hindu marriage act 1955 hindu adoption and maintenance act

Hindu Marriage act 1955 Hindu Adoption and Maintenance Act 1956 Hindu Woman Right to Property Act 1937 Hindu Succession Act 2005 Introduction Lexi Loci Hindu family is an Institution of Sui Generis Mostly governed by Karta- Senior most member Mithakshara Joint Hindu Family- Hindu Undivided Family - HUF

1. Mithakshara Joint Hindu Family Running commentary of Yajnavalkiya Smrithi – Written by Vinjnaneswara-11th century

2. Dayabhaga Joint Hundu Family Written by Jimuthavahana- Manu Smrithi,Narada Smrithi and Yajnavalkiya Smrithi State of Bengal and Assam

Kerala Join Hindu Family was abolished by- Hindu Family System( Abolition Act) 1975 Mithakashara Coparcenary Original Concept 4 generations, no female member (no right ancestral property, only maintenance). Hindu Succession and Amendment Act 2005

• Daughter have same right as the coparcenary son

Joint Hindu Family Coparcenary

Both male and Female are the members of the Joint Family

Only Male members are the members of the Coparcenary

No limitation of degree or generations with regards to the membership

Male up to 4 degree

Some female member have no right by birth in property

All members of coparcenary have right by birth in the property

Female like father's Wife, Mother, Grand Mother have no right to demand partition

All members have right in demand for partition

Every Joint family is not coparcenary

Every coparcenary is Joint Family

Death of coparcenary – His property is devolve to other surviving coparcener not heirs- called Doctrine of Survivorship

Hindu Women Right Property Act 1937- interruption to the doctrine of survivorship Hindu Succession and Amendment Act 1956 ( AMEND 2005) Coparcenary within Coparcenary

• one coparcenary death will not make other coparcenary

• Coparcenary self acquired property in his own name will not go to other coparcener, it will go to his heirs

Saprathibandha Daya and Apratibandha Daya Daya – heritage or property inherited by a person Under Mithakshara law- inheritance by male Hindu

• Apratibandha Daya ( unobstructed heritage) – 3 level- cannot alienate as he please

• Saprathibandha Daya ( Obstructed heritage)- all inheritance other than from father level, mothers father, parental uncle , brother,his sons will not get any interest, can use his property as his, no restrain right by son

Joint Family and Separate Property - Mithakashara

• Joint family – coparcenary 1. Ancestral 2. Joint Acquisitions 3. Blending Property- throw in to the common stock- toil and moil

• Separate family- self acquired property 1. Saprathibandha Daya

of 8 Family law 2- Semester 3 Kerala University- 2017-2020

Read Anil K Nair Book, Before Reading This Short Notes ullaskrishnan.com/llb

2. Gifted 3. Recovered lost family property 4. Self-acquisition 5. Gains of learning Gokul Chand v Hukum Chand – Hindu Gains of learning act 1930 England spl training,Indian civil service, privy council said – yes joint 6. Government grants 7. Sole coparcener – only one until son born 8. Income from separate property

Kartha of Mithakshara Joint Family and His Powers Commissioner of Income Tax v Seth Govind Ram ( GSM Mills)- only mail and coparcener Gangoji Rao v Channappa – woman not kartha or coparceners no alienation power

Chandrakantha v CTR- karta -> Capital , Members- labour and skill Powers of Karta

1. Possession and management of family property 2. Right to Representation 3. Power to contract debts- pledge property 4. Power to manage family business 5. Power of alienation of joint family property

i. For the purpose of legal necessity – Basava Raj v Kushal Chand- without legal necessity its not binding on the family

ii. Benefit of estate-Palaniappa v Deviskmony – privy council iii. Performance of indispensable religious duties

Ammathayee vs Kumaresan- daughter gift towards his maintenance, valid Guramma v Mallappa - gift

6. Power to compromise 7. Power to refer to dispute to arbitration 8. Power to acknowledge debt 9. Power to represent in suit 10. Power to discharge

Duties & Liabilities of Kartha 1. Duty to Account 2. Duty to recover debt 3. Duty to save 4. Duty to pay all tax and dues 5. Responsible to perform marriages of family

Dayabhaga Joint Family Father Absolute owner- can dispose, gift, sell etc No right for son by birth in ancestral property Female also coparcener Doctrine of Pious Obligation Duty of son to repay the debt of deceased father, only to Non Avyavaharika debt Avyavaharika – Illegal- Gambling etc Brij v Mangal Pandey – interest along debt – mortgage – antecedents debts Hemraj v Khemchand – father promissory note, son liable Toshanpal v Dr Judge Agra- father withdrawn money from school,son not liable Prasad v Govind Swami – property paid for antecedents debt, valid Polyandy – Robini v Sethumadhavan – valid, thiya family Amendment - Hindu Succession Act 2005 -6(4) – revoked, strikeout Power of Kartha to alienation of joint family property Power of Karth – not unlimited

Hanooman Prasad v Musasamat Babooee- legal and estate can alienate Without consent of other coparceners

1. Legal necessity a. Payment of govt revenue b. Payment of debt out of family property c. Maintenance of coparceners and their daughters d. Marriage expenses



e. Litigation expenses preserving the estate f. Litigation expense for defending a member for criminal case g. Expense for construction of building h. Expense incurred for funeral and other ceremonies

2. Benefit of estate a. Sale of unproductive and investing for better piece of property b. Sale of house whose demolition notice by municipality c. Mortgage for additional to family house d. Sale of land for better locality e. Sale of piece of land located different and to make it to one part

3. Religious duties Power of Father- Kartha to alienation of joint family property Alienate of antecedents debts Gurumma v Mallappa- can gift but not whole property

Gangi Reddi v Temmi redid – gift for pious purpose ( temple construction, educational institution) P Ammathayee v Kumaresan – gift to wife, pious purpose not valid Tara Sahuani v Raghunath – gift to daughter after marriage in critical living condition is valid and not full or entire property to be gifted Object Vilas v vasantrai – son conceived born after date of alienation cannot challenge Giasi Ram v Ramjilal- femail hair can challenge the validity

Partition Appovier v Rama Subb Aiyan – true intention to became separate owner, division of title Raghavamma v Chenchamma – division of status accepted by SC

Girijanandhini v Bijendra – partition is defining shares of the coparceners, actual division KN Narayanan v K V Ranganathan – in partition need to consider both assent and debt

1. By unequivocal intention to separate 2. By an actual division of metes and bounds

Subject matter of partition- idol, temple indivisible, separate property Deductions and Provisions- debt of the father, maintenance of member have not share Person who have right to partition and share on partition:- Coparcener, Minor coparcener, Adopted Son ( sec 12 Hindu Adop and Maint Act-1956), Son begotten at the time of partition but born after partition, female member ( wife, paternal grand mother, widowed mother) Modes of Partition By Agreement, By Suit, By Conduct, By Arbitration, By a Notice, By Conversion (Apostasy) Siromani v Hem kumar – elder son no double share- Jyesthansa- pindadana Re- opening of partition – fraud, absentee, minor attain majority, disqualified- missing coparcener, son-begotten, son in womb, son conceived born after partition Re- Union- after partition, to join one again- Ram Narain v Mst Pan Kuer – same parties

Hindu Succession Act 1956 Law of succession is classified in to two ( Total 30 Sections)

1. Testamentary succession – made the will – sec 30 2. Intestate succession – dying without Will – Sec 5 to 29

Modes of Devolution of property by Mithakshara

1. Devolution by Survivorship 2. Devolution by Succession Sec 4- Over riding effect of the act Sec 6- Devolution of coparcenary interest of Mithakshara , dying male and female member in class I Sec 8-13- succession to separate or self acquired property of male Hindu dying intestate Sec 15-16- succession to separate or self acquired property of female Hindu dying intestate Sec 18 – 20 – General provisions Agnate – male link to ancestors – sss is an agnate to A-s-ss-sss Cognate -female link to ancestors -ddd is an cognate to A-d-dd-ddd



Reversioner- heir of the last male holder- A dies his widow takes limited estate and later dies, it goes to nearest heir of A.

Sec 8- Hindu Male Intestate succession Hindu male intestate succession sec 8-13

Doctrine of Representation- what partition when alive

Marudayi v Doraisami Succession to Mitakshara Coparcner’s Interest

Law related to Intestate succession

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

Notional partition → Division as per Succession Rule – father property equal division Gurupad v Hira Bai Notional partition → Succession Before 2005 D1,D2,D3 was not given any share

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

1. Class 1 heirs -16 division a. Rule 1- Divide Equal share b. Rule 2- among heirs of the branches of predeceased son, pdD, pSpS, -

Doctrine of Representation applies and the heirs in each branch would take the same share which their parents would have taken had he or she be alive at the death of the intestate . Heirs take the property per capita

2. Relatives specified in Class 2 heirs a. If no heirs in class 1 then this list will succeed the property deceased b. 9 divisions

3. Agnate



4. Cognate Compact series of Heirs – if No son- test of Yagnavalkaya- putra W,D,DS,M,F,B,BS,SSS – first four in class I, then three in Class II, last in Agnates after 1956 3) Rule of Intestate Succession to the property of Female Hindu sec 15 16 Rule 1. The property equally divided with F, S and D.

in this property inherited from his father will not goes to H, its F heirs In the absence of F heirs, it will goes to M heirs If She her own toil then it goes to her H

Rule 2. In the absence of any Son, daughter, children of predeceased son or daughter or husband the property will be devolving upon the heirs of her husband.

Rule 3.if no S, D, Children of pre-deceased S, or Daughter, husband or the heirs of H, the deceased female property goes to her Mother and Father

4.)General provision relating to Succession 1. Full blood preferred to half blood – sec 18

Yellawa Goundr v Lekshmi 2. Mode of succession of two or more heirs – sec 19 3. Right of Child in womb – sec 20 4. Presumption in cases of Simultaneous death- Sec 21 – younger survived the elder 5. Preferential right to acquire property in certain cases sec 22(1) and 22(2) pay all cost

and expenses if not taking the right 5). Disqualification – sec 25 to 28

a) Murder – sec 25 b) Converts Descendants sec 26 c) No person shall disqualified any ground of disease – sec 28

6) Absolute Right of Female over Property a) Stridhan ( fresh stock of descent)

a. Soudhayika b. Non Saudhayika

b) Woman’s Estate – sec 14(1) abolished limited estate- she is full owner- Hindu Succession Act 1956 Suharam v Gauri Shankar- woman can sell her alienate property, because full owner Mangal v Rattana- she was constructive owner, even if the property was not in her possession by trespasser’s .legal heirs has the right to claim Karmi v Amru- Sec 14(2)- if restricted owner by any decree or will, then she will not be a full owner by 14(1)

7.) Power of testamentary Disposition- sec 30 8) Escheat- sec 29 – Government acquire if no heirs Tarawad, Karanawar, Tavazhi – Marumakhathayam, Nair caste system,karanavar, karanavathi Kerala Joint Family System ( Abolition) Act 1975 Religious Endowment and Charitable Endowment Devasthanam Property Mutt property

MUSLIM LAW Gift or Hiba

Transfer of Property Act 1882- Not applicable to Gift made by Mussalman Requisite of a valid gift under Muslim Law

1. The Donor - Person Making Gift 2. Free Consent 3. The Donee - Who the gift is made

Abdul Cadur v Turner – not yet in existence at the time of gift, is not valid 4. Subject matter of gift 5. Formalities of Gift

a. Declaration of gift by donor b. Gift should be accepted by done c. Donor should be the complete owner of the property gifted, delivered to

done ( possession)



G K Maneer v AA Maneer – delivery, acceptance, possession ,here minor mother accepted, not valid because father is alive, do gift failed, grandfather to Sons son. Kanjoornissa v Rowshan – immovable , its must to get possession, in record too Ahima v Khatija- Husband & Wife, stayed in same house, Gift, Vice versa H Bibi v Naja Unnisa -Nephew and Son, gift house and stayed, valid

Gift of Musha – Undivided share in movable or immovable property Khader v Kunjamina – property undivided is valid, can be divided later Contingent gift is void – if its dependant on will of parties, then void, if condition is not against law then its valid Revocation of Gift or Resumable Gift – property Act 1882 its not possible But Mohammedan law its possible to revoke Except certain condition

1. Gift husband and wife 2. Prohibited degree of relations 3. Donee is dead after the delivery of possession 4. Sale by Donee 5. Destroyed by Donee 6. Value increased by any reason cannot revoke 7. Change the form 8. If received anything in return ( Hiba – bil- iwas)

Hiba – Bil -Iwas ( Gift with Exchange) Iwas- consideration Mohammed Esuph v pattamsa Ammal – deed favour of wife instead of dower , valid

Hiba – Ba -Shart-ul-Iwas Shart – stipulation for return, Delivered to the donee for its validity, done promised to make a return gift

Areeat Take the profit from property without consideration Ownership will not be transferred , temporary license to enjoy and profit only give to done Sadaqah Gift for acquiring religious or spiritual benefit, cannot recoverable Will ( Vasiyat) Will- vasiyat Musi → Musiliah ( Property = Musibeh) Who can make a will- 18 years- Indian Majority Act 1875 M Altaf v Ahmed Buksh – no writing required

Abdul Manan Khan v Mirtuza Khan- expression by testator is enough to serve the purpose Bibi v Alauddin – not to signed Sarabai v Mohammed- doesn’t requers attestation Limitation and Restrictions in Testamentary Power

1. Not to bequeath more than 1/3 Daulatram v Abdul Kayum – whole property bequeathed , not valid

2. Not to favour of one of the heirs , if consent then ok Narunissa v Sheik Abdul Hameed-bequest to an heir part of whole is ivalid

3. Bequest to unborn person 4. Bequest in futuro – is void- property arise after the death of testator is not valid

Contingent will is void- Conditional will is not, if not valid , then only that condition can be removed and the property can be enjoyed

5. Lapse / Revocation – legatee died before testator then it would be part of the testator Will only operation when testator dies, before that he can revoke or sell the property

Hib Marz – Ul- Maut ( Death Bed Gift) Rules regarding death bed gift

1. Donor should suffering from diseases 2. Wish to make gift 3. Deliver possession 4. Accepted by done



5. Not more than 1/3, if, need consent from other heirs 6. Cannot to heir Difference between Hiba marz ul maut and donatiio mortis causa

DM Hiba

Movable any

Full 1/3.

Cancel if recover No return

Wakf – Wakf Act 1995 Property in the name of god and income can only be used Person – Wakif, Deed – Wakf Deed,1/3 only, Wakf manager - Mutawalli Essential

1. Permanent dedication 2. For religious purpose recognized by muslim law 3. Wakif must completely divest himself of the ownership of property 4. Property vested is irrevocably

Abdul v Asraf- should be muslim, should have absolute ownership, not mortgaged property Doctrine of Cy-pres- as near as possible – of object fails, wakf will not be allowed to fail Doctrine of Severability -partially valid , wakf will not fail Wakf- al-aulad

1. Public Wakf 2. Private Wakf ( wakf-alal-aulad)

Abdul Fata Muhammed v Russomony Dhur Chowdhary-not valid favour of family members, ultimate should go to religious, wakf act 1995 valid Muhd khasim v Mohd Datagir – ultimate to god, permanent dedication to god

Mutawalli – punishment – sec 61 Wakf Board – sec 13 wakf Act - established – five years Disqualification of member – sec 16 Removal of member or chairperson- sec 20 Power and functions of board – sec 32 Central wakf council – sec 9 Tribunals (wakf) – sec 83- DSJ Muslim Religious Institution

1. Mosques – Md lambha v Md Hanifa, Md Wasi v Bachan Sahib 2. Qubristan 3. Dargah- tomb of muslim saint 4. Takia- Resting Place 5. Khangah – preachers – Religious head of Khangah - Sajjadanashin 6. Imambara-seprate place in a private house- mainly by shia

Pre- Emption (Shufaa) Preferential right of owner of immovable property to become purchaser of another

immovable property Govind Dayal v inayutullah – definition AB owner of P, A->P, B can compel C to sell the P from A to B . Right of A is pre-emption Person claim

1. A co- sharer of Immovable property – Shafi – i- Sharika 2. A servient owner or dominant owner – Shari – i- Khalit 3. Owner of adjoining immovable property - Shari I - jar

Matoo Devi v Damodar lal – gift not valid,pre-emption is an incident annexed to property not personal right of re-purchase Procedure followed

1. Talab-i-muwathaba – demand of jumbing 2. Talab – e- eishhad – Formal demand 3. Talab -e – tamlik- demand possession – within one year



Law of Inheritance General principles All payment should be done before distributing estate- funeral exp, bed charge, debts of deceased, wages for due service, domestic servant payment Sunni – Hanafi Law

Disqualification Sunni – murder – disqualified Shia- accident , not disqualified Disqualification of illegitimate son and daughter Sunni – no property inherit from father, can inherit from mother Bafatun v Bilaiti Khanum – inherit property from Mothers sister Converted Relatives

KP Chandara shekar v Govt of Mysore- Hindu woman died as Muslim, right to Muslim heirs

Special marriage Act 1954 Indian Succession Act, 1925. Doctrine of representation – is not valid and recognize Muslim Law Hanafi Law of Inheritance

1. Sharers – Quranic Heirs (12) 1/6 == F,GF,M no child 1/3,GM, 1/4==H,W – no child 1/2 1/3==UB,US 1/2==D (2/3 Collectively),CS,SD, FS( 2/3 Collectively)

2. Residuaries 3. Distant Kindred Doctrine of Aul ( Increase) – 60,000 rs F – 1/6 H-1/2 H-1/4 2 full sister – 2/3 2 D- 2/3

13/12 7/6 Doctrine of Radd – H&W no return, if no survivors then return to H& W M-1/6 D-1/2

11/12

CHRISTIAN SUCCESSION Indian Succession act 1925

Rule of Succession Sec 31 to 49 1. Kindred by lineal consanguinity 2. Kindred by collateral consanguinity

Mary Roy v State of Kerala – under art 32- Christian succession act, violation art 14 and 15(1)

Will Definition of Will sec 2(h) Guidelines – sec 74 to 111 VI Privileged Will- Soldier, Army Men Unprivileged Will- Normal will Execution and Attestation – Sec 63 Revocation of Privileged Will – Sec 70

1. Bu Subsequent will or codicil 2. By instrument of Revocation 3. By Destruction of Will 4. By Subsequent marriage of Testator

Probate -Executor- Probate of the will – copy and grant permission of deceased- Sec 2(f) Letter of Administration – if not executed a will or not appoint and executor

Succession Certificate – debt due to deceased



hindu marriage act 1955 hindu adoption and maintenance act

Documents