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FAMILY LAW II CASE ANALYSIS AND SUM UP

LECTURES 2 & 3 (2 CASES)

GENERAL INTRODUCTION TO THE LECTURE

Hindu law recognises dual property concept namely separate property and coparcenery
property of a Hindu. 17th June, 1956' and 9th September 2005 are significant dates of legal
importance when the law of Patriarchy was re-written in terms of property rights for Hindu
women in general and daughters in particular respectively. By virtue of the former legislative
initiative, the Hindu Succession Act 1956, if a male Hindu dies intestate, his property would
devolve upon class I heirs and daughters are also class I heirs and succeed to the father's
property along with sons simultaneously. By virtue of the latter initiative, the Hindu Succession
(Amendment) Act 2005, the daughters are recognised as coparceners like sons with equal rights
and obligations in relation to coparcenary properties of Hindu joint family.

Under HSA 1956, S.4(2) clarified that the Act would not affect any law relating to prevention
of fragmentation of agricultural holdings, land ceilings and tenancy rights in such agricultural
holdings and they would be governed by respective State law ie., agricultural holdings would
be outside the purview of HSA and daughters are not entitled to inherit to such properties as
class I heir.

In 2005, two significant changes have been brought in. S. 6 has been reformulated declaring
daughters as coparceners having equal rights in the coparcenary property on par with sons.
S.4(2) giving immunity to agricultural holdings from HSA has been omitted from HSA. It has
created an ambiguity whether from the commencement of HS(amendment) Act 2005,
agricultural holdings are brought within the purview of HSA and consequently whether they
are thrown open for daughters to inherit. It became a debateable issue and judicial approach is
not uniform. In this context the present lectures are designed.

Post2005-Whether a daughter has right in agricultural holdings? - Cases on the effect

ofomission of S.4/2)
There are two cases given in your case material on this aspect.

The date of commencement of Hindu Succession Act, 1956

The date of commencement of Hindu Succession (Amendment) Act, 2005

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, DU. Page 1

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1. Nirmala & Ors v. Government of NCT of Delhi (2010) -

decided by Delhi High court and

2. Archana v. Dy Director of Consolidation (2015) - decided by Allahabad High Court.

Judicial approach is different in these two cases. In the former case, the Delhi High Court gave
benefit of the omission of s.4(2) to the daughters read with s.6 and in the later case, the
Allahabad High Court viewed it differently and negatived the daughters' claim in agricultural
holdings of the joint family.

Nirmala & Ors v. Govenment of NCT of Delhi

[170 (2010) Del Law Times 577 (DB)]

Legalbackground:

Agricultural holdings are differently treated from other properties under Hindu Succession Act
1956. S.8 of Hindu Succession Act 1956 recognised daughters as class 1
heir along with sons
in the scheme of intestate succession. But S. 4(2) of the said Act clarified that HSA will not
affect any provision of law which provided for the prevention of fragmentation of agricultural
holdings or for the fixtion of ceilingor for the devolution of tenancy rights in respect of such
holdings. In simple terms, agricultural holdings are exempted from the operation of the Act
and succession to those holdings was left to be governed by respective State legislations.

Delhi Land Reforms Act was passed in 1954 under which S.50 prescribed that the interest of
Bhumidhar in the agricultural land holdings shall devolve upon male lineal descendants having
primary right of succession and female heirs are excluded in the presence of male descendants.
An unmarried daughter succeeds to the Bhumidhar only if there is no superior heir. A married
daughter does not succeed at all. Hindu Succession (Amendment) Act 2005 omitted S.4(2).

Now the issues are:

Whether omission of S.4(2) under the 2005 Amendment Act has taken away the protection
provided to DLR Act 1954 under old S.4(2) of HSA 1956?

Whether the daughters of a Hindu family are entitled to a share in the agricultural properties of
their father in pursuant to omission of S.4(2) of the Act in 2005?

Facts:

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, DU. Page 2

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One Inder Singh died on 15-12-2006 leaving behind him agricultural properties and was
survived by his second wife whom he had married after the death of his first wife, two sons
and a daughter through first wife and 2 daughters through second wife. Second wife and her
two daughters moved an application for mutation of their names in the revenue records
claiming equal share in view of omission of s.4(2). It was refused relying on S.50 of DLR Act.

They filed a writ for quashing S.50 of DLR Act as violative of Art. 14, 16 and 19 and to get a
direction to get their names mutated as equal sharers

Petitioners' arguments:

The main contentions on behalf of the petitioners were that

)
6
Due to omission of S.4(2) of the HSA, the rule of succession as contained in S.50
of the DLR Act has been eclipsed and thus after 9.9.2005, only the rule of
succession provided under HSA is applicable to Hindus in respect of all properties
in India, including agricultural land.
Gi) Due to substitution of the old section6 of HSA by the new one, the daughters have
become coparceners of disputed agricultural lands along with the sons.
(ii) By virtue of 2005 amendment, the State law contained in S.50 of DLR Act has
become repugnant to the Union law contained in Ss.6, 8 and 9 of the HSA and s.50
of DLR Act is thus void.

Respondents argued that

) DLR is a special legislation to deal with agricultural land. It will prevail over Hindu
Succession Act 1956 which is a general legislation despite the omission Removal
of S.4(2) of the HSA did not imply a repeal of S.50 of DLR Act..
(ii) Repeal of S.4 (2) by 2005 Amendment will also not affect S.50 of DLR Act as it
was placed in the Ninth Schedule of the Constitution of India in 1964. Under Article
31 B of the Constitution, no Act that has been placed in the Ninth Schedule shall be
deemed to be void on the ground that such Act is inconsistent with or takes away
or abridges any of the fundamental rights in Part II
ii) Land including agricultural land comes under entry 18 of State list and central
legislation cannot make a law (repeal) on agricultural land. Entry 5 of concurrent
list includes succession and entry 6 includes transfer of property except agricultural
land.

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, DU. Page 3

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Main question involved:

If the omission of S. 4(2) takes away the immunity to agricultural holdings, the daughters and
sons have to succeed in equal share to their father as co-heirs. If not, then the succession has to
be according to S. 50 of the DLR Act.

Decision and reasoning:

Court after referring to Ram Mehar v. Mst Dakhan, Mukesh v. Bharat Singh and Smt. Hari
Naraini Devi v. UOI, arrived at a decision that the rule of succession contained in S.50 of DLR
Act has been repealed by virtue of omission of S.4(2) of HSA in 2005 and as a result, the rule
of succession would be according to HSA.

Immunity provided under Art.31 B is not blanket immunity and is subject to the parliament's
power to amend or repeal the same. Omission of s.4(2) is very much a conscious act of
Parliament and its intention is very much clear that amended provision will override DLR and
other similar laws to the extent of inconsistency.

Any provision of law inconsistent with central legislation is deemed to be repugnant to it and
as such ceases to apply and S.50 of DLR Act has lost its relevancy.

Consequently, the petitioners being females have the right to succeed to the disputed
agricultural land as succession opened out on 15-12-2006 on the death of late Inder Singh.

(Highlighting paras 2,4,6,7,9,10, 12, 17 & 22, 25-28, 33-35)

********

Archana v. Dy Director of Consolidation

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, DU. Page 4

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(2015) 111 ALR

Facts: Father sold the agricultural land belonging to joint family, without the consent of the
daughter post 2005. She challenged the validity of alienation as a coparcener by virtue of S.6
read with omission of S.4(2). It was refused by the settlement officer on the ground that despite
omission of S.4(2) from Hindu Succession Act, the lands would be governed by UP law.
Archana filed a writ challenging the constitutional validity of S.171 of U.P. Zamindari
Abolition and Land Reforms Act 1950.

Issue: The issue before the Court was whether HSA applies to agricultural lands and daughters
would get the benefit of S. 6 of 2005 amendment by virtue of omission of S.4(2).

The petitioners contended that

By omission of Section 4(2), HSA will apply to agricultural lands also.

(ii) The provision in UP Act (Section171) that "only in the absence of male descendants,
unmarried daughters are given share in the agricultural lands and on marriage they
are divested back' violates her Fundamental Rights U/Arts. 13, 14 & 15.
(1i) India is committed to international treaty obligations u/ Vienna and CEDAW which
declare elimination of all forms of discrimination against women and the Law
Commission's Report also recommended to throw open agricultural lands also to
daughters as they constitute 70% of actual tillers population.

High Court upheld the constitutional validity of UP law and held that:

) Despite the omission of Section4(2) from HSA in 2005, Bhumidhari rights are
governed by U.P. Act only and Agricultural lands having Bhumidhari rights do not
come under the category of coparcenary property. Right by birth is not available
even to male coparceners in them. They are statutory rights and not conferred by
joint family system. Omission of S.4(2) does not mean automatic inclusion of
agricultural holdings within the Act.

(ii) S.4 (2) was intended for clarification purpose only and hence even after its omission
it does not change the earlier position.

(ii) While making UP Law, the law makers were conscious of the social reality that
since time immemorial, our society is patriarchal and after marriage it would not be

Prof.(Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, DU. Page 5

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practical for a woman to cultivate land at two places and manage and as such after
marriage /remarriage, women are divested.

iv) UP Act has been assented by President of India and even if it is repugnant to HSA,
it is valid. As it is in ninth schedule, its validity cannot be challenged in a court.

() Land and succession placed under state list and concurrent list respectively may
overlap in the lists. But according to pith and substance rule, State law even if it
touches upon Union subject, it is permisssible.

Prof.Pankaj
Hence daughters are not entitled to lands covered u/State law.
(vi)

Ka ***** **

f.Pa

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, DU. Page 6

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Family Law II Lectures

FAMILY LAWII - CASE ANALYSIS AND SUM UUP

LECTURES 3, 4 & 5 3 CASES)

1. Ganduri Koteswaramma & Anr v. Chakri Yenadi & Anr (2011) 9 SCC 788
2. Prakash v. Phulavati (2015 SCC Online SC 1114) and
3. Danamma @ Suman Surpur v. Amar (AIR 2018 SC 721)

These three cases given in your case material discuss on one significant issue:

Whether Section 6 of Hindu Succession Act as amended in 2005 has Prospective or

retrospective oneration?

General introduction:

One of the major changes introduced in 2005 in Hindu succession Act is that daughters have
right by birth in the joint family property on par with sons and they are also coparceners with
all incidents of coparcenary. It is a radical departure from the Shastric Hindu law that only male
members of a joint family up to four generations, connected to last male holder, have the
privilege of being coparceners having right by birth in the coparcenary property. S.6 (1)
provides that "on and from the commencement of this Act, a daughter of a coparcener shall

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a
Son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son"

Provided that nothing contained in this sub-section shall affect or invalidate any disposition
or any alienation including any partition which had taken place before the 20 day of December
2004." It has been reiterated in S.6(5) also.

This statutory declaration provides for parity of rights among male and female members of a
joint family on and from Sep 9 2005. In Proviso there is a reference to back date. It has raised
certain issues whether the amended section has prospective or retrospective operation. What
are the conditions to be fulfilled to get the benefit of the newly amended provision -
became
the subject matter of judicial scrutiny in many cases.

Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page 1

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Family Law II Lectures

There are 3 cases given in your case material on this issue.

1. Ganduri Koteswaramma & Anr v. Chakri Yenadi & Anr (2011) 9 SCC 788
2. Prakash v. Phulavati (2015 SCC Online SC 1114) and
3. Danamma Suman Surpur v. Amar (AIR 2018 SC 721)

GANDURI KOTESWARAMMA V. CHAKRI YENADI

(2011) 9 SCC 788 CO

Facts:

A Hindu joint family consisting of father, two sons and two daughters had coparcenary
properties. Son filed a suit for partition against father and his brother. Pending suit, father died
in 1993 and a preliminary decree was passed in 1999 and subsequently an amended preliminary
decree was passed in 2003, declaring his share. Pending final decree, the amendment came in
2005 declaring that the daughter shall by birth become a coparcener in the same manner as son.
So the sisters (Ganduri Koteswaramnma and her sister) also claimed a share in the coparcenary
property and asked for reopening of the partition.

Son relied on S.6 (5) which says that nothing contained in S.6 shall apply to a partition which
has been effected before the 20th day of Dec 2004. Explanation sys that Partition means any
partition made by execution of a deed of partition duly registered under the Registration Actor
partition effected by a decree of a court. He contended that as preliminary decree has been
passed by the court determining the sons share in the coparcenary property before the statutory
date 20.12.2004, daughters could not ask for reopening of partition.

Issue: Whether the preliminary decree passed by the court for partition on 27-9-2003 is covered
under the above provision.

Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page 2

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Whether daughters can ask for reopening of the partition when a preliminary decree has already
been passed by the court?

The Trial court allowed the plea of daughters. On appeal by the sons, the High court reversed
it. Appeal before the Supreme Court by the daughters.

Supreme Court's decision and reasoning for the decisio:

In the present case admittedly, partition has not been effected before 20-12-2004 by a final
decree of the court. The only stage that has reached in the suit for partition is the determinations
of shares vide preliminary decree and the receipt of the Commission's report. A preliminary
decree determines the rights and interests of the parties. The suit for partition is not disposed
of by passing a preliminary Decree. The partition is not complete, unless and until the final
decree is passed and the coparceners are put in possession. If, in the interregnum, events and
supervening circumstances occur necessitating change in shares, there is no impediment for the
court to amend the preliminary decree or pass another preliminary decree re-determining the
rights and interests having regard to the changed situation.

Already the matter was considered by the apex court in Sai Reddy and Phoolchand cases. Sai
Reddy case was an identical case after Hindu Succession (A.P Amendment) Act 1986 was
passed. In that case it was held that unless and until the final decree is passed partition is not
complete. The partition that the legislature has in mind in the amendment is undoubtedly a
partition completed in all respects. It cannot be equated with the rule that severance of status
can be effected by mere communication. Unless a partition is effected by metes and bounds,
the daughters cannot be deprived of the benefits conferred by the Act. They can ask for
reopening of the partition. Since the legislation is beneficial and placed on the statute book
with an avowed object of benefitting women which is a vulnerable section of the society in all
its stratas, it is necessary to give a liberal effect to it. (See para 18)

In Phoolchand case, the Supreme Court has stated that a suit for partition continues after the
passing of the preliminary decree and the proceedings in the suit gets extinguished only on
passing of the final decree. (See para 20)

Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page 3

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In the present case the apex court allowed the appeal of the daughters and held that they were
entitled to re-allotment of shares in the coparcenary property along with their brothers even if
preliminary decree was passed.

Note: In this case the court has not looked into the date of death of the father for deciding
daughter's right. The substantial focus was on the conditions for a valid partition by a court
decree.

Highlighting paras: 3, 4, 5 & 8, 14-20 & 23

*****k*

ro
Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page 4
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PRAKASH V. PHULAVATI

(2015 SCC Online SC 1114)

Facts:

Father died in 1988 and daughter Phulavati filed a suit for partition in 1992 in the property
.

inherited by her as class I heir. Pending the suit, 2005 amendment came declaring daughters as
coparceners. Phulavati claimed share in the coparcenary property also. Substantiating the claim
on the basis of gender justice and Law Commission's report she pleaded that the amendment
being a piece of social legislation to remove discrimination against women in the light of 174
the report of the Law Commission, the amendment should be read as being retrospective and
even if father had died before the amendment, daughters should get the benefit of the
amendment. Karnataka High Court upheld the plea of retrospectivity and decided in favour of
the daughters. So an appeal was preferred by the sons before Supreme Court.

.
The sons, relying on ajudgment of Karnataka High court in Prithvi Raj v. Neelamma contended
that as their father had died prior to the commencement of the amendment Act, the new
provision would not apply and only the law applicable on the date of opening of succession
was to apply.

The issue was:

Whether s. 6 (1) is prospective or retrospective in operation?

Decision:

Supreme Court, after considering the arguments of both sides, and going through the
precedents, held that S.6(1) shall have prospective effect and rights under the new amendment
are applicable to living daughters of living fathers as on 9-9-2005 irrespective of when such
daughters are born.

On the death of the father in 1988, notional partition had taken place as per S.6 of Hindu
Succession Act 1956 and shares were created and vested on the parties according to then
existing law. The vested rights shall not be taken away by a subsequent amendment in the
absence of express provision.

Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page 5

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The wording "on and from the commencement of this Act" makes it clear that the amended
provision is applicable only from 9 September 2005 and hence daughter was not entitled to
share in the coparcenary property as vested rights could not be disturbed.

For a daughter to be eligible to be a coparcener three conditions are to be satisfied.

1. The daughter should be alive as on coming into force of this amendment 9 September
2005 or the daughter to be born after the said date.
2. If the father had died prior to the commencement of the amendment Act, the daughters
will not get the benefit of the new provision.
3. For a daughter to be eligible to be a coparcener and claim a share in the coparcenary

property, no partition of the joint family property should have occurred after 20
December 2004. Partition means partition by registered document or by a decree from
court of law.

The court further observed that it is based on the plain language of the statute and the
established principle that in the absence of express provision or implied intention to the
contrary, an amendment dealing with a substantive right is prospective and not retrospective.
Object of giving finality to transaction prior to 20 Dec 2004 is not to make S.6(1) retrospective
but to prevent fake transactions to deprive the daughters to their legitimate shares. S.6 (1) is
prospective. Even a social legislation cannot be given retrospective effect unless it is so
provided for or intended by the legislature. Hence no other interpretation was possible.

The court further observed that the view taken in this case is consistent with earlier decisions
rendered in Ganduri Koteswaramma, Surendra, Sai Reddy and Badri Narayan Shankar
Bandari.

Highlighting paras: 1, 4, 7, 11, 14, 15, 17, 18, 22 & 23

**********

DANAMMA SUMAN SURPUR V. AMAR

(AIR 2018 SC 721)

General introduction:

Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page 6

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Danamma's case was peculiar from the previous two cases.

Facts:

In this case father died in 2001 leaving behind him his widow, two daughters and two sons.
One of the son's son (Amar) filed a suit for partition in 2002 claiming a share in the coparcenary
property. Pending the suit, 2005 amendment came. The daughters (Dhanamma and another)
claimed a share in the coparcenary property by virtue of S.6 of 2005 Act which was countered
by Amar on the ground that since they were born prior to the Hindu Succession Act 1956, they
could not be treated as coparceners. The trial court agreed that the daughters had no right to the
family property. The daughters appealed until the case reached the Supreme Court

On 1
February 2018, the Supreme Court reversed the lower courts' rulings, holding that the
2005 legislative amendment decisively setled the matter in favour of the appellants (daughters)
and this position was already settled by SC in Prakash v.Phulavati (2015) that the daughters to
have claim should be alive as on 9.9-2005. In this case since daughters are alive as on 9.9
2005, even if they are born before 1956, they have a claim in the family property.

The Court went further. In the present case, suit for partition was filed in the year 2002. During
the pendency of this suit, the amendment came into force. As the partition decree was awarded
by the trial court only in the year 2007, until final decree is passed, subsequent events will have
to be taken into consideration, as held in Gunduri Koteswaramma (2011), which the lower
courts have failed to take into account.

Hence the Court held that each of the daughters is entitled to one-fifth of the family property
as Savadi had left behind a widow, two sons, and two daughters.

The Court noted that the law relating to a joint Hindu family has undergone unprecedented
changes. The amendment was passed in the interest of gender equality under the law, and
daughters now have the same rights as sons with respect to commonly owned property
partitioned after the amendment to the Act, regardless of when they were born. This
observation was not in consonance of the Phulavati's observation where the same SC observed
that contention of the daughters/respondents that the amendment should be read as
retrospective being a piece of social legislation cannot be accepted. Even a social legislation
cannot be given a retrospective effect unless so provided for or intended by the legislature.

Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page 7

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Commen:

In Prakash v.Phulavati, rights under S.6 of 2005 are applicable to living daughters of living
coparceners as on 9-9-2005. But in the present case living daughters of pre-deceased
coparcerner in 2001 are given the benefit.

In other words, according to Phulavati, if the coparcener (father) had passed away prior to
09.09.2005, the living daughter of the coparcener would have no right to coparcenary property.
Phulavati's judgment ensured certainty in law and in proceedings before the courts. If a
daughter made a claim for partition of joint family property, her father ought to be alive as of
09.09.2005; if not, she was not entitled to any share in the coparcenary property.

In Dhanamma's case the Supreme Court considered Phulavati's case and agreed with the
findings and held it as 'authoritative precedent' (in para 22 of the judgment), yet applied a
different principle laid down in Gunduri Koteswaramnma to grant relief to the daughters. In
doing so, it is submitted that, the Supreme Court lost sight of the most important finding
in Phulavati's case, that living daughters are entitled to the benefit of the Amendment Act only

if father was alive as on 09.09.2005.

Now the possible inferences through Phulavati and Dhanamma are:

If the father had passed away prior to 09.09.2005 and a prior suit for partition filed
by a male coparcener is not finally decreed as on 9-9-2005 (though preliminary
decree was passed), the daughter will be entitled to claim a share in the partition by
virtue of Damamma's case, as the phrase 'a partition effected by the court' in S.6(5)
means only a partition effected by the final decree of the court, in terms of Gunduri
Koteswaramma's decision. (although not entitled in terms of Phulavati's case)

(ii) If the father had passed away prior to 09.09.2005 and no suit for partition is pending
the daughter will not be entitled to claim partition as she will be covered
by Phulavati's case and therefore will not be entitled to a share.

In Phulavati's case, the Supreme Court has made the crystallization of the right to a fema
coparcener prospective. Danamma's case creates a retrospective effect an unnecessary
dichotomy in the law which requires resolution by a larger Bench. So the right of the daughter

Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page8

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post 2005 depends on her living status, date of the death of father and pendency of suit for
partition by a male coparcener of the family.

********

nka
Pank
ro
Prof. (Dr.) P.B.Pankaja, Law centre 1, Faculty of Law, DU Page 9
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FAMILY LAW II LECTURES

LECTURE 7

Revanasiddappa &Anr v. Mallikarjun & Ors (2011) 11 SCC1

This is a case of void marriage under section 11 of Hindu Marriage Act, 1955.
The children of void marriage are conferred statutory legitimacy under section 16
of HMA 1955. The extent of legitimacy is the issue for discussion.

Whether the children born from a void marriage are to be treated at par with
coparceners and whether they are also entitled to the joint family properties of
their father?

The case is of significance that there is a shift in the judicial approach in

interpreting law relating to inheritance rights of the children of void marriages
and the apex court expressed that it was constrained to differ from its earlier three
important decisions on the subject.

Facts of the case:

S1
W1
S2
Hindu
s3
W2
$4

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, DU Page 1

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It was a case of a man having two wives, two children from his first marriage and

two children from his second wife whom he had married while the first marriage
was subsisting.

His two children through his first wife along with their mother (Plaintiffs 1
to 3)
had filed a suit for partition against their father, his two children from his second
wife and his second wife (Defendants I to 4).

S1, s2 & W1 Vs. F, S3, S4 & W2

They claimed 1/4th share each with respect to ancestral properties in the hands of
the first defendant. The first defendant contended that all the properties except
one were his self acquired properties, that an oral partition had already taken place
earlier and that the second wife was the legally wedded wife and not the first
woman and hence the plaintiffs had no right to claim partition.

The trial court through its judgment dated 28.7.2005 held that the plaintiff no.3
was the legally wedded wife, the second marriage was void as being conducted
while the first marriage was subsisting and the husband had not divorced his first
wife. The Court further found that the properties were not self acquired properties
but ancestral properties and since he could not prove the oral partition, the
plaintiffs l to 3 (first wife and her two children) were entitled to 1/4h share each
in all the suit properties along with father. The trial court decreed the suit.

The case went through first appeal, second appeal to Karnataka High court and
then reached the Supreme Court.

The first appellate court reversed the decree and held that the children of void
marriage were to be treated at par with coparceners and S3 and S4 were entitled
to 1/6 share each.

The High Court of Karnataka reversed it and held that Section 16(3) of the Hindu
Marriage Act, 1956 makes it clear that illegitimate children had only the right to

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the property of their parents and no one else. Accordingly S1, S2 and father would
be entitled to 1/3Td share each in the suit properties as coparceners. S3 and S4
were entitled to the separate property of their father by way of intestacy.

The Apex court re-examined the question Whether illegitimate children are
entitled to a share in the coparcenary property or whether their right is limited
only to the self-acquired property of their parents under Section 16(3) of the
Hindu Marriage Act? (paral 1)

Observations of the Apex Court:

The same issue had already been examined and decided by the Apex Court at
various point of time in Jinia Keotin & Ors (2003), Neelamma & Ors (2006) and
Bharatha Matha & Anr (2010) that "in the light of an express mandate of the
legislature itself, there is no room for according upon such children who but
for Section 16 would have been branded as illegitimate any further rights than
envisaged therein by resorting to any presumptive or inferential process of
reasoning, having recourse to the mere object or purpose of enacting Section
16 of the Act. Any attempt to do so would amount to doing not only violence to

the provision specifically engrafted in sub-section (3) of Section 16 of the Act but
also would attempt to court re-legislating on the subject under the guise of
interpretation, against even the will expressed in the enactment itself. The
illegitimate children of Section 16(3) of the Act would only be entitled to a share
in the separate property of the parents and not to the joint Hindu family property"

In the present case, referring to the above mentioned decisions, the Court

expressed that such a narrow interpretation of S.16 could not be accepted as

correct (paras 22-24) for the following reasons.

The legislature has used the word "property" in Section 16(3) and is silent on
whether such property is meant to be ancestral or self-acquired....Clauses (1) and

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(2) of Section 16 expressly declare that such children shall be legitimate. If they
have been declared legitimate, then they cannot be discriminated against and they
will be at par with other legitimate children, and be entitled to all the rights in the
property of their parents, both self-acquired and ancestral. The prohibition
contained in Section 16(3) will apply to such children with respect to property of
any person other than their parents. (Para 26)

With changing social norms of legitimacy in every society, including ours, what
was illegitimate in the past may be legitimate today. The concept of legitimacy
stems from social consensus, in the shaping of which various social groups play
a vital role. Very often a dominant group loses its primacy over other groups in

view of ever changing socio-economic scenario and the consequential

vicissitudes in human relationship. Law takes its own time to articulate such
social changes through a process of amendment. That is why in a changing society
law cannot afford to remain static. If one looks at the history of development of
Hindu Law it will be clear that it was never static and has changed from time to
time to meet the challenges of the changing social pattern in different time." (Para
27)

Looking into its own decision in Parayan Kalliani Amma case (1996) that Hindu
Marriage Act, a beneficial legislation, has to be interpreted in a manner which
advances the object of the legislation, conferment of social status of legitimacy
on innocent children is the obvious purpose of Section 16 in the present case.
(para 29) Therefore, the interpretation given to Section 16(3) by this Court in
Jinia Keotin, Neelamma and Bharatha Matha needs to be reconsidered.(Para 32)

"This is a law to advance the socially beneficial purpose of removing the stignma
of illegitimacy on such children who are as innocent as any other children." (Para
33)

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"We are constrained to differ from the interpretation of Section 16(3) rendered
by this Court in Jinia Keotin and, thereafter, in Neelamma and Bharatha Matha
in view of the constitutional values enshrined in the preamble of our Constitution
which focuses on the concept of equality of status and opportunity and also on
individual dignity." (Para 36)

In doing so, the Court must have regard to the equity of the Statute and the
principles voiced under Part IV of the Constitution, namely, the Directive
Principles of State Policy. (Para 37) Going by this principle, we are of the opinion
that Article 39 (f) must be kept in mind by the Court while interpreting the
provision of Section 16(3) of Hindu Marriage Act that children are given
opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment." (Para 38)

"Apart from Article 39(f), Article 300A also comes into play while interpreting
the concept of property rights. No person shall be deprived of his property save
by authority of law." (Para 39

In the instant case, Section 16(3) as amended does not impose any restriction on
the property right of such children except limiting it to the property of their
parents. Therefore, such children will have a right to whatever becomes the
property of their parents whether self acquired or ancestral." (Para 41)

Concluding the judgment, the court observed "We are, therefore, of the opinion
that the matter should be reconsidered by a larger Bench and for that purpose the
records of the case be placed before the Hon'ble Chief Justice of India for
constitution of a larger Bench." (Para 43)

Note: The case has not been placed before the larger Bench as on date.

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******

Assignment:

Prepare a case comment on the above case.

******

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FAMILY LAW II LECTURES

LECTURE 8 &9
DEVOLUTION OF INTEREST IN THE MITAKSHARA
COPARCENARY U/ HSA 1956
How the undivided interest of a Mitakshara Coparcener becomes his
divided interest
General introduction:
One of the significant changes brought into the scheme of succession in 1956 was
introduction of S.6. It has created a new concept called Notional partition and
evolved a formula for converting the undivided interest of a Mitakshara
coparcener into his separate interest for the purpose of intestate or testamentary
Succession.

According to Shastric Hindu Law, coparcenary property devolves upon

coparceners only under the rule of survivorship and females and non-coparceners
could not inherit it. For example, if ajoint family consists of three brothers A,B,&
C, on the death of A, in the absence of his own son, his undivided interest in the
coparcenary property would devolve on his surviving brothers, despite the fact
that A had his wife at the time of his death.
In 1937, by virtue of Hindu Women's right to property Act, which is considered
to be the first legislative initiative to confer inheritance right to certain women,
the absolute rule of survivorship was replaced with the concept of limited estate.
Accordingly, in the earlier mentioned situation, on A's death, his undivided
interest in the coparcenary property devolved upon his widow and she would
enjoy the property during her life time with exceptional conditions for alienating
the same and after her death, it would revert back to B &C, who were called
reversioners. Thus the absolute rule of survivorship, was diluted to some extent
and it got suspended during the life time of limited estate holder and then
resumed. It was not abolished but was kept suspended.

When Hindu Succession Act was passed in 1956, the concept of limited estate
was abolished u/S.14. S.6 was introduced with a new legal fiction called theory
of notional partition. According to it, if a Male Hindu died as an undivided
member, the law presumed that a partition has taken place just before his death
among surviving coparceners and he died as a divided member. His divided

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interest would be inherited by his class I heirs as per S. 8 of HSA which consisted
of his mother, widow, son and daughter, branch of his predeceased son, the
branch of his pre deceased son of a predeceased son, and the branch of his
predeceased daughter.

Thus S.6 has given a formula by which an undivided interest of a Hindu in his
coparcenary property got converted into his separate interest to be available for
class I heirs to succeed.

In this context, Gurupad v. Hira Bai was a land mark case in which the Supreme
Court has applied S.6 to the given facts and the decision continued to be operating
as precedent till 2016, when the Apex court in Uttam v. Soubagh Singh perceived
S.6 differently. It was a radical departure from the binding precedent and invited
comments from legal fraternity that it was a flawed judgment, trying to re-script
the law.

In the background of above discussion, there are two cases in your case material.

1.Gurupad Kandappa Magdum v. Hira Bai Kandappa Magdum (Shortly

called Gurupad v. Hira Bai) &
2. Uttam v.Soubhag Singh

Gurupad v. Hira Bai

(AIR 1978 SC 1239)

Facts of the Case:

It was a case on notional partition as per S.6 of HSA 1956.

Kandappa died in 1960 leaving him surviving his wife Hira Bai, two sons
Gurupad and Shiv Pad and three daughters. In 1962, Hira Bai filed a suit for and
separate possession of 7/24 share in the ancestral property left by her deceased
husband. (In non-dravida school, there is a practice, recognised by law, that
whenever a partition is made between father and sons, mother is entitled to a
share. In this case the family belonged to Maharashtra school which is a non-
dravida category)

She calculated her share as follows:

As per S. 6 of HSA, just before the death of a male Hindu, a notional partition
has taken place between father and his two sons. So Kandappa got divided from

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his two sons who were coparceners and he got 1/4 share, wife and two sons alsoo
got 1/4 each. It was his divided interest in which all class I heirs would succeed
to his intestacy. His 1/4 share, when inherited by wife, two sons and three
daughters, wife would get 1/24. In total she would get 1/4 + 1/24 7/24.

Gurupad refused to give his mother 7/24 contending that it was not ancestral
property and a partition had already taken place during life time of Kandappa.
Even otherwise, the practice of giving mother a share at the time of partition
between father and sons would apply only in case of real partition and not in the
case of notional partition.

The Trial court granted a decree limiting mother's share to 1/24 only as it was not
a real partition and only a notional partition. But the High Court allowed Hira
Bai's claim of 7/24 and held that the widow's share must be ascertained by adding
the share to which she is entitled at a notional partition/real partition during her
husband's life time and the share she would get in her husband's interest upon his
death as class I heir in the intestacy.

Gurupad filed an appeal before the SC. The apex court examining the objective
of S.6 and considering the case already decided on a similar issue in Rangubai
Lalji confirmed the High Court's view and quoting Mulla's Hindu Law, it
observed:

Explanation I to S.6 contains a formula for determining the share of the deceased
creates a fiction by providing that the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to
him if a partition had taken place immediately before his death. (para 9)

In order to ascertain the share of the heirs in the property of a deceased

coparcener, it is necessary as the very first step, to ascertain the separate share of
the deceased in the coparcenary property. By doing that alone, one can determine
the extent of the claimant's share. (para 13)

We see no justification for limiting her share to 1/24, ignoring her 1/4 share. (para
11)

The fiction created by law has to be given its due and full effect. (para 12)

All the consequences which flow from real partition have to be logically worked
out even in notional partition. The inevitable corollary of this position is that the
heir will get his or her share in the interest which the deceased had in the

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coparcenary property at the time of his death, in addition to the share which he or
she received or must be deemed to have received in the notional partition.
(para13)

Hence Hira Bai was entitled to 7/24 share in her deceased husband's property.
The above decision of the court has been reaffirmed by the courts in subsequent
cases wherever the male Hindu died as an undivided member leaving behind his
heirs to succeed to his intestacy. It has become a good precedent and considered
to be the landmark judgment of the apex court clarifying the application of S.6.

*******

Panlka
Panka
Pro
Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, DU Page 4
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Uttam v.Soubhag Singh

(2016) 4 SCC 68

This case is a judicial deviation from the well established precedent laid down in
Gurupad v. Hira Bai. The application of S.6 to convert the undivided interest of
a Mitakshara Hindu into his separate interest has missed out an important point.

The facts were:

One Jagannath Singh died in 1973 leaving behind his widow, four sons. Uttam
was born in 1977 to Mohan Singh who was the eldest son of Jagannath Singh.
After some years Utam filed a suit for partition against his father, and his three
paternal uncles claiming 1/8 share on the footing that it was ancestral property
and as a coparcener, he had a right by birth in it.

The trial court decreed the suit of Uttam. But the first appellate court and the
second appellate court held that when Jagannath Singh died, his share would have
to be distributed to all the class I heirs (his widow and four sons equally)
according to S.8. Since Uttam had no right while his father was alive, he could
not ask for partition. Once S.8 steps in, the joint family property has to be divided
in accordance with the rules of intestacy and not by survivorship. (para 3)

Uttam challenged the decision before the Supreme Court.

The arguments put forth by Uttam were:

Since it was ancestral property, Uttam as a coparcener, had every right to sue for
partition even while the father was alive. S.8 would apply only in case of intestacy
and S. 6 would apply to work out the share of a coparcener. S.6 and 8 have to be
read harmoniously as a result of which the status of joint family property which
is recognised under S.6 cannot be taken away by S.8 on the death of his
grandfather in 1973. (para 6) He relied upon Gurupad V. Hira Bai in support of
his claim.

The arguments put forth by the defendants were:

As Jagannath Singh had died in 1973, and Uttam was born in 1977 only, no share
could be allotted to him. On the death of Jagannath Singh, by application of S.8,
the property in the hands of his father and his paternal uncles is no more a joint
family property. Utam could not claim any share neither 1/8 in the whole
property nor 1/2 in the father's property. They relied on Chander Sen's judgment.

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Decision by the Supreme Court:

The apex court, after dealing with the proviso and explanation of S.6 of HSA
and other precedents, arrived at a decision that: (paras 20 & 21)

S.6 says: When a male Hindu dies, having at the time of his death an interst
in Mitakshara coparcenery property, his interest in the property will
devolve by survivorship upon the surviving members of the coparcenary.
Proviso says: ... If such a male Hindu had died leaving behind a female
relative specified in class I of the schedule or a male relative who claims
through such female relative, then the interest of the deceased in the
coparcenary property would devolve by testamentary or intestate
succession, and by survivorship.
Hence on the application of S.8 or on the application of proviso to s.6 such
property would devolve only by intestacy and not by survivorship.
After joint Hindu family property has been distributed in accordance with
s. 8 on principles of intestacy, the joint family property in the hands of
various persons who have succeeded to it, hold it as tenants in common
and not as joint tenants.
Applying these legal principles to the facts of the case, it is clear that on
the death of Jagannath singh in 1973, the joint family property which was
ancestral in the hands of Jagannath Singh and other coparceners, devolved
by succession u/s.8 of the Act. This being the case, the ancestral property
ceased to be joint family property and Uttam, born in 1977 could not claim
a share as a coparcener. His suit for partition would not be maintainable.

Comments:

It is humbly submitted that the court has failed to apply notional partition
as a first stage when Jagannath Singh died and directly applied s.8 which
defeated the legitimate claim of Uttam.

Recognising the fact that the property in the hands of Jagannath Singh was
ancestral, the court treated it as his exclusive property and directly applied
s.8. The entire property was considered as subject matter of intestacy. It is
totally a blatant and incorrect approach of the court. The relevancy of
explanation to s.6 does not arise at all if such an approach is taken.
1

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It forfeited the share of Uttam as coparcener. Even though he was born

after the death of his grand father, the moment he was born he became a
coparcener with his father in the ancestral property that came to the share
of Mohan Singh by survivorship.

The proviso to S.6 also provides that if such a male Hindu had died leaving
behind a female relative specified in class I of the schedule or a male
relative who claims through such female relative, then the interest of the
deceased in the coparcenary property would devolve by testamentary or
intestate succession, and by survivorship. Here legislature has specifically
used the words, the interest of the deceased that means, only his divided
interest after applying the notional partition.

The correct proposition would be:

On Jagannath Singh's death, a partition was deemed to have been made

between himself and his four sons. Applying the principle prevailing
among non-dravida school, considering mother as a share holder, each was
entitled to 1/6 share in the ancestral property by way of survivorship. Now
his 1/6 share, as divided interest, should devolve on his widow and four
sons by virtue of s.8 and each would have got 1/30 each in intestacy.
Mohan Singh should have got 1/6 as ancestral and 1/30 as class I heir.
Uttam is entitled to claim % share in his father's 1/6 interest as a coparcener
within his branch. Mohan Singh's share of 1/30 was his separate share
which he inherited as class I heir, in which Uutam could not claim as per
the decision in Chandra Sen's case.

Additional reading suggested:

Pl read the case comment by Prof. Poonam Pradhan Saxena for further
understanding. It was remarked "In view of clear legislative provisions, the
decision is extremely unfortunate and bears a lack of understanding of the
substantive law relating to concept of coparcenary; of the differentiation
between ancestral and separate property: its acquisition and devolution; the

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concept of notional partition and above all the twisted application of

intestate succession to the total ancestral property without affecting
notional partition. ... This incorrect rewriting of the statutory law governing
coparcenary property and intestate succession through incorrect
interpretation is most unfortunate. .. A clear illustration of an incorrect or
a bad precedent, with an uncertain future correctional eventuality."

Pankaja
******

anka
Panka
Prof.
Pro
Prof. Poonam Pradhan saxena, "Judicial Re-scripting of legislatation govemoing devolution of coparcenary
property and succession under Hindu Law" in the journal of ILI (2016) pp.337-349

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-
FAMILY LAW II CASE ANALYSIS AND SUM UPS

LECTURES 10 & 11

TOPIC: SUCCESSION TO THE ABSOLUTE PROPERTIES OF A

HINDU FEMALE DYING INTESTATE UNDER HINDU SUCCESSION
ACT 1956
(When a female Hindu dies intestate, who will succeed to her properties?
What are the rules governing suecession to a female Hindu?)
Hindu Succession Act 1956 prescribes different schemes of succession to a male
and a female Hindu. Succession to Male Hindu is governed by Ss.8-13 and
succession to female Hindu is governed by Ss.15 & 16. The former provides for
categories of heirs and rules of succession and the latter prescribes the manner of
distribution. However the disqualifications attached to an heir to succeed,
provided under Ss.24-26 are commonly applicable to heirs of both.

A Hindu female is capable of holding, as an absolute owner, properties of various

kinds.
1. Property inherited from her parents; (as class I heir)
2. Property inherited from her husband /father in law (as widow/ widowed
Daughter in law)
3. Any other property commonly called as her general property (Her salary
and self acquisitions; Stridhan; Property inherited from any person other
than her husband/father in law/parents; Property got under will or gift from
any person, even from her own father or mother etc.)

S.15 provides general rules of succession in the case of female Hindus. It has 2
clauses 15(1) and 15(2).

Part I- Application of S.15 (1)

S.15(1): The property of a female Hindu dying intestate shall devolve .

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

(b) Secondly upon the heirs of her husband

(c) Thirdly upon the mother and father

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(d) Fourthly upon the heirs of the father and

(e) Fifthly upon the heirs of the mother

Many things are to be observed in this clause

1. In case of succession to female Hindu, five entries are mentioned unlike in
the case of male Hindu as class I, Class II, Agnates and Cognates

Inentry (a), there are five heirs. (i) son (ii) daughter (ii)
son and daughter
of pre-deceased son (iv) son and daughter of pre-deceased daughter and (v)
husband. Son and daughter include biological or adopted, legitimate or
illegitimate, children of void or annulled voidable mariage. The marital
status of the proposita or validity of her marriage is irrelevant. However
step children are not included in this entry. In the absence of entry (a) they
will be inheriting as heirs of husband mentioned in the next entry. Children
of pre-deceased son or daughter include biological or adopted. Illegitimate
children, step children, children of void and annulled voidable marriage are
not included in this category. They do not extend beyond the children of
predeceased son and daughter, unlike in the case of succession to male
Hindu. (pl.refer class I category) It excludes great grand children. Husband
means the lawfully wedded husband of the proposita at the time of her
death.

2. In the absence of entry (a) the property would devolve upon heirs of the
husband as mentioned in entry (b). Going by the same analogy, here also
the husband means the lawfully wedded husband of the proposita at the
time of her death. It is presumed as if the property belonged to him and in
his absence, his heirs (class I, class II, Agnates, cognates as per rule) will
inherit.
3. In entry (c) mother and father are equally placed unlike in the case of
succession to male Hindu. Mother and father means biological or adoptive
parents but not step parents. Her own blood relations are relegated to a
farther place and the heirs of her husband are given priority.
4. In entry (d) & (e even among heirs of her parents, heirs of her father are
preferred to heirs of her mother.

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Illustrations:
1. A Hindu woman died leaving her husband (H2), a son (S1) from her first
marriage with HI which ended in divorce and a daughter (D) from a man
(M) with whom she had relationship, a son (S2) from her husband H2 and
$3, who is the son of H2 from his first marriage with X who died when $3
was born. Distribute.

Ans:

In the above case S1 and S2 and D are sons and daughter of her own
- S1 and s2 her legitimate sons and D her illegitimate daughter.
Illegitimacy is not a bar to succeed to mothers property.
$3 is her step son. (Son does not include step son and hence will not
inherit)
Hence according to S.15(1)(a) S1, $2 and D and her husband H2 will
inherit her property equally.

2. A Hindu woman died leaving behind her widowed daughter-in-law (widow

of her predeceased son S), son and daughter of predeceased son (SS and
SD) and son and daughter of a predeceased daughter of a pre deceased
daughter (SDD and DDD).

A. In the above given case who will inherit?

B. What would be your answer if SS was born before his father (S)
converted to Islam and SD was born after his conversion?

Ans to A.
According to S.15 (1) (a) SS and SD will inherit and others will not.
Widow of a pre deceased son is not a heir to mother-in-law unlike
in the case of succession to male Hindu.

Ans to B.
According to S.15(1)a) SS alone will inherit.
SD will not inherit because of the disqualification prescribed u/ S.26
of HSA which says Convert's descendants are not entitled to
inherit to the property of the propositus. (PlLrefer to that section)

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3. A female Hindu died intestate leaving behind her self-acquired properties

and her step son and her brother. Who will inherit?

Ans:
Here, it is a case of absence of clause (a) heirs.
The property is her separate property.
Applying s.15 (1)..
In the absence of her children and husband, the property will be
inherited by heirs of husband. (clause b)
Her step son comes under the category of heir of husband.
Her brother comes as heir of her father.(clause d)
So her step son is the preferred heir to her brother. He will inherit.
Part II Application of S.15 (2)

S.15 (2) is considered to be an exception to S.15(1).

S.15 (2) says: Not withstanding anything contained in sub section (1) -

(a) Any property inherited by a female Hindu from her father or mother
shall devolve, in the absence of any son or daughter of the deceased
(including the children of any pre deceased son or daughter) not upon the
heirs referred to in sub section (1), but upon the heirs of the father; and

(b) Any property inherited by a female Hindu from her husband or father
inlaw shall devolve, in the absence of any son or daughter of the deceased
(including the children of any pre deceased son or daughter) not upon the
heirs referred to in sub section (1), but upon the heirs of the husband.

S.15 (2) deals with a situation when:

The female Hindu dies without any child or children of pre-deceased

children and
She had inherited the property either from her father or mother or
husband or father in law
Where she had inherited property from her parents and dies
issueless, it would go back to the heirs of her father and
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Where she had inherited property from her husband or fathe-in-law,

and dies issueless, it would revert back to heirs of husband.
That means the source of the property is very much relevant here.
The object of S.15 (2) is to ensure that the property left by a Hindu
female does not lose the real source from where she inherited it. It
should not go to any other branch.

Note:

S.15(2) does not apply to a situation where a woman dies with child
of her own or child of her pre-deceased child.
S.15(2) does not apply to a situation where the woman had inherited
from any person other than her parents, husband or father-in-law.
(for ex: property inherited from her brother but died issueless)
S.15 (2) does not apply to a situation where the woman had acquired
properties through will or testament. (for ex: Her father gifted her
some property or she got it under a will and died issueless)
In these situations S. 15 (1) will apply
In short, if she dies leaving behind her children, the source of
propertyis immaterial. Whatever is the nature of the property
S.15(1)a) will apply. If she dies without issue, then S15(2) (a) or
15(2)(6) will apply as the case may be. Those properties of her,
which do not fall either u/15(2) (a) or 15(2) (b) will automatically
fall under 15(1) despite the fact that she had no child or child of
predeceased child at the time of her death.

Illustrations:
1. A Hindu woman died intestate leaving behind a house inherited from
her father and a piece of land inherited from her husband. She is
survived by her brother and her husband's brother. Who will inherit
which property?

Ans:

This is a case where she died without any child.

The properties are inherited from father and husband.
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Hence S.15 (2) will apply.

S.15 (2) (a) will apply to the house inherited from her father. It will
go to her brother, as heir of her father.
S.15 (2) (b) will apply to the piece of land inherited from her
husband. It will go to her husband's brother as heir of her husband.

2. A Hindu woman died intestate leaving behin house inherited from

her father and a piece of land inherited from her husband. She is
survived by her mother, brother, her husband's mother and his brother.
Who will inherit which property?

Observe the difference between the two illustrations,

Here in this case, with regard to house inherited from her father,
her mother and her brother are heirs of father.
But among these two heirs, mother is class I heir and her brother
is class II heir of father.
According to the rules of succession to a male Hindu, class I heir
will exclude class II heir.
Hence mother will only inherit that property and not her brother.
Similarly, with regard to land inherited from her husband, her
husband's heirs will inherit. Husband's mother is Class I heir
who will exclude husband's brother who is class II heir.
So her mother will inherit the house and her mother-in-law will
inherit land.

There are two cases given in your case material on S.15.

1. Om Prakash v. Radha Charan (S.15(1) applied) and
2. Bhagat Ram v. Teja Singh (S.15(2) applied)

Om Prakash v. Radha Charan

2009 (7) SCALE 51

Facts:

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One Narayani Devi was married to Dindayal Sharma in 1955.

Unfortunately she became a widow within three months of her marriage
and soon after her in laws drove her out from matrimonial home. She was
supported by her parents and was given education and she got an
employment. Her in-laws never bothered to care for her. She died as an
intestate in 1996 leaving behind lot of money in bank accounts, a huge sum
in her PF account and self acquired properties. When her mother applied
for succession certificate, her pre deceased husband's sister's son put forth
his claim as a legal heir to her properties and bank balances. As mother
died, Narayani's brothers came on record as legal heirs to her sister's
properties.

Issue:
Whether S.15 (1) or S.15 (2) would be applicable to the given case.

Judicial analysis:
The court has examined the case from legal and ethical perspectives.

It heard the arguments of her brothers that as she was driven out in times
of distress by her in laws and had not made any contribution towards her
education nor lent any support during her life time, S.15(2)(a) should be
made applicable

The court also heard the arguments from her husband's heirs who claimed
that as the properties were self acquired, S.15 (1) (b) should apply.

The court made the following observations:

The properties of the deceased were self acquired and were not
inherited from her parents or from husband's side.
S.15 (2) (a) speaks that in the absence of children, properties
inherited from parent's side shall devolve on the heirs of her
father.
S.15(2) (6) speaks that in the absence of children, properties
inherited from husband shall devolve upon husband's heirs.
The law is silent with regard to self acquired properties of a
woman dying issueless.
S.15(1) a
simply mentions as 'the property of female' and does
not distinguish between separate and inherited property.

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, University of Delhi. Page 7
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37

As exception is carved out in S.15 (2) with regard to inherited

property, all un-inherited property should come under S.15(1)
even if she dies as issueless.
.Hence S.15(1) will apply according to which the husband's heirs
alone will be entitled to inherit Narayani's separate properties.

The following observations are significant:

This is a hard case involving moral aspects. The legal

claimants had not lent any support to the woman during her
life time.
However it would not lead us to invoke different
interpretation of a statutory provision which is otherwise
impermissible. It is against the intention of the parliament.
Sentiment or sympathy alone would not be a guiding factor in
determining the rights of the parties where the law is
otherwise clear.
It is also to be observed that nothing prevented Narayani from
executing a will in favour of her brothers as they are her
separate properties.
As she died intestate, S.15 (1) alone will prevail. Golden rule
of interpretation must be applied in this case.
Anything that falls outside the scope of S.15(2) will come
within the fold of S.15(1).
Every property of a female falls within S. 15(1) except
inherited properties which falls under 15(2).
Hence the properties will go to her husband's heirs and not to
her brothers.

Case Comments:

It is an ironical judgment where law is applied in strict sense and justice is

not done to those who really cared for her. The properties passed onto the
hands of persons to whom justice would demand they should not possess.

Students are advised to prepare case comment on this decision.

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BHAGAT RAM V.TEJA SINGH

AIR 2002 SC1
Brief Facts:
Shanti and Indra inherited properties from their mother. Shanti died as a
issueless widow and her share devolved on Indra according to S.15(2)(a)
as Indra was the heir of her father.

Indra entered into an agreement to sell the properties with Bhagat Ram. A
suit for specific performance was filed by Bhagat Ram.

Shanti's pre-deceased husband's brother, Teja Singh put up an adverse

claim for the property u/S.15(1)6).

The question was whether the case falls under S.15(2)(a) or 15(1)(b)?
-

To put it simply after the death of Shanti, whether the property would
-

devolve on Indra according to s.15(2)(a) or on Shanti's pre-deceased

husband's brother according to S.15(1)6)?
Teja Singh argued that when Shanti inherited the property from her mother
in 1951, she had only limited right over the property and by virtue of S. 14
(1), she became the absolute owner of the property post 1956. Therefore
on her death, her property would be inherited by her legal heirs as set out
in S.15(1). (para 7)

Judicial history:
Trial court and the High court decided in favour of 15()6) and the apex
court decided in favour of 15(2(a).

It held that the property held by Shanti was the property inherited by her
from her mother and in the absence of any son or daughter including the
children of any predeceased son or daughter, S.15(2)(a) was the relevant
provision and Teja Singh had no right in the property left by Shanti and it
would go back and devolve on her sister Indra, who was her father's heir.
para 8)

It was further clarified that if the female had only limited right and later
acquired the full right, it would not in any way alter the rules of succession
given in sub-section (2) of S.15. (para 8)

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The court examined the cases relied on by the parties. Bajaya v. Gopikabai
(1978 SC) was a similar case but with different facts. S inherited property
from her husband and died issueless. It was held that as the interest in the
suit property was inherited by her from her husband, the property would
go to the heirs of the husband as per S. 15(2)(b). (para 9)

In conclusion, in the present case, the court highlighted the legislative

history of S. 15(2) to substantiate its decision. The Hindu Succession Bill
1954, as originally introduced in the Rajya Sabha, did not contain any
clause corresponding to sub-section 2 of section 15. It came to be
incorporated on the recommendations of the Joint Committee of the two
Houses of Parliament which reads as follows: (para 12)

While revising the order of succession among the heirs to a Hindu female,
properties inherited by her from her father reverts to the family of the father
in the absence of issue and similarly property inherited from her husband
or father-in-law reverts to the heirs of her husband in the absence of issue.
In the opinion of the Joint Committee such a provision would prevent
properties passing into the hands of persons to whom justice would demand
they should not possess."

A combined reading of S.15 (1) and 15 (2) gives us the following legal
matrix.

Status of female dying intestate Nature of property |Provision of

law
Female having her child or child | Self acquired 15(1)
ofher pre-deceased son/daughter properties
Female having her child or child | Inherited from her | 15(1)
ofher pre-deceased son/daughter father or mother
Female having her child or child | Inherited from her | 15(1)
of her pre-deceased son/daughter husband/father-in-
law
Female without child or child of | Inherited from her | 15(2)(a)
her pre-deceased son/daughter father or mother (Bhagat Ram
v.Teja Singh|
case)

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Female without child or child of | Inherited from her | 15(2(b)

her pre-deceased son/daughter husband/father-in-
law
Female without child or child of Self acquired 15(1) |

her pre-deceased son/daughter properties /Omprakash

inherited from any V. Radha
relatives other than | Charan case)
parents or husband
or father-in-law

Prof.Pankaj
****k*****

PrC

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, University of Delhi. Page 1
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FAMILY LAW II - CASE ANALYSIS AND SUM UJP

LECTURE 12, 13 & 14

MUSLIM LAW ON HIBA AND TWO RELATED CASES IN THE CASE

MATERIAL (LECTURES 12, 13 & 14)

(1) Katheessa Umma V. Kunhamu

(2) Musa Miya Walad Mohammad Shaffi V. Kadar Bax Walad Khaj Bax
(3) Hayatuddin V. Abdul Gani

INTRODUCTION:

Hiba, the Arabic equivalent of Gift, constitutes one of the important themes in
Muslim law. It is a transfer of existing movable and immovable property made
voluntarily and without consideration by one person called the donor to another
person called done and accepted by or on behalf of the done, followed by
immediate possession of the same.

The Transfer of Property Act 1882 which governs the rules relating to gifts
applies to all Indians except Muslims, whose gifts are governed by Muslim
personal law.

Rules of Hiba regarding:

(1) Who can be a donor?

(ii) Who can be a done?
iii) What can be the subject matter of Hiba?
(iv) What are the formalities to effect Hiba?

Who can be a donor?

Every Muslim, male or female, married or unmarried,

who has attained majority and
who is of sound mind can be a donor.
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He must be the owner of the property to be gifted.

For the purpose of making hiba, age of majority is 18 years and if there is a
court appointed guardian it is 21 years.
Who can be a donee?

Donee can be any person, male or female, major or minor, sane or insane, Muslim
or non-Muslim, natural or juristic person (Mosque) but must be in existence at
the time of making the gift.

What can be the subject matter of Hiba?

Any property owned by the donor, movable or immovable, corporeal or

incorporeal can be gifted.

A Muslim can gift his entire property and defeat the claims of his legal heirs.

Gift of Musha (undivided share) is also permissible with some riders. Musha, if
indivisible, it can be gifted without any division/partition. It is valid gift under
Sunni and Shia law. But gift of Musha, which is divisible, is gifted without
division/partition it is irregular for Sunnis and valid for Shias.' An irregular gift
may be perfected and rendered valid by subsequent partition and delivery to the
donee.

What are the essential formalities to a valid Hiba?

Hiba must be vouluntary. Any gift made under compulsion is voidable at the
instance of the donor. It can be oral or in writing, registered or unregistered,
attested or unattested. Besides the above mentioned conditions, a valid gift should
satisfy three layer test. As Hedaya states "Gifts are rendered valid by tender,
acceptance and seisin."

) Declaration by the donor ijab/tender)

Pl refer Hayatuddin v. Abdul Gani (AIR 1976 Bom 23) given in your case material.

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(ii) Acceptance by the donee (Qabool) and

(ii) Delivery of possession to the donee (Qabja/seisin)

ljab/ Declaration:

The donor must declare his intention to gift his property to the donee in clear and
unequivocal terms. It must be voluntary and without any condition. It is an offer
to the donee to accept the same.

Qabool/ Acceptance:

The second essential element for a valid gift is that it must be accepted by the
done himself or herself if major and of sound mind. If the donee is a minor or
insane, it must be accepted by the guardian of the donee on behalf of the donee.
Guardian, for the purpose of acceptance under Muslim law, is donee's father or
the executor appointed by father under his will, father's father or his executor
appointed by him under a will or father's brother.

No other relative of the minor such as mother, brother or maternal grandfather is

recognised as legal guardian to accept the gift. However they can be appointed as
testamentary guardian for the said purpose.

Any acceptance by a person who is not the guardian will not be a valid gift.

However there are certain exceptions to it.

The courts have taken references from treatises on Muslim law and highlighted
certain recognised exceptions to the above rule. The said strict rule is relaxed in
the following instances.

(i) In the case of a gift to an orphan minor, the person in charge of the

orphan can accept the gift and it is a valid acceptance.

ii) If a fatherless child be under charge of his mother and she takes
possession of a gift made to him, it is valid acceptance.

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(ii) The commentators agree that in the absence of father, brother and
paternal uncle are included in the list of persons who can take
possession on behalf of a minor who is in their charge. (para 10 in
Katheesa Umma case. (PI. refer to your case material)

Kabja/ Delivery of possession:

This is the third essential stage in a valid gift. Declaration and acceptance must
be followed by immediate delivery of possession. Till possession is not delivered,
gift is incomplete. t can be either actual or constructive delivery of posession.
According to Muslim law, the owner/donor must completely divest himself of the
gifted property, relinquishing control, ownership and possession to the donee. He
must completely vacate the premises to indicate that he had relinquished so. The
donee must be put in possession. The law requires physical departure of donor
from the premises and formal entry of the donee.

In Katheesa Umma case, (PL, refer to the case in your case material) the Supreme
Court while highlighting the rules of a valid gift observed: "For a valid gift, it is
only actual or constructive possession that completes the gift. If the property is
with the donor, he must depart from it and the donee must enter upon possession.
The strict view was that the donor must not leave behind even a straw belonging
to him to show his ownership and possession." (Para 10)

If the owner is not in possession of the immovable property at the time of gift, he
must at least perform some overt act to convey his bonafide intention like
mutation of donee's name in the revenue records, delivery of title deeds etc.

However there are certain exceptions to this rule.

(i) Where the donor and the donee reside in the same house, which is the
subject matter of the gift, delivery of possession is not necessary. The
donor need not vacate the premises and put the donee into possession.

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(ii) Where a husband makes a gift to his wife or wife makes a gift to her
husband of a house, or some other property in their joint possession,
delivery of possession is not necessary and the donor spouse can
continue to reside in the gifted property with the donee spouse.
(ii) Where a gift is made by the father or the guardian to his minor son or
ward, delivery of possession is not needed.

(iv) Where a gift is made by the bailor to the bailee, in whose pOssession the
subject matter of the gift is, no delivery of possession is required
(V)A gift by a co-sharer to another co-sharer also does not require delivery
of possession.
In all the above instances, the gift may be completed by a valid
declaration and valid acceptance. Any act of management or collection
of rent from the gifted property by the donor is presumed that he is
doing so on behalf of the donee.

There are two cases in the case material on this point.

1. Katheesa Umma v. Kunhamu and

2. Musa Miya v. Kadar Bux

KATHEESSA UMMA V. KUNHAMU

AIR 1964 SC 275

Facts: (Paras 2&3)

One Mammotty was married to Seinaba and they were living with Katheessa
Umma, the mother of Seinaba. Mammotty made a gift of his immovable property
to his wife by a registered deed. As she was a minor at the time of gift, (15 years
and 9 months) he had handed over the registered deed to Katheessa Umma. He
died without an issue followed by Seinaba. The property was in possesseion of
Kateessa Umma as heir of Seiniba.

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After the death of seiniba, the present suit was brought by Kunhamu, the elder
brother of Mammotty for partition and possession of 6/16 share as heir of
Mammotty and challenged the gift as void.

Kunhamu's contention was that when succession opened on the death of

Mammotty, his widow Seinaba was entitled to 4 share as there was no issue and
the remaining 4 share belonged to himself and his two sisters in the ratio of
2:1:1.2

Kunhamu's proposed share was 4 divided by 2/4 =3/8

According to him, the gift was void as it was accepted by her mother who was
not the legal guardian of Seinaba for the purpose of gift under Muhammadan law.

According to Katheessa Umma, neither express acceptance nor transfer of

possession was necessary for the completion of a gift, when the donor himself
was the guardian. His intention to gift was clear and the same was effected
through registered gift deed. When there was no legal guardian of property in
existence, the gift could be completed by delivery of the property and acceptance
by any person, in whose control the minor was at the time.

Issue:

Is a gift by a husband to his minor wife and accepted on her behalf by her mother
valid? (para 1)

Judicial analysis:

The Supreme Court after referring to treatises written by jurists like Mulla, Tyabji
and Amir Ali, and after going through Hedaya and Hadis of the Prophet, upheld

According to Muslim law of inheritance, wife's normal share is 1/8 and in the absence of child her share gets
increased to 4. Son will be entitled to double the share of a daughter and brother will be entitled to double the
share of sister of the propositus.

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the validity of the gift. In the course of the judgment, the court highlighted the
rules of the gift and made the following observations. (paras 10, 11)

i) In the absence of father and father's father, mother could accept the
gift on behalf of her minor daughter as she was in her charge. It was
a valid gift.

ii) The power of mother is by virtue of necessity when the lawful

guardian be dead, or absent and his place of residence unknown.
ii) In a gift by husband to his wife, delivery of possession was not
required. All that was needed was that the donor must evince an
immediate and bona-fide intention to make the gift and to complete
it by some significant overt act.
iv) In the present case, husband's intention to gift was clear and

manifest as it was written and registered and handed over by him to

his mother-in-law.
(v) In the present case, the donor himself could be the acceptor on behalf
of his minor wife in his capacity as her husband as he was the legal
guardian but he did not do it by himself but donor had nominated
her mother to receive the deed on behalf of her daughter.
(vi) Some judgments of high court was also a pointer on similar issue
(para 12) wherein it was held that gift did not fail merely because
possession was not handed over to the minor's father or guardian
and the donor could nominate person to accept the gift on behalf of
the minor. Mohammedan law of gift, though strict, could not be
taken to be made up of unmeaning technicalities.
(vii) In the present case, the gift by Mammotty to his wife Seinaba
was a valid gift.
********

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48

MUSA MIYA WALAD MOHAMMAD SHAFFI V. KADAR BAX

WALAD KHAJ BAX (AIR 1928 PC 108)

NOTE:

This is a second case in your case material on validity of a gift and compliance
with the essential ingredient of Muslim law of gift namely valid acceptance and
delivery of possession.

The case can be shortly called as Musa Miya v. Kadar Bax. The term Walad'
refers to guardian. Musa Miya represented by his guardian Mohammad Shaffi
and Kadar Bax represented by Khaj Bax.

This was a very old case decided by Privy Council and still a precedent on the
legal issue.

FACTS:

One Abdul Rasul had some properties. His daughter Rahimatbi and his two grand
children Moosa Miyan and Essen Miyan were living with him. Her husband
Mohammad Shaffi was living away and was occasionally visitng them. To a large
extent they were maintained by Abdul Rasul.

At one point of time, Abdul Rasul decided to make a pilgrimage to Mecca and on
the occasion of 26th day of Ramzan, he hosted a dinner and in front of several
persons, he announced that he had made a gift of his property to his two grand
children and made them as co-owners. As his son-in-law, Mohammad Shaffi was
away, he wrote a letter to him informing the same. He also wrote another letter to
Mohammad Shaffi that both the grand children would be the co-owners of the
property after his death. He also informed the same to his women at household
Chis wife and daughter)

However there was no mutation of the names and no deed was executed.

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After returning from Mecca, Abdul Rasul resumed the affairs of the property,
remained in possession and managed it until his death. His brother Kadar Bax
filed a suit for his 3/8 share in the property as per Sunni law of inheritance

ARGUMENTS:

According to brother: (against the validity of gift)

The gift by Abdul Rasul to his two grand children was not valid.
There was no delivery of possession to the donee or to their guardian.
There was no relinquishment of control by the donor over the said property.
Acceptance and seisin, on the part of the donee or on their behalf are as
necessary as relinquishment on the part of the donor. These essentials were
not followed, it was not a valid gift and the property of Rasul should
devolve as per Muslim law of inheritance in which he was entitled to 3/8.
According to Muslim law of inheritance, wife was entitled to 1/8, daughter
h and the remaining 3/8 to brother.

Arguments, put forth on behalf of the donee were: (in favour of a valid gif)

According to Mohamedan law, formal delivery of possession and seisen

are not required if both donor and donee are living in the same house, which
is the subject matter of gift.

The letter written by Abdul Rasul to Mohamad Shaffi could alternatively

be construed as the will of Abdul Rasul.

By virtue of oral gift or in the alternative of the will, the grandsons have
become owners of Abdul Rasul's property.

ISSUE:

According to Sunni law of inheritance widow's share is 1/8 and daughter's share is
brother 3/8.
. The remaining goes to

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Whether the gift made by grandfather in favour of his grandsons would come
under the exception that delivery of possession is not required. In other words,
whether in the absence of any delivery of possession or any relinquishment of
control by Abdul Rasul, there could be a complete gift according to
Mohammedan law?

The trial court treated the second letter as 'will' and decreed 4 share to Kadar
Bax, the brother" Both the sides preferred appeals. The High Court did not
treat it as 'will'. It was also not a valid gift. Hence, decided in favour of brother
to his share of 3/8 in Abdul Rasul's property.

PRIVY COUNCIL'S DECISION:

Referring to the statement of law on the question° and considering the earlier
decisions of various High courts, the court had decided that:

) The gift was not complete as there was no acceptance from the guardian
of minor children, Mohammad Shaffi.
ii) There was no delivery of possession either. There were several
occasions on which Abdul Rasul could have put forth the ownership of
the boys, but he did not seem to have availed himself of any of them.
in) The case was not within the exception. It was not a gift by a father or
mother to a minor; nor is it a case of a guardian making a gift to his
charge. When the father, who is the natural guardian of his infant
children is alive and has not been deprived of his rights and powers as
a parent and a guardian, the exception will not apply.

According to Muslim law of will, a testator cannot bequeath more than 1/3 property under a will. Granting 1/3
to the grand children, in the remaining 2/3, his wife, daughter and brother were heirs. We will discuss about
bequathable 1/3 rule in the lecture on Muslim law of Will.
Principles and precedents of Mohammedan Law by Macnagthen (1825)

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51

iv) Despite the fact that the grandfather had maintained and brought up his
grand children from their birth until his death, he could not presume
himself to be their guardian in the presence of their father.
(v) As father of the minors was alive, and was actually living with his wife
and children in the house of Abdul Rasul, the donor, and was in a
position to exercIse his rights and powers as a parent and guardian, and

to take possession of the property on behalf of his children, it could be

clearly stated that the case did not fit into the exception. The gift was
not complete and hence invalid.
(vi) The share of the brother, 3/8 in the property of Abdul rasul, decreed by
the High Court was correct. The appeal preferred by Mohammad Shaffi

Prot.Pa
representing the minor donees was dismissed.

**** **

PrC

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LECTURE 14

GIFT OF MUSHAA

Under Muslim law there is a concept called 'Mushaa', meaning undivided share
in a property, movable or immovable. For eg. Share in a common staircase, land
and building. According to Hedaya:

Gift of Mushaa, which is capable of division, must be divided and then

gifted.

If gifted without division and separated, it is irregular for Sunnis and valid
for Shias.
The irregularity can be cured and gift can be perfected by subsequently
dividing the share and handing over its possession to the donee.
Gift of Mushaa, which is indivisible, can be gifted without division. It is
valid gift for Shias as well as Sunnis.
Gift of Mushaa must satisfy all the essential conditions of a valid regular
gift namely declaration, acceptance and delivery of possession.

Generally, gift of Mushaa is discouraged since it is likely to cause confusion in

the enjoyment of property, unless it is by one co-sharer to another co-sharer.
Hence the term 'Mushaa' literally means 'confusion'.

HAYATUDDIN V. ABDUL GANI

(AIR 1976 Bom. 23)

Lalmiya died leaving behind his two widows W1 and W2 and a sister. WI and
W2 got 1/8 share each and sister got 4 share according to Hanafi law of
inheritance.

WI and sister had gifted their combined share to one Hayatuddin who had been
brought up by Lalmiya from his childhood. The gift deed recites that the share of

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W2 was separated and the shares of W1 and sister was gifted to Hayatuddin. It
also recites that the property gifted was in possession olf the donee and the same
was handed over to him.

A suit for declaration was filed by donor and donee to the effect that the donee
was the owner of the property and an alternate relief of partition and separate
possession of 1/8 share of W2 and remaining to Hayatuddin. The heirs of sister
challenged the gift as void.

The questions posed was whether the gift in favour of Hayatuddin was valid as it
was Mushaa and gifted without being separated by metes and bounds and there
was no delivery of possession.

The court after appreciating the evidence and taking reference to Mulla's Hindu
law gave the following ruling

At the time of gift, the gifted property was partly in possession of the done
and partly in possession of the tenants.
A gift of immovable property which is in occupation of tenants may be

completed by a request by the donor to attorn to the donee.

Where the donor and the done both reside in the property, no physical
departure or formal entry is necessary and the gift may be completed by
some overt ac by the donor indicating his intention to transfer possession.
In the present case, the donors had informed the tenants that they had made
Hayatuddin as the owner of the property and rent to be paid to him and
they were paying rent to Hayatuddin since 11 years.
Donors have done everything that was possible to make the gift a valid one.
In addition to this, the conduct of the donors in joining with done as co-
plaintiffs to have their share separated and delivered possession thereof.
The law relating to the gift of undivided property is as follows:

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(i) A valid gift may be made of an undivided share (Mushaa) in

property, which is not capable of partition.

i) A gift of Mushaa which is capable of division is irregular (fasid) but
not void (batil). The gift being irregular may be perfected and
rendered valid by subsequent partition and delivery to the donee. If
possession is once taken, the gift is valid.
In the present case, the gift of Mushaa was valid. Though it was irregular
at the time of gift, it was perfected.

U
The challenge to the gift deed by the heirs of sister was not accepted.

Prof.Pank ******

PrC

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Prof.Pankaja

PrC

Prof. (Dr.) P.B.Pankaja, Law Centre 1, Faculty of Law, University of Delhi Page 15
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FAMILY LAW II CASE ANALYSIS AND SUM UP

-

LECTURE 15

LAW OF WASSIYYAT (WILL) UNDER MUSLIM LAW

This topic will be discussed in two parts.

Part 1. Essential conditions for a valid bequest/ Will

Part 2. Abatement of Legacies

PART 1. ESSENTIAL CONDITIONS FOR A VALID BEQUEST/ WILL

Introduction:

For a Muslim, Will is a divine and lawful intitution and is regulated by Koran. It is an
instrument through which a Muslim can correct the schemeof succession to his property and
leave something for his relatives or well wishers to/succeed through testament, who are
otherwise excluded from inheritance. It is a device of recognising the services rendered by
Someone and giving something in return for them from out of his property.

While recognising his freedom to dispose of his property according to his good sense, Koran
also keeps certain riders on his power of testàméntary disposition. The law of Wil/ Wassiyyat
is governed by un-codified Muslim law which prescribes the following stipulations. It can be

studied under the following heads

A. Who has the capacity to make a Will? Who can be a testator?

B. To whom it can be made? Who can be the legatee under a Wil'?
C. What can be bequeathed under a Will? What can be the subject matter of legacy?
D. What are thé formalities in making a Will?

A. Who has the capacity to make a Will? Who can be a testator?

Every Muslim, male or female, who is major and of sound mind can execute a Will.
For the purpose of Will, the age of majority is 18 years under Indian Majority Act and
21 years in case a guardian is appointed under Guardian and Wards Act.

Muslim law givers lay down that a minor can also execute a will but it must be ratified
by him on attaining majority. But this is not so in the case of a person of unsound mind,

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whose will cannot be ratified on regaining sanity. Moreover, a Will made by a sane
Muslim will become invalid, if subsequently he becomes insane.
A Will made under force, fraud, coercion and undue influence is also invalid.
Under Shia law, a Will made by a person, who has attempted to commit suicide, is

invalid but a Will made by a Shia, who subsequently commits suicide is valid.

(B) To whom it can be made? Who can be a legatee unde Will?

A Muslim can execute a Will in favour of any person- male or female, major or minor,
sane or insane, Muslim or non-Muslim.
A legatee can be a natural person or a juristie person.
A Will bequeathing property to any purpose, religious, secular or charitable, which is
not opposed to Islam is valid. For ex: A Muslim cannot bequeath his property to a
Church or to a temple.
Under Muslim law, bequest to a person not in existence at the time of testator 's death
is void.

A Will executed in favour of an unborn person is also void.

But a bequest to a child in womb is valid provided the child is born alive within six
months of the death of the testator.
Ifa legatee predeceased the testator, the legacy lapses and it forms part of the estate of
the Muslim, which will be inherited by his heirs.

On the quéstion whether a Muslim can make a bequest to his heir, the rules are not uniform.
There are certain restrictions imposed on the power of testator in this respect.

Sunni Shia
No bequest shall be made to an heir, unless No bequest shall be made to an heir, unless
the other heirs cónsent to it after the death of the other heirs consent to it at any time.
the testatoor.
A single heir may also consent to it so as to Same rule applies.
bind his share.
Even if the bequest is within the permissible | If the bequest does not exceed the
1/3 rule, the consent of other heirs is a must. permissible 1/3 rule, it is immaterial whether
the legatee is a heir or a stranger.

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According to Hedaya, the reason for this restriction is that if heir happens to be legatee too, to
that extent he will be more benefitted than other heirs, which is not according to the spirit of
Koran which prescribes the shares of the heirs. It will induce the breach of the ties of kindred.
However if the heirs themselves give consent for it, it is permissible.

Similarly,

Sunni Shia
A murderer or an abettor to the murder of the | A murderer or an abettor to the murder of the |

testator is not entitled to a legacy, whether it testator is not entitled to a legacy, only if it is
is intended or accidental. intended.

(C) What can be bequeathed under a Will? What can be the subject matter of legacy?

Any property movable or immovable, corporeal or incorporeal, corpus or usufruct,

owned by the testator can form the subject mattéer of Will.
It must be in existence at the time of death of the testator and it is not necessary that it
should be in existence at the time of making the will.
A Muslim cannot bequeath more tha one third of his net assets after making all
permissible deductions Erom it like fünerál expenses, debts and other charges. This is
popularly known as tbequcath able 1/3 rule'. Positively speaking, a Muslim is allowed

to bequeath/3 of his/property Witha view to fulfilling his duty in respect of those who
have served him
While recognising the freedom of the testator to give away a part of his property to
anybody he wishes, Prophet was believed to have declared that "The power should not
be exercised to the injury of the lawful heirs." It is a balancer or a compromise between
testator's freedom and moral obligation towards legatees and the koranic heirs' legal
entitlement. This is with a view not to affect the shares of koranic heirs.
This is the difference between 'Will' and 'Gift'. A Muslim can gift his entire property
but he cannot make a will for his entire property.

Exceptions to bequeathable 1/3:

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A Muslim can bequeath more than 1/3 if his heirs give consent to it. In other words,
a bequest of more than 1/3 may be validated by the consent of heirs. However, there
is a difference between two schools of Islam.

Sunni Shia

The bequest of more than 1/3 is not valid | If the beque to heir is within the
unless it is consented by other heirs. permissible 1/3, other heirs consent is
The consent must be there after the death of not required. Only if it is beyond 1/3,
the testator. other heirs consent iIs required,
The consent may be at any time either
before or after the death of the testator.

i) A Muslim can bequeath more than /3 if there is a valid custom to do so.

In India till 1937, a convert to Islam was permitted to follow his own pre-conversion
personal law & customary law in ceftain matters of family affairs. In 1937, Shariat
Act was passed withdrawing these concessions and declared that 'not withstanding
any custom or usage, in all matters regarding intestate succession, gift, marriage,
etc.Shariat Act will apply if persons are Muslims.' This list does not specify Will.
Hence it is viewed by jurists that now a converted Muslim can dispose of his entire
property under a will.

(1ii) Where a testator dies leaving behind no heirs, he can bequeath his entire property.

iv) If a Muslim had married or got his marriage registered under Special Marriage Act,
1954, his property will be governed by Indian Succession Act 1925 and Muslim
law of 'Will' will not apply. In that case, he can bequeath his entire property under
a Will.

Pl.refer Paras Diwan, "Muslim Law in Modern India", Topic Wassiyyat, sub topic- Bequueathable one
third.

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D) What are the formalities in making a Will?

Muslim law does not require any formality for the execution of a will.
It can be oral or in writing. It can also be made by gestures.
Even if it is in writing, it need not be signed by the testator.
It need not be attested by witunesses.
It need not be registered.
Due to these liberal rules, the burden is heavy on the beneficiary to prove its validity,
if challenged.

**********

PART 2 ABATEMENT OF LEGACIES

Sometimes, a testator's Will exceeds the permissible N3 limit, Then the Jegacy is reduced and
the excess is abated. This is called abatement of legacy, The rules relating to abatement of
legacy is different under Sunni and Shia laws.
PA
Sunnis follow the principle of Rateable istribution or Proportionate distribution.

Shias follow chronological preference of the téstator named in the Will.

Similarly abatement of legacy will be different in two different situations

When the bequest to each legatee is different

(i)When the bequest to each legatee is equal to one third asset

iLLUSTRATIONS

SITUATION I

) A Muslim executes a will bequeathing Rs. 30000 to X, Rs. 40000 to Y and Rs.
50000 to Z. His total net property is Rs. 1,80,000. Distribute the legacy.

30000 40000 50000

According to Sunni Law:

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Stage 1: Total assets is 1,80,000

Stage 2: The bequethable 1/3 is 1,80,000/3-60000

Stage 3: The total bequest in the will is 120000. As the assets available for X, Y &Z
are only 60000, the bequests of X, Y & Z must be rateably reduced.

Stage 4: Find out the ratio of X, Y &Z=3:4:5. X=3/12, Y=4/127-5/12

Stage 5: Divide the bequeath able assets to X, Y & Z according to their ratio.

Legatees X

Bequest in the will 30000 40000 50000

Bequest got after 60000 x 3/12 = 60000 x 4/12 60000 x 5/12=
rateable reduction 15000 20000 25000
Abated
(Proposed bequest 15000 20000 25000
-actual)

According to Shia Law

|
Legatees Y

Bequest in the will

30000 40000 50000
Bequest in
chronological 30000 30000 Nil
preference
Abated
(Proposed bequest | Nothing will be | 10000 will be Entire bequest is
actual) abated abated abated.

In the above mentioned illustration of Shias, chronological preference means the first
named person will be given the legacy first. The next person will get, if anything is left
from the one third available. Similar is the position with the subsequent legatees.

X will get his full bequest.

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Y will get only 30000 instead of 40000

Z will get nothing.

Illustration 2:

A dies leaving behind assets worth Rs. 1,05,000. He made a Will giving Rs. 30000 to

daughter and Rs. 40000 to his Hindu friend and Rs. 90000 to a Church. His wife and
sons refuse to consent. Distribute the legacy according to Sunni and Shia law.

Note: In this illustration I have mentioned two things requiring careful calculation.

Bequest to a heir.
(i)
these two in the above discussion.)

Sunni law:
Pankey
(i) Bequest to a Hindu friend and to a Church. (Pl. revisit the rules regarding

Total assets: 105000

Bequeathable 1/3 = 35000

Legatees Daughter Hindu friend Church

Bequestin the will 30000 40000 90000

Bequest got after Will not get as Not a bar. |

It IS not
rateable reduction other heirs refuse Will get entire permissible.
to consent 35000 as other two
legatees are
disqualified.
Abated
(Proposed bequest 5000
actual)

Note: In case if the other two heirs give consent

Legatees Daughter Hindu friend Church

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Bequest in the will 30000 40000 90000

Bequest got atter 35000 x 3/7 = 35000 x 4/7 It is not

rateable reduction 15000 20000 permissible.

(3:4)
Abated
(Proposed bequest 15000 20000
- actual)

According to Shia Law:

Legatees Daughter Hindu friend Church

Bequest in the will 30000 40000 90000

Bequest in She will get 30000 He wil get only 5000 Not permissible
chronological the limit
Within

preference consent ofother

heirs not required
Abated Nothing will be 35000
(Proposed bequest abated.
actual)

Note-Under Shia law, if instead of daughter, Hindu friend is mentioned first in the
Will, then the calculation will be as follows:

|
Legatees Hindu friend Daughter Church

Bequest in the will 40000 30000 90000

Bequest in He will get 35000 She will not get as 1/3 Not permissible
chronological is exhausted (rule of

preference consent does not

arise)

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Abated 5000 will be abated. Total bequest will be

(Proposed abated.
bequest-actual)

Note: Thus I have given various alternative constructions in illustrations to make it easy
to understand and apply the rules.

Situation II

Sometimes the testator will give equal bequest to each legatee, which is just èqual too

the bequeathable 1/3.

A testator dies leaving behind a Will with 30000 to A, 30000 to B and30000 to C. His
assets worth: 90000. Distribute the legacy according to Sunní and Shia law.

Note:

In the second situation,

Sunnis follow the same rateable distribution.

ii) But Shias follow the chronölogical preference in the reverse order. Le. the last
mentioned legatee in the Will has to get first, then the next last...successively.

Net assets 90000

Bequeathable'1/330000

Bequest to each legatee = 30000 (equal to 1/3)

According to Sunni Law:

Legatees B C

Bequest in the will 30000 30000 30000

Ratio of bequest :
Bequest got after
rateable reduction 10000 10000 10000
Abated
20000 20000 20000

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(Proposed bequest
-actual)

According to Shia Law

|
Legatees A B C

Bequest in the 30000 30000 30000

will
Chronological
preference in Nothing left Nothing left 30000
reverse order
Abated Entire bequest is abated Entire bequest isGets in full.
(Proposed abated.
bequest
ctual)

Note:
CPa
The rules relating to legatee being heir oropposed to Islam are applicable in the second
situation also.

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Pankaja
ankaja

Puf.

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FAMILY LAW II - CASE ANALYSIS AND SUM UP

(Topic 7 in case material)

LECTURE No. 16
SECTION 14 OF HINDU SUCCESSION ACT 1956
INTRODUCTION
One of the significant changes brought about in the HSA 1956 was abolitiorn of
Limited Estate created under Hindu Women's Property Act 1937.

According to Shastric Hindu Law, coparceary propérty upon

deyolved
coparceners only under the rule of survivorship and females and pon-coparceners
could not inherit it. For example, a joint family consisted of three brothers A, B
&C. On the death of A, in the absence of his lineal descendants (son, son's son
and son's son's son), his undivided interest in the coparcenary property devolved
on his surviving brothers, despite the fact that A had his wife at the time of his
death.
6
In1937,by virtue of Hindu Women's rightfo property Act, which is considered
to be the first legislative initiative to confer inheritance right to certain women,
the absolute rule of survivorship was replaced with the concepts of limited estate
and reversioners. Accordingly, in the earlier mentioned situation, on A's death,
his undivided interest in the coparcenary property devolved upon his widow and
she would enjoy the property during her life time with exceptional conditions for
alienating the same and after her death, it would revert back to B & C, who were
called reversioners. Thus the absolute rule of survivorship, was diluted to some
extent andit got suspended during the life time of limited estate holder and then
resumed. It was not abolished but was kept suspended.

The next stage in her journey towards property rights is S. 14 of Hindu Succession
Act 1956. It abolished the concept of limited estate and consequently the concept
of reversioners.

S.14 reads: Property of a female Hindu to be her absolute property.

It has two sub-sections.

S.14 () reads:

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Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as
a limited owner.

Explanation: In this Sec. Property includes both movable and immovable

acquired by a female Hindu -

By inheritance or devise, or at a partition, or in lieu of maintenance or arrears of

maintenance or by gift from any person, whether a relative or not, before, at or
after her marriage, or by her own skill or exertion, or byo purchase or by
prescription, or in any other manner whatsoever and also any suçch propertý held
by her as stridhana immediately before the commencement of the Ac
Thus the explanation for property is very exhaustive mentioning the varíous kinds
of properties which a female Hindu has acquired' and posessed by various ways.
For instance,

A female Hindu might have inherited aproperty of her deceased husband

under Hindu Widow's Property Apt,1937.
She might have received the coparéenarý share of her husband after his
death.
She might have received a limited interest in the property given to her
under a family settlement or under a device of Will.
She might have received a share in the coparcenary property when a
partition had taken place between father and sons in a non-dravida family.
She might/have reçeived the property under a gift from her relatives or
from apy other person.
The property might have acquired by her through self earning, personal
skilland profession.
She might have purchased with the help of her own funds, certain
properties.
She might have received some property in any other manner such as under
court decree or through adverse possession or through compensation from
the Government.
Any property that she acquired by various modes after passing of this Act
is also her absolute property.
One of the important requirements for conversion of a limited into an
absolute interest is that the property should be possessed by a Hindu female
and the possession may be either actual or constructive.

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The word 'possessed by' used by the legislature indicates that it is a valid
possession in law with title to the property. It is different from the term
property in possession of a Hindu female
Physical possession of a property with a right of ownership and property
not in physical possession but having a right of ownership come within the
purview ofS. 14(1).
Actual physical possession without the right f ownership will not attract
S.14 (1). For instance, where a Hindu female is in actual possession of a
property but as a trespasser, as a lessee, as a mortgagee would not convert
her as a full owner.
When the limited estate has matured into an absolute interest by virtue of
s.14, the female Hindu gets full power of disposal over/the property. The
alienation of 14(1) property by her is perfectly valid and it cannot be
challenged by the heirs of her husband.
Wherever, the property was allotted to her in lieu pf her maintenance or in
arrears of maintenance and received by her under a will, a compromise, at
the time of partition, or through any other settlement, her limited rights
mature into absolute rights.

S.14 (2) reads:

Nothing contained insubsection ())shall apply to any property acquired by way
or
of gift or under a will any other instrument or under a decree or order of a civil
court or under an award where the terms of the gift, will or instrument or the
decree, order or award prescribe a restricted estate in such property.

Analysis:
This subsection also mentions the properties acquired by her undera Will or gift
or decree or court order or any other instrument. They will remain as limited
estate only and will not expand into absolute estate.
Use of same terms both in subsection (1) and (2) has created confusion, wanting
in legislative clarity, and giving rise to a basic question -
which properties fall
under 14(1) that will become her absolute estate and which fall under 14(2) that
will remain as limited estate only.
A large number of cases came before the court which has created a lot of
confusion in interpreting the two clauses inviting the wrath of the judiciary to

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make comments on the legislative wisdom and an urgent need for simplifying the
section in clear terms.
But now the need is not felt because many cases have been decided wherein the
construction of S. 141) and (2) are settled. The difference between the two
subsections is made clear. Thulasamma V. Sesha Reddy was a settled case which
is continuing as a good precedent till now. In that case the court has at length
discussed the scope of S.14 (1) and (2).
Facts:
Tulasamma's husband died in 1931 as an undivided member leaving behind his
widow Tulasamma and his brother Sesha Reddy. In 1944, Tulasamma filed a
petition for maintenance against Sesha Reddy and obtained an ex parte decree.
During execution stage, a settlement was arrived at which was certified by the
Executing court. Acording to the terms of the compromise (a) Tulasamma was
allotted the scheduled properties but was to enjoy only a limited interest with no
power of alienation at all. (bThe properties were to revert to Sesha Reddy after
the death of Tulasamma.
Thereafter, Tulasamma continued tó remain in possession of the properties. The
Hindu succession Act came into force in 1956. Tulasamma leased out some
properties and sold some properties through lease deed and sale deed in 1960 and
1961 respectively. Sesha Reddy filed a suit in 1961 for a declaration that the

alienation made by the widow Tulasamma were not binding on him as her interest
could not be enlarged into an absolute interest in view of S. 14(2).
The judicial journey of the case was as hereunder. -
Trial court brought the case
within the fold of S.14 (2) and negatived the claim of Tulasamma. District court
held it as a fitting case under S.14 (1). High court held it under S. 14(2) and
ultimately the case came before the Supreme Court.
The issue
The issue before the Supreme Court was whether the property received by
Tulasamma, in lieu of maintenance, under a compromise instrument as limited

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estate, would be held by her as absolute estate after 1956 Act. In other words,
whether it would be S. 14 (1) or S. 14(2), that would apply to the present case.
Case analysis:
It is interesting to note that the court took an opportunity to go into the question
in detail and made an elaborate judgment bringing finality to the much agitated
but unsettled issue. After examining a number of cases decided on the point by
the same Supreme Court, the apex court highlighted the following principles of
law. The main observations can be summed up as:
A Hindu female's right to maintenance is not an empty formality or an
illusory claim but is a tangible right against property which flows from
spiritual relationship between the husband and the wife.
Under the Sastric Hindu Law a widow has a right to be maintained out of
joint family property and this right would tipen into a charge if the widow
took the necessary steps for háving her maintenance ascertained and
specifically charged on the joint family property.
The right to maintenance is a pre-existing right which existed in the Hindu
law long before the passing of the Act of 1937 or the Act of 1946, and is,
therefore, a pre-existing right.
When speific property is allotted to the widow in lieu of her claim for
maintenance, the allotment would be in satisfaction of her jus ad rem,
namely, the right to be maintained out of the joint family property. It
would not be a grant for the first time without any pre-existing right in the
widow. The widow would be getting the property in virtue of her pre-
existing right, the instrument giving the property being merely a document
effectuating such pre-existing right.
The Act of 1956 has made revolutionary and far reaching changes in the
Hindu society and every attempt should be made to carry out the spirit of
the Act which undoubtedly supplied a long felt need.

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That the provisions of S.14 of the 19566 Act must be liberally construed in
order to advance the object of the Act which is to enlarge the limited
interest possessed by a Hindu widow which was in consonance with the
changing temper of the times;
S.14 (1) is large in its amplitude and covers every kind of acquisition of
property by a female Hindu including acquisition in lieu of maintenance.
Where such property was possessed by her at the date of commencement
of the Act or was subsequently acquired and possessed, she would bécome
the full owner of the property.
The object of the Legislature being to wipe out the disabilities from
which a Hindu female suffered in regard to ownership of property under
the old Sastric Law and to recognise her status as an independent and
absolute owner of property sub-section (2) must be read in the context of
sub-s.(1) and leave as large a scopé for operation as possible to sub-
s.1).
Sub S.14 (2) is in the nature of a proviso and it should not be construed in
a manner so as to destroy the effect of the main provision 14 (1).
So read, sub s.14 (2) must be confined to cases where property is acquired
by a female Hindu for the first time as a grant without any pre-existing
right under a gift, will, instrument, decree, order or award, the terms of
which presribe a restricted estate in the property.
The appellant (Tulasamma) must, in the circumstances, be deemed to have
become full owner of the properties not withstanding that the compromise
prescribed a limited interest for her in the properties. It is sub-s. (1) and
not sub-s. (2) of s.14 which must be held to be applicable on these facts.

The court in the course of the judgment, also, expressed its unhappiness over inapt
draftsmanship in the following words. (paraphrased) (Pl. refer para 67)

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It is indeed unfortunate that though S.14 (1) and (2) are presenting serious
difficulties of construction ... and divergence judicial opinion was creating a
chaotic situation robbing the law of that modicum of certainty. The legislature,
for all these years did not care to step into remove the constructional dilemma
facing the courts. ... By a simple amendment it could have silenced judicial
conflict and put an end to needless litigation. This is a classic instance of inapt
draftsmanship, which has created endless confusion for litigants and proved a
paradise for lawyers. If there is a close interaction between the judiciary and the
Legislature, the time and money in these fruitless litigatiops may be saved and
law would achieve clarity, certainty and simplicity and be intelligible to the
people.
Conclusion:
Thus Tulasamma's judgment given in 1977 is a béacon light in the space of
women's property rights. Introduetion ofs14and abolition of limited estate doces
not mean that after 1956, a woman can never acquire a limited estate. It is not
totally abolished from legal space. Where a female acquires property under a will
or a gift, in which the transferor specifically confers limited estate on her,
mentioning that afterthe lifetime of the done or the legatee, it will revert back to
someone, it will not mature into absolute estate as against the wishes of the
testator or the donor.While S.14 (1) recognizes the need for absolute ownership
of property to women, 14(2) recognizes the transferor's right to transfer his
property as he wishes, whether to give it as full ownership or as limited
ownership. whether the beneficiary is a male or a female. 14(1) is gender specific
and 14(2) is gender neutral.
The test to determine whether a case would fall under14 (1) or 14 (2), the clue is
that if she receives it by virtue of her pre-existing right it is case of 14 (1) or
because the transferor wanted her to have a limited interest, it is a case of 14 (2).
To be more clear:

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X a female Hindu acquired property 'A' under Settlement Deed in lieu of

maintenance. She also acquired property B° from her maternal uncle under a will
out of love and affection conferring on her a limited estate which she could enjoy
during her lifetime and on her death to revert to B.

Pankaja
**********

FPankajaa
aja

prof.
pro

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Family Law II Lectures

FAMILY LAW II - CASE ANALYSIS AND SUM UP

LECTURES 3, 4 & 5 (3 CASES)

1. Ganduri Koteswaramma & Anr v. Chakri Yenadi & Anr (2011) 9 SCC 788
2. Prakash v. Phulavati (2015 SCC Online SC 1114) and
3. Danamma @ Suman Surpur v. Amar (AIR 2018 SC 721)

These three cases given in your case material discuss on one significant issue:

Whether Section 6 of Hindu Succession Act as amended in 2005 has Prospective or

retrospective operation?

General introduction:

One of the major changes introduced in 2005 in Hindu succession Act is that daughters have
right by birth in the joint family property on par with sons and they are also coparceners with
all incidents of coparcenary. It is a radical departure from the Shastric Hindu law that only male
members of a joint family up to four generations, connected to last male holder, have the
privilege of being coparceners having right by birth in the coparcenary property. S.6 (1)
provides that “on and from the commencement of this Act, a daughter of a coparcener shall

(a) by birth become a coparcener in her own right in the same manner as the son;

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

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son”.

..... Provided that nothing contained in this sub-section shall affect or invalidate any disposition
or any alienation including any partition which had taken place before the 20 th day of December
2004.” It has been reiterated in S.6(5) also.

This statutory declaration provides for parity of rights among male and female members of a
joint family on and from Sep 9 2005. In Proviso there is a reference to back date. It has raised
certain issues whether the amended section has prospective or retrospective operation. What
are the conditions to be fulfilled to get the benefit of the newly amended provision – became
the subject matter of judicial scrutiny in many cases.

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There are 3 cases given in your case material on this issue.

1. Ganduri Koteswaramma & Anr v. Chakri Yenadi & Anr (2011) 9 SCC 788
2. Prakash v. Phulavati (2015 SCC Online SC 1114) and
3. Danamma @ Suman Surpur v. Amar (AIR 2018 SC 721)

GANDURI KOTESWARAMMA V. CHAKRI YENADI

(2011) 9 SCC 788

Facts:

A Hindu joint family consisting of father, two sons and two daughters had coparcenary
properties. Son filed a suit for partition against father and his brother. Pending suit, father died
in 1993 and a preliminary decree was passed in 1999 and subsequently an amended preliminary
decree was passed in 2003, declaring his share. Pending final decree, the amendment came in
2005 declaring that the daughter shall by birth become a coparcener in the same manner as son.
So the sisters (Ganduri Koteswaramma and her sister) also claimed a share in the coparcenary
property and asked for reopening of the partition.

Son relied on S.6 (5) which says that nothing contained in S.6 shall apply to a partition which
has been effected before the 20th day of Dec 2004. Explanation sys that ‘Partition means any
partition made by execution of a deed of partition duly registered under the Registration Act or
partition effected by a decree of a court’. He contended that as preliminary decree has been
passed by the court determining the sons share in the coparcenary property before the statutory
date 20.12.2004, daughters could not ask for reopening of partition.

Issue: Whether the preliminary decree passed by the court for partition on 27-9-2003 is covered
under the above provision.

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Whether daughters can ask for reopening of the partition when a preliminary decree has already
been passed by the court?

The Trial court allowed the plea of daughters. On appeal by the sons, the High court reversed
it. Appeal before the Supreme Court by the daughters.

Supreme Court’s decision and reasoning for the decision:

In the present case admittedly, partition has not been effected before 20-12-2004 by a final
decree of the court. The only stage that has reached in the suit for partition is the determinations
of shares vide preliminary decree and the receipt of the Commission’s report. A preliminary
decree determines the rights and interests of the parties. The suit for partition is not disposed
of by passing a preliminary Decree. The partition is not complete, unless and until the final
decree is passed and the coparceners are put in possession. If, in the interregnum, events and
supervening circumstances occur necessitating change in shares, there is no impediment for the
court to amend the preliminary decree or pass another preliminary decree re-determining the
rights and interests having regard to the changed situation.

Already the matter was considered by the apex court in Sai Reddy and Phoolchand cases. Sai
Reddy case was an identical case after Hindu Succession (A.P Amendment) Act 1986 was
passed. In that case it was held that unless and until the final decree is passed partition is not
complete. The partition that the legislature has in mind in the amendment is undoubtedly a
partition completed in all respects. It cannot be equated with the rule that severance of status
can be effected by mere communication. Unless a partition is effected by metes and bounds,
the daughters cannot be deprived of the benefits conferred by the Act. They can ask for
reopening of the partition. Since the legislation is beneficial and placed on the statute book
with an avowed object of benefitting women which is a vulnerable section of the society in all
its stratas, it is necessary to give a liberal effect to it. (See para 18)

In Phoolchand case, the Supreme Court has stated that a suit for partition continues after the
passing of the preliminary decree and the proceedings in the suit gets extinguished only on
passing of the final decree. (See para 20)

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In the present case the apex court allowed the appeal of the daughters and held that they were
entitled to re-allotment of shares in the coparcenary property along with their brothers even if
preliminary decree was passed.

Note: In this case the court has not looked into the date of death of the father for deciding
daughter’s right. The substantial focus was on the conditions for a valid partition by a court
decree.

Highlighting paras: 3, 4, 5 & 8, 14-20 & 23

*******

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PRAKASH V. PHULAVATI

(2015 SCC Online SC 1114)

Facts:

Father died in 1988 and daughter Phulavati filed a suit for partition in 1992 in the property
inherited by her as class I heir. Pending the suit, 2005 amendment came declaring daughters as
coparceners. Phulavati claimed share in the coparcenary property also. Substantiating the claim
on the basis of gender justice and Law Commission’s report she pleaded that the amendment
being a piece of social legislation to remove discrimination against women in the light of 174
the report of the Law Commission, the amendment should be read as being retrospective and
even if father had died before the amendment, daughters should get the benefit of the
amendment. Karnataka High Court upheld the plea of retrospectivity and decided in favour of
the daughters. So an appeal was preferred by the sons before Supreme Court.

The sons, relying on a judgment of Karnataka High court in Prithvi Raj v. Neelamma contended
that as their father had died prior to the commencement of the amendment Act, the new
provision would not apply and only the law applicable on the date of opening of succession
was to apply.

The issue was:

Whether s. 6 (1) is prospective or retrospective in operation?

Decision:

Supreme Court, after considering the arguments of both sides, and going through the
precedents, held that S.6(1) shall have prospective effect and rights under the new amendment
are applicable to living daughters of living fathers as on 9-9-2005 irrespective of when such
daughters are born.

On the death of the father in 1988, notional partition had taken place as per S.6 of Hindu
Succession Act 1956 and shares were created and vested on the parties according to then
existing law. The vested rights shall not be taken away by a subsequent amendment in the
absence of express provision.

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The wording “on and from the commencement of this Act” makes it clear that the amended
provision is applicable only from 9 September 2005 and hence daughter was not entitled to
share in the coparcenary property as vested rights could not be disturbed.

For a daughter to be eligible to be a coparcener three conditions are to be satisfied.

1. The daughter should be alive as on coming into force of this amendment 9 September
2005 or the daughter to be born after the said date.
2. If the father had died prior to the commencement of the amendment Act, the daughters
will not get the benefit of the new provision.
3. For a daughter to be eligible to be a coparcener and claim a share in the coparcenary
property, no partition of the joint family property should have occurred after 20
December 2004. Partition means partition by registered document or by a decree from
court of law.

The court further observed that it is based on the plain language of the statute and the
established principle that in the absence of express provision or implied intention to the
contrary, an amendment dealing with a substantive right is prospective and not retrospective.
Object of giving finality to transaction prior to 20 Dec 2004 is not to make S.6(1) retrospective
but to prevent fake transactions to deprive the daughters to their legitimate shares. S.6 (1) is
prospective. Even a social legislation cannot be given retrospective effect unless it is so
provided for or intended by the legislature. Hence no other interpretation was possible.

The court further observed that the view taken in this case is consistent with earlier decisions
rendered in Ganduri Koteswaramma, Surendra, Sai Reddy and Badri Narayan Shankar
Bandari.

Highlighting paras: 1, 4, 7, 11, 14, 15, 17, 18, 22 & 23

**********

DANAMMA @ SUMAN SURPUR V. AMAR

(AIR 2018 SC 721)

General introduction:

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Danamma’s case was peculiar from the previous two cases.

Facts:

In this case father died in 2001 leaving behind him his widow, two daughters and two sons.
One of the son’s son (Amar) filed a suit for partition in 2002 claiming a share in the coparcenary
property. Pending the suit, 2005 amendment came. The daughters (Dhanamma and another)
claimed a share in the coparcenary property by virtue of S.6 of 2005 Act which was countered
by Amar on the ground that since they were born prior to the Hindu Succession Act 1956, they
could not be treated as coparceners. The trial court agreed that the daughters had no right to the
family property. The daughters appealed until the case reached the Supreme Court.

On 1 February 2018, the Supreme Court reversed the lower courts’ rulings, holding that the
2005 legislative amendment decisively settled the matter in favour of the appellants (daughters)
and this position was already settled by SC in Prakash v.Phulavati (2015) that the daughters to
have claim should be alive as on 9-9-2005. In this case since daughters are alive as on 9-9-
2005, even if they are born before 1956, they have a claim in the family property.

The Court went further. In the present case, suit for partition was filed in the year 2002. During
the pendency of this suit, the amendment came into force. As the partition decree was awarded
by the trial court only in the year 2007, until final decree is passed, subsequent events will have
to be taken into consideration, as held in Gunduri Koteswaramma (2011), which the lower
courts have failed to take into account.

Hence the Court held that each of the daughters is entitled to one-fifth of the family property
as Savadi had left behind a widow, two sons, and two daughters.

The Court noted that the law relating to a joint Hindu family has undergone unprecedented
changes. The amendment was passed in the interest of gender equality under the law, and
daughters now have the same rights as sons with respect to commonly owned property
partitioned after the amendment to the Act, regardless of when they were born. This
observation was not in consonance of the Phulavati’s observation where the same SC observed
that contention of the daughters/respondents that the amendment should be read as
retrospective being a piece of social legislation cannot be accepted. Even a social legislation
cannot be given a retrospective effect unless so provided for or intended by the legislature.

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Comment:

In Prakash v.Phulavati, rights under S.6 of 2005 are applicable to living daughters of living
coparceners as on 9-9-2005. But in the present case living daughters of pre-deceased
coparcerner in 2001 are given the benefit.

In other words, according to Phulavati, if the coparcener (father) had passed away prior to
09.09.2005, the living daughter of the coparcener would have no right to coparcenary property.
Phulavati’s judgment ensured certainty in law and in proceedings before the courts. If a
daughter made a claim for partition of joint family property, her father ought to be alive as of
09.09.2005; if not, she was not entitled to any share in the coparcenary property.

In Dhanamma’s case the Supreme Court considered Phulavati’s case and agreed with the
findings and held it as ‘authoritative precedent’ (in para 22 of the judgment), yet applied a
different principle laid down in Gunduri Koteswaramma to grant relief to the daughters. In
doing so, it is submitted that, the Supreme Court lost sight of the most important finding
in Phulavati’s case, that living daughters are entitled to the benefit of the Amendment Act only
if father was alive as on 09.09.2005.

Now the possible inferences through Phulavati and Dhanamma are:

(i) If the father had passed away prior to 09.09.2005 and a prior suit for partition filed
by a male coparcener is not finally decreed as on 9-9-2005 (though preliminary
decree was passed), the daughter will be entitled to claim a share in the partition by
virtue of Danamma’s case, as the phrase ‘a partition effected by the court’ in S.6(5)
means only a partition effected by the final decree of the court, in terms of Ganduri
Koteswaramma’s decision. (although not entitled in terms of Phulavati’s case)

(ii) If the father had passed away prior to 09.09.2005 and no suit for partition is pending,
the daughter will not be entitled to claim partition as she will be covered
by Phulavati’s case and therefore will not be entitled to a share.

In Phulavati’s case, the Supreme Court has made the crystallization of the right to a female
coparcener prospective. Danamma’s case creates a retrospective effect - an unnecessary
dichotomy in the law which requires resolution by a larger Bench. So the right of the daughter

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post 2005 depends on her living status, date of the death of father and pendency of suit for
partition by a male coparcener of the family.

********

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FAMILY LAW II LECTURES

LECTURE 7

Revanasiddappa &Anr v. Mallikarjun & Ors (2011) 11 SCC 1

This is a case of void marriage under section 11 of Hindu Marriage Act, 1955.
The children of void marriage are conferred statutory legitimacy under section 16
of HMA 1955. The extent of legitimacy is the issue for discussion.

‘Whether the children born from a void marriage are to be treated at par with
coparceners and whether they are also entitled to the joint family properties of
their father?’

The case is of significance that there is a shift in the judicial approach in

interpreting law relating to inheritance rights of the children of void marriages
and the apex court expressed that it was constrained to differ from its earlier three
important decisions on the subject.

Facts of the case:

S1
W1
S2
Hindu
S3
W2
S4

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It was a case of a man having two wives, two children from his first marriage and
two children from his second wife whom he had married while the first marriage
was subsisting.

His two children through his first wife along with their mother (Plaintiffs 1 to 3)
had filed a suit for partition against their father, his two children from his second
wife and his second wife (Defendants 1 to 4).

S1, S2 & W1 Vs. F, S3, S4 & W2

They claimed 1/4th share each with respect to ancestral properties in the hands of
the first defendant. The first defendant contended that all the properties except
one were his self acquired properties, that an oral partition had already taken place
earlier and that the second wife was the legally wedded wife and not the first
woman and hence the plaintiffs had no right to claim partition.

The trial court through its judgment dated 28.7.2005 held that the plaintiff no.3
was the legally wedded wife, the second marriage was void as being conducted
while the first marriage was subsisting and the husband had not divorced his first
wife. The Court further found that the properties were not self acquired properties
but ancestral properties and since he could not prove the oral partition, the
plaintiffs 1 to 3 (first wife and her two children) were entitled to 1/4 th share each
in all the suit properties along with father. The trial court decreed the suit.

The case went through first appeal, second appeal to Karnataka High court and
then reached the Supreme Court.

The first appellate court reversed the decree and held that the children of void
marriage were to be treated at par with coparceners and S3 and S4 were entitled
to 1/6 share each.

The High Court of Karnataka reversed it and held that Section 16(3) of the Hindu
Marriage Act, 1956 makes it clear that illegitimate children had only the right to

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the property of their parents and no one else. Accordingly S1, S2 and father would
be entitled to 1/3rd share each in the suit properties as coparceners. S3 and S4
were entitled to the separate property of their father by way of intestacy.

The Apex court re-examined the question ‘Whether illegitimate children are
entitled to a share in the coparcenary property or whether their right is limited
only to the self-acquired property of their parents under Section 16(3) of the
Hindu Marriage Act?’ (para11)

Observations of the Apex Court:

The same issue had already been examined and decided by the Apex Court at
various point of time in Jinia Keotin & Ors (2003), Neelamma & Ors (2006) and
Bharatha Matha & Anr (2010) that “in the light of an express mandate of the
legislature itself, there is no room for according upon such children who but
for Section 16 would have been branded as illegitimate any further rights than
envisaged therein by resorting to any presumptive or inferential process of
reasoning, having recourse to the mere object or purpose of enacting Section
16 of the Act. Any attempt to do so would amount to doing not only violence to
the provision specifically engrafted in sub-section (3) of Section 16 of the Act but
also would attempt to court re-legislating on the subject under the guise of
interpretation, against even the will expressed in the enactment itself. The
illegitimate children of Section 16(3) of the Act would only be entitled to a share
in the separate property of the parents and not to the joint Hindu family property”.

In the present case, referring to the above mentioned decisions, the Court
expressed that such a narrow interpretation of S.16 could not be accepted as
correct (paras 22-24) for the following reasons.

“The legislature has used the word "property" in Section 16(3) and is silent on
whether such property is meant to be ancestral or self-acquired....Clauses (1) and

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(2) of Section 16 expressly declare that such children shall be legitimate. If they
have been declared legitimate, then they cannot be discriminated against and they
will be at par with other legitimate children, and be entitled to all the rights in the
property of their parents, both self-acquired and ancestral. The prohibition
contained in Section 16(3) will apply to such children with respect to property of
any person other than their parents. (Para 26)

With changing social norms of legitimacy in every society, including ours, what
was illegitimate in the past may be legitimate today. The concept of legitimacy
stems from social consensus, in the shaping of which various social groups play
a vital role. Very often a dominant group loses its primacy over other groups in
view of ever changing socio-economic scenario and the consequential
vicissitudes in human relationship. Law takes its own time to articulate such
social changes through a process of amendment. That is why in a changing society
law cannot afford to remain static. If one looks at the history of development of
Hindu Law it will be clear that it was never static and has changed from time to
time to meet the challenges of the changing social pattern in different time.” (Para
27)

Looking into its own decision in Parayan Kalliani Amma case (1996) that Hindu
Marriage Act, a beneficial legislation, has to be interpreted in a manner which
advances the object of the legislation, conferment of social status of legitimacy
on innocent children is the obvious purpose of Section 16 in the present case.
(para 29) Therefore, the interpretation given to Section 16(3) by this Court in
Jinia Keotin, Neelamma and Bharatha Matha needs to be reconsidered.(Para 32)

“This is a law to advance the socially beneficial purpose of removing the stigma
of illegitimacy on such children who are as innocent as any other children.” (Para
33)

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“We are constrained to differ from the interpretation of Section 16(3) rendered
by this Court in Jinia Keotin and, thereafter, in Neelamma and Bharatha Matha
in view of the constitutional values enshrined in the preamble of our Constitution
which focuses on the concept of equality of status and opportunity and also on
individual dignity.” (Para 36)

“In doing so, the Court must have regard to the equity of the Statute and the
principles voiced under Part IV of the Constitution, namely, the Directive
Principles of State Policy. (Para 37) Going by this principle, we are of the opinion
that Article 39 (f) must be kept in mind by the Court while interpreting the
provision of Section 16(3) of Hindu Marriage Act that children are given
opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment." (Para 38)

“Apart from Article 39(f), Article 300A also comes into play while interpreting
the concept of property rights. No person shall be deprived of his property save
by authority of law.” (Para 39

“In the instant case, Section 16(3) as amended does not impose any restriction on
the property right of such children except limiting it to the property of their
parents. Therefore, such children will have a right to whatever becomes the
property of their parents whether self acquired or ancestral.” (Para 41)

Concluding the judgment, the court observed “We are, therefore, of the opinion
that the matter should be reconsidered by a larger Bench and for that purpose the
records of the case be placed before the Hon'ble Chief Justice of India for
constitution of a larger Bench.” (Para 43)

Note: The case has not been placed before the larger Bench as on date.

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******

Assignment:

Prepare a case comment on the above case.

******

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FAMILY LAW II LECTURES

LECTURE 8 & 9

DEVOLUTION OF INTEREST IN THE MITAKSHARA

COPARCENARY U/ HSA 1956

How the undivided interest of a Mitakshara Coparcener becomes his

divided interest

General introduction:

One of the significant changes brought into the scheme of succession in 1956 was
introduction of S.6. It has created a new concept called Notional partition and
evolved a formula for converting the undivided interest of a Mitakshara
coparcener into his separate interest for the purpose of intestate or testamentary
succession.

According to Shastric Hindu Law, coparcenary property devolves upon

coparceners only under the rule of survivorship and females and non-coparceners
could not inherit it. For example, if a joint family consists of three brothers A,B,&
C, on the death of A, in the absence of his own son, his undivided interest in the
coparcenary property would devolve on his surviving brothers, despite the fact
that A had his wife at the time of his death.

In 1937, by virtue of Hindu Women’s right to property Act, which is considered

to be the first legislative initiative to confer inheritance right to certain women,
the absolute rule of survivorship was replaced with the concept of limited estate.
Accordingly, in the earlier mentioned situation, on A’s death, his undivided
interest in the coparcenary property devolved upon his widow and she would
enjoy the property during her life time with exceptional conditions for alienating
the same and after her death, it would revert back to B & C, who were called
reversioners. Thus the absolute rule of survivorship, was diluted to some extent
and it got suspended during the life time of limited estate holder and then
resumed. It was not abolished but was kept suspended.

When Hindu Succession Act was passed in 1956, the concept of limited estate
was abolished u/S.14. S.6 was introduced with a new legal fiction called theory
of notional partition. According to it, if a Male Hindu died as an undivided
member, the law presumed that a partition has taken place just before his death
among surviving coparceners and he died as a divided member. His divided

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interest would be inherited by his class I heirs as per S. 8 of HSA which consisted
of his mother, widow, son and daughter, branch of his predeceased son, the
branch of his pre deceased son of a predeceased son, and the branch of his
predeceased daughter.

Thus S.6 has given a formula by which an undivided interest of a Hindu in his
coparcenary property got converted into his separate interest to be available for
class I heirs to succeed.

In this context, Gurupad v. Hira Bai was a land mark case in which the Supreme
Court has applied S.6 to the given facts and the decision continued to be operating
as precedent till 2016, when the Apex court in Uttam v. Soubagh Singh perceived
S.6 differently. It was a radical departure from the binding precedent and invited
comments from legal fraternity that it was a flawed judgment, trying to re-script
the law.

In the background of above discussion, there are two cases in your case material.

1. Gurupad Kandappa Magdum v. Hira Bai Kandappa Magdum (Shortly

called Gurupad v. Hira Bai) &
2. Uttam v.Soubhag Singh

Gurupad v. Hira Bai

(AIR 1978 SC 1239)

Facts of the Case:

It was a case on notional partition as per S.6 of HSA 1956.

Kandappa died in 1960 leaving him surviving his wife Hira Bai, two sons
Gurupad and Shiv Pad and three daughters. In 1962, Hira Bai filed a suit for and
separate possession of 7/24 share in the ancestral property left by her deceased
husband. (In non-dravida school, there is a practice, recognised by law, that
whenever a partition is made between father and sons, mother is entitled to a
share. In this case the family belonged to Maharashtra school which is a non-
dravida category)

She calculated her share as follows:

As per S. 6 of HSA, just before the death of a male Hindu, a notional partition
has taken place between father and his two sons. So Kandappa got divided from

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his two sons who were coparceners and he got 1/4 share, wife and two sons also
got 1/4 each. It was his divided interest in which all class I heirs would succeed
to his intestacy. His 1/4 share, when inherited by wife, two sons and three
daughters, wife would get 1/24. In total she would get 1/4 + 1/24 = 7/24.

Gurupad refused to give his mother 7/24 contending that it was not ancestral
property and a partition had already taken place during life time of Kandappa.
Even otherwise, the practice of giving mother a share at the time of partition
between father and sons would apply only in case of real partition and not in the
case of notional partition.

The Trial court granted a decree limiting mother’s share to 1/24 only as it was not
a real partition and only a notional partition. But the High Court allowed Hira
Bai’s claim of 7/24 and held that the widow’s share must be ascertained by adding
the share to which she is entitled at a notional partition/real partition during her
husband’s life time and the share she would get in her husband’s interest upon his
death as class I heir in the intestacy.

Gurupad filed an appeal before the SC. The apex court examining the objective
of S.6 and considering the case already decided on a similar issue in Rangubai
Lalji confirmed the High Court’s view and quoting Mulla’s Hindu Law, it
observed:

Explanation I to S.6 contains a formula for determining the share of the deceased
creates a fiction by providing that the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to
him if a partition had taken place immediately before his death. (para 9)

In order to ascertain the share of the heirs in the property of a deceased

coparcener, it is necessary as the very first step, to ascertain the separate share of
the deceased in the coparcenary property. By doing that alone, one can determine
the extent of the claimant’s share. (para 13)

We see no justification for limiting her share to 1/24, ignoring her 1/4 share. (para
11)

The fiction created by law has to be given its due and full effect. (para 12)

All the consequences which flow from real partition have to be logically worked
out even in notional partition. The inevitable corollary of this position is that the
heir will get his or her share in the interest which the deceased had in the

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coparcenary property at the time of his death, in addition to the share which he or
she received or must be deemed to have received in the notional partition.
(para13)

Hence Hira Bai was entitled to 7/24 share in her deceased husband’s property.
The above decision of the court has been reaffirmed by the courts in subsequent
cases wherever the male Hindu died as an undivided member leaving behind his
heirs to succeed to his intestacy. It has become a good precedent and considered
to be the landmark judgment of the apex court clarifying the application of S.6.

*******

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Uttam v.Soubhag Singh

(2016) 4 SCC 68

This case is a judicial deviation from the well established precedent laid down in
Gurupad v. Hira Bai. The application of S.6 to convert the undivided interest of
a Mitakshara Hindu into his separate interest has missed out an important point.

The facts were:

One Jagannath Singh died in 1973 leaving behind his widow, four sons. Uttam
was born in 1977 to Mohan Singh who was the eldest son of Jagannath Singh.
After some years Uttam filed a suit for partition against his father, and his three
paternal uncles claiming 1/8 share on the footing that it was ancestral property
and as a coparcener, he had a right by birth in it.

The trial court decreed the suit of Uttam. But the first appellate court and the
second appellate court held that when Jagannath Singh died, his share would have
to be distributed to all the class I heirs (his widow and four sons equally)
according to S.8. Since Uttam had no right while his father was alive, he could
not ask for partition. Once S.8 steps in, the joint family property has to be divided
in accordance with the rules of intestacy and not by survivorship. (para 3)

Uttam challenged the decision before the Supreme Court.

The arguments put forth by Uttam were:

Since it was ancestral property, Uttam as a coparcener, had every right to sue for
partition even while the father was alive. S.8 would apply only in case of intestacy
and S. 6 would apply to work out the share of a coparcener. S.6 and 8 have to be
read harmoniously as a result of which the status of joint family property which
is recognised under S.6 cannot be taken away by S.8 on the death of his
grandfather in 1973. (para 6) He relied upon Gurupad V. Hira Bai in support of
his claim.

The arguments put forth by the defendants were:

As Jagannath Singh had died in 1973, and Uttam was born in 1977 only, no share
could be allotted to him. On the death of Jagannath Singh, by application of S.8,
the property in the hands of his father and his paternal uncles is no more a joint
family property. Uttam could not claim any share neither 1/8 in the whole
property nor 1/2 in the father’s property. They relied on Chander Sen’s judgment.

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Decision by the Supreme Court:

The apex court, after dealing with the proviso and explanation 1 of S.6 of HSA
and other precedents, arrived at a decision that: (paras 20 & 21)

• S. 6 says: When a male Hindu dies, having at the time of his death an interst
in Mitakshara coparcenery property, his interest in the property will
devolve by survivorship upon the surviving members of the coparcenary.
• Proviso says: ...... If such a male Hindu had died leaving behind a female
relative specified in class I of the schedule or a male relative who claims
through such female relative, then the interest of the deceased in the
coparcenary property would devolve by testamentary or intestate
succession, and by survivorship.
• Hence on the application of S.8 or on the application of proviso to s.6 such
property would devolve only by intestacy and not by survivorship.
• After joint Hindu family property has been distributed in accordance with
s. 8 on principles of intestacy, the joint family property in the hands of
various persons who have succeeded to it, hold it as tenants in common
and not as joint tenants.
• Applying these legal principles to the facts of the case, it is clear that on
the death of Jagannath singh in 1973, the joint family property which was
ancestral in the hands of Jagannath Singh and other coparceners, devolved
by succession u/s.8 of the Act. This being the case, the ancestral property
ceased to be joint family property and Uttam, born in 1977 could not claim
a share as a coparcener. His suit for partition would not be maintainable.

Comments:

It is humbly submitted that the court has failed to apply notional partition
as a first stage when Jagannath Singh died and directly applied s.8 which
defeated the legitimate claim of Uttam.

Recognising the fact that the property in the hands of Jagannath Singh was
ancestral, the court treated it as his exclusive property and directly applied
s.8. The entire property was considered as subject matter of intestacy. It is
totally a blatant and incorrect approach of the court. The relevancy of
explanation 1 to s.6 does not arise at all if such an approach is taken.

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It forfeited the share of Uttam as coparcener. Even though he was born

after the death of his grand father, the moment he was born he became a
coparcener with his father in the ancestral property that came to the share
of Mohan Singh by survivorship.

The proviso to S.6 also provides that if such a male Hindu had died leaving
behind a female relative specified in class I of the schedule or a male
relative who claims through such female relative, then the interest of the
deceased in the coparcenary property would devolve by testamentary or
intestate succession, and by survivorship. Here legislature has specifically
used the words, the interest of the deceased that means, only his divided
interest after applying the notional partition.

The correct proposition would be:

On Jagannath Singh’s death, a partition was deemed to have been made

between himself and his four sons. Applying the principle prevailing
among non-dravida school, considering mother as a share holder, each was
entitled to 1/6 share in the ancestral property by way of survivorship. Now
his 1/6 share, as divided interest, should devolve on his widow and four
sons by virtue of s.8 and each would have got 1/30 each in intestacy.
Mohan Singh should have got 1/6 as ancestral and 1/30 as class I heir.
Uttam is entitled to claim ½ share in his father’s 1/6 interest as a coparcener
within his branch. Mohan Singh’s share of 1/30 was his separate share
which he inherited as class I heir, in which Uttam could not claim as per
the decision in Chandra Sen’s case.

Additional reading suggested:

Pl read the case comment by Prof. Poonam Pradhan Saxena for further
understanding. It was remarked “In view of clear legislative provisions, the
decision is extremely unfortunate and bears a lack of understanding of the
substantive law relating to concept of coparcenary; of the differentiation
between ancestral and separate property; its acquisition and devolution; the

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concept of notional partition and above all the twisted application of

intestate succession to the total ancestral property without affecting
notional partition. ... This incorrect rewriting of the statutory law governing
coparcenary property and intestate succession through incorrect
interpretation is most unfortunate. .... A clear illustration of an incorrect or
a bad precedent, with an uncertain future correctional eventuality.” 1

******

1Prof. Poonam Pradhan saxena, “Judicial Re-scripting of legislatation governoing devolution of coparcenary
property and succession under Hindu Law” in the journal of ILI (2016) pp.337-349

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FAMILY LAW II - CASE ANALYSIS AND SUM UPS

LECTURES 10 & 11

TOPIC: SUCCESSION TO THE ABSOLUTE PROPERTIES OF A

HINDU FEMALE DYING INTESTATE UNDER HINDU SUCCESSION
ACT 1956

(When a female Hindu dies intestate, who will succeed to her properties?
What are the rules governing succession to a female Hindu?)

Hindu Succession Act 1956 prescribes different schemes of succession to a male

and a female Hindu. Succession to Male Hindu is governed by Ss.8-13 and
succession to female Hindu is governed by Ss.15 & 16. The former provides for
categories of heirs and rules of succession and the latter prescribes the manner of
distribution. However the disqualifications attached to an heir to succeed,
provided under Ss.24-26 are commonly applicable to heirs of both.

A Hindu female is capable of holding, as an absolute owner, properties of various

kinds.

1. Property inherited from her parents; (as class I heir)

2. Property inherited from her husband /father in law (as widow/ widowed
Daughter in law)
3. Any other property commonly called as her general property (Her salary
and self acquisitions; Stridhan; Property inherited from any person other
than her husband/father in law/parents; Property got under will or gift from
any person, even from her own father or mother etc.)

S.15 provides general rules of succession in the case of female Hindus. It has 2
clauses - 15(1) and 15(2).

Part I - Application of S.15 (1)

S.15(1): The property of a female Hindu dying intestate shall devolve .....

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

(b) Secondly upon the heirs of her husband

(c) Thirdly upon the mother and father

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(d) Fourthly upon the heirs of the father and

(e) Fifthly upon the heirs of the mother

Many things are to be observed in this clause.

1. In case of succession to female Hindu, five entries are mentioned unlike in

the case of male Hindu as class I, Class II, Agnates and Cognates

In entry (a), there are five heirs. (i) son (ii) daughter (iii) son and daughter
of pre-deceased son (iv) son and daughter of pre-deceased daughter and (v)
husband. Son and daughter include biological or adopted, legitimate or
illegitimate, children of void or annulled voidable marriage. The marital
status of the proposita or validity of her marriage is irrelevant. However
step children are not included in this entry. In the absence of entry (a) they
will be inheriting as heirs of husband mentioned in the next entry. Children
of pre-deceased son or daughter include biological or adopted. Illegitimate
children, step children, children of void and annulled voidable marriage are
not included in this category. They do not extend beyond the children of
predeceased son and daughter, unlike in the case of succession to male
Hindu. (pl.refer class I category) It excludes great grand children. Husband
means the lawfully wedded husband of the proposita at the time of her
death.

2. In the absence of entry (a) the property would devolve upon heirs of the
husband as mentioned in entry (b). Going by the same analogy, here also
the husband means the lawfully wedded husband of the proposita at the
time of her death. It is presumed as if the property belonged to him and in
his absence, his heirs (class I, class II, Agnates, cognates as per rule) will
inherit.
3. In entry (c) mother and father are equally placed unlike in the case of
succession to male Hindu. Mother and father means biological or adoptive
parents but not step parents. Her own blood relations are relegated to a
farther place and the heirs of her husband are given priority.
4. In entry (d) & (e) even among heirs of her parents, heirs of her father are
preferred to heirs of her mother.

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Illustrations:
1. A Hindu woman died leaving her husband (H2), a son (S1) from her first
marriage with H1 which ended in divorce and a daughter (D) from a man
(M) with whom she had relationship, a son (S2) from her husband H2 and
S3, who is the son of H2 from his first marriage with X who died when S3
was born. Distribute.

Ans:

• In the above case S1 and S2 and D are sons and daughter of her own
– S1 and S2 her legitimate sons and D her illegitimate daughter.
Illegitimacy is not a bar to succeed to mother’s property.
• S3 is her step son. (Son does not include step son and hence will not
inherit)
• Hence according to S.15(1)(a) S1, S2 and D and her husband H2 will
inherit her property equally.

2. A Hindu woman died leaving behind her widowed daughter-in-law (widow

of her predeceased son S), son and daughter of predeceased son (SS and
SD) and son and daughter of a predeceased daughter of a pre deceased
daughter (SDD and DDD).

A. In the above given case who will inherit?

B. What would be your answer if SS was born before his father (S)
converted to Islam and SD was born after his conversion?

Ans to A.
• According to S.15 (1) (a) SS and SD will inherit and others will not.
• Widow of a pre deceased son is not a heir to mother-in-law unlike
in the case of succession to male Hindu.

Ans to B.
• According to S.15(1)(a) SS alone will inherit.
• SD will not inherit because of the disqualification prescribed u/ S.26
of HSA which says – Convert’s descendants are not entitled to
inherit to the property of the propositus. (Pl.refer to that section)

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3. A female Hindu died intestate leaving behind her self-acquired properties

and her step son and her brother. Who will inherit?

Ans:
• Here, it is a case of absence of clause (a) heirs.
• The property is her separate property.
• Applying s.15 (1)......
• In the absence of her children and husband, the property will be
inherited by heirs of husband. (clause b)
• Her step son comes under the category of heir of husband.
• Her brother comes as heir of her father.(clause d)
• So her step son is the preferred heir to her brother. He will inherit.

Part II - Application of S.15 (2)

S.15 (2) is considered to be an exception to S.15(1).

S.15 (2) says: Not withstanding anything contained in sub section (1) –

(a) Any property inherited by a female Hindu from her father or mother
shall devolve, in the absence of any son or daughter of the deceased
(including the children of any pre deceased son or daughter) not upon the
heirs referred to in sub section (1), but upon the heirs of the father; and

(b) Any property inherited by a female Hindu from her husband or father
in law shall devolve, in the absence of any son or daughter of the deceased
(including the children of any pre deceased son or daughter) not upon the
heirs referred to in sub section (1), but upon the heirs of the husband.

S.15 (2) deals with a situation when:

• The female Hindu dies without any child or children of pre-deceased

children and
• She had inherited the property either from her father or mother or
husband or father in law
• Where she had inherited property from her parents and dies
issueless, it would go back to the heirs of her father and
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• Where she had inherited property from her husband or fathe-in-law,

and dies issueless, it would revert back to heirs of husband.
• That means the source of the property is very much relevant here.
• The object of S.15 (2) is to ensure that the property left by a Hindu
female does not lose the real source from where she inherited it. It
should not go to any other branch.

Note:

• S.15(2) does not apply to a situation where a woman dies with child
of her own or child of her pre-deceased child.
• S.15(2) does not apply to a situation where the woman had inherited
from any person other than her parents, husband or father-in-law.
(for ex: property inherited from her brother but died issueless)
• S.15 (2) does not apply to a situation where the woman had acquired
properties through will or testament. (for ex: Her father gifted her
some property or she got it under a will and died issueless)
• In these situations S.15 (1) will apply.
• In short, if she dies leaving behind her children, the source of
property is immaterial. Whatever is the nature of the property
S.15(1)(a) will apply. If she dies without issue, then S15(2) (a) or
15(2)(b) will apply as the case may be. Those properties of her,
which do not fall either u/15(2) (a) or 15(2) (b) will automatically
fall under 15(1) despite the fact that she had no child or child of
predeceased child at the time of her death.

Illustrations:

1. A Hindu woman died intestate leaving behind a house inherited from

her father and a piece of land inherited from her husband. She is
survived by her brother and her husband’s brother. Who will inherit
which property?

Ans:

• This is a case where she died without any child.

• The properties are inherited from father and husband.
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• Hence S.15 (2) will apply.

• S.15 (2) (a) will apply to the house inherited from her father. It will
go to her brother, as heir of her father.
• S.15 (2) (b) will apply to the piece of land inherited from her
husband. It will go to her husband’s brother as heir of her husband.

2. A Hindu woman died intestate leaving behind a house inherited from

her father and a piece of land inherited from her husband. She is
survived by her mother, brother, her husband’s mother and his brother.
Who will inherit which property?

Observe the difference between the two illustrations.

• Here in this case, with regard to house inherited from her father,
her mother and her brother are heirs of father.
• But among these two heirs, mother is class I heir and her brother
is class II heir of father.
• According to the rules of succession to a male Hindu, class I heir
will exclude class II heir.
• Hence mother will only inherit that property and not her brother.
• Similarly, with regard to land inherited from her husband, her
husband’s heirs will inherit. Husband’s mother is Class I heir
who will exclude husband’s brother who is class II heir.
• So her mother will inherit the house and her mother-in-law will
inherit land.

There are two cases given in your case material on S.15.

1. Om Prakash v. Radha Charan (S.15(1) applied) and
2. Bhagat Ram v. Teja Singh (S.15(2) applied)

Om Prakash v. Radha Charan

2009 (7) SCALE 51

Facts:

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One Narayani Devi was married to Dindayal Sharma in 1955.

Unfortunately she became a widow within three months of her marriage
and soon after her in laws drove her out from matrimonial home. She was
supported by her parents and was given education and she got an
employment. Her in-laws never bothered to care for her. She died as an
intestate in 1996 leaving behind lot of money in bank accounts, a huge sum
in her PF account and self acquired properties. When her mother applied
for succession certificate, her pre deceased husband’s sister’s son put forth
his claim as a legal heir to her properties and bank balances. As mother
died, Narayani’s brothers came on record as legal heirs to her sister’s
properties.

Issue:

Whether S.15 (1) or S.15 (2) would be applicable to the given case.

Judicial analysis:

The court has examined the case from legal and ethical perspectives.

It heard the arguments of her brothers that as she was driven out in times
of distress by her in laws and had not made any contribution towards her
education nor lent any support during her life time, S.15(2)(a) should be
made applicable.

The court also heard the arguments from her husband’s heirs who claimed
that as the properties were self acquired, S.15 (1) (b) should apply.

The court made the following observations:

• The properties of the deceased were self acquired and were not
inherited from her parents or from husband’s side.
• S.15 (2) (a) speaks that in the absence of children, properties
inherited from parent’s side shall devolve on the heirs of her
father.
• S.15(2) (b) speaks that in the absence of children, properties
inherited from husband shall devolve upon husband’s heirs.
• The law is silent with regard to self acquired properties of a
woman dying issueless.
• S.15(1) simply mentions as ‘the property of a female’ and does
not distinguish between separate and inherited property.

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• As exception is carved out in S.15 (2) with regard to inherited

property, all un-inherited property should come under S.15(1)
even if she dies as issueless.
• Hence S.15(1) will apply according to which the husband’s heirs
alone will be entitled to inherit Narayani’s separate properties.

The following observations are significant:

• This is a hard case involving moral aspects. The legal

claimants had not lent any support to the woman during her
life time.
• However it would not lead us to invoke different
interpretation of a statutory provision which is otherwise
impermissible. It is against the intention of the parliament.
• Sentiment or sympathy alone would not be a guiding factor in
determining the rights of the parties where the law is
otherwise clear.
• It is also to be observed that nothing prevented Narayani from
executing a will in favour of her brothers as they are her
separate properties.
• As she died intestate, S.15 (1) alone will prevail. Golden rule
of interpretation must be applied in this case.
• Anything that falls outside the scope of S.15(2) will come
within the fold of S.15(1).
• Every property of a female falls within S.15(1) except
inherited properties which falls under 15(2).
• Hence the properties will go to her husband’s heirs and not to
her brothers.

Case Comments:

It is an ironical judgment where law is applied in strict sense and justice is

not done to those who really cared for her. The properties passed onto the
hands of persons to whom justice would demand they should not possess.

Students are advised to prepare case comment on this decision.

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BHAGAT RAM V.TEJA SINGH

AIR 2002 SC 1

Brief Facts:

Shanti and Indra inherited properties from their mother. Shanti died as a
issueless widow and her share devolved on Indra according to S.15(2)(a)
as Indra was the heir of her father.

Indra entered into an agreement to sell the properties with Bhagat Ram. A
suit for specific performance was filed by Bhagat Ram.

Shanti’s pre-deceased husband’s brother, Teja Singh put up an adverse

claim for the property u/S.15(1)(b).

The question was – whether the case falls under S.15(2)(a) or 15(1)(b)?
To put it simply – after the death of Shanti, whether the property would
devolve on Indra according to S.15(2)(a) or on Shanti’s pre-deceased
husband’s brother according to S.15(1)(b)?

Teja Singh argued that when Shanti inherited the property from her mother
in 1951, she had only limited right over the property and by virtue of S.14
(1), she became the absolute owner of the property post 1956. Therefore
on her death, her property would be inherited by her legal heirs as set out
in S.15(1). (para 7)

Judicial history:

Trial court and the High court decided in favour of 15(1)(b) and the apex
court decided in favour of 15(2)(a).

It held that the property held by Shanti was the property inherited by her
from her mother and in the absence of any son or daughter including the
children of any predeceased son or daughter, S.15(2)(a) was the relevant
provision and Teja Singh had no right in the property left by Shanti and it
would go back and devolve on her sister Indra, who was her father’s heir.
(para 8)

It was further clarified that if the female had only limited right and later
acquired the full right, it would not in any way alter the rules of succession
given in sub-section (2) of S.15. (para 8)

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The court examined the cases relied on by the parties. Bajaya v. Gopikabai
(1978 SC) was a similar case but with different facts. S inherited property
from her husband and died issueless. It was held that as the interest in the
suit property was inherited by her from her husband, the property would
go to the heirs of the husband as per S.15(2)(b). (para 9)

In conclusion, in the present case, the court highlighted the legislative

history of S.15(2) to substantiate its decision. The Hindu Succession Bill
1954, as originally introduced in the Rajya Sabha, did not contain any
clause corresponding to sub-section 2 of section 15. It came to be
incorporated on the recommendations of the Joint Committee of the two
Houses of Parliament which reads as follows: (para 12)

“While revising the order of succession among the heirs to a Hindu female,
properties inherited by her from her father reverts to the family of the father
in the absence of issue and similarly property inherited from her husband
or father-in-law reverts to the heirs of her husband in the absence of issue.
In the opinion of the Joint Committee such a provision would prevent
properties passing into the hands of persons to whom justice would demand
they should not possess.”

A combined reading of S.15 (1) and 15 (2) gives us the following legal
matrix.

Status of female dying intestate Nature of property Provision of

law
Female having her child or child Self acquired 15(1)
of her pre-deceased son/daughter properties

Female having her child or child Inherited from her 15(1)

of her pre-deceased son/daughter father or mother

Female having her child or child Inherited from her 15(1)

of her pre-deceased son/daughter husband/father-in-
law
Female without child or child of Inherited from her 15(2)(a)
her pre-deceased son/daughter father or mother (Bhagat Ram
v.Teja Singh
case)

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Female without child or child of Inherited from her 15(2)(b)

her pre-deceased son/daughter husband/father-in-
law
Female without child or child of Self acquired 15(1)
her pre-deceased son/daughter properties / Omprakash
inherited from any v. Radha
relatives other than Charan case)
parents or husband
or father-in-law

**********

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FAMILY LAW II - CASE ANALYSIS AND SUM UP

LECTURE 12, 13 & 14

MUSLIM LAW ON HIBA AND TWO RELATED CASES IN THE CASE

MATERIAL (LECTURES 12, 13 & 14)

(1) Katheessa Umma V. Kunhamu

(2) Musa Miya Walad Mohammad Shaffi V. Kadar Bax Walad Khaj Bax
(3) Hayatuddin V. Abdul Gani

INTRODUCTION:

Hiba, the Arabic equivalent of Gift, constitutes one of the important themes in
Muslim law. It is a transfer of existing movable and immovable property made
voluntarily and without consideration by one person called the donor to another
person called done and accepted by or on behalf of the done, followed by
immediate possession of the same.

The Transfer of Property Act 1882 which governs the rules relating to gifts
applies to all Indians except Muslims, whose gifts are governed by Muslim
personal law.

Rules of Hiba regarding:

(i) Who can be a donor?

(ii) Who can be a done?
(iii) What can be the subject matter of Hiba?
(iv) What are the formalities to effect Hiba?

Who can be a donor?

Every Muslim, male or female, married or unmarried,

- who has attained majority and
- who is of sound mind can be a donor.
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He must be the owner of the property to be gifted.

For the purpose of making hiba, age of majority is 18 years and if there is a
court appointed guardian it is 21 years.
Who can be a donee?

Donee can be any person, male or female, major or minor, sane or insane, Muslim
or non-Muslim, natural or juristic person (Mosque) but must be in existence at
the time of making the gift.

What can be the subject matter of Hiba?

Any property owned by the donor, movable or immovable, corporeal or

incorporeal can be gifted.

A Muslim can gift his entire property and defeat the claims of his legal heirs.

Gift of Musha (undivided share) is also permissible with some riders. Musha, if
indivisible, it can be gifted without any division/partition. It is valid gift under
Sunni and Shia law. But gift of Musha, which is divisible, is gifted without
division/partition it is irregular for Sunnis and valid for Shias.1 An irregular gift
may be perfected and rendered valid by subsequent partition and delivery to the
donee.

What are the essential formalities to a valid Hiba?

Hiba must be vouluntary. Any gift made under compulsion is voidable at the
instance of the donor. It can be oral or in writing, registered or unregistered,
attested or unattested. Besides the above mentioned conditions, a valid gift should
satisfy three layer test. As Hedaya states ‘Gifts are rendered valid by tender,
acceptance and seisin.’

(i) Declaration by the donor (ijab/tender)

1
Pl refer Hayatuddin v. Abdul Gani (AIR 1976 Bom 23) given in your case material.

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(ii) Acceptance by the donee (Qabool) and

(iii) Delivery of possession to the donee (Qabja/seisin)

Ijab/ Declaration:

The donor must declare his intention to gift his property to the donee in clear and
unequivocal terms. It must be voluntary and without any condition. It is an offer
to the donee to accept the same.

Qabool/ Acceptance:

The second essential element for a valid gift is that it must be accepted by the
done himself or herself if major and of sound mind. If the donee is a minor or
insane, it must be accepted by the guardian of the donee on behalf of the donee.
Guardian, for the purpose of acceptance under Muslim law, is donee’s father or
the executor appointed by father under his will, father’s father or his executor
appointed by him under a will or father’s brother.

No other relative of the minor such as mother, brother or maternal grandfather is

recognised as legal guardian to accept the gift. However they can be appointed as
testamentary guardian for the said purpose.

Any acceptance by a person who is not the guardian will not be a valid gift.

However there are certain exceptions to it.

The courts have taken references from treatises on Muslim law and highlighted
certain recognised exceptions to the above rule. The said strict rule is relaxed in
the following instances.

(i) In the case of a gift to an orphan minor, the person in charge of the
orphan can accept the gift and it is a valid acceptance.
(ii) If a fatherless child be under charge of his mother and she takes
possession of a gift made to him, it is valid acceptance.

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(iii) The commentators agree that in the absence of father, brother and
paternal uncle are included in the list of persons who can take
possession on behalf of a minor who is in their charge. (para 10 in
Katheesa Umma case. (Pl. refer to your case material)

Kabja/ Delivery of possession:

This is the third essential stage in a valid gift. Declaration and acceptance must
be followed by immediate delivery of possession. Till possession is not delivered,
gift is incomplete. It can be either actual or constructive delivery of posession.
According to Muslim law, the owner/donor must completely divest himself of the
gifted property, relinquishing control, ownership and possession to the donee. He
must completely vacate the premises to indicate that he had relinquished so. The
donee must be put in possession. The law requires physical departure of donor
from the premises and formal entry of the donee.

In Katheesa Umma case, (Pl. refer to the case in your case material) the Supreme
Court while highlighting the rules of a valid gift observed: “For a valid gift, it is
only actual or constructive possession that completes the gift. If the property is
with the donor, he must depart from it and the donee must enter upon possession.
The strict view was that the donor must not leave behind even a straw belonging
to him to show his ownership and possession.” (Para 10)

If the owner is not in possession of the immovable property at the time of gift, he
must at least perform some overt act to convey his bonafide intention like
mutation of donee’s name in the revenue records, delivery of title deeds etc.

However there are certain exceptions to this rule.

(i) Where the donor and the donee reside in the same house, which is the
subject matter of the gift, delivery of possession is not necessary. The
donor need not vacate the premises and put the donee into possession.

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(ii) Where a husband makes a gift to his wife or wife makes a gift to her
husband of a house, or some other property in their joint possession,
delivery of possession is not necessary and the donor spouse can
continue to reside in the gifted property with the donee spouse.
(iii) Where a gift is made by the father or the guardian to his minor son or
ward, delivery of possession is not needed.
(iv) Where a gift is made by the bailor to the bailee, in whose possession the
subject matter of the gift is, no delivery of possession is required.
(v) A gift by a co-sharer to another co-sharer also does not require delivery
of possession.
In all the above instances, the gift may be completed by a valid
declaration and valid acceptance. Any act of management or collection
of rent from the gifted property by the donor is presumed that he is
doing so on behalf of the donee.

There are two cases in the case material on this point.

1. Katheesa Umma v. Kunhamu and

2. Musa Miya v. Kadar Bux

KATHEESSA UMMA V. KUNHAMU

AIR 1964 SC 275

Facts: (Paras 2&3)

One Mammotty was married to Seinaba and they were living with Katheessa
Umma, the mother of Seinaba. Mammotty made a gift of his immovable property
to his wife by a registered deed. As she was a minor at the time of gift, (15 years
and 9 months) he had handed over the registered deed to Katheessa Umma. He
died without an issue followed by Seinaba. The property was in possesseion of
Kateessa Umma as heir of Seiniba.

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After the death of seiniba, the present suit was brought by Kunhamu, the elder
brother of Mammotty for partition and possession of 6/16 share as heir of
Mammotty and challenged the gift as void.

Kunhamu’s contention was that when succession opened on the death of

Mammotty, his widow Seinaba was entitled to ¼ share as there was no issue and
the remaining ¾ share belonged to himself and his two sisters in the ratio of
2:1:1.2

Kunhamu’s proposed share was ¾ divided by 2/4 =3/8

According to him, the gift was void as it was accepted by her mother who was
not the legal guardian of Seinaba for the purpose of gift under Muhammadan law.

According to Katheessa Umma, neither express acceptance nor transfer of

possession was necessary for the completion of a gift, when the donor himself
was the guardian. His intention to gift was clear and the same was effected
through registered gift deed. When there was no legal guardian of property in
existence, the gift could be completed by delivery of the property and acceptance
by any person, in whose control the minor was at the time.

Issue:

Is a gift by a husband to his minor wife and accepted on her behalf by her mother
valid? (para 1)

Judicial analysis:

The Supreme Court after referring to treatises written by jurists like Mulla, Tyabji
and Amir Ali, and after going through Hedaya and Hadis of the Prophet, upheld

2
According to Muslim law of inheritance, wife’s normal share is 1/8 and in the absence of child her share gets
increased to ¼. Son will be entitled to double the share of a daughter and brother will be entitled to double the
share of sister of the propositus.

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the validity of the gift. In the course of the judgment, the court highlighted the
rules of the gift and made the following observations. (paras 10, 11)

(i) In the absence of father and father’s father, mother could accept the
gift on behalf of her minor daughter as she was in her charge. It was
a valid gift.
(ii) The power of mother is by virtue of necessity when the lawful
guardian be dead, or absent and his place of residence unknown.
(iii) In a gift by husband to his wife, delivery of possession was not
required. All that was needed was that the donor must evince an
immediate and bona-fide intention to make the gift and to complete
it by some significant overt act.
(iv) In the present case, husband’s intention to gift was clear and
manifest as it was written and registered and handed over by him to
his mother-in-law.
(v) In the present case, the donor himself could be the acceptor on behalf
of his minor wife in his capacity as her husband as he was the legal
guardian but he did not do it by himself but donor had nominated
her mother to receive the deed on behalf of her daughter.
(vi) Some judgments of high court was also a pointer on similar issue
(para 12) wherein it was held that gift did not fail merely because
possession was not handed over to the minor’s father or guardian
and the donor could nominate person to accept the gift on behalf of
the minor. Mohammedan law of gift, though strict, could not be
taken to be made up of unmeaning technicalities.
(vii) In the present case, the gift by Mammotty to his wife Seinaba
was a valid gift.
********

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MUSA MIYA WALAD MOHAMMAD SHAFFI V. KADAR BAX

WALAD KHAJ BAX (AIR 1928 PC 108)

NOTE:

This is a second case in your case material on validity of a gift and compliance
with the essential ingredient of Muslim law of gift namely valid acceptance and
delivery of possession.

The case can be shortly called as Musa Miya v. Kadar Bax. The term ‘Walad’
refers to guardian. Musa Miya represented by his guardian Mohammad Shaffi
and Kadar Bax represented by Khaj Bax.

This was a very old case decided by Privy Council and still a precedent on the
legal issue.

FACTS:

One Abdul Rasul had some properties. His daughter Rahimatbi and his two grand
children Moosa Miyan and Essen Miyan were living with him. Her husband
Mohammad Shaffi was living away and was occasionally visitng them. To a large
extent they were maintained by Abdul Rasul.

At one point of time, Abdul Rasul decided to make a pilgrimage to Mecca and on
the occasion of 26th day of Ramzan, he hosted a dinner and in front of several
persons, he announced that he had made a gift of his property to his two grand
children and made them as co-owners. As his son-in-law, Mohammad Shaffi was
away, he wrote a letter to him informing the same. He also wrote another letter to
Mohammad Shaffi that both the grand children would be the co-owners of the
property after his death. He also informed the same to his women at household
(his wife and daughter).

However there was no mutation of the names and no deed was executed.

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After returning from Mecca, Abdul Rasul resumed the affairs of the property,
remained in possession and managed it until his death. His brother Kadar Bax
filed a suit for his 3/8 share in the property as per Sunni law of inheritance.3

ARGUMENTS:

According to brother: (against the validity of gift)

• The gift by Abdul Rasul to his two grand children was not valid.
• There was no delivery of possession to the donee or to their guardian.
• There was no relinquishment of control by the donor over the said property.
• Acceptance and seisin, on the part of the donee or on their behalf are as
necessary as relinquishment on the part of the donor. These essentials were
not followed, it was not a valid gift and the property of Rasul should
devolve as per Muslim law of inheritance in which he was entitled to 3/8.
• According to Muslim law of inheritance, wife was entitled to 1/8, daughter
½ and the remaining 3/8 to brother.

Arguments, put forth on behalf of the donee were: (in favour of a valid gif)

• According to Mohamedan law, formal delivery of possession and seisen

are not required if both donor and donee are living in the same house, which
is the subject matter of gift.
• The letter written by Abdul Rasul to Mohamad Shaffi could alternatively
be construed as the will of Abdul Rasul.
• By virtue of oral gift or in the alternative of the will, the grandsons have
become owners of Abdul Rasul’s property.

ISSUE:

3
According to Sunni law of inheritance widow’s share is 1/8 and daughter’s share is ½. The remaining goes to
brother 3/8.

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Whether the gift made by grandfather in favour of his grandsons would come
under the exception that delivery of possession is not required. In other words,
whether in the absence of any delivery of possession or any relinquishment of
control by Abdul Rasul, there could be a complete gift according to
Mohammedan law?

The trial court treated the second letter as ‘will’ and decreed ¼ share to Kadar
Bax, the brother.4 Both the sides preferred appeals. The High Court did not
treat it as ‘will’. It was also not a valid gift. Hence, decided in favour of brother
to his share of 3/8 in Abdul Rasul’s property.

PRIVY COUNCIL’S DECISION:

Referring to the statement of law on the question5 and considering the earlier
decisions of various High courts, the court had decided that:

(i) The gift was not complete as there was no acceptance from the guardian
of minor children, Mohammad Shaffi.
(ii) There was no delivery of possession either. There were several
occasions on which Abdul Rasul could have put forth the ownership of
the boys, but he did not seem to have availed himself of any of them.
(iii) The case was not within the exception. It was not a gift by a father or
mother to a minor; nor is it a case of a guardian making a gift to his
charge. When the father, who is the natural guardian of his infant
children is alive and has not been deprived of his rights and powers as
a parent and a guardian, the exception will not apply.

4
According to Muslim law of will, a testator cannot bequeath more than 1/3 property under a will. Granting 1/3
to the grand children, in the remaining 2/3, his wife, daughter and brother were heirs. We will discuss about
bequathable 1/3 rule in the lecture on Muslim law of Will.
5
Principles and precedents of Mohammedan Law by Macnagthen (1825)

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(iv) Despite the fact that the grandfather had maintained and brought up his
grand children from their birth until his death, he could not presume
himself to be their guardian in the presence of their father.
(v) As father of the minors was alive, and was actually living with his wife
and children in the house of Abdul Rasul, the donor, and was in a
position to exercise his rights and powers as a parent and guardian, and
to take possession of the property on behalf of his children, it could be
clearly stated that the case did not fit into the exception. The gift was
not complete and hence invalid.
(vi) The share of the brother, 3/8 in the property of Abdul rasul, decreed by
the High Court was correct. The appeal preferred by Mohammad Shaffi
representing the minor donees was dismissed.

*******

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LECTURE 14

GIFT OF MUSHAA

Under Muslim law there is a concept called ‘Mushaa’, meaning undivided share
in a property, movable or immovable. For eg. Share in a common staircase, land
and building. According to Hedaya:

• Gift of Mushaa, which is capable of division, must be divided and then

gifted.
• If gifted without division and separated, it is irregular for Sunnis and valid
for Shias.
• The irregularity can be cured and gift can be perfected by subsequently
dividing the share and handing over its possession to the donee.
• Gift of Mushaa, which is indivisible, can be gifted without division. It is
valid gift for Shias as well as Sunnis.
• Gift of Mushaa must satisfy all the essential conditions of a valid regular
gift namely declaration, acceptance and delivery of possession.

Generally, gift of Mushaa is discouraged since it is likely to cause confusion in

the enjoyment of property, unless it is by one co-sharer to another co-sharer.
Hence the term ‘Mushaa’ literally means ‘confusion’.

HAYATUDDIN V. ABDUL GANI

(AIR 1976 Bom. 23)

Lalmiya died leaving behind his two widows W1 and W2 and a sister. W1 and
W2 got 1/8 share each and sister got ¾ share according to Hanafi law of
inheritance.

W1 and sister had gifted their combined share to one Hayatuddin who had been
brought up by Lalmiya from his childhood. The gift deed recites that the share of

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W2 was separated and the shares of W1 and sister was gifted to Hayatuddin. It
also recites that the property gifted was in possession of the donee and the same
was handed over to him.

A suit for declaration was filed by donor and donee to the effect that the donee
was the owner of the property and an alternate relief of partition and separate
possession of 1/8 share of W2 and remaining to Hayatuddin. The heirs of sister
challenged the gift as void.

The questions posed was whether the gift in favour of Hayatuddin was valid as it
was Mushaa and gifted without being separated by metes and bounds and there
was no delivery of possession.

The court after appreciating the evidence and taking reference to Mulla’s Hindu
law gave the following ruling

• At the time of gift, the gifted property was partly in possession of the done
and partly in possession of the tenants.
• A gift of immovable property which is in occupation of tenants may be
completed by a request by the donor to attorn to the donee.
• Where the donor and the done both reside in the property, no physical
departure or formal entry is necessary and the gift may be completed by
some overt ac by the donor indicating his intention to transfer possession.
• In the present case, the donors had informed the tenants that they had made
Hayatuddin as the owner of the property and rent to be paid to him and
they were paying rent to Hayatuddin since 11 years.
• Donors have done everything that was possible to make the gift a valid one.
• In addition to this, the conduct of the donors in joining with done as co-
plaintiffs to have their share separated and delivered possession thereof.
• The law relating to the gift of undivided property is as follows:

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(i) A valid gift may be made of an undivided share (Mushaa) in

property, which is not capable of partition.
(ii) A gift of Mushaa which is capable of division is irregular (fasid) but
not void (batil). The gift being irregular may be perfected and
rendered valid by subsequent partition and delivery to the donee. If
possession is once taken, the gift is valid.
• In the present case, the gift of Mushaa was valid. Though it was irregular
at the time of gift, it was perfected.
• The challenge to the gift deed by the heirs of sister was not accepted.

******

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FAMILY LAW II - CASE ANALYSIS AND SUM UP

LECTURE 15

LAW OF WASSIYYAT (WILL) UNDER MUSLIM LAW

This topic will be discussed in two parts.

Part 1. Essential conditions for a valid bequest/ Will

Part 2. Abatement of Legacies

PART 1. ESSENTIAL CONDITIONS FOR A VALID BEQUEST/ WILL

Introduction:

For a Muslim, Will is a divine and lawful institution and is regulated by Koran. It is an
instrument through which a Muslim can correct the scheme of succession to his property and
leave something for his relatives or well wishers to succeed through testament, who are
otherwise excluded from inheritance. It is a device of recognising the services rendered by
someone and giving something in return for them from out of his property.

While recognising his freedom to dispose of his property according to his good sense, Koran
also keeps certain riders on his power of testamentary disposition. The law of Will/ Wassiyyat
is governed by un-codified Muslim law which prescribes the following stipulations. It can be
studied under the following heads:

A. Who has the capacity to make a Will? Who can be a testator?

B. To whom it can be made? Who can be the legatee under a Will?
C. What can be bequeathed under a Will? What can be the subject matter of legacy?
D. What are the formalities in making a Will?

A. Who has the capacity to make a Will? Who can be a testator?

• Every Muslim, male or female, who is major and of sound mind can execute a Will.
For the purpose of Will, the age of majority is 18 years under Indian Majority Act and
21 years in case a guardian is appointed under Guardian and Wards Act.
• Muslim law givers lay down that a minor can also execute a will but it must be ratified
by him on attaining majority. But this is not so in the case of a person of unsound mind,

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whose will cannot be ratified on regaining sanity. Moreover, a Will made by a sane
Muslim will become invalid, if subsequently he becomes insane.
• A Will made under force, fraud, coercion and undue influence is also invalid.
• Under Shia law, a Will made by a person, who has attempted to commit suicide, is
invalid but a Will made by a Shia, who subsequently commits suicide is valid.

(B) To whom it can be made? Who can be a legatee under a Will?

• A Muslim can execute a Will in favour of any person – male or female, major or minor,
sane or insane, Muslim or non-Muslim.
• A legatee can be a natural person or a juristic person.
• A Will bequeathing property to any purpose, religious, secular or charitable, which is
not opposed to Islam is valid. For ex: A Muslim cannot bequeath his property to a
Church or to a temple.
• Under Muslim law, bequest to a person not in existence at the time of testator’s death
is void.
• A Will executed in favour of an unborn person is also void.
• But a bequest to a child in womb is valid provided the child is born alive within six
months of the death of the testator.
• If a legatee predeceased the testator, the legacy lapses and it forms part of the estate of
the Muslim, which will be inherited by his heirs.

On the question whether a Muslim can make a bequest to his heir, the rules are not uniform.
There are certain restrictions imposed on the power of testator in this respect.

Sunni Shia
No bequest shall be made to an heir, unless No bequest shall be made to an heir, unless
the other heirs consent to it after the death of the other heirs consent to it at any time.
the testator.
A single heir may also consent to it so as to Same rule applies.
bind his share.
Even if the bequest is within the permissible If the bequest does not exceed the
1/3 rule, the consent of other heirs is a must. permissible 1/3 rule, it is immaterial whether
the legatee is a heir or a stranger.

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According to Hedaya, the reason for this restriction is that if heir happens to be legatee too, to
that extent he will be more benefitted than other heirs, which is not according to the spirit of
Koran which prescribes the shares of the heirs. It will induce the breach of the ties of kindred.
However if the heirs themselves give consent for it, it is permissible.

Similarly,

Sunni Shia
A murderer or an abettor to the murder of the A murderer or an abettor to the murder of the
testator is not entitled to a legacy, whether it testator is not entitled to a legacy, only if it is
is intended or accidental. intended.

(C) What can be bequeathed under a Will? What can be the subject matter of legacy?

• Any property movable or immovable, corporeal or incorporeal, corpus or usufruct,

owned by the testator can form the subject matter of Will.
• It must be in existence at the time of death of the testator and it is not necessary that it
should be in existence at the time of making the will.
• A Muslim cannot bequeath more than one third of his net assets after making all
permissible deductions from it like funeral expenses, debts and other charges. This is
popularly known as ‘bequeath able 1/3 rule’. Positively speaking, a Muslim is allowed
to bequeath 1/3 of his property with a view to fulfilling his duty in respect of those who
have served him.
• While recognising the freedom of the testator to give away a part of his property to
anybody he wishes, Prophet was believed to have declared that “The power should not
be exercised to the injury of the lawful heirs.” It is a balancer or a compromise between
testator’s freedom and moral obligation towards legatees and the koranic heirs’ legal
entitlement. This is with a view not to affect the shares of koranic heirs.
• This is the difference between ‘Will’ and ‘Gift’. A Muslim can gift his entire property
but he cannot make a will for his entire property.

Exceptions to bequeathable 1/3:

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(i) A Muslim can bequeath more than 1/3 if his heirs give consent to it. In other words,
a bequest of more than 1/3 may be validated by the consent of heirs. However, there
is a difference between two schools of Islam.

Sunni Shia

The bequest of more than 1/3 is not valid If the bequest to heir is within the
unless it is consented by other heirs. permissible 1/3, other heirs’ consent is
The consent must be there after the death of not required. Only if it is beyond 1/3,
the testator. other heirs’ consent is required.
The consent may be at any time either
before or after the death of the testator.

(ii) A Muslim can bequeath more than 1/3 if there is a valid custom to do so.1
In India till 1937, a convert to Islam was permitted to follow his own pre-conversion
personal law & customary law in certain matters of family affairs. In 1937, Shariat
Act was passed withdrawing these concessions and declared that ‘not withstanding
any custom or usage, in all matters regarding intestate succession, gift, marriage,
etc... Shariat Act will apply if persons are Muslims.’ This list does not specify Will.
Hence it is viewed by jurists that now a converted Muslim can dispose of his entire
property under a will.

(iii) Where a testator dies leaving behind no heirs, he can bequeath his entire property.

(iv) If a Muslim had married or got his marriage registered under Special Marriage Act,
1954, his property will be governed by Indian Succession Act 1925 and Muslim
law of ‘Will’ will not apply. In that case, he can bequeath his entire property under
a Will.

1
Pl.refer Paras Diwan, “Muslim Law in Modern India”, Topic -‘ Wassiyyat’, sub topic – ‘Bequueathable one-
third’.

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(D) What are the formalities in making a Will?

• Muslim law does not require any formality for the execution of a will.
• It can be oral or in writing. It can also be made by gestures.
• Even if it is in writing, it need not be signed by the testator.
• It need not be attested by witnesses.
• It need not be registered.
• Due to these liberal rules, the burden is heavy on the beneficiary to prove its validity,
if challenged.

**********

PART 2 ABATEMENT OF LEGACIES

Sometimes, a testator’s Will exceeds the permissible 1/3 limit. Then the legacy is reduced and
the excess is abated. This is called abatement of legacy. The rules relating to abatement of
legacy is different under Sunni and Shia laws.

Sunnis follow the principle of Rateable distribution or Proportionate distribution.

Shias follow chronological preference of the testator named in the Will.

Similarly abatement of legacy will be different in two different situations.

(i) When the bequest to each legatee is different

(ii) When the bequest to each legatee is equal to one third asset

ILLUSTRATIONS

SITUATION I

(i) A Muslim executes a will bequeathing Rs. 30000 to X, Rs. 40000 to Y and Rs.
50000 to Z. His total net property is Rs. 1,80,000. Distribute the legacy.

X Y Z
30000 40000 50000

According to Sunni Law:

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Stage 1: Total assets is 1,80,000

Stage 2: The bequethable 1/3 is 1,80,000/3=60000

Stage 3: The total bequest in the will is 120000. As the assets available for X, Y & Z
are only 60000, the bequests of X, Y & Z must be rateably reduced.

Stage 4: Find out the ratio of X, Y & Z = 3:4:5. X=3/12, Y=4/12 Z=5/12

Stage 5: Divide the bequeath able assets to X, Y & Z according to their ratio.

Legatees X Y Z
Bequest in the will 30000 40000 50000
Bequest got after 60000 x 3/12 = 60000 x 4/12= 60000 x 5/12=
rateable reduction 15000 20000 25000
Abated
(Proposed bequest 15000 20000 25000
– actual)

According to Shia Law:

Legatees X Y Z
Bequest in the will
30000 40000 50000
Bequest in
chronological 30000 30000 Nil
preference
Abated
(Proposed bequest – Nothing will be 10000 will be Entire bequest is
actual) abated abated abated.

In the above mentioned illustration of Shias, chronological preference means the first
named person will be given the legacy first. The next person will get, if anything is left
from the one third available. Similar is the position with the subsequent legatees.

X will get his full bequest.

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Y will get only 30000 instead of 40000

Z will get nothing.

Illustration 2:

A dies leaving behind assets worth Rs. 1,05,000. He made a Will giving Rs. 30000 to
daughter and Rs. 40000 to his Hindu friend and Rs. 90000 to a Church. His wife and
sons refuse to consent. Distribute the legacy according to Sunni and Shia law.

Note: In this illustration I have mentioned two things requiring careful calculation.

(i) Bequest to a heir.

(ii) (ii) Bequest to a Hindu friend and to a Church. (Pl. revisit the rules regarding
these two in the above discussion.)

Sunni law:

Total assets : 105000

Bequeathable 1/3 = 35000

Legatees Daughter Hindu friend Church

Bequest in the will 30000 40000 90000

Bequest got after Will not get as Not a bar. It is not

rateable reduction other heirs refuse Will get entire permissible.
to consent 35000 as other two
legatees are
disqualified.
Abated
(Proposed bequest __ 5000 ---
– actual)

Note: In case if the other two heirs give consent

Legatees Daughter Hindu friend Church

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Bequest in the will 30000 40000 90000

Bequest got after 35000 x 3/7 = 35000 x 4/7 = It is not

rateable reduction 15000 20000 permissible.
(3:4)
Abated
(Proposed bequest 15000 20000 ---
– actual)

According to Shia Law:

Legatees Daughter Hindu friend Church

Bequest in the will 30000 40000 90000

Bequest in She will get 30000 He will get only 5000 Not permissible
chronological Within the limit
preference consent of other
heirs not required
Abated Nothing will be 35000 ----
(Proposed bequest abated.
– actual)

Note : Under Shia law, if instead of daughter, Hindu friend is mentioned first in the
Will, then the calculation will be as follows:

Legatees Hindu friend Daughter Church

Bequest in the will 40000 30000 90000

Bequest in He will get 35000 She will not get as 1/3 Not permissible
chronological is exhausted (rule of
preference consent does not
arise)

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Abated 5000 will be abated. Total bequest will be ----

(Proposed abated.
bequest– actual)

Note: Thus I have given various alternative constructions in illustrations to make it easy
to understand and apply the rules.

Situation II

Sometimes the testator will give equal bequest to each legatee, which is just equal to
the bequeathable 1/3.

A testator dies leaving behind a Will with 30000 to A, 30000 to B and 30000 to C. His
assets worth: 90000. Distribute the legacy according to Sunni and Shia law.

Note:

In the second situation,

(i) Sunnis follow the same rateable distribution.

(ii) But Shias follow the chronological preference in the reverse order. I.e. the last
mentioned legatee in the Will has to get first, then the next last ....successively.

Net assets = 90000

Bequeathable 1/3 = 30000

Bequest to each legatee = 30000 (equal to 1/3)

According to Sunni Law:

Legatees A B C
Bequest in the will 30000 30000 30000
Ratio of bequest 1: 1: 1
Bequest got after
rateable reduction 10000 10000 10000
Abated
20000 20000 20000

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(Proposed bequest
– actual)

According to Shia Law:

Legatees A B C
Bequest in the 30000 30000 30000
will
Chronological
preference in Nothing left Nothing left 30000
reverse order
Abated Entire bequest is abated Entire bequest is Gets in full.
(Proposed abated.
bequest –
actual)

Note:

The rules relating to legatee being heir or opposed to Islam are applicable in the second
situation also.

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FAMILY LAW II - CASE ANALYSIS AND SUM UP

(Topic 7 in case material)

LECTURE No. 16

SECTION 14 OF HINDU SUCCESSION ACT 1956

INTRODUCTION

One of the significant changes brought about in the HSA 1956 was abolition of
Limited Estate created under Hindu Women’s Property Act 1937.

According to Shastric Hindu Law, coparcenary property devolved upon

coparceners only under the rule of survivorship and females and non-coparceners
could not inherit it. For example, a joint family consisted of three brothers A, B
& C. On the death of A, in the absence of his lineal descendants (son, son’s son
and son’s son’s son), his undivided interest in the coparcenary property devolved
on his surviving brothers, despite the fact that A had his wife at the time of his
death.

In 1937, by virtue of Hindu Women’s right to property Act, which is considered

to be the first legislative initiative to confer inheritance right to certain women,
the absolute rule of survivorship was replaced with the concepts of limited estate
and reversioners. Accordingly, in the earlier mentioned situation, on A’s death,
his undivided interest in the coparcenary property devolved upon his widow and
she would enjoy the property during her life time with exceptional conditions for
alienating the same and after her death, it would revert back to B & C, who were
called reversioners. Thus the absolute rule of survivorship, was diluted to some
extent and it got suspended during the life time of limited estate holder and then
resumed. It was not abolished but was kept suspended.

The next stage in her journey towards property rights is S.14 of Hindu Succession
Act 1956. It abolished the concept of limited estate and consequently the concept
of reversioners.

S.14 reads: Property of a female Hindu to be her absolute property.

It has two sub-sections.

S.14 (1) reads:

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Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as
a limited owner.

Explanation: In this Sec. Property includes both movable and immovable

acquired by a female Hindu -

By inheritance or devise, or at a partition, or in lieu of maintenance or arrears of

maintenance or by gift from any person, whether a relative or not, before, at or
after her marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever and also any such property held
by her as stridhana immediately before the commencement of the Act.

Thus the explanation for property is very exhaustive mentioning the various kinds
of properties which a female Hindu has acquired and possessed by various ways.
For instance,

• A female Hindu might have inherited a property of her deceased husband

under Hindu Widow’s Property Act, 1937.
• She might have received the coparcenary share of her husband after his
death.
• She might have received a limited interest in the property given to her
under a family settlement or under a device of Will.
• She might have received a share in the coparcenary property when a
partition had taken place between father and sons in a non-dravida family.
• She might have received the property under a gift from her relatives or
from any other person.
• The property might have acquired by her through self earning, personal
skill and profession.
• She might have purchased with the help of her own funds, certain
properties.
• She might have received some property in any other manner such as under
court decree or through adverse possession or through compensation from
the Government.
• Any property that she acquired by various modes after passing of this Act
is also her absolute property.
• One of the important requirements for conversion of a limited into an
absolute interest is that the property should be possessed by a Hindu female
and the possession may be either actual or constructive.

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• The word ‘possessed by’ used by the legislature indicates that it is a valid
possession in law with title to the property. It is different from the term
‘property in possession of a Hindu female’
• Physical possession of a property with a right of ownership and property
not in physical possession but having a right of ownership come within the
purview of S.14(1).
• Actual physical possession without the right of ownership will not attract
S.14 (1). For instance, where a Hindu female is in actual possession of a
property but as a trespasser, as a lessee, as a mortgagee would not convert
her as a full owner.
• When the limited estate has matured into an absolute interest by virtue of
s.14, the female Hindu gets full power of disposal over the property. The
alienation of 14(1) property by her is perfectly valid and it cannot be
challenged by the heirs of her husband.
• Wherever, the property was allotted to her in lieu of her maintenance or in
arrears of maintenance and received by her under a will, a compromise, at
the time of partition, or through any other settlement, her limited rights
mature into absolute rights.

S.14 (2) reads:

Nothing contained in subsection (1) shall apply to any property acquired by way
of gift or under a will or any other instrument or under a decree or order of a civil
court or under an award where the terms of the gift, will or instrument or the
decree, order or award prescribe a restricted estate in such property.

Analysis:
This subsection also mentions the properties acquired by her under a Will or gift
or decree or court order or any other instrument. They will remain as limited
estate only and will not expand into absolute estate.
Use of same terms both in subsection (1) and (2) has created confusion, wanting
in legislative clarity, and giving rise to a basic question – which properties fall
under 14(1) that will become her absolute estate and which fall under 14(2) that
will remain as limited estate only.
A large number of cases came before the court which has created a lot of
confusion in interpreting the two clauses inviting the wrath of the judiciary to

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make comments on the legislative wisdom and an urgent need for simplifying the
section in clear terms.
But now the need is not felt because many cases have been decided wherein the
construction of S. 14(1) and (2) are settled. The difference between the two
subsections is made clear. Thulasamma V. Sesha Reddy was a settled case which
is continuing as a good precedent till now. In that case the court has at length
discussed the scope of S.14 (1) and (2).
Facts:
Tulasamma’s husband died in 1931 as an undivided member leaving behind his
widow Tulasamma and his brother Sesha Reddy. In 1944, Tulasamma filed a
petition for maintenance against Sesha Reddy and obtained an ex parte decree.
During execution stage, a settlement was arrived at which was certified by the
Executing court. According to the terms of the compromise – (a) Tulasamma was
allotted the scheduled properties but was to enjoy only a limited interest with no
power of alienation at all. (b) The properties were to revert to Sesha Reddy after
the death of Tulasamma.
Thereafter, Tulasamma continued to remain in possession of the properties. The
Hindu succession Act came into force in 1956. Tulasamma leased out some
properties and sold some properties through lease deed and sale deed in 1960 and
1961 respectively. Sesha Reddy filed a suit in 1961 for a declaration that the
alienation made by the widow Tulasamma were not binding on him as her interest
could not be enlarged into an absolute interest in view of S. 14(2).
The judicial journey of the case was as hereunder. – Trial court brought the case
within the fold of S.14 (2) and negatived the claim of Tulasamma. District court
held it as a fitting case under S.14 (1). High court held it under S. 14(2) and
ultimately the case came before the Supreme Court.
The issue:
The issue before the Supreme Court was whether the property received by
Tulasamma, in lieu of maintenance, under a compromise instrument as limited

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estate, would be held by her as absolute estate after 1956 Act. In other words,
whether it would be S. 14 (1) or S. 14(2), that would apply to the present case.
Case analysis:
It is interesting to note that the court took an opportunity to go into the question
in detail and made an elaborate judgment bringing finality to the much agitated
but unsettled issue. After examining a number of cases decided on the point by
the same Supreme Court, the apex court highlighted the following principles of
law. The main observations can be summed up as:
• A Hindu female's right to maintenance is not an empty formality or an
illusory claim but is a tangible right against property which flows from
spiritual relationship between the husband and the wife.
• Under the Sastric Hindu Law a widow has a right to be maintained out of
joint family property and this right would ripen into a charge if the widow
took the necessary steps for having her maintenance ascertained and
specifically charged on the joint family property.
• The right to maintenance is a pre-existing right which existed in the Hindu
law long before the passing of the Act of 1937 or the Act of 1946, and is,
therefore, a pre-existing right.
• When specific property is allotted to the widow in lieu of her claim for
maintenance, the allotment would be in satisfaction of her jus ad rem,
namely, the right to be maintained out of the joint family property. It
would not be a grant for the first time without any pre-existing right in the
widow. The widow would be getting the property in virtue of her pre-
existing right, the instrument giving the property being merely a document
effectuating such pre-existing right.
• The Act of 1956 has made revolutionary and far reaching changes in the
Hindu society and every attempt should be made to carry out the spirit of
the Act which undoubtedly supplied a long felt need.

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• That the provisions of S.14 of the 1956 Act must be liberally construed in
order to advance the object of the Act which is to enlarge the limited
interest possessed by a Hindu widow which was in consonance with the
changing temper of the times;
• S.14 (1) is large in its amplitude and covers every kind of acquisition of
property by a female Hindu including acquisition in lieu of maintenance.
Where such property was possessed by her at the date of commencement
of the Act or was subsequently acquired and possessed, she would become
the full owner of the property.
• The object of the Legislature being to wipe out the disabilities from
which a Hindu female suffered in regard to ownership of property under
the old Sastric Law and to recognise her status as an independent and
absolute owner of property sub-section (2) must be read in the context of
sub-s.(1) and leave as large a scope for operation as possible to sub-
s.(1).
• Sub S.14 (2) is in the nature of a proviso and it should not be construed in
a manner so as to destroy the effect of the main provision 14 (1).
• So read, sub s.14 (2) must be confined to cases where property is acquired
by a female Hindu for the first time as a grant without any pre-existing
right under a gift, will, instrument, decree, order or award, the terms of
which prescribe a restricted estate in the property.
• The appellant (Tulasamma) must, in the circumstances, be deemed to have
become full owner of the properties not withstanding that the compromise
prescribed a limited interest for her in the properties. It is sub-s. (1) and
not sub-s. (2) of s.14 which must be held to be applicable on these facts.

The court in the course of the judgment, also, expressed its unhappiness over inapt
draftsmanship in the following words. (paraphrased) (Pl. refer para 67)

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‘It is indeed unfortunate that though S.14 (1) and (2) are presenting serious
difficulties of construction … and divergence judicial opinion was creating a
chaotic situation robbing the law of that modicum of certainty. The legislature,
for all these years did not care to step into remove the constructional dilemma
facing the courts. … By a simple amendment it could have silenced judicial
conflict and put an end to needless litigation. This is a classic instance of inapt
draftsmanship, which has created endless confusion for litigants and proved a
paradise for lawyers. If there is a close interaction between the judiciary and the
Legislature, the time and money in these fruitless litigations may be saved and
law would achieve clarity, certainty and simplicity and be intelligible to the
people.’
Conclusion:
Thus Tulasamma’s judgment given in 1977 is a beacon light in the space of
women’s property rights. Introduction of S.14 and abolition of limited estate does
not mean that after 1956, a woman can never acquire a limited estate. It is not
totally abolished from legal space. Where a female acquires property under a will
or a gift, in which the transferor specifically confers limited estate on her,
mentioning that after the lifetime of the done or the legatee, it will revert back to
someone, it will not mature into absolute estate as against the wishes of the
testator or the donor. While S.14 (1) recognizes the need for absolute ownership
of property to women, 14(2) recognizes the transferor’s right to transfer his
property as he wishes, whether to give it as full ownership or as limited
ownership, whether the beneficiary is a male or a female. 14(1) is gender specific
and 14(2) is gender neutral.
The test to determine whether a case would fall under14 (1) or 14 (2), the clue is
that if she receives it by virtue of her pre-existing right it is case of 14 (1) or
because the transferor wanted her to have a limited interest, it is a case of 14 (2).
To be more clear:

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X a female Hindu acquired property ‘A’ under Settlement Deed in lieu of

maintenance. She also acquired property ‘B’ from her maternal uncle under a will
out of love and affection conferring on her a limited estate which she could enjoy
during her lifetime and on her death to revert to B.

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