Uncodified Hindu Law

Aparna Babu George

Assistant Professor,
JGLS
Spring Semester
 Basic features of Hindu Law:

Divine source
Dharma, a continuing concept
 Sources of Hindu Law
Shrutis: These are passed on through oral traditions. The 4 Vedas are examples. Rig Veda is the first
and most important, followed by Sama veda, Yajur Veda and Atharva Veda. They give context by
elaborating on the socio-economic conditions of that time.

They have two parts: Samhita and Brhamana. The latter explain the former.

Smritis: These are written records or manuals with an acknowledged author. They speak of
everything, from how society is to function to governing personal aspects. Manusmriti,
Yajnavalkya Smriti and Narada Smriti are examples.

Commentaries and Digests: They interpret the law laid down in the Vedas and Smritis. There are
multiple interpretations.

Mitakshara and Dayabhaga schools are examples.

Customs: They are the primary sources of law.

Their features are: ancient nature, reasonable, certain, uniform,

observed continuously without a break and not inappropriate to public
policy.
Rules of equity and good conscience: These are modern concepts that
are applied to Hindu Law today. They were applied by British courts.
Legislations: Hindu Succession Act, 1956; Caste Disabilities Removal
Act, 1850.
 Hindu Joint Family: What?
“Hindu Joint Family” comprises of all male members who are linear
descendants of a common male ancestor, along with their mothers,
wives and unmarried daughters.
In Rukmabai v Lala Laxmi Narayan, it was presumed that a family
continues to be a joint family if it is joint in the affairs of food, worship
and estate.
If the women are widowed or are deserted, they can return to their
HJFs. However, their children will continue to inherit from the father’s
HJF.
 How is it formed?

A Hindu Joint Family is created through sapinda-relations. Thus,

people become members of the HJF through birth and not agreement
or consensus. The only exception to this is marriage and adoption.
The HJF does not have a separate legal personality from its members.

In most cases, members collectively hold property. However, the

presence of property is not a prerequisite for the formation of a HJF.
 Features

It begins with the common male ancestor. This is a requirement for its
formation, not for its continuation.
It can continue even if only one male member is present.

It can continue even if there are only female members if they have the
option to add a male member either through adoption or pregnency
(formed before the death of the male heir).
Circumstances one is no longer member of their
HJF:

Married daughters: They join the husband’s HJF.

Person given away in adoption has no right in his biological Hindu

Joint family. He is treated at par with a biological son in his
adopted HJF.
Persons who have converted to another religion are disqualified
from the HJF.. (This position has altered under the Caste Disabilities
Removal, Act)
Caste Disabilities (Removal) Act, 1850

This allowed members of the HJF who had converted to another

religion or had married a non Hindu to enjoy their share of the joint
family property during their lifetime.
They could not bequeath it to their heirs.
 Mitakshara and Dayabhaga
Mitakshara is based on the Yajnavalkya Smriti. Its main feature is that the son has
the right to inherit at birth.
Dayabhaga was written by Jibutavahana and as per this law the son does not have
the right to inherit while the father is alive.
In Mitakshara, on the death of the co-parcenary his share merges with the surviving
co-parcenaries. Any co-parcener has only limited right to alienate the property.
Dayabhaga allows the father to do what he wants with the property. He is the
absolute owner.
Mitakshara allows for the right to ask for partition at birth. Dayabhaga does not.
While Mitakshara is based on the Doctrine of Survivorship,
Dayabhaga is based on the Doctrine of Death. This means that in
Mitakshara one becomes entitled to property by virtue of being born
into a family while in Dayabhaga the right comes only at the death of
the father/last holder of property.

Mitakshara functions on two important principles: exclusion of the

female and preference of agnates over cognates.
 Co-Parcenary
The system of Co-Parcenary is a smaller institution than HJF as it comprises only of male
members of three degrees, counted from the common male ancestor or the Karta. Thus,
including the Karta it becomes 4 generations.
The important features are: Unity of Possession and Collective Interest.

Collective interest means that since in a Mitakshara set up, males have a right at birth, one’s
share in the property fluctuates with the births and deaths in the family.
Unity of Possession means until a partition is effected everyone in the family owns
everything.
The initial purpose of a co-parcenery was religious. Co Parcenery comprised of persons who
could do funeral rituals at the death of a male ancestor. Later, when the family acquired
property, it became basis for the management of said property also.
A co-parcenary can be formed only if there are at least 2 male
members.
It is limited to members of three generations, counting from the oldest
male member. Including the oldest male member or the Karta, this
comprises of 4 generations.
This is the main feature of a Mitakshara school.
A co-parcener is disqualified when he renounces his religion.

An insane member may not be a member of co-parcenary. But he is

given a share if the property is partitioned. If his mental disease
curable, then he is given share after the cure is facilitated.
 KARTA
The senior, male member of the family becomes the Karta. Usually, this is the father.
It is strongly regulated by seniority.
He is the custodian of the family property.
A junior member of the family can take up this position only if the Karta:
has relqiuished the role;
if he is unavailable;
owing to exceptional circumstances;
If his whereabouts are not known;

He is away in a remote place owing to compelling reasons and will not return within a reasonable time
Since 1985, some states have been allowing unmarried daughters have been allowed to become Karta.
The Karta has no payment for fulfilling his duties in the role of head of
the HJF. His payment can be determined if he is running a business for
the family.
 POWERS/FUNCTIONS

All powerful in family matters: He can decide who lives where and
how the income is to be decided.
His right to alienate property is limited.
He has the right to represent the family.
He can settle family disputes.
ALIENTATION OF PROPERTY
Alienation or transfer of property is a feature of ownership. It can be
sale, mortgage, gift or license.
Since the Karta does not own the entire interest in the property, he
cannot unilaterally alienate the property that belongs to the family. He
requires the consent of all members of the co parcenery.
However, Dharmashastras and other commentaries spell out three
instances when the property can be transferred without waiting for
consent from all:
1) Apatkale
2) Kutubarthe
3) Dharmarthe
The British has identified them as:
1) Legal necessity
2) Benefit to the Estate
3) Performance of religious duties
Legal necessity refers to any need sustained by law.
Its features are:
1) existence of a need or purpose
2) requirement is lawful
3) no alternative financial resource is available
4) course of action taken is what any prudent person will take
Benefit to Estate refers to the following:
1) it can be for a defensive or protective purpose;
2) improvement to the family estate;
3) prudence of the Karta in taking the decision;
4) Sale proceeds and the manner of using it
Performance of Religious Duties: The Dharmashastras require
elaborate religious rituals to be performed.
 Gift to Daughter
Though females have no right to inheritance, they are to be maintained
from the property of the family.
The Dharmashastras also mandate gifts to the daughter when she is
married.
It is a moral obligation under the Shastras. Courts have upheld the
view that daughters are to be given the same.
 Challenge to Alienation
Co-Parceners can challenge an alienation done without their consent,
both before and after such transfer has taken place.
Before the transfer, they can challenge it by asking for a partition of
their share along with their sons (if any).
After the transfer, they can challenge it in court on the ground that it
does not fit in with any of the three grounds specified.
 Onus on Alienee
Where the transfer is challenged, alienee has to prove that the reason
for which he received the property was one of the three above.
The burden is on him as he has benefited, putting the karta and the co-
parceners at a disadvantage. He has to show that he made reasonable
enquiries and that he acted as a prudent person as this property belongs
to many members of the joint family.
He also has to show that a legal necessity (or the other grounds) did
indeed exist and that the family had no alternative means.
WOMEN AS CO-PARCENERS

The legislature in its attempt to deal combat the problem of inequality

within the personal laws, made legislations that would make
succession laws fairer for women.
Each step brought in more status and powers to women.
Hindu Women’s Right to Property, 1937

This Act allowed women to step into the shoes of the deceased
husband and be the holder of his share in the Mitakshara school of
undivided property.
Though, she was not technically seen as a co-parcener, her interest
also fluctuated with deaths and births.
Her ownership over the property was not absolute. At the time of her
death or remarriage, the property devolved back to the co-parceneary
and not to her heirs.
HIND U SUCCESSIO N ACT, 1956 ( before the
2005 amendment)

Before 2005, the HSA allowed for these major changes in succession
laws for Hindus. It said that if a person dies without a Class 1 female
heir, his share remained undivided and went back to the co parcenery.
In the event a Class 1 female heir was left behind, then the deceased
person’s share had to be divided and distributed to all his Class 1 heirs.
Previously, a person could not make a will for his share as his share
kept fluctuating and upon his death it went entirely to the Co-
Parcenary. Now if the deceased person left behind a Class 1 female
heir, his share can go as per his will, thus effectively giving them the
right to execute a will for ancestral shares.
 NOTIONAL PARTITION

An important consequence of these changes was the concept of

Notional Partition.
6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving
members of the coparcenary and not in accordance with this Act: Devolution ol interest In coparcenary property.

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male
relative specified in that class who claims through such female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under
this Act and not by survivorship.

Explanation 1.—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 haw 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.

Explanation 2.—Nothing contained in the proviso to this section shall be construed as enabling a person who has
separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a
shano in the interest referred to therein. I
This meant that if the male co parcener died, his property would
devolve back to the co parcenery. But should he have Class 1 female
heirs, then there is a presumption that his share is partitioned. This is
notional partition.
This share then can devolve upon female heirs or males related to the
co parcener through female heirs, through testament or intestate
succession.
Hindu Succession Act (2005) Amendment
 Substitution of new section for section 6.- For section 6 of the principal Act, the following
section shall be substituted, namely:-' 6. Devolution of interest in coparcenary property.- (1)
On and from the commencement of the Hindu Succession (Amendment) Act, 2005 , in a
Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a
son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a
son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener: Provided that nothing contained in this sub- section
shall affect or invalidate any disposition or alienation including any partition or testamentary
disposition of property which had taken place before the 20th day of December, 2004 .
 Where a Hindu dies after the commencement of the Hindu Succession (Amendment) 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 and,-
(a) the daughter is allotted the same share as is allotted to a son;
(b)the share of the pre- deceased son or a pre- deceased daughter, as they would have got had they been
alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such
pre- deceased daughter; and
(c)the share of the pre- deceased child of a pre- deceased son or of a pre- deceased daughter, as such child
would have got had he or she been alive at the time of the partition, shall be allotted to the child of such
pre- deceased child of the pre- deceased son or a pre- deceased daughter, as the case may be. Explanation.-
For the purposes of this sub- 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.
 Major changes made are:

Concept of Co-parcenary has changed drastically.

Daughter is now a member of two joint families.

Children can be members of father and mother’s joint families.

Females can be karta.
Abolished the doctrine of survivorship
 Two types of partition
De Jure: this type of partition refers to the breaking of community of
interest. It is simple severance
De facto: this type of partition is partition by metes and bounds. Here
both community of interest and unity of possession is broken.
 Features of Partition when the property is
divisible:

Previous enjoyment is irrelevant: This cannot be argued to demand for any part of the
property.
Compulsory Common enjoyment: Some aspects of the property can be used by all
members even after partition. For eg, a well, family temple etc.
Balancing corresponding values of property: It is not required that everyone gets the
same type of property. It can be balanced with different “types” of assets
Principle of Owelty to be applied where balancing values of property does not work.
Here equivalent sum of money is paid in place of a “type” of property.
Sharing by turns: Where the item is of value to the family, it can be shared by the
members. For eg: family idol, painting.
Persons who can ask for a Partition:

Major Co Parcener

Alienee in some cases: Clearing debt is a relevant excuse to alienate

one’s undivided share. If this happens, alienee can ask for the partition
of his debtor’s share.
Minor Co Parcener: Subject to conditions. The court looks at whether
partition is good for the minor or not.
 Involuntary Partition:

Where one renounces one’s religion;

Where one gets married under the Special Marriage Act
 How to effect a Partition:
Formation of an intention to partition;
Declaration of that Intention: this means that other co-parceners should be aware of
then intention to partition.
Communication of it to the Karta or an equivalent person: distinction between Date
of Severance and Date of Calculation of Shares when the co parceners and the Karta
live in different places.
Date of Severance is the date on which the co parcener has made the communication
from his end. That is, the date on which he sends the letter.
Date of Calculation of Shares is the date on which Karta receives said communication.
Any birth, death or alienation that happens in between affect the share of the co parcener.
In uncodified law, the partition is effected by first taking the first two generations that have
male members.
The male heirs in these two generations are first given their shares.

The following women are protected and have to be given shares at par with the men:
Father’s Wife, Widowed Mother and Paternal Grandmother.
Thus, male heirs and the above mentioned women are given their respective shares.

If one of the male heirs is dead at the time of partition, his share is to be kept intact if he has
male heirs in the next generation.
The partition is done per stripes initially when each branch gets a share and then per
capita when each person in the branch gets.
 Reunification/Revocation
Once a partition is effected, it is usually binding on all the parties
concerned.
However, if all members decide through mutual agreement to come back
together, then a reunion is possible.
Similarly, when a co-parcener has made clear his intention to partition,
he cannot withdraw the same owing to a change of mind. If he wants
to withdraw it, it has to be done before it is communicated to the other
members of the family.
If he has filed a suit for partition, it has to be withdrawn before the
summons is sent.
 Partial Partition

With respect to persons: This is when one or a few co partners ask for
a partition.
With respect to property: When shares with respect to some ancestral
property is decided and ascertained.
 Reopening

This can be done only in exceptional circumstances as a partition once

effected is irrevocable.
 Exceptions are:

More property added.

Co parcener fraudulently concealed property

Minor if he was unjustly treated
After -born son if he was not considered
 Commissioner of Income Tax v Gomedalli Lakshmi
Narayan AIR 1935 BO M 4 12

Question: Whether a male and two females can be taxed as HJF or as

an individual?
It refers to Sections 3, 55 and 14(1) of the Income Tax Act, 1921.
The court said that the use of the term “HJF” as opposed to the term
“Co-Parcenary” is deliberate. Given that the former is a wider concept
and includes females, the unit at hand (the current family with a sole
male member) can be treated as one under the Income Tax Act, 1921.
So long as the joint property was used to maintain the women in the
house and generally for the purposes of the HJF, it can be taxed as one
unit.
 Commissioner of Wealth Tax and O rs v Late R
Sridharan and Rosa Sridharan (1976) 4 SCC 489

Mr. Sridharan was in an HJF with his father and brothers. They
partitioned the joint family property.
Mr. Sridharan then married Rosa, a Christian of Austrian descent. They
had a son named Nicolas.
In the years before Nicolas was born, Mr Sridharan declared himself as
an individual and the property was taxed accordingly.
After his son’s birth, he said they had formed a co-parcenery and
wanted to be taxed as an HJF unit.
The tax authorities refused. They said Mr. Sridharan had married under
Special Marriage Act and thus the right legislation that should govern
him in these matters will be the Indian Succession Act, 1925.
Mr. Sridharan went to the High Court that ruled in his favour.
After Mr Sridharan’s death, Rosa approached the tax authorities for the
property to be declared as an HJF for the purposes of filing wealth tax.
This was not accepted yet again.
The High Court allowed.
The matter came to the Supreme Court.
The SC said that the the orthodox idea of “Hindu” has undergone
radical changes. In fact, the term Hindu is fluid enough to
encompass many interpretations to it.
Hindu Marriage Act, Hindu Succession Act and even Mulla in his
work all define the concept of Hindu widely.
In this case, since there was nothing to show that Sridharan had
renounced his religion on his marriage to Rosa or that Nicolas was not
brought up in a Hindu household, the court allowed for the declaration
of HJF.
However, in the process court opened the floodgates for persons who
got married under one statute to argue and persuade the court that
another succession laws (different from the manner in which they were
married) may govern them.
Moro Vishwanath v Ganesh (1873) 10 Bom. 444

The plaintiffs and defendants are descendants of one Udhav, the original acquirer and
common ancestor of the property in dispute. The former is beyond and the latter is within
Udhav Ganesh’s 4th degree.

Plaintiff, the great-grandson of Udhav who was removed more than 4 degrees from Udhav,
demanded the partition of the Joint Family property from Moro (defendant).

The question was whether a person removed over 4 degrees from the original acquirer of
the property could demand partition of the Joint Family Property?
The court held that a partition can be demanded by co-parceners within
4 degrees of the last holder of property.
This right exists irrespective of how remote they are to the original
owner of property (the first forefather who held the property first.).
Thus, the case laid down that it was not the original acquirer of land
but the last possessor of land that was pertinent for membership to co
parcenery.
 Revanasidapa and Anr v Mallikarjun and
Ors(2011)11SCC1

The Defendant in this case had two wives and two children each from
each of his wives.
The plaintiffs in this case was the first wife and her two children who
claimed that she was the legally wedded wife of the defendant. They
asked for partition of the property and separate possession of the
ancestral property.
The defendant contended that the said properties were all self acquired.
He also argued that it was his second marriage that was the legal one
and that he had already given his first wife what she was entitled to.
Trial Court didn’t accept the arguments of the Defendant. It said that
the since the Defendant could not prove that the second wife was his
legally wedded wife, the children born out of that union were
illegitimate and could not inherit anything.
The First Appellate Court, where the matter came up later, reaffirmed
most of what the Trial Court said except on the argument of the
children for which it relied on a Karnataka high Court precedent.
It said children from void/voidable marriages had to be treated at par
with the legitimate ones. And the property partitioned accordingly.
When the matter came to the High Court, it stated that as per S.16(3)
children born out of a void or voidable marriage had a right over the
property of their parents and not to co-parceneary property.
The Supreme Court had to determine if this position was right. It
examined S 16(3) of HMA and distinguished its position from three
important precedents:
 Even before the inclusion of S16(3), a catena of cases decided in various courts had decided that children
from void and voidable marriages had a right in their parents’ property.

However, in the cases of Jinia Keotin & Ors. v. Kumar Sitaram Manjhi & Ors, Bharatha Matha & Anr. v
Vijay Ranganathan and Neelamma v Sarojamma, the court had confined this right to self acquired
property only.

The court in this case differed from that opinion as S 16(3) does not use the term “property” in a qualified
manner. It does not specify what type of property is covered under it.

It said all types of parents’ property can be inherited at the time of death of the parents. This will include
ancestral and self acquired property.

It further said the question can be further investigated by a larger bench.

Mohd Husain Khan v Kishva Nanda Sahai, AIR
1937 PC 233

This case related to what “ancestral property” amounted to.

A man made a will in 1911 leaving all of his estate and property to charitable and religious
organisations. He had strained relations with his son.
However, after he fell ill and his son took care of him, he wrote another will in 1914.
Here, he left the property for his son and family.
The question whether he could have given away the property to charity as it was ancestral property.
However, the said property had been inherited by the man through his maternal grandmother.

The court quoted many texts to come to the conclusion that property inherited from the maternal side
was not considered ancestral. As a result, the man could have done given it away in the manner he
saw fit.
 Arunachala Mudaliar v Mukundanatha
MudaliarAIR 1953 SC 4 95

The appellant in this case had filed a suit against father and brother after
relations had strained between him and them with the advent of the stepmother.
He asks for a partition of the property, house, bank deposit and some jewellery.

Father claims that all of this is his self acquired property. And that the
jewellery does not even belong to him but to the second wife.
Trial court does not accept the father’s contention and asks him to partition
except for the jewellery which the court was convinced belonged to the mother.
High Court also decided similarly.
The question that came up was whether this property was self acquired or not.

Though the father claimed it to be self acquired, he had received it from his father (grandfather of the
appellant) through a will the latter had made.

The court then had to be examine if the property came from a nucleus of funds of a family or if the
grandfather had bought it with his own money. Even if it were proven that it was the latter, the court had to
determine if he converted it into ancestral property when he gave it to his heirs.

In order to determine this, the court looked at the intention of the person who wrote the will. Here two
things were significant: 1) the manner in which he divided belied or contradicted the doctrine of
survivorship and 2) he allowed complete alienation of the property giving absolute ownership.

Both of these factors worked to convince the court that the grandfather had intended to give the property as
self acquired property.
D EV KISHAN V RAM KISHAN AIR 20 0 2 Raj.
370

The Karta in this case had alienated joint family property to conduct
the marriages of his two minor daughters.
He took out a loan from the appellant by mortgaging the properties.
The appellant moved through a sale deed against the Karta and the co-
parceners and claimed it to be “antecedent debt.”
The co parceners refuted their addition to the suit and argued that the
Karta could not have alienated this property.
Karta argued it was a legal necessity.
The court formulated three questions. We look at two of them in detail.
A) Does the marriage of minors amount to a legal necessity?
B) Was the debt the Karta incurred “antecedent debt?”
 First Question:
The court relied on precedents, legislations and tradition to decide this
question in the negative.
It quoted the Child Marriage (Restraint) Act of 1929 and said a
marriage performed in violation of its provisions was opposed to
public policy and did not amount to legal necessity.
Second Question: Antecedent Debt
This is a debt that should be prior in fact and prior in time.
It has two features:
1) it should be antecedent
2) should not be immoral

A father who is also Karta can alienate joint family property to pay off
antecedent debts.
In this case, because the court was not convinced that the debt
incurred was for something legal or moral, the court declined to
consider this debt as Antecedent debt and said the co-parceners
cannot be moved against through the sale deed.
Balmukand v Kamlawati (AIR 1964
SC 1385)
The joint family in this case owned very little property.

The Karta entered into a sale deed with the appellant but refused to
move forward with it. The appellant insitutied specific performance
proceedings against the Karta.
Co parceners were also impleaded.

Karta argued that they had to be as the sale was for the benefit of the
estate.
Benefit to estate is not merely a defensive move. Sometimes the sale of
the property could do more good than harm to the family. This will
depend on the facts of each case.
The court distinguished the facts of this case from precedents such as
Sita Prasad v Ajablal Mander and AT Vasudevan and Ors.
The decision of the court was that the term “ benefit to estate” is a term
to be determined from the facts. In this case, it was decided that there
was no benefit and so co parceners property cannot be proceeded
against.
Nopany Investments v Santokh Singh) , 20 0 7
( 13) JT 4 4 8

It reiterated and applied the principles held in the case of Tribhuvan

Das Haribhai Tamboli v Gujarat Revenue Tribunal that allow a
younger member to become Karta.
f the senior member or the Karta is not available;
i

(ii) where the Karta relinquishes his right expressly or by necessary implication;
(iii)in the absence of the manager in exceptional and extra ordinary circumstances such as
distress or calamity affecting the whole family and for supporting the family;
(iv) in the absence of the father: -
(a) whose whereabouts were not known or
(b)who was away in a remote place due to compelling circumstances and his return within a
reasonable time was unlikely or not anticipated.
 Kakumanu Peda Subayya v Kakumanu
Akkamma and AIR 1968 SC 104 2

This was a suit instituted on behalf of the minor co partner. It was his
allegation that the defendants had acted in a manner that affected his share of
the joint family property.
He claimed that they had alienated property without legal necessity, his
mother was not given the requisite maintenance and that property bought with
joint family funds was not brought for the enjoyment of the joint family.
The defendants claimed that both transactions were not from joint family
funds.
The minor died soon after and his mother decided to continue the suit for him.
One of the questions raised was whether the minor could ask for
partition on the basis of transactions that had happened before his birth.
The court concluded that he was in the womb of the mother at that time.
It was also proven that the defendants had acted in adverse interest to
the interest of the minor and thus the minor could ask for the partition.
The court stressed that the best interest of the minor was not protected
and that the co parceners were using the previous transactions to his
detriment.
Thus, the suit for partition was allowed.
The second question here was whether the minor’s claim for partition will be in abeyance after he
died.
While expressing clear intention to partition by a major co parcerner would be enough to go through
with his partition despite his demise, the question was whether the same applied to a minor.
The court in this case said that when a suit is instituted by a person acting on behalf of the minor,
the court will examine if this is done to the benefit of the minor. If it is so, the suit does not abate
and legal representatives can move ahead with the suit.
Moreover, the minor had a protected female (his widowed mother) dependent on him and thus she
needed to be given a share as well.
Therefore, in this case the mother/legal representative could proceed with the suit even after his
death.
Sushil Kumar v Ram Prasad (1988) 2 SCC 77

The karta in this case entered into a sale deed with a third party. But the
Karta didn’t sell the property.
The Karta was then proceeded against by the third party for specific
performance, the other co parceners objected stating that their share
cannot be proceeded against even though those were part of the sale deed
too.
They also asked for permanent injunction against the alienee so that he
does not move against them.
They also argued that there was no legal necessity in the alienation.
The questions raised were the following:
1) Whether a permanent injunction can be issued?
The court in its order stated that issuing a permanent injunction against
the Karta that fetters his rights over the property would not amount to
good law.
So long as the Karta is able to show a legal necessity or a benefit, he can
alienate property that belong even to the co-parceners.
The alienee has to show there existed these conditions.

Thus, the court concluded that permanent injunction would be a tool in

the hands of co-parceners who may not agree with the Karta’s decisions
and hence cannot be entertained.
Sujata Sharma v Manu Gupta ( 20 16) 226 D LT
647

In the facts of this case, the oldest member of the family was a female.
She staked her claim to be the Karta of the family which was objected
to by senior most male in the family, who was younger than her.
One of the most arguments that was put forth was that Hindu
Succession Act after the 2005 amendment allowed for succession
property to a female and not for management of that property.
The court did not accept any of these arguments.

It said that post 2005, females have the right to become Karta if they
are the most senior most in the family.,
 Namdev Vyankat Ghadge v Chandrakant
Ganpat (2003) 4 SCC 71

The question here was whether a person adopted after the death of sole,
surviving co parcener would have the right to property? Would he divest
the actual heirs of their right to property?
 The main case law that the judgment relied on was Dharma Shamrao
Agalawe v Pandurang Agalawe.

The main provision that influenced the judges here was Section 12 (c)
of the Hindu Adoption and Maintenance Act.

c)the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”
(
This means that after the death of the sole co-parcener, the rights over
the property had devolved upon the his heirs. So they already had
rights over the property.
After the adoption, the adopted son cannot divest these members of the
rights that had come to them.
Therefore, he cannot be given a share in the property as that would
amount to divesting the true heirs of the property which has not been
envisaged by law.
R.Kuppayee v Raja Gounder ( 20 0 4 ) 1SCC 295

The question was whether one could acquire a permanent injunction

against Karta’s decision to alienate property?
The karta had gifted some property to his daughters out of love and
affection.
He later wanted it back and his argument was that it was joint family
property and he could not have given it away. He was forced to give
the gift through fraud and misrepresentation
Courts have time and again made it clear that “reasonable extent” of
property can be given away as gifts to daughters. This is further
impinged on two factors: 1) status of the family 2) total property
owned by the family.
It is for the father to prove that what he gave away was unreasonable
for the court to re-examine the gift. In this case, this was not proved.
Thus, the court concluded the property need not be returned by the
daughters.
Shreya Vidyarthi v Ashok Vidyarthi AIR 20 16 SC
139

Hari Shankar Vidyarthi in 1937, married Savitri Vidyarthi, the mother of the parties in the
present matter. Hari Shankar Vidyarthi then in 1942 married to Rama Vidyarthi. Out of the
second wedlock, Srilekha Vidyarthi and Madhulekha Vidyarthi (defendants 1 and 2 in Suit
No. 630 of 1978) were born. The appellant-eighth defendant Shreya Vidyarthi is the adopted
daughter of Srilekha Vidyarthi (since deceased). After the death of Hari Shankar Vidyarthi,
the second wife who was taking care of the whole family which was living jointly was also
receiving allowances and monthly maintenance from Trusts and Insurance Policy with the
second wife being the nominee in the same. Then Rama Vidyarthi bought some property, out
of those funds, which was in question in the present matter.
 Court firstly considered the valid claim of the policy money for which it referred to the
interpretation of nominee under Life Insurance Company which was discussed in the case of
Smt. Sarbati Devi & Anr. vs. Smt. Usha Devi 1984 (1) SCC 424. In the case which dealt with a
similar issue of interest over the insurance money between the nominee and the heirs, wherein
it was held that nomination in case of insurance only indicates the authorised hands which are
to receive the amount, after the payment of which the insurer gets validly discharged of its
liability under the said policy and it doesn’t talk about the rightful claimant of the money. The
amount further can be claimed by the heirs of the assured as applicable in the given case in
accordance with the law of succession or any other law in force.
Over the issue of Rama Vidyarthi being the Karta of the HUF, the court in the first instance
ruled out any merit in the right of woman as a coparcener after the death of the husband.
Thereby the court distinguished between the two terms Karta and Manager where latter
must be understood as denoting a role different from that of the former and therefore the
case of a woman being the Karta is not possible in this case.
Although the court considered a situation where the husband has died and the eldest
coparcener i.e. the son is still minor. Such situation where the condition of the family being
the Hindu Undivided Family is not in dispute then for the period between the coparcener
being minor to being major, the eldest female may become the manager of the family for
that time period
Kesharbai v Tarabai Prabhakarrao(2014) 4 SCC
707

The question that came up here is whether partition, partial or

complete takes away the presumption of jointness of the HUF.
The court held that the burden of proof that certain property has been
excluded from the partition (thus making it partial) will be on the party
that alleges it.
The court held that since presumption is always in favour of a joint
family, if someone alleges the contrary, they have to prove it.
It is the party that alleges a state of affairs that will need to prove it.
Cases including Addgadda Raghavamma and Addagadda Chechamma
reiterates this.