CASE LAWS ON SUCCESSION

Topics.
1. Hindu Undivided family and coparcenary
2. Section 15 – Hindu Succession Act.1956
3. Marz-Ul-Maut
4. Law Of Gift (Hiba)

NAME – AKSHITA VATS

CLASS- III BA.LLB
ROLL - 33
HINDU UNDIVIDED FAMILY AND COPARCENARY
Section 6 -Application according to Hindu Succession(Amendment )
Act,2005.

1. Prakash and Ors. Vs. Phulvati and Ors.(2016)1

• Issues Involved –
I . The amendment is applicable even if the Respondent’s father had
died after the act came into existence ?
II . Whether The Amendment Act can be applied to the partition
effectuated without the decree of court?
III . Whether The Amendment Act can be applied retrospectively ?

• Held – The Supreme Court had set aside the High Court Judgment,
The Court rejected the contention of the Respondent that as the
Amendment Act is Progressive legislation, it has to be applied
retrospectively,saying that even for social legislations, it has to be
applied retrospectively , saying that even for social legislations, the
express mention of retrospective application is necessary. The
summary of the whole judgement can be done in one line saying that
the Amendment can be applied to the daughters, whose father was
living coparcener as of 9th of September 2005, regardless of when the
daughters are born.

2. Danamma vs. Amar and Ors.20182

• Issues Involved –
I . Can daughters be denied their share on the ground that they were
born before the enactment of the Hindu Succession Act and thereby
cannot be treated as coparceners ?
II . Whether the amendment (2005) make coparceners by birth in the
like manner as sons ?

• Held - The Hon'ble court in its verdict interpreted the section 6 taking
in consideration the object behind the amendment of the statute and
intent of the legislature which was to make this act more fair and equal
as required by the article of the Indian constitution. Thus it

1
SCC(Civ)549
2
MANU/SC/0064/2018
 pronounced that this amendment act will be applicable to all the
daughters whether born prior to the enactment of the Act or after its
enactment provided they are alive on the day the enactment of the
amended act 2005. This judgement lead to more clear view regarding
the section 6 of HS Act and prevent an entire generation of women
loosing there coparcenary right.

By these two judgments, confusion in the application of Section 6

of the Hindu Succession (Amendment) Act,2005 arose.

3. Uttam vs. Saubhag Singh and Ors. 20163

• Facts - The Appellant/Plaintiff’s grandfather, Jagannath Singh, had
died in 1973. His widow, Mainabai and 4 children (including the
father of the Appellant) survived him. The Appellant had been born in
1977, after the death of his grandfather. The Appellant sought
partition to isolate his 1/8th share in the joint family property. The
Appellant filed a suit against his father and three of his father’s
brothers (Respondents)

• Issues Involved –
I . Whether the property was no longer joint family property ?
II . Whether Plaintiff had no right to file suit for partition ?

• Held - Applying the law to the facts of this case, it is clear that on the
death of Jagannath Singh in 1973, the joint family property which was
ancestral property in the hands of Jagannath Singh and the other
coparceners, devolved by succession Under Section 8 of the Act. This
being the case, the ancestral property ceased to be joint family
property on the date of death of Jagannath Singh, and the other
coparceners and his widow held the property as tenants in common
and not as joint tenants. This being the case, on the date of the birth of
the Appellant in 1977 the said ancestral property, not being joint
family property, the suit for partition of such property would not be
maintainable. The appeal is consequently dismissed with no order as
to costs.

3
/SC/0256/2016
 4. Vineeta Sharma vs. Rakesh Sharma and Ors.,2020 4
• Issues Involved -
I . Whether the Father Coparcenar should be living on the amendment
date ?
II. Whether the daughter born before the Amendment can claims
equal rights and liabilities in coparcenary as that of son ?
III. Whether the statutory partition created by Section 6 of the Hindu
Succession Act , 1956 as originally enacted bring about the actual
partition or disruption of property ?

• Held – Daughter would hold equal coparcenary rights in Hindu

undivided family properties even if they were born before the 2005
Amendment to the Hindu Succession Act,1956 and regardless of
whether their father coparcenar had died before the Amendment . The
Court ruled that the effects of the provisions of Section 6 are neither
prospective in nature nor retrospective but retroactive in nature.
This judgment solved the confusion in the application of Section 6 of the
Hindu Succession (Amendment ) Act,2005.

4
MANU/SC/0582/2020
SECTION 15- HINDU SUCCESSION ACT, 1956 “SUCCESSION TO
THE PROPERTY OF A FEMALE HINDU DYING INTESTATE”

1. Tarabai Dagdu Nitanware and Ors. v. Narayan Keru Nitanware &

Anr.20185
The Bombay High Court has held that if a Female Hindu dies childless then
her property inherited by Parents will devolve upon the legal heirs of her
Father and not husband.

2. Kishore Tulshiram Mantrim v. Dilip Jank Mantri .20186

Relinquishment of properties inherited by the legal heirs of the person
whose properties were self-acquired properties would not enure for the
benefit of all the legal heirs of the said deceased but would enure only for
those persons in whose favour such deed of relinquishment/release was
executed.

3. M. Krishna Rao v. M. L. Narasikha Rao,20037

4. Radhey Shyam v. Shyam Devi,20038

If a woman becomes absolute owner of a house by virtue of a compromise
after his death, she would be absolute owner and succession would be
governed by Section 15(1)(a).

5. Kumaran Kidavri v. Damodaran Nair,20139

6. V Ethiraj v. S. Sridevi, 201410

If she inherits from her mother and dies issueless,it would revert back to her
parents family.Source of inheritance is always important.

7. Sukhwinder Kaur v. Rajwant Kaur,201811

When a female Hindu had inherited property from her mother on her death,
it would devolve on her sister as per Section 15(2) and not on the heirs of

5
MANU/MH/0060/2018
6
7
2003 SCC OnLine AP 526
8
2003 AII. 136
9
2013(2) Ker,LJ 443
10
2014 Kar. 58
11
2018 P&H 199.
 her pre-deceased husband. Also on step-sisters,they being heirs of the
father.

8. Shashikant Shripad Pandit v. Kaustubh Subhash Pandit, 202012

The basic aim of Section 15(2) is to ensure that inherited property of an
issueless female dying intestate goes back to its source. She has every right
to dispose it by will.

9. Khushi Ram and Ors. Vs. Nawal Singh and Ors. 202113
The bench of Ashok Bhushan* and R. Subhash Reddy, JJ has held
that when heirs of father of a female are included as person who can
possibly succeed, it cannot be held that they are strangers and not the
members of the family qua the female.

12
2020 SCC OnLine Bom 309
13
2021 SCC OnLine SC 128
MARZ-UL MAUT

1. Commisioner of Gift Tax vs. Abdul Khalim Mohammed.199114

Held – The SC laid down that a Marz-Ul Maut exists whenever there is :
a. Proximate danger of death
b. Some degree of subjective apprehension of death in the mind of the
person suffering from illness (which is immediate, imminent and
temporarily proximate.)
c. The person is unable to attend to ordinary evocation . There is a sense
of urgency about the entire affair.

2. Abdul Hafiz Beg v Sahebbi

Held: subjective apprehension of death in mind of the donor must be
established

3. Shaik Nurbi vs Pathan Mastanbi And Ors,200415

In this case, it was said by the court that there are three conditions which
have to be satisfied for a transfer to be considered as Marz-ul-Maut, these
conditions are:
a. a proximate danger of death which causes the preponderance of
apprehension of death,
b. A certain degree of subjective apprehension of death in the mind of the
sick person,
c. some external indicia, chiefly, the person’s inability to attend to ordinary
avocations.

4. S.Ajija Begum vs S.Mohamad Mideen on 3 March, 2017

The Madras High Court in this matter said, To constitute a malady, marz-
ul-maut, there must be (I) proximate danger of death, so that there is a
preponderance of apprehension of death, (2) some degree of subjective
apprehension of death in the mind of the sick person, and (3) some
external indicia, chief among which would be inability to attend to
ordinary avocations although attending to his ordinary avocations does not
conclusively prove that he was not suffering from marz-ul-maut.

14
1991 AIR 1847
15
2004 (3) ALD 719
 5. Sabiha Sultana and Ors. vs. Ahmad Aziz and Ors.201716
The plaintiffs have filed the present application, inter alia, seeking to
amend their replication by introducing two paragraphs. By way of the first
paragraph, the plaintiffs now seek to plead that their Late mother Fatima
Begum was ailing prior to her death on 07.09.2009 and was suffering
from large number of ailments. They seek to introduce a plea that she had
executed a Hiba-bil-Ewaz/sale deed for the property in favour of the
defendant in contemplation and pressure of imminence of her death and
therefore, the transfer of the suit property to defendant was hit by the
doctrine of marz-ul-maut and is, consequently, liable to be declared void
ab initio.

16
MANU/DE/5971/2017
 LAW OF GIFT ( HIBA)

1. Hafeeza Bibi and Ors. v. Farid (Dead) by L.Rs. and Ors 200417
The apex court observed: "In our opinion, merely because the gift is
reduced to writing by a Mohammadan instead of it having been made
orally, such writing does not become a formal document or instrument of
gift. When a gift could be made by Mohammadan orally, its nature and
character is not changed because of it having been made by a written
document. What is important for a valid gift under Mohammadan Law is
that three essential requisites must be fulfilled. The form is immaterial. If
all the three essential requisites are satisfied constituting valid gift, the
transaction of gift would not be rendered invalid because it has been
written on a plain piece of paper. The distinction that if a written deed of
gift recites the factum of prior gift then such deed is not required to be
registered but when the writing is contemporaneous with the making of
the gift, it must be registered, is inappropriate and does not seem to us to
be in conformity with the rule of gifts in Mohammadan Law."

2. Abdul Rahim and Ors. v. Sk. Abdul Zabar and Ors. 18

Under the Mohammedan law, no doubt, making oral gift is permissible.
The conditions for making valid oral gift under the Mohammedan law are:
(i) there should be wish or intention on the part of the donor to gift; (ii)
acceptance by the donee; and (iii) taking possession of the subject matter
of the gift by the donee. The essentials of a valid and complete gift under
Mohammedan law have been succinctly laid down in this case.

3. Mohammed Yusuf s/o Mohammed Ibrahim v. State of Maharashtra

and Ors.19
In the matter the stamp duty demand notice of Respondent No. 3 i.e., Sub-
Registrar and Stamp Collector, C/o Collectorate, Bhandara was
challenged. The Bombay High Court held that stamp duty demand as
raised by the impugned stamp duty notice was unrecoverable since the
stamp duty on oral gift made by a Muhammadan of sound mind in favour
of the donee cannot be levied. Whilst reiterating the three requisites of a
valid oral gift as per Muhammadan law which make the gift complete and
irrevocable, the High Court stated that the gift or instrument of gift does

17
AIR 2011 SC 1695
18
MANU/SC/0379/2009
19
2015 (1) BomCR 740
 not require registration in each case. It was further stated that Sections 122
to 129 of TP Act are not applicable to a gift by a Muhammadan and there
is no provision for levying stamp duty on an oral gift made by any
Muhammadan of sound mind, in favour of the donee.

4. Rasheed Khan vs Sheikh Kabir on 24 April, 201720

As per the principles laid down in Hafeeza Bibi [Supreme Court, Hafeeza
Bibi and others Vs. Shaikh Farid (AIR 2011 SC 1695)] it is clear like
noon day that in the Mohammedan Law, for the purpose of determining
whether the gift was Hiba, three essential ingredients must be there. These
are (i) declaration of gift by the donor, (ii) acceptance of the gift by the
donee and (iii) delivery of possession.

5. Jamila Begum (D) thr. L.Rs. vs. Shami Mohd. (D) thr. L.Rs. and
Ors.201821
The essential conditions to make a valid gift under the Mohammedan law
have not been established by the Respondent-Plaintiff to prove the oral
gift in his favour. In the absence of any proof to show that the possession
of the suit property was delivered to him, the oral gift relied upon by the
Respondent-Plaintiff ought not to have been accepted by the courts below.

20 WP-8777-2015

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MANU/SC/1488/2018
WAKF

1. Punjab Wakf Board v. Sham Singh Harike,201922

In an appeal against the order of the Punjab and Haryana High Court where
it was held that the Wakf Tribunal has no jurisdiction in a matter where the
rights of a non-Muslim are in question and that it is only the Civil Court
which had the jurisdiction in the such cases, the bench of Ashok Bhushan
and KM Joseph, JJ noticed that:
“The defendant in written statement has pleaded that the suit property is
not Wakf property. When issue in the suit is as to whether suit property is
Wakf property or not it is covered by specific provision of Sections 6 and
7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal
under Section 83 and bar under Section 85 shall come into existence with
regard to jurisdiction of Civil Court.”

2. Radha Kanta Deb v. Commissioner 23

The Hon’ble Supreme Court observed that the Muslim Law recognises
the existence and creation of a private trust as a charitable trust. It is
also known as ‘waqf-allal-aulad’. In this type of Waqf, the ultimate
benefit is reserved for God but the property vests in the beneficiaries
and the income from the property is used for the maintenance and
support of the family of the founder and his descendants.

3. M Kazim v.A Asghar Ali 24

In this case it was said that waqf in its legal sense means the creation of
some specific property for the fulfilment of some pious purpose or
religious purpose.

4. Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad25

22
2019 SCC OnLine SC 142
23
AIR 1981 SC 798
24
AIR 1932 11 Patna 238.
25
AIR 1982 Kant 309
 It was held that “if a Muslim man provides his house to the travellers
irrespective of their religion and status for their stay, this cannot be
considered as a valid Wakf on the ground that under Muslim law a Wakf
has a religious motive, that it should be created for the benefit of Muslim
community. When a Wakf is constituted, it is always a presumption that it
is a gift of some property, made in favour of God. This is a legal fiction.

5. Karnataka Board of Wakf Vs. Govt. Of India , 200426

“Adverse Possession is a hostile possession by clearly asserting hostile title
in denial of the title of the true owner . A party claiming Adverse
Possession must prove that his possession is Peaceful, open and continuous
over the Statutory period of more than 12 years”

26
2004 (10) SCC 779