Exam Capsule LED Family Law-II-1

EXAM CAPSULE
Prepared by Law Exam Destination (LED)

(DU LLB semester exam material)
Subject – Family Law-II
Ahmad Khan
History Honours, JMI
M.A. History, HCU (NET Qualified)
LLB, DU
Shweta Suman
LLB, DU
Topic - 1
Joint Hindu family
A joint Hindu family consists of all persons lineally descended from a common ancestor,
and includes their wives and unmarried daughters. A daughter ceases to be a member of
her father’s family on marriage, and becomes a member of her husband’s family. Post
2005, since a daughter continues to be a coparcener, she retains the membership of her
father’s joint family.
A Hindu joint family is purely a creature of law. This means, it cannot be created by the
act of the members or an agreement between the parties. Therefore, a stranger cannot be
made a member of a Hindu joint family even by agreement among all members. The only
exception to that is marriage and adoption.
A Hindu joint family has no legal entity distinct or separate from its members. It is a unit
and is represented by the manager of the joint family who is called “Karta” in all family
matters. It cannot sue or be sued in its own name. It is neither a juristic person nor a
corporation and therefore cannot convey the property in its joint character.
The status of a joint family member can be lost by conversion to another faith, by marriage
to a non-Hindu, on being given in adoption by the competent parents.
A common male ancestor is necessary to bring a Hindu joint family in existence but is not
necessary for its continuation. The continuation of a joint family is not dependent upon the
presence of a male member in the family.
Plurality of members is necessary for constitution of or continuation of joint family, but
plurality of male members is not necessary for its continuation. The joint family does not
end even with the death of a male member as long as it is possible in the nature of things
to add a male member in the family.
for example- Two widows are said to constitute a Hindu joint family because of their legal capacity to add
a male member to the family in the future. Since daughters did not have such capacity, two daughters cannot
be said to constitute a Hindu joint family. There are only two ways in which a male member can be added to
the family. First, by giving birth to a male child, second by taking a male child in adoption. Both these
possibilities did not arise in case of daughters. Daughter's child is always the member of her husband's family.
For taxation purpose a joint hindu family is called a HUF (Hindu Undivided Family).
All members in a joint family do not have equal rights in the family property. Coparceners
have an interest in the coparcenary property while females and male members other than
coparceners or disqualified coparceners have a right of maintenance and a right of
residence in the joint family house.
The joint and undivided family is the normal condition of Hindu society. An undivided
Hindu family is ordinarily joint not only in estate, but also in food and worship.
The existence of joint estate is not an essential requisite to constitute a joint family, and a
family which does not own any property, may nevertheless be joint. Where there is joint
estate, and the members of the family become separate in estate, the family ceases to be
joint. Mere severance in food and worship does not operate as a separation.
Presumption of Jointness
The general principle is that every Hindu family is presumed to be a joint Hindu family and
continues to be joint unless contrary is proved. It is a rebuttable presumption. The presumption
of jointness can be rebutted by the direct evidence of partition or by course of conduct. It is for the
persons alleging severance of the Hindu joint family to prove it (Burden of Proof).
KARTA
Who may act as Karta
➢ The father if living or senior most male member would generally be the manager or 'Karta'
of the joint Hindu family. Thus it has been held that the father is in all case naturally and
in the case of infant sons, necessarily the manager of the joint estate. And where father is
not alive and the family consists of brothers, the elder brother in the absence of any
evidence to the contrary should be presumed to be the manager of the family.
➢ A minor cannot be the manager of the joint Hindu family. Under the Hindu law
coparcenership is a necessary qualification for the membership of a joint Hindu family.
Before the Hindu Succession (Amendment) Act, 2005 a female was not a coparcener,
therefore, she could not be karta. But after the Hindu Succession (Amendment) Act, 2005
daughter of a coparcener is a coparcener. Therefore, it is submitted that she may become a
karta of Mitakshara coparcenary, provided she is seniormost coparcener.
Position of karta
The position of a Karta is sui generis. It comes to him by being born in the family and is regulated
by seniority. It is terminable by resignation and relinquishment but is not indefeasible. He is the
custodian of the family interest and his actions are backed by a presumption of the promotion of
general family affairs. He is the head of the family, but the relationship is not that of principal and
agent under the Indian Contract Act, 1872, nor even of partners. It is at best comparable to that of
a trustee, as he stands in a fiduciary relationship with the other members of the family; but unlike
a trustee, he is not accountable to the family generally, and even where he mis-manages or incurs
a loss while managing the family affairs, unless he is charged with fraud or misappropriation of
the joint family property, his actions and decisions are binding on all the members of the family,
including those who may not like his decisions. The Karta cannot be held liable for negligence and
where he acts honestly and with bona fide intentions, in the best interests of the family, his
discretion cannot be closely scrutinised, but where he misappropriates the joint family funds or
uses them for purposes other than for family benefits, he is accountable and will be called upon to
refund the amount to the joint family corpus. Under Dayabhaga law his position approximates
more closely to that of a trustee than under the Mitakshra law as under Dayabhaga law he is liable
to account for his past dealings with the property.
Powers of the Karta

As long as the family remains joint, his authority cannot be revoked. The special powers of the
Karta can be classified as follows:
(1) Powers over the income and expenditure of the family.

(2) Power of alienation of joint family property for legal necessity or for the benefit of the estate.
(3) Power to contract debts
(4) Power to acknowledge debts
(5) Power to start a new business
(6) Power to refer disputes to arbitration
(7) Power to represent the joint family in suits and other proceedings
(8) Power to compromise
(9) Power to enter into contracts
Hindu coparcenary
A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons
who acquire by birth an interest in the joint or coparcenary property.
Formation of coparcenary
The conception of a joint Hindu family constituting a coparcenary is that of a common male
ancestor with his lineal descendants in the male line within four degrees counting from, and
inclusive of, such ancestor (or three degrees exclusive of the ancestor). No coparcenary can
commence without a common male ancestor, though after his death, it may consist of collaterals,
such as brothers, uncles, nephews, cousins, etc.
No female can be a coparcener, although a female can be a member of a joint Hindu family. This
was the position prior to the amendment of the Hindu Succession Act in 2005. By virtue of the
amendment, the daughters of a coparcener are included as coparceners along with his sons and are
recognized as coparceners in their own right.
Genesis of Coparcenary-
A coparcenary is created in the following manner: A Hindu male A, who has inherited no property
at all from his father, grandfather, or great-grandfather, acquires property by his own exertions. A
has a son B, B does not take any vested interest in the self-acquired property of A during A’s
lifetime, but on A’s death, he inherits the self-acquired property of A. If B has a son C, C takes a
vested interest in the property by reason of his birth, and the property inherited by B from his father
A, becomes ancestral property in his (B’s) hands, and B and C are coparceners as regards the
property. If B and C continue joint, and a son D is born to C, he enters the coparcenary by the mere
fact of is birth. Moreover, if a son E is subsequently born to D, he too becomes a coparcener.
Coparcenary not limited to four degrees from common ancestor

Though every coparcenary must have a common ancestor to start with, it is not to be supposed that
every extant coparcenary is limited to four degrees from the common ancestor. A member of a
joint family may be removed more than four degrees from the common ancestor (original holder
of coparcenary property), and yet he may be a coparcener. Whether he is so or not, depends on the
answer to the question whether he can demand a partition of the coparcenary property. If he can,
he is a coparcener, otherwise, not.
A inherits certain property from his father X. He has a son B and a grandson C, both members of an
undivided family. A, B and C are coparceners. A son D is then born to C. D becomes a coparcener
by birth with A, B and C. Subsequently, a son E is born to D. E is not a coparcener, for being fifth
in descent from A, he cannot demand a partition of the family property. On A’s death, however B
will become the head of the joint family and E will step into the coparcenary as the great-grandson
of B, though he is fifth in descent from A, the older. Likewise, on B’s death, F (E’s son) will step
into the coparcenary as the great-grandson of C, the head of the family for the time being, though
he is sixth in descent from A, the original holder.
UNDERSTANDING COPARCENARY THROUGH ILLUSTRATIONS
Incidents of coparcenership - The incidents of coparcenership are:
➢ A coparcener has an interest by birth in the joint family property, though until partition
takes place, this is an unpredictable and fluctuating interest which may be enlarged by
deaths and diminished by births in the family;
➢ every coparcener has the right to be in joint possession and enjoyment of joint family
property-both these are expressed by saying that there is community of interest and unity
of possession.
➢ Every coparcener has a right to be maintained including a right of marriage expenses being
defrayed out of joint family funds,
➢ every coparcener is bound by the alienation made by the karta for legal necessity or benefit
of the estate and by the legitimate acts of management of the karta.
➢ every coparcener has a right to object and challenge alienations made without his consent
or made without legal necessity;
➢ And every coparcener has a right of partition and survivorship. He can establish his right
of survivorship by suit.
POSITION BEFORE 2005
Daughter as a coparcener
Prior to the 2005 amendment, Section 6 of the Amendment Act provides that under the Joint
Family Mitakshara Coparcenary only male can become the coparcener and the same is against the
rule of gender equality.
The trend of granting a right by birth to a daughter in the Mitakshara coparcenary property equal
to that of a son started about a couple of decade ago. The ball was set rolling by the State of Andhra
Pradesh. The list of State Amendment Acts are as follows:
(i) Hindu Succession (Andhra Pradesh Amendment) Act, 1985.

(ii) Hindu Succession (Tamil Nadu Amendment) Act, 1989.
(iii) Hindu Succession (Maharashtra Amendment) Act, 1994.
(iv) Hindu Succession (Karnataka Amendment) Act, 1994.
In its 174th Report titled “Property Rights of Women: Proposed Reforms Under the Hindu Law”
(5 May 2000). The Law Commission of India noted that “the exclusion of daughters from
participating in the ownership of coparcenary property merely by reason of their sex is unjust”. By
the time that the Law Commission submitted its report, it noted that Andhra Pradesh, Tamil Nadu,
Maharashtra, and Karnataka had incorporated amendments that would ensure that in a joint Hindu
family governed by Mitakshara law, the daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as a son. Kerala, the Law Commission noted, had
gone a step further and abolished the right to claim any interest in any property of an ancestor
during his or her lifetime based on the mere fact that he or she was born in the family. “The report
of the Law Commission led to the amendments of 2005 in the HSA 1956.
The Statement of Objects and Reasons accompanying the introduction of the Bill noted that:
“Statement of Objects and Reasons…
Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and
recognises the rule of devolution by survivorship among the members of the coparcenary. The
retention of the Mitakshara coparcenary property without including the females in it means that
the females cannot inherit in ancestral property as their male counterparts do. The law by excluding
the daughter from participating in the coparcenary ownership not only contributes to her
discrimination on the ground of gender but also has led to oppression and negation of her
fundamental right of equality guaranteed by the Constitution.”
The Parliamentary amendment, as the Statement of Objects and Reasons indicates, “proposed to
remove the discrimination as contained in Section 6…by giving equal rights to daughters in the
Hindu Mitakshara coparcenary property as the sons have”. The Amendment also omitted Section
23 which disentitled a female heir to ask for partition in respect of a dwelling house wholly
occupied by a joint family until the male heirs chose to divide their respective shares.
The impact of the substitution of Section 6 of Act 39 of 2005 is that a daughter of a coparcener
shall
(i) become a coparcener in her own right by birth in the same manner as a son;
(ii) have the same rights in the coparcenary property as she would have if she had been a son; and
(iii) be subject to the same liabilities in respect of the coparcenary property as a son.
The insertion of sub-sections (1) and (2) conferred coparcenary rights on daughters in Joint Hindu
families governed by Mitakshara law. Property to which a female Hindu becomes entitled under
sub-section (1) shall be held, in terms of sub-section (2), by her with the incidents of coparcenary
ownership and is capable of being disposed of by testamentary disposition.
Prior to the amendment, the substantive part of Section 6 stipulated that the interest of a male
Hindu in Mitakshara coparcenary property at the time of his death shall
(i) devolve by survivorship upon the surviving members of the coparcenary; and
(ii) not devolve in accordance with the Act.
The proviso, however, enunciated an exception where the deceased had left behind a surviving
female relative specified in Class I of the Schedule or a male relative in the class who claimed
through such a female relative. Where the proviso applied, it stipulated that the interest of the
deceased male Hindu shall
(i) devolve by testamentary or intestate succession, as the case may be, under the Act; and
(ii) not devolve by survivorship.
The principle of devolution by testamentary or intestate succession under the Act which was an
exception prior to the Amending Act as set out in the proviso has now become the norm in sub-
section (3) of Section 6. Section 6 (3) of the amended provision now stipulates that on “a Hindu”
dying after the commencement of the amending Act, his interest in the property of a joint Hindu
family governed by Mitakshara law devolves by testamentary or intestate succession, as the case
may be, under the Act and not by survivorship.
*****It is noteworthy that under the Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra amendments to the
Hindu Succession Act, 1956, daughters of coparceners, who were married on the day the amendment was enforced
in each state respectively, could not become coparceners. 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.
THE KERALA JOINT HINDU FAMILY (ABOLITION) ACT, 1975

The Kerala Joint Hindu Family (Abolition) Act received the assent of the President on 10 August
1976. It was enacted to abolish the joint family system among Hindus in the State of Kerala. It
applied to both undivided families governed by Mitakshara law as well as matriarchal families
including a Tarvad or Thavazhi,a Kutumba or Kavaru or an Illom. The Act abolished the right by
birth of the coparceners and replaced joint tenancy by tenancy in common. Therefore on the date
of the coming into force of this Act it was to be presumed that, a partition had taken place in every
family and each person who was earlier entitled to get a share was deemed to hold his share as his
distinct, separate and absolute property. In State of Kerala therefore, the concept of joint family
does not exist. All families are separate or nuclear families.
PROPERTY
Obstructed and Unobstructed Heritage
Property in which a person acquires an interest by birth is called unobstructed heritage

apratibandha daya, because the accrual of the right to it is not obstructed by the existence of the
owner. Property inherited by a Hindu from his father, father's father, or father's father's father, but
not from his maternal grandfather, is unobstructed heritage as regards his own male and female
issue, now after commencement of the Hindu Succession (Amendment) Act. 2005 a daughter of a
Mitakshara coparcener also acquires an interest by birth in the Mitakshara coparcenary property
Property, the right to which accrues not by birth but on the death of the last owner without leaving
a male and female issue, is called obstructed heritage. It is called obstructed, because the accrual
of right to it is obstructed by the existence of the owner. Property which devolves on parents.
brothers, nephews, uncles, etc. upon the death of the last owner, is obstructed heritage. These
relations do not take a vested interest in the property by birth. Their right to it arises for the first
time on the death of the owner. Until then, they have a mere spes successionis or a bare chance of
succession to the property.
Example - A inherits certain property from his brother. A has a son B. The property is obstructed
in A's hands. B does not take any interest in it during A's life. After A's death. B will take it as A's
heir by succession. The existence of A is an obstruction to the accrual of any rights in the property
to B.
Incidents of joint family or coparcenary property

➢ Joint family or coparcenary property is that in which every coparcener has a joint interest
and a joint possession.
➢ Joint family or coparcenary property-
(a) Devolves by succession not by survivorship.
(b) Is the property in which the male and female issue of the coparceners acquire interest by
birth.
Distinction between ancestral property and separate property

ANCESTRAL PROPERTY SEPARATE PROPERTY
(1) All coparceners have community of (1) Other members of the family have no
interest and unity of possession in coparcenary interest in separate property
property.
(2) Sons, son's sons and son's sons sons (2) No person can acquire interest in separate
acquire interest in coparcenary property by property by birth
birth. (Now daughter is also a coparcener)
(3) Prior to 1956, a coparcener could not (3) Even prior to 1956, separate property could
dispose off his undivided interest in be disposed off by will.
coparcenary property by will.
(4) A coparcener cannot gift his undivided (4) The owner of separate property can gift
interest in coparcenary property without such property to any person, to any extent.
consent of other coparceners
(5) Subject to certain exception, a coparcener (5) The owner can freely sell or mortgage his
cannot sell or mortgage his undivided interest separate property.
in coparcenary property, without the consent
of other coparceners
(6) Coparcenary property can be partitioned (6) No question of partitioning separate
property arises.
CASES
Case - Commissioner of Income Tax v. Gomedalli

Lakshminarayan, 1935
Fact - A Hindu Joint family consisted of the father, his wife, his son and the son’s wife. Upon
the death of the father, the question before the Income Tax Commissioner was whether the joint
family can continue even when there was only one male member i.e., the son in this case and
whether he is to be assessed as an individual or as the Karta of the joint family of which he was a
member.
The importance of this question lay in the fact that for the purposes of super tax he would be
allowed a large exemption if he was taxed as the manager of a joint Hindu family than if he is
taxed as an individual. It also means that if the Hindu joint family is taxed as a unit the individual
members are not liable to be charged in respect of what each member receives as his or her share
of the joint income.
Observation & Judgement:
➢ The court held that he was to be assessed as the Karta of the Hindu undivided family.
➢ Explaining the concept of a Hindu undivided family and a coparcenary and the
distinction between the two, the court observed that while for a coparcenary the presence
of at least two male members in the joint family is a necessary requirement, a Hindu joint
family can continue even with one male member, and accordingly in this case the son
was competent to be assessed as the Karta of his joint family.
➢ A joint Hindu family consists of all persons lineally descended from a common ancestor,
and include their wives and unmarried daughters.
➢ An undivided Hindu family in this sense differs from which is called a Hindu
coparcenary, which is a much narrower body. A Hindu coparcenary includes only those
male members who take by birth an interest in the coparcenary property.
➢ The legislature chose to adopt a wider expression like “undivided Hindu family” the
Courts have no option left but to construe the wider expression in the way in which it has
been construed and understood under the Hindu law.
Case - Moro Vishwanath v. Ganesh Vithal, 1873

Fact - Udhav was the original acquirer of property and common ancestor of the family
(illustrated on next page). Ganesh, (plaintiff) the great grandson of Udhav who was removed
more than four degrees from the original acquirer Udhav, demanded partition of the joint family
property from Moro (defendant).
Issue: Whether a person removed more than four degrees from the original acquirer of the
property can demand partition of the joint family property?
Observations
Composition of Coparcenary: Four Degree Limit
Illustration 1
On death of A, B and C, can E and F compel D to make over to them their share of the ancestral
property?
According to the law prevailing, they can, sons being equally interested with their father in
ancestral property. In the same way if B and C die, leaving A and D members of an undivided
family after which A dies where upon the whole of the property devolves upon D, who thereafter
has two sons, E and F. They, or either of them, can likewise sue their father, D, for partition of
the said property it being ancestral.
Illustration 2
B and C die leaving A, D and D1, after which A dies, whereupon the property devolves upon D
and DI jointly. Thereafter, D has two sons, E and F, leaving whom he dies. A suit against D1 for
partition of the joint ancestral property of the family would be perfectly open to E and F, and
even to G. It would be a suit against D1 by a deceased brother's sons and grandson. Here E and F
are both fifth and G sixth in descent from the original owner of the property, whereas D and DI
are only fourth.
Now if A dies after D leaving a great grandson D1 and two sons of D. E and F. Here E and F
could not sue D1 for partition of property descending from A, because it inherited by D1 alone.
Since, E and F being sons of a great grandson are excluded by D1, A's surviving great-grandson,
the right of representation extending not farther from great grandson.
Decision: The Court held that the rule is not that A partition cannot be demanded by one more
than four degrees removed from the acquirer or original owner of the property sought to be
divided, but that it cannot be demanded by one more than four degrees removed from the last
owner, however remote, he may be from the original owner thereof.
Case - Muhammad Husain Khan v. Babu Kishva Nandan

Sahai, 1937
Fact - A, had inherited some properties, including a village, from his maternal grandfather. He
executed a Will of these properties, giving a life estate in it to his son, and on the death of the
son, the properties were to go to the son’s widow, absolutely.
During his lifetime, the son contracted some debts that he was unable to repay and the creditors
obtained a money decree against him. In the execution of the money decree, the village was sold
at a court auction. The son filed a petition claiming that the suit filed by the creditor was vitiated
by fraud. During the pendency of the suit, the son died and his widow, W who was substituted in
his place, contended that the son S had only a life interest in his favour and she was the absolute
owner of the property and the sale was not binding on her.
On behalf of X, it was contended that the properties in the hands of A, that he had inherited from
his maternal grandfather, were ancestral properties, and on his death, passed to the son, S, under
the doctrine of survivorship. They further contended that as the properties were coparcenary
properties, A was incompetent to make a Will of the same, and if he did execute a Will, the same
was invalid.
➢ The court held that there were several clear pointers in the Mitakshara which showed that
‘ancestral property’ is one that is inherited by a Hindu male from his father or paternal
grandfather, or great paternal grandfather only and properties inherited from a maternal
grandfather are separate properties in the hands of his daughter’s son.
➢ The earlier decision of Chelkani Venkayyamma was incorrect in the light of
Vijananeshwara’s classification of property, into obstructed and unobstructed heritage.
The presence of the son or a son’s son is an obstruction for the son of a daughter to
inherit the property of his maternal grandfather, and if he inherits it, it would always be
his separate property, even if he is a co-inheritor with his brother and maintains an
otherwise joint status with him.
➢ Even while maintaining a joint status, coparceners are empowered to hold separate
properties of their own.
➢ The property that a person inherits from his mother, including an adoptive mother,
maternal uncle, maternal grandfather or maternal grandmother, would be his separate
property.
➢ Accordingly, the Will executed by A was valid as it related to his separate properties.
Case - C.N. Arunachala Mudaliar v. C.A. Muruganatha

Mudaliar, 1953
Fact - A, who had three sons, after giving certain properties to his wife and other relations,
provided that the properties in Schedule A, B & C of the will, which were his self-acquired
properties, shall be taken by his eldest, second and third sons respectively, and that the sons shall
enjoy the properties allotted to them with absolute rights and with powers of alienation such as
gift, exchange, sale, etc, from son to grandson hereditarily.
➢ Supreme Court, after a consideration of the texts on the subject and the variant opinions
of the High Court took the view that the question was primarily one of intention of the
donor or the testator to be gathered from the terms of the deed of gift or will.
➢ If there are no clear words describing the kind of interest intended to be given, the court
would have to collect the intention from the language of the document taken along with
the surrounding circumstances in accordance with the established canons of construction.
➢ The material question in such cases would be whether the grantor really wanted to make
a gift of the property to his son, or the apparent gift was only an integral part of a scheme
to partition the same. There is no presumption that he intended the one or the other.
➢ It was held that the property bequeathed to the sons was not ancestral property in their
hands vis-a-vis their own male issues.
Case - Smt. Dipo v. Wassan Singh, 1983

Fact - Two brothers A and B, inherited the property from their father and separated by effecting
a partition between themselves. A had a daughter D and a son S. On the death of A, his son S,
took the properties by survivorship. He later died without leaving any male descendants, and his
sister D, claimed the properties by succession.
At this time, the sons of B, i.e., sons of S’s paternal uncle, took the possession of the property on
the ground that the properties in the hands of S were ancestral property and in Punjab, a female
cannot own ancestral property. Accordingly, they contended that they were the rightful owners
of the property.
➢ The Supreme Court rejected their contention and held that the character of the property
varies, depending upon who the claimant is.
➢ In the absence of any male issue of S, he held it during his lifetime as a sole surviving
coparcener and its character with respect to both his sister as also the sons of his paternal
uncle, was that of a separate property and not that of an ancestral property.
➢ On his death, the property was to go to the nearest heir in accordance with the laws of
inheritance, who in this case, happened to be the sister, and not to collaterals, who were
remoter heirs in her comparison.
➢ The character of the property therefore, would be ancestral vis-a-vis the male issues of
the holder. In the absence of male issues, though he holds it as a sole surviving
coparcener and is entitled to treat it as his separate property, its character as a
coparcenary property will revive the moment he gets a son.
➢ But if he dies without any male descendants, the property loses its character of ancestral
or coparcenary property, and would be called his separate property and will go by
inheritance.
Case - Commissioner of Wealth-Tax v. Chander Sen,
1986
Fact - The family comprised the father, his son and grandsons. After effecting a partial partition,
both the father and the son carried on their respective businesses. On the death of the father, the
son inherited his separate properties and received the undivided share, by survivorship. The son,
Chander Sen, was now the Karta of his family comprising two sons.
In the capacity of the Karta, he filed a return of his net wealth and showed the joint family
income, including the one that he had got by survivorship, but did not include in it, the property
that he had inherited from his father, on the ground that it was his separate property. The wealth
tax officer did not accept his contention and maintained that the property received from the
father, either by survivorship or through inheritance, was coparcenary property in the hands of
the son.
Issue - Whether the separate property left by father and inherited by son under the present
section (section 8) was to be regarded as separate property of son or property of the joint family
of son in which son and his sons were members (coparceners)?
➢ The heirs to a Hindu male include a son and son of a predeceased son and not son of a
living son who is an heir otherwise it would mean giving a right by birth to the son in the
property of the father and also the grandfather.
➢ The Supreme Court, after discussing a number of cases and the scheme of the Hindu
Succession Act, 1956, held that after the passing of the Act, the properties inherited by a
son from his father, would constitute his separate property and not coparcenary property.
➢ Son, had inherited the property as an individual (as his separate property) and that the
property did not belong to the joint family of son and could not be included in computing
the wealth tax of the joint family.
➢ It was also observed by the Supreme Court that “It would be difficult to hold today that
the property which devolved on a son under section 8 of the Hindu Succession Act, 1956,
would be Hindu Undivided Family property in his hand vis-a-vis his own sons”.
Case - M/s. Nopany Investments (P) Ltd. v. Santokh

Singh (HUF), 2007
Fact - The Karta of a Hindu joint family was staying in the United Kingdom and was not in a
position to handle the joint family affairs in India. He executed a power of attorney in favour of
his younger brother and the whole family accepted the latter’s management of the joint family
affairs without any protest.
This younger brother filed a suit for eviction against the tenant, and the tenant raised a
preliminary objection that as he is not the Karta, the suit for eviction filed by him does not hold
good in law.
➢ The Court dismissed the contention of the tenant and observed that it was not open for the
tenant to raise such a kind of objection with respect to the maintainability of the suit at
the instance of the younger brother as the records clearly showed that all along it was the
younger brother of the Karta who was realizing the rent from the tenant and the tenant is
now stopped from raising any such question, and the suit was maintainable at the instance
of the younger brother claiming himself to be the Karta of the joint family despite the fact
that he was not the senior most male member of the Hindu Joint family.
➢ The court held that where the Karta of the joint family is away in a foreign land for a long
time and his return within a short time period is unlikely and due to his absence he cannot
look after the affairs of the Hindu joint family, a younger member of the coparcenary
with the consent of all the members of the family can act as the Karta of the family.
➢ He is also empowered to enter into transactions on behalf of the joint family, such as
execution of a lease or filing a suit for eviction of the tenant inducted into the joint family
premises.
The court here clarified that though the settled principle of classical Hindu law remains that
Karta would be the senior most male member of the family in the following circumstances a
younger brother of the joint Hindu Family can deal with the family property as Karta:
→ if the senior member or the Karta is not available,
→ where the Karta relinquishes his right expressly or by necessary implication;
→ in the absence of the manager in exceptional and extraordinary circumstances such as
distress or calamity affecting the whole family and for supporting the family;
→ in absence of the father;
→ father’s whereabouts are not known,
→ who was away in a remote place due to compelling circumstances and his return within a
reasonable time was unlikely or not anticipated.
Case - Mrs. Sujata Sharma v. Shri Manu Gupta, 2016

Fact - In this case, DR Gupta and his sons held a bungalow in Delhi and a few movable properties and
shares on a long-term lease. On 1st October 1971, Mr. DR Gupta died leaving behind him the five sons
alongside their respective families. Mr. Kishan Mohan Gupta, the eldest son, became the Karta of the
Hindu Undivided Family. At a later time, all the five sons of DR Gupta also died, and therefore the son of
the younger brother of Kishan Gupta declared himself as the Karta of the HUF because he was the oldest
living member of the said HUF.
The plaintiff challenged him by stating that after her father and her uncles, she is the senior-most
member of HUF by the plaintiff, eldest daughter of Mr. Kishan Gupta.
o Arguments made by the plaintiff
Plaintiff contended that her being a lady can’t be the only reason for disqualification from being
its Karta. She further contended that under the new provision, a daughter of a coparcener during
a HUF, can enjoy rights to those enjoyed by a son of a coparcener.
o Arguments made by the defendant
The defendant objected to such claims and contended that the amended section 6 of HSA only
grants daughters equal rights to be considered coparceners as those enjoyed by a male member
and not extends to management of HUF property. He further argued that since the plaintiff has
been married, she can’t be considered as a requisite part of HUF.
Issues:
Whether the eldest daughter amongst the coparceners of Hindu Undivided family, be entitled as
Karta?
DECISION:
• While women have equal rights in a HUF property, the Delhi High Court ruled it could
not reduce this right in the administration of the same property.
• The court said that the obstacle to a woman member of a HUF becoming its Karta was
that she lacked the essential Coparcenership credentials.
• This deprivation has now been removed via the Hindu Succession Amendment Act, 2005,
therefore there is no longer any reason Hindu women should be denied the post of Karta in a
Hindu family. If the eldest son is often Karta, so can a female member.
Topic - 2
(Principal Reading)
ALIENATION
Who may alienate coparcenary property

The following persons alone have power to alienate coparcenary property, so as to pass a good
title to the alienee:
• Karta's power to alienate coparcenary property
Usually, an individual Coparcener, including the Karta, lacks the capability to dispose of the joint
family property without obtaining the consent of all other Coparceners. However, according to
the Dharmashastra, any family member is empowered to alienate the joint family property.
The Mitakshara school is explicit on this matter. According to Vijnaneshwara, under 3 exceptional
circumstances, the alienation of the joint family property by an individual is possible:
1. Apatkale, i.e. during distress;
2. Kutumbarthe, i.e. for the sake of the family;
3. Dharmarthe, i.e. for disposing of indispensable duties.
However, with the advent of time, Vijnaneshwara’s formulation has undergone modification in
two aspects. Firstly, the alienation power is not exercisable by any other family member, except
the Karta.
Secondly, the joint family property can be alienated for the following 3 purposes:
1. Legal necessity;
2. Benefitting the estate;
3. Acts involving indispensable duty.
When karta exercise power of alienation in above three cases the consent of other coparteners will
be implied. Karta can also alienate the property even if none of the above cases exists but with the
consent of other coparceners.
Alienation is voidable - An alienation of the Karta without legal necessity or for the benefit of the
estate or in discharge of indispensable duty and which is made without the consent of the other
coparceners is not, however, void ab initio. It is merely voidable at the option of the other
coparceners. Until they avoid it, such an alienation remains valid and binding.
Legal necessity
‘Legal necessity’, literally, means any necessity that can be sustained in law or justified in law.
For an alienation to be valid under legal necessity, four things must be present:
(i) existence of a need or purpose, i.e., a situation with respect to family members or its
property that requires money,
(ii) such requirement is for a lawful purpose, i.e., it is not for an immoral, illegal purpose or
one which is opposed to public policy,
(iii) the family does not possess monetary or alternative resources from which the requirement
can be met, and
(iv) the course of action taken by the Karta is such as an ordinary, prudent person will take
with respect to his property.
From the decided cases, however, one can give the following as examples of legal necessity, viz.
-
(a) payment of government revenue and of debts which are payable out of the family property;
(b) maintenance of coparceners and of the members of their families;
(c) marriage expenses of male coparceners, and of the daughters of coparceners
(d) performance of the necessary funeral or family ceremonies;
(e) costs of necessary litigation in recovering or preserving the estate;
(f) costs of defending the head of the joint family, or any other member against a serious criminal
charge;
(g) payment of debts incurred for family business or other necessary purpose.
INDISPENSABLE DUTY
The term “indispensable duties” refers to performing religious, pious or charitable acts. Such as
marriage, grihapravesham, shradha, upanayana, etc
• FATHER
When the Manager of a joint family happens to be a father, he has two additional powers, viz-
(a)He can make a gift out of affection within reasonable limits. (b) He can sell or mortgage the
joint family property (including his son's interests therein) to discharge a debt contracted by him
for his own personal benefit, provided the debt was an antecedent debt, and it was not contracted
for illegal or immoral purposes.
• Sole surviving coparcener’s power
When all the Coparceners die except one, such a coparcener is regarded as the sole surviving
Coparcener. When the joint family property passes into the hands of such Coparcener, it turns into
separate property, provided that such Coparcener is son less.
Now based on various judicial decisions there are 3 views in relation to the power of the sole
surviving Coparcener in alienating a property of the Hindu joint family:
1. A sole surviving Coparcener is fully entitled to alienate the joint family property. However,
if at the time of such alienation, another Coparcener is present in the womb, then such
coparcener can challenge the alienation or ratify it after attaining the age of majority.
2. The sole surviving Coparcener’s power of alienation is unaffected by any subsequent
adoption of a son by the widow of another Coparcener. However, the Mysore High Court
holds a contrary view in this regard.
3. The sole surviving Coparcener cannot alienate the interest of any female where such
interest has been vested on her by virtue of Section 6 of the Hindu Succession Act, 1956.
• Coparceners power
Neither the Mitakshara nor the Smritikars conferred any sort of power of alienation to the
Coparceners over their undivided interest in the joint family property. However, the textual
authority is very limited in this regard. The law relating to Coparcener’s alienation power is a child
of judicial legislation.
The first inroad emerged when it was held that a personal money decree against a Coparcener
could be executed against his undivided interest in the joint family property. Some courts have
extended this principle for including voluntary alienations also.
Thus the Coparceners’ alienation power can be categorized under the following heads:
Involuntary Alienation – This refers to the alienation of the undivided interest in the execution
suits. The Hindu sages greatly emphasized upon the payment of the debts. The courts seized this
Hindu legal principle and started its execution on personal money decrees against the joint family
interest of the judgment-debtor Coparcener. In Deen Dayal vs. Jagdeep (1876), the Privy Council
settled the law for all the schools of Hindu Law, by holding the purchaser of undivided interest at
an execution sale during the lifetime of his separate debt acquires his interest in such property with
the power of assessing it and recovering it through the partition. This rule is, however, as held in
Shamughan vs. Ragaswami, limited to the non-execution of the decree, against the Coparceners
interest, succeeding his demise.
Voluntary alienation – After accepting the fact that the undivided interest of a Coparcener is
attachable and saleable during the execution of a money decree against him, the next step involved,
extending the principle to voluntary alienations as well.
BURDEN OF PROOF (Duties of Alienee)
It is an established rule that the burden of proof, whether the transaction is for legal necessity,
benefit or for indispensable duty, is on the alienee. As early as 1856 the Privy Council propounded
the following five propositions:
1. The powers of the karta under Hindu law are limited and qualified powers. He can exercise the
power of alienation in limited cases such as for legal necessity and benefit of estate.
2. In case karta makes an alienation as a prudent man, in order to benefit the estate or the family,
the bona fide lender or alienee is not affected by the previous mismanagement of the estate,
provided the lender or alienee was not a party to mismanagement. In other words, lender or alienee
should not have acted mala fide.
3. The alienee is bound to make proper and bona fide enquiries as to the existence of legal
necessity.
4. If the alienee acts bona fide and makes proper inquiries, the real existence of an alleged sufficient
and reasonably credited necessity is not a condition precedent to the validity of alienation, and
5. The alienee is not bound to see as to the actual application of the money for the legal necessity.
RIGHTS AND REMEDIES OF AN ALIENEE OF A COPARCENER'S INTEREST

(1) No Right of joint possession –
The purchaser of an undivided interest of a coparcener in specific property-
(a) At a Court sale in the State of West Bengal and U.P., or (b) At a Court sale or a private sale in
the State of Tamil Nadu, does not acquire a right to joint possession with the other coparceners.
He is only entitled to compel a partition of such property
In Maharashtra and Gujarat, if the purchaser in a stranger (not a coparcener of that family), a has
not obtained possession of the property, he cannot be given joint possession with the other
coparceners, and his proper remedy would be to sue for a partition. But, if such a person has
obtained possession, the non-alienating coparceners are entitled to have joint possession with him.
(2) Right to partition

In Tamil Nadu, Maharashtra and Gujarat, the purchaser of the undivided interest of a coparcener
some specific property belonging to the joint family, is not entitled to a partition of that property
alone His only remedy would be a suit for general partition. But in Allahabad and Calcutta, the
purchaser need not file a suit for a general partition, and that he is entitled to sue for a partition of
that specific property." The other coparceners (i.e. the non-alienating ones) are entitled to sue the
purchaser for a partition of the alienated property, without bringing a suit for general partition. But
one of such coparceners cannot sue the purchaser for his own share of the alienated property.
(3) Right to mesne profits
The purchaser of the interest of a coparcener is not entitled to mesne (past) profits between the
date of the purchase and the date of the suit for partition. Where, however, there is a partition of
the family without a division of property by metes and bounds, the purchaser of the undivided
share of one of the members of the family is entitled to claim mesne profits from the members who
are in possession such property.
CASES
Case - Hunooman Prasad Panday v. Mussumat Babooee

Munraj Koonweree, (1854-1857)
Fact -
Issue – What is extent of the power of a mother as manager of the estate of her minor son, to
alienate the estate?
➢ "A widow, like a manager of the family, must be allowed a reasonable latitude in the
exercise of her powers, provided … she acts fairly to the expectant heir".
➢ The Court will not interfere with her management, unless there is danger to the estate
from the manner in which she is dealing with it.
➢ A widow or other limited heir is entitled to manage the estate inherited by her. Her power
to manage the estate is similar to that of a manager of an infant's estate.
➢ However, where, in the particular instance, the charge is one that a prudent owner would
make, in order to benefit the estate, the bona fide lender is not affected by the precedent
mismanagement of the estate.
➢ The actual pressure on the estate, the danger to be averted, or the benefit to be conferred
upon it, in the particular instance, is the thing to be regarded…Their Lordships think that
the lender is bound to inquire into the necessities for the loan, and to satisfy himself as
well as he can, with reference to the parties with whom he is dealing, that the manager is
acting in the particular instance for the benefit of the estate.
➢ However, they think that if he does so inquire, and acts honestly, the real existence of an
alleged sufficient and reasonably-credited necessity is not a condition precedent to the
validity of his charge, and they do not think that, under the circumstances, he is bound to
see the application of the money.
➢ The purposes for which a loan is wanted are often future, as respects the actual
application, and a lender can rarely have, unless he enters on the management, the means
of controlling and rightly directing the actual application.
➢ Their Lordships do not think that a bona fide creditor should suffer when he has acted
honestly and with due caution, but is himself deceived.
Case - Sunil Kumar v. Ram Prakash, 1988

Fact – A person A as Karta of Joint Hindu family executed an agreement to sell the suit property
bearing in Mohalla Qanungaon at Kaithal.
Three sons of A instituted a Civil Suit in the court of Sub-Judge, Kaithal for permanent
injunction stating inter alia that the said property was joint Hindu family coparcenary property;
and that there was no legal necessity for sale of the property nor it was an act of good
management to sell the same without the consent of the plaintiffs and without any legal
necessity.
It was, therefore, prayed that a decree for permanent injunction be passed to restraining him from
selling or alienating the property to any person and restrain from proceeding with the suit for
specific performance pending in the civil court.
Issue - Whether a suit for permanent injunction restraining the karta of the joint Hindu family
from alienating the house property belonging to the joint Hindu family in pursuance of the
agreement to sell executed already, is maintainable?
➢ Where the Karta is contemplating the transfer of the joint family property for a permitted
purpose, as ascertained by him, the coparceners cannot prevent him from transferring this
property by seeking a temporary or permanent injunction from the court.
➢ Karta of the joint Hindu family has undoubtedly, the power to alienate the joint family
property for legal necessity or for the benefit of the estate as well as for meeting
antecedent debts.
➢ The grant of such a relief will have the effect of preventing the father permanently from
selling or transferring the suit property belonging to the joint Hindu Undivided Family
even if there is a genuine legal necessity for such transfer.
➢ A suit for permanent injunction by a coparcener against the father for restraining him
from alienating the house property belonging to the joint Hindu family for legal necessity
was not maintainable because the coparcener had got the remedy of challenging the sale
and getting it set aside in a suit subsequent to the completion of the sale.
➢ The suit property was coparcenary property of the joint family consisting of A and his
sons. Jai Bhagwan (buyer) has failed to prove that the proposed sale was for legal
necessity of the joint family. He has also failed to prove that the intended sale was for
benefit of the estate.
➢ A being the manager of the family cannot alienate coparcenary property in the absence of
those two requirements. The sons could restrain their father from alienating the
coparcenary property since the proposed sale was without justification.
➢ Karta occupies a position superior to other members. He has greater rights and duties. He
must look after the family interests. He is entitled to possession of the entire joint estate.
He is also entitled to manage the family properties.
➢ The position of a karta or manager is sui generis; the relation between him and the other
members of the family is not that of principal and agent, or of partners. It is more like that
of a trustee and cestui que trust. But the fiduciary relationship does not involve all the
duties which are imposed upon trustees.
Case - Dev Kishan v. Ram Kishan, 2002

Fact - The Karta effected a mortgage, a sub-mortgage and a sale of two houses belonging to the
joint family, worth around Rs. 8000 to 9000, for a consideration of Rs. 400 to Rs. 900, which
according to him, were to be utilised for the marriage of his three minor children. The sale deed
was executed on the day the son was getting married.
➢ The transfers were held void as opposed to public policy, in view of the Child Marriage
Restraint Act, 1929.
➢ The court held that even if the amount of money was actually spent on the marriage of
such children, who were in the age group of 8–12 years, it cannot be termed as a legal
necessity.
➢ Secondly, the members of the family were earning and there was no need to sell the
family property to raise the money.
➢ Thirdly, the transfer was grossly undervalued and if there was a need of money, the
transfers should have been effected for an adequate consideration.
➢ Karta exercising his discretion as a prudent person, can alienate the joint family property
for defraying marriage expenses of the children, more specifically, unmarried daughters,
though it may not include second marriages and marriage of minors.
Case – Balmukand v. Kamla Wati, 1964

Fact - A Hindu joint family owned a small portion of a big plot of land owned by the alienee,
who approached the Karta for the purchase of the joint family land, and offered him a higher
consideration than the market value. Initially, accepting his offer, the Karta accepted the earnest
money, but he later failed to execute the sale deed. The alienee filed a suit for specific
performance of the contract and the Karta contended that he was not empowered to sell the land
as it was neither for legal necessity nor for benefit of estate.
The family was in affluent circumstances and there was nothing in evidence to show that the
Karta was having any difficulty in managing the property or that the family was incurring a loss
in retaining that property. Nor was there any suggestion that he wanted to invest the sale
proceeds in a profitable manner.
➢ Supreme Court observed that there was nothing to suggest that any sale was being
contemplated by any consideration of prudence. The Court therefore, held that the
contract and the proposed sale was not for benefit of estate and no suit for specific
performance of the contract could be decreed.
➢ Since the expression ‘benefit of estate’ was not found in the Dharmashastras and is of
later origin, the early judicial views were influenced by Mitakshara’s ‘Apatkale’ with
respect to the property, and permitted transfers that were purely defensive or protective in
nature and with the dilution of the concept of Apatkale, ‘benefit of estate’ also gradually
included not only defensive transactions, but also alienations that an ordinary prudent
man would view as appropriate in the given set of situations.
➢ The degree of prudence required from the Karta is higher than the level that is expected
of a person when he deals with his exclusive property.
➢ It is solely the prerogative of the Karta, which he has to exercise with due care and
diligence, whether to alienate the joint family property or not. Since the utilisation of the
amount received on alienation is an important test of whether a transaction would amount
to benefit of estate or not.
➢ A mere contract to sell the property at a higher rate by the Karta, cannot be enforced in a
court of law by the alienee, on the ground that it would be of monetary advantage to the
family.
➢ In each case, the court must be satisfied from the material before it, that it was in fact
such as conferred or was reasonably expected to confer benefit on the family at the time it
was entered into.
➢ Where adult members are in existence, the judgment is not to be of the manager of the
family alone, but of all the adult members of the family including the manager.
Case - Arshnoor Singh v. Harpal Kaur, 2019

Fact - Dharam Singh had only one son, Arshnoor Singh – the Appellant herein. The Appellant
was born on 22.08.1985 to Dharam Singh through his 1st wife.
Dharam Singh purportedly sold the entire suit property to Respondent No. 1 viz. Harpal Kaur via
two registered Sale Deeds in 1999.
Subsequently in 1999, Dharam Singh got married to Respondent No. 1. The Collector, Ferozepur
vide Order in 2000, held that the two Sale Deeds executed by Dharam Singh in favour of
Respondent No. 1 were without any monetary transaction.
The Appellant became a major in 2003. On 2004, the Appellant filed a Suit for Declaration
against his father Dharam Singh and Harpal Kaur for a declaration that the suit property was
coparcenary property, and hence the two Sale Deeds dated 01.09.1999 executed by his father
Dharam Singh in favour of Harpal Kaur herein were illegal, null and void.
The Appellant further prayed for a permanent injunction restraining Harpal Kaur from further
alienating, transferring, or creating a charge on the suit property.
During the pendency of the Suit, Harpal Kaur entered into a transaction whereby she purportedly
sold the suit property jointly to Kulwant Singh and Jung Bahadur.
Issue - Whether the suit property was coparcenary property or self-acquired property of Dharam
Singh?
The validity of the Sale Deeds executed on 01.09.1999 by Dharam Singh in favour of Harpal
Kaur, and the subsequent Sale Deed dated 30.10.2007 executed by Harpal Kaur in favour of
Kulwant Singh and Jung Bahadur?
➢ Under Mitakshara law, whenever a male ancestor inherits any property from any of his
paternal ancestors upto three degrees above him, then his male legal heirs upto three
degrees below him, would get an equal right as coparceners in that property.
➢ After the Hindu Succession Act, 1956 came into force, this position has undergone a
change. Post – 1956, if a person inherits a self-acquired property from his paternal
ancestors, the said property becomes his self-acquired property, and does not remain
coparcenary property.
➢ If succession opened under the old Hindu law, i.e. prior to the commencement of the
Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The
property inherited by a male Hindu from his paternal male ancestor shall be coparcenary
property in his hands visàvis his male descendants upto three degrees below him. The
nature of property will remain as coparcenary property even after the commencement of
the Hindu Succession Act, 1956.
➢ In the present case, the succession opened in 1951 on the death of Lal Singh. The nature
of the property inherited by his son Inder Singh was coparcenary in nature. Even though
Inder Singh had effected a partition of the coparcenary property amongst his sons in
1964, the nature of the property inherited by Inder Singh’s sons would remain as
coparcenary property qua their male descendants upto three degrees below them.
➢ The suit property which came to the share of late Dharam Singh through partition,
remained coparcenary property qua his son – the Appellant herein, who became a
coparcener in the suit property on his birth.
➢ In the present case, the onus was on the alienee i.e., Respondent No. 1, to prove that there
was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on
the existence of the same. Respondent No. 1 has completely failed to discharge the
burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999
in her favour out of legal necessity or for the benefit of the estate.
➢ As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal,
null and void. Dharam Singh could not have sold the coparcenary suit property, in which
the Appellant was a coparcener, by the aforesaid alleged Sale Deeds.
➢ Since Respondent No. 1 has not obtained a valid and legal title to the suit property
through the Sale Deeds dated 01.09.1999, she could not have passed on a better title to
Kulwant Singh and Jung Bahadur either.
➢ The subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of
Kulwant Singh and Jung Bahadur is hit by the doctrine of lis pendens.
Case - Guramma Bhratar Chanbasappa Deshmukh v.

Mallappa Chanbasappa, 1964
Fact - The gift was executed in favour of his daughter by the father. At the time of making of
this gift, the father had three wives, one out of whom was pregnant and later gave birth to a son.
➢ Before 1964, the view was that the father cannot give any portion of immovable property
in gift. In 1964, the Supreme Court said that the father can make a gift out of love and
affection to a daughter of a small portion of immovable property, either at the time of
marriage or subsequently, as gift to daughter is a modern version of a share in the joint
family property to which she was entitled in the ancient law.
➢ It is an established rule of Hindu law that the karta of the joint family, whether father or
someone else, has the power to make a gift of ancestral immovable as well as movable
property within the reasonable limits in discharge of his religious duties or for pious
purposes. Such a gift can be made inter vivos, but not by will. In the hands of the donee,
the property will be his separate property.
➢ A gift of immovable property to the daughter by the father after her marriage was held
valid.
➢ The father or his representative can make a valid gift by way of reasonable provision for
the maintenance of the daughter, regard being had to the financial and other relevant
circumstances of the family.
➢ It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of
such a gift, as that would depend on the facts of each case and it can only be decided by
the courts, regard being had to the overall picture of the extent of the family estate, the
number of daughters to be provided for and other paramount charges and other similar
circumstances.
➢ Any coparcener in existence at the time of the alienation, or was conceived and
subsequently born alive, can set it aside with the help of the court.
Case - R. Kuppayee v. Raja Gounder, 2004

Fact - The father had executed a registered deed of settlement in favour of his married daughter,
of immovable properties, and had delivered possession to her, but later, he himself wanted to
vitiate the settlement on the ground, that this being a joint family property, he was incapable of
making a gift in favour of the daughter and even if he were so capable, the gift was bad as it was
not of a small portion.
➢ The question as to whether a particular gift is within reasonable limits or not has to be
judged according to the status of the family and the extent of the property gifted.
➢ A gift by the father, of a small portion of joint family property, in favour of his daughter,
but not in favour of anyone else, is valid.
➢ The Supreme Court examined the whole question and held that it was competent for a
father to make a gift of immovable property to a daughter, if the gift is of a reasonable
extent having regard to the properties held by the family. The emphasis here is on gift of
a reasonable extent. If, on the facts, it is found that the gift was not within reasonable
limits, such a gift would not be upheld.
Topic - 3
(Principal Reading)
PARTITION
Under the Mitakshara school, partition means two things:
(i) Severance of status or interest, and
(ii) Actual division of property in accordance with the shares so specified, known as partition by
metes and bounds.
What property is divisible on partition-
• The only property that can be divided on a partition is coparcenary property
• Where property is in its nature indivisible, as for instance, in the case of animals, furniture,
etc. it may be sold and its value distributed; or it may be valued and retained by one
coparcener exclusively and the amount credited to his share.
• Family idols and places of worship are not divisible. They may be held by the members in
turns. or the court may direct possession to be given to the senior member with liberty to
the other to have access to them for the purpose of worship.
• A right of way will be presumed to have remained joint, if there is no evidence that it was
allotted to a particular member at the time of partition.
• Where a coparcener, who is joint with his male and female issue, separates from his father,
brothers, or other coparceners, the property allotted to him at the partition is separate
property as regards the divided members, but ancestral as regards his male and female
issue.
• If no partition can be made without destroying the intrinsic value of a property, then a
money compensation should be given instead of the share which would fall to a coparcener
by partition.
The following should be deducted first from the Joint family property:-
(1) Joint family debts, which are payable out of the joint family property.
(2) Personal debts of the father not tainted with immorality.
(3) Maintenance of dependent female members and of disqualified heirs.
(4) The marriage expenses of unmarried daughters.
(5) Where partition takes place between the sons, provision must also be made for the funeral
ceremonies of the widow and the mother of the last male holder.
PERSONS ENTITLED TO A SHARE ON PARTITION

• Every coparcener is entitled to a share upon partition. After the amendment to the Hindu
Succession Act in 2005, since a daughter of a coparcener has been recognized as a
coparcener in her own right along with the sons, such daughter would also be entitled not
only to a share, but would be entitled to seek partition also. Attention is invited to section
6 of the Hindu Succession Act as amended in 2005.
• Son, Grandson and great grand son:- Under the Mitakshara Law the night of a son,
grandson and a great grandson as well as every other adult male member of the coparcenary
to demand partition even against the consent of others has been fully settled. But in Bombay
school the son has no right to partition without the assent of father if father is joint with his
own father, brother or other collaterals.
• After born Sons and after born daughter of a coparcener:- After born sons may be
considered in two sets. Firstly those born as well as begotten after partition and secondly
those born after partition but begotten before it or those in their mother’s womb at the time
of partition. A son in mother's womb at the time of partition is treated in point of law in
existence and is entitled to reopen the partition to receive a share equal to that of his
brothers. In the case of a son born as well as begotten after the partition if his father has
taken a share for himself and separated from the other sons then the after born son is entitled
to his father's share at the partition and also his separate sons and is not entitled to reopen
the partition. The same principle would now apply in case of a daughter of a coparcener.
Who is a coparcener in her own rights after the commencement of the Hindu Succession
(Amendment) Act, 2005
• Illegitimate sons:- An illegitimate son among the three regenerate classes having no vested
interest in the property, cannot demand a partition but he is entitled to maintenance out of
his father's estate.
• Adopted Child:- An adopted chid is treated as a natural born child and therefore he would
be entitled to demand partition any time after adoption. Now under Hindu Adoption a
Maintenance Act, 1956 and adopted child is entitled to a share equal to that of natural bon
child on partition (Sec 12 HAMA 1956)
• Minor Coparcener:- The right of minor coparcener is same as that of major coparcener
however a minor is a person of immature intellect and the the court acting as parens patria
has duty to protect minor's guardian or the next friend of guardian may file a suit for
partition on minor's behalf and the court has to see whether partition is for the benefit of
minor or not If it is not for his benefit them partition will not be allowed.
• Alienee:- A purchaser of a coparcener's interest in a court sale or in a private sale where
the coparcener has such a power the alinee can demand partition.
Persons who take share on partition:- There is another category of members of the joint family
who have no right to partition but if partition takes place are entitled to share.
1. Father's wife:- On a partition between her husband and her son the wife is entitled to a share
equal to the share of son. If no share is alloted to her, she can get the partition reopened.
2. Widowed mother:- A widowed mother has a right to take equal share to that of partition occurs
among the sons (Mother and step-mother each take a share equal share of a son)
3. Paternal grandmother:- She would be entitled to share only If partition is between grandchildren
or between collaterals and her own children being dead. She gets equal to that of grandson.
Allotment of Shares
Shares on partition
On a partition between the members of a joint family, shares are allotted according to the following
rules:
(1) On a partition between a father and his children, each child takes a share equal to that of the
father. Thus, if a joint family consists of a father and three sons, the property will be divided into
four parts, each of the four members taking one-fourth.
(2) Where a joint family consists of brothers, they take equal shares on a partition. (3) Each branch
takes per stripes (i.e. according to the stock) as regards every other branch, but the members of
each branch take per capita as regards each other. This rule applies equally whether the sons are
all by the same wife or by different wives.
*****NOTE
Dravida (Madras) school: The above narrated general rules regarding allotment of shares on Partition
regarding Females (Father's, Wife, Widow-mother) are not followed in Madras (Dravida) school. In this
school, no females are allotted any share on Partition.
Bombay (Maharashtra, Gujarat), Benaras, Mithila, Delhi Schools: These schools follow the general rules
regarding allotment of share on Partition regarding females.
Doctrine of representation
A son or a grandson, whose father is dead, and a great-grandson, whose father and grandfather are
both dead, all succeed simultaneously as one heir to the separate and self-acquired property of their
paternal ancestor. The reason is that the grandson represents the rights of his father to a share and
the great-grandson represents the rights both of his father and grandfather. This is the only case to
which the doctrine of representation applies; it does not apply to any other case, e.g., the case of a
daughter.
Sons, grandsons, and great-grandsons, inheriting together as aforesaid, succeed to the estate of the
deceased as coparceners. On a partition among them, they take per stirpes and not per capita.
On a partition among them, the sons, grandsons and great-grandsons of a deceased male Hindu
take per stirpes
ILLUSTRATIONS (Doctrine of representation)

(a) A, a male Hindu, dies leaving a son B, a grandson C, a great grandson D, and a great great
grandson E, as shown in Table III.1.
Table III.1
On A’s death, his estate will pass to B, C and D as coparceners. If they continue joint, and if any
one of them dies without leaving male issue, his share will pass to the survivors. If they want to
divide the estate, it will be divided into three equal parts, B, C and D, each taking one part. B alone
is not entitled to inherit the whole property. C will take the share of his father X, and D, the share
of his grandfather X1. E, is not entitled to any share at all, for he is more than four degrees removed
from A, and the right of representation does not extend beyond four degrees.
(b) A, a male Hindu, dies leaving a son, B, two grandsons C and C1, and three great-grandsons D,
D1, D2 as shown in Fig 2.
Fig. 2
A’s property will be divided, if the heirs choose to divide it, into three equal parts, of which B will
take one, C and C1 will together take one, and D, D1, D2 will together take one. This is a division
of the estate per stirpes. To divide it per capita, would be to divide it into six parts, and give one
part to each of the six heirs.
PARTITION HOW EFFECTED

There are three necessary conditions partition which bring about a severance of the joint status or
interest:
a. Formation of an intention to separate

b. Declaration of an intention to separate
c. Communication of that intention to others affected thereby,
The moment a clear, definite, unambiguous and unequivocal intention to separate is communicated
to other coparceners during the lifetime of the coparcener demanding the partition , the division in
status takes place.
Severance of status is effective form the date on which the communication was put in to
transmission (doctrine of relation back). The vested rights accuring between the date of
transmission of communication and receipt of communication are preserved. For example, if the
karta of the family has alienated the family property in the meantime for a legal necessity, the
transaction will bind the separating coparcener also.
****Communication to be completed during the lifetime of the coparcener: For the application
of the doctrine of relation back, it is necessary that the communication of intention is completed during the
lifetime of the coparcener. Where the communication is sent by the coparcener, but before it reaches the
karta, he dies, his interest will be taken by the surviving coparceners and despite the karta receiving the
communication later, no severance of status would take place. The moment a coparcener dies, he loses his
interest in the coparcenary property, the communication of his intention to separate after his death, is
meaningless. Therefore, where a coparcener communicates his intention to separate to the karta, through a
letter, and executes a will of his share in favour of his friend, the Will became void if he dies before its
receipts by the karta
Illustration : Neeraj, Nandan and Arjun are three brothers constituting a Mitakshara coparcenary.
Arjun who is displeased with his eldest brother (Neeraj) informs him on 4.6.2008 on phone: "I am
thinking of separating from the joint family." Two days later he sends a registered letter to his
eldest brother expressing his unequivocal intention to separate from the joint family. On 10.6.2008
he makes a gift of all his property in favour of Vrinda. Arjun's death occurs on 14.6.2008. Before
the receipt of letter, Neeraj alienates an item of joint family property on 9.6.2008 to meet the
Marriage expenses of their sister Rita. The letter sent by Arjun actually reaches Neeraj on 2.7.2008.
Examine:
Whether Vrinda is entitled to the share of Arjun under gift deed? (iii) Whether alienation
made by Neeraj is valid?
Solution: In this case, the letter reaches on 2.7.2008 while Arjun died on 14.6.2008. It means his
death occurs before the completion of communication of his intention to separate. The following
points may be noted in this regard:
(i) For a partition to be effected the separating coparcener must communicate his intention during
his lifetime. If this communication occurs after the death of such coparcener, partition cannot take
place. Therefore Arjun died as an undivided coparcener.
(ii) Even after HSA, 1956, a coparcener cannot make a valid gift of his undivided coparcenary
interest. Therefore Vrinda is not entitled to the share of Arjun under a deed of gift.
(iii) Neeraj is the karta of the joint family and he can make an alienation of property for legal
necessity. Marriage of a coparcener's sister is legal necessity, therefore the alienation made by
Neeraj is valid.
(iv) It is also noted that the telephone conversation did not affect a partition because for partition,
a coparcener must make an unequivocal and definite intention. The words "I am thinking of" betray
the fact that Neeraj was still in the stage of contemplation. But sending a registered letter
expressing unequivocal intention to separate is sufficient to constitute partition provided it reaches
before his death.
NOTIONAL PARTITION
In order to ascertain the shares of the heirs in the property of a deceased coparcener, the first step
is to ascertain the share of the deceased himself in the coparcenary property . This can only be
ascertained by the partition. So here comes the concept of Notional Partition. Explanation 1 to
Section 6 provides a fictional expedient, namely, that his share is deemed to be the share in the
property that would have been allotted to him if a partition had taken place immediately before his
death. It is meant for a specific purpose and it should be confined within the framework of the
purpose. The notional partition is not a real partition. It neither affects a severance of status nor
does it demarcate the interest of the other coparceners or of those who are entitled to a share on
partition. It has to be used to demarcate the interest of the deceased coparcener. In effect, the
inevitable corollary of this position is that the heir will get his or her share in the interest which
the deceased had in the coparcenary property at the time of his death, in addition to the share which
he or she received or must be deemed to have received in the notional partition.
For example, A Mitakshara joint family consists of A, his two sons B and C and a son BS and a
daughter BD of B.
Suppose B dies in 2000. Since he leaves behind BD, a female in Class I, his interest will devolve
by succession. If partition had taken place during B's lifetime, he would have got ⅙ share. A will
get ⅓, C will get ⅓ and B's branch will get ⅓. Since the daughter does not take a share, on partition,
B and BS will take ½ of ⅓ i.e., ⅙ each. After demarcating B's share, we forget about the partition
and note that B is dead and his ⅙ interest as demarcated by the notional partition will go by
succession.
When a notional partition is made, all rules of the partition are applied as if it is a real partition.
When that is done, we would keep the track, and remember that a notional partition is a fictional
partition in which no one gets any share. Actually, its purpose is to demarcate the share of the
deceased coparcener. Once we demarcate a deceased share, we have to remember what his share
is, and we should forget what shares were allotted to others, as others do not in fact get any share.
Notional partition does not change the character of ancestral property, after deciding the deceased
share remaining survivors hold it as joint Hindu property. Though several recent judgments upheld
this notion, the contrary that the property becomes separate property laid down in Uttam v
Saubhag Singh (2016) has been criticised but not overruled.
The notional partition as contemplated in S. 6 does not amount to an automatic statutory partition;
nor does severance of status take place on the death of the coparcener.
CASES
Case - A. Raghavamma v. A. Chenchamma, 1964

Fact – A Hindu joint family comprised four brothers, two of whom died without leaving a male
issue. Out of the two who survived and maintained the undivided status, one Br 2 was childless,
while the other, Br 1 had a son S and a daughter D. S got married to SW and had a son SS and
the daughter had a female issue DD.
After the death of the brother Br 2, and the son S, the family comprised the Karta Br 1, and his
grandson, SS and a granddaughter, DD. Br 1 executed a Will of his undivided properties,
dividing it into two equal parts, one part in favour of his grandson, SS and the other part to his
granddaughter, DD. Since both of them were minors, he provided in the Will, that till their
minority, the management of these properties would be in the hands of Br 2W, i.e., the testator’s
brother’s widow, Raghavamma, and if any of these beneficiaries under the Will, i.e., SS or DD,
died before attaining majority, his/her share will vest in Raghavamma absolutely.
This Will was executed in 1945 and the testator died four months later. Upon his death,
Raghavamma, who, as per the direction under the Will, was to manage the properties, allowed
Chenchamma to take possession and manage the properties on behalf of her minor son, SS, and
the minor daughter of the testator’s daughter, DD. SS, died four years later and as he had died
without attaining majority, his half share in the property was claimed by Raghavamma.
Her claim nevertheless, was resisted now by Chenchamma, who contended that SS had died as a
sole surviving coparcener and his share on his death, will go by inheritance to her, as she was his
mother, and not as per the directions of the Will.
Issue - Whether a member of a joint Hindu family, becomes separate from the other members of
the family, by a mere declaration of his unequivocal intention to divide from the family, without
bringing the same to the knowledge of the other members of the family?
The Court noted that two things are necessary for effecting a severance of status, viz.:
→ (i) declaration of the intention; and
→ (ii) communication of it to the others affected thereby.
➢ It is implicit in the expression ‘declaration’, that it should be brought to the knowledge of
the persons affected thereby. An uncommunicated declaration is no better than a mere
formation or harbouring of an intention to separate. It becomes effective as a declaration
only after its communication to the person or persons who would be affected by it.
➢ In the present case, the Court held that Br 1 was, at the time of his death, an undivided
member of the coparcenary comprising himself and his grandson SS. Even where he had
expressed his intentions to separate in the Will, the same was not communicated to the
guardian of the other coparcener, who was a minor, so on his death, his interest was taken
by the minor coparcener, as a sole surviving coparcener, due to the application of the
doctrine of survivorship, and Br 1 had no interest in the property that could go by Will.
➢ Even if it (the Will) could be relied upon for ascertaining his intention to separate from
the family, (he) could not convey his interest in the family property, as it has not been
established that Subbarao (SS) or his guardian had any knowledge of the contents of the
said Will before Chimparayya (Br1) died.
➢ If the contents of the Will had been brought to the knowledge of the guardian of SS
during the lifetime of Br 1, the communication would have been complete and a
severance of status would have taken place. In that case, the Will would have been valid.
➢ But if the sole reliance is on the Will, to communicate the intention of the testator, there
would be no valid communication during the lifetime and therefore, no valid severance of
the status.82 The Will was, accordingly, held to be without any effect and the property
went by law of inheritance, on the death of SS, to his mother Chenchamma.
Case - Puttrangamma v. M.S. Ranganna, 1968

Fact - the Karta, with his three brothers and their descendants, constituted a joint family. He
himself had four daughters and no male issue. He issued a notice from the hospital, to the other
members, declaring his unequivocal intention to separate from the joint family, as he was sick.
At the time of issuing of this notice, his younger brother’s son was present in the hospital. He
snatched the notice and attempted to tear it, but was prevented from doing so.
After the notice was registered at the post office, the family members intervened, tried to bring
about an amicable settlement and persuaded him to withdraw the notice. He wrote an application
to the post office to withdraw the notice and the request was complied with. As no agreement
could be reached subsequently, he signed the vakalatnama and instructed his lawyer to institute a
suit for partition, and died on the day on which the suit was instituted.
Issue - What was his status at the time of his death: that of a separate member or of a joint family
member?
Did the withdrawal of the notice operate as a complete renunciation of his intention that he had
earlier expressed to separate from the family?
As he had died on the day the suit was instituted, did it mean that since no summons were sent to
the other members, the communication was not complete during his lifetime?
➢ The question as to what was his status at the time of his death was very important to
determine the devolution of his share in the property. As he died without leaving a male
issue, but four daughter only, if he was still an undivided member at the time of his death,
his interest in the property would be taken by survivorship, by the surviving coparceners,
and the daughters will not be entitled to anything.
➢ However, if the severance was already effected and he, at the time of his death, was a
separate member, the remaining coparceners would not get anything out of his property,
as it will go by inheritance to his four daughters.
➢ The Supreme Court agreed with the verdict of the trial court and held that it is not
necessary that the communication must be through a formal notice, sent through post.
Here, even at the time the notice was dictated and signed in the hospital, one of the
coparceners was present.
➢ The withdrawal of the notice did not take place before the communication of the intention
to separate was made, but took place subsequent to the severance of status, consequently,
the partition had already been effected, his status had become that of a separate member
and a unilateral withdrawal on the persuasion of family members, so that he could rethink
his decision, could not restore his formal status, more so as the deceased had instructed
his lawyer to file a suit for partition, that was in fact, filed on the day he died. The court
therefore, held that he died as a separate member.
➢ A partition, is a matter of individual volition. All that the coparcener has to do is to form
an unequivocal intention to separate himself from the joint family and then, to
communicate it. The most appropriate person to whom it should be communicated, is the
Karta, but if he, for the time being, is unavailable, it can be brought to the notice of the
other coparceners.
➢ Once a partition is effected, it cannot be revoked by a unilateral withdrawal of the
intention to separate, but it is possible for the members of the family, by a mutual
agreement, which also includes the member at whose instance the joint status was
disrupted, to come together again and reunite.
➢ A unilateral declaration can bring about a partition, but a unilateral withdrawal of this
intention, where the partition has already been effected, cannot result in a revocation of
partition or in a reunion, as, for demanding a partition, the consent of the other
coparceners is not material, but a reunion is not possible unless there is an agreement
between all the members.
Case - Kakumanu Pedasubhayya v. Kakumanu

Akkamma, 1968
Fact - The maternal grandfather of a minor, aged 2 years, filed a suit for partition on his behalf,
as against his father and two brothers. His main contention was that the Karta (father), along with
the two major sons born to him from his first wife, were managing the joint family property in a
manner that was detrimental to the interests of the minor. They were selling the joint family
properties, including the share of the minor and out of the sale proceeds, they were purchasing
properties in their individual names.
The minor was also thrown out of the family house along with his mother (father’s second wife)
and sister. The petition was admitted, but during the pendency of the litigation, the minor died.
Issue - What was the status of the minor on his death? Did he die as an undivided member of the
coparcenary, or as a separate member; and
Whether the court should continue with the suit, even though the person on whose behalf the suit
was filed is dead, or should the suit be abated?
➢ The court has to be convinced in such cases that the partition would be in the interests of
the minor and not affecting a partition would adversely affect his interests.
➢ The Apex Court held that even in the case of a minor coparcener, the effective date for
severance of status would be the date of institution of the suit, provided the court actually
effects a partition.
➢ If the court comes to the conclusion that effecting a partition will benefit the minor, with
the application of the doctrine of relation back, such a minor would be deemed to be
separate from the date of the institution of the suit.
➢ Where the court comes to the conclusion that a partition will not further the interests of
the minor, it will not order the effecting of a partition and the minor will remain an
undivided member.
➢ The court observed that under Hindu law, there is no distinction between the rights of a
minor and a major coparcener, as far as the coparcenary property is concerned. His share
is equal to that of a major coparcener and he has a similar right of maintenance,
possession and enjoyment of property.
➢ However, as he is a minor, the courts act as parens partria, in order to protect his interests
and assess whether a partition will benefit him or not.
➢ The relevance of this question as to whether the court should continue with the suit or
not, lies in the fact that severance is conditional upon the court coming to the conclusion
that a partition would have been beneficial to the interests of the minor and till the court
examines that issue, the status of the minor at the time of his death, would remain
uncertain.
➢ As the status can be determined only when the court decides the suit, the suit will not
abate with the death of the minor and the court will decide the case on merits, to
determine whether, in the light of the facts and circumstances of the case, a partition
would have advanced the interests of the minor.
➢ The court here concluded that the father and two brothers of the minor were acting in a
manner so as to defeat his interests and so, a partition was desirable.
➢ Therefore, his share in the property would go by inheritance to his mother and not to the
coparceners under the doctrine of survivorship.
Topic – 4 & 5
(Principal Reading)
Succession is of two types:
(i) testamentary succession; and

(ii) intestate succession.
TESTAMENTARY SUCCESSION
Where succession is governed by a testament or a Will, it is called testamentary succession.

Under Hindu law, a Hindu male or female has the capability to make a Will of his/her property,
including of a share in the undivided Mitakshara coparcenary, in favour of anyone. In such cases,
the property will devolve on their death, in accordance with the distribution that they effect under
this Will, and not according to the laws of inheritance. The only requirement is that the Will
should be valid and capable of taking effect in law.
INTESTATE SUCCESSION
Where a person dies, leaving behind some property, but no Will or testament capable of taking
effect in law, his property will be distributed among his legal heirs in accordance with the laws
of inheritance or of intestate succession. The person who dies without making a Will is called an
‘intestate’; those who, in accordance with the scheme of inheritance, are entitled to get a share
out of his property, are called his ‘heirs’ and the whole process is called intestate succession.
CERTAIN TERMS EXPLAINED
Agnate Section 3 (a) and cognate Section 3 (c)
Agnate means a person related by blood or adoption, but wholly through males; where as
cognate means a person related by blood or adoption but not wholly through males. The agnatic
relation may be male or female. So is the case with cognatic relation. Where a person is related
to the deceased through one or more females he or she is called cognate. Thus son's daughter's,
son or daughter, sister's son or daughter, mother's brother's son etc. are cognates. Where as one's
father, grandfather etc. in the ascending line; father's brother's son etc. in the collateral line: or
son. Grandson in the descending line are agnates.
A cognate or an agnate may be in ascending or descending line.
• Heir, Section 3(f): It means any person male or female, who succeeds to the property of
an intestate under this Act. The term 'heir' is contrary to reversioner. Reversioners had
only a chance of Succession where as heir is the person male or female who has
immediate right to inherit the properties of a deceased dying intestate.
• Intestate, Section 3(g): A person is deemed to die intestate in respect of property of which
he or she had not made a testamentary disposition (will).
• Related, Section 3(1): Means related by legitimate kinship. Kinship is created by blood or
under Hindu law by adoption. Legitimacy depends upon marriage law and is to be
determined accordingly.
Provided that illegimate children shall be deemed to be related to their mothers and to one
another and their legitimate descendates shall be deemed to be related to them and to one another
and by word expressing relationship or denoting a relative shall be construed accordingly.
Note: The Hindu Succession Act, 1956 deals with both testamentary (Section 30) and intestate
succession.
Classification of Heirs
The heirs of a male Hindu are divided into four categories, 67 namely:
(i) Class-I;
(ii) Class-II;
(iii) Class-III (Agnates); and
(iv) Class-IV (Cognates).
Section 8 General rules of succession in the case of males―The property of a male Hindu
dying intestate shall devolve according to the provisions of this Chapter:― (a) firstly, upon the
heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of
class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if
there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if
there is no agnate, then upon the cognates of the deceased.
Section 9 Order of succession among heirs in the Schedule―Among the heirs specified in the
Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those
in the first entry in class II shall be preferred to those in the second entry; those in the second
entry shall be preferred to those in the third entry; and so on in succession.
Section 10 Distribution of property among heirs in class I of the Schedule―The property of
an intestate shall be divided among the heirs in class I of the Schedule in accordance with the
following rules:
Rule 1.―The intestate’s widow, or if there are more widows than one, all the widows together,
shall take one share.
Rule 2.―The surviving sons and daughters and the mother of the intestate shall each take one
share.
Rule 3.―The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the
intestate shall take between them one share.
Rule 4.―The distribution of the share referred to in Rule 3— (i) among the heirs in the branch of
the pre-deceased son shall be so made that his widow (or widows together) and the surviving
sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same
portion; (ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the
surviving sons and daughters get equal portions.
Section 11 Distribution of property among heirs in class II of the Schedule―The property of
an intestate shall be divided between the heirs specified in any one entry in class II of the
Schedule so that they, share equally.
Disqualifications of heirs
• CERTAIN WIDOWS RE-MARRYING MAY NOT INHERIT AS WIDOWS:
SECTION 24
Section 5 of the Hindu Succession (Amendment) Act, 2005 has omitted this section. Therefore,
remarriage by these widow is no longer a disqualification.
• MURDERER DISQUALIFIED: SECTION 25
A person who commits murder or abets the commission of murder shall be disqualified from
inheriting the property of the person murdered, or any other property in furtherance of the
succession to which he or she committed or abetted the commission of the murder.
The section has the effect of laying down that a person who commits murder or abets the
commission of murder is disqualified from inheriting -
i) The property of the person murdered; or

ii) Any other property he may become entitled to succeed by reason of furtherance of succession
resulting from the murder.
The expression 'murder' would be read in a wide sense and would take in its import even
culpable homicide, though, of course, to some extent the matter would depend upon the facts and
circumstances of the case.
• CONVERT'S DESCENDANTS DISQUALIFIED: SECTION 26

Where, before or after the commencement of this Act, a Hindu has ceases or ceases to be a
Hindu by conversion to another religion, children born to him or her after such conversion and
ther descendants shall be disqualified from inheriting the property of any of their Hindu relatives,
unless such children or descendants are Hindus at the time when the succession opens.
Thus where A died leaving three Sons, B, C, and D. and B had accepted Islam during the lifetime
of A, on the death of A, B, C and D would equally take one share each i.e. 1/3 of the property
left by A, B is not disqualified from inheriting the property of A despite the fact that he had
embraced Islam and is no longer a Hindu. The reason is that under section 26 the convert himself
is not disqualified from inheriting. The descendants of a convert born subsequently after
conversion would be disqualified to inherit.
*** Change of religion and loss of caste, which at one time were grounds for forfeiture of property and of
exclusion from inheritance, ceased to be so after the passing of the Caste Disabilities Removal Act, 1850.
Disinheritance as a result of conversion to another religion is only as regards children born to the Hindu
after such conversion, but not in respect of the convert himself or herself.
SUCCESSION WHEN HEIR DISQUALIFIED: SECTION 27
If any person is disqualified from inheriting any property under this Act, it shall devolve as if
such person had died before the intestate. It follows that no person can claim a right of
inheritance to such property, through him or her. For, this can only happen if the property had
vested in the disqualified person and he or she had thereafter immediately died. The property, in
fact never vests in the disqualified person. Therefore, a disqualified heir cannot a fresh stock of
descent and a person claiming as an heir of the disqualified person can not inherit.
The section is prospective not retrospectively.
DISEASE, DEFECT, ETC. NOT TO DISQUALIFY: SECTION 28
No person shall be disqualified from succeeding to any property on the ground of any disease.
defect or deformity, or save as provided in this Act, or any other ground whatsoever.
Class-I Heirs
Class I Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased
son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-
deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of
a pre-deceased son; widow of a pre-deceased son of a pre-deceased son 1 [son of a predeceased
daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased
daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased
daughter of a pre-deceased son]
Class-II Heirs
So long as a single heir from the class I category is present, the property does not pass to the
class-II category.
Where heirs in category (ii) and (iv) are present the former would exclude the later. Thus in
presence of a brother of the intestate, the nephew cannot inherit.
All the heirs of one category, take the property in equal shares, according to the per capita rule of
distribution of property, and the order in which their names appear is irrelevant.
These heirs and their sub-categories are as follows:
I. Father
II. (1) Son’s daughter’s son
(2) Son’s daughter’s daughter (now also placed in class–I category)
(3) Brother
(4) Sister
III. (1) Daughter’s son’s son
(2) Daughter’s son’s daughter (now also placed in class–I category)
(3) Daughter’s daughter’s son (now also placed in class–I category)
(4) Daughter’s daughter’s daughter (now also placed in class–I category)
IV. (1) Brother’s son
(2) Sister’s son
(3) Brother’s daughter
(4) Sister’s daughter
V. Father’s father; Father’s mother
VI. Father’s widow; Brother’s widow
VII. Father’s brother; Father’s sister
VIII. Mother’s father; Mother’s mother
IX. Mother’s brother; Mother’s sister
Examples of Hindu male intestate succession
Illustration (i)
In Fig. 1, a Hindu male A dies and is survived by his mother M , widow W , a son S and an
unmarried daughter D .
Fig. 1
In the present case, the mother, widow, son and the daughter, each will take one-fourth (1/4th) of
his property. So, the shares will be as follows:
M = 1/4; S = ¼; W = ¼; D = ¼
Illustration (ii)
A Hindu male A dies intestate and is survived by his mother M , two widows, W 1 and W 2, an
unmarried daughter D 1, a married daughter D 2 and two sons, S1 and S2 [see Fig. 2].
Fig. 2
Here, the mother, each of the two sons, each daughter and the widows together, will take a share
each. The property will be divided into six equal parts and the share of each heir will be as
follows:
M = 1/6; S 1 = 1/6; W 1 = 1/12; S 2 = 1/6; W 2 = 1/12; D 1 = 1/6; D 2 = 1/6
***(W 1 + W2 = 1/6)
Both the widows will, together, take a share equal to that of the son and divide it equally between
them. As there is no difference between the rights of a married and an unmarried daughter, both
will inherit an equal share.
Illustration (iii)
A Hindu male A, dies intestate in 2000, leaving behind his widow W1, whom he had married in
1990, and a son S, from her. He married W 2 in 1994, while his first marriage was subsisting and
a daughter D was born to him from W 2 [see Fig. 3].
Fig. 3
Here, the marriage of A with W 2 was a void marriage and therefore, she is not entitled to inherit
his property, but the daughter who is born of this marriage is a legitimate child and succeeds with
his other descendent, i.e., the son. The property will be divided into three equal parts, one each
going to W 1, S and D . The final shares will be as follows:
W 1 = 1/3
W 2 = (Nil)
S = 1/3
D = 1/3
Illustration (iv)
A, a Hindu male dies in 2000, leaving behind his widow W and an adopted son DS 1, a concubine
C, and a son DS 2, born to him from the concubine [see Fig. 4].
Fig. 4
Here, the concubine is not entitled to succeed. DS 2 is an illegitimate son and does not inherit
from the father. The property will be divided into two equal parts, one each going to the widow
W and the adopted son DS 1. The shares will be as follows:
W = 1/2
C = Nil
DS 1 = 1/2
DS 2 = Nil
Illustration (v)
A, a male Hindu, dies leaving behind his mother M, widow W , two daughters D 1 and D 2, the
widow of a predeceased son SW , and two sons of a predeceased daughter DS 1 and DS 2 [see
Fig. 5].
Fig. 5
The property will be divided into six equal parts, one each going to the mother M , widow W ,
two living daughters D 1 and D 2, one share to the branch of the predeceased daughter D , and
one share to the branch of the predeceased son S . The share allotted to the branch of the
predeceased daughter will be taken equally by her two sons and the share given to the branch of
the predeceased son will be taken by his widow. The shares of each of them will be as follows:
M = 1/6
W = 1/6
D 1 = 1/6
D 2 = 1/6
DS 1 = 1/12
DS 2 = 1/12
SW = 1/6
Illustration (vi)
A male Hindu A , dies intestate in 2000, and is survived by his parents F and M , his one son S1,
widow of his predeceased son SW and two children SSD and SSS of the predeceased son of a
predeceased son S3, who died in 1996. The widow of SS , SSW , had remarried in 1998. [See Fig.
6]
Fig. 6
The property will be divided into four parts. As the father F is a class-II heir, he does not get a
share. The mother M , and the living son S1, will take a one-fourth (1/4th) share each. One share
will be allotted to the branch of the predeceased son S2, which will be taken by SW . Another
share will be allotted to the branch of the predeceased son of a predeceased son S3. Out of this
share, his children SSS and SSD will share equally. SSW will not get a share as she remarries
before the opening of the succession, viz., before the death of A . The shares will be as follows:
F = Nil
M = 1/4
S 1 = 1/4
S 2 W = 1/4
SSS + SSD = 1/4

SSW = Nil
SSS = 1/4 *1/2 = 1/8
SSD = 1/4 1/2 = 1/8
Illustration (vii)
A, a male Hindu, dies on 1 January 2001, and is survived by his father F , and a widow of a
predeceased son of a predeceased son SSW . SSW remarried on 3 January, 2001. [See Fig. 7]
Fig. 7
Here, the complete property will be taken by SSW , to the exclusion of the father of the intestate,
as the presence of a single class-I heir will not let the property pass to the class-II category. The
succession opened on 1 January, 2001. As on this day, SSW was a widow of A ’s predeceased
son of a predeceased son, she is vested with the property. Her remarriage two days later, will not
divest her of the property that has already vested in her.
Illustration (Before 2005 amendment)

In different states
Illustration
A, a Hindu male, dies as an undivided member of a Mitakshara coparcenary, leaving behind his
father F , a widow W , a son S and a daughter D . [See Fig. 1]
Fig. 1
To calculate how his interest in the coparcenary will devolve, the first thing to see is whether he
has left behind him, a class-I female heir or a class-I male heir claming through a female. In this
case, the widow and the daughter are such class-I heirs. Then we have to presume that before his
death, a partition had been effected. The partition will be effected in two stages:
(a) At the first stage, a partition will be effected between F and A and each of them will take
one-half of the property. The half that is taken by A is not his separate property, but he
takes it as the Karta of his family comprising his wife and the children, viz., the
coparcenary consisting of him and his son.
(b) The second partition will be between A and his son. If the family follows the Dravida
School, in this partition, the widow will not get a share at the time of partition and the
property will be partitioned between A and his son only, each taking one-fourth of the
property. This one-fourth is the separate property of A , which will go by inheritance to his
class I heirs, in this case, the widow, the son and the daughter. Thus, each will take one-
twelfth of the property.
(c) Where the family is adhering to a school where females get a share at the time of partition,
then the second partition will be between A and the son, but A ’s wife, i.e., W , will be
entitled to get a share equal to that of the son. This half share taken by A , as the Karta of
his family, will be divided among A , W and S , each taking a one-sixth share. This one-
sixth share is the separate property of A and would now devolve by succession, on the
class-I heirs. W , S and D will take one-eighteenth each.
The final shares will be as follows:
F = 1/2
W = 1/6 + 1/18
S = 1/6 + 1/18
D = 1/18.
If the Dravida School is followed the shares will be as follows:
F = 1/2
S = 1/4 + 1/12
W = 1/12
D = 1/12
State Amendments
Section 6 has been amended in four states,1. Andhra Pradesh in 1985,2. Tamil Nadu in 1989,3.
Maharashtra in 1994 and 4. Karnataka in 1994 In these states, daughters in a joint family, who
were unmarried on the date of the passing of the Act, were made coparceners in the same manner
as the sons, which means that they would be entitled to get shares if a partition of the coparcenary
property takes place, in the same manner as the sons. The amendments also provide that if at the
time of partition, such a daughter is dead, but has left behind a child, the share that would have
been allotted to the daughter would be given to the child. If there is no child, but there is a
grandchild of a predeceased daughter, the share that would have gone to the daughter, would be
given to the grandchild of the predeceased daughter.
Rules for Calculation of Shares in Mitakshara Coparcenary Property after Effecting a
Notional Partition, where a Coparcener Dies leaving behind an Undivided Interest in the
Mitakshara Coparcenary
The following factors need to be remembered while effecting a notional partition:
(a) The coparcener dies as an undivided member in a Mitakshara coparcenary.

(b) His death occurs after 1956 i.e., after the passing of the Hindu Succession Act, 1956.
(c) He is survived by a class-I female heir or the son of a predeceased daughter.
(d) The share of the deceased is to be calculated after effecting a partition.
(e) Such share is to be distributed in accordance with the provisions of intestate succession
under this Act.
(f) The states where daughters have been introduced as coparceners, they have to be allotted
a share at the time of effecting a notional partition.
Illustration
A dies in 1960 as an undivided member of a Mitakshara coparcenary having an interest in the

coparcenary property. He is survived by his parents, F and M and his two children, son S and
daughter D [see Fig. 2].
Fig. 2
To calculate his share we have to first effect a notional partition. The rules for all the sub-Schools
of Mitakshara are different from those adhering to the Dravida School where the females do not
get a share at the time of partition.
Dravida School : Here, we will first have to effect a partition among F and A , so that each of them
will take half of the property. Since this half share of A is not his separate property, but includes
the share of his male issue also, this half will be divided into two parts. S will take one-fourth and
A ’s share, which will go by intestate succession, will also be one-fourth. This one-fourth will be
divided among A ’s class I heirs, viz. , mother, son and daughter who will take one-twelfth each.
Thus,
After first partition: F , A = 1/2 each
After second partition: A , S = ½ * ½ = 1/4 each
Share of A = 1/4
After devolution of property by inheritance:
M , S , D = 1/4 * 1/3 = 1/12 each

F = 1/2
M = 1/12
S = 1/4 + 1/12
= 1/3
D = 1/12
General Rule (for other Sub-schools) : First, we will effect a partition between F and A , but here
the mother also gets a share. So each of them will take a one-third share. The second partition will
be between A and S with each taking a (1/3 1/2) one-sixth share. This one-third will now be divided
among the class-I heirs, viz. , the mother, son and daughter who will each take a (1/6 1/3) one-
eighteenth share. Thus,
After first partition: F , M , A = 1/3rd each
After second partition: A , S = 1/3 * 1/2 = 1/6th each
Share of A : 1/6
After third division (intestate succession) of 1/6th of A :
M , D , S = 1/6 * 1/3 = 1/18th each
Therefore, the final shares will be as follows:
F = 1/3
M = 1/3 + 1/18
S = 1/6 + 1/18
D = 1/18
When Daughter is also a Coparcener : In states where the Act has been amended, the daughter
also gets a share, provided the death has occurred after the amendment has come into force.
Here, assuming that the deceased died in 1995 and the family came from Maharashtra.
After first partition, among F , M and A , F , M and A = 1/3 each
After second partition, among A , S and D , A , S and D = 1/3 * 1/3 = 1/9 each.
Share of A = 1/9
After third division (intestate succession):
M , S and D = 1/9 * 1/3 = 1/27 each
F = 1/3
M = 1/3 + 1/27 = 10/27
S = 1/9 + 1/27 = 4/27
D = 1/9 + 1/27 = 4/27
Illustration
A dies as an undivided coparcener in a Mitakshara coparcenary leaving behind his parents M and
F , two widows W 1 and W 2, (both marriages were solemnised prior to 1955 and were valid) a
son S and a daughter D [see Fig. 3].
Fig. 3
General Rule : After first partition: F , M and A = 1/3 each;
After second partition (among A , W 1, W 2 and S ):
A , W 1, W 2 and S = 1/3 * 1/4
= 1/12 each.
Here, the father’s wife or wives will take a share equal to that of the son.
Share of A = 1/12
After third division (intestate succession), the share of A i.e., 1/12, will go by intestate succession
and will be taken by W 1 and W 2 together,
S and D = 1/12 * 1/4 = 1/48.
F = 1/3
M = 1/3 + 1/48 = 17/48
W 1 and W 2 = 1/12 + 1/48 * 1/2

= 1/12 + 1/96 = 3/32 each
S = 1/12 + 1/48 = 5/48
D = 1/12 + 1/48 = 5/48
Maharashtra: After first partition among F , M and A . F , M and A = 1/3 each.
After second partition among A , W 1, W 2, S and D ,
A , W 1, W 2, S and D = 1/3 * 1/5 = 1/15 each
Share of A = 1/15
After third division (intestate succession): This 1/15th share of A will go to his class-I heirs.
Therefore,
W 1 and W 2 together with M , D and S = 1/15 * 1/4 = 1/60.
Thus, the final shares will be as follows:
F = 1/3
M = 1/3 + 1/60
W 1 and W 2 = 1/5 + 1/120 each
S = 1/5 + 1/60
D = 1/5 + 1/60
Tamil Nadu : After first partition between F and A : F and A = 1/2 each.
After second partition between A , S and D : A , S and D = 1/3 1/2 = 1/6 each.
Share of A = 1/6
After third division (intestate succession): A ’s 1/6th will go to his class-I heirs. So, W 1 and W 2,
M , D and S = 1/6 1/4= 1/24 each.
F = 1/2
M = 1/24
W 1 = 1/24 1/2 = 1/48
W 2 = 1/24 1/2 = 1/48
S = 1/6 + 1/24 = 5/24
D = 1/6 + 1/24 = 5/24
Illustration
A dies as an undivided member of a Mitakshara coparcenary leaving behind his widow W , a

mother M , two brothers Br 1 and Br 2 and a daughter D [See Fig. 4].
Fig. 4
General : A notional partition will be effected among all the three brothers, with the mother also
getting a share. So, the property will be divided into four parts, M , Br 1, Br 2 and A taking a one-
fourth share each. This one-fourth share of A will go in equal shares to M , W and D , his class-I
heirs. The final shares will be as follows:
Br 1 = 1/4
Br 2 = 1/4
M = 1/4 + 1/12
D = 1/12
W = 1/12
Maharashtra : Here, the first partition will be the same as above, i.e., Br 1, Br 2 and A will take
one-fourth each. However, as the daughter is also a coparcener, this one-fourth will include the
undivided share of the daughter as well. This will be partitioned in three, with A , D and W , each
taking a one-twelfth part. This one-twelfth share of A will be taken by M , W and D in equal shares.
Br 1 and Br 2 = 1/4 each
D = 1/12 + 1/36
M = 1/4 + 1/36
W = 1/12 + 1/36
Tamil Nadu (Dravida) : After the first partition (among three brothers only as the mother will not
get a share): A , Br 1, Br 2 = 1/3 each.
After the second partition (between A and D , as the daughter is a coparcener, though W will not
get a share): A , D = 1/3 * 1/2 = 1/6 each.
A ’s 1/6th will be divided among M , W and D as they are the classi heirs, who will take equal
shares, i.e., (1/6 * 1/3) one-eighteenth each. The final shares will be as follows:
M = 1/18
W = 1/18
Br 1 = 1/3
Br 2 = 1/3
D = 1/6 + 1/18 = 2/9
Illustrations
A dies as a member of a Mitakshara joint family and is survived by his father F , mother M ,
brothers B 1 and B 2, widow AW , a son S1, a separated son S2, and a daughter D [see Fig.5]. A
leaves behind, separate property worth Rs. 10 lakh and the total joint family assets are worth Rs.
30 lakh. For the calculation of the shares of all those persons who are entitled to inherit these
properties, let us take the self-acquired property and the share in the undivided coparcenary
property separately.
Fig. 5
Separate Property
The separate property of A will go by intestate succession, among all class-I heirs. As in intestacy
there is no distinction between the rights of a separated son and those of an undivided son, S2 is
also entitled to inherit. The property will be divided into five equal parts, one each going to M ,
AW , S1, S2 and D . The father and two brothers are class-II heirs and will not inherit in the
presence of class-I heirs.
Undivided Interest in Mitakshara coparcenary
General Rule:
Since S2 separated during the lifetime of the deceased, he will not be taken into account at all. As
A is survived by two class-I female heirs, viz. , the mother and daughter, it will be presumed that
before his death, a partition had been effected in the family. The first step will be to effect a
partition among F , A , B 1 and B 2. Since the partition is between a father and his sons, the mother
will also be entitled to take a share. So, the property will be divided into five parts, with F , A , B
1, B 2 and M each taking one-fifth . This one-fifth share in the hands of A , is the undivided share
of A and S2. Thus, this will be further partitioned between A and S1. Here again, A ’s wife AW ,
will take a share equal to that of S1. S2 will not be given any share. This (one-fifth) will be divided
into three equal parts, i.e., a one-fifteenth share going to S1, A and AW each. This one-fifteenth
share is the interest of A in the coparcenary property that will now go by succession. For
ascertaining the class-I heirs, again, S2 will not be taken into account, and this one-fifteenth share
will be divided equally amongst M , AW , S1 and D , which will be a one-sixtieth share each. The
final shares will be as follows:
F = 1/5
B 1 = 1/5
B 2 = 1/5
M = 1/5 + 1/60 =
AW = 1/15 + 1/60
S 1 = 1/15 + 1/60
D = 1/60
S 2 = Nil
Maharashtra School: Where A dies after 1994, a share has to given to the daughter also.
After the first partition among F , A , B 1, B 2 and M :
F , A , B 1, B 2 and M = 1/5th of the property.
After the second partition in which the daughter will also be given a share:
A , AW , S1 and D = 1/5 1/4 = 1/20th of the property each.
This 1/20th share of A will go to his class I heirs.
M , AW , S and D = 1/80th each.

F = 1/5
B 1 = 1/5
B 2 = 1/5
M = 1/5 + 1/80
Dravida School : In the first partition among A , B 1, B 2 and F , the mother will not get a share.
So, the property will be divided into four parts . This one-fourth share will be partitioned among
A , S and D , as AW will not get a share. A , S and D will take a (1/4 x 1/3) one-twelfth share each.
The share of A will go by intestate succession, among M , AW , S and D , who will each take a one-
forty eighth share
Therefore the final shares will be as follows:
F = 1/4
B 1 = 1/4
B 2 = 1/4
M = 1/48
AW = 1/48
S 1 = 1/12 + 1/48
D = 1/12 + 1/48
Separate Son’s Inheritance to Self-acquisitions of Father
A separated son or his heirs do not get a share at the time of notional partition nor do they get a share out of the
deceased coparcener’s share, even if it goes by intestacy.However, they are not prohibited from inheriting the other
self-acquisitions of the father, under s 8. The separate property of the father goes in equal shares, to a divided as well
as an undivided son. For example, A , a Hindu male, dies in 1990 as an undivided member of a Mitakshara
coparcenary and he is survived by two sons, S1 and S2. He leaves behind joint family assets and a land that he had
inherited from his maternal grandfather. S2 had separated from the joint family in 1985 and had received his share.
Here, the father had two distinct interests. The first one, which was in the joint family property, is worth Rs. 5 lakh.
This will devolve on S1 (the undivided son), who will now be the sole surviving coparcener of the total joint family
property worth Rs. 10 lakh. In this, S2 will not have a share as he is no longer a member of his family. However. the
father’s second interest, i.e., the land that he had inherited from his maternal grandfather, was his separate property
and on his death, it will go to his class I heirs, in accordance with s. 8. Here, S2 and S1 both, will inherit this
property, as there is no distinction between the rights of a divided and an undivided son.
Q.6 A Mitakshara Coparcenary consists of X and his two sons Y and Z. X dies intestate in 1994
leaving behind his widow W (who marries after X's death), his two sons, two daughters A
(married in 1980) and B (married in 1990). Ascertain their shares in ancestral properties held by
X if, X is governed by Mitakshara law as applicable in: (a) Delhi, (b) Andhra Pradesh, and (c)
Kerala. What will be your answer if X dies in 1924?
Solution: As X had died intestate in 1994 leaving behind female heirs specified in Class I of the
Schedule, the proviso to Section 6 applies. To determine the share of the heirs in ancestral
properties, we must perform a notional partition according to the Explanation 1 to Section 6.
The following points may be noted in this regard:

(1) If the family were to be based in Delhi, on notional partition, the following shares will be
allocated:
X (Intestate) = W (Widow) Y (Son) = Z (Son) = ¼
(2) X's one-fourth will now go to his Class I heirs according to the rules contained in Section 8, 9
and 10. This devolution is as follows:
Y (Son) = Z (Son) = W (Widow) = A (Daughter) = B (Daughter) = 1/20
(3) Therefore, the final shares are:
Y (Son) = 1/4+1/20; Z (Son) = 1/4 +1/20; W (Widow) = 1/4 +1/20; A (Daughter)=1/20; B
(Daughter) = 1/20
(4) If the family was based in Andhra Pradesh, the1985 Act applies and shares on notional
partition would be:
X (Intestate) = W (Widow) Y (Son) = Z (Son) =B (daughter)=1/5.
(5) X's one-fifth will now go to his Class I heirs according to rules contained in Sections 8, 9 and
10. Thus devolution is as follows
Y (Son) Z (Son)= W (Widow) = A (Daughter) = B (Daughter) = 1/25
Y (Son)=1/5+1/25; Z (Son) = 1/5+1/25
W (Widow)= 1/5+1/25; A (Daughter) = 1/25
B (Daughter)= 1/5+1/25
(7) If the family was based in Kerala, the 1975 Act applies and a legislative partition will be
deemed to have taken place in 1976. The shares on legislative partition would be:
X (Intestate) = W (Widow) V (Son) = Z (Son) =1/4
(8) X's one-fourth will now go to his Class I heirs according to rules contained in Sections 8, 9
and 10. This devolution is as follows:
Y (Son) = Z (Son) = W (Widow) = A (Daughter) =B (Daughter) = 1/20
Y (Son) = 1/4+1/20; Z (Son) = 1/4+1/20
W (Widow) = 1/4+1/20; A (Daughter) = 1/20; B (Daughter) = 1/20
(10) If the same facts were to arise in 1924, the old Hindu law would have applied. The property
would pass by the rule of survivorship to other coparceners, which in this case would mean that
the entire property would I go to his two sons. No female gets any share in the ancestral
properties in old Hindu law.
LAW AFTER THE ENFORCEMENT OF THE HINDU SUCCESSION (AMENDMENT)

ACT, 2005
The amending Act has made major changes into the devolution of coparcenary interest held by a
Mitakshara coparcener, at the time of his death. It has made the law simple but not necessarily
equitable by abolishing the very concept of doctrine of survivorship in case of male intestate.
Section 6(3) provides
Section 6 (3)— where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or intestate succession as the case may be under
this Act and not by survivorship and the coparcenary property shall be deemed to have been
divided as if a partition had taken place.
It thus retains the concept of notional partition, for calculating the share of the deceased coparcener
in the Mitakshara coparcenary. Once the share has been so ascertained, such share will go as per
the intestate or testamentary succession, as the case may be, and not in accordance with the doctrine
of survivorship. Under the old law, intestate and testamentary succession principles applied only
where a class-I female heir or a male class-I heir claiming through a female was present i.e., son
of a predeceased daughter. In their absence and in presence of a son, son of a predeceased son or
son of a predeceased son of a predeceased son, the interest of a Mitakshara coparcener devolved
as per doctrine of survivorship. Presently it is immaterial as to who the survivors are. In all cases
where a male coparcener dies as an undivided member of a Mitakshara coparcenary, his interest
calculated after effecting a notional partition must go by intestate or testamentary succession.
Thus presently the following factors have to be remembered while effecting a distribution of the
share of a coparcener dying as an undivided member of Mitakshara coparcenary
(a) the coparcener dies as a member of Mitakshara coparcenary;

(b) his death occurs after 9th September, 2005;
(c) his share is to be calculated after effecting a notional partition.
(d) If he has made a Will capable of taking effect in law with respect to this share, such share
will go as per the instructions given in the Will;
(e) In absence of a Will capable of taking effect in law, such share is to be distributed in
accordance with the provisions of the intestate succession under this Act;
(f) If there is a daughter in the family, she must be allotted a share as she is now a coparcener
in the same manner as a son.
Illustrations
A dies in 2006 as an undivided member of a Mitakshara coparcenary. He is survived by his father,

F, two sons, S1 and S2 and a daughter D. (See Fig. 1 below)
Fig. 1
To calculate the share we have to effect a notional partition between the father F and A so that
each of them gets a half of the property. The second partition would be among A and S1, S2 and
D so that each of them would get 1/4th of i.e., 1/8th. The separate share of A would be 1/8th. This
1/8th share would go as per the rules of intestate succession. Out of this share the father will not
get anything as he is a class-II heir. This 1/8th share of A would thus be distributed equally among
the three class I heirs present i.e., S1 , S2 and D, each taking 1/3 1/8th i.e., 1/24th. Thus
After first partition: F , A = ½ each
After second partition: A , S1, S2 and D = 1/4 * 1/2 = 1/8th each.
Share of A = 1/8th
After devolution of property by intestate succession
S 1, S2 and D = 1/8 * 1/3 = 1/24 each.
The final shares would be as follows.
F=
S 1 = 1/8 + 1/24th = 4/24 = 1/6
S 2 = 1/8 + 1/24th = 4/24 = 1/6
D = 1/8 + 1/24th = 4/24 = 1/6
Illustration
A dies as an undivided member of Mitakshara coparcenary in December, 2005 and is survived by
his parents F and M, two of his wives W1 and W2 (he was married prior to 1955 and both the
marriages were valid); two sons S1, S2 , a grandson SS, a brother Br and a sister Si.
Fig. 2
Here the first partition will be among F, M, A, Si, and Br, each of them will take 1/5th of the
property. The second partition will be among A, W 1 , W 2 , S1 and S2 and each of them will take
1/5 * 1/5 i.e. , 1/25 each. The third partition will be between S1 and SS and each of them will take
1/25 * 1/2 = 1/50 each
F, M, A, Si, and Br=1/5th each
A, W1, W2, S1 and S2 = 1/5 * 1/5 = 1/25
S 1 and SS= 1/25 = 1/50 each
Separate Share of A = 1/25
After devolution of property by intestate succession
M, W1, W2, S1 and S2 = 1/25 = 1/100 each.
The final shares would be as follows
F = 1/5th
M = 1/5th + 1/100
Si = 1/5th
Br = 1/5th
W1 = 1/25th+1/200
W2 = 1/25th+1/200
S 1 = 1/50th+ 1/100
S 2 = 1/25th+ 1/100
SS = 1/50
In Dravida School, the mother and the widows of the intestate will not take any share at the time
of the partition.
Cases
Case - Vellikannu v. R. Singaperumal, 2005

Fact - The son murdered his father and was convicted by the court. As he was disqualified from
inheriting the property of the deceased, his wife claimed the same on the ground that since the
murderer would be deemed to be dead, she would be regarded as the widow of the predeceased
son and eligible to inherit the property as the intestate’s class-I heir.
➢ It was held that neither the son nor his wife was eligible to claim inheritance.
➢ The son cannot inherit any property of his father on the principles of justice, equity and
good conscience as he has murdered him and the fresh stock of his line of descent ceased
to exist in that case.
➢ Once the son is totally disinherited then his whole stock stands disinherited i.e., the wife
and the son.
➢ The son himself is totally disqualified by virtue of sections section 25 and 27 of the
Hindu Succession Act and as such the wife can have no better claim in the property of the
deceased.
Case - Revanasiddappa v. Mallikarjun, 2011

Fact - This case revolves around the rights of a child born out of an invalid marriage within a
Hindu joint family setup.
Whether illegitimate children are entitled to a share in the coparcenary property or
whether their share is limited only to the self-acquired property of their parents under
Section 16(3) of the Hindu Marriage Act?
Observation & judgement:
▪ Legal Basis for Inheritance:
o Section 16 of the Hindu Marriage Act, 1955 plays a crucial role in conferring
legitimacy to children born out of void or voidable marriages, stipulating that
such children have a right to their parents' property.
▪ Equal Inheritance Rights:
o Children from void or voidable marriages are considered "legitimate kin" under
the Hindu Succession Act, 1956 which governs inheritance.
o They cannot be deemed illegitimate when it comes to inheriting family property.
▪ Impact of the Hindu Succession (Amendment) Act, 2005
o The court noted that after the enactment of the Hindu Succession (Amendment)
Act in 2005, a deceased person's share in a joint Hindu family governed
by Mitakshara law can be inherited by testamentary or intestate succession.
o This amendment expanded the scope of inheritance beyond survivorship and
granted equal succession rights to women and men.
Section 16(3) as amended, does not impose any restriction on the property right of such children
except limiting it to the property of their parents. Therefore, such children will have a right to
whatever becomes the property of their parents whether self-acquired or ancestral.
While interpreting the amended Section 16(3), the Court must keep in view the constitutional
values enshrined in the Preamble of our Constitution which focuses on the concept of equality of
status and opportunity and also on individual dignity. The Court has to remember that
relationship between the parents may not be sanctioned by law but the birth of a child in such
relationship has to be viewed independently of the relationship of the parents. A child born in
such relationship is innocent and is entitled to all the rights which are given to other children
born in valid marriage. This is the crux of the amendment in Section 16(3). However, some
limitation on the property rights of such children is still there in the sense their right is confined
to the property of their parents. Such rights cannot be further restricted in view of the pre-
existing common law view.
Case - Ganduri Koteshwaramma and another v. Chakiri

Yanadi and another 2011
Fact -
➢ The rights of daughters in coparcenary property as per the amended section 6 are not lost
merely because a preliminary decree has been passed in a partition suit.
➢ So far as partition suits are concerned, the partition becomes final only on passing of a
final decree.
➢ Where such a situation arises, the preliminary decree would have to be amended taking
into account the change in the law by the amendment of 2005.
➢ The further indication is the proviso which states that partitions or divisions that had
taken place prior to the notified date cannot be reopened.
➢ It has been held that where the sisters had instituted proceedings much prior to the
amendment, but after the death of their father in 1960, there was no reason to foreclose
the rights of the sisters and that they continued to remain members of the HUF, and were
thus entitled to take the benefit of the amendment of 2005, as no final decree had been
passed.
➢ Sub-section (5) of Section 6 leaves no room for doubt as it provides that this Section shall
not apply to the partition which has been effected before 20 December 2004. For the
purposes of new Section 6 it is explained that 'partition' means any partition made by
execution of a deed of partition duly registered under the Registration Act, 1908 or
partition effected by a decree of a court.
➢ In light of a clear provision contained in the Explanation appended to sub-section (5) of
Section 6, for determining the non-applicability of the Section, what is relevant is to find
out whether the partition has been effected before 20 December 2004 by deed of partition
duly registered under the Registration Act, 1908 or by a decree of a court.
Topic - 5
CASES
Case - Gurupad Khandappa Magdum v. Hirabai

Khandappa Magdum, 1978
Fact - The joint family consisted of the father, his wife, two sons and three daughters. The father
died in 1960 as an undivided member of Mitakshara coparcenary and three years later his wife
(Hirabai) filed a suit for a partition and separate possession of her seven-twenty fourth share in
the property.
She claimed a one-fourth share at the time of partition and a one-twenty fourth share by
inheritance. On the other hand, the sons contended that the mother was not entitled to get a share
at the time of effecting the notional partition and therefore all that she should get is a one-twenty
fourth share.
➢ The honourable judge, YV Chandrachud, adopted the wider approach and observed that
s. 6 contains a formula for determining the share of the deceased, creating a fiction of a
notional partition.
➢ He said that one must therefore imagine a state of affairs in which a little prior to the
(father’s) death, a partition of the coparcenary property was effected between him and the
other members of the family, and the wife, though not entitled to demand a partition, was
nevertheless entitled to get a share if the partition took place between her husband and
her sons.
➢ So in the first partition, she will get one-fourth of the property in her own right and out of
the one-fourth share of the husband, she will get a one-twenty fourth share by inheritance,
a total of a seven-twenty fourth share.
➢ In relation to the interpretation of s. 6, the court said that what is required to be assumed
is that a partition had in fact taken place between the deceased and the coparceners
immediately before his death.
➢ Thus, the heir will get her share at the time of the notional partition and will also take a
share at the time of inheritance, if entitled.
➢ The court noted that all the reforms that had taken place earlier were with a view to
improving the property rights of women and a narrow approach would mean taking a
retrograde step. It would put back the clock of social reform that enabled Hindu women
to acquire an equal status with men.
Case - Uttam v. Saubhag Singh, 2016

Fact – A grandson filed a suit for partition against his father and uncles, the father and uncles
initially claiming that the father of the plaintiff had separated himself upon a prior partition, but
on a later admission by the father that the property was indeed ancestral property.
➢ In order to determine the share of the Hindu male coparcener who is governed by section
6 proviso, a partition is effected by operation of law immediately before his death. In this
partition, all the coparceners and the male Hindu's widow get a share in the joint family
property.
➢ On the application of section 8 of the Act, either by reason of the death of a male Hindu
leaving self-acquired property or by the application of section 6 proviso, such property
would devolve only by intestacy and not survivorship.
➢ Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh
in 1973, the joint family property which was ancestral property in the hands of Jagannath
Singh and the other coparceners, devolved by succession under section 8 of the Act.
➢ This being the case, the ancestral property ceased to be joint family property on the date
of death of Jagannath Singh, and the other coparceners and his widow held the property
as tenants in common and not as joint tenants.
➢ This being the case, on the date of the birth of the appellant in 1977 the said ancestral
property, not being joint family property, the suit for partition of such property would not
be maintainable. The appeal is consequently dismissed.
Case - Vineeta Sharma v. Rakesh Sharma and Others
2020
Fact - A Hindu man ‘A’ had constructed a house with his self-acquired property in Delhi and
had later thrown it into the joint family hotchpotch. He had one daughter and three sons. Upon
his demise as also of one of his sons (the brother), the daughter filed a suit for partition and a
claim of 1/4th share of the house as the class-1 heir. The suit for partition was filed in 2002 and
the decree was passed by the trial court in 2007. The High Court had held on 29 October 2013
that keeping in view the intention of the parliament to enact the 2005 Act: she would be entitled
to a share as per the latest law despite the fact that she had filed the case earlier to 2005.
Issues:
a. Whether a daughter born before 9 November 2005 can claim equal rights and liabilities in
coparcenary as that of a son?
b. Whether the statutory fiction of partition created by proviso to section 6 of the hindu
succession act, 1956 as originally enacted bring about the actual partition or disruption of
coparcenary?
Observation & judgement
• The court, overruling the phulvati and dannmma judgement, ruled that the effects of the
provisions of section 6 are neither prospective in nature nor retrospective; but it is
retroactive in nature. The concept is explained by the Apex court and means that the
equal right of coparcenary will be given to daughter on and from 9 November 2005 but it
is based upon some past event i.e. the birth of the daughter. The effects are retroactive as
if the daughter never took birth, which is in past, the rights would never have existed in
the first place. This approach of the court cleared the lacuna in law as to what effect, in
relevance to time, these provisions have.
• The court also held that notional partition doesn’t mean that actual partition has been
effectuated. As notional partition is a legal fiction, it should be used and implied up to a
certain limit and to only fulfil the purpose it was created for. In this case, a notional
partition is created as to ascertain the share of each coparcener of the joint Hindu family.
The court reiterated that the ascertainment of the shares distributed and fixated upon
notional partition are not final, as the birth of a new coparcener or the death of any
existing coparcener can either increase of decrease the shares of the other coparceners. It
also ruled that, consequentially, a daughter can claim a share in the joint family property
even if notional partition is done before 9 November 2005 as the notional partition is not
an actual partition and just because of it, the coparcenary property doesn’t cease to exist.
Topic - 6
(Principal Reading)
SECTION 15 APPLICABLE TO THE ABSOLUTE PROPERTY OF A FEMALE

The section 15 applies to:
(i) Property that a woman holds as an absolute owner, irrespective of the mode of its
acquisition. It would include movable or immovable properties, but would not include any
property to which the Act does not apply.
(ii) The term ‘property’ would include an undivided interest in a Mitakshara coparcenary in
which a female was a coparcener who dies leaving behind her son, daughter, or children
of a predeceased son and/or daughter.
This section and the scheme of succession are not applicable to any property that is held by a Hindu
woman as a limited owner either under s. 14(2) of the Act, or even otherwise. The property in
which she acquired a limited ownership to begin with, which matured into an absolute ownership
due to s. 14(1), will be governed by the provisions of this Act. The rule is that only that property
will be subject to the application of these sections, which are heritable and over which a woman
had full powers of disposal.
SCHEME OF SUCCESSION
The Act provides for three different sets of heirs depending upon the source of acquisition of the
property of a female that is available for succession. Her property is divided into:
(i) property that a female Hindu had inherited from her parents;
(ii) property that a female Hindu had inherited from her husband or her father-in-law; or
(iii) any other property or general property.
Succession to General Property
The term ‘general property’ refers to the property of a woman other than that which was
inherited by her from her parents, husband or her father-in-law. The term used is ‘inherited’ and
‘general property’ will include the property that she might have received from these relations
through any other device, such as a gift, Will or a settlement, or even through a transfer for
consideration. It will also cover properties that were her self-acquisitions or were received from
any other source whatsoever, including a gift received from a friend or a relative, or property
inherited from any other relation. Property that a woman inherits from her brother, in the
capacity of his sister, or from her husband’s brother as his brother’s widow, would be her general
property and would go under this section.
General rules of succession in the case of female Hindus— (1) The property of a female
Hindu dying intestate shall devolve according to the rules set out in Section 16 —
(a) firstly upon the sons and daughters (including the children of any predeceased son or
daughter) and the husband;
(b) secondly, upon the heirs of her husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
The heirs are grouped into these five categories, the former excluding the later. So long as a
single heir in the prior category is present, the property will not go to the next category.
Son and Daughter : The terms ‘son’ and ‘daughter’ would include a woman’s biological or
adopted, legitimate or even illegitimate children, but would not include a step-son or a step-
daughter. The marital status of the mother or the validity of her marriage is of no consequence.
The son and daughter may have been born to an unwed mother, or adopted by a single woman,
or born from different husbands, yet they would still, inherit together. Where the mother was a
party to a void or voidable marriage that was subsequently annulled, her children born to her
from this relationship would be legitimate and entitled to inherit from her. The son and daughter
inherit together and take the property in equal shares.
For example, as shown in Fig below, a Hindu woman W dies leaving behind a son S , born to her
from her first marriage, which ended in a divorce. Thereupon, she had a relationship with a married
man, H 2 as a result of which she gave birth to a daughter D . Upon her death, S and D both, will
inherit the property in equal shares.
Children of Predeceased Son and Daughter : Where a son or a daughter dies during the lifetime
of their mother, leaving behind a child, such child will be the primary heir and would inherit
along with the living son or daughter of the intestate, if any. However, in order to be eligible for
inheritance, such grandchildren must be the legitimate offsprings of their parents, and born out of
a valid marriage between them. Similarly, their deceased parents should also be legitimate and
born out of a valid marriage.
Husband : The term ‘husband’ refers to the spouse of a valid marriage, which had come to an
end with the death of the intestate. It does not include a divorced husband, but would include a
husband who had deserted the intestate or was deserted by her or was living apart from her under
a decree of judicial separation.
Mother and Father : The mother and father of the female intestate are placed on an equal
footing here and inherit together when none of the children, grandchildren, widower or the entire
group of husband’s heirs of their daughter, is present. ‘Mother and father’ would include the
biological or adoptive parents. Where the marriage of the parents was a void marriage or a
voidable marriage that was subsequently annulled by a court’s decree, the parents inherit from
such children. However, where the intestate was an illegitimate child, only the mother would
inherit, and not the putative father. The term ‘mother and father’ does not include a stepmother
or a stepfather.
Rules for Calculation of Shares
On the death of a female intestate, her property devolves on her primary heirs, in accordance with
the following rules:
(i) Each surviving son and daughter and the husband takes one share.
(ii) Where a son or daughter had predeceased the intestate, but is survived by a child, his/her
branch has to be allotted a share.
(iii) Such surviving grandchild takes the share of the deceased parent and if there are more than
one, they will divide the property equally among themselves.
Section 15(2) provides:
(2) Notwithstanding anything contained in sub-section (1),― (a) any property inherited by a
female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre-deceased son or daughter) not upon the other heirs
referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b)
any property inherited by a female Hindu from her husband or from her father-in-law shall devolve,
in the absence of any son or daughter of the deceased (including the children of any pre-deceased
son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein,
but upon the heirs of the husband.
An Anomaly
The section provides that the property inherited from the father, would revert to the heirs of the father in case the
female Hindu dies issueless. It also provides that where she inherits property from her mother, it would also revert to
her father’s heirs and not to her mother’s heirs.
If the legislature wanted to conserve the property within the family from where it had come, the appropriate provision
should have been that where the property was inherited from the father, it would revert to the father’s heirs and where
it was inherited from the mother, it would revert to her mother’s heirs, as both categories are distinct from each other.
Preventing the Property from Going by Doctrine of Escheat
Property inherited by a female from her husband or father-in-law, reverts to the husband’s heirs in the absence of her
issue and does not go to any other heir. Where the property is to revert to the heirs of the husband, but no such heir is
present, rather an heir specified in the general category is present, should the property go to the government under the
application of doctrine of escheat, i.e., failure of heirs, or should the property go to any other heir of the deceased
woman? The apex court has held that in such cases the property would be treated as the general property. Here a Hindu
widow died issueless and her only surviving relative was her brother’s grandson.The property available for succession
was inherited by her, from her deceased husband. As no heir of the husband was present, the government claimed the
property on the ground that the grandson of the brother of the deceased was not covered under the expression ‘heirs
of her husband’, and there being no other heir of her husband present, there was a complete failure of the heirs. The
Supreme Court held that the object behind s. 15(2) was not to eliminate the other heirs specified in s. 15(1), but to
give an order of preference. Since there was no other heir present, the brother’s grandson was allowed to succeed to
the property. Similarly where a Hindu died leaving behind property that she had inherited from her husband, but no
heir of the husband it was held that the doctrine of escheat would not apply and her brother would inherit the property.
Illustration (i)
A Hindu female W , dies and is survived by her husband H , two sons S1 and S2 and a daughter
D [See Fig. 1].
Fig. 1
The property will be divided into four equal parts, one each going to H , S1, S2 and D .
Illustration (ii)
A Hindu female W, dies and is survived by her husband H , a living son S , an unmarried
daughter D , two children S1 and S2, of a predeceased daughter D 2 and an illegitimate son S3.
[See Fig. 2].
Fig. 2
The property will be divided into five equal parts, one each going to H , S , D and S3. The branch
of the deceased daughter D 2, will be given one-fifth (1/5th) of the property, out of which S1 and
S2 will take one-tenth (1/10th) each. The final shares will be as follows:
S = 1/5
(S 1 + S2 ) = 1/5
D = 1/5
S 1 = 1/5 * 1/2 = 1/10
S 3 = 1/5
S 1 = 1/5 * 1/2 = 1/10
H = 1/5
Cases
Bhagat Ram v. Teja Singh, 2002

Fact - Two sisters inherited the property from their mother. On the death of one, who died as an
issueless widow, the other sister took the property as her ‘father’s heir’ and entered into an
agreement to sell the same to a person X. The deceased sister’s husband’s brother challenged the
validity of this sale and claimed the property as her heir under s. 15(1)(b).
➢ The basis of inheritance of a female Hindu's property who dies intestate would thus be
the source from which such female Hindu came into possession of the property and the
manner of inheritance which would decide the manner of devolution.
➢ The Supreme Court held that since both the conditions were fulfilled, viz., she had
inherited the property from one of her parents (mother) and had died issueless, the
property would revert to her father’s heirs i.e., the sister in this case and the brother of her
deceased husband would not be entitled to succeed.
➢ Section 15(2) provides: Notwithstanding anything contained in sub-section (1), any
property inherited by a female Hindu from her father or mother shall devolve, in the
absence of any son or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the
order specified therein but upon the heirs of her father.
➢ So, the property ‘inherited’ by a female from her parents, in absence of her issue or their
children, will revert to her father’s heirs.
Case - Om Prakash v. Radha Charan, 2009

Fact - A fifteen year old Hindu girl was thrown out of the matrimonial home after her husband
died of snake bite after three months of the marriage. She took shelter with her parents, was
educated by them and then took a job. Her in-laws never bothered to inquire about her, let alone
look after her, and there was a complete snapping of relations. She died intestate 42 years later,
leaving behind huge sums in various bank accounts, besides her provident fund and a substantial
property.
➢ In case of a Hindu female having self-acquired property section 15(1) will apply and not
section 15 (2). The first sub-section i.e., 15(1) applies on intestacy. A Hindu female can
also make a will. In case, therefore, when such Hindu female dies intestate, normal rules
of succession will apply.
➢ The claim of her mother and then the brother was negatived by the Supreme Court in
favour of her late husband’s brothers, i.e., the in-laws on the ground that as per the
provision of the Hindu Succession Act, 1956.
➢ It is the heirs of the husband who have a legal right to inherit the property of an issueless
married Hindu woman and her parents cannot inherit in their presence.
Topic - 7
(Principal Reading)
Case - V. Tulasamma v. Sesha Reddy, 1977

Fact - The widow claimed maintenance after the death of her husband from his brother, as he
had taken possession of his property. A decree was passed in her favour and in execution of this
decree of maintenance, a compromise was arrived at between the parties, allotting some
properties to her for her maintenance, specifically stating that she had only a limited estate.
Issue - Whether the property received by a Hindu widow, in lieu of maintenance, under an
instrument that restricts the nature of interest given to her, would be held by her as an absolute
owner after the commencement of the Act, and whether it would be s. 14(1) or s. 14(2) that
would apply to such cases?
➢ the court noted that cl. 1 and 2 of s. 14, were presenting serious difficulties of
construction in cases where property was received by a Hindu female in lieu of her
maintenance and the instrument granting such property prescribed a restricted estate for
her in the property, and the divergence of judicial opinions was creating a chaotic
situation.
➢ An uncertainty with respect to the interpretation of these two clauses of s. 14 was
prevailing and the legislature was not bothered about correcting its inapt draftsmanship,
which had created endless confusion for litigants and a paradise for lawyers.
➢ If s. 14(1) is applicable, then the limitation on the nature of her interest is wiped out and
she becomes a full owner of the property, but if it is s. 14(2) that governs the case, then
her limited interest is not enlarged and she continues to have a restricted estate in the
property under that instrument.
➢ The court held that a widow is entitled to maintenance out of her deceased husband’s
estate, irrespective of whether that estate is in the hands of his male issue or other
coparceners.
➢ In the present case, the property was allotted to her in lieu of her claim to maintenance
and therefore, in view of s. 14(1), she acquired an absolute interest in it.
➢ Where property is acquired by a Hindu female in lieu of a right of maintenance, it is by
virtue of a pre-existing right and such an acquisition would not, fall within the ambit of
subsection (2) even if the instrument, decree or award allotting the property, prescribed a
restricted estate in the property.
Case - Jagannathan Pillai v. Kunjithapadam Pillai, 1987

Fact - A Hindu female acquired a property by reason of the death of her husband, before the
commencement of the Act. It was a woman’s estate or a widow’s estate. She lost the possession
of the property on account of a transaction, whereby, she transferred the property in favour of an
alienee, by a registered document of sale or gift.
The property in question was re-transferred to her by the said alienee, after the enforcement of
the Act, by a registered document, thus restoring to the widow, the interest (such as it was) with
which she had parted earlier, by reversing the original transaction.
Issue - Whether, upon the reconveyance of the very property which she had alienated, after the
enforcement of the Act, she would become a full owner in respect of such a property, by virtue
of s. 14(1) of the Act, or not?
➢ The court held that there was nothing in the language of s. 14(1), which suggests that the
widow must be possessed of the limited estate on the date of the commencement of the
Act. Rather, the court said that the possession is to be seen on the date or time when her
right is called in question, when she has an occasion to claim or assert a title thereto.
According to the court, the expression, ‘any property possessed by a Hindu female, whether
acquired before or after the commencement of the Act’, means:
→ (i) any property possessed by a female, acquired before the commencement of the Act,
will be held by her as a full owner thereof and not as a limited owner; and
→ (ii) any property possessed by a Hindu female, acquired after the commencement of the
Act, will be held by her as a full owner thereof and not as a limited owner.
➢ The court said that the whole purpose of s. 14(1) is to make a widow who has a limited
interest, a full owner in respect of the property in question, regardless of whether the
acquisition was prior to or subsequent to the commencement of the Act. The legislative
intent was abundantly loud and clear, viz., to erase the injustice and to remove the legal
shackles by abolishing the concept of limited estate or the women’s or widow’s estate,
once for all.
➢ If a challenge is made during her lifetime or after her death, after the reversal of the
transaction, the answer would be that she was a full owner. By this reversal of the
transaction, the reversioner’s rights are not affected, as even earlier, what they had in the
widow’s estate was a mere spes successionis , i.e., a chance or a hope to succeed to it,
and nothing more.
Case - Jupudy Pardha Sarathy v. Pentapati Rama Krishna,

2016
Fact -
➢ Even when a bequest to the wife was qualified and the property was further bequeathed
to a son after the death of the wife which, in the will was stated as "absolute rights such
as gift, sale etc" to the son after the death of the wife.
➢ The Supreme Court has held that the limited interest created in favour of the wife who
had a pre-existing right of maintenance, fructified into an absolute right by operation of
section 14(1).
Topic - 8
(Principal Reading)
Case - Mussa Miya walad Mahammed Shaffi v. Kadar

Bax, 1928
Fact - There was a declaration by the donor in presence of his assembled friends that he had
made a gift of his property to his grandsons. This was expressed in the following words by
means of a letter sent to the father of these minor children by their maternal grandfather:
Now both the children, Essen Mian and Moosa Mian, are the owners of my property.
However, there was no evidence of either an acceptance given by the father or of the delivery of
possession of this property to the father of these minors. The donor’s daughter, her husband and
these two minor boys were all living in the donee’s house with him and were also maintained by
him.
He resumed the charge of this property and managed it as before till he died around 9 years after
he had made the declaration. The minor boys and their father were all along living with the
donor, but they never participated in the management of the property. On the death of the donor,
his brother claimed 3/8th share of the total property and the minor boys claimed the entire
property under the gift.
The counsel for the minor boys argued that in view of the facts of this case, and the special
relationship of the grandfather and the grandson, there was no need for delivery of possession of
the property and it could be validly presumed that the donor was managing the properties on
behalf of the minor grandsons.
➢ Rejecting the contention, the court said that the gift in this case was incomplete for want
of delivery of possession.
➢ The maternal grandfather was not the guardian as the father of minor children was alive.
➢ Even though the children and their parents were living with the grandfather, and he
willingly maintained them, these facts alone would not be sufficient to dispense away
with the requirement of delivery of possession.
➢ ‘Guardian’ refers to the guardian of property that includes the father, his executor,
paternal grandfather and his executor in this order.
➢ If the father is alive he alone is the guardian of the property and the gift made by the
mother or maternal grandfather65 would require delivery of possession of the property.
➢ The gift was held to be incomplete and without any effect in law.
Case - Valia Peedikakkandi Katheessa Umma v.

Pathakkalan Narayanath Kunhamu, 1964
Fact - A gift was made by the ailing husband in favour of his minor wife, who was around 17
years old. The gift deed was registered and was handed over to the mother of the wife, in whose
house the couple was living at that time. There was no guardian of property of the wife, either
natural or testamentary.
The brother and sister of the deceased husband claimed his property and refuted the claim of the
wife on the grounds that since the mother of the wife was not the guardian of her property, the
gift is invalid for want of delivery of possession.
Here, the gift deed was registered.
➢ Therefore, it is absolutely essential that the owner must completely divest himself of the
ownership and the complete control over the property and vest it in the donee.
➢ It is said that the donor must vacate the premises and should not leave even a straw
belonging to him in the property, signifying complete relinquishment of control,
ownership and possession, in favour of the donee.
➢ Exceptions to these strict rules which are well recognised are gifts by the wife to the
husband and by the father to his minor child. Later it was held that where the donor and
donee reside together an overt act is necessary and this rule applies between husband and
wife.
➢ Here there was a declaration and a tender by the donor and as the gift was by a registered
deed there was no ambiguity with respect to the intention of the donor. The deed recorded
that the possession of the property was given to the mother and she had taken it on behalf
of the wife.
➢ The court noted that the husband could have taken the possession on behalf of his wife
himself, as a husband is competent to accept the gift on behalf of his minor wife, who has
obtained puberty and who has lived with him, even where her father is alive.
➢ The court held here that the gift was valid as the wife had attained the age of discretion,
and they both were living in the house of the mother of the wife. The intention to make
the gift was clear and manifest because it was made by a registered deed.
➢ There was complete intention to divest ownership on part of the donor and to transfer the
property to his wife. The mere fact that he handed the deed to the mother would not make
the gift invalid. Rather, the court held, the mother was capable to accept the gift on behalf
of the minor wife in absence of any guardian.
Case - Hayatuddin v. Abdul Gani, 1976

Fact - A Muslim man died in 1948, leaving behind one sister, two widows and a boy who was
brought up in his house since childhood. The share of each widow was one-eighth and of the
sister was three-fourth.
The sister and one of the widows executed a gift in favour of this boy, Hyatuddin in 1952, of
their respective shares 3/4 + 1/8 = 7/8th of the property. The gift deed stated that the donee had
the possession of the gifted property, and he was empowered to use them in any manner that he
liked.
The gift deed further stated that the share of the other widow was separated and none of their
(donor’s) heirs would have any interest in the property. In 1955, both the donors and the donee
filed a suit for a declaration that the donee was the owner of the property and in the alternative,
of partition and separate possession of the property in his favour.
During the pendency of the litigation, the sister died, and her heirs claimed that the gift being
void had no legal effect and accordingly, they were entitled to inherit her three-fourth share in
the property.
➢ Under Muslim law, a gift is not valid unless it is accompanied by delivery of possession
of the gifted property.
➢ The court proceeded on the assumption that no formal division of the property was
effected. However, the tenants were given directions to pay the rent to the donee and the
tenants were complying with these directions.
➢ The court held that the gift was merely irregular at the time of its inception and the
moment a suit for partition and separate possession was filed, it was perfected.
➢ It is not void, but merely irregular. It is capable of being perfected by dividing the share
and handing over its possession to the donee.
Case - Abdul Hafiz Beg v. Sahebbi, 1975

Fact - An 80 year old donor was taken seriously ill, and never recovered from the illness. During
this illness he was unable to look after himself and had reached a mental low of such a kind that
he would ask for his near and dear ones to be by his side. However, when his daughters came by
his side he was unable to express himself. His sense of helplessness was evident as he would
make signs and shed tears while looking at his relatives. He made a gift of his property barely 24
hours before he died and at a time when he was seized by the subjective and imminent
apprehension of his death.
➢ Thus what is required to be proved upon the preponderance of probabilities is whether the
gift was made by the ailing person while under the apprehension of the death and further
whether in such ailing he met his death.
➢ These gifts are executed with a sense of urgency or haste and are not a result of well-
contemplated actions of a reasonable man.
➢ Proximate danger of death in an illness, it is common experience, casts ominous
elongated shadows discernible along the lines of conduct of the person who is subject to
the process of dissolution of life. In that there is all the apprehension of withering away
of human faculties and rational capacities.
➢ Mind under such condition would get seized by the fright of a final full stop and all
winged and animated spirits involving free will, clarity and reasonable and purposeful
action may be clipped and caught in the mesh of progressing paralysis.
➢ Law assumes that apart from the dominant danger of loss of free will, such person may
clearly lose touch with his spiritual dictates and may hasten even against the need of his
clear obligations and interests to do the things which he might not have normally and in
times of health done.
➢ Thus, gifts made during marz-ul-maut i.e., made under pressure and a sense of
imminence of death are operative to the extent of one-third of his property only and
divests the donor of the property with immediate effect.
➢ The initial burden to prove the requirements of marz-ul-maut is on the person who sets up
such a plea as affecting the disposition of a dead person, that can be discharged by the
proof of the facts and circumstances in which such person met his death and the attendant
events preceding and succeeding the disposition itself.

Exam Capsule LED Family Law-II-1

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EXAM CAPSULE

Prepared by Law Exam Destination (LED)

Powers of the Karta

(1) Powers over the income and expenditure of the family.

Coparcenary not limited to four degrees from common ancestor

(i) Hindu Succession (Andhra Pradesh Amendment) Act, 1985.

THE KERALA JOINT HINDU FAMILY (ABOLITION) ACT, 1975

Property in which a person acquires an interest by birth is called unobstructed heritage

Incidents of joint family or coparcenary property

Distinction between ancestral property and separate property

Case - Commissioner of Income Tax v. Gomedalli

Case - Moro Vishwanath v. Ganesh Vithal, 1873

Case - Muhammad Husain Khan v. Babu Kishva Nandan

Case - C.N. Arunachala Mudaliar v. C.A. Muruganatha

Case - Smt. Dipo v. Wassan Singh, 1983

Case - M/s. Nopany Investments (P) Ltd. v. Santokh

Case - Mrs. Sujata Sharma v. Shri Manu Gupta, 2016

Who may alienate coparcenary property

RIGHTS AND REMEDIES OF AN ALIENEE OF A COPARCENER'S INTEREST

(2) Right to partition

Case - Hunooman Prasad Panday v. Mussumat Babooee

Case - Sunil Kumar v. Ram Prakash, 1988

Case - Dev Kishan v. Ram Kishan, 2002

Case – Balmukand v. Kamla Wati, 1964

Case - Arshnoor Singh v. Harpal Kaur, 2019

Case - Guramma Bhratar Chanbasappa Deshmukh v.

Case - R. Kuppayee v. Raja Gounder, 2004

PERSONS ENTITLED TO A SHARE ON PARTITION

ILLUSTRATIONS (Doctrine of representation)

PARTITION HOW EFFECTED

a. Formation of an intention to separate

Case - A. Raghavamma v. A. Chenchamma, 1964

Case - Puttrangamma v. M.S. Ranganna, 1968

Case - Kakumanu Pedasubhayya v. Kakumanu

Succession is of two types:

(i) testamentary succession; and

Where succession is governed by a testament or a Will, it is called testamentary succession.

CERTAIN TERMS EXPLAINED

Agnate Section 3 (a) and cognate Section 3 (c)

A cognate or an agnate may be in ascending or descending line.

i) The property of the person murdered; or

• CONVERT'S DESCENDANTS DISQUALIFIED: SECTION 26

The section is prospective not retrospectively.

DISEASE, DEFECT, ETC. NOT TO DISQUALIFY: SECTION 28

These heirs and their sub-categories are as follows:

Examples of Hindu male intestate succession

SSS + SSD = 1/4

Illustration (Before 2005 amendment)

The final shares will be as follows:

If the Dravida School is followed the shares will be as follows:

The following factors need to be remembered while effecting a notional partition:

(a) The coparcener dies as an undivided member in a Mitakshara coparcenary.

A dies in 1960 as an undivided member of a Mitakshara coparcenary having an interest in the

After first partition: F , A = 1/2 each

After second partition: A , S = ½ * ½ = 1/4 each

After devolution of property by inheritance:

M , S , D = 1/4 * 1/3 = 1/12 each

The final shares will be as follows:

After first partition: F , M , A = 1/3rd each

After second partition: A , S = 1/3 * 1/2 = 1/6th each

After third division (intestate succession) of 1/6th of A :

M , D , S = 1/6 * 1/3 = 1/18th each

Therefore, the final shares will be as follows: