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Hindu Marriage act 1955

Hindu Adoption and Maintenance Act 1956


Hindu Woman Right to Property Act 1937
Hindu Succession Act 2005
Introduction
Lexi Loci
Hindu family is an Institution of Sui Generis
Mostly governed by Karta- Senior most member
Mithakshara Joint Hindu Family- Hindu Undivided Family - HUF
1. Mithakshara Joint Hindu Family
Running commentary of Yajnavalkiya Smrithi – Written by Vinjnaneswara-11th century
2. Dayabhaga Joint Hundu Family
Written by Jimuthavahana- Manu Smrithi,Narada Smrithi and Yajnavalkiya Smrithi
State of Bengal and Assam
Kerala Join Hindu Family was abolished by- Hindu Family System( Abolition Act) 1975
Mithakashara Coparcenary
Original Concept
4 generations, no female member (no right ancestral property, only maintenance).
Hindu Succession and Amendment Act 2005
• Daughter have same right as the coparcenary son

Joint Hindu Family Coparcenary


Both male and Female are the members Only Male members are the members
of the Joint Family of the Coparcenary
No limitation of degree or generations
Male up to 4 degree
with regards to the membership
Some female member have no right by All members of coparcenary have right
birth in property by birth in the property
Female like father's Wife, Mother, Grand
All members have right in demand
Mother have no right to demand
for partition
partition
Every Joint family is not
Every coparcenary is Joint Family
coparcenary

Death of coparcenary – His property is devolve to other surviving coparcener not heirs-
called Doctrine of Survivorship
Hindu Women Right Property Act 1937- interruption to the doctrine of survivorship
Hindu Succession and Amendment Act 1956 ( AMEND 2005)
Coparcenary within Coparcenary
• one coparcenary death will not make other coparcenary
• Coparcenary self acquired property in his own name will not go to other coparcener, it will
go to his heirs
Saprathibandha Daya and Apratibandha Daya
Daya – heritage or property inherited by a person
Under Mithakshara law- inheritance by male Hindu
• Apratibandha Daya ( unobstructed heritage) – 3 level- cannot alienate as he please
• Saprathibandha Daya ( Obstructed heritage)- all inheritance other than from father level,
mothers father, parental uncle , brother,his sons will not get any interest, can use his
property as his, no restrain right by son
Joint Family and Separate Property - Mithakashara
• Joint family – coparcenary
1. Ancestral
2. Joint Acquisitions
3. Blending Property- throw in to the common stock- toil and moil
• Separate family- self acquired property
1. Saprathibandha Daya
2. Gifted
3. Recovered lost family property
4. Self-acquisition
5. Gains of learning
Gokul Chand v Hukum Chand – Hindu Gains of learning act 1930
England spl training,Indian civil service, privy council said – yes joint
6. Government grants
7. Sole coparcener – only one until son born
8. Income from separate property
Kartha of Mithakshara Joint Family and His Powers
Commissioner of Income Tax v Seth Govind Ram ( GSM Mills)- only mail and coparcener
Gangoji Rao v Channappa – woman not kartha or coparceners no alienation power
Chandrakantha v CTR- karta -> Capital , Members- labour and skill
Powers of Karta
1. Possession and management of family property
2. Right to Representation
3. Power to contract debts- pledge property
4. Power to manage family business
5. Power of alienation of joint family property
i. For the purpose of legal necessity – Basava Raj v Kushal Chand- without legal
necessity its not binding on the family
ii. Benefit of estate-Palaniappa v Deviskmony – privy council
iii. Performance of indispensable religious duties
Ammathayee vs Kumaresan- daughter gift towards his maintenance, valid
Guramma v Mallappa - gift
6. Power to compromise
7. Power to refer to dispute to arbitration
8. Power to acknowledge debt
9. Power to represent in suit
10. Power to discharge
Duties & Liabilities of Kartha
1. Duty to Account
2. Duty to recover debt
3. Duty to save
4. Duty to pay all tax and dues
5. Responsible to perform marriages of family
Dayabhaga Joint Family
Father Absolute owner- can dispose, gift, sell etc
No right for son by birth in ancestral property
Female also coparcener
Doctrine of Pious Obligation
Duty of son to repay the debt of deceased father, only to Non Avyavaharika debt
Avyavaharika – Illegal- Gambling etc
Brij v Mangal Pandey – interest along debt – mortgage – antecedents debts
Hemraj v Khemchand – father promissory note, son liable
Toshanpal v Dr Judge Agra- father withdrawn money from school,son not liable
Prasad v Govind Swami – property paid for antecedents debt, valid
Polyandy – Robini v Sethumadhavan – valid, thiya family
Amendment - Hindu Succession Act 2005 -6(4) – revoked, strikeout
Power of Kartha to alienation of joint family property
Power of Karth – not unlimited
Hanooman Prasad v Musasamat Babooee- legal and estate can alienate
Without consent of other coparceners
1. Legal necessity
a. Payment of govt revenue
b. Payment of debt out of family property
c. Maintenance of coparceners and their daughters
d. Marriage expenses
e. Litigation expenses preserving the estate
f. Litigation expense for defending a member for criminal case
g. Expense for construction of building
h. Expense incurred for funeral and other ceremonies
2. Benefit of estate
a. Sale of unproductive and investing for better piece of property
b. Sale of house whose demolition notice by municipality
c. Mortgage for additional to family house
d. Sale of land for better locality
e. Sale of piece of land located different and to make it to one part
3. Religious duties

Power of Father- Kartha to alienation of joint family property


Alienate of antecedents debts
Gurumma v Mallappa- can gift but not whole property
Gangi Reddi v Temmi redid – gift for pious purpose ( temple construction, educational
institution)
P Ammathayee v Kumaresan – gift to wife, pious purpose not valid
Tara Sahuani v Raghunath – gift to daughter after marriage in critical living condition is valid
and not full or entire property to be gifted
Object
Vilas v vasantrai – son conceived born after date of alienation cannot challenge
Giasi Ram v Ramjilal- femail hair can challenge the validity
Partition
Appovier v Rama Subb Aiyan – true intention to became separate owner, division of title
Raghavamma v Chenchamma – division of status accepted by SC
Girijanandhini v Bijendra – partition is defining shares of the coparceners, actual division
KN Narayanan v K V Ranganathan – in partition need to consider both assent and debt
1. By unequivocal intention to separate
2. By an actual division of metes and bounds
Subject matter of partition- idol, temple indivisible, separate property
Deductions and Provisions- debt of the father, maintenance of member have not share
Person who have right to partition and share on partition:- Coparcener, Minor coparcener,
Adopted Son ( sec 12 Hindu Adop and Maint Act-1956), Son begotten at the time of partition
but born after partition, female member ( wife, paternal grand mother, widowed mother)
Modes of Partition
By Agreement, By Suit, By Conduct, By Arbitration, By a Notice, By Conversion (Apostasy)
Siromani v Hem kumar – elder son no double share- Jyesthansa- pindadana
Re- opening of partition – fraud, absentee, minor attain majority, disqualified- missing
coparcener, son-begotten, son in womb, son conceived born after partition
Re- Union- after partition, to join one again- Ram Narain v Mst Pan Kuer – same parties
Hindu Succession Act 1956
Law of succession is classified in to two ( Total 30 Sections)
1. Testamentary succession – made the will – sec 30
2. Intestate succession – dying without Will – Sec 5 to 29

Modes of Devolution of property by Mithakshara


1. Devolution by Survivorship
2. Devolution by Succession
Sec 4- Over riding effect of the act
Sec 6- Devolution of coparcenary interest of Mithakshara , dying male and female member
in class I
Sec 8-13- succession to separate or self acquired property of male Hindu dying intestate
Sec 15-16- succession to separate or self acquired property of female Hindu dying intestate
Sec 18 – 20 – General provisions
Agnate – male link to ancestors – sss is an agnate to A-s-ss-sss
Cognate -female link to ancestors -ddd is an cognate to A-d-dd-ddd
Reversioner- heir of the last male holder- A dies his widow takes limited estate and later
dies, it goes to nearest heir of A.
Sec 8- Hindu Male Intestate succession
Hindu male intestate succession sec 8-13
Doctrine of Representation- what partition when alive

Marudayi v Doraisami
Succession to Mitakshara Coparcner’s Interest

Law related to Intestate succession


1 ) Devolution of Interest in Coparcenary Property ( Doctrine of Notional partition)- sec – 6

Notional partition → Division as per Succession Rule – father property equal division

Gurupad v Hira Bai


Notional partition → Succession

Before 2005 D1,D2,D3 was not given any share


2) Rule of Intestate Succession to the property of a Male Hindu - Sec 8 – 13

1. Class 1 heirs -16 division


a. Rule 1- Divide Equal share
b. Rule 2- among heirs of the branches of predeceased son, pdD, pSpS, -
Doctrine of Representation applies and the heirs in each branch would take
the same share which their parents would have taken had he or she be alive
at the death of the intestate . Heirs take the property per capita

2. Relatives specified in Class 2 heirs


a. If no heirs in class 1 then this list will succeed the property deceased
b. 9 divisions

3. Agnate
4. Cognate
Compact series of Heirs – if No son- test of Yagnavalkaya- putra
W,D,DS,M,F,B,BS,SSS – first four in class I, then three in Class II, last in Agnates after 1956

3) Rule of Intestate Succession to the property of Female Hindu sec 15 16


Rule 1. The property equally divided with F, S and D.
in this property inherited from his father will not goes to H, its F heirs
In the absence of F heirs, it will goes to M heirs
If She her own toil then it goes to her H
Rule 2. In the absence of any Son, daughter, children of pre- deceased son or
daughter or husband the property will be devolving upon the heirs of her
husband.
Rule 3.if no S, D, Children of pre-deceased S, or Daughter, husband or the heirs of H,
the deceased female property goes to her Mother and Father
4.)General provision relating to Succession
1. Full blood preferred to half blood – sec 18
Yellawa Goundr v Lekshmi
2. Mode of succession of two or more heirs – sec 19
3. Right of Child in womb – sec 20
4. Presumption in cases of Simultaneous death- Sec 21 – younger survived the elder
5. Preferential right to acquire property in certain cases sec 22(1) and 22(2) pay all cost
and expenses if not taking the right
5). Disqualification – sec 25 to 28
a) Murder – sec 25
b) Converts Descendants sec 26
c) No person shall disqualified any ground of disease – sec 28
6) Absolute Right of Female over Property
a) Stridhan ( fresh stock of descent)
a. Soudhayika
b. Non Saudhayika
b) Woman’s Estate – sec 14(1) abolished limited estate- she is full owner- Hindu
Succession Act 1956
Suharam v Gauri Shankar- woman can sell her alienate property, because full owner
Mangal v Rattana- she was constructive owner, even if the property was not in her
possession by trespasser’s .legal heirs has the right to claim
Karmi v Amru- Sec 14(2)- if restricted owner by any decree or will, then she will not
be a full owner by 14(1)
7.) Power of testamentary Disposition- sec 30
8) Escheat- sec 29 – Government acquire if no heirs
Tarawad, Karanawar, Tavazhi – Marumakhathayam, Nair caste system,karanavar, karanavathi
Kerala Joint Family System ( Abolition) Act 1975
Religious Endowment and Charitable Endowment
Devasthanam Property
Mutt property
MUSLIM LAW
Gift or Hiba
Transfer of Property Act 1882- Not applicable to Gift made by Mussalman
Requisite of a valid gift under Muslim Law
1. The Donor - Person Making Gift
2. Free Consent
3. The Donee - Who the gift is made
Abdul Cadur v Turner – not yet in existence at the time of gift, is not valid
4. Subject matter of gift
5. Formalities of Gift
a. Declaration of gift by donor
b. Gift should be accepted by done
c. Donor should be the complete owner of the property gifted, delivered to
done ( possession)
G K Maneer v AA Maneer – delivery, acceptance, possession ,here minor
mother accepted, not valid because father is alive, do gift failed, grandfather to
Sons son.
Kanjoornissa v Rowshan – immovable , its must to get possession, in record too
Ahima v Khatija- Husband & Wife, stayed in same house, Gift, Vice versa
H Bibi v Naja Unnisa -Nephew and Son, gift house and stayed, valid
Gift of Musha – Undivided share in movable or immovable property
Khader v Kunjamina – property undivided is valid, can be divided later
Contingent gift is void – if its dependant on will of parties, then void, if condition is
not against law then its valid
Revocation of Gift or Resumable Gift – property Act 1882 its not possible
But Mohammedan law its possible to revoke
Except certain condition
1. Gift husband and wife
2. Prohibited degree of relations
3. Donee is dead after the delivery of possession
4. Sale by Donee
5. Destroyed by Donee
6. Value increased by any reason cannot revoke
7. Change the form
8. If received anything in return ( Hiba – bil- iwas)
Hiba – Bil -Iwas ( Gift with Exchange)
Iwas- consideration
Mohammed Esuph v pattamsa Ammal – deed favour of wife instead of dower , valid
Hiba – Ba -Shart-ul-Iwas
Shart – stipulation for return, Delivered to the donee for its validity, done promised to make
a return gift
Areeat
Take the profit from property without consideration
Ownership will not be transferred , temporary license to enjoy and profit only give to done
Sadaqah
Gift for acquiring religious or spiritual benefit, cannot recoverable
Will ( Vasiyat)
Will- vasiyat
Musi → Musiliah ( Property = Musibeh)
Who can make a will- 18 years- Indian Majority Act 1875
M Altaf v Ahmed Buksh – no writing required
Abdul Manan Khan v Mirtuza Khan- expression by testator is enough to serve the purpose
Bibi v Alauddin – not to signed
Sarabai v Mohammed- doesn’t requers attestation
Limitation and Restrictions in Testamentary Power
1. Not to bequeath more than 1/3
Daulatram v Abdul Kayum – whole property bequeathed , not valid
2. Not to favour of one of the heirs , if consent then ok
Narunissa v Sheik Abdul Hameed-bequest to an heir part of whole is ivalid
3. Bequest to unborn person
4. Bequest in futuro – is void- property arise after the death of testator is not valid
Contingent will is void-
Conditional will is not, if not valid , then only that condition can be removed and the
property can be enjoyed
5. Lapse / Revocation – legatee died before testator then it would be part of the testator
Will only operation when testator dies, before that he can revoke or sell the property
Hib Marz – Ul- Maut ( Death Bed Gift)
Rules regarding death bed gift
1. Donor should suffering from diseases
2. Wish to make gift
3. Deliver possession
4. Accepted by done
5. Not more than 1/3, if, need consent from other heirs
6. Cannot to heir
Difference between Hiba marz ul maut and donatiio mortis causa
DM Hiba
Movable any
Full 1/3.
Cancel if recover No return

Wakf – Wakf Act 1995


Property in the name of god and income can only be used
Person – Wakif, Deed – Wakf Deed,1/3 only, Wakf manager - Mutawalli
Essential
1. Permanent dedication
2. For religious purpose recognized by muslim law
3. Wakif must completely divest himself of the ownership of property
4. Property vested is irrevocably
Abdul v Asraf- should be muslim, should have absolute ownership, not mortgaged property
Doctrine of Cy-pres- as near as possible – of object fails, wakf will not be allowed to fail
Doctrine of Severability -partially valid , wakf will not fail
Wakf- al-aulad
1. Public Wakf
2. Private Wakf ( wakf-alal-aulad)
Abdul Fata Muhammed v Russomony Dhur Chowdhary-not valid favour of family
members, ultimate should go to religious, wakf act 1995 valid
Muhd khasim v Mohd Datagir – ultimate to god, permanent dedication to god
Mutawalli – punishment – sec 61
Wakf Board – sec 13 wakf Act - established – five years
Disqualification of member – sec 16
Removal of member or chairperson- sec 20
Power and functions of board – sec 32
Central wakf council – sec 9
Tribunals (wakf) – sec 83- DSJ
Muslim Religious Institution
1. Mosques – Md lambha v Md Hanifa, Md Wasi v Bachan Sahib
2. Qubristan
3. Dargah- tomb of muslim saint
4. Takia- Resting Place
5. Khangah – preachers – Religious head of Khangah - Sajjadanashin
6. Imambara-seprate place in a private house- mainly by shia
Pre- Emption (Shufaa)
Preferential right of owner of immovable property to become purchaser of another
immovable property
Govind Dayal v inayutullah – definition
AB owner of P, A->P, B can compel C to sell the P from A to B . Right of A is pre-emption
Person claim
1. A co- sharer of Immovable property – Shafi – i- Sharika
2. A servient owner or dominant owner – Shari – i- Khalit
3. Owner of adjoining immovable property - Shari I - jar
Matoo Devi v Damodar lal – gift not valid,pre-emption is an incident annexed to
property not personal right of re-purchase
Procedure followed
1. Talab-i-muwathaba – demand of jumbing
2. Talab – e- eishhad – Formal demand
3. Talab -e – tamlik- demand possession – within one year
Law of Inheritance
General principles
All payment should be done before distributing estate- funeral exp, bed charge, debts of
deceased, wages for due service, domestic servant payment
Sunni – Hanafi Law
Disqualification
Sunni – murder – disqualified
Shia- accident , not disqualified
Disqualification of illegitimate son and daughter
Sunni – no property inherit from father, can inherit from mother
Bafatun v Bilaiti Khanum – inherit property from Mothers sister
Converted Relatives
KP Chandara shekar v Govt of Mysore- Hindu woman died as Muslim, right to
Muslim heirs
Special marriage Act 1954
Indian Succession Act, 1925.
Doctrine of representation – is not valid and recognize Muslim Law
Hanafi Law of Inheritance
1. Sharers – Quranic Heirs (12)
1/6 == F,GF,M no child 1/3,GM,
1/4==H,W – no child 1/2
1/3==UB,US
1/2==D (2/3 Collectively),CS,SD, FS( 2/3 Collectively)
2. Residuaries
3. Distant Kindred
Doctrine of Aul ( Increase) – 60,000 rs
F – 1/6 H-1/2
H-1/4 2 full sister – 2/3
2 D- 2/3
13/12 7/6

Doctrine of Radd – H&W no return, if no survivors then return to H& W


M-1/6
D-1/2
11/12

CHRISTIAN SUCCESSION
Indian Succession act 1925
Rule of Succession Sec 31 to 49
1. Kindred by lineal consanguinity
2. Kindred by collateral consanguinity
Mary Roy v State of Kerala – under art 32- Christian succession act, violation art 14 and
15(1)
Will
Definition of Will sec 2(h)
Guidelines – sec 74 to 111 VI
Privileged Will- Soldier, Army Men
Unprivileged Will- Normal will
Execution and Attestation – Sec 63
Revocation of Privileged Will – Sec 70
1. Bu Subsequent will or codicil
2. By instrument of Revocation
3. By Destruction of Will
4. By Subsequent marriage of Testator
Probate -Executor- Probate of the will – copy and grant permission of deceased- Sec 2(f)
Letter of Administration – if not executed a will or not appoint and executor
Succession Certificate – debt due to deceased