LL.B.

II Term
Paper LB - 202 : Family Law II
(Hindu Law of Joint Family, Partition and Debts, Gifts and Wills, Muslim Law of Gifts & Wills, Hindu Succession Act and Muslim General Principles of Inheritance) Hindu law has the most ancient pedigree of any known legal system. Where, not modified or abrogated by legislation, Hindu law may be described to be the ancient law of the Hindus rooted in the Vedas and enounced in the Smritis as explained and enlarged in recognised commentaries and digests and as supplemented and varied by approved usages. The concept of Hindu law is deeply rooted in Hindu philosophy and Hindu religion. Till this day, no precise definition of the word Hindu is available in any statute or judicial pronouncement; it has defied all efforts at definition. There are two main schools of Hindu law; viz. the Mitakshara school and the Dayabhaga school or Bengal school. They have emerged in the era of Digests and Commentaries. The codified Hindu law lays down uniform law for all Hindus. In the codified areas of Hindu law, there is no scope for existence of schools. The schools of Hindu law have relevance only in respect of the un-codified areas of Hindu law. Prescribed Legislation: The Hindu Succession Act, 1956 Prescribed Books: 1. 2. 3. 4. 5. 6. Ranganath Misra, Maynes Treatise on Hindu Law & Usage (15th ed., 2006) Satyajeet A. Desai, Mulla Principles of Hindu Law, Vol. I & II (20th ed., 2007) Poonam Pradhan Saxena, Family Law Lectures, Family Law II, (2nd ed., 2007) Paras Diwan and Peeyushi Diwan, Modern Hindu Law (18th ed., 2008) Duncan M. Derrett, A Critique of Modern Hindu Law (1970) M. Hidayatullah and Arshad Hidayatullah, Mulla, Principles of Mahomedan Law (19th ed., 2008) 7. Asaf A.A. Fyzee, Outlines of Muhammadan Law (2008)

PART - A : HINDU LAW OF JOINT FAMILY

Topic 1 : Joint Hindu Family and Hindu Coparcenary The Mitakshara joint family is a unique contribution of Hindu law which has no parallel in any ancient or modern system of law. Whatever the sceptic may say about the future of the Hindu joint family, it has been, and still continues to be, the fundamental aspect of life of Hindus. In Hindu law, there is a presumption that every family is a joint Hindu family.

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The males in a joint Hindu family upto four generations from a common male ancestor are known as coparceners and they acquire a right by birth in the joint Hindu family property. This group of males is known as coparcenary. (a) (b) 1. 2. Concept of joint Hindu family and coparcenary under Mitakshara and Dayabhaga law and their incidents. Judicial and Legislative Trends Commissioner of Income- tax v. Gomedalli Lakshminarayan, AIR 1935 Bom. 412 Moro Vishwanath v. Ganesh Vithal (1873) 10 Bom. 444 Topic 2 : Property in Hindu Law Kinds and Sources of property: Coparcenary and separate property, Gift from paternal ancestor and property inherited from maternal ancestor. 3. 4. 5. 6. Muhammad Husain Khan v. Babu Kishva Nandan Sahai, AIR 1937 PC 233 C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495 Smt. Dipo v. Wassan Singh, AIR 1983 SC 846 Commissioner of Wealth-tax v. Chander Sen, AIR 1986 SC 1753 Topic 3 : Karta The position of karta in a joint Hindu family is sui-generis. He occupies a very important position. His position is so unique that there is no office or institution in any other system of the world which is comparable with it. The Judicial Committee of the Privy Council in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 Moores I.A. 393 had discussed the extent of kartas power in relation to joint Hindu family property. (a) Who can be a karta (b) Position of a karta (c) Powers, duties and liabilities of karta 7. M/s. Nopany Investments 2007 (13) JT 448 (P) Ltd. v. Santokh Singh (HUF), 31 10 13 21 23 1 4

Topic 4 : Alienation of Joint Hindu Family Property Ordinarily, neither karta nor any other coparcener singly possesses full power of alienation over the joint family property or over his interest in the joint family property. It is now settled that karta can alienate the joint Hindu family property in exceptional circumstances, i.e. legal necessity and benefit of estate. (a) (b) (c) (d) Alienation by karta - sale, mortgage, gifts and wills Alienation by father Alienees rights duties and remedies Pious obligations of the son

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8. 9. 10. 11. 12. 13. 14.

Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1854-1857) 6 Moores IA 393 (PC) Sunil Kumar v. Ram Prakash (1988) 2 SCC 77 Dev Kishan v. Ram Kishan, AIR 2002 Raj. 370 Balmukand v. Kamla Wati, AIR 1964 SC 1385 Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa, AIR 1964 SC 510 R. Kuppayee v. Raja Gounder (2004) 1 SCC 295 Arvind & Abasaheb Ganesh Kulkarni v. Anna & Dhanpal Parisa Chougule, AIR 1980 SC 645 Topic 5 : Partition

36 51 60 69 74 81 87

Partition means bringing the joint status to an end. On partition, the joint family ceases to be joint, and nuclear families or different joint families come into existence. There are members of the joint family who can ask for partition and are entitled to a share also. There is another category of the members of the joint family who have no right to partition but, if partition takes place, they are entitled to share. A reunion can be made only between the parties to partition. (a) (b) (c) (d) (e) 15. 16. 17. 18. What is partition Subject matter of partition Partition how effected Persons who have a right to claim partition and who are entitled to a share Rules relating to division of property 89 99 107 115

A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 Puttrangamma v. M.S. Ranganna, AIR 1968 SC 1018 Kakumanu Pedasubhayya v. Kakumanu Akkamma, AIR 1968 SC 1042 Namdev Vyankat Ghadge v. Chanadrakant Ganpat Ghadge (2003) 4 SCC 71

PART - B : THE HINDU SUCCESSION ACT, 1956

The law of inheritance comprises rules which govern devolution of property, on the death of a person, upon other persons solely on account of their relationship to the former. The Hindu Succession Act came into force on 17 June 1956. It amends and codifies the law relating to intestate succession among Hindus and brings about some fundamental and radical changes in the law of succession. The Act lays down a uniform and comprehensive system of inheritance and applies inter alia to persons governed by Mitakashara and Dayabhaga schools, as also to those in certain parts of southern India who were previously governed by the Murumakkattayam, Alyasanatana and Nambudri systems of Hindu law. The Act was last amended in 2005, and has brought in major changes in the classical concept of coparcenary as also in the class I heirs to the property of a male intestate.

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Topic 7 : Succession to Property of a Male Intestate (a) General introduction and the application of the Hindu Succession Act, 1956 (b) Devolution of Mitakshara property under the Act (c) General principles of inheritance (d) Disqualifications of heirs 19. 20. 21. Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR 1978 SC 1239 Vellikannu v. R. Singaperumal (2005) 6 SCC 622 S. Narayanan v. Meenakshi, AIR 2006 Ker. 143 Topic 8 : Succession to the Property of Female Intestate (a) Hindu womens estate (b) Law relating to inheritance

122 127 134

22. 23. 24. 25.

Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi, AIR 1977 SC 1944 Jagannathan Pillai v. Kunjithapadam Pillai, AIR 1987 SC 1493 Bhagat Ram v. Teja Singh, AIR 2002 SC 1 Omprakash v. Radhacharan, 2009(7) SCALE 51

139 147 154 157

PART C : MUSLIM LAW

Topic 9 : Law relating to Gifts (a) Meaning and essentials of a valid gift (b) Gift of Mushaa (c) Gift made during Marz-ul-Maut 26. 27. 28. 29. Mussa Miya walad Mahammed Shaffi v. Kadar Bax, AIR 1928 PC 108 Valia Peedikakkandi Katheessa Umma v. Pathakkalan Narayanath Kunhamu, AIR 1964 SCC 275 Hayatuddin v. Abdul Gani, AIR 1976 Bom. 23 Abdul Hafiz Beg v. Sahebbi, AIR 1975 Bom. 165 Topic 10 : Law relating to Wills (a). (b). (c) (d). Capacity to make Will Subject matter of Will To whom Will can be made Abatement of legacies 160 165 171 178

Topic 11 : Law relating to Inheritance (a) General rules of inheritance of Sunnis and Shias (b) Classification of heirs (c) Entitlement of primary heirs IMPORTANT NOTE: 1. The students are advised to read only the books prescribed above along with legislations and cases. 2. The topics and cases given above are not exhaustive. The teachers teaching the course shall be at liberty to add new topics/cases. 3. The students are required to study the legislations as amended up-to-date and consult the latest editions of books. 4. The Question Paper shall include one compulsory question consisting of five parts out of which four parts will be required to be attempted. The question papers set for the academic years 2007-08 and 2008-09 are printed below for guidance.
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LL.B. II Term Examinations, April-May, 2008 Note: Answer five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (i) A Hindu joint family does not come to an end by the extinction of coparcenary. (ii) Pious obligations of a Hindu son to replay debts of father. (iii) Gift of immovable joint family property in favour of daughter by the Karta. (iv) Death bed gifts under Muslim law. (v) Concept of benefit of Estate. 2. A, a Hindu male inherits a plot of land from his father F in 1950 and a year later a house from his maternal grandfather. As son, S, seeks a partition of this house and the plot of land claiming half share in each. Would he succeed? Discuss. 3. Khandappa, a male Hindu, governed by Mitakshara school, had two sons Gurupad and Shivpad. The family lived in Bombay. Gurupad was a business executive with a multinational firm and lived in a rented house in Delhi alongwith his wife Hirabai. Unfortunately, Gurupad met with a road accident on March 20, 2007 and was admitted to a private Nursing Home. He wrote a letter on March 25, 2007 expressing his intention in unequivocal terms to separate from the joint family. He executed a will on March 26, 2007 with respect to his undivided interest in favour of his wife Hirabai and died on the same day. The letter was delivered to other members of the family on March 30, 2007. Hirabai, being the only heir of her deceased husband, claims the coparcenary interest of her husband under the will. Can she succeed? Give reasons. Also discuss her claims under the following circumstances:

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(i) if Gurupad had died without making a will. (ii) If Gurupad has died in 1954 after executing a will. 4. X, a male Hindu governed by Mitakshara law dies as an undivided coparcener in 2006 leaving behind his father F, Mother M; two sons S1, S2, Sons wife S1 W unmarried sister S and unmarried daughter D. Ascertain the shares of all aforesaid persons in the coparcenary properties, if X was governed by the law applicable in (a) Delhi (b) Tamil Nadu. 5. W inherited certain properly from her husband in 1930. She made a gift of this property in 1940 to X. S, the brother of the husband filed a suit and obtained a decree in 1943 to the effect that the gift was not binding on him. In 1960, X made a gift back to W of the same property which he had received in 1940. Thereafter W sold the property to Y in 1962 and died in 1964. On Ws death S claimed the property from Y. Will he succeed? Will it make any difference in your answer(i) If there had not been a gift back in 1960? (ii) If there had been a gift back to W in 1954? (iii) If W had mortgaged the property in favour of X instead of making the gift. (iv) If W had died in 1954? Give reasons. 6. X dies intestate in 1994, and leaves behind his parents F and M, surviving spouse W, two sons S1, and S2, two daughters D1 and D2. X also had an illegitimate son S3. S1 during the lifetime of X, had converted to Muslim faith and had married a Muslim girl leaves property worth Rs. 20 lakhs. Ascertain the shares of aforesaid heirs in Xs property. (a) if X was a male Hindu (b) if X was a female Hindu and the property was acquired by her. 7. A, a Sunni Muslim died in 2001, leaving behind properties worth Rs. 50 lakhs and is survived by the spouse W, two sons S1 and S2, and a daughter D. Discuss who will get the property and what would be the quantum of their shares if (a) A was a male (b) A was a female 8. Examine the validity of the following gifts: (i) Abdul makes a gift of his land to his wife Saira by a registered deed and it was accepted by her mother. There is delivery of possession to the mother of Saira also the whereabouts of her father are not known. (ii) Zafar, makes a gift of his land to his nephew, Hamid, who is a minor. Hamid is living with his uncle as his father is working in America. There is no delivery of possession, even though the gift has been accepted on behalf of the minor by the father. (iii) Zakir, makes a gift of a house in favour of his wife Zainab. The property so gifted continues to be under the management of Zakir. No mutation of the names was effected.

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LL.B. II Term (Supplementary) Examinations, Aug.-Sept., 2008 Note: Answer any five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Distinguish between a Mitakshara Coparcenary and a Hindu Joint Family. (b) Explain the concept of Benefit of Estate. (c) Discuss the validity of gift of Mushaa. (d) Discuss the validity of the gifts made during marz ul maut. (e) Discuss the remedies available to coparceners to protect their corresponding share when the Karta wants to sell the same for legal necessity without consulting them. 2. (i) What are the primary differences between the separate property and the coparcenary property held by a coparcener under Hindu law? (ii) Critically comment on the following statement: The Hindu Succession Act, 1956 has made a substantial difference in determining the character of property in the hands of the son, inherited by him from his father vis--vis grandson from the position as understood under the Classical Hindu law. 3. (a) Who can be a Karta of the Hindu Joint Family? Is this position open to a female Hindu? (b) Can the Karta of the Hindu Joint family make a gift of joint Hindu family immovable property to his married daughter after 10 years of her marriage without the consent of the other coparceners under Classical Hindu Law? 4. (i) A Hindu joint family comprised of the father, and his three sons, S1, S2, and S3. On coming to known that the father was trying to sell some of the joint family properties without any legal necessity. S1 who is aged 30 years walks upto Karta and says, I want partition and please hand me my share Karta refuses. S1 executes a gift of th share of the property in favour of his friend X and dies. Is the gift valid? Discuss in light of the rules relating to demand of a partition under Hindu law. (ii) Under what situation can a minor coparcener demand partition? Discuss, in light of relevant judicial precedents. 5. A, a male Hindu, dies in Delhi as an undivided member of Mitakshara coparcenary in 2006, and is survived by his parents M and F, his one married sister, Si, one son S and one daughter D. D. has two children DD and DS and S has a wife SW, and two children SD and SS. SS is married and has a wife, SSW, a son SSS and a daughter SSD. Determine the share of each and every member in the family if the total value of the property is Rs. 50 lakhs. Would your answer be any different if the family was domiciled in Chennai? 6. (i) A, a male Hindu dies intestate in 2005 and is survived by his widow W. He also had four children S1, S2, D1 and D2. S1 after conversion to Muslim faith got married to a Muslim girl SW and died during the life time of A after begetting a son SS. D1 got

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married to a Christian man under the Special Marriage Act, 1954. S2 who had fallen into bad company murdered As brother over a property dispute. A leaves behind property worth Rs. 50 lakhs. Discuss who would inherit his property and what would be their shares. (ii) A, a female Hindu dies intestate in 2006, and has left behind property worth Rs. 80 lakhs. She had three children from her husband H who also survives her. Her one son S1 died during her life time leaving behind his widow SW. Her other two children a son S2 and a daughter D were married to non-Hindu spouses. She also had an illegitimate child SS born to her before marriage as a result of an illicit affair with H2. Besides theses relations her parents M and F were also living with her. Discuss who gets her property and what would be their shares? 7. Discuss the rules relating to abatement of legacies under Sunni law and Shia law and determine who would get the property in the following situations and what would be their shares. (i) A, a Muslim executes one will, and gives to X, Rs. 20,000 to Y Rs. 40,000 and to Z Rs. 60,000. His total property at the time of his death consists of Rs. One lakh, eight thousand. (ii) A, a Muslim executes one will, and gives to X, Y and Z, Rs. 90,000 each out of his property. The total property he leaves at the time of his death is Rs. Two lakhs, and seventy thousand in cash. 8. A Sunni Muslim, A, dies leaving behind the parents M and F, a widow, W two son S1 and S2 and a daughter D. He leaves behind property worth Rs.60 lakhs. Discuss who will get the property and what would be their shares. What would be your answer if A was a female? ***** LL.B. II Term Examinations, May-June, 2009 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (i) Minors right to ask for partition. (ii) Difference between separate property and joint family property. (iii) Gift of Mushaa (iv) Gifts of love and affection by Karta in favour of a married daughter. (v) Distinguish between Joint Hindu Family and Mitakshara Coparcenary. 2. Raj, a Mitakshara Hindu, living in Allahabad owns the following properties. (a) A shop which he got under the will of his father; (b) A bungalow inherited after the death of his father in 2005; and (c) An office purchased out of his own earnings made in course of his medical profession, although the education was acquired with the help of joint family funds.

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Ramesh, his son, seeks partition in the above mentioned properties. Will he succeed? Give reasons. 3. A Mitakshara coparcenary consists of Rohit, the Karta and his two adult sons, Sonu and Monu. The family lives in Raigarh. They have extensive coparcenary properties in the form of 40 miles away from Raigarh. Rohit sells the land to Pawan and utitlises the sale proceeds for the following purposes. (i) making additions to and improvement in the family house; (ii) discharging a debt taken by Rohits father for gambling purpose; and (iii) for the marriage of Rohits 16 years old daughter. Sonu and Monu challenge the alienations that it is not binding on them as they never consented to such transaction and are not for legal necessity or benefit of estate. Decide. Also discuss the rights and remedies of Pawan if transaction is effected. 4. Neeraj, Nandan and Arjun are three brothers constituting a Mitakshara coparcenary. Arjun was is displeased with his eldest brother (Neeraj), informs him on 4-6-2008 on phone: I am thinking he sends a registered letter to his eldest brother expressing his unequivocal intention to separate from the joint family. On 10-6-2008 he makes a gift death of all his property in favour of Vrinda. Arjuns death occurs on 14-6-2008. Before the receipt of letter, Neeraj alienates an item of joint family property on 9-6-2008 to meet the marriage expenses of their sister, Rita. The letter sent by Arjun actually reaches Neeraj on 2-7-2008. Examine: (i) Whether Vrinda is entitled to the share of Arjun under gift deed; (ii) The status of Arjun at the time of his death whether he was member of joint family or not; (iii) Whether alienation made by Neeraj is valid? 5. X, a male Hindu governed by Mitakshara law dies in 2008 leaving behind separate properties worth Rs. 40 crores and joint family property worth 100 crores his widow W; two sons S1 (who ceased to be Hindu) and S2; two daughters D1 (married in 1982) and D2 (unmarried but deaf, dumb and blind) and two brothers Br1 and Br2. Ascertain the shares of all aforesaid persons in the coparcenary properties. What be your answer if X had died in 2000? 6. (i) Discuss the gradual legislative changes in the classical concept of Mitakshara joint family and coparcenary. (ii) What are the major features of the Hindu Succession (Amendment) Act, 2005? 7. (i) Decide the following: Priya dies in 2005 leaving behind her property inherited from her father and the following relations husband, adopted daughter, deaf son and mother. (ii) Ascertain the shares of the following heirs under Sunni law (a) X, a Sunni male died in 2002, survived by widow W, son S and son of a predeceased son SS. X left behind properties worth 20 lakhs. (b) Y, a Sunni female died in 2002, survived by a son S: daughter D and husband H. Y left behind properties inherited from her father. 8. (i) Discuss the rules relating to abatement of legacies under Sunni and Shia laws. (ii) Examine the validity of following gifts:

(a) Hamid is suffering from cancer. When he comes to known about it, he makes gift of all his property in favour of his wife. Six months later he dies. Habib makes a gift of his house to his nephew, Imraan who is staying with him. However, there is no delivery of possession of house but rent receipts are issued in the name of Imraan. ***** LL.B. II Term (Supplementary) Examinations, July-August, 2009 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks. 1. Attempt briefly any four of the following: (i) Distinguish between a Mistakshara coparcenary and Hindu Joint Family. (ii) Gift of immovable Joint Family property in favour of daughter by the Karta. (iii) Testamentary powers of a Muslim. (iv) Death bed gift under Muslim law. (v) Gift of Mushaa under Muslim law. 2. Mohandas, a Mitakshara Hindu, living in Delhi, owns the following properties: (i) A piece of land inherited from his father in 1940. (ii) A necklace worth rupees 20 lakhs from his maternal grandfather. (iii) A house, which he has got from his father under a will. (iv) A Honda city car purchased out of his earnings made in pursuance of his medical profession. The formal education in medical college was acquired with the aid of Joint Family funds. His son Sohandas, demands share in the above mentioned properties. Decide. 3. A Mitakshara coparcenary consists of father Ramlal and his two sons Shyamlal and Veerlal. Ramlal is the Karta of Joint Family. He alienates substantial portion of Joint Family property for following purposes. (a) To peform marriage of his daughter aged 16 years; (b) To meet the educational expenses of a minor child in the family; (c) To purchase a housing society flat in South Delhi. 4. A Mitakshara Joint Family residing in Delhi comprised of Ramesh and his sons Yogesh and Mahesh. Yogesh was employed at Bombay. On 01.01.1946 Yogesh addressed a registered letter a Ramesh and Mahesh expressing his intention of separate from the Joint Family. On 02.01.1946, he executed a will bequeathing his interest in favour of his wife Priyanka.On 3.1.1946. Ramesh sold the whole Joint Family property for discharging family debts. On 4.1.1946 Yogesh died of severe heart attack. The registered letter written by Yogesh, however reached Ramesh and Mahesh on 5.1.1946. Examine whether Priyanka is entitled to the share of Yogesh in the above situation. What would be your answer had Yogesh executed a will in 1961 and died a few days later without separating from the family.

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5. Motilal, a Mitakshara Hindu dies in 2007 leaving behind his widow W, a married daughter D, a son S, his father F and one married sister X. He leaves behind separate property worth rupees 24 lakhs and share in undivided property of rupees 48 lakhs. Specify the shares of the surviving members in the abovementioned property, with reference to relevant provisions of Hindu Succession Act, 1956 (amended upto date). In the above factual situation will your answer be different, if family resided in: (i) Tamil Nadu (ii) Kerala 6. (a) Suman, a Hindu female, inherited certain property from her husband in 1940. She made a gift of this property in 1942 to X. Sohan, thebrother of the husband filed a suit and obtained a decree in 1944 to the effect that the gift was not binding on him. In 1957 X made a gift back to Suman of the same property, which he had received in 1942. Thereafter Suman sold the property to Y in 1958 and died in 1959. On Sumans Death Sohan claimed the property from Y. Will he succeed? (b) W, a famle Hindu died intestate in 1968 and leaves behind her spouse H, son S1, illegitimate son S2 , unmarried daughter D1 and married daughter D2 . Ascertain the shares of aforesaid heirs in Ws property. 7. Examine the validity of the following gifts: (i) Zakir makes a gift by registered deed in favour of his wife Shabnam, who has attained the age of puberty. The gift was accepted on Shabnams behalf by the Mother in whose house Zakir and Shabnam were residing. Shabnams father and grandfather were dead. (ii) Tariq, executes a gift deed of a house in favour of his nephew Kadir, in which both of them were residing. He didnt depart from the house but paid the taxes etc. in the name of his nephew. (iii) Salman, makes a gift of a house in favour of his wife Rehana. The property so gifted continues to be under the management of Salman. No mutation of the names were effected. 8. (a) A Sunni male Muslim X, dies leaving behind parents M & F, a widow W and two son S1 and S2 and a daughter D. he leaves behind property worth rupees 60 lakhs. Discuss who will get the property and what would be their shares? (b) X, a Muslim executes one will, and gives to A, B and C rupees 80,000 each out of his property. The total property he leaves at the time of his death is rupees 2 lakhs and 40 thousand in cash. Apply the rules of abatment of legacies under Sunni law and Shia law to determine the share of A, B and C in the property of X.

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LL.B. II Term

Family Law II

Cases Selected and Edited by

Poonam Saxena Kiran Gupta Usha Tandon O.P. Sharma Pinki Sharma

FACULTY OF LAW
UNIVERSITY OF DELHI, DELHI-110007
January, 2010