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CORE COURSE
209 FAMILY LAW - II
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academic pursuit. Follow URLs for details. Dedicated to students of the subject. No
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Gujarat University Syllabus is in BOLD text. References to questions listed herein below,
are to such questions which were asked in Gujarat University examinations.
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Thank you.
Refer (not in any particular order) :
Bare acts are a good source, in any subject of law.
http://www.hrln.org/hrln/images/stories/pdf/TrainingModuleRightsOfWomenUnderT
hePersonalLawsInIndia.pdf <--- By WJI Team & Varsha C. Sinha, Human Rights
Law Network, New Delhi
http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U5_Legal_Studies.pdf
Family Law II Notes by Mohit Diwan -
https://www.scribd.com/document/262979857/Family-Law-II-Notes
http://kuklawnotes.blogspot.in/p/family-law.html
http://14.139.60.114:8080/jspui/bitstream/123456789/738/23/Family%20Law.pdf
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CONTENTS
209 FAMILY LAW II
Module-2) Inheritance.
Module-3) Gifts.
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1.1) Mitakshara joint family <Why Dayabhaga joint family is not in syllabus ?>
1.2) Mitakshara coparcenary
1.2.1) formation and incidents
1.2.2) Property under Mitakshara law-separate property and
coparcener/ property
1.3) Dayabhaga coparacenary
1.3.1) formation and incidents
1.3.2) Property under Dayabhaga law
1.4) Karta of the joint family - his position, powers privileges and obligations
1.5) Alienation of property - separate and coparcenary.
1.6) Partition and re-union.
1.7) Joint Hindu family as a social security institution and impact of Hindu
Gains of Learning Act and various tax laws on it.
GO TO CONTENTS.
MODULE-1 QUESTIONS :
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Explain the self acquired property and state various mode by which it can be
acquired under the Hindu Law. (Oct-2012, Apr-2016)
What is partition ? Discuss the methods of partition and which properties are liable to
partition and which properties can not be partitioned ? (Apr-2012, Oct-2012, Apr-2013,
Mar-2014, Mar-2015)
What is partition? Explain how partition may be affected under Hindu law. (Apr-2016)
Write short note : Re-opening and Re-union of Partition. (Mar-2015)
Discuss : Joint Hindu family as a social security institution and impact of Hindu
Gains of Learning Act and various tax laws on it.
Write short note : Mahant and Sevayat. (Apr-2012, Mar-2015)
GO TO CONTENTS.
MODULE-1 ANSWERS :
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self-acquired properties,
Applicability of Hindu Succession Act 1956 : The Hindu Succession Act applies
to :
(a) to any person, who is a Hindu by religion in any of its forms or developments
including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya
Samaj.
(b) to any person who is Buddhist, Jain or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion
unless it is proved that any such person would not have been governed by the
Hindu law or by custom or usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been passed.
The following persons are considered as Hindus, Buddhists, Jains or Sikhs by
religion :
(a) any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jains or Sikhs by religion.
(b) any child, legitimate or illegitimate one of whose parent is a Hindu, Buddhist,
Jain or Sikh by religion and who is brought up as a member of the tribe,
community, group or family to which such parent belongs or belonged.
(c) any person who has converted or re-converted to the Hindu, Buddhist, Jain
or Sikh religion.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
Write short note : Difference between Hindu Undivided Family and coparcenery.
(Apr-2012, Apr-2013)
Answer :
Refer :
https://taxworry.com/what-is-hindu-coparcenary-huf/
http://www.srdlawnotes.com/2017/01/distinction-between-joint-family-and.html
https://www.lawctopus.com/academike/interest-of-hindu-women-in-coparcenary-
property-under-hindu-succession-act-2005/
http://www.shareyouressays.com/117190/what-are-the-structural-differences-
between-mitakshara-and-dayabhaga-coparcenaries
From following discussion it is apparent that a Hindu coparcenary is a narrower term
than a Hindu joint family.
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Under the Hindu Law there are two distinct concepts being those of
(i) A Hindu Undivided Family and
(ii) A Hindu coparcenary.
(i) Hindu Undivided Family or an HUF :
<Note that for whatever reason Dayabhaga joint family is not in syllabus.
HUF simply means a Hindu family consisting of all persons lineally descended
from a common male ancestor together with their wives and unmarried daughters.
Thus, the term Family signifies group of people or plurality of members mutually
related by blood or by marriage or by adoption.
Since 2005 amendment in Hindu Succession Act 1956, neither is it necessary that
there must be two existing male members to constitute a Hindu joint family nor is
it necessary that there must be at least one existing male member in the family to
constitute a HUF.
(ii) A Hindu coparcenary :
A Hindu coparcenary, under Mitakshara School of Hindu Law, consists of a common
male ancestor together with his lineal descendants in the male line within three
generations (degrees) next to him or within four generations/degrees inclusive
of such ancestor, in unbroken line of male descent.
No coparcenary can commence without, a common male ancestor, though after his
death, it may consist of collaterals like brothers, uncles and nephews, cousins, etc.
Thus, a Hindu coparcenary will include a common male ancestor, his sons, his
grandsons and his great-grandsons.
These male persons, three generations next to the holder of joint/ coparcenary
property are coparceners or the members of Hindu coparcenary (under Mitakshara
School) and they acquire by birth an interest in the coparcenary property.
A coparcener has a right to enforce partition of coparcenary property.
Coparcenary is purely a creation of law that cannot be created by act of parties,
except by adoption.
In order to be able to claim a partition, it does not matter how remote from the
common ancestor a person may be, provided he is not more than four degrees
removed from the last male owner who has himself taken an interest by birth.
1 Both Males and Females are Only male member are the members
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Conclusion :
Hindu coparcenary is certainly narrower and different than a HUF. Coparcenary is a
narrow body of persons within a joint family.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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the common stock, or (iv) property which represents accretions to such property.
However, under the Mitakshara law, the children of the coparceners take interest by
birth in the coparcenary property.
while under the Dayabhaga law, every coparcener takes a definite share in the
coparcenary property. And like his separate property, it passes by succession to his
heirs and not by survivorship to the remaining coparceners.
Each coparcener takes a defined share :
The essence of a coparcenary under the Mitakshara law is unity of ownership.
On the other hand, the essence of a coparcenary under the Dayabhaga law is unity
of possession, and there is no unity of ownership at all.
Fluctuating share and fixed share :
In the Mitakshara system, a coparcenar has a fluctuating share, which fluctuates
with births and deaths in the family.
The ownership of the coparcenary property, under the Dayabhaga system, is not in
the whole body of coparceners. Rather, every coparcener takes a defined share in
the property, and he is the owner of that share. Even before a partition of the
property, a coparcener under the Dayabhaga system can say with certainty that he
is entitled to a particular share (say, for example, 1/3 or 1/4) of the property.
No right of survivorship :
As every coparcener under the Dayabhaga law takes a defined share of the
coparcenary property, on his death, his share will pass to the heirs, and not to the
other coparceners by survivorship.
Absolute power of coparcener to dispose of his share :
In Mitakshara, a coparcenar ask for partition of the joint property, but can not
alienate his share by sale or mortgage.
Since every coparcener under the Dayabhaga law takes a defined share of the
coparcenary property, it follows that a coparcener can alienate his share by sale or
mortgage or dispose it of by gift or by will, in the same manner as he can dispose
of his separate property.
Enjoyment power of coparcenary property :
In Mitakshara laws, a coparcenar does not get exclusive enjoyment of joint
property.
Since every coparcener under the Dayabhaga law takes a definite share in the
coparcenary property, he is entitled to make any use he likes of the portion of the
coparcenary property in his possession. It has been held that he can even lease out
his share and put the lessee in possession thereof.
Right to enforce partition :
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As under the Mitakshara law, so also under the Dayabhaga law, every adult
coparcener has a right to call for and enforce a partition of the joint family.
Note that under Dayabhaga laws, until, father is alive, his children can NOT
enforce partition.
Powers of Manager :
From the several judicial decisions on the point, it can be concluded that the
powers of a manager under the Dayabhaga law are the same as those of a
manager under the Mitakshara law.
He can contract a debt for a joint family purpose, and a decree passed against him
for such a debt will bind the other members, although they are not parties to the
suit.
He can also mortgage the family property for the purposes of the family business.
Presumption as to coparcenary property :
The presumptions with regard to joint family and joint family property under the
Mitakshara law and Dayabhaga law are same.
However, it may be noted that there is no presumption under the Dayabhaga law
that property purchased by a son in his name in the fathers lifetime, and which has
been in the possession of the son ever since the purchase, is joint family property.
The burden of proof in such a case lies on those who deny the ownership of the
son.
Widows Right to Inherit :
Mitakshara system that several undivided brothers are like joint tenants, each
having an unascertained interest in the whole of the joint property, so that when
on the death of one of the brothers, the joint property belongs exclusively to the
survivors. This does not leave any no right of survivorship to the widow to
succession in her husband's share in joint property. ie The widow is entitled to
inherit her deceased husbands share in ancestral property ONLY when husband
dies leaving behind (i) no male issue and (ii) husband got ancestral property
partitioned before his death.
Under the Dayabhaga system, the widows inheritance is not determined by
whether he died separated or united. By granting the widow the right to inherit
her deceased husbands property when he leaves behind no male issue, the
Dayabhaga school dilutes the heavily patriarchal system prevalent in India at the
time.
Mitakshara system lays out that the sons do have an interest since birth in their
fathers self acquired property, be it movable or immovable.
According to the Dayabhaga, the father is given absolute rights over his self-
acquired property and sons have no inherent interest in it (atleast during his
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lifetime of the father). Therefore, the father possesses the right to dispose of his
self acquired property in a manner he chooses, without involving his sons. He
may also decide to divide it amongst his sons at will in a proportion determined
by him.
Both schools the Dayabhaga and the Mitakshara concur and state, on the basis of
the Yajnavalkas, that when a person divides his property whilst he is alive, he must
treat both his son as well as his wife alike. He must give his wife an equal share
as that given to his son
Table of differences between Mitakshara and Dayabhaga Coparcenary :
Above discussion can be put in tabular form as follows : <work on this>
Mitakshara Dayabhaga
One cannot transfer his share to the One can transfer his share.
third party.
The joint-property can be partitioned. As the shares are defined, one can
In that case, it will be partitioned as it easily partition with his share.
was in case of the father.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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Section 6 of the Act. Although the daughter has been included as a coparcener by
way of this amendment the wife, mother and widow still cannot be admitted to the
coparcenary.
The courts have played a vital role in making this amendment effective by
interpreting it liberally and bringing in the concept of notional partition, without it
being expressly mentioned in the amended section.
In Gurupad vs. Hirbai,[ix] Supreme Court observed that
ignoring a womans right to get a share at the time of notional partition
essentially means that: One unwittingly permits ones imagination to boggle
under the oppression of the reality that there was in fact no partition between
the plaintiffs husband and his sons. The fiction created by Explanation I has to
be given its full and due effect.
In M. Yogendra and Ors. vs. Leelamma N. and Ors., the Supreme Court held that
The Act indisputably would prevail over the Hindu Law. We may notice that the
Parliament, with a view to confer right upon the female heirs, even in relation to
the joint family property, enacted Hindu Succession Act, 2005.
In G. Sekar vs. Geetha and Ors[xii]., the Supreme Court held that :
It is, therefore, evident that the Parliament intended to achieve the goal of
removal of discrimination not only by Section 6 of the Act but also by conferring
an absolute right in a female heir to ask for a partition in a dwelling house wholly
occupied by a joint family as provided for in terms of Section 23 of the Act.
Women as absolute owners of property
Section 14 : Hindu Succession Act 1956 : Section 14 reads Property of a female
Hindu to be her absolute property:
(1) Any property possessed by a female Hindu, whether acquired before or after
the commencement of this Act, shall be held by her as full owner thereof and not
as a limited owner.
Explanation: In this sub-section property includes both movable and
immovable property acquired by a female Hindu by inheritance or devise, or
at a partition, or in lieu of maintenance or arrears of maintenance, or by gift
from any person, whether a relative or not, before, at or after her marriage,
or by her own skill or exertion, or by purchase or by prescription, or in any
other manner whatsoever, and also any such property held by her as Stridhan
immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by
way of gift or under a will or any other instrument or under a decree or order of
a civil court or under an award where the terms of the gift, will or other
instrument or the decree, order or award prescribe a restricted estate in such
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property.
A plain reading of the section 14 reveals that female Hindu is conferred the
absolute right to her property.
In Komalam Amma vs. Kumara Pillai Raghavan Pillai and Ors,[xiii] the Supreme
Court has laid down that
Maintenance, as we see it, necessarily must encompass a provision for
residence. Maintenance is given so that the lady can live in the manner, more or
less, to which she was accustomed.
The concept of maintenance must, therefore, include provision for food and
clothing and the like and take into account the basic need of a roof over the
head.
Provision for residence may be made either by giving a lump sum in money, or
property in lieu thereof. It may also be made by providing, for the course of the
ladys life, a residence and money for other necessary expenditure.
In G. Sekar vs. Geetha and Ors, it was held that-
The Act brought about revolutionary changes in the old Hindu Law. It was
enacted to amend and codify the law relating to intestate succession amongst
Hindus. By reason of the Act, all female heirs were conferred equal right in the
matter of succession and inheritance with that of the male heir.
By way of Section 14, a woman who had limited interest in the property but was
possessed of the same was to become absolute owner.
Section 23 of the Indian Succession Act has been omitted so as to remove the
disability on female heirs contained in that Section.
Section 23 did not allow married daughters (unless separated, deserted or
widowed) even residence rights in the parental home.
Unmarried daughters had residence rights but could not demand partition.
The omission gives all daughters (married or not) the same rights as sons to
reside in or seek partition of the family dwelling house.
Section 24 : The Act also deleted Section 24, which barred certain widows, such as
those of predeceased sons, from inheriting the deceaseds property if they had
remarried. Now they can so inherit.
Main provisions of the Hindu Succession (Amendment) Act, 2005 :
In a Hindu Joint Family governed by Mitakshara law, the daughter by birth shall
become a coparcener in her own right in the same manner as a son.
She would have the same rights in the coparcenary property as that of a son.
She shall be subject to same liabilities in respect of the said coparcenary property
as that of a son.
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Women owning land or a house also face less risk of spousal violence. Any land in
womens names can increase productivity by improving credit and input access for
numerous de facto female household heads.
It is clear that amendment to the Hindu Succession Act has made the daughter a
member of the coparcenary. These are significant advancements towards gender
equality.
Making all daughters coparceners likewise has far-reaching implications. It gives
women birthrights in joint family property that cannot be willed away.
Rights in coparcenary property and the dwelling house also provide social
protection to women facing spousal violence or marital breakdown, by giving them
a potential shelter. Millions of women as widows and daughters and their
families
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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Under the Mitakshara law, on birth, the son acquires a right and interest in
the family property. A son, grandson and a great-grandson form a class of
coparceners-based on birth in the family. Under this system, joint family property
devolves by survivorship within the coparcenary. This means that with every birth
or death of a male in the family, the share of every other surviving male either gets
diminished or enlarged.
Incidents of Coparcenary Property under Mitakshara School :
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.
Creation of law- Coparcenary is a creation of law and CANNOT be formed by an
agreement between the parties.
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. Since
2005 amendment, discrimination against female child has been removed.
Collective enjoyment The proceeds of undivided family must be brought to the
common chest or purse and then dealt with according to the modes of
enjoyment by the members as an undivided family till a partition takes place
because they hold everything jointly.
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.
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.
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. This phenomenon is called doctrine of
survivorship.
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.
Supreme Court : 6 Essential Characteristics of Hindu Coparcenary : In CED v. Alladi
Kuppuswamy[1977] 108 ITR 439 (SC), the Apex Court has held that Hindu
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Both schools concur on the principle that property should be inherited by the
sapindas, but the definition of the word itself given by the schools is different.
According to the Mitakshara system it means one that has the same body which
can be construed as a close relative who is a descendent of a common ancestor.
But such descendence should always be from the male line.
Thus, in this system only agnates have the right to inherit. There distance in
relationship is not a factor determining inheritance but their sex does play an
important role. In this system, for example, property of the deceased may
devolve upon a distant male cousin but not to his own daughters son.
The Mitakshara system founded by Vijaneswara, following a rigid
patriarchal system based such a theory on the principle established by the
school of the Black Yajurveda" which quoted Nirindriya hyadayadah strio
nritam" as the reason backing it. This can be translated as women are
generally incompetent and do not have the power to inherit"
Such a rigid patriarchal system was not agreeable to Jimutvahana who
founded the Dayabhaga sytem.
According to him, sapinda is any relative who can offer pindas, the balls of
rice offered during the funeral of the deceased.
Apart from agnates, this would also include cognates, the women in the family
as well, allowing them to freely inherit property.
The Dayabhaga School bases its law of succession on the principle of religious
efficacy or spiritual benefit. It means that the one who confers more religious
benefit on the deceased is entitled to inheritance in preference to the others who
confer less benefit.
Under the Dayabhaga School, the distinction between unobstructed and obstructed
heritage does not exist as the principle of son's birth right is not recognized and all
properties devolve by succession on the all properties devolve by succession on the
demise of the father.
ie So long as the father is alive, he is the master of all properties whether
ancestral or self acquired.
Dayabhaga coparcenary comes into existence for the first time on the death of the
father. When sons inherit their father's property, they constitute a coparcenary. And
if son dies leaving behind a widow or daughter without a son, then she will succeed
and become a coparcener.
Thus under Dayabhaga school a coparcenary could consist of males as well as
females. The only difference between a male and a female coparcener was that
the property in the hands of a female coparcener was her limited estate and
after her death the property passed not to the heirs, but to the next heir of the
male from whom she inherited.
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According to the Dayabhaga School, the son does not acquire an interest by birth in
ancestral property. Sons right arises only on the death of his father. On the
death of the father he takes such property as is left by him whether separate or
ancestral, as heir and not by survivorship.
<Exclusive internet contents on Mitakshara are easily available. However, it is
difficult to find exclusive internet contents on Dayabhaga. Almost always, there is
comparison with Mitakshara. -----> Read the part of Dayabhaga School from
Differences between Mitakshara and Dayabhaga discussed elsewhere in this doc>
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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Karta obtains no reward for his services and he discharges many onerous
responsibilities towards the family and its members. His true legal position can be
understood only when we know the ambit of his powers and liabilities.
Obligations / Liabilities / responsibilities of a Karta :
Maintenance : The most basic duty of a Karta is to provide food, shelter, clothing,
etc. to the members of the joint family.
All coparceners, from the head of the family to the junior most members, have
the inherent right to maintenance. It is the responsibility of the Karta to
maintain all the members of the family. Those who would be entitled to share
the bulk of property are entitled to have all their necessary expenses paid out of
its income.
If he unjustly excludes a member from getting maintenance or if he does not
maintain a member properly, he can be sued for both, the maintenance and
arrears of maintenance.
Marriage :
The Karta is responsible for each unmarried members marriage, especially the
marriage of daughters since it qualifies as a sacrosanct duty in Hindu law.
The expense of the marriage is taken out of the joint family property. If the
expenses are met externally, they must be reimbursed out of the joint family
funds.
Duty to Spend Reasonably:
It is the duty of the Karta to spend the joint family funds only for the purposes of
the family. He must spend reasonably. If he spends unreasonably and it is not
approved by other members of the family, the remedy would be to demand
partition.
Accounts at the time of Partition :
Partition means bringing the joint status to an end.
On partition, the family ceases to be a joint family. Under the Mitakshara law,
partition means two things :-
(a) Severance of status /interest, and
(b) Actual division of property in accordance with the shares so specified,
known as partition by metes and bounds (system of describing real property
by measurements and boundaries).
The former is a matter of individual decision, the desire to sever himself and
enjoy the unspecified and undefined share separately from others while the
latter is a resultant consequent of his declaration of intention to sever but which
is essentially a bilateral action.
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Taking of accounts means an enquiry into the joint family assets. It means
preparing an inventory of all the items of the joint family property.
The Mitakshara Karta is not liable to accounts and no coparcener can even at the
time of partition, call upon the karta to account his past dealings with the joint
family property unless charges of fraud, misappropriation/conversion are made
against him. Eg when a coparcener suing for partition is entirely excluded from
the enjoyment of property he can ask for accounts.
Representation :-
The karta represents the family. He is its sole representative vis-a vis the
government and all outsiders and in that capacity he has to discharge many
responsibilities and liabilities on behalf of the family.
He has to pay taxes and other dues on behalf of the family and he can be sued
for all his dealings on behalf of the family with the outsiders.
Powers of Karta :
Powers of Karta are vast and limitations are few. The ambit of his powers can be
considered under two heads :-
(A) power of alienation of joint family property,
(B) other powers.
In the former case, his powers are limited since a karta can alienate in
exceptional cases. In the latter case his powers are large, almost absolute.
(A) power of alienation of joint family property :
Although no individual coparcener, including the karta has any power to dispose
of the joint family property without the consent of all others, the Dharma
Shastra recognizes it that in certain circumstances any member has the power to
alienate the joint family property.
The Mitakshara is explicit on the matter. According to Vijnaneshwara :
....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) render it necessary, or
indispensable duties (dharmamarthe), such as obsequies of the father or the
like, made it unavoidable.
The formulation of Vijnaneshwara has undergone modification in two respects :-
Accordingly, The power cannot be exercised by any member except the karta.
The joint family property can only be alienated for three purposes :-
(a) Apatkale (Legal Necessity)
(b) Kutumb arthe (Benefit of Estate)
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necessary sanskars.
For the discharge of indispensable duties the karta may even alienate the
entire property.
A karta can even alienate a portion of the family property for charitable/pious
purposes. However, in this case, the powers of the karta are limited i.e. he
can alienate a small portion of the joint family property, whether
movable/immovable.
Note :
Alienation Is Voidable : It may be taken as a well-settled law, that alienation
made by karta without legal necessity / benefit of estate/ discharge of
indispensable duties is not void but merely voidable at the instance of any
coparcener.
Separate Property : It is now settled that the karta can alienate the joint
family property with the consent of the coparceners. Alienation without the
consent of the coparcener, which is not for legal necessity, is void.
It is well established that there is no presumption under Hindu Law that a
business standing in the name of any member of the joint family is a joint
family business even if that member is the manager of the joint family. Unless
it could be shown that the business in the hands of the coparcener grew up
with the assistance of the joint family property or joint family funds or that
the earnings of the business were blender with the joint family estate, the
business remains free and separate.
A Hindu, even if is is a member of HUF, may possess separate property. Such
property belongs exclusively to him. No other member of the coparcenary, not
even his male issue, acquires any interest in it by birth, and on his death
intestate, it passes by succession to his heirs, and not by survivorship to the
surviving coparceners.
(B) Other powers :
Powers of management :
As the head of the family, kartas powers of management are almost absolute.
He may mange the property of the family, the family affairs, the business the
way he likes, he may mismanage also, nobody can question his
mismanagement.
He is not liable for positive failures.
He may discriminate between the members of the family. But he cannot deny
maintenance /use/occupation of property to any coparcener.
The ever-hanging sword of partition is a great check on his absolute powers.
But, probably, the more effective check is the affection and the natural
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concern that he has for the members of the family and the complete faith and
confidence that members repose in him.
Right to income :
It is the natural consequence of the joint family system that the whole of the
income of the joint family property, whosoever may collect them, a
coparcener, agent or a servant, must be handed over to the karta.
It is for the karta to allot funds to the members and look after their needs and
requirements.
The income given to the karta is an expenditure incurred in the interest of the
family.
Jugal Kishore Baldeo Sahai v. CIT (1967) 63 ITR 238
The salary paid to Karta has to be held to be an expenditure incurred in the
interest of the family. The expenditure having been incurred under a valid
agreement, bonafide, and in the interest of and wholly and exclusively for
the purpose of the business of the Hindu undivided family, is allowable as a
deductible expenditure under section 37(1) of the Indian Income Tax Act,
1922 in computing the income of the Hindu undivided family.
Right to representation :
The karta of a joint family represents the family in all matters- legal, social,
religious.
He acts on behalf of the family and such acts are binding on the family.
The joint family has no corporate existence; it acts in all matters through its
karta.
Dr. Gopal v. Trimbak AIR 1953 Nag 195
In this case, it was held that a manager/ karta can contract debts for
carrying on a family business/ thereby render the whole family property
including the shares of the other family members liable for the debt.
Power of Compromise :
The karta has power to compromise all disputes relating to family property or
their management. He can also compromise family debts and other
transactions.
However, if his act of compromise is not bonafide, it can be challenged in a
partition.
He can also compromise a suit pending in the court and will be binding on all
the members, though a minor coparcener may take advantage of Order 32,
Rule 7 C.P.C., which lays down that in case one of the parties to the suit is a
minor the compromise must be approved by the court.
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GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
Explain the self acquired property and state various mode by which it can be
acquired under the Hindu Law. (Oct-2012, Apr-2016)
Answer :
Refer :
v good - https://articlesonlaw.wordpress.com/2014/10/23/practical-questions-on-
ancestral-property-answers-with-support-of-the-high-courts-and-the-supreme-
court-rulings-part-i/
http://jcil.lsyndicate.com/wp-content/uploads/2016/09/Article-Self-acquired-
property-of-intestate-Hindu-female-Upasana.pdf
Self-acquired property :
What is self-acquired property ?
[C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953
AIR 495, 1954 SCR 243]
The definition is based upon the text of Yagnavalkya that whatever is
acquired by the coparcener himself without detriment to the fathers estate as
present from a friend or a gift at nuptials, does not appertain to the co-heirs.
A property is ancestral when acquired through inheritance from ancestors, this
property is always shared by members of a coparcenary equally. On the other
hand property is self acquired if it is earned by own efforts/learning or other
human endeavour. In the latter the person acquiring is the sole owner and
nobody exercises any right on the same during his lifetime.
A Mitakshara father can make a partition of both the ancestral and self-acquired
property in his hands any time he likes even without the concurrence of his sons.
The ancient Hindu Mitakshara scriptures have only articulated the rules with
respect to succession of the Joint Hindu Family property. This is because the
economic social settings of the ancient Hindu society meant that all property was a
part of the collective stock, called the Joint Hindu Family property, and thus, there
existed no concept of self-acquired property.
The Indian society has undergone massive social and economic changes since then
and these alterations were taken cognizance of by the legislators while codifying
the Shastra laws. One of the reflections of this avant garde law is the Hindu
Succession Act, 1956, (hereinafter referred to as The Act), which, in 8 2, has
provided the mode of devolution of self- acquired property of an intestate Hindu
male as well.
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However, in spite of these strides, the legislators have still failed to address the
issue of devolution of the self-acquired property of an intestate Hindu female. This
grey area in the law has resulted in ambiguities in the succession to such property
and has, more often than not, resulted in judicial interpretations that go against
justice and equity.
Case laws :
[C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953
AIR 495, 1954 SCR 243]
In the ancestral or grand fathers property in the hands of the father, the son
has equal rights with his father;
while in the self-acquired property of the father, his rights are unequal by
reason of the father having an independent power over or predominent
interest in the same.
ARUNACHALA V. MURUGANATHA [AIR 1963 SC 496]
Under the Mitakshara father had complete power of disposition of his self-
acquired property and if he made any deed of gift in favour of his son or some
other relation, there would be no presumption that the bequest was to confer
the nature of a joint family so that the property bequeathed became ancestral
in the hands of the legatee unless there were express words to indicate the
same.
Meaning of Ancestral property :-
[U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising
out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling].
Property inherited by a Hindu from his father, fathers father or fathers fathers
father, is ancestral property.
[Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20] : In
Mullas Principles of Hindu Law (15th Edition),
it is stated at page 289 : . if A inherits property, whether movable or
immovable, from his father or fathers father, or fathers fathers father, it is
ancestral property as regards his male issue. If A has no son, sons son, or sons
sons son in existence at the time when he inherits the property, he holds the
property as absolute owner thereof, and he can deal with it as he pleases .
A person inheriting property from his three immediate paternal ancestors holds
it, and must hold it, in coparcenary with his sons, sons sons and sons sons
sons but as regards other relations he holds it and is entitled to hold it, as his
absolute property. [Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983
SCR (3) 20]
Again at page 291, it is stated : The share which a coparcener obtains on
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[Madanlal Phulchand Jain vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992
SCR (2) 479] : Each son upon his birth takes an interest equal to that of his father
in ancestral property
It is true that under the Mitakshara Law each son upon his birth takes an
interest equal to that of his father in ancestral property, both movable and
immoveable. This right is independent of his father.
What is coparcenery property?
[Amit Johri vs Deepak Johri & Ors. (2014), Ruling of Delhi High Court]
Coparcenary property means and includes: (1) ancestral property, (2)
acquisitions made by the coparceners with the help of ancestral property, (3)
joint acquisition of the coparceners even without such help provided there was
no proof of intention on their part that the property should not be treated as
joint family property, and (4) separate property of the coparceners thrown inot
the common stock.
[Uday Narendra Shah vs Narendra Amritlal Shah, NOTICE OF MOTION (L) NO. 2347
OF 2013 IN SUIT (L) NO. 1069 OF 2013. Bombay High Court ruling]
Coparcenary property. The expression Coparcenary property includes property
in which the deceased husband had an interest as a joint owner during his life
time and, therefore, ancestral property. Coparcenary property means the
property which consists of ancestral property, or of joint acquisitions, or of
property thrown into the common stock and accretions to such property.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
What is partition ? Discuss the methods of partition and which properties are liable to
partition and which properties can not be partitioned ? (Apr-2012, Oct-2012, Apr-2013,
Mar-2014, Mar-2015)
What is partition? Explain how partition may be affected under Hindu law. (Apr-2016)
Answer :
Refer :
http://www.shareyouressays.com/117719/8-different-modes-of-partition-of-hindu-
joint-family-properties
http://www.srdlawnotes.com/2017/01/distinction-between-joint-family-and.html
http://taxguru.in/income-tax/partial-and-full-partition-of-hindu-undivided-family-
huf-and-income-tax-provisions.html
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Intro :
The Joint family of Hindu Law is an institution sue generis. It is peculiar to Hindu
society. It consists a male, his wife and unmarried daughters and his male
descendants, their wives and unmarried daughters. It is Thus patriarchal in
character. Inside this joint family there is what called the Coparcenary. The
coparceners are the owners of the joint family property. The coparceners have the
right of partition in that property.
Coparcenary consists of common ancestor and three degrees of male lineal
descendants.
Example : AB1B2B3B4
If A dies B4 is added so on. To begun with the Coparcenary father and son
relationship is necessary and for its continuation father's presence is not
necessary.
What is partition of joint hindu family property ?
Simply stated : Partition means bringing the joint status to an end.
Meaning of Partition : Partition is the severance of the status of Joint Hindu
Family, known as Hindu Undivided Family under tax laws.
Under Hindu Law once the status of Hindu Family is put to an end, there is notional
division of properties among the members and the joint ownership of property
comes to an end. However, for an effective partition, it is not necessary to divide
the properties in metes and bounds. But under tax laws for an effective partition
division by metes and bounds is necessary.
Metes and bounds is a system of describing real property by measurements and
boundaries.
Total partition :
Partition under Hindu Law, can be total or partial. In total partition all the
members cease to be members of the HUF and all the properties cease to be
properties belonging to the said HUF.
Partial partition :
Partition could be partial also.
It may be partial vis-a-vis members, where some of the members go out on
partition and other members continue to be the members of the family.
It may be partial vis-a-vis properties where, some of the properties, are divided
among the members other properties continue to be HUF properties.
Partial partition may be partial vis-a-vis properties and members both.
Difference between partition under the Hindu Law and that under the Income-tax
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Act : There is a difference between a partition under Hindu Law and a partition
recognised under the Income-tax Act. Though the concept of partition is the same
under Hindu and tax laws, in two respects, recognition of partition under tax laws
differs from that under Hindu Law.
For recognition of partition under Hindu Law division of properties by metes and
bounds is not necessary.
However, for recognition of partition under tax laws, division of properties by
metes and bounds is necessary.
Again under Hindu Law partial partition is recognised.
However, in view of provisions of S.171(9) of Income-tax Act, 1961, partial
partitions will not be recognised for tax purposes.
Right to claim Partition :
Under the Hindu law, any coparcener can make a claim for partition.
It is not necessary that other coparceners should agree to the partition sought by
one of the coparceners.
{CIT vs. Govindlal Mathurbhai Oza [1982] 138 ITR 711 (Guj.)}
Merely because one member severs his relations with others there is no
severance between others. The other members continue to remain joint.
A minor can claim partition through his guardian.
After amendments in Hindu Succession Act, females can be coparcenars and also
have a right to claim partition.
Modes/ methods of Partition of Hindu Joint Family Properties :
When a partition takes place, the presumption is about the total partition. But
where some members contend that the partition was partial with respect to
members or property, onus is on them to prove it.
The following modes/ methods of partition :
(1) Partition by Mere Declaration
(2) Partition by Will
(3) Conversion to another Faith
(4) Marriage under Special Marriage Act, 1954
(5) Partition by Agreement
(6) Partition by Arbitration
(7) Partition by Father
(8) Partition by Suit
(1) Partition by Mere Declaration :
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Partition under the Mitakshara law is severance of joint status and as such it is a
matter of individual volition.
An unequivocal indication of desire by single member of joint family to separate is
sufficient to effect a partition. The filing of a suit for partition is a clear expression
of such an intention.
The oral or written communications by a coparcener could be enough to sever the
joint status but the communication could be withdrawn with the consent of other
coparceners and with its withdrawal partition would not take place.
In Raghvamma v. Chenchemma, the Supreme Court laid down that
it is settled law that a member of joint Hindu family can bring about a separation
in status by a definite declaration of his intention to separate himself from the
family and enjoy his share in severalty. Severance in status is brought about by
unilateral exercise of discretion.
In Puttorangamim v. Rangamma, The Supreme Court reiterated that
it is, however, necessary that the member of the joint Hindu family seeking to
separate himself must make known his intention to other members of the family
from whom he seeks to separate. The process of communication may vary in the
circumstnaces of each particular case. The proof of a formal despatch or receipt
of the communication by other members of the family is not essential, nor its
absence fatal to the severance of the status.
(2) Partition by Will :
Partition may be effected by a coparcener by making a will containing a clear and
unequivocal intimation to the other coparceners of his desire to sever himself from
joint family or containing an assertion of his right to separate.
In Potti Laxmi v. Potti Krishnamma, the Supreme Court observed,
Where there is nothing in the will executed by a member of Hindu coparcenary
to unmistakably show that the intention of the testator was to separate from the
joint family, the will does not effect severance of status.
An ineffective will, sometimes though not always, cannot in absence of consent of
all members bind them as family arrangement.
Where partition takes place on an unilateral will of a coparcener, it cannot be
brought to an end by revocation of the will. The same consequence will follow
where a desire to severance has been expressed by the guardian of a minor
coparcener and the court has upheld its propriety.
(3) Conversion to another Faith :
Conversion of a coparcener to any other religion or faith operates as partition of the
joint status as between him and other members of the family.
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The coparcener, who has converted, no longer possesses the right of survivorship
as he ceases to be a coparcener from the moment of his conversion and he takes
his share in the family property as it stood at the date of his conversion.
Reconversion of the convert to Hinduism does not ipso facto bring about his
coparcenary relationship in absence of subsequent act or transactions pointing out
to a reunion.
(4) Marriage under Special Marriage Act, 1954 :
Marriage of a Hindu under the Special Marriage Act, 1954 causes severance of joint
status.
(5) Partition by Agreement :
An unequivocal expression of the desire to use the joint family property in certain
defined shares may lead the members of joint family to enter an agreement to
effect a partition.
The two ideas, the severance of joint status and a de facto division of property are
distinct.
As partition under the Mitakshara law is effected on severance of joint status, the
allotment of shares may be done later.
Once the members of joint family or heads of different branches of the coparcenary
agree to specification of shares, the same can be treated to result in severance of
joint status though the division by metes and bounds may take place later on.
In Approver v. Ram Subba Iyer the Privy Council had observed that
no coparcener can claim any defined share in the joint family property in a joint
family, but where the coparceners enter into an agreement to the effect that
every member will have a specific and defined share in future, the joint status is
affected and every coparcener acquires a right to separate his specific share and
use the same to exclusion of others.
(6) Partition by Arbitration :
An agreement between the members of joint family whereby they appoint an
arbitrator to arbitrate and divide the property, operates as a partition from the date
thereof.
The mere fact that no award has been made is no evidence of a renunciation of the
intention to separate.
Where all the coparceners jointly have referred the matter relating to the partition
of their shares in the joint family to an arbitrator, this very fact expressly indicates
their intention to separate from joint status.
In such cases even if award is not given, their intention is not dissipated.
(7) Partition by Father :
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The father may cause a severance of sons even without their consent. It is the
remnant of the ancient doctrine of Patria Potestas.
The father during his lifetime is competent to effect such partition under Hindu law
and it would be binding on his sons.
It would be binding on the sons not because they have assented to it but because
the father has got the power to do so, although this power is subject to certain
limitations on the basis of its utility and general interest of the family. It has to be
considered as to whether it is lawful in accordance with the spirit of Hindu law or
not.
According to Supreme Courts decision is Kalyani v. Narayanan,
a Hindu father under Mitakshara law can effect a partition among his sons even
in the lifetime of karta of joint family and such partition would be binding on
them.
In such a case he can define and specify his share along with his sons and thus
effectuate a separation among them. But in no case he can divide the joint
family property among the different members by virtue of a Will, although he
could do it with their consent.
Where the father has divided the property unequally amongst his sons, then too it
would be binding. The sons have the right to challenge the unequal division of
shares or an act of unilateral division of shares by the father, but it will have no
bearing on the severance of their joint status.
Where the father has divided his self-acquired property unequally among his
sons, it could not be challenged by them, nor is there any need of a registered
deed to this effect.
No person can give his consent to the unequal share on behalf of a minor.
(8) Partition by Suit :
Mere institution of a partition suit disrupts the joint status and a severance of joint
status immediately takes place.
A decree may be necessary for working out the resultant severance and for
allotting definite shares but the status of a plaintiff as separate in estate is brought
about on his assertion of his right to separate whether he obtains a consequential
judgment or not.
So even if such suit was to be dismissed, that would not affect the division in status
which must be held to have taken place when the action was instituted.
Ordinarily a partition is affected by instituting a suit to this effect.
In case of a suit for partition in joint status, fathers consent to the suit for partition
is no longer necessary. The son is fully eligible to file a suit for partition even during
the lifetime of father.
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When the plaintiff files a suit for partition the share which he received in the earlier
partition would not be free from charges and liabilities. If the creditors have
obtained the decree against the joint family property, then even that share of the
plaintiff which he did not receive, would also be liable in the same manner as that
of the other coparceners.
Exception :
The general rule mentioned above will not apply where a suit is withdrawn
before trial by the plaintiff on the ground that he did not want separation any
more. In such a case there would be no severance of joint status.
Where the suit is proved to be fraudulent transaction resorted to with an intent
to create evidence of separation, no severance in the joint status takes place. If
the defendant dies and the suit is withdrawn on that ground there is no
separation.
Mere institution of a suit for partition by a minor followed by abatement of the
suit by death of the sole defendant does not effect the severance of the joint
status.
Note :
The above 8 modes of partition are not exhaustive. There may be other situations
as well which, if expressed in equivocal intention for partition, will be admissible.
Conclusion :
It is not necessary under Hindu law that the partition should be executed by a
registered instrument. Even a family compromise between the coparceners would
be sufficient to effect a partition and by virtue of that they become entitled to
individual share and use thereof.
Mitakshara : Property of a deceased Hindu is partitioned into two ways as the
property is of two types-
(a) Ancestors property : partitioned in accordance to the Rules of Survivorship.
(b) Separate property : partitioned to the descendants.
Dayabhaga : Property is of two types (a) Joint, (b) Separate. The descendants
inherits the property in both cases.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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http://legalsutra.com/1076/reopening-and-reunion-of-partition-a-study-through-
case-laws/
https://www.academia.edu/10969284/Partition-and-Joint-Family-and-Coparcenary
http://www.thehindubusinessline.com/iw/2000/05/21/stories/0721g201.htm
Intro :
if there is any member of the Hindu Joint Family who is hopelessly dissatisfied with
the management of the joint estate, his only remedy remains in claiming for
partition. This he can always do, as there is no compulsion upon the members of
Hindu Family to live in common. Partition may be effected either amicably or
through intervention of the court. After a change in status by partition, a member
can no longer be deemed as agent or representative of the family. Partition once
made can not ordinarily be reopened for Shastras say, once is the partition of
inheritance made, once is a damsel given in marriage, and once does a man say, I
give; these three are by good men done once and for all[3].
However there are certain well-recognised exception to this principle. One of such
is mentioned in Yajnavalka. As per Yajnavalka, The settled rule is that co-heirs
should again divide on equal terms that wealth which being concealed by one co-
heir from another is recovered after partition.[4] A few of other such exceptions
are of where by mistake stranger property was included while partitioning and the
same was later lost; where partition was done by fraud.
If two or more coparceners after partition agree to annul the partition and to live
together jointly as before and make a junction of their property with affection, with
the declaration that mine is thine and thine is mine, they are said to be reunited.
[5] However there are certain complicated questions relating to reunion like who
may reunite, how to reunite..etc .
REOPENING OF PARTITION :
MINOR COPARCENERS :
A minor after becoming of age can reopen the partition if he can prove that the
partition was not for his benefit or it was unfair with regard to him.
This can best be explained with the help of the case of Ratnam Chettiar v. S M
Kuppuswami Chettiar 1976 AIR, 1 1976 SCR (1) 863. In this case two brothers
made a partition and at that time plaintiffs were minors. Under the partition
deed both immovable and movable property were divided with the help of family
auditor of one brother.
Plaintiffs here alleged that the partition was secured by practising fraud and
undue influence and by suppressing large assets belonging to the family which
were taken by their uncle (Def.1) by taking advantage of the weakness of the
plaintiffs father who was a person of weak intellect.
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With regard to partition of moveable property the Honble Supreme Court after
making a detailed study also reached the same conclusion that it was an unequal
partition and the silence of the father (Def. 5) or even his acquiescence in
allowing his elder brother to swallow the amount was not a prudent act and it
had caused serious detriment to the interests of the minors which he had to
protect, because the minors at that time were members of the Hindu undivided
family.
The Supreme Court laid the following propositions :
A partition effected among the members of HUF with consent cannot be
reopened, unless it is shown that consent is obtained by fraud, coercion,
misrepresentation or undue influence.
A strict proof of facts is required to reopen the partition because an act inter
vivos cannot be lightly set aside.
If the partition is done in good faith and in bona fide manner keeping into
account the interests of the minors, the same will be binding upon them.
If the partition effected between the members of the Hindu undivided family,
which consists of minors, is proved to be unjust and unfair and is detrimental
to the interests of the minors the partition can be reopened irrespective of the
length of time when the partition took place.
Where there is a partition of immovable and moveable properties but the two
transactions are distinct and separable or have taken place at different times,
if it is found that only one of these transactions is unjust and unfair it is open
to the Court to maintain the transaction which is just and fair and to reopen
the partition that is unjust and unfair.
THE RULE OF REOPENING OF PARTITION DOES NOT APPLY TO A DECREE IF THE
MINOR IS PROPERLY REPRESENTED BEFORE THE COURT UNLESS THE MINOR CAN
SHOW FRAUD OR NEGLIGENCE ON THE PART OF HIS NEXT FRIEND.
RE-UNION OF PARTITION :
Need for Reunion of partition :
It may happen that out of many coparcenars, only few want partition and
majority see benefit in continue the joint family.
Under the circumstances, HUF may be partitioned and interested coparcenars
may choose to reunite back in to the HUF.
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.
However, a reunion can only take place between persons who are parties to the
original partition.
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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 are :
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 effected 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.
Reunion creates a 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 effected 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.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
Discuss : Joint Hindu family as a social security institution and impact of Hindu
Gains of Learning Act and various tax laws on it.
Answer :
Refer :
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GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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i) Rights in general- He has the right to do all that is necessary, reasonable and
proper for the benefit and protection of the property of the idol;
ii) Right in possession of Devottar- He has the right to the possession and custody
of the Devottar;
iii) Right of remuneration- Ordinarily he has no right. But if the deed of the
endowment or the custom gives him some remuneration for his service, he can
take it.
iv) Right of residence- He has a right to live in the temple dedicated to the idol;
v) Right of reimbursement for expenses- He has the right to reimburse for the
expenses that he incurs from his purse for the acts authorized regarding the
Devottar and the idol;
vi) Right of litigation- He can file a suit for the benefit of the idol or the Devottar. If
any suit is filed against the idol or the Devottar, he has the right to defend it on
behalf of the idol;
vii) Right to defend Sevayati rights- He can sue to obtain Sevayati rights and if
there is any challenge to such rights, he can defend them.
viii) Right to borrow money- He can borrow for the purpose of the idol or its
property.
ix) Right to alienate Devottar- The property of an endowment is res extra
commercium. Ordinarily it cannot be alienated. But if it is necessary or benefitted
for the idol, he can alienate it.
Case law :
In Hunoomanpersaud v. Mst. Babooee- The Privy Council held that the Sevayat
of an idol has the same powers in respect of the alienation of the Devottar as the
manager of an infant in respect of the property of the minor ward.
Disabilities of Sevayat :
i) Levy of temple fees- He cannot levy fees on the general public for entry into the
temple.
ii) Removal of idol- He cannot remove an idol in a public temple at his will. The
worshippers may by unanimity remove it to a better place.
iii) Appointment of successor- He cannot appoint his successor. This is the privilege
of the founder.
iv) Sale of office of Sevayat- He cannot for his personal benefit transfer his right to
manage the idol.
v) Alienation of deity or temple- He cannot alienate it for a pecuniary benefit.
vi) Secularization of endowment- He cannot convert the religious endowment into a
secular one.
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Duties of Sevayat :
i) to keep accounts of the Devottar
ii) to discharge duties personally- He cannot delegate his duties to any other
person.
iii) Not to purchase Devottar- He cannot buy it for himself or benami.
iv) Not to claim Devottar as personal property-
v) Not to embezzle Devottar- He cannot make use of the idols property for his
personal purpose.
Comparison between Sevayat and Mahant :
Temple Math
iii) By virtue of his office, the iii) A Mahants functions and duties
Sevayat is the Administrator of are regulated by custom
temple property
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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Module-2) INHERITANCE :
2.1) Hindus
2.1.1) Historical perspective of traditional Hindu Law as a background
to the study of the Hindu Succession Act., 1956
2.1.2) Succession to property of a Hindu male dying intestate under the
provisions of the Hindu Succession Act, 1956.
2.1.3) Devolution of interest in Mitakshara coparcenary with reference
to the provision of Hindu Succession Act, 1956
2.1.4) Succession to property of Hindu female dying intestate under the
Hindu Succession Act, 1956
2.1.5) Disqualification relating to succession, General rules of
succession
2.2) Muslims
2.2.1) General rules of Succession and exclusion from Succession.
2.2.2) Classification of heirs under Hanafi and Ithana Ashria school and
their share and distribution of property
2.3) Christians, Parsis and Jews
2.3.1) Heirs and theirs shares and distribution of property under Indian
Succession Act of 1925
2.3.2) Testamentary Succession under the Indian Succession Act : Rules
for distribution of property of Christians, Parsis and Jews
2.3.3) Distribution of property of Christians, Parsis and Jews dying
intestate
GO TO CONTENTS.
MODULE-2 QUESTIONS :
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2012).
Write short note : Will under the Muslim Law. (Mar-2015).
Discuss : Probate of Will.
ALL inclusive question on principles of succession ---> Discuss in detail rules for
distribution of property of Hindu, Muslim, Christian, Parsi and Jew MALE/ FEMALE
dying intestate or with testament (will).
Write short note : General rules of succession in case of Hindu males. (Apr-2012,
Apr-2013).
Discuss : Disqualification relating to succession, General rules of succession.
Discuss the provisions regarding distribution of property among heirs of Hindu male
dying intestate as provided under the Hindu Succession Act 1956. (Oct-2012).
Discuss - How does the property of a Hindu male dying intestate devolve on her
death. (Apr-2016).
Discuss in detail the provisions regarding distribution of shares amongst different
heirs of property of Hindu female dying intestate. Also discuss the provisions
provided under the Hindu Succession Act 1956 (Apr-2012, Oct-2012, Apr-2013, Mar-
2014).
Discuss how the property of the deceased Muslim shall be distributed among
his Successors (heirs). (Mar-2015).
Describe the various successors under Muslim Law. Discuss the not distributable
property according to Muslim Law. (Oct-2012).
Write short note : Persons disqualified from inheritance under Muslim law. (Apr-
2012, Oct-2012, Apr-2013, Mar-2014).
Explain the principles of Hindu and Muslim law regarding testamentary and
intestate succession. (Apr-2016).
Explain the principle of Hindu Law regarding intestate and testamentary
succession. (Mar-2015).
Discuss : Rules for distribution of property of Christians, Parsis and Jews.
Write short note : Shares of heirs of Parsi male dying intestate. (Apr-2012, Apr-
2013, Mar-2015).
Discuss the distribution of property of an intestate Parsi. (Mar-2014).
Discuss : Distribution of property of Christians dying intestate.
Discuss : Distribution of property of Jews dying intestate.
State the provisions regarding property rights of women under the Hindu,
Muslim, Parsi and Christian law. Is there any amendment made recently in this
connection ? (Apr-2012).
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Write short note : property rights of women (Hindu, Muslim, Parsi, Christian). (Apr-
2013).
Discuss : Devolution of interest in Mitakshara coparcenary with reference to the
provision of Hindu Succession Act, 1956.
Discuss : Classification of heirs under Hanafi and Ithana Ashria school and their
share and distribution of property.
What are the requirement of a valid adoption under the Hindu Adoption and
Maintenence Act 1956 ? Discuss. (Apr-2012, Oct-2012, Apr-2016).
Explain the provisions relating to adoption and acknowledgement of paternity and
maternity under Hindu law. (Apr-2012, Apr-2013).
State the different kinds of guardians under the Hindu Law and discuss the powers
of natural guardian. (Oct-2012).
State who are natural guardians of a Hindu minor. What are the powers of such
natural guardian ? (Apr-2012, Apr-2016).
Write short note : natural guardians of a Hindu minor and their powers. (Apr-2013).
Write short note : Doctrine of increase and return. (Apr-2012, Apr-2013, Mar-2015).
Write short note : Doctrine of Rudd and Increase. (Oct-2012).
Write a note : Guardianship in marriage (Under Muslim law). (Apr-2016).
Write short note : Domicile under Indian Succession Act. (Apr-2012, Apr-2013, Mar-
2015).
GO TO CONTENTS.
MODULE-2 ANSWERS :
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Testamentary succession this means that the deceased has made a will during his
life time and legacy is decided on the basis of what has been written in the will.
Intestate succession is called inheritance where property is divided equally between
the legal heirs of the deceased upon the death of the deceased person.
What does an heir mean ?
Heir means a person, male or female, who is entitled to succession to the
property of an intestate.
Applicability of the Succession law to a person belonging to a particular community is
explained in the following diagram :
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The law of inheritance in India is governed on the basis of religion that a person
follows-
a) Hindus are governed by the Hindu Succession Act, 1956
b) Muslims follow the Muslim Law, and
c) Christians, Parsis & Jews follow the secular law called the Indian Succession
Act, 1925.
d) People of all religions who are married under the secular Special Marriage Act
follow the Indian Succession Act, 1925. Exception : 2 Hindus married under
Special Marriage Act are governed by Hindu Succession Act.
Initially, the entire law of succession was uncodified but with the advent of modern
government and legislature, most of the succession laws have been codified and
consolidated. There is no uniformity in the succession law relating to women
following different religions.
Applicability of Special Marriage Act :
If a Hindu marries a non-Hindu under the Special Marriage Act, he shall be
severed from the undivided family. However, if two persons who are Hindus get
married under the Special Marriage Act, no such severance takes place.
If a Hindu marries a non-Hindu under the Special Marriage Act, succession to
the property of such person, and to the property of the issue of such marriage,
shall be regulated by the provisions of the Indian Succession Act.
However, if two persons who are Hindus get married under the Special Marriage
Act, the above provision does not apply and they are governed by the Hindu
Succession Act.
Testamentary succession :
The law relating to testamentary succession (ALL religious communities), is
contained in the Indian Succession Act, 1925. This law does not make any
distinction between the rights of women and men under a will.
When a person disposes off his property by making a will, it is known as
testamentary succession.
Muslim :
An executor under Mohammedan law is called a wasi, derived from wasiyyat,
which means a will.
A Muslim who is of sound mind and who is not a minor, may make a valid will.
No particular form is required to make a valid will.
Any unequivocal expression of a testamentary nature will suffice. It may be
made either verbally or in writing.
Any property which is capable of being transferred and which exists at the time
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of the testator's death, may be disposed off by a will. Needless to say, property
that belongs to another cannot be bequeathed by a will.
A Muslim can dispose off only one third of his property, which is left after the
payment of his funeral expenses and his debts. The balance two thirds of the
property goes to the heirs of the deceased.
The rules relating to testamentary succession among Hindus, Parsis and Christians
are contained in the Indian Succession Act, 1925.
This Act does not deal with substantive law, such as what property may be
transferred or what estates and interest may be created. The Act primarily deals
with
formalities related to the execution (Validation of a legal document by the
performance of all necessary formalities),
revocation (to recall, withdraw, or reverse the will),
revival (restoration to use, acceptance, activity, or vigor after a period of
obscurity) and
interpretation (an explanation or conceptualization) of wills,
grant of probate (the process of legally establishing the validity of a will before a
judicial authority)
and other legal representations, powers and duties of the executors (a person
who is appointed by a testator to execute the testator's will.)
Testator is a person who has made a legally valid will before death
administrators are persons authorized to manage an estate, especially when the
owner has died intestate or without having appointed executors.
Indian Succession Act is a secular law that is applicable to each and every
community in matters of testamentary succession.
Consanguinity :
Part IV of the Indian Succession Act deals with Consanguinity. This part does not
apply to intestate or testamentary succession to the property of any Hindu,
Muhammadan, Buddhist, Sikh, Jain or Parsi.
Consanguinity is the connection or relation of persons descended from the same
stock or common ancestor.
Lineal consanguinity is that which subsists between two persons, one of whom is
descended in a direct line from the other, as between a man and his father,
grandfather and great-grandfather, and so upwards in the direct ascending line;
or between a man and his son, grandson, great-grandson and so downwards in
the descending line.
Collateral consanguinity is that which subsists between two persons who are
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descended from the same stock or ancestor, but neither of whom is descended in a
direct line from the other.
For the purpose of succession, there is no distinction
(a) between those who are related to a person deceased through his father, and
those who are related to him through his mother; or
(b) between those who are related to a person deceased by the full blood, and
those who are related to him by the half blood; or
(c) between those who were actually born in the lifetime of a person deceased,
and those who at the date of his death were only conceived in the womb, but
who have been subsequently born alive.
Legitimacy of a person under Muslim Law :
Parentage is only established in the real father and mother of a child, and only if
they beget the child in lawful matrimony.
In Hanafi Law maternity is established in the case of every child but
in Shiite Law, maternity is established only if the child is begotten in lawful
wedlock.
Sunnis or the Hanafis adopt a view that an illegitimate child, for certain purposes,
such as for feeding and nourishment, is related to the mother. For these purposes
the Hanafi Law confers some rights on its mother.
In Muslim Law, a son to be legitimate must be the offspring of a man and his wife
or that of a man and his slave; any other offspring is the offspring of Zina, which
is illicit connection, and hence is not legitimate.
The term 'wife' essentially implies marriage but marriage may be entered into
without any ceremony, the existence of marriage therefore in any particular case
may be an open question.
Direct proof may be available, but if there be no such proof, indirect proof may
suffice. Now one of the ways of indirect proof is by an acknowledgement of
legitimacy in favour of a son. This acknowledgement must be made in such a way
that it shows that the acknowledger meant to accept the other not only as his son,
but also as his legitimate son.
Thus under Muslim Law acknowledgement as a son prima facie means
acknowledgement as a legitimate son. Therefore, under the Muslim Law there is no
rule or process, which confers a status of legitimacy upon children proved to be
illegitimate.
The Privy Council in Sadiq Hussain v. Hashim Ali pithily laid down this rule :
"No statement made by one man that another (proved to be illegitimate) as his
son can make other legitimate, but where no proof of that kind has been given,
such a statement or acknowledgement is substantive evidence that the person
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so acknowledged is the legitimate son of the person who makes the statement,
provided his legitimacy is possible."
In Muslim law, the illegitimate child has no right to inherit property through the
father and in the classical law, as well as in some modern Islamic jurisdictions, the
mother of an illegitimate child may well find herself subject to harsh punishments
imposed or inflicted on those found guilty of zina.
Thus, the difficult status of legitimacy in Islamic law has very important
consequences for children and their parents, especially mothers.
Under no school of Muslim law an illegitimate child has any right of inheritance in
the property of his putative father.
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
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GO TO MODULE-2 QUESTIONS.
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Persons who are deaf or dumb or blind can make a will provided they are able to
know what they do by it.
A person who is ordinarily insane may make a will during an interval in which he is
of sound mind.
No person can make a will while he is in such a state of mind, whether arising from
intoxication or from illness or from any other cause, that he does not know what he
is doing.
What property can be disposed by a Will ?
Any movable or immovable property can be disposed of by a will by its owner.
Competency to make will :
Every person who is of sound mind and is not a minor can make a will.
Any married woman can make a will of any property which she could alienate
during her life time.
Persons who are deaf or dumb or blind can make a will provided they are able to
know what they do by it.
A person who is ordinarily insane may make a will during an interval in which he is
of sound mind.
No person can make a will while he is in insane state of mind, whether arising from
intoxication or from illness or from any other cause, that he does not know what he
is doing.
1. Wills (Hindu, Christian, Parsi, Jew) : Indian Succession Act, 1925 :
A will made by a Hindu, Christian, Parsi, Jew is governed by the provisions of the
Indian Succession Act, 1925.
However, Mohammedans are not governed by the Indian Succession Act, 1925
and they can dispose their property according to Muslim Law.
Execution of a Will : Every person, not being a soldier employed in an expedition or
engaged in warfare, or an airman so employed or engaged, or a marine at sea shall
execute his will accordingly :
He shall sign or fix his mark to the will or it shall be signed by some other person
in his presence and by his direction
The signature or mark should be so placed that it shall appear that it was
intended thereby to give effect to the writing as a will
The will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark on the will or has seen some other person sign the
will, in the presence and by the direction of the testator or has received from the
testator a personal acknowledgement of his signature or mark, or of the
signature of such other person.
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Each of the witnesses shall sign the will in the presence of the testator, but it
shall not be necessary that more than one witness be present at the same time,
and no particular form of attestation is necessary.
Kinds of Wills :
Conditional Will :
This is a Will made so as to take effect only on a contingency.
For example - the operation of the document may be postponed till after the
death of the testators wife.
Joint Will :
Two or more persons may make a joint Will. It will take effect as if each has
properly executed a Will as regards his own property.
If a Will is joint and is intended to take effect after the death of both, it will
not be admitted to probate during the lifetime of either.
Mutual Will :
A Will is mutual when two testators confer on each other reciprocal benefits as
by either of them constituting the other his legatee, that is to say, when the
executants fill the roles of both the testator and legatee towards each other.
Mutual Wills are also called Reciprocal Wills.
Holograph Will :
A holograph is a Will entirely in the handwriting of the testator.
Naturally there is a greater guarantee of genuineness attached to such a Will.
But in order to be valid it must also satisfy all the statutory requirements.
Concurrent Wills :
The general rule is that a man can leave only one will at the time of his death.
But for sake of convenience a testator may dispose off some properties. e.g.,
those in one country by one Will and those in another country by another Will.
Concurrent wills may be treated as wholly independent of each other, unless
there is any inter-connection or the incorporation of one in the other.
Duplicate Will :
A testator, for the sake of safety, may make a will in duplicate, one to be kept
by him and the other deposited in some safe custody with a bank, executor or
trustee.
Each copy must be duly signed and attested in order to be valid.
A Valid revocation of the original would affect a valid revocation of the
duplicate also.
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Onerous Will :
This is a Will, which imposes an obligation on the legatee that he gets nothing
until he accepts it completely.
Registration of Will :
A will need not be registered compulsorily but if so desired it may be registered
by the testator during his lifetime. Will may be deposited with the registering
authority under Sec.42 of the Indian Registration Act, 1908.
A Will or Codicil is not required to be stamped at all.
Wording of a Will :
Sec.74 of the Indian Succession Act, 1925 lays down that the use of technical
words or terms of art is not necessary in a will but the wording should be such
as to clearly indicate the intention of the testator.
A will must be construed as a whole to give effect to the manifest intention of
the testator;
Nathu v. Debi Singh, AIR 1966 Punj 226.
Revocation of Will :
A Will may be revoked at any time before the death of the testator but a will
executed by two persons jointly cannot be revoked after the death of any one of
them, if the survivor has given effect to the directions of the deceased testator.
In case of two Wills, the latter one will prevail; Badari Basamma v. Kandrikeri,
AIR 1984 NOC 237 (Kant).
In case of revocation, the testator should give it in writing that he has made
certain changes or has revoked the will. It must be signed by the testator and
attested by two or more witnesses. There should be a clause stating that the
present will is the last will of the testator and any will made prior to this would
stand revoked.
The testator cannot revoke the will by just striking it off or scratching it. He must
sign it and have it attested by at least two witnesses.
Probate of Will :
Probate means copy of the will certified under the seal of a Court of a competent
jurisdiction.
Probate of a will when granted establishes the will from the death of the testator
and renders valid all intermediate acts of the executor as such.
Probate is conclusive evidence of the validity and due execution of the will and of
the testamentary capacity of the testator.
Probate differs from a Succession Certificate.
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A probate is issued by the Court, when a person dies testate i.e. having made
a will and the executor or beneficiary applies to the court for grant of probate.
In case a person has not made a will, his legal heirs will have to apply to the
Court for grant of a Succession Certificate, which will be given as per
applicable laws of inheritance.
To whom can a probate be granted :
Probate can be granted only to the executor appointed by the will.
The appointment may be expressed or implied by necessary implication.
It cannot be granted to any person who is a minor or is of unsound mind, nor
to any association of individuals unless it is a company that satisfies the
conditions prescribed by the rules made by the state government.
Persons eligible for grant of letter of administration :
Where the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain or an
exempted person and has died intestate, the Court may grant administration
of his estate to any person, who according to the rules of distribution of the
estate applicable for in the case of such deceased would be entitled to the
whole or any part of such deceased estate.
When several of such persons apply for such administration, it shall be the
discretion of the Court to grant it to any one of them.
When no such person applies, it may be granted to a creditor of the deceased.
Letters of administration entitle the administrator to all rights belonging to
the, intestate as effectively, as if the administration has been granted at the
moment after his death.
They, however, do not render valid any intermediate acts of the administrator
tending to the damage of the intestates estate.
For obtaining a letter of administration, the beneficiary has to apply to the
Court. The Court on receiving satisfactory proof of valid execution of the will,
issues letter of administration to the beneficiary.
Procedure For Obtaining Probate :
A petition for probate must be filed in Court along with the will in question.
It should contain the following facts.
a. the time of the testators death
b. that the writing annexed in his last will and testament
c. that it was duly executed
d. the amount of assets which are likely to come to the petitioners hands,
and
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property was bequested to one heir and other were not given anything, the
bequest was void in its entirety.
Limitations as regard to the amount :- The general principle is that a muslim
is not allowed to will more than 1/3rd of his property after taking out funeral
charges and debt. However,
under Hanafi law, it may be valid if heirs give the consent after the death of
the testator.
under Shia law, such consent can be taken either before or after the death.
Another exception is that if the testator has no heir, he can will any
amount. The govt. cannot act as a heir to the heirless person.
Applicability of the Indian Succession Act, 1925 :
The provisions of the Indian Succession Act, 1925 are not applicable to Muslims.
However, a Muslim cannot claim immunity if his marriage was held under the
Special Marriage Act, 1954. In such cases, the provisions of the Indian
Succession Act 1925, shall be applicable even though the will was made before
or after the marriage.
Where a will is governed by the Muslim Law, it will be subjected to the provisions
of the Shariat Act 1937.
Revocation : The Mohammedan Law confers on a testator unfettered right to
revoke his will. He may revoke it at any time. The revocation may be :
Expressed, or
Implied
Differences between Shia and Sunni Law on Will :
For a bequest of more than 1/3 to a Heir's consent may be obtained before
non-heir, the consent of heir must be or after death
obtained after the death of testator.
Bequest to unborn child is valid if the Valid if the child is born within 10
child is born within 6 months of making months of making the will.
the will.
Legatee who causes death even by Legatee who causes death by accident
accident is incapable of receiving any is capable.
legacy.
Will of a person committing suicide is Valid only if the will is made before the
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If the legatee dies before testator, the The legacy lapses only if the legatee
legacy lapses and goes back to the dies without heirs otherwise, it goes to
testator. legatee's heirs.
Legatee must accept the legacy after Legatee can accept the legacy even
the death of the testator. before the death
of the testator.
Gift Will
Subject of gift must exist at the time of Subject of will must exist at the time of
making gift. death of the testator.
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
ALL inclusive question on principles of succession ---> Discuss in detail rules for
distribution of property of Hindu, Muslim, Christian, Parsi and Jew MALE/ FEMALE
dying intestate or with testament (will).
Answer :
<This is an detailed and broad discussion on succession laws of different
communities>.
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Refer :
TrainingModuleRightsOfWomenUnderThePersonalLawsInIndia.pdf
SUB-MENU of ALL inclusive question on principles of succession :
Rights to Succession under Hindu Laws :
Intro : Hindu Succession Act :
General rules of succession (Hindu Male - Intestate) :
Distribution of property under the Hindu Succession Act :
Succession Rights of women in Hindu Laws :
Rights of children born from a void or voidable marriage and of illegitimate
children :
Testamentary succession Hindu Laws :
Hindu male dying intestate :
Hindu female dying intestate (HSA 1956 as well as ISA 1925) :
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
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Joint family property cannot be bequeathed (gifted) through a will; only self-
acquired property can be bequeathed through a will.
Joint family property cannot be given away by any of the coparceners. For
example, a gift would not be valid.
What are the rights of the coparcener in a joint family property?
Right by birth.
Ownership of the property is joint. Thus the property is to be enjoyed jointly
and the liabilities such as debts have to be borne jointly. The property cannot
be generally given away without consent of all coparceners.
Right of Survivorship : This means that the share of the coparcener in a joint
family property keeps changing, based on births and deaths in a family.
Example :
Naresh has five children, Durgesh, Ravi, Suresh, Anil and Subhadra. None
of them are married. So in a joint family property, each had one-sixth share
but if Naresh dies the share of the others become one-fifth each in the
property. This right of surviving coparceners to increase their share is called
the right of survivorship.
Right to ask for accounts
Right to ask for partition
Right to stop improper action by other coparceners which is against the
interest of the joint family property, and
Right to have other self acquired property
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But even these developments were not sufficient for women because in the
fundamental principle of the Hindu Law, men got a share in their ancestral
property by birth but women only got a share in their fathers self acquired
property or husbands property. So, men not only had a share in the ancestral
property but they also got a share in the fathers property. Woman on the
other hand did not get a share in the ancestral property by birth; they only
got a share in the property of the dead father or husband. There are
significant changes in this position after 2005 amendment in the Hindu
Succession Act, 1956.
Amendment in the Hindu Succession Act, 1956 :
Historically, in the Hindu Laws, woman were not allowed to be coparceners.
A coparcener could only be a male.
While women had no right to ask for partition of the joint family property,
she did enjoy certain rights on the joint family property such as right to
residence. And till the property was divided, the woman enjoyed the rights
to use the joint family property, but upon partition the woman did not get a
share in the property. Only the co-parceners (ie males) did. This concept
violated the fundamental right to equality as envisaged in the Constitution
of India.
Since family laws are a concurrent (Constitution of India) subject, in order to
correct this inequality, several states amended the Hindu Succession Act so
that women in their state could attain the same and equal rights to property
as men.
Andhra Pradesh made an amendment in 1985,
Tamil Nadu in 1989,
Maharashtra and Karnataka in 1994,
In September, 2005 Government of India introduced an amendment Bill of the
Hindu Succession Act to give equal property rights to women by birth. The
Hindu Succession (Amendment Act 2005) came into force from September 9,
2005.
Sep-2005 amendment made all Hindu women in India coparceners in the Joint
family property.
Note that, the right of woman to be coparcener started from the date the law
was changed.
In some states of India, this change was introduced even earlier. Eg in
Karnataka change came into effect on July 30, 1994.
ie Woman who was married after date of change taking effect will be
considered as a coparcener.
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and a woman who was married before date of change taking effect will
not have the coparcenary right in ancestral property. She will only get a
share from her fathers property.
If ancestral property has been partitioned before date of change taking effect,
a woman cannot claim right as a coparcener in the ancestral (Coparcenary or
Joint family) property, she will only be entitled to her share from the fathers
property.
What are the property rights of a woman under Hindu laws ?
A woman is considered as coparcener in the ancestral property and thus has a
right to ask for partition in the ancestral property.
A woman has several rights depending on who she is
as a married daughter,
as an unmarried daughter,
as a widowed daughter in law,
as a sister and
as a mother.
A Hindu daughter, after 2005, is considered a coparcener and thus enjoys the
right to ancestral property by birth. She enjoys the following rights :
Right to Maintenance under section 125 CrPC
Right to Maintenance under section 18 of the Hindu Adoption and
Maintenance Act
Right to Maintenance under section 25 of the Hindu Marriage Act
Right to Maintenance can be claimed by widowed daughter in law under
section 19 of the Hindu Adoption and Maintenance Act
Right to residence (a daughter has a right to reside in her fathers house if
she is unmarried, deserted or separated from her husband or is a widow)
Right to stridhan, and
Right to a share in husbands property and fathers property
How can a woman get her property rights enforced ?
Under the Hindu law ancestral property is jointly held by all the coparcener.
Even if the property is in the name of the Karta, the other coparceners have a
share as per the law, but this share is a notional share when a person cannot
claim that one share of the property belongs to him. This can only be enforced
once a partition is asked for by the coparceners or anyone of the coparcener.
If they agree to a partition the property will be divided and distributed later.
Division takes place on the basis of principle as discussed earlier.
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Under the Shia Law of Inheritance, heirs are divided into two groups. These
are:
(A) heirs by consanguinity or nasab i.e. by blood relations (same father)
they consist of
(I)
(i) Parents
(ii) Children and other lineal descendants
(II)
(i) Grandparents however high soever
(ii) Brothers and sisters and their descendants
(III)
(i) Paternal uncle and aunts of the deceased, and of his parents and
grandparents --- how high so ever and their descendants how low so
ever
(ii) Maternal Uncle and aunts of the deceased, and of his parents and
grandparents --- how high so ever and their descendants how low so
ever
(B) Heirs by marriage, The husband or wife is never excluded from
succession. The husband or the wife inherits property along with the nearest
heirs who are related by blood. The wife usually gets half of what is entitled to
the husband.
Categories of inheritance :
Unlike hanafi, the heirs under Shia law of inheritance are divided under
sharers and residuaries. There are no classification for distant kindred.
There are nine sharers ---> husband, wife, father, mother, daughter,
uterine brother, uterine sister, full sister and consanguine sister.
The remaining are residuaries.
Distribution of property :
If the deceased lives only one heir, the heir gets all the succession. In case
the heir is a wife, she is entitled only to one fourth of inheritance and the
remaining will go to the government.
In case the deceased leaves two or more heirs, the first step would be to give
a share to the husband or the wife and the remaining share will be given to
the successor as per rules that have been laid down in doctrine of return
(radd).
If there is residue left and there are no residuaries, the remaining inheritance
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(c) If none of the kindred relative are alive his entire property shall belong to
his widow.
Note : Lineal descendants mean descendant born in lawful wedlock only.
Section 33-A of the Indian Succession Act 1925 :
(1) intestate has left widow and no lineal descendant a net value of the
property that does not exceed Rs.5,000 and the whole of his property shall
belong to the widow.
(2) When the net value of the property exceeds Rs. 5,000, the widow shall be
entitled to Rs. 5,000 thereof and shall have a charge upon the whole of such
property for such sum of five thousand rupees, with interest thereon from the
date of the death of the intestate at 4 per cent. per annum until payment.
(3) The net value of the property shall be ascertained by deducting from the
gross value all the deeds, funeral expenses, administration expenses of the
intestate and any other lawful liabilities and charges to which the property
shall be subject.
Section 34 of the Indian Succession Act, 1935 where the intestate has left no
widow, and where he has left no kindred his property shall go to lineal
descendant and if none are there, it shall go to the government.
Section 35 of the Indian Succession Act : intestate has left a widower :
A husband surviving his wife has the same rights in respect of her property, if
she dies intestate, as a widow has in respect of her husbands property, if he
dies intestate.
(Section 36-40) Where an intestate has left lineal descendants, the rules
for the distribution of his property (after deducting the widows share. If he has
left a widow) are as follows :
(Lineal descendants mean descendant born in lawful wedlock only.)
Where the intestate has left surviving him a child or children, but no more
remote lineal descendant through a deceased child, the property shall belong
to his surviving child, if there is only one, or shall be equally divided among all
his surviving children.
Where the intestate has not left surviving him any child, but has left a
grandchild or grandchildren and no more remote descendant through a
deceased grandchild, the property shall belong to his surviving grandchild if
there is only one, or shall be equally divided among all his surviving
grandchildren.
Where intestate has left only great-grandchildren or remoter lineal
descendants, the property shall go to the surviving lineal descendants who are
nearest in degree to the intestate, where they are all in the degree of great-
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Where the intestate has left neither lineal descendants, nor father, nor mother,
the property shall be divided equally between his brothers and sisters and the
child or children of such of them as may have died before him. Such children
(if more than one) will take in equal shares only the shares which their
respective parents would have taken if living at the intestates death.
Where the intestate has left neither lineal descendants, nor parents, nor
brother, nor sister, his property shall be divided equally among those of his
relatives who are in the nearest degree of kindred to him.
NOTE : Where intestate has left no widow/ widower, no lineal descendants and
where he has left no kindred, all property shall go to the government.
Illustration : The property devolves upon the wife or husband or upon the
relatives of the deceased in the following manner :
If A has left no will - He has died intestate in respect of the whole of his
property.
A has left a will, whereby he has appointed B as his executor; but the will
contains no other provisions - A has died intestate in respect of the
distribution of his property.
A has bequeathed his whole property for an illegal purpose A has died
intestate in respect of the distribution of his property.
When a will is partially incapable of being operative eg. A has bequeathed Rs.
1000 to B and Rs. 1000 to the eldest son of C, and has made no other
bequest; and has died leaving the sum of Rs. 2000.00 and no other property.
C died before A without having ever had a son. A has died intestate in
respect of the distribution of Rs.1000.
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(c) Where a widow of an intestate has been married, she shall not Division of
the male property among widow, children and parents- Section
51 of the Indian Succession Act, 1925 provides property of a male parsi who dies
intestate, shall be divided between a widow and children so that the share of
each son and of the widow shall be double than the share of each daughter :
(a) Where the children are there and wife is no more, the property is divided
among children so that the share of each son shall be double the share of
each daughter.
(b) Where the male Parsi dies leaving one or both parents in addition to
children or a widow, the property shall be divided so that father receive the
equal share to the half share of the son and the mother shall receive a equal
share to half the share of a daughter.
(c) In the division of female intestate property among a husband and children,
section 52 of the Indian succession act the property of which a female Parsi
dies intestate, shall be divided :
(i) When she dies, and there remains only a husband and children.
Husband and each child shall receive equal shares.
(ii ) Where she dies and there remain only children the property would be
divided among the children in equal shares
Division of share of pre deceased child of intestate living lineal descendant :
According to section 53 of the Indian Succession Act 1925 in all cases, where a
parsi dies living any lineal descendant, if any child of such intestate has died in
the lifetime of the intestate, the division of the share of the property of which
the intestate has died, which such child would have taken if living at the
intestate dead shall be in the following manner-
(a) If such deceased child was a son, his widow and children shall take shares
as if he had died immediately after the intestates death. But if such deceased
son has left a widow or widow of a son, but no children, the residue of his
share after such distribution shall be divided taking into account as though he
were alive.
(b) If such deceased child was a daughter, her share shall be divided equally
among her children.
(c) If any child of such deceased child has also died during the life time of the
intestate ,which he or she would have taken if living at the intestate death,
shall be divided as stated in clause a & b
Distribution of property where the intestate leaves no children but leaves a
widow or a widower or a widow of the lineal descendent
section 54 of the Indian Succession Act, 1925, when a Parsi dies without living
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the intestate relative who are in the nearest degree of kindred to him.
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
Discuss : Classification of heirs under Hanafi and Ithana Ashria school and their
share and distribution of property.
Answer :
Refer :
read from Critical study between Hanafi & Shia Law as to Succession --->
https://www.academia.edu/8794744/family_law
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
What are the requirement of a valid adoption under the Hindu Adoption and
Maintenence Act 1956 ? Discuss. (Apr-2012, Oct-2012, Apr-2016).
Answer :
Refer :
Taken from Sem-3 notes :-)
What is adoption ?
Simply stated : Adoption is a process whereby a person assumes the parenting for
another who is not kin and, in so doing, permanently transfers all rights and
responsibilities from the original parent or parents.
Sec.2 (aa) of the Juvenile Justice (Care and Protection of Children) Act, 2000,
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(HAMA), 1956 and after the enforcement of this Act all adoptions can be made in
accordance with this Act. It came into effect from December 21, 1956.
Salient provisions :
Before enactment of this Act, only a male could be adopted, but with the passing
of the Act it makes a provision that a female may also be adopted.
One of the features of this Act is that no Hindu person can adopt a son or
daughter, if they already have a child of that sex.
The HAMA provides that there should be an age difference of 21 years between
the adoptive parent(s) and the adopted child whenever they are of opposite sex.
This is intended to prevent sexual abuse.
What are the laws under which adoption can be made ? There are three legislations
under which adoption can be made. They are :
The Hindu Adoptions and Maintenance Act (HAMA), 1956
Guardians and Ward Act ,1890
The Juvenile Justice (Care and Protection of Children) Act, 2000.
Who has a right for adoption under the HAMA ?
Only Hindus, Buddhists, Jains and Sikhs and to any other person who is not a
Muslim, Christian, Parsi by religion. (section 2(1)(a)(b)(c))
WHAT ARE THE REQUIREMENTS FOR A VALID ADOPTION ? As given in section 6,
no adoption can take place unless :
(A) The person adopting has the capacity and the right, to take in adoption
(B) The person giving a child in adoption has the capacity /right to do so:
(C) the person adopted is capable of being taken in adoption
(A) The person adopting has the capacity and the right, to take in adoption :
Capacity of male to adopt (Section 7) : Any male Hindu, who is of sound mind
and is not a minor, has the capacity to take a son or daughter in adoption.
Provided that,
if he has a wife living, he shall not adopt except with the consent of his
wife, unless his wife has completely and finally renounced the world or has
ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind.
if a person has more than one wife living at the time of adoption the
consent of all the wives is necessary unless the consent of one of them is
unnecessary for any of the reasons specified in the preceding provision.
Capacity of female to adopt (section 8) : Any female Hindu
who is of sound mind
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He or she has not been married, unless there is a custom or usage applicable
to the parties, which permits persons who are married being taken in
adoption;
He or she has not completed the age of fifteen years unless there is a custom
or usage applicable to the parties which permits persons who have completed
the age of fifteen years being taken in adoption.
WHAT ARE THE OTHER CONDITIONS FOR A VALID ADOPTION ? Section 11
provides for the conditions to be complied with. They are as follows :
i) If the adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son. The sons son or sons sons son
living at the time of adoption
ii) If the adoption is of a daughter, the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or sons daughter living at the
time of adoption;
iii) If the adoption is by a male and the person to be adopted is a male, the
adoptive father is at least twenty one years older than the person to be adopted;
iv) If the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty one years older than the person to be
adopted;
v) The same child may not be adopted simultaneously by two or more parents;
vi) The child to be adopted must be actually given and taken in adoption with an
intent to transfer the child from the family of birth.
WHAT ARE THE EFFECTS OF ADOPTION ?
An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of adoption.
However, any property which vested in the adopted child shall continue to vest in
such person subject to the obligations if any attached to the ownership of such
property including the obligation to maintain relatives in the family of his or her
birth.
Similarly the adopted child shall not divest a person of any estate which vested
in him or her before adoption.
Subject to any agreement to the contrary, an adoption does not deprive the
adoptive father or mother of the power to dispose of his or her property by
transfer inter vivos or will.
REGISTRATION :
The adoption deed is not required to be registered (except in Uttar Pradesh),
except where it declares or reserves an interest worth Rs. 100 or more for a
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GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
State the different kinds of guardians under the Hindu Law and discuss the powers
of natural guardian. (Oct-2012).
State who are natural guardians of a Hindu minor. What are the powers of such
natural guardian ? (Apr-2012, Apr-2016).
Write short note : natural guardians of a Hindu minor and their powers. (Apr-2013).
Answer :
Refer :
Taken from Sem-3 notes :-)
http://hanumant.com/MinoriyAndGuardianship.html
Hindu Minority and Guardianship Act 1956
Evolution of the concept of guardianship :
In Hindu dharma shastras, not much has been said about guardianship. Due to the
concept of joint families, a child without parents was usually cared for by the head
of the joint family. Further, it was well accepted that the king is the guardian of all
the orphans. Thus, no specific laws were required regarding guardianship.
During British period, guardianship was primarily based on the extension of
paternal authority. Thus, after parents, elder brothers,paternal uncles, and then
maternal relations used to look after the interests of the minor. The British also
introduced the concept of testamentary guardians in India.
The concept of guardianship has changed from paternal power to the idea of
protection in modern times and the Hindu Minority and Guardianship Act 1956
(HMG Act 1956) codifies the laws regarding minority and guardianship with the
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The court shall not give permission for sale of immovable property unless it is
necessary or clearly in the benefit of the minor.
Powers of a natural guardian also include the following :
right in education
right to determine religion
right to custody
right to control movement
right to chastisement
Case-law : In the case of Manik Chandra vs Ram Chandra AIR 1981 SC has held
that the meaning of "necessity" and "advantage" of a minor are quite wide and
the courts have the power to widen their scope as per the case facts before
giving the permission. As per section 12, no guardian can be appointed for the
undivided interest in the joint property of the minor. However, the court may
appoint a guardian for the complete joint family if required.
2. Testamentary Guardian (Sec 9) :
A person who becomes a guardian due to the will of a natural guardian is called a
testamentary guardian. Section 9 defines a testamentary guardian and his powers.
For a legitimate boy or a girl, the father, who is a natural guardian, may appoint
any person to act as the guardian of the child after the death of the father.
However, if the mother is alive, she will automatically become the natural
guardian and after her death, if she has not named any guardian, the person
appointed by the father will become the guardian.
A widow mother who is a natural guardian, or a mother who is a natural
guardian because the father is not eligible to be a natural guardian, is entitled to
appoint a person to act as a guardian after her death.
For an illegitimate child, the power of appointing a testamentary guardian lies
only with the mother.
Powers of a Testamentary Guardian :
A testamentary guardian assumes all powers of a natural guardian subject to
limitations described in this act and to the limitations contained in the will. A
testamentary guardian is not liable personally for the expenses and he can ask
the guardian of the property of the minor to meet the expenses through the
property.
The rights of the guardian appointed by will cease upon the marriage of the girl.
Guardianship by Affinity :
In Paras Nath vs State, Allahbad HC 1960, held that the father-in-law is the rightful
guardian of a minor widow. However, this view has not been adopted by Nagpur
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HC. Madras HC also did not hold this view and held that the welfare of the child is
to be considered first before anything else.
De Facto Guardian :
Section 11 says that a de facto guardian is not entitled to dispose or deal with the
property of the minor merely on the ground of his being the de facto guardian.
There is controversy regarding the status of a de facto guardian. Some HC consider
that alienation by de facto guardian is void while alienation by de jure guardian is
voidable (Ashwini Kr vs Fulkumari, Cal HC 1983), while some HC have held that
both are voidable (Sriramulu' case 1949). It is now well settled that de facto
guardian does not have the right to assume debt, or to gift a minor's property, or
to make reference to arbitration.
Who gets custody of a minor ?
Custody of a minor is also subordinate to section 13, which declares the welfare of
the child to be of paramount interest. Regarding a child, who is at the age of
discretion, his wishes are also to be considered, though his wishes may be
disregarded in his best interest.
That a mother is preferred to father for custody is not right. Better economic
condition of the father than maternal grandfather is considered to be in favor of the
father. In Kumar vs Chethana AIR 2004, SC has held that mother's remarriage is
not a sufficient cause in itself to lose custody of a minor. It was further held that
convenience of the parents is irrelevant.
To ensure the welfare of the child, the custody may even be given to the third
person as was given to the mother and grand father by SC in case of Poonam vs
Krishanlal AIR 1989.
In the case of Chakki vs Ayyapan 1989, a mother who says she will keep living with
friends and may beget children from others, was not considered appropriate for
custody in the minor's interest.
Guardians power over minor's property :
In general, a guardian may do all acts that are in the interest of the minor. A third
party may deal safely with the guardian in this respect. However, this excludes
fraudulent, speculative, and unnecessary deals. Before this act, a natural and
testamentary guardian had the power to alienate the minor's property if it is
necessary as determined by SC in Hanuman Prasad vs Babooee Mukharjee 1856.
However, this rule has been restricted through sec 8, which mandates courts
permission before alienating the minor's interest in the minor's property. Also, a
guardian does not have any right over the joint family interest of a minor.
In the case of Vishambhar vs Laxminarayana, 2001, SC has held that a sale of
minor's immovable property without courts permission is voidable and not void ab-
initio. It further held that Sec 60 of Limitations Act would be applicable when the
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GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
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Write short note : Doctrine of increase and return. (Apr-2012, Apr-2013, Mar-2015).
Write short note : Doctrine of Rudd and Increase. (Oct-2012).
Answer :
Refer :
http://www.shareyouressays.com/117394/what-is-doctrine-of-increase-aulmuslim-
property-law-in-india
http://www.shareyouressays.com/117396/what-is-the-rule-of-return-radd-under-
the-muslim-law-of-inheritance
https://www.academia.edu/8794744/family_law
What is Doctrine of Increase (Aul)?
According to Muhammadan law, the shares of various sharers are fixed.
Where several sharers co-exist, it sometimes happens that the total of their
respective shares exceeds unity (one).
Example : suppose the deceased leaves behind a husband and two full sisters.
Ordinarily, the husband will take 1/2, as there is no child or child of a son how
lowsoever, and the two sisters together will take 2/3, as there is no son. 1/2 +
2/3 = 7/6 which exceeds unity, and the property falls short in distribution. How
then is the deceaseds property to be divided?
This difficulty is solved by increasing the common denominator to the sum of the
numerators, and thus reducing the fractions without disturbing the proportion
between them. Thus, in the illustration taken above, on reducing the fractions to
the common denominator one gets1/2 = 3/6 and 2/3 = 4/6.
Thus, with the common denominator the shares are: husband = 3/6 and two
sisters = 4/6. (The sum of the numerators is 7.] Now, the common denominator
is increased to the sum of the numerators, (i.e., 7). On doing this, the shares
would be as follows: husband: 3/7 and two sisters 4/7 (3/7 + 4/7 = 1.)
It may be noted that this doctrine is called increase, not because the shares
are increased, which is quite the opposite, the very object of the doctrine being
to diminish the shares, but because the unity is reached by increasing the
denominator of the fractional shares.
In other words, if it is found, on assigning their respective shares to the sharers,
that the sum total of the shares exceeds unity, the share of each sharer is
proportionately diminished, by reducing the fractional shares to a common
denominator and increasing the denominator, so as to make it equal to the sum
of the numerator.
Difference between Shia and Sunni Law of Increase :
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According to the Sunni law, the doctrine implies proportionate reduction of all
the shares.
According to the Shia law, on the other hand, it implies the reduction of the
shares of the daughter or the daughter and full or consanguine sister or sisters
only. Other heirs do not suffer.
What is Doctrine of Return (Rudd/ Radd)?
If, on assigning their shares to the sharers, it is found that the total of the shares
does not exhaust the whole, the residue will go to the residuaries.
But if there are no residuaries, the residue will not go to distant kindred, but would
be distributed among the sharers in proportion to their shares. This right of
reverter is called radd (return).
Sunni Law :
The residuaries take the surplus between them, after the shares are satisfied.
But instances may occur where there is surplus left, but there are no residuaries
to take it. Thus, suppose A dies leaving behind his mother and a sons daughter
(both sharers), and no residuaries. Their shares respectively are 1/6 and 1/2.
This together makes 2/3 of, 4s property, leaving 1/3 of his property as surplus,
with no residuary to take it. In such a case, the surplus reverts to the sharers in
proportion to their shares. This is done by reducing the fractional shares to a
common denominator, and by decreasing the denominator of those shares, so as
to make it equal to the sum of the numerators. (This mathematical procedure is
just the reverse of what is done in the doctrine of aul.)
Thus, in the above illustration, the shares of the mother and the sons daughter
are 1/6 and 1/2 respectively. Reducing them to the common denominator, gives
1/6 and 3/6. The sum of the numerators is (1+3) = 4. By decreasing the
denominator of the shares to make it equal to the sum of the numerators, one
arrives at 1/4 and 3/4.
These will be the shares of the two sharers. Thus, the Return (Radd) is the
apportionment of surplus among the sharers, when the shares do not exhaust
the property, and there are no residuaries.
Exception : The husband or wife of the deceased is not entitled to share in the
return, so long as there is any other heir. If there are any other sharers, they will
share the return among themselves, without giving his or her share, the residue
will go to the distant kindred, if any.
It is only when there is no other heir belonging to any of the three classes of
heirs, sharers, residuaries or distant kindred, and the husband or wife is the
only heir, that he or she will take the residue by return, i.e., the whole of the
estate. (Mir Isub v. Isab, (1920) 20 Bom. L.R. 942.)
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Illustration :
A Sunni woman dies, leaving a husband and a mother. How will the estate
devolve?
Ans: The husband is entitled to 1/2 as a sharer, and the mother to 1/2 (1/3
as sharer and 1/6 by return).
A Sunni woman dies, leaving a husband and a daughter. How will the estate
devolve?
Ans: The husband will get 1/4 as sharer, and the daughter 3/4 (1/2 as
sharer and 1/4 by Return).
Shia Law :
Under the Shia law, if there is a surplus after satisfying the shares, it is not
necessary that there should be no residuaries in order to apply the doctrine of
return.
If there is a surplus left after the allotment of shares of the sharers, but there
are no residuaries in the class to which the shares belong, the surplus reverts to
the sharers in the proportion of their respective shares.
Difference between Increase and Return :
The doctrine of return is the converse of the doctrine of increase.
In increase, the shares exceed unity, and suffer a proportionate reduction.
In return, the shares fall short of unity, and are proportionately increased. In
return, the husband and wife do not benefit if there is any other sharer or a
distant kindred, but they are not saved from the operation of the doctrine of
increase.
Thus, the important points of difference between the two are as under:
1. In Increase, the total of the shares adds up to more than unity;
whereas in return the total falls short of unity.
2. In Increase, the shares undergo rateable reduction.
In Return, the shares undergo a rateable increase.
3. In Increase, the share of the husband or wife suffers a proportionate
reduction along with other sharers.
In Return, the husband or wife is not entitled to the Return so long as there
is any other heir, whether sharer or distant kindred.
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
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GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
Write short note : Domicile under Indian Succession Act. (Apr-2012, Apr-2013, Mar-
2015).
Answer :
Refer :
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GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
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Module-3) Gifts :
GO TO CONTENTS.
MODULE-3 QUESTIONS :
GO TO CONTENTS.
MODULE-3 ANSWERS :
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otherwise.
According to Hindu law, an acceptance of a gift can be made in three ways :-
Mental acceptance;
Verbal acceptance;
Corporeal acceptance;
Essentials of valid gift :
The essential elements of a gift are :
property to be gifted must exist
gift must be voluntary
The absence of consideration
The donor
The donee
The transfer of title and the acceptance by donee
Mere registration of a deed of a gift is not equivalent to delivery of possession; it
is not therefore sufficient to pass the title of the property from the donor to the
donee.
Gift when complete :
The traditional Hindu Law rules as to gifts were radically modified in 1882, by the
passing of the Transfer of Property Act in that year.
Under S. 123 of that Act, a gift of immovable property can only be effected by a
registered instrument signed by or on behalf of the donor and attested by at
least two witnesses.
Thus, delivery of possession is not an ingredient of a gift under that Act. As
regards movable property, the Act provides that a gift may be effected by a
registered instrument signed as aforesaid, or by delivery.
It may, however, be noted that there are certain areas in Punjab where the
Transfer of Property Act does not apply. And therefore, in such places, a gift is
still governed by traditional Hindu law, under which the gift may be in writing or
may even be oral.
However, such a gift is not valid, unless it is accompanied by delivery of
possession from the donor to the donee.
Kalidas v. Kanhaya Lal. 11 Cal. 121
In case the subject-matter of the gift is of such a nature that it is not possible
to gift physical possession, in order to validate the gift, it is enough if the
donor has done all that he could do to complete the gift, so as to entitle the
donee to obtain possession thereof.
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In Muslim law the term possession means only such possession as the
nature of the subject is capable of. Thus, the real test of the delivery of
possession is to see who - whether the donor or the donee - reaps the
benefits of the property. If the donor is reaping the benefit then the
delivery is not done and the gift is invalid.
Conditions which must be satisfied for a valid gift :
1. Competency of donor and donee - There must be two parties to a gift
transaction - the donor and the donee.
Conditions for Donor - (Who can give) :
1. Must have attained the age of majority - Governed by Indian Majority
Act 1875.
2. Must be of sound mind and have understanding of the transaction.
3. Must be free of any fraudulent or coercive advice as well as undue
influence.
4. Must have ownership over the property to be transfered by way of gift.
Note :
A gift by a married woman is valid and is subjected to same legal rules
and consequences.
A gift by a pardanashin woman is also valid but in case of a dispute the
burden of proof that the transaction was not conducted by coercion or
undue influence is on the donee.
Gift by a person in insolvent circumstances is valid provided that it is
bona fide and not merely intended to defraud the creditors.
Conditions for Donee (who can receive) :
1. Any person capable of holding property, which includes a juristic person,
may be the donee of a gift. A muslim may also make a lawful gift to a non-
muslim.
2. Donee must be in existence at the time of giving the gift. In case of a
minor or lunatic, the possession must be given to the legal guardian
otherwise the gift is void.
3. Gift to an unborn person is void. However, gift of future usufructs to an
unborn person is valid provided that the donee is in being when the interest
opens out for heirs.
2. What can be gifted ?
1. It must be designable under the term mal.
2. It must be in existence at the time when the gift is made. Thus, gift of
anything that is to be made in future is void.
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Exceptions in delivery of possession : The following are the cases where deliver
of possession by the donor to the donee is not required -
1. Gift by a father to his minor or lunatic son. In Mohd Hesabuddin vs Mohd.
Hesaruddin AIR 1984,
the donee was looking after the donor (donees mother) while other sons were
neglecting her.
The donor gifted the land to the donee. After donors death the donee
changed the name on the land records.
It was held that it was a valid gift even though there was no delivery of land.
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2. When the donor and the donee reside in the same house which is to be gifted.
In such a case, departure of the donor from the house is not required.
3. Gift by husband to wife or vice versa. The delivery of possession is not
required if the donor had a real and bona fide intention of making the gift.
4. Gift by one co-sharer to other. Bona fide intention to gift is required.
5. Part delivery - Where there is evidence that some of the properties in a gift
were delivered, the delivery of the rest may be inferred.
6. Zamindari villages - Delivery is not required where the gift includes parcels of
land in zamindari if the physical possession is immpossible. Such gift may be
completed by mutation of names and transfer of rents and incomes.
7. Subject matter in occupation of tenant - If a tenant is occupying the property,
the gift may be affected by change in ownership records and by a request to the
tenant to attorn (transfer) the donee as a new owner.
8. Incorporeal rights - The gift may be completed by any appropriate method of
transfering all the control that the nature of the gift admits from the donor to the
donee. Thus, a gift of govt. promissory note may be affected by endorsement
and delivery to the donee.
9. Where the donee is in possession - Where the donee is already in possession
of the property, delivery is not required. However, if the property is in adverse
possession of the donee, the gift is not valid unless either the donor recovers the
possession and delivers it to donee or does all that is in his power to let the
donee take the possession.
Void Gifts :
The following six kinds of void gifts are discussed below :
1. Gifts of future property
2. Contingent gifts
3. Gifts to unborn persons
4. Conditional gifts
5. Gifts of undivided share (mushaa)
6. Gifts of property held adversely to the donor.
1. Gifts of future property :
Under Muhammadan law, a gift of future property cannot be made. The
property to be gifted must be actually in existence at the time when the gift is
made. If, however, the donor is entitled to a right to receive the fruits of any
property, the gift of the right would be a legal gift, provided the owner divests
himself wholly of the property gifted. A gift which is made to take effect in
future is void.
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Where a Muslim donor does not reserve his right over the corpus of the
property, but stipulates that he would, during his life, enjoy the recurring
income thereof, the gift is valid.
Yusuf v. Collection of Tippera, (1822) I.L.R. 9 Cal. 138. Where a donor
executed a deed of gift containing the words, So long as I live, I shall enjoy
and possess the properties and I shall not sell or make a gift to anyone, but
after my death, you will be the owner,
the gift was held to be void.
2. Contingent gifts :
If a gift is made contingent upon the happening or not happening of a future
uncertain event, such a gift is void in Muhammadan law.
Eg Gift of Insurance Policies :
According to Muslim law, a declaration purporting to be a transfer of certain
property by way of hiba to the donee at a future time contingent on the
happening of a certain event is void; again, if the hiba is attached with a
condition annexed, the gift is valid, but the condition is void.
Illustration :
A Muslim husband, H, insures and assigns his policy to his wife, W, with the
condition that if W predeceases H, the assignment will be inoperative, and
in that event, will revert to H.
This transaction can be looked at from different points of view.
It may be considered as creating a valid contractual obligation between
the insurrer and the assured; or it may be regarded as a gift by a Muslim
vitiated by a contingency, and therefore, invalid under Muhammadan
law. Or,
it may further be argued that it is a gift with a condition attached, and
hence the condition is void and the gift is valid.
3. Gifts to unborn persons :
A gift made to a person not in existence at the date of the gift is not valid.
The only way in which a disposition may be made to an unborn person is by
way of wakf.
4. Conditional gifts :
When a gift is made subject to a condition which derogates from the
completeness of the grant, the gift is valid, but the condition is void.
However, where the condition is not for the return of the corpus of the thing
itself or any part of the corpus, but only for the payment of the interest or
profits of the corpus, both the condition and the gift are valid.
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Illustration :
A gifts B his house on a condition that B will not sell it or B will sell it only
to C, then
the condition is void, and
B takes the gift, ie full rights of the house.
5. Gifts of undivided share (mushaa) :
In Muhammadan law, a gift of an undivided share in a property which is
capable of division is not valid. An undivided share in property whether
movable or immovable, is called mushaa. A valid gift may be made of a
mushaa in property which is not capable of division.
However, a gift of mushaa is valid under the Shia law, even if the property is
capable of division.
A gift of an undivided share (mushaa) in property which is capable of division
is irregular (fasid), but not void (batil),
but a gift undivided share in a property which is incapable of division (e.g
a staircase which is common between the gifted property and the
neighbouring property) is valid.
Thus A, who owns a house, makes a gift to of the house and the right to use
the staircase used by him jointly with the owner of an adjoining house. Is the
gift of the right to use the staircase valid?
Yes, the gift of the right to use the staircase, though it is a gift of mushaa is
valid, for a staircase is not capable of division, i Hussain v. Sharif-un-Nissa.
(1883) I.L.R. 5 All. 285)
Delivery of possession is a necessary condition to validate a gift. The gift of an
undivided share where property is capable of divisionis, as a general rule, not
valid, because, in such cases, deliver of possession becomes impossible,
unless the part given is divided off.
So long as the property remains undivided, possession cannot be said to be
effectively given. Such a gift, however, may be perfected and rendered
valid by subsequent partition and delivery of possession.
(Muhammad Mumtaz v. Zubaida Jan, (1869) 16 I. A. 205) : A makes a gift of
her undivided share in certain lands to B. The share is not divided at the time
of gift, but it is subsequently separated and the possession thereof is
delivered to B.
Here the gift is irregular in its inception, but it is validated by subsequent
delivery of possession.
6. Gifts of property held adversely to the donor.
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A gift of property by one who claims it adversely to the donor is not valid,
unless the donor obtains and delivers possession of the property to the donee,
or does anything to put it within the power of the donee to obtain possession.
In Maqbool Alam v. Khodaija (A.I.R. 1966 S.C. 1194), it was held that
there can be a valid gift of property in the possession of the lessee or a
mortgagee, and a gift may be sufficiently made by delivering constructive
possession of the property to the donee.
The view that a property in the possession of a usurper cannot be given
away, is too rigid.
The donor may make a valid gift of a property in the possession of a
trespasser, provided he either obtains and gives possession of the property to
the donee or does all that he can to put it within the power of the donee to
obtain possession.
A gift of a property in the possession of a trespasser is not established by a
mere declaration of the donor and the acceptance of the donee.
There must also be delivery of possession or some overt act on the part of
the donor to put it within the power of the donee to get possession.
Gift of a Life-Estate (Amree), how Far Valid :
An Amree (or life-grant) is nothing but a gift and a condition; and the
condition is invalid, but the gift is not rendered null by involving an invalid
condition (Hedaya, 489)
On this point, there is a difference of opinion between the Hanafi and the
Shia law.
The Hanafi law treats such a gift as a gift with a condition, the gift being
valid and the condition being void; but,
in Shia law, the creation of a life-estate is valid, and therefore, the gift of
a life-estate (Amree) is also valid.
Mushaa (Hiba bil mushaa) :
http://www.lawkam.org/muslim/mohammedan-law-gift-of-mushaa-where-
property-divisible/6384/
Mushaa means undivided share in a property, movable or immovable.
The gift of undivided share in an indivisible property is valid under all schools,
but there is no unanimity of opinion amongst different schools about gift of
undivided share in a divisible property.
In Shafai and Ithna Asharia laws it is valid if the donor withdraws his control
over the property in favor of the donee.
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but under Hanafi law, such a gift is invalid unless it is separated and delivered
to the donee. However, if property is indivisible, the gift of undivided share is
valid under Hanafi law as well.
Illustration -
A, B, and C are the co-owners of a house. Since a house cannot be divided, A
can give his undivided share of the house to D in gift. Such a gift is valid
under ALL schools of muslim laws.
A, B, and C are the co-owners of 3 Tons of Wheat,
under Shafai and Ithna Ahsharia law, A can give his undivided share of the
wheat to D if he withdraws control over it,
but under Hanafi law, A cannot do so unless the wheat is divided and the A
delivers the possession of 1 ton of wheat to D.
In case of Kashim Hussain vs Sharif Unnisa 1883, A gifted his house to B along
with the right to use a staircase, which was being used by C as well. This gift
was held valid because staircase is indivisible.
Revocation of a Gift :
Under muslim law, all voluntary transactions are revocable,
under Hanafi law a gift is generally revocable, though it is held to be
abominable (disgusting, bad moral).
under Shia law, a gift can be revoked by mere declaration
under Sunni law, it can be revoked only by the intervention of the court of law
or by the consent of the donee.
The following gifts, however, are absolutely irrevocable -
1. When the donor is dead.
2. When the donee is dead.
3. When the donee is related to the donor in prohibited degrees on
consanguinity.
However, in Shia law, a gift to any blood relative is irrevocable.
4. When donor and the donee stand in marital relationship.
However, in Shia law, a gift to husband by wife or vice versa is revocable.
5. when the subject of the gift has been transfered by the donee through a
sale or gift.
6. when the subject of the gift is lost or destroyed, or so changed as to lose
its identity.
7. when the subject of the gift has increased in value and the increment is
inseparable.
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8. when the gift is a Sadaqah. Sadaqah (charity) is that which is given for the
sake of Allaah as an act of worship, without intending to give it to a specific
person and without seeking anything in return, rather it is given to charitable
causes, such as to the needy.
9. when anything as been accepted in return.
GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
Write short note : Difference between Sadkah (Sadquah) and Hiba. (Mar-2015)
Answer :
Refer :
http://www.shareyouressays.com/117476/provision-of-sadqa-or-religious-gifts-
under-muslim-law
http://www.islamhelpline.net/node/10440
What is Sadkah (Sadquah) ?
Where the object of a gift is to secure religious or spiritual gains, the transaction is
called; sadqa.
Nature of Sadqa :
The essential requirements of a valid sadqa are the same as that of a Hiba
i.e. there must be declaration, acceptance and the delivery of possession.
Sadqa may be made in favour of rich or poor donee.
Even if the sadqa is made to a rich donee with an object of getting religious
merits, it is valid.
Any property which may be the subject matter of a gift may also be the subject
matter of a sadqa.
The Hanafi doctrine of mushaa is applicable also to a sadqa.
Difference between Sadkah (Sadquah) and Hiba :
(i) A Hiba is made out of mutual love and affection i.e. just to please a person in
whose favour it is made.
On the other hand, sadqa is made to please the God.
Thus, hiba is a secular or non-religious gift whereas; a sadqa is a religious
gift.
Wilson observes thus :
The Muhammadan Law distinguishes two kinds of gifts (properly so called) by
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the terms sadqah and hiba. Both are voluntary transfers of property without
consideration;
whereas the use of the term sadqah indicates that the special motive for
the gift is to acquire religious merit or nearness to God,
the presumed motive of hiba is either to manifest affection towards, or to
win the affection of an individual donee.
(ii) In Hiba express acceptance is essential,
in sadqa, express acceptance is not necessary; it may be implied and -inferred
from the circumstances.
(iii) Hiba is invalid if it is made to two or more persons without specifying their
shares and without dividing the property
A sadqa is not invalid if made to two or more persons without specifying their
shares and without dividing the property.
(iv) Hiba ba Shart ul Iwaz, a kind of Hiba, is revocable until consideration (iwaz) is
paid,
A sadqa is irrevocable; once made it cannot be revoked subsequently.
Wakf & Sadqa : It may be noted that the object of waqf is also religious and
charitable. But, there is a fundamental difference between a waqf and a sadqa.
In a waqf the subject-matter is tied up forever and ONLY its usufruct is utilised.
That is to say, in wakf the property becomes non- transferable but its benefit is
used for the religious or charitable purposes.
On the other hand, when a sadqa is made, its religious object is achieved as
soon as the property is transferred to the donee. Thereafter, the donee becomes
the owner of the property and he may transfer the property as he likes.
GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
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In India Muslims follow their own personal civil law. This is a legacy of the British
Raj which allowed all religions to have their own personal civil laws.
The governing tenet of Muslim personal civil law is the Shariat. One of the Muslim
laws enshrined in the Shariat is the Marz-ul Maut or gifts made by a Muslim
on his death bed. Muslim law in India means that portion of Islamic civil law
which is applicable only to Muslims.
Generally the trend among Muslims earlier was not to make a will or Wasiyat.
Hence Islamic law thought it prudent to lay down a set of laws regarding disposal
of property when a Muslim was on his death bed. This is referred to as Marz-ul-
Maut.
Gift during Marz-ul-Maut is one form of testamentary succession.
Gift during Marz-ul-Maut means gift on the death bed. When a person is very
seriously ill and on the apprehension of death and he makes a gift at that time,
then it will be a gift during Marz-ul-Maut.
Gift or a will ?
Gifts made by Muslims during death-illness (Marz-ul-maut) are regarded as wills.
Where a Muslim makes any gift of his properties while on his death-bed, the legal
effects of the transaction are not of a Hiba but of will.
Actually Marz-ul-Maut is a hybrid of 'hiba' or gift and will. It includes some essential
elements of will and some essential elements of gift.
As per Islamic personal law a gift made at a time when there is reasonable
apprehension of death of the testator will be distributed as per the canons of the
Shariat. This is called death bed gifts and is valid only if the testator dies after
executing a will.
There are two aspects of a gift made during death-illness; in its formation it is a
pure gift but in its legal consequences it is a will.
Describing the nature of a gift during death-illness (donatio mortis causa) Buckley,
L.J. observed that it is a gift of amphibious nature; not exactly a gift nor exactly a
legacy but partaking of the nature of both.
Characteristics of Marz-ul-Maut :
The doctrine of death-bed gifts is based on the donors state of mind at the time of
the transfer. When a person makes a gift during death- illness, he intends to
distribute his properties according to his own scheme giving up all the hopes for his
life.
A person suffering from mortal-disease believes, beyond reasonable doubt that he
would die very soon. With these apprehensions in mind, he attempts to give away
his properties.
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The result is that although the transfer is inter-vivos but the idea behind such
transfer is that it is likely to take place only after the donors death.
Through a gift, a Muslim donor on his death-bed may transfer his properties
without any restriction of its quantity although in its effects, the transaction is a
will. This may frustrate the very purpose of one-third rule in respect of Muslim
wills. Accordingly, in order to prevent the evasion of restrictions on the
testamentary capacity of a Muslim, a death-bed gift is interpreted as a will.
Essentials of a Death-bed-Gift :
A gift during death-illness is a pure Hiba in its formation but after the donors death
it operates like a will. Therefore, the essential conditions for a gift during death-
illness are :
(i) there is a valid and complete gift, and
(ii) this gift is made during death-illness (Marz-ul-maut) of the donor.
(i) A valid and complete gift :
The only difference between a simple gift and a death-bed gift is that if a gift is
made by a donor during his death-illness, the gift is testamentary; if it is made
normally, the gift is inter vivos i.e. pure Hiba. Thus, in a death-bed gift all the
essentials of a valid Hiba are necessary.
There must be declaration, acceptance and the actual or constructive delivery of
possession. In brief, the gift must be valid in all respects according to the
provisions of Muslim personal law.
(ii) Death-illness (Marz-ul-maut) :
Death-illness is an illness which ultimately results in the death of a person.
However, there must also be a reasonable apprehension in the mind of that
person that he would die on account of that illness.
In other words, any disease or ailment may be regarded as a death-illness if the
person suffering from it believes that there are no chances of his survival.
It is to be noted that the crucial test for Marz-ul-maut is the subjective
apprehension of death in the mind of the donor.
The seriousness of the disease or apprehension of death caused in the minds of
other persons is not relevant. Whether a disease is a death-illness or not depends
upon the donors state of mind rather than the gravity of that disease.
According to Tyabji, for establishing the existence of death-illness following
conditions are necessary :
(a) The illness must have caused death;
(b) There must have been proximate danger of death, so that there was
preponderance of apprehension of death (i.e. at given time death is more
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like a will.
In its operation, such a gift is governed by the Muslim law of wills. Accordingly,
where the donee is a stranger or non-heir, he cannot get more than one-third of
total assets without consent of the donors legal heirs.
Where donee is one of the legal heirs of the donor, the consent of the remaining
legal heirs is necessary even though the property given is less than one-third.
However, if the donor is a Shia Muslim, a gift during death-illness is valid up to
one-third even if the donee is an heir of the donor.
To conclude, in the words of Wilson :
A gift made in mortal sickness is so far regarded as a bequest that it cannot
operate on more than one-third of the testators net assets unless with the
consent of all the heirs nor in favour of one heir without the consent of all heirs.
GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
Define wakf and discuss fully its essential characteristics. (Apr-2012, Apr-2013, Mar-
2015, Apr-2016)
Answer :
Refer :
copied from Sem-3 notes.
What is waqf/ wakf ? A waqf, also spelled wakf is, an inalienable religious endowment
in Islamic law, typically donating a building or plot of land or even cash for Muslim
religious or charitable purposes with no intention of reclaiming the assets.
Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazim
vs A Asghar Ali AIR 1932.
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 (right to enjoy
another's property without destruction) to charity, the poor, or other good
objects, in the manner of areeat or commodate loan.
Wakf Act 1954 defines Wakf as, "Wakf means the permanent dedication by a
person professing the Islam, of any movable or immovable property for any
purpose recognized by Muslim Law as religious, pious, or charitable."
Comparisons with trust law :
The waqf in Islamic law, which developed in the medieval Islamic world from the
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7th to 9th centuries, bears a notable resemblance to the English trust law.
Every waqf was required to have a waqif (founder), mutawillis (trustee), qadi
(judge) and beneficiaries.
IMP ---> Under both a waqf and a trust, "property is reserved, and its usufruct
(right to enjoy another's property without destruction) appropriated, for the benefit
of specific individuals, or for a general charitable purpose; the corpus becomes
inalienable; estates for life in favor of successive beneficiaries can be created" and
"without regard to the law of inheritance or the rights of the heirs; and continuity is
secured by the successive appointment of trustees or mutawillis."
The only significant distinction between the Islamic waqf and English trust was "the
express or implied reversion of the waqf to charitable purposes when its specific
object has ceased to exist", though this difference only applied to the "waqf ahli
(Islamic family trust)" rather than the "waqf khairi (devoted to a charitable purpose
from its inception)". Another difference was the English vesting of "legal estate"
over the trust property in the trustee, though the "trustee was still bound to
administer that property for the benefit of the beneficiaries". In this sense, the
"role of the English trustee therefore does not differ significantly from that of the
mutawalli".
Essentials of a valid Wakf :
1. Permanent Dedication of any property - There are actually three aspects in this
requirement. There must be a dedication, the dedication must be permanent, and
the dedication can be of the property.
There is no prescribed form of dedication. It can be written or oral but it must be
clear to convey the intention of dedication. According to Abu Yusuf, whose word
is followed in India, mere declaration of dedication is sufficient for completion of
Wakf. Neither delivery of possession or appointment of Mutawalli is necessary.
The dedication must be permanent. A temporary dedication such as for a period
of 10 yrs or until death of someone is invalid.
The subject of Wakf can be any tangible property (mal) which can used without
being consumed. In Abdul Sakur vs Abu Bakkar 1930, it was held that there are
no restrictions as long as the property can be used without being consumed and
thus, a valid Wakf can be created not only of immovable property but also of
movable property such as shares of a company or even money.
Some subjects that Hanafi law recognizes are immovable property, accessories
to immovable property, or books.
The subject of the Wakf must be in the ownership of the dedicator, wakif. One
cannot dedicate someone else's property.
2. By a Muslim - A Wakf can only be created by a Muslim. Further, the person must
have attained the age of majority as per Indian Majority Act and should be of
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sound mind.
3. For any purpose recognized by Muslim Law - The purpose is also called the
object of Wakf and it can be any purpose recognized as religious, pious, or
charitable, as per Muslim Law. It is not necessary that a person must name a
specific purpose. He can also declare that the property may be used for any welfare
works permitted by Shariat. In Zulfiqar Ali vs Nabi Bux, the settlers of a Wakf
provided that the income of certain shops was to be applied firstly to the upkeep of
the mosque and then the residue, if any, to the remuneration of the mutawalli. It
was held to be valid however, it was also pointed out that if a provision of
remuneration was created before the upkeep of the mosque, it would have been
invalid.
Valid purposes : The following are some of the objects that have been held valid
in several cases - Mosques and provisions of Imam to conduct worship,
celebrating birth of Ali Murtaza, repairs of Imambaras, maintenance of
Khanqahs, burning lamps in mosques, payment of money to fakirs, grant to an
idgah, grant to colleges and professors to teach in colleges, bridges and caravan
sarais.
Invalid purposes :
In Kunhamutty vs Ahman Musaliar AIR 1935, Madras HC held that if there are
no alms, the performing of ceremonies for the benefit of the departed soul is
not a valid object.
Some other invalid objects are - building or maintaining temple or church,
providing for the rich exclusively, objects which are uncertain.
Shia Law - Besides the above requirements, Shia law imposes some more
requirements for a valid Wakf. These are -
1. Delivery of possession to the first person in whose favour the Wakf has been
created is essential.
2. Dedication must be absolute and unconditional.
3. The property must be completely taken away from the wakif. It means that
the wakif cannot keep or reserve any benefit or interest, or even the usufructs of
the dedicated property.
Creation of Wakf : Muslim law does not prescribe any specific way of creating a Wakf.
If the essential elements as described above are fulfilled, a Wakf is created. Though it
can be said that a Wakf is usually created in the following ways -
1. By an act of a living person (inter vivos) - when a person declares his dedication
of his property for Wakf. This can also be done while the person is on death bed
(marj ul maut), in which case, he cannot dedicate more than 1/3 of his property for
Wakf.
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2. By will - when a person leaves a will in which he dedicates his property after his
death. Earlier it was thought that Shia cannot create Wakf by will but now it has
been approved.
3. By Usage - when a property has been in use for charitable or religious purpose
for time immemorial, it is deemed to belong to Wakf. No declaration is necessary
and Wakf is inferred.
Kinds of Wakfs :
Public and Private : A Wakf can be classified into two types - Public and Private.
As the name suggests, a public Wakf is for the general religious and charitable
purposes while a private Wakf is for the creators own family and descendants
and is technically called Wakf alal aulad.
It was earlier considered that to constitute a valid wakf there must be a
complete dedication of the property to God and thus private wakf was not at all
possible. However, this view is not tenable now and a private wakf can be
created subject to certain limitation after Wakf Validating Act 1913. This acts
allows a private wakf to be created for one's descendants provided that the
ultimate benefits are reserved for charity.
Muslim Law treats both public and private wakfs alike. Both types of wakf are
created in perpetuity and the property becomes inalienable.
Quasi public Wakf : Some times a third kind of wakf is also identified. In a Quasi
public wakf, the primary object of which is partly to provide for the benefit of
particular individuals or class of individuals which may be the settler's family, and
partly to public, so they are partly public and partly private.
Contingent Wakf : A wakf, the creation of which depends on some event happening
is called a contingent wakf and is invalid. For example, if a person creates a wakf
saying that his property should be dedicated to god if he dies childless is an invalid
wakf. Under shia law also, a wakf depending on certain contingencies is invalid.
In Khaliluddin vs Shri Ram 1934, a muslim executed a deed for creating a wakf,
which contained a direction that until payment of specified debt by him, no
proceeding under the wakfnama shall be enforceable. It was held that it does not
impose any condition on the creation of the wakf and so it is valid.
Conditional Wakf : If a condition is imposed that when the property dedicated is
mismanaged, it should be divided amongst the heirs of the wakf, or that the wakif
has a right to revoke the wakf in future, such a wakf would be invalid. But a
direction to pay debts, or to pay for improvements, repairs or expansion of the
wakf property or conditions relating to the appointment of Mutawalli would not
invalidate the wakf. In case of a conditional wakf, it depends upon the wakif to
revoke the illegal condition and to make the wakf valid, otherwise it would remain
invalid.
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2. Even when the owner himself is the first mutawalli, the character of the
ownership must be changed from owner to mutawalli in public register.
Legal Consequences (Legal Incidents) of Wakf : Once a wakf is complete, the
following are the consequences -
1. Dedication to God - The property vests in God in the sense that no body can
claim ownership of it. In Md. Ismail vs Thakur Sabir Ali AIR 1962, SC held that
even in wakf alal aulad (private wakf), the property is dedicated to God and only
the usufructs are used by the descendants.
2. Irrevocable - In India, a wakf once declared and complete, cannot be revoked.
The wakif cannot get his property back in his name or in any other's name.
3. Permanent or Perpetual - Perpetuality is an essential element of wakf. Once the
property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a
specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad
HC that the wakf of a house built on a land leased for a fixed term was invalid.
4. Inalienable - Since Wakf property belongs to God, no human being can alienate
it for himself or any other person. It cannot be sold or given away to anybody.
5. Pious or charitable use - The usufructs of the wakf property can only be used for
pious and charitable purpose. It can also be used for descendants in case of a
private wakf.
6. Extinction of the right of wakif - The wakif loses all rights, even to the usufructs,
of the property. He cannot claim any benefits from that property.
7. Power of court's inspection - The courts have the power to inspect the
functioning or management of the wakf property. Misuse of the property of
usufructs is a criminal offence as per Wakf Act.1995.
Revocation of Wakf :
In India, once a valid wakf is created it cannot be revoked because no body has the
power to divest God of His ownership of a property. It can neither be given back to
the wakif nor can it be sold to someone else, without court's permission.
A wakf created inter vivos is irrevocable. If the wakif puts a condition of
revocability, the wakf is invalid. However, if the wakf has not yet come into
existence, it can be canceled. Thus, a testamentary wakf can be canceled by the
owner himself before his death by making a new will. Further, wakf created on
death bed is valid only up till 1/3 of the wakif's property. Beyond that, it is invalid
and the property does not go to wakf but goes to heirs instead.
GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
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as a mutawalli.
(i) Where the office of mutawalli is purely secular in nature and no religious
performance is required to be done under the waqf, a female can be appointed
as mutawalli.
(ii) A woman can be appointed as head mujavar of Astan (a platform where
Muharram ceremonies are performed annually). The religious duties in some
cases may be delegated by a female mutawalli to any male Muslim. It has been
held that if certain religious functions were such as could be performed by a
proxy, the woman may hold the office of mujavar.
Who can appoint a mutawalli :-
Generally, the wakif appoints a mutawalli. He can also appoint himself as a
mutawalli.
Sunni law : If a wakf is created without appointing a mutawalli, in India, the
wakf is considered valid and the wakif becomes the first mutawalli
Shia law : even though the wakf remains valid, it has to be administered by the
beneficiaries.
The wakif also has the power to lay down the rules to appoint a mutawalli. The
following is the order in which the power to nominate the mutawalli transfers if the
earlier one fails -
1. founder
2. executor of founder
3. mutawalli on his death bed
4. the court, which should follow the guidelines -
a. it should not disregard the directions of the settler but public interest must
be given more importance.
b. preference should be given to the family member of the wakif instead of
utter stranger.
5. By Congregation
Powers of a mutawalli :- Being the manager of the wakf, he is in charge of the
usufructs of the property. He has the following rights -
1. He has the power to utilize the usufructs as he may deem fit in the best interest
of the purpose of the wakf. He can take all reasonable actions in good faith to
ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee,
he is not an owner of the property so he cannot sell the property. However, the
wakif may give such rights to the mutawalli by explicitly mentioning them in
wakfnama.
2. He can get a right to sell or borrow money by taking permission from the court
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Sadique Fatima vs Mahmood Hasan AIR 1978, SC held that using wakf money to
buy property in wife's name is such breach of trust as is sufficient ground for
removal of mutawalli.
he becomes insolvent.
Failure of a mutawalli to perform religious services where it is an essential part
of his duties;
Where the mutawalli utilises the waqf-property or its benefits for his private use;
Where a mutawalli applies the income of the waqf-property against directions of
the waqf-deed;
Where a mutawalli otherwise exceeds his powers in dealing with the property, or
Where the mutawalli suffers from any physical or mental incapacity.
2. By wakf board - Under section 64 of Wakf Act 1995, the Wakf board can remove
mutawalli from his office under the conditions mentioned therein.
3. By the wakif - As per Abu Yusuf, whose view is followed in India, even if the
wakif has not reserved the right to remove the mutawalli in wakf deed, he can still
remove the mutawalli.
GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
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GO TO CONTENTS.
MODULE-4 QUESTIONS :
GO TO CONTENTS.
MODULE-4 ANSWERS :
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Answer :
Refer :
http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U5_Legal_Studies.pdf
http://kuklawnotes.blogspot.in/p/family-law.html
Intro :
In 1984, the Family Courts Act was enacted by the Indian parliament to lay down
procedures for the creation and functioning of family courts with expertise to deal
with matrimonial and family law matters.
The Act is procedural and does not override the substantive family laws, and
accordingly, the rights and obligations of parties to disputes are based on
applicable family, personal or matrimonial laws.
During the late 1980s and 1990s, many family courts were established in most
major cities in India and the matrimonial and family law cases were shifted from
the district civil and criminal courts to the newly created special courts.
Background :
The need to establish the Family Courts was first emphasized by late Smt Durga
Bai Deshmukh after her visit to China in the year 1953, where she had the
opportunity to study the working of Family Courts.
Women associations and organizations have also played critical role in the creation
of family courts. In the 1980s, the women's rights movement groups were vocal
about legislative reforms, such as the creation of special courts to deal with family
matters to curb violence against women including rape, dowry harassment, and
wife murder. These issues of gender justice were an important motivating factor for
the creation of family courts.
Accordingly, family courts aimed at creating women-friendly court procedures that
were less formal and more accessible to women, especially those from the
marginalized section. For this the family courts intended to rely less on the
traditional lawyers and to depend more on counselors to help the parties to the
dispute to reach at mutually amicable solutions.
The conciliators were to increase the power of negotiation of women in
reconciliations and settlements in issues such as quantum of maintenance upon
divorce, custody and access of children, protection against domestic violence, and
right of residence in the matrimonial home.
Family courts were created :
1) to make litigation process less formal and intimidating;
2) to speed up justice delivery;
3) to facilitate conciliation and settlements
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The personal or family law subject matters that fall within the jurisdiction of family
courts include :
nullity of marriage; restitution of conjugal rights; judicial separation; validity of
marriage; matrimonial status; disputes regarding property of either of the parties
or joint property; injunction arising out of marital relations; legitimacy of any
person; maintenance; and guardianship, custody and access to any minor.
Applicable statutes that come within the purview of Family Courts Act include the
following :
The Hindu Marriage Act, 1955:
Special Marriage Act, 1954
Dissolution of Muslim Marriage Act, 1939
Foreign Marriages Act, 1969
The Indian Divorce Act, 1869
The Parsi Marriage and Divorce Act, 1936
Muslim Women (Protection of Rights & Divorce) Act, 1986
Muslim Personal Law/Application of Shariat Act, 1937
Hindu Adoption and Maintenance Act, 1956
The Indian Christian Marriage Act, 1872
Hindu Minority and Guardianship Act, 1956
Guardian and Wards Act, 1890
Chapter IX of the Criminal Procedure Code, 1973
Protection of Women from Domestic Violence Act, 2005
Jurisdiction of Family Courts :-
1. The family courts may exercise the entire jurisdiction exercisable by and District
Court or any subordinate civil court under any family laws for the time being in
force.
2. The Family Courts have the jurisdiction to accept a suit for proceeding between
the parties to a marriage with respect to the property of the parties of either of
them.
3. Family Court has the jurisdiction to suit for proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring the marriage to be null &void
or as the case may be annulling the marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage.
4. Family Court may accept the suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of any person.
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5. The Family Court may commence a suit or proceeding for an order or injunction
in circumstances arising out of a marital relationship.
6. Proceeding for declaration about the legitimacy of any person is accepted by the
Family Court.
7. The family court has the jurisdiction to suit or proceeding for maintenance and in
relation to the guardianship of the person or the custody of, or access to any minor.
PROCEDURES AND SALIENT FEATURES :- Section 9 of Family Courts Act, 1984, laid
down the following procedures :-
Duty of Family courts to make efforts for settlement :- Every suit or proceeding
endeavour shall be made by the Family Court in the first instance, with the nature
of circumstances of the case to assist and persuade the parties in arriving at a
settlement and follow those rules framed by High Court as deemed fit.
Family Court may Adjourn :-If any suit or proceeding at any stage seems to be that
there is a reasonable possibility of a settlement between the parties, the Family
Court may adjourn the proceedings for such period as it thinks fit to enable
attempts to be made to effect such a settlement.
The power to adjourn :- conferred by sub-sec.2 shall be in addition to and not in
derogation of any other Power of the Family Court to adjourn the proceedings.
Sec.10 of Family Courts Act also provides subject to other provisions of this act and
the rules of provisions of the Code of Civil Procedure and of any law for the time
being in force shall apply to such proceedings under criminal procedure code.
Family Courts shall deem to be a civil court and shall have all the powers of such
court.
Section 10(2) : Provisions shall prevent a family Court from laying down its own
procedure with a view to arrive at a settlement in respect of the subject matter of
the suit or proceedings or at the truth of the facts alleged by the one party and
denied by the other.
Section 11 :Proceedings to be held in Camera :-In every suit or proceeding to
which this act applies, the proceedings may be held in camera if the Family Courts
so desires and shall be so held if either party so desires.
Assistant of Medical & welfare :- Under sec. 12 of the Act, every suit or
proceedings, it shall be open to family court to secure the services of a medical
expert or such person (preferable a woman where available) for the purpose of
assistance in discharging the functions imposed by this act.
Record of oral evidence :-In suits or proceedings before a family court it shall not
be necessary to record the evidence of witnesses at length but the judge as the
examination of each witness proceeds shall record or cause to be recorded a
memorandum shall be signed by the witness.
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Act to have overriding effect :- One of the salient feature that the provisions of this
act that this act shall have the effect notwithstanding anything inconsistent there
with contained in any other law for the time being in force or in any instrument
having effected by virtue of any law other than this act.
Section 21, 23 of the act provides that the State Govt, by issue of gazette
notification, shall make rules in consultation with High Court.
Power of Central Govt. :- Sec.22 provides that the central govt. May with the
concurrence of the Chief Justice of India make rules for appointment of Judges by
gazette notification.
Association of social welfare agencies :
The State Government may, in consultation with the High Court, provide, by rules,
for the association, in such manner and for such purposes and subject to such
conditions as may be specified in the rules, with a Family Court of,-
(a) institutions or organizations engaged in social welfare or the representatives
thereof;
(b) persons professionally engaged in promoting the welfare of the family;
(c) persons working the field of social welfare; and
(d) any other person whose association with a Family Court would enable it to
exercise its jurisdiction more effectively in accordance with the purposes of this
Act.
Counselors, officers and other employees of Family Courts :
(1) The State Government shall, in consultation with the High Court, determine the
number and categories of counselors, officers and other employees required to
assist a Family Court in the discharge of its functions and provide the Family Court
with such counselors, officers and other employees as it may think fit.
(2) The terms and conditions of association of the counselors and the terms and
conditions of service of the officers and other employees, referred to in sub-section
(1), shall be such as may be specified by rules made by the State Government.
Conclusion :
Though the Act was aimed at removing the gender bias in statutory legislation, the
goal is yet to be achieved.
GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.
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Refer :
GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.
GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.
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(4) The High Court may, of its own motion or otherwise, call for and examine the
record of any proceeding in which the Family Court situate with in its jurisdiction
passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the
purpose of satisfying itself as to the correctness, legality or propriety of the order,
not being an interlocutory order, and, as to the regularity of such proceeding.]
(5) Except as aforesaid, no appeal or revision shall lie to any court from any
judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting
of two or more Judges.
GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.
Discuss the salient features of the protection against the Domestic Violence Act
2005. (Mar-2014)
Answer :
Refer :
http://www.hrln.org/hrln/images/stories/pdf/TrainingModuleRightsOfWomenUnderT
hePersonalLawsInIndia.pdf
good - http://nyaaya.in/law/557/the-protection-of-women-from-domestic-violence-
act-2005/#section-22
What is Domestic violence ?
For the first time in India a very conclusive and extensive definition was given in
PWDVA Act which conformed to the United Nations Framework and to the
Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW) to which India is also a signatory.
(Section (3) of the PWDVA) Domestic Violence is any act or conduct of a person :
which harms or
injures or
endangers
the health, safety or well being of the aggrieved person which includes :
Physical abuse
Sexual abuse
Verbal and emotional abuse
Economic abuse
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Step 1 - Rimi can approach a Protection Officer for help. The Protection Officer
will first record her complaint in a particular format. This is known as the
'domestic incident report'. The Protection Officer will then send a copy of this
complaint to the local police station and Service Providers.
Step 2 - If Rimi wants to approach the courts which can pass orders under
this law, the Protection Officer has to make an application on Rimi's behalf
and present it to the Magistrate.
Step 3 - If Rimi does not have money to pay for a lawyer, the Protection
Officer has to ensure that she has access to a lawyer who will take up her
case for free.The Protection Officer has to maintain lists of all the NGOs in the
area which provide legal help or counsel victims like Rimi in such situations.
She also has to maintain lists of local shelter homes and hospitals which are
designated by the government to provide help in such situations.
Step 4 - If Rimi believes that her husband might hurt her, she can ask the
Protection Officer for help. The Protection Officer has to find a safe shelter
home for her. When she has found a safe shelter for Rimi, she needs to report
this to the local police station and Magistrate.
Step 5 - If Tyagi hits Rimi and she is bleeding, she needs the help of doctors.
The Protection Officer has to make sure that a doctor helps Rimi. Once she
has made sure that a doctor has examined Rimi, she has to send a copy of
the medical report to the local police station and Magistrate.
Step 6 - If the Magistrate has ordered Tyagi to give Rimi money for her
injuries, the Protection Officer has to make sure that Tyagi actually pays Rimi
the money.The main duties of the Protection Officer are provided in this law.
However, the government has imposed additional duties on the Protection
Officer under rules.The Protection Officer is answerable to the local Magistrate
and the government
7. Bail could be refused for breach of protection order :
This Act is not considered as a criminal law as it is more concerned with
providing relief to the victim. However, if the offender does not comply with a
final or temporary protection order, he can be :
sent to jail for up to one year;
ordered to pay fine of up to Rs. 20,000; or
sent to jail and ordered to pay fine.
As far as possible, the Magistrate deciding if the offender goes to jail must be
the Magistrate who heard the victim's case of domestic violence. When the
Magistrate is deciding if the offender goes to jail, she can also charge the
offender with committing crimes of cruelty or taking dowry.
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An offender who violates a protection order can be arrested by the police officer
without permission of the Magistrate. Also he will need to approach a court to
get bail - the court may or may not grant him bail. The Magistrate can decide to
listen only to the victim when deciding if the offender has violated the protection
order.
Even the Protection Officer can be punished for not performing his duties as per
the orders of the Magistrate. She can be:
sent to jail for up to one year;
ordered to pay fine of up to Rs. 20,000;
sent to jail and ordered to pay fine.
Criticisms of Protection of Women from Domestic Violence Act 2005
Abused men not covered; the law is specially for women ONLY.
Violence against women are often perpetrated by women herself Eg: Mother-
in-law/ Daughter-in-law.
Verbal abuse and mental harassment are subjective terms.
GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.
Suggested Reading :
Paras Diwan, Family Law
Paras Diwan, Law of Instestate and Testamentary Succession (1PPS), Universal
Basu, N.D. Law of Succession, Universal
Kusem, Marriage and Divorce Law Manual, Universal
Machanda S.C. Law and Practice of Divorce in India, Universal
P.V. Kane, History of Dharmasastras Vol.2 Pt1 at 624632
A. Kuppsuwami (e.d.) Mayne's Hindu Law and Usage Ch.4
B. Sivaramayys, Inequalities and the Law
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