corporate body. Two
requisites:

1. Family unit

2. Possession of family property

Ouster of member from the Joint Family

When does a member of the Hindu Joint family lose their membership?

1. An unmarried daughter ceases to be a part of her father’s joint family when she gets married.
She main regain her status in the family if she becomes a widow or on being deserted by the
husband, returns to her father’s house permanently

2. A child male or female ceases to be a member of the family if they have been given in adoption
to another family by a person competent to do so under the law. Such a child can never become
a member in the family again in the future.

3. The marriage of a male descendant under the Special Marriages Act, 1954 to a non-Hindu will
result in his automatic severance from the Joint family and he cannot become a member of the
family again even by agreement.
 4. Till passing of Caste Disabilities Removal Act, 1850, conversion of Hindu to another faith
meant an automatic expulsion from the joint family. However, since the Hindu Joint Family is
an institution for Hindus under Hindu law, such converts can neither form a separate joint
family or claim the benefit of it for taxation purposes.

5. The religion of a son whose father is a Hindu and mother is Christian will be dependent upon
his bring up (whether he is brought up as a Hindu or Christian) and that would in turn decide
whether he would constitute a coparcener or not.

COPARCENARY

Coparcenary is a narrower institution within a joint family. The primary purpose of such a system was
to decide who can offer spiritual ministrations to the father and signified a relationship. However, now
it is currently understood and used to ascertain the rights and obligations of the members of a Joint
family. The property owned by the joint family is also called the joint family property or the coparcenary
property.

The senior most member among the coparceners is called the last holder of the property and from
him a continuous chain of three generations of male members would form the coparceners.

Rights:

1. Interest in the coparcenary property by birth

2. Right to ask for a partition for the property

illegitimate son of lineal male descendant would be a member of the joint family but would not be a
coparcener.

Incidents of Hindu Joint Family

1. Common male ancestor – needed to bring HJF into existence but not for continuation. After
death of this ancestor, the rest of the family continues to be a family like before.

2. Creature of Law – it cannot be created by act of members or agreements. A stranger cannot

be a member of the joint family unless through adoption or marriage. Female is added through
marriage to a lineal male descendant and child is added through birth or valid adoption.

3. Not a separate legal entity – no legal entity that is separate from its members. It is considered
to be a unit and is represented by the manager ‘karta’. It cannot sue or be sued in its own name.
It is neither a juristic person nor a corporation.
 4. Not capable of holding property as entity separate from members – the HJF is not a juristic
person capable of holding property as entity separate. Not just the family as a unit, but the
members collectively own the property

5. Loss of status – the status of a joint family member is lost by –

• Conversion to another faith

• Marriage to a non-Hindu

• Being given in adoption by competent parents

• Daughter on getting married

6. Inequal rights – coparceners have an interest in the property while female members and male
members other than coparceners or disqualified members have a right of maintenance and a
right of residence in the family home.

7. Continuation of joint family – not dependent on the presence of male member

8. Plurality of members – necessary for constitution of or continuation of joint family but

plurality of male members is not necessary for continuation. The joint family does not end with
the death of a male member as long as it is possible to add male members to family.

9. Continue in perpetuity – continues till it ends. Even when partition, family might break but
does not end as in its place, multiple families come into existence.

Presumption of Jointness

General principle is that every Hindu family is presumed to be a Hindu joint family and continues to be
joint until contrary is proved.

- Joint in food, worship and estate.

- Does not mean that they have to have common kitchen, place of worship or that they have to
worship

- The members may live apart for the sake of convenience, but they would be presumed to be
joint.

Case Law: Commissioner of Income Tax v. Gomedalli Lakshminarayan

Facts: family consisted of father, wife, son and the son’s wife. Upon the death of the father the question
was whether the joint family can continue with only one male member.
Held: he is to be assessed as the Karta of the Hindu Undivided Family. While for a coparcenary,
presence of at least 2 male members in the joint family is a necessary requirement, Hindu Joint family
can continue even with 1 male member.

No presumption that the Hindu Joint Family possesses Joint property

- No fundamental requirement of law that the Hindu Joint family must possess joint family.

- The family may have some items that they use on a daily basis and own

- However, in law there is no presumption that a joint family possesses joint family property or
any property at all or it should be of value

- Proof of existence of joint family does not mean that any property owned by any member is
joint

- Burden rests on whoever is asserting the fact that it is joint to establish the fact

- Party alleging self-acquisition to establish that the property was acquired without the aid of the
joint family property.

- Property can also be acquired by different members of the family individually.

- Important thing to consider – income which the nucleus yields.

Position when there is only One male member

- Single male or female cannot constitute joint Hindu family individually even if the assets are
ancestral

- Presence of a male member is an essential requirement to start a joint Hindu family.

- Not necessary that there should be at least two male members to form a Hindu undivided family
or for its continuation

- Family – man, sons, their wives – all of them would constitute a joint Hindu family

- On the death of the father – family would continue to have the same status

- Surviving brother and widows of deceased coparceners will continue to be a Hindu joint family

- Powers of sole surviving coparcener over disposal of the property are subject to the well-
recognized rights of the female members of a family.

- Widow – right to be maintained and due provision for residence

- Unmarried daughter – right to maintenance and marriage expenses

 - Hindu male can constitute a joint family with his wife and unmarried daughter

- Absence of an antecedent history of jointness between Hindu man and his ancestors does not
affect the forming of a joint Hindu family

Continuation of a Joint family at the instance of only Female members

- Continuation – existence of joint family in the past and maintenance in the same status

- Different conditions than those required for starting a family

- Disappearance of the last male member, the other members of the family though not
coparceners can continue to be members of an undivided family

- Females who were earlier members of the Hindu joint family continue with their status.

- As long as the property that was originally of the joint Hindu family remains in the hands
of the widows of the members of the family and is not divided among them, the joint family
continues.

- As long as it is possible in the nature of things to add a male member to the family, a joint
family does not come to an end.

- Test: potentiality of the widows to bring a male member into existence either by nature of by
law

Case Law: Attorney General of Ceylon v. A.R. Arunachalam Chettiar

Facts: a father and his son constituted a joint family governed by the Mitakshara school of Hindu law.
They were domiciled in India and had trading and other interests in India, Ceylon and far Eastern
countries. The undivided son died in 1934 and the father became the sole surviving coparcener in the
Hindu undivided family to which a number of female members belonged. The father died in 1938 and
the question to be determined was whether he died as a member of joint family or as a separate member
because under the relevant ESTATE DUTY ORDINANCE, it was provided that property passing on
the death of a member of a Hindu undivided family was exempt from payment of estate duty. Female
members have the right to maintenance and other rights in the property.

Held: deceased at his death was a member of Hindu undivided family, the same undivided family of
which his son, when alive was a member and of which the continuity was preserved after the father’s
death through adoptions by the widows of the family

Continuation of Joint family at the instance of only daughters

- Existence of male member is not necessary for the continuation of the joint family as long as
the females are able to continue to add male members either by birth or by adoption.
 - This is not the same for daughters, as when they get married, they automatically become part
of their husband’s coparcenary property and cease to have a right/interest in the family property

- However, after 1956, a single woman could adopt legally. Therefore, such a provision granted
an unmarried female the ability to carry on her father’s joint family by adding male members
into the family through adoption.

- After 2005 amendment, the daughter is a coparcener as well and therefore can continue the
joint family but also form one with her father and brothers

Formation of a joint Hindu family by women alone

- Starting or bringing a joint family into existence requires the presence of the senior most male
member is an essential requirement.

- Apex court: concept of Hindu undivided family formed by females only by agreement was alien
to Hindu personal law.

- Concept of formation of the Hindu joint family through agreement – contrary to tenets of Hindu
law

- Mother can’t be karta of the joint family but for purposes of income tax she can be assessed as
the head/manager of the undivided family

Position when there are husband and wife only

- The court held in TS Srinivasan v. Commissioner Income Tax¸ that a Hindu Undivided Family
comes into existence only on the birth of a son. It was held by the court, that until the birth of
the son, he did not form a joint family and could only be assessed as an individual.

COPARCENARY

Incidents of coparcenary

• four-generation rule

• creation of law

• only males

• acquisition of interest by birth

• unity of possession and community of interest

• fluctuating and not specific interest

 • collective enjoyment

• doctrine of survivorship

• right to ask for partition

• alienation of undivided interest

• unit within joint family

Distinction between joint family and coparcenary

• joint family is bigger and includes coparcenary. can be joint family without coparcenary but
not vice versa

• no presumption that joint family has property. concept of coparcenary comes from property

• no limitation on members in joint family but coparcenary is limited to 4 generations of male

members

• joint family - members can be added by birth, adoption, marriage. coparcenary only through
birth and adoption

• joint family has both male and female members but coparcenary has only male

• all members do not have equal rights over joint family property but all coparceners have equal
rights

• disqualified members may be members of joint family but not coparcenary

• joint family - only two members or a male member and one or more female members but for
coparcenary minimum of two male members is must

• joint family - plurality of members who need not necessarily be males. coparcenary cannot be
continued on the death of the male members

case law: Kamalakanta Mohapatra v. Pratap Chandra Mohapatra

Rights of coparceners

• right by birth in property

• right of common ownership

• right of common enjoyment of coparcenary property

• right of survivorship

• right to accounts
 • right to make acquisitions

• right to ask for partition

• right to renounce his interest

• right to restrain improper acts

• right of alienation

• right to challenge an unauthorised alienation

KARTA

• father, and in his absence, the senior most male member is presumed to be the karta of the joint
family

• as long as the karta is alive and his whereabouts are known, no one else can be karta

• if he doesn't want to be a karta, he can relinquish his rights, and another coparcener may be
appointed as the karta

• agreement of all is necessary otherwise senior most person

• Nopany Investments Pvt. Ltd. v. Santokh Singh - when the Karta of the joint family is away
in a foreign land for a long time and his return within a short time period is unlikely and due to
his absence, he cannot look after the affairs of the Hindu joint family, a younger member of the
coparcenary with the consent of all the members of the family can act as the Karta of the family

• to be a karta, it is essential that the person should not only be male, but also be a coparcener.

• Hindu widow cannot be a karta even if rights are conferred on her, in the deceased husband's
coparcenary property

• current position: because a daughter can now be a coparcener in the same manner as a son, she
is also entitled to be a karta and represent the family in all matters

Responsibilities of the karta

• primary responsibility of providing food, shelter, clothing - residence and maintenance to all
family members

• responsibility to provide for marriage expenses and funeral expenses

• defend the family in all litigations that are filed against the family

• responsibility to pay all statutory or other dues that are due to the family or family property
karta is not entitled to draw or receive any salary for the services rendered by him. however, there can
be an agreement wherein he agrees to receive a salary. this would be considered to be valid.

Jugal Kishore Baldeo Sahai v. Commissioner of Income Tax

The general view expressed by commentators on Hindu law, as well as in decided cases, is that the
Karta of a family can be paid remuneration for carrying on the family business, provided it is under
some agreement. There seems to be no reason why, if all the persons competent in a Hindu undivided
family, to enter into an agreement on its behalf, consider it appropriate that the Karta should be paid
remuneration and enter into an agreement to pay remuneration to him, that remuneration should not be
held as an expenditure deductible under the Income Tax Act.

Ashok Kumar v. Commissioner of Income Tax, Amritsar

The Jammu and Kashmir High court, following the Apex Court’s judgment, held that the Karta is
empowered to draw a salary pursuant to an agreement and no third party is empowered to challenge the
validity of such an agreement, as it is a matter essentially between the family members

Powers of the karta

• right to manage family affairs

• right of representation

• power to receive and spend family income

• powers of alienation

• liability to account

• power to acknowledge and contract debts

• power to settle family disputes

ALIENATION

One of the basic incidents of ownership. refers to 'transfer of property'

no single person can get the power to alienate the whole of the property unless and until the other co-
owners expressly authorise him to do so

in the joint family, the karta has this right.

Dharmashastras: the joint family property can be transferred in 3 cases:

 • Apatkale - emergency faced by whole family or one of its members or with respect to its
property. in the nature of averting danger. implies that money needs to be procured on an urgent
basis.

• Kutumbarthe - 'benefit of Kutumb or family members' - permits transfer wherein proceeds of

sale are utilised for sustenance of family members

• Dharmarthe - 'for pious purposes' - performance of indispensable duties such as obsequies of

ancestors.

- 3 categories wherein the joint family properties could be sold by the karta even without consulting the
other coparceners. not exhaustive but only illustrative and should be interpreted to be conducive to the
need of modern life.

present categories:

• legal necessity

• benefit of estate

• performance of religious and indispensable duties

authorisation for alienation by the karta can either be express or judicial

Express - all coparceners in the family are major and have consented to the alienation

Judicial: when some are majors and others are minors, and the karta sells it after taking consent of
majors, while providing legal necessity

Rights of coparceners against alienation of joint family property by karta

No legal obligation on the Karta to take consent of coparceners or communicate his decision to others.

two remedies for when coparceners do not consent to alienation:

• coparcener can demand his share in the joint family property and cease to be a member in the
family. the moment a suit for partition is instituted in the court, alienation of property will be
subjected to decision of the court (Lis pendens)

• if the transfer has been effected without the consent of the coparceners, they can challenge the
validity of the transfer in the court of law, on the ground that none of the 3 categories existed.
court will determine if karta was legally authorised.

Right to challenge alienation is not open to non-coparceners

Ananda Krishna Tate v. Draupadibai Krishna Tate - mother and wife do not have the capacity to
challenge the alienation as they are not coparceners.

Legal Necessity

• any necessity that can be justified in law

• necessity of the family with respect to its members

• for a transfer to be justified, it must be backed by a lack of alternate resources in addition to the
presence of a purpose.

• The test is what a reasonable, prudent man, entrusted with the welfare of his family and family
property, will do. A prudent person should pay the dues or even debts, from his savings rather
than from the sale of joint family property,23 and if that is not possible, from a mortgage rather
than a sale, unless the mortgage is at a very high rate of interest

• sale of coparcenary property for inadequate or no consideration cannot be valid

• for an alienation to be valid under legal necessity:

• existence of need or purpose

• such a requirement is for lawful purposes

• the family does not possess monetary or alternative resources from which the requirement can
be met

• the course of action is such that an ordinary prudent person would take

INSTANCES OF LEGAL NECESSITY

Not an exhaustive list

Dev Kishan v. Ram Kishan

Arvind v. Anna

Partial Necessity

where the worth of a property to be alienated is of higher value than the necessity, appropriate action
would be to mortgage the property so the loan for that amount can be raised or sell a portion of the land
to realise an amount closer to required one.

higher amount is realised through mortgage of property - excess amount will not bind non-consenting
coparceners

sale would be valid when the excess amount is not substantial

sale would be termed as 'partial necessity' when the excess amount is substantial - it will be binding to
the shares of the coparceners to the extent of the necessity only

alienation for benefit of family valid if within reasonable limits.

BENEFIT OF ESTATE

A transaction which brings an advantage to the landed property of the family would be covered under
'benefit of estate'.

not found in Dharmashastras

included not only defensive transactions but also alienations that an ordinary prudent man would view
as appropriate.

degree of prudence of karta is more than of a sole owner of property

defensive nature - protect from threatened danger or destruction

Mortgage of property and loan utilised for making additions and improvements to a family house, within
reasonable limits, transfer of property to a company with a view to preserve it, sale to reclaim a portion
of property to prevent it from being leased to others, or sale of a portion of the property to convert
leasehold rights in residence to ownership rights, would be other illustrations of benefit of estate.

Balmukund v. Kamlavati

RELIGIOUS AND INDISPENSABLE DUTIES

'Dharmarthe'

elaborate rituals and ceremonies to be performed on various occasions of a man’s life.

joint family property can be alienated by the karta for the performance of indispensable religious and
charitable purposes

indispensable - makes alienation unavoidable

for alienation to be valid, must be shown that family did not possess alternative resources from which
money could be raised to use in these ceremonies.

alienation of joint family property for marriage of a coparcener and of unmarried daughters, is covered
both under legal necessity and performance of indispensable duties.

pious purposes include only religious and charitable purposes and not gifts made out of love and
affection

gift of joint family property to daughter

gift of joint family property is neither a religious act nor a charitable one - nature of contribution of
family property to member of family with whom relation stays intact even after marriage

allotment of shares is considered obligatory by Vijananeshwara

text - express recommendation to give property to the daughter at time of partition

Judicial view - upholds the rights of the father and brother to gift portion of the family property to
daughter/sister at time of marriage

The same principle has been extended to assess the powers of a Hindu widow to make a gift to the son
in law after two years of marriage

R. Kuppayee v. Raja Gounder - The question as to whether a particular gift is within reasonable limits
or not has to be judged according to the status of the family and the extent of the property gifted.

Gauramma v. Mallappa - SC upheld the validity of gift executed in favour of daughter

ALIENATION OF JOINT FAMILY PROPERTY BY KARTA IN FAVOUR OF DAUGHTER

An issue as to whether a father as a karta can sell the joint family property without the consent of his
sons in favour of his daughter for the satisfaction of the debts she contracted while looking after him in
wake of the neglect of the sons. (Sunder Yadav v. Asha Kumari)

court - manager of a joint Hindu family has the power to alienate for value the property so as to bind
the interests of both adult and minor coparceners, provided the alienation is made for legal necessity or
for the benefit of estate.

powers of ordinary karta and karta who is a father are different.

Jinnappa Mahadevappa v. Chimmava - under Mitakshara law, a father had no right to make a gift even
of a small portion of the property in favour of his daughter although it was on the ground that she looked
after him in old age.

The test is what a reasonable, prudent man, entrusted with the welfare of his family and family property,
will do. A prudent person should pay the dues or even debts, from his savings rather than from the sale
of joint family property, and if that is not possible, from a mortgage rather than a sale, unless the
mortgage is at a very high rate of interest.

Challenge to alienation - title of the coparcenary property and its alienation would only be valid if all
the coparceners collectively decide to effect it.

validity of the alienation can be challenged by coparcener on the ground that it is not for the permitted
purpose and therefore would not be binding on them.
Status to unauthorised alienation - alienation without express authorisation of all coparceners or
where it is outside 3 permitted grounds is not void but voidable

Burden of proof - burden of proving that the karta had competency to alienate the property is on alienee
and not on karta.

Alienee here is the beneficiary.

rules governing burden of proof -

• burden of proving validity of alienation is on the alienee

• alienee has to show that he made reasonable and appropriate inquiries with respect to whether
the alienation was for legal necessity, religious duty or benefit of estate

• nature of inquiries should be of a reasonable prudent person

• alienee has to prove that family did not have alternative resources from where money could
have been raised

• recitals in the transfer deed do not prove validity of alienation

• alienee must show that he acted honestly and his actions were not mala fide.

• alienee has to prove that he had paid a fair price for alienation. need based transfer can never
be for inadequate consideration

• not bound to see actual application of money but sufficient to show that he had become a party
to the transfer after making due inquiries.

• lapse of time does not affect the onus of proof regarding validity of alienation.

recitals of necessity in transfer deeds are not conclusive proof of existence of necessity to justify
transfer but are admissible in evidence

karta can mortgage family property and raise a loan on reasonable commercial terms. alienee will have
to show that there existed sufficient pressure on family to mortgage the property but to show that rate
of interest charged was reasonable

Father's power of alienating joint family property

Where the Karta happens to be not the father but the elder brother, the younger brothers are not bound
by the alienation to satisfy his personal debts unless it is for legal necessity or for the benefit of the
family.
Where an alienation by the father is challenged by his sons, on the ground that the debt contracted by
the father was for an immoral or illegal purpose, the alienee has to prove that he had acted after making
bonafide inquiries and had paid a fair price.

COPARCENER'S POWERS OF ALIENATION

• Sole-surviving coparcener

when there is only one coparcener, he has the freedom to treat the property as his separate property and
dispose it at his pleasure.

restrictions: when woman has a right to maintenance from property, it cannot be sold without securing
her maintenance.

the alienation can be challenged by a subsequently born coparcener - only if he was in the womb of his
mother at the time of alienation.

if SSC makes will out of property and before his death, another coparcener is born, the will becomes
invalid as he is no longer the SSC.

2. Alienation by a coparcener of his undivided interest in coparcenary property

• unless all coparceners agree, one coparcener cannot independently sell individual share.

• sale of undivided interest in the property to the alienee, could mean that stranger steps into
shoes of undivided coparcener and may claim collective right.

• competency to sell necessitates a competency to contract

• if coparcener needs money solely or for his branch, he can always ask for partition, specify and
demarcate his share and then alienate it.

• if he takes a loan and cannot pay it back, he can plead his inability to pay back the loan on the
ground that the undivided interest could not be alienated

• courts said money decree can be enforced against the undivided interest of coparcener. the
interest when sold through court auction, can be purchased by anybody - involuntary alienation

• The reason was that on the death of a coparcener, his undivided interest devolved by
survivorship, on the surviving coparcener and he left behind nothing that could be attached.

• However, once the interest was attached by the court, his subsequent death would not result in
the application of the doctrine of survivorship on his interest and the same would be sold in
execution of the money decree.

3. Voluntary alienation
 • in some regions, coparcener can sell or mortgage his undivided interest without consent of other
coparceners (Bombay, MP, Madras, J&K)

• in others, he can’t even where it is in favour of another coparcener (WB, UP, Bihar, Orissa)

• when coparcener is permitted to alienate undivided share, mortgage will be valid to extent of
share and will be unaffected by births and deaths in family

4. Alienation without consideration

• coparcener cannot make a valid gift of undivided share unless with consent of coparceners or
in favour of coparceners

• gift of property by a SSC in favour of persons who looked after him is valid

5. Renunciation of coparcenary interest

• Renunciation not alienation

• coparcener can renounce share in favour of others as a whole and not to some in exclusion of
others

• shares of other coparceners fluctuate (same effect of someone dying)

• son will not have a right by birth in property

• Thus, where a father agreed to renounce his interest in favour of his sons on the condition that
they will maintain him, the renunciation is valid

6. Will

Pre-1956: could not, under a will, even with consent, dispose of undivided share.

in case of SSC, will could be made, but validity would depend on date of death of SSC

Post-1956: HSA empowers undivided coparcener to make testamentary disposition of undivided

interest

coparcener can make valid will with respect to undivided share.

if coparcener bequeaths undivided interest, doctrine of survivorship would no longer apply to his
interest.

when bequeaths to stranger - he will step into his shoes and be entitled to ask for partition

not necessary to bring to knowledge of karta or other members.

CHALLENGE TO AN UNAUTHORISED ALIENATION

In states where coparcener can alienate his interest, it cannot be challenged.

challenge by coparcener born after alienation

unauthorised alienation can be challenged by those born after alienation was effected. if challenge
comes from an after born grandson, he cannot challenge it when:

• alienation is by father, and son is present and ratifies it.

• alienation is by father, in presence of sons, sons don’t challenge it, lose the right to challenge
by law of limitation.

• alienation by father, in presence of sons, sons die during lifetime of father (after alienation),
father remains SSC for some time and then grandson is born

• alienation by father, in presence of sons, grandson born after alienation but during lifetime of
sons they don’t ratify alienation or lose the right to challenge - grandson can challenge

rights of purchaser of undivided share - alienation is valid to the extent of the alienating coparcener's
share only

right to joint possession -

Bombay: purchaser of undivided interest can sue for partition and specification of shares. can get
exclusive possession. if partition is not effected, other coparceners are entitled to have joint possession
w him or they can file suit for recovery of possession from him

court - either pass eviction order or order for joint possession

Madras, UP, WB, MP: Alienee gets only an interest to the extent of coparcener's share at the time of
the alienation.

• entitled to file suit for partition

• no joint possession

• when coparcener alienates more than his share and purchaser claims total property, court will
only allow specification of share to extent of coparcener's share.

• purchaser can sue for general partition but cannot claim the very property or a share in a specific
property

• alienee stands in shoes of coparcener

• It was the undivided interest that was alienated to him, and till it is undivided, there is collective
ownership and possession and the alienating coparcener himself, is incompetent to claim any
 specific property or a portion of the property as his exclusive property, as that would go against
the basic incident of unity of possession

• alienee cannot have better right than what coparcener had in the property

Equities for refund of consideration in an unauthorised alienation

• when alienation was without authorisation and alienee pays consideration to the transferor, but
the alienation is set aside by court, alienee can proceed against transferor for refund of the
amount advanced by him

• if delivery of possession happened, coparceners can have it back from him

• alienee is entitled to refund only when he can prove that consideration went to joint family
assets or were used to pay off charges on property

• if alienee fails to prove that coparceners benefited from consideration, court will set aside the
sale but no requirement for refund.

• alienation by father and is set aside at instance of son (not on 3 grounds), court will set aside
transfer without the necessity of refunding of amount.

• partially valid - set aside + refund of excess amount

• alienation by karta - karta is only liable and coparceners are not bound to refund money

LIMITATION

Limitation period:

• alienation by father and son files suit for setting aside alienation - period of 12 years from
alienation

• property alienated by karta or ordinary coparcener and alienee has possession of the property -
coparcener files suit for recovery of possession - period of 12 years

• suit is for declaration that alienation is void and not binding - limitation is 6 years from date
from which right to sue arises.

• challenging coparcener was minor at time of alienation - file a suit for setting aside alienation
within 3 years of attaining majority

if 2 minor sons, and older son's rights were extinguished, younger son's rights not affected, i.e., still can
sue.

PARTITION
divide into parts or separate.

Hindu Law - means division or splitting of joint Hindu family into smaller, separate and independent
units.

no partition is possible unless there are at least two coparceners in a joint family.

Only one coparcener

• for continuation of joint family, presence of two coparceners is not a mandatory condition.

• joint family - single male member and female members

• this single male member would become karta and would have all responsibilities and
obligations as that of a karta

• he can however, escape from responsibilities by separating himself from the family, but only
after making due provisions for female members.

• not partition, but family arrangement. enables a single coparcener to maintain status distinct
from rest of joint family members

De Jure and De facto partition

• coparcenary has two incidents: community of interest and unity of possession.

• when the community of interest is broken or divided, either at the instance of one of the
coparceners or by mutual agreement, and the shares are clearly specified or demarcated, it
means that probable shares are not converted to fixed shares.

• the moment the community of interest is broken or specified, a partition is said to have taken
place.

• de jure partition - severance of status

• unity of possession - common possession and enjoyment of property by coparceners together.

if father and son effect a severance of status, but continue having common enjoyment of the
house. share of each of them is a fixed half, but which half of the house belongs to each of them
cannot be ascertained. shares are no longer fluctuating because severance has taken place. son's
share after his death will go to his wife (inheritance) and not father.

• unity of possession is maintained even after severance of status takes place.

• breaking up of or division of the unity of possession is effected by an actual physical division

of property - de facto partition or partition by metes and bounds.
Property capable of being partitioned - coparcenary property only. separate property cannot be
subject to partition.

Indivisible joint family property

necessary that each and every item is of a nature such that it can be partitioned or divided.

rules of division of property - capable of division, it should be so divided or partitioned, but while doing
so, if intrinsic value is lost or diminished, then following rules will be observed during partition:

1. Previous enjoyment irrelevant - previous manner of enjoyment has no effect on the actual
division. applies in cases where a coparcener improves his portion, without consent, or in
absence of agreement with other coparceners

2. Compulsory common enjoyment: property which cannot be exclusively be given to one person
or sold (staircase, road). these items will be shared even after partition

3. Balancing corresponding values of properties: impartible properties which are multiple in

number and the value is not going to rise substantially in the future. the items are to be divided
that even though the coparceners do not get the same things, the value of the things taken by
coparceners is comparable.

4. Money compensation: principle of owelty: no balancing is possible due to difference in value

of properties, items can be given to one person, while the other is given compensation in terms
of monetary equivalent.

5. Sale of impartible property and distribution of cash: when balancing is not possible or no
agreement is there w respect to money compensation. the property can be sold and cash
proceeds can be equally shared

6. Sharing by turns: special significance to family, members may share them by terms. in case of
disagreement, eldest in the family can retain it and other members can access it

7. consequences of partition: Hindu male gets status of individual after partition. can exercise
exclusive control over his share.

if he has kids - property he receives on partition, would still be coparcenary property to the son who
would have right of equal ownership

no kids - hold the property as a SSC.

male collaterals from whom he had separated, would have no claim over property.
Adjustment of claims before partition of property: right to possess and enjoy property is held by all
members, non-coparceners too. when partition happens, the non-coparceners would be left without any
means to support themselves.

before the partition gets effectuated - provision must be made for maintenance and residence of
unmarried daughters, female members, disqualified coparceners.

RULES FOR ACCOUNTING

After provisions and shit, stock of the existing properties needs to be taken.

till family is joint - karta responsible for maintenance of members of the family. the karta does not have
to be impartial when he is taking care of the family, and can show bias by giving a certain person or
branch more money

at the time of partition, however, all these considerations are not important and the rule of equal share
to all brothers will apply.

no coparcener can be asked to account for the additional money given to him for his maintenance before
partition by karta

when money was spent by one coparcener to discharge personal debts without authority of members,
this has to be brought into the accounts during partition.

when coparcener has alienated shares, this has to be debited from his share during partition

when coparcener spends his own income for improvement of family property, he would be entitled to
re-imbursement

at time of partition, no coparcener can ask karta for accounts for profit unless charges of fraud or
misappropriation.

Persons entitled to ask for partition - partition is severance of status of coparceners and division of
property by metes and bounds.

partition can be demanded by an alienee, in execution of a decree of undivided share

Alienee or purchaser in execution of a court's decree

right to demand partition is not available to non-coparcener.

Thus, a suit by an alienee, claiming equitable remedy from a coparcener, for an allotment of the shares
of the alienating vendor, is not maintainable

when undivided coparcener alienates his shares, alienee can demand partition (in states where he can)
in states where he cannot alienate, if coparcener contracts debt, the purchaser of his share in execution
of money decree can ask for partition and ascertainment of share.

they will not have joint possession of the property

Coparcener

coparcener who is major and of sound mind - can demand partition and specification of share.

does not have to give reason or explanation or justification for partition

no person, including karta, can force coparcener to change his mind.

karta cannot say no to a demand of partition by coparcener.

(purpose is important in alienation because consent of all other coparceners is material)

Minor coparcener

does not have right to demand partition but it doesn’t mean that no partition can be effected. may be a
situation where father or karta acts in a manner that is not for the welfare of the interests of the minor.
minor may file a suit for partition against the Karta through someone. court acts as parens partriae
(court is acting as a parent in this case)

test - whether the partition in the circumstances would be for the benefit of the minor.

Aryan Kamal Wadhwa v. Biharilal Wadhwa & Kakamanu Pedasubhayya v. Kakamanu Akkamma -
partition of joint family property through filing of suit by mother can be effected. the partition would
be in the interests of the minor. court called for account of total property, worked out a part of the share
to the minor and directed the karta to hand it to him.

Bombay: son cannot ask for partition if his father is joint with his own father, brothers, etc

right to partition - father is separate

Punjab: son does not have right to demand partition from father, because under customary law, sons do
not have a right by birth.

Dayabhaga - no right by birth, no partition.

Involuntary partition - demand for partition implies voluntary act on the part of the coparcener. in
some situations, he may not demand partition, but due to some conduct or action, he is out of the
coparcenary. whether he had this intention or not is immaterial.

2 conducts:

1. where he renounces religion

 2. gets married to a non-Hindu under SMA

Partition effected by father - patria potesta

has the power to not only separate from rest of family through partition, but to separate each and every
son of his, including minors - consent of sons is not necessary

father will retain the share of the minor till he becomes a major.

when effecting partition among sons, father cannot prefer one son over another and must allot equal
shares to all of them.

Partition by agreement - manifestation of intention to separate is necessary.

if all coparceners decide to destruct joint status, it is called partition by agreement.

agreement can be for severance of status or actual division of property

not necessary for partition by agreement for all shares to be equal

Agreement not to effect a partition - coparceners may agree that they would not effect a partition of
property till specific time or happening of certain event.

when it is restrained like this, it is binding on all the parties personally

Partition at instance of after-born son - son who was in womb of mother during partition - treated as
if in existence

right to demand re-opening of partition if no share for him.

if male - share allotted to him

if not born or female - share would be redistributed

conceived or born AFTER partition - right to demand partition depends on if his father took share
himself or not

if father took - child has a right to take properties of father

child born after partition - not a member of joint family

if father did not take, the son who is born after the partition, can demand the re-opening of the partition.

Partition at instance of adopted son - from moment of adoption, presumed to be born in adoptive
family and acquires right by birth in property.

right to demand partition and entitled to share equal to adoptive father.

entitled to benefit of doctrine of survivorship

Dayabhaga - 1/3 share in comparison to natural son

Bombay and madras - 1/5

Benares - 1/4

post 1956 - adopted son will have right to demand partition but will also have equal share

illegitimate son & disqualified coparcener - cannot demand partition

Case Law: Namdev Vyomkat Ghadge v Chandrakant Gnanpat Ghadge

(section 12 and 13 of the HAMA)

Partition at the instance of a person acquiring an interest in the coparcenary property by virtue
of a family arrangement -

Whereas per a family arrangement a specific property or a share in the property is allocated to a person,
such person acquires a right in the joint family property and becomes competent to ask for its partition.

MODE OF EFFECTING PARTITION

demand to bring severance of status must have:

1. formation of intention to separate from joint family

2. declaration of intention

3. communication of intention to Karta, and if he is unavailable, to other coparceners.

(communication through agent is valid)

Incidents of partition

severance of status takes place

1. share of coparcener is fixed

2. no application of survivorship
3. karta cannot touch that coparceners share if he wants to alienate that undivided share.

Communication of interest through will -

Raghavamma v. Chenchamma: hindu joint family comprised 4 brothers - 2 died without heirs. 2
survived and maintained undivided status.
Br1 - two kids - Daughter (D) and son (S)

S married SW and had son SS

Death of Br2 and S

Family - Karta, Br1 and SS, DD

Br1 executed will for equal division to SS and DD

both minors, so management would be in hands of Br2W. if SS or DD die before majority, share will
go to Br2W.

SW - no share or maintenance of share

SW was allowed to possess and maintain properties on behalf of SS and DD

SS died without attaining majority - share claimed by Br2W

SW - should go to her because he died SS died as a SSC.

court - Br1 was undivided member of coparcenary. intention to separate in the will was not
communicated to guardian of minor coparcener, SS. On his death, interest was taken by SS, who is a
SSC.

Will was held to be without any effect and property went by law of inheritance to SW.

A statement in the Will, by a member of the joint family, that he regards himself as a separate member,
or that he has been a separate member all along, or that through this Will, he is expressing his clear
intention to effect a severance of status, will not be effective at all and will not result in a partition, but
where he makes a Will expressing in it, a clear, unequivocal declaration of his intention to separate and
brings it to the notice of others who are affected by it, a severance would take place.

Effective date for severance - depends on communication of intent

if communication is instantaneous - severance of status is also instantaneous.

once demand is made, it cannot be subverted at the instance of any family member and acts as an
immediate severance.

S1 sends letter to karta on 1 jan, 1980 expressing intention to separate

letter reaches karta on 5 jan, 1980

S2 dies on 3 jan, 1980.

Distinction between date of determination of status and date of calculation of shares.

date of determination of status - when communication is put into course of transmission

date of calculation of shares - communication is complete.

so, date of calculation of shares will be 5 Jan and S1 will get 1/2 of property.

doctrine of relation back -

The rule that severance of status takes place only when it comes to the knowledge of the Karta, is
applied strictly. But where the expression of this intention was put in course of transmission at a former
date, with the application of the doctrine of relation back, severance would relate back to the former
date and settled rights in between these two dates will not be disturbed

communication to be completed during lifetime of coparcener - for application of doctrine of

relation back, necessary that communication is complete during lifetime of coparcener. if he executes
will, it will be valid if he is alive on the day the karta receives communication

Severance of Status through suit - coparcener can manifest unequivocal intention to separate through
a partition suit. it will effect a severance of status from the date of its institution in a court of law

Severance of status in case of minor -

where the suit is filed by a minor, through his next friend, and the court comes to the conclusion that
effecting a partition would be in the interests of the minor, the severance of his status would relate back
to the date of the institution of the suit and he would be deemed to be a separate member from the date
when the petition was presented in the court

The court here came to the conclusion that the father and two brothers of the minor were acting in a
manner so as to defeat his interests and so, a partition was desirable

It was held that with the application of the doctrine of relation back, his severance from the joint family
took place on the date of filing of the partition suit and at the time of his death, he was a separate
member. Therefore, his share in the property would go by inheritance to his mother and not to the
coparceners under the doctrine of survivorship.

REVOCATION OF PARTITION

A unilateral declaration can bring about a partition, but a unilateral withdrawal of this intention, where
the partition has already been effected, cannot result in a revocation of partition or in a reunion, as, for
demanding a partition, the consent of the other coparceners is not material, but a reunion is not possible
unless there is an agreement between all the members

Demand can be withdrawn before it is communicated to family members. intention to separate is put in
transmission, but karta has not received it and it is withdrawn - no partition will take place

Kedar nath v. Ratan Singh - if suit of severance is withdrawn, the withdrawal will not have effect of
restoring joint status. moment summons is received, communication is complete

Puttrangamma v. Ranganna

SC - not necessary that the communication must be through formal notice. even at the time the notice
was dictated and signed, one of the coparceners was present.

demand made by karta was known to all coparceners, therefore, severance of status had taken place.

his status became that of a separate member and unilateral withdrawal did not restore formal status.

court - he died as a separate member

FORMALITIES FOR EFFECTING PARTITION

If value of property > Rs. 100, it must be attested and registered.

Partial Partition w respect to persons - if partition is brought at the instance of only one of the
coparceners, only he with his branch separates, and the other members continue with joint family status.

can separate himself from joint family or continue to be a member

while partition, necessary to ascertain everyone’s shares and the share of who demanded partition, will
be handed to him.

Meva Devi v. Om Prakash Jagannath Agarwal - once partition had taken place, and son was given share
out of joint family, he had no further claim on the rest of the property belonging to joint family.

Partial partition w respect to property - can partition part of property, divide in amongst themselves
and still maintain joint status for rest of property.

when partition takes place in a joint family, it will be presumed that it is a complete partition has taken
place with respect to persons and property.

RE-OPENING OF PARTITION

partition - final and binding but can be re-opened in such situations where it could cause gross injustice
to members.

more property after partition - properties left out during partition either by mistake or deliberation,
or were seized (ex – by state) or lost. should re-distribute. ideally, should be done without re-opening
earlier partition.

properties concealed by fraud by coparcener - if property concealed, they can open it after discovery
of fraud.

partition unjust and unfair to minors - if partition is detrimental to minor's interests, then court has
duty to protect interests of minors and allow re-opening.

Extra property that was not part of the joint family property but was given to a coparcener, the partition
can be reopened in such a case.

PERSONS ENTITLED TO GET SHARE AT TIME OF PARTITION

Coparcener - partition merely divides title and gives exclusive ownership. when only branch separate,
minors may not be allotted a share.

- Sons upto 4 generations

- Daughters (post 2005)

son born of a void/voidable marriage - can inherit separate property but cannot inherit from any other
relation of parents.
S2 is statutory legitimate child - HMA says that these children will not have the rights in the property
of any other relation except parents.

neither acquire an interest in coparcenary property by birth, nor acquire the interest of any coparcener
under the doctrine of survivorship.

Illegitimate son - depends on caste, upper 3 castes: not entitled to a share of property but right to
maintenance.

lower caste: discretion of father. extent of share would be 1/4 of what other legitimate sons take, but
with incidences of survivorship.

after-born son: if pregnancy is known, then partition should be deferred till birth or share should be
kept aside.

disqualified coparceners - incapability to manage property, deprives male Hindu of ownership of

coparcenary property.

Under the 1928 Act, except for congenital idiocy or lunacy, all other diseases or deformities ceased to
operate as disqualifications. Even these prohibitions are purely personal and do not extend to the
legitimate issue of the disqualified person.

Female Members - cannot demand partition of property themselves. Mitakshara - 3 categories of

female members can be given a share:

1. father's wife: where partition takes place bw father and sons, father's wife/wives are entitled to
share which is equal to the share of son. if multiple wives, each wife is entitled to share equal
to share of son.

Each person gets 1/3

Each person gets 1/4

if father dies before partition, son will take entire property under doctrine of survivorship.

Mother has right to maintenance.

2. mother (widowed) - when partition takes place between brothers, widowed mother is entitled
to share equal to the share of the brothers. 'mother' also includes 'stepmother'.

Mother and each of brothers will get 1/4 of property.

on death of father, W1, W2, S1, S2 will each get 1/4

if S1 dies, then S2 will become SSC and get entire property. for partition, 2 coparceners are needed.
therefore, W1 and W2 will not get shares.

3. paternal grandmother

equal share to that of the grandson where sons are dead and the partition is taking place amongst the
grandsons.
W, S1, S2, S3 all get 1/4 of property

Here, the shares of all grandsons will be different

if the property is divided into 3 equal parts - each going to each branch then

S4 - 1/3

S5 and S6 each will get 1/6 (1/2 of 1/3)

S7, S8 and S9 will each get 1/9 (1/3 of 1/3)

to ascertain W's share - treat her like grandson, count number of grandsons + pg

total - 6 grandsons + 1 grandmother

property should be divided into 7 parts

W - 1/7

rest 6/7 share of property will be divided amongst grandsons

S4 - 6/21, S5&S6 - 6/42, S7, S8, S9 - 6/63

IF SON IS ALIVE, and partition is between son and a grandson

Calcutta and Patna - she gets share

Bombay and Allahabad HC - no share

Dayabhaga - woman has pre-existing ownership and a definite share in property and her rights do not
arise only when partition takes place. son cannot demand partition from father.

RULES FOR CALCULATION OF SHARES BY METES AND BOUNDS

1. Partition effected between 2 generations as first step

2. share of father = share of each of the son

3. father takes it as separate property with respect to sons, while son takes it as coparcenary
property when he has heirs. in absence of children, he takes property as SSC

4. benefit of death of son during the lifetime of father will be taken by his male descendants and
not collaterals or ascendants

5. when joint family has only brothers - equal share - per capita distribution

6. each branch takes property according to stirpes/stock but each member of branch takes per
capita

7. when female members entitled to get share are present, they must be given a share at time of
partition

right of representation of deceased coparcener

the branch of the deceased son, will take share. Per capita meaning will go to the whole branch.

If the coparcener is already dead, his branch will take the share that was given to him.

PRINCIPLE IN CASE OF AGRICULTURAL PROPERTY

co-sharer be given property of equal value - having similar potential.

• F, S1, S2, S3 - equal shares - 1/4

 • F - separate property with respect to his sons

S2, S3 - No male issues, therefore SSC

S1 - has male issues, will take as karta of branch

• Partition between S1, S4, S5. will take equal share (1/3 of 1/4 = 1/12)

END SEM
HINDU SUCCESSION ACT, 1956

Basic Features of the Act

1. Amended and modified aspects of classical Hindu law related to joint family, Mitakshara
coparcenary, intestate succession and testamentary succession
2. Provides for a scheme of devolution of property by intestate succession. Abolishes the laws of
succession under Dayabhaga and Mitakshara. Provides for a uniform law that is based on
natural love and affection and nearness in relationship.
3. Abolished concept of limited estate for Hindu women and replaced it with absolute ownership.
Women now acquired full powers of enjoyment and disposal over property
4. Separate schemes of succession for male and female intestate
5. Alters character of property inherited by the son from his father, paternal grandfather and the
paternal great grandfather and makes it separate property with reference to his heirs.
6. Made daughters (and her children, in her absence) the primary heirs in preference of male
collaterals.
7. Eligibility to succeed – both consanguinity and affinity
8. Rights are created in favour of heirs irrespective of the generations they might have been
removed from the intestate
 9. Empowers any Hindu to make a testamentary disposition of the totality of properties, in favour
of anyone.
10. Modifies laws of Mitakshara coparcenary and devolution of survivorship.
- If undivided coparcener dies leaving behind class I heirs, other than a son, son of a
predeceased son and son of a predeceased son of a predeceased son
- In such a case, the law presumes that he had died after demanding for partition. This
means that share in the coparcenary property would be determined and be converted
into a separate share. This means it would no longer go by survivorship but to the legal
heirs in accordance with the rules of intestate succession
11. Disqualifications for inheritance were removed. According to the Caste Disabilities Removal
Act, 1850, conversion also does not disqualify a person from inheriting property. But his
descendants (born after the conversion) will be disqualified. Murderer of an intestate is
disqualified from inheriting his property. Widows who remarry before the succession opens
and cease to be members of the family, are disqualified from inheriting the property of the
intestate.
12. Widows of intestate is primary heir and her rights cannot be defeated on grounds of her
unchastity.
13. Matrilineal system – abolished
14. No inheritance rights for illegitimate children (especially the dasiputra)
15. Preference of full blood relations over the half blood relations
16. Protection of rights of posthumous children (born after the death of the father)

Classical Law provisions that were retained by the Act

1. Mitakshara joint family and devolution of undivided share by survivorship. The permissibility
of the holding of two-fold interests by the Hindu male – separate + coparcenary. Application
of doctrine of survivorship was removed in the presence of class I heirs and the son of a
predeceased daughter
2. 2 separate schemes of succession for male and female intestate + also prescribes separate rules
for devolution of property in case of childless married woman depending on source of
acquisition of property available for inheritance.
3. With respect to remoter heirs, there is a preference to the male chain.
- Agnates are preferred over cognates
4. only male heirs can effect the partition of the dwelling house and in their presence, none of the
Class I heirs, including the widow of the intestate has a right of demarcation of shares and their
right is confined to the residence.
5. All fundamental aspects relating to categorisation of properties, manner of acquisition,
distinctive features, Karta’s powers and responsibilities are retained
 6. The coparcener is now enabled to make a will of his undivided share in Mitakshara coparcenary
but he cannot make any other kind of disposition.
7. Female heir, who is entitled to get a share is still incapable of demanding it.

Primary changes introduced by the Hindu Succession (Amendment) Act, 2005

1. Deletion of provisions exempting application of the Act to agricultural holdings

Section 4 (2) of the Hindu Succession Act, 1956

2. Abolition of the doctrine of survivorship in case of male coparceners

Section 6 (3) of the Amendment Act, 2005

Under the doctrine of survivorship, on the death of a coparcener, his interest was taken by the
surviving coparceners and nothing remained for his female dependents. This rule was first modified
by the Act of 1937 – which permitted the widow of the coparcener to hold on to his share for the
rest of her life, and only on her death, the doctrine of survivorship applied and the male collaterals
could take the property.

The 1956 Act further confined the application of the doctrine to cases where a male Hindu died as
a member of a coparcenary, having an undivided interest in the property and did not leave behind
him a class I female heir or the son of pre-deceased daughter.

Previously, if S2 died, his share would have been taken by F and S1, the surviving coparceners by
survivorship.

Their shares would be:

F – ½ and S1 – ½

After the abolishment of the doctrine of survivorship, the share of S2 will be calculated by first
affecting a notional partition. So now, each member would get 1/3 of the property. This 1/3 would
not go by doctrine of survivorship but by testamentary or intestate succession.

3. Introduction of daughters as coparceners

Any child born into the family or validly adopted, will be a coparcener and would have an interest
over the coparcenary property. The daughter is now capable of acquiring an interest in the
coparcenary property, demanding a partition of the same and disposing it off through a testamentary
disposition.

2 classes of females:

1. Females who are born into the family

2. Those who become members of the family by marriage to the coparceners

4. Marital status of daughter

Under state amendments like that of A.P, T.N., Karnataka and Maharashtra, daughters of
coparceners who were married on the day the amendment was enforced in each state, could not
become coparceners.

Daughters who were married on the date of the enforcement of the amendment did not get benefits
under the amendment.

Under the 2005 amendment, the daughter of a coparcener is included as a coparcener herself without
any reference or limitation with respect to her marital status. Even if the married daughter ceased
to be a part of her father’s joint family, she would still be a member of the coparcenary and would
be entitled to seek a partition of the property.

The partitions and alienations effected prior to 20th december 2004 have been expressly saved. If a
partition had occurred after the daughter got married (who got married before 2005), it would be
valid and could not be challenged. The married daughter would not be entitled to reopen the
partition or be empowered to challenge the alienation effected before the date.

Constitutional Validity of proviso to Sec. 6 (1)(c) of the Hindu Succession (Amendment) Act,
2005

Disparities between the state amednments and the central legislation amednment. Through the
amendment, she acquired a right by birth in the coparcenary property. She was empowered to hold
joint possession and joint title in the same. She could also now demand a partition. However, this
would save for any partition that was effectuated before September 9th, 2005.

If at the time of the partition, the male members divided the property amongst themselves and
deprived her of her rightful share or on the death of an undivided coparcener, a notional partition
was affected and she was denied a share, she had a right to reopen the partitin.
 The amendment conferred such a right but it also implied that an inquitable partition could be
questioned by the daughter only soon after its taking place and not after 9 th september, 2005 even
though her rights to do the same were not barred by the law of limitation.

This was challenged in the case of R. Kantha v. Union of India¸wherein the petitioner, who was an
unmarried daughter demanded partition and demarcation of her shares of the joint family property
from her father. When he refused to do so, she filed a suit for the same. It was dismissed by the trial
court. She further filed a writ in the High court challeneging the constitutional validity of the proviso
on the grounds that it was violative of gender parity.

Claimed: proviso – arbitrary and unconstitutional

2 issues framed by Court:

a. Whether the proviso 6 (1) (c) was arbitrary and violative of Art. 14 of the
constitution
b. Whether the unmarried daughter could seek partition of undivided property
during lifetime of father

Main contention of petitioner: right conferred under the Karnataka Amendment Act, 1974 cannot be
subsequently taken away by a subsequent amendment

- Art 254 (1) of the constitution – in case of any conflict between union and state laws
in any matter that is in the concurrent list, the union law will supersede and prevail over
the state law.

Court – agreed that the proviso was violative of the principles of gender parity and went against the
main objective of the amendment which was to remove the inherent discrimination of women in the
Mitakshara coparcenary (married and unmarried).

If sons can re-open partitions to settle claims, in the event that they are inequitable, then so should
women.

5. Property held by daughters with incidents of coparcenary ownership

Section 6 (2): Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall
be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act, or any other law for the time being in force, as property capable of being
disposed of by her by testamentary disposition.

no definition of incidents of coparcenary ownership. The definition under Classical law is:

1. Unity of possession and community of interest: Jointly have title to property and joint
possession of the property
 2. All coparceners hold the property with incidents of doctrine of survivorship

Confusion: legislation abolished doctrine of survivorship for male coparceners but does it have the same
effect for female coparceners?

Doctrine of survivorship has been abolished for male coparceners but has been retained for female
coparceners.

6. Retention of the concept of notional partition

Retains notional partition but modifies application.

Previously: notional partition was only effected if the undivided male coparcener died leaving behind
any of the 8 Class I female heirs or the son of predeceased daughter.

Amendment: makes application of notional partition in all cases of intestacies.

Section 6 (3) - Where a Hindu dies after the commencement of the Hindu Succession Act, 2005, his
interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this Act, and not by survivorship, and
the coparcenary property shall be deemed to have been divided as if a partition had taken place.

7. Calculating of shares while affecting a notional partition

Section 6(3):

(a) the daughter is allotted the same share as is allotted to the son;
(b) the share of the predeceased son or a predeceased daughter, as they would have got had they
been alive at the time of the partition, shall be allotted to the surviving child of such predeceased
son or of such predeceased daughter; and
(c) the share of the predeceased child of a predeceased son or of a predeceased daughter, as such
child would have got had he or she been alive at the time of the partition, shall be allotted to
him as if a partition has taken place immediately before this death, irrespective of whether he
was entitled to claim partition or not.

If a minor child dies, his or her share would be calculated after effecting notional partition and
would go by intestate or testamentary succession

8. Devolution of coparcenary interest held by a female

As according to rules of intestate succession, the property that may be available would be divided
into 3 categories:

1. Property she inherited from her parents

2. Property she may have inherited from her husband and/or father-in-law
3. Any other property

Coparcenary property will come under the third category of property. The heirs for such a property
would be her husband, children and children of pre-deceased children. If she dies without kids, then
her husband would succeed to her total property including the interest in the coparcenary property.
If she dies a widow, the heirs to the husband would take the interest in the coparcenary property.

S15 of the Act will not apply to the interest of the female coparcener.

9. Separation of son during the lifetime of the father

Classical Law: If son got partition during lifetime of father, the family would continue and maintain
the joint status. However, on death of father, neither separated son or his heirs can claim father’s
property.

S1 demands partition and gets separated from the joint family. When F dies, neither S1 nor SS can
ask for a share in his property.

Amendment: on death of F, doctrine of survivorship would not apply and undivided share of the
father, would go away by intestate succession to S1 and S2 equally. Separate son can claim a share
when member of the coparcenary dies intestate.

When S1 dies, W1 and SS can inherit the property he had taken out of the joint family property and
also can claim a share in F’s property when he dies.

10. Abolition of pious obligation of son to pay debts of father

Liability on son, grandson, great grandson to pay father’s debts.

Section 6 (4) - After the commencement of the Hindu Succession (Amendment) Act, 2005,
no court shall recognise any right to proceed against a son, grandson or great-grandson for the
recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of
the pious obligations under the Hindu law of such son, grandson or great-grandson to discharge any
such debt: Provided that in case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect—
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may
be; or
(b) any alienation made in respect of or in satisfaction of any such debts and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act,
2005 had not been enacted.

Explanation —For the purposes of clause (a), the expression son, grandson or great-grandson, shall
be deemed to refer to the son, grandson or great-grandson as the case may be, who was born or
adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

11. Applicability of Amending Act to partitions affected before 20 December, 2004

The act is prospective in its application and would not apply to any partitions that were affected
before 20th December, 2004.

Case Law: Brij Narain Aggarwal v. Anup Kumar Goyal

Facts: A suit for filed on the behalf of the daughter claiming her share from her parents in the
coparcenary property on the ground of Amendment of 2005 to the Act. Earlier a partition suit was
filed by her 2 brothers in 1984 in which the daughter was granted 1/36th share in the property.

Held: The HUF of which Mr. Pran Nath Goyal was karta, ceased to exist when partition suit was
filed by Respondent No. 1 and 2 in 1984. It is settled law that once partition is demanded and a
suit is filed by a member of HUF, the severance in the status of coparcener takes place. It is clear
that the whole sum and substance of the amendment Act is that HUF must be in existence on the
day of commencement of the Act or at least on 20.12.2004 and no partition had taken place before
20.12.2004. The partition had taken place by a decree of court in 1991 itself. Mrs. Mithlesh
Aggarwal, died in 1998. Mere pendency of the execution would not give right to the Appellant,
who is husband of Mrs. Mithlesh Aggarwal, to revive an HUF which ceased to exists in 1984
itself. The suit is not maintainable under the amended Hindu Succession Act as claimed by the
Appellant.

- first requirement of daughter becoming coparcener is the existence of a joint family.

If the joint family is no longer existent because of the institution of a partition suit,
then there is no question of the daughter being a coparcener
- severance of status has already taken place and coparcenary has come to an end.
12. De-recognition of oral partition

Under the amending act, partition now means any partition which is in writing or is duly
registered or affected by a decree of court. Basically, you should be able to prove the partition has
occurred. Under classical law, partition could be either oral or written. However, under the
amending act, ‘partition’ would only refer to those partitions which are either executed in writing
or registered as per the Registration Act, 1908 or have been in pursuance to a court decree.

13. Abolition of special rules relating to dwelling house

According to S23 of the Act, 1956 when the property includes a dwelling house, and a Hindu dies
intestate leaving behind male and female heirs, the female heirs would not have the right to claim
partition of the dwelling house until the male heirs choose to divide their shares but they would be
entitled to a right of residence.

If the female heir is a daughter she would be only given the right to residence, is she is unmarried,
deserted, separated or a widow.

If the daughters were all married, the son had a legal right to occupy the share of his sisters
without their consent or any monetary compensation to them.

the provision has now been deleted and the rights of all class I heirs on any property is at
par with one another.

14. Deletion of section 24

Under S24 of the Act, 1956, 3 kinds of widows were allowed to inherit the property:

1. Widow of a pre-deceased son

2. Widow of a pre-deceased son of a pre-deceased son
3. Widow of a brother

Any of these 3 kinds of widows, will not be entitled to succeed the property of the intestate of
such a widow, if on the date of the opening of the succession, she has re-married.

S1 and SS are married to W1 and W2 respectively. S1 and SS died during the lifetime of F. on the
death of F, the succession opens, and all the three heirs, S2, W1, W2 would inherit the property:

S2 would take ½

W1 and W2 would take ¼ each

 If on the date the succession opens, W1 and W2 are re-married, then they would not be eligible to
inherit this share.

There are two categories of relatives according to the Act:

1. Blood relatives
2. Relatives by marriage

The marriage or remarriage of blood relatives does not affect their rights in the property but the
remarriage of relatives through marriage would make them ineligible from inheritance as they
would cease to be members of the intestate’s family and would get rights from the family they
marry into. After the re-marriage they would not be related to the intestate at all, and therefore,
would not be eligible as heirs.

15. Eligibility of female coparceners to make testamentary disposition

Under the Mitakshara law, a coparcener could not make a testamentary disposition of his
undivided share. The share went by the doctrine of survivorship to the surviving coparceners.
However, the Act, 1956 gave the coparcener this competency. Section 30 of the Amending act,
further gave women this competency as well.

16. Introduction of 4 new heirs to Class I category of heirs

4 new heirs have been added to the class I category. These heirs were previously in the Class II
category and they were excluded in the presence of class I heirs and the father of the intestate.

4 heirs:

1. Son of predeceased daughter of a predeceased daughter (DDS)

2. Daughter of a predeceased daughter of a predeceased daughter (DDD)
3. Daughter of a predeceased son of a predeceased daughter (DSD)
4. Daughter of a predeceased daughter of a predeceased son (SDD)
Amongst the great grandchildren of the intestate, SSS and SSD were already class I heirs and 4 more
have been added.

Mistakes:

The only greatgrandchildren who were left out are:

1. Son of a predeceased son of a predeceased daughter (DSS)

2. Son of a predeceased daughter of a predeceased son

These heirs who went from being class II to Class I have not been deleted from Class II. They still
remain to be Class II heirs in the new legislation.

Application of the Act

Section 2 of the Act states who the act will apply to. It is hard to define a Hindu. According to the
Section, the Act applies to:

1. Hindus, including a Virashaiva, Lingayat or follower of the Brahmo Prarthana or Arya Samaj
2. Buddhists, Sikhs or Jains
3. Any person who is not a Muslim, Christian, Parsi or Jew by religion.

4 factors must be considered while deciding application of the Act:

1. Deceased is a Hindu
2. Though he was not a Hindu, he was also not a Muslim, Christian, Parsi or Jew
3. That he is a Hindu and with his conduct, has not ousted the application of Hindu Law
4. That even though he is a Hindu, he may not be subject to provisions of the HAS due to
application of some other law due to his domicile or form of marriage

Person who is Hindu as defined under the HAS - child of Hindu parents or of only one Hindu parent
or is a convert or reconvert to Hindu faith. The term ‘Hindu’ would include Hindus, Buddhists, Sikhs
and Jains. Even when the person expressly renounces his religion, till he converts to a different
religion, he would still be subject to the application of the Act.

Time for determination of Religion

• Where both parents are hindus: time of determination is the time of the birth of the child and
not the time of the conception.
• Where only one parent is Hindu: time of determination of the religion is not the time of the
birth, but a later time that is linked to the way he is brought up.

Illegitimate Children
The presumption is that an illegitimate child always takes the religion of the mother is no longer
applicable. The determination, according to the new Act, is dependent on 2 factors, whether the child
is legitimate or illegitimate:

1. One of the parents is a Hindu

2. The child is being brought up as a part of the Hindu parent’s tribe or community

Conversion or reconversion to Hindu faith

For the application of the HAS, 1956, it is not necessary that the person should be born Hindu. A
convert or a reconvert would also be subject to Hindu law.

In India, a person cannot be without a religion and if a person renounces his religion but does not
convert to a new one, his former religion would still govern him. There is a twin-fold requirement for
a conversion:

1. Renunciation of the former religion

2. Embracing a new religion

When a person converts to the Hindu religion, the adoption and practise of Hindu way of life must be
shown. Under the Hindu law, no formal ceremonies are required for the induction into the Hindu
religion. what is required to be shown:

- Intention to convert
- Adoption of the Hindu way of life

The conversion must be made honestly and without any fraudulent intention. A bona fide intention
and a matching conduct are required to prove a conversion.

Free, voluntary consent + bona fide intention + subsequent conduct indicating adoption of the Hindu
mode of life

Reconversion: conversion is a revocable act and the convert can come to his religion of birth. The
supreme court held that when a person converts to another religion, he loses his caste but it is not
permanently lost and remains in suspended animation. The moment he reconverts, his caste is also
revived.

Ousting the application of Hindu Law

Two specific conducts:

1. Conversion
2. Marriage to a non-Hindu under SMA, 1954
The general provision in cases where the marriage is solemnized under the SMA is that the provisions
of the Indian Succession Act, 1925 will govern the succession of the property of the parties as well as
to the issue of the marriage.

If two Hindus got married under the SMA, 1954, or under the HMA but got it registered under the
SMA, the succession to their property would be governed by the HSA. But if the Hindu gets married
to a non-Hindu under the SMA, succession to the property of the Hindu will not be governed by the
HAS.

Section 5 states that the HAS will not apply to certain properties

1. Any property which is regulated by the ISA by reason of the provisions contained in S21 of
the SMA, 1954.

Territorial application

1. Hindus of Jammu and Kashmir

2. Hindus of Goa – Portuguese Civil code
3. Hindus of Daman and Diu – Portuguese Civil code
4. Hindus of Dadra and Nagar Haveli and Pondicherry (does not apply to renocants) – French
Civil code
- The Hindus were allowed to be governed by customary laws
5. Members of Scheduled Tribe – customary laws

Effects of disowning a person

The notice or the disclaimer of a relationship cannot disinherit the statutory heir as such a notice has
no legal value and cannot override succession rules.

Ex-gratia payments and rules of inheritance

Property that comes to the share of the deceased post his death is also subject to succession rules. Can
ex-gratia payment or compensation paid to the next of kin of deceased be distributed in accordance
with the rules of inheritance that applied to deceased?

Genny Kaur v. State of NCT of Delhi

Four members of a family that comprised of husband, wife and 2 children were killed in the anti-Sikh
riots in 1984. The only two remaining relatives were the mother of the wife and the father of the
husband. The government announced that ex-gratia payments were to be paid to the next of kin of the
deceased. Court – how to determine who of the survivors were eligible to claim the money.

Not necessary that ex-gratia payments is to be distributed in accordance to the rules of inheritance and
total amount can be distributed equally.
SUCCESSION TO PROPERTY OF MALE INTESTATE

Succession is of two types:

• Intestate
• Testamentary

Testamentary succession: where the succession is governed by a testament or a will. Hindu male or
female is capable of making a will of their property including a share in the undivided Mitakshara
coparcenary. In this case, the property will devolve according to the distribution they have under the
Will and not according to laws of inheritance.

Where will is not valid – laws of inheritance would apply

Person who makes will – testator or testatrix

Person whose favour it is made – legatee

Intestate succession: when person dies leaving no will or testament that is capable of taking effect in
law, then the property will be distributed in accordance with laws of succession. Person who dies
without leaving will is called intestate.

Properties subject to rule of intestate succession:

1. Separate property or self-acquisitions: property that a deceased earned through salary or

received through gifts or will or through inheritance or through prizes.
2. Undivided share of a male Hindu in Dayabhaga Joint family: it would be subject to
application of S8. The doctrine of survivorship has no applicability and it goes according to
the provisions of the act
3. Property held by SSC: The undivided share in Mitakshara coparcenary does not go by
intestate succession. On the death of the SSC, the property will go by intestate succession as
if it was separate property
4. Share obtained on partition: when partition has taken place, each divided coparcener holds the
share allocated to him as exclusive property. If he has male issues, the property will be
considered to be coparcenary property in respect to the male issues.
5. Undivided share in Mitakshara coparcenary: where male Hindu dies as an undivided member
of the Mitakshara coparcenary, his undivided share will be demarcated through notional
partition and will go by intestate succession and not by doctrine of survivorship.
6. Interest in Tarvad, Tavazhi, Kutumba, Kavaru, Illom: Male Hindu subject to the
Marumakkattayam, Namboodiri and Aliyasantana laws, in the matters of intestate succession
will be governed by S8 of the Act.
Death of male Hindu need not be after commencement of the Act – S8 applies in cases where the
succession opens after the commencement of the Act. It does not require that the death of the Male
Hindu be after the promulgation of the Act.

Classification of Heirs

1. Class I
2. Class II
3. Class III (Agnates)
4. Class IV (cognates)

Rules for devolution of property

•As long as there is a single Class I heir present, the

Class I heirs property will not go to the Class II heirs.
• Before 2005, there were 12 Class I heirs - 8 female and 4
male. Now there are 16 Class I heirs - 11 female and 5
male.
•When none of the Class I heirs are present, the property would pass
to Class II heirs.
Class II heirs •There are 9 separate entreies, and except the first (father), the rest
contain multiple heirs.
•In each entry, the heirs take property in equal shares
•In the absence of Class II heirs, the property
Class III heirs goes to Class III heirs which comprises all
(Agnates) blood relatives of the intestate related to him
through a whole male chain of relatives

When none of the agnates are present,

Class IV heirs the property goes to the rest of the
(Cognates) blood relatives of the intestate, called
the cognates.

Class I heirs

All of them inherit simultaneously, and the presence of any one of them, will prevent the property
from going to the Class II category. All class I heirs take property absolutely and exclusively, as their
separate property and no person can claim a right by birth in the inherited property. Once the property
gets vested in a heir, they cannot be divested of the property by remarriage or conversion. The heirs
are:

1. Mother (M)
2. Widow (W)
3. Daughter (D)
4. Daughter of predeceased son (SD)
5. Widow of predeceased son (SW)
6. Daughter of predeceased daughter (DD)
7. Daughter of predeceased son of predeceased son (SSD)
8. Widow of predeceased son of predeceased son (SSW)
9. Son (S)
10. Son of predeceased son (SS)
11. Son of predeceased son of predeceased son (SSS)
12. Son of predeceased daughter (DS)
13. Daughter of predeceased daughter of predeceased daughter (DDD)
14. Son of predeceased daughter of predeceased daughter (DDS)
15. Daughter of predeceased daughter of predeceased son (SDD)
16. Daughter of predeceased son of predeceased daughter (DSD)

Mother –

• Term includes biological as well as adoptive mother but does not include step-mother
• When man having multiple wives (married prior to 1956) and adopts a child, the senior-most
of the wives would be the adoptive mother of the child and would have rights to inheritance
• Her marital status at the time of birth or death is irrelevant
• Legitimacy or illegitimacy of the child does not affect rights of the mother
• If a single woman adopts a child, such a child would be legitimate and she would inherit from
him after his death
 • She also inherits from the son born out of void/voidable marriage
• The conduct of the mother is totally irrelevant when determining the eligibility to inherit
property
• Even if she renounced Hindu religion and converts to another religion, she still retains her
right to succeed property
• All sub-schools of Mitakshara prefer mother to father in inheritance of property from son
• Mother was excluded in presence of father under Dayabhaga law
• Until Hindu Code Bill of 1948, mother was Class-II heir

Widow

• Widow of intestate takes share equal to son

• If there is more than one widow, all of them collectively take one share that is equal to the son
and divide it equally amongst themselves (tenants-in-common)
• Under Mitakshara law, they take the property as joint tenants and have the right to
survivorship
• Each of them take the share as an absolute owner and have full powers of enjoyment and
disposal
• Widow – spouse of valid marriage
• Widow does not include divorced wife but includes wife who was living separately under a
decree of judicial separation
• If there is pendency of the suit of divorce at the time of the death of the husband, she will still
inherit the property
• The moral character or faithfulness of the wife are not relevant considerations for determining
eligibility to claim inheritance

Daljit Kaur v. Amarjit Kaur – wife left husband and lived with another man, and bore children
with him. Husband did not divorce wife on grounds of adultery and got married to another
woman. On death, W1 filed to claim to property. Court ruled in favour of W1 and held that
unchastity is a ground for divorce but not disqualification for succession rights.

Krishnamma v. P. Subramanyam Reddy – Hindu wife deserted husband and went to live with
another man and had his kids. After death of husband, she instituted suit to claim property. The
court held that when she abandoned her rights, left the family once and for all, and lived with
another man and his kids, and therefore cannot claim a right in his property.

Daughter
 • The term daughter means a natural born or an adopted daughter but not step or illegitimate
daughter
• Daughter born out of a void or voidable marriage is still legitimate and would inherit from
father
• No distinction between rights of unmarried and married daughters
• Chastity and character of daughter are of no consequence
• Prior to 1956, an unchaste daughter could not inherit from father’s property under Dayabhaga
law but daughter unchaste after inheriting property, could not be divested of such interest.

Son

• son means natural born or adopted son

• does not include illegitimate son or step son
• son born out of void marriage or voidable marriage is a legitimate child and would inherit the
property along with other descendants
• Under Mitakshara law, he took share of father’s property by inheritance but in the capacity of
the Karta and the property was coparcenary regards to his own son
• Son does not include grandson but includes posthumous son

Children born of a live in relationship

Mohan Singh v. Rajini Kant

Court held that children born out of live in relationship where the parties have lived together for a
long time and have projected themselves as husband and wife before the society would be entitled to
inherit property from father.

If a man and woman cohabit for a number of years, it will be presumed under S114 of the IEA that
they live as husband and wife and the children born to them will not be illegitimate. S16 of the HMA,
1955 confers legitimacy for the purposes of inheritance on the children born out of void or voidable
marriages.

Sons and daughters of predeceased son

• When son of intestate dies during the lifetime of the intestate, his children, would be entitled
to represent him (step into his shoes) and take a share along with their mother that would have
come to the father and divide it equally
• Their turn to inherit would only come when their father, through whom they were related to
the deceased is also dead. As long as he is alive, they cannot succeed to the property of the
grandfather.
 • Son or daughter of predeceased son must be perfectly legitimate, but father should have also
been legitimate offspring of grandfather.
• If father was born out of void or voidable marriage that was annulled, he would be entitled to
inherit the property of parents but on his death, children would not be able to inherit the
property

Male Hindu is married to W. While the marriage was subsisting, he got married to M. this
marriage is a void marriage. S was born from the marriage. On the death of father, S would be
entitled to inherit the property of F. This legitimacy would not be carried forward to the second
generation. The children of S will not inherit the property of F.

‘A’ has a son ‘F’. F contracts bigamous marriage and has 2 children. On the death of A, S and D
would not be eligible to inherit A’s property as they were born out of a void marriage.

Quantum of share of son and daughter of predeceased son is equal.

Son and daughter of predeceased daughter

• On death of natural-born or adopted daughter during the lifetime of the intestate, the son and
daughter would represent their mother and take a share allotted to her if she had been alive
and divide it equally.
• The marital status of children has no effect.
• Where unmarried or single mother adopts children, the adopted children would be legitimate
and entitled to properties of maternal grandfather on the death of the mother. When children
were born of a void or annulled voidable marriage, they would not be entitled to inherit

Son and daughter of predeceased son of a predeceased son

 • During lifetime of intestate, his son and son of this son dies, leaving behind children, they are
considered to be class I heirs and will succeed to his property
• The relationship to the intestate should be natural born legitimate or adopted relationship
• They should be the progeny to a valid marriage and not of a void or voidable marriage
• Marital status, chastity or financial position is of no consequence to determine eligibility to
inherit property

Widow of predeceased son

• Widow of predeceased son is not blood relation and is related by marriage

• She is a class I heir and is preferred to the father of the intestate,
• Widow of predeceased son in order to inherit the property of her deceased father-in-law must
be a widow the date the succession opens
• If she remarries before succession opens, she will not be a member of the family and will be
disqualified from inheriting property

S dies during lifetime of F. SW remarries H and takes SS to new family. H also dies. F due to love
and affection, brings SW and SS back into the house. On death of F, only SS will inherit property and
SW will be disqualified as on marriage with H she is no longer widow of SS.

Widow of an illegitimate child or a son born out of void or voidable marriage is not entitled to inherit
property of the intestate.

Widow of predeceased son of a predeceased son

• Relation with the intestate should be through adoption or natural birth of the husband –
legitimate connection
• Chastity and financial situation is irrelevant but her remarriage before opening of succession
would operate as disqualification

Sons and daughters of a predeceased daughter of a predeceased daughter

• During the lifetime of the intestate, if his daughter and the daughter of such daughter dies
leaving behind her children, all the children will be Class I heirs of the intestate.
 • Relationship of the intestate with the daughter and her children and her grandchildren should
be through legitimate kinship

Daughter of predeceased son of predeceased daughter

• Where daughter and her son die during the lifetime of the intestate, the daughter of such son
is class I heir. Till 2005 she was a class II heir. Even though she was made into a Class I heir,
her brother is still a class II heir

Rules for Distribution of property

Among the Class I heirs, the property of an intestate is divided according to the following rules:

1. Share of each son and daughter and of the mother is equal

2. Widow of the intestate takes one share and if there is more than one widow, all of them
collectively take one share (equal to the share of the son) and divide it equally
3. Predeceased son who is survived by son, daughter, widow is to be allotted the share equal to
that of the living son
4. Out of each share allocated to the branch of predeceased son, his widow and living son and
daughter will take equal portions with respect to each other and branch of any predeceased
son will get equal portion
5. Rules applicable to the branch of a predeceased son of a predeceased son are the same – son,
daughter, widow will get equal portions
6. Predeceased son who is survived by son or daughter will be allotted share equal to that of a
living daughter
7. This share will be taken equally by the sons and daughters of predeceased daughters

Class II heirs

As long as there is a Class I heir present, the property does not pass to the class II heirs. When heirs in
category II and IV are present, the former would exclude the latter. For example, in presence of the
brother of the intestate, the nephew cannot inherit. This category includes 19 heirs. They have been
grouped into 9 sub-categories, the prior excluding the later. 10 heirs are male and 9 are female. All the
heirs of one category take the property in equal shares according to the per capita rule of distribution.

1. Father
2. 1. Son’s daughter’s son
2. Son’s daughter’s daughter (now also a Class I heir)
3. Brother
4. Sister
3. 1. Daughter’s son’s son
 2. Daughter’s son’s daughter (Now also a class I heir)
3. daughter’s daughter’s son (Class I heir)
4. Daughter’s daughter’s daughter
4. 1. Brother’s son
2. Sister’s son
3. Brother’s daughter
4. Sister’s daughter
5. Father’s father; father’s mother
6. Father’s widow; Brother’s widow
7. Father’s brother; Father’s sister
8. Mother’s father; mother’s sister
9. Mother’s brother; mother’s sister

Under class II heirs, the patriarchal notion of preferring paternal relations over maternal relations have
been retained. For step-siblings, when they share a common father, they inherit as Class II heirs from
each other, but where they share a common mother they are called uterine brothers and sisters and are
not entitled to succeed from each other as class II heirs.

Father

• Includes biological and adoptive father but does not include stepfather or putative father
• Where son was born out of void or voidable marriage, the father is still related to him and
entitled to inherit the property on his death
• Till a single Class I heir is present, the father is excluded but his presence excludes all other
Class II heirs
• The Hindu Code Bill had placed both parents as sub-category (i) of Class II heirs but the
mother was later made a Class I heir.
• Under the ISA, 1925, however, the father is preferred to the mother and she is excluded in his
presence.
• In Dayabhaga law, however, the placement of the father should not be different with respect
to each other and the basis of eligibility to succeed is natural love and affection.

Son of a predeceased daughter of a predeceased son

• Children of predeceased daughter of predeceased son of intestate were class II heirs and
inherited if none of the class I heirs or father of intestate were present.
 If SDD1 and SDD2 are present, then SDS won’t inherit in the property because SDD1 and SDD2
are class I heirs whereas SDS is a class II heir.

Brother and sister

• The brother and sister can be related to each other by blood or by adoption. When by blood,
the relationship can be full-blood, half-blood or uterine blood
• Full-blood: brother and sister share both the parents – descendants of the same mother and
father
• Half-blood: when the brother and sister have only one common parent, it is a half blood
relationship. Under Hindu law, a half-blood relationship denotes brothers and sisters from a
common father, but from different mothers.
- Brothers and sisters related to the intestate by full-blood, exclude those related by
half-blood, if the nature of the relationship is the same in every other respect. A full-
blooded sister would exclude half-blooded brothers and sisters
• Uterine blood: two or more children come from same mother, but have different fathers, it is
called a uterine blood relationship.

W, a Hindu woman, gets married to H, Hindu Male, a daughter D is born to her. H dies and W gets
married to H1 and gives birth to son S. S is D’s uterine brother.

Rights of brothers and sisters when the parents had void or voidable marriage: an offspring of the
marriage is legitimate but is deemed to be only related to the parents. The child will not inherit from
other natural born, legitimate child of a valid marriage of the father.
 • Brothers and sisters inherit with the son of a predeceased daughter of a predeceased son of the
intestate, and each of the heirs will share equally.
• When Hindu male dies and is survived by his sister and the sons of predeceased brother, the
sister would inherit the property excluding the later

Grandchildren of predeceased daughter

• All of the grandchildren were earlier placed on entry 3 of the Class II category
• They need to be related to the intestate through legitimate birth or adoption – have to be
offspring of valid marriage
• Three grandchildren: daughter’s son’s daughter, daughter’s daughter’s son, daughter’s
daughter’s daughter.

Children of brothers and sisters

• All children of brothers and sisters, in absence of their parents inherit under Entry IV of Class
II category and share equally irrespective of their sex or sex of parents
• Children of uterine brother and sisters are excluded
• If children of both full blooded and half blooded brothers and sisters are present, the former
would exclude the latter
• Son of predeceased sister is Class II heir and will be preferred to the grandson of the uncle of
the intestate.

Paternal grandparents

• Father’s father and the father’s mother

• Do not include step-grandparents or grandparents where either intestate or his father was an
illegitimate child or offspring of void or voidable marriage.
• Remarriage, unchastity of paternal grandmother is of any consequence

Father’s widow and brother’s widow

• Father’s widow: widow of intestate’s deceased father who was not the mother of the intestate.
Mother is class I heir.
• The widow must have been in a valid marriage to the father
• The marriage must have ended by the death of the father and not divorce.
• For father’s widow, marital status at the time of the opening of the succession was immaterial.
• If she remarried before the death of the intestate, she would cease to be the widow of the
father and would lose inheritance rights. Her unchastity is immaterial
• Brother’s widow: inherits with the father’s widow and takes an equal share with her.
 • In order to be competent for inheritance, the marriage needs to be valid and not void or
annulled voidable.
• Should have been terminated by death and not divorce
• She should not have remarried before the death of the intestate
• Brother’s widow includes widow of full blood, half blood brother (former excludes later) but
not uterine brother.

Father’s brother and sister

• Full blood or half blood brother and sister of the father of the intestate, will inherit the
property in absence of near relations.
• Rule of full-blood excluding half-blood applies here
• Uterine paternal uncle and aunt are totally excluded
• Share of each uncle and aunt are equal

Maternal grandparents

• Placed at an inferior position in comparison to paternal grandparents.

• Related to the intestate by legitimate blood and neither their, or their daughter’s marriage
should be void or annulled voidable. They inherit equally
• Do not include step-grandparents

Maternal uncles and aunts

• Inherit only when none of the class I or class II heirs are present
Class III heirs (Agnates)

• An agnate is a person who is related to the intestate only through male relatives.
• The sex of the line of the relatives and not the sex of the actual heir is material.
• Agnates inherit only when none of the Class I or Class II heirs are present.
• No limitation on the number of degrees an agnate may be removed from the instate

SSS is a descendant agnate

FFF is an ascendant agnate

BrSS is a collateral agnate

Rule of preference among General Agnates

• each generation is called a degree

• the starting or the first degree is the intestate himself
• degrees of ascent mean in the ancestral or the upwards direction
• degrees of descent mean in the descendant or downward direction
• when the heir has both ascent and descent degrees they have to be seen separately and not
cumulatively
• an agnate who has only descent degrees is preferred over the one who has only ascent degrees
• where two agnates have ascent and descent degrees, the one with fewer ascent degrees will be
preferred.

Cognates

• A cognate is a relative who was related to the intestate through a chain of mixed relatives.
• It is not a whole male chain as even if one single female intervenes, it becomes a cognatic
chain.

• Cognates inherit when none of the Class I or Class II heirs or the entire category of agnates
are present.

FULL OWNERSHIP IN PROPERTY FOR HINDU FEMALES

Prior to the passing of the Hindu Women’s Right to Property Act, 1937 the property of a woman
comprised of ‘stridhan’ and ‘non-stridhan’. The woman had larger powers of disposal over her
stridhana and had limited interest in non-stridhan. Stridhan comprised of property received by way of
gifts and presents given to a woman by her parents, husbands, close relations of parents or husband at
the time of marriage or on other occasions. Non-stridhan comprised what she inherited from a male or
a female relation. There was a further sub-category of stridhan – saudayika and non-saudayika with
regard to the powers of the woman to alienate it. Saudayika, that included gifts, presents or property
received by way of bequests from parents and other relations, conferred on her an absolute power of
alienation, irrespective of her marital status. But over the non-saudayika stridhan, that included
property received from non-relations, her powers of alienation were curtailed after marriage, as the
husband’s consent was necessary before she could part with it by way of a transfer. She was a limited
owner of the non-stridhan. This limitation was with respect to the power of disposal and the inability
to transmit the estate to her own heirs.

Post the Hindu Women’s Right to Property Act, 1937, the share of the dead husband, in the presence
of a widow, did no go by survivorship to the surviving coparceners but went to the widow so that she
could maintain herself with the share.

Hindu Women’s Right to Property Act, 1937

• Prospective in application and applied to property other than agricultural property and
impartible estates
• Applied to Hindus governed by Mitakshara, Dayabhaga and customary laws of Punjab.
• The interest that devolved on the Hindu widow under the provisions of Section 3 was of
limited interest known as women’s estate but she still had the same right of claiming partition
as a male owner.

Primary changes

• The act governed the devolution of the property of a Male Hindu and not the property of a
female. The property of a female Hindu devolved according to the rules of Hindu law.
• Earlier, the widow only succeeded on failure of the male issue. But according to the
provisions of the Act, she inherited with him and took a share equal to his.
• The widow also had a right to claim a partition but she got a limited interest and if she died
without a partition, the doctrine of survivorship applied and her interest was taken by the
surviving coparceners.

Succession to a Women’s estate: when she inherited the separate property of her husband, on her
death, the property would go to her husband’s heirs and when she inherited an undivided share in
the Mitakshara coparcenary, on her death, the share would go to the surviving coparceners under
the doctrine of survivorship.

Although she had a right to claim partition and, in that respect, acquired the status of a
coparcener, she was not a coparcener. She had a fluctuating interest till it was ascertained by her
 asking for partition and if she died without seeking a partition, then the interest would be taken by
survivorship by the surviving coparceners. She took the share by inheritance and not survivorship
because by being a female and non-coparcener, she was not entitled to the benefit of the doctrine
of survivorship.

Post the passing of the Act, when the maintenance rights were perceived to be ‘in lieu of
maintenance’, the right to claim maintenance was automatically extinguished as both could not
co-exist.

Conversion of limited ownership to full ownership under HSA, 196

Section 14 of the HAS converted the limited ownership into a full ownership. Presently, she
inherits the separate property of the husband as a primary heir and the quantum and nature of
share are identical to that of the son. Her presence defeats the application of the doctrine of
survivorship over the undivided share of the husband and prevents it from going to the surviving
coparceners.

Immaterial if the acquisition of the property happened before the passing of the Act. Where the
widow inherited the property of her deceased husband or acquired the same interest as her
husband, and was in actual or constructive possession of it the Act converted the limited estate
into an absolute estate.

Two conditions needed to be satisfied before the limited estate became an absolute estate:

1. She possessed the property as a limited owner

2. She had not remarried

Possession:

• The term possessed by indicates a possession in law – valid title of the property and includes
a situation where person is possessed of the property in law without having actual or
constructive possession
• Gummalapura Taggina v. Setra Veeravva – on death of husband, possession of the
property was taken by his widow in 1917 and it continued till 1954. Some collaterals, later
forcibly dispossessed her of the property. A suit for reclaiming partition was filed by the
widow in 1956. The court held that her limited rights over the property had matured into
absolute rights. The collaterals had actual physical possession but in the capacity of
trespassers and the right to possession in law was with the widow
• if the widow loses possession by a transfer before the commencement of the Act, then her
ownership will not mature into an absolute one. The alienee could not get an absolute title
because she had a limited right at the time of the transfer of the property.
 • The Supreme Court held that if, prior to 1956, a Hindu widow alienated her limited estate
beyond permissible limits, she could not acquire a full estate in it, as she was ‘stripped of her
rights in it’. With respect to the rights of the alienee (the daughter in this case), it observed
that the position of an alienee was very vulnerable and precarious. It could be called a
temporary and transitory ownership.
• The limited estate would not mature into an absolute estate on three cases: (1) when she dies
before the Act is passed, (2) where she relinquishes her estate or transfers it in favour of
another person and parts with the possession, (3) when she remarries. Upon her remarriage,
the limited estate terminates as if she had died.
• The rights and interests that a widow had in deceased husband’s property will upon her
remarriage, cease and determine as if she had then died and the heirs of the husband will
succeed to the property and the rights. A widow remarrying will be presumed to be dead as
far as her rights in the husband’s property are concerned and the reversioner’s right to succeed
will be immediately activated.

Constitutional validity of S14(1)

• the constitutional validity of S14 was challenged in the Supreme Court on the ground of
hostile discrimination against men, as it only benefitted one section of the community –
woman.
• Was dismissed, men suck.

Acquisition of property

• The property that a woman may acquire before or after the commencement of the Act, would
be held by her as a full owner and not a limited owner. ‘property’ would include property that
is acquired in any manner whatsoever.

By inheritance

• A Hindu woman inherited a limited interest in the property of her deceased husband under the
Hindu Widows’ right to property Act.
• Such limited interest that she would inherit would be converted into absolute interests by
virtue of this Act.

By device

• A Hindu woman might have received a limited interest in the property given to her under a
will or settlement. Such a property would also mature into an absolute ownership.
• However, the Supreme Court has held that where the widow receives a life estate from the
husband under a Will, with the vested remainder going to the husband’s collaterals, it will not
 convert into an absolute estate, even if she was in its possession in 1956, and upon her death
post-1956, the collaterals, and not her own heirs, will be entitled to receive the property.

By partition

• In some situations, a Hindu female was entitled to receive a share in the partition. If a
partition took place and they were not given their shares, they had a right to approach the
court and enforce their claims.
• The nature of the interest they took was that of a limited interest and was terminable on death
or remarriage.
• Post 1956, any property she received at a partition, was held by her as an absolute owner even
if the property was given with some restrictions.

In lieu of maintenance

• The 1937 Act gave her a share in her husband’s property, in lieu of maintenance but it
reverted back to the husband’s heirs upon her death.
• Whatever share or property she received in lieu of maintenance became her absolute property
after 1956.
• Where a widow had no pre-existing right of maintenance, but was given the right of
possession of the property for her lifetime, out of love and affection, such a right would not
mature into an absolute interest.

By gift

• Property that a female may receive as gift from her friends or relatives would be held by her
as an absolute owner. Prior to 1956, she held the property as stridhan and had absolute tights
except coverture.

By personal skill or exertion

• Any property acquired by a woman by her skill or exertion, in the nature of salary or share in
profits was always exclusive property and continues to be so. She is now free to dispose of
her property at her pleasure.

Purchase and prescription

• A property purchased by a woman with the help of her own funds, would be an absolute
property with full powers of disposal over it

Any other property acquired in another manner

• Any property acquired in any other manner will be held by the woman as an absolute owner.
Limited estate conferred by will or award

• Section 14(1) does not come in his way if he wants to create a life interest in favour of a
woman. Such life interest or a limited ownership will not mature into an absolute ownership.
• Where a female receives a limited interest in a property under a decree of a court or an award
or under a gift or will executed by an individual, this limited interest would not be affected by
S14(1).
• The Andhra Pradesh High Court has given three propositions for the application of s. 14(2),
viz:
(i) the female gets an interest from an instrument or document that is written;
(ii) it is this document or instrument that creates a right for the first time, in her favour; and
(iii) the language of the document embodies the terms that prescribe a limited estate to her.
• The court observed that s. 14 (2) has carved out a completely different field and for its
application three conditions must be satisfied which are as follows:
(i) That the property must have been acquired by way of gift, will, instrument, decree, order
of the court or by way of award;
(ii) That any of these documents executed in favour of a Hindu female must prescribe a
restricted estate in such property; and
(iii) That the instrument must create or confer a new right, title or interest on the Hindu
female and not merely recognize or give effect to a pre-existing right which the female Hindu
already possessed.

SUCCESSION TO PROPERTY OF FEMALE INTESTATE

S15 is the first statutory enactment that deals with succession to the property of Hindu female
intestate. Before 1956, property went according to rules provided under uncodified law. Her limited
interest also terminated in the event of her death.

Hindu Law of inheritance (amendment) Act, 1929 and Hindu women’s right to property Act, 1937.

S15 applies to:

1. property that a woman holds as an absolute owner irrespective of the mode of acquisition

2. property would include undivided interest in Mitakshara coparcenary.

Scheme of succession

The Act provides for 3 different sets of heirs depending on the source of acquisition of property of a
female available for succession. The property is divided into:

- Property that a Hindu female inherited from parents

 - Property that a female Hindu inherited from her husband or her father-in-law
- Any other property or general property

Succession to general property

• Property of a woman other than what was inherited by her from her parents, husband or her
father-in-law. It will also cover properties that were self-acquisitions or were received through
any other source.

General rules of succession

The property of a female dying intestate shall devolve according to the rules set out in S16 -

• Firstly, upon her sons and daughters (including children of predeceased son and daughter) and
husband
• Secondly, upon the heirs of her husband
• Thirdly, upon the mother father
• Fourthly, upon the heirs of the father,
• Lastly, upon the heirs of the mother

The former excludes the later. So long as there is a heir in the prior category, the property will
not go to the next category.

(a)

Son and daughter: the terms ‘son’ and ‘daughter’ include woman’s biological or adopted, legitimate
or even illegitimate children but not a step son or step daughter. The martial status of mother and
validity of marriage is not important. The son and daughter inherit together and take property in equal
shares.

Children of predeceased son and daughter – son or daughter dies during the lifetime of their
mother, leaving behind a child, such a child would be the primary heir and would inherit along with
the living son and daughter. However, in order to be eligible for inheritance, the grandchildren would
have to be legitimate offspring of their parents and be born out of a valid marriage. The deceased
parents should also be legitimate and born out of a valid marriage.

Children of a predeceased son or daughter would be disqualified from inheriting the property of the
intestate, if before their birth, their parent had ceased to be a Hindu by converting to another religion.

Husband: spouse of a valid marriage which came to an end with the death of the intestate. Does not
include divorced husband but would include husband who deserted the intestate or was deserted by
her or living apart under a decree of judicial separation. If void marriage, does not inherit, but if
marriage is voidable, even if there is petition for decree of nullity, he will inherit.
Widow of male descendants and not a primary heir

Rules for calculation of shares

Rules of devolution of property:

- Each surviving son and daughter take one share

- Where a son or daughter had predeceased the intestate, but is survived by a child,
his/her branch has to be allotted a share
- Such surviving grandchild take the share of the deceased parent and if there are more
than one, they will divide the property amongst themselves.
(b) Heirs of husband

This group is preferred to the intestate’s own parents who inherit only when none of the heirs are
present. They inherit in absence of children, grandchildren and husband of deceased.

Date of opening of succession is not the date of death of husband but that of the deceased. We have to
presume that on the date of the intestate, it was her husband who died and the property belonged to
him.

When a woman marries more than once, the expression ‘heirs of husband’ refers to the heirs of her
last husband.

(c) Mother and father

Mother and father of intestate are placed on equal footing and inherit together when none of the
children, grandchildren, widower, husband’s heirs is present. It would include biological and adoptive
parents. When marriage is void or annulled voidable marriage, the parents would inherit. However,
when intestate was illegitimate, only mother will inherit. This category would not include stepmother
or stepfather.

(d) Heirs of the father

On failure of heirs in first 3 clauses, property will go to heirs of the father of the intestate. It will be
presumed that the property belonged to father and it was he who died on the date of her death. Would
include her brothers and sisters, including half-blood brothers and sisters, and their descendants,
grandparents and other natal relations

(e) Heirs of the mother

When none of the heirs in other clauses are present, the property would go to the heirs of the mother
of the intestate. This category would include uterine brother or sister of the deceased and their
descendants.
Property inherited from father

S15(2) – property inherited by a female from her parents, in absence of her issue or their children, will
revert back to father’s heirs. Property that was received through a will would be considered to be
general property.

In such cases, it is presumed that upon the death of the woman, her father had died and his heirs will
be ascertained accordingly. If woman inherits from mother and dies issueless, the property would be
taken by the father, and only in his absence, the property would go to his heirs.

Property inherited from husband or father-in-law

A woman inherits property of her husband on his death as his widow. She also inherits from father-in-
law as widow of predeceased son (as long as she does not remarry). Where she inherits property of
husband or father-in-law and dies issueless, the property reverts back to her husband’s heirs from
whom she inherited the property.

If she remarried and died leaving behind issues from her second husband, her children and second
husband would succeed to the property. But if she dies issueless, the second husband would not get
anything.

Similarly, where a woman inherited property from her second husband and died leaving behind a son
from the first husband, the son would take the property. Similarly, where a Hindu widow inherited a
limited estate from her husband and died after 1956, when it had matured into an absolute estate, it
was held that the sister of her deceased husband would take the property.

Case Law: Dhanistha Kalita v. Ramakanta Kalita

Gauhati HC ruled that for purposes of inheriting property of mother, which was inherited from her
deceased husband, ‘son and daughter’ would mean son and daughter of the husband from whose
father she inherited property. Son of previous marriage was not entitled to property and would be
excluded from inheritance.

Preventing the property from going by doctrine of escheat

Property inherited by female from her husband or father-in-law reverts back to husband’s heirs in
absence of her issue and does not go to any other heir. Where the property is to revert to the heirs of
the husband, but no such heir is present, rather an heir specified in the general category is present,
should the property go to the government under the application of doctrine of escheat, i.e., failure of
heirs, or should the property go to any other heir of the deceased woman? The apex court has held that
in such cases the property would be treated as the general property.

Special rules for Females governed by Marumakkatayam and Aliyasantana Laws

The heirs of a female intestate are similar, but the order of preference is different:

The property of female is categorized into 2 instead of 3:

- General property of a woman

- Property inherited from her husband and father-in-law

For succession to general property, heirs are classified as:

- Sons and daughters (including children of predeceased son or daughter) and their
mother
- Father and husband
- Heirs of mother
- Heirs of father
- Heirs of husband

The mother is preferred to both father and husband.

DEVOLUTION OF INTEREST IN MITAKSHARA COPARCENARY PROPERTY

The concept of notional partition has been said to be a compromise between two extreme positions –
total abolition of the joint family and coparcenary system and its retention in the form as was
applicable at that time. It enabled the legislature to allow the continuation of the Mitakshara
coparcenary and at the same time, it enabled the near female and cognate relations to participate in the
ownership of the coparcenary property, in certain contingencies.

Prior to 2005

The HAS, 1956 retained the concept of Mitakshara coparcenary and a right by birth. The traditional
concept of joint family, and preferential rights to the son, remained intact and got a statutory
recognition as well.

The act recognised the application of the doctrine of survivorship in case a Hindu male dies as a
member of a Mitakshara coparcenary and it was this statutory recognition of coparcenary that made
the study of the whole of the classical Hindu law of joint family, joint family property, its
alienation, partition and of the theory of pious obligation, relevant.

Survivorship replaced by testamentary and intestate succession

The proviso to S6 of the Act made a departure from the doctrine of survivorship. The proviso has 4
parts:

- A Hindu male dies as an undivided member of a Mitakshara coparcenary

- He had an interest in the undivided coparcenary property
 - The deceased leaves behind him, a class I female heir or class I male heir claiming
through a female
- His undivided interest will devolve through testamentary or intestate succession and
not by doctrine of survivorship.

NOTIONAL PARTITION

For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have been allotted to him if a partition of
the property had taken place immediately before his death, irrespective of whether he was
entitled to claim partition or not.

This proviso incorporates the concept of legal or fictional partition. This is also known as statutory or
deemed partition. The undivided interest that the deceased has left behind will be divided by effecting
a partition. This partition has actually not taken place.

The legal presumption is that he died after asking for partition. The law would act like the coparcener,
before his death, demanded a partition and severance of status will be presumed to have taken place.

Heirs, presence of whom will alter the devolution

• For the application of notional partition, the first condition is that the deceased had left behind
him, either a class I heir or a male class I heir claiming through a female heir.
• In class I category, there are a total of 12 heirs out of which 8 are female. The presence of any
of these 8 female heirs will defeat the application doctrine of survivorship. The ninth heir is
the son of a predeceased daughter.
• These nine heirs are: the mother, widow, daughter, son of a predeceased daughter, daughter of
a predeceased daughter, daughter of a predeceased son, widow of a predeceased son,
widow of a predeceased son of a predeceased son and daughter of a predeceased son
of a predeceased son.

Scope of notional partition

This legal presumption of a deemed partition prior to the death of an undivided coparcener, is also
called a notional partition, a legal partition or a fictional partition. The basic purpose of the
inclusion of notional partition was to give a better deal to the near female heirs and cognates of the
intestate and to prevent the passing of the property through doctrine of survivorship.

Two stages:

1. To calculate his interest in the coparcenary property, we have to effect a partition in

accordance with the rules of Hindu law
 2. Then, his interest so calculated, would constitute separate property. The law of inheritance
would apply to the separate share and it will be distributed among the class I heirs (in absence
of a will).

Extent of notional partition

Narrow Approach: the presumption that a partition had taken place is for a specific purpose only, and
that is to find the interest of the deceased coparcener which is available for succession. Once that is
calculated, there is not need to give shares to others in the family. The basis for this approach is in
accordance with the general rules of partition – that if a partition takes place at the instance of one
member, there is no presumption that the rest of the family is also divided.

Wider Approach: when share of deceased is ascertained, the consequences of a real partition follow
and if there are female members present who would have been entitled to get a share if an actual
partition took place, must be given a share, irrespective of the fact that the partition was only effected
to find the share of the deceased coparcener.

Two deviations contemplated by the legislature:

1. There was no partition but it is presumed that the deceased coparcener died after asking for
partition
2. He might not be capable of asking for partition, but a partition has to be effected as if he is
entitled and also that he has claimed a partition

Sushila Bai v. Narayan Rao

The court held that where there are only two coparceners present, the death of one, would render the
other one as a SSC. There is no possibility of a partition taking place in the future, and if the mother
had not been granted a share during notional partition, then there is a chance she would not get it.

Position in South India

Where a coparcener dies as an undivided member of a Mitakshara coparcenary, leaving behind a

class-I female heir or the son of his predeceased daughter, it will be presumed that before his death a
partition had been effected in the family and his share was demarcated. While calculating his share,
the female members who would have been entitled to get their share if an actual partition had taken
place would receive their share, since the consequences of a notional partition and those of an actual
partition are the same. The share of the deceased coparcener will go by intestate or testamentary
succession. The death of one coparcener would not mean a disruption of the entire joint family as the
other coparceners can maintain a joint status.

State amendments
S6 was amended in 4 states: AP, TN, Maharashtra and Karnataka. In these states, daughters in a joint
family, who were unmarried on the date of passing of the act, were made coparceners in the same way
as the son.

In states where the Act is amended, the daughter also gets a share, provided that the death has
occurred after the amendment has come into force. The amendments also provide that if at the time of
partition, such a daughter is dead, but has left behind a child, the share that would have been allotted
to the daughter would be given to the child. If there is no child, but there is a grandchild of a
predeceased daughter, the share that would have gone to the daughter, would be given to the
grandchild of the predeceased daughter.

Rules for calculation of shares in Mitakshara coparcenary property after effecting notional
partition where a coparcener dies leaving behind an undivided interest in Mitakshara
coparcenary

Factors that need to be remembered:

1. The coparcener dies as an undivided member in coparcenary

2. His death occurs after 1956 – after passing of HSA
3. He is survived by class I female heir or son of predeceased daughter
4. The share of the deceased is to be calculated after effecting a partition
5. Such shares are to be distributed in accordance with provisions of intestate succession
6. The states where daughters are coparceners, they have to be allotted a share at the time of
effecting a notional partition

Separated Son

One coparcener after claiming partition goes out of the family and becomes a separate member while
the rest of the family members remain a part of the joint family. On the death of any of the
coparceners in the joint family, neither the separated member nor any of his heirs would be entitled to
claim any share at the time of effecting a notional partition.

Separate Son’s inheritance to self-acquisitions of father

Separated son or his heirs do not get a share at the time of notional partition nor do they get a share
out of the deceased coparceners share, however, they are not prohibited from inheriting other self-
acquisitions of the father under S8.

The separate property of a Hindu male goes in equal shares to both a divided and undivided son.

Position in case SSC

When the father, becomes the sole surviving coparcener because of a partition effected in the family,
he will become a separate member with regards to the other coparceners.

On the death of the sole surviving coparcener, the share he obtained at the time of the partition will go
by intestate succession under S8 and the divided sons will inherit the property along with the mother
and daughter in equal shares. The concept of notional partition would not be applicable.

Factors that have to be taken into consideration while effecting a distribution of share of
coparcener dying as an undivided member of Mitakshara coparcenary

1. Coparcener dies as a member of the Mitakshara coparcenary

2. His death occurs after 9th September 2005
3. His share is to be calculated after effecting a notional partition
4. If he has made a will capable of taking effect in law with respect to this share, such a share
will go as per instructions in will
5. In absence of will, the share will be distributed in accordance to provisions of intestate
succession
6. If there is a daughter in the family, she must be allotted a share as she is a coparcener in the
same manner as a son

DEVOLUTION OF COPARCENARY INTEREST HELD BY A FEMALE COPARCENER

For the application of notional partition in the case of the death of a female coparcener, the following
conditions must be satisfied:

1. such a female, at the time of her death, was an undivided coparcener, having an interest in the
coparcenary property
2. her death occurred after the amending act had been passed
3. she is survived by a child or child of predeceased child

when a female coparcener dies, it is the presence of her son and daughter and son and daughter of
predeceased son and daughter – 6 heirs who will change the devolution of the undivided interest.

GENERAL PRINCIPLES OF INHERITANCE

1. Full blood preferred to half blood

The heirs of intestate who are related to him by full blood are preferred to those related by half blood,
if they stand at the same degree of propinquity. Relationship by adoption is also called a full-blooded
relationship. S18 expressly provides this preference of full blood to half blood.

2. Mode of succession of two or more heirs

If two or more heirs succeed together to the property of the intestate, they shall take the property
 - Save as otherwise expressly provided in the Act, per capita and not per stripes
- As tenants in common and not as joint tenants

3. Rights of child in womb

A child who was in the womb of the mother at the time of the death of the intestate and who was
subsequently born alive, shall have the same right to the intestate as if they were born before the death
of the intestate. This position protects the rights of a posthumous child:

- The child should be in the womb of the mother at the time of the death of the intestate
- It should be born alive
4. Presumption in case of simultaneous deaths

when two persons died in circumstances such that it is uncertain of who survived whom, it is
presumed, until contrary is proven, that the younger survived the earlier.

5. Preferential right to acquire property in certain cases

Requirements for exercising right of pre-emption:

- The property inherited is an interest in an immovable property

- Property is inherited by two or more heirs specific in the class I category
- One of such heirs proposes to sell or transfer it
- The consideration is based on mutual agreement and in absence of agreement, it can
be decided by the court

in such a case, the other heirs will have a preferential right to purchase the interest themselves. If two
or more are keen to purchase, the one who offers the highest consideration will be preferred.

Right of heirs to acquire the property of a co-heir is called the right of pre-emption.

An alienation by a co-heir in violation of this rule, is not void but voidable at the instance of the non-
alienating co-heirs, and they can enforce their rights of pre-emption by filing a suit to this effect in a
court of law. This is not applicable in cases where the property is capable of being partition and of
enjoyment separately.

DISQUALIFICATIONS

- Under HSA, 1956

1. Remarriage of widow
2. Murderer
MUSLIM LAW

The two basic beliefs of Muslims are the existence and oneness of God and in the truth of the
Prophet’s mission. They believe that there is only one god and that Holy Prophet was the last Prophet
sent by God on earth. Muslims also believe that the Quran is the only revealed book of Allah, and that
there is a day of judgment (Qayamat), followed by life after death (Akhirat).

After the death of the Prophet, the question arose as to who would be his successor. He did not leave
behind an heir and the closest to him. There was a disagreement on who would succeed him and two
groups came up – one group which favoured the nomination of Ali as the rightful successor and the
other that advocated for a leader chosen through election. The former group were called Shias and the
one who favoured an election were called Sunnis.

Sources of Muslim Law

1. Quran: The Quran is divine and supreme authority for the Muslims. It was revealed by God
to Prophet through the agency of angel Gabriel. The Quran is not a book of law but is more
concerned with the conduct of life. It distinguishes false from the truth and right from wrong.
It is divided into ‘Sura’ and each has a separate sub-heading and is composed of 6000 verses.
Around 200 verses deal with legal principles relating to marriage, matrimonial remedies,
maintenance, acknowledgement of paternity, transfer of property, gifts, Wills, pre-emption,
inheritance, etc., and the subject on which it is most detailed is, succession. It abrogated some
objectionable customs like female infanticide etc. women were given inheritance rights and
were considered independent individuals who were capable of holding property and disposing
it like full owners.
2. The Sunnat: sunna means the model behaviour of the Prophet and is a narration of what the
Prophet did or allowed. These are called ‘Hadis’ or traditions. All that he gave in words in
response to questions and problems are called ‘Sunnat-ul-qaul’. What he allowed to be done
without actually saying it in words, was perceived as having his tacit approval. This was
called ‘Sunnat-ul-tuqrir’. To stop this forgery, steps had been taken earlier, to collect the
Sunnat. At the special request of Umar, Abu, in ‘Shuhab az Zuhri’, made the first known
collection of the traditions.
3. Ijma: third source of law. It is the consensus of opinion of companions of Prophet or highly
qualified legal scholars. The ijma derives its authority from Quran and Sunnat and only
supplements them, and therefore, can never amend or modify them. Therefore, three
variations of the Ijma were apparent. On the top was the Ijma of the companions of the
Prophet and at the bottom was the ‘Muqualadoo’, i.e., learned men, not deducing rules, but
merely applying them. In between the two, was the consensus of opinion of the highly
qualified legal scholars or jurists.
 4. Qiyas: reasoning by analogy or deductions from above sources of law with the exercise of
reason. Used when a factual scenario is not covered in the other sources. It is more in the
nature of application of law.

In order to bring uniformity, the conflicting customs were abrogated and were made subject to
Muslim law and the Muslim personal law (Shariat Application) Act, 1937.

Schools of Muslim Law:

Sunnis are divided into 4 sub-schools and Shias are divided into 3 sub-schools.

1. Sunni Schools
- Hanafi Schools
- Maliki Schools
- Shafei School
- Hanbali school
2. Shia Schools
- Imamate school
- Zaidya school
- Ismailya School
- Ithna Ashari

Application of Muslim Law

Muslim law applies to a born Muslim as well as to a convert. Where both the parents are Muslims, the
child born to them will be a Muslim.18 Where only one parent, is a Muslim, the presumption will that
the child is a Muslim, unless the contrary can be proved.

Effect of form of marriage on laws of succession

The Muslim law of succession applies to the property of a Muslim. However, if a Muslim marries
under the Special Marriage Act, 1954, or gets his marriage registered under that Act, the law of
succession changes. The succession of property of these parties would be governed by Indian
Succession Act, 1925 and not by Muslim law of inheritance.

GIFTS

The transfer of property Act, 18882 deals with transfer of property by way of gifts but does not apply
to gifts made by Muslims. Gifts can be made with a specific purpose or simply out of love and
affection.

Gift: transfer of certain existing movable or immovable property made voluntarily and without
consideration by one person called the donor to another called the donee and accepted by on or behalf
of the done, followed by the immediate delivery of possession of the subject matter of the gift. Gift is
a transfer of property. All the rights of the donor vest in the transferee with the help of this
conveyance. The donor gets the title, a right to possess and enjoy the property and a right to sell it at
his pleasure if he is otherwise competent to do it.

Hiba is defined as ‘the donation of a thing from which the donee may derive a benefit’

Requirements of valid gift

1. Parties to the gift

- The donor
- The donee
2. Subject matter of the gift
3. Essential ingredients of making of gift:
- Declaration (ijab) by the donor
- Acceptance (qubool) by the donee
- Immediate delivery of possession (Qabza)

Donor

• Muslim who is major and of sound mind, that is, competent to contract, can make a gift of
property.
• No discrimination on grounds of sex and a female is also competent to make a gift, irrespective of
marital status
• Donor must have ownership of property.
• If donor has bona fide intention to make a gift of his property, financial obligations would not
stand in the way of making a valid gift.

Donee

• Donee can be a minor or even a person of unsound mind

• Only requirement is that he should be a juristic person, capable of holding a property.
• Donee can be of any sex, age and of any religion
• Gift to unborn person is void.
• A valid gift can be made to child in the womb of mother, provided that it is born within 6 months
of the date of making the gift. The child is treated as a separate entity
• Religion of the donee is immaterial

Subject-matter of gift
• The subject-matter of gift can be property that is capable of being owned. It can be movable as
well as immovable property, ancestral or self-acquired, corporeal or even incorporeal property.
• Corporeal property – actual physical existence and is tangible
• In cases where actual physical possession cannot be delivered, the gift can be completed by an
overt act, that shows clearly an intention of the donor to divest himself completely of the
ownership and vest it in the donee. Any property that can be described as ‘mal’ can be the subject
matter of gift.
• Subject-matter of the gift must be in existence on the date of making the gift. If the subject-matter
will come into existence on a future date, the gift would be void.
• A gift of spes successions would be void but a gift of specific shares in rents that would arise in
future is valid as they are ascertainable in specific property.
• Gift of existing property but operative on a future date would be void. Immediate delivery of
possession is one of the essential conditions for validity.
• Muslim law makes a distinction between the gift of a corpus and that of a usufruct. A corpus is
the thing itself. It denotes transfer of absolute ownership, but usufruct refers to the produce of the
thing, or the income or profits of the thing (corpus).
• But, where the gift is of the usufruct only and not of the corpus, it is not absolute, but limited in
point of time and enjoyment. It is personal in character and is neither transferable nor heritable.
• Gift of life interest is valid and the donee does not get an absolute title. the right is not heritable or
transferable but personal in character and lasts during the lifetime of the donee
• Where the donor does not have the actual physical possession of the property as the same is held
by another person adversely to the donor, the donor cannot make a valid gift of it unless:
• (i) he actually obtains and delivers possession to the donee; a mere declaration is not sufficient, or
(ii) does all that can be done by him to complete the gift thereby enabling the donee to be in a
position, from where he can obtain possession.
• Right of mortgagor to repay the loan and redeem the mortgaged property is called equity of
redemption. This equity if redemption is an interest in the immovable property and is transferable.
A gift of equity of redemption by the donor is valid if the possession of the mortgaged property is
with him and he completes the gift by delivery of possession of the mortgaged property

Essential ingredients of a valid gift

• Three essentials of valid gift:

- Declaration by the donor
- Acceptance by donee
- Delivery of possession of property
donor makes offer (ijab), donee must accept (qubool) and if he is incompetent, then the acceptance
must be given by competent person on his behalf, the acceptance must be followed by immediate
delivery of possession of property (qabza).

Actual delivery of possession:

- Vacate the possession along with all his belongings that would signify a
relinquishment of total control, and
- Put the donor in possession

Exceptions to the rule of delivery of physical possession:

- Where the gift is by the husband to the wife or vice versa

- Where the gift is by the father to the minor child or by guardian to the ward
- Where the donor and the donee reside in the same property which is the subject
matter of the gift.

Formalities for effecting valid gift

Gift can be either oral or in writing. Even if it fulfils all essentials – declaration, valid acceptance
followed by immediate delivery of possession then it is still valid even though it is not in writing.

A gift of immovable property made by a non-Muslim under the Transfer of Property Act, 1882, must
be in writing, properly attested by at least two competent witnesses and registered

Though there is no requirement under Muslim law for a gift to be in writing yet according to the
judicial opinion, if the gift deed was executed either prior to or simultaneously with it than in order to
be valid it must be registered in accordance with the provisions of the Transfer of Property Act, 1882.

Mushaa

Undivided share in property. The term property also includes an undivided share in a property which
can be the subject matter of a valid gift. There are two situations that are possible:

- Undivided share can be in a property which is capable of division without effecting

its value or character substantially
- Undivided share is in a property which is incapable of being divided.

Where undivided share is incapable of division: where share is not capable of division, the property
can be validly gifted without effecting a division of the property. Donor should clearly demonstrate
intention to put donee in possession of property
Where property is capable of division: the property should be delivered and possession should be
handed over to the donee. Even if it is not partitioned and delivered, the delivery is merely irregular
and not void and can be validated later.

Under Shia law, gift of undivided share capable of division is valid. Under Sunni law, the gift of
Mushaa in property capable of division is valid from date of inception, despite the fact that no
division is effected in certain situations:

These are as follows: (a) where the gift is made by one co-heir to another co-heir; (b) where the gift is
of a share in a Zamindari or Taluka; (c) where the gift is of a share in freehold property in a large
commercial town; (d) where the gift is of shares in a land company.

Subsequent validity of a gift of Mushaa

Where the property is capable of division, but is not divided and is gifted the gift is valid under Shia
law and merely irregular under Sunni law where it can be validated by effecting a division subsequent
to the making of the gift.

Where a donor makes a gift of the property that is capable of division to two or more donees together,
without specifying their shares and without dividing the property, the gift will be irregular under
Sunni law and can be validated by a subsequent partition and occupation of their separate shares

Contingent gifts: a gift must be certain and should take effect immediately. If the gift is to take effect
on the happening of a contingency which may or may not happen, it would be invalid.

Conditional gifts: where donor makes the gift subject to some condition or limitation, which restricts
or limits the enjoyment of the rights by the owner (donee), the gift is called a conditional gift. If the
condition is inconsistent with the incidence of absolute ownership, the condition will be void but gift
would be valid. No condition that restricts or prevents the donee from alienating the property, or
restricting his manner of enjoyment of the property will be valid.

Shia law: the grant of a life estate in corpus is recognized under Shia law. The condition of reversion
is operative and will bind the donee.

Conditions which are in the nature of a trust are valid if the donor does not keep any rights with him
over the corpus and the condition is in the nature of a direction with respect to the utilisation of the
usufruct in favour of specific individuals.

Similarly, where the donor puts a condition, that during his lifetime, the donee has to pay his debts out
of the usufruct of the property, the condition is valid,28119 but if he puts a condition that should the
need arise, the donee will have to return part of the property back to the donor, so that he can repay
his debts, the condition is void, as the donor is still keeping a dominion over the gifted property
(corpus).

Gifts with exchange

These are called hiba-bil-iwaz and have two basic essentials:

- Bona fide and voluntary intention on the part of the donor to make the gift and divest
himself of the complete rights over the property and vest it in the donee
- Payment consideration by the donee

Consideration must be actually and bona fide paid. Considerations of love and affection or
consideration of donee being a relative is not a valid consideration.

Hiba-bil-iwaz has all the elements of contract of sale as parties must be competent to contract, there
should be an offer and acceptance and presence of consideration is a must.

Consideration can be in cash or kind, but there is a requirement in law that it should be equivalent to
the market value of the object of the gift.

There is a donor-donee relationship. The donor makes the gift and the consideration comes from the
donee, but the primary subject matter of the gift comes from the donor. Two distinct and independent
gifts, where the parties are the same, but the donor in one is the donee in the other.

However, where the stipulation in the gift is fulfilled by the donee, it takes the character of a Hiba-ba-
shartul-iwaz. This stipulation or promise that the donee is supposed to perform, till its
performance makes the gift revocable, but once it is performed, the gift becomes irrevocable.

Revocation of gifts

A gift would be irrevocable in the following cases:

1. When either the donor or the donee is dead

2. Where the donor and the donee are husband and wife
3. Where the donor and the donee are within prohibited degrees of relationship
4. Where the donor has received a return for the gift
5. Where the subject matter of the gift has been lost, destroyed or converted in such a manner
that it has lost its identity
6. Where the subject matter has passed out of the hands of the donee by a transfer such as by
way of sale or gift
7. Where the gift has substantially increased in value
8. Where the gift was for obtaining religious merit
Shia Law: gift to any blood relation is irrevocable. However, when the donor and the donee are
husband and wife, the gift is revocable.

Mode of revocation: mere declaration or cancellation of gift deed will not lead to a revocation unless
it is consented by the donee and a decree by court is essential for valid revocation. Under shia law,
mere declaration of revocation would be enough.

Only a person whose rights are affected by a gift can challenge the validity of such a gift.

WILLS

Will is an instrument with the help of which an owner of a property makes a disposition that is to take
effect after his death, which is revocable.

A Will under the Indian Succession Act, 1925, which is the general law of testamentary succession
for Indians is defined as:

Will is 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.

Will takes effect from the date of the death of the testator. The legatee cannot interfere with the
testator’s right to enjoyment including the disposal till he is alive.

When a Muslim gets married under the SMA either to a Muslim or to a non-Muslim he along with his
spouse, and the children born of this marriage would not be governed by the Muslim Law but will be
governed by the provisions of the Indian Succession Act.

Object of Will under Muslim law:

There is a permissibility of making a will to the extent of only 1/3 of the property.

1. It prevents a person from interfering and defeating the claims of the lawful heirs
2. By permitting the testator to bequeath 1/3 of the property, he is empowered to settle just
claims of people who are not in the category of heirs.

However, if there is a custom to the contrary which limits the choice of the testator in choosing a
beneficiary with respect to this one-third property, such a customary practice would be upheld by the
law.

Exception to the 1/3 rule

This rule that a testamentary disposition should not exceed 1/3 of the property has 2 exceptions:

1. When the testator does not have any heir. An heirless person can thus make a bequest of his
entire property
 2. Where the heirs themselves, consent to the bequest in excess of 1/3.

Formalities: No formalities for making a will. There is neither any format laid down or requirement
of it being in writing. A will can also be oral. Does not need to be signed or attested or registered. It
does not require a probate. Where the Will is reduced to writing it is called a ‘Wasiyatnama’.
Although no formalities are required to be complied with, a Will in order to be valid and effective
must display a bona fide intention on part of the testator to bequeath his property.

In case it is oral, the intention of the testator should be ascertained and the burden to prove an oral will
is heavier.

Essentials of valid will

Following requirements need to be satisfied:

1. Competency of the testator

2. Competency of the legatee
3. Valid subject matter of the bequest
4. The bequest to be within permissible limits

Competency of the testator:

• Testator should be of sound mind – if person of sound mind makes a will and subsequently goes
insane it will be invalid provided the insanity is permanent.
• Should be major – Under Muslim law, person becomes major at the age of 15 years. Post Indian
Majority act, this has become 18. A Muslim need to be 18 years old before he can make a valid
will.

Will of person who commits suicide: Under Shia law, a Will made by a person who commits suicide
or does an act towards commission of suicide is invalid. Under Sunni law, the Will by a person who
commits suicide is valid. Where a person made a Will and then in contemplation of suicide took
poison, the Will was held by the Allahabad High Court as valid.

Competency of legatee:

Legatee must be person competent to hold property. Sex or sect of the beneficiary is immaterial. Even
non-Muslim can be beneficiary to will.

Will in favour of institution is also valid.

Legatee must be in existence on the date of making the will. A child who is in the womb of his mother
is treated as in existence if it is born within 6 months from making of the will under Sunni law and
under 10 months under Shia Law.
When the legatee is responsible for committing murder or causing death of the testator, the will made
in his favour would be invalid under Sunni law (intention/accident is immaterial). Under Shia law,
legatee would be incompetent if the death was caused intentionally.

Bequest to Heir: An heir is a person who is competent to take the property of a deceased on his death
in accordance with the rules of inheritance applicable under the relevant law. The eligibility to
succeed is to be seen at the time of the death of the testator and not at the time of the making of the
Will except in case of primary heirs, who succeed generally speaking without any obstruction.

Under Shia Law, bequest to heir is valid, without the consent of the other heirs provided that it does
not exceed the 1/3 limit. Under Sunni law, a bequest cannot be made to an heir at all, not even to the
extent of one-third of the property except when the other heirs give their consent. Consent must be
given at the time of the operation of the will – after the death of the testator.

Consent of heirs

• Must be of heirs and not presumptive heirs

• Consent may be express or implied
• Consent once given cannot be rescinded
• Consent can be of one heir or all heirs
• Legacy in favour of one heir of the total property

Subject matter of will: testator is competent to make valid will of property that he owns and is
capable of being transferred. Property must be in existence at the time of death.

Alternative bequest: where, in the will, the legacy is given to the beneficiary who is named therein
and an alternative is also provided in the same will, if the primary beneficiary is incompetent, the
bequest would be called an alternative bequest and would be valid.

Conditional bequest: in order to be valid, the grant in the bequeathed property must be complete.
The ownership in the property must carry all basic incidents of ownership. Grant with respect to
corpus of a property must be an absolute grant and therefore no life estate can be created in the or of
the corpus, or the thing or the subject-matter of the grant. If the bequest is subject to a condition that
derogates from the absoluteness of the grant the condition would be void but the bequest would be
valid. Conditions which interfere with absolute ownership would be void, but bequest would be valid

Bequest of life estate: Creating of life estate is not permissible under Sunni law if it is of the corpus
of the property, and the bequest of a life estate in favour of a person would operate as if it is an
absolute grant. Under Shia law however, the bequest of a life estate in favour of one and a vested
remainder to another after his death is valid.
Contingent Bequest: A bequest that is to operate or take effect on the happening of a particular
contingency that may or may not happen, is void and incapable of taking effect in law.

Two types of restrictions on testamentary powers:

1. Restrictions with respect to legatees

2. Restrictions with respect to extent of property

Where the testator makes a bequest in favour of an heir and also a non-heir by the same legacy, in
absence of the consent given to it by the heirs, the legacy will not be invalid in its entirety but will
take effect with respect to non-heirs.

If the bequest is in excess of one-third, and the heirs refuse to give their consent, the totality of the
Will does not become operative or invalid but it abates rateably and is valid to the extent of one-third
of the property.

Sunni Law: The general rule is that a bequest in excess of one-third of the estate of the deceased
would take effect with respect to one-third, with the excess going by inheritance. Where there are
more than one legatee and the property given to them exceeds one-third, the shares of each of the
legatees would be reduced proportionately

Bequest made for pious purposes is valid to the extent of 1/3 of property, both in Sunni and Shia law.

Death of Legatee before the operation of the will

Under Sunni law, if before the will can operate, the legatee dies, the bequest will lapse and the
property bequeathed to him would remain with the testator and on his death will go to his heirs in
absence of any other disposition.

Under Shia law, it will lapse only if the legatee dies without leaving an heir or if testator, after death
of legatee, revokes the will.

Revocation of Will

Express revocation: can be done orally or in writing. Intention to revoke must be clear and
unequivocal. Not necessary that for revoking earlier will, another will must be made.

Implied revocation: will can either be revoked by some conduct of the testator or be rendered
meaningless.

Difference between Sunni and Shia Law

GIFTS MADE DURING MARZ-UL-MAUT

The term ‘marz-ul-maut’ refers to an illness which results in death. It is an illness that causes an
apprehension in the mind of the patient, that he is going to die soon, and he actually dies due to it.

The distinguishing feature of marz-ul-maut is its highly probable character and apprehension and
death ensuing within a very short span of time. Where a disease that is lingering to begin with
becomes grave and reaches a point where imminent death becomes evident to the sufferer and in fact
happens, it would be called marz-ul-maut.

Essential conditions:

1. Proximate danger of death

2. Some degree of subjective apprehension of death in the mind of a sick person
3. Some external indica chief among would be the inability to attend ordinary avocations

There should be an apprehension derived from one’s consciousness as distinguished from an

apprehension caused in the minds of others.

What is required to be proved is whether the gift was made by the ailing person while under the
apprehension of the death and further whether in such ailing, he met his death.
Gift made during Marz-ul-maut: gift made is treated as a combination of gift as well as will. All
three essentials of valid gift must be complied with. In addition to this, it cannot be made of mote than
1/3 of total share unless the heirs give their consent for the validity of the excess bequest after the
death of the donor.

If donor recovers from illness: if the gift is made during apprehension of death, and the donor
recovers from the illness, it would not be called marz-ul-maut but would operated as an ordinary gift.

Reason for combining gift with will: where person makes a gift at the apprehension of death, his
mental faculties and state of mind are not on par with someone who is not under such an
apprehension. The gifts are executed with a sense of urgency or haste are not a result of well-
contemplated actions of reasonable man.

Validity: gift made during marz-ul-maut is subject to strict scrutiny for its validity.

Burden of proof: the initial burden to prove the requirements of marz-ul-maut is on the person who
sets up such a plea as affecting the disposition of a dead person, that can be discharged by the proof of
the facts and circumstances in which such person met his death and the attendant events preceding
and succeeding the disposition itself. Once possibility of apprehension of death is raised, the burden
shifts to the party who takes the disposition or sets up the title.

MUSLIM INHERITANCE

• Male agnates are given more importance and the nearest male agnate succeeded the entire
estate
• Females and cognates were excluded from inheritance
• Succession rights were then extended to all blood relations of the intestate irrespective of their
sex or the sex of the line of relatives through whom they were related to the deceased.
• Blood relatives (females and cognates) who were earlier excluded were called Quranic
sharers.
• The rule is that the newly introduced heirs irrespective of their sex shall take half of the
established heirs.

Sunnis kept the old framework intact like the preference to agnates over cognates etc.

No concept of joint family as a separate entity or distinction between separate property and the joint
family property. Where two sons inherit from father, they take property as tenants-in-common and not
as joint tenants. There is no right by birth in the property.

No concept of trading family.

Single scheme of succession: single scheme of succession irrespective of the sex of the intestate.
Blood relation or consanguinity is the principle on which succession is based and relations introduced
through marriage do not succeed. Women acquires absolute right in property she inherits and has
powers of alienation. The source of acquisition of property of a male as well as a female is of no
consequence here, and a woman’s blood relations are her heirs and the heirs of her husbands are not
given any preference

Heritable property: Not permitted to make a will of more than 1/3 of property without consent of the
heirs, so generally if he makes will, 2/3 will go by intestate succession. Before net assets are
calculated, estate is liable for payment of expenses and liabilities – funeral expenses, unpaid debts etc.
rules of inheritance do not create any distinction between movable and immovable property or
separate and ancestral property.

No right by birth: So long as the father is alive, he enjoys full powers of alienation over the property
inter vivos such as by way of gift or sale etc, and the son has a mere spes successionis, a hope or a
chance to succeed to the property, depending upon two conditions, one that he survives the father and
second that there is property available for succession. Son can’t challenge gift when father is alive on
the grounds that he is future owner of the property, but when father dies, he can challenge the validity
of gift.

Renunciation of right to succeed: chance of inheritance can be transferred or renounced in favour of

anyone. Chance of an heir apparent succeeding to the estate cannot be the subject to a valid transfer.
However, if the expectant heir receives consideration and misleads the owner he can be debarred from
claiming the inheritance at the time when succession opens.

Vested interest upon inheritance: heirs take a vested interest in the estate of the intestate the
moment the succession opens and their ownership in their respective shares is not dependent on its
actual distribution by metes and bounds. Once the estate vests in a person, he can validly transfer or
even renounce the share in favour of anyone.

Grounds for disqualification

• Difference of religion – non-Muslim cannot inherit from a Muslim intestate. A convert who is
a non-Muslim can inherit from a Muslim.
• Homicide – Under Shia law, the disqualification is operative only where death was caused
intentionally.
• Illegitimate child - Where it is born within six months of marriage, it is an illegitimate child
but if there is a confusion with respect to the date or time of Nikah, it can be cleared by an
acknowledgement of paternity by the father. Under IEA, it is the time of birth and not the
time of conception of the child that would decide its legitimacy and the only way in which the
 husband can disclaim paternity is by proving that he had no access to the wife at the time of
conception.
- Under Sunni law, an illegitimate child is deemed to be related to the mother and
inherits from her and her relations and does not inherit from father or his relations.
Under Shia law, an illegitimate child does not inherit from any of the parents.
• Exclusion of daughter – daughter is entitled to succeed to property of parents under Sunni and
Shia law but there are customs in operation which exclude her from inheritance.

LAW OF INHERITANCE – SUNNI LAW

Heirs are divided into 2 categories:

1. Related heirs
- Sharers
- Residuary
- Distant kindred
2. Unrelated heirs
- Successor by contract
- Acknowledged kinsmen
- Universal legatee

Sharers are the heirs who were earlier excluded but were introduced as heirs by the Quranic
revelations. Their shares are fixed. Once the property is distributed among the sharers, and anything is
left, this surplus goes to the next category called residuaries. When there are no residuaries left, the
property passes to the next category which consists of cognates.

General principles

1. Rules of exclusion

Muslim law does not recognise the principle of representation and provides for the rule of nearer
in degree excluding the remoter. This rule is applicable to all categories of heirs. If a person is
related to the deceased through another person, they will be excluded in the presence of the one
through whom they are related.

2. Return (Radd)

If there is no residuary, the residue in presence of the sharers does not pass to the distant kindred
but comes back or returns to the sharers and they are entitled to take it in proportion to their
shares. This coming back of property is called doctrine of return or radd.
This rule is subject to one exception: the surviving spouse is not entitled to take a share from the
radd as long as any other sharer or distant kindred is present.

3. Doctrine of Increase (Aul)

The sharers are entitled to property in fixed shares. It may happen that the sum total of the shares
that sharers are entitled to inherit may exceed unity. In such a case, the shares of each of them are
proportionally reduced.

Sharers

There are 12 sharers, 8 female and 4 males. Though the shares of each is fixed, it may change
again to another fixed share depending on the presence or absence of other heirs. Some of the
sharers can also inherit as residuaries.

Primary heirs: there are 5 primary heirs who if present would not be excluded and would
invariably inherit the property. These are the surviving spouse, son, daughter, mother and father.
The son is a residuary but the rules of inheritance are so made that he would always inherit the
property.

In the absence of primary heirs, their place is taken by their substitutes. These people do not
inherit in presence of primary heirs. All heirs who are excluded by primary heirs are also
excluded by substitutes. These substitutes are, for the father, a true grandfather, for a child, the
child of a son, and for the mother, a true grandmother.

Surviving spouse: share of spouse depends on presence of child or child of a son. Where the
surviving spouse is husband of deceased woman, he takes ¼ of property in presence of child or
child of son, and in their absence, he takes ½. In case man dies, widow takes ¼ of property in
absence of child and 1/8 share in their presence. Where more than one widow is present, all of
them collectively take the share (1/4 or 1/8)

Daughter: daughter inherits as a sharer only in the absence of a son. An only daughter takes ½
share of property and if there are 2 or more daughters, they would take 2/3 of the property
together. In the presence, of son she becomes a residuary and takes a share equal to half of his
share.

Father: father is the primary heir and has a fixed 1/6 share as a sharer which he inherits along
with a child or a child of a son. In their absence, he inherits as a residuary and can take to the
extent of the total property in absence of any other sharer. The presence of father excludes the
brothers and sisters, and a true grandfather from inheriting the property. This exclusion is based
on the principle that where a person is related to the intestate through another person, he is
excluded in presence of the relative, who is the connection.
 Mother: mother’s share varies depending upon the presence or absence of other heirs.

1. Her share is a fixed share (1/6) in presence of a child or child of a son or where there are two
or more brothers or sisters
2. Her share is enhanced to 1/3 in absence of a child or a child of a son and where only one
brother or sister may or may not be present
3. In absence of child or child of son, presence and absence of only one brother or sister, but
presence of the spouse and the father of the deceased. Then the mother takes 1/3 of what
remains after deducting the spouse’s share. The presence of mother excludes true
grandmother from inheriting under the rule of nearer in blood.

True grandfather and True grandmother how high so ever: True grandfather is a male ancestor
between whom and the intestate no female intervenes. A true grandfather can only inherit in the
absence of father or truer grandfather. A true grandfather has a fixed 1/6 share in presence of a child
or the child of a son. But in absence of a father, or a nearer true grandfather, he inherits in absence of
child or child of son.

True grandmother is a female ancestor between whom and the intestate no false grandfather
intervenes. A true grandmother can be maternal or paternal. A maternal true grandmother inherits 1/6
fixed share in absence of the mother and a nearer true grandmother either maternal or paternal. A
paternal true grandmother can inherit a fixed one-sixth (1/6th) share in absence of both the mother and
father and a nearer true grandmother either paternal or maternal and no intermediate true grandfather.
Where two true grandmothers are present, they collectively take one-sixth (1/6th) and divide it equally
amongst them.

Son’s daughter: children of a predecease daughter are distant kindred and can only inherit in the
absence of sharers and residuaries. A son’s daughter inherits as a sharer only in the absence of a son,
daughter or a son’s son. Her share is ½ if she is alone, 2/3 where there are two or more daughters of
the son. If a son’s son is also present, then she inherits as a residuary and takes ½ of what he takes. If
only one daughter of the intestate is alive but no son or son’s son, son’s daughter would take 1/6 of
property.

Son’s son’s daughter: son’s son’s daughter inherits as a sharer in absence of son, daughter, son’s son
or son’s daughter and son’s son’s son. Her share when she is alone is 2/3 and where they are more
than one, they divide equally. With a son’s son’s son, she would become a residuary taking a share of
½ of what his is. In presence of only one daughter or one son’s daughter, son’s son’s daughter
(whether one or more) would take one-sixth (1/6th) of the property.
Uterine brother and sister: share a common mother with deceased but different fathers. The share of
one is 1/6 and if more than one is present, they take 1/6 together. They inherit in absence of child,
child of a son, father or true grandfather.

Sisters: a full sister takes ½ share if she is alone and if there are more than one, they together take 2/3.
She inherits this share in the absence of child, child of a son, father, true grandfather or a full brother.
With a full brother, she becomes a residuary taking ½ of his share. Her presence affects share of
mother.

A consanguine sister is also excluded by a full brother and sister or even a consanguine brother. In
presence of a consanguine brother, she inherits as a residuary and takes ½ of what he takes. Where
there is only one full sister and she inherits as a sharer, the consanguine sister (whether one or more)
would not be excluded in her presence but will take one-sixth (1/6th) (alone or collectively as the case
may be) provided she is otherwise eligible to inherit.

RESIDUARIES

Primarily male agnates of the deceased. Certain females who are sharers can also inherit as residuaries
in some cases. Residuaries take what is left after sharer’s claims are satisfied. If no sharer is present,
entire property is taken by residuaries. The shares of residuaries are not fixed and the quantum is
dependent on the residue left in each case. There are 4 groups of residuaries: descendants, ascendants,
descendants of father and descendants of true grandfather.

Descendants: son and after him son’s son how low so ever. Although son takes as residuary, he will
always inherit.

Son’s son how low so ever: in absence of son, son’s son inherits as a residuary. A lower son’s son
cannot inherit in presence of a higher son’s son. If a daughter and a son’s son are present, daughter
would inherit as a sharer and son’s son as residuary. If only son’s daughter and a son’s son are
present, son’s daughter would become a residuary with him and take half of what he takes.

Ascendant Residuaries

In the presence of child and child of a son, the father inherits as a sharer and takes 1/6 but in their
absence as a residuary. In presence of only daughters or son’s daughters, but no son or son’s son, he
would inherit both as a sharer as well as a residuary. A true grandfather can inherit only in absence of
the father.

Descendants of father:

1. Full brother and with him full sister

2. Consanguine brother
 3. Sons of full and consanguine brother

Descendants of true grandfather

The descendants of the true grandfather in the following order would inherit the residue, if any viz. ,
full paternal uncle, consanguine paternal uncle, full paternal uncle’s son, consanguine paternal uncle’s
son, full paternal uncle’s son’s son, consanguine paternal uncle’s son’s son and so on in the same
order. They would be followed by the male descendants of the remoter true grandfathers.