MITAKSHRA JOINT FAMILY

03 May 2018
15:09

1) INTRODUCTION

It is a integral part and the most characteristic way of Hindu life. For a Hindu, there is no escape from the
joint family. May be in one generation it comes into existence by partition, but again in the next generation
it comes into existence automatically, and there is no way in which one can escape from it. This is why
say that in Hindu law, there is a presumption that every family is a joint hindu family.

2) COMPOSITION OF JOINT FAMILY

The following category of persons constitute a joint Hindu Family:

a) Persons, lineally connected by male line
b) Collaterals
c) Any person related by adoption
d) Dependants
e) Son born out of marriage between a male Hindu and Christian woman under SMA
f) The wife or widows of deceased male members
g) Maiden daughters.
One of the special feature of joint Hindu Family is that it includes the illegitimate children also. They are
treated to be the members of their father’s family. Sometimes, married widowed daughters also settle in
the joint family and are treated as members thereof, entitled to maintenance.
In Narendera Nat h v. Commis s ioner of Wealt h Tax , the Supreme Court held that the expression
‘Hindu undivided family’ in the wealth Tax Act used in the sense in which a Hindu joint family is
understood in the personal law of Hindus and a joint family may consist of a single male member and his
wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu
undivided family as assessable unit must consist of a least two male members.

3) PRESUMPTION OF JOINTNESS

In Jagannat h v Lok nat h, it has been held that, this has been an accepted proposition from the
beginning that every Hindu family is presumed to be a joint family. The presumption is stronger among the
nearer relations, the remoter we go, the weaker is the presumption. In Ket haperumal v Rajendra,
where three brothers owning a joint family house were working at three different places, it was held that
they constituted a joint family; simple because they are not living jointly does not lead to an inference that
they do not constitute a joint family.
4) COPARCENARY

Within the joint family there is a narrower body called the Coparcenary. This includes the eldest male
member + 3 generations. For e.g.: Son – Father – Grandfather – Great Grandfather. This special group of
people are called coparceners and have a definitive right in ancestral property right since the moment of
their conception. Earlier only a Son/Son’s son/Son’s son’s son were coparceners – now daughters are
equally coparceners after 2005. They can get their share culled out by filing a suit for partition at any
time. A coparcener’s interest is not fixed it fluctuates by birth and deaths in the family.
In Venugopal v Union of India, it was held that the Mitakshra concept of coparcenary is based on the
notion of birth right of son, son’s son and son’s son’s son.

The difference between Mitakshara and Dayabhaga School’s conception of coparcenary: The conception
of coparcenary under the Dayabhaga School is entirely different from that of the Mitakshara School.
the Dayabhaga School, sons do not acquire any interest by birth in ancestral property, but the son’s right

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the Dayabhaga School, sons do not acquire any interest by birth in ancestral property, but the son’s right
arises only on the father’s death and the sons take property as heirs and not as survivors.

Rights conferred upon women by the Hindu Succession Act, 2005: (Specifically Focusing On Section 6)
Out of many significant benefits brought in for women, one of the significant benefit has been to make
women coparcenary (right by birth) in Mitakshara joint family property

a. Earlier the female heir only had a deceased man’s notional portion. With this amendment, both male
and female will get equal rights.
b. Women can become kartas of the property. Symbolically, all this signals that daughters and sons are
equally important members of the parental family. It undermines the notion that after marriage the
daughter belongs only to her husband’s family.
c. Now under the amendment, daughters will now get a share equal to that of sons at the time of the
notional partition, just before the death of the father, and an equal share of the father’s separate share.
Equal distribution of undivided interests in coparcenery property. However, the position of the mother
regarding the coparcenary stays the same. She, not being a member of the coparcenary, will not get a
share at the time of the notional partition.
d. The extent of the amendment Act, 2005: it extends the equal coparcenary right to a daughter born into
a family right from her birth, it will have a retrospective effect. However, the amendment act 2005 is
retrospective in nature for the following reasons:
• The opening the section 6 of the Act states “On and from the commencement of the Hindu
Succession (amendment) Act, 2005.”
• It has the condition that it will have no application in case where any disposition or alienation
including any partition or testamentary disposition of property had taken place before 20.12.2004.
• Thus to get the benefit as per the amended Act, the following conditions need to be satisfied:
1. She should have been born into the family.
2. The undivided coparcenary property must exist on 20.12.2004.
3. Partition of the property ought not to have taken place prior to 20.12.2004.
If any of the above three conditions are not satisfied then the benefit under the amended act will not
available.

5) COMMUNITY OF INTEREST AND UNITY OF POSSESSION: INTEREST BY BIRTH AND

SURVIVORSHIP

The remarkable feature of communal ownership of the Mitakshra joint family system is that one is born
with property. In no other system of law, one is born with property. A person born as a son in a Mitakshra
family acquires an interest in the joint family property the moment he is born and if he wants to separate
individualise his interest, he can do so by filing a suit for partition. In Lax mi v Lax mi , it was held that in
the absence of clear proof of ouster, the coparcener in possession of the property cannot claim adverse
possession. Secondly, no coparcener has a right of exclusive possession of any portion of joint family
property. Thus, if a coparcener who is in possession of a portion of joint family property is ousted from it,
he cannot by legal action recover the possession of the same property. He is entitled to a joint
possession and not exclusive possession.

6) RIGHT TO MAINTENANCE

Every copacener and every member of the joint family has a right of maintenance out of the joint family
property. The right of maintenance subsists throughout the life of the members so long as family remains
joint. Female members and other male members who do not get a share on partition, either because they
have no right, such as unmarried daughter or because they are disqualified from getting a share, such as
idiot or lunatic coparcener, are entitled to maintenance even after partition.

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idiot or lunatic coparcener, are entitled to maintenance even after partition.

7) COPARCENERY WITHIN A COPARCENERY

It is possible that separate coparcenaries may exist within a coparcenary.

Example: a coparcenary consists of A and his three sons B,C and D and two sons of C, CS and CS1 and
three sons of D, DS, DS1 and DS2, C and D acquire separate properties and die. CS and CS1 inherit the

separate properties and constitute a coparcenary headed by A two sub-coparcenaries come into
existence. If sons are born to CS, CS1 or DS, DS1 and DS2 they will get a birth right not merely in the
coparcenary headed by A but also in their respective sub-coparcenaries.

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CLASSIFICATION OF PROPERTY
03 May 2018
18:15

Property under Hindu law may be divided into two classes, viz.,
(1) Joint-family property or coparcenary property; and
(2) Separate property or self-acquired property.

1. JOINT FAMILY PROPERTY OR COPARCENERY PROPERTY

Joint-family property or coparcenary property signifies the property in which all the coparceners have community
of interest and unity of possession. Such property consists of:
a. Ancestral property
b. Property jointly acquired by members of the joint family
c. Separate property of a member "thrown into the common stock"
d. Property acquired by all or any of the coparcener with the aid of joint family funds

In Bhagwant P. Sulak he v. Digamber Gopal Sulak he , the Supreme Court observed that the character of
any joint family property does not change with the severence of the status of the joint family and joint family
property continues to retain its joint family character so long as the joint family property is in existence and is
not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to
convert any joint family
property into his personal property.

A. ANCESTRAL PROPERTY

Ancestral property is a specie of coparcenary or joint family property. By the term “ancestral property” is meant
that property which descends from father, father’s father and great grandfather.
Characteristics: a) Such property will devolve by survivorship and not by succession; b) It is a property in which
male issues of a coparcener acquire interest by birth.

In Hindus the ancestral business of joint family has been regarded as a distinct heritable asset. Where a Hindu
dies leaving a business it descends like other heritable property to his heirs. In the hands of sons, son’s son and
great grandsons it will become a joint family business on the death of male ancestor and the firm which consists
of male issues becomes a “joint family firm”.

B. PROPERTY JOINTLY ACQUIRED BY THE MEMBERS OF THE JOINT FAMILY

Where property has been acquired by the members of joint Hindu family by their joint labour whether in business,
profession or vocation, with the aid of joint family property, it becomes joint family or coparcenary property.
According to Bombay High Court a property acquired by the joint labour of the members, even without the aid of
joint family funds, is presumed to be joint family property in absence of any indication of an intention to the
contrary.

In Gumam Singh v. Prit am Singh & ot hers . the court further held that if property is acquired by the fund of
joint labour even if it was purchased from income derived from land which was taken on batai and cultivated
jointly there would be presumption of jointness and property would be treated as joint Hindu family coparcenary
property.

C. PROPERTY THROWN INTO COMMON STOCK

Where any coparcener voluntarily throws his self-acquired property into the joint fund with the intention of
abandoning all separate claims to it, it would be joint property, so as to be divisible among all the members.
an intention need not be express, it is sufficient if the owner blends it as one general account without
discriminating between the two, in such a way that a clear intention to waive his separate rights may be
established.
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established.

When the head of a joint Mitakshara family kept only one account of ancestral and self acquired property and
sued to amalgamate the funds, it was held that the self-acquired property became joint property.

In Lak ireddi v. Lak ireddi , the Supreme Court observed that the law relating to blending of separate property
with joint family property is well settled. Property separate or self-acquired of a member of a joint Hindu family
may be impressed with the character of a joint family property if it is voluntarily thrown by the owner into the
common stock with the intention of abandoning his separate claim thereto, but to establish such abandonment a
clear intention to waive separate rights must be established.

The doctrine is peculiar to Mitakshara school of Hindu law. When a coparcener throws his separate property into
the common stocks, he makes no gift under the Transfer of Property Act and therefore it does not amount even
transfer.

D. PROPERTY ACQUIRED WITH THE AID OF JOINT FAMILY FUNDS

Where in a joint Hindu family some property is purchased in the name of one of its members, it will be regarded
as a joint family property not his own separate property. If he has acquired any property without the help of joint
family property it could be treated as his separate property. Where any member of joint family blends his self
acquired property into common property of the family or joint family property, it all becomes joint property.

2. SEPARATE OR SELF-ACQUIRED PROPERTY

Property which is not joint is called separate or self-acquired property. The word ‘separate’ suggests that the
family was formerly joint but has now become separate. When a member separates from joint family, the
which he acquires will be treated as his separate property vis-a-vis his relations with his brothers, but so far his
sons are concerned it would be regarded as joint family property. The term “self acquisition” signifies that the
property has devolved upon him in such a manner as nobody except himself has any interest in it.

Property acquired by a Hindu in any of the following ways is his self-acquired or separate property even though
he be a member of a joint Hindu family:
a. Property acquired by a Hindu by his own exertion would be his separate property as it is not the result of any
joint labour with the other members of the joint family, provided it is obtained without detriment to joint family
property. Recently in Mak lian Singh v. Kulwant Singh, Supreme Court observed that if a male member
of the Joint Hindu Family purchased the property by his own incomes like salary income, such property is
his self acquired property. Such property inherit his heir by succession. It could not be said to be the
property of Joint Hindu Family.

b. Property inherited by a Hindu from any person other than his father, grandfather or great grandfather would be
be his separate property. Where a person earns money from the practice of a hereditary profession like the
hereditary priest, it will not be regarded as his joint family property but on the other hand his separate
property.

c. Any property obtained by a Hindu as his share of partition of a joint Hindu family, provided he has no male
issue, shall be treated his separate property. Where a Hindu makes some acquisitions after partition with the
help of his share in joint family property, that property shall be regarded as his separate property.

d. Property obtained by a Hindu by a gift or will unless made by his father, father’s father or father’s father’s
father for the benefit of the family and not exclusively for himself, would be his separate property.

In K. S. Subbiah Pillai v. Commis s ioner of Inc ome Tax , the remuneration and commission was received
by the Karta of the family. The tribunal had held that the remuneration and commission received by the Karta of
the joint Hindu family where earned by him on account of his personal qualifications and exertions and not on

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the joint Hindu family where earned by him on account of his personal qualifications and exertions and not on
account of the investment of the family funds in the company, therefore it could not be treated as the income of
H.U.F. In this case the Supreme Court also observed that the decision given by tribunal is correct.

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KARTA
03 May 2018
18:43

INTRODUCTION

In the Hindu Undivided Family, the Karta holds a very unique position. This sui generis nature of the karta is with
reference to the varied powers he holds while discharging his functions as the decision maker in various respects
of the family functionality. The karta is considered to be a person with controlled capacities but within this fringe
outline, he holds an immensely important position of responsibility.

WHO CA N BE A KARTA

Ordinarily, the senior most male member is the karta of the joint family. He does not owe his position to the
agreement or consent of other coparceners. So long as he is alive, may be aged, infirm, or ailing, he is entitled to
kartaship. So long as the father is alive, he is the karta. After his death, it passes to the senior-most male
who may be the uncle, if coparcenery consists of uncle and nephews, or who may be the eldest brother, if
coparcenery consists of brothers.

Junior male member: A landmark case in this regard is the case of Nopany Inv es t ment s (P v t ) Lt d. v.
Sant ok h Singh wherein the karta of the family was staying in U.K and could not handle the property due to the
reason of distance and thus, with the consent of all his family members, appointed his younger brother as the
Karta even though there were other members who were older than him. This was held to be valid by the court as
it held that under such situations, the younger member can be rightfully made the Karta.

In Commissioner of Income Tax v Seth Govind Ram, the SC, after reviewing the authorities, took the view that
mother or any other female could not be the karta

POS ITION OF THE KARTA

The position of karta is sui generis. The relationship between him and other members is not that of principal and
agent or of partners. As the head of the family, he acts on behalf of other members, but he is not a partner, as
powers are almost unlimited. He is the master of the grand show of the joint family and manages all its affairs
its business. His powers of management are very wide and almost totalitarian. Though he stands in a fiduciary
relationship with other members, he is not a trustee. Unless charges of misappropriation, fraud or conversion are
levelled against him, he is the master and no one can question him as to what he received and what he spent. He
is not bound to treat all the members impartially; he may discriminate one against the other.

KARTA LIABILITIES

Karta's liabilities are numerous and multifarious. He is responsible to maintain all members of the family. If he
improperly excludes any member from maintenance or does not properly maintain them, he can be sued for
maintenance as well as for arrears of maintenance. He is also responsible for the marriage of all unmarried
members. This responsibility has been particularly emphasised in respect of the daughters. If a partition suit is
filed, he has to prepare the accounts. He represents the family. He is its sole representative vis-a-vis all
and in that capacity, he has to discharge many responsibilities and liabilities on behalf of the family. He has to
taxes and other dues on behalf of the family and he can be sued for all his dealings on behalf of the family with
outsiders.

POWERS OF KARTA

1. POWER OF ALIENATION OF JOINT FAMILY PROPERTY (dealt in alienation)

2. OTHER POWERS:
With reference to the case of Bhas k aran v. Bhas k aran, it has been held that even though a Karta’s ambit
about property alienation is limited, his powers in management of the family affairs is rather absolute.

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a. Power of management : Karta's power of management are almost absolute. He may manage the family
and family property and business the way he likes; he may mismanage, no one can question his
management. He has no obligation to save or economise, no obligation to invest funds, or to invest them
properly. He may discriminate between the members of the family: to some he may give more to spend, to
some less; some may be given higher education, while others may be given only primary education. But he
cannot deny maintenance or use and occupation of property to other members. The ever hanging sword of
partition is a great check on his absolute powers. The other, and probably more effective, check is the
affection and the natural concern that he has for the members of the family and the complete faith and
confidence that members repose in him.

b. Right to inc ome: All incomes of the joint family property, whosoever, may collect them, a coparcener,
or a servant, must be handed over to the karta. No member of the joint family is entitled to any definite share
of the income of the joint family property or business. It is for the karta to allot funds to the members and to
look after their needs and requirements. So long as family remains joint, no member can ask for any specified
share in the income.

c. Right to repres ent at ion : The karta represents the family in all matters, legal, social and religious. He acts
behalf of the family and his acts are binding on the entire joint family. In Radhak ris hnan v Kularam , it was
held that the karta can enter into any transaction on behalf of the family and it will be binding on the joint
family. Even when the karta has lost a case on account of his gross negligence, it is not open to the other
members to have the decree set aside on that ground alone.

d. Power to cont rac t debt s : The karta as an implied authority to contract debts and pledge the credit and
property of the family for ordinary purposes of the family business. Such debts, incurred in the ordinary
course of business, are binding on the entire family. The expression "family purpose" has almost the same
meaning as legal necessity, benefit of estate or performance of indispensable and pious duties.

e. Loan on promis s ory not e : When the karta of a joint family takes a loan for family purpose or for family
business and executes a promissory note for the same, the other members of the family may be sued on the
note itself even if they are not parties to the note; their liabilities are limited to their share in the joint family
property, though the karta is personally liable on the note.

f. Power to ent er int o cont rac t s : The karta has power to enter into contracts and such contracts are binding
the family. It is also now settled that a contract, otherwise specifically enforceable, is also specifically
enforceable against the family.

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ALIENATION
04 May 2018
22:09

Under Hindu law, ordinarily, neither the Karta nor any other coparcener singly, possesses power of alienation
the joint family property or over his interest in the joint family property or over his interest in the joint family
property. However, under certain circumstances, such alienation can be made under Mitakshara school also.
The subject may be discussed as under:
1. Father's power of alienation
2. Karta's power of alienation
3. Coparcener's power of alienation
4. Sole surviving coparcener's power of alienation
5. Coparcener's right to challenge an improper alienation
6. Alienee's rights and remedies

• FA THE R'S POWE R OF ALIE NA TION

A father possesses more power even than Karta as there are situations in which only the father has the authority
to make alienation. Under Dayabhaga School, father is provided with the absolute powers regarding alienation, i.e.
he can alienate separate as well as ancestral property, including movable and immovable on his wish.
Father enjoys an absolute power, which empowers him to alienate the property even when there are no moral
justifications. In Ramk oomar vs . Kis henk unk ar the Supreme Court held that the gift by a father of his whole
estate to a younger son, during the life of the elder was valid though immoral; however the gift of whole ancestral
landed property was forbidden.
As regards joint or undivided property it has been held that the father can alienate undivided joint family property
only in the following two cases:
a. Gift of love and affection
b. Alienation for the discharge of his personal debts

A. GIFT OF LOVE AND AFFECTION

The father has power to make a gift of love and affection of a small portion of movable joint family property. Such
gifts may be made by him to his own wife, son-in-law, daughter etc.
Two gifts are necessary for that validity of such gifts:
1. It should be a gift of love and affection, i.e., father should stand in some relationship of affection to donee.
2. The gift should be of a small portion of movable joint family property.

Gift of immovable property: Such gifts cannot be made of immovable property, though in Guramma v.
Malappa, a gift of immovable property to daughter made by father after her marriage was held to be valid. It is
submitted that gifts of love and affection of immovable property cannot be made to sons, or for that matter to any
member of joint family. Supreme Court has confined this rule of gifts of immovable property to daughter only.

B. ALIENATION FOR THE DISCHARGE OF HIS PERSONAL DEBTS

Father has the power to alienate the family property for the discharge of his antecedent debts, which not being
immoral or illegal, the sons are under a pious obligation to discharge.
Father can alienate family property to pay his personal debts if the following two conditions are fulfilled -
1. The debt is antecedent.
2. The debt should not be Avyavaharik i.e. for unethical or immoral purposes.
The above two rules though derived from ancient Mitakshara text was also laid down in the case of Brij Narain
vs . Mangla Pras ad.

• KA RTA POWER OF ALIE NA TION

Vijnaneshwara recognized three exceptional cases in which alienation of the joint family property could be made
by the Karta:

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by the Karta:
a. Legal Necessity (this includes Vijnaneshwara’s Apatkale as well as a part of Kutumbarthe, i.e., for the sake of
members family.)
b. Benefit of estate (this includes the other part of Kutumbarthe, i.e., for the sake of family property.)
c. Acts of indispensable duty (this includes the entire head of Dharamarthe.)

Here again, there is a difference in the law prevailing in different states as to the position in case the alienation is
consented to only by some of the coparceners and not by all. As per the law in Bombay and Madras, the shares
the consenting coparceners would be bound. However, in West Bengal and Uttar Pradesh, a coparcener cannot
alienate even his own interest without the consent of all other coparceners and hence such alienation without the
consent of all coparceners would not even bind the shares of the consenting members.

A. LEGAL NECESSITY

Broadly speaking, legal necessity will include all those things which are deemed necessary for the members of
family. In Dev ulapalli Kames wara Sas t ri vs . Polav arapu Veerac harlu , it was held that necessity should
not be understood in the sense of what is absolutely indispensable but what according to the notions of the joint
Hindu family would be regarded as proper and reasonable. Thus, legal necessity doesn’t mean actual compulsion;
it means pressure upon estate which may in law may be regarded as serious and sufficient. Some of the family
necessities include: 1) maintenance of the members; 2) payment of government revenue and taxes; 3) payment
of debts; 4) performance of necessary ceremonies; 5) marriage expenses; 6) litigation costs.

In Kris handas vs . Nat huram, Privy council held that where the necessity is only partial, i.e., where the money
required to meet the necessity is less than the amount raised by alienation, in such a case, the sale will be valid
only where the purchaser acts in good faith and after due inquiry and is able to show that the sale itself is justified
by legal necessity. In the instant case, alienation was for Rs. 3500, and the alienee was able to prove the legal
necessity for Rs.3000, the alienation was held valid.

B. BENEFIT OF ESTATE

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

The second view is that anything done which is of positive benefit to the estate would amount to the benefit of
estate. The test is of a prudent owner. Anything which a prudent person can do in respect of his own property, the
karta can do in respect of the joint family property.

C. INDISPENSABLE DUTY

The third ground upon which the authority of the Karta to alienate joint Family property rests, is where
indispensable requires it. The term “indispensable duties”, implies the performance of those acts which are
religious, pious or charitable.Vijnaneshwara gave one instance of Dharmamarthe, viz., obsequies of the father and
added “or the like”. The phrase “and the like” refers to annual sraddhas, the ceremony of upanayanam, the
marriage of coparceners and of girls born in family and all other religious ceremonies.

The major case in this regards is that of Gangi Reddi vs . Tammi Reddi, wherein the Judicial Committee held
that:-
“A dedication of a portion of the family purpose of a religious charity may be validly by the Karta without the
consent of all the coparceners, if the property allotted be small as compared to the total means of the family. It
lays down the principle that the alienation should be made by the manager inter vivos and not de futuro by will".

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lays down the principle that the alienation should be made by the manager inter vivos and not de futuro by will".

BURDEN OF PROOF

In the landmark case of Hanoomapras ad vs . Babooee, it has been held that the burden of proof whether the
transaction is for legal necessity, benefit or for indispensable duty, is on alienee.
However, what the alienee is required to prove is: either there was an actual need or that he made proper and
reasonable enquires as to the existence of needs and acted honestly. It is not necessary for him to show that
every bit of consideration which he advanced was actually applied for meeting legal necessity. In short the onus
may be discharged by the alienee by:
1. Proof of actual necessity or,
2. By proof that he made proper and bonafide inquiries about the existence of legal necessity and that he did all
that was reasonable to satisfy himself as to the existence of legal necessity.

• COP A RCE NE R'S POWE R OF ALIE NA TION

The subject may be divided under two heads:

1. Involuntary Alienation.
2. Voluntary Alienation.

A. INVOLUNTARY ALIENATION

Involuntary alienation means the alienation of the undivided interest in execution proceedings. The Hindu sages
laid great emphasis on the payment of debts. The court seized this principle of Hindu law and held that the
purchaser of undivided interest at an execution sale during the life of the debtor of his separate debt acquires his
interest in such property with the power of ascertaining and realizing it by partition.

B. VOLUNTARY ALIENATION

Once it was accepted that the undivided interest of a coparcener can be attached and sold in execution of money
decree against him, it was the next logical step to extend the principle to voluntary alienation. When the owner of
property transfers it willingly, it is voluntary alienation. When a coparcener can be forced to do, he should also be
permitted to do it himself, and somehow the principle was extended to voluntary alienations.

Voluntary Alienation may be made in following forms:

GIFTS: It is a well-settled law that the gift by a coparcener in Mitakshara family of his undivided interest is wholly
invalid. A coparcener cannot make a gift of his undivided interest in the family property either to a stranger or to a
relative except for purposes warranted under special texts.

SALE AND MORTGAGE: According to Bombay, Madras and Madhya Pradesh High Courts, a coparcener has the
power to sell mortgage or otherwise alienate his undivided interest without the consent of other coparceners. In
rest of Mitakshara jurisdiction, such alienation is not permitted and a coparcener has no power to alienate hid
undivided interest by sale or mortgage, without the consent of other coparceners.

RENUNCIATION: A coparcener has power to renounce his share in the joint family property. In Alluri
Venk at apat hi Raju vs . Venk at naras imha Raju, Privy Council held that, a coparcener’s renunciation of his
interest merely extinguishes his interest in the joint estate and its only effect is to reduce the number of persons
to whom shares will be allotted if and when a division of the estate takes place.

• SOLE SURV IV ING COP A RCE NE R'S POWE R OF ALIE NA TION

When the joint family property passes into the hands of the sole surviving coparcener, it assumes the character
separate property, so long as he doesn’t have a son, with the only duty on him being that of maintenance of the
female members (the widows) of the family. Thus barring the share of the widows he can alienate the other
FAMILY LAW Page 11
female members (the widows) of the family. Thus barring the share of the widows he can alienate the other
property as his separate property. However this is not valid if another coparcener is present in the wombat the
of the alienation. But if the son is born subsequent to the transaction then he cannot challenges the alienation.

in case a widow adopts a child after the death of her husband, will such a child challenge the alienation, i.e. can
the doctrine of relation back be applied in such cases. The Mysore High Court in the case of Mahadev appav s .
Chandabas appa held that such a child can actually challenge the alienation made by the sole surviving
coparcener as he’ll have an interest in the joint family property. This is in contrast with the stance taken by the
Bombay High Court in the cases of Bhimji vs . Hanumant Rao and Babrondav s . Anna where it was held
that subsequently adopted son cannot divest a sole surviving coparcener of his right over the joint property and
hence cannot challenge any alienation made by him.

• COP A RCENER'S RIGHT TO CHALLE NGE ALIE NA TION

If the father, Karta, coparcener or sole surviving coparcener oversteps their power in making the alienation, it can
be challenged and set aside by any other coparcener who has an interest in the property, from the time he comes
to know of it till the time the suit is barred due to limitation. The burden of proof is on the alienee to prove that it
was for a valid purpose. It has been laid down that in case the alienation is made by the father for the payment of
his debts, then the burden of proof is on the alienation to prove that he had taken sufficient care to determine that
it was for the payment of debt. The sons can rebut this assumption only by proving that the debt was Avyavharik
i.e. immoral, in such a case the burden of proof that the debt was tainted is on the son.

ALIENATION IN CASE OF LEGAL NECESSITY: In Hunooman Pers aud’s cas e it has laid down that in case
the alienation was made by Karta for a legal necessity it is again for the alienee to prove that he took sufficient
care in finding out if the transaction was for necessity or no, however once it was proved that he had taken due
care, the actual presence or absence of such a necessity is irrelevant.

ALIENATION WITHOUT NECESSITY VOID OR VOIDABLE: The question whether Alienation made by a father or
other manager which is neither for a legal necessity nor for the discharge of an antecedent debt is void or
has given rise to conflicting judicial opinions.
The debate was put to rest by the Supreme Court in the case of R. Raghubans hi Narain Singh vs . Ambic a
Pras ad, where it was held that alienation made without legal necessity is not void but merely voidable.

EXISTING COPARCENER'S RIGHT TO CHALLENGE ALIENATION: It is a settled law that an improper Alienation
Alienation can be challenged by all or anyone of the coparceners existing at the time of alienation. In Bombay and
Madras, when an alienation is challenged by the coparcener, it will be set aside only to the extent of their interest
in the joint family property. As under these schools coparcener has power of alienating his undivided interest by
sale or mortgage.

COPARCENER WHO WAS IN THE WOMB AT THE TIME OF ALIENATION: Since under Hindu Law, a son
conceived is, in many respects, equal to a son born, a coparcener who is in the womb of his mother at the time of
alienation can get the alienation set aside after his birth.

AFTER BORN COPARCENER: In Shiv aji v. Murlidhar, it has been that an alienation made by a father who
has male issues and before all the sons die another son is born to him, then even after the death of all the sons
existing at the time of alienation, the subsequently born son can challenge the alienation provided the right is not
barred by limitation. The overlapping of lives give him this right, it is necessary that at the time of his conception
there must have existed an unexpired right among other coparceners to challenge the alienation.

ADOPTED SON: In Commis s ioner of Gif t Tax v Tejanat h , it has been held that a son adopted subsequent
to alienation has no right to challenge alienation even if the alienation was invalid at the time when it was made.

• ALIE NE E 'S RIGHTS AND RE ME DIE S

FAMILY LAW Page 12

KARTA'S ALIENATION: In case the alienation is valid then there would be no problem as the alienee would
automatically get all the rights of a mortgagee against the mortgager. However if the alienation is pronounced as
invalid his situation is very unclear-In the states of Maharashtra, Madhya Pradesh and Madras where the
alienation is set aside only to the extent of non-alienating coparcener’s share, there is no equity entitling the
alienee to a refund of proportionate part of purchase money in respect of those shares.

COPARCENER'S ALIENATION AND ALIENEE: where a person purchases an undivided interest of a coparcener
in the joint family property, some important issues of personal Hindu law crop up. Here ordinarily the rule of Hindu
law is that the vendee whether at a private sale or at an auction sale by court stands in the shoes of vendor, but it
does not mean that he becomes a member of joint family property like his vendor.
When translated into practice this yields him the following rights:

1. RIGHT TO PARTITION: It is now a settled law that an alienee has a right to partition and carve out his share.
a coparcener alienates his interest in the joint family property in some specific property, can the alienee file a
suit for the partition to specific property only and not for the general partition? There is difference in opinion
among various high courts on the issue:
According to the Bombay and Madras High Courts, the purchaser cannot demand the very property which has
been sold to him. He can only ask for the general partition of the interest of his alienor. The reason is that
because of the unity of ownership of the coparcenary property, the alienor coparcener cannot be held to be
entitled to the specific property to the exclusion of the other coparceners.
But on the other hand, the Allahabad and Calcutta High Courts hold that there is no need for a general
partition. The purchaser can ask for partition of the interest of the alienor in the specified property purchased
by him. The reason for partial partition is that a purchaser cannot institute a suit for partition in respect of
property in which he has no interest at all.

2. RIGHT TO MESNE PROFITS:

It is now a settled law that an alienee is not entitled to the mesne profit on the property from the day of the
purchase till the day of the partition suit is decreed. In Sidhes hwar Muk herjee v. Bhubnes hwar Pras ad
Narains ingh, The Supreme Court held that a purchaser in an auction purchase of coparceners share in
execution of a money decree against him is not entitled to mesne profits from the date of his purchase.

3. RIGHT TO SHARE IN PARTITION:

As a general rule, the alienee in a suit for partition to work out his right cannot claim that the specific
that were alienated to him should be allotted to his share. But he has an equitable claim and ordinarily the
court may assign that very property to his share if it could be done without injustice to other coparceners.

FAMILY LAW Page 13

SON'S PIOUS OBLIGATION TO PAY FATHER'S
ANTECEDENT DEBTS
05 May 2018
15:10

This concept has been almost done away with by the Hindu Succession (Amendment) Act, 2005. According to
section 6(4) of the Act, no court shall recognize any right to proceed against a son, grandson, or great grandson
for the recovery of any debt due from father, grandfather, great grandfather for the recovery of any debt due from
father, grandfather, great grandfather solely on the ground of pious obligation under the Hindu law though if any
debt was contracted before this Act came into force i.e. before 9th September, 2005, a creditor's right would not
be affected to proceed against the son, grandson or great grandson or any alienation would also be not affected
which was made in satisfaction thereof.

Mukherjea J., delivering the judgment of the Supreme Court in Sidhes hwar v. Bhubanes hwar Pras ad, has
once again discussed this question. According to the learned Judge, the doctrine of pious obligation. "has its
origin in the conception of Smriti writers who regard non-payment of debt as a positive Sin, the evil consequences
of which follow the undischarged debtor even in the after world. It is for the purpose of rescuing the father from his
torments in the next world that an obligation is imposed upon the sons to pay their father's debts."

NA TURE OF LIAB ILITY

Under the doctrine of pious obligation of the son, the entire joint family property is liable. The doctrine of pious
obligation is the logical corollary to the son's birth right. The doctrine is not recognized under the Dayabhaga
school. But it is applicable to the Thiyyas of Kerala among whom polyandry prevails.

DEBT MUST NOT BE AVYAVAHARIKA: Colebrooke defined it as a liability incurred for a cause repugnant to
good morals. If it is unrighteous or wholly improper they cannot be called vyavaharika or legal debts.
In a decision of a Full Bench in Bombay High Court it was held that Avyavaharika debt means illegal, dishonest
immoral one. It is not essential for the son to prove criminal liability of the father in order to claim exemption. So,
where a person in possession of property, to which he is not entitled, disposes of that property and deprives the
rightful owner of that property, his conduct is dishonest and the son is not liable for the debts arising out of such
conduct.
Lord Dunedin of the Privy Council defined the antecedent debts as antecedent in fact as well as in time i.e. not a
part of transaction impeached. Thus two condition are necessary:
1. The debts must be prior in time and
2. The debts must be prior in fact.

A son could claim immunity only where the debt in its origin was immoral by reason of the money having been
obtained by the commission of an offence; but not where the father came by the money lawfully but subsequently
misappropriated it. It is only in the former case that the debt answers the description of an Avyavaharika debt.

BURDEN OF PROOF THAT THE DEBT IS TAINTED IS ON SONS: The burden of proof that the debt is tainted is
on the sons. The reason is simple. The obligation on the sons to pay off their father's personal debts is a religious
obligation and if they want to wriggle out of it, they can do so only if the debt is tainted. Thus, they must establish
that the debt is tainted. The sons also have to show that the creditor had the notice or knowledge that the debt
was tainted.

In Kes hav Nandan Sahay Vs . The Bank of Bihar it was said that sons are liable under the theory of pious
obligation for the preparation debts incurred by the father. The doctrine of pious obligation cannot apply to the wife
and she, therefore, cannot be liable to the creditors on the principles applicable to the sons. On a partition
between a coparcener and his sons, a share is allotted to the wife in her own right and she cannot be treated as
mere representative of the husband. The principle is based upon ancient Hindu texts which do not mention the
wife in the category of the sons and there is no statutory enactment ex- tending that doctrine so as to include her.

FAMILY LAW Page 14

WOMAN'S PROPERTY - STRIDHAN
05 May 2018
15:36

Before 1956, the property of woman was divided into two heads: a) Stridhan, and b) woman's estate. Section
HSA has abolished the woman's estate.

STRIDHAN

Literally, the word Stridhan means, woman's property. But in Hindu law it has, all along, been given a technical
meaning. According to the Smritikars, the stridhan constituted those properties which she received by way of
from the relations which included mostly movable property such as ornaments, jewellery and dresses.

ENUMERATION OF STRIDHAN
The following categories of properties have been held to be stridhan:
1. Gifts and bequests from relations
2. Gifts and bequests from strangers
3. Property acquired by self-exertion and mechanical arts
4. Property purchased with stridhan
5. Property acquired by compromise
6. Property obtained by adverse possession
7. Property obtained in lieu of maintenance

WOMA N'S ES TA TE

The following two categories of property have been considered as woman's estate: 1) Property obtained by
inheritance; 2) Share obtained on partition.

CHARACTERISTIC FEATURES:

The characteristic features of the woman's estate is that the female takes it as a limited owner. However, she is
an owner of this property in the same way as any other individual can be the owner of his or her property,
to two basic limitations: a) she cannot ordinarily alienate the corpus, and b) on her death, it devolves upon the
next heir of the last full owner. In Jank i v. Naray ans ami , the Privy Council aptly observed, “her right is of the
nature of right of property, her position is that of the owner, her powers in that character are, however limited…
So long as she is alive, no one has vested interest in the succession.”

THE HOLDER OF WOMAN'S ESTATE HAS THE FOLLOWING POWERS

a. POWER OF MANAGEMENT- like the Karta of a Hindu joint family she has full power of management. The
Karta is merely a co-owner of the joint family, there being other coparceners, but she is the sole owner. She
alone is entitled to the possession of the entire estate and its income. Her power of spending the income is
absolute. She need not save and if she saves, it will be her stridhan. She alone can sue on behalf of the
estate and she alone can be sued in respect of it.4 Any alienation made by her proper or improper is valid
binding so long as she lives. She continues to be its owner until the forfeiture of estate by her re-marriage,
adoption, death or surrender.

b. POWER OF ALIENATION: She has limited powers of alienation, Like Karta her powers are limited and she
can alienate property only in exceptional cases. She can alienate the property for the following: 1) Legal
necessity; 2) For the benefit of estate; 3) For the discharge of indispensable duties.
Under the first two heads her powers are more or less the same as that of the Karta. Restrictions on her
powers of alienation are an incident of the estate and not for the benefit of the reversioners.5 As to the power
of alienation under the third head, a distinction is made between the indispensable duties for which the entire
property could be alienated, and the pious and charitable purposes for which only small portion of property
can be alienated. She can make alienation for religious acts, which are not essential or obligatory but are still
pious observances which conduce to the bliss of her deceased husbands soul.

FAMILY LAW Page 15

 pious observances which conduce to the bliss of her deceased husbands soul.

c. SURRENDER- means renunciation of estate by the female owner.7 She has the power of renouncing the
estate in favour of the nearest reversioner. This means that by a voluntary act she can accelerate the estate
the reversioner by conveying absolutely the estate thereby destroying her own estate. This is an act of self -
effacement on her part and operates as her civil death.

REVERSIONERS- On the death of the female owner the estate reverts to the heir or the heirs of the last owner
if the latter died when the limited estate ceased. Such heirs may be male or female known as reversioners. So
long as the estate endures there are no reversioners though there is always a presumptive reversioner who has
only a spes successionis (an exception). The property of the female devolves on the reversioners when her
estate terminates on her death, but it can terminate even during her lifetime by surrender.

RIGHT OF REVERSIONER: The reversioners have mainly the following three rights:
a. They can sue the woman holder for an injunction to restrain the waste.
b. They can, in representative capacity, sue for a declaration that an alienation made by the widow is null and
void, and will not be binding on them after the death of the widow.
c. They can, after the death of the woman or after the termination of estate, if earlier, file a suit for declaration
possession or both) that an alienation made by the widow was improper and did not bind them.

Section 14 HSA has abolished the woman's estate, yet reversioners are still relevant in respect of woman's
alienated by her before June 17, 1956.

The most important section, however with respect to women's property is Section 14 of the Hindu Succession
The property that was limited estate becomes her full estate by virtue of Section 14 of the HSA. She can
it by gift or otherwise.

Before explaining section 14(1), it is important to mention section 14(2). It retains the power of any person or
to give limited estate to a woman in the same manner as a limited estate may be given to any other person.
Section 14(1) is subject to 14(2), and it states that any property that is acquired by a female, except which is
covered by sub section (2), before the Act came into force and which is in her possession when the Act came
force will become her absolute property, and also the property that she acquires after the commencement of the
Act, except for the property covered under Sub section (2) shall become her absolute property. So section 14
gives absolute right to property to the female, to both properties acquired before and after the act.

For properties acquired before the commencement of the Act, there are two conditions-
1. Ownership of property must vest in her
2. She must be in possession of the estate when the Act came into force

OWNERSHIP MUST VEST IN HER: The Supreme Court in Gummalappura v Set ra laid down that: ‘ the word
possessed in S. 14 is used in broad sense and in the context means the state of owning or having in one's hand
or power'. It follows from this that if the female cannot claim any title to property, then merely by virtue of her
possession, she can become its absolute owner. It was laid down in Eramma v Verupana that property
possessed by a female Hindu , as contemplated by the section, is clearly property to which she has acquired
some kind of title whether before or after the commencement of the Act. Section 14 does not in anyway confer a
title on the female Hindu where she did not, in fact, possess any.

PROPERTY MUST BE IN HER POSSESSION:

The term possession has been given a very wide interpretation. It includes both constructive and actual
possession. Possession with trespasser has been considered to be constructive possession and so has
possession with mortgagee, licensee or lessee. Possession has been considered co-extensive with ownership.
Thus, whenever the woman has the ownership of property vested in her, she will be deemed to be in, its
possession, and if the ownership does not vest in her, even if she is in actual or physical possession, she will
be deemed to be in its possession within the meaning of the section.

FAMILY LAW Page 16

be deemed to be in its possession within the meaning of the section.
It was held in Brajabanjhu v Lubarani that when a widow holds an estate as an heir of her husband, on the
coming into force of the Act, it becomes her absolute property.

The court resolved all controversies with respect to Section 14 in Radha v Hanuman and the present law is -
1. Section 14 has qualified restrictive application: it converts only those women's estates into full estates over
which she has possession. Possession here means in the widest possible sense when the act came into
force.
2. Section 14 does not apply to those women's estates over which a Hindu female has no possession when the
Act came into force, in such a case the old Hindu law continues to apply.

FAMILY LAW Page 17

PARTITION
09 May 2018
15:20

The partition means bringing the joint status to an end. Under the Mitakshara school, partition means two
1. Severance of status or interest, and
2. Actual division of property in accordance with the shares so specified, known as partition by metes and
bounds.

Under Dayabhaga law, partition means only division of property by metes and bounds. Under the Dayabhaga
law, it means division of property in accordance with the specific share of the coparcener. It means, splitting up
joint possession i.e. parting or dividing the share among coparcener according to metes and bound. Division of
property in accordance with the specific share of the coparceners. Under the Dayabhaga the essence of
coparcenary is unity of possession, while in Mitakshara it is unity of ownership. Under Dayabhaga Law, every
adult coparcener whether male or female is entitled to enforce partition.

PROPE RTY LIA BLE FOR PARTITION

It is only the coparcenary property which is subject to the partition. The separate property is not liable to
at all, as it belongs absolutely to the owner thereof.
Secondly, the property to which the law of primogeniture applies, cannot be divided, e.g., a Raj. Nor can family
idols and place of worship can be divided. Similarly, the following properties are not liable to partition:
1. Impartible estate i.e., property which descends to one member only, either by custom or under any
of law or by terms of grant.
2. Property indivisible by nature, e.g., ponds, staircase, passage
3. Family idols and relies which are object of warship
4. Separate property of a member
5. The places of worship and sacrifice or the property which has been dedicated to religious and charitable
purposes.
6. The well and the rights to draw water from the well
7. The ornaments and the dress materials given to the wives of the coparceners
8. The headship of a Math

Manu says- following properties are not subject to in division

1. Properties indivisible by nature like Dress, vehicle, Ornaments, Cooked food, Water and female slaves,
as road, garden, utensils, documents, right to way, furniture etc.
2. Properties meant for pious use, or scarifies, object for worship.3.
3. Separate property of a member
In respect of those properties three methods of adjustment are available-
1. may be enjoyed by coparcenary by jointly or by turn
2. May be allotted to the share of coparcener and its value adjusted.
3. May be sold and distributed the incident

DEDUCTIONS AND PROV ISIONS

Before division can take place, the Shastrakars have ordered that out of the joint family properties, provision
sshould be made for the following liabilities of the family:
a) Debts
b) Maintenance
c) Marriage expenses of daughters
d) Performance of certain ceremonies and rites

FAMILY LAW Page 18

d) Performance of certain ceremonies and rites

(Write as much stories as you want under the above sub headings.)

PERSONS WHO ARE ENTITLE D TO DEMA ND PARTITION

Every coparcener has a right of partition and entitle for share in partition.
1. Father- he can impose a partition, partial or total between his minor son and himself with bonafide intention,
else, it will reopen. In case of major son and father, it should be by mutual consent.
2. Sons and Grandsons, and grate grandson. Under Bombay School, the son has no right partition without the
assent of his father, if the father is join with his own father and in case of Punjab Customary Law, as under
Punjab Customary law son have no right by birth.
3. Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be reopen to give the
share after born son. However Gautama, Manu, Nerada says the after born son could get the share of his
father alone. The Mitakshra reconciled this conflict by holding that the latter texts lay down the general rule
while the former texts lay down a particular rule applicable to a son in the womb at the time of the partition.
4. Son conceived at the time of partition but born after partition: The texts lay down that if the pregnancy is
known, the partition should be postponed till the child is born. But if the coparceners do not agree to this,
then a share equal to the share of a son should be reserved for the child in the womb. In case no share is
reserved for the son in the womb, he can, after his birth, demand re-opening of the partition. If pregnancy is
not known and consequently, no share is reserved, then also the redistribution of the estate should take
place after the birth of the son. In other words, in such a case also, the after born son can get the partition
reopened, as said in the case of Bho Bis hen v Amaida.

MODE OF PA RTITION

PARTITION BY SUIT: When a coparcener files a suit for partition, it amounts to an unequivocal intimation of
intention to sever, and consequently, severance of status takes place from the date the suit is instituted.
PARTITION BY AGREEMENT: A partition may be effected between the parties by an agreement. The Privy
Council in Approv ier v Rama said that intention being the real test, an agreement between the coparceners
to hold and enjoy property in defined shares as separate owners operates as a partition although actual division
of properties might not have taken place.
ORAL PARTITION: There is a long line of cases holding the view that oral partition can be validly made.
PARTITION BY ARBITRATION: A partition may be effected by arbitration. If members of a joint family enter
an agreement under which they appoint arbitrators for dividing the joint family property among themselves, the
severance of status takes place from the date of the agreement, as said in Sy ed v Jorawar.
PARTITION BY CONDUCT: The severance of status may also take place by conduct. The conduct, like a
declaration of intention, must be unequivocal, explicit and definite.
AUTOMATIC SEVERANCE OF STATUS: Conversion of a coparcener to a non-Hindu religion operates as an
automatic severance of status of that member from others, but it does not amount to severance of status of
member from others, but it does not amount to severance of status among the other members inter se.

REOPE NING OF PA RTITION

The courts have taken the view that though a partition once effected is final, yet it can be reopened in case of
fraud, mistake or subsequent recovery of property. It seems that the matter should be looked at from the two
angles. First, if readjustment is possible, partition need not be reopened. But if equities cannot be solved by
readjustment, partition may be reopened.

Generally, a partition can be reopened if it was obtained by fraud, coercion, misrepresentation or undue
influence.

1. FRAUD: When the whole scheme of distribution of properties is fraudulent, it will be ordered to be set aside,

FAMILY LAW Page 19

1. FRAUD: When the whole scheme of distribution of properties is fraudulent, it will be ordered to be set aside,
unless the person injured has acquiesced in it with full knowledge of all material facts.
2. SON IN WOMB: It has been seen earlier that if at the time of partition, a son is in the womb, and no share
reserved for him, he can get the partition reopened.
3. DISQUALIFIED COPARCENER: A disqualified coparcener, who recovers from his disqualification after the
partition, can get the partition reopened, as if he was an after born son.
4. ABSENTEE COPARCENER: If at the time of partition, a coparcener is absent and no share is allotted to
him, he can get the partition reopened.

In Venk at a Subramania v Es wara, the Madras High Court held that when in a partition one member gets
an excess share, and out of the income of the excess share, he acquires fresh property, he does not hold the
fresh property for the benefit for the other sharers when the partition is subsequently reopened on the ground of
unequal partition. However, he will be liable to account for the co-ownership funds used by him.

REUNION

Once a partition is effected as a general rule, it cannot be re-opened. However, there is an exception to this
general rule which is based on a text of Vrihaspati who says, “He, who, being once separated, dwells again
through affection with his father, brother or paternal uncle, is termed “reunited”.
To constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit
concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention
to revert to their formal status of members of a joint Hindu family. Such an agreement need not be express, but
may be implied from the conduct of the parties alleged to have re-united. But the conduct must be of such an
incontrovertible character that an agreement of reunion must be necessarily implied there from”.

EFFECT OF REUNION: The effect of reunion is to revert the united members to their status as members of
Hindu family. But the separate property of a reunited coparcener does not pass by survivorship to the other
reunited coparceners but passes by succession to his heirs according to special rules.

FAMILY LAW Page 20

CHANGES BROUGHT BY H S A (AMENDMENT) ACT 2005
09 May 2018
17:53

The Changes brought about by Hindu Succession (Amendment) Act 13 of 2005 (39 of 2005) are mentioned
below:
1. Section 4 clause (2) of the principal Act was omitted, where it was declared that the Act shall not affect
provision of any law providing for prevention of fragmentation of agricultural holdings or the fixation of
ceilings or for the devolution of tenancy rights in spite of such holdings.

2. Section 6 of the principal Act which deals with devolution the interest of the female coparcener and rule of
survivor ship, is re-casted and modified. From the commencement of the Hindu Succession (Amendment)
Act 2005, with reference to joint family governed by Mitakshara Law, the daughter becomes coparcener
birth and has all rights in the same manner as the son. She has the same rights and liabilities in the said
coparcener’s property as that of a son.

Now, any reference to Hindu Mitakshara coparcener will be deemed to include references to a daughter of
a coparcener. However, this section will not affect any disposition or alienation including any partition or
testamentary disposition of property that took place before 20 December, 2004.

The incidence of coparcenary ownership shall automatically follow. It was also provided that after the
commencement of amendment Act, if a Hindu dies having interest in the joint family property governed by
Mitakshara Law. It shall devolve by testamentary or intestate succession under this Act and not by
survivorship and coparcenary property shall be deemed to have been divided as if the partition had taken
place; and the daughter is allotted, the same share as allotted to a son. The share of pre-deceased son or
a pre-deceased daughter as they would have got, had they been alive at the time of partition, shall be
allotted to the surviving child or such predeceased son or as such of pre-deceased daughter, as case
be.

Similarly, the share of a pre-deceased child or a pre deceased son or a pre-deceased daughter, as such
child would have got had he or she had been alive at the time of partition, shall be allotted to the child of
such pre-deceased child of the pre-deceased son or a pre-deceased daughter as the case may be. Thus,
complete justice is sought to be extended in so far as daughter is concerned as an heir.

3. The Archaic Doctrine of Pious and obligation has been abrogated under section 6 clause (4). However,
this provision is not applicable if the debt is contracted before the commencement of the Act. As a
rule, this amendment was not applicable in case the partitions effected before 20 day of December, 2004.

4. Section 23 has been omitted under the Amendment Act. This section disentitled a female heir to seek
partition of a dwelling house until the male heirs choose to divide.

5. Section 24 has been omitted under the Amendment Act. The preexisting section provided that any heir
who is related to an intestate as the widow of pre-deceased son or the widow of a brother shall not be
entitled to succeed to the property of intestate as such widow, if on the date the succession opens she
remarried.

It is submitted that the above amendment has come so late in the day, Mitakshara Law in the context of
globalisation is slowly losing its relevance and it is an anachronism. It may also be noted that when there
unrestricted right of succession women discrimination continues.

FAMILY LAW Page 21

LIVE IN RELATIONSHIP AND SUCCESSION LAWS
09 May 2018
18:06

INTRODUCTION

Live-in relationship in India is often seen as a taboo and a sin. However, it is not very uncommon to find people
big metros staying together as husband-wife without any marriage. None of the statutes dealing with succession
or marriage such as the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 or the Indian Succession Act,
1925 recognise live-in relationship directly. Under the Hindu Marriage Act, children born out of such relationships
are considered to be legitimate and have been granted the right to succession. However, Protection of Women
from Domestic Violence Act, 2005 recognises
the right of protection of a person in “relationship in the nature of marriage” from domestic violence and can get
monetary and other reliefs under the Act.

SUCCE SS ION RIGHTS OF LIV E IN COUP LE S

The legal position regarding succession rights in live-in relationship is quite unclear. It is necessary that there
should be a proper legal framework to remove the confusions and the ambiguities in the current law.
However, it would be interesting to note that Indian Courts are showing a trend of trying to apply or observe if the
concept of “palimony” which arises out of the famous case of Marv in v. Marv in in California Supreme Court
be applied in India as well.

In Marvin v. Marvin, the plaintiff and the defendant stayed together without getting married and agreed to share
their efforts and earnings together. The Court held that: “(1) The provisions of the Family Law Act do not govern
the distribution of property acquired during a nonmarital relationship; such a relationship remains subject solely
judicial decision. (2) The courts should enforce express contracts between nonmarital partners except to the
extent that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the
absence of an express contract, the courts should inquire into the conduct of the parties to determine whether
that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit
understanding between the parties.”

Though, the judiciary have for long presumed marriage for partners living together for long as husband and wife.
The unclear position based on facts, results in an unnecessary legal process for claiming inheritance right. There
is a need to expand the definition of family to “include committed domestic partners”. Without recognising the
inheritance right of such partners, it would be denial of respect for donative intent of the intestate in return of
concern shown for the partner.

However, the state should make such legislation so that the couples who are unmarried and staying together for
long can get certain social benefits like inheritance rights. The state should support in the needs of unmarried
people who resides with one with whom he or she may or may not be in a romantic or sexual relationship. The
status accorded to such partners may be achieved through a registration process where they nominate each
other as “domestic
partners”. Such domestic partners can get registered with equal terms and conditions.

Though the process of nomination is no doubt a good option, however it cannot be better if such live-in partners
get intestate inheritance rights like any other married couple. This can be achieved through special separate
legislation. Professor Waggoner suggested in his seminal article mentioned about a multi-factor approach for
intestate succession by “de facto partners”. In his later work, he stated that “committed domestic partner” should
get automatic intestate inheritance with a smaller share than of a spouse “in recognition of the competing claims
of the decedent's blood or adoptive relatives, and to some extent to
maintain the incentive to enter into formal marriage.”

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SECTION 23 OF H S A 1956
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Now Section 23 has been omitted by the Hindu Succession (Amendment) Act, 2005. In Prabhuday al v. Smt .
Rams iy a & ot hers , the Court upheld that, before coming into force of amended Act of 2005, female heir of
joint Hindu family was not entitled to ask for partition of the dwelling house occupied by joint Hindu Family
unlike the male heirs choose to divide their respective shares therein but Section 23 of the Act, 1956, has been
omitted by Section 4 of the Amendment Act, 2005, which would mean that from the date of enforcement of
amended provision to the Act, the female heir of a coparcener can ask for partition of the dwelling house
because according’ to Section 6 of the amending Act, her status is also that of a coparcener.

In G. Sark ar v. Geet ha and others, the court upheld that, the legislature intended to achieve the goal of
removal of discrimination only as contained in Section (6) of the Act but also conferring an absolute right in a
female heir to ask for a partition in dwelling house wholly occupied by a joint family as provided for in terms of
Section 23. Now this section has been omitted and so removes the disability on female heirs.

The operation of amendment Act is prospective in nature. Before omission Section 23 laid down provisions for
dwelling houses. According to the note of the Joint Committee this section has restricted the right of female
to claim partition of the family dwelling house so long as the male heirs did not choose to effect partition of the
same, but it expressly recognised her right to reside in such house.

Before omission section 23 was as under.

“Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the
Schedule and his or her property includes a dwelling house, wholly occupied by the members of his or her
family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition
the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the
female heir shall be entitled to a right of residence therein : Provided that where such female heir is daughter,
she shall be entitled to a right of residence in the dwelling house only if she is unmarried, or has been deserted
by or has separated from her husband or is a widow.”

The old Section 23 applied if the following conditions were fulfilled:—

1) Where a male or female died intestate,

2) The male dying intestate had left surviving him or her both male and female heirs as specified in class I of
the Schedule. When there were only male heirs or only female heirs of the intestate or the heirs left behind
her or him belong to class II of the Schedule or agnates or cognates, the Section would not apply.
3) The property of the intestate included a dwelling house wholly occupied by the members of his or her
If the property did not include a dwelling house, it was open to partition. In case the dwelling house was not
wholly occupied by the members of the family of the intestate, there should be no snag in demanding the
partition.

Thus in order to attract the provisions of this section it must be proved that the house was a dwelling house and
it was occupied wholly by the members of the family of the intestate. If the dwelling house was occupied partly
by members of the family of the intestate and partly by a tenant the provision was not attracted and the house
was open to partition. The right to demand partition by a female heir specified in class I of the Schedule was
deferred until the male heirs choose to divide their respective shares therein.

Whether a particular house can be regarded as the dwelling-house contemplated by the section or not will also
depend upon the facts and circumstances of a particular case.

Section 23 was intended to prevent a situation in which partition of the family house by a female heir could play
a havoc in family by creating hardships to the son or sons of the intestate. It could also entail a forced sale of
house or certain partition of it to a stranger causing new problems to arise for the entire family

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house or certain partition of it to a stranger causing new problems to arise for the entire family

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GIFT UNDER HINDU LAW
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According to the Mitakshara, “a gift consists in the relinquishment, without consideration, of one’s own right in
property, and the creation of the right of another. The creation of another man’s right is completed on that
acceptance of the gift, but not otherwise.”

According to Hindu law, an acceptance of a gift can be made in three ways:-

i. Mental acceptance;
ii. Verbal acceptance;
iii. Corporeal acceptance;

In the case of land, there can be no corporeal acceptance without enjoyment of the produce of such land. Such
gift must be accompanied by some possession, however little it may be; if not, the gift will be incomplete.

PROPE RTIES WHICH CA N BE DISP OSE D BY GIFT

The following species of property can be disposed of by gift under Hindu Law:

1) A Hindu is entitled to dispose of his separate or self-acquired property by gift. This is, in certain cases,
subject to the claims for maintenance of those members of his family, whom he is legally bound to maintain.
2) As regards a gift of coparcenary property, there is a difference of opinion prevailing amongst the two
of Hindu law. According to the Dayabhaga School, a coparcener can gift away his coparcenary interest,
subject to the claims for maintenance of those who are entitled to be maintained by him. However,
to the Mitakshara School, a coparcener cannot do so, except when he is the sole surviving coparcener. The
Mitakshara School, however, does recognise the right of a father to dispose of by gift a small portion of the
joint family property.
3) Under the Dayabhaga law, a father is entitled to dispose of even the whole of his property (whether ancestral
or self acquired), subject to the claims of those who are entitled to be maintained by him.
4) Before 1956, a female Hindu was entitled to dispose of only her stridhana property by gift. Today, she can
dispose of all her property by gift, whether it be stridhana, or whether it is obtained by her by inheritance
her husband or otherwise in whatsoever manner. (See Section 14 of the Hindu Succession Act, 1956.)
5) The owner of an impartible estate can dispose it of by gift (or by will), unless there is a special custom
prohibiting such alienation or the tenure is of such a nature that the estate cannot be alienated.

GIFT WHEN COMPLE TE

The traditional Hindu Law rules as to gifts were radically modified in 1882, by the passing of the Transfer of
Property Act in that year. Under S. 123 of that Act, a gift of immovable property can only be effected by a
registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Thus, delivery
of possession is not an ingredient of a gift under that Act. As regards movable property, the Act provides that a
gift may be
effected by a registered instrument signed as aforesaid, or by delivery.

However, it may so happen that the subject-matter of the gift is of such a nature that it is not possible to gift
physical possession, in which case, in order to validate the gift, it is enough if the donor has done all that he
could do to complete the gift, so as to entitle the donee to obtain possession thereof. (Kalidas v. Kanhay a
Lal. 11 Cal. 121)

Thus, if a gift is made of a property which is in the adverse possession of a third person, such a gift can be
completed by the execution of a gift deed by the donor in favour of the donee. Similarly, a gift of property in the
occupation of tenants can be completed by the tenants atoning to the donee at the request of the donor.
Likewise, if the property to be gifted is already in the possession of the donee, such a gift can be completed by
the declaration of

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the declaration of
the gift on the part of the donor and by acceptance thereof by the donee.

In cases where the Transfer of Property Act applies, the Hindu law rules that delivery of possession is essential
to the validity of the gift, has been abrogated by S. 123 of that Act. Under the Act, delivery of possession is not
necessary to complete a gift. Similarly, mere delivery is not sufficient to constitute a gift, except in the case of
movable property. In the case of immovable property, a gift can only be made by a registered instrument signed
by or on behalf of the donor and attested by at least two witnesses.

It may also be noted that although the Transfer of Property Act dispenses with the Hindu Law rule of delivery of
possession, the Act does not dispense with the necessity of acceptance, as is clear from S. 122 of that Act.

REV OCA TION OF GIFT

Under Hindu law, once a gift is complete, it is binding on the donor, and it cannot be revoked by him, unless it
has been obtained by fraud or under influence. (Ganga Bak as h vs . Jagat Bahadar)

The courts have also observed that where a gift is made by a Hindu widow, the burden lies upon the donee to
show that the widow made the gift with a full understanding.

In Deo kura vs . Man kura (1894), a gift was set aside in a suit brought eight years after the date of the gift
on the ground that the document of the gift was not explained to the donor.

GIFT TO UNB ORN CHILD

Gifts to unborn persons were not recognised by the traditional Hindu law. This rule still holds good, except in
cases covered by any of the three following Acts, viz.,
1) The Hindu Transfers and Bequests Act, 1914
2) The Hindu Disposition of Property Act, 1916
3) The Hindu Transfers and Bequests (State of Madras) Act, 1921

The provisions may be summed up in the following four heads:

a) If the gift made to an unborn person is preceded by a prior disposition, the gift should be of the whole
residue.
b) The gift must not contravene the rule against perpetuities laid down in S. 14 of the Transfer of Property Act.
c) If the gift is given to a class of persons with regard to some of whom it is void (under Rule 1 or Rule 2
the gift will fail with regard to such persons only, and not in regard to all such persons.
d) If the gift to an unborn person is void under Rule 1 or Rule 2 above, any gift intended to take effect after
gift, will also be void.

DONATIO MORTIS CA US A

Under Hindu law, a donatio mortis causa (death bed gift) is valid, as decided in Bhas k ar v Saras v at i. Such a
gift must conform with all the requirements of a valid gift under Hindu law, since Hindu law makes no distinction
between a gift made in contemplation of death and other gifts. Section 129 of the Transfer of Property Act, 1882
excludes from its purview gift of movable property made in contemplation of death.

Section 191 of the Succession Act, 1925 deals with donatio mortis causa. It says,
191.(1) A man may dispose, by gift made in contemplation of death, of any moveable property which he could
dispose of by will.

(2) A gift said to be made in contemplation of death where a man, who is ill and expects to die shortly of his
illness, delivers to another the possession of any moveable property to keep as a gift in case the donor shall die
of that illness.

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of that illness.

(3) Such a gift may be resumed by the giver; and shall not take effect if he recovers from the illness during
it was made; nor if he survives the person to whom it was made.

A donatio mortis causa may be made orally or in writing, but the intention to pass the property in the thing given
must be clear and the property be actually delivered and accepted by the donee in the donor's lifetime.

Commis s ioner of Gif t Tax , Ernak ulam v Abdul Karim Mohd : The requirements of a gift in
as laid down by Section 191 of the Indian Succession Act are: (i) the gift must be of movable property; (ii) it
must be made in contemplation of death; (iii) the donor must be ill and he expects to die shortly of the illness;
(iv) possession of the property should be delivered to the donee; and (v) the gift does not take effect if the donor
recovers from the illness or the donee predeceases the donor. (Can be used for Marz ul Maut also.)

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CHRISTIAN LAW OF SUCCESSION
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The Christian Law of Succession is governed by the provisions in the Indian Succession Act, 1925. However,
with respect to Indian Christians, the diversity in inheritance laws is greatly intensified by making domicile a
criterion for determining the application of laws. Till January 1986, Christians in the State of Kerala were
governed by two different Acts - those domiciled in Cochin were subject to the application of the Cochin
Christian Succession Act, 1921, while the Travancore Christians were governed by the Travancore Christian
Succession Act, 1916. These two Acts have now been repealed and the Christians following these laws earlier
are now governed by the general scheme of inheritance under the Indian Succession Act, 1925.

Christians in the State of Goa and the Union Territories of Daman and Diu are governed by the Portuguese Civil
Code, 1867, while those in Pondicherry could be governed by the French Civil Code, 1804 (such Christians are
known as “Renocants”), customary Hindu law, or the Indian Succession Act.

The Indian Succession Act recognises three types of heirs for Christians: the spouse, the lineal descendants,
and the kindred.

THE CONCE PT OF SUCCES SION

Succession, in brief, deals with how the property of a deceased person devolves on his heirs. This property
be ancestral or self-acquired, and may devolve in two ways:

1. By Testamentary Succession, i.e. when the deceased has left a will bequeathing his property to specific
heirs;
2. By Intestate Succession, i.e. when the deceased has not left a will, whereby the law governing the
(according to his religion) steps in, and determines how his estate will devolve.

INDIA N SUCCES S ION ACT, 1925

S. 2(d) of the Act defines an “Indian Christian” hereby: “Indian Christian” means a native of India who is, or in
good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion. This
was further clarified in the case of Abraham v. Abraham where the scope of this
definition of an ‘Indian Christian' was delineated with regard to its actual working. This case laid down that a
Hindu who has converted to Christianity shall not be governed by Hindu law (customary or otherwise) anymore,
and any continuing obligatory force that the Hindu law may have exercised upon him stands renounced.

INTESTATE SUCCESSION AMONG INDIAN CHRISTIANS

S. 30 of the Indian Succession Act, 1925 defines intestate succession thus: A person is deemed to die
in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.
It would be worthwhile to note that intestacy is either total or partial.
There is a total intestacy where the deceased does not effectively dispose of any beneficial interest in any of
property by will. There is a partial intestacy where the deceased effectively disposes of some, but not all, of the
beneficial interest in his property by will.

DOMICILE : The Domicile of the deceased plays an integral role in determining the method of devolution of his
property. S.5 of the Act categorically states that succession to the movable property of the deceased will be
governed by the lex loci as per where he had his domicile at the time of his death; whereas succession to his
immovable property will be governed by the law of India (lex loci rei sital), no matter where he was domiciled at
the time of his death.

Also, S. 6 further qualifies this provision by stating that a person can have only one domicile for the purpose of
succession to his movable property. It must be noted that domicile and nationality differ from each other -

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succession to his movable property. It must be noted that domicile and nationality differ from each other -
domicile deals with immediate residence, whereas nationality implies the original
allegiance borne by the person. S. 15 lays down that upon and during subsistence of marriage, the wife
the domicile of her husband automatically.

KINDRE D OR CONS ANGUINITY : S. 24 of the Act makes an initial reference to the concept of kindred and
consanguinity, defining it as “the connection or relation of persons descended from the same stock or common
ancestor.” S. 25 qualifies ‘lineal consanguinity' with regard to descent in a direct line. Under this head fall those
relations who are descendants from one another or both from the same common ancestor. Now, succession
can be either ‘per capita' (one share to each heir, when they are all of the same degree of relationship) or ‘per
stirpes' (division according to branches when degrees of relationship are discrete).

S. 26 qualifies ‘collateral consanguinity' as occurring when persons are descended from the same stock or
common ancestor, but not in a direct line (for example, two brothers). It is interesting to note that the law for
Christians does not make any distinction between relations through the father or the mother. If the relations
the paternal and maternal sides are equally related to the intestate, they are all entitled to succeed and will take
equal
share among themselves. Also, no distinction is made between full-blood/half-blood/uterine relations; and a
posthumous child is treated as a child who was present when the intestate died, so long as the child has been
born alive and was in the womb when the intestate died.

Christian law does not recognise children born out of wedlock; it only deals with legitimate marriages.
Furthermore it does not recognise polygamous marriages either. However, a decision has been made to the
effect that it does recognise adoption and an adopted child is deemed to have all the rights of a child natural -
born, although the law does not expressly say so.

RIGHTS OF THE WIDOW AND WIDOWER : S. 33, S. 33-A, S. 34 of the Act govern succession to the
Together they lay down that if the deceased has left behind both a widow and lineal descendants, she will get
one-third share in his estate while the remaining two-thirds will go to the latter. If no lineal descendants have
been left but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred. And
if no kindred are left either, the whole of the estate shall belong to his widow. Where, however, the intestate has
left a widow but no lineal descendants, and the net value of his property does not exceed five thousand rupees,
the whole of the property will go to the widow - but this provision does not apply to Indian Christians.

RIGHTS OF CHILDREN AND OTHE R LINE AL DE SCENDA NTS : If the widow is still alive, the lineal
descendants will take two-thirds of the estate; if not, they will take it in whole. Per capita (equal division of
shares) applies if they stand in the same degree of relationship to the deceased. Importantly, case law has
determined that the heirs to a Christian shall take his property as tenants-in-common and not as joint tenants.

Also, the religion of the heirs will not act as estoppel with regard to succession. Even the Hindu father of a son
who had converted to Christianity was held entitled to inherit from him after his death. As per S. 48, where the
intestate has left neither lineal descendant, nor parent, nor sibling, his property shall be divided equally among
those of his relatives who are in the nearest degree of kin to him. If there are no heirs whatsoever to the
intestate, the doctrine of escheat can be invoked by the Government, whereupon the estate of the deceased
revert to the State.

TE STAME NTARY SUCCE SS ION AMONG INDIAN CHRISTIANS

Testamentary Succession is dealt with under Part VI of the Indian Succession Act, 1925. According to S. 59,
every person of sound mind, not being a minor, may dispose of his property by will. The explanations to this
Section further expand the ambit of testamentary disposition of estate by categorically stating that married
women as also deaf/dumb/blind persons who are not thereby incapacitated to make a will are all entitled to
disposing their property by will. Soundness of mind and freedom from intoxication or any illness that render a

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disposing their property by will. Soundness of mind and freedom from intoxication or any illness that render a
person incapable of knowing what he is doing are also laid down as prerequisites to the process.

Part VI of the Act encompasses 134 Sections from S. 57 to S. 191, that comprehensively deal with all issues
connected with wills and codicils, and the making and enforcing of the same, including capacity to make a will,
formalities needed for wills, bequests which can be validly made etc.

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WILL UNDER HINDU LAW
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Will is an important testamentary instrument through which a testator can give away his property in accordance
his wishes. The importance and impact of a will can be seen through the controversy that arose with regards to
the will of Priyamwada Birla, widow of M.P.Birla, which decided the fate of the Birla group of Industries.

The origin and growth of Will amongst the Hindus is unknown. However Wills were well known to the
Mohammedans and contact with them during the Mohammedan rule, and later on with the European countries,
was probably responsible for the practice of substituting informal written or oral testamentary
instruments with formal testamentary instruments. The Indian Succession Act, 1925, consolidating the laws of
intestate (with certain exceptions) and testamentary succession supersedes the earlier Acts, and is applicable to
all the Wills and codicils of Hindus, Buddhists, Sikhs and Jainas throughout India. The Indian Succession Act,
1925, does not govern Mohammedans and they can dispose their property according to Muslim Law.

DEFINITIONS

WILL: A Will is a solemn document by which a dead man entrusts to the living to the carrying out of his wishes.
S. S.2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a
person with respect to his property, which he desires to take effect after his death. Will has been defined in
Corpus Juris Secundum as "A ‘Will’ is the legal declaration of a man’s intention, which he wills to be performed
after his death, or an instrument by which a person makes a disposition of his property to take effect after his
death".

CODICIL: Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and
is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has
already been executed. If the testator wants to change the names of the
executors by adding some other names, or wants to change certain bequests by adding to the names of the
legatees or subtracting some of them, a Codicil in addition to the Will can be made to do so. The codicil must be
reduced to writing and has to be signed by the testator and attested by two witnesses. It is also the duty of the
court to arrive at the intention of the testator by reading the Will and all the codicils.

EXE CUTOR: An executor is appointed by the testator, as distinguished from an administrator who is appointed
by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage the properties,
the person can be said to be appointed as an executor by implication.

PROBA TE : Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as to
the power of the executor. The grant of probate to the executor however does not confer upon him any title to the
property.

LE TTE R OF ADMINISTRA TION: Letter of Administration is a certificate granted by the competent court to
administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance
with the Will. If the Will does not name any executor, an application can be filed in the court for grant of Letter of
Administration for the property.

ATTE STATION OF WILL: Attesting means signing a document for the purpose of testifying the signature of
executants. Therefore an attesting witness signing before the executants has put his mark on the Will, cannot be
said to be a valid attestation. It is necessary that both the witnesses must sign in the presence of the testator
but it is not necessary that the testator have to sign in their presence. Further it is not necessary that both the
witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the
contents of the Will.

ESS ENTIA L FE ATURES OF A WILL

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A Will can be made at any time in the life of a person. A Will can be changed a number of times and there are no
legal restrictions as to the number of times it can be changed. It can be withdrawn at anytime during the lifetime
the person making the Will. A Will has to be attested by two or more
witnesses, each of who should have seen the testator signing the Will.

The essential features are:

1) Legal Dec larat ion: The documents purporting to be a Will or a testament must be legal, i.e. in conformity
the law and must be executed by a person legally competent to make it. Further the declaration of intention
must be with respect to the testator’s property It is a legal document, which has a binding force upon the
family.
2) Dis pos it ion of propert y : In a Will, the testator bequeaths or leaves his property to the person or people he
chooses to leave his assets/belongings. A Hindu person by way of his Will can bequeath all his property.
However, a member of an undivided family cannot bequeath his coparcenery interest in the family property.
3) Tak es ef f ec t af t er deat h: The Will is enforceable only after the death of the testator. Under section 18 of
Registration Act the registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamla Dev i
has held that mere non-registration of the Will an inference cannot be
drawn against the genuines of the Will. However it is advisable to register it as it provides strong legal
evidence about the validity of the Will.
Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof
is very high. The initial burden of proof is always on the person who propounds the Will.

KINDS OF WILLS

1. CONDITIONA L WILL: A Will maybe made to take effect on happening of a condition. In Rajes hwar v.
Suk hdeo the operation of the Will was postponed till after the death of the testator’s wife. However if it is
ambiguous whether the testator intended to make a Will conditional, the language of the documents as well
as the circumstances are to be taken into consideration.
2. JOINT WILL: Two or more persons can make a joint Will. If the joint Will is joint and is intended to take
after the death of both, it will not be admitted to probate during the life time of either and are revocable at any
time by either during the joint lives or after the death of the survivor.
3. MUTUA L WILL: Two or more persons may agree to make mutual Wills i.e. to confer on each other
benefits. In mutual Wills the testators confer benefit on each other but if the legatees and testators are
distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills and its revocation is possible
during the lifetime of either testator. But if a testator has obtained benefit then the claim against his property
will lie. Where joint Will is a single document containing the Wills of two persons, mutual Wills are separate
Wills of two persons.
4. PRIV ILE GE D WILL: Privileged Wills are a special category of Wills and other general Wills are known as
unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a airman or a mariner, when he is in
actual service and is engaged in actual warfare, would be a privileged Will. S.66 provides for the mode of
making and rules for executing privileged Wills. Ss. 65 and 66 are special provisions applicable to privileged
Wills whereas other sections relating to Wills are general provisions which will be supplementary to Sections
65 and 66 in case of privileged Wills.

WHO CAN MA KE A WILL

S.59 of Indian Succession Act provides that every person who is of sound mind and is not a minor can make a
Will.

1) PERSONS OF UNSOUND MIND: U/s. 59 of ISA the existence of a sound mind is a sine quo non for the
validity of the Will. A sound disposing mind implies sufficient capacity to deal with and understand the
disposition of property in his Will -
1. the testator must understand that he is giving away his property to one or more objects;
2. he must understand and recollect the extent of his property;
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2. he must understand and recollect the extent of his property;
3. he must also understand the persons and the extent of claims included as well as those who are excluded
from the Will.

In Swif en v. Swif en it was held that the testator must retain a degree of understanding to comprehend what he
is doing, and have a volition or power of choice.

2) MINORS: A minor who has not completed the age of 18 years is not capable of making Wills. The onus of
proof on determining whether the person was a minor at the time of making a Will is on the person who has
relied upon the Will. S.12 of the Indian Contract Act also provides that a minor is incompetent
to contract.

3) OTHER PERSONS INCAPABLE TO MAKING A WILL: Explanation I to S.59 of ISA provides that a Hindu
married woman is capable of disposing by Will only that property which she can alienate during her lifetime.
Explanation II provides that the persons who are deaf, dumb or blind can prepare a Will if they are able to prove
that they were aware of what they
were doing.
Explanation III provides for persons who are mentally ill and insane. However subsequent insanity does not make
the Will invalid i.e. if a person makes a Will while he is of sound mind and then subsequently becomes insane
Will is valid and is not rendered invalid by subsequent insanity.
Further a person of unsound mind can make a Will during his lucid interval. A Will made by a person who is
intoxicated or is suffering from any other illness, which renders him incapable of knowing what he is doing, is
invalid.

Though the burden of proof to prove that the Will was made out of free volition is on the person who propounds
the Will , a Will that has been proved to be duly signed and attested Will be presumed to have been made by a
person of sound mind, unless proved otherwise. Further, a bequest can be made
to an infant, an idiot, a lunatic or other disqualified person as it is not necessary that the legatee should be
capable of assenting it.

REV OCA BILITY OF A WILL

S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered anytime
the lifetime of the testator. S. 70 of ISA provides the manner in which it can be revoked. A mere intention to
revoke is not an effective revocation. The revocation of the Will should be in writing
and an express revocation clause would revoke all the prior Wills and codicils. If there is no express clause to
effect then the former Will would become invalid to the extent of its inconsistency with the latest Will, this is
as an implied revocation (however it should be shown that the differences are irreconcilable). However if there is
no inconsistency between the Wills then they cannot be considered as two separate Wills but the two must be
read together to indicate the testamentary intention of the testator.

Revocation can also be made in writing through declaring an intention to revoke and the writing must be signed
by the testator and attested by two witnesses. The deed of revocation has to be executed in the same way as
Will itself.
The Will maybe burnt or torn by the testator or by some other person in his presence and by his direction with the
intention of revoking the same. The burning of the Will must be actual and not symbolic. The burning must
the Will atleast to the extent of his entirety. Further the Will need not be torn into pieces. It would be sufficient if
is slightly torn with the intent of revocation.
The Will can be revoked expressly by another Will or codicil, by implied revocation, by some writing, by burning
tearing or by destroying otherwise. Cancellation of a Will by drawing lines across it is not a mode of revocation.
Under the Hindu Law the Will is not revoked by marriage or by subsequent birth.

ALTERA TIONS

S.71 of ISA is applicable to alterations if they are made before the execution of the Will but not after it. The said
FAMILY LAW Page 33
S.71 of ISA is applicable to alterations if they are made before the execution of the Will but not after it. The said
section provides that any obliteration, interlineations or any other alteration in a Will made after its execution is
inoperative unless the alteration is accompanied by the signatures of the testator
and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting
witnesses at the end of the Will or some other part referring to the alterations.

However, if these requirements are not fulfilled then the alterations would be considered to be invalid and the
probate will be issued omitting the alterations. The signatures of the testator and the attesting witnesses must be
with regards to the alteration and must be in proximity of the alteration. Further they should be in the Will itself
not in a separate distinct paper. But if the obliteration is such that the words cannot be deciphered then the Will
would be considered as destroyed to that extent.

WORDING OF THE WILL

S.74 of ISA provides that a Will maybe made in any form and in any language. No technical words need to be
used in making a Will but if technical words are used it is presumed that they are in used in their legal sense
unless the context indicates otherwise. Any want of technical words or accuracy in
grammar is immaterial as long as the intention is clear.

Another general principle applied is that the Will is to be so read as to lead to a testacy and not intestacy i.e if
constructions are possible then the construction that avoids intestacy should be followed.

Further there is another principle, which says that the construction that postpones the vesting of legacy in the
property disposed should be avoided. The intention of the testator should be decided after construing the Will as
whole and not the clauses in isolation. In Gnanambal Ammal v. T. Raju Aiy ar the Supreme Court held that
the cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This intention
is primarily to be gathered from the language of the document, which is to be read as a whole.

The primary duty of the court is to determine the intention of the testator from the Will itself by reading of the
The SC in Bhura v Kas hi Ram held that a construction which would advance the intention of the testator has
be favoured and as far as possible effect is to be given to the testator’s intention
unless it is contrary to law. The court should put itself in the armchair of the testator. In Nav neet Lal v. Gok ul
& Ors the SC held that the court should consider the surrounding circumstances, the position of the testator, his
family relationships, the probability that he would use words in a particular sense.
However it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court
cannot speculate what the testator might have intended to write. The Court can only interpret in accordance with
the express or implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the
testator.

EXE CUTION OF A WILL

On the death of the testator, an executor of the Will (executor is the legal representative for all purposes of a
deceased person and all the property of a testator vests in him. Whereas a trustee becomes a legal owner of the
trust and his office and the property are blended together) or an heir of the deceased testator can apply for
probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no
objections, the court grants probate. A probate is a copy of a Will, certified by the court. A probate is to be
as conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into effect.

SIGNA TURE OF THE TE STATOR

S.63(a) of ISA provides that the testator shall sign or affix his mark. If the testator is unable to write his signature
then he may execute the Will by a mark and by doing so his hand maybe guided by another person. In another
words a thumb impression has been held as valid.

FAMILY LAW Page 34

RES TRICTIONS ON A WILL

1. TRANSFER TO UNBORN PERSONS IN VOID:

Where a bequest is made to a person by a particular description, and there is no person in existence at the
testator's death who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925
provides that for a transfer to an unborn person, a prior interest for life has to be created in another person
and the bequest must comprise of whole of the remaining interest of the testator. In Sopher v.
Adminis t rat or-General of Bengal a grandfather made the bequest to his grandson who was yet to be
born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer to an unborn
person and the Court held that since the vested interest was transferred when the grandsons were born and
only the enjoyment of possession was postponed till they achieved the age of twenty one the transfer was
held to be valid.

In Giris h Dut t v. Dat adin , the Will stated that the property was to be transferred to a female descendant
(who was unborn) only if the person did not have any male descendant. The Court held that since the transfer
of property was dependent on the condition that there has to be no male
descendant, the transfer of interest was limited and not absolute and thereby the transfer was void. For a
transfer to a unborn person to be held valid, absolute interest needs to be transferred and it cannot be a
limited interest.

2. TRANSFER MADE TO CREATE PERPETUITY:

S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the vesting of the thing
bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the
minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains
full age, the thing bequeathed is to belong.
The rule against perpetuity provides that the property cannot be tied for an indefinite period. The property
cannot be transferred in an unending way. The rule is based on the considerations of public policy since
property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity
invalidates any bequest which delays vesting beyond the life or lives-in-being and the minority of the donee
who must be living at the close of the last life. Hence property can be transferred to a unborn person who has
to be born at the expiration of the interest created and the maximum permissible remoteness is of 18 years
the age of minority in India.
In St anely v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to be
a. a transfer;
b. an interest in an unborn person must be created
c. takes effect after the life time of one or more persons and during his minority
d. unborn person should be in existence at the expiration of the interest.

3. TRANSFER TO A CLASS SOME OF WHOM MAY COME UNDER ABOVE RULES:

S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom it is
inoperative by reasons of the fact that the person is not in existence at the testator's death or to create
perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole class.

INVA LID WILLS

S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or coercion, basically
not by free will, will be void and the Will would be set aside.
FRAUD: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through 1)
misrepresentation 2) concealment. Fraud in all cases implies a willful act on the part of anyone whereby, another
is sought to be deprived by illegal or inequitable means, of which he is entitled to
Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt or
imprisonment would invalidate a Will.
In Ammi Raz u v. Ses hamma , a man threatening to commit suicide induced his wife and son to give him a

FAMILY LAW Page 35

In Ammi Raz u v. Ses hamma , a man threatening to commit suicide induced his wife and son to give him a
release deed. It was held that even though suicide was not punishable by the Indian Penal Code yet it was
forbidden by law and hence the release deed must be set aside as having been obtained by coercion.

UNDUE INFLUENCE : Undue influence u/s.16 of Indian Contract Act is said to be exercised when the relations
existing between the two parties are such that one of the parties is in the position to dominate the will of the
other and uses that position to obtain an unfair advantage over the other. However
neither fiduciary relationship nor a dominating position would raise a presumption of undue influence in case of
Wills as all influences are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence of a
person in fiduciary relationship would be lawful so long as the testator understands what he is doing. Thus it can
be said that a testator maybe led but cannot be driven.

WILLS VOID DUE TO UNCERTA INTY

S.89 of ISA states that if the Will were uncertain as regards either to the object or subject of the Will then it
be invalid. The Will may express some intention but if it is vague and not definite then it will be void for the
of uncertainty. The Will may depose of the property absurdly or irrationally i.e
the intention maybe irrational or unreasonable, but that does not make it uncertain. For uncertainty to be proved it
has to be proved that the intention declared by the testator in the Will is not clear as to what is he giving or whom
is he giving. Only if the uncertainty goes to the very root of the matter, then only the Will has to be held void on
the grounds of uncertainty.

WILL VOID DUE TO IMP OSS IB ILITY OF CONDITION

S. 124 of ISA provides that a contingent legacy can take effect only on happening of that contingency. A
conditional Will is that Will which is dependent on the happening of a specific condition the non-happening of
which would make the Will inoperative. S.126 of ISA provides that a bequest upon an
impossible condition is void. The condition maybe condition precedent or condition subsequent.

WILL VOID DUE TO ILLEGAL OR IMMORA L CONDITION

S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void. The condition
which is contrary, forbidden, or defeats any provision of law or is opposed to public policy, then the bequest
be invalid. A condition absolutely restraining marriage would also make the
bequest void. S.138 of ISA provides that the direction provided in the Will as to the manner in which the property
bequeathed is to be enjoyed then the direction would be void though the Will would be valid.

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CODICIL
14 May 2018
23:51

A codicil is a document that amends, rather than replaces, a previously executed will. Thus, it is an instrument
which is made in relation to a will that explains alterations and additions to its disposition. This document is
considered important as it is deemed to form part of the will. For instance, in situations a will has been made,
testator may still want to make some changes in the already drafted will.

However, for that he needs to do it through a codicil wherein he may even cancel the entire earlier will and make
a fresh will. Also, he may incorporate the desired changes, or, he may alter only the relevant parts of the will
suitably as well.

Thus, the scope of codicil is immense; for instance, it is very much a part of will; however, it is valid only if it is
executed and attested in the same manner as a Will. From the various judgments from the Supreme Court it’s
clear that Codicil is a supplementary document to the will and, cannot stand independently. Also, any
amendments made by a codicil may add or revoke small provisions that may include inter alia changing
executors, completely change the majority, the gifts under the will.

HOW IS CODICIL EX ECUTED

Like will, each codicil also goes through the scrutiny regarding its execution. For instance, it must conform to
same legal requirements as the original will e.g. the codicil must have the signatures of the testator and,
two or three disinterested witnesses. Also, a codicil should be executed and attested like a Will as in all sense it
is similar to a Will and is governed by the same rules as a Will.

Thus, though an Indian will is a static document, it can be changed through codicil over time as the
circumstances in your life and your family change. Codicil basically states what items of your will you are
changing. Interestingly, codicil should be kept together with Will. In situation you are making substantial
to your will, codicil could be bad idea as it’s better to go for a new Will.

Also, as you can revoke your codicil there is no issue that you have made a codicil that is not suiting to the
current situation and requirement. You just need to follow the process that you follow when writing down your
Will. If you revoke your codicil, like will, it is assumed that you never had drafted a codicil at all.

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WILL UNDER MUSLIM LAW
15 May 2018
14:56

Under Muslim law, every Muslim has the testamentary power of disposing of his property. But his testamentary
power is limited to the disposal of only one-third of his property.
A wassiyat offers to the testator the means of correcting to a certain extent the law of succession, and of
some of those relatives who are excluded from inheritance to obtain a share in his goods, and/or recognizing the
services rendered to him by a stranger, or the devotion to him in his last moments. At the same time, the Prophet
has declared that the power should not be exercised to the injury of their lawful heirs.
A Muslim is not allowed to bequeath more than a third of his property with a view to not affecting the shares of
those who are enjoined by the Koran to inherit the property of the deceased. He is also not allowed to bequeath
anything to the heirs. However, both these limitations can be made nugatory if the heirs consent to the
made in violation of these limitations. Under the Hanafi law, such consent to be valid must be given after the
of the testator.

The Muslim law of Wills (wassiyat) may be discussed under the following heads: i) capacity to make a will; ii)
formalities of making a will; iii) legatees; iv) construction of a will; v) revocation of a will.

CAP ACITY TO MA K E A WAS IYA T OR WILL

Every Muslim, who is of sound mind and of the age of majority, has the capacity to make a will. With the
of marriage, dower and divorce, the age of majority of Muslims is regulated by the Indian Majority Act, under
the age of majority is the completion of eighteenth year in ordinary cases, and completion of twenty first year in
cases where the guardian of a minor is appointed under the Guardians and Wards Act. The Muslim law givers lay
down that a will of a minor can be ratified by him on attaining majority, but the will of the person of unsound mind
cannot be ratified on his regaining sanity. Not merely this, the Muslim authorities hold that the will made by a
person will become invalid, if subsequently he becomes an insane.

Under the Shia law, a will made by a person, who has taken poison, or, has wounded himself with a view to
committing suicide, is invalid. But a will made by a person, who subsequently commits suicide is valid.
A will made by a person under coercion, undue influence, or fraud is invalid. Similarly, the court will scrutinize the
will of a pardanaseen lady very carefully before admitting it.

FORMALITIES OF A WILL

Muslim law requires no specific formalities for the execution of a will. A will may be oral or in writing. When the
is in writing, no specific form is laid down. It may not even be signed by the testator or attested by the witnesses.
[Ramjilal vs . Ahmed, 1952 MB 56] However, it is necessary that the intention of the testator should be clear
and unequivocal. In Maz har vs . Bodha, 21 All 91 a letter was written by a Muslim shortly before his death,
containing directions for the disposition of his property, was accepted to constitute a valid will.

When a will is oral, no form of declaration is necessary. Obviously, the burden of establishing an oral will is very
heavy, and an oral will must be proved with utmost precision and with every circumstance of time and place.
[V enk at vs . Namdeo, (1931) 58 IA 362]

Abdul Has an v Maimoonammal : Will was executed in sound disposing state of mind and doctrine of marz-ul-
would be applied only to gift and not to Will - Whether execution of Will was valid - Held, conduct of parties
proved that all legal heirs consented for bequeath made by deceased - Sufficient material on record to show that
Will was validly executed in sound disposing state of mind - Will was unaffected by marz-ul-maut.

SUB J ECT MA TTER OF WILL

Any type of property, immovable or movable, corporeal or incorporeal, which is capable of being transferred, may
form the subject-matter of a bequest. It is not necessary that the subject-matter of the will should be in existence
when the will is made; it is sufficient if it is in existence at the time of the testator's death. The bequest may

FAMILY LAW Page 38

when the will is made; it is sufficient if it is in existence at the time of the testator's death. The bequest may
of the corpus or of the usufruct. A testator may give corpus to one person and the usufruct to another.

BEQUEATHABLE ONE-THIRD - The bequeathable one-third means a third of the estate of a testator as it is left
after the payment of his funeral expenses, debts and other charges. The law in this respect is:
a. All schools of Muslim law, except the Ithana Ashari school, hold that the bequest of more than the
bequeathable one-third is invalid unless consented to by the heirs after the death of the testator. The consent
can be inferred from the conduct, as held in Abdul v Mirt uz a.
b. Under a valid custom, a Muslim may be allowed to dispose of his entire property under his will. The Shariat
Act, 1937 does not apply to wills, and, therefore, a Muslim who has under custom the power to dispose of his
entire property under a will can do so even now.
c. If a testator has no heirs, he may dispose of his entire property by a will.
d. Where a testator dies leaving behind only a wife/husband as the sole heirs and no blood relations, then if the
testator is male, he can bequeath 5/6 of his estate and if the testator is a female, she can bequeath one-half
her properties to her husband.
e. If a Muslim had married or got his marriage registered under the Special Marriage Act, 1954 then the Muslim
law of succession does not apply to him. He is governed by the Indian Succession Act and therefore can
bequeath his entire property by a will.

CUSTOM: A custom which limits the choice of persons in whose favour will can be made is not against public
policy. Among the eunuch community of MP under the Guru-Chela system, a guru cannot will more than one-third
of his property without the consent of the Chela. This custom was held valid in Illy as v Bads hah.

BEQUEST IN FUTURE AND CONTINGENT BEQUEATHS: A bequest in future is void; so is a contingent

When a Muslim makes a bequest with a condition, then the condition is void and the bequest is valid.

BEQUEST FOR PIOUS PURPOSES: A bequest may be made for pious purposes. Such bequests fall under
categories: i) bequests for faraiz, i.e. for purposes expressly ordained by the Koran; ii) bequests for wajiwat, i.e.
which are themselves necessary and proper, though not expressly obtained, such as sadaka or filrat; and iii)
bequests for nawafil, or the bequests of purely voluntary nature and as bequests for the poor, for building
a bridge or an inn.

WHEN SOME HEIRS CONSENT: When a bequest violates the one-third rule but some of the heirs consent to it,
while others do not, the bequest is payable out of the share of the consenting heirs only.

ABATEMENT OF LEGACIES: When a testator bequeaths in violation of one-third rule and the heirs refuse to give
the consent, the bequests under Hanafi law abate rateably. Under the Shia law, the rule is different. The bequests
of prior date take priority over those of later date, unless the later bequests was intended to revoke the earlier.

THE LEGA TE E

Under Muslim law a bequest to a person not in existence at the time of the testator's death is void. However,
Muslim law permits bequests to be made to a child in the womb, provided it is born within six months of the death
of the testator. A legacy made to a person who does not survive the testator lapses and forms part of the estate
the deceased.

A legacy can be made to any person, man or woman, adult or minor, Muslim or non-Muslim. A bequest can also
be made for a religious or charitable object which is not opposed to the Islam.

BEQUEST FOR HEIRS: The Muslim authorities lay down that no bequest can be made to an heir, unless the
other heirs consent to it, after the death of the testator under the Hanafi law, or at any time under the Shia law. It
not necessary that all heirs should consent. A single heir may consent so as to bind his share, as laid down in
Ghulam Mohammed v Ghulam Hus s ain.

LEGACY TO A MURDERER: In most systems of law, it is a rule that a murderer or a person who abets the

FAMILY LAW Page 39

LEGACY TO A MURDERER: In most systems of law, it is a rule that a murderer or a person who abets the
of the deceased is not entitled to the legacy. Under the Hanafi law, this rule is found in most strict terms. The rule
is that the murderer is excluded from taking the legacy, whether the homicide was intentional or accidental.

CONSTRUCTION OF WILLS

The general rule governing the construction of the will is that – a Muslim will is to be construed in accordance
the rules of construction of the will laid down in Muslim law, the language used by the testator and the
surrounding circumstances. It is also a general rule of construction of wills that unless a different intention
appears, a will speaks from the death of the testator, and the bequests, contained in it take effect accordingly. It
is a
universal rule of construction of wills that the courts try to give effect, as far as possible, to the intention of the
testator.

REV OCA TION OF THE WILL

Under Muslim law, a testator may revoke his will or any part of it anytime, either expressly or by implication.

EXPRESS REVOCATION: If a testator makes a bequest of some property to a person, and by the subsequent
will, he bequests the same property to another person, the first bequest is revoked. But bequest of the same
property to one person in earlier portion of the will and to another person in the later portion of the will does not
revoke the earlier bequest, but both the legatees share the property equally. A will may be expressly revoked by
tearing it off, or by burning it.

IMPLIED REVOCATION: Any act inconsistent with the bequest will go to revoke the will. Thus, an act which
results in the extinction of the subject-matter of the bequest, or extinction of the proprietary rights of the testator
will impliedly revoke the will. For instance, bequest of a plot of land is revoked when the testator builds a house
it; or bequest of a house is revoked when the testator sells or makes a gift of it to another.

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MAZR UL MAUT
15 May 2018
18:32

In India Muslims are allowed to follow their own personal civil law. This is a legacy of the British Raj which
allowed all religions to have their own personal civil laws. The governing tenet of Muslim personal civil law is
Shariat. One of the provisions relates to Marz-ul-Maut (death bed Gifts). This can only be executed in case
is genuine apprehension that the testator will die.

Generally the trend among Muslims earlier was not to make a will or ‘Wasiyat’. Hence Islamic law thought it
prudent to lay down a set of laws regarding disposal of property when a Muslim was on his death bed. This is
referred to as Marz-ul- Maut. Gift during Marz-ul-Maut is one form of testamentary succession. Gift during
ul-Maut means gift on the death bed. When a person is very seriously ill and on the apprehension of death and
he makes a gift at that time, then it will be a gift during Marz-ul-Maut. Gift on the death bed is a hybrid of 'hiba'
gift and will. It includes some essential elements of will and some essential elements of gift.

As per Islamic personal law a gift made at a time when there is reasonable apprehension of death of the
will be distributed as per the canons of the Shariat. This is called death bed gifts and is valid only if the testator
dies after executing a will. As per the Shariat there are 2 restriction imposed on this gift on the death bed which
are as follows:

a) There can be no disqualification of an heir or successor, except with the consent of other heirs after the
testator's death (B hoona Bi v Gujar Bi);

b) The net value of the property that can be disposed should not be greater than 1/3rd of the total value of the
assets.

The Shariat law is inviolable, except with the consent of the heirs. Thus on his own no Muslim can disown any
heir while making a will during Marz-ul-Maut. Some reasonable restrictions are imposed by the Shariat on Marz-
ul- Maut. These are

a) There should be genuine apprehension of death due to an illness. In case a person does not die, the will
made will be null and void.

b) Mere apprehension of death due to old age is not a ground for Marz-ul Maut. Thus a man dying from natural
causes due to old age does not come under the purview of this law.

Marz-ul- Maut does not come under the purview of gifts and is not subject to gift tax. This was upheld by a
of the Supreme Court of India in Commis s ioner of Gif t Tax vs . Abdul Karim Mohd . on 10 July
1991( 1991 SCR(2)846).

The Shariat and Marz-ul- Maut is further amplified in Section 191 of Indian Succession Act 1925 and section
of the TP Act.

In a Malaysian case Mus t ak Ahmad v Abdul Wahid , it was stated that, a mortal sickness is that sickness
which on the one hand brings with it for the most part the fear of death and on the other part hinders the sick
person, if he be a man from seeing to his business outside the house and if she be a woman the business
inside the house and ends in death before a whole year has passed after the sick man come to this state.

In the case of Shaik Nurbi vs Pat han Mas t anbi And Ors , it was stated that, in Mohammedan law, the
following conditions have to be satisfied to establish Marz ul Mout, which are
1) proximate danger of death, so that there is a preponderance of apprehension of death;
2) some degree of subjective apprehension of death in the mind of the sick person and
3) some external indicia, chief among which would be inability to attend to ordinary avocations
4) Delivery of possession must be given to the donee.

FAMILY LAW Page 41

4) Delivery of possession must be given to the donee.

In the case of Saf ia Begum vs Abdul Rajak , it was stated that the burden of proving the existence of the
donor's death-illness at the time of the gift lies on the party asserting it. Under Mahomedan Law the crucial test
of Marz-ul-maut is the subjective apprehension of death in the mind of the donor, that is to say the
apprehension derived from his own consciousness, as distinguished from the apprehension caused in the
minds of others,-and the other symptoms like physical incapacities are only the indicia, but not infallible signs
or sine qua nun of Marz-ul-maut. The burden of proving the existence of the donor's death-illness at the time of
the gift lies on the party asserting it.

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HIBA
15 May 2018
23:04

In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer of Property Act, 1872.
the provision of Transfer of Property Act, 1872 does not apply to Muslim law. The English term, ‘gift’ is of a
connotation and applies to all transactions where one transfer’s one’s property to another without any
consideration. The term hiba has a narrow meaning.

According to Ameer Ali, “A hiba is a voluntary gift without consideration of property or the substance of thing by
one person to another so as to constitute the done the proprietor of the subject-matter of the gift.” Muslim law
allows a Muslim to give away his entire property by a gift inter-vivos, even with the specific object of
his heirs. [Abdul vs . Ahmed, (1881) 8 IA 25]

What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself
(called as Ayn) and the usufruct in the property (as Manafi). Over the corpus of property the law recognises only
absolute dominion, heritable and unrestricted in point of time. Under the
Mohammedan law they are only usufructuary interest (and not rights of ownership of any kind). Thus, in English
law a person having interest in immoveable property for limited periods of time is said to be the “owner” of the
property during those periods and the usufruct is also regarded as a part of the corpus. On the other hand, in
Muslim law, a person can be said to be an “owner” only if he has full and absolute ownership.

ES S E NTIA LS OF HIB A

Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance
(qabul), and transfer (qabza). In Smt Hus s enabi v Hus ens ab Has an, a grandfather made an offer of gift to
his grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express of implied
acceptance was made by a major grandson. Karnataka HC held that since the three elements of the gift were
not present in the case of the major grandchild, the gift was not valid. It was valid in regards to the minor
grandchildren.

Thus, the following are the essentials of a valid gift:

1. A dec larat ion by the donor: There must be a clear and unambiguous intention of the donor to make a
Declaration is a statement which signifies the intention of transferor that he intends to make a gift. A
declaration can be oral or written. The donor may declare the gift of any kind of property either orally or by
written means.
In the famous case of Ilahi Sams uddin v. Jait unbi Maqbul it was held that under Muslim Law,
declaration as well as acceptance of gift may be oral whatever may be nature of property gifted. When the
gift is made in writing, it is known as Hibanama.
In the famous case of Md. Hes abuddin v Md. Hes aruddin , where the gift was made by a Muslim
Woman and was not written on a stamp paper, Guahati High Court held that the gift was valid.
The declaration made by the donor should be clear. A declaration of Gift in ambiguous words is void. In
Maimuna Bibi v. Ras ool Mian , it was held that while oral gift is permissible under Muslim law, to
constitute a valid gift it is necessary that donor should divest himself completely of all ownership and
dominion over subject of gift. His intention should be in express and clear words.
The declaration should be free from all the impediments such as inducement, threat, coercion, duress or
promise and should be made with a bona fide intention.

2. Ac c ept anc e by the donee : A gift is void if the donee has not given his acceptance. Legal guardian may
accept on behalf of a minor. Donee can be a person from any religious background. Hiba in favor of a minor
or a female is also valid. Child in the mother’s womb is a competent done provided it is born alive within 6
months from the date of declaration. Juristic person are also capable of being a donee and a gift can be
made in their favor too. On behalf of a minor or an insane person, any guardian as mentioned under the
provisions of Muslim law can accept that gift.
FAMILY LAW Page 43
 provisions of Muslim law can accept that gift.

3. Deliv ery of pos s es s ion by the donor and tak ing of the pos s es s ion by the donee: In Muslim law
possession means only such possession as the nature of the subject is capable of. Thus, the real test of
the delivery of possession is to see who – whether the donor or the donee – reaps the benefits of the
property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid.
A delivery of possession may either be:
a. Ac t ual deliv ery of pos s es s ion:
Where the property is physically handed over to the donee, the delivery of possession is actual. Generally,
only tangible properties can
be delivered to the done. A tangible property may be movable or immovable. Under Muslim law, where the
mutation proceedings have started but the physical possession cannot be given and the donor dies, the gift
fails for the want of delivery of possession (Noor Jahan v Muf t k han).
b. Cons t ruc t iv e Deliv ery of pos s es s ion : Constructive delivery of possession is sufficient to constitute a
valid gift in the following two situations:
i. Where the Property is intangible, i.e. it cannot be perceived through senses;
ii. Where the property is tangible, but its actual or physical delivery is not possible.
A hiba of movable or immovable property is valid whether it is oral or in writing; whether it is attested or
registered or not, provided that the delivery of possession has taken place according to the rules of Muslim
Law (Ilahi Sams uddin v Jait unbi Mak bul ).

CONS TITUTIONA L VA LIDITY OF HIB A

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

The most essential element of Hiba is the declaration, “I have given”. As per Hedaya, Hiba is defined
as: “Unconditional transfer of existing property made immediately and without any exchange or consideration,
one person to another and accepted by or on behalf of the latter“.
According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property without any
return.

SUB J ECT MA TTER OF GIFT UNDE R MUS LIM LA W

In Mohammedan law any property or right which has some legal value may be the subject of a gift. Under the
Muslim law, following constitute the subject matter of Hiba:
1. It must be anything (moveable or immovable, corporeal or incorporeal) over which the right of property may
be exercised or anything which exists either as a specific entity or an enforceable right, or anything
designable under the term mal (property).
2. It must be in existence at the time when the gift is made. Thus, gift of anything that is to be made in future
void. For example, a donor makes a gift the fruits of his mango garden that may be produced this year. This
gift is invalid since the mangoes were not in existence at the time of making the gift.
3. The donor must possess the gift.
4. A gift of a part of a thing which is capable of division is not valid unless the said part is divided off and
separated from the property of the donor; but a gift of an indivisible thing is valid. For example, A, who owns
a house, makes a gift to B of the house and of the right to use a staircase used by him jointly with the
of an adjoining house. The gift of A’s undivided share in the use of the staircase is not capable of division;
therefore it is valid.
5. according to Hanafi law, the gift of an undivided share in any property capable of division is, with certain
exceptions, incomplete and irregular (fasid), although it can be rendered valid by subsequent separation and
delivery of possession. For instance, A makes a gift of her undivided share in certain lands to B, and the
share is not divided off at the time of the gift but is subsequently separated and possession thereof is

FAMILY LAW Page 44

 share is not divided off at the time of the gift but is subsequently separated and possession thereof is
delivered to B, the gift although irregular (fasid) in its inception, is deemed valid by subsequent delivery of
possession.

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

In Nawaz is h Ali Khan vs Ali Raz a Khan, it was held that gift of usufructs is valid in Muslim law and that
the gift of corpus is subject to any such limitations imposed due to usufructs being gifted to someone else. It
further held that gift of life interest is valid and it doesn’t automatically enlarge into gift of corpus. This ruling is
applicable to both Shia and Sunni.
In Rahim Bux vs Mohd. Has en, it was held that gift of services is not valid because it does not exist at the
time of making the gift.

GIFT OF MUS HA

The word “musha” means an undivided share or part of a property, movable or immovable. Among the Shafis
and Ithana Asharis, the gift of musha is valid, if the donor withdraws his dominion and allows the donee to
exercise control. [Sadiq vs . Has him, (1916) 43 IA 212]
But the rule is otherwise among the Hanafis. The general rule is thus laid down in the Hedaya, “A gift of a part
a thing which is capable of a division is not valid unless the said part is divided off and separated from the
property of the donor, but a gift of an indivisible thing is valid.”

The doctrine of musha has been subject to much criticism. It has been said that the doctrine is “wholly
unadapted to a progressive society”. [S heik h Md. vs . Zabeda, (1889) 16 IA 205]. The doctrine has been
confined to within the strictest rules by judicial interpretation and has been cut-down considerably.

DONE E

Under the Muslim law, a gift may be made to any person without any distinction of age, sex or religion. Under
Hanafi law, the donee must be must be legally in existence at the time of hiba. Thus, a gift to an unborn person,
one not in existence, either actually or presumably, is invalid. Under the Shia law, a gift to an unborn person
be validly made provided the gift commences with a person in existence.

When a gift is made to a minor or a person of unsound mind, the gift will be complete by the delivery of
possession to the guardian of the minor or of the person of unsound mind (Fat ima v Jai Naray an).

FORMALITIES: DELIVERY OF POSSESSION

Under Muslim law, a gift may be made orally or in writing, irrespective of the fact whether the property is
movable or immovable. [Ibrahim vs . Noor Ahmed, 1984 Guj. 126] The only formality that is essential for the
validity of a Muslim gift is “taking a possession of the subject-matter of gift by the done either actually or
constructively”. [Mohammed vs . Fak r].

WHO CAN CHALLENGE A GIFT OR HIBA: A stranger cannot challenge the validity of a gift on the ground that
the gift is bad as no delivery of possession has been made. A gift on this ground can be challenged only when
the issue is raised between the donor or those claiming under him on one side and the done and those claiming
under him on the other. In Y. S . Chen v Bat ubai, gift was made to a person by her mother of a house and
tenants were paying rent to her, the court held that the tenants had no locus standi to challenge her title on the
ground that no possession of the house was given to her.

CONDITIONAL OR CONTINGENT GIFT OR HIBA: The contingent or conditional gifts are those which are made
FAMILY LAW Page 45
CONDITIONAL OR CONTINGENT GIFT OR HIBA: The contingent or conditional gifts are those which are made
made dependent for their operation
upon the occurrence of a consistency. A contingency is a possibility, a chance, an event, which may or may
happen. In Muslim law, contingent or conditional gifts are void.
In Zameela Begum v Cont roller of Es t at e Dut y , under a settlement deed, the settlor conferred absolute
rights, title and interest in the property on his son subject to the obligation of payment of the income of the
property to him during his lifetime and after his demise to his widow for her life. The SC said that the settlement
and the condition being valid and the wife of settlor having had a charge on the property for the realization of the
income during her lifetime. On her death, the interest ceased and passed on to the beneficiary son. Since under
the Muslim law, a distinction is made between the corpus and usufruct of the gift, the gift was valid.
In Muslim law, a gift is not rendered invalid, by involving an invalid condition. Hanafi law clearly lays down that
such a case the gift is valid and the condition is valid. Under Shia law, if the conditions attached to a gift is
subsidiary, then both the gift and the condition are valid.

RE V OCA TION OF GIFT

Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well
established rule of Muslim law that all voluntary transactions, including gifts, are revocable. The Muslim law-
givers have approached the subject of revocability of gift from several angles.
From one aspect, they hold that all gifts except those which are made by one spouse to another, or to a person
related to the donor within the degrees or prohibited relationship, are revocable.

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

RE V OCA TION OF GIFT BE FORE THE DE LIV E RY OF POS S E S S ION: Under Muslim law, all gifts are
revocable before the delivery of possession is given to the donee. Thus, P makes a gift of his motor-car to Q
by a gift deed. No delivery of possession has been made to Q. P revokes the gift.
The revocation is valid. In this case, it will not make any difference that the gift is made to a spouse, or to a
person related to the donor within the degrees of prohibited relationship. The fact of the matter is that under
Muslim law no gift is complete till the delivery of possession is made, and therefore, in all those cases where
possession has not been transferred the gift is incomplete, and whether or not it is revoked, it will not be valid
the delivery of possession is made to the donee.
The revocation of such a gift, therefore, merely means that the donor has changed his mind and does not want
to complete it by the delivery of possession. For the revocation of such gifts, no order of the court is
Fyzee rightly says that this is a case of inchoate gift and it is not proper to apply the term revocation to such a
gift.

RE V OCA TION OF GIFT AFTE R THE DE LIV E RY OF POS S E S S ION: Mere declaration of revocation
donor, or institution of a suit, or any other action, is not sufficient to revoke a gift. Till a decree of the court is
passed revoking the gift, the donee is entitled to use the property in any manner; he can also alienate it.
It seems that:
a. all gifts after the delivery of possession can be revoked with the consent of the donee,
b. revocation can be made only by a decree of the court.
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs
his death. A gift can also not be revoked after the death of the donee.
According to the Hanafi School with the exception of the following cases, a gift can be revoked even after the
death of the donee.
According to the Hanafi School, with the exception of the following cases, a gift can be revoked even after the
delivery of possession. The exceptions to the same are:
a. When a gift is made by one spouse to another.
FAMILY LAW Page 46
a. When a gift is made by one spouse to another.
b. When the donor and the donee are related within the prohibited degrees.
c. When the donee or the donor is dead.
d. When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had disposed
off by sale, gift or otherwise or, where he had consumed it, or where it had been lost or destroyed.
e. When the value of the subject-matter has increased.
f. When the identity of the subject-matter of the gift has been completely lost, just as wheat, the subject -
of gift, is converted into flour.
g. When the donor has received something in return (iwaz).
h. When the object of gift is to receive religious or spiritual benefit or merit, such as sadaqa.

The Shia law of revocation of gifts differs from the Sunni law in the following respects: First, gift can be revoked
by a mere declaration on the part of the donor without any proceedings in a court of law; secondly, a gift made
a spouse is revocable; and thirdly, a gift to a relation, whether within the prohibited degrees or not, is revocable.

FAMILY LAW Page 47

WAQF
16 May 2018
09:38

When Muslim a person who is working for charitable purpose under religious faith and sentiments and for the
benefit and upliftment of the society, has donate his property in the name of Allah is called waqf.
Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the ownership of dedicated property is
taken away from the person making waqf and transferred and detained by God. Details are given in old texts
about wakf made by prophet. It is observed in M Kaz im vs A As ghar Ali that technically, it means a
dedication of some specific property for a pious purpose or secession of pious purposes. As defined by Muslim
jurists such as
Abu Hanifa, Wakf is the detention of a specific thing that is in the ownership of the waqif or appropriator, and the
devotion of its profits or usufructs to charity, the poor, or other good objects, to accommodate loan.
Wakf Act 1954 defines Wakf as, “Wakf means the permanent dedication by a person professing the Islam, of any
movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable.”

The definition of wakf has three essential elements:

1) The ownership of the wakif is extinguished;

2) The property is vested in the ownership of God perpetually and irrevocably; and
3) The usufruct of the property is used for the benefit of the mankind.

DOCTRINE OF CYPRES

Cypres literally means “as near as possible”, the doctrine lays down that if a charitable intention has been
expressed by the dedicator, a wakf (or trust) will not be allowed to fail because the object specified by the settlor
has failed; in such a case the income will be applied for the benefit of the poor or to objects as near as possible.

ES S E NTIA L CONDITIONS FOR A VA LID WA K F

The essential conditions for a valid waqf are as follows:

1. PERMANENT DEDICATION: The dedication of waqf property must be permanent and Waqif himself must
divot of such property and gave it for any purpose recognized by Muslim law, like religious, pious or
If the wakf is made for limited period it won’t be a valid wakf and also there should be no condition or
contingency attached otherwise it will become invalid. The motive behind Wakf is always religious.
In Karnat ak a board of wak f s v. Mohd. Naz eer ahmad , the dedication of house by a Muslim for use of
all travelers irrespective of religion and status was held not to be a Wakf on the ground that under Muslim law
a Wakf should have a religious motive and it should be only for benefit of Muslim community, and if it is
secular in character, the charity should be to the poor alone. When a Wakf is constituted, it is presumed that
a gift of some property has been made in favor of God. This is ensured through a legal fiction that waqf
property becomes the property of God.

2. WHO CAN MAKE A WAKF/ CAPACITY TO MAKE A WAKF: Any Muslim who has attained the age of
i.e. 18 years, and who is of sound mind, may make a wakf. A wakf cannot be made by a guardian on behalf
the minor, such a wakf is void. [Commis s ioner of Wak f vs . Md. Mohs in , (1953) 58 Cal WN 252].
The Mussalman Wakf Validating Act, 1913, and the Wakf Act, 1954, contemplate that a wakf can be made
only by a Muslim. Similarly, the Wakf Act, 1954, defines a wakf as meaning a permanent dedication by a
person professing Islam. But the Nagpur High Court has expressed the view that a non-muslim can also
a wakf – the law only requires that “the object should be lawful and in consonance with Islam”. [Mot i Shah
vs . Abdul Gaf f ar, 1953 Nag 38].

3. RIGHT TO MAKE WAKF: A person having the capacity but no right cannot constitute a valid waqf. The
matter of wakf should be owned by wakif at the time when wakf is made. Whether a person has right to
constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership
of the property or not. A widow cannot constitute any waqf of the property which she holds in lieu of her
FAMILY LAW Page 48
 of the property or not. A widow cannot constitute any waqf of the property which she holds in lieu of her
dower because she is not an absolute owner of that property. Where the waqif is, a pardanashin lady, the
beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the
waqf and had fully understood the nature of the transaction.
Amount of property: a person can dedicate entire property but in case of testamentary wakf more than one
third of his property cannot be dedicated.

SUB J ECT MA TTER OF WAK F

In the beginning, the subject matter of wakf consisted of properties of a permanent nature, such as land, fields,
gardens, etc. But gradually all sorts of properties were made the subject matter of the wakfs. It is necessary that
the time when a wakf of a property is made it must be under the ownership of the person making it.
[Commis s ioner of Wak f vs . Md. Mohs in, (1953) 58 Cal WN 252] A property subject-matter to mortgage or
lease can
also be given for the creation of valid wakf. A wakf which forms part of a transaction to fraud on the heirs is void
and totally ineffective. [Har Pras ad vs . Fay az Ahmed, 1933 PC 83]

HOW IS WA KF CRE ATE D

Muslim law does not recognize any form of creating a wakf. A wakf may be made in writing or may be oral. There
must be appropriate words to show an intention to dedicate the property. The use of the word wakf is neither
necessary nor conclusive. To constitute a wakf it is not necessary that the word ‘wakf’ should be used. A grant
the Kazi is compulsory for the purposes of his performing religious or pious duties to constitute a wakf.

1. By an ac t int er viv os – It means during the lifetime. Thus a wakf is created during the lifetime of the wakif
takes effect from that very time.
2. By will – It stands in contradiction with the wakf. It takes effect after the death of the wakif and also called
testamentary wakf. A wakf by will cannot operate upon more than one-third of net assets, without the consent
of the heirs.
3. During deat h illnes s (Marz -ul-maut ) – The wakf made during the deadly illness will operate only to the
of one-third of the property without the consent of the heirs of the wakif.
4. By immemorial us er – wakf may be established by evidence of immemorial user. For e.g. when a land has
been from time immemorial use for the purpose of a burial ground, it is a wakf by the immemorial user.

STATUTORY CONTROL OVE R WA KFS - THE WAK FS ACT, 1995

It is no longer a secret that the most of the religious institutions are badly managed and bad management of wakf
with regards to their funds and abuse of the setup have reached menacing proportions. The Government of India
being aware of this state of affairs passed the Wakf Act, 1923. During the British rule, several provinces passed
statutes to control the management of religious institutions. Some of these applied to wakf also. But things did
improve. The Wakf Act, 1923 was replaced by Wakfs Act, 1954, which was amended in 1964. But things still did
not improve much. Parliament then passed the Wakf Act, 1995 for the better administration of wakfs and
connected matters thereof.

The Act provides for the survey of all wakfs and registration of wakfs. A Central Wakf Council is stipulated to be
established for overseeing, advising and looking after the working of Wakf Boards. The Act is also stipulated to
establish Wakf Boards in each state, if necessary, separate Wakf Board of Shia and Sunni Wakfs. The Wakf
Board is the main instrumentality for the management of Wakfs.

REGIS TRA TION OF WAK FS (Section 36, The Wakf Act, 1995)
The Act makes registration of every wakf compulsory. Mutawallis of wakfs are required to move an application
registration of wakfs. Such an application can also be made by a wakf or his descendants or a beneficiary of a
wakf. The application should state the following particulars:
1. a description of the wakf properties sufficient for the identification thereof;

FAMILY LAW Page 49

 1. a description of the wakf properties sufficient for the identification thereof;
2. the gross annual income from such properties;
3. the amount of land revenue, cesses, rates and taxes annually payable in respect of the wakf properties;
4. an estimate of the expenses annually incurred in the realisation of the income of the wakf properties;
5. the amount set apart under the wakf for—
a. the salary of the mutawalli and allowances to the individuals;
b. purely religious purposes;
c. charitable purposes; and
d. any other purposes;
e. any other particulars provided by the Board by regulations.
The Board may require the applicant to supply any further particulars or information that it may consider
necessary. On receipt of an application for registration, the Board may, before the registration of the wakf make
such inquiries as it thinks fit in respect of the genuineness and validity of the
application and correctness of any particulars therein and when the application is made by any person other than
the person administering the wakf property, the Board shall, before registering the wakf, give notice of the
application to the person administering the wakf property and shall hear him if he desires to be heard.

In the case of wakfs created before the commencement of this Act, every application for registration shall be
made, within three months from such commencement and in the case of wakfs created after such
commencement, within three months from the date of the creation of the wakf: Provided that where there is no
board at the time of creation of a wakf, such application will be made within three months from the date of
establishment of the
Board.

LE GA L CONS EQUENCE S OF WAK F

Once a wakf is complete, the following are the consequences –

1. Dedication to God – The property vests in God in the sense that nobody can claim ownership of it. In Md.
Is mail vs Thak ur Sabir Ali , SC held that even in wakf alal aulad, the property is dedicated to God and
only the usufructs are used by the descendants.
2. Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The wakif cannot get his
property back in his name or in any other’s name.
3. Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the property is given to wakf, it
remains for the wakf for ever. Wakf cannot be of a specified time duration. In Ms t Peeran vs Haf iz
Mohammad, it was held by Allahbad HC that the wakf of a house built on a land leased for a fixed term was
invalid.
4. Inalienable – Since Wakf property belongs to God, no human being can alienate it for himself or any other
person. It cannot be sold or given away to anybody.
5. Pious or charitable use – The usufructs of the wakf property can only be used for pious and charitable
purpose. It can also be used for descendants in case of a private wakf.
6. Extinction of the right of wakif – The wakif loses all rights, even to the usufructs, of the property. He cannot
claim any benefits from that property.
7. Power of court’s inspection – The courts have the power to inspect the functioning or management of the
wakf property. Misuse of the property of usufructs is a criminal offence as per Wakf Act.1995.

OFFICE OF MUTA WA LLI

Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the property. He is only a
superintendent whose job is the see that the usufructs of the property are being utilized for valid purpose as
desired by the wakif. He has to see that the intended beneficiaries are indeed getting the benefits. Thus, he only
has a limited control over the usufructs.
In Ahmad Arif vs Wealt h Tax Commis s ioner , SC held that a mutawalli has no power to sell, mortgage, or
lease wakf property without prior permission of the court or unless that power is explicitly provided to the
mutawalli in wakfnama.

FAMILY LAW Page 50

mutawalli in wakfnama.

WHO CAN BE A MUTAWALLI – A person who is a major, of sound mind, and who is capable of performing the
functions of the wakf as desired by the wakif can be appointed as a mutawalli. A male or female of any religion
can be appointed. If religious duties are a part of the wakf, then a female or a non-muslim cannot be appointed. In
Shahar Bano vs Aga Mohammad , Privy Council held that there is no legal restriction on a woman becoming
a mutawalli if the duties of the wakf do not involve religious activities.

WHO CAN APPOINT A MUTAWALLI – Generally, the wakif appoints a mutawalli. He can also appoint himself as
a mutawalli. If a wakf is created without appointing a mutawalli, in India, the wakf is considered valid and the
wakif becomes the first mutawalli in Sunni law but according to Shia law, even though the wakf remains valid, it
has to be administered by the beneficiaries. The wakif also has the power to lay down the rules to appoint a
mutawalli.

POWE RS OF A MUTAWALLI

Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following rights –

1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the wakf.
can take all reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the
wakf. Unlike a trustee, he is not an owner of the property so he cannot sell the property. However, the wakif
may give such rights to the mutawalli by explicitly mentioning them in wakfnama.
2. He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds or if
there is an urgent necessity.
3. He is competent to file a suit to protect the interests of the wakf.
4. He can lease the property for agricultural purpose for less than three years and for nonagricultural purpose for
less than one year. He can exceed the term by permission of the court.
5. He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the
court to get an increase.

REMOV AL OF MUTAWALLI

Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a mutawalli can be
removed in the following situations –
1. By Court:
a. If he misappropriates wakf property.
b. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.
c. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fat ima vs
Mahmood Has an , SC held that using wakf money to buy property in wife’s name is such breach of
trust as is sufficient ground for removal of mutawalli.
d. he becomes insolvent.
2. By Wakf Board: Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli from his office
under the conditions mentioned therein.
3. By the Wakif: As per Abu Yusuf, whose view is followed in India, even if the wakif has not reserved the right
remove the mutawalli in wakf deed, he can still remove the mutawalli.

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cases
22 May 2018
23:28

What that section means is, that where a prior interest is given and a later bequest is provided in favour of an
unborn person in the same thing, the completeness of the estate in favour of the unborn person can be limited
only to the extent to which a prior valid bequest can limit it. If there are any other limitations which derogate from
the completeness of the estate granted in the thing bequeathed, the bequest in favour of an unborn person is
If the bequest in favour of an unborn person after a prior valid bequest is dependent upon a contingency, the
bequest may also be regarded as void. Similarly, any limitation or a condition of defeasance which derogates
the completeness of the estate in favour of an unborn person so as to reduce it to a life estate, or to an estate
defeasible on the happening of a contingency renders such estate void. The expression ' remaining interest'
therefore connotes an interest which is as complete as an interest which the testator had in the thing bequeathed
such interest not being fettered or limited except by and to the extent of the prior estate; but where a vested
interest is given in the thing bequeathed in. favour of an unborn person, the vested interest will not be avoided
merely by reason of imposition of limitations which restrict enjoyment. The principles which I have set out are,, in
my view, borne out by the two decisions which Mr. Maneksha, has referred, to in the course of his argument, and
the judgment of the Privy Council reported in Aniruddha Mitra v. Administrator-General of Bengal I.L.R. 76 I.A.
104 : (1949) 2 M.L.J. 35.

TAGORE V TAGORE

Prasanna Kumar Tagore died leaving consider able properties. He left the only son Ganendra Mohan Tagore, the
plaintiff. After making provisions for the maintenance of his son, he proceeded to vest the whole property both
ancestral and self acquired in trustees and bequeathed the beneficial interest
in the following manner:
1. Jitendra Mohan for life.
2. Jitendra’s eldest son for life, born during the testator’s life-time.
At the death of the testator, Jitendra had no sons. Surendra was alive. The main objections of the plaintiff were
follows:
A. It was invalid as to the ancestral estate.
B. The grant of the mere life-estate is illegal in Hindu Law.
C. The grant to Jitendra’s unborn son is invalid.
D. Every other grant after this invalid.
E. The creation of the trust is invalid as there is no differ ence between legal and equitable estate according to
Hindu Law.
F. The testator was bound to provide him with an adequate maintenance. Having regard to the extent of property
the grant of rupees seven thousand is inadequate.
G. His dis-inheritance was illegal.

The Privy Council held as follows:

A. The Bengali father has the same power of disposition over ancestral as over selfacquired property, even to
prejudice of the son.
B. Inheritance being a thing laid down by the State for rea sons of public policy, a private person cannot lay
a mode of inheritance unknown to the law. Thus if a testator grants property to a person and his eldest
nephew and the eldest nephew of such nephew, and so forth, here the mode of inheritance not being legal, it
fails except as to those persons in whose favour it is valid by way of gift. Here the succession of life -estate,
being repugnant to Hindu law, it fails as a mode of inheritance. It remains to be seen whether it can be upheld
by the law of gift.
C. Under the Hindu Law, in the case of a gift, the donee must be a person in existence and, therefore, the life -
estate of Jitendra’s unborn son is illegal.
D. the next question is “whether the life-estate of Jitendra’s son being illegal the grant to Surendra who is living,
illegal”. It is not valid because he was to take only on ‘failure of determination’ of the previous estate. The
condition precedent must be fulfilled in the manner contemplated by the testator; the life estate of Surendra is
invalid.
E. trusts of various kinds have been reorganised and acted on in India and there is no reason why they should

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E. trusts of various kinds have been reorganised and acted on in India and there is no reason why they should
not be upheld, if created by Hindus. But the interposition of trustees in this case cannot cure the illegality of
will. Trusts for illegal purposes are invalid.
F. The maintenance is sufficient. The amount of mainte nance is to be determined by various circumstances
among which the magnitude of the property is one; but it is not to have a fixed proportion to the extent of the
property.
G. The result is, as to everything after Jitendra’s life estate, there was an intestacy, and the plaintiff would
succeed, not as legatee, but as heir in spite of his being expressly disinherited. A general provision in the will
that the heir at law shall be disinherited is ineffectual, without a valid bequest to another person.

The principles of Hindu Law laid down in this case were a governing factor for half century. Now it has been
superseded by the Hindu Disposition of Property Act (XV of 1916) which provided that a gift of bequest to an
unborn person is valid, provided he is given an absolute interest and the gift is in conformity with Section 113 of
the Indian Succession Act,1925.

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