Final Fam Law Answers

Surrogacy
QUESTION 1. NEED OF A LEGISLATION IN INDIA FOR SURROGACY
The concept of surrogacy entails a legally supported arrangement where a woman, the
surrogate mother, agrees to bear a child for another person/persons, who will be the parent of
the child after birth. Initially, an arrangement of this nature is sort to when a person is unable
to get pregnant because of medical impossibility or there are major pregnancy risks. Though
now, the people seek and wish to have the ability to seek an arrangement of surrogacy not
based on need but on personal choice. Not only limited to the latter but surrogacy in India
faces a lot of risks being an ungoverned practice and is in dire need for proper Legislation.
It is of great importance that Government of India acknowledges the surging need for
surrogacy since India has often been termed as the ‘surrogacy capital of the world’. Prior to
2008, surrogacy (essentially commercial) was being briskly carried out in India without any
efforts by the Government to set up a statutory regulatory mechanism. The Indian Council for
Medical Research (ICMR) formulated certain Guidelines in 2005. However, these Guidelines
did not have any statutory basis and surrogacy continued to remain an unchartered territory in
the Indian legal landscape.
The turning point came in the year 2008 when the Supreme Court was called upon to deal
with a case revolving around surrogacy. The case Baby Manji Yamda v. Union of India
merely pertained to obtaining travel documents for a baby with Japanese parents conceived
and born in India through commercial surrogacy. Though the issue of the legality of
commercial surrogacy under Indian law was not raised, the Supreme Court made an
observation that commercial surrogacy is legal in India.
In the case of Jan Balaz v. Anand Municipality and Ors., it may be significant to note that
surrogacy agreement was entered in the name of intending father and the second respondent,
surrogate mother whose name is mentioned as the wife of intending father which led to
vexatious legal issues in the issue of birth certificate for the surrogate child. However, the
common truth in both the cases surrogacy agreement was entered into whose sole purpose of
the agreement is to ensure hand over of the surrogate child to the intending couple in return
for a fixed payment of money and that the surrogate child would derive all inheritance of a
child of biological parents from the intending parent”.
The timing of the judgment coincided with the formulation of the Assisted Reproductive
Technology (Regulation) Bill, 2008. Unfortunately, no steps were taken to table the Bill of
2008 before Parliament. This prompted the Law Commission to suo moto take up the issue of
surrogacy for research. The exercise culminated in its 228th Report submitted in August 2009
where the Law Commission mooted the proposal for a revamped legislation to regulate the
process of surrogacy in India.
Acting upon the recommendation of the Law Commission, an improved Assisted

Reproductive Technology (Regulation) Bill was prepared. After several modifications, the
Assisted Reproductive Technology (Regulation) Bill, 2014 came into being. However, this
Bill met with the same fate as the Bill of 2008 and did not see the light of day. Meanwhile,
the Surrogacy (Regulation) Bill, 2016 was conceived. The Bill differed from the Bill of 2014
in many aspects.
There was a dire need of a better regulation after the case of P.Geetha vs The Kerala
Livestock Development where the Apex Court contended that since the biological mother of a
surrogate child does not go through the gestational period, she is not entitled to maternity
leave, along with the maternity benefits.
In 2019, the Surrogacy (Regulation) Bill was passed which had some noteworthy factors
though cannot be considered as an inclusive regulative legislation since it misses out many
other important aspects. The major development is the complete embargo on commercial
surrogacy. The Bill also provides prohibition on foreign nationals from availing surrogacy
services. Another striking feature is that surrogacy is sought to be restricted to a married
couple to the exclusion of unmarried/ single persons and persons in live-in relationships.
Surrogacy in India has a root cause problem which plagues the practice; commercial
surrogacy.
The Statement of Objects and Reasons accompanying the Bill of 2019 majorly focus on and
the legislation aims to curb the unethical practices surrounding commercial surrogacy
including the exploitation of surrogate mothers. The latter points out that the recommendation
of the Law Commission to ban commercial surrogacy has been implemented and the Bill of
2019 removes the rights provided in the Bills of 2008 and 2014 which permitted commercial
surrogacy.
The definition of the term ‘commercial surrogacy’ has been purposely kept extremely wide to
encompass all possible methods. Additional layers of safety mechanism have also been put
into place by requiring the surrogate mother to be a ‘close relative’ of the couple and
restricting a woman’s participation in the surrogacy process as once in a lifetime measure. By
restricting surrogacy in India to ‘altruistic surrogacy’ i.e., surrogacy without extending any
benefits, the Bill of 2019 strives to bring surrogacy law in India at par with developed nations
such as the UK and Canada which also prohibit commercial surrogacy.
Foreign nationals have majorly benefitted from the surrogacy in India. India has provided an
unregulated cheaper alternative to other nations of the West coupled with proper medical
attention and infrastructure. The Bill of 2008 permitted a foreign couple to seek surrogacy
services in India. This was overturned in the Bill of 2014 restricting surrogacy to Indian
nationals, PIOs, and NRIs. Excluding foreign nationals from the purview of surrogacy
services in India through the Bill of 2019 is a step in the right direction. This development
comes in the wake of serious allegations of misdoings, exploitation, and irregularities
reported in surrogacy cases involving foreign nationals. It is also a logical consequence
arising out of the ban on commercial surrogacy envisaged by the Bill of 2019.
Although, the Bill provides us with good measures in terms of banning commercial
surrogacy, restricting surrogacy to a married couple seriously impinges upon the rights of
single persons, LGBT persons, and persons who are in live-in relationships. The primary
objective of the Bill of 2019 is to prevent unethical practices arising out of surrogacy services
in India. Allowing surrogacy rights to a married couple to the exclusion of all others bears no
nexus whatsoever this object. Therefore, such a provision cannot stand the test of
constitutional validity. Moreover, the term ‘close relative’ which the surrogate mother has to
be is not defined in the Bill of 2019. One of the challenges that a couple is bound to face is to
identify and then convince a ‘close relative’ to act as a surrogate mother. This will increase
the zone of consideration and decrease the hardship for a couple to find a surrogate mother.
The need of the hour is a holistic and well-rounded legislation regulating surrogacy which
will stand the test of time and constitutionality and ultimately serve the rightful purpose of
not violating or excluding rights of any person.
QUESTION 2. LEGAL AND ETHICAL ASPECTS OF SURROGACY
– Legal and ethical aspects of surrogacy are as follows;

There are four types of surrogacy practice prevailing in India:
 Traditional/Natural/Partial surrogacy: It is also known as the “Straight Method”.
This method requires the surrogate mother to get pregnant through natural means.
However, at the birth of the child, she is required to renounce all rights over the child
and hand it over to the couple seeking surrogacy, who shall rear it as their own.
 Gestational surrogacy: It is also known as the “Host method”. In this method, the
surrogate mother is not the biological mother of the child. She is merely the
gestational carrier of the child. The child is conceived through egg donation.
 Altruistic surrogacy: Where the surrogate mother receives no financial rewards for
her pregnancy or the relinquishment of the child to the genetic parents except
necessary medical expenses.
 Commercial surrogacy: Where the surrogate mother is paid over and above the
necessary medical expenses.
From an ethical perspective, surrogacy is the union of science, society, services and
person that make it a reality. Surrogacy leads to a win-win situation for both the infertile
couple and the surrogate mother. The infertile couple is able to fulfill their most important
desire and the surrogate mother receives the suitable reward. To give a womb for rent
means to nurture the fertilized egg of another couple in your womb and give birth to the
child with a specific intention, the intention here being either money, or service, or
because of altruistic reasons.
Surrogacy is a social act of highest level of service which is scientific and brims with
goodwill. A person's opinion based on a lack of information should not harm others. Like
medicine is prescribed for treatment of a disorder, in the same way surrogacy is also a
method of treatment. In was held in the case of K.Kalaiselvi vs Chennai Port Trust that
“In some cases surrogacy is the only available option for parents who wish to have a child
that is biologically related to them”.
The majority of the Indian society considered surrogate mother as an amalgam of religion,
culture and science with following noble services:
(i) She shows a strong inclination to society by doing something novel,
(ii) She abolishes the stigma of infertility from the society,
(iii) She fulfils her duty by doing something worthwhile for the society, and
(iv) She is an example of a model woman in society.
Legal Aspect
As per the proposed draft Assisted Reproductive Technology (Regulation) Bill, 2016 the
surrogacy and related terms are defined in the following ways:
(I) Surrogacy means an arrangement in which a woman agrees to a pregnancy,
achieved through assisted reproductive technology, in which neither of the
gametes belong to her or her husband, with the intention to carry it to term and
hand over the child to the person or persons for whom she is acting as a surrogate;
(II) Surrogate mother means a woman who agrees to have an embryo generated from
the sperm of a man who is not her husband and the oocyte of another woman,
implanted in her to carry the pregnancy to full term and deliver the child to its
biological parents; and
(III) Surrogacy agreement means a contract between the persons availing of assisted
reproductive technology and the surrogate mother
The Law Commission of India submitted the 228th report on Assisted Reproductive
Technology procedures discussing the importance and need for surrogacy, and also the steps
taken to control surrogacy arrangements. The following observations had been made by the
Law Commission:
 Surrogacy arrangement will continue to be governed by contract amongst parties,

which will contain all the terms requiring consent of surrogate mother to bear child,
agreement of her husband and other family members for the same, medical
procedures of artificial insemination, reimbursement of all reasonable expenses for
carrying child to full term, willingness to hand over the child born to the
commissioning parent(s), etc. But such an arrangement should not be for commercial
purposes.
 A surrogacy arrangement should provide for financial support for surrogate child in
the event of death of the commissioning couple or individual before delivery of the
child, or divorce between the intended parents and subsequent willingness of none to
take delivery of the child.
 A surrogacy contract should necessarily take care of life insurance cover for surrogate
mother.
 One of the intended parents should be a donor as well, because the bond of love and
affection with a child primarily emanates from biological relationship. Also, the
chances of various kinds of child-abuse, which have been noticed in cases of
adoptions, will be reduced. In case the intended parent is single, he or she should be a
donor to be able to have a surrogate child. Otherwise, adoption is the way to have a
child which is resorted to if biological (natural) parents and adoptive parents are
different.
 Legislation itself should recognize a surrogate child to be the legitimate child of the
commissioning parent(s) without there being any need for adoption or even
declaration of guardian.
 The birth certificate of the surrogate child should contain the name(s) of the
commissioning parent(s) only.
 Right to privacy of donor as well as surrogate mother should be protected.
 Sex-selective surrogacy should be prohibited.
 Cases of abortion should be governed by the Medical Termination of Pregnancy Act
1971 only.
Features of The Surrogacy (Regulation) Bill, 2019

The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending
couple with the intention to hand over the child after the birth to the intending couple.
1. Purposes for which surrogacy is permitted: Surrogacy is permitted when it is:

a) for intending couples who suffer from proven infertility;
b) altruistic;
c) not for commercial purposes;
d) not for producing children for sale, prostitution or other forms of exploitation; and
e) for any condition or disease specified through regulations.
2. Eligibility criteria for intending couple: The intending couple should have a
‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate
authority.
3. Eligibility criteria for surrogate mother: To obtain a certificate of eligibility from

the appropriate authority, the surrogate mother has to be:
a) a close relative of the intending couple;
b) a married woman having a child of her own;
c) 25 to 35 years old;
d) a surrogate only once in her lifetime; and
e) possess a certificate of medical and psychological fitness for surrogacy. Further,
the surrogate mother cannot provide her own gametes for surrogacy.
4. Appropriate authority: The central and state governments shall appoint one or more
appropriate authorities within 90 days of the Bill becoming an Act.
5. Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy
related procedures unless they are registered by the appropriate authority. Clinics
must apply for registration within a period of 60 days from the date of appointment of
the appropriate authority.
6. Offences and penalties: The offences under the Bill include:
a) undertaking or advertising commercial surrogacy;
b) exploiting the surrogate mother;
c) abandoning, exploiting or disowning a surrogate child; and
d) selling or importing human embryo or gametes for surrogacy. The penalty for
such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The
Bill specifies a range of offences and penalties for other contraventions of the
provisions of the Bill
Irrespective of all the possible guidelines provided and steps taken; they haven’t been enough
to find the solution to the largely unregulated and to the root cause of major issues in
surrogacy which is commercial surrogacy. Though, noteworthy changes were brought in by
The Surrogacy (Regulation) Bill of 2019; the latest The Surrogacy (Regulation) Bill of 2020
specifically Therefore, the Bill of 2020 highlights that the legislation aims to curb the
unethical practices of commercial surrogacy including the exploitation of surrogate mothers.
The 2016 Bill provisioned the establishment of national and state-level surrogacy boards.
Further, only heterosexual Indian couples, legally married for five years, could avail
surrogacy, with precondition of proven fertility certified by the recognized medical
practitioner. The latest Bill is incorporated with all the recommendations of the Selection
Committee and the Union Cabinet has approved it as the Surrogacy (Regulation) Bill, 2020.
The Bill, however, comes with a blanket ban on commercial surrogacy and limiting altruistic
surrogacy. It bans on the overseas, foreigners, unmarried couples, single parents, live-in
partners, and gay couples from commissioning surrogacy. The proposed is not legally
unsound but also highly divorced from the Indian social reality.
QUESTION. 3 ‘UCC IS THE ONLY SOLUTION FOR THE GLARING DISCRIMINATION IN THE
PERSONAL LAW’
Article 44 of the Indian Constitution states that “the State shall endeavor to secure for the
citizens a uniform civil code (UCC) throughout the territory of India.” The desirability of a
uniform civil code is consistent with human rights and the principles of equality, fairness and
justice.
The Uniform Civil Code (UCC) means the formulation of one law for India, which would be
applicable to all religious communities in matters such as marriage, divorce, inheritance,
adoption. The code comes under Article 44 of the Constitution, which lays down that the
state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory
of India.
Directive Principles are defined in Article 37, which proclaims:
“The provisions contained in this Part shall not be enforceable by any court, but the
principles therein laid down are nevertheless fundamental in the governance of the country
and it shall be the duty of the State to apply these principles in making laws.”
Which effectively means that the vision of a Uniform Civil Code is enshrined in the Indian
Constitution as a goal towards which the nation should strive, but it isn’t a fundamental right
or a Constitutional guarantee. One can’t approach the court to demand a UCC.
Brief History
 The origin of the UCC dates back to colonial India when the British government
submitted its report in 1835 stressing the need for uniformity in the codification of
Indian law relating to crimes, evidence, and contracts, specifically recommending that
personal laws of Hindus and Muslims be kept outside such codification.
 Increase in legislation dealing with personal issues in the far end of the British rule
forced the government to form the B N Rau Committee to codify Hindu law in 1941.
Based on these recommendations, a bill was then adopted in 1956 as the Hindu
Succession Act to amend and codify the law relating to intestate or unwilled
succession, among Hindus, Buddhists, Jains, and Sikhs. However, there were separate
personal laws for Muslim, Christian and Parsis.
 The judgement in the Mohammad Ahmed Khan v. Shah Bano Begum stated that in
order to bring uniformity the government should move towards a uniform civil code.
By arguing that practices such as triple talaq and polygamy impact adversely on the
right of women to a life of dignity, the main question that arises is whether
constitutional protection given to religious practices should extend even to those that
are not in compliance with fundamental rights.
In the 1995 Sarla Mudgal v. Union of India, The Supreme Court held that adopting
Islam for a second marriage is an abuse of Personal laws. Further said that Hindu
marriage can be dissolved under Hindu Marriage Act, 1955 i.e. mere by converting
itself in to Islam and marry again does not dissolve the marriage under Hindu
Marriage Law and thus will be an offence under Section 494[5] of the Indian Penal
Code. In the same case Justice Kuldip Singh reiterated the need for Parliament to
frame a Uniform Civil Code, which would help the cause of national integration by
removing ideological contradictions and the same suggestion reflects in the verdicts
of other landmark cases such as Jordan Diengdeh v. SS Chopra and John
Vallamattom v. Union of India.
Reasons for UCC to replace personal laws.

A Uniform Civil Code could possibly provide equal status to all citizens irrespective of the
community they belong to. Personal laws of different religions are widely divergent and there
is no consistency in how issues like marriage, succession and adoption are treated for people
belonging to different communities, which clashes with Article 14 of the Constitution, which
guarantees equality before the law.
 Reforms to personal laws have also been inconsistent. For example, multiple
amendments have been brought to Hindu personal laws, while Muslim law has seen
fewer changes.
 This becomes evident in examples such as Muslim men being allowed to marry
multiple wives, but women being forbidden from having multiple husbands.
 In another example, even after the 2005 amendment to the Hindu Succession Act,
women are still considered part of their husband's family after marriage. So, in case a
Hindu widow dies without any heirs or will, her property will automatically go to her
husband's family. Men (fathers) are also treated as ‘natural guardians’ and are given
preference under the Hindu Minority and Guardianship Act. A UCC could lead to
consistency and gender equality when it comes to personal laws, and usher in some
much-needed reform.
Following are the reasons why Uniform Civil Code is the only solution for the glaring
discrimination in personal laws;
a) Protection to Vulnerable Section of Society: The UCC aims to provide protection to
vulnerable sections as envisaged by Ambedkar including women and religious
minorities, while also promoting nationalistic fervour through unity.
b) Simplification of Laws: The code will simplify the complex laws around marriage
ceremonies, inheritance, succession, adoptions making them one for all. The same
civil law will then be applicable to all citizens irrespective of their faith.
When enacted the code will work to simplify laws that are segregated at present on
the basis of religious beliefs like the Hindu code bill, Sharia law, and others.
c) Adhering to Ideal of Secularism: Secularism is the objective enshrined in the
Preamble, a secular republic needs a common law for all citizens rather than
differentiated rules based on religious practices.
d) Gender Justice: India has separate sets of personal laws for each religion governing
marriages, divorce, succession, adoption and maintenance.
However, the rights of women are usually limited under religious law, be it Hindu or
Muslim. For example, Triple talaq, Dowry, etc.
If a uniform civil code is enacted, all personal laws will cease to exist. It will do away
with gender biases in Muslim law, Hindu law and Christian law that have been often
challenged by women on the ground that they violate the right to equality.
e) Inclusion of Same-Sex Marriage: It is impossible to bring in legislation which
provides for legal status to same-sex marriage in India if personal laws dictate the
procedure for a valid marriage since they are not inclusive of the same. If UCC is
brought into existence it can include provisions for same-sex marriage.
Challenges To UCC
 Communal Politics: The demand for a uniform civil code has been framed in the
context of communal politics. A large section of society sees it as majoritarianism
under the garb of social reform.
 Constitutional Hurdle: Article 25 of Indian constitution, that seeks to preserve the
freedom to practice and propagate any religion gets into conflict with the concepts of
equality enshrined under Article 14 of Indian Constitution.
The citizens’ fundamental rights to equality before law and equal protection of the laws
guaranteed by the Constitution call for a similar action in respect of these territories as well.
So does the provision of Article 44 enjoining the state to make endeavors to secure for the
citizens a uniform civil code throughout the territory of India.
QUESTION 5. EXPLAIN DEFINITION OF A WILL AND A CODICIL AS PER ISA. DESCRIBE

PROVISIONS REGARDING THE EXECUTION OF AN UNPRIVILEGED WILL.
– As per Section 2(h) of the Indian Succession Act, 1925, the term ‘Will’ has been
defined as ‘the legal declaration of the intention of a testator with respect to his
property which he desires to be carries into effect after his death’.
– As per Section 2(b) of the Indian Succession Act, 1925, the term ‘Codicil’ has been
defined as ‘an instrument made in relation to a Will, and explaining, altering or
adding to its dispositions, and shall be deemed to form part of the Will’.
WILL
A Will is a testament which is a legal document through which a person (testator, expresses
their wishes as to how their property is to be distributed after his death (disposition of
property owned) and name one or more persons, being the ‘executor’, to manage the estate
until its final distribution. The definition of will is not limited to transfer of real property but
also includes dispositions of personal property. It can very well also create a testamentary
trust that is effective only after the death of the testator.
The Hindu succession act mainly defines a will and it does not contain any provision as to the
form or language of all the materials upon which, or the manner in which, it may be written.
Hence it was held in the case of Masterman v. Maberley and also in the case of Glynn v.
Oglander that the form of a paper does not affect its title to probate a will provided it was the
intention of the deceased that the gifts or disposition made by it should be dependent on his
death.
A will represents a legal document which communicates a person’s final wishes pertaining to
possessions and dependents. It provides a disposition in relation to what is to be done with
the possessions after the death of the testator. For example, whether the testator wished to
leave them to another person or group or donate them to charity and what happens to other
things for which he is responsible, such as custody of dependents and accounts and interest
management.
The provisions provided in Indian Succession Act, 1925 for Will is for the governance when
a Hindu, Buddhist, Sikh or Jain makes a Will whereas Mohammedan (Muslims) don’t fall
under the governance of Indian Succession Act, 1925. They follow Muslim law for the
purpose of disposing their property.
In the case of Rani Purnima Debi v. Kumar Khagendra Narayan Deb, it was observed that if
the dispositions made in the Will might appear to be unnatural, improbable, or unfair in the
light of relevant circumstances; or the Will might otherwise indicate that the said dispositions
might not be the result of the testator’s free Will and mind, even where there were no such
pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the
conscience of the Court.
In the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors., the
Supreme Court had observed that mere exclusion of the natural heirs or giving of lesser share
to them, by itself, will not be considered to be a suspicious circumstance.
CODICIL
(Written extra in case a separate question is asked as a short note)
It is a requirement for a Will to come into effect only after the death of the testator, which
provides for an opportunity to the testator if their intention or desire has brought upon them to
make some changes to the original Will. The testator can revoke, change or alter, remove or
add, anything in the will according to their desire and the document by which a Will can be
altered is known as codicil.
A codicil is executed in the same manner as a Will which entails being in writing and attested
by two or more witnesses. Further, since a codicil is a part of the Will, reference need to be
made to the Will in interpreting the provisions of the Will and vice-versa. A codicil can be as
well altered, added to and further explained by another codicil after proper execution and
attestation by witnesses.
When a testator dies, further procedure entails that both his original will and the codicil are
submitted for confirmation or approval from the court of competent jurisdiction, and the
probate is procured. The probate so obtained forms the basis for administration of the estate
and distribution of the belongings of the testator. Probate means the copy of a Will certified
by a competent court.
If the Will is revoked by the testator himself or declared void by a competent court, then the
codicils attached to it also become void as the addendum itself is a continual document and
hence with a change in the base document the continual document loses relevance.
In the case of In the goods of Heathcote where a woman made a will which was invalid, but
after when afterwards when a widow, she executed upon the same paper as the invalid will a
document which began with the words “this is a codicil to the last Will and testament of me’
and it was proved that she left no other will. the court held that the will was incorporated and
both documents we are therefore admitted to probate.
Utility of Codicil
Altercation to will: Codicil can be used to make changes in the Will. These would include
removal, addition or alteration in assets or the beneficiaries.
For example, a Will may have a mention of a particular piece of land that should be given to
A. If A dies in the lifetime of the testator, then the testator may want to give that piece of land
to B. Such a change in intention can be affected by writing a Codicil.
Removal of ambiguity: Codicils can also be used when you come across any ambiguity in
your Will. Such ambiguity can be done away by providing clarity in a codicil. For example, if
a Will states that the testator’s jewelry be divided among his/her daughter and daughter in
laws, a vague mention may lead to disputes. A codicil can be written, clearly mentioning each
beneficiary’s share and the specific type of jewelry.
Process
1) Though codicil is aimed at effecting minor changes, the same process is followed
when making of a Will. It needs to be written signed and have two or more witnesses’
signatures and have efficient proof for the same though it is not mandatory.
2) Codicil should be an elaborate document and there shouldn’t be any scope for
speculation in the same. It needs to be ensured that the intentions are cleared
mentioned as to why there is a need to make a change via codicil in a will.
3) There is no legal requirement for the Registration of a codicil just as same as a will.
4) Further, all codicils need to be attached along with the Will. A person can choose to
have as many codicils as they wish throughout your lifetime.
5) It is advised to prefer making a new will after revoking the initial will instead of
adding a codicil when the will requires a complete structural change.
To add more: more on codicil

Execution of unprivileged will
The concept of Unprivileged Will has been defined in Section 63 of the Indian Succession
Act, 1925. Unprivileged Will is made by any layman or a general person who is under no
apprehension of death. For better understanding, any person who is not privileged as defined
under Section 66 of the Indian Succession Act, 1925, can be considered as unprivileged and
can make an Unprivileged Will. Section 66 provides that a privileged will can be made only
by a member of the Armed Forces which includes an Airman, Soldier and a mariner.
The person creating the will must be of sound mind (should have “testamentary capacity”)
and should have attained the age of maturity. Otherwise, the will cannot be enforced.
There are certain conditions which must be met with making a valid unprivileged will, and
the execution of the same; they are as follows:
1) Testator shall sign (Section 63 (a))
As per section 63 of the Indian Succession Act, 1925, the testator, or the signee on his
behalf, of the unprivileged will must sign/affix his or her mark on the will.
In case where the representative is signing on behalf of the testator then he requires to do
the latter in front of the testator.
2) No Suspicion (Section 63 (b))
As per unprivileged will section 63, the signature /mark of the creator ( or the signee on
his behalf) must be placed in such a way so that it discloses clear intention of the creator
to give effect to what is written in the will. It should be done in a manner which creates
no doubt in the mind of a layman.
3) Witnesses (Section 63 (c))
Unprivileged will section 63 also specifies that two or more witnesses should attest to the
will. They must have seen the testator (or his authorized signatory) sign/ affix his or her
mark on the will. But, a beneficiary of the will should not be included among the
witnesses.
More if required Unprivileged will
QUESTION 6. TYPES OF WILL (OUT OF SYLLABUS)
Privileged Will
The only persons who can make a privileged Will are the following:
(a) Soldier / airman employed in an expedition or engaged in actual warfare; and
(b) mariner at sea.
Relevant section of Indian Succession Act, 1925 are as follows.
A privileged Will can be in writing or can be oral. A privileged Will written in his own hand
by the Testator need not be signed. A privileged Will signed by the Testator does not need
attestation by witnesses. Privileged Will is a special Will made in extraordinary
circumstances like war or dangerous expedition. Most importantly, Hindus are not permitted
to make privileged Wills since the relevant sections 65 and 66 of Indian Succession Act, 1925
are not listed in Schedule III of the Act. We shall, hence, not devote any attention to this
special category of Wills.
Unprivileged Will
Every person who is not entitled to make a privileged Will can only make an unprivileged
Will. In other words, Hindus can only make unprivileged Wills. Essential procedural
requirements of an unprivileged Will can be summed up as follows:
1) Must be in writing
2) Signed by testator in the presence of witnesses
3) Signed by two or more witnesses in presence of the testator
The most essential requirement for a Will as per Indian law is attestation by two or more
witnesses.
A person can take any plain paper and write the Will in his / her own hand putting down his /
her wishes to paper without any need for assistance from a legal professional. Such a Will in
one’s own handwriting is called Holograph Will. If a Holograph Will is duly attested by
witnesses, there is strong presumption in favor of genuineness of the Will. So, if one has a
clear mind and decent control on language, one should write out the Will in one’s own
handwriting, sign it in front of two witnesses and get the signature of the two witnesses.
It must be stressed that even when a Will is a Holograph Will, the requirements of signature
of the testator and attestation by witnesses must be complied with. Any slip with respect to
either the signature or the attestation will make the Will null and void. Assistance of a legal
professional is not strictly required for making of a Will.
Formal Wills
In every state, you can make a will by typing out your wishes and signing the document
yourself, along with two witnesses. There are very few other requirements to make your will
valid – you just need to be of sound mind and (in most states) at least 18 years old. Other than
that, no official language or legalese is necessary. Just state your wishes clearly. You can use
your formal will to distribute your property, name an executor, name guardians for children,
and forgive debts.
Handwritten Wills
About half of the states recognize handwritten wills, also called holographic wills.
A holographic will must be in your own handwriting, and it doesn’t have to be witnessed.
Although this might sound easier, holographic wills can cause problems after you die because
the court will have to decipher and verify your handwriting.
Oral Wills
Oral wills are valid in just a few states and under very limited circumstances. They usually
require a present of fear of death and they can be used only to distribute personal property.
Oral wills are unusual and uncertain. If you are planning to make a will, do not plan to make
an oral will on your death bed. Instead, take some time to make a formal will.
Joint and Mutual Wills

A joint will distribute the property of two or more people, usually a married couple. Joint
wills determine what will happen to the couple’s property after one spouse dies, and also
what will happen to the property after the second spouse dies. Though it may seem
convenient to a couple to make just one will, joint wills can cause problems for the surviving
spouse because it ties up property and restricts what he or she can do with it, forever.
Mutual wills are two separate wills that are close mirrors of each other. They allow couples to
“leave everything to each other” and any number of other similar wishes, but because each
person has his or her own will, he or she is free to change it as needed after the first spouse
dies.
Conditional and Contingent Will
Conditional wills only go into effect when a certain act or condition happens. This means
something other than the person who wrote the will’s death. This could be a future event not
closely related to writing the will, such as attaining a certain age.
Statutory Wills
A statutory will is one that contains standard terms provided by state law. These state laws
were created to allow people to make their own standard will that will be easily recognized
and probated. Statutory forms can normally made without a lawyer by using the state’s fill in
the blank forms. A few states have mandatory provisions considered part of the statutory will.
In these states, the standard terms are implied, even if they weren’t explicitly written in the
will.
Self-Proving Will
A self-proving will, (or a self-proving affidavit attached to a will), must be notarized, and
certifies that the witnesses and testator properly signed the will. This type of will makes it
easy for the court to accept the document as the true will of the person who has died, serving
as testimony, and avoids the delay and cost of locating witnesses at the time of probate.
Question 7. Essentials of a valid will/essential requirements in formation of will.

Explain the concept of will first.
It was held in the case of Robertson v. Smith that in every case there must be an intention that
the particular document should take effect as a will but no such document will be treated as a
will unless it is executed according to the formalities required for the valid execution of a
well.
For a will to be valid following are the essentials which needs to be followed for its
formation.
It was also observed in the case of King’s Proctor v. Daines that if there is nothing to show
that an instrument is of a testamentary character to take effect with reference to the death of
the person executing it, it cannot be allowed to operate as a will.
1) Testator
There needs to be a testator who wants to write a testimony for devolution of his
property after his death. The said will can be written or oral.
2) Intention
There needs to an intention of the testator to devolve his property after his death. For
a will to be valid, an intention is a must. Intention should be in relation to write down
a testimony for the provision of devolution of his own property after his death.
In the case of Nichollas v. Nichollas it was held that If a document though formally
executed as a will, will not be valid if there is no animus testandi, as if were written in
jest, or without any intention of making a valid will, evidence being admissible to
show what the intention was.
3) Legal Declaration
– The will made with appropriate intentions needs to be a legal declaration to be
considered valid. The need for legal declaration is that it provides the required
legal effect to a piece of paper upon which the testator might have written the
Will for devolution of his property after his death.
– It is also important to point out that he declaration with respect to the property
must involve a disposition of property and not the mere appointment of a
successor
4) Need for property
There needs to be a legal declaration of a property which is owned by the testator and
it is this own property. The property should be owned the testator and have absolute
ownership of the property. Furthermore, there should be a legal right to have a legal
declaration of the said property.
5) Desire
It is not only limited to intention but also there needs to be a desire of the testator for
the purpose of devolution of the property to give effect to the provisions made in the
will after his death to make a Will valid.
6) Effect has to be after death
A will can be considered valid only if it is acknowledged that the devolution of the
property will be done only after the death of the testator. Death of the testator is an
incidence which is required for a Will to be valid and for the execution of the same.
It was held in the case of Habergham v. Vincent that the dispositions are to take effect
only after the death of the person making them.
7) Testator shall sign
– As per section 63 of the Indian Succession Act, 1925, the testator, or the signee on his
behalf, of the unprivileged will must sign/affix his or her mark on the will.
– In case where the representative is signing on behalf of the testator then he requires to
do the latter in front of the testator.
8) No Suspicion
As per unprivileged will section 63, the signature /mark of the creator ( or the signee
on his behalf) must be placed in such a way so that it discloses clear intention of the
creator to give effect to what is written in the will. It should be done in a manner
which creates no doubt in the mind of a layman.
9) Witnesses
Unprivileged will section 63 also specifies that two or more witnesses should attest to
the will. They must have seen the testator (or his authorized signatory) sign/ affix his
or her mark on the will. But, a beneficiary of the will should not be included among
the witnesses.
QUESTION 8 PERSON CAPABLE OF MAKING A WILL (SHORT NOTE)

(Simplified answer)
According to Section 59 of the Indian Succession Act, 1925,
1) A Will can be made by any person who attains majority at the age of 18 years,
2) A Person must not be mentally challenged, but if a person who at the time of making
the Will is mentally sound, that Will shall be valid in the eyes of Law,
3) A Will is not valid, when at the time of the making of the Will the person is not able
to understand the nature and consequences of his acts due to intoxication.
The explanation of Section 59 of the Indian Succession Act, 1925 contains the following
1) A married women has the right to make a will and dispose of any property by will
which she could alienate by her own act during her life.
2) A person who is dumb, deaf or blind has the right to make a will if they have the
capacity to understand and form a will and cannot be handicapped from making a will
because of their indifference.
3) Section 59 of the Indian Succession Act 1925, inter alia, requires that the person
making a Will should be of ‘sound mind’. Further, explanation 3 to Section 59
provides that a person who is ordinarily insane may make a Will during an interval in
which he is of sound mind.
4) Also, more importantly, explanation 4 to Section 59 provides that no person can make
a Will while he is in such a state of mind, whether arising from intoxication or from
illness or from any other cause, that he does not know what he is doing.
Illustrations
a. A can perceive what is going on in his immediate neighbourhood, and can answer
familiar questions, hut has not a competent understanding as to the nature of his
property, or the persons who are of kindred to him, or in whose favour it would be
proper that he should make his will. A cannot make a valid will.
b. A executes an instrument purporting to be his will, but he does not understand the
nature of the instrument, nor the effect of its provisions. This instrument is not a valid
will.
c. A, being very feeble and debilitated, but capable of exercising a judgment as to the
proper mode of disposing of his property makes a will. This is a valid will
(Extra content)
Every person of sound mind, not being a minor, may, of his/her own volition, dispose his/her
property through a will. So, this means that, a will is valid if:
Sound Mind
The person creating the will should be of completely sound mind at the time of writing it.
Therefore, a lunatic or idiot can never create a will. However, a person, let’s say with
Alzheimer’s, may create a will in case he/she is lucid at the time of writing it. On the other
hand, a completely sane person cannot have created a valid will if he/she was inebriated at
the time of its creation.
Only Majors
A minor (a person below the age of 18) cannot make a will in India. A testamentary guardian
is appointed to dispose the property of a minor.
Of Own volition
If a will is attained through coercion, it is invalid. This means that, should a son or daughter
force (by being mentally or physically coercive), their parents into writing a will in their
favour, it is invalid.
Only Own Property
A will can be made by any person, and it is often made in the absence of a lawyer. For this
reason, many people end up distributing even assets that don’t completely belong to them. A
wife may dispose a house that is in the name of her husband, for example. This creates
problems.
Adoption
GIVING NEEDS MORE CASES, AND CHECK WHERE ELSE CAN BE ADDED
1. EXPLAIN IN DETAIL ABOUT ADOPTION.
Introduction
If the term ‘Adoption’ may be defined, Adoption is the method by which an individual whose
origin by birth through one kinship group acquires or becomes a part of a new kinship group
which is legally and socially equivalent to the congenital ties. These bonds superseded the old
ones wholly or partly. The Hindu Adoptions and Maintenance Act, 1956 is the legislation
which governs adoptions which are to be made by Hindus as stated in the case of Kashi Nath
v. Jagannath.
Background
Adoptions made prior to the enactment of the Hindu Adoptions and Maintenance Act, 1956
were governed by customs and the burden of proving the validity of an adoption was on the
person claiming it. In Binapani Samanta v. Sambhu Mandal, the burden of proof of the
validity of adoption was not discharged and therefore, she could not challenge a probate in
question. Prior to the Act, only sons could be taken into adoption and the rationale behind the
same was two satisfy two purposes, religious or sacramental, and secular.
Objectives behind the concept of Adoption
If the rationale behind adoption must be examined there is no clear cut purpose behind the
same, and confusion exists in the minds of judges when this question is analysed as well.
However, three broad motives are as follows:
1. To satisfy the sacramental value which has been attached to the duty of a son under
the Hindu Law. In Bal Gangadhar Tilak v Shrinivas Pandit, it was observed that adoption
among the Hindus is necessary for the continuation of the childless father’s name, and also as
a religious means to make those oblations and sacrifices which would permit the soul of the
deceased (father) passing from Hades to Paradise.
2. To carry forth the legacy of a family and its name. In the case of Inder Singh v. Kartar
Singh, it was held that the object of adoption is to secure the person to perform one’s funeral
rites (pious obligation) and for the perseverance of one’s lineage.
3. Sons are indispensable spiritual and material welfare. In Amarendra Mansingh v
Sanatan Singh, the Privy Council observed: “The foundation of the Brahmanical doctrine of
adoption is the duty which every Hindu owes to his ancestors to provide for the continuance
of the line and the solemnisation of the necessary rites.”
Position of Adoption in India at present: Changes from Pre-Act
The position of Adoption in India post the enactment of The Hindu Adoption and
Maintenance Act, 1956, has been discussed in Kashnith Balkrishna v. Anant Murlidhar, AIR
1942 Bom 284, and is as follows:
1. Females have been given a right to take and give in adoption.
2. A female whose husband is living can adopt with his consent.
3. A widow can adopt to herself unlike earlier law where she could adopt only to her
deceased husband.
4. A married male Hindu who wants to adopt has to take consent of the wife/wives.
5. A female may also be adopted which was not permissible under pre-act law.
6. Only a major can adopt; prior to the Act even a minor who had reached the age of
discretion could adopt.
Requisites of a Valid Adoption- Section 6
Under Section 6 of the Act, the requisites of a valid adoption have been enlisted. Under the
same, four valid requirements have been provisioned, and no adoption in valid unless:
1. The individual who is adopting a child has the capacity to do so as per the mandates
laid down in Sections 7, 8 of the act. Section 7 provisions the capacity of a Hindu Male to
adopt whereas Section 8 provisions the capacity of a Hindu Female to adopt.
2. The individual who is giving a child in for adoption must has the capacity to do so in
accordance with the mandates provisioned in Section 9 of the Act (Persons capable of giving
the child in adoption).
3. The individual who is being adopted must be capable of being taken into adoption as
per the conditions laid down in Section 10 of the act.
4. Other conditions related with adoption which have been laid down in Section 11 of
the Act must be satisfied.
As mentioned in the case of Golak Chandra v. Krutibas Rath, if the above mentioned
conditions are complied with, only then is an adoption valid, and omission of any mandate,
bars the validity of the same.
Capacity of a Hindu Male to take in Adoption – Section 7
Section 7 deals with the adoption by a Hindu Male and states that any Male who is a Hindu,
is of sound mind, and has attained majority as defined by the Indian Majority Act, 1875, has
the capacity to take a son or daughter in for adoption. If he wishes to adopt a child of the
opposite sex, an age gap of at least 21 years must exist as stated in the case of Golakchandra
v. Krutibai.
Further, if the Hindu Male has a living wife, the adoption cannot take place without the
consent of the wife as held in Profulla Kumar Biswal v. Sasi Bewa, unless the wife has
completely and finally renounced the world, has ceased to be Hindu, or has been declared to
be of unsound mind by a court of competent jurisdiction. All wives if more than one exists
must consent as decided in Bhoolaram v. Ramlal.
Capacity of a Hindu Female to take in Adoption – Section 8
Section 8 of the present act deals with the adoption by a Hindu Female and states that any
Female who is a Hindu, is of sound mind, and has attained majority as defined by the Indian
Majority Act, 1875, has the capacity to take a son or daughter in for adoption if she is
unmarried, divorced, widowed. Additionally, if the female wishes to adopt a child of the
opposite sex, an age gap of 21 years must exist. Earlier Adoption by a widow was not
permitted, and the Doctrine of Relating back persisted. However, now, the same has been
abolished as discussed in the case of Sripad Gonjam v. Datta Ram Kashi Nath. It has been
held in Vijayalakshamma v. B.T. Shankar that where a widow adopts a child, she need not
take consent of a co-widow because she adopts the child in her own capacity.
In case of Married Women, a female just has to provide free consent to adoption. She does
not have the capacity to adopt in her own right as it is the husband who adopts the child.
However, a husband right may be dispensed if he has renounced the world, is of unsound
mind as declared by a court of competent jurisdiction, or has ceased to be Hindu as held in
the case of Brajendra Singh v. State of Madhya Pradesh and Smt. Gopi v. Madan Lal.
Persons capable of giving the child in Adoption – Section 9
Under Section 9 the father, mother and guardians are the persons who can give the child in
adoption. It is necessary that the said individual should be a person who is of sound mind,
and a major as per the Indian Majority Act. Earlier only the father and mother were entitled to
give the child in adoption. Now, the privilege has also been given to the guardian.
The term guardian has been given a wider meaning here and includes both dejure as well as
defacto guardians as opposed to before. Further, the father and mother must be natural
parents. The stepparents, and adoptive parents do not have the right to give the child adoption
as affirmed in Baljit Kumar v. State of Punjab & Ors.
Persons who may be adopted – Section 10
For a child to validly be adopted, he or she must be Hindu, must not have been adopted
previously, must not be married, and must be under 15 years of age, unless there is a custom
or usage applicable to the parties which permits adoption of those who have completed the
age of 15 or those who are married. In Uma Prasad v. Padmavati, the claim of an adopted son
to properties was challenged as the boy was above the age of 15 adopted. However, since
their custom allowed it, the adoption was held to be valid. This section must be read with
Section 4 of the Act, which states its overriding effect.
Other Conditions for the valid adoption – Section 11
Under Section 11, if a person has his own son, son’s son, or son’s, son’s son, he cannot go for
the adoption of a son. Secondly, the presence of a daughter or sons daughter disqualifies a
person from adopting a daughter. Thirdly, if a person wants to adopt a person of the opposite
sex, the age gap should be of at least 21 years, as held in Golakchandra v Krutibai. Fourth, a
child cannot be adopted in two families at the same time. Fifth, Only the ceremony of giving
and taking is required. Earlier datta homam (oblations to the fire) was also done but now, this
is no longer a requirement. The child must actually be given and taken in adoption as held in
Guradas v. Rasaranjan.
Conclusion
In conclusion, simply put, Adoption is the uprooting of a child from his natural family and
transplanting him into an adoptive family, and it is a legally recognized mode of affiliation.
Prior to the present act, adoption of a female was not known and only sons could be taken
into adoption to satisfy religious or sacramental, and secular purposes. Presently, for a valid
adoption to persist in India, the person giving in a child for adoption, and taking in a child
must have a capacity to do so, and the child must be capable of being adopted. Further, other
conditions under Section 11 must be satisfied. The same has been detailed above extensively.
2. REQUISITES OF A VALID ADOPTION WITH REFERENCE TO THE CAPACITY OF THE

PERSON GIVING AND TAKING IN ADOPTION.
The Hindu Adoptions and Maintenance Act, 1956 is the legislation which governs all
adoptions which are to be made my Hindus as stated in the case of Kashi Nath v. Jagannath.
An individual who is adopting a child must have the capacity to do so and additionally, have
the right to take a son or daughter in adoption. Further, the individual giving the child in for
adoption must also have the rights and capacity to do so. The same is governed by Sections 7,
8, and 9 of the Act.
Capacity of a Hindu Male to Adopt – Section 7
the capacity to take a son or daughter in for adoption. In other words, if a Hindu Male has
crossed the age of 18 and the presumption of sanity lies in his favour, he is deemed capable to
adopt. In furtherance of the same, as stated under the Act, the said male who wishes to adopt
may be a bachelor, married, a divorcee, or a widower however, two points must be noted
here:
1. Firstly, if the Hindu Male wishes to adopt a child of the opposite sex, an age gap of at
least 21 years must exist between him and the Female Hindu Child. This has been provided
for to deter any form of sexual abuse and extinguish any obscenity and immoral relations
between the two as stated in the case of Golakchandra v. Krutibai.
2. Secondly, if the Hindu Male has a living wife, the adoption cannot take place without
the consent of the wife unless the wife has completely and finally renounced the world, has
ceased to be Hindu, or has been declared to be of unsound mind by a court of competent
jurisdiction.
As held in the case of Profulla Kumar Biswal v. Sasi Bewa, free consent of the legally
wedded wife is sine qua non for a valid adoption. A legally wedded wife is construed as one
who as one who is validly wedded to the said male at the time of adoption, and judicial
separation is included under the ambit of the same. The marriage must be void under the
Hindu Marriage Act, 1955. As long as the marriage is valid and subsiding, free consent must
be taken free of force, compulsion, coercion, misrepresentation, undue influence. Therefore,
the consent of the wife is a mandatory requirement as affirmed in the case of Krishna
Chandra Sahu v. Pradeep Das unless the wife has completely and finally renounced the
world, has ceased to be Hindu, or has been declared to be of unsound mind by a court of
competent jurisdiction, as affirmed in Smt. Gopi v. Madan Lal.
The consent which is acquired must be expressed or implied as stated in the case of Ghisalal
v. Dhapubai, and further, mere spectating does not amount to consent. Additionally, in case
the Hindu male has more than one legally valid wife, as was permitted in marriages prior to
1955, the consent of all the wives is necessary as decided in Bhoolaram v. Ramlal.
Capacity of a Hindu Female to Adopt – Section 8
Under Section 8 of the Act, the capacity of a Hindu Female to take into adoption has been
provisioned. In ancient times, this privilege was not given due to complete control and
subjugation by the Husband. Prior to the Personal Laws (Amendment) Act 2010, a female
adult Hindu of sound mind could adopt a child under the following situations, if she was:
1. Unmarried;
2. Divorced;
3. Widowed
4. Her husband suffers from certain disabilities
5. He ceased to be a Hindu;
6. He had renounced the world
7. Had been declared to be of unsound mind by a court.
After the above mentioned Amendment Act, however, a females right to adopt has been
brought at par with the male’s right. Prior to the Hindu Adoptions and Maintenance Act,
1956, the Doctrine of Relating Back persisted. As explained by the Apex Court in the case of
Sripad Gonjam v. Datta Ram Kashi Nath, when a widow adopts a son to her late husband’s
name, the doctrine makes sonship retrospective from the moment of the death of the husband.
The doctrine has now been abolished. It has been held in Vijayalakshamma v. B.T. Shankar
that where a widow adopts a child, she need not take consent of a co-widow because she
adopts the child in her own capacity.
unmarried, divorced, widowed. The divorce must be under Section 13 of the Hindu Marriage
Act, 1955. This privilege is not provided to a female who is judicially separated or to a
woman whose marriage is not validly annulled under Section 12 of the Hindu Marriage Act.
Additionally, if the female wishes to adopt a child of the opposite sex, an age gap of 21 years
must exist.
In the case of Smt. Gopi v. Madan Lal, the court enlisted it is a mandatory requirement for
adoption hat the individual is of sound mind. In case of Married Women, a female just has to
provide free consent to adoption. She does not have the capacity to adopt in her own right as
it is the husband who adopts the child. However, a husband right may be dispensed if he has
renounced the world, is of unsound mind as declared by a court of competent jurisdiction, or
has ceased to be Hindu. As held in the case of Brajendra Singh v. State of Madhya Pradesh, it
is only in one of these three scenarios that an adoption may take place by a married woman.
Even in the present case, despite the husband abandoning his crippled wife for 22 years, since
the day after their marriage, the adoption was considered invalid since none of the three
instances were satisfied.
Person capable of giving child in adoption
Earlier, under the old Hindu Law, the privilege to give the child in adoption was only of the
father of the child. Presently, under Section 9 of the Hindu Adoption and Maintenance Act,
1956, father, mother and guardians are the persons who can give the child in adoption.
It is necessary that the said individual should be a person who is of sound mind, and a major
as per the Indian Majority Act. The father and mother must be natural parents. The
stepparents, and adoptive parents do not have the right to give the child adoption. The father
of the child excluding adoptive, putative or stepfather, has got right to give the child in
adoption subject with the consent of the mother. However, such consent can be dispensed
with only in 3 exceptional cases:
1. When she has finally and completely renounced the world
2. When she has ceased to be Hindu
3. When she has been declared by court of competent jurisdiction to be of unsound mind
The mother of the legitimate child during the lifetime of the father has no right to give the
child in adoption. The privilege to give the child in adoption is only of father. The mother can
give the child in adoption only when below mentioned 3 exceptional cases are satisfied:
1. When father has ceased to be Hindu
2. When father has renounced the world
3. When father has been declared by court of competent jurisdiction to be of unsound
mind
However, in case of illegitimate child it is the mother of the child who gives the child in
adoption and consent of putative father is not required. In Baljit Kumar v. State of Punjab &
Ors., it was held that the stepfather has no right to give the child in adoption along with the
biological mother. In the case of Sarad Chandra v. Shantabai, it was held a married father
who has been adopted to another family can give his child born to him prior to his adoption to
another family. However, in the case of Martland v. Narayan, it was laid down the father who
has been given in adoption to another family cannot give his child born before his adoption as
adoption is the complete breaking from the natural family.
Prior to the 1962 amendment, only dejure guardians were included. Now, guardian includes
testamentary guardians appointed by parents or those appointed by the Court. Even anyone
who oversees an orphanage or in whose care the child is brought up etc, can give the child if
parents of the child are either dead, have renounced the world, have abandon the child, have
been declared by the court of competent jurisdiction to be of unsound mind, or the parentage
is not known.
Under the Act, when the guardian must give the child in adoption, permission of the court is
the prior requirement and is mandatory. The court here is the city civil court or district court
under whose jurisdiction the child resides. The court before granting permission sees whether
it is for the welfare of the child and consideration is also given to the wishes of the child
having regard to his age. The court also sees that the applicant has not entered into an
agreement to receive any payment or reward unless sanctioned for the upkeep of the child. In
Sankar Kumar Das v. Supdt. J.N.M. Hospital, Klyani, an abandoned child was taken by the
Juvenile Justice Board who was given custody post the requisite permission of the Court.
Conclusion
In conclusion, for a valid adoption to subsist, an individual who is adopting a child must have
the capacity to do so and additionally, have the right to take a son or daughter in adoption.
Further, the individual giving the child in for adoption must also have the rights and capacity
to do so. The same is governed by Sections 7, 8, and 9 of the Act. The same three sections
have been discussed above in detail.
3. Describe the provisions of Hindu Adoption and Maintenance Act regarding the valid
adoption.
Introduction
v. Jagannath.
v. Krutibai.
Conclusion
4. CRITICALLY EVALUATE THE PROVISIONS OF THE HINDU ADOPTION AND

MAINTENANCE ACT, 1956. (ADD 11 KE BAAD) MAYBE, AND ASK IF SHOULD BE
CUT
Introduction
v. Jagannath. In order to Critically Analyse the Act, first, its provisions must be discussed
which are as follows:
v. Krutibai.
Section 8 of the act deals with the adoption by a Hindu Female and states that any Female
who is a Hindu, is of sound mind, and has attained majority has the capacity to take a son or
daughter in for adoption if she is unmarried, divorced, widowed. If the female wishes to
adopt a child of the opposite sex, an age gap of 21 years must exist. Earlier Adoption by a
widow was not permitted, and the Doctrine of Relating back persisted. However, now, the
same has been abolished as discussed in the case of Sripad Gonjam v. Datta Ram Kashi Nath.
age of 15 or those who are married. This section must be read with Section 4 of the Act,
which states its overriding effect.
is no longer a requirement. The child must be given and taken in adoption as held in Guradas
v. Rasaranjan.
Critical Analysis:
As stated above, the provisions of the Act are quite detailed in nature and definitely are an
improvement from the scenario that existed prior to its enactment. The position of Adoption
in India post the enactment of The Hindu Adoption and Maintenance Act, 1956, has been
discussed in Kashnith Balkrishna v. Anant Murlidhar, AIR 1942 Bom 284, and is as follows
to be summarized.
deceased husband.
This is definitely a welcomed move as evidently, women have been provided with more
rights post the enactment of the act. However, there is still scope for improvement.
A major criticism is that the act has placed women at an inferior position as regards the
taking and giving of children for adoption. For example, the same may be witnessed in
Section 11 of the Act. Clauses (a) and (b) provide that if a person has his own son, son’s son,
or son’s, son’s son, he cannot go for the adoption of a son and in the presence of a daughter
or sons daughter disqualifies a person from adopting a daughter.
This leads the curtailment of the right of a person to adopt and be adopted. The operation of
this provision was challenged before the Bombay High Court in Indian Inhabitants v.
Unknown, as it came into conflict with the Juvenile Justice Act, 2000 which provided for no
such gender-specific embargo on the adoptive capacity of a person. Further, this shrinks the
scope of adoption to only 2 children, since only one male, and one female can be adopted.
Further, this would be in contradiction to certain Constitutional provisions. In the case of Re
Manuel Theodore D’Souza, the fundamental right to life of an orphaned, abandoned or a
destitute child included their right to be adopted by willing parents and have a home.
Restriction on the child’s right to be adopted by a certain class of people, only on the ground
of their gender, would be violative of the constitutional mandate of “right to life” under
Article 21 and “right against discrimination” under Article 15.
Additionally, the act is limited to the Adoption of Hindu Children and as a result, many
children aren’t provided with the same opportunity to be adopted and provided with a family,
as no extensive uniform legislation exists for the same. This brings for the long debated and
discussed requirement for a Uniform Civil Code and the benefits which may be reaped under
the same. To treat all citizens equally, one must have same laws for everybody. A uniform
civil code in adoption laws will not violate fundamental right to religion. India being
signatory to CRC (Convention on the Rights of a Child), such uniformity is necessary so that
the rights of adoptive children can well be enhanced and protected. Muslim and Christian
Indians cannot legally adopt a child for lack of a uniform code on adoption. However, in the
case of Harish v. Nair, the Supreme Court ruled that any individual can adopt a child under
the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or
she follows and even if the personal laws of the particular religion does not permit it.
Another aspect which has not yet been integrated in the Act and needs to be is cases of same
sex couples. Through the case of Navtej Singh Johar v. Union of India, homosexuality was
decriminalized. However, no amendment has been made to the Act yet to cover the same.
The law recognizes age difference of 21 years of age between opposite sex adoption but that
should be in case of same sex adoptive parents and adopted child as there can be harassment
of child of same sex. Further, in a case of two female parents, upon whom the rights to adopt
would be vested on also have no clarity.
Finally, there are no provisions to ensure keeping a check on children after adoption is done.
Once they are given away, there is no check on adoptive parents as how they are keeping the
child. This leads to lack of accountability and makes it difficult to ascertain whether the
welfare of the child is actually being taken care of. As a result, children may not be taken care
of as the nexus of the act provides for. Additionally, under Section 15, once an adoption is
made, it cannot be revoked, which leads to issues in such cases.
Conclusion
In conclusion, even though the act does cover very important aspects of adoption, especially
with regards to ensure validity of an adoption, there is definitely scope for improvement and a
requirement for it to be updated with the changing times. Unless this is ensure, it will not be
able to achieve the nexus which is sought through the same, which is to ensure the welfare of
children first and foremost and hence, it must be revised.
5. DISCUSS IN DETAIL ELIGIBILITY FOR GIVING CHILD FOR ADOPTION UNDER THE HINDU
ADOPTION AND MAINTENANCE ACT, 1956. MAKE LONGER
Eligibility for Giving a Child for Adoption under Section 9 of The Hindu Adoption and
Maintenance Act, 1956
The Hindu Adoptions and Maintenance Act, 1956 is the legislation which governs all
adoptions which are to be made my Hindus as stated in the case of Kashi Nath v. Jagannath.
Earlier. under the old Hindu Law, the privilege to give the child in adoption was only of the
father of the child. Even the consent of the mother was not required. Presently, under Section
9 of the Hindu Adoption and Maintenance Act, 1956, father, mother and guardians are the
persons who can give the child in adoption.
It is necessary that the said individual should be a person who is of sound mind, and a major
as per the Indian Majority Act. The father and mother must be natural parents. The
stepparents, and adoptive parents do not have the right to give the child adoption. The father
of the child excluding adoptive, putative or stepfather, has got right to give the child in
adoption subject with the consent of the mother. However, such consent can be dispensed
with only in 3 exceptional cases:
1. When she has finally and completely renounced the world
2. When she has ceased to be Hindu
3. When she has been declared by court of competent jurisdiction to be of unsound mind
The mother of the legitimate child during the lifetime of the father has no right to give the
child in adoption. The privilege to give the child in adoption is only of father. The mother can
give the child in adoption only when below mentioned 3 exceptional cases are satisfied:
1. When father has ceased to be Hindu
2. When father has renounced the world
3. When father has been declared by court of competent jurisdiction to be of unsound
mind
However, in case of illegitimate child it is the mother of the child who gives the child in
adoption and consent of putative father is not required. In Baljit Kumar v. State of Punjab &
Ors., it was held that the stepfather has no right to give the child in adoption along with the
biological mother. In the case of Sarad Chandra v. Shantabai, it was held a married father
who has been adopted to another family can give his child born to him prior to his adoption to
another family. However, in the case of Martland v. Narayan, it was laid down the father who
has been given in adoption to another family cannot give his child born before his adoption as
adoption is the complete breaking from the natural family.
Prior to the 1962 amendment, only dejure guardians were included. Now, guardian includes
testamentary guardians appointed by parents or those appointed by the Court. Even anyone
who oversees an orphanage or in whose care the child is brought up etc, can give the child if
parents of the child are either dead, have renounced the world, have abandon the child, have
been declared by the court of competent jurisdiction to be of unsound mind, or the parentage
is not known.
Under the Act, when the guardian must give the child in adoption, permission of the court is
the prior requirement and is mandatory. The court here is the city civil court or district court
under whose jurisdiction the child resides. The court before granting permission sees whether
it is for the welfare of the child and consideration is also given to the wishes of the child
having regard to his age. The court also sees that the applicant has not entered into an
agreement to receive any payment or reward unless sanctioned for the upkeep of the child. In
Sankar Kumar Das v. Supdt. J.N.M. Hospital, Klyani, an abandoned child was taken by the
Juvenile Justice Board who was given custody post the requisite permission of the Court.
7. The Hindu Adoption and Maintenance Act introduced several changes in the customary
Hindu law of adoption. Explain the latter and narrate the essentials of a valid adoption as per
the said Act.
Introduction
v. Jagannath.
Background
Adoptions made prior to the enactment of the Hindu Adoptions and Maintenance Act, 1956
were governed by customs and the burden of proving the validity of an adoption was on the
person claiming it. In Binapani Samanta v. Sambhu Mandal, the burden of proof of the
validity of adoption was not discharged and therefore, she could not challenge a probate in
question. Prior to the Act, only sons could be taken into adoption and the rationale behind the
same was two satisfy two purposes, religious or sacramental, and secular.
Objectives behind the concept of Adoption
If the rationale behind adoption must be examined there is no clear cut purpose behind the
same, and confusion exists in the minds of judges when this question is analysed as well.
However, three broad motives are as follows:
4. To satisfy the sacramental value which has been attached to the duty of a son under
the Hindu Law. In Bal Gangadhar Tilak v Shrinivas Pandit, it was observed that adoption
among the Hindus is necessary for the continuation of the childless father’s name, and also as
a religious means to make those oblations and sacrifices which would permit the soul of the
deceased (father) passing from Hades to Paradise.
5. To carry forth the legacy of a family and its name. In the case of Inder Singh v. Kartar
Singh, it was held that the object of adoption is to secure the person to perform one’s funeral
rites (pious obligation) and for the perseverance of one’s lineage.
6. Sons are indispensable spiritual and material welfare. In Amarendra Mansingh v
Sanatan Singh, the Privy Council observed: “The foundation of the Brahmanical doctrine of
adoption is the duty which every Hindu owes to his ancestors to provide for the continuance
of the line and the solemnisation of the necessary rites.”
Position of Adoption in India at present: Changes from Pre-Act
The position of Adoption in India post the enactment of The Hindu Adoption and
Maintenance Act, 1956, has been discussed in Kashnith Balkrishna v. Anant Murlidhar, AIR
1942 Bom 284, and is as follows:
deceased husband.
v. Krutibai.
Conclusion
INTER-COUNTRY (FOREIGN) ADOPTION (USE CARA ANS MAYBE)

Introduction
Inter country adoption is the adoption of Indian children by foreign nationals. Although
children are being adopted by these foreign nationals, it is seen that in some of the cases these
children have been used as domestic servants, beggars and even for prostitution. Presently,
foreigners who come to India, adopt an Indian child under Guardian and Wards Act, 1890.
The problem is that when the child lands in foreign soil, he is not the citizen of that country
as the Guardian and Wards Act only deals with guardianship and not citizenship of the child.
Since the procedures of foreign countries are cumbersome, the child never becomes citizen of
that country.
The Hindu Adoptions and Maintenance Act, 1956 applies only to the Hindus. There is no law
governing adoption by Christian, Parsis or Muslims, nor is there any statutory provision
providing for adoption of a child by foreigners living abroad. The inadequacy of the law of
adoption to address the issue of inter-country adoption was highlighted by the Gujarat High
Court in Re, Rasiklal Chaganlal Mehta.
Central Adoption Resource Agency
CARA (Central Adoption Resource Agency) particularly says that now more Indians are
going for in country adoption and this should really be encouraged because the child should
remain close to his environment rather than adapt to the culture which is alien to him.
Nevertheless new guidelines are being made which are aimed at solving this.
Under the revised guidelines, foreign couples will not be allowed adopt Indian children under
the Guardian and Wards Act which only ensures guardianship and not citizenship. Under the
Hindu Adoption and Maintenance Act and Juvenile Justice Act, all procedures would have be
completed in India. This means a child who goes abroad as an adopted child will enter the
recipient nation as its citizen which has been stated by Anu Singh, first secretary, CARA.
Foreign couples who desire adoption of an Indian child must go to the Enlisted Foreign
Adoption Agency (EFFA) in their country. A request is then sent by EFFA to the Regional
Indian Placement Agency, (RIPA). It is then that on their request RIPA looks for adoption of
child in India from adoption agencies. After the child is found by RIPA, a no objection
certificate is taken by CARA which is mandatory and finally the RIPA moves to the court
where guardianship is provided to the child under Guardian and Wards Act. Presently, there
is no legislation to deal with inter-country adoption however, certain guidelines have been
provided under Laxmikant Pandey's case by the Apex Court of the country.
In Lakshmi Kant v. Union of India, the Supreme Court laid down the normative and
procedural safeguards in regard to foreign/inter-country adoptions:
1. Only government recognized agencies should be entrusted with the task of
scrutinizing applications by foreign parents wishing to adopt Indian children.
2. The antecedent of the applicants should be verified, i.e., their family background,
financial status health etc.
3. Preferably, the child should be given for adoption before he/she completes the age of
three, though the court felt that no hard and fast rule could be laid down in this respect.
4. A progress report of the child along with a recent photograph—quarterly during the
first two years, and half-yearly, for the next three years should be provided.
However, difficulties were faced by some agencies in implementing these measures.
Consequently, the Supreme Court again made certain clarifications and alterations. The
Supreme Court in Laxmi Kant v. Union of India, issued new directions in the matter of the
procedure to be followed for the adoption of children by foreign and Indian parents which are
as follows:
1. Payment of some amount to the scrutinising agencies for their services.
2. Formulation of some procedure for prevention of illegal trade of babies.
3. Maintenance of a consolidated list of prospective Indian parents wishing to adopt.
4. No notice to be published in regard to any adoption application— whether foreign
adoption or adoption under the Hindu Adoptions and Maintenance Act, 1956.
5. The time required for processing of the adoption application to be reduced.
6. The limit of reimbursement of expenses incurred by recognised placed agencies to be
raised to Rs. 6,000.
However, these do not apply to adoption of children living with their biological parents. In
such case, according to the Supreme Court in Anokha v. State of Rajasthan, the court must
deal with the application for adoption under Section 7 of the Guardians and Wards Act, 1890,
and dispose of the same after being satisfied that the child is being given in adoption
voluntarily and would be legally adopted without any inducement or consideration.
Conclusion
In conclusion, Despite all elaborate guidelines of the Supreme Court, inter-country adoptions
are still not easy. There are long procedural delays and expenses at every level, which could
dissuade and discourage even very genuine and keen couples who wish to adopt abandoned,
destitute Indian children. There are innumerable couples who want to adopt, and there are
unlimited number of children who need the comfort of a home and warmth of a family, but in
the absence of proper laws, the former do not get to adopt and the latter do not get the home.
The absence of suitable laws also encourages commercialization and touts, which is neither in
the interest of the couples nor the children.
CARA GUIDELINES AND INTER-COUNTRY ADOPTION
Introduction
The Central Adoption Resource Authority (CARA), is a statutory body of the Ministry of
Women and Child Development under the Government of India. It functions as the nodal
body for adoption of Indian children and is mandated to monitor and regulate in-country and
inter-country adoptions. CARA is designated as the Central Authority to deal with Inter-
country adoptions in accordance with the provisions of The Hague Convention on Inter-
Country Adoption, 1993, ratified by the Government of India in 2003.
The fundamentals behind the adoption of a child under CARA are to satisfy the child’s best
interests while placing the child in a suitable environment through examining the socio-legal
status of the prospective adoptive parents, providing counselling, and motivation for
adoption.
Salient Provisions of CARA Guidelines on Adoption (2017)
In order for a prospective parent to adopt a child, they must be physically, mentally and
emotionally stable, financially capable, motivated, and devoid of fatal medical conditions.
Marital Status is not a bar for adoption and further, adoption can be made even if a biological
or adopted child already exists in the care. Under the CARA guidelines on adoption, the
salient provisions are as follows:
1. A married couple, a single male or female (unmarried, widowed, or legally divorced), can
adopt a child up to 18 years of age.
2. A single male can only adopt a male child.
3. A single female can adopt a child of any gender.
4. Minimum age difference between the child and the parents should be 25 years.
5. Parents with maximum composite age of:
• 90 years (Single Parent - 45 years) can adopt a child up to 4 years of age.
• 100 years (Single Parent – 50 years) can adopt a child between 4-8 years of age.
• 110 years (Single Parent – 55 years) can adopt a child between 8-18 years of age.
In the case of Stephanie Joan Becker vs. State and Anr, the appellant, an American citizen,
had sought an order appointing her as guardian of a 10-yearold female orphan by an
application under section 7 of the Guardians and Wards Act. By another application under
section 26 of the Act, she had also sought permission to take the child out of the country for
the purpose of adoption. She was aged about 53 years and the maximum permissible age as
prescribed by the Government of India guidelines in force was 45. However, having regard to
totality of facts of the case, the court found that the proposed adoption would be beneficial to
the child apart from being consistent with the legal entitlement of the appellant. The appellant
was appointed legal guardian of the child and was granted permission to take the child to the
USA. The court also ordered CARA to issue the necessary certificates.
Process of Adoption and Selection of the Child
The parent must register online under the CARA Adoption System (CARINGS), and upload
required documents as per their status. The parent can indicate certain preferences while
registering, which are the age of the child, gender of the child, state to adopt from, and kind
of child. The Specialised Adoption Agency (SAA) nearest to the parents address, will
conduct their home study. The parents will become eligible for receiving a profile of the child
only after the home study report is uploaded in CARINGS. The parents will be offered
profiles of three children in one or more referrals, as per the availability of the children
according to their preferences.
The parent can see the entire profile and medical history of the child in the referral. and can
then choose to reserve or not reserve the child within 48 hours of the referral, and only
online. Thereafter, the child has to be accepted within twenty days. Parents who do not accept
the child in the above, will be relegated to the bottom of the waitlist. Parents who do not
accept any of the three profiles, will be relegated to the bottom of the waste list. However,
there registration shall continue to be valid.
Inter-Country Adoption before CARA
Before the enactment of CARA, the guidelines regarding inter-country adoptions were
originally given by the Supreme Court through cases. In Re Rasiklal Chhanganlal Mehta, the
court held that Inter-country adoption under Section 9(4) of the Hindu adoption and
Maintenance Act, 1956, should be legally valid under the laws of both the countries. The
adoptive parents must fulfil the requirement of law of adoption in their country and must
have the requisite permission to adopt from the appropriate authority, thereby ensuring the
child would not suffer in immigration and obtaining nationality in the adoptive parents
country.
In Lakshmi Kant v. Union of India, the Supreme Court laid down the normative and
procedural safeguards with regards to foreign country adoptions. This case, arose out of a
letter written by a lawyer to the Supreme Court, which was treated as a petition. The letter
was based on a report published in London which revealed that hundreds of unwanted babies
were being transported from the slums of Kolkata to the USA. The Supreme Court gave
directions and guidelines in processing adoptions to foreign parents under the Guardians and
Wards Act, 1890.
Conclusion (MAKE BETTER)
In conclusion, Despite all elaborate guidelines of the Supreme Court, inter-country adoptions
are still not easy. There are long procedural delays and expenses at every level, which could
dissuade and discourage even very genuine and keen couples who wish to adopt abandoned,
destitute Indian children. There are innumerable couples who want to adopt, and there are
unlimited number of children who need the comfort of a home and warmth of a family, but in
the absence of proper laws, the former do not get to adopt and the latter do not get the home.
The absence of suitable laws also encourages commercialization and touts, which is neither in
the interest of the couples nor the children.
Q3. Muslim Law of Inheritance

Laws of inheritance under Muslim law are derived from the customs and usages prevalent
among the tribes of Arabia before the revelations of the Quran, as supplemented and
modified by the Quranic principles and the Hadis of the Prophet. The Muslim law of
inheritance is a superstructure constructed on the foundation of pre-Islamic customary law of-
succession. It was in existence even prior to that, but it was systematized, concretized and
modified by the revelations and the traditions of the Prophet.
GENERAL PRINCIPLES
Rule of Exclusion or Disqualification:
In accordance with the rules of exclusion, certain persons who otherwise would be heirs are
disqualified from the property of an intestate. Under Muslim law, just as in any other system
of law, there are certain persons who are, though heirs, not entitled to a share in the
inheritance on account of their disqualifications. These grounds of exclusion are as follows:
1. Religion
One of the fundamental principles of Muslim inheritance was that only a Muslim can inherit
from a Muslim. A non-Muslim could not inherit from a Muslim intestate. The law was
modified with the advent of the Caste Disabilities Removal Act, 1850, which provided
among others that the inheritance rights of a convert would be protected.24A convert who is a
non-Muslim can inherit from a Muslim. For example, a Muslim man has a son, who converts
to Christian faith. Under classical Muslim law, this convert son being a non-Muslim could
not have inherited the property of his father. But due to the protection of rights under the
Caste Disabilities Removal Act, 1850, he would be entitled to inherit his property. In Poniah
Nadar v. Essaki Devania, AIR 1955 Tr&Coch 180, it was similarly held that a Hindu
married man having a son who converts to Muslim faith, and then dies. Since he at the time
of his death was a Muslim, Muslim law of succession would apply to his property and his
Hindu son being a non-Muslim cannot inherit his property.
2. Illegitimate children
Under the Hanafi law, an illegitimate child is not entitled to inherit from its father, but it is
allowed to inherit from its mother. The mother can also inherit the property of other
illegitimate children. The illegitimate child inherits not merely the property of its mother but
also the property of all other relations with whom it is related through the mother. Thus, when
a Hanafi female dies leaving behind her husband and an illegitimate son of her sister, the
husband will take 1/2 as sharer and the residue will go to the sister's son. For example, in the
case of Bafatun v Bilaiti Khaum, a Sunni female died leaving behind an illegitimate child
who was allowed to claim inheritance like a natural born child. Since the illegitimate child
cannot inherit from its father, it cannot inherit from any other relation through the father.
Under the Ithana Ashari school, an illegitimate child is treated as nullius films, and cannot
inherit the property of any of its parents, or any other person through its parents.
3. Daughters
Under Muslim law, both Sunni as well as Shia, a daughter is entitled to succeed to the
property of the parents, yet there are customs and statutes, the operation of which excludes
her from inheritance. Such customs and statutes though at variance with the Quranic
principles are valid, and treat daughters as non-existent at the time of opening of the
succession. In ASCII DAR V. Faze, (1960) J & K 53, it was observed that where such
custom prevails, the daughters can inherit only in absence of agnates.
4. Murder or Homicide
Under the Hanafi law, an heir who has caused the death of the deceased intentionally,
inadvertently, by accident, mistake, or negligence is excluded from inheritance. Under the
Shia law, the heir is disqualified only if the death is caused intentionally This is a principle of
general policy, and is followed in most systems of law that an heir who has caused the
murder of the deceased is disqualified from inheritance.
5. Child in the womb
Under Muslim law, a child in the womb of her mother is entitled to inherit, if it is born alive.
A still born child is treated as having been born alive if its mother was treated with violence
as a consequence of which she gave birth to it. The law among the Shias and the Sunnis in
this regard is the same.
Customary Principles of Succession:
In the pre-Islamic Arabia, the law of inheritance was based on, what is called, comradeship-
in-arms, and, on this basis, even the wife and the children were excluded from inheritance.
Four basic principles of the pre-Islamic law of succession were laid down as follows:
a) First, the nearest male agnates or agnates succeeded to the total exclusion of remoter
agnates. Thus, if a Muslim died leaving behind a son, and a son of a predeceased son,
then the son inherited the entire property and the grandson was totally excluded.
b) Secondly, females were excluded from inheritance; so were cognates. Thus, a daughter
or a sister or a daughter's son or sister's son could never succeed to the property.
c) Thirdly, the descendants were preferred over the ascendants, and ascendants over the
collaterals. For instance, in the presence of a son, father could not succeed. Similarly, in
the presence of father, brother could not inherit.
d) Fourthly, where there were more than one male agnates of equal degree, all of them
inherited the property and shared it equally, taking per capita. For example, if a person
died leaving behind three brothers, all of them succeeded and each took one-third of the
estate.
No existence of property of Joint Family:

Muslims do not recognize the concept of joint family as a separate entity as held in D. Raja
Ahmed v. Pacha Bai, (1969) 1 Andh WR 255 or the distinction between the separate
property or the joint family property, irrespective of whether the property was inherited from
the father or any other paternal ancestor. Where two sons inherit the property of their father,
they take the property as tenants-in-common and not as joint tenants. Their shares are fixed
and even if for convenience’s sake they stay together, they do not form a joint family. The
son does not have a right by birth in the father’s property. Exclusive ownership with full
powers of alienation is an essential feature of property ownership under Muslim law.
Vested Inheritance:
The rule of vested inheritance provides that the heirs of the deceased shall gain a vested
interest in the heritable property the moment the deceased dies through division on paper. As
observed in the case of Jawai v. Hussain Bakshi, the heirs take a vested interest in the estate
of the intestate the moment succession opens, and their ownership in their respective shares is
not dependent upon its actual distribution by metes and bounds. It should be noted however,
as observed in the case of Imamul Hasan v. State of Bihar, the actual division may however
take place only after all the expenses and charges are deducted from the estate making it
heritable.
Single Scheme of Succession:
Muslim law provides a single scheme of succession irrespective of the sex of the intestate.
Blood relation or consanguinity is the primary principle on which succession is based and
relations introduced in the family by marriage do not succeed. Under Muslim law a woman
acquires an absolute right in the property that she inherits, whether as a daughter, sister or
mother, with full powers of alienation.
Islamic Principles of Succession:
The Prophet interposed the following new principles on the aforesaid principles of customary
law of succession.
a) First, the husband and the wife, being equal, are entitled to inherit to each other.
b) Secondly, some near females and cognates are also recognized and enumerated as heirs.
c) Thirdly, the parents and certain other ascendants are made heirs even when there are
descendants.
d) Fourthly, the newly created heirs (those who were not entitled to inherit under customary
law are given specified shares.
e) Fifthly, the newly created heirs inherit the specified shares along with customary heirs,
and not to their exclusion
It is necessary to notice that the Koran did not create a new structure of law of succession, but
merely amended and modified the customary law of succession so as to bring it in conformity
with the Islamic philosophy.
This superimposition of the Koranic principles on the customary law of inheritance has led to
divergence of opinion among the Shias and Sunnis, resulting in the propagation of two
different rules of inheritance—
i. The Hanafis allow the framework or principles of the pre-Islamic customs to stand; they
develop or alter those rules in the specific manner mentioned in the Koran, and by the
Prophet.
ii. The Shias deduce certain principles, which they hold to underlie the amendments
expressed in the Koran and fuse the principles so deduced with the principles underlying
the pre-existing customary law, and thus raise up a completely altered set of principles
and rules derived from them.
Heritable property:
A Muslim is not permitted to bequeath more than one-third (1/3 rd) of his estate without the
consent of his heirs, so generally even if he makes a Will, two-thirds (2/3 rd) of the property
would go by intestate succession, provided of course that the heirs should not have confirmed
the excess bequest. Where the deceased does not make a Will, the entire property would go
by intestate succession.
No recognition of right by birth:
Muslim law does not recognize the concept of ancestral or coparcenary property and hence
no right by birth in the property of the father is recognized in favour of the son during his
lifetime. 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 as held in Abdool v.
Goolam, (1905) 30 Bom 304. If the father disposes of the property, there would be nothing
left for the son to succeed to. Thus, if the father makes a gift of his property during his
lifetime, the validity of the same cannot be challenged by his son on the ground that he is the
future owner of the property, as, so long as the father is alive, he alone is the owner, and the
son has a hope or a chance to be the owner in future and not a concrete vested right of
ownership with respect to this property as held in Hasan Ali v. Nazo, (1889) 11 All 456.
When the father dies, the son can challenge the validity of the gift as now, it is not a mere
chance of inheritance but he has a vested interest in the property.
A bare chance of inheritance can neither be transferred nor renounced in favour of anyone as
held in Asa Beevi v. Karuppan, (1918) 41 Mad 365. Although Chapter II of the Transfer of
Property Act 1882 that lays down the prohibition on transfer of spes successionis is not
applicable to Muslims, yet the effect of Muslim law itself expressly prohibits it. The chance
of an heir apparent succeeding to the estate cannot be the subject of a valid transfer.
Doctrine of Representation and Stipital Succession:
Under the Hanafi law, no aspect of the doctrine of representation is recognized, with the
result that in the above illustration, the son will take the entire property and no grandson will
take any share. The result under the Shia law is also the same. But the Shia law recognized
the doctrine of representation for the second purpose, viz., for determining the quantum of
shares in certain cases. The doctrine of representation and the stripital succession for the
purpose of calculating the shares of certain heirs is the basic principle of the Shia law and is
applied throughout. This is not confined to the descendants but is also applied to the
ascendants. Thus, the descendants for the deceased son, deceased uncle, deceased aunt,
deceased daughter, deceased brother, deceased sister, if they are heirs, are all covered by the
doctrine of representation. Similarly, the rule is applied to great grandparents who would take
the same share which grandparents would have taken had they been alive. The father's uncles
and aunts are also covered by the rule.
Q4. Hanafi Law of Inheritance

Ans. Under any law of intestate succession, two questions that arise are:
i. who are the heirs of the deceased;
ii. to what share the heirs are entitled.
Muslim law-givers have gone into details in laying down the categories of the persons who
are entitled to participate in the inheritance, and the respective shares to which each category
of heirs are entitled to receive.
Under the Hanafi law, the heirs of a deceased Muslim, male or female, fall under the
following classes:
1. The sharers: The sharers are twelve in number and are given specific shares.
2. The residuaries: The residuaries may be classified into:
a. Descendants
b. Ascendants
c. Collaterals
3. The distant kindred, and
4. The State by escheat
Islamic law superimposed on the customary structure certain blood relations who are either
equally near, or nearer, to the deceased than the customary heirs. Among these new heirs are
certain females, and some ascendants and collaterals. The sharers are allotted their specified
shares. Then whatever is left after allotting share to the sharers, the rest—residue—is divided
among the customary heirs. These heirs are commonly called "residuaries". This term came
into vogue on the assumption that after giving specified shares to the sharers, whatever is left
is given to them.
In the scheme of heirs, certain sharers become residuaries on account of the existence of
certain other near relations. Thus, when the deceased has no child or child of a son how low
soever, the father and the true grandfather become the residuaries. Similarly, the daughter
becomes a residuary when the deceased has left behind a son, and the full sister becomes
residuary when the deceased is survived by a full brother. This also applies to consanguine
sister, when the deceased is survived by a consanguine brother. The Hanafi law lays down
that in the absence of the sharers and the residuaries, the estate passed to other relations who
are called "distant kindred". The distant kindred are those relations of the deceased who are
neither sharers nor residuaries. On the failure of distant kindred, in modern India, the estate of
the deceased goes to the State by escheat.
Distribution of Assets among the Sharers and Residuaries

Among the heirs, the sharers are to be given their share first, then the residue is to be
distributed among the residuaries. In the absence of the sharers, the residuaries take the entire
estate. In the absence of both the sharers and the residuaries, the estate devolves on the distant
kindreds. In their absence, the estate goes to the State. The peculiarity of the Muslim law of
inheritance is that although the sharers are Class I heirs and the residuaries are Class II heirs,
they together share the property After shares have been allotted to the sharers, the remaining
property goes to the residuaries.
Among the heirs of a class, which one of them will take the estate and in what portion,
depends upon the circumstances of each case. The general rule of preference is that a nearer
heir excludes a remoter one. Thus, if a Muslim dies leaving a son and a grandson (son's son
or a son from a predeceased son), then son alone will inherit, and the grandson will be
excluded, though both are residuaries. Among the collaterals, the descendants of a nearer
ancestor are preferred over the descendants of a remoter ancestor.
Doctrine of aul or increase:
When the sum total of the shares allotted to various heirs in accordance with their entitlement
exceeds the unity, then the doctrine of aul lays down that the share of each heir should be
proportionately reduced. This is done by reducing the fractional shares to be the common
denominator. Since this is done by increasing the denominator, the doctrine has been the
name of increase (Aul) though, in fact, the shares are proportionately reduced.
Illustrations:
i. P dies leaving behind her husband, H, two full sisters, FD and FD\ and mother M. They
will be allotted the shares as under; H 1/2 or 3/6 FD & FD'....2/3 or 4/6. M 1/6. The
proportionate reduction of shares is achieved by increasing-the denominator from 6 to 8.
Thus, the shares of the respective sharers will be: H will take 3/8, FD & FD^ 4/8 and M
1/8.
ii. P dies leaving a husband, H, full sister, FD, two uterine sisters, MD and MD\ two uterine
brothers, MS and MS^ and mother, M. All these heirs are sharers. In accordance with
their entitlement, their shares will come to: M 1/6, H 1/2, FD 1/9, MD, MD\ MS and MS\
3/4. This will be reduced to 1/9, 3/9, 3/9 and 2/9 respectively.
It should be noted that Shias do not recognize the Doctrine of ‘Aul’, and if the sum total
exceeds the unity, then the excess will be deducted from the shares of the daughters or full or
consanguine sisters.
Doctrine of radd or return:
When there is surplus left after allotting the shares to the sharers in accordance with their
entitlement, and there are no residuaries to take the surplus, then the doctrine of return lays
down that the surplus is to be distributed among the sharers in proportion to their respective
shares. This doctrine recognizes one exception, viz., neither the husband nor the wife is
entitled to the return so long as there is alive another sharer or distant kindred. But, in India,
this is not the law. In the absence of sharer or distant kindred, the surplus, returns to the
husband or the wife, as the case may be. Thus, under Muslim law of modem India, the
doctrine of return in as held in Md. Arshad Chowdhury v. Sajida Banoo, (1878) 3 Cal 703
states that:
i. The surplus is distributed among the sharers in proportion to their shares,
ii. But the husband or the wife is not entitled to return, so long as there is sharer or distant
kindred alive,
iii. If there is no sharer or distant kindred, then the surplus returns to the wife or husband.
The above principles were further ascertained in the case of Bafatun v. B. Khanum.
Illustrations:
i. P dies leaving behind his mother M, and his daughter D. M takes 1/6 and D takes 1/2.
There remains a surplus of 1/3. Since there is no residuary, 1/3 will return to D and M.
M's share will be increased to 1/4 and D's share to 3/4. The formula in the case of return
is to reduce the common denominator.
ii. P dies leaving behind his wife, W, and none else. W will take 1/4 as sharer and 3/4 by
return. When there is no other heir, the doctrine of return applies to the spouses
Distant Kindred
In the absence of the sharers and the residuaries, the estate devolves on the distant kindred.
There is only one case in which the distant kindred inherit along with a sharer. When the only
surviving sharer is a husband or a wife and there is no residuary, then the husband or wife
takes his or her share, and the rest of the estate goes to the distant kindred.
In the class of distant kindred are all those blood relations of the deceased who have not
found a place either among the sharers or residuaries, there are: (a) female agnates, and (b)
cognates, both males and females. These two classes of relations constitute the distant
kindred. The distant kindred succeed to the estate of the deceased only in the absence of the
sharers and residuaries with one exception, viz., when husband or wife is the sole heir, then
the distant kindred take the residue.
State as an Heir by Escheat:
As observed in the case of Sheikh Abdul Rehman v. Sheikh Wali Mohamed, (1922) 2 Pat
75, it is an established rule that the estate of an heirless Muslim devolves on the State.
Furthermore, as observed in the case of Cavery Vancata v. Collector of Masulipatan, (1863)
11 MIA 61, it was observed that the State takes the property of an heirless person by escheat
but takes it subject to any trust, charge or liability affecting it.
Q5. Doctrine of Aul and Doctrine of Radd

Ans. Introduction (Common for both)
The Principles of Intestate Succession comes into place in case a person dies without leaving
his will for the distribution of the property owned by him at the time of his death. The heirs
according to the Muhammadan Law are divided into three classes. The first class is called the
Zav-il-Furuz or the Sharers, the second class is called the Asabah or residuaries or agnates
and the third class is called the Zav-il-Arham or the Distant Kindred
In a system of law which assigns fixed shares to heirs, two anomalous situations are likely to
arise: The sum of shares allotted to various heirs according to their entitlement:
i. may be in excess of the unity, or
ii. may be less than the unity.
The former situation is solved by the application of the doctrine of aul or increase, and the
latter by the application of the doctrine of radd or return.
Doctrine of aul or increase:
When the sum total of the shares allotted to various heirs in accordance with their entitlement
exceeds the unity, then the doctrine of aul lays down that the share of each heir should be
proportionately reduced. This is done by reducing the fractional shares to be the common
denominator. Since this is done by increasing the denominator, the doctrine has been the
name of increase (Aul) though, in fact, the shares are proportionately reduced.
Illustrations:
iii. P dies leaving behind her husband, H, two full sisters, FD and FD\ and mother M. They
will be allotted the shares as under; H 1/2 or 3/6 FD & FD'....2/3 or 4/6. M 1/6. The
proportionate reduction of shares is achieved by increasing-the denominator from 6 to 8.
Thus, the shares of the respective sharers will be: H will take 3/8, FD & FD^ 4/8 and M
1/8.
iv. P dies leaving a husband, H, full sister, FD, two uterine sisters, MD and MD\ two uterine
brothers, MS and MS^ and mother, M. All these heirs are sharers. In accordance with
their entitlement, their shares will come to: M 1/6, H 1/2, FD 1/9, MD, MD\ MS and MS\
3/4. This will be reduced to 1/9, 3/9, 3/9 and 2/9 respectively.
It should be noted that Shias do not recognize the Doctrine of ‘Aul’, and if the sum total
exceeds the unity, then the excess will be deducted from the shares of the daughters or full or
consanguine sisters.
Doctrine of radd or return:
When there is surplus left after allotting the shares to the sharers in accordance with their
entitlement, and there are no residuaries to take the surplus, then the doctrine of return lays
down that the surplus is to be distributed among the sharers in proportion to their respective
shares. This doctrine recognizes one exception, viz., neither the husband nor the wife is
entitled to the return so long as there is alive another sharer or distant kindred. But, in India,
this is not the law. In the absence of sharer or distant kindred, the surplus, returns to the
husband or the wife, as the case may be. Thus, under Muslim law of modem India, the
doctrine of return in as held in Md. Arshad Chowdhury v. Sajida Banoo, (1878) 3 Cal 703
states that:
iv. The surplus is distributed among the sharers in proportion to their shares,
v. But the husband or the wife is not entitled to return, so long as there is sharer or distant
kindred alive,
vi. If there is no sharer or distant kindred, then the surplus returns to the wife or husband.
The above principles were further ascertained in the case of Bafatun v. B. Khanum.
Illustrations:
iii. P dies leaving behind his mother M, and his daughter D. M takes 1/6 and D takes 1/2.
There remains a surplus of 1/3. Since there is no residuary, 1/3 will return to D and M.
M's share will be increased to 1/4 and D's share to 3/4. The formula in the case of return
is to reduce the common denominator.
iv. P dies leaving behind his wife, W, and none else. W will take 1/4 as sharer and 3/4 by
return. When there is no other heir, the doctrine of return applies to the spouses
Conclusion (Common for both puts a difference between the two):
When the sum of fractions of properties to Sharers is equal to unity, there is no problem. But
if it is more or less than unity, the shares of respective heirs are reduced or increased
respectively. The process whereby the shares are reduced is called the Doctrine of Increase or
Doctrine of ‘Aul’ and the process whereby the shares are increased is called the Doctrine of
Return or Doctrine of ‘Radd’.
The Steps involved in the Doctrine of Increase as well as in Doctrine of Return are almost
similar to each other. The first step involves the reduction of the fractions of the Sharers to a
common denominator. Subsequently, the second step involves increasing/decreasing the
denominator to make it equal to the sum of numerators, and allow the individual numerators
to remain the same as they were.
The shares obtained will be the reduced shares in case the initial sum of their property
exceeds unity. Similarly, the shares obtained in case the initial sum of their property remains
less than the unity will be the addition proportionate share of the property they will get.
Therefore, the differences formulated by the author between the Doctrine of Return and the
Doctrine of Increase are as follows:
a) In ‘Increase’, the total of the shares adds up to more than unity; whereas in ‘return’ the
total falls short of unity.
b) In ‘Increase’, the shares undergo rateable reduction. In ‘Return’, the shares undergo a
rateable increase.
c) In ‘Increase’, the share of the husband or wife suffers a proportionate reduction along with
other sharers. In ‘Return’, the husband or wife is not entitled to the ‘Return’ so long as there
is any other heir, whether sharer or distant kindred.
Q6. Doctrine of Exclusion
Ans. In accordance with the rules of exclusion, certain persons who otherwise would be heirs
are disqualified from the property of an intestate. Under Muslim law, just as in any other
system of law, there are certain persons who are, though heirs, not entitled to a share in the
inheritance on account of their disqualifications. These grounds of exclusion are as follows:
RELIGION
One of the fundamental principles of Muslim inheritance was that only a Muslim can inherit
from a Muslim. A non-Muslim could not inherit from a Muslim intestate. The law was
modified with the advent of the Caste Disabilities Removal Act, 1850, which provided
among others that the inheritance rights of a convert would be protected.24A convert who is a
non-Muslim can inherit from a Muslim. For example, a Muslim man has a son, who converts
to Christian faith. Under classical Muslim law, this convert son being a non-Muslim could
not have inherited the property of his father. But due to the protection of rights under the
Caste Disabilities Removal Act, 1850, he would be entitled to inherit his property. In Poniah
Nadar v. Essaki Devania, AIR 1955 Tr&Coch 180, it was similarly held that a Hindu
married man having a son who converts to Muslim faith, and then dies. Since he at the time
of his death was a Muslim, Muslim law of succession would apply to his property and his
Hindu son being a non-Muslim cannot inherit his property.
ILLEGITIMATE CHILDREN
Under the Hanafi law, an illegitimate child is not entitled to inherit from its father, but it is
allowed to inherit from its mother. The mother can also inherit the property other illegitimate
children. The illegitimate child inherits not merely the property of its mother but also the
property of all other relations with whom it is related through the mother. Thus, when a
Hanafi female dies leaving behind her husband and an illegitimate son of her sister, the
husband will take 1/2 as sharer and the residue will go to the sister's son. Since the
illegitimate child cannot inherit from its father, it cannot inherit from any other relation
through the father. Under the Ithana Ashari school, an illegitimate child is treated as nullius
films, and cannot inherit the property of any of its parents, or any other person through its
parents.
DAUGHTERS
Under Muslim law, both Sunni as well as Shia, a daughter is entitled to succeed to the
property of the parents, yet there are customs and statutes, the operation of which excludes
her from inheritance. Such customs and statutes though at variance with the Quranic
principles are valid, and treat daughters as non-existent at the time of opening of the
succession. In ASCII DAR V. Faze, (1960) J & K 53, it was observed that where such
custom prevails, the daughters can inherit only in absence of agnates.
MURDER OR HOMICIDE
Under the Hanafi law, an heir who has caused the death of the deceased intentionally,
inadvertently, by accident, mistake, or negligence is excluded from inheritance. Under the
Shia law, the heir is disqualified only if the death is caused intentionally This is a principle of
general policy, and is followed in most systems of law that an heir who has caused the
murder of the deceased is disqualified from inheritance.
CHILD IN THE WOMB
Under Muslim law, a child in the womb of her mother is entitled to inherit, if it is born alive.
A still born child is treated as having been born alive if its mother was treated with violence
as a consequence of which she gave birth to it. The law among the Shias and the Sunnis in
this regard is the same.
OTHER DISQUALIFICATIONS
i. Insanity and unchastity- Insanity and unchastity are not disqualifications under the
Muslim law, and, therefore, an insane or unchaste heir is entitled to inherit.
ii. Eldest son- Under the Ithana Ashari law, the eldest son who is of sound mind is
exclusively entitled to wearing apparel of his father, his copy of Koran, his sword, and his
ring, provided the father had left some other property besides these.
iii. Childless widow- Under the Ithana Ashari law, a childless widow is not entitled to a
share in her husband's land, both agricultural as well as urban. However, she is entitled to
her share in the value of trees and buildings standing on the land as well as share in the
movable property of her husband. Immovable property includes the debts due to her
husband. It has been held that a childless widow, in the absence of other heirs, is entitled
to inherit not merely her share but also rest of the property including the land of her
husband by the application of the doctrine of return.
iv. Step-Parent- Since step-parents are not related to their stepchildren, they are not entitled
to inherit the property of their stepchildren.
v. Absent heir- If an heir is absent at the time of the distribution of assets, then his share has
to be kept apart for him until such time as he is presumed to be dead.
vi. Succession to the property to eunuch- In Illyas v. Badshah, AIR 1990 Gau, it was held
that eunuch who are Muslims by religion were governed by the customary law.
DISQUALIFICATION RELATING TO SUCCESSION
Remoteness in relationship isn’t the only way a person gets disqualified from inheriting a
particular property. Certain physical and mental infirmities or a particular of conduct can also
get a person disqualified from inheriting property. The disqualified is not allowed to take part
in the inheritance of the property. Additionally, the disqualified person cannot transfer their
interest to their own heirs as a disqualified person was treated as having predeceased the
propositus.
Illustrations- Suppose P dies leaving behind two brothers, A and B and nephew AS, son of
A. If A is a disqualified heir, AS will also not inherit anything and B will take the entire
property
If a disqualified person recovers from his disqualification subsequent to the opening of
inheritance, in such a scenario the disqualified person can recover his estate already vested in
other heirs. (State of Punjab v. Balwant Singh, AIR 1991 SC 1581.)
Valid grounds of disqualifications include-
Remarriage of a Widow
Section 24 of the Act states that certain widow remarrying may not inherit as widow. The
person who is in a relationship with an intestate, as the widow of a predeceased son or widow
of a brother may not be entitled to inherit the property of the estate as a widow if on the date
of succession, she has remarried. As in law, remarriage incapacitates a widow of a gotraja
sapinda from succeeding to the property of a male Hindu on the date the succession arrives.
Under the Widow Remarriage Act, 1856 only three kinds of women are disqualified from
inheriting the property if they remarried before death.
1. Son’s widow
2. Son’s Son’s widow
3. Brother’s widow
Illustration- P, a Hindu, dies leaving behind a widow W and a widow of a predeceased

son, SW, who had remarried before P died. W will take the entire property as if SW was
dead.
The widowed mother and widowed stepmother are not disqualified firom inheritance
even if they have remarried.( Kasturi Devi v. Deputy Div. Commr., AIR 1976 SC 2595.)
In spite of all reasons, women cannot be disqualified from inheriting the property. The
question of the remarriage propositus' own widows does not arise. This is because even if
she has remarried during the lifetime of her husband, her second marriage is void under
the law and therefore she cannot be considered to have remarried. If she has remarried
after divorcing her husband, she has ceased to be his wife and therefore will not be his
widow when propositus dies. But the subsequent marriage of the widow is no
disqualification.
Murderer-
Section 25, governs disqualification in cases of murder. It is important to note that the
murder should be done in the “furtherance of succession”. For instance, there was a
faction-fight among five brothers, A, B, C, D and E. The father tried to intervene and was
killed by an accidental sword blow from A. In this case, A will succeed to the property of
his father along with B, C, D and E, as A did not kill his father in furtherance of the
succession
Hindu Succession Act, disqualifies two sets of murderers :
1. If an heir himself murdered or abetted the murder of the propositus in furtherance of

succession, and
2. If an heir has murdered or abetted the commission of murder of someone other than
the propositus in furtherance of the succession.
The Commission of the murder of the intestate or the abetting of the commission of the
murder has one or the same result. It is a principle of general policy. In such a scenario
the murdered will be treated as non-existent. The privy council in the case of Smt.
Kasturi Devi v. D.D.C AIR 1976 SC 2105, held that on the principle of equity and justice
the murderer should be disqualified from succeeding to the person whom he had
murdered and would not be regarded as the fresh descent as he can be stated as the non-
existent. The court in the case of Kenchava v. Girimaillappa where the husband had
murdered his wife, neither he nor his parents were held entitled to inherit her property. A
similar reasoning was applied in the case of Janak Rani Chadha v. the State (NCT of
Delhi) where a husband had murdered his wife. This disqualification will still be valid in
cases where the son wasn’t convicted under section 302 of IPC but Section 324 of the IPC
due to the benefit of doubt.(Mannapuneni v. Nannapuneni, AIR 1970 AP 407). This
disqualification will not apply is he has been acquitted of the charges even if this acquittal
is on the basis of benefit of doubt. (Sarita Chawhan v. Chetan Chawhan AIR 2007
Bom. 133). This disqualification is applicable in cases where there was a murder to
accelerate succession. For instance, P has a daughter D daughter's son DS, P is on the
death bed. If DS kills D so that when P dies, he may take the inheritance. DS will not be
entitled to inherit when P dies as the murder was committed for acceleration of
succession.
This section not only applies to cases of testamentary succession as well. A murderer who
is guilty of murdering the testator cannot take any benefit under the will. The Section
applies to succession under the Act. It does not apply to any other enactment under any
other statue.
Conversion-
Section 26 of talks about the situation in which a Hindu has converted to a different
religion. Before the initiation off the act a Hindu ceased to be a Hindu by conversion to
any other religion. Under the current act when a Hindu converts to a new religion he still
has the right to all the property of his or her relatives but the convert’s descendants have
no right to the property.
Illustration- P died leaving behind three sons, A, B, and C. B had earlier converted to
Islam. Even though B had converted to Islam, he will take his 1/3 share as conversion is
not a disqualification of the heir.
The children and descendants of a convert cannot inherit to the propositus, unless they
are Hindus. If the child was born to them before or after the conversion of the religion,
the descendants will be disqualified from inheriting the property unless those descendants
are Hindu when the succession opens.
Illustration- P died leaving behind a son B and four grandsons, AS, AS1 AS2, AS3 from a
predeceased son A who had converted to Christianity. AS and AS1 were born to A before
conversion and AS2 and AS3 were born to him after conversion. In this case B, AS and
AS1 will inherit the property whereas AS2 and AS3 will be excluded as they were born
after A had converted.
Succession to the property of a convert is governed by the personal law of the community
to which he converted(P. Patharakah v. Subbiah, AIR 1981 Ker 1980.)
This succession doesn’t apply in cases of testamentary succession. This section is
prospective in nature as the disqualification only arises when the commencement of the
succession opens. It is also retrospective in nature as the Act also applies to a case where
the conversion had taken place prior to the commencement of the Act.
Section 27-
This Section, provides the consequences of disqualification incurred by an heir from
inheriting under any provision of the Act. Under this Act, If any person got disqualified
from inheriting any of the property, it must be devolved as if such a person died before
the intestate. Section 27 says that if any heir is alive when he/she is disqualified, he shall
be considered non existent and not as some fresh line of descent.
Section 28-
This section states that there would be no disqualification for any disease and deformity.
Disease, deformity and unchastity are no longer disqualifications (Chandi v.
Bhagyadhar, AIR 1976 Cal 366; Ratti Ram v. Basanti, AIR 1986 HP 61.) The Section is
not retrospective. The section, applies to both testamentary and intestate succession. It
comes into the operation when the succession opens after the commencement of the Act.
If the succession opens before the commencement of the Act the section shall not apply.
HINDU SUCCESSION ACT 1956 LAYS DOWN AN UNIFORM SYSTEM OF INHERITANCE TO
HINDUS. EXPLAIN THE SCHEME OF LAW AND DEVELOPMENT BROUGHT BY IT.
The Hindu Succession Act came into force on 17 June, 1956, with the basic objective of
providing a comprehensive and uniform scheme of intestate succession for Hindus. Prior to
the enactment of this Act, different religious communities were governed by different
succession laws, and within the Hindu community itself, there was a wide divergence with
respect to application of inheritance laws. Disputes relating to family relating to family,
between its members and with respect to property, were initially settled within the family,
and if outside interference and adjudication became imperative, then the traditional local
‘Panchayats’ were the best option. The advantage that these Panchayats had over any other
judicial mechanism later established was, the familiarity with the parties, with the disputed
matter, and also with the situation or environment under which the dispute arose.
With the active intervention of the British in the judicial system, the traditional Panchayats
were initially not affected as the nature of the cases dealt with by these courts were criminal
or civil and did not touch family matters. However, revenue matters and property disputes
relating to family soon dragged the family members to these formal courts where total
strangers were deciding their disputes in an unfamiliar language. Since there could not be a
direct interaction due to the difference of language and the technical procedures, a
representative of the litigant, who was well versed with the language became an intermediary
These courts relied on pundits and a few translated texts. The learned pundits, who were
primarily religious preachers and well conversant with the performance of religious rites and
ceremonies, were nevertheless, not legal luminaries and when asked to extract legal rules
from religious texts, often failed to fulfill the requirements of the courts. The result was that
in the absence of any other guidance, Hindu law was confined to a few texts only and rules
contained in other sources. This amalgamated Anglo-Hindu law, deviated from the original
precepts, and substantially modified, applied to all Hindus and created an uncertainty and an
unnecessary confusion. It necessitated the need for clarity and a codification of the law.
The later half of the 19th century called for the codification of the Hindu law for better
settlement of family issues relating to succession and inheritance. The main arguments under
against the codification as a lot of Hindus expressed no desire for codification and believed
that the bill was introducing changes of a revolutionary character that had the effect of
sweeping away the law laid down by the Smritis and of destroying the Dharma (rules) which
were based on high ideals befitting Hindu culture and character that served as an inspiration
to the world.
The Hindu code proposed by the Hindu Committee in 1948 included abolition of a right by
birth in the property and its devolution by the doctrine of survivorship. It recommended
replacement of joint tenancy by the rule of tenancy-in-common and an abrogation of rules
regarding pious obligations. The guiding principle of ‘religious efficacy’ under the
Dayabhaga law and of ‘consanguinity’ under the Mitakshara law and its sub-schools, were
substituted by a new line of heirs based on ‘natural love and affection’.
Basic features of the Hindu Succession Act, 1956
1. It amended the aspects related to joint Hindu family and Mitakshara coparcenary,
intestate succession and even testamentary succession.
2. It abolishes the distinct laws of succession under the Dayabhaga and Mitakshara
systems and provides a uniform law, based on natural love and affection and nearness
in relationship
3. It abolished the concept of limited estate for Hindu women and replaced it with
absolute ownership.
4. In case of female intestates, there is a further divergence linked with the source of
acquisition of the property for matters of succession of her estate
5. It alters the character of the property inherited by the son from his father, paternal
grandfather and makes it separate property in his hands.
6. The marital status of the daughter was made irrelevant for determining her rights of
inheritance and her heirs were made primary heirs as well.
7. It empowers a Hindu, male or female, to make a testamentary disposition of the
totality of properties, in favour of anyone with respect to testamentary succession
8. It abolished the doctrine of survivorship under Mitakshara coparcenary.
9. The disqualifications for inheritance, based on physical and mental diseases,
disabilities and deformities, were removed.
10. The widow of an intestate was made a primary heir and unchastity was removed as a
ground for disqualification.
11. The Act specifically protected the rights of posthumous children.
The act made significant changes in terms of succession under Hindu law. Though the
changes that were brought in by the act were revolutionary and radical for the time period, it
helped in laying down the foundations a patriarchal history of succession under Hindu law.
The main achievement of the act was that it brought in uniformity throughout the country in
matters of Hindu succession and within the two gender. The guiding principle of ‘religious
efficacy’ under the Dayabhaga law and of ‘consanguinity’ under the Mitakshara law and its
sub-schools, were substituted by a new line of heirs based on ‘natural love and affection’.
The act also has made significant changes for the oppressed parts of a joint family, I.e. a
widow, a person suffering from deformities and disabilities. The act made a revolutionary
change by giving the right to property to a widow even if it was challenged on the grounds of
unchastity. This imperative as during the time the act came, in the late 1950s the rights of
widows were not protected under various laws. An allegation of unchastity was enough to
take away her right to property. The enactment of this legislature laid down the foundations
of a less gender biased succession system.
CHANGES MADE BY HINDU SUCCESSION AMENDMENT OF 2005.
The changes brought in by the 2005 amendment were brought in with two main objectives
1. To bring in a new section in place of the existing section 6 to give both females
and males equal rights.
2. To remove section 23 of the act which disentails the female rights to ask for
partition in a dwelling house occupied by the intestate family with the male heirs
initiating it.
There were other changes that were made along with these objectives. These include-
1. Omission of section 4(2)

2. Insertion of section 6
3. Omission of Section 23
4. Omission of Section 24
5. substitution of words from “disposed by him” to “disposed by him or by her” under
section 30
OMISSION OF SECTION 4(2)
The deletion of s. 4(2), and an implied presumption that after the amendment, the Hindu
Succession Act applies to all kinds of property including rights in agricultural land, would
mean that now a diversity would exist state wise with respect to laws governing agricultural
property. This section excluded rights on agricultural lands from its purview and was
regulated by the State- level tenure laws, it was creating a discriminatory in favour of women
as the women were not getting any entitlement or interest in the agricultural lands. So with
the removal of this provision, the women’s interest in agricultural land as that of men is
ensured.
INSERTION OF SECTION 6
Abolition of doctrine of survivorship in case of male coparcenars
As per the present Act, the doctrine of survivorship has been abolished unconditionally. Now,
if any male Hindu dies, having at the time of his death, an undivided interest in Mitakshara
coparcenary, the rule of survivorship would not apply at all.
Illustration- A Hindu family comprises of a father F, and two sons S1 and S2, who form an
undivided coparcenary. Each of them would have a one-third share in the joint family
property. Then, S2 dies as a member of this undivided coparcenary. Under the old law, on the
death of S2, the surviving coparceners would have taken the share of S2 by survivorship and
their share would have increased to a half each. Thus, both F and S1 would have been entitled
to one half of the property on the death of S2.
The court in the case of Pushpalatha N V v. V. Padma, AIR 2010 Karn 124 held that the
traditional concept of coparcenary, where coparcenary property was held with incidents of
survivorship, stands abolished expressly by the legislature.
Introduction of daughter as coparcenary
The changes brought to the exclusive prerogative of males to be coparceners has been
conferred in favour of a daughters as well. At present, instead of only the son having a right
by birth, any child born in the family or validly adopted, will be a coparcener and would have
an interest over the coparcenary property. Thus, the traditional concept that only males could
be members of the coparcenary and ‘no female could ever be coparcener nor could own
coparcenary property’ is no longer the law. Further, daughters would not only be empowered
to form a coparcenary along with their other siblings (irrespective of gender), but would also
be competent to start a joint family herself.
Section 6(2) makes it very clear that a female Hindu would be entitled to hold property with
the incidents of coparcenary ownership. The two classes of females are one, who are born in
the family and secondly, those who become members of this joint family by marriage to the
coparceners. Females, who are born in the family posses a right by birth in the coparcenary
property and those who become members of the joint family by marriage to a coparcener, are
subject to the same law as it stood before the amendment. In the landmark case of Vineeta
Sharma the Supreme court clarified the same.
This view of amendment being applied retrospectively in order to ensure the best interest of
the daughters was also upholded the Supreme Court in case of Danamma @Suman Surpur
v. Amar Singh, the Hon’ble court held that the amendment is applicable to all living
daughters of living coparceners as on 9th September’ 2005 and cannot be disputed further for
its implication.
In the case of Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., it was held that a
preliminary order passed by the Court in regards to a partition suit, do not prejudices the
rights of daughters conferred by the amendment.
Marital status of the Daughter-
The marital status of the daughter is of no relevance in cases of succession anymore. Only
daughters who were unmarried on such date could become coparceners. Besides, as the
legislature provided that their coparcenary rights were identical to that of sons, their future
marital status did not divest them of coparcenary rights. If the partition has taken place before
the amendment and the property has already been divested the section wouldn’t apply. . Thus
a partition that took place in 1974 would not be effected by this provision. Sumathi v.
Sengottaiyan, AIR 2010 Mad 145 . Though this section will apply if she got married after the
amendment.
Abolition of pious obligation of son to pay the debts of father
Under the classical Hindu law a son, grandson or great grandson was imposed with the
liability to pay their father’s debts. The emphasis to pay the father’s debts was so strong that
if the son had to pay his and his father’s debts, it was provided that he should pay his father’s
debts first, to free him from a leading a life of bondage in the next life.
This has been abrogated by the present amendment. At present, the repayment of debts
contracted by any Hindu would be his personal responsibility and the male descendants
would not be liable to the creditor.
OMISSION OF SECTION 23
This section clearly discriminated against the female heirs to seek any partition in the
dwelling house which the intestate left before the male heir chose to do so. This is the most
evident form of prejudice created by the Hindu Succession act prior to 2005, as the female
rights were restricted to dwell in that house that too only in case of she being unmarried,
separated, deserted or a widow and became contingent on the whim and fancies of the male
members of the family.
OMISSION OF SECTION 24
Section 24 disqualified the right to the property of the widow on remarriage. It discriminated
three category of women related to the intestate as the widow of a predeceased son, the
widow of a predeceased son of a predeceased son or the widow of a brother, by virtue of their
remarriage on account of opening of the succession
The rational behind this was that the widow is the surviving half of her husband and virtue of
her remarriage ceased to be the same. And by way of this her right in the property was
divested. But certain other kinds of widow as that of intestate’s own wife have not been
divested even after remarriage to have right in property of her deceased husband. After the
amendment of the act the widow of the deceased and the widow of the son were made class 1
heirs and the widow of the brother was made an agnate. This ensured that they inherit the
property immediately after the dead of the intestate, and their rights get invested accordingly.
Once her right is invested in that property, she becomes an absolute owner as per section 15.
SUBSTITUTION OF WORDS FROM “DISPOSED BY HIM” TO “DISPOSED BY HIM OR BY HER”

UNDER SECTION 30
Section 30 specifically provides for substitution of words ‘disposed of by him or her’ in place
of ‘disposed of by him’. It should be remembered that under the classical law, a coparcener
was not empowered to make a testamentary disposition of his undivided share in Mitakshara
coparcenary, and it went by survivorship to the surviving coparceners. Permissibility of
testamentary disposition of undivided share would have defeated the application of doctrine
of survivorship and therefore such disposition was void. The Hindu Succession Act, 1956, for
the first time provided competency to an undivided coparcener to make a valid bequest of his
share in Mitakshara coparcenary and the present Act extends this competency to a female
coparcener as well.
With the 2005 amendment, the equality ensured under the Constitution was reestablished and
the provisions granted the equality in status of son and daughter in a Joint Hindu Family.
DISTINGUISH BETWEEN COPARCENARY PROPERTY AND SEPARATE PROPERTY. BRIEFLY

EXPLAIN THE DIFFERENT MODES OF PARTITION.
A coparcenary property is the property that gets divided between coparceners on partition. A
coparcenary property will only be considered if it has been in the family for 2 generations.
The ownership in the coparcenary property is with the coparceners collectively but it is
subject to the rights of the female members and other joint family member’s rights of
maintenance that includes unmarried daughter’s right to marriage expenses.
Separate property’ is owned by a person exclusively and he enjoys absolute powers of
disposal over it. He can sell it, mortgage it, gift it, bequeath it under a Will to anyone, or
donate it for religious or charitable purpose or for public benefit in general. He can even gift
it to his sons, in equal4 or unequal shares or to just one son to the exclusion of all others, or to
any other family member. No one can ask for its partition or control its disposal in any
manner. On his death, the property will go as per the laws of inheritance or testamentary
succession
COPARCENARY PROPERTY SEPARATE PROPERTY
Acquisition of The children, grandchildren and No one acquires any interest by
interest by birth: great-grandchildren of the birth, in the separate property of a
coparcener acquire an interest in Hindu. (not even his own son)
the coparcenary property by
birth.
Nature of interest All the coparceners have Even if a Hindu is a part of a
community of interest and unity joint family his separate or self-
of possession in the joint family acquired property of a Hindu
or coparcenary property. belongs to him exclusively .
Predictability of As long as the family is As separate property belongs
share undivided, a coparcener cannot exclusively to its owner, the
predicate that he or she has, at a question of predicating shares
given share (say, one-third or does not arise in the case of such
one-fourth) in the coparcenary property.
property at any given time.
One’s share only crystallizes
after partition. Till then his share
will keep fluctuating i.e.
decreases with every birth and
increases with every death.
Alienation by gift No coparcener can, however, Separate property can be gifted
alienate his undivided interest in away by the owner, to any extent,
the coparcenary property by way and to any person.
of gift, without the consent of
the other coparceners.
Alienation by will Prior to 1956, no coparcener Separate property could be freely
could dispose of by will, his disposed of by will. No affect
undivided interest in the after 1956 Act.
coparcenary property. But now,
S. 30 of the Hindu Succession
Act, 1956, enables a Hindu to
dispose of such interest under a
will.
Alienation by No coparcener can alienate his The separate property of a
mortgage and sale undivided interest in a coparcener can, on the other
coparcenary by sale or hand, be freely alienated by him,
mortgage, without the consent of by way of sale or mortgage, or
the other coparceners. Only the otherwise.
Karta can do this under certain
circumstances keeping in mind
the welfare of the family.
Partition A joint family or coparcenary There can be no question of
property is liable to be partitioning the separate property
partitioned of a member of a joint Hindu
family.
DIFFERENT MODES OF PARTITION

‘Partition’ means to divide into parts or to separate, and under Hindu law, it generally means
a division or splitting of a joint Hindu family into smaller, separate and independent units,
with conferment of separate status on the undivided coparceners. No partition is possible
unless there are at least two coparceners in a joint family, as it is not merely the division of
the family, but in essence, it is the disruption of the undivided coparcenary in a joint family.
For a partition, at least two coparceners must be present, and no partition can take place if
there is only one coparcener, in which case, he would be called a sole surviving coparcener.
The Supreme Court in its observation said that the partition can be partial or total, Partition
could be partial with respect to members of joint family or joint family property. The onus of
proof lies upon the parties who claim it to be a partial partition. Partition could be partial with
respect to the members of joint family or joint family property. A partition can be effected by
the father even during his lifetime among his sons. A partition could also take place by (i)
agreement, (ii) institutution of a suit to that effect, (iii) arbitration. It is not necessary for
partition that the joint family property is divided by every bit of it.
Partition by mere declaration
Partition under the Mitakshara law is severance of joint status and as such it is a matter of
individual volition. An unequivocal indication of desire by single member of joint family to
separate is sufficient to effect a partition. One cannot, however, declare or manifest his
mental state in a vaccum. To declare is to make known, to assert to others. ‘Others’ must
necessarily be those affected by the said declaration. Therefore a member of a joint Hindu
family seeking to separate himself from others will have to make known his intention to the
other members of the family from whom he seeks to separate. The process of manifestation
may vary with circumstances. In Raghvamma v. Chenchemma, the Supreme Court laid
down that it is settled law that a member of joint Hindu family can bring about a separation in
status by a definite declaration of his intention to separate himself from the family and enjoy
his share in severalty. Severance in status is brought about by unilateral exercise of
discretion.
The Supreme Court in Puttorangamim v. Rangamma, reiterated that “it is, however,
necessary that the member of the joint Hindu family seeking to separate himself must make
known his intention to other members of the family from whom he seeks to separate. The
process of communication may vary in the circumstnaces of each particular case. The proof
of a formal despatch or receipt of the communication by other members of the family is not
essential, nor its absence fatal to the severance of the status.
Conversion
As the term ‘Hindu Joint family’ itself suggests, only a Hindu can be its member. Religion is
of utmost importance here and a non-Hindu therefore, cannot be its member. Coparcenary is
an institution within a joint family and therefore, unless and until a person is a member of a
Hindu joint family, he cannot be a member of a coparcenary. A coparcener who renounces
his religion and converts to the Muslim (as in the case of Rani Pergash v. Dahan Bibi, AIR
1924 Pat 420) or Christian faith (Vaithilinga v. Avyathorai, (1927) ILR 40 Mad 118),
immediately ceases to be a coparcener, as an automatic severance of status takes place. This
is because till a person is a Hindu, it is the Hindu law that applied to him, but the moment he
converts to another religion, his family law also changes. Mitter Sen Singh v. Maqbul
Hasan Khan, AIR 1930 PC 251
Partition by Will
Partition may be effected by a coparcener by making a will containing a clear and
unequivocal intimation to the other coparceners of his desire to sever himself from joint
family or containing an assertion of his right to separate. In Potti Laxmi v. Potti
Krishnamma, the Supreme Court observed, “Where there is nothing in the will executed by a
member of Hindu coparcenary to unmistakably show that the intention of the testator was to
separate from the joint family, the will does not effect severance of status.”
Marriage under Special Marriage Act, 1954:
Marriage of a Hindu under the Special Marriage Act, 1954 causes severance of joint status.
Presently, it is not the performance of the marriage of a coparcener under the Special
Marriage Act, that would effect his severance from the coparcenary, but his marriage to a
non-Hindu, under this Act, that would operate as an automatic partition from the coparcenary.
Girdhari Lal v. Fateh Chand, AIR 1955 MB 148 .
Partition affected by Father
The father, under Hindu law, has superior powers in comparison to the other coparceners. His
share in the joint family property is the same as that of his sons, but by virtue of his rights as
Patria Potesta, he has the power to not only separate himself from the rest of the joint family
by effecting a partition. (Apporva Santilal Shah v. Commissioner of Income Tax, AIR 1983
SC 409) In Approver v. Ram Subba Iyer the Privy Council had observed that no coparcener
can claim any defined share in the joint family property in a joint family, but where the
coparceners enter into an agreement to the effect that every member will have a specific and
defined share in future, the joint status is affected and every coparcener acquires a right to
separate his specific share and use the same to exclusion of others.
Partition by agreement
It is not essential that a desire to effect a severance must be initiated either by the father, or by
one coparcener alone. If all the coparceners decide to destruct their joint status, it is called a
partition by agreement. Rajendra Nath v. Commissioner of Income Tax, (1991) 188 ITR
753 (All). A partition by agreement should not be a sham agreement, in order to defeat the
provisions of law or the rights of a third party. Ramanna v. Jaannatha, AIR 1941 PC 48 .It
is not necessary in a partition by agreement, that the shares allocated to each and every
coparcener, be absolutely equal. It does not however, mean that they can be unjust, unfair or
can adversely affect the interests of a minor, as in such cases, it will be open to challenge. A
partition by agreement may also include within itself, a family arrangement, where doubtful
and disputed rights are compromised, with the primary aims of conserving family property
and avoiding litigation. Ramcharan v. Girijanandam, AIR 1966 SC 323
Partition by Suit:
Mere institution of a partition suit disrupts the joint status and a severance of joint status
immediately takes place. A decree may be necessary for working out the resultant severance
and for allotting definite shares but the status of a plaintiff as separate in estate is brought
about on his assertion of his right to separate whether he obtains a consequential judgment or
not. So even if such suit was to be dismissed, that would not affect the division in status
which must be held to have taken place when the action was instituted. Ordinarily a partition
is affected by instituting a suit to this effect. In case of a suit for partition in joint status,
father’s consent to the suit for partition is no longer necessary. The son is fully eligible to file
a suit for partition even during the lifetime of father.
“SECTION 14 OF HINDU SUCCESSION ACT CONFERS ABSOLUTE OWNERSHIP RIGHTS IN
PROPERTY ON HINDU WOMEN”. COMMENT CRITICALLY.
Section 14 of the present Act, converted the limited ownership into a full-fledged ownership
and also ended the confusion and controversy regarding the exact share that the widow took
on the death of her husband as an undivided member in the Mitakshara coparcenary. Any
property that a Hindu female acquires after the coming into force of the Act will be her
absolute property unless given to her with limitations. Thus, the property obtained on
succession or on partition is now her absolute property. Panchi v. Kumaran, AIR 1982 Ker
137.
Subsection (2) of section 14 enacts a well-established principle of law, viz., if the grant is
given subject to some restrictions, the grantee will take the grant subject to those restrictions.
Section 14(2) lays down that if the gift, will or any instrument, decree or order of a civil court
or an award grants only a restricted estate to a Hindu female, she will take property
accordingly. In the absence of such an intention, the woman's grant win be her absolute
property. Sub-section (2) is based on the principle of sanctity of contracts and grants.
Veddeboyina v. Veddeboyina, AIR 1977 SC 1944. In case of a restrictive clause she will be
governed by the or an award. Badri v. Kanso, AIR 1970 SC 1963.
There were two basic objectives of the Act. The first one was to remove the disability
imposed under Hindu law on a woman, to hold the property only as a limited owner. The Act
removed it expressly, enabling her to acquire the property from whatever may be the mode,
as a full owner, that included a power to dispose it of at her pleasure. Secondly, it also
converted the then existing limited ownership, into an absolute ownership, by providing that
where a Hindu female was in possession of the property as a limited owner, such limited
ownership would automatically mature into an absolute ownership from the date of the
commencement of the Act. As held in multiple cases including Ram Lubhaya v. Lachhmi,
and Sri Ramakrishna Mutt v. M Maheshwara. A woman who had no power to alienate her
share at her pleasure, a day before the commencement of the Act, overnight acquired such
power, and instead of her husband’s heirs taking her property, the property could be
transmitted by her to her own heirs, thus abolishing the concept of reversioners.
Section 14 provided:
Property of a female Hindu to be her absolute property. — Any property possessed by a
female Hindu, whether acquired before or after the commencement of this Act, shall be held
by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section, ‘Property’ includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition or in lieu of
maintenance or arrears of maintenance or by gift from any person, whether a relative or not,
before, at or after her marriage, or by her own skill or exertion, or by purchase or by
prescription or in any other manner whatsoever and also any such property held by her as
stridhan immediately before the commencement of this Act.
By providing for absolute ownership and a very wide definition of the term ‘property’, the
Act also abolished the entire distinction between stridhan and non-stridhan, saudayika and
non-saudayika stridhan and the different modes of its acquisition and devolution.
Two conditions were required to be satisfied before the limited estate matured into an
absolute estate, viz.:
(i) she possessed the property as a limited owner; and
(ii) she had not remarried
From the undivided share of the deceased husband in the Mitakshara coparcenary, her
presence defeats the application of the doctrine of survivorship over his undivided share and
prevents it from going to the surviving coparceners. The share of the deceased husband is
ascertained by means of a notional partition and she inherits his share as his class-I heir,
taking it as an absolute owner.
Property given in lieu of maintenance.-The karta can grant some property to a member of the
family for his or her maintenance. The right of a Hindu female to get maintenance out of the
joint family property is an indefinite right, yet it is a right under the Hindu law. If she is put in
possession of certain properties in satisfaction of thatright for her life she is not a trespasser
on property. The court in the case of Chinnappa v. Valliammal, AIR 1969 Mad 187 that a
woman need not surrender the properties held by her under the maintenance deed even during
partition. Where no property is given in lieu of maintenance and only a sum of money is
given, then Section 14 does not apply. Suldbha v. Abhimanyu, AIR 1983 Ori 71.
For widows who, on the date of the passing of the Act, were in possession of the property as
limited owners, it was provided that henceforth, they would hold these estates as full owners
thereof. The question whether a limited estate conferred under a will becomes a full estate by
virtue of S. 14(1), came for consideration before the Supreme Court in Karmi v. Amru. AIR
1971 SC 745. It was held that where only life estate is conferred under a will, S. 14(2) will
apply, and the estate will not become a full estate. But if a will confers on her full estate, she
will take absolutely. Lalit Mohan v. Prafulla, AIR 1982 Cal 52. The properties given under a
settlement to the widow which were to revert to the settlor or his brother on her death, do not
get enlarged into a full estate. K. Satyanarayan v. G. Sithayya, AIR 1987 SC 353.
PROVISIONS REGARDING SUCCESSION TO THE PROPERTY OF A HINDU MALE DYING

INTESTATE./ GENERAL PRINCIPLES OF SUCCESIONS
The provisions for The general principles of inheritance that are applicable in case of
both male and female intestates, are enshrined under ss. 18 to 28 of the Act. These
principles give statutory form to certain well-established Hindu law norms,
which are deeply entrenched in the society:
Section 18 FULL BLOOD PREFERRED TO HALF BLOOD
As a general rule, heirs of the intestate related to him by full-blood, are preferred to
those related byhalf-blood, if they stand in the same degree of propinquity. These
terms, ‘full-blood’ and ‘half-blood. Relationships,’ are used to explain how brothers
and sisters, to begin with, can be related to each other. When brothers and sisters share
both the parents, their father and mother are the same, they are called full-blood
brothers and sisters. When they are from the same father, but are from different
mothers, they are called half-blood brothers and sisters, and when they are from the
same mother but are from different fathers, they are called uterine brothers and sisters
Illustration:
a couple having a daughter adopts a son. This son will be related to the
daughter by full-blood relationship.
The section states that:
Heirs related to an intestate by full-blood shall be preferred to heirs related by half-

blood, if the nature of relationship is the same in every other respect.
This means that in case intestate succession of a deceased, the said deceased full-
blood relative will be preferred to inherit the property of the deceased over a half-
blood who has the same relation in every aspect.
However, this rule doesn't extend to gender differences, as It does not refer to the
sex of the heir, but speaks of the kind of relationship that two heirs may have with
respect to the interstate. Where a brother and a sister have the same relationship
with the intestate in every other respect, a full-blood sister would exclude a half-
blood brother and a half-sister
Satya Charan v . Urmila , AIR 1970 SC 1714
In this case, the Supreme Court has also held that the heirs of a full-blood brother,
would exclude the heirs of a half-blood sister, not because of the sex of the sister,
but because of the preference to full blood relationships.
Section 19, MODE OF SUCCESSION OF TWO OR MORE HEIRS
section 19 prescribes the general provision for when two or more heirs are
being succeeded by an interstate. in such a situation wherein:
If two or more heirs succeed together to the property of an intestate, they shall
take the property:
1. save as otherwise expressly provided in this Act, per capita and not per stirpes;
and
2. as tenants in common and not as joint tenants
Two understand this we will first understand the two modes of the division of
property:
Methods of division of property
Per Capita: All individuals in that particular class will inherit the same share
of the distribution. For instance, all children will share the same proportion of
the property they inherit from the deceased Hindu male.
Per Stirpes: This is a more generational method that presents a defined hierarchy.
When a Hindu male dies intestate, then his property and assets are distributed and
transferred to his legal heirs, in accordance with the Hindu Succession Act 1956.
The rule presently is, that if two or more heirs succeed together, such as a son,
daughter and mother of a male intestate, they take the property per capita (a share
each) and not per stirpes,
this means that they share the property as tenants-in-common and not as joint
tenants.
Tenants-in-common
This means that two or more heirs together take the property, but they take it
individually, in their own right. Their shares are specified and if before the
demarcation, one of them dies, his share passes to his own heirs and does not go
by survivorship to the co-heir
Joint tenants
This means that where two or more heirs succeed together and hold the property as
joint tenants, if one of them dies, the other takes the share of the deceased by
survivorship and prevents it from going to his legal heirs.
Nagamma Naicker v . Ponnu Chinnayyan
wherein the high court of madras held that two widows succeeding
together to their husband’s property will take their husband’s property as
tenants-in-common. Similarly, in the landmark judgement of Usha Singh v
. Veerendra Kumar, the apex court ruled in favour of this provision.
Section 20, rights of an unborn child
A child who was in the womb of his mother at the time of the death of an intestate
and who is subsequently born alive, shall have the same right to inherit to the
intestate, as if he or she had been born before the death of the intestate, and the
inheritance shall be deemed to vest in such a child with effect from the date of the
death of the intestate.
Two conditions that need to be satisfied here are that:
(i) the child should be in the womb of the mother at the time of the death of the
intestate, and
(ii) it should be born alive.

Anasuya Bai v . Jagadish
This right comes in force at the birth of the child but has a retrospective
effect, viz. , from the date of the death of the intestate.
Section 21, PRESUMPTION IN CASE OF SIMULTANEOUS DEATHS
When two persons die in circumstances that render it uncertain as to whether either of them
and if so, which survived the other, then, for all purposes affecting succession to property, it
shall be presumed, until the contrary is proved, that the younger survived the earlier
Raman Khanna v. Sham Kishore Khanna Jayantilal v . Mehta
in this case a mother and daughter died together in a fire accident, the gujrat highcourt rulled
that the daughter survived the mother.
Section 22, PREFERENTIAL RIGHT TO ACQUIRE PROPERTY IN CERTAIN CASES
Where, after the commencement of this Act, an interest in any immovable property of an
intestate, or in any business carried on by him or her, whether solely or in conjunction with
others, devolves upon two or more heirs specified in class-I of the Schedule, and any one of
such heirs proposes to transfer his or her interest in the property or business, the other heirs
shall have a preferential right to acquire the interest proposed to be transferred
The basic objective of this provision is to prevent the fragmentation of the estate and to avoid
the introduction of strangers into the family business. The rule applies where a male intestate
dies and the property is inherited by his class-I heirs. As per the language used in s. 22, it
does not apply when the property of a female intestate is inherited by her cl. (a) heirs,
although the opening words indicate that a male or a female may carry on the business.
Benirani Ray v. Ashok Kumar Ghose, the property that was in the nature of a residential
house and courtyard was inherited by two sons of the intestate. The brothers continued to
enjoy it together without affecting any formal partition by metes and bounds. One of the sons
executed a sale deed of his half undivided share in favour of three strangers to the family of
his who sued for partition and separate possession of the property. The court held that the
other brother could by filing a regular suit work out his remedy in consonance with the
provisions of Sec. 22 and these strangers to the family cannot be given possession of the
property in light of Sec. 44 of the Transfer of Property Act, 1882 and observed that as per
Mitakshara law every co sharer has a right on every inch of land belonging to joint family. In
the case of Nagannal vs Nanjammal, 13 1970 MLJ 358 case the Madras High Court said
Section 22 ernbodies two-fold aspects of the right of pre-emption viz. (i) the primary and
substantive right to have an offer made; arid (ii) the secondary or remedial right of the co
heirs if the property is sold without being first offered to him to take it from the purchaser.
This right is personal and is not attached to the property.
MINORITY AND GUARDIANSHIP QUESTIONS
EXPLAIN DIFFERENT KINDS OF GUARDIANS AND THE PROCESS OF REMOVAL

Ans. There are three kinds of guardians – Natural, de facto and testamentary. Guardianship
can be implied because of familial relationships, by continuous conduct or by written will.
Natural guardianship – A natural guardian gets his claim to guardianship by virtue of his
relation with the child. In hindus, according to sec 6 of the HMGA the father has the
guardianship of the child and after him the mother. The same is true in the cases of an
unmarried girl, however, in the case of an illegitimate child, the guardianship rests with the
mother and not the father. In the case of a minor married girl, the father is the guardian of
such a girl and after marriage the husband becomes the guardian. In the case of Kakula
Suresh v State of UP the court upheld the petition by the husband to bring his minor bride
back home from a state home.
With respect to adoptive parents, pursuant to section 7 of the HMGA, the adoptive father is
first the guardian and then the adoptive mother. The prevalence of guardianship rights of an
adoptive parent over the natural parent had been seen in the case of K.M Rao v
Nagbhushnam, where the court favoured the guardianship claim of the adoptive parents.
Powers of natural guardians –

As under sec 8 of the HMGA and sec 29 of the Guardians and Wards Act, the guardian can
do anything which is held necessary under the eyes of the court or beneficial for the minor,
however, he can not bind the minor by a personl covenant. He/she can do the following acts
only after obtaining prior permission of the court:
(i) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the
immovable property of the minor;
(ii) lease any part of such property for a term exceeding five years, or for a term
extending more than one year beyond the date of the minor’s attaining majority.
The court shall grant permission to the natural guardian to exercise the above-mentioned
powers only in these situations, viz: (i) necessity (ii) evident advantage to the minor.
The court’s primary concern in such cases is ensuring the welfare of the child. The same had
been seen in the case of Ram Krishan Gupta v Nootan Aggarwal, where the court had held
that the mother’s acquisition of property under her son’s name as his guardian was in the
welfare of the child, as the property was near the rest of the family. The converse has also
been seen, where the guardian was unable to prove the ostensible benefit to the child and the
court voided the transaction. For example, in the case of Divya Dip Singh v Ram Bacchan
Mishra, the disposal of immovable property had been voided as no express permission had
been taken and there was no clear benefit to the child.
a) De facto guardian –
A de facto guardian is one who for the time being acts keeping in mind the child’s interest
and well being. To be a de facto guardian, some continuous conduct towards the childs
interest is important. A solitary and distinct act towards the minor or his property will not
warrant the title of de facto guardian. A de facto guardian is someone who has no legal
authority, neither has he been given an authority by the parents, but assumes the role of a
guardian keeping in mind the minor’s interest. Tyabji defines de facto guardian as,
“unauthorised person who, as a matter of fact, has custody and care of the person and or his
property.’
Prior to the Hindu Minority and Guardianship Act, 1956, a de facto guardian had power to
alienate the property of the minor for legal necessity or for benefit of the estate of the minor.
(Hanuman Pd. v. Babooee) This was also the view of several High Courts. Under s. 11 of the
Act, ‘no person shall be entitled to dispose of, or deal with, the property of a Hindu minor
merely on the ground of his or her being the de facto guardian of the minor.’ This provision,
however, in the opinion of Paras Diwan, does not mean that de facto guardianship has been
abolished. According to him, in cases where a minor’s property is not much, or in cases
where a person is not willing to take the pain and expenses of getting oneself appointed a
guardian, yet he is willing to act in the interest of the minor in our peculiar social context, the
de facto guardian fulfils a social need.
While an alienation of minor’s property not supported by benefit or necessity is valid unless
set aside, such alienation by a de facto guardian is void and the minor can, on attaining
majority, ignore it or ratify it. In Jadav Jethabhai v. P.K. Jethabhai, where an alienation of
minor’s property was made by a de facto guardian without authority or legal necessity and
the minor challenged the same, the issues raised were whether the alienation of immovable
property by the de facto guardian of a minor is always void and whether it is obligatory for
the minor to get it quashed by legal process The court held that the minor could simply ignore
the transaction and need not have it set aside.
b) Testamentary guardianship –
A testamentary guardian is one who has been appointed by the will of the parents. Besides
the parents, no one else can appoint a testamentary guardian. According to early laws, only a
father could appoint a testamentary guardian, an that guardian could substitute the mother’s
claim to guardianship. However, now under the Hindu Minority and Guardianship Act 1956,
both parents can appoint a testamentary guardian.
According to sec 9 of the HMGA, a father may appoint a testamentary guardian, however, if
the mother survives after the father’s death, she would have a better claim to the
guardianship. If both the parents appoint a testamentary guardian, the mother’s appointee will
prevail over the father’s. However, if the mother fails to appoint a testamentary guardian, the
father’s appointee will prevail and there can be no protests against that. A Hindu mother
entitled to act as the natural guardian of her minor legitimate children by reason of the
father’s disability (i.e., if he has ceased to be a Hindu, or has renounced the world), may
appoint a guardian in respect of minor’s person or property. The prevalence of the father’s
right to appointment over the step mother has been seen in the case of Vinod Kumar v
Draupadi Devi
It is important to note that with respect to illegitimate children, a Hindu father can not appoint
a guardian by will. This right, under sec 9(4) of the HMGA has been given only to the mother
of the children.
Powers of the testamentary guardian
The powers of the guardian is synonymous with the natural guardian, as given under sec 9(5)
of the HMGA. Under sec 28 of the Guardians and Wards Act 1890, the guardian can sell, put
on mortgage or lease any immovable property, subject to the restrictions of the will.
However, he can assume full control of the property if he has been named guardian and has
the court’s consent for doing away with the immovable property, if he can prove it to be in
the interest of the child.
Removal of testamentary guardian
As given in sec 30 of the Guardians and Wards Act, a testamentary guardian can be removed
on the following reasons –
(i) abuse of his trust
(ii) ; (ii) continued failure to perform duties;
(iii) (iii) incapacity to perform duties
(iv) ; (iv) ill-treatment, or neglect to take proper care of his ward
(v) contumacious disregard of any provisions of the Act or of any order of the court;
(vi) (vi) conviction of an offence implying, in the opinion of the court, a defect of
character which unfits him to be the guardian;
(vii) (vii) having an interest adverse to the faithful performance of his duties;
(viii) ceasing to reside within the local limits of the jurisdiction of the court;
(ix) (ix) in the case of guardian of property, bankruptcy or insolvency.
Furthermore, sec 6 of the HMGA provides for the following two reasons –
(i) if he has ceased to be a Hindu; or
(ii) has completely and finally renounced the world by becoming a hermit or an
ascetic
Q WELFARE OF CHILDREN IS OF PARAMOUNT IMPORTANCE. COMMENT WITH CASE LAWS

[WELFARE OF CHILD – PARAMOUNT IMPORTANCE SEC 13 HMGA AND SEC
17 GUARDIANS AND WARDS ACT]
As pointed out above, guardianship and custody are two distinct issues—while guardianship
could lie with one person, custody may be given to another. Thus in Athar Hussain v. Syed
Siraj Ahmed, 18 the court held that the father was a fit person to be the guardian, but the
welfare of the child—whose mother was dead—lay with her custody being given to the
maternal grand parents. The fact that the father had remarried, was indicated to be an
important factor, though not an absolute bar, the court clarified. Further, the court made it
explicit that as far as issue of custody is concerned, the court is not bound by the bar
envisaged under section 19 of the Act, under which the court cannot appoint anyone as a
guardian of a minor whose father is alive and is not unfit to be a guardian.
In this case, under the personal law governing the minor girl, her maternal relations are to be
given preference, the court held. In any case, legal rights of parties are immaterial in custody
disputes. As observed by the Calcutta High Court in Tarun Ranjan Majumdar v. Siddartha
Data, even if a child is in the custody of one, who has no legal right thereto, and its welfare is
reasonably looked after in a manner in which it should, the legal guardian cannot claim an
order of the return or recovery of custody, merely on the strength of his legal right or
financial soundness.
In Kirtikumar Joshi v. Pradip Kumar Joshi, custody of two minor children was sought by
father as also by maternal uncle. Mother of the children died an unnatural death and the father
was facing charge under section 498 -A of the IPC Children were staying with the maternal
uncle and they also expressed their desire to stay with him and not with the father. The court
granted custody in favour of maternal uncle. Whatever the statutory position or law, the fact
remains that the predominant consideration is the welfare of the child.
As observed by the Supreme Court in Jacob v. Jacob: 22 Similarly, in Baby Sarojan v. S.V.K.
Nair,the court made the following pertinent observations: As to what constitutes paramount
welfare of the child, the following observations of Lindley L.J. in Re Mc. Grath (infants), 24
which are approvingly quoted by courts in India,25 are pertinent: A few judgments on this
point may be analysed.
The plea that the mother is a working lady and so cannot take care of the child cannot defeat
or dilute her right to custody. Thrity Hoshie Dolikuka v. Hoshiam S. Dallikuka, is a
significant case on the point, under section Section 49 of the Parsi Marriage and Divorce Act,
1936. The Bombay High Court had refused custody of the minor daughter to the mother, on
the ground that she would not be available to the child for most part of the day. In appeal, the
Supreme Court analysed the entire facts and circumstances in great detail and held that the
welfare of the child demands that custody be given to the mother. However, since the
litigation had put the child under great mental and emotional stress, the court directed that the
child be sent to a boarding school with visitation rights to the father. There is no reason to
draw a presumption that a mother who is employed and transferred outside the State cannot
look after the welfare of the child.
As very aptly remarked by the court in Smita Krishna Shetty v. Vinay Shankar Shetty: The
plea that a working mother leaves a child in a care-home does not mean that she is unable to
take care of the child. It is not unusual for working mothers to utilise services of a care-
home.28
In Ravi Dadu v. Seema Gupta, 29 a female child was living with her mother and step-father
since 10-12 years. On father’s application for visitation rights, the court held that the child
need not be forced to meet her real father. The High Court, however, directed that if the child,
on her own, wishes to communicate and meet her father, she may do so unhindered by any of
the parties. Custody of a year-and-half old daughter who was staying with the father was
given to the mother who was forced to leave matrimonial home under compulsion;30 and so
also of a ten year old daughter who too was staying with the father. According to the court,
the girl was nearing adolescence and would need her mother.
Ram Nath v. Ravi Raj Dudeja 32 was a custody dispute between the father and the maternal
grandparents. The mother of the minor had died under suspicious circumstances, and the
father was tried under s. 304 of the Indian Penal Code, 1860, and convicted by the trial court,
but acquitted by the appellate court. When the child’s father was taken into custody, the child
was only four years old, and ever since then, he was being looked after very well by the
maternal grandparents. The child who was by now sixteen also preferred to live with
maternal grandparents. The court held that the interest of the child lies with the grandparents
and not the father.
Nil Ratan Kundu v. Abhijit Kundu 33 is a very pragmatic judgment of the Apex Court,
wherein it has emphasised that, it is not the "negative test" that the father is not "unfit" or
disqualified to have custody of his child, which is relevant, but the "positive test" that such
custody would be in the interest of the minor. It is only on such basis that the court should
grant or refuse custody of the minor in favour of the father, mother or guardian. In this case,
the child was just five years old when the mother was allegedly tortured and harassed by the
father and she succumbed to injuries. Criminal cases against the father and his parents were
pending and they were arrested. The child, who was ailing at that time, was handed over to
the maternal grandparents’ who took charge and brought him up with utmost love and
affection. When the father came out on bail, he sought custody of the child. Both the trial
court and the High Court granted custody to the father on the ground that he being the natural
guardian, the future of the child would be better secured in his custody. Hence the
grandparents’ appeal to the Supreme Court. After analyzing the legal provisions and case law
in great detail, the court held that the approach of the courts below was not in accordance
with law, nor consistent with the view taken by this court (the Apex Court) in several cases.
The father’s fitness and right have to be determined and weighed predominantly in terms of
the welfare of the children, in the context of the relevant circumstances. "The father’s fitness
cannot override considerations of the welfare of the minor", the court asserted What is
important is not the "negative test" that the father is not unfit, but the "positive test" that such
custody would be in the welfare of the minor. In view of the facts and circumstances of the
case, the father’s application for custody was dismissed, the appeal of the grandparents was
allowed, and custody awarded to them.
In Yogesh Kumar Gupta v. M.K. Agarwal34 and Anjali Kapoor v. Rajiv Baijal35 also,
custody was given to the maternal grandparents and not the fathers who claimed. In fact, in
the latter case, the mother of the child had died soon after child birth, and the baby was taken
by the grandparents who took care of it; besides, the father had remarried, which was one of
the, though not the decisive, factors.
In K. Venkat Reddy v. Chinnapareddy Vishvanadha36 however, where the mother had
committed suicide due to extremely humiliating conduct of the husband when the child was
two-and-a-half years old, and soon remarried, and there was a tussle for the child’s custody
between the father and the grandparents, court gave custody to the father. According to the
court, the mere fact that the maternal grandparents disliked the father was no ground to deny
him custody in the absence of any evidence that he was unfit. The court was, further,
impressed by the fact that the second wife agreed not to have a child and also had a
tubectomy done.
In Jaswinder Singh v. Surjit Singh, 37 both the parents of a minor girl were dead and the
custody tussle was between maternal grandparents and paternal grandparents; the child was
already under the custody of maternal grandparents. The court found that the paternal
grandparents were old and in ill-health, whereas the maternal grand parents were
comparatively younger, educated and well off; custody was therefore given to them.
{ Also mention the best interest test held in the case of Solingaben Hemrajbhai Macchar v
State of Guj 2021 case}
Q EVALUATE THE STATUS OF A MOTHER’S GUARDIANSHIP CLAIM DUE TO MATERNAL

PREFERENCE RULE
The maternal preference rule, or the ‘tender years’ doctrine, (Onkar Walia v Urmila Devi)
well established through precedents, prescribes that a child of ‘tender age’ must be brought
up under the guardianship of a mother. (Lekha v P.Anil Kumar) The court recognises that a
mother is better equipped to provide the care, nurturance, guidance and love required for
normal growth and development , making the mother the favoured guardian in such cases.
(Chander prabha v Prem Nath Kapur) The Hindu Minority and Guardianship Act provides
for the custody of a child below five years of age to be assured to the mother. (Shilpa
Aggarwal v Aviral Mittal) This stands to be applicable unless the father discloses cogent
reasons that are indicative of any jeopardy being caused to the welfare of the child. (Roxann
Sharma v Arun Sharma) The same having been substantiated by this Court (Meenakshi v
State of UP* 2020 case) holds relevance in the present case. Further, the Apex Court has
issued the clarification over the same, stating that the mother cannot be disqualified from
seeking the custody of the child even after the latter crosses the five-year threshold. (Master
Advait Sharma v State of UP and ors* 2021 case)
Preference of guardianship of girl child given to the mother

It is further asserted that a mother-daughter relationship is stronger than any other parent-
offspring relationship. Therefore, as upheld by the Court in various instances, Nithya Anand
Raghavan v NCT Delhi, Guardianship of a mother is of utmost significance for the
development of a girl child’s personality, especially when she is around the age of seven.
Moreover, there are certain needs that cannot be administered by the father. Vegesina
Narasiah v Chintalapatti Raju, The mother’s guidance becomes all the more necessary in the
pubescent years as they entail a myriad of physical, emotional and hormonal changes. Kumar
V Jagirdhar v State of Delhi Taking into account the sensitivity of that age, the Court held
that the gender does play an important role in the equation of child custodies. Lastly, a sense
of safety, that can only be provided by a mother also needs to betaken into account here.
Sumedha Nagpal v State of Gujrat
Powers of guardians –
1) Natural –
As under sec 8 of the HMGA and sec 29 of the Guardians and Wards Act, the
guardian can do anything which is held necessary under the eyes of the court or
beneficial for the minor, however, he cannot bind the minor by a personal covenant.
He/she can do the following acts only after obtaining prior permission of the court:
(iii) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part
of the immovable property of the minor;
(iv) lease any part of such property for a term exceeding five years, or for a term
extending more than one year beyond the date of the minor’s attaining
majority.
The court shall grant permission to the natural guardian to exercise the above-
mentioned powers only in these situations, viz: (i) necessity (ii) evident advantage to
the minor.
An application for obtaining permission under s. Section 8 of the Hindu Minority and
Guardianship Act, 1956, can be made to the District Court, or to the civil court or to a
court specially empowered under s. 4-A of the Guardians and Wards Act, 1890, to
hear such cases. The court having jurisdiction will be the court within whose
jurisdiction the property in dispute is situated, and if the property is situated within the
jurisdiction of more than one court, then all such courts will have jurisdiction.
An alienation made with the permission of the court cannot be impeached by the
minor or any other person, except in a case of fraud or underhand dealing.
As in case of physical custody of a minor, in case of alienation of minor’s properties
too the main concern of the court is the interests of the minor who at the time of the
alienation was incompetent and incapable of making decisions. In Ram Krishan Gupta
v. Nootan Agarwal, 60 the mother, as guardian of property of minor sons, applied for
sale of vacant plots belonging to minor sons. In fact she wanted to sell these plots and
with the sale proceeds buy built flats in an established residential colony where most
of her relatives also had flats. While the lower court denied permission, on appeal the
court held that the sale of vacant land to buy flats in the names of the sons in a
residential colony where most of their relatives also had flats, would be in their
interest and hence permission was granted
Any disposal of immovable property by a natural guardian, which is not necessary,
reasonable, or not for the benefit of the estate of the minor, or which has not been
sanctioned by the court, or is leased out for a period beyond the prescribed period
without sanction, is voidable at the instance of the minor or any person claiming
under him by a suit filed within three years from the date when a minor attains
majority.61 Thus, in Divya Dip Singh v. Ram Bachan Mishra, disposal of immovable
property of a minor without previous permission of the court, was held to be voidable
at the instance of the minor. The court held that the natural guardian has no power to
create encumbrance or sell the property without court permission.
Likewise, assignment of minor’s property by the mother during the lifetime of the
father was also set aside in K.M. Chander v. C.S. Nair, 63 as the mother could not
legally execute the sale document, since she was not the natural guardian when the
father was alive, and also no sanction was obtained from the court. In Vishwambhar
v. Laxmi Narayana, 64 an alienation of minor’s properties made by the mother
without legal necessity and without prior court permission was held to be voidable.
The minor plaintiffs, on attaining majority, however, could not recover the properties
back as their suit had become time-barred.
P.V. Madhavi v. P.V. Balakrishnan is a significant judgment in this context. The
mother had sold certain properties belonging to the minor son without seeking court
permission. On attaining majority, the son filed a suit within the limitation period for
setting aside the alienation. He contended that the alienation by his mother was
wrongful and injurious to him and also the consideration i.e. the sale price, was too
meagre. While the court conceded that the plaintiff is competent to have the alienation
set aside but clarified that equity requires that the minor should restore to the
transferee any benefit he may have received under the transfer before he (minor) can
take the benefit of any decree in his favour.
It held: in this case, since the minor refused to make restitution of benefits derived
under the sale deed, the court refused to grant him relief. This restriction on the
guardian’s right to alienate minor’s properties, however, applies only to a minor’s
separate property and not to his interest in the joint family property. The father has
special powers of alienation of joint family property, including the son’s share,
provided such alienation is for legal necessity or for the benefit of the estate or for the
discharge of antecedent debts which are not avyaharika, i.e., not tainted by illegality
or immorality. Thus, where a sale was made for discharging debts incurred by father
for meeting litigation expenses and for payment of decreed debts, the same was held
to be valid. V.V.V. Ramaraju v. K.M. Rao
Likewise, where a mother acts not only as guardian but as an elder member of Hindu
joint family and she sells the joint family property, including her own share and also
the share of her minor sons, the fact that she had not taken court permission, was held
not to invalidate the sale. Sannamma v. Shivanna
Under s. Section 6 of the Hindu Minority and Guardianship Act, 1956 there needs to
be no natural guardian for minor’s undivided interest in the joint family property, and
likewise, under s. 12, where a minor has an undivided interest in the joint family
property and the property is under the management of an adult member of the family,
no guardian shall be appointed for the minor in respect of such undivided interest.
This issue came up for consideration in Narayan Bal v. Sridhar Sutar. A karta of joint
Hindu family, joined by the widows in their own capacities and also as guardians of
their minor sons, executed a sale deed in respect of some joint family lands to first
defendants, who sold them further to second defendants. The plaintiffs, who were
members of the joint Hindu family, challenged the sale as being illegal and void on
the ground of fraud, misrepresentation and taking of undue advantage of widows who
were illiterate. For the defendants, it was argued that the karta was not illiterate, and
the other widows joined him in the transaction in their personal capacities, as also in
the capacity of guardians of the minor members. The trial court held the sale to be
invalid. The first appellate court held that the sale was valid and for legal necessity. A
second appeal to the High Court was dismissed in limine, as it was of the opinion that
no question of law was involved. Hence the appeal to the Apex Court challenging the
competence of the karta of the joint Hindu family to sell the undivided interest of the
minor without permission of the court as required under s. 8 of the Act. The court held
that the joint Hindu family, by itself being a legal entity is capable of acting through
its karta and adult family members insofar as the management of the properties is
concerned. In view of ss. 6 and 12 of the
2) De facto –
Powers of de facto guardian- he has the power to alienate the property of the child in
case of (a) legal necessity and (b) necessity of the state. The only difference between
the powers of a de facto guardian and a de jure guardian is that in case of improper
alienation it will be void when done by de facto guardian and voidable when done by
de jure guardian (Jagdev v. Radhe).
He has the power to bind minor’s estate by contract if it is not the legal necessity or
the welfare of the child. In no case will be minor be liable. He has no power to
acknowledge debt on behalf of the minor or to make a gift of minor’s property.
CRITICAL ANALYSIS OF HMGA

Jursiprudence and subsequent evolution
Incidentally, the law relating to minority and guardianship amongst Hindus is to be found not
only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised
by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian
and Wards Act of 1890 and Indian Majority Act of 1875.
Indian Courts following the rule of equality as administered in England have refused to give
effect to the inflexible application of the paternal right of minor children. In equity, a
discretionary power has been exercised to control the father’s or guardian’s legal rights of
custody, where the exercise of such right cannot but be termed to be capricious or whimsical in
nature or would materially interfere with the happiness and the welfare of the child.
The law commission of India in its 2015 report has highlighted the gender anomalies prevalent in
the society which have affected the gender ratio and discrimination and why there is a need of
women empowerment. Shortly after the Hindu Minority and Guardianship Act was enacted, the
Hindu Adoption and Maintenance Act of 1956 was also enacted which had recognized the
adoption of daughters. This difference of opinion and policy happened because Hindu Minority
and Guardianship Act was Act No 32 of 1956 and Hindu Adoption and Maintenance Act was Act
No 78 of 1956 it would appear that the Nehru government’s gender consciousness had evolved a
great deal in the span of a few months.
he Law Commission could see Section 6 for what it was only when it returned to the subject in
1989 with the express intent of removing “discrimination against women in matters relating to
guardianship and custody of minor children”. Complying with the object The Law Commission
recommended the amendment of section 6 so that mother and father can have equal rights of
being a natural guardian and enjoy guardianship jointly and severally.
Sec 6 -
In Githa Hariharan (1999) 2 SCC 228, the parents of a minor applied to the Reserve Bank of
India for relief bonds in the name of their son. In the application, they stated that the mother
would act as the guardian of the child for purposes of investments made with the money.
Accordingly, in the prescribed form, the mother signed as the guardian. The bank refused to
entertain the application, and asked the parents to produce the application form signed by the
father, or a certificate of guardianship from a competent authority, in favour of the mother.
Against this, the mother filed a petition in the court.
Hearing both the petitions together, the Court observed that the wording of s. 6(a) of the
Hindu Minority and Guardianship Act, 1956—the father and after him the mother—do give
an impression that the mother can act as a guardian only after the lifetime of the father.
However, instead of striking down this section, as also s. 19(b) of the Guardians and Wards
Act, 1890 as unconstitutional, it chose to construe them in a manner, in which they would not
offend the constitutional mandate of equality and non-discrimination.
According to the court, the Constitution of India, which came into being in the year 1950,
prohibits gender discrimination, and the Hindu Minority and Guardianship Act, 1956 came
six years later. The Parliament could not have intended ‘to transgress the constitutional limits
or ignore the fundamental rights guaranteed by the Constitution of India, which essentially
prohibits discrimination on grounds of sex.’8 Adopting the rule of harmonious construction,
it held that the word ‘after’ in s. 6(a) of the Hindu Minority and Guardianship Act, 1956 need
not necessarily mean ‘after the lifetime’ but, ‘in the absence of.’
If the father is not in charge of actual affairs of the minor, either because of his indifference,
or by virtue of mutual understanding between the parents, or because of some physical or
mental incapacity, or because he is staying away from the place where the mother and the
minor are living, then, in all such situations, the father can be considered as ‘absent’ under
the provisions of both the above mentioned statutes, and the mother, who in any case is a
recognized natural guardian, can act validly on behalf of the minor as the guardian. The
predominant consideration in every case, however, would be the welfare of the child. This
ruling of the Supreme Court will solve problems of many mothers, who are practically in
charge of the affairs of their minor children, and who face harassment and embarrassment
from various authorities, who insist on father’s signatures.
Sec 7 – naturl guardianship of adopted son passes onto adoptive father and then adoptive
mother
Sec 8 – Powers of natural guardian –
Sec 9 – testamentary guardian –
Sec 10 – incapacity of minor
Sec 11 - De facto guardian not to deal with person’s property
Sec 12 – Guardian not to be appointed
CUSTODY OF CHILDREN
A Black’s Law dictionary defines custody as immediate keeping, guarding, care, watch,
inspection, preservation, or securing of a thing being in a personal care of the person who is
its custodian. In the classic Hindu law, Karta was the unquestioned custodian and guardian of
the dependants of the family so the need for a separate statute or clause for a custody or
guardianship was not given enough emphasis
Custody of child after dissolution of marriage
Custody comes into question when two parents who are caring a child get separated or
divorced. In India the majority of the divorce cases the child custody was settled by parents
themselves and if they are unable to settle themselves, they approach to the family court.
There are three types of custody which could be granted by jurisdiction of competent court.
1. Physical custody
2. 2. Joint custody
3. 3. Legal custody
Physical custody:
Physical custody is the parent’s right to have the child to reside with him or her. It
may be granted only to one parent. Custody of a child is determined by court that
whether which parent has resources and to support for best care for it so that he
should live in a safe and fulfilling environment. It is also known as sole custody.
Joint custody: Joint custody simply means both parents are actively participating in the
child’s upbringing. It can be joint physical custody, joint legal custody or both. In that case
both parents will not live together but only decisions can be taken together.
Legal custody: In legal custody, physical presence of child is not necessary all the time. It
includes decisions like where will child study or which doctor the child will be treated. It
includes major decisions like health, child’s education and religious upbringing.
It is all about the competent court that which type of custody should be granted according to
circumstances of a case. The question of child’s custody is determined by various facts and
circumstances including the age, sex and the requirement of the child amongst other
(Dhanwanti Joshi v Madhav Unde)
Custody of minor child –

The custody of a minor child under 7 yrs of age is given to mother. If she is not
psychologically fit or not able to provide the parental upbringing then custody of a minor
child will be given to father. In K M Vinaya v/s. B. Srinivas, a two judge bench ruled that
both parents are entitled to get custody for sustainable growth and development. In the case
of Bimla and others v/s. Anita it was held that mother is the best person to to effectively take
care of child’s interest and welfare of the child lies with the mother. ) The court recognises
that a mother is better equipped to provide the care, nurturance, guidance and love required
for normal growth and development , making the mother the favoured guardian in such cases.
(Chander prabha v Prem Nath Kapur)
Legitimate children –
The custody of legitimate children under section 19 of Guardianship and Wards Act, 1890
and section 6(a) of Hindu Minority and Guardianship Act 1956 speaks about the position of
legitimate children. “Father is the natural guardian of his minor legitimate children, sons and
daughters”. Father’s right of guardianship is considered to be subordinate to the welfare of
the child.
(ADD WELFARE PART)
Illegitimate children –
The mother is the natural guardian of the minor illegitimate children even if the father is
alive.25 Under this category the children born in a live in relationship are considered. They
only belong to the moth
Interim custody / Temporary custody
Section 12 of the Guardians and Wards Act, 1890, empowers the Court to make orders for
temporary custody and protection of the person or property of the minor.
While deciding the question of interim custody, the court must be guided by the welfare of
the children since Section 12 empowers the court to make any order as it deems proper. The
factors that must be kept in mind while determining the question of guardianship will apply
with equal force to the question of interim custody. The strict parameters governing an
interim injunction do not have full play in matters of custody, Athar Hussain v. Syed Siraj
Ahmed,
CUSTODY DISPUTES
Custody laws are dealt amongst three personal laws, which are Indian Divorce Act, 1869
(section. 41 and 43), the Parsi Marriage and Divorce Act, 1936 (section. 49), and the Hindu
Marriage Act, 1955 (section. 26).26 Studies have showed that eighty-five to ninety of
children custody are given to the mother.27 The main issue with custody is interference. This
occurs when one of both the parents intentionally disobey the visitation schedule or fail to
live up to the parental agreement.28 Custody issues include custody disputes, sole v/s. Joint
custody, visitation disputes. According to Law Commission in its 133rd report made a
recommendation on the issue of child custody that mother should have same and equal rights
in respect of the custody of minor’s persons and property
GUARDIAN PROVIDED BY LAW

Guardian declared and appointed by the court Where the court is satisfied that it is for the
welfare of a minor that an order should be made appointing a guardian for the person,
property or both, the court may make an order under the guardian of a minor, the welfare of
the minor shall be the paramount consideration. The question of appointment by the court of
a guardian can be considered on the application of:
(1) The person desirous of being or claiming to be the guardian of the minor;
(2) Any relative or friend of the minor;
(3) The collector of the district or other local area in which: (i) The minor ordinarily resides;
(ii) The minor holds property;
(4) If the minor belongs to a class, the collector who was authority with respect to that class
Jayshree v Doddawamath
Considerations governing grant of custody

A court while dealing with custody cases, is neither bound by statutes nor by strict rules of
evidence or procedure nor by precedents. The court has to give due weight to a child’s
ordinary comfort, contentment, health, education, intellectual development, and favourable
surroundings. But over and above physical comforts, moral and ethical values cannot be
ignored. They are equally, or even more important, essential and indispensable
considerations. If the minor is old enough to form an intelligent preference or judgment, the
court must consider such preference as well, though the final decision should rest with the
court as to what is conducive to the welfare of the minor, Nil Ratan Kundu v. Abhijit Kundu
The welfare of the child shall include various factors like ethical upbringing, economic well
being of the guardian, child’s ordinary comfort, contentment, health, education,
etc., Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari,
The crucial factors which have to be kept in mind by the courts for gauging the welfare of the
children and equally for the parents can be, inter alia, delineated, such as (1) maturity and
judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character;
(5) ability to provide continuing involvement in the community; (6) financial sufficiency and
last but not the least the factors involving relationship with the child, as opposed to
characteristics of the parent as an individual, Lahari Sakhamuri v. Sobhan Kodali
Nature of custody orders –
In a matter relating to the custody of a child, the Court must remember that it is dealing with
a very sensitive issue in considering the nature of care and affection that a child requires in
the growing stages of his or her life. That is why custody orders are always considered
interlocutory orders and by the nature of such proceedings, custody orders cannot be made
rigid and final. They are capable of being altered and moulded keeping in mind the needs of
the child, Vikram Vir Vohra v. Shalini Bhalla,
Guardianship or custody orders never attain permanence or finality and can be questioned at
any time, by any person genuinely concerned for the minor child, if the child’s welfare is in
peril, ABC v. State (NCT of Delhi)
Where to file for custody
S9 of the Guardians and Wards Act, 1890 makes a specific provision as regards the
jurisdiction of the court to entertain a claim for grant of custody of a minor. The solitary test
for determining the jurisdiction of the court under Section 9 is the “ordinary residence” of the
minor. The expression used is “where the minor ordinarily resides”**. Now whether the
minor is ordinarily residing at a given place is primarily a question of intention which in turn
is a question of fact. It may at best be a mixed question of law and fact, but unless the
jurisdictional facts are admitted it can never be a pure question of law, capable of being
answered without an inquiry into the factual aspects of the controversy, Ruchi
Majoo v. Sanjeev Majoo
Difference between custody and guardianship
The appointment of a guardian and the custody of minors are two different aspects. There is a
subtle distinction between the expression “Custody” and “Guardianship”. The concept of
custody is related to physical control over a person or property. The concept of guardianship
is akin to trusteeship. A guardian is a trustee in relation to the person of whom he is so
appointed. The position of a guardian is more onerous than of a mere custodian. The custody
maybe for short duration and for a specific purpose, Ramesh Tukaram Gadhwe v. Sumanbai
Wamanrao Gondkar, 2007 SCC OnLine Bom 975.
The question of guardianship can be independent of and distinct from that of custody in the
facts and circumstances of each case. As far as matters of custody are concerned, the court is
not bound by the bar envisaged under Section 19 of the Guardians and Wards Act,
1890, Athar Hussain v. Syed Siraj Ahmed
MUSLIM CUSTODY AND GUARDIANSHIP

Applicability of the act
The custody of a minor child in Islam is called Hizanit, which literally means the care of the
infant. As per the Shariat law that applies to Muslims, the father is considered to be the
natural guardian of his children irrespective of sex, but the mother is entitled to the custody of
her son till the age of 7 years and of her daughter till she attains puberty. Thus under the
Muslim law a male would attain majority/adulthood when he reaches the age of 7 years and a
female would attain majority on attaining puberty.
The question that emerges is whether the Muslim personal law (Shariat) would also be
applicable to a proceeding under the Guardianship Act. As stated earlier Section 6 gives
scope for the application of the personal law to which the minor is subjected to. Further
Section 17 of the G&W Act also stipulates that a guardian has to be appointed in consonance
with the personal law by which the parties are governed.
The said legal proposition was amply dealt with by the Hon’ble High Court of Delhi
in Akhtar Begum vs Jamshed Munir, which held that “the personal law of the parties has to
be kept in view in deciding an application for custody by virtue of the mandate of Section 6
of the Act. If a Court does not keep that in view it would be acting illegally and with material
irregularity”.
Further the Hon’ble High Court of Delhi while dealing with a habeas corpus petition
in Mohammad Nihal Vs State, has taken the aid of Section 2 of the Muslim Personal Law
(Shariat) Application Act, 1937 which states that, regarding matters pertaining to succession,
inheritance, marriage, divorce, guardianship, etc, where the parties are Muslims, the Muslim
Personal Law (Shariat) shall be applicable. The Hon’ble Court has held that, “if some doubt
prevails pertaining to the applicability of Shariat laws in guardianship matters, it stands
clarified by virue of Section 6 of the G&W Act.
Who is a Minor?
According to Section three of the Indian Majority Act, 1875, someone domiciled in the Republic
of India who is below the age of eighteen years, is a minor.
A minor is assumed to have no capacity to protect his or her own interests. Law thus, requires
that some adult person must safeguard the minor’s person or property and do everything on his
or her behalf because such a minor is legally incompetent.
Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s
person and for protecting the minor’s property.
Muslims distinguish between oversight of the child and the physical custody of the kid
The guardianship of a child means that overall oversight of the kid throughout its minority.
Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is
in charge of the minor’s person. On the opposite hand, ‘custody of the child’ simply means a
physical possession (custody) of the child upon a certain age.
Although the mother is not the natural guardian of the child under Muslim law, she has a right to
the custody of the child, until the child attains a specific age. But the father or the paternal
grandfather encompasses control over the minor throughout the complete interval of the
minority.
Muslim law recognizes the following kind of guardianship:
1. A natural or legal guardian
2. Testamentary guardian
3. Guardian appointed by courts or statutory guardian
4. De-facto guardian
Natural or Legal Guardian
Natural guardian is a one that encompasses a right to regulate and supervise the activities of a
minor. Father is recognized as the natural guardian of his kid underneath all the schools of
Muslim law. The father’s right to act as guardian of a minor is an independent right and is given
to him underneath the substantive law of Islam.
A natural guardian is additionally known as a legal guardian. But within the absence of the
father, the father’s executor might also act as a legal guardian. The executor could be one who is
appointed by the father or grandfather to act as the guardian of his minor kid on his behalf.
Thus, the natural guardian of a minor in order of priority are as follows:
1. Father
2. Executor of father
3. Paternal grandfather
4. The executor of Paternal grandfather
Under Muslim law within the absence of any of the above-mentioned persons, no one else is
recognized as the natural guardian of a minor.
Shia Law
Within the absence of father only paternal grandfather could act as a legal guardian. In the
presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a
child.
Testamentary Guardians
A testamentary guardian may be a one that is appointed as guardian of a minor beneath a will.
Only father or, in his absence, paternal grandfather has the right to appoint a testamentary
guardian.
A non-Muslim and a feminine might also be appointed as a testamentary guardian.
Shia Law
A non- Muslim cannot be chosen as a testamentary guardian.
Guardians appointed by Court
In case of the absence of a natural and legal document guardian, the court is authorized to
appoint a guardian for the aim of the minor’s person or property or for both. The appointment of
a guardian by the court is ruled by the Guardianship and Wards Act, 1890 which is applicable to
all the Indians irrespective of their religion. Such guardians are also called Statutory Guardian.
De-facto Guardians
A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or
statutory guardian, but has himself assumed the custody and care of a child. According to Tyabji
a de-facto guardian means that an unauthorized person who, as a matter of fact, has custody of
the person of a minor or his property. A de facto guardian could be a person having no authority
for the guardianship however underneath the circumstances has taken the responsibility to act as
the guardian of a minor.
if a Muslim minor has been married during minority by a guardian, the minor has a right, on
attaining majority, to repudiate such marriage. This is known as Khiyar al-bulugh, or option
of puberty. Such a minor may be given in marriage either by the father or grandfather, or by
any other guardian. Thus, unlike the Hindu law, this option has been given both to the
husband and the wife
The Dissolution of Muslim Marriages Act, 193947 has made some changes in the older
Muslim law. It gives to a woman married under the Muslim law, a right to seek dissolution of
her marriage, on the ground, inter alia, that she having been given in marriage by her father or
other guardian before she attained the age of 15 years, repudiated the marriage before
attaining the age of 18, provided that the marriage has not been consummated.
It is significant to note that prior to this Act, a marriage contracted by the father or
grandfather could not be repudiated unless:
(i) the father or grandfather acted negligently or wickedly, or (ii) the marriage was to the
manifest disadvantage of the minor.
The Dissolution of Muslim Marriages Act, 1939 has removed these conditions, and a minor
Muslim girl whose marriage has been contracted by the father or grandfather can also
exercise her option of repudiation if the following conditions are satisfied,viz:
(i) the marriage took place before she was 15 years old;
(ii) (ii) she repudiated the marriage before attaining the age of 18 years;
(iii) (iii) the marriage has not been consummated.48 The girl would, however, not lose
her right if the marriage is consummated before she attains the age of 15 years.
In Shabnam v. Mohd Shabir, 50the wife claimed that she was married in 1991 before
attaining puberty and the marriage was not consummated. The fact that she was a minor at
the time of marriage was established.
Under the Shia law, a mother’s right to the custody of her minor children, i.e., hizanat
extends until a son is two years old, and the daughter attains the age of seven. Under the
Hanafi law, a mother is entitled to the custody of her son till he reaches the age of seven,
and in case of daughter, till she attains puberty.
Mother’s right to custody continues even if she is divorced from the father of the child,
unless she remarries, in which case the custody belongs to the father.
Md. Khalid v. Zeenat Parvin, and Abdul Kalam v. Akhtari Bibi, 13 the father claimed that
under their personal law, they had a preferential right over the custody of their minor
children. The court negatived this contention, and held that even though as a natural
guardian, the father may have prima facie right to the minor’s custody, this may be
negatived, if the infant’s welfare lies in keeping him with the mother. Children cannot be
treated as chattel or property, over whom legal rights should be asserted, the court
emphasised.
A mother, who marries a stranger, is not disqualified to have custody of the child. In Irfan
Ahmad Shaikh v. Mumtaz, custody of a female child was given to the mother. The
mother’s marriage with the child’s father was dissolved, and she remarried a person, who
was not within the prohibited degree of relationship to the child. The court, nonetheless,
gave custody to the mother; the child had also expressed a desire to remain with the mother
LIST GROUNDS FOR REMOVAL OF GUARDIANS IN GUARDIANS AND WARDS ACT
Ans pursuant to sec 39 –

Removal of guardian.—The Court may, on the application of any person interested, or of
its own motion, remove a guardian appointed or declared by the Court, or a guardian
appointed by will or other instrument, for any of the following causes, namely:—
(a) for abuse of his trust;
(b) for continued failure to perform the duties of his trust;
(c) for incapacity to perform the duties of his trust;
(d) for ill-treatment, or neglect to take proper care, of his ward;
(e) for contumacious disregard of any provision of this Act or of any order of the Court;
(f) for conviction of an offence implying, in the opinion of the Court, a defect of character
which unfits him to be the guardian of his ward;
(g) for having an interest adverse to the faithful performance of his duties;
(h) for ceasing to reside within the local limits of the jurisdiction of the Court;
(i) in the case of a guardian of the property, for bankruptcy or insolvency;
(j) by reason of the guardianship of the guardian ceasing, or being liable to cease, under
the law to which the minor is subject: Provided that a guardian appointed by will or other
instrument, whether he has been declared under this Act or not, shall not be removed—
(a) for the cause mentioned in clause (g) unless the adverse interest accrued after the
death of the person who appointed him, or it is shown that that person made and
maintained the appointment in ignorance of the existence of the adverse interest, or
(b) for the cause mentioned in clause (h) unless such guardian has taken up such a
residence as, in the opinion of the Court, renders it impracticable for him to discharge the
functions of guardian.

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Surrogacy

QUESTION 1. NEED OF A LEGISLATION IN INDIA FOR SURROGACY

Acting upon the recommendation of the Law Commission, an improved Assisted

QUESTION 2. LEGAL AND ETHICAL ASPECTS OF SURROGACY

– Legal and ethical aspects of surrogacy are as follows;

 Surrogacy arrangement will continue to be governed by contract amongst parties,

Features of The Surrogacy (Regulation) Bill, 2019

1. Purposes for which surrogacy is permitted: Surrogacy is permitted when it is:

3. Eligibility criteria for surrogate mother: To obtain a certificate of eligibility from

Reasons for UCC to replace personal laws.

QUESTION 5. EXPLAIN DEFINITION OF A WILL AND A CODICIL AS PER ISA. DESCRIBE

To add more: more on codicil

More if required Unprivileged will

QUESTION 6. TYPES OF WILL (OUT OF SYLLABUS)

Joint and Mutual Wills

Question 7. Essentials of a valid will/essential requirements in formation of will.

QUESTION 8 PERSON CAPABLE OF MAKING A WILL (SHORT NOTE)

2. REQUISITES OF A VALID ADOPTION WITH REFERENCE TO THE CAPACITY OF THE

4. CRITICALLY EVALUATE THE PROVISIONS OF THE HINDU ADOPTION AND

INTER-COUNTRY (FOREIGN) ADOPTION (USE CARA ANS MAYBE)

Q3. Muslim Law of Inheritance

Rule of Exclusion or Disqualification:

No existence of property of Joint Family:

Single Scheme of Succession:

Islamic Principles of Succession:

No recognition of right by birth:

Doctrine of Representation and Stipital Succession:

Q4. Hanafi Law of Inheritance

Distribution of Assets among the Sharers and Residuaries

Doctrine of aul or increase:

Doctrine of radd or return:

State as an Heir by Escheat:

Q5. Doctrine of Aul and Doctrine of Radd

Doctrine of aul or increase:

Doctrine of radd or return:

Conclusion (Common for both puts a difference between the two):

Illustration- P, a Hindu, dies leaving behind a widow W and a widow of a predeceased

1. If an heir himself murdered or abetted the murder of the propositus in furtherance of

1. Omission of section 4(2)

OMISSION OF SECTION 4(2)

Abolition of doctrine of survivorship in case of male coparcenars

Introduction of daughter as coparcenary

Marital status of the Daughter-

Abolition of pious obligation of son to pay the debts of father

SUBSTITUTION OF WORDS FROM “DISPOSED BY HIM” TO “DISPOSED BY HIM OR BY HER”

DISTINGUISH BETWEEN COPARCENARY PROPERTY AND SEPARATE PROPERTY. BRIEFLY

DIFFERENT MODES OF PARTITION

PROVISIONS REGARDING SUCCESSION TO THE PROPERTY OF A HINDU MALE DYING

Section 18 FULL BLOOD PREFERRED TO HALF BLOOD

The section states that:

Heirs related to an intestate by full-blood shall be preferred to heirs related by half-

2. as tenants in common and not as joint tenants

Section 20, rights of an unborn child

Two conditions that need to be satisfied here are that:

(ii) it should be born alive.

EXPLAIN DIFFERENT KINDS OF GUARDIANS AND THE PROCESS OF REMOVAL

Powers of natural guardians –

Q WELFARE OF CHILDREN IS OF PARAMOUNT IMPORTANCE. COMMENT WITH CASE LAWS

Q EVALUATE THE STATUS OF A MOTHER’S GUARDIANSHIP CLAIM DUE TO MATERNAL

Preference of guardianship of girl child given to the mother

CRITICAL ANALYSIS OF HMGA

Custody of minor child –

GUARDIAN PROVIDED BY LAW