THE HINDU UNDIVIDED FAMILY

The HUF is a family structure that is prevalent in the Indian subcontinent. A HUF cannot
come into existence through a contract. It automatically comes into being in a Hindu family.
It consists of a Karta, who is the eldest male member of the family. The Karta manages the
general affairs of the family. The descendants of the Karta are known as the coparceners.
Often, the principal requirement for commencing a HUF is the existence of ancestral
property.
The coparceners, by way of their rights, are entitled to a share of this property. A HUF is
usually involved in any form of business and has an income disposable to it. Hence, under
section 2(31) of the Income Tax Act[i] of 1961[ii], the HUF is considered to be a person. It is
taxed as a separate entity as well. The Karta must obtain a Permanent Account Number
(PAN) and a bank account in the name of the HUF. This way, the tax liability of the family
comes down. The tax slab rates that apply to an individual income tax assesses, also bind a
HUF.
Various shastric laws have contributed to the characteristics of the Hindu Undivided family.
It is closely related to the provisions of the Hindu Succession Act (1956)[iii] and the Hindu
Marriage Act (1955)[iv].
According to Hindu Law, all the people in a HUF are lineal descendants of a common
ancestry which is compulsory. The family here includes their wives and unmarried daughters,
who are living together and do common things such as eat food, worship together and have a
common estate/business. The female members such as windowed daughters who have
returned to their father’s home, daughters-in-law are part of a HUF. The daughter after her
marriage becomes a member of her husband’s HUF and ceases to be a member of her father’s
HUF. Members of a HUF are related to each other by blood, marriage, or adoption.
In the case of Surjit Lal Chabra vs CIT, it was made clear by the apex court that a ‘Joint
Family’ and ‘Hindu Undivided Family’ are synonymous. The court further went on to clarify
that a joint Hindu family consists of persons lineally descended from a common ancestor and
includes their wives and unmarried daughters also. The daughters once married stop being a
member of their husband’s family.
HUF is a creation of law and it can’t be created by an act of the parties, except in the case of
reunion (BhagwanDayal vs Reoti Devi) or adoption (Surjit Lal Chhabra), where it comes into
existence by the act of the parties.
It is a constantly changing body, its size increases with the birth of a male member in the
family and decreases on the death of a family member. Females go and come into Hindu
Undivided Family on marriage. A HUF can’t be created under a contract. It is automatically
created in a Hindu family. People of other religions such as Buddhists, Jains, and Sikhs are
not governed by the Hindu Law, but they are treated as a HUF under the Income-tax Act
1961.
DIFFERENT SCHOOLS UNDER THE HUF
The declassification of the HUF yields two different schools, namely Dayabhaga and
Mitakshara. While the essence of a HUF remains rooted in these schools, there are minor
differences.
There are two principal schools of Hindu Law. They are the Dayabhaga School and
Mitakshara School. The Dayabhaga school of Hindu law runs in the area governed by the
erstwhile state of Bengal i.e., Bengal, and Assam. The Mitakshara school of Hindu law
prevails over the rest of India.
Unlike the Mitakshara law, in Dayabhaga law the HUF can’t come into existence as an
operation of law automatically, but it comes into existence by the voluntary decision of the
legal heirs. In Mitakshara law the son/daughter (after the 2005 amendment to the Hindu
Succession Act) gets a share in the family property on conception itself. In Dayabhaga law
the son doesn’t get a share in the family property by birth. As long as the father is alive, the
son doesn’t have any interest in the family property.
DAYABHAGA
He acquires it after the death of his father. The shares and responsibilities of each coparcener
are well defined. The said property has to be divided physically, in case of a partition.
However, an adult son cannot support or oppose any disposition of the property, as he does
not exercise any control over it. The father has undeniable power over the property until his
death. HUFs in Assam and Bengal follow this system.
In the Dayabhaga School, the allocation of property is extremely simple. If a man dies
intestate, his sons get a proper part of his property. According to the Dayabhaga law, the sons
do not acquire any interest by birth in ancestral property.
Their rights arise for the first time on the father’s death. On the death, they take much of the
property as if left by him, whether separate or ancestral, as heirs and not by survivorship.
Since the sons do not take any interest in an ancestral property in their father’s lifetime, there
can be no coparcenary in the strict sense of the word between a father and sons according to
theDayabhaga law.
The father can dispose off ancestral property, whether movable or immovable, by sale, gift,
will or otherwise in the same way as he can dispose of his separate property. Since sons do
not acquire any interest by birth in ancestral property, they cannot demand a partition of such
property from the father. A coparcenary under the Dayabhaga law could thus consist of males
as well as females. Every coparcener takes a defined share in the property, and he is the
owner of that share. It does not fluctuate with birth and deaths.
MITAKSHARA
All parts of India except Assam and Bengal follows this system. Coparcenary rights are
awarded to the son by birth. He has the right to demand the partition of the property as he has
equal rights on it as his father. He has the right to oppose any unauthorized disposition of the
said property. However, there is no physical separation of the property during a partition. The
coparceners of the HUF are allowed to have a definite numerical share of the property. There
are four classifications under the Mitakshara school.
They are as follows:  Dravidian school - prevalent in south India  Maharashtra/ Bombay school -
exists in Bombay
 Banaras school- Followed in Orissa and Bihar  Mithila school - Exists in Uttar Pradesh and
neighbouring areas
In the Mitakshara School, the allocation of parental property is based on the rule of
possession by birth. Moreover, a man can leave his property at his will. The joint family
property goes to the group known as the group known as coparceners. They are the people
who belong to the next three generations.
Hence, the joint family property by partition can be, at any time, converted into a separate
property. Therefore, in Mitakshara School, sons have an exclusive right by birth in the joint
family property.
The Mitakshara concept of coparcenary is based on the notion of the son’s birthright in the
joint family property. Though every coparcenary must have a common ancestor to start with,
it is not to be supposed that every extant coparcenary is limited to four degrees from the
common ancestor.
IMPORTANTJUDGEMENTS
In the case of Attorney General of Ceylon v. Arunachalam Chettiar a father and his son
constituted a joint family governed by the Mitakshara School. The father and the son were
domiciled in India and had trading and other interests in India.
The undivided son died and father became the sole surviving coparcener in a Hindu
undivided family to which a number of female members belonged. In this case, the court said
that the widows in the family including the widow of the predeceased son had the power to
introduce coparceners in the family by adoption and that power was exercised after the death
of the son.
MITAKSHARA JOINT FAMILY
In Mitakshara Joint Family Property son has a right over the property since the birth, even an
illegitimate son or a widowed daughter has a right over the property of their father’s Joint
Family Property. Another feature is the right to Maintenance and right of survivorship which
will be given to the unmarried daughters and other members respectively in the Joint Family.
Under Mitakshara only Joint Family property will be acquired by the coparcenary by the
concept of succession and survivorship.
In case Board of Revenue v. Muthu Kumar it was observed that when a son inherit the
father’s separate property, he will acquire it as a separate property even if he has a son under
Section 8 of Hindu Succession Act. Whereas in Dayabhaga Joint Family Property son have
no right over the properties by birth. Even the concept of Survivorship is not given to son and
therefore there is no joint family between the son and the father. Under Dayabhaga it includes
all the properties both selfacquired and joint family property will be devolve by succession
The essence of a coparcenary under Mitakshara law is the unity of ownership. The ownership
of the coparcenary property is in the whole body of coparceners. According to the true notion
of an undivided family governed by Mitakshara law, no individual member of that family,
whilst it remains undivided, can predicate, of the joint and undivided property, that he, that
particular member, has a definite share. The most appropriate term to describe the interest of
a coparcener in coparcenary property is “undivided coparcenary interest”.
If a Mitakshara coparcener dies immediately on his death his interest devolves on the
surviving coparceners. The Supreme Court has summarised the position and observed that the
coparcenary property is held in collective ownership by all the coparceners in a quasicorporate
capacity.
COPARCENARY AND THEIR PROPERTY:
The Coparcenary is a narrower institution and included under Joint Family. It only comprises
a male member who had born in the family and acquires an interest in the Coparcenary
property. To constitute a Coparcenary as a minimum two male members should be needed to
start and continued for a longer time.
Joint Hindu family has unlimited members but Coparcenary is only limited to four
generations of unlimited male members. The property acquired by a senior most male
member is known as the last holder of the property. For E.g., the Coparcenary was consisting
of father F, his son S1, and his son’s son S2. All these have form Coparcenary and if the son
died the Coparcenary will continue between the father and his grandson.
Sometimes all the coparceners died leaving behind only one, the surviving Coparcenaries
known as Sole Surviving coparcener. If it will be not possible to add another coparcener then
the property in his hand becomes separate property. The right to maintenance has to given to
female members if they have.
In earlier times women cannot become coparceners but after the amendment in the Hindu
Succession Act, 2005, daughters also become coparceners just like their brother from birth.
Under classical law, if a coparcener dies then his share in the property was shifted to
surviving coparceners but this Doctrine of Survivorship has abolished under the 2005
amendment. And now the property has divided through the Doctrine of Notional partition and
the property had given to the deceased’s legal heirs.
COPARCENARY UNDER MITAKSHARA SCHOOL OF JOINT FAMILY
Coparcenary idea under Hindu Law was mainly by the male member of the family where
just children, grandsons and great-grandsons son who have a right by birth, who has an
interest in the coparcenary property. No female of a Mitakshara coparcenary could be a
coparcener but she will always be a part of the Joint Family. So under Mitakshara a son,
son’s son, son’s son’s son can a coparcenary i.e. father and his three lineal male descendants
can be a coparcener.
FORMATION AND INCIDENT UNDER COPARCENARY PROPERTY
According to the Hindu Succession Act, 1956, the only son had a right to became a
coparcener. The daughter had no right to enjoyed the status as a coparcener.
Under Mitakshara School of Hindu Law, the concept of coparcenary based on the notion of
birthright. It consists of four-generation: great grandfather, grandfather, father and son.
A major breakthrough towards eradicating the gender inequality and discrimination and to
prevent the gender biases that have been prevalent in Indian families, to improve the adverse
condition of women in the society has been ensured with the enactment of Hindu Succession
Amendment Act,2005.
In Shreya Vidyarthi v. Ashok Vidyarthi and Ors. , AIR 2016 SC
In this case, Apex Court held that of Hindu Succession Amendment Act,2005 was done
keeping in mind and respecting the position of a female member, the daughter shall by birth
become the coparcener in the same way as a son.
Daughter as a coparcener under Mitakshara School: Yes, the daughter also enjoys the status
of Coparcener after the ‘Hindu Succession Amendment Act, 2005’. According to Sec
6(1), the ‘Hindu Succession Amendment Act, 2005’ daughter become the coparcener by
birth.
SECTION 6 IN THE HINDU SUCCESSION AMENDMENT ACT, 2005
Devolution of interest in coparcenary property. —
 On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in
a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener
shall-  by birth become a coparcener in her own right in the same manner as the son;  have the
same rights in the coparcenary property as she would have had if she had
been a son;
 be subject to the same liabilities in respect of the said coparcenary property as that of
a son,
THE INCIDENTS OF COPARCENARY ARE:
1. The lineal male descendants of a person up to the third generation, acquire on birth
ownership in the ancestral properties of such person
2. Such descendants can at any time work out their rights by asking for partition.
3. Till partition each member has got ownership extending over the entire property,
conjointly enjoyment of the properties is common
4. As a result of such co-ownership, the possession and enjoyment of the properties is
common
5. No alienation of the property is possible unless it is for necessity, without the
concurrence of the coparceners
6. The interest of a deceased member passes on his death to the surviving coparceners.
PROPERTY UNDER BOTH THE SCHOOL
There is a lot of division and classification in Property. Before the enactment of Hindu law,
there were two principal schools i.e. Mitakshara and Dayabhaga. Mitakshara School
divides the property into two categories and the first one is Unobstructed Property and the
second one is Obstructed Property. Further, after the enactment of Hindu law and the decline
of both principal school, the Property is divided into two parts i.e. Joint Family Property and
Separate Property under Hindu law.
Property is classified into two types: (1) Joint Hindu Family Property (2) Separate
Property. Joint-family Property is also known as ‘Coparcenary Property and this property
consists of (a) Ancestral Property (b) Property jointly acquired by the members of the Joint
family. (c) Separate property of a member “thrown into the common stock.” (d) Property
acquired by all or any of the coparcener with the aid of joint family funds.
OBSTRUCTED PROPERTY
The property to which right accrues not by birth but on the passing of the final owner is
called obstructed property. It is called obstructed since the accrual of the right to it is
obstructed by the existence of the final owner. Hence the property devolving on parents,
brothers, nephews, uncles, etc. upon the passing of the last owner, is obstructed property.
These relatives are not vested intrigued by birth. Their right to it arises only on the passing of
the last owner.
Obstructed property rights gained by the owner after the succession of the final owner but
there are some exceptional cases where the ownership passes by survivorship. The exception
cases were mentioned below:  Two or more than two sons, grandsons, and great-grandsons
succeeding as heirs to
the separate property of their paternal ancestor take as joint tenants with
survivorship.  Two or more grandsons of a daughter who is a member of a joint family succeed
as heirs to their maternal grandfather as joint tenants with the right of
survivorship.  Two or more widows succeeding as heirs of their husband take as joint tenants
with survivorship rights.  Two or more daughters succeeding as heirs of their father take as joint
tenants.
These are the only 4 conditions or exceptional circumstances in which ownership of the
obstructed property transfers to another before the succession of the previous owner.
Illustration
An acquired the certain property from his brother who passed on issueless. The acquired
property within the hands of A will be a discouraging legacy for the children of A. The
children of A will acquire the property from A as it were after his passing.
UNOBSTRUCTED PROPERTY
The property in which an individual secures and is intrigued by birth is called unobstructed
property. It is called unobstructed since the accrual of the right to it isn’t obstructed by the
presence of the owner. Hence property inherited by a Hindu from his father, grandfather, and
great grandfather is unobstructed heritage as regards his claim male issues, that is, his sons,
son’s and son’s child. These rights arise on account of their birth in the family and the male
descendants in whom the property vests, are called coparceners. Thus, the hereditary property
in the hands of the final male owner is unobstructed.
Illustration
‘A’ acquired certain property from his father. Two children born to A, M and N are
coparceners with A. M and N will procure an interest by birth within the hereditary property
of A. Thus the property within the hands of A is unhindered legacy, as the presence of the
father is no obstacle or obstacle to his children procuring an intrigued by birth within the
property.
ANCESTRAL PROPERTY
Ancestral Property is also known as Self-acquired Property after the partition in a Joint Hindu
family. As the name suggests Ancestral Property this property is automatically inherited to
next-generation people. This Ancestral property was inherited till 3 generations or it is also
considered as a part of Coparcenary property as it also includes property descended from
father, great grandfather. Self-acquired property and the ancestral property is part of Separate
property as above discussed.
Separate Property is the second category of property under Hindu law in which the property
is inherited by the other members of non-blood relations.
In the case, Gurdip Kaur vs. Ghamand Singh Dewa Singh, 1965, the dictionary meaning of
Ancestral Property is “Property which has been inherited from the ancestors” was accepted
by the Court. It was also held that a property inherited from a father, father’s father or great
grandfather is ancestral property.
JOINT FAMILY PROPERTY
Joint family or coparcenary property is that property in which every coparcener has a joint
interest or right and over that property, the coparcener has a joint possession. Or we can also
say that the joint family property is the property which is jointly acquired by the member of
the family with the aid of ancestral property.
Joint family Property defines as if any member of joint family property acquired in his own
name in the presence of an ancestral nucleus. In V.D. Dhanwatey v. CIT, 1968, it was held
that “The general doctrine of Hindu law is that property acquired by a Karta or a coparcener
with the aid or assistance of joint family assets is impressed with the character of joint family
property. To put it differently, it is an essential feature of a self-acquired property that it
should have been acquired without assistance or aid of the joint family property. It is
therefore clear that before an acquisition can be claimed to be separate property, it must be
shown that it was made without any aid or assistance from the ancestral or joint family
property.”
KARTA
In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position.
There is no office or institution in any other system of the world can be compared with it. He
is a person with limited power but he possess such vast power with in ambit of joint family
which nobody enjoys
The Joint Hindu family is a patriarchal body, and the head of the family is called Karta. Karta
is the senior most male member of the family who acts as the representative of the family and
acts on behalf of the family. There is a fiduciary relationship between the Karta and the other
family members because every family needs a head member who can look after the welfare
of minor members and females in a Joint Hindu Family. The position of Karta is unique in a
joint Hindu family. Karta takes care of the whole family and its property and the decision
given by the Karta is bound to be followed by the members of Hindu Joint Family. No one is
equal to Karta in a Hindu Joint Family. The powers and position of a Karta are wider than
any of the members of the Hindu Joint Family. No one can be compared with Karta among
the other members of the joint family.
WHO IS A KARTA:-
Karta means manager of joint family and joint family properties. He is the person who takes
care of day to day expenses of the family looks after the family and protects the joint family
properties.
WHO CAN BE A KARTA?
SENIOR MOST MALE MEMBER
The senior most male member is entitled to become a Karta and it is his right. Karta is always
from the members of the family; no outsiders or stranger can become a Karta. If the senior
most male member of the family is alive then he will continue as Karta, if he dies then the
second senior most member of the family will take the charge of Karta. Karta takes his
position by consent or agreement of all the coparceners.
JUNIOR MALE MEMBER
If the coparceners agree, then a junior can also become a Karta of the family. By making the
agreement with the coparceners, a junior male member can be a Karta of the family.
Narendrakumar J Modi v. CIT 1976 S.C. 1953
Facts: - BaplalPurushottamdas Modi was the head of the HUF. Joint family possesses many
immovable properties and carried business of various types such as money lending, etc. He
executed a general power of attorney in favour of his 3rd son, Gulabchand on Oct 5, 1948.
On Oct 22, 1954 Baplal relinquished his share. On Oct 24, 1954 the existing members of the
family executed a memo of partition. However, the order accepting partition was not passed,
the contention of the appellant was that Gulabchand couldn’t be a Karta because he is a junior
member and other members of the family did not accept him as a Karta.
Judgment: - It was held that Gulabchand was given the power to manage by Baplal because
Gulabchand’s elder brother was an aged man of 70 years. And also the father of appellant
died in 1957. So, under such circumstances, Gulabchand appears to have acted as the Karta
with the consent of all the other members and hence the appeal was dismissed.
FEMALE MEMBER AS KARTA
In 2000, the 174th report of the 15th Law Commission recommended many amendments to
correct the discrimination against women, which was the key issue before the commission,
and this was the foundation for the Hindu Succession (Amendment) Act, 2005. Hindu
Succession (Amendment) Act, 2005 turned the daughters of a family, who are governed by
Mitakshara Law, coparceners in the HUF property and further gave them the right of
survivorship via amended Section 6 (1) (a) and (b) of Hindu Succession Act, 1956. This
amendment gave them equal rights as the sons. Although the 2005 amendment provides
equal rights to daughters in the coparcenary as compared to the sons, an important
question was still left unanswered - Can women or daughters be allowed to become
managers or karta of the Hindu Undivided Family?
The landmark Delhi High Court judgement in Mrs. Sujata Sharma v Shri Manu
Gupta[10] has, after the 2005 amendment to Hindu Succession Act, 1956 (the “HSA”),
brought the next step to realising equality of women in the Hindu Undivided Family. The
court found that while females have equal rights to HUF property (post HSA), they also have
the right to manage the same property as Karta. Also, the court found no restrictions
regarding a female Karta in Section 6, HSA.Thus, after demise of the father in a HUF, if the
eldest is a daughter then she becomes the Karta of that same HUF, with the mother and
siblings (if any) as members of the HUF.
Hence, married or unmarried daughters may not only claim coparcenary in HUF property but
may also claim rights to manage the same HUF property as Karta, provided they are the
eldest.
This means that just as a son can be a Karta, by virtue of being born the eldest, a daughter can
also be a Karta given that she was born eldest. Also, even after being married a daughter
retains her right to coparcenary and also the right to be Karta.
In fact, a woman may even be a de facto Karta in the family where she marries and a de jure
Karta in her family of origin, provided that she is a widow and is the only major in the family
she married into and is the eldest in her family of origin.With this judgement the equal rights
of daughters in their HUF have been fully realised. Daughters would have the same rights and
liabilities as sons regarding the HUF property for all means and purposes.
According to Dharmastra, if there is an absence of the male member in a family then in that
situation female can act as a Karta. If in case male members are present but they are minors,
at that time also, females can act as a Karta.
Sushila Devi Rampura v. Income tax Officer AIR 1959 Cal
It was held that where the male members are minors, their natural guardian is their mother.
The mother can represent the HUF for the purpose of assessment and recovery of income tax.
Commissioner of Income Tax v. Seth Govind Ram AIR 1966 S.C. 2
After reviving the authorities it was held that the mother or any other female could not be the
Karta of the Joint Family. According to the Hindu sages, only a coparcener can be a karta and
since females cannot be coparceners, they cannot be the Karta of a Joint Hindu Family.
The amendment made in 2005 gives women equal rights in the inheritance of ancestral
wealth, something reserved only for male heirs earlier. It indeed, is a significant step in
bringing the Hindu Law of inheritance in accord with the constitutional principle of equality.
Now, as per the amendment, Section 6 of the Hindu Succession Act, 1956 gives equal rights
to daughters in the Hindu Mitakshara coparcenary property as the sons have. The amendment
was made because there was an urgent need for certainty in law.
CHARACTERISTICS OF KARTA
The characteristics of a Karta are:
 Karta’s position is unique (sui generis). His position is independent and no one
can be compared with him among the family members.  He had unlimited power but even if he acts
on behalf of other members, he can’t
be treated as a partner or agent.  He controls all the affairs of the family and has wide powers.  He
is responsible to no one. The only exception to this rule is, in case of fraud,
misappropriation or conversion, he is held responsible.  He is not bound to invest, save or
economise. He has the power to use the
resources as he likes, unless he is not responsible for the above mentioned
charges.  He is not bound to divide the income generated from the joint property equally
among the family members. He can discriminate one with another and is not
bound to be impartial. The only thing is he should pay everyone so that they can
avail some basic necessities like food, clothing, education, shelter etc.
POWERS OF A KARTA
Powers of Management
Karta’s power of management is absolute. No one can question the duties of the Karta like,
he can manage or mismanage the property, family, business any way he likes. Karta cannot
deny the maintenance and occupation of property to any member. Karta is not liable for the
positive failures.
Rights to Income or Remuneration and Expenditure
The income of the Joint Hindu family property in a whole must be given to the Karta. Then it
is the responsibility of the Karta to allot the funds to the members for fulfilment of their
needs. Karta controls the expenditure of the funds. The scope of his power is only to spend
such funds on family purposes like management, maintenance, marriage, education etc.
Rights to Represent Joint Family
The Karta represents the family in legal, religious and social matters. The acts and decisions
of the Karta are binding on the members. Karta can enter into any transaction on behalf of the
family.
Dr. Gopal v. Trimbak AIR 1953 Nag 195
In this case, it was held that a manager/karta can contract debts for carrying on a family
business/ thereby render the whole family property including the shares of the other family
members liable for the debt. Merely because one of the members of the joint family also joins
him, it does not alter his position as a karta.
Right to Compromise
Karta has the power to compromise the disputes relating to management or family property.
He can compromise family debts, pending suits and other transactions. The compromises
made by the Karta, can be challenged in court by heirs only on the ground of malafide. Power to refer
a Dispute to Arbitration
Karta can refer the disputes relating to management, family property to the arbitration. If the
award by the arbitration is valid then it will be binding on the members of the joint family.
Power to Contract Debts
The Karta exercises an implied authority to contract debts and pledge the credits and property
of the family. Such acts are bound to be followed by the members of the family. Even, Karta
when taking a loan for the family purpose or for family businesses then joint family is liable
to pay such a loan.
The karta of a non-business joint family also has the power to contract debts for family
purposes. When a creditor seeks to make the entire joint family liable for such debts, it is
necessary for him to prove that the loan was taken for family purposes, or in the ordinary
course of business or that he made proper and bona fide enquiries as to the existence of need.
The expression family purpose has almost the same meaning as legal necessity, benefit of
estate, or performance of indispensable and pious duties.The karta has an implied authority
to contract debts and pledge the credit of the family for ordinary purpose of family business.
Such debts incurred in the ordinary course of business are binding on the entire family
# Loan on Promissory note: - When the karta of a joint family takes a loan or executes a
promissory note for family purposes or for family business, the other members of the family
may be sued on the note itself even if they are not parties to the note. Their liability is limited
to the share in the joint family property, though the karta is personally liable on the note.
# Power to enter into contracts: - The karta has the power to enter into contracts andsuch
contracts are binding on the family. It is also now settled that a contract, otherwisespecifically
enforceable, is also specifically enforceable against the family.
Power to enter into Contracts
The Karta can enter into contracts and where contracts are enforceable against the family.
The contracts are binding on the members of the joint family.
Power of Alienation
No one among the family members can alienate joint family property. But Karta has the
power to alienate the property under three circumstances.
1. Legal Necessity
2. Benefit of estate
3. Indispensable duties
Legal Necessity
This term has not expressly defined in any judgement or in any law. It includes all the things
which are deemed necessary for the members of the family.
Dev Kishan Vs. Ram Kishan AIR 2002
In this case, the plaintiff filed a suit against the defendant. Both plaintiff and defendant are
members of the Joint Hindu Family. Defendant 2 is the Karta, who is under the influence of
Defendant 1, sold and mortgaged the property for an illegal and immoral purpose which is for
the marriage of minor daughters Vimla and Pushpa. The defendant contended that he took the
loan for the legal necessity.
The court held that the debt was used for the unlawful purpose. Since it contravened the
Child Marriage Restraint Act, 1929, therefore, it can be called as lawful alienation.
Benefit of estate
Benefit of Estate means anything which is done for the benefit of the joint family property.
Karta as a manager can do all those things which are helpful for family advancement.
Indispensable Duties
These terms refer to the performance of those acts which are religious, pious or charitable.
Examples of indispensable duties are marriage, grihapravesham etc. A Karta can alienate the
portion of the property for the charitable purpose. In this case, the power of the Karta is
limited i.e he can alienate only a small portion of the family property, whether movable or
immovable.
LIABILITIES OF A KARTA
 Liability to maintain- Karta is to maintain all the members of the Joint Family. If
he does not maintain any member then he can be sued for maintenance and also
can be asked for compensation.  Liability of render accounts- As far as the family remains joint,
Karta is not
supposed to keep accounts of the family, but when partition takes place at that
time he will be liable to account for family property. If any of the heir is not
satisfied with his accounts, then he can constitute a suit against Karta to bring the
truth and to know any misappropriation is done by Karta or not.  Liability of recovery debts due to
the Family- He has the liability to realize the
debts due to the family.  Liability to spend reasonably- He has the liability to spend the joint family
funds
only for the family purposes.  Liability not to eliminate coparcenary property- It is the liability of
the Karta
not to alienate the coparcenary property without any legal necessity or benefit to
the state.  Liability not to start new Business- It is the liability of the Karta not to start a
new business without the consent of other coparceners.
Concept of Pious Obligation under the Hindu Law
‘Pious obligation’ means the moral liability of sons to pay off or discharge their father’s
nonavyavaharik debts. The debts borrowed may not be of legal necessity or for benefit of estate.
Thus, if the father is the Karta of a Hindu joint family, he may alienate the coparcenary
property for discharging the antecedent debts. The sons are under the obligation to recover
such alienated property by repaying the debts.
The ancient doctrine of pious obligation was governed by Smriti law. There is a pious
obligation on the sons and grandsons to pay the debts contracted by the father and
grandfather. According to Privy Council this obligation extends to great grandsons also
because all the male descendants upto three generations constitute coparcenary and every
coparcener is under a religious obligation to pay the debt contracted by their ancestor,
provided such debt was not taken for an immoral or unlawful purpose.
The concept of pious obligation has its origin in Dharmashastras, according to which nonpayment of
debt is a sin which results in unbearable sufferings in the next world. Hence the
debts must be paid off in all circumstances provided it was not for immoral and illegal
purposes. Vrihaspati has said, “If the father is no longer alive the debt must be paid by his
sons. The father’s debt must be paid first of all, and after that a man’s own debts, but a debt
contracted by the paternal grandfather must always be paid before these two events.
The Mitakshara has presented the entire proposition in stronger words. According to it when
the father has gone abroad or is suffering from some incurable disease, the liability to pay the
debt contracted by him would lie on the sons and grandsons irrespective of the fact that the
father had no property. There are reasons for fixing this liability on sons and grandsons. The
liability to pay the debt is in the order, viz., in absence of father the son and in absence of son
the grandson.
DOCTRINE OF PIOUS OBLIGATION
Joint families under Hindu Law are not limited to succession and a coparcenary system. The
succeeding generation is also expected of some obligations, one of them being from the sons
for the repayment of debts incurred by their father during his lifetime. Pious meaning
religious, and under the doctrine of pious obligation, an expectation is casted on a son to
repay his father’s loan and debts from the part of the ancestral property he holds under a
religious duty towards his religion. However, this duty ceases to exist when the debts are
avyavaharika, i.e. incurred for immoral or illegal purposes.
As laid down by the Hon’ble Supreme Court in the case of ‘Sidheshwar Mukherjee vs.
Bhubneshwar Prasad Narain Singh’, the doctrine finds its origin in the historical smiritis. It
was held that non-payment of debts was a positive sin and thus to save the father from the
consequences of such a sin in the afterlife, it was a son’s duty to pay off the debts. However,
under law, the position has been modified to an extent where a son is liable to pay off the
debts only confining to the interest in the coparcenary property he holds. He cannot be
otherwise made personally liable. Also, unlike the previous distribution where the son was
liable to pay off the whole debt and the grandson and great-grandson only the principal
amount, now all three generations are equally obligated to pay off the principal amount and
interests.
Under the Hindu Law, a son is under a pious obligation to discharge his father’s debts out of
his ancestral property regardless of the possibility that he had not been profited by the debts,
gave the debts are not avyavaharika. The sons get absolved from their obligation to discharge
the debt of their father from the family assets just if the debt was one spoiled with immorality
or illegality.
In Hindu law there are two commonly destructive principles, one the standard of autonomous
coparcenary rights in the sons which is an episode of birth, providing for the sons vested ideal
in the coparcenary property, and the other the pious obligation of the sons to discharge their
father’s debts not spoiled with immorality or illegality, which lays open the entire estate to be
seized for the installment of such debts. As indicated by the Hindu lawgivers his pious
obligation to pay off the ancestors’ debts and to mitigate him of the demise torments
consequent on non-installment was irrespective of their acquiring any property, however, the
courts dismiss this liability arising irrespective of acquiring any property and provided for
this religious obligation a legal character.
Pious’ means ‘genuine, religious, dedicated, respectful. ‘Pious obligation’ means an
obligation of a Hindu because of profound dedication to religion. Hindu law states that ‘He
who having gotten a sum loaned or the like does not reimburse it to the proprietor will be
conceived henceforth in his creditors house a slave, a servant or a lady or a quadruped ‘.
According to Hindu scriptures, it is the blessed obligation of a son to pay off or discharge his
father’s debts. The religious obligation is joined to the son as well as a grandson and to the
considerable grandson also, on the ground that all the three are coparceners with others by
their introduction to the world.
BURDEN OF PROOF OF THE DEBT
The obligation on son to pay off their father’s personal debts is a religious obligation and on
the off chance that they need to wriggle out of it? They can do as such just if the debts are
polluted the son also need to show that loan boss had the notice or information that the debts
was corrupted.
The Apex Court in LuharMarit Lal Nagji v. Doshi JayantilalJethalal, depending upon the
judgments of the Privy Council alluded to (supra), articulated the principles thus : “the sons
who challenge the alienations made by the father need to demonstrate that the precursor debts
were immoral as well as that the purchasers had seen that they were so corrupted.”
Ramasamayyan v. VirasamiAyyar ((1898) I.L.R. 21 Mad. 222)
Indeed, even where the home loan is not for legal necessity or for an installment of precursor
debt, the lender can, in the execution of a home loan declare for the acknowledgment of a
debt which the father is personally subject to reimburse, sell the estate without getting a
personal pronouncement against him. After the sale has occurred, the son is bound by the
sale, unless he shows that the debt was non-existent or was corrupted with immorality or
illegality.
DEBTS OUTSIDE THE SCOPE OF THE DOCTRINE
Commercial Debts:
Commercial Debts was respected outside the regulation, as indicated by Old law. To the
present law, it is the doctrine.(i.e. the son is subject to pay the commercial debts)
Suretyship Debts:
Liability arising out of suretyship by the father is not official on his son. Hence, it does not go
inside the convention.
Gaming Debts:
Gaming Debts are outside the regulation according to the Old and New Laws. Eg: Debts
caused by drinks, liquors and so forth.
Avyavaharika Debts:
As indicated by the Mitakshara, it is outside the doctrine. Cole rivulet translated it as “a debt
for a cause disgusting to great morals”.In other words, it is a debt for an illegal or immoral
purpose.
PIOUS OBLIGATION AFTER THE AMENDMENT OF 2005
After the initiation of the Hindu Succession (Amendment ideal to continue against a son,
grandson or incredible grandson for the recuperation of any debt due from his father,
grandfather or awesome grandfather solely on the ground of the pious obligation under the
Hindu law, of such son, grandson or extraordinary grandson to discharge any such debt. Bias
of Pious Obligation Doctrine :What is left of the pious obligation convention after the
amendments in Hindu law is the injustice of the principle of pious obligation of the son to
pay his father’s debt, namely, even now the father amid his lifetime can estrange the joint
family property of himself and of his son for the installment of his personal debts brought
about by him which was neither necessary nor valuable for the family. This is the residue,
which is neither justifiable nor reasonable. However, it is the legitimate and fair consequence
of the inheritance of the son in the joint estate.
SOCIO-LEGAL IMPACT OF DOCTRINE OF PIOUS OBLIGATION
The socio-legal impact of the pious obligation teaching is not consistent with the present day
jurisprudential trends in the field of exclusive jurisprudence. The Hindu law as stands
changed by the various Acts favors the absolute right of ownership with regards to Hindu
females; it can’t stand to rationale and reason the at where the woman’s restricted estate has
been abolished the son’s idea in the joint family property should be permitted to be taken
away from the teaching of pious obligation. What is imperative in this respect is to change
the pious obligation regulation into the absolute obligation and get it similarity with the
Dayabhaga school of Hindu law because that has as of now been the impact of Chandersen’s
decision of the Supreme Court.
PARTITION UNDER HINDU LAW
In order to obtain insight into the process of re-opening of partition, it is vital to understand
what the process of partition in itself entirely entails. A partition is a calculated division of
family property amongst its members, thereby concluding the joint status of such family.
Once the partition is successful, the particular family ceases to exist as a joint family and
becomes a nuclear family. Through this process, various coparceners of property can attain
their fixed shares as a coparcener.
The Mitakshara school of thought compares partition to be a severance of status or interest,
amidst family. Mere division of property between coparceners does not amount to partition,
but the complete severance of status of being a member of the joint family constitutes
partition in its true sense. Furthermore, the process of partition can be administered in two
methods:
Total Partition: Through this process, the family property in its entirety is divided in
between all coparceners.
Partial Partition: The family may encounter a particular occurrence wherein only a few
members of the joint family go out on partition while the others remain members of the
family. In this case, the remaining members maintain joint status while those that leave get
their share.
In order to satisfy prerequisites for either of the aforementioned processes, there is also a
requirement of the fulfillment of two necessary conditions that give rise to partition. They
are: Intention to separate from the rest of the family within the minds of members or
member.  External declaration of such intention to separate from the rest of the family. This
declaration entails expressing the intention of partition vividly through verbal or
written communication.
MODES OF PARTITION UNDER HINDU LAW
There can be several modes by which a partition (Modes of partition under Hindu Law ) can
undergo such as  Partition by father during his lifetime: the Karta of the family take partition then it
came into existence.
 Partition by suit: from the moment the suit is filed clearly indicates the intention to
severance, then partition was held when the suit was instituted.  Partition by agreement: from the
date of signing the agreement, severance of status
get started. And one more type of partition includes the agreement of arbitration in
which all member of the joint family come into an agreement in which they appointed
arbitrator that distributes or divide the property.  Partition by notice  Partition by will  Oral
partition
 Partition by one coparcener through his unilateral declaration.  By conduct, when food, worship
and business are different.  Partition on death also called Notional Partition
 Partition on conversion and or by marrying a non-Hindu: if anyone converts their
religion then automatically severance of interest take place from the date of
conversion but they entitled to take their share from that property, and if a person
married under special marriage act 1954 so then automatically severance of interest
took place from the date of marriage but in this case also they entitled to get their
share.
RE-OPENING OF PARTITION
Although, according to Hindu Law and as per the teachings of Manu, a partition once made
stands to be irreversible and irrevocable. However, to cater to the public interest, certain
exceptional situations have been allowed by law as cases under which an application to reopening of
partition can be applied.  Fraudulent Partition: There are grounds to re-open partition in case a
coparcener
has unfairly obtained an advantage in the distribution of property through exercising
fraudulent behaviour upon other coparceners. Such behaviour may include
misrepresenting worthless assets as those with value, or concealment of property by
the person exercising said fraudulent behaviour. The affected coparcener in
furtherance has a right to claim the reopening of partition thereby.  Person in the womb:
Considering how the right to partition is retained by sons,
grandsons and great-grandsons, in case a son has been conceived at the time of
partition and born after, he too can claim his right to property as a coparcener. In case
the family members attain knowledge of such pregnancy, the partition has to be
delayed until his birth, or, his share to the property needs to be reserved. In hindsight,
however, where no such reservation is made to the son in the womb, he can demand
for re-opening of partition after birth through any external representation.  Existence of Adopted
Son or Sons: Section 12 of Hindu Adoption and Maintenance
Act, 1956 prescribes the right of adopted sons to be coparcener to property at the time
of partition. Birth of biological son after adoption does not take away the right of an
adopted son and therefore, in case he does not get his share of the property after
partition, he can claim re-opening of partition through any representation.  Coparcener disqualified:
In some cases, a coparcener is held un-entitled to his share
at the time of participation due to certain disqualification of technical restraint, in
which case, he can re-open partition once said disqualification ceases to exist upon
him.  Absence of valid Coparcener: In case a coparcener holding right to share in the
property is absent at the time of partition, and no share is allotted in his name, he too
has a right to ensure re-opening of partition.  Coparcener in Minority: If, at the time of partition, a
coparcener being a minor does
not have his interests accounted for, he has the option of re-opening partition. There is
no requirement for there to have been fraud, misrepresentation or undue influence for
a minor coparcener to re-open partition, in case the partition itself is proven to be
unfair to the minor’s interests and opposing his personal benefit.  Addition of Property after
Partition: In case some property is mistakenly or
deliberately left out, lost or seized at the time of partition, the partition can be reopened in case such
properties re-surface. However, it is not necessary to re-open
partition for their distribution; in the sense that, if they can be viably distributed
within coparceners without re-opening of partition, there is no necessity in disturbing
the prior process
REUNION
In furtherance of re-opening of partition comes the reunion of a family; a state in which the
particular family members resume their status as a joint-family which had been lost after
partition. A reunion is the only way in which the joint-status of family can be re-established
amongst family members. However, only those members of the family that originally had
joint status in the property are eligible to reunite with each other.
The primary prerequisite for administering reunion is the intention of parties to reunite in the
estate as well as a common interest. That also entails that simply choosing to live under one
roof without the intention of regaining joint status in property shall not constitute a valid
reunion. It is also necessary that the communication is communicated vividly, with each
separate coparcener giving individual consent to the reunion.
Once a family reunites, the foremost effect of such reunion is the resolution of reunited
members to their prior status as members of a joint family under Hindu Law. In consequence,
the property divided to each individual coparcener is also pulled back as a collective property
of the joint family wherein the members also regain their status of undivided coparceners. A
complete restoration of the family and its members along with their status is triggered by the
reunion, so as to make sure that there is no legal difference within the family from before
prior partition.
It is essential that parties have the intention to reunite in estate and interest again. A reunion
can be made only between the parties who actually partitioned at that time. A reunion can
only take place between father and sons, brothers and between paternal uncle and nephew.
It is not required to have the existence of the similar property which were separated since the
reunion is for love and affection of family members with the desire of living together.
Religious and Charitable Endowments under Hindu Law
An endowment is generally a dedication of property of any kind for particular purposes,
particularly charitable purposes. One may say that it is the dedication of property for a well
defined religious or charitable purpose or for the benefit of the public or some section of the
public in the advancement of religion, knowledge, commerce, health, safety or any other
object beneficial to mankind.
The legal literature on this subject is very scanty. The reason seems to be that religious
endowments were regulated by their own customs. Law on this subject is mostly judge-made
law.
Gifts for religious or charitable purposes had their source in charity and a desire to acquire
religious merit. They fall into two divisions: Ishta and Purtta: the former meant sacrifices and
sacrificial gifts and the latter meant charities. The former led to heaven while the latter to
emancipation or Moksha. This shows that charity is placed on a higher footing than religious
ceremonies and sacrifices.
The definition of endowments recognised by the courts since long includes the properties set
apart or dedicated by gift or devise for the worship of some particular deity or for the
maintenance of a religious or charitable institution, or for the benefit of the public or some
section of the public in the advancement of religion, knowledge, commerce, health, safety or
for any other object beneficial to the mankind.
Amongst the religious and charitable endowments, hospitals, schools, univerisaties alms
houses (for distribution of food to Brahmanas or poor), establishment of idols etc., are
included. According to Raghvachariar an endowment is referred to as the setting apart of
property for religious and charitable purposes in which there is a Karta and a specific thing
which can be ascertained.
A disposition in India to be a public trust must be made with the purpose of advancement of
either religion, knowledge, commerce, health, safety or other objects beneficial to the
mankind.
Endowment is dedication of property for purposes of religion or charity, having both the
subject and object certain and capable of ascertainment. A trust in the sense in which the
expression is used in English Law is unknown in the hindu system, pure and simple. Human
piety found expression in gifts to idols and images consecrated and installed in temples, to
religious institutions of every kind and for all purposes considered meritorious in the Hindu
social and religious system. The hindu law recognises dedication for establishment of the
image of a deity and for maintenance and worship thereof. The property so dedicated to a
pious purpose is placed extra commercium and is entitled to special protection at the hands of
the sovereign whose duty is to intervene to prevent fraud and waste in dealing with religious
endowment
CREATION OF ENDOWMENTS
A Hindu who is of sound mind, and not a minor, may dispose of his property by gift or by
will for religious and charitable purposes such as the establishment and worship of an idol,
feeding Brahmins and the poor, performance of religious ceremonies like Shraddha, durga
puja and lakshmi puja, and the endowments of a university or an hospital.
No list of what conduces to religious merit in Hindu law can be exhaustive. But when any
purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit
though lacking in public benefit, it must be shown to have a Shastric basis.
Endowments for religious purposes may be made under the Hindu law, cither by executing
strust in the technical sense, that is to say, as understood in the english law, by transferring
properties to trustees in a trust for a deity, or there may be a dedication, which means the
transfer of property to a deity according to the Hindu Custom whereby the dedicator divests
himself of his property for religious purposes in favour of a deity or for other religious or
charitable purposes. Having regard to the true nature of the act of dedication of property to a
Hindu deity, no acceptance is required, or can possibly be required, of the deity in order to
complete the dedication .
No writing is necessary is create an endowment unless the endowment is to be created by a
will. It is also not necessary that a trust be created for that purpose.
No religious ceremony such as Sankalp or Samarpan is necessary. All that is essential is that
firstly, property in respect of which the endowment is made must be designated with
precision. Secondly, the object or purpose of dedication should he clearly indicated and
thirdly, the founder must effectively divests himself of all beneficial interest in the endowed
property
Essentials of a valid religious or charitable Endowment
In order that a proper and legally enforceable endowment may be created, it is essential that
it must fulfill all the essential requirements.
(I) Object- object for creating the endowment must be a valid religious or charitable object.
The object must be in consonance with the provisions of Hindu Law. It must be definite.
(II) Dedication must be unambiguous and bonafide.
(III) Capacity of the Founder - The founder or settler should be capable under Hindu Law of
creating an endowment in respect of the particular purpose which is the subject matter of
endowment.
(IV) Purpose must be clearly Indicated- The settler should indicate with sufficient precision
the purpose of the endowment and the property in respect of which it is made, and the
endowment must comply with the requirements of law as regards the form in which it is to be
made.
(V) Endowment must not infringe the provisions of any other law- The endowment must not
be opposed to the provisions of any law for the time being in force, an infringement of which
makes it void or voidable in law.
(VI) Dedication of property must be complete.
Hindu Religious and Charitable Endowments Act, 1951.
The Object Of The Hindu Religious And Charitable Endowment Act
The religious freedom is guaranteed by the Constitution so the intervention of the
Government in the administration of religious institution through the Statutory Boards may
seen paradoxical. There was no mention of temples in Vedic Collection of Hymns and
Prayers. When fire was lit oblations were said to be made in the place there at. In later
Brahmana period temples were Constructed for accommodation of images of gods. Charities
began to flourish and valuable endowments such as landed properties for pious purposes were
well established in later period the cult of religious worship developed and Gifts for religious
and Charitable purposes were impelled by the desire to acquire religious merit. So the Hindu
temples are founded, endowed and maintained generally for the benefit of general Hindu
public.
Different Kinds of Endowments
(a) Public or private;
(b) Real or apparent;
(c) Absolute or partial;
(d) Religious or charitable;
(e) Valid or invalid.
Public and Private Endowment:
In order to ascertain the nature of the endowment as to whether it is public or private the
subsequent conduct of the settler and use of the evidence of the property set apart by the
public at large are to be considered. In fact when a temple is thrown open for public at large
for worship, a valid inference can be drawn that a public trust has been intended to have been
created. Where the outsiders along with the members of the family of the settler take part in
worship in celebration of festivals in a temple as in public temples, the state of affairs point
out to the public nature of the endowment.
In contrast private endowment is that in which the public has no ingress, as an endowment for
the worship of the family deity of the settler. Where the property is kept separate safely for
the worship of family deity by family members only, with which the public has nothing to do,
it is a private endowment.
UNIT – IV
Inheritance and Succession
1. Historical perspective of traditional Hindu Law relating to Inheritance
2. Hindu Succession Act, 1956
3. Stridhana- Woman’s Property
4. Amendments to Hindu Succession Act
5. Gifts and Testamentary Succession
6. Wills
Hindu Succession Act, 1956
Introduction:
The Hindu Succession Act 1956 deals with property rights and inheritance. This act gives a
broad view of who can be given the property and the rights available for both males and
females while acquiring a property.
Section 2 of Hindu Succession Act 1956 talks about the applicability of this law. This law is
applicable to anyone who is a Hindu, Jain, Buddhist, Sikh by religion. Any person who is not
a Muslim, Christian, Parsi or Jew by religion unless otherwise proven by law that this
particular person does not come under the ambit of this law. This section is not applicable to
the Schedule tribes.
Important changes brought by Hindu Succession Act, 1956
The Hindu Succession Act, 1956, brought about many important changes in the Hindu
intestate succession of properties apart from introducing a uniform law of succession among
Hindus, in the entire territory of India, These important changes can be enumerated as
follows:—
(1) Changes in the Hindu joint family:
Firstly, under the pre-existent law in the Hindu joint family, a coparcener could not write in
respect of his interest or property in the family. But Section 30 of the Hindu Succession Act
enables a coparcener to write a will in respect of his property. Secondly, on the death of
coparcener, the principle of survivorship was recognised. So that the property went to other
coparceners. The widow or the daughter or daughter’s daughter of the pre-deceased
coparcener cannot inherit his share in the joint family property. But under section 6 of Hindu
Succession Act the widow, daughter etc., can inherit his share and so the principle of
survivorship is indirectly abolished.
(2) Abolition of Sapindas Relationship:
The past sapindas relationship was totally abolished. In that place love and affection theory
has come into the existence and as such both males and females could inherit the property of
the deceased. It is based on the principles of justice.
The old law discriminated a male and female heir in the case of inheritance. Females were
not at all given the right of inheritance and were totally excluded. But a limited right namely;
widows estate or limited estate was given to the widows. By that they could neither sell nor
gift the property.
After the widows death, the property will not go to her daughter or near relationship but will
revert back to the relations of the deceased husband. Now this is totally abolished and
females are equally entitled with the males in the inheritance of property.
(3) Removal of Disqualifications:
The pre-existent law disqualified the following persons from inheritance:
(a) Lunatics, (b) Idiots, (c) Unchaste widows. Now such disqualifications are abolished.
(4) Separate Property of Male Propositus:
Under the old law, simultaneous succession of different types of heirs was not recognised,
e.g., when son was living the daughter, mother, father, etc., should not inherit. Succession of
different types of heirs is partly recognised. Now the class I heirs namely, son, daughter,
widow and mother can inherit the properties of deceased simultaneously and in equal
proportion.
But in the simultaneous succession it is partly because only class I heirs can simultaneously
inherit the property. The class II heirs, Agnates and Cognates cannot inherit when Class I
heirs are existing. The old preferential succession is recognised in the succession of classes.
Agnates will inherit in the absence of class I and II heirs, etc.
(5) Changes in Illegitimate Sons
Under the pre-existing law, the right of succession of illegitimate son varied from school to
school. It also depended on the caste to which the parents belonged. But now illegitimate son
is recognised only with reference to mother and not at all connected with father’s property.
So the position of illegitimate son is simplified and he cannot claim as heir at all. In the same
way, the illegitimate son of the legitimate son cannot claim any right to the grand-father or
grand-mother’s property. But the legitimate son of illegitimate son can claim right to the
grand-mother’s property alone.
(6) Consanguine and Uterine Blood Relations:
The heir-ship under the Succession Act is restricted to blood relations only. But
consanguinity was recognised in the old law. A Hindu female could not have two husbands in
her life time. So the prior Hindu Law did not recognise uterine blood relationship. But in the
present Act, uterine relations are also recognised.
But both must be legitimate or adopted, it should not be illegitimate. Consanguine means one
husband having more wives and the relationship of children among themselves is called
consanguinity. Uterine relationship means wife having more than one husband and
relationship of children among themselves in such a case.
(7) Others changes:
(1) The female heirs except in Bombay took only life estate. Now all females take absolute
estate.
(2) In the previous law, the benefit of doctrine of representation was given only to sons,
grandsons and great grandsons of the pre-deceased sons. But now this doctrine of
representation is extended to daughters, children of pre-deceased daughters, daughters of predeceased
sons and daughter of a pre-deceased son of a pre-deceased son etc.
(3) The previous degree relationship namely five degrees on the mother’s side and seven
degrees on the father’s side marked the limits of cognatic relationship. But now the above
limits are removed for cognates.
(4) In the same way, 14th degree of samonadakas marked the limits of agnate’s relationship.
Now the limit is completely removed.
(5) The Act has abolished impartible estates except those created by statute.
(6) The Act does not apply to properties of a person who married under the provisions of the
Special Marriage Act, 1954.
(7) The Act does not apply to Mitakshara coparcenary property. But when coparcener dies
leaving female heirs mentioned in class I of the Act or male relative of the claim claiming
through such female relative, the property of the ancestor is subjected to rules of inheritance
under the Act and the coparcenership is abolished.
(8) The Act abolished the difference between male and female heirs.
(9) The Act entitles a male Hindu to dispose of heir’s interest in Mitakshara coparcenary
property by will.
Kinds of Property under Hindu Succession Act 1956
According to Hindu Succession Act 1956 there are two kinds of property
1. Ancestral Property– This kind of property is passed down from by four generations
of the male lineage and the property should be undivided during this time.
2. Self-acquired Property– These kind of properties are bought by an individual with
his own earning and without the assistance of family funds. The property which is
acquired through a will is also a self acquired property.
Dipo v. Wassan Singh & Others
A person who has to inherit property from his immediate paternal ancestors up to 3
lines, holds it in coparcenary and to other relations he holds it and is entitled to hold
it, as his absolute property. Hence, the property inherited by a person from any other
relation becomes his separate property.
The scope of the Hindu Succession Act 1956 covers the division of ancestral property in a
Hindu joint family. In a Hindu Joint family there are members and co-parceners.
Members And Co-Parceners
The basic structure of any Hindu joint family comprises of the Karta or the head of the
family, his wife, his son, his daughter, daughter-in-law, son-in law, grandson etc. All of them
are members of the family but not co-parceners.
In Case of Males
If a male dies intestate, the property would go to1. Class I heirs- this class basically consists of the
deceased’s wife, son, daughter. They
would have the very first claim on the property.
2. Class II heirs- in the absence of the class I heirs, the property can be claimed by the
class II heirs which consist of the deceased’s father, sibling, sibling’s children, living
children’s children.
3. Class III heirs- In the absence of class I and class II heirs the property can pass down
to class III heirs which are called as Agnates or the distant blood relatives of the male
lineage
4. Class IV heirs- In the absence of the class I, class II and agnates the property can be
claimed by Cognates or the distant blood relative of the female lineage.
5. Son
The expression ’son’ can include both a natural born son or adopted son but does not
include a stepson or illegitimate child. In Kanagavalli v. Saroja AIR 2002 Mad 73, the
appellants were the legal heir of one Natarajan. Natarajan was earlier married to the first
respondent, the second respondent was the son and the third respondent was the mother of
Natarajan. The first respondent obtained a decree of restitution of conjugal rights but still
no reunion occurred between them. The first appellant claimed to have married Natarajan
in 1976 and the appellants 2 to 5 were born through them. Natarajan died afterwards. The
suit was filed for declaration that the appellants were the legal heirs of the said Natarajan
along with respondents 1 to 3, and they were entitled to the amounts due from the
Corporation where Natarajan worked. The Court held that a son born of a void or
voidable marriage that is declared to be annulled by the Court, will be a legitimate child
and would thus inherit the property of his father. A son has absolute interest in the
property and his son cannot claim birthright in it. Therefore, ‘son’ does not include
grandson, but does include a posthumous son.
Daughter
The term ‘daughter’ includes a natural or adopted daughter, but not a stepdaughter or
illegitimate daughter. The daughter of a void or voidable marriage annulled by the Court
would be a legitimate daughter and thus would be eligible to inherit the father’s property. The
daughter’s marital status, financial position etc is of no consideration. The share of the
daughter is equal to that of the son.
Widow
The widow gets a share that is equal to that of the son. If there exists more than one widow,
they collectively take one share that is equal to the son’s share and divide it equally among
themselves. This widow should have been of a valid marriage. In the case of Ramkali v.
Mahila Shyamwati AIR 2000 MP 288, it was held that a woman who was in a voidable or
void marriage, and that marriage was nullified by the Court on the death of the husband,
would not be called his widow and would not have rights to succeed to his property.
If the widow of a predeceased son, widow of a predeceased son of a predeceased son or the
widow of a brother has remarried, then she shall not be given the term of ‘widow’, and will
not have the inheritance.
If no one from the Class I heirs takes the property, then Class II heirs fall in line to get
the property. In Kalyan Kumar Bhattacharjee v. Pratibha Chakraborty AIR 2010 (NOC) 646
(Gau), the property fell into the share of the defendant brother named Ranjit, who was
unmarried. However, he became traceless and the property was divided amongst two other
brothers in equal shares. The plaintiff’s brother called Jagadish then executed a will in favour
of both the plaintiff and died afterwards. However, the defendants then asked them to vacate
the land, contending that inter alia that the land has been purchased in the name of three
brothers; namely Jagadish, Ranjit and Kalyan, the defendant number 1. It was held that when
a Hindu male is unmarried and he dies, and is not survived by a Class I heir, the Class II heirs
would get the property.
Similarly, when in heirs in Class III and IV are there, the property would only go to them if
no one from the Class II is present.
Class III heirs
This consists of the agnates of the deceased. Class III heirs only inherit the property when
none form the earlier classes gets the property.
An agnate is a person who is related to the intestate only through male relatives. An agnate
can be a male or a female.
Rules of preference among agnates
 Each generation is referred to as a degree. The first degree is intestate.  Degrees of ascent mean
ancestral or upwards directions.  Degrees of descent means in the descendants or downwards
direction.  Where an agnate has both ascent and descent degrees, each has to be considered
separately.  An agnate having descent degree will be preferred over the one having ascent
degree.
 When two agnates have ascent and descent degrees, the one having lesser number
of ascent degrees will be preferred.
Class IV heirs
A cognate (Class IV) is someone who was related to the intestate through mixed relatives, in
terms of sex. For example, an intestate’s paternal aunt’s son is his cognate, but his paternal
uncle’s daughter will be an agnate. Therefore, to sum up it can be said that the property of the
Hindu male devolves in the following manner:
In Case of Females
If a female dies intestate, the property goes to1. The very first claim of the property would go to her
husband, son, daughter.
2. In case of their absence, the property would go to the heirs of the husband.
3. The property would pass down to the parents of the deceased in absence of the above
mentioned claimants.
4. The fourth claimants of the property will be the heirs of the father.
5. The fifth claimant of the property will be the heirs of the mother.
In the case of any property being inherited by a female Hindu by her father or mother and
there is no son or daughter of the deceased (including a child of predeceased son or
daughter), then it shall devolve in favour of the heirs of the father.
Similarly, in the case of any property being inherited by a female Hindu by her husband or
her father in law, and there is no son or daughter of the deceased (including the child of a
predeceased son or daughter), it shall devolve in favour of the heirs of the husband.
Cases Which Solved This Confusion
1. The case of Prakash & others vs Phulavati &others, which came in 2016, dealt with
the above question that whether this law will have a retrospective effect or no. This
case was headed by a two judges bench Justice Anil Dave and Justice A K Goel in the
Supreme Court and they held that the rights under this amendment would be available
to those daughters whose fathers were living on the date of enforcement of this
amendment. This has been declared as a landmark judgement for it held that only
living daughters of living co-parceners are entitled to the property.
2. The second case regarding the same question came up in 2018. In the case
of Danamma vs Amar, the Supreme Court was headed by a two judges bench- Justice
AK Sikri and Justice Ashok Bhushan, this time held that the rights under the 2005
amendment would be applicable to the daughter even if the father is not alive on the
enforcement date of the amendment, thus making both the daughters and sons equally
liable for the property and this right is given to both of them since birth.
3. Even though in 2018, the judgement was passed in favor of daughters having equal
rights over the father’s property, there were still some confusions and confusions on
whether to follow the 2016 judgement or the 2018 one. Finally, in 2020 the case
of Vineeta Sharma vs Rakesh Sharma put an end to all the speculations surrounding
the applicability of this amendment. The earlier cases were headed by a two judge
bench but in this case it was headed by a three judge bench and they were Justice
Arun Mishra, Justice Abdul Nazeer and Justice M.R Shah. The Supreme Court in this
case clearly said that daughters and sons have an equal liability over a property and
that this right is given to them since birth and whether the father is alive or dead, it
doesn’t affect the right of the daughter.
Conclusion
The case of Vineeta Sharma vs Rakesh Sharma was declared a landmark case as it finally
settled the confusions regarding property rights. The current status of the law is that both the
son and daughter have an equal liability and right over the property irrespective of whether
the father was alive in 2005 or not and there will be equal division of the property. This
amendment was instrumental in bringing a change in society and women’s right.
Stridhan:
As indicated by the name itself ‘Stridhan’ means that ‘Dhan of the ‘Stri’. Thus, it literally
means the woman’s property.
Stridhan according to Smrities:
Manu enumerates the six kinds of Stridhan:
(1) Gifts made before the nuptial fire;
(2) Gifts made at the bridal procession from the residence of her parents to that of her
husband;
(3) Gifts made in token of love;
(4) Gifts made by the father;
(5) Gifts made by the mother;
(6) Gifts made by the brother.
The first kind of Stridhan has been explained by Katyayana as adhyagni, or gift made before
the nuptial fire. The second kind of Stridhan has been explained by Katyayana as those made
through affection by her father-in-law and mother.
The third kind of Stridhan has been explained by Katyayana as those made through affection
by her father-in-law and mother- in-law (pritidatta) and those made at the time of her making
obeisance at the feet of the elders (padvandanika).
All the commentators, however, have agreed that the above enumeration by Manu was not
exhaustive. Vishnu added the following to that list:
(1) Gift made by a husband to his wife on supersession, that is, on the occasion of his taking
another wife (adhive danika).
(2) Gifts made subsequent to the marriage.
(3) Sulka or the gratuity for which a girl is given in marriage or the bride’s price.
(4) Gifts from sons and relations.
The second kind of Stridhan has been explained by Katyayana as those made after marriage
by the relatives of her parents and the husband (anwadheyaka).
Katyayana’s definition of adhyagni gifts before the (nuptial fire) and that of
adhyavahanika (gifts as the bridal possession), it appears, are wide enough to include gifts
from strangers prior to coverture.
But he expressly excludes from the category of Stridhan, gifts made by strangers
during coverture, as also property ac-quired by a woman during coverature by mechanical
arts, which he as, will be subject to the husband’s dominion. The words “husband’s
dominion” evidently indicated the gains of arts and gifts from strangers either during
maidenhood or during widow-hood were not excluded from being Stridhan. According to
him the rest is pronounced to be Stridhana.
Thus according to the texts, expression, “Stridhan” was not used in its etymological
sense of “female’s property” and its only gifts obtained by a woman from her relations and
her ornaments and apparel which constitute her stridhana and the only sorts of gifts from
strangers which come under that denomination are presents before the nuptial fire and those
made at the bridal pro-cession. Bur gifts did not obtain from strangers at any other time nor
do her acquisitions by labour and skill constitute her Stridhana.
Vijnaneshwar, the author of Mitaskhara, in his commentary says:
“That which was given by the father, by the mother, by the husband or by the brother;
and that which was presented by the maternal uncles and the rest at the time of wedding
before the nuptial fire; and a gift on a second marriage or gratuity on ac-count of
supersession; and, as indicated by the word adya (and the rest) property obtained by.
(1) Inheritance (2) Purchase,(3) Position, (4) Seizure, e.g., adverse possession, (5)
Finding,
Judicial trend towards Stridhan:
In Pratibha Rani v. Suraj Kumar , the Supreme Court observed that Pratibha Rani was
tormented and denied stridhana by her in-laws. Pratibha Rani's parents had fulfilled the
demands of her in-laws by giving gold ornaments, Rs 60,000 cash and other items to her
husband's family. Few days after marriage, her in-laws started harassing her for dowry and
kicked her out of the house along with her two minor children without providing any money
for their survival. She had lodged two complaints against her husband and in-laws under
Section 125 of the Code of Criminal Procedure, 1973.
The lower court favored her in the judgment but the High court reversed the
judgment. Later, the apex court gave the judgment in her favor. The Supreme Court said that
the joint holding of a stridhana property by husband does not constitute any co-ownership.
The Court further said that a woman can file a suit against her husband if he denies returning
stridhana property under Section 14 of the Hindu Succession Act, 1956, as well as under
Section 27 of the Hindu Marriage Act, 1955. The Pratibha Rani case is the only remarkable
judgment which discusses the concept of stridhana and the applicability of Section 405 of the
Indian Penal Code, 1860.
In the case of Bhai Sher Jang Singh v. Smt. Virinder Kaur , Punjab & Haryana High
Court stated that if a woman claims property, ornaments, money, etc. which were given to her
at the time of marriage, then the husband and his family members are bound to return back
such property. If they deny to return back the property, then they will have to face strict
punishment. The Court held that Bhai Sher Jang Singh and his family had committed an
offense under Section 406 for committing criminal breach of trust as they had dishonestly
misappropriated the ornaments which were the stridhana that Virinder had given to her
husband for safe-keeping.
In Santosh v. Saarswathibai , the ambit of Section 14(1) of HSA was expanded to
include not only the land which is in the possession of the Hindu female, but also the land
over which she has the right to possess.
Conclusion:
The enactment of the Hindu Succession Act is a welcome step towards strengthening
the property rights of Hindu women. As a part of this Act, women are given certain privileges
that have been denying them for decades. It is also a colossal step in the defense of women's
rights, as it has abolished a woman's disability to gain and keep land as its absolute owner.
Section 14 of the Hindu Succession Act, 1956 has definitely been a safety guard for the
women especially the Hindu women. It has provided women with those rights, which were
denied to her for centuries.
This section removes the disability of a female to acquire and hold property as an
absolute owner and to convert any estate already held by a woman on the date of
commencement of this act as a limited owner, into an absolute estate. In case of her death
intestate, she becomes a fresh stock of descent and the property devolves by succession on
her own heirs.
Gifts
Introduction
Gifts consist in the relinquishment (without consideration) of one’s own right (in property)
and the creation of the right of another. A gift is completed only on the other’s acceptance of
the gift.
What property may be gifted?  Separate or self-acquired property whether governed by Mitakshara
or Dayabhaga.  All property whether separate or joint under the Dayabhaga law all ancestral
property
in the hands of a sole surviving coparcener impartible property
 impartible property, unless there is special custom prohibiting its alienation or terms
of the tenure prohibiting its alienation
 stridhana property of a female which is a woman’s absolute property
 Small portions of property inherited by a widow
Movable property inherited or obtained by way of a share on partition by a widow under the
Mayukha and
Small portions of coparcenary property in the hands of a father
A gift under Hindu law need not be in writing. However, a gift under the law is not valid
unless it is accompanied by delivery of possession of the subject of the gift from the donor to
the donee.
However where physical possession cannot be delivered, it is enough to validate a gift if the
donor has done all that he could do to complete the gift so as to entitle the donee to obtain
possession.
Capacity to make a gift
Every Hindu Male or Female, who is not a minor and is of sound mind, can dispose of his
property by gift or Will. The donor must be a major within the meaning of Section 3 of the
Majority Act; if he is not, he cannot make a gift. A coparcener of Hindu joint family cannot
make a gift of his undivided interest without the consent of all the other coparceners.
However, he can make a Will of such property
Capacity of the donee to acquire:
A donee must be a person in actual existence or in contemplation of law when the gift or
bounty is to take effect. The donee may be a minor or an idiot or one incapable of inheriting
due to some per some personal disability.
Reservation of life interest. –
A gift of property is not invalid because the donor reserves the usufruct of the property to
himself for life.
Conditions restraining alienation or partition
Where property is given subject to a condition absolutely restraining the donee from
alienating it, or it is given to two or more persons subject to a condition restraining them from
restraining it, the condition is void, but the gift itself remains good.
Revocation of gift
A valid gift once maid cannot be revoked but a gift made with the intent to defeat or defraud
creditors is voidable at the option of the creditors.
Testamentary Succession
Testamentary Succession means succession of property by a WILL or TESTAMENT. As per
Hindu Law, any male or female can make a Will to transfer his or her property or assets to
anyone. The Will is treated as valid and enforceable by law.
An important point to note here is that the transfer of property happens as per
provisions mentioned in the Will and not as per the inheritance law. However, if the Will is
invalid or illegal then the transfer or devolution of property happens as per the law of
inheritance. Alternatively, Testamentary succession is also referred to as right of inheritance.
Proof of Death
Death must be proved in order to permit inheritance; the executor must ever precisely the
date and place of death to obtain confirmation, and must prove this if challenged under the
Registration of Births, Deaths and Marriages Act 1965 an extract from the Register of deaths
is sufficient evidence of the death, but is not conclusive proof.
Unworthy Heirs
An unworthy heir is a person who has killed another, from whom the killer would stand to
receive a right of succession. The unworthy heir will not be able to inherit from the estate if
they are proven guilty of either murder or culpable homicide in a court of law. The case of Re
Cripeen concerned a husband who, after killing his wife, was set to inherit her legacy which
he would in turn bequeath to his mistress. The wife’s family naturally objected and took the
case to court, where it was ruled that the husband would be said to predecease the wife.
Consequently her estate fell into intestacy and her family then succeeded her. The same shall
apply in cases where the accused has been convicted of culpable homicide, for in the case of
Smith Petitioner a wife was convicted of the culpable homicide of her husband, from whose
estate the court ruled she should not benefit.
Common Terms related to Testamentary Succession under Hindu Law
It is important to understand the frequently used terms that might sound complicated but are
easy to interpret. They are:  Will – A legal declaration created by a person expressing clear intention
or wish with
regards to how his or her property and assets Will be transferred after death.  Testator – A person
who creates his or her Will.  Executor – A person appointed by the Testator for executing the Will.
 Administrator – A person appointed by the Court for executing the Will.  Attestation of Will – It
is the process of signing the Will by two witnesses to verify
the signatures of the executant.
 Codicil – A legal document made by Testator and signed by two witnesses for making
minor changes in the Will that has already been executed.  Probate – It is a documentary evidence of
the appointment of the Executor and
establishes the validity of the Will.  Letter of Administration – A certificate granted by the Court for
appointing an
Administrator of the Will.
Why is having a Will Important?
Each person wishes that his legal heirs stay a part of the cohesive family even after his or her
death and that there are no fights over property matters. After all, fair division of property is a
sensitive matter. In today’s times, if it is done properly, it can make long lasting relationships
and if done otherwise, it breaks relations forever.
It is for this purpose, making a fair Will comes very handy. The testator must clearly
document his or her desires with respect to the assets that his legal heirs would carry out after
his or her death. The Will must clearly state how the testator's property Will be transferred, to
whom it Will be transferred, how much share of property Will be transferred to different heirs
and so on.
Generally, a very common question arises here as to what happens if a person dies without
leaving a Will behind? In such cases, the division and transfer of property happens by way of
law. This is called intestate succession