Status of Illegitimates under classical and Modern

Hindu Law

S.S. Jain Subodh Law College

“STATUS OF ILLEGITIMATES UNDER CLASSICAL AND MODERN

HINDU LAW”

Project Submission as the Partial Fulfillment of Periodic Evaluation

Of FAMILY LAW II

Submission To: Submitted By:

Mr.Pankaj Avasthi Tushar Saxena

FACULTY OF LAW Roll no: - 53

VI Semester

S.S. Jain Subodh Law College

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 Status of Illegitimates under classical and Modern
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DECLARATION

I, TUSHAR SAXENA, do hereby declare that, this research problem titled “STATUS OF
ILLEGITIMATES UNDER CLASSICAL AND MODERNHINDU LAW” is an outcome of the
research conducted by me under the guidance of Mr. Pankaj Avasthi (Asst. Prof. of Law) at S.S. Jain
Subodh Law College in fulfilment for the award of the degree of B.A.LL.B. at the University of
Rajasthan. I also declare that, this work is original, except where assistance from other sources has been
taken and necessary acknowledgements for the same have been made at appropriate places. I further
declare that, this work has not been submitted either in whole or in part, for any degree or equivalent in
any other institution.

Date: 17/03/2017
Place:JAIPUR

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 Status of Illegitimates under classical and Modern
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CERTIFICATE

This is to certify that, the research problem titled “STATUS OF ILLEGITIMATES UNDER
CLASSICAL AND MODERNHINDU LAW”submitted by TUSHAR SAXENA in fulfillment for the
award of the degree of B.A.LL.B. at S.S. Jain Subodh Law College is the product of research carried out
under my guidance and supervision.

Mr. Pankaj Avasthi

Asst. Prof. of Law
S.S. Jain Subodh Law College

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 Status of Illegitimates under classical and Modern
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ACKNOWLEDGEMENT

I acknowledge with profundity, my obligation to Almighty God and my parents for giving me the grace
to accomplish my work, without which this project would not have been possible.
I express my heartfelt gratitude to my respected faculty, Mr. Pankaj Avasthi (Asst. Prof. of Law) for
providing me with valuable suggestions to complete this research problem.
I am especially grateful to all my faculty members at SS Jain Subodh Law College who have helped me
imbibe the basic research and writing skills.
Lastly, I take upon myself, the drawbacks and limitations of this study, if any.

Date:17/3/ 17
Place: Jaipur
TUSHAR SAXENA

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REVIEW OF LITERATURE

Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker

v. T.B.K. Visvanathaswami Naicker (deceased) & Ors., the Privy Council held when a Sudra had died
leaving behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the
illegitimate son and his wife would be entitled to an equal share in his property. The illegitimate son
would be entitled to one-half of what he would be entitled had he been a legitimate issue. An
illegitimate child of a Sudra born from a slave or a permanently kept concubine is entitled to share in his
father’s property, along with the legitimate children.

Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr., the facts were
that the Raja was a Sudra and died leaving behind a legitimate son, an illegitimate son and a legitimate
daughter and three widows. The legitimate son had died and the issue was whether the illegitimate son
could succeed to the property of the Raja. The Privy Council held that the illegitimate son was entitled
to succeed to the Raja by virtue of survivorship.

Thrumurthi Ranayammal v. Thrumurthi Muthamal, the Madras High Court observed, “the wordings
of Section 16 of the Hindu Marriage Act, in so far as it is relevant to a marriage void under Section 11,
leads to an anomalous and startling position which could not have been contemplated by the legislature.
The position and status of a child of void marriage should obviously be the same whether the marriage
is declared a nullity under Section 11 or otherwise.

Shanta Ram v. Smt. Dargubai, the Bombay High Court observed that the children of void marriages
would be deemed legitimate, irrespective of the decree of nullity although they would not acquire the
right to succession to the same extent as is available to the children of valid marriage.

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RESEARCH METHODOLOGY

Research Design

This Research Project titled “Status of Illegitimates under classical and Modern Hindu Law” has been
written using the doctrinal method of research, which involves the collection of data from different
sources, like articles found in journals and websites. . Doctrinal research asks what the law is on a
particular issue. It is concerned with analysis of the legal doctrine and how it has been developed and
applied. This type of research is also known as pure.

OBJECTIVES:

 TO UNDERSTAND THE CONCEPT OF ILLEGITIMACY

 TO BE AWARE OF THE RIGHTS OF ILLEGITIMATES

Hypothesis:
There is an progress in the status of illegitimates under modern Hindu law.

Research problem:
 What is the position improvement of illegitimates in classical and modern Hindu law?

Locale of study:
This project work has been done from Library, books, Articles, Home and various other sources

SOURCES OF DATA COLLECTION:

1. BOOKS
2. WEBSITES
3. ARTICLES
A primary source provides direct or firsthand evidence about an event, object, person, or work of
art. Primary sources include historical and legal documents, eyewitness accounts, results of
experiments, statistical data, pieces of creative writing, audio and video recordings, speeches etc.

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TABLE OF CONTENTS

Declaration ………………………………………………………………………………………………..
Certificate …………………………………………………………………………………………………..
Acknowledgement…………………………………………………………………………………………..
Review of Literature ……………………………………………………………………………………..
Research Methodology …………………………………………………………………………………....
Objective ……………………………………………………………………………………………………
Statement of Problem………………………………………………………………………………….….
Hypothesis …………………………………………………………………………………………………..
Locale of Study …………………………………………………………………………………………….
Statement of Problem………………………………………………………………………………………
Sources of Data Collection ………………………………………………………………………………
Introduction …………………………………………………………………………………………………
Illegitimacy as a concept...................................................................................................................
Illegitimacy under Hindu Law……………………………………………………………………………
Rights of an Illegitimate Child in the Past………………………………………………………………..
Rights of an Illegitimate Child in the present scenario …………………………………………………
Judiciary on Illegitimacy……………………………………………………………………………………
CONCLUSION…………………………………………………………………………………………………
Bibliography………………………………………………………………………………………………….

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Introduction
Transfer of a property can be made in two ways, firstly by act of parties and secondly by law. Under act
of parties, Transfer of Property Act (TOPA) exists, which gives us further divisions that is whether the
property is movable or immovable, transfer for movable property and immovable property. In my
research paper I am going to focus on immovable property. Immovable property is divided into six
parts- sale, mortgage, actionable claims, lease, exchange, and gifts, charge.

Transfer of property has been defined under section 5 of the transfer of property act. According to the
act immovable property does not include standing timber, growing crops, or grass.Interpretation of the
section also allows us to construe the fact that things that are attached to the land and which cannot be
detached from the earth and things which are permanently fixed to the earthalso come within the
definition of immovable property. For example, timber, since it is of no use until one takes it out of the
land or detaches it, it is useless therefore it is movable property.

There are six elements, which make a property transferable.

1. The requirements to be met as per Section 5 are four in number.

1. Transfer must be by a living or juristic person.

A juristic person was defined in the case ShiromanigurudwaraPrabhakar committee, Amritsar v. Sri
SomnathDass. In this case the court said that a juristic person can be an individual, firm, corporate
company, association, society, not including partnership firm. Any individual who can sue or be sued
under law would satisfy this requirement.

2. The transfer must be through a conveyance.

Conveyance can be present or future. However conveyance can take place only if there is creation of
new title. Therefore, there should have been nothing with the transferee before the title. In addition to
this the term future is used to define the future interest in the property and not the future property itself.
Therefore, the word future property itself must be transferred. Therefore, the word future is for the
conveyance.

3. Thirdly, the property itself must be transferred.

4. Fourthly, it must be made to aliving or a juristic person.

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Any kind immovable property can be transferred. Any kind of immovable property can be transferred
other than that which are given in section 6 of the TOPA. In the case Samsudden v. Abdul Husen it was
held that the chanceto transfer couldn’t be transferred. The right to re-entry, easement can’t be
transferred. Specific rights cannot be transferred, as there are only certain people who should enjoy the
right. The right to sue, public office, unlawful objects cannot be transferred.

The third element is competency as under section 7of TOPA. The individual must notbe a minor or an
insane person. The person must have the title of property or the person must have the authority to
transfer; in part or in whole, as held in the case Krishna khurhai v. grindlays bank, if transfer is made
ultra virus to the authority vested in the agent, the transfer will be void.

The fourth element being that under section 6(h)(3) the person must not be a legally disqualified
transferee. For example under section 136 of TOPA judges, legal practitioners and officers connected to
the court are disqualified from purchasing actionable claims.

The fifth element being that a valid transfer can also happen under section 9 of TOPA as an oral
transfer.

Transfer of immovable property may happen only in certain ways. They can either be through sale,
mortgagee, lease, and gifts or through actionable claims. These are modes of transfer.

1. Sale-

Contract of sale of immovable property is basically a contract, which states terms for the permanent
transfer of property. The sale takes place in accordance to the terms, which are settled by both the
parties in the contract itself. Such contract of sale does not create any interest in or charge on such
immovable property. A kind of obligation is created in respect of the ownership of the
property.Essentials of a contract of sale are several. The parties to the transfer or the vendor should be
competent enough to contract under Section 2 of the Indian Contract Act.Price is another essential
ingredient for all transactions of sale and in the absence of thisprice, which constitutes consideration, the
transfer will not be regarded as a contract of sale.Delivery of property is necessary for a transfer by way
of sale. In case of tangible property worth less than Rupees one hundred, the transfer can be made by a
registered instrument or putting the purchaser in possession of the property. If it is more than rupees one
hundred then the instrument has to be registered under Registration Act, 1908. There are certain rights
and duties of the buyer and the seller, which are subject to the contract. These rights and duties are
governed under Section 55 of the Transfer Property Act.
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2. Mortgage-

Transfer of immovable property can also take place through mortgage. Section 58(a) of the TOPA says,
a mortgage i the transfer of an interest in specific immovable property for the purpose of securing the
payment of money advanced or to be advanced by way of loan, an existing or future deist, or the
performance of an engagement which may give rise to a pecuniary liability.Ingredients of mortgage; in a
mortgage, the mortgagor transfers any one of his interests in specified immovable property to the
mortgagee. Money to be advanced by way of loan arises in the case of a running account between the
parties. Future debt is a contingent liability, which arises on the happening of some contingency. If the
promise not competed an obligation to pay arises. These may be a pecuniary liability.

An under taking be a person borrowing money not to alienate his property until the money is repaid is
not a mortgage, because there is no transfer of interest in property.

3. Charge-

Transfer of immovable property can also take place through charge. According to Section 100 whena
person by the act of parties or operation of law creates a security for the payment of money to another,
and the transaction should not be a mortgagee, the latter is said to have a charge on the property.Charge
is created by operation of law, this distinguishes mortgage, which is created by act of parties.

4. Lease-

Transfer of immovable property can also take place though lease. Section 105 defines lease. According
to it, lease of immovable property is a transfer of a right to enjoy such property, made for a certain time,
express or implied or in perpetuity in consideration of a price paid or promised, or of money, share of
crops, service or any other thing of value, to be rendered periodically or on specified occasions to the
transferor by the transferee, who accepts the transfer on such terms.

5. Transfer can also take place through exchange, gifts and actionable claims.
6. Other ways-

Immovable property can also be transferred by way of law that is if there is insolvency, succession or
the absence of a will. In the situation of the absence of a will, the court shall declare the transfer of
property by way of interstate.

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However, there are some things that cannot be transferred. Section 6 of the Transfer of Property Act
discusses the immovable properties, which cannot be transferred. Spec successions cannot be
transferred. According to section 6(a) it is void. In the case AnnadaMohan Roy v. Gom Mohan Mullick,
the appellant purchased the rights expectant upon the termination of the surviving widows rights from
the respondents and further on there was a compromise between the widow and the respondents as a
result of which the respondents got certain properties. Thus it was held in the case that compromise is
void and cannot be transferred.

In the case Karpagathachi v. Nagarathinathachi, two-widows had divided the husband’s property into
two shares and took possession of respective shares. Under the partition deed each widow gave up her
life interest. When one of the widow died her daughter took over the possession. The other widow filed
a suit against the daughter claiming for the share, which is in possession of the daughter of the other
widow. The court held that each widow transfer her right of survivorship according to section 6(a) of
transfer of property act.

Charge cannot be transferred because it is a right, which is a part of property. Compromise cannot be
transferred. Easement cannot be transferred because these are the rights or interest arising of land, which
is a part of the property but cannot be transferred. Family arrangement may be transferred. A will cannot
be transferred because it does not operate by act of parties. Auction sale cannot be transferred because
property is in possession of another.

Are benefits arising out of land immovable? Yes, benefits like crops from your land, fish and the lake
and anything 12nm from the main land are immovable and can be transferred. In the
case AnandBaherav.State of Orissa, it was held that profit arising out of land is immovable property.
The right to walk on the land and to draw fish from the lake and taking it away is immovable property as
it is the profit arising of the land. Grazing of cattle on the land is also immovable property as it is profit
arising of the land.

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Conclusion

Therefore for a property to be transferable several conditions need to be satisfied. These include that of
constituting a transfer; it to come within the definition of an immoveable property and it should not be
amongst those items, which may not be transferred under Section 6 of the Transfer of Property Act. In
addition to this it is clear that there are several kinds of transfer that may take place. Each kind of
transfer as has been explained has different procedures and conditions, which need to be satisfied. These
are hence the various elements that are required to be transferred for a property to be transferable.

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BIBLIOGRAPHY

 https://www.lawctopus.com/academike/transferability-immovable-property/
 https://www.linkedin.com/pulse/provisions-section-53a-transfer-property-act-1882-singh
 http://vle.du.ac.in/mod/book/view.php?id=9202&chapterid=13327
 https://www.legalbites.in/law-notes-property-law-definitions-immovable-property/
 https://indiacorplaw.in/2012/05/what-is-immovable-property-law-relating.html
 https://indiacorplaw.in/2012/05/what-is-immovable-property-law-relating.html

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