(A) HINDU LAW OF JOINT FAMILY

1. Joint Hindu Family and Hindu Coparcenary

The Mitakshara joint family is a unique contribution of Hindu law which has no parallel in
any ancient or modern system of law. Whatever the sceptic may say about the future of
the HJF, it has been and still continues to be, the fundamental aspect of life of Hindus.
In Hindu law, there is a presumption that every family is a joint Hindu Family
The males in a joint hindu family upto four generations from a common male ancestor
are known as coparceners and they acquire a right by birth in the joint hindu family
property. The group of males is known as coparcenary.
(a) Concept of HJF and coparcenary under Mitakshara and Dayabhaga law and their
incidents.
(b) Judicial and Legislative Trends
(1) Commissioner of IT vs Gomedalli Lakshminarayan, AIR 1935 Bom 412
Property in the hands of sole surviving coparcerner could be taxed as tht of HUF - prsnt
case JF consisted of Son, his wife and his mother - thus the son ws the sole surving
coparcener - issue -> whtr property in the hands of sole surviving coparcener shld be
taxed as his individual property or tht of HUF - A HUF is taxed as a unit, the individual
members thereof are nt liable to be chargd in respect of wht thry recieve as their share
of Jt income - contended tht HUF must consist of 2 male members i.e. thr shld be co
parcerners, court however obsrvd -SC in its recent decision held nothing in the scheme
of Wealth Tax Act to suggest tht a HUF as assessable unit must consist of atleast two
male members ( Narendranath vs Commr Wealth Tax, AIR 1970, SC 14) - JF status of a
family does nt automatically come to an end merely because fr the time being thr is only
1 male member - here a sharp distinction bw the expression HUF & Coparcenary
(consisting of male members ) - futhr contended tht assessee ws sole surviving
coparcener & thr4 free to deal with property any way he liked, so hence no HUF - court
hwevr obsrvd tht under Hindu law coparcener hs wider powers to deal with the proprty
but subject to rights of female members eg. maintenance, marriage, expenses, adoption
by widow, etc - court noted tht large tax exemption is allowed in case of HUF, mere
liberal allowance is presumably given becoz whole family income wud nt go to one
individual but a small portion only for each member, also incase of single male member
maintaince of females might absorb a large share of income
Comments - Even in cases of JF which consists no male member and thr are only
widows, even on the death of the sole surviving coparcener, the JF does nt come to an
end so long as it is possible in nature or in law(i.e. adoption) to add a male member to it
(Sitabai vs Ramachandra AIR 1970 SC 343) - Paras Diwan -> whr thr is a jt family
consisting on female members and male member, the male member can treat the
property almost as his separate property, as long as another male member doesn't
come into existence, it assumes character of self accquired property, subj to rights of

maintanence of female members - but fr purpose of tax such a family will be called HUF

(2) Moro Vishwanath vs Ganesh Vithal (1873) 10 Bom 444

A partition can be demanded by one or more than 4 degrees removed frm the acquirer
or original owner of the property sought to be divided but tht it cannot be demanded by
one more than 4 degrees removed frm last owner, however remote, he may be frm the
original owner throf. Becoz coparcenary extends to 4 degrees frm last owner (extinction
of coparcenary).
Plaintiff's & defendants are descendants of one Udhav, the original acquirer & common
ancestor of the property in dispute. Former r beyond & latter within 4th degrre from
Udhav. Ganesh(plaintiff), the great grandson of Udhav who ws removed more than 4
degrees frm Udhav, demanded partition of the JF property frm Moro(defendant). ->
appellants contention ws that partition in any case could nt be demanded by
descendants of a common ancestor more than 4 degrees removed, of property
originally descended frm him - thus issue ws whthr a person remvd more than 4
degrees frm original acquirer of the property cn demand paritition of the JFP? - It ws
urged tht 'law of partition' is inseparably connected with 'law of inheritance' which is
clearly founded on the spiritual benefit which certain persons according to the religious
ideas of Hindus are supposed to be capable of conferring on the deceased by the gift of
funeral cake; tht this capacity of benefitting the deceased does nt extend beyond the 4th
in descent. Many says Chap IX, 186 "but the 5th hs no concern with the gift of the
funeral cake"; tht this is made clearer by Kulluka in his commentary and tht 5th cannot
inherit during the lifetime of the 4th in descent, no neither cn he claim any partition frm
the latter - to this it ws replied tht authorities quoted do nt support contention of
appellants - doctrine of ancestral property vesting by birth in one's son, grandson & grt
grnd son, ws overlooked by the othr side; tht if A died, leaving two or more sons, & the
same thing happened regularly fr several generations, all the descendants of A living in
the state of union as in this case the authorities quoted did nt prevent any such
descendants below the 4th demanding a partition of the JFP; they only went so far as to
lay down tht if A died, leaving B a son, E a grnd son, & G a grt grnd son, & J who stnds
5th in descent fr A cannot demand a partition of A's property, becoz A hd nt vested in
him by birth any interest in such property - furthr d text which apparently limits the right
to partition of the 4th in descent refers only to cases of reunited coparceners & nt to
undivided one's (as in presnt case)
Court gave some illustrations - (i) A orginal owner of prop in dispute, 3 lineal
descendants B(son), C(grndson), D(grt gndson) and D hd two sons E & F (grt grt
grndsons). No partition of the family property hs taken place & D, E & F r living in a state
of union. Cn E & F compel D to make over to them their share of the ancestral property?
According to the law prevailing they can, sons being equally interested with their fathr in
ancestral property. In the same way supp B & C die, leaving A & D members of an
undivided family after which A dies whrupon the whole of his property devolves upon D,
who thraftr hs 2 sons E & F. They or either of them, can likewise sue thr father D fr

partition of the said property, it being ancestral. (ii) A is the original owner of the property
in dispute. His 3 lineal descendants include B(son), C (grndson) & C's two sons; D &
D1(grt grndsons) . Nw supp B & C die leaving A, D & D1 members of an undivided
family aftr which A dies, whrupon the whole of his property devolves upon D & D1 jointly
& tht D thraftr hs two sons E & F, leaving whom D dies. A suit against partition of JF
property wd be perfectly open to E & F or even to G (son of E) & F, if E died befr the suit
- it wud be a suit against D1 by a deceased brother's sons or son and grndson, but E &
F r both 5th & 6th in descent frm the original owner of the property whereas D & D1 r
only 4th. Suppose however tht A dies after D leaving a grt grndson D1 & two sons of D
i.e. E & F, in this case E & F could nt sue D1 fr partition of property descending frm A,
becoz it is inherited by D1 alone, since E & F being sons of a grt grndson are xcluded
by D1, A's surviving grt grndson, the right of representation extending nt farther frm grt
grndson
Court obsrvd:- The rule then is nt tht a partition cannot be demanded by by 1 more than
4 degrees removed frm the acquirer or original owner of the property but tht it cannot be
demanded by one more than 4 degrees removed frm the last owner, however remote,
he may be frm the original owner thereof.

-----------2. Property in Hindu Law

Kinds and Sources of property;
Coparcenary and separate property;
Gift from paternal ancestor and property inherited from maternal ancestor
-> Gift or will by father of self accq prop to Son :- Two imp principles of Hindu Law (1)
Every Hindu hs full power of disposal over his separate property (2) When separate or
self-acquired propery of a Hindu devolves on his son by inheritance or by partition, the
son takes it as ancestral property in which his son has an interest by birth - difficulty
arises when father makes a gift(or will) of his separate property becoz in tht case the
property does nt pass by inheritance and thus the question is whtr such property is
'ancestral property' or 'separate property' in the hands of donee(son).

(3) Muhammad Husain Khan vs Babu Kishva Nandan Sahai, AIR 1937 PC 233 ( Prop
inherited frm Maternal Grnd father)
Property inherited frm maternal grandfather cannot be said to be ancestral. The
ancestral estate in which under the Hindu law, a son acquires jointly with his father an
interest by birth, must be confined to the property descended to the father frm the male
ancestor in the male line
facts:- one Ganesh Prasad inherited certain village property frm his maternal grndfthr,
under a will made by Ganesh the said property ws to go to his son, Bindeshri Prasad for

his life and on his death, it ws to vest in his widow Giri Bala - in the excution of a decree
fr money obtained by a creditor against Bindeshri Prasad, the said property ws sold in
court auction. Bindeshri filed a suit claiming possession of the property on the grnd tht
the sale ws vitiated by fraud, during the pendency of the proceeding, Bindeshri & his
widow Giri Bala ws brought on record - widow asked fr leave to amend the plaint on the
grnd tht her husband got the estate only fr his life & tht on the latter's death his life
interest came to an end, & the devise(will) in her favor became operative, making her
the absolute owner of the property - she accordingly prayed tht even if the sale is held
to be binding upon her husband, it shld declared to be inoperative as against her rights
of ownership in the property - the validity of the will executed by Ganesh is challenged
by the appellant on the grnd tht the testator hd no authority to dispose of the property as
it belonged to a Hindu coparcenary consisting of Ganesh & his son - Court obsrvd word ancestral ordinarily means an ascendant in the maternal as well as paternal line but the ancestral estate in which under Hindu law a son acquires jointly with his father
an interest by birth, must be confined to the property descended to the father frm his
male ancestor in the male line - as shown it is the property of paternal grndfthr or
pitamaha in which jt interest is thr - court furthr obsrvd - primary reason fr this is the
Hindu society ws patriarchal in nature which means that fr mother's father the primary
heir wud be the son & hence any inheritance by the daughter's son wud be obstructed
heritage - thus estate inherited frm maternal grndfather is obstructed heritage - thus
estate inherited frm maternal grndfthr is 'separate property' & one hs full power of
disposition over it, so a device(will) made by person over his separate property is fully
operative
Present case, the estate which ws inherited by Ganesh Prasad frm his maternal
grndfathr cannot in their Lordships' opinion be held to be ancestral property in which his
son hd an interest jointly with him - Ganesh Prasad consequently hd full power of
disposal ovr tht estate, and devise made by him in favor of his dauter-inlaw Giri Bala
cud nt be challngd by his son or any othr person - on the death of her husb, the devise
in her favor became operational & she became absolute owner of that property; & the
sale of tht property in execution proceedings against her husband cud nt adversely
affect her title
Venkayamma v Venkatanarayanamma(1902) 25 Mad 678 - wrongly decided case - two
bros inherited certain property frm maternal grndfathr one of them died, without a male
issue & his widow claimed his share by inheritance while othr brother claimed by
survivorship - Privy C held tht it ws jt family property and passed by survivorship to
brothr
Maktul vs Manbari (AIR 1958 SC 241) - SC held tht property inherited by a person frm
his maternal grndfather is nt ancestral qua his descendants

(4) C.N. Arunachala Mudaliar vs C.A. Muruganatha Mudaliar, AIR 1953 SC 495 (Gift or
will by father of self accq prop to Son)
Mitakshara father is nt only competent to sell his self acquired property to a stranger

without the concurrence of his sons but he can make a gift of such property to one of his
own sons to the detriment of another; and he can make even an unequal distribution
amongst his heirs. in view of this settled position of law, it is nt possible to hold tht such
property bequeathed or gifted to a son must neccesarily & under all circumstances rank
an ancestral property in the hands of the donee in which his sons wud acquire coordinate interest
Case in issue - father - self acquired property by gift inter vivos or by will to one of his
sons the son will take it as ancestral property and son's son will have interest in it or
not? The will in this case recites the testator is aged 65yrs & his properties are all his
own which he acquired frm no nucleus of ancestral funds - his 3 sons r to enjoy the
properties mentioned in the will, allotted to them with absolute rights & with powers of
alienation such as gift, xchange, sale etc frm son to grndsons heriditarily. SC after
considering the texts & various decisions of the HCs said tht the answer to the ques
primarily depends upon the INTENTION OF THE FATHER. Court held that
(i) when a person recvs a gift, he rcvs it nt becoz he hs any legal rite but becoz his
father chose to bestow a favor on him which he cud hv bestowed on any othr person as
well - expression 'obtained thrgh favor of father which occurs in Placitum 28, S.4 of
Mitakshara is very significant. When he makes a gift of separate property he has an
absolute discretion (ii) futhr Mitakshara hs placed fathers gift under a separate catergory
and hs declared them exempt frm partition. It ws contended tht such gifted property
must be held partible as it does nt come within the defn of self acquisition, as such gift
cant be said to be acquired by son w/o detriment to fathr's estate, it cannot be regarded
as self acquired property & consequently cannot be exempt frm partition, court rejecting
this argument said tht the father's gift being itself an exception, provisions in Placitum 28
cannot be read as requiring tht gift must also be w/o detriment, fr it wud be a palpable
contradiction to say tht thr cud be any gift by a father out of estate w/o any detriment to
estate. (iii) as Mitakshara father hs complete disposition of self accq prop, it must follow
as a neccessary consequence tht fathr is quite competent to provide expressly when he
makes a gift, either the donee wud take it exclusively fr himself or the gift wud be fr the
benefit of his branch of family - thus the question primarily depends upon the intention
of the father (iv) Intention is to be gathered frm the terms of the deed, incase father hs
nt expressed his intention clearly then the intention is to be gathered frm the language
of the deed & the surrounding circumstances, thus if it is shown tht so called gift ws nt a
gift but an integral part of a scheme of partition then the donee-son will take the property
as JF property, on the othr hand if the father hs expressed a clear intention in the deed
tht the son wil take it as his separate property, the son will take it accordingly. (v)
Present case will expressly vests son with absolute rights no ref made to son's son, thus
father did nt intend son to take gift as ancestral property (vi) property gifted by father to
son cud nt become ancestral property in the hands of the donee simply by reason
donee got it frm father as ancestor , theory of equal ownership nt applicable to father's
gifts as father hs a predominant interest in his self acquired property
(5) Smt. Dipo vs Wassan Singh, AIR 1983 SC 846

The property held by sole surviving coparcener may constitute his 'separate property'
and on his death it will devolve by succession on his heirs, and any custom giving
preference to collateral would be void. The character of the property varies, depending
upon who the claimant is.
2 brothers inherited property frm their father, a partition took place between them, one
brothr X hd a daughter and a son, his son took X's properties by survivorship on X's
death, but the son died without leaving any male descendants, thrfr his sister (X's
daughter) claimed the properties by succession. However sons of othr brother Y raised
a dispute tht they were the rightful owners of X's property, they contended tht property in
the hands of X's son were ancestral property and in Punjab, a female cannot own
ancestral property.
(6) Commissioner of Wealth Tax vs Chander Sen, AIR 1986 SC 1753
Son inheriting the separate property frm his father, grnd father or grt grnd fathr, under
HSA,1956 wud take it as his exclusive or absolute property, with no rights of his male
descendants over it. Son does not inherit the property as Karta of his branch but does it
in his individual capacity as the son of the intestate, nt as the representative of his male
issue.
Question in this case ws whtr income/asset which a son inherits frm his fathr dying
intestate (w/o making a will) when separated by partition (i.e. the separate property of
father), the same shld be assessed as income of HUF of son or of his own individual
income.
Facts:- family comprised of fathr, his son & grndsons, partial partition effectd & the fathr
& the sons carried on their respective businesses, on father's death, the son inherited
his separate properities by suvivorship. Son(Chander Sen) ws nw the Karta of his family
comprising two sons, in the karta's capacity he filed a return of his net wealth & showed
the JF income(incl the one tht he hd got by survivorship) but did nt include in it, property
inherited frm his father on grnds tht it ws his separate property

----------3. Karta
Position of Karta in HJF is sui-generis. He occupies a very important position. His
position is so unique that there is no office or institution in any other system of the world
that is comparable with it. The Judicial Committee of the Privy Council in
Hunoomanpersaud Panday vs Mussumat Babooee Munraj Koonweree (1856 ) 6
Moore's I.A. 393 had discussed the extent of Karta's power in relation to HJF property.
(a) Who can be a Karta
(b) Position of a Karta
(c) Powers,duties and liabilities of karta
(7) M/s Nopany Investments (P) Ltd vs Santokh Singh (HUF), 2007 (13) JT 448

Ordinarily, the right to act as Karta of the HUF is vested in the senior most male
member but in his absence, the junior members can also act as Karta in exceptional
circumstances.
Issue ws whtr a younger coparcener cud file the suit fr eviction - in the capacity of Karta
of a HUF when admittedly an elder member of the aforesaid HUF ws alive.
Court obsrvd in Sunil Kumar vs Ram Prakash (1988) 2 SCC 77, it ws laid down tht, in
general, the father of a family, if alive, and in his absence the senior member of the
family wud be entitled to manage the jt family property.
In Trivbhovan Das vs Gujarat Revenue Tribunal (1991) 3 SCC 442, the court obsrvd tht
a younger member of the JF can deal with the JF property as manager in the following
circumstances (i) senior member or the Karta is nt available (ii) whr the Karta
relinquishes his right expressly or by neccessary implication (iii) in the absence of the
manager in exceptional & extra ordinary circumstances such as distress or calamity
affecting the whole family & for supporting the family (iv) in the absence of the father (a)
whose whrabouts were nt known (b) who was away in a remote place due to compelling
circumstances & his return within a reasonable time ws unlikely or nt anticipated
Books on Principles of Hindu law by Mulla and Shri SV Gupta on "Hindu law" wherein it
hs been observed tht ordinarily, the right to act as the Karta of HUF is vested in the
senior most male member but in his absence, the Jr members can also act as Karta
Present case Dhuman Raj Singh, the senior most member of the HUF ws settled in UK,
nt in position to handle JFP -thrfr power of attorney to Jasraj Singh, further more no
protest frm Dhuman Raj Singh or by any member of the HUF to the filing of the suit by
Jasraj Singh - thrfr nt open to tenant to raise question of maintainability of the suit at the
instance of Jasraj Singh

----------4. Alienation of Joint Hindu Family Property

Ordinarily, neither karta nor any other coparcenar singly possesses full power of
alienation over the joint family or over his interest in the joint family property. It is now
settled that karta can alienate the joint Hindu family property in exceptional
circumstances, i.e. legal neccessity and benefit of estate.
(a) Alienation by karta - sale, mortgage, gifts and wills
(b) Alienation by father
(c) Alienee's rights duties and remedies
(d) Pious obligations of the son
(8) Hunoomanpersaud Panday vs Mussumat Babooee Munraj Koonweree (1854-1857 )
6 Moore's I.A. 393 [legal neccessity]
Case is a guide to all those who hd limtd powers of disposal over any property. The

power of the guardian/manager/karta fr an infant heir to charge an estate, which is nt his

own, is a ltd & qualified power. Burden of proof is on the alienee/transferee/lender to
show tht he acted bona fide & tht thr ws neccessity
Facts:- A certain mortgage executed by a widow in her character of the guardian of her
infant son ws challenged by the son on becoming major on thr grnd tht it is inalienable
by the act of the guardian, and so he is nt liable fr it - the said mortgage ws made fr the
payment of arrears of revenue due to the govt - thus it ws fr the benefit of the minors
estate to prevent a sequestration & probable confiscation due to non-payment of govt
revenue
PC obsrvd & decided :- 5 propositions (i) the power of the guardian/manager fr an infant
heir(or the power of karta) to charge an estate which is nt his own, is under the Hindu
law, a ltd & qualified power, it can only be exercised rightly in the case of legal
neccessity or for the benefit of estate (ii) incase a guardian/mngr makes alienation as a
prudent man, in order to benefit the estate, the bonafide lender or alienee is nt affected
by the previous mismanagement of estate, provided the lender or alienee ws nt a party
to mismanagement. In othr words he shldn't hv acted malafide. The actual pressure on
the estate, the danger to be averted or the benefit to be conferred upon it in the
particular instance, is the thing to be regarded (iii) if alienee acts bonafide & makes
proper enquiries, the real existence of an alleged sufficient & reasonably credited
neccessity is nt a condition precedent to the validity of alienation. In othr words, the
alienee's position is nt affected by the fact tht if the minor's property were properly &
better managed, the danger or neccessity wud hv nt arisen (v) The alienee is nt bound
to see as to the actual application of money fr the legal neccessity - he is nt an
administrator of fund (vi) Guardian/mngr under a legal obligation to make an alienation
as a prudent man, but the mere creation of a charge on the minor's property fr securing
properly a debt cannot be viewed as imprudent management becoz money to be
secured on any 'estate' is likely to be obtained on easier terms than a loan which rests
on mere 'personal security'
In othr words whenever an alienation is challenged it is fr the alienee to show tht thr ws
neccessity - it is becoz when one deals with a person whom one knws or is supposed to
knw to be a person of qualified powers, its one duty to satisfy oneself tht such a person
hs power to make alienations - however what he is reqd to prove is - either thr ws actual
need or tht he made proper enquires as to the existence of the need & acted honestly reasonable enquiry proved then immaterial whtr actual need ws thr or nt or tht he ws
decieved
In present case, thr ws no suggestion tht the debt of infant's father ws contracted fr
illegal or immoral purposes, during her mngmnt the widow(guardian/mngr) with the
object of saving the estate, of paying the debt of her predecessors executed the
mortgage bond. No greater benefit cud be conferred upon an estate than to save it frm
extinction by sequestration, the payment of arrears of revenue due to the govt by
mortgage bond ws in the nature of salvage expenditure. Thrfr alienation will be binding
on the son - moreovr a bond of this nature does nt extinguish the title of the infant, it
follows then, as a matter of justice & equity tht the mortgage bond is valid & of effect.

(9) Sunil Kumar vs Ram Prakash (1988) 2 SCC 77

Right to challenge alienation does not extend to right to obstruct alienation - A
coparcener cannot move court to grant relief by injunction (temporary or permanent)
restraining the Karta frm alienating the coparcenary property fr a permitted purpose as
ascertained by the Karta - An injunction cannot be granted when a party cud obtain an
efficacious relief by any othr usual mode of proceeding (except in case of breach of
trust) - The coparcener hs adequate remedy to impeach the alienation made by the
Karta

(10) Dev Kishan vs Ram Kishan, AIR 2002 Raj 370

For alienation to be valid under legal neccessity thr must be existence of lawful purpose
- thus a debt incurred fr the marriage of a minor child cannot have said to be fr lawful
purpose, as a child marriage is restrained by law & is opposed to public policy.
Facts case - father excuted mortgage, a sub mortgage and sale of 2 houses (JFP)
worth around Rs 8000-9000 fr a consideration of Rs 400-900 fr the alleged neccessity
of marriage of his 3 minor children who were in age grp 8 - 12 yrs, court held tht whr the
marriage of the minor ws performed in violation of the provisions of the Child Marriage
Restraint Act, the debt having been incurred fr tht unlawful purpose, cannot be regrded
as a lawful alienation - opposed to public policy - similar views Bom HC in Rambhau
Ganjaram & Orrisa HC in Maheshwar Das vs Sakhi Dei - Calcutta HC Hansraj Bhuteria
- appl made on behalf of minor fr marriage of his minor sister with a minor boy, court
shld nt sanction such expenditure
Court did nt found the view taken by Allahabad HC in Parasram vs Smt Naraini Devi
and tht by Punjab & Haryana HC in Rulia vs Jagdish to be correct - latter case Karta
effected sale of ancestral land to make provision fr the marriage of his son who ws
nearing age when he cud hv been lawfully married, sale ws a valid sale fr neccessity
Present case - court also reasoned tht members of the family were earning & tht thr ws
no need to sell the family property to raise the money - also property ws grossly
undervalued & if thr ws need for money trnsfrs shld hv been effected fr an adequate
consideration
(11) Balmukand vs Kamla Wati, AIR 1964 SC 1385
When the alienation of JFP by the Karta ws nt fr any legal neccessity or benefit to
estate, the said alienation is voidable at the instance of the coparceners
(12) Guramma Bhratar Chanbasappa Deshmukh vs Mallappa Chanbasappa, AIR 1964
SC 510
(gift of immovable property by a father coparcener in favor of his daughter)
Various judicial decisions & hindu texts recognize the validity of a gift of a reasonable
extent of JFP(immovable) to a daughter out of love & affection under varying

circumstances. This right of daughter hs crystallized into a moral obligation - but a gift of
immovable property, even to a small extent & out of love & affection, to a
relative/stranger, is nt permitted by Hindu law - tht is so when pious purpose is said to
include religious & charitable purposes.

(13) R Kuppayee vs Raja Gounder (2004) 1 SCC 510

Father can make a gift of ancestral immovable property to his daughter within
reasonable limits. he can make such a gift at the time of her marriage or even long after
her marriage - a gift of 1/26th share of the total holding of the family cannot be held to
be either unreasonable or excessive under any circumstances

(14) Arvind & Abasaheb Ganesh Kulkarni vs Anna & Dhanpal Parisa Chougule, AIR
1980 SC 645
Whr ancestral property is sold fr the purpose of discharging debts incurred by the father
and the bulk of the proceeds of the sale is so accounted, the fact tht a small part of the
consideration is nt accounted fr will nt invaliate the sale - thus fr an alienation to be valid
it hs to be seen tht the consideration recvd is adequate & tht it hs been properly utilized
i.e. thr ws legal neccessity or benefit to the estate
-------------5. Partition
Partition means bringing the joint status to an end. On partition, the JF ceases to be
joint and nuclear families or different joint families come into existence. There are
members of the joint family who can ask for partition and are entitled to a share also.
There is another catergory of the members of the joint family who have no right to
partition but if partition takes place, they are entitled to share.
A reunion can be made only between the parties to parition.
(a) What is parition
(b) Subject matter of partition
(c) Parition how effected
(d) Persons who have a right to claim partition and who are entitle to a share
(e) Rules relating to division of property
(15) A Raghavamma vs A Chenchamma, AIR 1964 SC 136
A will containing a declaration of intention to separate will nt result in severence of
status unless it is brought to the notice of the Karta & othr coparceners - an
uncommunicated expression of intention at best can amount to a desire to partition, it
cannot amt to severance of status, further the declaration of the intention in order to be
effective must be communicated during the lifetime of the one who expresses it. under

Hindu law, presumption is always in favor of JF. The burden to prove the partition lies on
the plaintiff & this burden ws nt discharged in the present case. Even if the "Will" may be
presumed to contain the intention of the executant to separate, partition cannot be
effective unless such an intention is known to other coparceners.
(16) Puttrangamma vs MS Ranganna, AIR 1968 SC 1018
Once thr is a communication, the intention to separate cannot be withdrawn, for eg,
when a letter ws posted & the letter withdrawn frm the post office, but the news of the
contents of the letter somehow reached other coparceners, partition ws complete and
irrevocable.
Facts:- Karta with his 3 bros - hospital - letter :intent to partition :- younger bros son
snatched notice, attempted to tear it, but ws prevented frm doing so, after notice
registered at the post office, family members intervened, tried to bring about an
amicable settlement. At this the Karta withdrew the notice. However no agreement cud
be reached subsequently. The Karta signed a vakalatnama & instructed his lawyer to
institute a suit fr partition. karta however died on the same day when the suit ws
instituted
(17) Kakumanu Pedasubhayya vs Kakumanu Akkamma, AIR 1968 SC 1042
A partition of the JFP through the filing of a suit by the next friend can be validly
effected. The court hs to be convinced in such cases tht the partition wud be in the
interests of the minor & nt effecting a partition wud adversely effect his interests. In the
case of a minor coparcener, the effective date fr severance of status wud be the date of
institution of the suit, provided the court actually effects a partition. If minor dies during
pendency of the suit, the same can be continued by legal representative of minor.

(18) Namdev Vyankat Ghadge vs Chanadrakant Ganpat Ghadge (2003) 4 SCC 71

The adopted child shall nt divest any person of any estate, which vested in him or her
before the adoption. if the property by inheritance goes to a collateral & the adopted son
is adopted after the death of the collateral, the adoption cannot divest the property
which hs vested in the heir of the collateral.

-----------------------------------------------------------------------------------------------------------(B) THE HINDU SUCCESSION ACT, 1956

The law of inheritance comprises rules which govern devolution of property, on the
death of a person, upon other persons solely on account of their relationship to the
former. The HSA came into force on 17th June 1956. It ammends and codifies the law
relating to intestate succession among Hindus and brings about some fundamental and
radical changes in the law of succession. The act lays down a uniform and

comprehensive system of inheritance and applies inter alia to persons governed by

Mitakshara and Dayabhaga schools as also to those in certain parts of southern India
who were previously governed by the Murumakkattayam, Alyasanatana and Nambudro
systems of Hindu Law. The act was last amended in 2005, and has brought in major
changes in the classical concept of coparcenary as also in the class I heirs to the
property of a male intestate.

7. Succession to property of a male intestate

(a) General introduction and the application of the Hindu Succession Act, 1956
(b) Devolution of Mitakshara property under the Act
(c) General principles of inheritance
(d) Disqualifications of heirs
(19) Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum, AIR 1978 SC 1239
The explanation to S6, i.e. legal fiction shld be given its due & full effect. The
assumption which the statute requires to be made is 'that a partition hd in fact taken
place' between the deceased & coparceners immediately befr the death. This
interpretation will further the legislative intention with regard to the enlargement of the
share of the female heirs, qualitatively & quanitatively. S6 is a measure to ameliorate or
improve the lot of Hindu women.
(20) Vellikannu vs R Singaperumal (2005) 6 SCC 622 (Effect of disqualification on
Succession)
If a person hd murdered his father or a person frm whom he wants to inherit, he stands
totally disqualified. Once he(son) is totally disinherited then his whole stock stands
disinherited i.e. wife or son. When the son cannot succeed then the wife who succeeds
to the property through the husband cannot also lay a claim to the property of her
father-in-law.
(21) S Narayanan vs Meenakshi, AIR 2006 Ker 143
Questions of law in this case (i) whthr suit fr partition at the instance of the daughter of
the deceased could be defeated by invoking S23 of the HSA by legal rep of a deceased
son of the intestate? (ii) whtr S23 wud be applicable in a case whr the deceased
intestate hs left behind him only one male issue & whtr it is neccessary tht thr must be
more than one male issues to invoke S23? (iii) Whtr protection in favr of the male heir
u/s 23 wud be available if he inducts a 3rd party in the dwelling house or any portion
throf? (iv) Whtr omission of S23 by the HS(A)A, 2005 wud hv any impact on a suit fr
partition or appeal thrfrm pending on the date of the commencement of the amendment
act?
Ans(i) Trial court held in view of S23 plaintiff cannot claim partition (ii) SC in Narshimaha
Murthy vs Smt Susheelabai considered the scope & objective of S23 & held tht the
object is to protect fragmentation or disintegration of the family dwelling house at the

instance of the female heir to the prejudice of the male heirs (iii) SC in Narshimaha
Murthy's case held tht if strangers r inducted into the dwelling house it must be held tht
male heir hs lost his animus possedendi (iv) SC -> right to claim benefit of S23 is
personal to the male heir of the deceased Hindu intestate. Such a right is nt heritable or
alienable, thrfr it cannot be said tht cessation of such personal right during the pendency
of a suit fr parition wud nt entitle the female heir to claim partition taking note of the
subsequent events. Whenever personal right of a male heir u/s 23 comes to and end
the right of the female heir to claim partition cannot be defeated. The effect of such
ommision wud be retroactive
--------------8. Succession to the property of the female Intestate
(a) Hindu women's estate
(b) Law relating to inheritance
(22) Vaddeboyina Tulasamma vs Vaddeboyina Sesha Reddi, AIR 1977 SC 1944
Exapansive interpretation of S14(1) & restrictive interpretation of S14(2) - It will depend
on the facts of each case whthr the same is covered by S14(1) or (2). The question is
such cases will be mostly one of construction of the instrument and ascertainment of the
intention therein expressed. S14(2) is merely a proviso to S14(1). - The property
acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue
of a pre-existing' right and thus covered by S14(1) & nt S14(2) even if the instrument,
decree, etc allotting the property prescribes a restricted estate in the property. S14(2)
must be confined to cases whr property is acquired fr the 1st time as a 'new grant' w/o
any pre-existing recognized right.
(23) Jagannathan Pillai vs Kunjithapadam Pillai, AIR 1987 SC 1493
It is futile to contend tht the female shall be in possession of property 'before' the
coming into operation of the HSA. If the property is itself is acquired after the
commencement of the Act, thr cud be no question of property being either in physical or
contructive possession of female befr the coming into operation of the Act, all that is
reqd to be shown by her is tht she hd acquired the property & tht she ws possessed of
property at the time when her title ws called into question. - if reconveyance takes place
befr or aftr 1956, the female wud certainly be deemed to be in possession of property,
with the result S14 will apply. By reversal of the original transaction, her rights wud hv to
be ascertained as if she became possessed of the property fr the first time, after the
commencement of the act.
(24) Bhagat Ram vs Teja Singh, AIR 2002 SC 1
Succession to Property of a Female Hindu (originally inherited from her mother)
S15(2) uses the words 'any property inherited by a female Hindu frm her 'father or
mother'. Thus property inherited by a female Hindu frm her father & mother is carved

out from a female Hindu dying intestate. in other words any property of female Hindu, if
inherited by her from her father or mother wud nt fall u/s 15(1) and it shld goto legal
heirs of her father u/s 15(2)(a) - It is the source frm which the property ws inherited by
the female, which is more important fr the purpose of devolution of her property. Even if
the female Hindu who is having a ltd ownership becomes full owner by virtue of S14(1)
of the Act, the rules of succession given u/s 15(2)(a) can be applied.
(25) Omprakash vs Radhacharan, 2009(7) SCALE 51
A woman's self acquired property covered by S15(1) & nt S15(2) - Law views the man's
estate and the woman's estate through different spectacles: her autonomy over her
property is less complete than his. There is no dispute tht the properties of the
deceased female were 'self acquired', nt inherited frm her parents. In case of 'selfacquired property' S15(1) will apply & nt S15(2). thus even though the intestate ws
driven out of matrimonial house by her in-laws and she stayed(till death) with her
parents and acquired property through self exertion, in view of the scheme of
succession laid down u/s 15(1), the 'heirs of husband' being in the earlier category than
the 'father or mother/or their heirs', will inherit her property. Further she hd nt made a
Will: the only way to defeat the rights of the 'heirs of husband.'

---------------------------------------------------------------------------------------------------------------(C) MUSLIM LAW

9. Law relating to Gifts
(a) Meaning and essentials of a valid gift
(b) Gift of Mushaa
(c) Gift made during Marz-ul-Maut
26. Mussa Miya walad Mahammed Shaffi vs Kadar Bax, AIR 1928 PC 108
A gift by maternal grnd father to a minor w/o delivery of possession to the existing and
competent guardian of his property (i.e. father) is invalid under Muslim law
27. Valia Peedikakkandi Katheessa Umma vs Pathakkalan Narayanath Kunhamu, AIR
1964 SCC 275
A gift made by the husb to his minor wife by a registered deed but accepted on her
behalf by minor wife's mother is valid. A gift can be made through the mother or even a
stranger ( under whose care the minor is living) in the absence of the guardians of minor
i.e. father/grnd father or their executors.
28. Hayatuddin vs Abdul Gani, AIR 1976 Bom 23 (Delivery of possession in Mushaa)
In this case, validity of the 'gift of undivided property' in absence of partition of the
property gifted(Mushaa) ws in issue. A gift of an undivided share(mushaa) in property
which is capable of division is irregular & nt void. The gift being irregular, and not void, it

may be perfected & rendered valid by subsequent partition & delivery to donee of the
share given to him. If possession is once taken the gift is validated. - The declaration in
the gift deed tht possession ws handed over to the donee, the notices issued &
intimation to the tenants orally & subsequently by notices were sufficient evidence to
show tht the donors hv done everything tht ws possible in the circumstances to hand
over possession.
29. Abdul Hafiz Beg vs Sahebbi, AIR 1975 Bom 165
In a Marz-ul-Maut, what is reqd to be proved upon the preponderance of probabilities is
whtr the gift ws made by the ailing person while under the 'apprhension of the death' &
further whtr in such ailing he met his death. - Once the subjective apprehension of
death, its possibility or preponderance is established & thr is evidence of accelerated
dissipation of the life itself leading unto death due to malady or affliction the dispositions
made by such person are treated as if it were an outcry against the denomic fear of
death itself and thus basically a non-juristic actioon. Once the subjective apprehension
of death, its possibility or preponderance is estb & thr is evidence of accelerated
dissipation of the life itself leading unto death due to malady or affliction the dispositions
made by such person are treated as if it were an outcry against the denomic fear of
death itself and thus basically a non-juristic action.