Hindu Law

HINDU LAW
Author(s): B. K. Sharma
Source: Journal of the Indian Law Institute, Vol. 7, No. 4 (OCTOBER-DECEMBER 1965), pp.
519-543
Published by: Indian Law Institute
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HINDU LAW
I. Introduction
The system with "the oldest pedigree of any known

jurisprudence" even now "shows no signs of decrepitude." T
Hindu outlook of some of the judgments of the Supreme Court
year is an ample testimony of the truth of the remarks mad
a century ago.
The enactments of 1955 and 1956 replaced a chapter of H
An altogether different image of Hindu law emerged a
moulded by the parliamentarians of independent India. These
innovations have been penetrating the Hindu society, giving it fresh
ideals and social perspectives. Conflicts entering the courtroom and the
judicial pronouncements concerning them reveal the depth and extent
of the change wrought.
In this survey the decisions that are likely to impress the Hindu
legal system have been discussed. Wherever trends and paths of
further progress are visible, attempt has been made to indicate them.
D ecisions which concern principally the shastric law are discussed first.
Pronouncements under the statutes are dealt with afterwards.
Cases are classified under the headings usually adopted by text-

writers. A case is discussed under that title which is affected by it in the
greatest degree. The groupings are Joint Family and Coparcenary ;
Pious Obligation and Debts; Adoption; Marriage; Maintenance; Hindu
Widows Right to Property Act, 1937; and Succession. Some of the usual
topics have not been included owing to lack of cases in that sphere.
The year under review witnessed the enactment of a notable
amendment (the Hindu Marriage Amendment Act, No. 44 of 1964) to
section 13 of the Hindu Marriage Act, 1955. In accordance with
section 13, as it originally was, the innocent party to a decree for
judicial separation or the petitioner at whose instance the other spouse
was ordered to render conjugal rights could move a court of law for
grant of divorce after the prescribed period had elapsed. In those cases
where the party who was authorized did not take recourse to law to
dissolve the marriage, the other party had no means to obtain divorce.
This entailed misery in most cases and immorality in many. The
Parliament has now thrown open the doors of the court to both the
parties irrespective of the incidence of matrimonial offence. After the
amendment, when the period prescribed has expired, any party may
rightly approach a court of law for grant of divorce under section 13.
II. Joint Family and Coparcenary
The law of property among Hindus is one of the most intricate

systems of all jurisprudences. It has an infinite capacity to provide
520 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 7 : 519
problems which admit of no ready answer. Many times the court is

the horns of a dilemma and those occasions are also not rare where,
whichever way the court chooses to take, the conclusions are unsa
factory.
The law of partition and of coparcenary is a perplexing maze
having at places some indicators put there by the decisions of the Privy
Council. Among Hindus, a male issue derives an interest in his father's
property from the moment of his birth. This interest is coeval with that
of his father. The son may demand partition at will. Male issues up
to the fourth generation constitute a coparcenary and each parcener has
a right to demand partition and take his share. In Raghavamma v.
Chenchamma ,1 some important points pertaining to law of partition were
raised. The principal point was whether a member of a joint Hindu
family becomes separated from the other members by a mere declaration
of his unequivocal intention to divide from the family without bringing
the intention to the knowledge of the other members. Subba Rao, J.,
delivering the judgment of the Supreme Court, held that the person
seeking to divide himself must bring home the knowledge of his inten-
tion to the other coparceners. The intention to divide must be clear and
must be published in a manner appropriate to the facts of the case.
Another question that came up was : What is the date from which
severance of status is deemed to have taken place? Two dates could
be regarded as material; first, the date of expression of intention, and
secondly, the date when intelligence of it is received by other members
of the family. The Court held that no severance is affected till the
knowledge of the demand is brought home to the persons affected. But
once the other members have been so advised, the severance of status
relates back to the date when the intention was formed and expressed.
The doctrine of relation back here also- as in the law of adoption-
operates within specified boundaries. Between the two dates if there
are any transactions binding on the property then the declarant is
bound by them.
Another point of interest in this case was the argument that if
there is a recital in a will disclosing a clear and unequivocal declaration
or intention to separate then such declaration must be deemed to have
effected partition.2 Subba Rao, J., left this question open because the
case had been decided on another point.3 It seems that a corollary to
the main principle from this case is that if the will is in the
cognizance of other members of the family then it may be taken that
the testator had separated. Apart from this issue some other related
questions demand an answer in the future. For example, what will be
the result if one coparcener receives notice of severance earlier and the
1. A.I.R. 1964 S.C. 136.
2. /¿.at 141.
3. Id. at 152.
1965] HINDU LAW 521
others later, or if the de

place from the date of po
other allied questions rem
minds of lawyers.4
Hindu law knows of a ty
Such estate generally desc
pertaining to such an imp
Court in Pushpavathi Vija
where a person acquires se
perty belonging to the joi
joint. Similarly, if the pro
perty which is not impar
perty so blended acquires
ascertain whether such mix
the intention of the hold
This rule of incorporation is applicable to moveable as well as to
immoveable property. An estate may be impartible by statute or by
custom. If it is by custom, the party setting up the custom has to dis-
charge the burden of proof in establishing its existence and relevance to
the case.
Some of the parties in this case were interested in getting a decla-

ration that certain jewels including a diadem were not impartible.
They assigned two reasons supporting their contention. First, that since
the Vizianagaram family was not a ruling family the holder had no
occasion for coronation. Secondly, conceding that there was a justifi-
cation for an installation ceremony, after the abolition of the zamindari
estate the occasion did not exist any more, and hence no jewels could
be regarded as regalia. The Court, rejecting the first contention, held
that the family exercised the power and authority of a ruling family.
Excluding the second, Gajendragadkar, J. (as he then was), remarked
that the argument overlooked the fact that many times a custom outlives
the condition of things which gave it birth. A family may continue to
observe a custom necessitated by conditions existing in primitive times.
To such cases the principle cessât ratio cessât lex is inapplicable.7
Gopi Math v. Satish Chandra 8 decided a point pertaining to the rights
of a joint Hindu family. The plaintiff came to the court with the alle-
gation that he was a member of a joint Hindu family. The karta of
the family had entered into a partnership with the defendants. On the
death of the karta he was entitled to a rendering of accounts being the
survivor of the karta of the family. The defendant's plea was that
there was no contractual relationship between the plaintiff and the
defendant and so he was not liable to render accounts to him. The
4. See, for instance, K. B. Agrawal, "Partition in Hindu Law: Communication of

Intention to Separate," 5 Jaipur L.J. 153 (1965).
5. Rani Sartaj Kuari v. Rani Deoraj Kuari, (1888) 15 I.A. 51.
6. A.I.R. 1964 S.G. 118.
7. Id. at 130.
8. A.I.R. 1964 All. 53.
court, after a perusal of the preceding cases, rejected the plea

Asthana, J., delivering the judgment, observed that the plaintiff
surviving coparcener - the legal representative of the karta-^-can c
all the rights that are related to the share of the deceased karta of
joint family.
The proposition of law holding that the share of a Hindu living in
a Hindu undivided family cannot be predicated as a specified certain
share gave rise to a controversy which came up before the Madras
High Court in Ramaganesan v. Rajah Ajyjyar.9 The facts were that a
decree was passed against a member of a Hindu undivided family and
his share in a house belonging to the family was sold in execution of
the decree and symbolic possession was delivered. The decree-holder
became purchaser of a quarter of the share of the house and the
respondent purchased three quarters of the interest. Subsequently, the
respondent obtained the quarter share also from the first purchaser.
Thus, he became entitled to the whole of the share auctioned
by the court. Subsequently, the judgment-debtor entered into a
compromise with the respondent. The substance of the compromise
was that the debtor would pay the party of the second part the entire
sum agreed upon in five instalments spread over five years, with an
express stipulation that time formed the essence of the contract. In
case of default in payment of any instalment the creditor would take
possession of the house with the assistance of the court. The debt was
not paid. The creditor having applied to the court of law the debtor
objected and stated that the respondent had no right to claim possession
of specific property, in this case the house. Iyer, C .J., reviewed the
entire case law and delivered the final verdict in favour of the
respondent. The learned judge observed :
Each one of the purchasers obtained only a right to sue for a partition....
But on the basis of the court auction purchase itself neither of the two
purchasers can obtain from the executing court delivery of possession, either
actual or symbolic.
Order 21 Rule 35 G.P.C, which relates to execution by the holder of a
decree for possession, provides for delivery of joint possession where the decree
is for a share of the property
instant case where the purchasers obtained only a right

property purchased by them allotted in partition to th
The respondent could not be regarded, by

purchase, as having purchased the entire prop
to take the benefit of order 21 rule 35 of the
Referring to the compromise in the case the cour
It is undoubted that parties have the right to enter i
course of execution proceedings. . . .
9. A.I.R. 1964 Mad. 53.

10. Id. at 55-56.
1965] HINDU LAW 523
...[A] Court executing the de

entered into... in the course
lawful one, not extraneous t
liability under the decree and
The Court will therefore be
tion and the judgment-debto
of the Court. .. .n
In Venkiteswara Pai v. Luis,12 a joint family consisting of a number of

coparceners, entered into an agreement for sale with a purchaser. Later
the purchaser brought a suit for specific performance of the contract
against the three coparceners who had acted as representatives of the
family. These three included the karta also. Pending suit, one of the
defendants died intestate leaving a widow, two daughters and two sons.
The plaintiff did not implead anyone as legal representative of the
deceased. The survivors of the defendant submitted that the suit
abated so far as the deceased's share was concerned. The question was
referred to a Full Bench which held that because the deceased died
after the commencement of the Hindu Succession Act, 1956, his share
devolved according to the Act. That share is no more within the
competence of the karta.
A very ingenious argument was put forth by the plaintiff. He sub-
mitted that the notional partition contemplated in section 6 must be
a partition inter vivos and, therefore, affected by section 52 of the Trans-
fer of Property Act. Their lordships held that what section 6 provides
is devolution of interest. The partition contemplated is only a manner
of ascertaining the interest that may devolve. The suit abated with
reference to the share of the deceased.
A similar problem came up for decision before the Orissa High

Court in Laxminarasammd v. Ranganayakamma.ls There also the suit
related to a claim of a purchaser at a court sale for possession of the
share of a coparcener in a Hindu undivided family. The parties were
governed by the Madras school of Hindu law. The court held following
the famous Madras decision - V. C. Thani Chettiar v. Dakshinamurthy
Mudaliaru - that the purchaser of a caparcenary interest does not stand
in the shoes of the coparcener and is not entitled to joint possession with
other coparceners even though he may be a purchaser under a court
sale. Section 44 of the Transfer of Property Act, 1882, does not affect
the rules of Hindu law and so fails to create a charge in favour of the
purchaser. The purchaser is entitled to file a suit for partition. Limita-
tion against the purchaser would start to run from the date of the con-
firmation of the sale and not from the date of symbolic possession.
In this very area a decision of the Supreme Court, which has
attracted attention, is Guramma v. Mallappa.15 The judgment has been
11. Id. at 58.
12. A.I.R. 1964 Ker. 125.
13. A.I.R. 1964 Or. 43.
14. A.I.R. 1955 Mad. 288.
15. A.I.R. 1964 S.C. 510.
criticized as well as commended.16 The point in the controversy w

whether a Hindu father can make a gift of a portion of ances
immoveable property to a widowed daughter in indigent circumsta
for her maintenance. The facts of the case indicate that the fami
possessed a large amount of property valued at several lakhs and tha
life interest created in favour of the widowed daughter was in prop
worth about Rs. 5,000/-.
Subba Rao, J., in a very learned and elaborate judgment, enunci
ed the principles to be applied in the case. His lordship starte
saying that if the Hindu law clearly and expressly prohibits the ma
of such a gift of the family property, the Court will have no choic
to accept the law leaving it to the legislature to change it. Consider
the various texts, he pointed out that Vijnaneshwara considers it
gatory to allow a share to daughters in a family.17 Manu says
a brother should give a quarter of his share to his full sister. The
are several texts which not only sanction the giving of property
daughters at the time of partition or marriage but also condemn de
tion of this duty in clear terms. Courts have recognized that even a
the death of the father his widow can make an alienation in favour of
the daughter at the time of the marriage. Kudutamma v. Narasimha
Charyulu 18 recognized the validity of a gift in favour of a daughter, to a
reasonable extent, out of the family property on the occasion of her
marriage. The Madras High Court again in Anivillak Sundararmaya v.
Cherla Seethamma 19 declared as valid a gift of eight acres of land, in
similar circumstances when the family owned in all two-hundred acres.
A gift by the widow on the occasion of daughter's marriage to the
bridegroom was declared legal in Ramasami Ayyar v. Vengidusami Ayyar.20
The Privy Council in the famous judgment of Bachoo v. Mankorebai 21
held a gift of Rs. 20,000 /- to a daughter by a wealthy father to be valid.
No doubt this was a gift of moveable property but the principles can be
applied - and were in fact applied - to gifts of immoveables. The
judgments are unanimous in upholding the validity of a reasonable
16. See Derrett, "Teaching Hindu Law in this Decade," 5 Jaipur L.J . 18
(1965); Baj "Gift of Ancestral Immoveable Property to Daughters," 5 Jaipur L.J. 143
(1965). Though the views of the authors are different, they are equally inclined to
«mploy in apposite terms which make the comments sometimes obscure and at others
meaningless. Professor Derrett uses "Anglo-Mitakshara law"- an unhappy expression
with imperialist overtones - when what he means to convey could best be covered by
the expression "Hindu law." Mr. Baj seems to think that Mitakshara law is different
from shastric law. Perhaps he has not kept in mind the genesis of the "Mitakshara."
Professor S. S. Nigam, in his review of Derretťs Introduction to Modern Hindu Law
(1964) has analyzed the import of Derretťs expression. See Nigam, "Book Review," 81
L.Q.Reu. 311 (1965).
17. Supra note 15, at 517.
18. (1907) 17 M.L.J. 528.
19. (1911) 21 M.L.J. 695.
20. (1898) I.L.R. 22 Mad. 113.
21. (1907) I.L.R. 31 Bom. 373 (P.C.).
1965] HINDU LAW 525
segment of the joint fa

advisable to lay down a f
limit could be marked by
The fortune of the famil
the number of other dep
will have to keep in view
On the facts of the case t
in a small piece of land c
upheld as valid and bindi
judgment has laid to rest
sion of the Bombay High C
reflects the social outlook
The Supreme Court wa
alienation of joint family
facts were simple. The plai
remaining 3/20th share
brothers. The plaintiff a
to acquire that land to
sell and received Rs. 100/
the sale-deed in favour o
and his brothers for specif
The karta pleaded that h
behalf of his brothers. T
agreement was not bind
the benefit of the famil
plaintiff, however, conten
property not only for a
owner would sell it for c
it is undoubted that a tra
cases, be a dealing of the
case would determine the b
Mudholkar, J., further
that the sale was being co
Moreover, it had been c
karta, there co-exist adult
alienation is made. The case does not indicate that such was done.
On the contrary the adult members stoutly resisted the plaintiff's suit.
They would probably not have done so had the arrangement been pro-
fitable to the family. The suit could not be maintained, the Court
held.
An important decision 24 comes from the Orissa High Court on the

meaning of "Hindu undivided family" under the Wealth Tax
22. A.I.R. 1935 Bom. 324.
23. A.I.R. 1964 S.G. 1385.
24. Rukmini Bai v. Commr. of Wealth Tax , A.I.R. 1964 Or. 274.
Act, 1957. It also takes into consideration the changes brought by

Hindu Succession Act, 1956. The facts were that a Hindu divided
himself from his father and died survived by a widow and a minor
daughter. His widow became absolute owner of his property by virtue
of the Hindu Succession Act, 1956. When the Wealth Tax Act was
brought into force in 1957 the widow contended that she must be assess-
ed as a Hindu undivided family. The question before the court was
whether a Hindu undivided family may consist of a widow and his
unmarried daughter.
The court agreed that under the canons of interpretation, the
meaning assigned to this expression in the Wealth Tax Act is the same as
in the Income Tax Act, 1922. It agreed that "Hindu undivided
family" and "coparcenary" are not one and the same. The court
accepted the opinion expressed by the Privy Council in Anant v.
Shankar 25 that a coparcenary subsists so long as there is a widow of a co-
parcener alive for she can bring a son in the family by adoption. Cases
of other High Courts support the view that continuance of joint family
cannot be doubted so long as there is a potential mother.
Their lordships remarked that this situation was legal before the
Hindu Succession Act came into force. In 1956, the Hindu Adoptions
and Maintenance Act was passed. This Act 'took away the right of a
widow to make an adoption to the deceased husband. Section 8 of the
Act allows her to adopt a son to herself. This son has no rights, by way
of "relation back," in the estate of her husband. Under the new Acts
the son can only be her next heir and cannot divest her of any property.
If the widow remarries the second husband will be the stepfather of the
adopted child. Under the Act the adopted child could not be the child
of her deceased husband. These enactments have dug up the foundation
on which a Hindu family rested during the lifetime of a potential
mother. As the widow has become absolute owner, and has lost her
right to adopt for her deceased husband, the Hindu undivided family
cannot be brought into existence by her. This is so because the widow is
incapable of adding a coparcener.
In Kishan Gopal v. Suraj Malm the court was called upon to decide
whether a Hindu joint family could be declared insolvent irrespective of
the fact that the liability of the members to discharge the family debts
was personal or not. The court held : first, that a joint Hindu family is
unlike a partnership and so cannot be adjudicated insolvent like a part-
nership; second, that in order to declare members of a Hindu family
insolvent the court must be satisfied that the members have participated
in the business owing to which the family incurred debt; and third, that
in the absence of proof of the above facts only the karta may be declared
insolvent. In view of the problems of conducting the commerce of a
trading family the decision is welcome.
25. A.I.R. 1943 P.C. 196.
26. A.I.R. 1964 Raj. 218.
1965] HW DU LAW 527
III. Pious Obligation and Debts
Some important questions falling within the field of the

pious obligation were mooted in Devadattam v. Union of Ind
question discussed was whether the sons are liable to pay th
tax which the father had failed to pay after a partition has t
if the liability to pay the tax arose when they were joint. A
problem was to determine when the liability to pay the tax a
third important question was whether the remedy of the cre
file a separate suit to enforce the pious obligation of a Hind
discharge the debts of his father in the situation; where, since th
against the father (on a debt), there has been a severance of
family status.
Their lordships answered the first question referring to t
earlier decision in S. M. Jakati v. S. M. Borkar 28 that the liab
Hindu son is founded on pious obligation. It exists in the lif
even after the death of the father. The obligation to repay the pr
tion debts does not expire on partition. This duty exists, howe
reference only to those debts which are not tainted with imm
With reference to the second question, the Court expressed
that liability to pay income tax arises on the accrual of the in
not from the computation made by the assessing authorities.
lity arises not later than the close of the year of account.
Their lordships declined to express any opinion on the thi
tion. They took this position because, on the facts of the cas
concluded that the partition was a sham transaction whic
intended to be operative.
Another case, Meyyappa Chettiar v. Viswanathan 29 also relate
law of pious obligation. The facts were that one A and his wif
indebted. Their son C executed a mortgage in favour of a mon
and took over the liabilities of his parents. Later C's sons de
liabilities. The court held that by executing a mortgage and
himself personally liable to the appellant, the father incurred
the express purpose of saving his parents. Such debts, the co
can never be regarded as avyavaharika debts. The sons' inter
coparcenary estate will be liable to liquidate debts in case
decree is passed against their father in a suit on the mortgage.
The facts in Hari Char an v. Manakmall Lodha 30 may be th
Two Hindus Manakmall Lodha and Kedarnath Bajoria cons
partnership in 1947. In 1951 Lodha instituted proceedings to
the firm. The property in the family of Bajoria was partitione
27. A.I.R. 1964 S.G. 880.
28. A.I.R. 1959 S.G. 282.
29. A.I.R. 1964 Mad. 349.
30. A.I.R. 1964 Cal. 562.
during the pendency of the suit. Bajoria expired in 1961. In 19

decree was passed against Bajoria's sons. The sons supplied the argum
that at the date of the partition there was no debt because no
knew till accounts were settled that Bajoria had to pay any money.
The court founded its reasoning on the famous Madras decis
Nachimuthu v. Balasubr amanta 31 where the court observed that they w
not concerned with the technical narrow meaning of the word de
We have to deal with a totally different subject, and system. We ha
in fact, to assign a meaning to the word rina. Just as dhana includ
in its connotation all varieties of property and assets, rina must inc
all varieties of obligations.32 Accordingly, the court held that
unascertained liability of Bajoria was a debt according to Hindu law
The decision acknowledges that Hindu law must not be separated f
its s hast rie foundations.
An appeal which required a perusal of the nature and extent of

obligation of the sons to discharge the debts of the father arose out
suit, filed by a bank for the recovery of certain sums due on a mort
executed by the father, against the father as well as the sons.33 T
debt incurred by the father was not for any purpose binding on t
family. The family were the permanent residents of Palghat in th
then State of Madras. Some of the properties were situated in Coc
The law of Cochin was slightly different from the law of the res
India. According to the rule in India, where there is no antecedenc
mortgage by the father stands in the same position as a sale by the fath
for a purpose not binding on the family. The law as understoo
Cochin was that a mortgage, in spite of the fact that the debt was
incurred for family necessity or for benefit of the estate, would bind t
joint family property in the hands of the son, irrespective of the fact t
there was no antecedency. The sons claimed that the law of Co
would not apply to them. They also disclaimed liability on anot
ground, viz., that there had been a partition between the father and
sons and some property had been set apart to discharge the liability
the nature of debts.
Ayyangar, J., delivering the judgment observed that if the mortgage

were binding against the share of the sons - being for family purposes -
the partition can be ignored. If on the other hand the mortgage was
not binding on the sons, the nature and bona fides of the partition
would be considered. The burden of proving the character of the
partition was upon the sons. It is not up to the creditor to prove that
the arrangement was mala fide.
Where the father and son divide and in the memorandum of parti-
tion the son is absolved of the liability to liquidate debts this does not
31. A.I.R. 1939 Mad. 450.
32. Id . at 453.
33. Virdhachalam Pillai v. Chaldean Bank , A.I.R. 1964 S.C. 1125.
1965] HINDU LAW 529
make the partition mala

liquidation of the liabilit
partition must be declare
Relying on the princip
Court held that the person
is connected with the do
law governing the famil
was held, were responsible
IV. Adoption
The doctrine of relation back of the adopted son has be

bone of contention. In Anant v. Shankaru the Privy Counc
the adopted son to claim as preferential heir not only the e
adoptive father but also that of a collateral who died before
adoption, on the foundation of the doctrine of relation back
In 1954 the Supreme Court declared the decision of
Council to be erroneous insofar as succession to a collateral's estate was
concerned.35 Certain associated problems still existed demanding a
solution. One of them arose in an actual controversy in jV. Paramanna
v. S. Ningappa .36 The facts were that one Ningappa became the sole
surviving coparcener in a Hindu family in 1929. There were three
widows in the family. These widows made adoptions in and after 1947.
For about eighteen years Ningappa was the only coparcener and he
alienated a portion of the estate for value. One of the adopted sons
brought a suit seeking inter alia a declaration that the alienation was not
binding on him.
The Bombay High Court in Ramchandra v. Balajfi1 and the Mysore
Court in Somasekhar appas v. Basappa 38 had held such alienation as un-
challengeable by the adopted son. But in the Paramanna case39 the
court took the aid of the enunciation of law by Dayal, J., in Krishna -
murthi v. Dhruwaraji0 and held that the adopted son is bound by pre-
adoption transfer only on proof of legal necessity or benefit to the
estate justifying such transfers. This decision agrees with the principle
of Hindu law that property in the hands of a sole surviving
coparcener continues to be coparcenary property so long as there
is a widow capable of bringing a son into the family by means of
adoption. The Mysore High Court has thus laid down that its pre-
vious decisions as well as the decisions of the Bombay High Court on the
34. Supra note 25.

35. Shrinivas Krishnatao Kango v. Nar ay an Devji Kango and Others , [1955]
1 S.C.R. 1.
36, A.I.R. 1964 Mys. 217.
37. A.I.R. 1955 Bom. 291.
38. A.I.R. 1961 Mys. 141.
39. Supra note 36.
40. A.I.R. 1962 S.C. 59.
530 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 7 : 519
point are not good law in view of the Supreme Court pronouncemen
the Krishnamurthi case. *
In Kishni v. Ratna,n a widow, after her remarriage, gave away

former husband's son in adoption. The validity of this adoption w
issue. The court expressed the view that the son offers spiritual a
temporal benefits to the father. A mother of the child who had r
married has no interest in the family of her first marriage. Such
widow, the court opined, had no right to give in adoption a c
of her former husband. If she purports to transfer such child
resultant adoption would be void and of no legal consequence. It m
be remarked that the judgment does not disclose whether or not
adoption took place prior to the Hindu Adoptions and Mainten
Act of 1956. After the Act the mother can transfer her child in ad
tion even after remarriage.42
Radha Krishna v. Shyam Sunder 43 centred round the capacity
Hindu female to take a son in adoption. A Hindu female, whos
husband had died, leaving his sons (her stepsons) adopted a son after
demise of her husband. This adoption was impugned. The court he
that under section 8 of the Hindu Adoptions and Maintenance Act
1 956, a Hindu female has the capacity to adopt. Section 1 1 requir
that in case the adoption is of a son, the adoptive mother must not
a Hindu son, son's son or son's son's son. Stepsons of the mother,
court remarked, cannot be regarded as the sons of the adoptive mot
Their presence is no bar to adoption.
The metaphor of Saunak has once again aided in deciding a cont
versial point. The relevant case is Ketuki Devi v. J ayantakumar^ a
with deference to the learned judges it is singularly lacking in refer
to ancient texts and decided cases. It was alleged in the case that t
defendant had been adopted by his mother's brother before his d
The adopted son, however, did not prove any custom which permit
adoption of a sister's son. The court held that according to Hindu
no Hindu can adopt a boy whose mother the adoptive father could
have married had she been unmarried. Like all other prohibitions
Hindu law this one also could be set aside by proof of a valid custom
the contrary. On the facts of the case the court held the view th
the absence of proof of the existence of a valid custom the adopti
could not be sustained.
V. Marriage
The court was required to provide an answer to th

whether a suit can be brought by a wife against her husba
a permanent injunction restraining the husband from co
41. A.I.R. 1964 All. 17.
42. The Hindu Adoptions and Maintenance Act, 1956, § 9(ii).
43. A.I.R. 1964 Or. 136.
44. A.I.R. 1964 Mani. 14.
1965] HINDU LAW 531
second marriage in Shan

mainly on the ground
exhaustive code no reme
side the four corners of the Act.
The court disagreed with the suggestion Iyer, J., pointed out that
section 29 of the Hindu Marriage Act does not affect the rights con-
ferred by any other enactment. The suit of the wife is plainly a suit of
a civil nature. There is no law that can hinder the wife's claim. The
suit is cognizable by section 9 of the Civil Procedure Code. Section 54
of the Specific Relief Act governs the granting of a perpetual injunc-
tion to prevent the breach of an obligation. Section 5(1) of the Hindu
Marriage Act imposes such an obligation. A Hindu spouse is free to
move an application to enforce this obligation. The court, accordingly,
declared that the injunction can be granted.
The point the court was called upon to examine in Baburao v.
Shushila Baiiñ was a simple one, yet the judgment proceeds in a serpen-
tine manner. The facts were that a wife apparently deserted her
husband. The husband filed a petition for restitution of conjugal rights.
The wife resisted on the ground that the husband was treating her with
cruelty. The court stated that it was inclined to believe the statement
of the wife. Bhargava, J., stated : " In our opinion the attitude
demonstrated by the appellant amounted to legal cruelty and constituted
a ground for refusal of the decree of restitution of conjugal rights."47
He further remarked, that even if cruelty had not been proved they
would have refused relief to the husband on the ground that the couple
could no longer live happily together.48
It is submitted that under section 9 of the Hindu Marriage Act,
1955, no such discretion is vested in the court. It has been pointed out
by the Supreme Court in Bipinchandra Shah v. Prabhavati 49 that in answer
to a petition for restitution of conjugal rights what may be pleaded
must be a ground for judicial separation or for nullity of marriage or
for divorce. This assumption of authority by the High Court was
unwarranted and unprecedented.
In Lachman v. Meena 50 the Supreme Court once again reiterated the
principles laid down in Bipinchandra Shah v. Prabhavati .51 The Court
stated that the two essentials that must be proved to establish the offence
of desertion are, the fact of separation, and the intention to bring
cohabitation to an end.
45. A.I.R. 1964 Mys. 247.

46. A.I.R. 1964 M.P. 73.
47. Id. at 74.
48. Ibid.
49. A.I.R. 1957 S.C. 176.
50. A.I.R. 1964 S.C. 40.
51. Supra note 49.
The present case did not lay down aņy new principle of law
it is only illustrative of the fact that two opposite views may b
depending on the circumstances of the case. In this case Subba R
differing from the majority arrived at the conclusion that the respo
was not guilty of desertion.
Mohan Lai v. Shanti Devi 52 brings to the fore a custom pecu
India. In this case the husband claimed restitution of conj
rights against his wife. The wife contended that he had been out
and hence she was entitled to refuse to go and live with hi
court read section 9 of the Hindu Marriage Act, 1955, along wi
Caste Disabilities Removal Act of 1850. It held that the husband was
being deprived of the right to the company of his wife. Section 1 of the
Caste Disabilities Removal Act, 1850, disallows such forfeiture of rights.
The court, therefore, held that the custom could not stand against the
Act.
It seems that the court assigned wide meaning to the Freedom of

Religion Act. Previously it was generally understood that the word
"rights" preceding "property" was to be taken ejusdem generis to the
word "property." The construction of the court, however, is more in
consonance with the jural postulates of the present era.
Urbanization of the populace and emancipation of women have
opened new vistas of employment for the Hindu women. Problems of
adjustment, however, have been created thereby. The case Smt. Tirath
Kaur v. Kirpal Singh 53 is a paradigm in that direction. Tirath Kaur was
married to Kirpal Singh in 1953. The couple lived together till January
1958. The wife then passed certain examinations and started working
as a teacher. Her place of employment was in another city from the
husband's. The husband asked her to leave the service and to live with
him. The wife declined but at the same time desired the marriage to
continue. She was willing to have her husband pay her visits and she
herself promised to visit him occasionally. The Punjab High Court held
that it is the duty of the wife to submit obediently to the authority of the
husband and to remain under his roof and protection. She can remain
away only in case she is able to produce a justifiable excuse. The court
observed that if a couple by mutual consent makes such an arrangement
then a party may withdraw from the society of another for the purpose
of being gainfully employed. But in the absence of consent the wife
would be guilty of desertion.
Narayan Prasad v. Prabhadevi 54 emphasized the principle of law
holding that desertion was a matter of inference which had to be drawn
from the facts and circumstances in each case. It is not always that the
spouse who leaves the matrimonial home is guilty of desertion. If the
52. A.I.R. 1964 All. 21.
53. A.I.R. 1964 Punj. 28.
54. A.I.R. 1964 M.P. 28.
1965] HINDU LAW 533
conduct of one spouse i

put up with it then the p
spouse. In this case on
Narayan was living with
that his life had becom
between the mother-i
being dissatisfied sent
attempts to bring her b
when she came. The court held that in the circumstances of the case it
was the husband who was guilty of desertion. Irritating idiosyncrasies
are often the result of the lottery in which every spouse engages on
marrying and such conduct cannot be a ground for judicial separation.
Further, when the wife was sincerely offering to come back and live as a
faithful obedient wife without doing anything against the husband's
wishes, the charge of desertion cannot stand, even granting that the wife
was guilty of desertion.
Fraud in matrimonial law was involved in the point mooted before
the Punjab High Court in Harbhajan Singh v. Smt . Brij Balab.55 The con-
troversy rested on the following facts. Harbhajan Singh presented a
petition under section 12 of the Hindu Marriage Act, 1955, for the
annulment of his marriage with Brij Balab Kaur. He alleged that the
father of the respondent had assured him that she was a virgin and that
her character was unblemished. Upon this representation the petitioner
gave his consent to the marriage. After the marriage was celebrated
the husband came to know that a child had been born to the respon-
dent before the marriage with him. She admitted this fact in writing
before the Holy Grantha Saheb. On these facts he prayed the court to
grant him a decree of nullity under section 12. The High Court did
not go into the correctness of the averments of the opposite parties.
It considered the definition of fraud contained in section 17 of the
Indian Contract Act, 1872, but declared the inapplicability of the
definition to a marriage under Hindu law on the ground that a Hindu
marriage is a sacrament and not a contract. Relying on a Calcutta
case 56 the court declared that in Hindu law the question of consent of
the parties to the marriage arises at two stages ; first, at the time when
the parties consent to solemnize the marriage, and secondly, at the time
when the marriage itself is solemnized. Consent at the first stage,
though obtained by fraud, cannot affect the validity of marriage. But
consent at the second stage is material and must be given without fraud.
In the absence of fraud at the second stage no marriage can be annulled.
A perusal of the grounds of section 12 indicates that the " the Legisla-
ture did not intend that the past conduct of the respondent, except what
is mentioned in clause (d), should become a ground for the dissolution
55. A.I.R. 1964 Punj. 359.
56. Anath Nath v. Lajjabati Devi , A.I.R. 1959 Cal. 778.
of the marriage." 57 The court arrived at the conclusion that as t

was no allegation of fraud at the time of solemnization of the marriage
petition did not disclose any cause of action against the wife.
submitted that this distinction is not warranted by the language
the Act. Moreover, it is not possible to draw such a line. 58
The point for determination in Rajlingam v. Lingayya 59 was wheth
a husband who has filed a petition under section 13(1) against his
for divorce on the ground of adultery can claim damages from the
respondent. The High Court opined that generally the husban
cannot claim damages against the adulterer. If the husband wants
bring an action against him for damages, he must do so by fil
separate suit against the co-respondent. In Andhra Pradesh by vir
of rule 1 framed under the Hindu Marriage Act by the High Cour
the husband can put in a claim against the co-respondent in the s
proceedings in which he seeks a decree of divorce. Rule 9 wh
allows the claim is not ultra vires the Hindu Marriage Act, 1955.
Avinash Prasad v. Chandra Mohini 60 is illustrative of the circum-
stances that may be taken to constitute a case of exceptional hardship
under section 14 of the Hindu Marriage Act. The facts of the case
were that a husband applied for divorce against his wife on the charge
of " living in adultery" under section 13(1). The adulterous inter-
course was sought to be proved by the oral evidence of the husband as
well as by two letters written by the wife to the co-respondent. The
court pointed out that " it is not necessary to establish the factum of
adultery by direct evidence of some one having actually seen the lovers
in that act of incest through key-holes or by taking photographs of the
adulterous intercourse." 61
Pointing to the difference between sections 10(1) (f) and 13(1), the
court stated that
for the purpose of section 13(1) of the Act it is necessary to establish con-
tinued living in adultery. In order to fulfil the requirements of this section
a few stray or casual acts of adultery... are not sufficient. It refers to the adul-
terous way of life adopted by the erring party.62
Under Section 10 it is enough to prove even one act of misconduct by the

respondent. The court held that what had been proved in this case by
the husband did not amount to a ground for relief under section 13 but
was adequate to satisfy the demand of section 10. The court further
57. Supra note 55, at 363.

58. For other objections see Sivaramayya, "Annulment for Fraud," 5 Jaipur L.J .
70 (1965).
59. A.I.R. 1964 A.P. 308.
60. A.I.R. 1964 All. 486.
61. Id. at 487. Here the court followed what was said in Devyani v. Kant ilal,
A.I.R. 1963 Bom. 98.
62. /¿.at 487.
1965] HINDU LAW 535
observed,
[T]he long-drawn out strained relations between the parties, the final rift
brought about by the revelation of the grave misconduct of the respondent...
considerably aggravated by the litigation, as well as their present mental atti-
tude and approach towards each other... would be of no use prolonging the
agony for another two years. . . . [T]he case is one of exceptional hardship to
the appellant and of exceptional depravity on the part of the respondent....63
A lacuna in section 16 was brought to the fore in Thulasi Ammal v.

Gowri Ammal . 64 The facts were that after the Hindu Marriage Act,
1955, came into force a Hindu married a woman during the subsistence
of a valid marriage. A daughter was born of this second marriage.
The daughter claimed to be a legitimate child by virtue of section 16.
The High Court pointed out that under section 16 only those
children become legitimate whose parents' former marriage had been
declared void by a court of law. In case, no such decree is obtained
the children remain illegitimate. This differentiation is not based on
any sound principle of law or reason but it is the province of the legis-
lature to amend the law. The courts cannot encroach on their area of
competence.
By way of obiter the court observed that a decree of nullity under
section 1 1 may be obtained by one of the spouses even after the demise
of the other. It seems that the view expressed by the English courts 65
and in Raydon on divorce 66 was not cited before the court. Had it
been so, perhaps their opinion might have changed.
Section 25 clause (1) of the Hindu Marriage Act provides that any
court exercising jurisdiction under this Act may make an order for pay-
ment of permanent alimony or maintenance at the time of passing any
decree. In Shantaram v. Malti 67 the court dismissed the husband's peti-
tion for restitution of conjugal rights but at the same time granted
alimony to the wife. The husband went in appeal to the High Court.
He did not seriously challenge the order dismissing the petition for
restitution but he vehemently urged that the court had no jurisdiction to
pass an order for alimony. The High Court agreed with his submis-
sion and laid down that when the main petition has been dismissed the
ancillary relief cannot be granted. The expression " passing of any
decree" refers in section 25 to a decree under sections 9 to 13 of the Act.
Section 25 does not contemplate the decree dismissing a suit though
technically that too is a decree. The lower court, according to their
lordships, was not competent to pass an order for alimony.
Another section of the Hindu Marriage Act, namely, section 28 has
been denounced as inartistically drafted. The Orissa High Court took a
liberal view in Snehalata v. Jagadish Dansana .68 In its simple form the
63. Id. at 488.
64. A.I.R. 1964 Mad. 118.
65. Especially after 1950.
66. Raydon, Divorce (1928).
67. A.I.R. 1964 Bom. 83.
68. A.I.R. 1964 Or. 123.
problem was whether an order rejecting an application under sectio

is appealable under section 28. Section 28, the court pointed out, la
down that all decrees and orders made by the court under this Act m
be appealed from under " any law for the time being in force." Th
exists no law under which an appeal can lie from any order in
proceeding under the Act. If it is accepted that the orders are
appealable then section 28 becomes nugatory. For this reason the co
held that the expression " may be appealed from " confers a subst
tive right of appeal against all decrees and orders.
VI. Maintenance
Augat Singh v. Dhan Kaur 69 exhibits the readiness of In

to give an interpretation which would effectuate a legislati
being beneficial to Hindu women. In this case a claim was
widowed daughter-in-law against her father-in-law. The f
repudiated his liability on the ground that he had no "
property." He relied on the wordings of the Act and
because he had no coparcenary property the respondent h
against him.
The High Court took the view that if a restricted meaning is given to
the expression " coparcenary property " then the object of the Act is
nullified and the persons who are not governed by Mitakshara law (as
in the present case) could easily shirk their responsibility. The Act
applies to all Hindus as defined under the Act. Hence, the word co-
parcenary must be deemed to mean and include " ancestral property "
as it is understood in the Punjab customary law.
In Satyanarayanamurthy v. Ram Subbamma 70 a mother filed a suit for
maintenance against her two sons. Both the sons resisted the suit. The
elder averred that as he had separated from his father a long while
back he was not liable to maintain his mother. According to him, his
younger brother who was born after the partition and lived in coparce-
nary with his father and succeeded to his interest was to take the
burden. The younger son accepted his responsibility but contended
that his responsibility was joint with his brother. It was found that
the younger son had some income from his father's estate. The court
fixed up the quantum of maintenance, asked the younger son to contri-
bute the income from the father's estate, and divided the deficiency
among the brothers with an equal hand. The elder brother went on
appeal to the High Court. The High Court held the view that the right
of maintenance of the widow attached to her deceased husband's share.
At the same time, the maintenance of the mother being a personal
obligation arises from of the relationship of mother and child. Existence
69. A.I.R. 1964 Punj. 393.
70. A.I.R. 1964 A.P. 105.
1965] HINDU LAW 537
of property is immate
complementary. They d
tight in taking into acc
The lower court took th
equally towards making
of ancestral property.
The question in Seshi
validity of a covenant i
a Hindu married twice
for maintenance. A com
a fixed sum for maintenance. She committed herself not to ask for
any increase even if circumstances were to change. After the passage
of the Hindu Adoptions and Maintenance Act, 1956, she, like Oliver
Twist, asked for more. The learned judges agreed that section 25 was
very clear. The right conferred by section 25 would abrogate any
contract which would put fetters on the wife's claim for increase in the
amount of maintenance. The court would not allow the right to be
whittled down by technical objections.
Sections 21 and 22 were interpreted by the Madhya Pradesh High
Court in Gowardhan v. Gangabai .72 A widow made a claim against her
deceased husband's brother for maintenance. The husband's brother
denied his liability and stated that the liability fixed by sections 21 and
22 of the Hindu Adoptions and Maintenance Act was on the father-in-
law of a widowed daughter-in-law. This claim could not be sustained
against the husband's brother who divided after the death of his brother.
The court did not accept any of his contentions and laid down that
the said sections create an additional liability on certain relations of the
dependents. These sections have not supplanted the entire law of
maintenance. In those cases where the husband died leaving a share
in the joint family property the coparceners who took it by survivorship
are liable to maintain the widow. The foundation of the right of the
widow is the fact that her husband died leaving an interest in the
coparcenary. Regarding the quantum of the interest, the court adopted
the Privy Council decision in Mt. Ekradeshwari v. Homeshwar1% and held
that income from the husband's estate is the ceiling up to which the
maintenance could be awarded. It is not necessary to fix maintenance
equal to the income. Maintenance depends upon a great category of
circumstances and a safe and reasonable deduction is to be made by a
court of law in arriving at a fixed sum.
VII. Hindu Women's Right to Property Act, 1937
Mt . Khatrani v. Smt. Tapeshwari ,74 a Full Bench decision of the

Patna High Court, is an important decision on the rights of a Hindu
71. A.I.R. 1964 Mad. 217.
72. A.I.R. 1964 M.P. 168.
73. A.I.R. 1929 P.C. 128.
74. A.I.R. 1964 Pat. 261.
widow to succeed to the property of her husband. The court ove

two of its earlier decisions.75 The question before the court wa
ascertainment of the meaning of the expression ť Separate prope
section 3 of the Hindu Women's Right to Property Act, 193
whether the interest derived by a widow under that Act confers
the rights of a coparcener.
The court adopted the opinion of Varadachariar, J., given in
famous decision in Umayal Achi v. Lakshmi Achi16 which had no
adopted in the previous judgments because it was considered as
The court in this case laid down the following propositions :
(1) A Hindu widow by virtue of the Act of 1937 does
become a coparcener. The reason is that only a male can
a coparcener and further that the right arises by bi
What she acquires is her husband's interest and not statu
(2) The Hindu widow who succeeds under the said Act
not by survivorship. The joint family continues to be
and is not disrupted. The widow takes the interest neit
by inheritance nor by survivorship but by virtue of a sp
statutory right.
(3) The joint family in the property of which the widow ge
interest continues to be joint. The widow does not have
the interest of her husband but the interest she gets in
joint family property is the same as that of her husband
(4) The joint family is divided when the widow demands p
tion. If she takes her share, then on her death it would
to her husband's heirs. If she dies without obtaining a
partition, her interest would pass by survivorship.
In regard to ť Separate property" the court said that the expression
means self-acquired property. It does not mean property allotted to
the coparcener at the time of the partition, or, property held by a sole
surviving coparcener.
VIII. Succession
For the first time, after the enactment of the Hindu S

Act, 1956, a High Court was called upon to explain the mos
and controversial section, section 6 of the Act. The decision is
Shiramabai v. Kalgonda ,77 The new judgment is equally obscure and in
the course of time, will in all probability, become a centre of contro-
versy. The facts were: A Hindu died leaving behind him his widow,
75. Nandkumari Devi v. Bulkan Devi, A.I.R. 1945 Pat. 87 ; Asarfa Kuer v.
Bhuneshwar Rai , A.I.R. 1959 Pat. 210.
76. A.I.R. 1945 F.C. 25.
77. A.I.R. 1964 Bom. 263. The court admitted : "The question that arises
easy to answer...." Id. at 263, para. 2, last line.
1965] HINDU LAW 539
one son and three daug

coparcenary with his s
ascertain the share of his widow.
The court pointed out that under section 6 it must first compute
the interest of the deceased. For that, a notional partition would have
to be conceived under explanation I of section 6. If an actual partition is
the criterion then the deceased's interest would be one-third, the reason
being that the son and the widow would each take one-third. But
because there is no partition by metes and bounds the one-third share
of the widow would not vest in her. This is the view taken by the
learned author of Mulla's Principles of Hindu Law.™
Another view would be that the Act of 1937 being repealed, a
widow cannot claim partition and possession. The Hindu Succession Act
does not confer on the widow the right to partition. The rule of Mitak-
shara law providing a share to the mother rested on the ground that she
did not have a right to succeed. Now that the right has been created in
her favour, the other right must be deemed to have been abrogated by
section 4 of the Hindu Succession Act, 1956.
The court adopted the second view according to which in the
notional partition, property is to be divided only among the male
members of the coparcenary. In the case in hand, the share available
for distribution was held to be a moiety of the estate.
The question for direct decision in the case Subbalakshmi v.
Ramalakshmi 79 was in respect of rights of a Hindu widow. One Subba
Rao had died leaving a widow, a son and six daughters. The son also
died later on. The son's widow filed a suit for partition. Pending suit
the widow of Subba Rao, her mother-in-law, died in 1962. The daugh-
ters filed an application to get themselves impleaded as legal represen-
tatives of their mother. The daughter-in-law contended that the right
of the mother which had accrued to her in accordance with the provi-
sions of the Hindu Women's Right to Property Act, 1937, was a personal
right. The right must be deemed to have lapsed on her demise. The
court took the view that it was not necessary for a widow to have
obtained partition by metes and bounds in order to perfect her rights
under the Act of 1937. The rights conferred by the Act of 1937 are
neither inchoate nor imperfect. Hence, the contention is unfounded
that the repeal of the said Act by the Hindu Succession Act, 1956, will
determine the right. Section 14 of the Hindu Succession Act uses the
words "possessed by a female Hindu" in a very wide and broad sense.
Possession under section 14 may not necessarily be actual physical
occupation by the female.
A similar interpretation was involved in Dulei Bewa v. Bimali Bewa.m
The court stressed the point that section 14 of the Hindu Succession Act,
78. See id. at 264.
79. A.I.R. 1964 Mad. 76.
80. A.I.R. 1964 Or. 33.
1956, bestows on the expression "property" a very wide connotation

includes the share declared in favour of a Hindu female by a pr
minary decree of partition. A Hindu female in possession of su
decree is entitled to claim the benefit of section 14 and to claim that the
property has become her absolute estate by virtue of section 14. The
court pointed out that the decision of the Privy Council in Pratapmull
v. Dhanbati Bibi 81 is no longer good law in view of the pronouncement of
the Supreme Court in Munnalal v. Rajkumar .82
Teja Singh v. J agat Singh8d reveals a fascinating competition of wits
between the lawyers. The facts were as follows: A widow Uttam Devi
succeeded to her deceased husband's estate. In 1938 she gifted the
entire estate to one Daulat Singh. The reversioners of her husband
questioned the validity of this gift. The court rightly declared that the
gift would be inoperative against the reversioners after the widow's
death. In 1956, the Hindu Succession Act came into force. In 1959,
the donee from the widow gifted the same property in her favour, and
gave her possession of the estate. The widow then sold the estate. The
validity of this sale was impugned.
The court expressed the view that the widow had a limited interest
when she made the gift. Section 14 of the Succession Act enlarges only
those estates which are in possession of a woman. Hence, after she had
parted with the property she could not derive benefit from section 14
and become absolute owner of the estate. But in 1959 the donee Daulat
Singh gave her back the properties, thus, nullifying the prior alienation
made by her. After reaquisition of the property the widow could claim
the advantage offered by section 14 and so she held the properties, after
the date of retransfer, as absolute owner. In this capacity when she sold
the estate the sale could not be impugned for want of competence in the
seller.
In Shankuntala Devi v. Beni Madhav 84 the court had another oppor-

tunity to bestow the benefit of section 14 on a Hindu woman (and it
seems that Katju, J., went far beyond the pale of the section) . The
facts, as found, were that Pundri Kaksh and Beni Madhav were two
brothers. Pundri Kaksh died leaving a widow in 1947. When the
zamindari was abolished, compensation was paid to Beni Madhav. The
widow of Pundri Kaksh was given Rs. 10,000/- in respect of the share of
her husband in the joint property. The balance was withheld on the
ground that she had a limited interest in the property. After the Hindu
Succession Act came into force in 1956, she claimed the balance of the
amount on the ground that she had become an absolute owner. Beni
Madhav contended that she had not become full owner because she got a
limited estate under her husband's will. The case fell within clause (2) of
81. A.I.R. 1936 P.C. 20.
82. A.I.R. 1962 S.C. 1493.
83. A.I.R. 1964 Puni. 403.
84. A.I.R. 1964 All. 165.
1965] HINDU LAW 541
section 14 so that her in

ment on behalf of Beni M
the Imperial Bank was n
so that the benefit of section 14 was not attracted.
The court rejecting the second contention held that the word
"possessed" in section 14 does not necessarily mean actual physical possess-
sion. Regarding the first argument, the court stated that Beni Madhav
had not given his wife a life interest. He gave her the "interest of a
Hindu widow." Such interest has been enlarged by section 14. With
due deference to the court it is submitted that, after all, a Hindu widow's
estate is an estate of a limited character. Section 14 says that limitation
put under a testament would be binding. In view of this there is little
reason to hold that even in such case the Act will benefit the widow.
The widow's estate that has been enlarged is the one that comes to the
hands of widow by intestate and not testamentary succession.85
A situation on similar lines was before the Madras High Court in
Venugopal v. Madhavakrishnan .86 This was a suit for partition and con-
sequent division of property in a joint Hindu family. The court granted
an interim decree declaring the rights of ladies to specific properties by
virtue of the Hindu Women's Right to Property Act, 1937. The decree
did not suggest that the estate given to the ladies was a limited estate.
The court held that there was no presumption that what was given to the
ladies was a restricted estate. Consequently by operation of section 14
the rights of the ladies were elevated to the character of an absolute
interest.
An argument in this case was that the Act of 1937 granted a right
for a restricted purpose. This restricted right could not be enlarged by
a subsequent Act into an absolute right which would effect the concept
of coparcenary. If the subsequent Act purported to do so it would be
infringing article 19 of the Constitution. The court left the question
open.
The court was called upon to explain section 23 of the Hindu
Succession Act, 1956, in Raghunandan v. Rambalak .87 The pointât issue
arose out of the argument of the plaintiff that under section 23 of the
Hindu Succession Act, 1956, the daughter of a Hindu dying intestate
gets no interest in the property unless the male heirs decide to divide the
estate. Repudiating this objection it was held that the section says that
a female heir can claim partition of a dwelling house only when the
male heirs choose to divide their respective shares. This does not mean
that the female heir derives no immediate interest in the property left
by the propositus. Section 23 postpones the right to partition but not
the accruing of the right itself.
85. See Sivaramayya's comments in 6 J. I.L.I. 338 (1964).

86. A.I.R. 1964 Mad. 155.
87. A.I.R. 1964 Pat. 206
After quite some time the Allahabad High Court has resiled fro
its previous position taken in Hanuman Prasad v. Indrawati 88 in respect
the position of reversioners after the coming into force of the Hi
Succession Act, 1956. In the Hanuman Prasad case the court had obse
ed, "reversioners have completely disappeared by virtue of the pro
sions of S. 14. The customary law of succession has been comple
abrogated by the Act...."89 This decision stood alone after alm
every other High Court had taken the stand that in those cases wh
section 14 did not apply to enlarge the interest of the widow, the re
sioners still existed.90 Now in Rameshwar v. Hardas 91 the Allahabad
High Court has brought itself in line with other High Courts holding that
the shastric law has not been completely repealed. Properties which
have not been enlarged by section 14 shall still be amenable to the old
law.
In Ramalingam v. Punit havalli Ammal9'2 the facts were that one

Somasundara Udayar died before 1937 survived by his widowand two
daughters. The widow took the properties and adopted a son in
June 1956. A few days before the adoption took place she made a gift
of some property in favour of one of her daughters and another person.
The other daughter challenged the transfer. It was urged on behalf of
the widow that if the son is allowed to divest under the doctrine of
relation back then it will be a restriction on the absolute interest of the
widow conferred by section 14. The court repudiated the argument,
holding that the divestment by an adopted son of property in the hands of
his mother or any other heir of his father is by virtue of his own right.
It is not a restriction on the right of another. The heir of his adoptive
father takes the estate in the position of a mesne holder and the son has
the authority to claim it as preferential owner thereof. The court did
not share the opinion of the Bombay High Court expressed in Tamunabai
v. Ram Maharaja
In Ranganayakamma v. Rajeswaramma9i a Hindu widow filed a suit
for partition of properties against her co-widows and her issue. The
defendants denied her right of partition on two grounds. First,
that by a compromise between the plaintiff and her husband in
an earlier suit for maintenance she had undertaken not to claim any
relief in future against the defendants. Second, that whatever rights the
plaintiff had acquired under the Act of 1937 were lost because that Act
has been repealed by section 31 of the Hindu Succession Act, 1956.
88. A.I.R. 1958 All. 304.
89. Id. at 309.
90. See Rameshwar v. Hardas , A.I.R. 1964 All. 308.
91. Ibid.
92. A.I.R. 1964 Mad. 320.
93. A.I.R. 1960 Bom. 463.
94. A.I.R. 1964 A.P. 380.
1965] HINDU LAW 543
The court rejected both

place the right given up
related to a claim for ma
second place the court h
not save the rights given t
This does not mean that
Section 6 of the General
been acquired or accrue
section 31 of the Hindu S
rights of a Hindu widow
into force of the Act.
B. K. Sharma*
* LL. M. (Luck.); Lccturcr, University Law College, Jaipur.

Hindu Law

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HINDU LAW

The system with "the oldest pedigree of any known

Cases are classified under the headings usually adopted by text-

II. Joint Family and Coparcenary

The law of property among Hindus is one of the most intricate

problems which admit of no ready answer. Many times the court is

others later, or if the de

Some of the parties in this case were interested in getting a decla-

4. See, for instance, K. B. Agrawal, "Partition in Hindu Law: Communication of

court, after a perusal of the preceding cases, rejected the plea

instant case where the purchasers obtained only a right

The respondent could not be regarded, by

9. A.I.R. 1964 Mad. 53.

...[A] Court executing the de

In Venkiteswara Pai v. Luis,12 a joint family consisting of a number of

A similar problem came up for decision before the Orissa High

criticized as well as commended.16 The point in the controversy w

segment of the joint fa

An important decision 24 comes from the Orissa High Court on the

Act, 1957. It also takes into consideration the changes brought by

III. Pious Obligation and Debts

Some important questions falling within the field of the

during the pendency of the suit. Bajoria expired in 1961. In 19

An appeal which required a perusal of the nature and extent of

Ayyangar, J., delivering the judgment observed that if the mortgage

make the partition mala

The doctrine of relation back of the adopted son has be

34. Supra note 25.

In Kishni v. Ratna,n a widow, after her remarriage, gave away

The court was required to provide an answer to th

second marriage in Shan

45. A.I.R. 1964 Mys. 247.

It seems that the court assigned wide meaning to the Freedom of

conduct of one spouse i

of the marriage." 57 The court arrived at the conclusion that as t

Under Section 10 it is enough to prove even one act of misconduct by the

57. Supra note 55, at 363.

A lacuna in section 16 was brought to the fore in Thulasi Ammal v.

problem was whether an order rejecting an application under sectio

Augat Singh v. Dhan Kaur 69 exhibits the readiness of In

VII. Hindu Women's Right to Property Act, 1937

Mt . Khatrani v. Smt. Tapeshwari ,74 a Full Bench decision of the

widow to succeed to the property of her husband. The court ove

For the first time, after the enactment of the Hindu S

one son and three daug

1956, bestows on the expression "property" a very wide connotation

In Shankuntala Devi v. Beni Madhav 84 the court had another oppor-

section 14 so that her in

85. See Sivaramayya's comments in 6 J. I.L.I. 338 (1964).

In Ramalingam v. Punit havalli Ammal9'2 the facts were that one

The court rejected both

* LL. M. (Luck.); Lccturcr, University Law College, Jaipur.

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