Notes-Family Law-II

Assistant Prof.-Meenakshi
BA LL.B, B.com Ll.b, BB.A lL.B 4th
Sem
Notes of Family Law II, Class LL.B (TYC) 2nd Semester

Section A

Mitakshara:- Hindu Joint family under Mitakshara Law and its Components as well as its
features.

Introduction:- The law of Inheritance deals with rules, which govern devolution of property on the
death of its owner. In Hindu law, the concept of the joint family system came much earlier in point
of time; the law of inheritance came later and applied only to the property belonging exclusively to
a person as distinguished from property held by the joint family. In the primitive age, Women and
children were alike. They were classed as chattels and possessed no right of property. In course of
time, the son's right was recognized, then the right of other male kinsmen. At this stage of social
evolution, women were still chattels. They had still no rights of their own. The recognition of
woman's right of inheritance is of comparatively recent origin. Several difficulties and
complications however came in the way owing mainly due to the differences in the law of
inheritance amongst the two major school of Hindu laws viz. the Mitakshara and the Dayabhaga and
the Matriarchal systems prevailing in some . Conflicting pronouncement of the law courts added to
the existing confusion arid legal reform on the subject became the pressing need of the day.

Position before 1956:- In early Hindu society the whole Hindu Law of Inheritance is centered in a
single word-Sapindas-who are a man's heirs. Prior to 1956, there used .· to be two major schools of
Hindu Law viz. Mitakshara and Dayabhaga, which laid down different principles of succession.
There was no uniformity in the .I rights. of the Hindus following different schools to succeed to the
property of a Hindu who died intestate i.e., without leaving a will behind him. At that time, . .
women had no legal status. The Hindu Law of inheritance had deprived women of the right to
property ( exc.ept the right to their stridhan) and, as a result, their economic security was
completely dependent on the pleasure of the man husband, father, brother', son .. The movement to
strengthen the position of women in society began from the second half of the nineteenth century.
The earliest attempts may be traced back to 1865, with Act X of that year as the • first step towards
conferring economic security upon Indian women. The Indian Succession Act 1865 laid down that
'no person shall, by marriage, acquire any interest in the property of the person whom he or she
marries nor become incapable of doing any act in respect of his or her own property which he or
she could have done if not married to that person. The Married Women's Property Bill 1874 was a
natural consequence of this Act. On 24 February 1874, the Council of the Government-General of
India met at Government House to consider the Bill. The Bill was passed into Act III of 1874, which
was the first law in modem times extending the scope of stridhan. It declared that the wages and
,earning of any married woman, any property acquired by her through the employment of her art
and skill, and all savings and investments shall be her separate property, and that a married woman
can file a suit in her name in respect of her own property. This Act, though a· radical one, did not-
create stir in Hindu Society because, until 1923, . . the Act applied only to Indian Christian Women ..
Married women belonging to Hindu, Mohammedan, Sikh and Jain communities were outside the
purview of the Act.

Meaning of Hindu Joint Family:- A joint Hindu family consists of all male members lineally
descended from a common male ancestor and includes their wives unmarried daughters and
adopted children. A daughter on marriage ceases to be a member of her father's family and
becomes a member of husband's family. A joint or undivided family is the normal condition of
Hindus which is ordinarily joint in food, worship and estate (Creature of Law). There is no limit to
the number of persons who compose it, nor to their remoteness from their common ancestor and to
their relationship lineally or laterally with one-another.

• To be a member of the family one may be added by birth, marriage or adoption.

• A female who comes in the family by marriage becomes sapinda of her husband.
• The joint family is thus a larger body consisting of a group of persons who are united by the
knot of sapindaship arising by birth, marriage or adoption.

Presumption of Union:- The joint and undivided family is the normal feature of Hindu society.
There is a presumption in Hindu law that a family is living in a state of union, unless the contrary is
proved. The presumption is stronger in case of nearer relationship but gets weaker in case of
remoter relationship.

The general principal is that every Hindu family is presumed to be joint unless the contrary is
proved, but this presumption can be rebutted by direct evidence or by course of conduct. But there
is no presumption that a joint Hindu family possesses joint family property, it is only an adjunct of
the joint family.
The Chief features of Hindu family:

• Creation of Law:- It is a creation of law. In other words, it is a legally recognized unit which
can neither be created by the act of the members nor by an agreement between the parties.
A stranger cannot be admitted into it except by marriage or adoption.
• No legal entity:- it has no legal entity distinct and separate from that of members who
constitute it. It is not a juristic person. It is not a corporation either.
• Represented by Karta:- it is a unit and in all affairs are represented by its karta.
• Status acquired by birth:- In a Hindu joint family status can be acquired into by birth,
marriage to a member and adoption.
• Ouster of a member from joint family:- Status can be lost by conversion to a non-Hindu faith,
marriage to a non- Hindu under the Special Marriage Act, 1954, on being given in valid
adoption and, on partition.
• Different from composite family:- it is different from a composite family, a creature of custom
and agreement, where two or more families agree to live and work together, pool their
resources, throw their gains and labors into the joint stock and shoulder the common risk.

Conclusion:- The joint family is purely a creature of law. It cannot be created by the act of parties.
Hindu joint family is not a corporation and it has no legal entity distinct and separate from its
members. It is also not a juristic person, and is represented by Karta or head of the family in
relation to the affairs of the family in relation to others

Coparcenary under Hindu Law and its incidents. Distinction between Joint Hindu Family and
Hindu Coparcenary.

Introduction:- The primary purpose of understanding the concept of Mitakshara coparcenary was
spiritual in nature. A coparcener in relation to the father is a person who can offer a funeral cake to
him. This capability to offer spiritual salvation by the performance of funeral rites was with the son,
son of a son (grandson), and son of a son of a son (great-grand son) and as a consequence of it they
were conferred a right by birth in the property of the father. Presently it is understood to ascertain
the rights and obligations of the members in the joint family property that is also called as ancestral
property or the coparcenary property.

Meaning:- A Hindu coparcenary is a much narrower body than the Hindu joint family. It includes
only those persons who acquire by birth an interest in the joint or coparcenary property and these
are the sons, grandsons and great grandsons of the holder of the joint property for the time being,
that is to say, the three generations next to the holder in unbroken male descent.

The essence of a coparcenary is unity of ownership with the necessary appendage of unity of
possession. No coparcenary can commence without a common male ancestor, though after his
death it may consist of collaterals such as brothers, uncles, cousins, nephews etc. A coparcenary is
purely a creature of law and cannot be created by contract. But the adopted person may be
introduced as a member of the coparcenary and after the death of common ancestor coparcenary of
brother can be created.

Ordinarily, a coparcenary will end with the death of the surviving coparcener, very interestingly but
if surviving coparcener dies leaving a widow having authority to adopt a son to him, coparcenary
will be continued. After the death of common ancestor or any other last holder of the property, the
fifth in descent from him would become a member of the coparcenary, provided his all three
immediate male ancestor i.e., the father, grandfather and the great grandfather had not
predeceased the last holder, for that is another important rule of Hindu law that whenever a break
of more than three degrees occurs between any holder of property and the person who claims to
enter the coparcenary after his death, the line ceases in that direction.

Concept of Composite Family

The concept of a joint family also differs from that of a composite family. The latter has come to be
recognised in law on the basis of custom prevailing in certain parts of South India, especially in
Andhra Pradesh. A joint family is a creation of law whereas a composite family is constituted by an
agreement, express or implied, between a number of families for the purpose of living and working
together. These families are not mentioned by the Smritikaras. The resources of all the families are
pooled together, their gains are thrown into the joint stock, the common risks are shouldered
together, and the resources of the units are exploited for the entire composite family without
discrimination. 14 The joint family is purely a creature of law. It cannot be created by the act of
parties.15 Where the female heirs of a male inherit his self-acquired property in their individual
capacity, they cannot constitute a joint Hindu family by entering into an agreement and throwing
their shares into the "Joint family Property”

Incidents of Coparcenership:-

The main incidents of coparcenership under the Mitakshara law are:-

 • The lineal male descendants of a person upto the third generation acquire on birth
ownership in the ancestral properties of such person.
• Such descendants can at any time work out their rights by asking for partition.
• Till partition, each member has got ownership extending over the entire property conjointly
with the rest.
• As a result of such co-ownership, the possession and enjoyment of the properties is
common.
• No alienation of the property is possible without the concurrence of the coparceners unless
it is for necessity
• The interest of a deceased member lapses on his death to the survivors
• A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of
parties except in so far that, on adoption, the adopted son becomes a coparcener with the
adoptive father as regards the ancestral properties of the latter.

Rule of Survivorship

According to the principles of Hindu Law, there is coparcenership between the different members
of a united family and survivorship following upon it. But this right of survivorship is lost.
According to the true notion of an undivided family in Hindu law, no individual member of that
family, while it remains undivided property, that particular member, has a certain definite share. "
He has an interest in the coparcenary and on his death, this interest lapses to the coparcenary; it
passes by survivorship to the other coparceners. He, therefore, has no power to devise it by Will,
nor is there any question of succession to it. In no part, of the coparcenary property has he left an
‘estate’ of his own.

In other words, survivorship consists in the exclusion of the widows and other heirs of the
coparcener from succeeding to his undivided interest in the coparcenary property. Even a
disqualified person is a member of the coparcenary and even though he has no rights at a family
partition, he is entitled, when he becomes the last surviving male member of the joint family, to take
and enjoy the whole estate by survivorship.

Legislative Inroads into the Concept of joint family:-

One of the basic incidents of the concept of joint family is the existence of joint as well as separate
property in the family. At the time of the discussion on the Hindu Succession Bill in Parliament in
the year of 1954-55, several parliamentarians recommended its abolition as it treated women
unfavourably, but a considerable majority favoured its retention in the name of it, symbolising the
very essence of Hindu religion. The concept of notional partition was introduced in the Hindu
Succession Act, but the result was still an unequal treatment to women. In the light of the
Constitutional mandate of gender parity, these property related provisions stood out as
discriminatory and to remove that, two options were available with the legislature. First, to abolish
the joint family and separate property distinction by abolishing the very concept of joint family
system and the other to make the daughter also a coparcener in the same manner

Distinction between Joint Hindu Family and Hindu Coparcenary

• A Hindu coparcenary is distinct from a Hindu undivided family. There are two schools of
Hindu law, the Mitakshara and Dayabhaga. A Hindu coparcenary is a special feature of
Mitakshara law and there is a clear distinction between a joint family and a Hindu
coparcenary.
• The Supreme Court in Surjit Lal v. V. CIT AIR 1976 SC 109, a Hindu coparcenary is a much
narrower body than the joint family. The main points of distinction between these are that
joint Hindu family consists of all persons lineally descended from a common ancestor and
includes their wives and unmarried daughters. On the other side, all those members of the
joint family who get an interest by birth in the joint family property are the members of the
coparcenary.
• The Mitakshara School entitles a son to a right equal to his father in the joint family
property by birth. Under the Hindu law the word "son" has a technical meaning. Son
includes the son, the son's son and the son's son's son.
• Both the concepts of "Mitakshara Coparcenary Property" and "Hindu joint family property"
are often mistaken for each other. There may be some degree of overlapping between the
two, but yet they are distinct from each other in some respect.

Rights of Coparceners.

Coparceners have the following rights with respect to the coparcenary property :

• Co-existing with the ability of the coparceners to perform funeral rites of the father enabling
him to attain spiritual salvation is the right by birth in the coparcenary property. The
moment a coparcener is born, he acquires an interest in the coparcenary property.
• The coparceners together possess the title to the coparcenary property. This property is not
owned by joint family or coparcenary as a unity. The ownership vests with the members of
 the coparcenary. All coparceners together have a joint or common title or ownership of this
property and till they work out their shares, the extent of their ownership is not discernible.
• Each coparcener has a right to possses and enjoys the coparcenary property by virtue of
being a coparcener and therefore, a co-owner of it. The right is of common enjoyment which
means that till a partition by metes and bounds takes place, no coparcener can claim an
enjoyment exclusively of a specific portion of the property. He can neither predict his exact
share nor his specific portion in the property.
• Coparceners have a right by birth in the coparcenary property and the moment a son is
born he acquires on interest in the property. The right of the surviving coparceners to
enlarge their shares in the property is due to the application of the doctrine of survivorship.
• A coparcener can hold an interest in the coparcenary property and possess separate
property of his own at the same time. Law does not restrict him from acquiring property in
his individual capacity and for this the consent of the other coparceners is not an essential
requirement.
• The interest of a coparcener in the coparcenary property is a fluctuating interest that
changes with the deaths and births of other coparceners in the family. A coparcener is
competent to convert this fluctuating and probable share to a fixed and specific share in the
property by demanding a partition. Except in Bombay and Punjab, where a son cannot
demand a partition from the father, if he is joint with his own father without his consent,
every coparcener has a right to demand a partition.
• A coparcener cannot ordinarily transfer his undivided share except under some specific
situations, but a coparcener is empowered to renounce his undivided share in the joint
family property, in favour of all the remaining coparceners. Two things are important here;
firstly renunciation should be of the entire undivided interest of the coparcener, either he
renounces his total interest or none at all; secondly such renunciation must be in favour of
all the remaining coparceners.
• A coparcener, who commits an act that is improper, illegal or prejudicial to the interest of
the joint family members or the coparcenary property including common enjoyment and
possession, can be restrained by an injunction from doing such an act.
• As a general rule of Mitakshara coparcener does not have a right to dispose of his undivided
share in the coparcenary property by alienation unless all the coparceners give a valid
consent to it.
 • The power of alienation of joint family property is with the Karta. Where Karta sells the
joint family property for an unauthorised purpose, the coparceners have three remedies in
the alternative :
(a) A coparcener can seek partition and separate from the family.
(b) Where the act of Karta amounts to a waste or an ouster, he can be restrained by an
injunction obtained from the Court from committing such waste.
(c) Where an alienation of the property is already effected, it can be challenged by the
coparceners as invalid and not binding on their shares. However, where the property is
sold by the father to pay his antecedent debts and the sons claim that such alienation
was not binding on them as the debts were contracted by the father for an illegal or
immoral purpose, not only do they have to prove the immoral or illegal character of the
debt but also that the creditor had notice of it.

Joint Family Property and its Alienenation

Mitakshara school divides property into two classes,viz:

Unobstructed heritage:- Property in which a person acquires an interest by birth is called

unobstructed heritage. It is so called because the accrual of the right to such property has no
obstruction. Thus property inherited by a hindu from his father,father's father,or father's father's
father, is unobstructed heritage. Their right to such property arises from mere fact of their birth in
the family and as soon as they are born,they become coparceners of such property along with their
paternal ancestor. Ancestral property is therefore is unobstructed heritage.

Obstructed heritage :- If however right to property accrues not by birth but on the death of last
owner without leaving any issue, such property is called obstructed heritage. It is so called because
accrual of right to such property is obstructed by the existence of owner of such property. Thus
property which devolves upon parents, brothers, nephews,uncles etc upon the death of last owneris
obstructed heritage. These relatives do not take any vested interest in the property by birth. Their
right to such property arises for the first time when owner of property dies.Until that time,they
have a mere spec successionis( a bare chance of succession) to such property which would be
realised only if they live longer than the owner of property.

According to Hindu law, property can be divided into two main classes,namely-
a) joint family property, and
b) separate property.
In turn, joint family property can be divided into two classes,namely-
1) ancestral property,and
2) separate property of coparceners thrown into common coparcenary stock.
Ancestral property is a species of coparcenary property. Ancestral property is acquired by
unobstructed heritage.
Which property is ancestral property or separate property?
1) Property inherited from a paternal ancestor is ancestral property.
2) Property inherited from maternal grand father is not ancestral property,but it is his separate
property.
3) Property inherited from collaterals or from females will be his separate property.
4) Share alloted on partition of ancestral property is ancestral property for his children. As regards
other relatives, such a share is separate property.
5) Property obtained by gift or will from a paternal ancestorwhether it will be ancestral property
depends on facts of case.
Doctrine of Accretions:- Accumulations and accretions of income of ancestral property are
ancestral property. So also property purchased or acquired out of the income or with the assistance
of ancestral property would be ancestral property. Property purchased out of sale proceeds of
ancestral property is also ancestral property.
Doctrine of Blending:-It sometimes happens that property which was originally separate or self-
acquired property of a member of joint family is voluntarily thrown by him into common stock with
the intention of abandoning all claims of such property. If this is done, such property becomes joint
family property by operation of doctrine of blending. The act by which coparcener throws his
separate property into common stock is a unilateral act.As soon as he declares his intention to do so
the property assumes the character of joint family property.
However clear intention to waive his separate rights must be established,and such intention cannot
be inferred from the mere fact that he allowed the other members of family to use such property
jointly with himself. Acts of generosity or kindness are not to be mistaken for admission of legal
obligation. Generally presumption is against blending of self-acquired property with joint family
property. The onus of proof is on person who alleges such a blending.
Alienation of Joint Family Property:-

Alienation means transfer of property, such as gifts, sales and mortgages. Alienations have an added
importance in Hindu Law, as, ordinarily, neither the Karta nor any other coparceners singly,
possesses full power of alienation over the joint family property or over his interest in the joint
family property, though under the Dayabhaga School a coparcener has the right of alienation over
his interest in the joint family property. Alienation of separate property by a Hindu, whether
governed by the Mitakshara School or any of its sub-schools or the Dayabhaga School, has full and
absolute powers over it. The Transfer of Property Act governs such alienations.

The distinguishing feature of this power is that it was traditionally given only to the father or the
Karta and that, but the power itself is near autocratic as it allows them to sell, gift or mortgage the
whole joint family property without the consent of any coparcener, this is why the ancient texts
have specified several conditions which alone would justify such acts of the manager. These
conditions have changed over the centuries to keep in pace with the changing conditions and the
ancient rules have been modified by the Privy Council in accordance with the principles of equity,
justice and good conscience.

Alienation has been discussed under the following heads:

• Father’s power of alienation

• Karta’s power of alienation
• Coparcener’s power of alienation
• Sole surviving coparcener’s power of alienation
• Aileen’s rights and remedies
• An effort has been made to list the entire varying viewpoint and critically analyze them in
the light of old traditions and newfound legal principles. Alienation is of vast practical utility
as it gives a way of using the joint family property for the common use of the family and it is
a classic example of the unique position of the Hindu joint family which is always ready to
help its members in times of need and who work together for common benefit

FATHER’S POWER OF ALIENATION

• A father possesses more power even than Karta as there are situations in which only the
father has the authority to make alienation. Under Dayabhaga School, father is provided
 with the absolute powers regarding alienation, i.e. he can alienate separate as well as
ancestral property, including movable and immovable on his wish. As the sons don’t get a
right over the property by birth under Dayabhaga School, father doesn’t need the consent of
his sons for the purpose of alienation.
• Father enjoys an absolute power, which empowers him to alienate the property even when
there are no moral justifications. In Ramkoomar vs. Kishenkunkar[i], the Sudder Court held
that the gift by a father of his whole estate to a younger son, during the life of the elder was
valid though immoral; however the gift of whole ancestral landed property was forbidden.

Father enjoys an absolute power, which empowers him to alienate the property even when there
are no moral justifications. In Ramkoomar vs. Kishenkunkar[i], the Sudder Court held that the gift
by a father of his whole estate to a younger son, during the life of the elder was valid though
immoral; however the gift of whole ancestral landed property was forbidden.

As regards, Joint or Undivided property it has been held that the father can alienate undivided joint
family property only in the following two cases:

• Gift of Love and Affection

• Alienation for discharge of his personal debts

Gifts of Love and Affection

The father has power to make a gift of love and affection of a small portion of movable joint family
property. Such gifts may be made by him to his own wife, son-in-law, daughter etc.

Two gifts are necessary for that validity of such gifts:

1. It should be a gift of love and affection, i.e., father should stand in some relationship of
affection to donee.
2. The gift should be of a small portion of movable joint family property.

In the case of Basho vs. Mankore Bay[iii], a gift made to the daughter of Rs.20000 was held by the
Privy Council to be valid as the total value of the estate was 10-15 lakhs.
In the case of Subbarami vs. Rammamma[iv]an important principle was laid down that such gifts
cannot be made by a will, since as soon as a coparcener dies, he loses his interest in the joint
property, which he cannot subsequently alienate.

Gifts of Immovable Property

Such gifts cannot be made of immovable property, though in Guramma v. Malappa[v], a gift of
immovable property to daughter made by father after her marriage was held to be valid.

It is submitted that gifts of love and affection of immovable property cannot be made to sons, or for
that matter to any member of joint family. Supreme Court has confined this rule of gifts of
immovable property to daughter only.

Alienation for Discharge of his Personal Debts

Father has the power to alienate the family property for the discharge of his antecedent debts,
which not being immoral or illegal, the sons are under a pious obligation to discharge.

Father can alienate family property to pay his personal debts if the following two conditions are
fulfilled-

1. The debt is antecedent.

2. The debt should not be Avyavaharik i.e. for unethical or immoral purposes.

The above two rules though derived from ancient Mitaksharatext was also laid down in the case
of Brij Narain vs. Mangla Prasad[vi].

KARTA’S POWER OF ALIENATION

Although no individual coparcener, including Karta has any power to dispose of the joint family
property without the consent of all other, it is a recognized concept by the dharamshatra that in
certain circumstance, any member of family has power to alienate the joint family property.

Vijnaneshwara recognized three exceptional cases in which alienation of the joint family property
could be made by the Karta:
 • Legal Necessity (this includes Vijnaneshwara’s Apatkale as well as a part of Kutumbarthe,
i.e., for the sake of members family.)
• Benefit of estate (this includes the other part of Kutumbarthe, i.e., for the sake of family
property.)
• Acts of indispensable duty (this includes the entire head of Dharamarthe.)

However, the Karta may alienate the joint family property irrespective of legal necessity or benefit
of the estate with the consent of all adult coparceners in existence at the time of such alienation.
Here again, there is a difference in the law prevailing in different states as to the position in case the
alienation is consented to only by some of the coparceners and not by all. As per the law in Bombay
and Madras, the shares of the consenting coparceners would be bound. However, in West Bengal
and Uttar Pradesh, a coparcener cannot alienate even his own interest without the consent of all
other coparceners and hence such alienation without the consent of all coparceners would not even
bind the shares of the consenting members.

LEGAL NECESSITY

Broadly speaking, legal necessity will include all those things which are deemed necessary for the
members of the family. The term ‘Apatkale’ under Vijnaneshwara may indicate that joint family
property can be alienated only in time of distress such as famine, epidemic, etc. and not otherwise,
however, it has been recognized under the modern law that necessity may extend beyond that. In
Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu[vii], it was held that necessity
should not be understood in the sense of what is absolutely indispensable but what according to the
notions of the joint Hindu family would be regarded as proper and reasonable[viii]. Thus, Legal
Necessity doesn’t mean actual compulsion; it means pressure upon estate which may in law may be
regarded as serious and sufficient. If it is shown that family’s need was for a particular thing and if
property was alienated for the satisfaction of that particular need, then it is enough proof that there
was a legal necessity. The following have been held to be family necessities.

• Maintenance of all the members of the Joint Hindu family, expenses for medical care for the
members.
• Payment of government revenue and government taxes and duties like income tax.
• Payment of debts incurred for family necessity or family business or decretal debts
• Performance of necessary ceremonies, sradhs and upanyana.
• Marriage expenses of male coparceners, and of the daughters of coparceners.
 • Payment of debts incurred for family business or other necessary purpose.
• Costs incurred for the defense of the head of the joint family or any other member involved
in a serious criminal charge.

PARTIAL NECESSITY

In Krishandas vs. Nathuram[ix], Privy council held that where the necessity is only partial, i.e.,
where the money required to meet the necessity is less than the amount raised by alienation, in
such a case, the sale will be valid only where the purchaser acts in good faith and after due inquiry
and is able to show that the sale itself is justified by legal necessity.

In the instant case, alienation was for Rs. 3500, and the alienee was able to prove the legal necessity
for Rs.3000, the alienation was held valid.

However, where the manager decides to raise money by a mortgage of family property, he can
borrow the precise amount required for necessity; mortgage will stand good only to the extent of
the necessity proved.

BENEFIT OF ESTATE

An alienation of joint family property can be effected for the benefit to estate also. There is also a
lack of unanimity as to the interpretation of the words, as for the benefit of the estate.

The courts have not given a set definition of this concept, undoubtedly so that it can be suitably
modified and expanded to include every act which might benefit the family.

In the modern law the first exposition of the expression “for the benefit of the estate” was found in
the case of Palaniappa vs. Deivasikamony[x]. In this case the judges observed “ No indication is to
be found in any of them(ancient texts) as to what is, in this connection, the precise nature of things
to be included under the descriptions ‘benefit to the estate’… The preservation however of the
estate from extinction, the defense against hostile litigation affecting it, the protection of it or
portions from injury or deterioration by inundations, there and such like things would obviously be
benefits[xi]”

The Privy Council has elaborately illustrated as to what are the incidents of benefit to estate
inPalaniappa v. Devsikmony[xii], it laid down that “the preservation,” however, of the estate from
extinction, the defense against the hostile litigation affecting it, the protection of it or its portion
from injury or deterioration by inundation, these and such like things would obviously be the
benefits. In broad sense legal necessity includes ‘benefit to estate’.

CONFLICT OF JUDICIAL OPINION

Consequent to this decision as to what is meant by the expression for the benefit of the estate’ there
has a conflict of judicial opinions on the issue. According to one view, only that will be a benefit of
estate which is of a defensive character, i.e., which is done to avert an eminent danger to the
property. The second view is that anything which is of positive benefit to the family as is such as a
prudent owner would carry out with the knowledge available to him at the time.

The Supreme Court later added its own observation as to what constitutes benefit, in the case
ofBalmukund vs. Kamlawati & Ors[xiii];

“for the transaction to be regarded as for the benefit of the family it need not be of a defensive
character. Instead in each case the court must be satisfied from the material before it, that it was in
fact conferred or was expected to confer benefit on family.”

Thus, the only limitation which can be placed on the Karta is that he must act with prudence and
prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary
conduct[xiv]. Therefore, the Karta, as prudent manager can do all those things which are in
furtherance of family’s advancement or to prevent probable losses, provided his acts are not purely
of a speculative or visionary character[xv].

Differing from Allahabad High Court, a full Bench of Mumbai High Court in Hem raj vs.
Nathan[xvi]took an intermediate view and held that “property cannot be alienated merely for the
purpose of enhancing its value, though, at the same time, it would not be correct to say that no
transaction can be for the benefit of estate which it is not of a defensive character”.
 Section B

Debts under Mitakshara Law

Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out of his
ancestral property even if he had not been benefited by the debts, provided the debts are not
avyavaharika. The sons get exonerated from their obligation to discharge the debt of their father
from the family assets only if the debt was one tainted with immorality or illegality. The duty that is
cast upon the son being religious and moral, the liability of the son for the debt must be examined
with reference to its character when the debt was first incurred. If at the origin there was nothing
illegal or repugnant to good morals, the subsequent dishonesty of the father is in not discharging
his obligation will not absolve the son from liability for the debt.

In Hindu law there are two mutually destructive principles, one the principle of independent
coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the
coparcenary property, and the other the pious duty of the sons to discharge their father's debts not
tainted with immorality or illegality, which lays open the whole estate to be seized for the payment
of such debts. According to the Hindu law givers his pious duty to pay off the ancestors' debts and
to relieve him of the death torments consequent on non-payment was irrespective of their
inheriting any property, but the courts rejected this liability arising irrespective of inheriting any
property and gave to this religious duty a legal character.

Burden of proof that the debts is tainted is on sons

The obligation on son to pay off their father's personal debts is religious obligation and if they want
to wriggle out of it? they can do so only if the debts are tainted the son also have to show that
creditor had the notice or knowledge that the debts was tainted.

The Apex Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal, relying upon the judgments of
the Privy Council referred to (supra), enunciated the principles thus : "the sons who challenge the
alienations made by the father have to prove not only that the antecedent debts were immoral but
also that the purchasers had notice that they were so tainted."
The learned judge points out that the doctrine, as formulated in the original texts, has indeed been
modified in some respects by judicial decisions. That under the law as it now stands, the obligation
of the sons is not a personal obligation existing irrespective of the receipt of any assets, and that it is
a liability confined to the assets received by him in his share of the joint family property or to his
interest in the same. The obligation exists whether the sons are major or minor or whether the
father is alive or dead. If the debts have been contracted by the father and they are not immoral or
irreligious, the interest of the sons in the coparceners property can always be made liable for such
debts.

The proposition laid down in Brij Narain's case is founded upon the pious obligation is that a Hindu
son limited to his interest in the joint family property to pay the debt contracted by the father for
his own benefit and not for any immoral or illegal purpose. By incurring the debt, the father enables
the creditor to sell the property in execution of a decree against him for payment of the debt. The
son is under a pious obligation to pay all debts of the father, whether secured or unsecured.

Meaning of Partition and its general Principles

Introduction:- Partition in literal sense means severance of joint status by the members of a Hindu
undivided family. In Hindu Society, Jointness of a family is a normal condition. Hence, there is a
presumption in law that every family is a joint family, unless shown to be separate in mess, status
and worship.

Meaning:- Partition means collapse of joint ownership. It destroys the harmony of joint ownership
and of possession. A large property falls into pieces over a generation or two. The land is very much
there in bits and pieces in the name of different Owners. Partition of joint family property is
basically a division of property held jointly by Co-Owners, where every co-owner owns every parcel
of the property, jointly with others. As every co – owner has joint ownership over every parcel of
the property, there is no definite and demarcated right or interest or ownership rights of the co-
sharers in such property.

As the inheritance of joint family is by survivorship, subject to the provisions of section 6 of the
Hindu Succession Act, the quantum of shares of members continues to fluctuate till the partition of
the joint family is effected. When a property is divided, each member becomes the sole and
exclusive Owner of his portion of the property. Each divided property gets a new title and each
sharer gives up his or her interest in the estate in favour of other sharers. Therefore, partition is a
combination of release and transfer of certain rights in the estate, except those, which are
easements in nature.
 It, therefore, be understood that Partition is neither a gift nor a
transfer of property. It merely breaks a joint right into several rights. It is not acquisition of
property or exchange of property. It is a combination of release and conveyance of the rights of the
property in favour of individuals or rearrangement of already existing rights. And therefore, it can
be effected orally also. But it is advisable to effect Partition in writing for the sake of clarity,
posterity and record. Thus Partition is not transfer, but when it assumes the form of transfer, the
intention may be to hoodwink the Creditors.

One must understand that properties held by a Hindu can be classified in two main categories :

• Joint family property

• Separate or self acquired property.

Now joint family properties are further divisible in two categories,

• Ancestral property.
• Separate or self acquired properties thrown in common family or coparcenory stock.

In so far as self acquired properties are concerned, they can not be subject matter of partition,
during the lifetime of the person who acquired the same. Hence, such property can be dealt by a
Hindu as per his wish and will. But after his death, they become ancestral property in the hands of
the rest of members and thus would be governed by the rules applicable to joint family property or
by the provisions of the Hindu Succession Act.

Subject Matter for Partition:-

Properties though separate or self acquired but thrown in common stock of joint family property is
also available for partition as the ancestral property. But it has been an experience that usually at
the time of partition, a claim is raised that it is separate property and hence not divisible. And hence
strong proof, either in writing or inferential, is required to prove that though separate, the property
was thrown in common stock i.e it was used or was always intended to be used as a joint family
property. This being so because of the principal that there is no presumption of jointness of
property. The burden is always on the person who asserts that a particular property is a joint
family property.

There are some examples of common properties:-

• Dwelling House
 • Business or properties, gained, acquired or created out of common labour and exertion by
the members of the joint family are also joint family properties and hence, liable for
partition.
• moveable and immoveable Properties.
• Another aspect is that there are some properties which cannot be divided physically. If
physical division is not possible, partition can still be effected by paying cash or other assets
to a sharer in lieu of his or her share in the property. Such situation arises, when the
division of an estate is considered to be dangerous and unreasonable and when such
division dilutes the inherent value of the property, or when the immovable property is too
small for division.

PERSONS WHO ARE ENTITLED TO DEMAND PARTITION

Every coparcener has a right of partition and entitle for share in partition.

1. Father- he can impose a partition, partial or total between his minor son and himself with
bonafide intention, else, it will reopen. In case of major son and father, it should be by mutual
consent.
2. Sons and Grandsons, and grate grandson. Under Bombay School, the son has no right partition
without the assent of his father, if the father is join with his own father and in case of Punjab
Customary Law, as under Punjab Customary law son have no right by birth.
3. Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be reopen
to give the share after born son. However Gautama, Manu, Nerada says the after born son
could get the share of his father alone
According to Mitakshara we have few rule for this-
1. Son conceived at the time of Partition but born after it – person in the womb is equated the
person exist. The tax lay down that if the pregnancy is know the partition should be
postponed till the time child birth, if the other coparceners are not ready for this a equal share
should be reserve if the child born son share should be allowed to them, in case female it
should be expand on her marriage.
2. Not in the womb when partition take place if the pregnancy is not known and no share has
been reserved then the partition should be reopen after childbirth.
3. Son begotten and born after partition- in this case two general rule under Mitakshara
4. When Father has taken his share in the partition- son become the coparcener with his father.
 5. When Father has not taken his share in the partition – son has a right to reopen the partition
and get his share.
6. Adopted Son- he has right if partition take place after adoption, but if partition take place
before adoption he has no right.
7. Illegitimate Son- not entitle for partition and share but for maintenance only.
8. Son void marriage and annulled marriage-not entitle.
9. Minor Coparcener- no distinction between major or minor.

PERSONS NOT ENTITLED TO PARTITION BUT ENTITLED FOR SHARE AFTER PARTITION

No female has a right to partition but if partition takes place, some female (father’s wife, mother
and grandmother) has a right for share in partition. However, after 2005 amendment, daughters
are also entitled for it.

Modes of Partition

Partition by meets and bounds:-

• The instrument of partition is a document by which the Co-Owners of a property agree to

divide the property among themselves by oral 5 agreement or written agreement or by
arbitration or through Court. If a document of release shows that the executants are to get
cash or other assets, the document is an instrument of partition. The basis of partition is
equality. The parties shall share the property equally.
• If there is no agreement among the Co-Owners for amicable division of the property, the
only alternative is to sell the property by mutual consent or by Court decree and distribute
the sale proceeds among the Co-Owners. Any of the Co-Owners may also enforce partition
through Court.

Partition by way of suit:-

• In a partition suit, a Court may have decreed partition of the property in the interest of the
Co-Owners. But, if it is found that the sale of the property and distribution of the proceeds to
the Co-Owners is more beneficial, the Court can at the request of the shareholders direct
sale of the property and distribution of the proceeds to the co-sharers.
• One more important aspect of the joint family property is that the shares or interest of the
members in such property is not defined and remains flexible till partition is effected.
Notional Partition:-

• One more important aspect of the joint family property is that the shares or interest of the
members in such property is not defined and remains flexible till partition is effected.
• This is because of the principal that the inheritance of the joint family property is by
survivorship, subject to provisions of section 6 of the HS Act. It is also clear that till partition
is effected no exclusive ownership is vested. But despite this, now it has been a settled law
that undefined interest / share in the coaprcenary property can be sold by a coparcenor and
such a purchaser can seek partition.

Effects of Partition:

• When a property is divided into more than two parts, the Co-Owners of the different
portions shall agree to hold their portions separately as absolute Owners and each of
them shall make a grant to release his share from portions given to others. Necessary
covenants in a partition deed are about encumbrances on the property, quiet
enjoyment, custody and production of title deeds, easements of necessity, payment of
rent and taxes and performance of other conditions of lease, if any, etc.
• Partition of joint property is not an exchange. The word partition has now been
explained in the HS Act, by virtue of Section 6, duly amended in 2005. Thus a partition is
now required to be in writing and registered or effected by a decree of Court. Thus, if it
is reduced into writing, it must be registered in the case of immovable properties.
• Deed of partition requires registration. Mere writing of previous partition does not
require registration. Mere list of properties allotted to different Co-Owners does not
require registration. Unregistered deed of partition though not admissible in evidence
to prove the fact of partition, can be used to prove that a particular property was
allotted to a particular Co-Owner as his share.

Reopening of partition

Under the Shastric law, Manu says ‘once a partition is made, once a damsel is given in marriage and
once a gift is made is irrevocable and irretraceable.’
A partition is generally irrevocable. The logic behind is that erstwhile coparceners hold their shares
as their separate and exclusive property, they may enter into transactions relating to them, so as to
create valid titles in favour of even third parties.

However, there are certain exception to the principle that “shares are divided only once.”

It may become imperative in certain situations to have redistribution of the properties in order to
prevent gross injustice to the members of the family. However, a plea that the partition was unfair
cannot be countenanced when the facts show that it has been undertaken after due and proper
deliberations. Thus, when readjustment of properties is not possible the entire partition has to be
reopened.

A partition can be reopened under the following circumstances-

Fraud

Fraudulent distribution of properties, unless the person affected by the fraud acquiesces in with full
knowledge of all material facts.

A partition may be reopened, if any coparcener has obtained an unfair advantage in the division of
the property by fraud upon the other coparceners. A coparcener may conceal the Joint Family
Property at the time of partition, to gain an unjust and undue advantage over the others; the
partition can thus be reopened on the discovery of fraud. However, fraud cannot be added as a
ground at a later stage of trial and also if no fraud pleaded initially in the plaint, the plea cannot be
allowed to be changed belatedly that the partition was fraudulent.

Son in womb or conceived and born after partition

Sons, grandsons and great grandsons have a right to partition. With respect to the son conceived at
the time of partition but born after partition, Hindu law equates a person in a womb to a person in
existence. The partition should be postponed till the birth of the child if the pregnancy is known,
but if the coparceners do not agree with the delay, then the share equal to the share of the
coparceners should be reserved. But in cases where no share of the posthumous child is reserved,
then he can demand for the reopening of partition after his birth through any representation. The
right of such a son depends upon whether his father has taken a share for himself at the time of
partition from his sons-

• When the father has not taken a share for himself, the after born son has a right to get
the partition reopened.
• But when the father has taken or reserved a share for himself, the after born son
becomes a coparcener with his father

such son born after the partition is entitled to have the partition reopened, but in lieu thereof he is
entitled, after the father’s death, to inherit not only the share allotted to the father on partition, but
also the separate property of the father.

Adopted son

According to Section 12 of the Hindu Adoption and Maintenance Act, 1956 adopted sons have the
same right to partition as that of the natural son. Even if after his adoption, a son is born to a father,
then also shares of adopted sons and natural sons will be equal. Thus, an adopted son is entitled to
reopen the partition.

Disqualified Coparcener

Persons suffering from any defect which disqualifies them from inheriting are equally disentitled to
a share on partition.

Various grounds of disqualification were recognised by the Hindu law, such as congenital and
incurable blindness, insanity, deafness, dumbness, virulent and incurable leprosy and other
incurable diseases that made sexual intercourse impossible.

All these grounds except congenital lunacy or insanity have now ceased to exist as a part of the
Mitakshara law by virtue of the Hindu Inheritance (Removal of Disabilities) Act,1928.

Further, if a member of the family has not a congenital disqualification, but later becomes insane, he
will not be deprived of his interest.
The disqualified coparcener who neither has a right to call for partition nor is entitled to a share,
after recovering from his disqualification can call for the reopening of the partition.

Absentee Coparcener

A coparcener absent at the time of partition, who has a share in the coparcenary, has a right to call
for the reopening of the partition if the partition has taken place in his absence.

Minor coparcener

In partition, the right of the minor coparcener is as same as that of the major coparcener. A minor is
a person of immature intellect and the court has the duty to protect his rights by acting as parens
patriae.

If minor’s interests are prejudiced by the Karta by squandering the Joint Family Property, the
minor’s guardian or the next friend of the guardian may file the suit for partition on behalf of the
minor.

The suit filed itself will bring the partition of the joint family property.

The court has the duty to look whether the partition is for the benefit of the minor or not, if the
partition is prejudicial to the minor, the court must demand injunction and not allow the partition.

Property added after partition

The reopening of partition can also be affected when some properties were left out, either by
mistake or deliberately or when some properties which have been earlier lost or seized were
discovered.

If a distribution of the additional properties can be effectively made without reopening the
partition, then the earlier partition should not be disturbed.
The Position of Female Members in a Hindu Joint Family

No female has a right to partition, but if a partition occurs, there are certain females who are
entitled to share such as father’s wife, mother, paternal grandmother and coparcener’s widow in
certain instances.

In the case of a coparcener, a severance of status is enough, and his subsequent demise would not
disentitle his legal representatives to claim his share. But for females, the entitlement arises only
when the partition takes place by metes and bounds and not just by the severance of the status.
However, if the partition takes place and she though entitled, is not given a share, she is empowered
to reopen the partition and claim her share.

The only detriment here is that, if the female dies before the partition has been affected, her share
does not pass to her legal representatives, but remains in the common pool of the joint family
property.

On and from the commencement of the Hindu Succession Act (Amendment) Act 2005, the
daughter of the coparcener shall be by birth, the coparcener in her own right, have the same rights
in the coparcenary property, and will be subjected to the same liabilities as she would have, if she
had been a son.
 Section C

Rules of Intestate Succession of a Hindu Male under Hindu Succession Act, 1956.

Introduction:- The general rules of succession regarding male can be seen in Sections 8, 9 and 10 of
this Act, whereas Sec. 15 deals with the succession about female Hindus. Sec 8 of the Act says that,
property of a male Hindu dying intestate shall devolve firstly upon the heirs specified in class I of
the schedule. In the absence of them it will devolve upon class II heirs and if there are no class I or
class II heirs, upon agnates and cognates of the deceased.

Thus, Sec. 8 specifies the category of heirs, on which the property of Hindu male can devolve. As per
Sec. 9, heirs specified in class I shall take the property simultaneously and equally to the exclusion
of others. It means Sec. 9 of the Act speaks about the precedence of heirs i.e. who will precede over
another. If there are class I heirs they will precede over the class II.

Sec. 9 – Order of succession among heirs in the Schedule:-

Among the heirs specified in the schedule, those in class I shall takes imultaneously and to the
exclusion of all other heirs; those in the first entry in class II shall be preferred to those in second
entry; those in the second entry shall be preferred to those in the third entry; and so on the
succession.

Class I heirs :-

Class I heirs includes 12 persons i.e. son, daughter, widow, mother, son of a predeceased son,
daughter of a predeceased, son of predeceased daughter, daughter of a predeceased daughter,
widow of a predeceased son, son of a predeceased son of a predeceased son, daughter of a
predeceased son of a predeceased son, widow of a predeceased son of a predeceased son.

Secondly, if there is no heir of class I, then upon the heirs being the relatives specified in class II of
the schedule Viz.

(i) Father
(ii) A. Son's daughter's son B. Son's daughter's daughter C. Brother D. Sister
(iii) A. Daughter's son's son . B. Daughter's son's daughter C. Daughter's daughter's son D.
Daughter's daughter's daughter
(iv) A. Brother's son B .. .· 's· 1ster , s son C. Brother's daughter D. Sister's daughter
 (v) Father's father; father'.s mother
(vi) Father's widow; brother's widow
(vii) Father's brother; father's sister
(viii) Mother's father; mother's mother
(ix) Mother's brother; mother's sister

Distribution of property among heirs in class I of the schedule:

As per section 10 of the Act the property of a Hindu dying intestate shall be divided among the
heirs in class I in accordance with the following rule.

Rule I: The intestate's widow or if there are more widows than one, all the widows together shall
take one share.

Illustration: A dies leaving his widow Y, two daughters M, N and one son Z. Here Y being an heir of
class I will take one share along with other heirs of class I. Hence Y shall get ~. If there are two
widows then each shall get 1/8th.

Rule 2: The surviving sons and daughters and the mother of intestate shall each take one share.

Illustration: A dies leaving behind his mother M, widow W, two sons S 1 and S2 and three daughters
D 1, D2, D3. Here all will take one share each i.e., 1/7th each.

Rule 3: The heir in the branch of each predeceased son or each predeceased daughter of the
intestate shall take between them one share.

Rule 4: The distribution of the share referred to in Rule 3:

(1) Among the heirs in the branch of predeceased son shall be. so made that his widow (or widows
together) and the surviving sons and daughters get equal portions and the branch of his
predeceased sons get the same portion

(2) Among the heirs in the branch of the predeceased daughter shall be so made that the surviving
sons and daughters get equal portions.

Order of succession among agnates and cognates:

Section 12 of the Hindu Succession Act lays down rules of preference determining the order of
succession among agnates and cognates.
These rules are as follows:

Rule 1: Of two heirs,the one who has fewer or no degrees of ascent is preferred.

Rule 2: Where the number of degrees· of ascent is the same or none that heir is preferred who has
fewer or degrees of descent.

Rule 3: Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take
simultaneously.

In this connection Section 13 ofthe Hindu Succession Act lays down rules about computation of
degrees as follows:

• For the purposes of determining the order of succession among . agnates and cognates,
relationship shall be reckoned from the intestate to the heirs in terms of degrees of ascent
or degrees of descent or both, as the case maybe.
• Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
• Every generation constitutes a degree either ascending or descending.

Rules of Intestate Succession of a Hindu Female under Hindu Succession Act, 1956.

Introduction:- Before the commencement of the Hindu Succession Act, 1956 a female Hindu
possessed two kinds of property:

• Stridhana.
• Hindu Women's Estate.

Over the Stridhana, she · had full ownership and on her death it · developed on her heirs. Even as
regards property in which she acquired Hindu I . Women's Estate, her position was that of owner
but her power of alienation was limited and on her death, the property devolved on the next heir of
the last full qwner and not on her heir. But now Section 14 of the Hindu Succession Act has
abolished the Hindu Women's Limited estate and confers on the woman the absolute ownership
over all her property howsoever acquired.

The word 'Property' as used in Section 14 (1) of·the Act, as per its explanation, includes both
movable and immovable property acquired by a female Hindu. The property may be of the
following description as property acquired:
 (i) by inheritance or device; or
(ii) by a partition; or
(iii) in lieu of maintenance or arrears of inheritance; or
(iv) by a gift from any person whether a relative or not, before at or after her marriage; or
(v) by her own skill or exertion; or
(vi) by purchase or by prescription; or
(vii) in any other manner whatsoever and
(viii) also any property held by her as Stridhana immediately I before the· commencement of
this Act.

The general rules of succession to the property of a female Hindu I have been laid down in Section
15 ofthe Act as follows:

(1) ·The property of a female Hindu dying intestate shall devolve according to the rules set out
in Section 16.
• Firstly, upon the sons and daughters (including the children of any predeceased son
or daughter and the husband );
• Secondly, upon the heirs of the husband;
• Thirdly, upon the heirs and father;
• Fourthly, ,upon the heirs of the father; and
• Lastly, upon the heirs of the mother.

Order of Succession:-

The provision relating to order of succession and in manner of distribution among heirs of a female
Hindu have been prescribed in Section 16 of the Act as follows:

The order of succession among the heirs referred to in section 15 I shall be, and distribution of the
intestate's property among those heirs shall ·take place according to the following rules viz.,

Rule- 1: Among the heirs specifi,ed in sub-section (l) of Section 15, those in one entry shall be
preferred to those in any succeeding entry, and those included in the same entry shall take
simultaneously.

Rule-· 2: If any son or daughter of the intestate had predeceased. the . intestate leaving his or her
own children alive at the time of the intestate's death, the children of su~h son or daughter shall
take between them the share which such son or daughter would have taken if living at the
intestate's death.

·Rule- 3: The devolution of the property of the intestate on the heirs referred to in clauses (b), (d)
and (e) of such sub-section (1) and in such subsection (2) of section 15 shall be in the same order
and according to the same rules as would have applied if the property had been the father's or
mother's or the husband's as the case may be, any such person had died intestate in respect thereof
immediately. after the intestate's death.

Hindu Minoirty & Guardianship Act

Introduction:- There was no specific laws were required regarding the guardianship, during the
Hindu Dharamshastras ,due to the concept of joint families where a child without parents is taken
care of by the head of the joint family. Thus no specific laws were required regarding the
guardianship. The Hindu law of guardianship of minor children has been codified and reformed by
the Hindu Minority and Guardianship Act, 1956. The subject may be discussed under the following
heads :

• Guardianship of person of minors

• Guardianship of the property of minors
• De facto guardians, and
• Guardians by affinity

Guardian Meaning:- If a person donates propertyto a minor and appoints a guardian to look after
the property he would not be a guardian within the meaning of the Act . According to Section 4 of
Hindu Minority and Guardianship Act, 1956 “Guardian” means a person having the care of a person
of a minor or of his property or of both the person and his property.

This includes:

• natural guardian
• a guardian appointed by the will of a natural guardian (testamentary guardian)
• a guardian appointed or declared by court, and
• a person empowered to act as such by the order of Court of Wards

Guardianship of the person Minor

Children Under the Hindu Minority and Guardianship Act, 1956, S. 4(a), minor means a person who
has not completed the age of eighteen years. A minor is considered to be a person who is physically
and intellectually imperfect and immature and hence needs someone's protection. In the modern
law of most countries the childhood is accorded protection in multifarious ways. Guardian is "a
person having the care of the person of the minor or of his property or both person and property."

Kinds of guardian:-

Natural Guardians

Section 4 (c) of the Hindu Minority and Guardianship Act, 1956 the expression natural guardian
refers to the father and after him the mother of the Minor. The natural guardian of wife is her
husband.

Section 6 of Act provides that the natural guardian consists of the three types of person:-

1. Father: A father is the natural guardian in a case of a boy or unmarried girl, firstly the father and
later mother is the guardian of a minor. Provided that upto age of five year mother is generally the
natural guardian of a child . This does not authorize any other person to assume the role of natural
guardian and alienate the minor’s property .

2. Mother: The mother is the guardian of the minor illegitimate boy and an illegitimate unmarried
girl, even if the father is alive and after her, the father . If the mother ceases to be a Hindu, her right
of natural guardianship remains the same. The position also remains the same in case of an adopted
child and not a natural born child. the Supreme Court has held that under certain circumstances,
even when the father is alive mother can act as a natural guardian. The term 'after' used in Section
6(a) has been interpreted as 'in absence of' instead 'after the life-time'.

3. Husband: Husband is the guardian of his minor wife.

Testamentary Guardians Under Section 9, Hindu Minority and Guardianship Act, testamentary
guardian can be appointed only by a will. The guardian of a minor girl will cease to be the guardian
of her person on her marriage, and the guardianship cannot revive even if she becomes a widow
while a minor.

It is necessary for the testamentary guardian to accept 'the guardianship. Acceptance may be
express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim
it, but once he accepts, he cannot refuse to act or resign except with the permission of the
court.Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a
guardian has now been conferred on both parents.

Guardians Appointed by the Court:-

Where the court is satisfied that it is for the Welfare of minor that an order should be made
appointing a Guardian of his person or property or both, the court may make an order under the
Guardians and Wards Act, 1890 appointing a guardian. In appointing or declaring a person as the
Guardian of a minor Welfare of the minor shall be the Paramount consideration. The Hindu
Minority and Guardianship Act is supplementary to and not in derogation to Guardians and Wards
Act.

Guardianship by affinity:-

In pre-1956 Hindu law there existed a guardian called guardian by affinity. The guardian by affinity
is the guardian of a minor widow. Mayne said that “the husband's relation, if there exists any, within
the degree of sapinda, are the guardians of a minor widow in preference to her father and his
relations.

De Facto Guardian:-

Section 11 of the Hindu Minority and Guardianship Act, 1956 deals with De Facto Guardian. Section
11 of the said act prohibits a de facto Guardian to deal with minors property. According to Section
11 of the Act, no person shall be entitled to dispose of, or deal with, the property of Hindu minor
merely on the ground of his or her being the de facto guardian of the minor.

In other words, a de facto guardian is a person who is not a legal guardian, who has no authority in
law to act as such but nonetheless he himself has assumed, the management of the property of the
child as though he were a guardian.

Principles of succession under Muslim Law

The Islamic Law of inheritance is a combination of the pre-Islamic customs and the rules
introduced by the Prophet. Whatever is left after the death of a Muslim is his heritable property.
This property can be movable or immovable and ancestral or self-acquired. The estate of a
deceased Muslim devolves on his heirs separately and the heirs are entitled to hold the property as
tenants-in-common, each having a definite share in the property.
In Abdul Raheem vs. Land Acquisition Officer, AIR 1989 AP 318, it was held that the joint system
family or joint property is unknown to Muslim law and therefore the right, title and interest in the
land held by the person stands extinguished and stands vested in other persons.

RULES OF INHERITANCE OF PROPERTY

The general rule of inheritance states that the inheritance opens on the death of the person. Nobody
can claim any right in the property even if he is an heir.
Birth right
Any child born into a Muslim family does not get his right to property on his birth. In fact, no such
person becomes a legal heir and therefore holds no right till the time of the death of the ancestor. If
an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to
a share in property. However, if the apparent heir does not survive his ancestor, then no such right
of inheritance or share in the property shall exist.
Rule of Representation
Doctrine of representation states that if during the lifetime of an ancestor, any of his or her legal
heirs die, but the latter’s heirs still survive, then such heirs shall become entitled to a share in the
property as now they shall be representing their immediate generation.
Birth right
Any child born into a Muslim family does not get his right to property on his birth. In fact, no such
person becomes a legal heir and therefore holds no right till the time of the death of the ancestor. If
an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to
a share in property. However, if the apparent heir does not survive his ancestor, then no such right
of inheritance or share in the property shall exist.
Rule of Distribution
Vesting of property takes place immediately on the death of the propositus. Under the Muslim law,
distribution of property can be made in two ways, firstly per capita or per strip distribution. Per –
Capita distribution method is majorly used in the Sunni law. According to this method, the estate
left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each
person depends on the number of heirs. The heir does not represent the branch from which he
inherits.
On the other hand, per strip distribution method is recognised in the Shia law. According to this
method of property inheritance, the property gets distributed among the heirs according to the
strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the
number of persons that belong to the branch. It is noteworthy that the Shia law recognises the
principle of representation for a limited purpose of calculating the extent of the share of each
person. Moreover, under the Shia law, this rule is applicable for determining the quantum of the
share of the descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased sister or
that of a pre-deceased aunt.

GROUNDS OF DISQUALIFICATIONS
Disqualifications which debar the heirs to succeed the property of the intestate are—
MURDERER
Under the Sunni Law, a person who has caused the death of another, whether intentionally, or by
mistake, negligence, or accident, is debarred from succeeding to the estate of that other.
Homicide under the Shia Law is not a bar to succession unless the death was caused intentionally.
ILLEGITIMATE CHILDREN
Under the Hanafi School, an illegitimate child is not entitled to inherit. Such a child cannot inherit
from his/her father but can inherit from his/her mother and all relatives of the mother. The mother
can also inherit the property of her illegitimate children.

WIDOW
Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is entitled
to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses
and debts. However, a widow who has children or grandchildren is entitled to one-eighth of the
deceased husband’s property.
In Abdul Hammed Khan vs. Peare Mirza, 1935 I.L.R. 10 Luck. 550 it was held that a childless
widow, in the absence of other heirs, was entitled to inherit her share and rest of the property
including the land, of her husband by the application of the doctrine of return.
CHILD IN THE WOMB
A child in the womb of its mother is competent to inherit only if it is born alive. A child in embryo is
regarded as a living person and, as such, the property vests immediately in that child. But, if such a
child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if
there was no such heir (in the womb) at all.
ESCHEAT
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by
Government through the process of escheat.
DIFFERENCE OF RELIGION
A non-Muslim could not inherit from a Muslim but the Caste Disabilities Removal Act of 1850 does
away in India with the exclusion of a non-Muslim from the inheritance of the property.
Theory of Propinquity
Propinquity means nearness in blood. In determining the preferential claims of the heirs, the Shias
adopt the principles of consanguinity. The rule that nearer in degree excludes the more remote is
applied to kindred of the same class only. This theory of propinquity is fully recognized by Shias but
partially recognized by the Sunnis.

Case Laws
1. In Hakim Rehman vs. Mohammad Mahmood Hassan, AIR 1957 Pat 559, it was held that
upon the death of a Mohammedan, the whole estate devolves upon his heirs at the moment of
his death and the heirs succeed to the estate as tenants-in-common in specific shares.
2. In Rukmanibai vs. Bismillavai, AIR 1993 MP 45, it was held that where a person, who has
converted to Islam, dies leaving behind his daughter only and no residuary, shall be entitled
to her share as well as residuary share in the property of the deceased.
3. In Shukurllah vs. Zohra Bibi, AIR 1932 All. 512 it was held that each heir of the
Mohammedan is liable for the debt of the deceased to the extent only of a share of the debts
proportionate to his share of the estate.
 Table of sharers and their fixed share
Sunni Law No Child Shia Law
1. Father 1/6 Residuary Three groups of Consanguine
2. Mother 1/6 1/3 Heirs
1 Parents and Children
3. Husband 1/4 ½
Primary 2 All Grand Parents, Brothers and
Heirs Sisters and their descendants
3 Paternal and Maternal uncle
4. Wife 1/8 ¼ and aunt and their children
5. Daughter 1/2
In case two or more
daughters2/3 In the Fixed Sharers
6. True Grand
presence
of son 1. Father
Father half of the 2. Mother
7. True Grand son 3. Daughter Shares
Mother 4. Uterine sister fixed
1/6 same as
8. Son’s daughter 5. Uterine Brother
6. Consanguine under
9. Full sister Sunni
½ Substituted Sister Law
10. Uterine sister heirs 7. Full sister
11. Uterine Brother 1/6
8. Husband
12. Consanguine ½ 9. wife
Sister ½
Gift under Muslim Law

INTRODUCTION

A gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous and inter vivos in nature. This is the general definition
that is accepted by all the religions, including Muslim law. As per the Muslim Law, a gift is called
as Hiba.

Under English laws, right in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. Rights in the land described as “estate” under English Law
do not always imply only absolute ownership but it also includes rights which fall short of it and are
limited to the life of the grantee or in respect of time and duration of use of the same[i].

Under Hindu Law, a gift is regarded as the renunciation of the property right by the owner in the
favor of donee. According to Jimutvahana, under Hindu law’s concept of gift, ownership is not
created by acceptance but by renunciation of the donor. But however, the Mitakshara school of
Hindu law considers acceptance as an important ingredient for a gift. The donor can divest his
interest by renunciation but cannot impose the same on the donee if he is not ready to accept[ii].

Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650 AD. In
general, Muslim law draws no distinction between real and personal property, and there is no
authoritative work on Muslim law, which affirms that Muslim law recognizes the splitting up of
ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction
between the corpus of the property itself (called as Ayn) and the usufruct in the property (as
Manafi).

Over the corpus of property, the law recognizes only absolute dominion, heritable and unrestricted
in point of time. Limited interests in respect of property are not identical with the incidents of
estates under the English law. Under the Mohammedan law, they are only usufructuary interest
(and not rights of ownership of any kind). Thus, in English law a person having interest in the
immoveable property for limited periods of time is said to be the “owner” of the property during
those periods and the usufruct is also regarded as a part of the corpus.
On the other hand, in Muslim law, a person can be said to be an “owner” only if he has full and
absolute ownership. If the use or enjoyment of property is granted to a person for life or another
limited period such person cannot be said to be an “owner” during that period. The English law thus
recognizes ownership of the land limited in duration while Muslim law admits only ownership
unlimited in duration but recognizes interests of limited duration in the use of the property. This
basically differentiates Muslim Law’s concept of property and gift from that of English Law[iii].

Under Muslim Law, the religion of the person to whom a gift is made is not relevant. In India, there
is a separate statute that governs the matters related to the transfer of property. The Transfer of
Property Act, 1882 under Chapter VII talks about gifts and the procedure for making the same. Yet
as per section 129 of the Act, the Transfer of Property Act, 1882 does not apply to the Muslims
making the gift.[iv]

CONCEPT OF HIBA UNDER MUSLIM LAW

The conception of the term ‘gift’ as used in the Transfer of Property Act, 1882 is somewhat different
from the practice under the Muslim Law. Under the Muslim Law, a gift is a transfer of property or
right by one person to another in accordance with the provisions provided under Muslim law. Hiba
(Tamlik al ain), is an immediate and unconditional transfer of the ownership of some property or of
some right, without any consideration or with some return (ewaz); and the term ‘hiba’ and ‘gift’ are
often indiscriminately used but the term hiba is only one of the kinds of transactions which are
covered by the general term ‘gift’. The other types of gifts include Ariya (Tamlik al manafe), where
the only usufruct is transferred and Sadqah where the gift is made by the Muslim with the object of
acquiring religious merit[v].

A man may lawfully make a gift of his property to another during his lifetime, or he may give it
away to someone after his death by will. The first is called a disposition inter vivos; the second, a
testamentary disposition. Muhammadan law permits both kinds of transfers; but while a
disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-
third of the net estate. Muhammadan law allows a man to give away the whole of his property
during his lifetime, but only one-third of it can be bequeathed by will.

The Hanafi lawyers define hiba as ‘an act of bounty by which a right of property is conferred in
something specific without an exchange’. The Shias hold that ‘a hiba is an obligation by which
property in a specific object is transferred immediately and unconditionally without any exchange and
free from any pious or religious purpose on the part of the donor’. Muslim law allows a Muslim to give
away his entire property by a gift inter vivos, even with the specific object of disinheriting his heirs

ESSENTIALS OF HIBA

Since Muslim law views the law of Gift as a part of the law of contract, there must be an offer (izab),
an acceptance (qabul), and transfer (qabza).

In Smt Hussenabi v Husensab Hasan[vii], a grandfather made an offer of a gift to his

grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express of
implied acceptance was made by a major grandson. Karnataka HC held that since the three
elements of the gift were not present in the case of the major grandchild, the gift was not valid. It
was valid in regards to the minor grandchildren.

Thus, the following are the essentials of a valid gift

1. A declaration by the donor:

There must be a clear and unambiguous intention of the donor to make a gift. A declaration
is a statement which signifies the intention of the transferor that he intends to make a gift. A
declaration can be oral or written. The donor may declare the gift of any kind of property
either orally or by written means. Under Muslim law, writing and registrations are not
necessary.

In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul[ix] it was held that under
Muslim Law, declaration, as well as acceptance of the gift, may be oral whatever may be
nature of property gifted. When the gift is made in writing, it is known as Hibanama[x].
This gift deed need not be on stamp paper and also need not be attested or registered.[xi] In
the famous case of Md. Hesabuddin v Md. Hesaruddin[xii], where the gift was made by a
Muslim Woman and was not written on a stamp paper, Gauhati High Court held that the gift
was valid.

The declaration made by the donor should be clear. A declaration of Gift in ambiguous
words is void. In Maimuna Bibi v. Rasool Mian[xiii], it was held that while the oral gift is
permissible under Muslim law, to constitute a valid gift it is necessary that donor should
divest himself completely of all ownership and dominion over the subject of the gift. His
 intention should be in express and clear words. According to Macnaghten, “A gift cannot be
implied. It must be express and unequivocal, and the intention of the donor must be
demonstrated by his entire relinquishment of the thing given, and the gift is null and void when
he continues to exercise any act of ownership over it.”

The declaration should be free from all the impediments such as inducement, threat,
coercion, duress or promise and should be made with a bona fide intention.

2. Acceptance by the donee

A gift is void if the donee has not given his acceptance. The legal guardian may accept on
behalf of a minor. Donee can be a person from any religious background. Hiba in favor of a
minor or a female is also valid. A child in the mother’s womb is a competent done provided
it is born alive within 6 months from the date of declaration. A juristic person is also capable
of being a donee and a gift can be made in their favor too. On behalf of a minor or an insane
person, any guardian as mentioned under the provisions of Muslim law can accept that gift.
These authorized people include

• Father,
• Father’s Executor,
• Paternal Grand-Father, and
• Paternal Grand Father’s Executor.

3. Delivery of possession by the donor and taking of the possession by the done[xvii]:

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 – reap the benefits of the property. If the donor is reaping the benefit
then the delivery is not done and the gift is invalid.

The mode of delivery of possession depends completely upon the nature of the property.
Delivery of possession may either be: Actual, or Constructive.

1. Actual Delivery of Possession: Where the property is physically handed over to the donee,
the delivery of possession is actual. Generally, only tangible properties can be delivered to
the done. Tangible property may be movable or immovable. Under Muslim law, where the
 mutation proceedings have started but the physical possession cannot be given and the
donor dies, the gift fails for the want of delivery of possession[xviii]. However, in such cases,
if it is proved that although the mutation was not complete and the done has already taken
the possession of the property, the gift was held to be valid[xix].
2. Constructive Delivery of Possession: Constructive delivery of possession is sufficient to
constitute a valid gift in the following two situations:

• Where the Property is intangible, i.e. it cannot be perceived through senses.

• Where the property is tangible, but its actual or physical delivery is not possible.

Under Muslim law, Registration is neither necessary nor sufficient to validate the gifts of
immovable property. A hiba of movable or immovable property is valid whether it is oral or in
writing; whether it is attested or registered or not, provided that the delivery of possession has
taken place according to the rules of Muslim Law[xx].

Constitutional Validity of Hiba

The question of whether the first exemption was constitutionally valid in regards to the right to
equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts, validating
the disposition on the grounds of ‘reasonable classification.

It is enough to say that it is now well settled by a series of decisions of this Court that while Article
14 forbids class legislation, it does not forbid reasonable classification for the purposes of
legislation, and in order to pass the test of permissible classification, two conditions must be
fulfilled, namely[xxi]:

(1) That the classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group; and,

(2) That differentia must have a rational relation to the object sought to be achieved by the statute
in question.

The classification may be founded on different bases such as geographical, or according to objects
or occupations and the like. The decisions of this Court further establish that there is a presumption
in favor of the constitutionality of an enactment and the burden is upon him who attacks it to show
that there has been a clear transgression of the constitutional guarantee; that it must be presumed
that the legislature understands and correctly appreciates the needs of its own people and that its
laws are directed to problems made manifest by experience and that its discriminations are based
on adequate grounds; and further that the legislature is free to recognize degrees of harm and may
confine its restrictions to those cases where the need is deemed to be the clearest.

It is well known that there are fundamental differences between the religion and customs of the
Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift are
based on reasonable classification and the provision of Section 129 of the Transfer of Property Act
exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the
Constitution.

The most essential element of Hiba is the declaration, “I have given”. As per Hedaya, Hiba is defined
technically as[xxii]:

“Unconditional transfer of existing property made immediately and without any exchange or
consideration, by one person to another and accepted by or on behalf of the latter“.

According to Fyzee[xxiii], Hiba is the immediate and unqualified transfer of the corpus of the
property without any return.

SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

Now the question which we have in mind is what can be a subject matter of Hiba, under Muslim
law. As per the provisions of Transfer of Property Act, 1882, the subject matter of the gift must be
certain existing movable or immovable property. It may be land, goods, or actionable claims. It must
be transferable under Section 6. But it cannot be future property. A gift of a right of management is
valid, but a gift of future revenue of a village is invalid.

These cases were decided under Hindu and Mohammedan law respectively but they illustrate the
principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of
tangible property. It is submitted that the release of a debt is not a gift as it does not involve a
transfer of property but is merely a renunciation of a right of action.

It is quite clear that an actionable claim such as a policy of insurance may be the subject of a gift It is
submitted that in a deed of gift the meaning of the word ‘money’ should not be restricted by any
hard and fast rule but should be interpreted having regard to the context properly construed in the
light of all the relevant facts. Therefore in order to constitute a valid gift, there must be an existing
property. In Mohammedan law, any property or right which has some legal value may be the
subject of a gift[xxiv].

Under Muslim law, following constitute the subject matter of Hiba[xxv]:

1. It must be anything (moveable or immovable, corporeal or incorporeal) over which the right
of property may be exercised or anything which exists either as a specific entity or an
enforceable right, or anything designable under the term mal (property).
2. It must be in existence at the time when the gift is made. Thus, the gift of anything that is to
be made in the future is void. For example, a donor makes a gift the fruits of his mango
garden that may be produced this year. This gift is invalid since the mangoes were not in
existence at the time of making the gift.
3. The donor must possess the gift.
4. A gift of a part of a thing which is capable of the division is not valid unless the said part is
divided off and separated from the property of the donor, but a gift of an indivisible thing is
valid. For example, A, who owns a house, makes a gift to B of the house and of the right to use
a staircase used by him jointly with the owner of an adjoining house. The gift of A’s
undivided share in the use of the staircase is not capable of division; therefore it is valid.
5. According to Hanafi law, the gift of an undivided share in any property capable of the
division is, with certain exceptions, incomplete and irregular (fasid), although it can be
rendered valid by subsequent separation and delivery of possession. For instance, A makes a
gift of her undivided share in certain lands to B, and the share is not divided off at the time of
the gift but is subsequently separated and possession thereof is delivered to B, the gift
although irregular (fasid) in its inception, is deemed valid by subsequent delivery of
possession.Exceptions: Gift of such undivided share is valid which is incapable of
division:a) Hiba by one co-heir to the other; For instance, A Muslim woman died leaving a
mother, a son, and a daughter. The mother made a gift of her unrealized one-sixth share
jointly to the deceased’s son and daughter. The gift was upheld by Privy Council.

b) Hiba of a share in freehold property in a large commercial town; For instance, A wins a
house in Dhaka. He makes a gift of one-third of his house to B. The property being situated
in a large commercial town, the gift is valid.
 c) Hiba of a share in a zamindari or taluka; According to Ameer Ali, the doctrine of Musha
is applicable only to small plots of land, and not to specific shares in large landed properties,
like zamindaris. Thus, if A and B are co-sharers in a zamindari, each having a well –defined
share in the rents of undivided land, and A makes a gift of his share to B, there is no regular
partition of the zamindari, the gift is valid.

d) Hiba of a share in a land company

Muslim law recognizes the difference between the corpus and the usufructs of a property.
Corpus, or Ayn, means the absolute right of ownership of the property which is heritable
and is unlimited in point of time, while, usufructs, or Manafi, means the right to use and
enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called
Hiba and the gift of only the usufructs of a property is called Ariya.

In Nawazish Ali Khan vs Ali Raza Khan[xxvi], it was held that gift of usufructs is valid in
Muslim law and that the gift of corpus is subject to any such limitations imposed due to
usufructs being gifted to someone else. It further held that gift of a life interest is valid and it
doesn’t automatically enlarge into the gift of corpus. This ruling is applicable to both Shia
and Sunni.

Hence critical scrutiny of the concept of Gift under Muslim law gives us the following
instances regarding what can be the subject matter of Hiba:

• anything over which right of property may be exercised.

• anything which may be reduced to possession.
• anything which exists either as a specific entity or as an enforceable right.
• anything which comes within the meaning of the word mal.In Rahim Bux vs Mohd.
Hasen[xxvii], it was held that gift of services is not valid because it does not exist at the time
of making the gift.

REVOCATION OF GIFT

Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it
is a well-established rule of Muslim law that all voluntary transactions, including gifts, are
revocable. The Muslim law-givers have approached the subject of revocability of gift from several
angles.

From one aspect, they hold that all gifts except those which are made by one spouse to another, or
to a person related to the donor within the degrees of prohibited relationship, are revocable.

The Hedaya gives the reasons thus[xxxii]:

“The object of a gift to a stranger is a return for it is custom to send presents to a person of high rank
that he may protect the donor; to a person of inferior rank that the donor may obtain his services; and
to person of equal rank that the donor may obtain an equivalent and such being the case it follows
that the donor has the power of annulment, so long as the object of the deed is not answered, since a
gift is capable of annulment”.

The texts of Muslim law lay down a long list of gifts which are irrevocable. The contents of the list
differ from school to school, and the Shias and the Sunnis have the usual differences. The Muslim
law-givers also classify gifts from the point of view of revocability under the following two
heads[xxxiii]:

• Revocation of gifts before the delivery of possession, and

• Revocation of gifts after the delivery of possession.

Revocation of gifts before the delivery of possession[xxxiv]:

Under Muslim law, all gifts are revocable before the delivery of possession is given to the donee.
Thus, P makes a gift of his motor-car to Q by a gift deed. No delivery of possession has been made to
Q. P revokes the gift.

The revocation is valid. In this case, it will not make any difference that the gift is made to a spouse,
or to a person related to the donor within the degrees of prohibited relationship. The fact of the
matter is that under Muslim law no gift is complete till the delivery of possession is made, and
therefore, in all those cases where possession has not been transferred the gift is incomplete, and
whether or not it is revoked, it will not be valid till the delivery of possession is made to the donee.

The revocation of such a gift, therefore, merely means that the donor has changed his mind and
does not want to complete it by the delivery of possession. For the revocation of such gifts, no order
of the court is necessary. Fyzee rightly says that this is a case of inchoate gift and it is not proper to
apply the term revocation to such a gift.

Revocation after the delivery of possession[xxxv]:

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not
sufficient to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is entitled
to use the property in any manner; he can also alienate it.

It seems that:

• all gifts after the delivery of possession can be revoked with the consent of the donee,
• revocation can be made only by a decree of the court.

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by
his heirs after his death. A gift can also not be revoked after the death of the donee.

According to the Hanafi School with the exception of the following cases, a gift can be revoked even
after the death of the donee.

According to the Hanafi School, with the exception of the following cases, a gift can be revoked even
after the delivery of possession. The exceptions to the same are[xxxvi]:

• When a gift is made by one spouse to another.

• When the donor and the donee are related within the prohibited degrees.
• When the donee or the donor is dead.
• When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he
had disposed of it by sale, gift or otherwise or, where he had consumed it, or where it had
been lost or destroyed.
• When the value of the subject-matter has increased.
• When the identity of the subject-matter of the gift has been completely lost, just as wheat,
the subject-matter of gift, is converted into flour.
• When the donor has received something in return (iwaz).
• When the object of the gift is to receive the religious or spiritual benefit or merit, such as
sadaqa.
The Shia law of revocation of gifts differs from the Sunni law in the following respects: First, gift can
be revoked by a mere declaration on the part of the donor without any proceedings in a court of
law; secondly, a gift made to a spouse is revocable; and thirdly, a gift to a relation, whether within
the prohibited degrees or not, is revocable.

Conclusion

The conception of the term gift and subject matter of gift has been an age-old and traditional issue
which has developed into a distinct facet in property law. Different aspects related to gift in
property act and its distinction with the Mohammedan law and its implications has been the major
subject matter of this article.

In considering the law of gifts, it is to be remembered that the English word ‘gift’ is generic and
must not be confused with the technical term of Islamic law, hiba. The concept of ‘hiba’ and the
term ‘gift’ as used in the transfer of property act, are different. As we have seen in the project that
Under Mohammedan law, to be a valid gift, three essentials are required to exist:

• Declaration of gift by the donor.

• Acceptance of the gift, express or implied, by or on behalf of the done.
• Delivery of possession of the subject of the gift.

The English law as to rights in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. The essential elements of a gift are:

• The absence of consideration.

• The donor.
• The done.
• The subject-matter.
• The transfer; and the acceptance.

Thus this striking difference between the two laws relating to gift forms the base of this project in
understanding its underlying implications.

To conclude the researcher can say that, the gift is a contract consisting of a proposal or offer on the
part of the doner to give a thing and acceptance of it by the donee. So it is a transfer of property
immediately and without any exchange. There must be a clear intention by the donor to transfer the
possession to the doner for a valid gift. It can be revoked by the doner. And the provisions for the
same have also been mentioned.
 Section D

Definitions and the Dowry offences

Introduction:- In common parlance, dowry means the property which the bride brings at the time of
marriage. In ancient India, daughter’s marriage was considered Kanyadan (an act of gift) and was
accompanied by some cash, gold and usual household things. The Atharvaveda refers to a royal
bride who brings with her the dowry of hundred cows. Draupadi, Subhadra and Uttara also brought
with them rich presents of horsed, elephants and jewels from their parents.

Definition of Dowry:-

Under Section 2 of this Act ‘dowry’ means any property or valuable security given or agreed to be
given either directly or indirectly ;

• by one party-to-marriage to the another party-to-the marriage; or

• by the parents of either party-to-a-marriage or by any other person toe the either party-to-
the-marriage or to any other person; in at or before or any time after the marriage (in
connection with the marriage) of the said parties, but does not include ‘Dower’ or ‘Mehr’ in
the case of persons to whom the Muslim Personal Law (Shariat) applies.

Dowry offences:-

Punishment for taking and giving

Under Section 3(1) of the Act, as amended in 1984 and 1986, the lf offenders guilty of taking or
giving of dowry or of its abetment are liable j j to the punishment with a mandatory minimum of
five years imprisonment along with fine which shall not be less than fifteen thousand rupees, or the
amount of the value of such dowry, whichever is more.

Demanding of Dowry

The demanding of dowry is the most offencive aspect of the dowry system; such demands when
made after marriage place the wife in an extremely vulnerable position.

Section 4 provides for punishment of persons demanding directly or indirectly form the parents or
guardian of a bride or bride- groom, payment of any dowry. For demanding dowry the punishment
is a minimum term of imprisonment of six months, but which may be extended to two years and
with fine which may extend to ten thousand rupees. Liability would ensure when the demand is
made and it is not necessary that demand is to be made after the other party agreed to comply with
it. What is made punishable is the demand itself, whether direct or indirect, from the parents of a
bride or bridegroom.

Mere demand constitute the Offence:-

The Supreme Court held that the Dowry Prohibition Act, 1961 is intended to prohibit the giving and
taking of dowry, and parliament hasmade every offence under the Act non-compoundable by the
Section 8 of the Act. Having regarding the object of the Act which is to stamp out the practice of
demanding dowry in any shape or form either before or after the marriage, we are of the opinion
that the entire definition of the work ‘dowry’ should not be imported into Section 4 which lays
down that "if any person after the commencement of this Act, demands directly or indirectly from
the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be
punishable, with imprisonment which may extend to six months or with fine, which may extend to
five thousand rupees or with both.

Ban on advertisements for dowry

Section 4A of the Act provided that, if any person offers his property or any money or both through
any advertisement in any newspaper, periodical, or journal as consideration for the marriage of his
son, daughter or any other relative, he shall be punishable with imprisonment for a term which
shall not be less than six months but which may extend to five years, or with fine which may extend
to Rs. 15,000.

Agreement for Dowry

Any agreement for the giving or taking of dowry shall be void. An agreement for giving or taking is
void and hence, unenforceable by the law courts. Section 5 of the Act comes about when the
demand for dowry is accepted

Recovery of dowry and presents

The lack of control of the bride over dowry property and misappropriation of dowry by the groom’s
family have been sources of conflict between families which frequently resulted in the persecution
of the bride.

Entrustment and Criminal Breach of trust With reference to relationship of husband and wife
the respective properties of the parties. What indeed is the true legal relationship of the husband
and wife ‘que’ the property individually owned by each within the four walls of he matrimonial
home? Does the wife stand entrusted the property belonging to her husband individually and ‘vice-
versa’ the husband stands entrusted with such property vesting in the exclusive ownership of the
wife

Uniform Civil Code

Meaning and need of Uniform Civil Code

The term civil code is used to cover the entire body of laws governing rights relating to property
and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance.
The demand for a uniform civil code essentially means unifying all these personal laws to have one
set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of
the community they belong to. Though the exact contours of such a uniform code have not been
spelt out, it should presumably incorporate the most modern and progressive aspects of all existing
personal laws while discarding those which are retrograde.

The Indian Constitution expressly stands for gender equality. For example, Article 44 of the
Constitution envisages a Uniform Civil Code for all citizens and lays down that, “The State shall
endeavor to secure for the citizen a Uniform Civil Code through out the territory of India.”7
However, even after half a century from the framing of the Constitution, the ideal of Uniform Civil
Code is yet to be achieved. Women, who make up nearly a half of India, continue to clamour for a
gender just code to enjoy equality and justice irrespective of the community to which they belong.
The Uniform Civil Code is required not only to ensure (a) uniformity of laws between communities,
but also (b) uniformity of laws within communities ensuring equalities between the rights of men
and women.

One of the major problems that has provoked exciting polemics and aggravated majority pressures
is the enactment of a uniform civil code for the citizens throughout the territory of India, as
desiderated in Article 44. The provision is cautiously worded and calls upon the State to
`endeavour' to secure such a code. It is neither time-bound nor carries a compulsive urgency. But
the Hindu fundamentalists make it a militant demand as if Hindu law should be made the national
family law. There is apprehension in the mind of the Muslim minority that the Quran is in danger,
that its sacred family law will be jettisoned. In the Shah Bano case in 1986, the Supreme Court
expressed displeasure at the delay in framing a uniform civil code, which was regarded as a secular
imperative. Raging controversy demanding the uniform code followed and was resisted in full fury
by the Muslim minority, with distinguished exceptions

Attempts have been made from time to time for enacting a Uniform Civil Code after independence
and the Supreme Court in various cases has been giving directions to the government for
implementing Article 44 of the Constitution and to reform the personal laws specially those relating
to the minorities and to remove gender bias therein. While a uniform civil code is not particularly
high on the national agenda, value-based progressive changes, preserving the separate identity of
each religious group, is a feasible project avoiding insult and injury to any minority.

Uniform Civil Code - Gender Justice

Case Laws

In Mohammad Ahmed Khan v. Shah Bano Begum,popularly known as Shah Bano‟s case, the
Supreme Court held that “It is also a matter of regret that Article 44 of our Constitution has
remained a dead letter.” Though this decision was highly criticized by Muslim Fundamentalists, yet
it was considered as a liberal interpretation of law as required by gender justice. Later on, under
pressure from Muslim Fundamentalists, the central Government passed the Muslim Women‟s
(Protection of rights on Divorce) Act 1986, which denied right of maintenance to Muslim women
under section 125 Cr.P.C. The activist rightly denounced that it “was doubtless a retrograde step.
That also showed how women‟s rights have a low priority even for the secular state of India.
Autonomy of a religious establishment was thus made to prevail over women‟s rights.

In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and others,16 Kuldip Singh J.,
while delivering the judgment directed the Government to implement the directive of Article 44
and to file affidavit indicating the steps taken in the matter and held that, “Successive governments
have been wholly remiss in their duty of implementing the Constitutional mandate under Article 44,
Therefore the Supreme Court requested the Government of India, through the Prime Minister of the
country to have a fresh look at Article 44 of the Constitution of India and endeavor to secure for its
citizens a uniform civil code through out the territory of India.”

However, in Ahmadabad Women’s Action Group (AWAG) v. Union of

India,17 a PIL was filed challenging gender discriminatory provisions in Hindu, Muslim and
Christian statutory and non-statutory law. This time Supreme Court became a bit reserved and held
that the matter of removal of gender discrimination in personal laws “involves issues of State
polices with which the court will not ordinarily have any concern.”18 The decision was criticized
that the apex court had virtually abdicated its role as a sentinel in protecting the principles of
equality regarding gender related issues of personal laws of various communities in India.

The Apex Court pursued the same line in Lily Thomas etc. v. Union of Indiaand others20 and held :

“The desirability of Uniform Civil Code can hardly be doubted. But it can concretize only when
social climate is properly built up by elite of the society, statesmen amongst leaders who instead of
gaining personal mileage rise above and awaken the masses to accept the change.”

The situation regarding the personal laws for Christians in India was different. In their case, the
courts seemed to be bolder and took a progressive stand in terms of gender equality. For example,
in 1989, in Swapana Ghosh v. Sadananda Ghosh, the Calcutta High Court expressed the view that
sections 10 and 17 of the Indian Divorce Act, 1869, should be declared unconstitutional but nothing
happened till 1995. In 1995, the Kerela High Court in Ammini E.J. v. Union of India,22 and Bombay
High Court in Pragati Verghese v. Cyrill George Verghese, struck down section 10 of Indian Divorce
Act, 1869 as being violative of gender equality.

In Naveen Kohli v. Neelu Kohli,31 the Supreme Court, clearly and strongly while permitting
dissolution of thirty year old mismatch, urged the Government of India to amend Hindu Marriage
Act in order to make Irretrievable break down of marriage a valid ground for divorce. The court
held that “irrevocable break down of marriage” as a ground for divorce was prevalent in many
other countries and recommended the Union of India to seriously consider bringing an amendment
in Hindu Marriage Act, 1955 to incorporate irretrievable break down of marriage as a ground for
the grant of divorce. The court ordered to send a copy of judgment to the Secretary, Ministry of law
and justice, Department of legal affairs, Government of India for taking appropriate steps
 Features of Family Courts Act

Introduction

Marriage is an institution which is considered as sacred in India. But with the changing times
marriage has become a subject of great judicial scrutiny. Before 1984 all family matters were seen
by ordinary civil court judges who used to deal with matters like recovery of money or property. In
1984 the Government of India after the recommendation of the Law Commission in their
59th Report the family courts were created by a Gazette notification of the Central Government. This
Act was known as ‘The Family Courts Act, 1984’.

Jurisdiction

1. Civil mattersThe family courts exercise the entire jurisdiction which is exercised by
any District Court or any subordinate civil court in the following matters-

• Matrimonial causes

• Maintenance and alimony of spouses

• Custody and guardianship of children

• Settlement of spousal property

2. Criminal matters

The judge is vested with the power exercisable by the Magistrate of First Class under Chapter IX of
Code of Criminal Procedure which is Order for maintenance of wives, children and parents.

Powers of Family Court

1. The family court has the power to make their own procedure.
2. They are not required to record the oral statement of the witness at length.
3. The appeal from family courts lies directly to the High Court.
4. The Family Court can receive any document or statement even if it is not admissible under
Indian Evidence Act 1872.

Procedure to be followed by family court

 1. Section 9 provides that the family court should try to resolve the matter
through conciliation and settlement.
2. If there is possibility of settlement of dispute the court should adjourn the proceedings until
such settlement is arrived at.
3. The parties of the proceeding are not required to hire a legal practitioner; however they are
entitled to appoint an ‘amicus curie’ to assist the parties in the settlement proceedings.
4. In camera proceedings can be ordered if the parties desire. (In camera proceedings means
that the public is not allowed to see the proceedings)
5. Judgment should be concise with the statement of the case, determination of the decision
and the reason for the decision.
6. Provisions of Code of Civil Procedure, 1908 are applied in the enforcement of the order or
the judgement.
7. The Court can take assistance of medical and welfare experts.

Appeal

1. Appeal from judgment or order of Family Court can be made to the High Court within 30
days of passing the order or the judgement.
2. The appeal can be on both question of law and question of fact.
3. The appeal should be heard by a High Court bench of two or more judges.
4. No appeal lies against an order which is passed with the consent of the parties.

Steps to follow for registering a suit in a Family Court

1. If a person wants to register a suit in the family court then he needs to describe all the
details clearly on a watermarked paper and submitted along with the court fees.
2. Along with the suit papers the petitioner should attach an affidavit that all the facts stated in
the plaint is true.
3. The papers are submitted to the registrar of the Family Court who verifies all the relevant
documents.
4. These files are presented to the Principal Judge of the Family Court. After verification of
each file and hearing the petitioners, the Principal Judge decides whether the suit is fit for
registration.
5. The applicant files the summons form and gets the next date for hearing.
Challenges

1. Inadequate number of conciliators- In many Courts it has been observed that they don’t
have counsellors or the counsellors are inapt. A major problem is the counsellors keep
changing frequently.
2. Attitude of Family Court Judges- The judges appointed to the family court do not have any
special expertise in dealing with family matters, nor do they have any special expertise in
settling disputes through conciliation. The appointment of women judge in Family Court is
still a dream to be achieved.
3. Lack of Uniformity in Rules and Procedures- The procedure established in different High
Courts have laid down different rules of procedure. This causes confusion during the
proceedings. There are still many High Courts who have not yet established Family Courts.
4. Permitting Lawyers- Though the act has provided that the proceedings should be conducted
without a legal practitioner, the system did not create any alternative system of simplified
rules. The litigants are at the mercy of court clerks and peons to advise them on the rules
followed.
5. Poor state of infrastructure- The Family Court suffers from lack of basic infrastructure. In
maximum Family courts there is absence of drinking water, canteen, typist, notary.This lack
of basic requirements creates hardship. The working conditions are basically unhygienic
and poor.

Conclusion

So far in India 153 family courts have been established. Yet many of them lack basic infrastructure
and proper rules and procedure. There are many states that still don’t have family courts like
Haryana, Arunachal Pradesh, and Mizoram.

However, the court has proved to be one of the most efficient mechanisms for solving family
disputes. Many marriages have been saved, many women were given their basic rights and many
family disputes have been resolved.

Though the record of Family courts have been pretty much mixed, formulating of certain remedies
such as uniform procedure, stricter laws and improvement in the infrastructure can improve the
functioning of the court.