INDEX

S. No. TITLE Page No.

1. Hindu law (sources, schools) 1-3

2. Who is hindu? 4

3. Hindu Marriage Act, 1955 5-27

• Concept & definitions 5-6

• Sec. 5 7

• Sec. 7 to 8 8-9

• Matrimonial remedies(sec. 9 to 13) 10-17

• Sec. 13B & 14 18-19

• Theories of divorce 19-20

• Sec. 15 to 28 21-26

• Difference b/n sec.125 Cr.P.C., 24 HMA, 18 HAMA 27

4. Hindu Minority & guardianship Act, 1956 28-31

5. Hindu Adoption & Maintenance Act, 1956 32-35

6. Hindu Succession Act, 1956 36-62

• Basic concepts 36-50
• Introduction & definitions 51-52
• Sec. 6 53-55
• Rule of male succession (sec. 8 to 13) 56-57
• Class I & II heirs 58
• Sec. 14 & rule of female succession (sec.15 to 16) 59-60
• General provisions w.r.t. Succession (sec. 18 to 28) 60-62

7. Valid hindu marriage (chart) 63

8. Hindu Succession Act, 1956 (chart) 64-65
9. Hindu Minority & guardianship Act, 1956s 66-68

10. Heirs 69

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 Hindu Law
❖ Law was equated as – “DHARM”, with time it got modified.
❖ Hindu law is one of the oldest system of personal law.

Sources of Hindu Law

Vedas / Equity & goods Judicial

Smritis Digest Customs Legislation
Shruti conscience Precedent

Ancient Sources Modern Sources

1. Vedas /
Shruti Four types of Vedas

‘Shru’- “to hear” i.e. what we 1. Rig Veda- earliest form of veda (oldest)
heard from ancestors /god
2. Samaveda- earliest reference for singing
4 Vedas, 6 vedangas,
3. Yajurveda- Called as book of prayers
18 Upanishads
4. Atharvaveda- Book of magic and charms

2. Smritis ‘Smri’- means to remember/what was remembered

Dharmasutras Dharma Shastras

Written in prose (sutre) Composed in poetry

(shlokas)
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 3. Digest & Commentaries

Nibandhs Tikal Bhashya

Two Imp. Commentaries

Dayabhaga Mitakshara

By Jimutavahana By Yajanvalkya

4. Customs

Also known as ‘Sadachar’ i.e. rules followed by particular family, class, district.

❖ Features of customs
✓ Ancient
✓ Used for long time
✓ Certain
✓ Free from ambiguity
✓ Reasonable, not against law
✓ Not immortal or against public policy
✓ Continuous & uniformly followed

5. Justice, equity & good conscience

Court apply the – a) basic value

When case cannot be
b) Norms settled by application of
existing law
c) Standard of fairplay

6. Legislation
HMA 1955
HSA 1956
Acts of parliament (codified law)– e.g. HA & MA 1956
HM & GA 1956
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 7. Precedents

Case quoted by a court

TWO SCHOOLS OF HINDU LAW

Basis Mitakshara Dayabhaga

Quantum Uncertain and fluctuation with any Do not confer any birth right on son. It
of Share birth/death of member in family. is fixed for every co-parcener.
Partition Affected by irrevocable intention to Not affected unless these is a separation
separate. of shares.
Female Co- Initially not allowed for partition. Male / female, all entitled to property.
parcener But after 2005, daughters are also co-
parcener.
Prevail All over India, except: Bengal, Assam, Tripura, Manipur,
over Bengal, Assam, Tripura, Manipur, Mizoram, Meghalaya, Arunachal
Mizoram, Meghalaya, Arunachal Pradesh.
Pradesh.
Principle Survival ship Succession
Right Conferred by birth Conferred after death of father
Confered
by
Written by It is a commentary written by It is a digest, written by ‘Jimutavahana’
‘Yajnavalkya’.

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 “Who Is A Hindu”
It denotes people living-
Hindu is derived from ‘Indus or Sindhu’
east of River Sindhu

(a) (b) (c)

Territorial
Child, whose Child, whose Convert or
definition
parents are one parent is Reconvert

Who is not a- ✓ Hindu ✓ Hindu

✓ Muslim ✓ Buddhist ✓ Buddhist
✓ Christian ✓ Jain ✓ Jain
✓ Parsi ✓ Sikh ✓ Sikh
✓ Jew

Case Laws-

❖ Perumal V. Ponnuswamy- SC held-

• mere declaration by person that he is a hindu will not convert him into hindu.
• Person’s bonafide intention in his conversion to hindu faith & his conduct as
evidence is sufficient.
• No formal ceremony is required.

❖ Commissioner of Wealth Tax V. Sridharan- SC Held-

• Son of -Hindu father & Christian mother (Married under Sp. Marriage Act.)
• Was a Hindu,
• As father had bonafide intention and had declared family as ‘Hindu undivided
family.’

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 Hindu Marriage Act ,1956
Concept Of Hindu Marriage :- It is a sacrament.

1. Marriage considered as ‘Sanskar’.

2. Man is incomplete w/o his wife

3. Wife – known as ardhangini, grahini, sakhi

4. Purpose- To get son for performance of religious ceremonies & to ultimately

attain ‘Moksh’.

5. Marriage is a religious institution intended to fulfill religious duties i.e.

-Dharm - Arth - Kam - Moksh

Definition – Sec. 3

Full Blood (पूर्ण रक्त ) Half Blood (अर्ण रक्त)

3(c)

Blood Relation

Same wife/mother Different wife/mother

3(d) Uterine Blood Same mother, different father

(एकोदर रक्त)

3(f)
Sapinda Relationship (संपपड नातेदारी) Common lineal ascendant.

3rd Generation in line 5th Generation in line

of ascent through of ascent through
Mother Father

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3(g)

“Degree of Prohibited Relationship”

(प्रपतपिद्ध नातेदारी की पडपियााँ)

Qne is Wife/ Husband Wife of Relation between

Linear Of lineal • Brother • Brother- sister

Ascendant ascendant or • Father • Uncle- niece
descendant • Mother’s brother
• Aunt- nephew
• Grandfather
• Children of
• Grandmother’s
brother

Brother- Brother- Sister-

Sister Brother Sister

Case Laws-

❖ Purshottamdas V. Purshottamdas (1955)- Marriage of hindu children is a

contract made by their parents.

❖ Bhagwati saran singh V. Parmeshwari Nadar Singh, (1966)- Hindu marriage is

not only a sacrament, but also a contract.

❖ Muthusami V. Marilaman (1989)– A marriage is a sacrament & institution & a

contract entered into for consideration, with co-relative rights & duties.

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Sec. 5- Condition of Hindu Marriage- Between “2 Hindu”
(i) No Spouse living/ No bigamy- Void

(ii) (a) Incapable of giving consent – Voidable

(b) Capable of giving consent but suffering- mental disorder, unfit for – marriage &
procreation.

(c) Attacks of insanity.

(iii) Age of parties [B=21yr. G= 18 yr.]- Neither void/ voidable.

(iv) Beyond prohibited degree- Void.

(v) Beyond sapinda relation – Void.

Case Laws-
❖ Sambireddy V. Jayamma – Sec. R/w sec. 17 rendering a bigamous marriage void, is
not ultra vires the constitution on the ground, that it contravens act 14, 15, 25(1).

❖ Yamuna Bai Anand Rao Adhava V. Anant Rao Shiva Ram Adhava.- SC held that
in event of breach of 1st condition U/s 5(1) the marriage is rendered null & void U/s
11(1) of Act & since if is void into, the wife cannot claim maintenance u/s 125 Cr.P.C.

❖ Uma Shanker V. Rajdevi (1967) & Shankerappa & Vassappa (1964)- In case
where in her own suit, wife has obtained a declaration that her husband could
remarry during her life time, The marriage of her husband with another woman
would be illegal despite consent of 1st wife and giving such declaratory relief by court
would be erroneous & illegal.

❖ Gopal lal V. State of Maharashtra- SC held to make second marriage punishable,

it should be first valid & spouse by 1st marriage is legally wedded & 1st marriage is in
existence when 2nd marriage was solemnized.

❖ Tulsi Bai V. Manoharan – Suffering from schizophrenia as a sound ground for a

decree of nullify. Whether the disease is curable or not does not make any difference.

❖ Bala Krishna V. Lalitha – If a person is insane or suffering from recurrent attacks

of insanity it amount to nullity of marriage.

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Sec. 7- Ceremonies of hindu marriage
• Hindu marriage MAY be solemnized according to-

Customary Ceremonies of
and
Rites ‘either’ party

• If CR includes – “SAPTAPADI” (taking 7 steps around sacred fire)

Sec. 8- Registration of hindu marriage-

1 State govt. May make rules as to

MANNER CONDITION In HM Register

2 State govt. May provide, that such manner &

.. condition-
“Shall” be compulsory
& person contravening Punished with
shall be

Shall be open for inspection

Fine of Rs.25/-
3 Hindu Marriage
Register
Admissible as “Evidence of statement”

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 Case Laws-

❖ Kanwal Ram V. Himachal Pradesh Adm. (1966) – A marriage is not proved unless
essential ceremonies required for its solemnization are proved to have been
performed.

❖ Ashwani Kumar V. Asha Rani (1992)- A valid marriage can be performed between a
sikh & hindu by “Anand Karaj” or by “Saptapadi.”

❖ Asrabai V. Dhondiram – where a marriage is performed according to the customary

rites & ceremonies of one party which did not include saptapadi even though according
to the customary rites & ceremonies of other party sapatapadi was essential ceremony,
it was held that it was a valid marriage.

❖ Kishan Paul V. Ashok Kumar Pal (1982)- Registration of marriage under sec. 8 will
not ipso facto make marriage valid, if it is otherwise invalid & a suit for declaration that
the marriage is invalid in maintainable.

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 Matrimonial Remedies Under HMA 1956 –
1. Sec. 9 – Restitution of Conjugal Rights

2. Sec. 10 – Judicial separation

3. Sec. 11- Void marriage

Annulment of marriage of by decree
4. Sec. 12 – Voidable marriage of court

5. Sec. 13 – Divorce / Dissolution

Sec. 9- Restitution of Conjugal Rights-

When either - Husband Or Wife

W/o Reasonable “WITHDRAW”

excuse from society of
other

• Aggrieved party may file petition in “District Court”.

• For Restitution of CR.

Burden of proof – That there was a reasonable excuse,

Shall be on person who has withdrawn from society.

Some justified ground for withdrawal-

1. Violence / Cruelty

2. Extra- marital affair

3. Excessive alcoholism

4. Persistent nagging of wife.

5. Unnatural offences committed by spouse.

6. Refusal to have relation w/o justification

7. Conversion

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 Constitutional Validity of Restitution Of CR (i.e. Sec. 9)-

Case Laws-
❖ T. Sareetha V. T. Venkata subbaiah (1983)- Sareetha was a high school student &
stayed with her parents in madras. She got married to Venkata Subbaiah &
immediately after marriage they started living separate for 5 yr. Husband filed petition
for restitution of CR u/s 9. A revised petition was filed by wife against decree passed
by court overruling her objection raised against husband.

Question arose before court that whether sec. 9 of HMA is arbitrary & violates art,
14, 19 & 21?

HC held- sec. 9 is violative of art, 14, 19, 21 & violates right of privacy. It denies right of free
choice as to when & how her body to be used for procreation.

❖ Smt. Harvindra Kaur V. Harmander Singh (1984)- Delhi high court held sec. 9 was
not violative of art 14 & 21 & sec. 9 is to bring reconciliation between couple & to
promote amicableness between parties.

❖ Saroj Rani V. Sudharshan Kumar (1984)- Supreme court held that sec. 9 is not
violative of art 14 & 21 because object of sec. 9 is to bring cohabitation between parties
so that they can live in matrimonial home in amity. Sec. 9 protects family life, while art
21 protects life.

❖ Tirath Kaur V. Kirpal Singh (1964)-

• Wife w/o consent of husband employed elsewhere and she was not ready to join the
husband.
• High court held that this amounts to withdrawal from husband.

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Sec. 10- Judicial Separation-
(1) Grounds-

13(1) 13(2)

(2) No obligation to cohabit.

Case Law-
M. Narasimha Reddy V. M. Boosamma (1976)- Judicial separation do not put an end to
martial status of party.

Difference between Judicial separation and Divorce-

Sec.10 Judicial Separation Sec. 13 Divorce
1. Temporary Separation. Permanent end of marriage.
2. No Party can re-marry. Parties are free to re-marry.
3. If re-marries, then person shall be No punishment for re-marriage as it is not an
prosecuted for bigamy u/s 494 IPC. offence.

4. Property rights not suspended. All property rights gets suspended.

5. If either party dies, then property can be If either party dies, then no share or
inherited by other party. entitlement of property.
6. Maintenance can be demanded Maintenance may be decided by court.
7. Parties if want to live together they can. No Re-marriage required of spouse wants to
re-marriage required. together again.

Sec. 11- Void Marriage- Null & void by decree on 3 grounds-

5(i) 5(iv) 5(v)

If marriage is Parties within Parties in

Bigamious prohibited degree sapinda
relation

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Effect of void marriage –

• Void-ab-initio
• No property right
• No maintenance right
• No status of husband & wife

Sec. 12- Voidable marriage- 4 grounds-

a b c d

Respondent u/s 5(ii) Consent of Pre-marriage

Impotent pregnancy of bride

Marriage not unsound mind party Petitioner Guardian

consumated Petition allowed
Obtained by
fraud/ force

No petition:-

1 If filed after 1yr. from if petitioner ignorant

date when fraud about fact at the time
discovered of marriage.

Petitioner have with Proceeding instituted

consent lived with within 1yr. from date of
other party after marriage
fraud discovered

Intercourse with
petitioner not taken
place since discovery of
such fact.

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Case Laws-
❖ Gayatri Bai V. Pradeep Kumar Chourasia (1998)- Impotent means a practical
impossibility to perform sexual act in complete & perfect manner. Full &
complete sexual penetration is an essential ingredient for ordinary & complete
intercourse.
❖ Prem Chand V. Padma Priya (1997) – Madras HC held that wife submitting false
DOB, at time of marriage amounts to fraud. So, marriage is voidable.
❖ Maya Ram V. Kamla Devi (2008)- Where a child was born within 6 months of
marriage & therefore marriage held as voidable due to pre-marriage pregnancy.
❖ Neelawwa V. Maruti 2014- Child born within 161 days of marriage and when DNA
was conducted, it was found that father was not biological father of child.
❖ Bharatha Matha V. Vijaya Renaganathan 2011- Supreme Court laid down that
illegitimate children are not entitled to co-parcenary property of father.

Divorce – u/s---- 13(1) 13(1-A) 13(2) 13(B)

Sec. 13- Divorce
13(1)- Available to both- husband & wife

13(1)- (i) Adultery

(ia) Cruelty

(ib) Dessation

(ii) Conversion

(iii) Unsounding [mental disorder + Psychopathic disorder]

(iv) omitted (2019)

(v) Venereal disease

(vi) Renounced world

(vii) Not heard for 7 years

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13 (1-A) – Available to both- Husband & wife

(iv) No resumption of cohabitation for 1 year after judicial separation

decree.

(ii) No restitution of conjugal rights for 1 year after Restitution of conjugal

right decree.

13 (2) – Available only to wife

(iv) Polygamy or remarriage by husband

(ii) Guilty for rape, sodomy, bestiality
(iii) Maintenance decree passed + No cohabitation for 1yr.
(iv) She repudiate marriage before 18 years of age (because married before 15
year of age)

Case Laws Of Adultery-

❖ Subbarama V. Saraswathi (1966)- Court held that if a person is found along with
a young wife in her bedroom in actual physical relation, then court can draw an
adverse inference that two were committing an act of adultery together.
❖ Rajendra Agarwal V. Sharda Devi (1993)– It was held that it is sufficient to prove
that the respondent had voluntary sexual intecourse with any person other
than the spouse.
❖ Sanjukta Padhan V. Laxminarayan Padhan (1991)- A charge was levelled
against wife, that she went away with some other person one evening from her
husband home & was seen moving with him.

At about 1 am , they were seen returning from lonely place. When her father-
in-law went to call her back, she locked herself inside a room & did not visit her
marital home. Court found sufficient circumtantial evidence for adultery & granted
the decree for divorce.

❖ Chander Prakash V. Sudesh Kumari 1971- It is presumption in law that

respondent charged with adultery is innocent & burden of prove adultery lies on
party who has alleged it.

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Cases On Cruelty-

❖ Russel v. Russel- Cruelty was defined as- “Conduct of such a character as to have
caused danger to life or health, bodily or mentally, gives rise to reasonable
apperhension of such danger”.

Cruelty = (Physical cruelty) + (Mental Cruelty)

Life, limb, health Apprehension in mind

❖ Dastane V. Dastane (1973)-

Wife used to give a threat to Mr. Dastane that she will end her life or she would set
her house on fire. She was giving threat as to publishing the matter in newspaper.
She persistently abused him & insulted his father. She broke her mangalsutra, she
was locking the door when husband came, she was rubbing chilly on tongue of child,
she was beating then in presence of husband. ‘H’ Filed suit.

supreme court held that wife was not mentally stable. Conduct of wife clearly
amounted to cruelty but, husband has not explained the circumstances as how he
lead normal sexual relation with wife. Case of separation failed. Therefore, petition
was dismissed. Held that appellant’s contention regarding his wife being unsound
mind was fabricated by him.

Under this case, SC laid down 5 test to prove cruelty-

1. Alleged act constituting cruelty should be proved according to law of evidence.

2. There should be apprehension of real injury from the conduct.

3. Apprehension should be reasonable having regard to socio- economic, psycho-

physical condition of parties.

4. Petitioner should not take advantage of his position.

5. Petitioner should not have condoned the act of cruelty.

❖ Samar Ghosh V. Jaya Ghosh (2007)- The relief to party cannot be denied on
ground that there has been no deliberate or willful ill-treatment.
❖ V. Bhagat V. D. Bhagat (1994)- Mental cruelty must be of such a nature that the
parties cannot reasonably.
❖ Deep Lakshmi Zingade V. Sachin Zingade (2010)- Where wife doubted husband’s
relationship with another women & also husband used to bring his companion

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 to home. Wife raised an objection over this. Husband filed a suit againt wife for
cruelty. supreme court wife for cruelty. Supreme court held that wife’s objection
over bringing friends home does not amount to cruelty.
❖ R. Balasubramania V. Vijayalakshmi Balasubramanian(1996)- Husband filed a
petition for divorce against wife on ground of cruelty. Husband alliged that wife
suspect that he had extra-marital affairs & threatened to commit suicide. But,
court observed that as both living together & husband had condoned cruelty of
wife. So, cruelty & desertion set-up by husband is not maintainable.
❖ Radhey shyam V. Kusum – Wife refuse to sexual intercourse, any reasonable
cause amounts to cruelty at husband.

Cases On Desertion –

❖ Sunil Kumar V. Usha (1994)- The wife had left matrimonial home due to
unpalatable atmosphere in matrimonial home & reign of terror prevailing
there drove her out. So, she was not guilty of desertion.
❖ Teerth Ram V. Parvati Devi (1995) – Wife living separately only wanted that her
husband should establish independent matrimonial home where she would live
with him as other brother of husband has done, although she had no intention
to break the matrimonial home, it was held that wife could not be said to have
deserted husband w/o sufficient reasons.

Cases on conversion-

❖ Sarla Mudgal V. UOI– SC held that conversion do not dissolve 1st marriage. A
Hindu man cannot change his religion & accept islam in order to marry more
than once. The conversion is malafide, therefore 1st marriage still remains valid
& 2nd marriage is void & punishable u/s 494 IPC.

Cases on unsound mind-

Sarda V. Dharmpal (2003)- Court held that court has power to order a person to go
for medical test & it is not violative of Art. 21. Despite order, if respondent refuses
to submit himself to medical examination, the court will be entitled to draw adverse
inference against him.

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Sec. 13B– Divorce by mutual consent
• Petition in– District Court
By– Both party

• Grounds- (i) Living separately for 1 year or more.

(ii) Not able to live together

(iii) Have mutually agreed to disclose marriage.

• On motion of both parties-

From date of Not later than

No earlies than &
presentation of 18 months
6 months
petition

• If petition is not withdrawn

• Court after hearing parties.
• Will grant divorce decree

Divorce effective from data of decree.

Sec. 14- No Petition for divorce to be presented within one year of

marriage.
Provided- On application made as per rules made by HC.

Court may allow such application before 1year.

On Ground- Case is of – i) exceptional hardship to petitioner or

ii)Exceptional depravity to respondent.

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Case Laws-
❖ Nikhil Kumar V. Roopali Kumar (2016)- Where parties were highly educated, they
mutually decided to end marriage. So, they filed the petition in family court &
family court granted 6 months cooling period, but they could not wait, as they
wanted to move to foreign, so filed SLP in SC. SC granted divorce not u/s 13(B),
but u/art. 142 of constitution.
❖ Amardeep Singh V. Harveen Kaur (2017)- SC held that 6 month waiting period is
not mandatory, court can use its discretionary power to waive cooling period.

Theories-

Fault Theory

Theories of
Divorce Mutual Consent Theory

Theory Of Irretrievable breakdown of marriage

1. Fault Theory-

• Fault of one party entitles other party to get divorce.

• One party should be guilty of committing offence against marriage.
• Other party must be innocent & seek divorce.
• This theory is embedded in HMA u/s

13(1)(i), a, b, 13 (2)

Eg- Adultery, cruelty, desertion, insanity, mental disorder, conversion, venereal

disease, leprosy, renunciation, presumption of death.

If both parties are at fault, then no remedy available.

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2. Mutual Consent Theory-
• Under this theory, both ’H’ & ‘w’ are willing to get separated, as they believe
they cannot live together or cannot handle their meeting.
• This concept is covered u/s 13(b) of HMA.
• Sec. 28- SMA- after living separate for 1 year.
• Sec. 32B- Parsi marriage & divorce act – after living separate for 1 year.
• Sec. 10A – Indian Divorce act- after living separate for 2 year.

Case Law- Samitha V. Om Prakash- Requirement of ‘MCD’.

Both partners have been living separate for a period of one year. It means the
parties are not living as husband & wife, irrespective of fact that they are living in
same or different houses.

3. Theory of Irretrievable Breakdown Of Marriage-

• If the marriage had broken down w/o any possibility of restoration then it
should be dissolved.
• The Theory believes that if marriage has broken down irretrievable, therefore
divorce should be granted.
• Where spouses can neither live peacefully together nor acquire benefits of a
married relationship, then it is better to dissolve marriage through mutual
consent as there is no use in keeping empty shell.

Case Laws-
❖ Samar Ghosh V. Jaya Ghosh (2007)- Wife did not cohabit with husband & refused
to have children. She did not make food, humiliated, he left home. Court held,
it was a case of mental cruelty & accepted divorce petition on ground of IBM.

❖ Naveen Kohli V. Neelu Kohli (2006)- When no solution comes out of serious
attempt by court, then court must presume end of marriage.

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Sec. 15- Divorced person when may marry again-

“Marriage Dissolved" +

No right of appeal Right of appeal

Appeal time Appeal dismissed

expired or

Sec. 16- Legitimacy of children born out of void & voidable marriages-

Void Marriage u/s Voidable Marriage

&
11 u/s 12

Shall be

1. Legitimate 2. Right to possess property except-

+
not other than parents

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 Sec. 17- Punishment for bigamy – u/s

Available to Available to
494 IPC 495 IPC
First Wife Second Wife

Sec. 18- Punishment for breach of other condition

5(iii) 5(iv) or 5(v)

RI- 2 yr. or SI- 1 Month, or

Fine- 1 lakh Fine- 1000/-

Or Both Or Both

JURISDICTION AND PROCEDURE

Sec. 19- Court to which petition shall be presented-

District Court Ordinary Original

In Having
Civil Jurisdiction

Marriage was Respondent Parties to Petitioner residing outside

solemnized resides marriage India or, not heard for 7
years

At the time of Last

presentation resided
of petition together

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Amendment in 2003- (iiia) inserted- If wife is a
petitioner

Where she
residing on
date of
presentation of
plaint

Sec. 20- Content and Verification of petition

Petitioner, or
1. facts on which relief is (1) By
claimed
Other competent
person
2. There is no collusion
between petitioner & other
party • As provided for verification of
Point.
• It can be referred to as “Evidence”

Sec. 21- “HC” may make rules- All Proceeding Under HMA be governed As Per
CPC.

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Sec. 21A- Power to transfer petition in certain cases-

first Petition Another Petition

U/s 10, or U/s 13
then, petition will
be death or
follows-

By one Party By Another

Party

Filed In ‘DC’ Living

Jurisdiction

(i) if both filed in same DC- by ‘DC’.

(ii) In different DC- Latter petition will be transferred to DC
of earlier petition.

Sec. 21B- Special provision relating to “TRIAL” & “DISPOSAL” of petition-

1. Trial – Day to Day, unless adjouned.

Trial Within 6 months

From Date of service of
notice of petition appeal
2. Disposal
to respondent
Appea Within 3 months

Sec. 21C- No document inadmissible in evidence-

On ground that it is- not duly stamped, registered.

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 Sec. 22- Proceeding shall-

Held in Camera No Print/ Public of matter

*Except judgment of HC/SC- with their

previous permission

by

Punishment- fine of max. 1000/- rs

Sec. 23- Decree in proceeding- if court satisfied then grant relief.

Petitioner
Mutual
Ground of not- No ground
consent No
granting -accessory No delay to deny
divorce, no Collusion
relief - Connived relief
fraud, undue
- condoned
influence, etc.

• At first instance, duty of court to bring re-concilitaion between parties.

• For re-concilitaion, court may adjourn- for max. 15 days.
• & refer to - person named by party,
- if not named, person nominated by court.
• If divorcee granted- give copy of decree to both party free of cost.

Sec. 24- Maintenance pendente life & expenses of proceeding-

• By – husband or wife
• When no sufficient income
• Court may order respondent to pay - Expenses
-Monthly/During/Proceeding
• Such application for payment- Be disposed within “60 days” from date of service
of notice on H/W.

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Sec. 25- Permanent alimony & maintenance-
(1)
• At the time of passing any decree, or
• Any time subsequent there to.

ORDER FOR

Monthly sum

For life of
Periodical sum
applicant
Gross Sum

(2) Court may- Vary, Modify, Rescind- Order of there is any change in circumstance
of party.

Also, when- H/W remarry

- ‘W’ do not remain chaste

- ‘H’ Had sexual intercourse with any woman outside wedlock .

Sec. 26- Custody of children-

✓ custody, maintenance,
As court may deem
Consider education of children
Just & proper ✓ their wishes

Dispose such application within- 60 days from date of service of notice of

respondent.

Sec. 27- Disposal of property- by court

Belong to H/w jointly

Sec. 28– Appeals from decrees & orders-

(1) Every appeal lies to- “Court” to which appeal ordinarily lie from decision of
court in its original civil jurisdiction.

(2) Prefer appeal within- 90 days from the of decree/ order.

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Sec. 28A– Enforcement of decree & order- In same manner as D/o made by
court in its original civil jurisdiction.

Difference b/w maintenance u/s 125 Crpc, 24 HMA, 18 HAMA-

Sec. 125 Crpc Sec. 24 HMA Sec.18 HMA
Who can claim • Wife (+divorced) • Wife • Wife
• Children (legal, • Husband • Widow daughter
Illegal) (Only Hindu) in-law
• Parents • Children (legal,
• Hindu, Muslim etc. Illegal)
(i.e. anyone) • Parents
(Only Hindu)
Essentials By Wife By wife By wife
• When person • While divorce • W/o matrimonial
• Neglects, or petition is suit
• Do not take care pending • While living
• During JS or RCjR separately from
husband
By Children/parents By husband By widow daug. -in-
• Physical/ mental • Same as above law
abnormality. • Unable to maintain
• Unable to maintain form husband/
themselves. children’s estate.

Grounds for • Wife living in • If wife living in • Wife do not remain

disqualification adultery. adultery, chaste (i.e. become
• H/w living separately unchaste. unchaste).
by mutuel consent. • If person • Wife cease to be
• Wife W/o sufficient remarries. hindu.
cause refuses to live • Husband have • Widow daughter-
with husband. sexual in-law remarries.
intercourse with
woman outside
wedlock.
Change in Amount can be changed Amount can be Amount can be
amount changed changed.

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 Hindu Minority & Guardianship Act, 1956
Sec. 2– This HMGA- in Addition Guardians And Wards
Act 1980
& not derogatory to

Sec. 4- Definition

Minor u/s 4(a) Guardian u/s 4(b) Nature Of Guardian

u/s 4(c)

Person below 18 of As mentioned u/s 6

years of age
Minor Minor’s
Person Property

1. Natural Guardian
2. Testamentary Guardian
3. Guardian appointed by court
4. Person empowered by enactment on court of wards

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 Guardian

Sec.6 Sec.7 Sec.9 Sec.11

1

Natural Guardian By Testamentary De-facto

Guardian Adoptive Son Guardian Guardian

1.Legitimate B/G i)F 1.Father- by will

• Adoptive F Not allowed to deal
Unmarried G ii)M • Adoptive M 2.widow mother- by will with minor’s prop.
st
2.Below 5 yr.- 1 M
(for legitimate child)
3.illegitimate B/G i)M 3.mother- by will for
Unmarried G ii)F illegitimate child.

4.Married girl- H *If F by will appoint TG &

M survive, no effect of
Disqualification-
will/ TG.
i)cease to be a hindu.

ii)renounce the world. Effective- only if M dies

Hermit Ascetic without appointing any TG
by will.

Vanprasth Sanyasi

*NG not for- minor’s

undivided interest in
joint family property.

*F/M do not include

step F/M.

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Sec. 10– Minor not competent to be a guardian
Rule 1
Of minor’s property R/W Order.32

Rule 2

Sec. 12-No guardian appointed for

Minor’s undivided interest in joint family property.

Except- if HC wants, it can appoint ‘G’ for minor.

Sec. 13- Welfare of minor to be of- Paramount consideration

For court- Before appointing/ declaring any person as guardian.

Case Law-
Gita Hariharan V. RBI (1999)- The SC held that even if father is alive, mother can act
as NG.

Word “AFTER” U/s 6(a)- to be interpreted as

In Absence of F Not as after lifetime of

F

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Sec. 8- Power of natural guardian-
(1) To do all acts- necessary, protection, benefit of minor’s estate.

(2) W/o permission of court, NG can’t

Mortgage, charge, sale, Lease property more than 5 yr, or

gift, exchange, more than 1 yr beyond date on
immovable property which minor attain majority

“VOIDABLE” At option of minor

Court will allow only in case of- necessity,

or for advantage of minor.

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 Hindu Adoption and Maintenance Act, 1956

Sec. 3– Definition 3(b)- Maintenance

In all cases In case of

unmarried daughter

Food, Clothing,
Residence, Education, Reasonable expenses
Medical Treatment & incident to her
marriage

Adoption

Requisite for valid Who may be Effect of adoption-

adoption- Sec. 6 adopted- Sec. 10 Sec. 12

Person adopting has • Hindu • Adoptive child,

capacity to adopt- • Not pr. Adopted child of AF/AM
Sec.7 and Sec.8 • Property before
• Not below 15 yr
of age adoption continue
to vest
Person giving in
adoption has
capacity to give Sec. 9 Except- if custom
allow

Person adopted is
capable of being
taken in adoption

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 Person has capacity to Person giving in adoption
adopt Sec. 7 & Sec.8 has capacity to give Sec.9

• Father
• Dead
Male Female • Mother If
• Renounced word
• Guardian F
• Abandoned child
/
• Declared unsound mind
• Major M • Parentage not known
• Sound mind With permission
• Consent of H/w of court

No consent required

Considers- Minor’s wish

1. Renounce world & Minor’s welfare
2. Cease to be Hindu
3. Declared unsound
mind by Note- F/M do not include step F/M
competent court

Sec. 11– Other Conditions for void adoption

Adoption OF Adoption BY

Son Daughter Father Male Female Mother

S D Of Of male
S’S S’D Female
S’S’S

AF -21 yr. older AM- 21 yr.

than daughter older than son

* Not living at time of Adoption

Note:- Same child cannot be adopted by two/more person.

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Sec. 13– Right of adoptive parents to dispose their property

Intervivo i.e. Adoption no restriction on

By alienation

Will

Sec. 14– Determination of adoptive mother

Living More than Father-Bachelor Mother-Bachelor

wife one wife /widower /widow

Senior most-AM Marry Marry

AM
Rest- Step M
Wife- step M Hus.- step F

Sec. 15– Valid Adoption- Not to be cancelled

- Adult Child cannot renounce his status.

Sec. 16– Presumption as to reg. doc. of adoption

- Court “Shall Presume”

- Valid Adoption.

Sec. 17– Prohibiton on payment/ consideration

- Punishment- 6 months or fine or both

- No prosecution – w/o previous sanction of SG.

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 Maintenance

Sec. 18 Sec. 19 Sec. 20

Wife Widow Daughter in law Children &

Aged/infirm parents

Living separately + ask By father-in-law if she

maintenance :- is 1.Minor
(i) Legitimate
(ii) Illegitimate
From
If husband- 1. Unable to maintain (i) Father
a. Deserted 2. Has no property of her
b. cruelty
(ii) Mother
own
c. living with other wife 3. No maintenance from
d. Keeps concubine 2. Parents
e. Conversion From- (i) son
f. other justified ground
(ii) daughter
Husband, Son,
Disqualification- father, daughter
If wife- (i) Unchaste mother’s estate Parents include
(ii) Converts estate childless step-mother

Sec. 21– Dependents of deceased (आपित)

Sec. 22– Maintenance to dependents

Sec. 23– Amount of maintenance

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 Hindu Succession Act, 1956
Mitakshara co-parcenary–
Unity of - (i) Wife (ii) Possession (iii) Interest

Co-parcerner – Person taking birth in co-parcernary family.

Joint family – Every hindu family presumed to be joint.

“Hindu Co-parcenary” is a narrower body then joint family. It includes persons who
acquire interest in joint family property by birth.

Eg.- Son, Grandson, Great grandson, Father, Grandfather.

Property Under “Hindu Joint Family”

Ancestral Separate
Property Property

Inherited by hindu Acquired by self -

from his Father, GF, earning or self-
GGF acquired.

“Survivorship”
Before 2005

F DIE

1/8 S 1/8 S 1/8 S

1/8 S 1/8 S 1/8 S 1/8 S

1/8 S

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 “Succession”
After 2005

F DIE

1/2 S 1/2 S

1/4 S 1/4 S
1/6 1/6
S S

1/6 S

Joint Hindu Family-

• Every HJF is presumed is be joint.
• Separate share was not known to people, so there was jointness.
• HJF includes common ancestor & all his lineal male descendant upto any
generation, including wife, widow & unmarried wife of that common
ancestor.
• Death of common ancestor do not make the HJF come to an end.

Who all are in Joint Family

All females Illegitimate child

All male
widow, mother, Any person can be maintained,
members
daughter, sister dependant on but not entitled to
(lineal
( married/ family become member
descendants)
Unmarried) of family

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Nature of joint family & its origin-

1. HJF is normal condition of hindu society.

2. HJF concept has come from ancient patriarchal family which can be said, to be
earliest unit of human society.

3. Family welfare & family promotion was ultimate goal of every family.

4. So, personal interest was ignored & joint family began.

5. Joint family system came first in historical order, & then individual recognisation.

6. Ancient system generally treated property acquired by members as – “Family

Property”.

7. With gradual transformation of society, members recognized their rights in

property & then concept of separate property developed.

Case Law-
Surjit Lal Chhabda V. Commissioner of Income Tax (1976 SC 109)-

SC held that – The hindu joint family is a larger body consisting of group of persons
who are united by tie of “Sapindaship” arising of blood or adoption.

Concept of Co-parcenary-
Who is “Co-parcener”- Person taking birth in co-parcener family becomes a co-
parcener. So, a co-parcener has “ interest by birth” in joint family property until
partition takes place.

Mitakshra Co-parcenary-
Characteristics of Mitakshara co-parcenary-

• It is the smallest group within HJF.

• Hindu succession act has not changed concept of Mitakshara co-parcenary.
• Members of group by virtue of relationship have right to hold and enjoy property,
to restrain act of others & also to enforce a partition.

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• “Common Ancestor”
Status of coparceners- 3 generations next to OWNER Propositus

• Right arises by “Birth”.

It includes
1st generation
son
2nd generation
Grandson
3rd generation

Great Grandson

“Single co-parcenary”

• The son of great grandson is not coparcener as long to common ancestor

(Propositus) is alive.
• While fresh links are being continually added to chain of descendants by – birth,
earlier links are being constantly detached or removed by death.

Membership of coparcenary
Therefore may be increasing or
diminishing

• To understand formation of coparcenary, it is important to note that there is a

distinction between ancestral & separate property.

Kinds of Hindu Joint Family Property

Self acquired

Ancestral property Separate Property

Property inherited Property acquired

by a hindu from his by the self-earning
Father, Grandfather of person.
or Great Grandfater.

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Example- If ‘A’ had a Son ‘B’ inherited property from his father, it becomes ancestral
property and ‘B’ becomes a co-parcener with his father. Though ‘A’ is the head of
the family, ‘B’ is entitled to equal interest with his father. On death of his father,
‘B’ took the property by right of survivorship. Ancestral
property by
“Survivorship”

Example- If a person has a separate property, he is absolute owner of property. His

son did not acquire any interest by birth. On his death, property (his share) shall
pass to his son, not by survivorship, but by succession.
Separate property
by’ “Succession”

Unity of ownership & possession-

✓ When property is inherited by Hindu, the father & son inherits property jointly.
✓ All becomes equal owners of ancestral property.
✓ Single member cannot be owner of ancestral property. When father inherits
property from ancestor, the property belongs to father & next generation.

Share cannot be determined till partition-

✓ The share of each co-parcener can only determined at the time of partition not
before that.
✓ Before partition, it is presumed to be joint possession & joint enjoyment right.
✓ No one can determine what share he is getting until partition because on birth
or adoption, share decreases, and on death of any person share of all co-
parcener increases.

Exclusion of female-

✓ Originally daughters & other female were excluded from co-parcenary property.
✓ After HSA 2005, daughter of co-parcener becomes co-parcener. Even mother with
son, inherits equal share.

Common interest / share-

✓ There is a common interest in co-parcenary property.

✓ The moment a person is born in family, he acquires an interest in co-parcenary
property in the sense that he has a right of common enjoyment & common use
of all properties, because as soon as he is born, he assumes the membership of
community.

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Devolution of survivorship- The interest of co-parcener in co-parcenary property on
his death do not devolve on his heir by succession, but on the other hand, it passes
by survivorship to other co-parcener.

Right to maintenance-

✓ All members of co-parcenary are entitled to maintenance by birth out of joint

family property.
✓ They continue to enjoy this right so long the co-parcenary subsists.

Right of coparceners–

✓ Right in property by birth.

✓ Right of common ownership, possession & enjoyment.
✓ Right to demand partition.
✓ Right to ask for account.
✓ Right to alienation.
✓ Right to maintenance.
✓ Right to survivorship.
✓ Right to renounce interest in co-parcenary property.

Difference between Mitakshara & Dayabhaga Co-parcenary

NATURE MITAKSHRA DAYABHAGA
Formation of By creation of law, or by custom. By will/ desire of co-parcenary.
co-parcenary

Commencement Starting point is by birth of son in Father is exclusive owner as far as

of co-parcenary family. he is alive, but on his death all
surviving sons inherits property &
forms co-parcenary.

Determination Share is not defined. Share is defined (No fluctuation in

of share share).
Devolution By survivorship. By succession.

No. of Consists of 3 generation from Consists of brothers.

generation (owner)
Son, Grandson, Great Grandson
Absolute power Father has limited right to Father has absolute right to dispose
of Disposal dispose off property. off property.
Unity of There is unity of ownership No unity of ownership, so no
possession & possession & enjoyment so member can demand partition.
partition anyone can demand partition.
Position of Originally excluded, but by HSA, Females are included for succession
female member 2005, females included. of property.
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Ancestral Property-

✓ It is property inherited from any ancestor.

✓ It is the important female of co-parcenary property which descends from lineal
male ascends in male line.
✓ This property passes to son, grandson & great grandson.

Features of ancestral property-

1. Devolves by survivorship.

2. Male heir acquire interest by birth.

3. Devolves to next generation as they have right by birth.

Blending of property/ property thrown into common stock-

✓ A male member earning from different sources & acquiring property which is
said to be self-acquired property into joint property & blend the property.
✓ This member has abandoned property & surrendered all rights. Only co-parcener
can blend property.
✓ When a co-parcener mixes his separate property into joint family property, it
becomes part & parcel of joint family property.
✓ This is known as throwing into common stock/blending.
✓ Blending is not done by primary act, but it is possible by deliberate act
(intentionally & voluntarily) This can be done by words or conduct.
✓ All members cannot create joint property, only co-parcener can create joint
property by blending.

Partition-
Meaning- Bringing joint status to an end.

After Joint family cased to be joint &

Partition
Becomes nuclear family or separate joint family

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 How partition is affected

Actual division of
Sequence of Statue property by metes &
(separation of Status ) bounds

Division of right Division of property

✓ Express intention shown ✓ Physical division of joint

✓ Share in ascertained family property

Deductions– Before division of properties, certain deduction should be made-

Debt Maintenanc Marriag Performance

e e of
ceremonies

To those who are “of Daughter by”

‘disqualified
coparcener’
Eg - wife
- Daughter Father Mother
- step-mother

Persons who have a right of partition & entitle for share in partition-

1. Every co-parcener/ or all co-parcener.

2. Father / karta.

3. Son, Grandson, Great Grandson.

4. Son born after partition (if conceived in mother’s womb before partition.)

5. Adopted son (No right, if adoption after partition.)

6. Illegitimate son (Cannot demand partition, entitled for maintenance)

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7. Minor co-parcener

8. Son out of void or annulled marriage – not entitled.

9. Female.

✓ No female has a right to partition.

✓ But if partition takes place, some females has a right for share in partition (eg-
wife, mother, grandmother)
✓ After 2005, daughters are also entitled for partition.

How partition is affected-

1. Severance of joint status/ interest by express intention.

2. Partition by notice

3. Partition by will

4. Conversion to another religion

5. Marriage under special marriage act

6. By agreement

7. By arbitration

8. By father

9. By suit.

Reopening of partition-

Under following circumstances, partition can be opened-

1. Son in whom share was not reserved, and born at the time of partition.

2. A begotten son & one who is born after partition.

3. A disqualified co-parcener after removal of disqualification.

4. A minor co-parcener after attaining the majority.

5. When co-parcener obtain unfair share in partition.

6. A son adopted to a deceased co-parcener by his widow after partition, he is

entitled for reopening partition.

7. If co-parcener is absent when partition takes place.

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Karta-
Introduction- If HJF, karta or manager occupies important & top most position. He
is a person with limited powers, yet within ambit of his sphere, he possesses vast
powers to govern HJF.

Who is a karta?

Manager Senior most

male member
Representative
Unique or sui
member
generis

All members cannot jointly participate. Limited power

Therefore, all transactions are dealt by karta.

Who can become a karta?

1. Senior most male member of family.

2. Co-parcener of joint family.

3. One who has right by birth in co-parcenary property.

4. Sound mind person.

5.Major person.

6. Adopted member.

7. Woman or widow is disqualified from becoming karta.

8. Daughters (after 2005 amendment).

Case Law-
Shreya Vidhyarthi V. Ashok Vidhyarthi (2016)- SC held that senior most daughter can
be karta in family. A woman can be manager of joint family in some particular
circumstances though she could not be a karta.

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Powers of karta –

1. Power to control income & expenditure.

2. Manage joint family business.

3. Power to contract for family business.

4. Power to refer to arbitration.

5. Power to represent in suit.

6. Power to compromise or settlement.

7. Power to alienate (Transfer).

Duties of karta-

1. Duty to spend reasonably.

2. Duty not to start new business w/o consent of co-parcener.

3. Duty not to alienate co0parcenary property.

4. Duty to end all debts due to family.

5. Duty to provide maintenace.

Karta’s power to alienate– It is binding on entire joint family. With consent of co-
parcener, karta can alienate for –

Acts of
Benefits of
Legal indispensable
estate
Necessity duty

• Payment for govt.

• Insurance
revenue • Religious
• Lending • Pious
• Maintenance of
• Borrowing • Charitable
family
• Marriage purpose.
• Family ceremonies
• Legal expenses /
litigation
• Business debts

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Son’s Pious Obligation
Introduction-

✓ Pious obligation is a liability on son/grandson to pay debt of father/ grandfather.

✓ As son is co-sharer in property, he is the member of family, so he is liable to pay
father’s debt.
✓ u/s 6(4) of HSA 1956, abolished son’s pious obligation by amendment 2005 &
substituted it with legal obligation.

Son’s Liability

After partition Before partition

Contracted by Contracted by For father’s Debt incurred

father Before father After personal by father as a
partition partiton benefit karta of joint
family

Son liable upto Son liable

extend of (Except- when for
Son not liable Son liable
share he has illegal /immoral
obtained purpose)

Doctrine of pious obligation-

✓ Hindu law maintains high sense of morality as regards the payement of debt for
salvation of debtor’s soul.
✓ Son, grandson, great grandson are made liable to pay the debt of their ancestors.
✓ The moral liability to pay debt or to discharge their father’s debt for liberation
of father’s soul.

According to smritis non-payment of debt was

regarded as “SIN”

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 ✓ The consequences of which follows the debtor after his death.
✓ If debt is taken for illegal / immoral purpose, then son shall not be bound to pay.

Liability from 3 sources

Religious Moral liability Legal liability

liability

When a person Father is karta of

If not paid,
takes family. He act as agent
ancestor will
something for all coparcener. If
get re-birth in
from someone, any debt is not paid by
creditor’s
he must pay him, then all shall be
house as slave.
back. liable, so son must
repay debt.

Son’s liability under 3 heads- Property posses to son with liability.

Separate Property Co-parcenary Undivided interest in property

property

If father’s liability arise If no partition of CP, all debts to If co-parcener has taken
out of SP, entire SP of be paid out of CP. If CP loan or debt, then his debt
father shall be used to partitioned after death of shall be paid out of his
pay debt (moral & father, still debt be paid by son. undivided share in CP
immoral).

Stridhan-
Introduction- Before 1956, property of woman was divided into two heads.

Stridhan Woman’s estate

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Sec. 14, of HAS, 1956 has abolished woman’s estate.

Meaning of stridhan-

✓ According to manusmritis, stridhan is an absolute property of women, where

woman is absolute owner of the property.
✓ Over this absolute property, she can make any decision.
✓ Only daughter or widow can passes it.
✓ Property can come from father or father-in-law.
✓ Over their property, women can make separate stock of descents, means she
can pass it to her legal heir.
✓ But stridhan is different from women’s estate.

Meaning of women’s estate-

✓ Whatever property is in women’s possession, shall be termed as women’s

estate.
✓ She has limited right over this property.
✓ There are 2 limitation on her right-

(i) She cannot alienate property

(ii) After her death, property shall devolve upon next generation heir
of full owner.
She cannot alienate until there is-

(i) Legal necessity

(ii) Benefit of estate

(iii) With consent of next heir on whom property shall devolve.

(iv) For religious & charitable purpose.

Features of stridhan-

a. Whether it is stridhan or not?

A hindu female can get property from several sources but every such property
cannot be regarded as stridhan. Whether the property is stridhan or not, depends
upon 3 factors-

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 Whether property has come as a gift, or
Sources
partition or from inheritance?

Whether at the time of acquiring property,

Status
women was married, unmarried or widow?

School To which school she belongs-

(i) Mitakshara (ii) Dayabhaga

Case law-
Pratibha Rani V. Suraj kumar (1985)

A hindu married woman is absolute owner of her stridhan property & can deal
within any manner she likes & even if it is placed in custody of her husband & bound
to return she same whenever demanded by her.

Sources of stridhan-

Gift, partition, inheritance, debt recovery, self-earned, any decree, maintenance.

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 HINDU SUCCESSION ACT, 1956

INTRODUCTION

✓ HSA 1956, provides uniform law of succession.

✓ Old hindu law & customary law of succession stands null & void.
✓ This act preserves the dual mode of devolution of property- i.e. by

Survivorship Succession

✓ This act is, the basis of its “rule of succession” on the principle of
“PROPINQUITY”

i.e. “ Preference of heir on the basis of proximity of relationship.”

Legal provisions of succession-

Sec.6- Devalution of interest in coparcenary property.

Sec.8 to13- Rules of intestate succession for male.

Sec.14- Stridhan/ Absolute property of female.

Sec.15 to 16- Rules of intestate succession for female.

Sec.13 to 28- General provisions for succession.

Sec.29- Doctrine of Escheat.

Sec.30- Testamentory succession.

Sec. 3- Definition & interpretation-

(a) ‘Agnates’ 2 are related

Blood or Adoption

Wholly through males

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 (C) ‘Cognates’ 2 are related
by

Blood or Adoption

Not wholly through males

(d) “Custom & Usage”

They are rules which are-

Observed Obtained Not Not

Continous Uniform
unreasonabl opposed to
for long force of law
e public policy
time

Provided- If a particular rule is applicable only to family, then it has not been
discontinued by family.

(e) Full blood- Same wife, same husband

Half blood- Different wife, same husband

Uterine blood- Same wife, different husband.

MALE
Any person Who are entitled to succeed
(f) Heir-
to property of intestate
FEMALE

(g) Intestate- Person has not made testamentary disposition. (i.e. died w/o will)

HSAA 2005- w.e.f. 9 Sep. 2005

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Sec. 6- Devolution of interest in coparcenary property

(1) On and from commencement of HSAA 2005, JHF governed by mitakshra law.

Daughter of co-parcener shall

a. by birth become co- b. have same right c. have same

parcener, same as in CP as son. liability in CP as
son. son.
Proviso- Nothing shall effect or invalidate any disposition or alienation (including
partition or testamentary disposition).

Which had taken place before 20th Dec. 2004

(2) Disposition of property be female- Any property to which female hindu is

entitled u/s 6(1), shall be regarded as-

“Property capable of being disposed by testamentary disposition”.

(3) Where a hindu dies after HSAA 2005, his interest in JHF shall by succession, not
survivorship, & CP shall be divided as if parttion had taken place.

(a) Daughter will get same share as allotted to son.

(b) Share of PDS or PDD shall be allotted to their surviving child.

(c) Share of pre-deceased child of PDS or PDD shall be allotted to his child (i.e. child
of pre-deceased child ofPDS/PDD).

Explanation- “National Share”

The interest of Hindu mitakashara co-parcener shall be deemed to be the share in

property that would have been allotted to him, if partition of property had taken
place immediately before his death, irrespective of whether he was entitled to
claim partition or not.

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(4) “Son’s pious obligation”- After commencement of HSAA, 2005-

• No court shall recognize “Right to proceed” against

• son, grandson, great grandson,
• for recovery of debt due from
• father, grand father, great grandfather.

On ground of– Pious obligation under Hindu law.

Proviso- But if debt is contracted before HSAA 2005, then nothing U/s 6(4) shall
effect

Right of creditor to proceed Any alienation made in

against- Son, Grandson or satisfaction of such debt
Great grandson.

Such right or alienation

shall be enforceable under
rule of pious obligation as if
HSAA, 2005 had not been
enacted.

Explanation– Son, Grandson, great grandson means – born/ adopted before HSAA,
2005.

(5) Nothing u/s 6 shall effect or apply to-

Partition – effected before 20th Dec. 2004

Explanation– “ Partition” means-

(1)

• Partition made by execution of

• deed of partition
• daily registered under IRA 1908

OR

(2) Partition effected by decree of court.

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 HSAA 2005 came into effect on- 9th Sep. 2005

Question arose- It is necessary that father should be alive on 9th Sep, 2005.

What if father died in 2000, and after 2005 amendment on partition, can daughter
claim her right?

Case Laws-
❖ Prakash V. Phulwati (2015)- The SC held that co-parceners right are applicable
to living daughter of living co-parcener as on 9th Sep, 2005 irrespective of when
daughter was born. Therefore, father must be alive on 9th Sep. 2005.
❖ Danamma V. Amar (2018)- The SC overvalued the decision in Prakash V.
Phulwati and held that-

(a) If father passed away after 9th Sep, 2005, daughter is entitled to property
whether suit is pending or not.

(b) If father passed away prior to 9th Sep, 2005-

i) suit for partition is pending, daughter will be entitled to share.

ii) suit for partition is not pending, daughter not entitled (as decided
in phulwati case.)

❖ Vineeta Sharma V. Rakesh Sharma (2020)-

• Women’s right to ancestral property is by birth (like son).
• It does not matter, father is alive or not.
• Daughter by birth is co-parcener & entitled to share.

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 Sec. 8 to13- Rule of male succession
Sec. 8- General rules of succession in case of male

• Firstly– Class I
• Secondly– Class II
• Thirdly– Agnates
• Fourthly– Cognates

Sec. 9- Order of succession among heir in schedule –

• Heir in class I- Shall take simaltaneously &

exclude other heirs

• First entry is preferred on second entry.

• Second entry is preferred on third entry.

Sec. 10- Distribution of property among heir in class – I

or
Rule 1 More than 1 widow Shall take one share together

Rule 2 Surviving son Surviving daughter Mother Only wife

party 13(2)Each take one

Rule 3 Heir of pre-deceased Heir of pre-deceased Take between them one

son daughter share

Rule 4 Heir of pre-deceased Heir of pre-deceased daughter

son

• Widow Get • Surviving son Get

• Surviving son equal • Surviving daughters equal
• Surviving daughter portion portion

Sec.11- Distribution of property among heir in class – II

Property divided b/w – heirs of any one entry in class-II

So that – They share equally

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Sec.12- Order of succession among Agnates & cognates

- Following is preferred:
GGIF
Rule -1 If two heir One who has- few or Ascent
GIF
-No degree or Ascent

Rule -2 S
If No. of degree of Ascent is- same, or
- No Degree Descent
Gs

That heir preferred who has- few, OR

- no degree of descent

Rule -3 When no heir can be preferred under rule 1 or 2

- they take simultaneously

Sec.13- Computation of degree

1. To determine order of succession among- Agnate & Cognate, relationship is

recognized from-

Intestate to heir In terms

of

Degree of Ascent Degree of Decent

2. Degree of ascent or descent shall include- Intesetate

3. Every generation constitute a degree - (i) Ascending (ii) Descending

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 Class I heir-

W H M

W S D

S
D S D

S D D D S D Added by 2005
amendment

Class II heir-

F W

M Mother Brother S

D
Broth Sister
er

W S D
F (SM)
S

M Father D S
Sister

Broth Sister D
S S
er

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Sec.14- Property of female hindu to be her absolute property-

If a woman acquire property– before or after HAS 1956.

- It shall be held by her as – Full owner

(x) Not limited owner

Explanation- Property includes – Movable & Immovable by-

(1) Inheritance

(2) Partition

(3) In lieu of maintenance

(4) Arears of maintenance

(5) Gift from – Any person

- Relative

- At or after marriage

(6) By skill / exertion

(7) By purchase

(8) Property held as stridhan.

Sec. 15 to 16- Rule of female succession

Sec.15- General rules of succession in case of female hindu

Property of female hindu dying intestate shall devolve-

• Firstly– Son, daughter & husband (includes children of PDS, PDD)

• Secondly– Husband’s Heir
• Thirdly– Mother & Father
• Fourthly– Father’s heir

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 • Lastly– Mother’s heir

If property inherited from If property inherited from

Father or Mother Husband or Father-in-law

* NO Son, No Daughter * NO Son, No Daughter

Property devolves on Property devolves on

“ Heirs of father” “ Heirs of husband”

Sec.16- Order of succession & manner of distribution among heirs of female hindu-

Rule 1- Heir in 1st entry shall be preferred to those in succeeding entry.

Rule 2- ‘S’ or ‘D’ of PDS / PDD shall take b/w them 1 share which PDS or PDD would
have taken, if living.

Sec. 18 to 28 General provision relating to succession

Sec.18- Full blood preferred to half blood.

Sec.19- Modes of succession of two or more heirs

They shall take the property

A)

Not per stripe

Per Capita

B) As Tenant-in- Not as joint

B) common tenants

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Sec.20- Right of child in womb-

Who was in womb at Who, subsequently

death of intestate & born alive

• Has right to inheret

• As if he/she was born
before death of instate

Note- Inheritance shall be deemed to vest w.e.f.- “Date of death intestate”

Sec.21- Presumption in case of simultaneous death-

it shall be presumed– Younger survived elder

Sec.22- Preferential right to acquire property in certain cases-

(1) If one heir proposes to transfer his interest then other heir shall have a
preferential right to acquire the interest proposed to be transferred (R/W right of
“pre-emption”).

(2) Consideration for which interest is to be transferred.

• If not decided / or no agreement- then decided by court – (on application)

• If person who wanted to acquire interest is not willing to acquire it for
consideration decided, then he shall pay – all cost & incident of application.

(3) If there are 2 or more heirs proposing to acquire interest

- Heir who – offers highest consideration

- Shall be preferred.

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 From inheriting property
Disqualification

Sec. 25- Murderer Sec. 26- Convert’s Sec. 28- Disease, defect
disqualified descendants disqualified deformity

If person – a) commits If person ceases to be hindu Not a ground for

by- conversion disqualification
b) abets

Murder is disqualified from

inheriting property of - Children born to him after
person murdered. conversion &

Shall be disqualified

* UNLESS- Children/ descendants are

hindu at the time when succession
opens.Common lineal ascendant

Sec.27- Succession when heir is disqualified- Property shall devolve as if person died
before intestate.

Sec.29- Failure of heir (Doctrine of Esheat)- When no heir left to succeed, property
devolves to- Government (subject to obligation & liabilities)

Sec.30- Testamentary succession- Any hindu may dispose by- will or TD according
to – Indian succession act, 1925 or any other law applicable to Hindu.

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 Ceremony (sec.7) *Saptapadi- binding

Valid Hindu Marriage

Registration (sec. 8) (Not mandatory)

No living Incapability Age (21- B / 18- G) No prohibited No sapinda

spouse relationship relationship

Unsound Consent Insanity

but, mental
(no
consent)
disorder/ Void (sec. 11)
unfit

Voidable (sec. 12)

Either party [13(1)/

13(1A)]
Judicial Sec. 13
separation Divorce
(sec. 10) Only wife [13(2)]
Sec. 13 B

Withdrawing Sec. 13
from other’s A
society Restitution of
conjugal rights u/s 9

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 Hindu Succession Act, 1956

N.A. to certain property (Sec. 5)

Intestate Succession Testamentary Succession

[sec. 30]

Hindu male [Sec. 8- 13] Hindu Female [Sec. 14-16]

8- General Rule 14- Property shall be her

9- Order of Succession absolute property
10- Heir I Distribution 15- General Rule
11- Heir II Distribution 16- Order of succession &
12- Agnate – Cognate Manner of Distribution
Distribution
13- Computation of Degree.

प्रकाश
Preferences & Presumption बनाम Other Special Cases
[Sec. 18-22] फुलबंती
09.09.2
18- Full blood preferred half blood 005 6- Devolution of interest in co-
19- Simultaneous succession by 2 or parcenary property w.r.t. Hindu
more hours Female
20- Right of child in womb 7- Devolution of interest in property
21- Presumption as to simultaneous तरवाड़, कुटु म्ब, कबरू या इल्लम
death 17- Person governed by मरूमक्कलायम
22- Preferential right to acquire या अपलयसन्तान laws
property in certain cases

Disqualification as to succession (sec.

25 - 29)
25- Murderer disqualified
26- Convert descendant disqualified
27- Succession, when heirs disqualified
28- Disease, defect etc, not to disqualify
29- Escheat (राजगापमत्त्व) : failure of heirs
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 66

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 HINDU MINORITY & GUARADIANSHIP ACT, 1956

Person < 18 year of age Sec.4(b)

sec. 4(a) Sec.4 Provides four type of guardians-

(i) NG. (ii) T.G. (iii) Guardian appointed or declared by
court (iv) Person empowered to act as such by order
of court of ward. But यह list exhaustive नही ं है।
e.g. D.G. is also.

N.G. T.G. D.G.

Natural Guardian Sec. 6 -8 De-facto Guardianship

Testamentary
Guardianship Sec. 9 r/w
s.4 (b) (ii) i.e. A person who is taking
a) Legitimate
care of a minor without
1. Father
B/unmarried G Guardianship ( related authority of law is called de
2. Mother by the will of the minor’s facto guardian.)
father or mother) e.g.
(Sub to custody of minor < 5 yr. of age
with mother) T.G. can act like N.G.
(i) Self Appointed guardian
after the Death of
b) (ii) Guardian by affinity.
Illegitimate minor’s father or Mother
1. Father
B/unmarried G
2. Mother “ De facto guardian has no
Only in the status of N.G.
right to deal with minor’s
(as per s.6), can by will
c) Married girl property”
1.Hd create T.G.

1. Cease to be Hindu Not entitled to be

2. Renounced the world natural guardian Sec. 11
If minor is a girl, T.G. will
cease on her marriage.
Father Not Step Father
Mother includes Step Mother

-------------------Sec.6
2. Adoptive Mother
-------------------Sec.7

Note: Sec.8 अपने आप में बहुत ही Imp. है । एक natural guardian, minor person
या Minor’s Property के पलए क्या-क्या कर सकता है और क्या नही ं कर सकता, यह सब
Sec. 8 ‘Power of Natural Guardian में पदया है ।

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 Notes:

(i) HMG Act में पलखी प्रत्येक ‘Word’ का

meaning हैं
(ii) “एक minor पकसी दू सरे minor का Guardian नही ं बन सकता है ”
[Sec.10]
(iii) Guardianship, basically 2 चीजों की होती है ।

Minor person Minors property

No guardian shall be appointed for

minor’s undivided interest in joint family
property which is managed by any Adult
member of family”
[This Restriction can be overrided by HC]

(iv) HMG Act का Last Section (i.e. Sec. 13) Court’s important
Direction & Guardianship Appointment के Regarding
Descretion Power दे ता है -

(i) Welfare of minor must be paramount consideration

(ii) HMG Act या other Concerned Act, भले ही पकसी Person को
Guardianship का Right दे ता हो, But अगर (if) Court is of opinion that such
Guardianship will not for the welfare of minor, then It can disentitle
him/her for such Right.

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 Q. पकतना Mantenance Pay करना है , यह determine करने के पलए कौन-
कौन से Factpors Consider करने होते है ैं‌? Sec. 23

• Wife
• Son’s widow
W.r.t. Sec. 18-20 • Children/aged W.r.t. Sec.21 & 22
person
de Dependants

1. Reasonable wants of 1. --------------------Do------------------

claimants -----
2. Value of claimants property 2. --------------------Do------------------
and Income -----
3. --------------------Do------------------
3. Number of Claimants -----
4. Degree of relationship b/w deceased & dependants

4. Position & Status of parties

5. Past Relation b/w deceased &
dependant
5. If Claimant living separately,
justification for such?
6. Net value of estate of
deceased, after deducting debts

7. Provision, if any w.r.t.

dependants deceased’s will

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 Class-I

W Deceased M

W S D

W S D S D

S D

I. Father (F)
Class II
II. S-D-S
S-D-D
Brother (B)
Sister (S)

III. D-D-S
D-D-D
D-S-S
D-S-D

IV. B-S
B-D
Sis-S
Sis-D

V. दादा-दादी

VI. F-W, B-W

VII. F-B, F-Sis

VIII. नाना-नानी

IX. M-B, M-Sis

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