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Class: BALLB (H)

Paper Code: LLB-202

Semester : Fourth

Family-Law-II

Unit –I - Joint Hindu Family

(a) Mitakshara and Dayabhaga Schools

1(a) MITHAKSHARA AND DAYABAGHA

Due to the emergence of various commentaries on SMIRITI and SRUTI, different


schools of thoughts arose. The commentary in one part of the country varied from
the commentary in the other parts of the country.
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Under Hindu family law there are two school of law one is the Mitakshara School
and other school of law i.e. Dayabhaga

The Mitakshara School exists throughout India except in the State of Bengal
and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under
the title Mitakshara. The followers of Mitakshara are grouped together under the
Mitakshara School.

Mitakshara school is based on the code of yagnavalkya commented by


vigneshwara, a great thinker and a lawmaker from Gulbarga, Karnataka. The
Inheritance is based on the principle or propinquity i.e. the nearest in blood
relationship will get the property.

The school is followed throughout India except Bengal. Sapinda relationship is


of blood. The right to Hindu joint family property is by birth. So, a
son immediately after birth gets a right to the property.

The system of devolution of property is by survivorship. The share of co-parcener


in the joint familyproperty is not definite or ascertainable, as their shares are
fluctuating with births and deaths of the co-parceners. The co-parcener has no
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absolute right to transfer his share in the joint family property, as hisshare is not
definite or ascertainable.

A Women could never become a co-parcener. But, the amendment to Hindu


Sucession Act of 2005, empowered the women to become a co-parcener like a
male in ancestral property. A major change enacteddue to western influence

There are two main schools: Mitakshara School and Dayabhaga School. The
Dayabhaga School is confined to Bengal and it takes its name after the work
entitled the Dayabhaga written by Jimutavahana. The Dayabhaga is, in fact, only a
chapter of a larger work of that author, but this chapter alone is now extant.

The rest of India follows the Mitakshara School which is so called after the work
entitled Mitakshara written by Vijnaneswara as a commentary on the Smriti of
Yajnavalkya. The Mitakshara (which means measured words) is regarded as
authority even in Bengal in regard to all matters on which there is no contradictory
opinion expressed in the Dayabhaga. The Mitakshara School is usually subdivided
into four schools, namely, the Benaras School, the Mithila School, the Maharashtra
and the Dravida School.
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Differences between Mitakshara and Dayabhaga Schools:

The essential differences between Mitakshara and Dayabhaga relates to the


following—

(i) Joint Family:

According to the Mitakshara a son, grandson and great-grandson acquire by birth a


right in the ancestral property. This doctrine is the basis of the Mitakshara joint
family. According to the Dayabhaga the ownership of the son can arise only after
the death of the father.

There, is no right by birth. The father has un-controlled power of alienation over
the family property under the Dayabhaga. Under the Mitakshara the father’s power
are qualified by the son’s equal right by birth.

(ii) Survivorship:

Brothers who have inherited property from their father have a right of survivorship
in the Mitakshara joint family. The Dayabhaga does not recognise any right of
survivorship and the brothers hold in quasi-severalty with full power of alienation.
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(iii) Widow’s rights:

When one of the brothers dies, his widow can succeed to his share under the
Dayabhaga but under the Mitakshara her rights are excluded by the right of
survivorship of the brothers. The widow can then have only a right to maintenance.

(b)Formation and incident under the Coparcenary Property under


Dayabhaga and Mitakshara: Extent and Mode of Succession

The Mitakshara School follows the law of inheritance based on the Principle of
Propinquity i.e. on the nearness of blood relationship. However, full effect to this
was not given. The Hindu Succession Act 1956 has given full effect to the same
principle.

Doctrine of survivorship: the property after the death of the common ancestor
devolves by the survivor. The sons of the family have a birth right in the property
by virtue of the following two rules:

• Females will not inherit.


• Agnates to be preferred over cognates.

These rules have made the Mitakshara School reactionary.


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Dravidian School of thought (Madras school): It exists in South India. In the case
of adoption by a widow it has a peculiar custom that the consent of the sapindas
was necessary for a valid adoption. (‘Sapindas’ – blood relation)

Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case) The


zaminder of Ramnad died any without sons and usually, such state would have
escheated to the Government, his widow however adopted a son, with the consent
of the sapindas of her husband.

But on the death of the widow, the Collector of Madhura notified that the
Zamindari would escheat to the State. The adopted son brought a suit for
declaration of the validity of the adoption. The question was that whether a widow
can make a valid adoption without her husband’s consent but his sapinda’s
consent.

The Privy Council, after tracing the evolution of the various Schools of Hindu law,
held that Hindu law should be administered from clear proof of usage which will
outweigh the written text of law. Based on the Smriti Chandrika and Prasara
Madhviya, the Privy Council concluded that in the Dravida School, in the absense
of authority from the husband, a widow may adopt a son with the assent of his
kindred.

In the Dayabhaga School of Hindu Law each coparcener has a defined interest. It
can be alienated. It does not pass by survivorship. In the Mitakshara coparcenary
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the coparcener’s share is not defined. It fluctuates with births and deaths of
coparceners. It passes by survivorship. So the power of alienation either does not
exist or is recognised only a limited extend (as in Bombay and Madras).

(i) As to how the Coparcenary Arises:


Under the Dayabhaga School of Hindu Law there is no right by birth. So during
the father’s life-time between the father and the sons there is no coparcenary.
When the father dies, his sons constitute a coparcenary.

The Mitakshara coparcenary arises during the life-time of the father itself and his
sons have right by birth.

(ii) Nature of Interest of Coparceners:


In the Dayabhaga School of Hindu Law each coparcener has a defined interest. It
can be alienated. It does not pass by survivorship. In the Mitakshara coparcenary
the coparcener’s share is not defined. It fluctuates with births and deaths of
coparceners. It passes by survivorship. So the power of alienation either does not
exist or is recognised only a limited extend (as in Bombay and Madras).

(iii) Expansion of Coparcenary:


Under the Dayabhaga system, on the death of one coparcener his heirs become
coparceners. So even females may in this way become coparceners. Under the
Mitakshara system only males can be coparceners. On the birth of a son to a
coparcener, the son also becomes a coparcener under the Mitakshara system. This
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is not so under the Dayabhaga for during the father’s life-time the son is not a
coparcener.

(iv) Alienee’s Right to Ask for Partition:


The alienee under both systems gets an equity which can be worked out in a suit
for partition. But under the Dayabhaga Law, the alienee can ask for joint
possession along with the coparceners. This is because he has a defined share.
Under the Mitakshara since there is no defined share, a suit for partition is the only
appropriate remedy of the alienee.

Incidents of Coparcenary Property under Hindu Law

1. Four Generation Rule – The lineal male descendants of a person, up to


third generation (excluding him), acquire on birth, an interest in the
coparcenary property.

2. Creation of law- Coparcenary is also a creation of law and cannot be


formed by an agreement between the parties.

3. Only males – No stranger can be introduced in the coparcenary. Only a


male child, born in the family or validly adopted, can become a coparcener.
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4. Acquisition of interest by birth – A coparcener in a joint family is born


with an interest in the coparcenary property which means that the moment
he is born in the family he gets a right by birth in the ownership of the
coparcenary property.

6. Fluctuating and not a specific interest – A coparcener on birth gets an


interest in the coparcenary property. His interest in the property is not a specific
share and is subject to fluctuation with the deaths and births of other
coparceners in the family. For example, a joint family comprises a father and
two sons. Each of these is a coparcener and entitled to one- third share in the
coparcenary property but on the death of any one coparcener, it will fluctuate
and will increase.

7. Doctrine of Survivorship – Under the traditional law, on the death of a


coparcener, his interest in the family property is immediately taken by those
coparceners who survive him and thus he leaves nothing behind out of his
interest in the coparcenary property for his female dependents. This
phenomenon is called doctrine of survivorship.
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8. Alienation of undivided interests – Generally, a coparcener is individually


not entitled to alienate his undivided interest in the coparcenary property. Only
in certain situations the father or senior most male member or the karta can
alienate the undivided interest or even the whole property.

1(c):-- KARTA

The position of the ‘Karta’ or the ‘manager’ of the Hindu joint family finds its
roots in the ‘Patriarch’ of the ancient family units.

Suraj Bunsi Koer v. Sheo Persad defined the term ‘Karta’.

Manager – Property belonging to a joint family is ordinarily managed by the


father or another senior member of the family: The Manager of a joint family is
called Karta. The absolute powers of the ‘Patriarch’ have now evolved into
superior powers that are accompanied by similar responsibilities. These powers
and responsibilities are several and quite multifaceted. The power of alienation of a
Karta is limited since alienation can only be done in exceptional cases. The other
powers of the Karta, however, are almost absolute.

Power of Alienation of Joint Property


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No individual member of a coparcenary has the power to alienate joint family


property without the consent of all other members. However, the Dharma Shastra
recognizes that in some circumstances a member has the power to dispose of
the joint family property. Mitakshara Law explicitly states this; wherein ,even one
person who is capable may conclude a gift, hypothecation or sale of immovable
property, if a calamity (apatkale) affecting the whole family requires it, or the
support of the family (kutumbarthe) renders it necessary, or indispensable duties
(dharmamarthe), such as obsequies of the father or the like, made it unavoidable.

1(d) Debts: Doctrine of Pious obligation and Antecedent Debts:-

Doctrine of Pious obligation’ means the moral liability of sons to pay off or
discharge their father’s non-avyavaharik debts. The debts borrowed may not be of
legal necessity or for benefit of estate. Thus, if the father is the Karta of a Hindu
joint family, he may alienate the coparcenary property for discharging the
antecedent debts. The sons are under the obligation to recover such alienated
property by repaying the debts.

The ancient doctrine of pious obligation was governed by Smriti law. There is a
pious obligation on the sons and grandsons to pay the debts contracted by the
father and grandfather. According to Privy Council this obligation extends to great
grandsons also because all the male descendants’ upto three generations constitute
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coparcenary and every coparcener is under a religious obligation to pay the debt
contracted by their ancestor, provided such debt was not taken for an immoral or
unlawful purpose.

The concept of pious obligation has its origin in Dharmashastras, according to


which non-payment of debt is a sin which results in unbearable sufferings in the
next world. Hence the debts must be paid off in all circumstances provided it was
not for immoral and illegal purposes. Vrihaspati has said, “If the father is no longer
alive the debt must be paid by his sons. The father’s debt must be paid first of all,
and after that a man’s own debts, but a debt contracted by the paternal grandfather
must always be paid before these two events.

The father’s debts on being proved, must be paid by the sons as if their own, the
grandfather’s debt must be paid by his son’s son without interest, but the son of a
grandson need pay it at all. Sons shall not be made to pay (a debt incurred by their
father) for spirituous liquor, for idle gift, for promises made under influence of
love or wrath, or for surety ship, nor the balance of a fine or toll liquidated in part
by their father. Yajyavalkya says, “A son has not to pay in this world father’s debt
incurred for spirituous liquor, for gratification of lust or gambling, or a fine, nor
what remains unpaid of a toll; nor idle gifts.” But in case of debts for purposes
other than the above, on the death of the father, or on his going abroad, or suffering
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from some incurable disease, the debt contracted by him would be payable by his
sons and grandsons.

The Mitakshara has presented the entire proposition in stronger words. According
to it when the father has gone abroad or is suffering from some incurable disease,
the liability to pay the debt contracted by him would lie on the sons and grandsons
irrespective of the fact that the father had no property. There are reasons for fixing
this liability on sons and grandsons. The liability to pay the debt is in the order,
viz., in absence of father the son and in absence of son the grandson.

It is worth noting that the doctrine of pious obligation does not extend the liability
to females notwithstanding she has been given a share in the joint family property
on partition. Where the wife gets a share on partition between husband, sons and
herself, still she would not be under any obligations to pay the debt of the ancestor
(father).
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Unit-II- PARTITION

2. (a) Meaning ---Division of Right and Division of Property

When there are multiple owners of a piece of property, and they no longer wish to
co-own the land or building, they have a right to seek a partition, or division, of the
property. Partition law varies based on the jurisdiction. The state in which the land
is located will usually have its own partition law that applies. Partition property
law generally concerns two separate types of partition, and then the property is
divisible based on the different types of tenancies in the jurisdiction.

The two major means of dividing property under the law of partition of property
are partitions in kind and partitions by sale. Partition law requires that most
courts seek to first divide the property in a partition in kind. A partition in kind is a
physical division of the property by delineating borders. Instead of the two parties
jointly owning the entire property, a court will divide the property so that each
party is the sole owner of their own portion of the property.

In a joint tenancy with equal ownership, laws for partition of property usually
require that the property is partitioned equally between the owners. This could
mean that the land is divided equally, or that the proceeds from the sale. However,
if the parties owned the property as tenants in common, then the partition should be
split according to their percentage of contributions toward the original purchase of
the property or to their contractually determined interests in the property.
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Property often has more than one owner. The owners can be family members,
business partners, or mortgage holders. When the two owners no longer wish

to reside together or co-own the property together, they have to partition, or divide,
the property between them. There are two major types of partition of property. The
first type is a partition by sale, and the second type is partition by division. The
usual legal terminology for partition by division is “partition in kind.” This type
creates a physical division of the property, leaving each party as the sole owner of
their own portion of the property.

Partition by division is the preferred method of property division. This means that
courts will usually defer to physical division of the property rather than ordering
the property sold. However, that does not necessarily mean that partition by
division is the most common result of a partition action. When one or both owners
file for partition of the property, the court will divide it unless one of the parties
can prove that either physical division is impossible or that it is not in the best
interest of all of the parties.

For example, if two parties are left a house in a will, and the parties wish to
partition the property, it may be impossible to do so with a residential dwelling.
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There is no way to cut the house in half. The court can’t draw a line through the
living room and kitchen and allow each party to have one side of the line.
Although this might be possible, it would certainly be extremely impracticable for
the parties.

2. (b):-Persons Entitled to demand Partition

The partition of a joint Hindu family may take place at the instance of the
following persons:—

1. Sons and Grand-Sons:

Under the Mitakshara Law, the right of a son, a grand-son and a great grand-son as
well as every other adult member of the coparcenary, can demand a partition even
against the consent of the others. The Bombay High Court in a case has said that
a son is not entitled to ask for a partition in the life-time of his father without his
consent, when the father is not already separate from his own father or brothers and
nephews.

But this view no longer stands valid. The Bombay High Court in a later case
accepting the authority of the Supreme Court in Puttorangamma v. Rangamma
held that a suit for partition and separate possession of ancestral joint family
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properties by one of the coparceners is maintainable even if their father is joint


with his brother and is not willing and does not consent to such a partition.

The Delhi High Court clearly maintained that a son can demand partition during
the lifetime of his father without any hindrance. This view was again supported by
the Bombay High Court in its latest pronouncement.

2. After-Born Sons:

After-born sons can be classified under two heads. Firstly, those born as well as
begotten after the partition and secondly, those born after partition but begotten
before it. A son in his mother’s womb is treated in law in existence and is entitled
to re-open the partition to receive a share equal to that of his brothers.

In the case of a son born as well as begotten after 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 property to the
exclusion of the separated sons and is not entitled to re-open the partition.
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3. Illegitimate Sons:

An illegitimate son among the three upper classes does not have any vested interest
in the property and therefore, cannot demand a partition, although he is entitled to
maintenance out of his father’s estate. The Madras and Allahabad High Courts
have held that an illegitimate son of a Sudra may enforce a partition against his
illegitimate brothers but not against his father or his father’s coparceners. The
Bombay High Court has also taken the same view but the Calcutta High Court has
taken an opposite view.

The share of an illegitimate son is half of what he would have got had he been a
legitimate son and according to others; his share is half of that of a legitimate son.
The Madras High Court in a case held that after the institution of the partition suit,
the father can still fix the shares of his illegitimate sons. He can exercise this right
according to his discretion so long as the partition has not become final.

4. Widows:

A widow, though not a coparcener under Mitakshara law could still claim a
partition of the joint estate under the Hindu Women’s’ Right to Property Act, 1937.
Mere partition of the estate between two widows does not destroy the right of
survivorship of each to the properties allotted to the other. The party, who asserts
that there was an arrangement, by which the widows agreed to relinquish the right
of survivorship, must establish it by clear and cogent evidence.
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5. Adopted Son:

An adopted son like a natural born son would be entitled to demand a partition any
time after adoption. But where a son has been adopted by the parents and a natural
son is begotten subsequently, although the adopted son was to be treated at par
with wife the natural son yet the quantum of his share in the joint family property
differed in different schools.

In Bengal, he took 1/3rd share, in Banaras he took 1/4th and in Bombay and
Madras he took 1 /5th share of the property. The Hindu Adoption and Maintenance
Act, 1956 has done away with the discrimination and enabled the adopted son to
get a share equal to that of natural born son on partition.

6. Minor Coparcener:

A minor coparcener is also entitled to effect a partition in case the joint status does
not remain beneficial to his interest. He cannot file the suit himself but any other
person on his behalf can file such a suit. His minority or the minority of other
members of the family would not be a hindrance to effect a partition by him. If the
partition has already taken effect detrimental to his interest, he could challenge it
on attaining majority
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7. Alienee:

An alienee of a coparcener’s interest, if such an alienation is valid, has a right to


demand partition. In Smt. Kailashpati Devi v. Smt. Bhuwaneshwari Devi, the
Supreme Court held that the purchaser of joint family property from a member of a
joint Hindu family may have the right to file a general suit for partition against the
members of the joint family and that may be the proper remedy for him to adopt to
effectuate his purchase. An execution purchaser of a member’s interest and
purchaser of the same for value in Bombay and Madras is entitled to demand
partition in the rights of that member.

8. Female Sharers:

The term “female sharers” include three types of females, namely, (1) the wife, (2)
widowed mother, and (3) paternal grand-mother. These female sharers cannot
demand a partition but, however, entitled to get their share when the joint family
property is actually divided on partition. Where a suit for partition filed by a
coparcener has been withdrawn, the female sharer will not be entitled to continue
the suit or to press a demand of his share.

If the suit has been dismissed for any other reasons, the mother would not be
entitled to demand partition in the property. The mother and the grand-mother
would be entitled to get a share on partition only when the partition is affected
between the sons and grand-sons. The female sharers would not be entitled to any
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share in the property merely by the fact that a suit for partition has been filed or a
preliminary decree has been obtained in the suit. So long the actual partition is not
effected; there is no question of allotment any share to them.

Section 23 of the Hindu Succession Act, 1956 postpones the right of female heirs
to claim partition of the dwelling house until male heirs choose to divide their
respective shares therein.

After passing Hindu Succession (Amendment) Act, now the position has been
changed, now Section 23 of the principal Act has been omitted by Hindu

A Hindu Undivided Family (joint family) is governed by the two schools of Hindu
Law viz; Mitakshara and Dayabhaga. (The Dayabhaga school is prevalent mainly
in West Bengal and Assam whereas the Mitakshara school is prevalent in most of
the other parts of India.)

The 2005 amendment in Section 6 of the Hindu Succession Act, 1956 (HSA),
which deals with devolution of interest in coparcenary properties governed by the
Mitakshara law.

Prior to the 2005 amendment in Section 6 of the HSA, under the Mitakshara school
of Hindu law, only male members descended from a common ancestor such as
sons, grandsons and great-grandsons could be coparceners and had an interest by
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birth in coparcenary property. Daughters albeit members, were not coparceners


(and hence were not entitled to demand partition).

Prior to the 2005 amendment, upon the death of a male coparcener, his interest in
the Mitakshara coparcenary property, would devolve by survivorship upon the
surviving members of the coparcenary, except if the deceased had left surviving
him, a female relative specified in class I of the Schedule or a male relative
specified in that class who claims through such female relative.

Thus, even prior to 2005, while daughters of male coparceners may have inherited
a share in HUF property, such share would have devolved upon her (as a class 1
heir along with other heirs mentioned above) from the share which her father (who
was a coparcener in the HUF) would have had in the HUF property at the time of
his death and not to her own separate share as a coparcener.

However now, by virtue of the amendment to the HSA, such discrimination has
been removed and a daughter of a coparcener shall:

(i) by birth become a coparcener in the same manner as a son,

(ii) have the same rights in the coparcenary property as she would have had if she
had been a son,

(iii) be subject to the same liabilities in respect of the coparcenary property as that
of a son
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(iv) be entitled to demand a partition of the HUF.

However the amendment shall not affect or invalidate any disposition or alienation
including any partition or testamentary disposition of property that had taken place
before the 20th day of December 2004.

The Supreme Court in Prakash & Ors Vs. Phulavati & Ors, held that the
amendment to the HSA is prospective and is applicable to a living daughter of a
living coparcener as on 9 September 2005 (i.e. at the commencement of the
Amendment Act), irrespective of when such daughter was born provided that any
disposition or alienation including partitions which may have taken place before 20
December 2004 as per law applicable prior to the said date will remain unaffected.

The Delhi High Court, in furtherance of the above amendment to Section 6 of the
HSA, in the case of Sujata Sharma vs Shri Manu Gupta & Ors., held that the eldest
woman member of a Mitakshara HUF can be its "Karta / Manager", since the
impediment (qualification) which prevented a female member of a HUF from
becoming its "Karta" was removed by the amendment in Section 6 of the HSA.

As regards self-acquired property, i.e., property that has been acquired by a person
through his own funds or through gifts or bequests, there has been no change in the
law with regard to succession.
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In case a Hindu male dies intestate (i.e., without making a Will), his daughter
would be entitled to inherit as a class 1 heir, equal to that of a son.

Joint Property and Partition

Joint property may take several forms - coparcenary property, Hindu Undivided
Family Property, joint family property under the Muslim law and joint property of
the Christians and Parsis.

A Hindu joint family consists of the common ancestor and all his lineal male
descendants upto any generation together with the wife/ wives (or widows) and
unmarried daughters of the common ancestor and of the lineal male descendants. A
coparcenery is a narrower body of persons within a joint family. It exclusively
consists of male members. A Hindu coparcenery is a corporate entity, though not
incorporated. A coparcenery consists of four successive generations including the
last male holder of the property. The last male holder of the property is the senior
most member of the family. However, Section 6 of the Hindu Succession Act has
been amended by the Hindu Succession (Amendment) Act, 2005, and according to
which, in a joint Hindu family governed by the Mithakshara law, the daughter of a
coparcener shall (a) by birth become a coparcener in her own right in the same
manner as the son; (b) have the same rights in the coparcenary property as she
would have had if she had been a son; (c) be subject to the same liabilities in
respect of the said coparcenary property as that of a son, and any reference to a
Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter
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of a coparcener. Therefore, the line between the HUF and coparcernery property
has blurred. Now throughout India daughters shall have a share in the coparcenery
property and claim such share in partition.

The properties of a joint Hindu family is usually managed and administered by a


member of the family designated as the Karta. Traditionally Karta was the senior
most functional male member of the family. However, it is not necessary that
every joint Hindu family should have a Karta or manager, for instance a
coparcenery of minors. The Karta cannot, however, alienate the joint property
except in the case o9f need for and / or for the benefit of the estate.

Notwithstanding that certain properties may be self acquired they may become the
joint property of the family if the same has been acquired out of the proceeds of the
joint property or the acquirer of the property waives of his right to own the
property separately and throws it in the common pool.

However, the Dayabhaga School applicable to Bengal, Assam and parts of Eastern
India and the Mitakshara School applicable to most of India differ in the concept of
joint property. Under the Mitakshara School the children are born with an interest
in the property whereas in Dayabhaga School the father is the absolute owner of
the ancestral property. A partition in Mitakshara School is one of the modes of
acquisition of property whereas in Dayabhaga school it the outward manifestation
of a previous existing separate interests.
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Among the Muslims, Christians and Parsis the joint property is either the result of
joint acquisition by owners or the result of joint succession. The mode of
enjoyment of joint property is often contractual, express or implied.

Some aspects of joint property are as follows:-

(a) The co-owners are jointly and severally responsible for any liability attached
on the property.

(b) If one co-owner pays the entire debt to save the joint property he is entitled to
a charge on the other co-owner’s shares.

(c) Costs of repairs have to be shared between the co-owners but not the cost of
any improvements.

(d) A co-owner’s possession of joint property is on behalf of other co-owners and


becomes a hostile possession when he ousts them.

(e) Lease by a co-owner is confined to his share.

(f) If the joint property is leased out by the joint owners a partition among them
does not affect the tenancy.

(g) Any co-owner can send the notice to terminate the tenancy, it is not necessary
that all the co-owners send the notice.
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(h) A co-owner may transfer his share in the joint property and the transferee steps
into the shoes of the transferor having the same rights as the transferor

Having dealt with joint property and some of its aspects including its formation we
come to the aspect of dissolution of joint property into exclusively owned
properties.

Partition is adjustment of the diver’s rights regarding the whole by distributing


them on particular portion of the aggregate. Before partition the right of each co-
owner extends over the whole property. The effect of partition is to create in favor
of each co-owner an exclusive right to a part in lieu of the joint right which he
previously possessed over the whole.

As has been discussed hereinabove under the Mitakshara school of Hindu law
partition is the creation of self property whereas under the Dayabhaga
school/Mahomedan/ partition is the allotment of separate portions of the property
to each co-sharer corresponding to the shares already owned by them. Under the
Mitakshara School where there are several branches of a family each branch gets
an equal share. Thereafter, the members of the branch distribute it equally among
each other.
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A coparcener has merely to signify to the other coparceners his present intention to
separate and from the time such an intention is made known to the other
coparceners his share is considered as a separate property. However, Hindu law
also recognizes partial partition whereby one or more members of a joint family
may separate but the rest of the members continue as a joint family. In cases of
written agreements effecting partition the separation takes places on the date of
such agreement. Partition may also be affected by applying to the court for a
decree of partition. Family arrangement is also one of the ways in which the
shares in a joint property are divided. It has two essential ingredients (1) the
members of the family should have an interest in the property (2) Division of
shares is by way of an amicable settlement whereby none question the share of the
other.

When there is a mortgage of the interests of all the co-owners, such a mortgage is
not affected by the partition and the separate properties continue to be an
indivisible mortgage security. However, one co-owner creating a mortgage on the
property cannot affect the interests of the other co-owners by

Such mortgage. Similarly, easementary rights like right of passage, light etc are
not affected by a partition.

A partition may also be oral where it does not involve any exchange or transfer of
property. A family arrangement is an example of an oral partition. It is not
required that such a partition should be in writing or even registered. The test of
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whether a deed of family arrangement is compulsorily registerable or not is that if


the deed merely records the settlement it is not required to be registered and if the
partition is effected by the deed it is required to be registered.

Predominantly, the partitions are carried by way of a partition deed. Any


instrument declaring and effecting partition must be properly stamped and
registered. The requirements of a partition deed are (a) must contain an accurate
description of the joint properties and the respective values (b) the divided portions
must be clearly demarcated (c) a person who receives a smaller share than due to
him must be paid owelty money (d) witnessed by two persons (e) properly
stamped (f) registered.

A co-owner is entitled to demand a partition as a matter of right. When a co-owner


demand a partition and the demand is not acceded to the co-owner may file a suit
for partition of the joint property before an appropriate civil court. In such a suit
the Court first passes a preliminary decree declaring the respective shares of the
co-owners. It then asks the co-owners to divide the joint property by metes and
bounds amicably. If the y fails to do so the Court usually appoints and
Commission to make such a partition and place the report before the
Court. Thereafter, the Courts give a decision after hearing the parties. The Final
order of the Court is engrossed on the stamp paper of appropriate value depending
on the valuation of the property because under section 2(15) the partition decree is
an instrument of partition.
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It is not only important to be aware and vigilant about our rights but also because
as Nathaniel Hawthorne has said “What we call as real estate – is the broad
foundation on which nearly all the guilt of this world rests.”

According to the Hindu Joint Family, once the Partition is made, it can
be irrevocable or re-opened.
But, in some cases the partition can be re-opened:

They are:-

1. Fraud:

If the Partition is found any fraudulent, it can be re-opened. For instance,


worthless assets are fraudulently misrepresented as valuable assets and are
distributed to a coparcener, he has right to claim the re-opening of partition.

2. Son in Womb:
At the time of partition, if a son is in Womb, and no share is allotted for him, it
can be reopened.

3. Adopted Son:
If a widow of a coparcener adopted a son after the partition was take place.
The adopted son has a right to re-open the partition.
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4. Disqualified Coparcener:
A disqualified coparcener is deprived of his share at the time of partition due
to some technical constraint. After the disqualification is removed, he can get the
partition removed.

5. Son conceived and born after partition:


When Son conceived and born after partition, if there is no share for the son.
the partition became re-opened.

6. Absentee Coparcener:
At the time of partition is taken, where a coparcener is absent and there is no share
is allotted to him, he can get the partition re-opened.

7. Minor Coparcener:
A minor coparcener can claim the re-opening of the partition, if he can
establish that the partition. During his minority was unjust, unfair and prejudicial.

So, according to these cases a partition can be re-opened in the Hindu Joint Family.

Partition of HUFs
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A joint Hindu family springs from a common male ancestor and consists of his
descendants in the male line, their spouses and unmarried daughters. Every male
Hindu even when he is a member of joint Hindu family can and does constitute a
joint family with his own descendants, a family which nevertheless is a part of the
bigger family of which he is a member. Such a smaller family of the Hindu male
who is himself a member of the bigger family constitutes a branch of the main
family. Similarly sub-branches of the family can be formed by each of his male
descendants. Each of these branches or sub-branches is in itself a HUF.

Partition under the Income-Tax Act is the ascertainment of individual shares of


coparceners in the HUF and a later division by allotting separate properties to the
members. The partition is a mere agreement to divide the properties and, therefore,
does not require registration unless the division is through a written instrument. If
the partition is oral, however, a memorandum of partition should be recorded. The
memorandum does not have to be registered. On a partition between the members
of the joint family, the shares are to be allotted as under.

On a partition of a HUF, which includes the father, mother, and sons, the mother
has no right to claim partition, but when the partition is actually affected she takes
the share equal to the sons.

On a partition between a father and his sons where the mother is not living, each
son takes a share equal to that of the father.
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On a partition of a joint family consisting of brothers they take equal shares.

Each branch takes per stripe as regards every other branch, but members of each
branch take per capita as regards each other.

None of the unmarried daughters has a right to share on partition but the partition
should provide for their maintenance and education till their marriage

and for their marriage expenses. In Maharashtra, Karnataka, Andhra Pradesh and
Tamil Nadu, daughters are also entitled to a share equal to that of the son on
partition of the HUF property. This is not applicable in Maharashtra where the
daughter is married before June 22, 1994, in Karnataka, if the marriage of the
daughter is before July 28, 1994, in Andhra Pradesh if the marriage of the daughter
is before September 5, 1985, and in Tamil Nadu if the marriage of the daughter is
before March 25, 1989.

The I-T Act does not recognise a partial partition. An unequal partition is,
however, possible. Since an unequal partition is permissible, it might be possible
that one of the coparceners may renounce his coparcenary interest in the
coparcenary property as an alternative to a partial partition which is not recognised.
The renunciation is an unilateral act of the coparcener but has to be complete and
genuine. The coparcener relinquishing can demand maintenance but cannot
relinquish in favour of a particular individual member of the family. It is important
to note in this context that unless an order is obtained from the Assessing Officer
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recognising partition, the income from property shall continue to be assessed as


HUF income.

Reunion of HUFs

Even after a total partition, it is possible for the coparceners to reunite undoing the
earlier partition among themselves. The effect of such reunion is to bring back to
life, the former status of the HUF. A reunion can only take place between persons
who are parties to the original partition. If a joint Hindu family separates, the
family or any member of it may agree to reunite as a joint Hindu family.

The conditions precedent for a valid reunion under the Hindu Law is:

There must have been a previous state of union. Reunion is possible only among
persons who were on earlier date members of the HUF.

There must have been a partition in fact.

The reunion must be affected by the parties or some of them who had made the
partition.

There must be a junction of estate and reunion of property because reunion is not
merely an agreement to live together as tenants in common.

Reunion is intended to bring about a fusion in the interest and in the estate among
the divided members of an erstwhile HUF once again. Therefore, reunion creates a
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right on all the reuniting members in the joint family properties which is the
subject matter of partition among them to the extent they were not dissipated
before the union.

There should, however, be a proper agreement between the parties so that the
intention to revert to the original status of the HUF is expressed clearly and
unambiguously. The burden of proof of reunion is on the party asserting the
reunion and must be discharged along with proof by the persons reuniting. It
should also be remembered that if the partition comprising immovable properties
was by a registered deed then the reunion, which follows if it is to be valid in law,
must also be affected by a registered deed.

In a reunion, a few of the properties of the former HUF and also a few members of
the former HUF may remain out of the reunited HUF. Thus, one may observe that
it is possible that a partial partition which is not otherwise recognised by the tax
law may to a limited extent be possible by the use of the reunion of a HUF.

Unit-III

Principles of Inheritance under Hindu and Muslim Law

3(1).General rules of succession in the case of males:


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Sections 8 to 13 of the Hindu Succession Act mention the general rules of


succession in the case of males. It will be worthwhile to reproduce them here to
comprehend the subject properly

1. The property of a male Hindu dying intestate shall devolve:

(a) First, 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 classes, then upon the agents of the
deceased; and

(d) lastly, if there is no agnate, upon the cognates of the deceased. (Sec.8).

2. Order of succession among heirs in the schedule:

Section .9 Among the heir 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 the
case 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.
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Hindu Succession Act, 1956: Applicability and Grounds of Disqualification

The Hindu Succession Act (hereafter HSA) states in its preamble that it is an act to
amend and codify the law relating to intestate succession among Hindus. It extends
to the whole of India except Jammu and Kashmir (section 1).

The law applies to any person who is Hindu by religion in any of its forms,
including those who identify as Buddhist, Jain or Sikh by religion, and to all
children of Hindus, including both legitimate and illegitimate children. Since
defining who actually is a Hindu is a difficult task, section 2(1)(c) also mentions
the exclusionary rule of identifying a Hindu, i.e., anyone who is not a Muslim,
Christian, Parsi or Jew by religion will fall under the definition. Furthermore, this
act will not apply to a person belonging to Scheduled Tribe unless the Central
Government by notification in the Official Gazette so directs [section 2(2)].
Finally, this law also applies to Hindus who married under the Special Marriage
Act.

Certain predicaments or situations automatically disqualify a person from getting


any share in property. Section 25 states that any person who commits murder is
disqualified from receiving any form of inheritance from the victim.

Similarly, Section 26 states that if a relative converts from Hinduism, he or she


may still be eligible for inheritance, but the descendants of that converted relative
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are disqualified from receiving inheritance from their Hindu relatives, unless they
have converted back to Hinduism before the death of the relative.

However, having a disease, defect or deformity will not form a valid ground for
exclusion from inheritance under this Act (section 27).

3. (1).Female Intestate Succession under Hindu Law

Under the present legal system of India, people from different religions are
governed by their own personal laws in matters of inheritance, marriage,
separation, guardianship etc. In this regard, the succession in Hindus is governed
by the Hindu Succession Act, 1956 (‘HSA’). A peculiar fact about this Act is that
it makes a differentiation between the intestate succession of females and males.
The female intestate succession is further dependent on the source from which the
property was received by the deceased female. This post after critiquing the Act as
it stands (it being discriminatory and therefore unconstitutional) discusses the
development in law brought by a Bombay High Court decision, which I hope will
be affirmed by the larger bench putting an end to the present scheme of female
intestate succession amongst Hindus.

The property of a Hindu female under the HSA has been divided into three
categories, viz. property inherited by a female from her father or mother, property
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inherited from her husband or father-in-law and the third kind, the properties which
are not governed by the first two categories. This kind of differentiation, depending
upon the source of property and gender, is not seen in any other religion across the
world. Under 15 r/w 16 of the HSA, the general rule for succession of all kinds of
the properties is that it will pass on to the children (or if children predeceased the
female, to the predeceased children’s children) and the husband. However, in case
there is no one in existence from the above at the time when succession opens, the
first kind of property will be inherited by the heirs of her father and the second by
the heirs of her husband. Perhaps, the intention of the legislature was that the
property should go back to the source from which it was received. It is the
succession procedure of the third kind of property, which includes the self acquired
properties or properties received in any other manner or from any other source,
provided the female has absolute rights in that property, which is under question in
this post. 15(1) of the act provides for a specific order, in which this property
divests;

(a) Firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;

(b) Secondly, upon the heirs of the husband;

(c) Thirdly, upon the mother and father;

(d) Fourthly, upon the heirs of the father; and


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(e) Lastly, upon the heirs of the mother

The discriminatory nature of this law can be understood using the case of Om
Prakash v. Radha Charan (‘Om Prakash’). The case pertains to Narayani, after
whose death, there was a dispute regarding the succession of her properties.
Ramkishori, the mother of Narayani, filed an application for grant of succession
certificate under S.372 of the Indian Succession Act, 1925. The respondents, who
were the brothers of Narayani’s husband, also filed a similar application to get the
succession of Narayani’s self acquired properties. To understand the complication
in the situation, it is important to know the background of the way the properties
were acquired. Narayani’s husband died of snake bite within a short period after
marriage. She was then thrown out of her matrimonial place by her in-laws who
were the respondents here. She was never enquired of for the 42 years she stayed
in her parents place after the husband’s death. She was educated by her parents and
subsequently gained a well paid job. Therefore, she left a huge amount of property
including bank accounts, provident funds, land etc. She died intestate at the end of
these 42 years. Despite these facts, the Judges said that sentiments and sympathy
cannot be a guiding principle to determine the interpretation of law and it should
not be interpreted in a manner that was not envisaged by the legislature. The court
stating so said that the HSA specifically mentioned that the self acquired properties
will pass on to the husband’s heirs in the absence of any issues and husband, which
was the case with Narayani also and so the court will have to pass the judgment in
favor of the respondents.
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Although it is understandable that the court couldn’t have gone beyond the
intention of the legislature, however, neither did the court give full effect to what
the Parliament intended. The argument of the advocate for Narayani’s mother
holds weight in this regard. The lawyer argued that since the intent of the
Parliament while introducing the said section was to send the property back

to the source and not to a stranger, it is logical that since here the property was
earned via the money spent by Narayani’s parents, the money so earned should be
returned to her parents. This wasn’t accepted by the court.

It should be noticed that the succession laws are not only about the ones who are
entitled to the property, but also about the ones who should be disentitled. The 21st
edition of Principles of Hindu Law (Mulla) also observes that S.15(2) is based on
the grounds that property should not pass to the individual “whom justice would
require it should not pass.” Here, the court granted the property to the very people
who behaved cruelly with the deceased and did not maintain the relationship when
she needed it the most. Support can be drawn for the above argument from 25 of
the HSA, where a murderer is disqualified from inheriting the property of the
person he/she has murdered. It is based on the belief that the deceased person will
never want the person who murdered him/her to inherit property.

On the other hand, S.8 of the Act which deals with succession in the case of males,
gives precedence to blood relatives over the relationships arising out of marriage.
This prejudiced scheme of the act is evidently ultravires the constitution since the
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rules for males and females in the Act are different and thus they discriminate only
on the basis of gender which is prohibited under Article 15(1) of the Indian
Constitution.

In contrast to the Parsi, Muslim or Christian law, where the blood relatives of the
women inherit even in the presence of her husband or her husband’s relatives, the
blood relations of a Hindu woman are given an inferior position in contrast to her
husband’s heirs. This leads to a situation where her own relatives will never be
able to inherit in case there is even a remote heir of the husband. There is judicial
imposition of the husband’s relatives over her own blood relations. The entire
group of husband’s heirs inherits from her, whereas she does not inherit from them.
The marriage of a man doesn’t make a difference on the way his property gets
devolved, but the marriage of a woman changes the pattern of inheritance for her
properties. This is a result of the

thinking that a woman has no family of her own, it is either the husband’s or the
father’s that she lives in. The woman is not treated as an independent individual
capable of transferring her property to her blood relatives, but an epitome of her
husband. The law is also a suggestion of the discarded view that the woman has a
limited stake in the property. This view which was sought to be removed by
S.14(1) of the HSA, still clearly lingers in the scheme of succession.

It needs to be noticed that the constitutional validity of the section in question was
also brought to the judiciary in an earlier case of Sonubai Yeshwant Jadhav v.
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Bala Govinda Yadav. It was held there that the object of the legislation was to
retain property with the joint family upon marriage which brought males and
females together forming one institution. It, therefore, accepted that in recognition
of that position when the wife’s succession opened

the class known as heirs of the husband was permitted to succeed as a result of
initial unity in marriage upon which the female merged in the family of her
husband”.

The court in the present case, rejected this argument, and added that the
discrimination in the section is only based on gender and not also on family ties.
The court analyzed the succession scheme of the male intestates under the HSA to
check the viability of the argument. It noticed that keeping the property within the
family wasn’t being envisaged; otherwise the property of a male Hindu wouldn’t
be inherited by daughters, sister’s sons and sister’s daughters, since they marry off
to homes of other people. It was thus observed that the only basis of this
classification was gender. It was further concluded that the Section is extremely
discriminatory in as much as the female’s property even if self acquired is not
inherited by her core heirs. Further a Hindu female who would expect to inherit
from the estate of another “receive(s) setback from distant relatives of husband of
deceased not even known to her or contemplated by her to be her competitors”.
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Therefore the Section is ultra vires the scheme of the Constitution and hence
invalid.

The question that judiciary shouldn’t interfere in personal laws was also brought
up. The court considered that it will be a blemish that even when the Hindu society
was thriving towards gender equality, the succession laws discriminate. It was said
that a legislation which discriminates only on the basis of gender, can be
questioned, as was done when 10 and 34 of the Indian Divorce Act were amended
(in the cases of Ammine E. J. v. Union of India and N. Sarda Mani v. G.
Alexander). Moreover, there have been progressive changes in the Hindu law
itself, e.g. the amendment in 6 giving women the right to coparcenary and deletion
of 23 which deprived women of sharing the dwelling house by the 2005
amendment. It was recognized that although there can be different laws for
different religions, there cannot be different laws for different sexes and thus the
judiciary has a right to interfere in the latter case.

Although a magnum opus, this judgment has been passed by a single bench of the
High Court and needs to be affirmed by the division bench. Once it is so done, it
will be a watershed judgment to bring in equality in the Hindu law. Once declared
unconstitutional, the government can use the recommendations of the 207th Law
Commission Report to bring reforms in the law. The report suggests two options,
one of bringing the intestate succession laws in parity with the males, and the other
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of dividing the property equally among the matrimonial and natal heirs taking into
note the ground reality that the woman ultimately leaves her natal place and works
under the constant support of her in-laws. Either of these options will be
progressive changes in the Hindu law.

2. (b) Stridhan and woman’s Estate

After the enactment of Section 14 under Hindu Succession Act, 1956 the women’s
estate has come to an end. Now all the properties acquired prior to, or after the
passage of the Act have become the absolute and unrestricted estate of a Hindu
female. Section 14 is retrospective in effect.

In fact this chapter has lost its significance now, yet a brief study of the chapter is
still required. Under the old Hindu law woman’s estates were of two types—

1. Stridhan, of which she was the absolute owner;

2. And women’s estate over which she had limited ownership.

Sources of Property:

There were two sources of acquisition of property—

1. Properties inherited from males.


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2. Property inherited by female from females.

Properties thus inherited, according to 13engal, Banaras, Mithila and Madras


schools gave the woman limited rights and after her death, it did not go to her own
heirs but to the heirs of absolute owner.

The chief exponents of woman’s estate were Katyayana and Brihaspati. According
to Brihaspati, “after husband’s death the widow who looked after the family was to
get his share, but she did not have the right to mortgage, or sell the property.
Katyayana was of the view that issueless widows should use the property of her
husband after his death along with other elders living together with them
throughout her life and after her death, husband’s heirs should inherit the
property”.

Meaning of Woman’s Estate and its Nature:

Widow, who is a limited heir, does not acquire the property for her life time but
she is the owner of the property thus inherited. But her right of alienation is limited
and after her death the property does not pass to her heirs rather to heirs of the last
owner thereof. The Privy Council has held that “her right to property is like that of
a limited owner. Although her status is like that of a owner, yet the rights are
limited but no other person possesses any vested interest in it during her lifetime”.

Some of the incidents of women’s estate are as under-


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1. She was owner of the properties inherited by her from her husband, but except
under the following conditions, she could neither sell the property nor could she
mortgage it nor could she alienate it—

(a) For legal necessity;

(b) For benefit to the estate;

(c) With the consent of the next reversionary;

(d) For religious and charitable purposes.

2. She absolutely represented the estate; she could institute a suit herself relating to
the estate and could defend it. Decrees passed against the estate were not only
binding upon her but also against the reversioners.

3. She could also institute a suit against third persons for possession of the estate,
but if she had allowed the adverse possession of third persons, then the
reversioners were not bound by such adverse possessions.

4. She had the rights over the estate as a prudent owner; being the owners of the
properties acquired as limited owner, she was entitled to administer the property as
a reasonable person and she had the power to exercise her rights over the property
liberally as that of the Karta of the joint Hindu family.
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5. The restrictions upon the right of disposition of the estate were neither qualified
nor dependent upon the existence or non-existence of the reversioners.

6. She could alienate her life interest in the estate through mortgage, sale or gift.

7. She could spend the whole income; she was not bound to share the income.

8. She could claim partition from the collaterals.

9. She was not under the control of her relatives.

10. Her right over the estate came to an end upon remarriage or on adoption a
child.

11. She could not transform the woman’s estate into some other form so as to
change its nature either by some declaration or by some act.

C. Principles of inheritance under Muslim Law (Sunni law)

(1) Nature of the Heritable Property:

Heritable property is that property which is available to the legal heirs for
inheritance. After the death of a Muslim, his properties are utilised0 for the
payment of funeral expenses, debts and the legacies i.e. wills, if any. After these
payments, the remaining property is called heritable property. Under Muslim law,
every kind of property may be a heritable property.
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For purposes of inheritance, Muslim law does not make any distinction between
corpus and usufruct or, between movable and immovable, or, corporeal and
incorporeal property. Under English law, there is some difference in the
inheritance of movable and immovable property.

But, under Muslim law there is no such distinction; any property, which was in the
ownership of the deceased at the moment of his death, may be the subject-matter of
inheritance.

Shia Law:

Under the Shia law, a childless widow is entitled to get her share (1/4) in the
inheritance only from the movable property left by her deceased husband.

(2) Joint or Ancestral Property:

The concept of a joint family or of coparcenaries property (as is recognised under


Hindu law) is not known to Muslims. Whenever a Muslim dies, his properties
devolve on his heirs in definite share of which each heir becomes an absolute
owner. Subsequently, upon the death of such heir, his properties are again inherited
by his legal heirs, and this process continues.

Thus, unlike Hindu law, there is no provision for any ancestral or joint-family
property. Accordingly, under Muslim law of inheritance, no distinction has been
made between self-acquired and ancestral property. All properties,
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whether acquired by a Muslim himself or inherited by his ancestors, are regarded


as an individual property and, may be inherited by his legal heirs.

(3) No Birth-Right:

Inheritance opens only after the death of a Muslim. No person may be an heir of a
living person (Nemoest haeres viventis). Therefore, unless a person dies, his heirs
have no interest in his properties. Unlike Hindu law, the Muslim law of inheritance
does not recognise the concept of ‘right by birth’ (Janmaswatvavad).

Under Muslim law, an heir does not possess any right at all before the death of an
ancestor. It is only the death of a Muslim which gives the right of inheritance to his
legal heirs

As a matter of fact, unless a person dies, his relatives are not his legal heirs; they
are simply his heir-apparent and have merely a ‘chance of succession, (spes
successions). If such an heir-apparent survives a Muslim, he becomes his legal heir
and the right of inheritance accrues to him. If the heir-apparent does not survive a
Muslim, he cannot be regarded an heir and has no right to inherit the property.

(4) Doctrine of Representation:

Doctrine of representation is a well known principle recognised by the Roman,


English and Hindu laws of inheritance. Under the principle of representation, as is
recognised by these systems of laws, the son of a predeceased son represents his
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father for purposes of inheritance. The doctrine of representation may be explained


with the help of the diagram given below. P has two sons A and B. A has got two
sons С and D and В has a son E.

During the life of P, his family members are his two sons (A and B), and three
grandsons (C, D and E). Unfortunately, В pre-deceases P, i.e. В dies before the
death of P. Subsequently, when P also dies, the sole surviving members of the
family of P are A and three grandsons, C, D and E.

Under the doctrine of representation, E will represent his pre-deceased father В and
would be entitled to inherit the properties of P in the same manner as В would have
inherited had he been alive at the time of P’s death.

But, Muslim law does not recognise the doctrine of representation. Under Muslim
law, the nearer excludes the remoter. Accordingly, in the illustration given above,
E will be totally excluded from inheriting the properties of P. Both, under Shia as
well as under Sunni law, E has no right to inherit the properties of P. The result is
that E cannot take the plea that he represents his pre-deceased father (В) and
should be substituted in his place.
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Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance.
That is to say, if there are two heirs who claim inheritance from a common
ancestor, the heir who is nearer (in degree) to the deceased, would exclude the heir
who is remoter. Thus, between A and E, A will totally exclude E because A is
nearer to P in degree whereas, E belongs to the second degree of generation. The
Muslim jurists justify the reason for denying the right of representation on the
ground that a person has not even an inchoate right to the property of his ancestor
until the death of that ancestor.

Accordingly, they argue that there can be no claim through a deceased person in
whom no right could have been vested by any possibility. But, it may be submitted
that non-recognition of principles of representation under the Muslim law of
inheritance, seems to be unreasonable and harsh. It is cruel that

a son, whose father is dead, is unable to inherit the properties of his grandfather
together with his uncle.

(5) Per-Capita and Per-Strip Distribution:

Succession among the heirs of the same class but belonging to different branches
may either be per-capita or per-strips. In a per-capita distribution, the succession is
according to the ‘number of heirs’ (i.e. heads). Among them the estate is equally
divided; therefore, each heir gets equal quantity of property from the heritable
assets of the deceased.
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On the other hand, in a per strip distribution, the several heirs who belong to
different branches, get their share only from that property which is available to the
branch to which they belong. In other words, in the stripital succession, the
quantum of property available to each heir depends on the property available to his
branch rather than the number of all the heirs.

Under Sunni law, the distribution of the assets is per-capita. That is to say an heir
does not in any respect represent the branch from which he inherits. The per-capita
distribution may be illustrated by the following diagram.

M has got two sons A and B. A has three sons, S1, S2 and S3. В has two sons S4 and
S5. When M dies there are two branches of succession, one of A and the other of B.
Suppose, A and В both die before the death of M so that the sole surviving heirs of
M are his five grandsons.

Now, under the per-capita scheme of distribution (as recognised under Sunni law)
the total number of claimants (heirs) is five and the heritable property would be
equally divided among all of them irrespective of the branch to which an heir
belongs.
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Therefore, each of them would get 1/5 of the total assets of M. It may be noted that
under Sunni law the principle of representation is recognised neither in the matter
of determining the claim of an heir, nor in determining the quantum of share of
each heir.

Shia Law:

Under the Shia law, if there are several heirs of the same class but they descend
from different branches, the distribution among them is per strip. That is to say, the
quantum of property inherited by each of them depends upon the property
available to that particular branch to which they belong. In the above-mentioned
illustration, A and В constitute two branches, each having 1/2 of M’s property.
Both, A and В pre-decease M.

But, the quantum of property available to each of their branch would remain the
same. Therefore, the surviving heirs of A namely, S1, S2, 53 would get equal shares
out of 1/2 which is quantum of property available to the branch of A. Thus S 1, S2
and S3 would get 1/6 each. Similarly, the quantum of property available to the
branch of В is also 1/2 but the descendants from this branch are only two.
Accordingly, the 1/2 property of В would be equally shared by S4 and S5.

Therefore, 54 and S5 would get 1/4 each. It is significant to note that for a limited
purpose of calculating the share of each heir, the Shia law accepts the principle of
representation. Moreover, under the Shia law this rule is applicable for determining
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the quantum of share also of the descendants of a pre-deceased daughter, pre-


deceased brother, pre-deceased sister or that of a pre-deceased aunt.

(6) Female’s Right of Inheritance:

Males and females have equal rights of inheritance. Upon the death of a Muslim, if
his heirs include also the females then, male and female heirs inherit the properties
simultaneously. Males have no preferential right of inheritance over the females,
but normally the share of a male is double the share of a female.

In other words, although there is no difference between male and female heir in so
far as their respective rights of inheritance is concerned but generally the quantum
of property inherited by a female heir is half of the property given to a male of
equal status (degree).

The principle that normally the share of a male is double the share of a female has
some justification. Under Muslim law, while a female heir gets (or hopes to get in
future) an additional money or property as her Mehr and maintenance from her
husband, her male counterpart gets none of the two benefits. Moreover, the male
heir is primarily liable for the maintenance of his children whereas, the female heir
may have this liability only in an extraordinary case.
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(7) A Child in the Womb:

A child in the womb of its mother is competent to inherit provided it is born alive.
A child in embryo is regarded as a living person and, as such, the property vests
immediately in that child. But, if such a child in the womb is not born alive, the
share already vested in it is divested and, it is presumed as if there was no such heir
(in the womb) at all.

(8) Primogeniture:

Primogeniture is a principle of inheritance under which the eldest son of the


deceased enjoys certain special privileges. Muslim law does not recognise the rule
of primogeniture and all sons are treated equally.

However, under the Shia law, the eldest son has an exclusive right to inherit his
father’s garments, sword, ring and the copy of Quran, provided that such eldest son
is of sound mind and the father has left certain other properties besides these
articles.

(9) Step-Children:

The step-children are not entitled to inherit the properties of their step-parents.
Similarly, the step-parents too do not inherit from step-children. For example,
where a Muslim H marries a widow W having a son from her previous husband,
the son is a stepson of H, who is step-father of this son.
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The step-father and step-son (or daughter) cannot inherit each other’s properties.
That step-child is competent to inherit from its natural father or natural mother.
Similarly, the natural father and natural mother can inherit from their natural sons
or daughters.

However, the step-brothers (or sisters) can inherit each other’s properties. Thus, in
the illustration given above, if a son (or daughter) is bom out of the marriage of H
and W, the newly born child would be a step-brother (or sister) of the son from
wife’s previous husband.

These sons or daughters are competent to inherit each other’s property. The step-
brothers or sisters may either be, uterine or consanguine. Muslim law provides for
mutual rights of inheritance between uterine and consanguine brothers or sisters.

(10) Simultaneous Death of two Heirs:

When two or more persons die in such a circumstance that it is not ascertainable as
to who died first (i.e. who survived whom) then, both of them cease to be an heir
for each other. In other words, where two or more heirs die simultaneously and, it
is not possible to establish as to who died first then

under Muslim law, all the heirs are presumed to have died just at one moment. The
result is that such heirs are regarded as if they did not exist at all; the inheritance
opens omitting these heirs.
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For example, A and В are each other’s legal heirs in such a manner that after the
death of any one of them, the surviving person would inherit the property of the
deceased one. But, both A and В die simultaneously say, in an aero plane crash,
and it could not be established as to who survived whom. Under Muslim law,
neither A would inherit В nor В would inherit A.

Thus, the legal heirs of A would inherit A’s property as if there was no В at all.
Similarly, the heirs of В would inherit B’s property as if A did not exist at all?

(11) Missing Persons:

According to the texts of Hanafi law, a missing person was supposed to have been
dead only after ninety years from the date of his birth; till then the inheritance of
his properties did not open. But, now this rule has been superseded by Sec. 108 of
the Indian Evidence Act, 1872 which provides as under:

“When the question is whether a man is alive or dead, and it is proved that he has
not been heard of for seven years by those who would naturally have heard of him
if he had been alive, the burden of proving that he is alive is shifted to the person
who affirms it”.

Accordingly, where a Muslim is missing for at least seven years and if it could not
be proved that he (or she) was alive then, that person is legally presumed to be
dead and the inheritance of his (or her) properties opens.
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It has been held by the courts that Hanafi rule of ninety years of life of a missing
person was only a rule of evidence and not any rule of succession; therefore, this
Hanafi rule must be taken as superseded by the provisions of Indian Evidence Act
1872.

(12) Escheat:

Where a deceased Muslim has no legal heir under Muslim law, his properties are
inherited by Government through the process of escheat. State is regarded as the
ultimate heir of every deceased.

(13) Marriage under the Special Marriage Act, 1954:

Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he
ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of
such a Muslim his (or her) properties do not devolve under Muslim law of
inheritance. The inheritance of the properties of such Muslims is governed by the
provisions of the Indian Succession Act, 1925 and Muslim law of inheritance is not
applicable.

Unit-IV: - Muslim Law of Property


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The Muslim Law of Succession is a combination of four sources i.e. the Holy
Quran, Sunna (practice of prophet), Ijma, (Consensus of the learned men of the
community over the decision over a particular subject matter), Qiya (deductions
based on analogy on what is right and just in accordance with good principles).
Muslim law recognises two types of heirs, firstly, sharers, the ones who are entitled
to certain share in the deceased’s property and secondly, Residuaries, the ones who
would take up the share in the property that is left over after the sharers have taken
their part.

4(1)- Hiba

Essential Conditions for a Valid Gift (Hiba) under Muslim Law

The essential conditions for a valid gift (Hiba) under Muslim Law are:

(I) Declaration,

(II) Acceptance, and

I. Declaration of Gift:

Declaration is a statement which signifies the intention of the transferor that he


intends to make a gift. The person who declares that he is transferring his property
through a gift is called donor. The person in whose favour the gift is made is called
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donee. Declaration is, therefore, the manifestation of the intention of the donor to
divest his ownership in the property and to vest in the done

Oral or Written:

A Hiba may be made orally. Writing is not necessary. The donor may declare the
gift of any kind of property, of any valuation, either orally or write a deed. Under
Muslim Law, writing is not necessary for the validity of gift whether property is
movable or immovable. Section 123 of the Transfer of Property Act which
provides that gift of immovable property must be in writing and registered, is not
applicable to gift made by Muslims.

In Md. Hesabuddin v. Md. Hesaruddin, a Muslim woman made a gift of her


immovable properties to her son. The gift was written on ordinary paper and was
not registered. The Guahati High Court held that the gift was valid because under
Muslim Law writing and registration is not any essential condition for the validity
of gifts.

In llahi Samsuddin v. Jaitunbi Maqbul, the Supreme Court held that under
Muslim Law, declaration as well as acceptance of gift may be oral whatever may
be the nature of property gifted. Where a gift is made in writing, it is called
Hibanama. This gift-deed (Hibanama) need not be on stamp-paper and also need
not be attested or registered.
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Express Declaration:

The declaration must be made in clear words. A declaration of gift in ambiguous


words is void. That is to say, the declaration must expressly suggest that the donor
is relinquishing his ownership completely. In Maimuna Bibi v. Rasool Mian, the
Patna High Court has held that while oral gift is permissible under Muslim law, to
constitute a valid gift it is necessary that donor should divest himself completely of
all ownership and dominion over subject (i.e., property) of gift.

The court observed that donor should express his intention of divesting the
ownership in express and clear words. According to Macnaghten, “A gift cannot be
implied. It must be express and unequivocal, and the intention of the donor must be
demonstrated by his entire relinquishment of the thing given, and the gift is null
and void when he continues to exercise any act of ownership over it.”

Free Consent:

The declaration for the gift must be made voluntarily. Consent of the donor in
making the gift must be a free consent. If the donor makes the gift under threat of
force, coercion, undue influence or fraud, the gift is not valid.

By voluntary declaration we also mean that the donor has fully understood the
nature of the transaction and there was no external influence in his taking the
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decision for making the gift. Where the donor claims that he or she had declared or
signed the gift- deed without understanding the consequences, the act of donor
cannot be said to be a free act and the gift is void.

But, it must be noted that want of understanding or undue influence in making a


gift must be proved very strictly. Mere fact that the donor is an illiterate person or
is a woman in purdah is not sufficient to establish that the donor could not
understand the legal implications of his declarations or that there was an undue
influence.

Bona fide Intention:

Gifts must be made honestly, i.e. with a bona fide intention to give the property to
the donee. A declaration of gift with an intention to defraud the creditors of the
donor is voidable at the option of such creditors. However, the mala fide or
fraudulent (dishonest) intention of the donor cannot be presumed only by the fact
that he incurs certain debts. The mala fide intention must be fully established.

Competency of the Donor:

Declaration of a gift is made by the donor. Donor must be a competent person.


Every Muslim is competent to make a gift if he has capacity as well as the right.

Capacity:
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For a valid Hiba, the donor must be (i) adult (ii) of sound mind, and (iii) Muslim.

(i) Adult:

At the time of making the gift the donor must be adult. He must have attained the
age of majority i.e., must be of eighteen years. If a minor is under the supervision
of the Court of Wards, the majority is attained on the completion of twenty-one
years. Thus, a Muslim becomes major for making a gift only upon attaining the age
of eighteen or twenty-one years, as the case may be. A gift by a minor is void.

(ii) Sound Mind:

The donor must also be of sound mind. An insane person has no capacity to
understand the legal implications of his or her activities. However, a declaration of
gift by a person of unsound mind during ‘lucid interval’ is lawful and the gift is
valid.

As discussed earlier, ‘lucid interval’ is a temporary period during which a person


of unsound mind acquires capacity to understand the legal consequences of his or
her activities, i.e. becomes a normal human being.

(iii) Muslim:

At the time of making the declaration of gift, the donor must be a Muslim. Where
the donor is a non-Muslim, the gift is not Hiba. A gift made by a non-Muslim is
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regulated by the Transfer of Property Act, 1882 and rules of Muslim personal law
are not applicable to it. If at the time of making of gift the donor is Muslim but,
after completion of gift he renounces Islam and becomes non-Muslim, the gift
continues to be a valid gift under Muslim law.

Right:

Capacity alone is not sufficient. The donor must also have the right to make the
gift. One may have the capacity, i.e. he may be a Muslim, adult and of sound mind
yet, he cannot lawfully gift away the properties of others because he has no such
authority.

A donor has a right to gift only those properties of which he is the owner. In the
transaction of gift nothing less than the absolute interest or, the ownership of
property is transferred. Therefore, it is necessary that donor himself has the title
which he intends to pass on to the donee. A person who is simply a tenant in a
house, cannot gift that house because he is not the owner of that house.

There are certain properties which are regarded as non-transferable under Section 6
of the Transfer of Property Act, 1882. Any kind of transfer including gift, of a non-
transferable property is void. A person who owns such properties has no right to
alienate them.
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Therefore any person including a Muslim has no right to declare a gift of non-
transferable properties. For example, if a property has been acquired by the
Government, the owner of that property has no right to make a gift of that property.
It may be noted that a Muslim has a right to gift away all the properties which are
under his ownership at the time when declaration of gift is made by him.

II. Acceptance of Gift:

Gift must be accepted by the donee. Donee is that person in whose favour the gift
is made. Gift is a bilateral transaction. It takes place between two persons. In the
transfer of property by way of gift, the first step is the declaration of gift by the
donor and the second is the acceptance by the donee. Acceptance signifies the
intention of the transferee (donee) to take the property and become its owner.
Without acceptance a gift is not complete.

Competency of the Donee:

The donee, in whose favour the property is gifted, may be any person in existence.
For being a competent donee, the only essential requirement is that he or she must
be in existence at the time of the declaration. In other words, the donee must be a
living person on the date of the transfer. Donee may be a person of any religion,
sex, age or state of mind.
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Thus, a Muslim may make a lawful Hiba in favour of a Hindu or a Christian or any
non-Muslim. Similarly, a Hiba in favour of a female or minor or an insane person
is also valid. Specific mention of the following persons would explain the
competency of a donee under Muslim law.

Child in Womb:

A child in mother’s womb is competent donee provided it is born alive within six
months from the date on which gift were made. A child in the mother’s womb i.e.,
child en ventre sa mere is a person in existence. Therefore, the child in its mother’s
womb is a competent donee. Although the child in mother’s womb has no wordly
existence yet, in the eyes of law it is regarded as a living person. However, the
birth of such child is not certain.

The child may die in the womb or abortion may take place. Therefore a gift may be
made in favour of a child in the womb but the child must be born alive. If after the
gift an abortion takes place or the child dies in the womb, the gift already made
becomes void. Accordingly, under Muslim law, a gift in favour of a child in the
womb is valid provided such child is born alive within six months from the date on
which the gift was made.

It may be noted that it is absolutely necessary that the child must be in existence in
its mother’s womb when the declaration of gift is made. If the child is not in
mother’s womb on the date when declaration is being made, the gift is void ab
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initio and cannot be validated when conception takes place on a later date and a
living child is born subsequently.

For example, A makes a gift of his properties in favour of B’s unborn child. В is a
bachelor on the date of declaration but soon after he gets married. A son is

born to B. The gift is void and it cannot be validated and enforced in favour of B’s
son because he was not in existence even in his mother’s womb when the gift was
made. In other words, gift in favour of future donee i.e. a donee who has no
existence at all (not even in mother’s womb) is void.

Juristic Person:

Juristic persons are also competent donee and a gift may be made to them. In the
eyes of law, the term ‘person’ means not only the human person but it also
includes a juristic or legal person. Juristic or legal persons have no biological
existence but for the sake of convenience and to avoid practical difficulty, law
confers rights and duties to such entities.

That is to say, they are legally presumed to be persons. For example, a corporation,
registered firm, company and an University is a juristic person. A jursitic person is
legally presumed to be adult and of sound mind. Thus, a gift in favour of a school
or a mosque is valid.
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Where a Muslim donates money for the repair or maintenance of mosque or an


institution, the gift is valid. The acceptance of a gift in favour of an institution or
any other juristic person is made by its manager or any other competent authority.

Minor and Insane:

Gift to a minor or a person of unsound mind is valid. Minor and insane person may
not have mature understanding but they are persons in existence. Therefore, a
minor or a person of unsound mind is a competent donee. But such gifts must be
accepted by the guardian of that minor or insane donee.

A gift to a minor or to a person of unsound mind is void without acceptance by the


guardian. For purposes of acceptance of a gift, the guardians of a minor or of
insane person are as under:

(i) Father,

(ii) Father’s executor,

(iii) Paternal grand-father,

(iv) Paternal grand-father’s executor.

These guardians are in the order of priority. That is to say, in the presence of father
the paternal grand-father is not entitled to accept the gift and so on. In the absence
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of the abovementioned persons, a gift on behalf of minor or insane is accepted by


the ‘guardian of the property’.

It is significant to note that under Muslim law, mother has not been regarded as
‘guardian of property’ of her minor children. Therefore, she is not entitled to
accept the gift on behalf of her minor child.

A guardian, who accepts the ownership of the gifted property on behalf of minor or
the insane, takes also the possession of the property. When a guardian himself
makes a gift to his ward, his declaration of gift is made as owner of the property,
and acceptance by him is in the capacity of guardian of the minor or insane person.

Two or More Donees:

The donee may be an individual or a class of persons. When the donee is a group
of persons, all the persons constituting that group must be ascertainable. That is to
say, they must be known as to who are the donees. Gift to two or more donees
must be accepted by all of them separately.

If the share of each donee is clearly defined, the donor need not separate or divide
these shares and give possession to each of them. However, a gift to two or more
donees without specifying their respective shares and without giving them separate
possession has also been held to be valid. In such cases the donees take the
property as tenant-in- common.’
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III. Delivery of Possession:

Delivery of possession is an act by which a donor puts the donee in possession of


the property. Under Muslim law, a gift is complete only after the delivery of the
possession. Therefore, the gift takes effect from the date on which the possession
of the property is delivered to the donee; not from the date on which the
declaration was made.

The donor must divest himself of not only the ownership, but also of possession in
favour of the donee to complete the gift. Delivery of possession is so important in
the Muslim law of gifts (Hiba) that without delivery of possession to the donee, the
gift is void even if it has been made through a registered document.

Muslim law does not presume transfer of ownership rights from donor to donee
without the delivery of possession of the property. Importance of delivery of
possession has been given in Hedaya as under:

The possession of a property is necessary in order to establish a right of property in


the gift because right of property is not established in a thing given merely by
means of the contract (i.e. declaration and acceptance).

The mode of delivery of possession, i.e., how the property is to be transferred,


depends upon the nature of the property gifted. All that is legally required for a
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donor to constitute the delivery of possession is to do something by which a donee


gets the physical control over property.

A donee is said to be in possession of a property “when he is so placed with


reference to it that he can exercise exclusive control over it, for the purpose of
deriving from it such benefit as it is capable of rendering or as is usually derived
from it.” A delivery of possession may be either (i) actual or (ii) constructive.

(1) Actual Delivery of Possession:

Where a property is physically handed over to the donee, the delivery of


possession is actual. If the physical possession of a property is possible, its gift is
not complete without actual delivery of possession. But actual delivery of
possession is possible in respect of only those properties which are capable of
being physically possessed and given. Generally, only the tangible properties may
be actually delivered to the donee.

A tangible property may be movable as well as immovable. For example jewels,


money, vehicle etc. is tangible movable property and house, land etc. is tangible
immovable property. Where the property is movable, it must be actually
transferred and handed over to the donee; a mere entry in a register or account
book is not sufficient and does not constitute a delivery of possession.
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Similarly, where the property is immovable, its actual delivery of possession is


also necessary to validate the gift. But the immovable properties cannot be picked
up and handed over to the donee. Therefore, if the gifted property is a land, house
or a garden, the donor may deliver the possession by giving up all dealings with
the property and by placing it at the complete disposal of the donee so that the
donee may use it as he likes.

Thus, where the donor makes a gift of his house in which he is residing, he must
vacate it and ask the donee to live in it. Delivery of possession in case of a garden
may be completed by giving to the donee full control over it, including all rights to
enjoy the fruits and the flowers. Similarly, where the subject matter of a gift is an
agricultural land, its delivery may be made by allowing the donee to plough the
field or to reap the crop.

Under Muslim law, actual physical transfer of the property is so very much
necessary that even the mutation of names or entry in official papers and records
would not constitute the delivery of possession. Where the mutation proceedings
have started but the physical possession could not be given and the donor dies, the
gift fails for want of delivery of possession.

However, in such cases if it is proved that although the mutation proceedings were
not complete but the donee has already taken possession of the property, the gift
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was held valid. Similarly, where a property is held by some other person adversely
to the donor, the donor must first of all take possession from him and thereafter
pass it on to the donee.

However, as has been discussed in the following lines, if the donor is unable to get
the possession from a trespasser, a constructive or symbolic delivery of possession
is sufficient to constitute a valid gift.

(2) Constructive Delivery of Possession:

Constructive delivery of possession means a symbolic transfer of property.


Delivery of possession is constructive if property is not actually delivered but the
donor has done some act due to which it is legally presumed that the possession
has been given to the donee.

Where the property is of such a nature that its physical possession is not possible
and it cannot be delivered actually, a constructive delivery of possession is
sufficient to complete the gift. Constructive delivery of possession is sufficient to
constitute a valid gift in the following two situations:

(i) Where the property is intangible property.


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(ii) Where the property is tangible property but, under the situations, its actual or
physical delivery of possession is not possible.

Intangible Properties:

It is interesting to note that there are certain properties which have no physical
existence i.e., they cannot be perceived through senses. Such properties are called
intangible or incorporeal properties. Although an incorporeal property cannot be
possessed, but it can be owned and its owner may make a lawful gift of it.

Therefore, in the gifts of incorporeal properties, only constructive delivery of


possession is possible which, under the law, fulfils the requirement of a valid gift.
Any such act of the donor which indicates a clear intention that he has relinquished
all the benefits of the property gifted may be regarded as constructive delivery of
possession.

In the case of chattels and land or corporeal (tangible) property generally, actual
delivery of possession is necessary. But in the case of incorporeal property and
actionable claims, where the property is not susceptible of physical possession, the
donor must do everything in his power to show a clear intention of transferring the
property effectively to the donee and of relinquishing entirely his own dominion
over the property.
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All that is required to constitute a constructive delivery of possession is an ‘overt


act’ by the donor. Therefore, the modes of constructive delivery of possession may
differ from case to case. Thus, where a gift is made of certain Zamindari rights, the
delivery of possession is legally presumed by mutation of names i.e., by change of
names in the revenue records.

A house, in which tenants are living, may be gifted by the landlord without forcing
the tenants to vacate and without giving actual possession to the donee. If the
donor, i.e. the landlord has delivered the title deeds of the house to the donee, and
has instructed the tenants that now the donee has become their new landlord, he
has fulfilled the condition of the delivery of possession and the gift is valid.

The same rule would also apply where an immovable property, in the possession of
a lessee, is gifted by the owner (lessor) to the donee. A Government promissory
note may be transferred lawfully only by an endorsement in favour of the
transferee and the delivery of that endorsed promissory note to the transferee.

Therefore, in the gift of a Government promissory note if the donor, after making
an endorsement, hands it over to the donee, the delivery of possession is complete
and the gift is valid. In certain cases it is possible that under Muslim law the donor
reserves for himself the usufruct or the benefit of the property gifted. In the gifts
with such reservations, the possession of the property remains with the donor so
that he may enjoy the benefits of the property while the ownership is with donee.
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Therefore, in cases where a donor gifts away the corpus but reserves the usufruct
for himself, the delivery of possession is presumed if, after the date of the gift, the
donee makes payment of the Government revenue or other dues, in respect of the
property gifted to him. The payment of revenue by the donee amounts to
constructive delivery of possession and the gift is complete.

It must be noted that an act of the donor may amount to a constructive delivery of
possession only where such an act is sufficient to give to the donee the rights over
the gifted property. In the leading case, Aga Mohamed Jaffer v. Koolsom Beebee, a
husband gave to his wife a bank receipt issued in his favour from a bank where he
had deposited some money.

After giving the bank receipt to his wife, he said, “After taking a bath, I shall go to
the bank and transfer the account in your name”. Unfortunately, the husband died
before he could transfer the money in favour of his wife.

The widow as a donee claimed the amount on the ground that there was a
declaration and acceptance of the Hiba and there was also a delivery of possession
because the husband (donor) had handed over the bank-receipt to her.

But, the Privy Council held that giving of the bank-receipt to the wife does not
amount to a constructive delivery of possession because this was not an
appropriate method of transferring the account. If the account could have been
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transferred, the delivery of possession could have been construed; the widow had
no right to draw the money without the transfer of account in her name.

Moreover, it was found that the margin of the receipt contained the words, ‘not
transferable’. Accordingly, the court held that Hiba in favour of the widow was not
valid because there was no delivery of possession, sufficient to give rights to the
donee, under the la

4(b): Wasiyat : concept, formalities

Law of Wills in Muslim Law Muslim:-

When a person dies his/her property devolves upon his/her heirs. A person may die
with or without a will (Testament). If a person dies leaving a will i.e. dies intestate,
the property is distributed among his/her heirs according to the rules of
Testamentary Succession. In other words, the property is distributed as per the
contents of the testament or will. On -the other hand. if a person (lies leaving no
testament (will) i.e. dies intestate, the rules of intestate Succession are applied for
distribution of the property among heirs.

Will – Meaning: - A ‘Will or Testament’ is a document or an instrument. Which


declares or contains the intention of the owner of the property as to how his
property is to be disposed of (distributed) after his/her death. The will takes effect
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on the death of the person making it. It can be revoked by the maker, before his
death.

Testator: – The person, who makes/creates a Will, is called ‘Testator’.

Legate: – The person/persons, in whose favour, the will is created is called


‘Legatee

Executor: - The testator, while executing the will, may appoint a person to execute
the will in accordance with its contents (after his death). He is called ‘Executor’.

In the absence of the appointment of Executor by the testator, the Court may
appoint a person called ‘Administrator’ to execute thee will.

Codicil: - Codicil is an instrument math in relation to will. It is a part of the will.

Abatement of Legacies:- When a testator bequeaths more than one third of the
property, and the heirs refuse to give consent, it is to be adjusted accordingly.

Lapse of Legacy: - If the Legatee does not survive, the bequest (Property under
will) is distributed as if there is no will.
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Definition: - “A will or Wasiyat” is defined as ‘an instrument by which a person


makes a disposition of his property to take effect after the death and which is in its
own nature ambulatory and revocable during his life’.

Essentials/Requisites of will: – A will to be valid, the following conditions are to


be satisfied.

1. Capacity. /Competence of Testator;

2. Competence of Legatee;

3. Subject Matter:

4. Testamentary Capacity.

1. Capacity of Testator: – According to Muslim Law, any person, who is a major


and is of sound mind can make a will. However, a minor can make a will subject to
ratification on attaining majority. According to Muslim Law, the age of Majority is
15 years, but it is not applicable to the wills in India.

2. Competence of Legatee: – Any person having capacity to hold the property can
be a legatee. The Legatee may be a Muslim or a Non-Muslim. Man or woman a
major or a minor or even a child in the womb provided the child is born within 6
months of the death of the testator.
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3. Subject flatter: - A Muslim can bequeath any property movable or immovable,


corporeal or incorporeal, which must be in existence and transferable at the time of
testator’s death.

4. Testamentary Capacity: - A Muslim cannot dispose of by will more than 1%3


of the net assets after allowing (meeting) for the debts and funeral expenses of the
testator (under both Hanafi Law and Shia Law). The remaining 2/3 share should be
made available for distribution amongst the heirs. Even for bequeathing the 1/3rd
share, the Muslim has to obtain the consent of the other heirs. Relevant Case on
this point is: Gulam vs.Gulam Hussain, AIR 1932 PC 81 Held in this case that,
bequest in favour of heirs without the consent of other heirs is invalid.

An heirless Muslim can bequeath his entire property. In case, his wife is the only
heir, he can bequeath all his properties minus the share of his wife (as per Koranic
table).

Bequeathable One-third:– It means a third of the estate of the testator as is left


after the payment of the funeral expenses, other charges and debts of the deceased
(testator). All schools of Muslim Law except the Ithana Ashari School lay down
that bequest of more than one third unless consented to by the heirs is invalid or a
custom or usage so permits.

Formalities of Wills: – Muslim law requires no specific formalities for creation of


a will. It may be made in writing or oral or even by gestures. Though it is in
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writing, it need not be signed by the testator and attested by the witnesses (Ramjilal
vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the testator
should be clear and unequivocal.

Construction of Will: - A Muslim will is to be construed in accordance with the


rules of construction of the will as laid down in Muslim Law. Will is a document
created by any person during his life time, which operates after his death. The
contents of the will arc to be implemented to fulfill the intention or desire of the
testator after his death. Sometimes, the contents may not be clear. In such a case, it
may be interpreted as per the option of the heirs.

For instance, if the testator, to his will, bequeaths one house to heir A and the other
for heir B without any specification. Then, the heirs have to make necessary
arrangement.

Revocation of Will: - A Muslim will or any part thereof may be revoked by the
testator at any time before his death. The revocation may be express (oral or in
writing) or implied. A will may be expressly revoked by tearing it off or by
burning it. Any act, which results in the extinction of the subject matter or
proprietary rights of the testator, will impliedly revoke the will. For instance, if the
testator transfers the same property by sale or gift subsequently to another. It
amounts to implied revocation.

4(c) WAQF
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INTRODUCTION
Literal meaning of the word waqf is ‘detention’. In the language of law, waqf
means detention of a property so that its produce or income may always be
available for religious or charitable purposes. When a waif is created, the property
is detained or, is ‘tied up’ forever and thereafter becomes non-transferable.
Meaning and various types of the waqf is defined in this projects. There is object
behind making a wakf. Office of Mutawalli (manager) is very important. There are
many modes to create waqf, which are dealt in this project. Wakf is binding and
enforceable by law, it has legal consequences which are dealt in this project. The
law of waqf is “the most important branch of Mohammedan Law for it is
interwoven with the entire religious life and social economy of Muslims.

MEANING
Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the
ownership of dedicated property is taken away from the person making waqf and
transferred and detained by God. Details are given in old texts about wakf made by
prophet. It is observed in M Kazim vs A Asghar Ali that technically, it means a
dedication of some specific property for a pious purpose or secession of pious
purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is the detention
of a specific thing that is in the ownership of the waqif or appropriator, and the
devotion of its profits or usufructs to charity,
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ESSENTIAL CONDITIONS FOR A VALID WAQF

1. Permanent dedication: The dedication of waqf property must be permanent and


Wqif himself must divot of such property and gave it for any purpose recognized
by Muslim law, like religious, pious or charitable. If the wakf is made for limited
period it won’t be a valid wakf and also there should be no condition or
contingency attached otherwise it will become invalid.

The motive behind Wakf is always religious. In Karnataka board of wakfs v.


Mohd. Nazeer ahmad , the dedication of house by a Muslim for use of all travelers
irrespective of religion and status was held not to be a Wakf on the ground that
under Muslim law a Wakf should have a religious motive and it should be only for
benefit of Muslim community, and if it is secular in character, the charity should
be to the poor alone. When a Wakf is constituted, it is presumed that a gift of some
property has been made in favor of God. This
is ensured through a legal fiction that waqf property becomes the property of God.
2. Competency of the Waqif: Who Can Create a Waqf? : The person who
constitutes the waqf of his properties is called the ‘founder of waqf or, Waqif. The
waqif must be a competent person at the time of dedicating the property in waqf.
For being a competent waqif a person must possess the capacity, as well as the
right to constitute the waqf. As regards capacity of a Muslim for making a waqf,
there are only two requirements: (i) soundness of mind and, (ii) majority.
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A person of unsound mind has no capacity to create any waqf because he or she is
incapable of knowing the legal consequences of the transaction. Waqf constituted
by an insane or minor person is void.
Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the
principles of Islam’, he need not be a Muslim by religion. The Madras and Nagpur
High Courts have held that a non--Muslim can also create a valid waqf

provided the object of waqf is not against the principles of Islam. Patna High Court
has also held that a valid waqf may be constituted by a non- Muslim. However,
according to Patna High Court a non-Muslim waqf may constitute only a public
waqf; a non-Muslim cannot create any private waqf.

3. Right to make waqf: A person having the capacity but no right cannot constitute
a valid waqf. A widow cannot constitute any waqf of the property which she holds
in lieu of her unpaid dower
Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to
prove that she had exercised her independent mind in constituting the waqf and had
fully understood the nature of the transaction.
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Amount of property: a person can dedicate entire property but in case of


testamentary wakf more than one third of his property cannot be dedicated.

Kind of WAQF:--Generally there are two types of Wakf.

1. Public Wakf
2. Private Wakf
Categories of waqf from the perspective of its purpose:

•Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children
and their off-spring. However, these beneficiaries cannot sell or dispose of the
property subject-matter of waqf.

• Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy.
Examples of beneficiaries include the poor and the needy. Waqf khayri is typically
used to finance mosques, shelters, schools, and universities. This is meant to help
financially-challenged individuals and communities.

• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar
to waqf khayri, though waqf al-sabil is usually used to establish and construct the
public utility (mosques, power plants, water supplies, graveyards, schools, etc).

• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at
times of emergency or unexpected events that negatively influence the livelihood
and well-being of a community of people. For example, waqf may be assigned to
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the satisfaction of specific needs such as medication for sick people who are unable
to pay medication expenses and education of poor children. Waqf al-awaridh may
also be used to finance maintenance of the utilities of a village or neighborhood.

Categories of waqf from the perspective of its output nature

• Waqf mubashar: the waqf assets are used to generate services to the benefit of
some charity recipients or other beneficiaries. Examples of such assets include
schools, utilities, etc.Mutawalli is nothing but the manager of a wakf. He is not the
owner or even a trustee of the property. He is only a superintendent whose job is
the see that the usufructs of the property are being utilized for valid purpose as
desired by the wakif. He has to see that the intended beneficiaries are indeed
getting the benefits. In Ahmad Arif vs Wealth Tax Commissioner , SC held that a
mutawalli has no power to sell, mortgage, or lease wakf property without prior
permission of the court or unless that power is explicitly provided to the mutawalli
in wakfnama.

Who can be a mutawalli – A person who is a major, of sound mind, and who is
capable of performing the functions of the wakf as desired by the wakif can be
appointed as a mutawalli. A male or female of any religion can be appointed. If
religious duties are a part of the wakf, then a female or a non-muslim cannot be
appointed.In Shahar Bano vs Aga Mohammad, Privy Council held that there is no
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legal restriction on a woman becoming a mutawalli if the duties of the wakf do not
involve religious activities.

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