1

USHA JAGANATH LAW

ACADEMY
Registered office: No. 32, Narmadha Nathi Street,

Mahatma Gandhi Nagar, Madurai – 625 014.

Ph: 9994449004, 9994449001. Email:

jaganathassociates@gmail.com

FAMILY LAW – II
(The Mohammedan Law, Christian Law &
The Indian Succession Act, 1925)
(NEW BATCH)

BY

P. Jaganathan, MA., MBA., MMM., ML., (Contracts).,

ML.(Admn., & Lab. Laws).,

(Gold Medalist, & University Rank Holder in Law for all the
three years of Law degree Course)

Usha Jaganathan,M.A., M.A., ML.,

J.P. Arjun, M.A., M.B.A., LL.M.,

Advocates
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FAMILY LAW – II
(The Mohammedan Law, Christian Law &
The Indian Succession Act, 1925)
(NEW BATCH)
(FOR DEC/JAN 2024 LL.B., EXAMINATIONS)

MOST IMPORTANT AND MOST EXPECTED CHAPTERS

AND QUESTIONS -SIMPLE LANGUAGE

1. SOURCES OF MOHAMMADEN LAW (Quron)

MODEL QUESTIONS

1. Explain the sources of Mohammadan law.

2. Explain the judicial application of classical sources of
Mohammadan law in India.
3. Write Short Notes on: a. Quron b.Custom c. Ijmaas d.
Sunna e. Qiyas f. Imamat g. Taqlid.

Answer

A.CLASSICAL SOURCES OF MOHAMMEDAN LAW

There are four main classical sources of Mohammedan

law.

These are:-

I. Quron or the Holy Kuran:

1. The Quron is the religious book of the Muslims. It is

the primary source of Islam.

2. It contains 6000 verses (sentences) arranged in order.

These verses are given by the Angel Gabriel to the
Prophet Mohammed.
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3. After the death of the Prophet, the verses were

grouped and given to the world by Phophet’s
assistant Abu Baker.

4. The verses of the Quron deal with legal matters like

inheritance, divorce, guardianship, etc.,

5. Quron is the VOICE of God and it was prepared after

the death of the Prophet.

II. Sunna (Traditions):

It contains the USAGE of the Prophet. It deals with the

principles of Islamic religion.

3.Ijmaas:

It is the SIMILAR thinking of of the Muslim religious

leaders.
If the Ijmas is not against Quron or the Sunna, then it is
valid.

4.Qiyas:

It is made by comparing the above three sources. The

Quron, Sunna, and Ijmaa were compared and a new law
was made.

B. CUSTOM IN MOHAMMEDAN LAW

Custom is not a source of Mohammedan law. Since

Hindus came to Muslim religion, custom also became a
source of Mohammedan law.

C. SOURCES OF MUSLIM LAW IN INDIA

1. The following are the sources of Mohammedan Law.

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a.Musalman Wakf Validating Act, 1964.

b.Muslims Personal law (Shariat) Application Act,

1937.
c.Dissolution of Muslim Marriage Act, 1939.

2. The judgements of Supreme Courts and High Courts.

3. Mohammedan law books written by religious leaders.

4. In Shah Banoo’s case, the Supreme Court held that

the Mohammedan law can be altered, if it is not legal.



2. ESSENTIALS OF MOHAMMADEN LAW

OF MARRIAGE (Nikkah or Shadhi)
(Civil contract)(Muta marriage)
(Irregular-fasid)(Void-batil marriage) (Iddat)

MODEL QUESTIONS
1. “According to Mohammaden law, marriage is a civil
contract” Comment.
2. What are the essentials of valid ‘Nikka’ in
Mohammaden Law?
3. What is a meant by Batil, Fasid and Muta marriage in
Mohammaden Law?
4. What are void and irregular marriages in Mohamaden
law?
5. Define Nikkash. Distinguish between valid, irregular
and void marriages under the Mohammedan law.
6. Write short note on: a) ‘Nikka’ b) Batil c) Fasid d)
Muta marriage e) Option of Puberty (Khyar-ul- bulugh

Answer

A. INTRODUCTION
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According to Mohammaden law, the Mohammedan

marriage is a civil contract. So, all the essentials of a valid
contract are required for Mohammaden marriage.
15 years of age is necessary for puberty. Puberty is the
eligibility for Mohammedan marriage.

The money value of Mohammaden marriage is a called

“Dower”. It is amount the wife receives from the husband
at the time of divorce by husband or death of husband.

B. ESSENTIALS OF A VALID MOHAMMEDAN MARRIAGE

1. The parties to the marriage should have reached

puberty.

2. The parties should be of sound mind.

3. There must be an offer and acceptance at a single

meeting. .

4. The parties to the marriage should not be within the

prohibited relationship. Mother and son, grand
mother and grandson, brother and sister, uncle and
niece etc.,

5. A man cannot marry relationship by affinity. They are

ascendants and descendants of his wife.

6. There are some temporary disqualifications. As long

as such disqualifications exist, the marriage between
the parties cannot take place.

For e.g., a Mohammaden can have a maximum of

four wives at a time. He cannot marry a fifth wife
without divorcing any one of the four wives.
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7. If the Mohammaden man has already a wife in the

relations of bride’s sister, bride’s aunt or bride’s
niece, then only if the first wife is divorced, the new
bride can be married.

8. There can be no marriage between a non-

Mohammaden male and a Mohammaden female. He
must convert himself to Islam and only then, he can
marry a Mohammaden female.

9. Under Sunni Law, a male Muslim can marry a

Christian woman or a Shia Muslim girl, but cannot
marry a Hindu woman. But, in Shia Law, a male
Muslim can marry only a Muslim woman.

C. ‘BATIL’ (Void) and ‘FASID’ (Irregular)

Invalid marriage under Mahomedan law are divided

into Batil and Fasid.

Void marriages are called ‘Batil’. Irregular marriages are

called ‘Fasid’.

Batil:

It is totally a void marriage. There is actually no

marriage. The children of such marriages are illegitimate.

It arises under the following circumstances:

1. When the parties to the marriage have not attained

the age of 15, i.e. puberty, then the marriage is void.

2. When the parties to the marriage are in prohibited

relationship like mother and son, brother and sister
or wife’s mother or wife’s daughter.

Fasid:
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The marriage is not totally invalid. Due to the

presence of some temporary disqualification, the marriage
is only irregular. After the removal of such
disqualification, the marriage becomes valid.

D. MUTA MARRIAGE

It means a temporary marriage. The marriage is for a

fixed period.

Essentials:

1. The amount of dower must be fixed. If it is not fixed,

then the marriage becomes void.

2. If the marriage is consummated ( if there is physical

relationship between husband and wife), half the
amount of the dower should be paid to the wife.

3. The period of living together must be fixed.

4. The Muta marriage comes to an end when the fixed

period is over.

5. Divorce cannot take place in Muta marriage, but the

husband by paying the full amount of dower, can put
an end to the marriage even before the expiry of the
term.

6. The children born out of Muta marriage are

legitimate. They can inherit the property of the
parents.

E. IDDAT
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1. Iddat is four months and ten days from the date of

the death of the former husband. There can not be
any marriage with the widow during this period.

2. If she is pregnant at the time of her husband’s death,

Iddat continues till delivery of child.

3. Iddat need not be observed by a woman where

marriage is not consummated.( Physical relationship)


3. DIVORCE (TALAQ) OR TALAK (LIA)
(Talaq –ul-sunnat) (Zihar)
(Khula) (Mubaraat) (Dissolution of marriage)

MODEL QUESTIONS

1. Define ‘Talaq’ what are the different forms of ‘Talak’?

2. ‘Talaq is an arbitrary power of the husband to dissolve
the marriage’ Comment.
3. Write Short Notes On: (a) TalakHasan or Khula,
(b) TalakAhasan or Mubaraat, (c) Talak-ul-biddat
(Irrevocable divorce), (d) Talak- ul- Bain, (e) Divorce by
mutual consent between husband and wife [Khula],
(f) Mubaraat

Answer

A. INTRODUCTION

Talaq or divorce is the power of the husband to

dissolve the marriage at any time without going to the
Court and without assigning any reason.

This is an absolute power of the husband under

Mohamaden law.

B. HUSBAND DIVORCING HIS WIFE

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There are SIX types of divorce of wife by husband.

1. Talak Ahasan or Khula (Talak for single time)

The husband pronounces ‘Talak’ during a tuhr. “Tuhr”

is the interval between two menstruations.

2. Talak hasan or Mubaraat (Talak for three times):

Talak’ is pronounced during a tuhr. In the next tuhr,

the second pronouncement is made. In the third tuhr,
third pronouncement is made.

3. Talak-ul-biddat (Irrevocable divorce):

Once the Talaq is pronounced by the husband, then

immediately the marriage gets dissolved.

4. Talak-ul-Bain:

The husband pronounces Talak three times.

5. Divorce by mutual consent [Khula]:

It is a type of divorce by mutual consent.

6. Mubaraat:

The husband can offer to release the wife. If the wife

offers to release him, then she loses her dower amount.

C. DISSOLUTION OF MUSLIMS MARRIAGE ACT, 1939

It provides new Grounds to wife only.

1. Husband absconded and not heard of for 4 years.

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2. If the husband fails to provide the wife with

maintenance for 2 years.

3. Husband sentenced for 7 years imprisonment.

4. Husband failing to perform marital duties for 3 years

without reasonable cause.

5. Insanity of husband for 2 years or suffering from

leprosy or veneral disease.
6. For legal cruelty upon the wife, e.g. beating, ill
treatment, forcing her to immorality etc, are
instances of cruelty.

Recently the Supreme Court has held that Talak is

discriminatory and against Equality before Law and hence
invalid.



4. DOWER (Mahr)

UNIVERSITY QUESTIONS

1. ‘Dower is a mark of respect in which the wife is held by

the husband’ - Comment.
2. Distinguish ‘Prompt dower’ and ‘Deferred dower’.
3. What is a meant byMahr? Whether a deferred Mahrcan
be enforced after the divorce or death of the husband
by the wife?

Answer

Dower is a mark of respect in which the husband

holds the wife.
TYPES OF DOWER

Dower may be divided into two types namely.

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1. Prompt dower
2. Deferred dower

1. Prompt dower:

i. This is payable on demand by the wife, if it is not

stated at the time of the marriage.

ii. The entire dower is considered as prompt dower in

the Shia law whereas half dower as prompt dower and
half as deferred dower in Sunni or Hanafi law.

Musthan Sahib (vs) Assam Bibi

It was held that when the wife makes a demand for

prompt dower, it becomes a debt and as such the wife can
sue for the recovery of the debt within a period of three
years. If she fails to do so, the debt becomes barred by
limitation.

If no demand is made by the wife, on the death of the

husband or divorce, the dower becomes a debt which is
enforceable within three years, immediately after the
husband’s death or divorce from him.

2. Deferred Dower:

1. Deferred dower is payable only on the dissolution of

the marriage or on the death of the husband.

2. The husband enjoys an absolute and arbitrary power

of divorcing the wife at any time without assigning
any reasons whatsoever. So, the deferred dower acts
as a security to the wife and it is usually very high.

3. If there is no divorce, then the deferred dower

becomes payable only on the death of the husband.

4. Immediately on the death of the husband, the

deferred dower becomes a debt, which is recoverable
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with in a period of three years subject to the law of

limitation.

5. If the wife is in possession of her deceased husband’s

property, then she can claim the debt from the
income of her deceased husband’s property.

C. ENFORCEMENT OF DOWER

The following are the remedies available for a

divorced woman or widow to enforce the dower debt:

1. Enforcement of dower in case of divorce:

i. If the husband is alive and if the wife is not yet

divorced, the prompt dower is immediately payable
on demand by the wife.

ii. However, the deferred dower becomes payable only

after divorce by the husband. The divorce should not
be by the way of Khula (divorce by waiving the dower
amount) or Mubarat (divorce by mutual consent).

iii. The dower debt is an unsecured debt and so, it is an

actionable claim and ranks rateably with the other
unsecured debts of the deceased husband. The
limitation period is three years as in case of a general
debt.

iv. If the wife is in possession of her husband’s property

after the divorce, she can utilise the property to
satisfy her debt. There is no limitation period for this.

v. If the husband, after divorcing the wife, has several

unsecured creditors, the secured wife stands in a
priority position to other creditors. She can claim her
dower amount.
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vi. If there is no divorce, only the general creditors have

priority over the wife.

2. Enforcement of dower after death (wife’s lien for

dower):

i. When there is no divorce, the deferred dower

becomes payable only after the husband’s death.

ii. If the prompt dower is not demanded by the wife

during her husband’s lifetime, then it becomes
payable only after her husband’s death, and in this
aspect, prompt dower is deemed to be deferred
dower.

iii. If she is in possession of her husband’s property in

lien of her dower debt, she can retain possession
against the other heirs and creditors of her husband.

iv. A possessory lien enables the widow to possess

without going to the Court. On the death of the
widow, the possessory lien is inherited by her heirs.



5. LAW OF MAINTENANCE
(NAFKAH) (PARENTAL RIGHTS)

UNIVERSITY QUESTIONS

1. “The maintenance of wife and children is a primary

obligation under Muslim law”. Explain and state the
conditions subject to the satisfaction of maintenance

which can be enforced in a Court of law.

2. State the provisions of Muslim law relating to
maintenance of wife and children.
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3. Write short note on: a) Maintenance of Wife

b) Maintenance of Children c) Maintenance of Poor
Relatives d) Maintenance of Aged Parents

Answer

A. INTRODUCTION

In legal sense, maintenance means three things:

1. Food
2. Clothing
3. Lodging (House)

B. DUTY OF MAINTENANCE

A person is liable under three heads:

1. Liability for wife
2. Liability for relatives
3. Maintenance of Children

1. The maintenance of wife and children is an important

duty of a person under Muslim law.

2. A Muslim should provide maintenance to their elders

and youngsters.

3. Only persons who are poor are entitled to

maintenance

4. The right of maintenance changes according to

various conditions.

C. MAINTENANCE OF WIFE

1. The wife has an absolute right to maintenance. The

husband is bound to maintain her.
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2. The husband is bound to maintain his wife, if she has

attained puberty.

3. If the husband refuses to maintain his wife, she may

file a case for maintenance.

D. MAINTENANCE OF WIFE DURING IDDAT

1. Iddat is a period between the death or divorce and

starting of another life by the woman.

2. She is alone and does not marry another person

during such period.

3. A woman is entitled to maintenance during the period

of iddat.

E. NO MAINTENANCE TO WIFE

The wife is not entitled to maintenance under the

following circumstances:

1. If the wife refuses to live with the husband

unreasonably.

2. When she is not obedient and rudely behaves.

3. Due to her own fault, she separates herself from the

husband.

4. If she becomes a widow.

5. In the case of an illegal marriage.

6. When the wife is very young and not fit for sexual
intercourse.
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F. MAINTENANCE UNDER AGREEMENT

If there is an agreement between the husband and

wife, then she can claim maintenance from her husband.

Mohammaden Ahmed Khan Vs. ShahBano Begum

(Shah Bano’s case)

The Supreme Court held that a wife can claim

maintenance in addition to dower.

The Parliament overruled the above Supreme Court

judgement by passing Muslim Women (Protection of
Rights)on Divorce Act, 1986.

According to this Act, the husband need not pay

maintenance, if the dower is paid in full.

G. MAINTENANCE OF CHILDREN (SON AND DAUGHTER)

1. A father should maintain his sons till they are minors

and to maintain his daughters till they are married.

2. If the child has personal source of income, he cannot

claim maintenance from his father.

3. If the father is very poor and unable to maintain the

children, the mother must maintain them, if she has
income.

4. If father and mother are poor, then the grand father

(maternal or paternal) has to maintain the children.

5. If a daughter refuses to live with father, she cannot

claim maintenance.


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6. WAKF AND TYPES OF WAKF (MUTAWALLI -

POWERS AND DUTIES)(THE WAKF VALIDATING ACT,
1913)

UNIVERSITY QUESTIONS

1. a) Define “Wakf” and point out the essentials of

“Wakf”
b) What are the changes brought about by the Wakf
Act of 1913.
2. Discuss the salient features of the Mussalman Wakf
Validating Act, 1913. Discuss the circumstance,
which led to the passing of the Act.
3. What is a Wakfalal-aulad (family wakf)? Do they
offend the rule against perpetuity?
4. Short Notes on: Wakf-alal-aulad, Sajjadanashin,
Mosque.
5. Who is a Mutawalli? Examine the scope of his
powers over Wakf property.

Answer

A. INTRODUCTION

1. ‘Wakf’ means giving of property to the ownership of

God for religious or charitable ( free) purposes.

2. The person who gives the property is called the

Wakif.

3. The Wakif may appoint a Manager to administrate the

property. Such person is called Mutawalli.

B. CREATION OF WAKF

Creation of Wakf is by the following methods-

a. By giving
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b. By a will.

C. ESSENTIALS OF VALID WAKF

1. The Wakif should be the owner of giving property.

2. The giving of property should be for religious, or

charitable purposes. Eg., giving property to poor, etc.

3. The property of Wakf must be permanent.

4. It should not be conditional. . If it is conditional, it is

void.

5. The Wakf may be created orally or in writing. If the

value of the Wakf is above Rs. 100/- it must be
written and registered. The written deed is known as
Wakfnama.

D. PROPERTIES OF WAKF

Any movable or immovable property can be given to

Wakf (E.g. Cash, Government promissory note, Share of a
company etc.,).
The property must be certain and specified.

E. RIGHTS OF WAKIF (creator of wakf)

1. The Wakif can pay his debts or pay for his own
maintenance.

2. A Wakif cannot take back any property given to the

Wakf.

3. He cannot change the purpose of the Wakf.

F. BENEFICIARIES OF WAKF

1. A Wakf can be created for the benefit of the following:

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a.For the rich or poor

b.For the poor only.
c.For the rich in the beginning, but finally for the
poor.

2. Wakf may be for all religious purposes.

3. Any non- Muslim can also be the beneficiary,

G. OFFICE OF MUTAWALLI

1. Wakf is managed by a manager called Mutawalli.

2. The Mutawalli should be a major and of sound mind.

3. The Mutawalli does not own Wakf property. He is only

a Manager and Supervisor.

4. The salary of a Mutawalli is fixed in the Wakfnama. If

it is not specified, the Court can fix his salary.

5. The property of a Wakf is not liable for attachment by

court order.

H. DUTIES OF MUTAWALLI

1. The Mutawalli protects the Wakf property, and must

do his duties with care and honesty.

2. He cannot transfer the Wakf property.

3. A Mutawalli cannot create a permanent lease of the

Wakf property.

4. A Mutawalli cannot transfer his office to another

person.
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5. Mutawalli should not misuse the Wakf property.

6. The Mutawalli must obtain the Court’s permission for

transferring the Wakf property.

I. POWERS OF MUTAWALLI

1. He can grant a lease not more than 3 years. If it is a

non-agricultural property, he can grant lease for not
more than one year.

2. The power to nominate the succeeding Mutawalli is

given to the first Mutawalli.

3. He can file a case for a declaration that he is the

Mutawalli.

J. MUSSALMAN WAKF VALIDATING ACT, 1913

Due to the protest made by the Muslims, the

Mussalman Wakf Validating Act, 1913 was passed.

According to it, Wakf can be created for the following

purposes also.

1. For the maintenance and support of his family or

children, and
2. It can also be created for his maintenance during his
lifetime or for the payment of his debts.



7. DIVISION OF LEGAL HEIRS IN HANAFI LAW

(SUNNI LAW) AND THEIR SHARES

MODEL QUESTIONS
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1. Discuss the rights of the father, mother and true

grandfather to inherit the property under Hanafi law.
2. Critically examine the rights of inheritance of the
three principal classes of heirs under Sunni law.
3. State the rules relating to succession among blood
relationship under Hanafi law.

Answer

A. INTRODUCTION

The principal heirs are related to the deceased by

marriage and blood.

The legal heirs are divided into three categories.

1. Sharers 2. Residuaries 3. Distant Kindred

The inheritance takes place only in the absence of a

will written by the deceased. This is known as intestate
Succession.

B. DIVISION OF LEGAL HEIRS

I. SHARERS

Sharers include husband, wife, father, mother,

daughter, full brother, full sister, half brother, uterine
brother, consanguine brother, half sister, true grandfather
and true grandmother and son’s daughter.
1. Husband

1. If the wife dies intestate, the husband becomes a

sharer.

2. Under Mohammaden Law, there cannot be more than

one husband.

3. In the presence of child or son’s child, his share is

1/4.
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4. In the absence of child or son’s child, his share is 1/2.

2. Wife

1. If the husband dies intestate, the wife becomes a

sharer.

2. If there are more than one wife, then the allotted

share is divided equally among the widows.

3. In the presence of child or son’s child, her share is

1/8.

4. In the absence of child or son’s child, her share is 1/4.

3. Father

1. In the presence of child or son’s child, his share is

1/6.

2. In the absence of child or son’s child, he becomes a

residuary.

4. Mother

1. In the presence of child or son’s child, her share is

1/6.

2. In the absence of child or son’s child, but in presence

of two brothers or two sisters or one brother and one
sister, her share is 1/8.

3. If there is father, husband or wife, 1/3rd after

deducting husbands or wife’s share.
5. Daughter

1. In the presence of a son, she becomes a residuary

and her share is in the ratio of 1:2 i.e. half of the
sons, share.
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2. In the absence of son, her share becomes 1/2.

3. If there are two or more daughters, then their share

is 2/3 equally divided among themselves.

6. Full Brother

1. He is excluded in the presence of child, sons child,

father or true grandfather (both maternal and
paternal).

2. In the absence of the above persons, his share is 1/6.

3. If there are two or more brothers, then their share is

1/3 divided equally among themselves.

4. In the presence of sister, he becomes a residuary and

his share is in the ratio of 2:1.

7. Full Sister

1. She is excluded in the presence of child, son’s child,

father or true grandfather.

2. In the absence of the above persons and brother, her

share is 1/2.

3. If there are two or more sisters, then their share is

2/3 divided equally among themselves.

4. In the presence of a brother, she becomes a residuary

and she takes the property with the brother in the
ratio of 1:2.

8. Half Brother

1. He is excluded in the presence of full brother and full

sister.
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2. In the absence of the above persons, she gets all the

rights of full brother.

9. Half Sister

1. She is excluded in the presence of a full brother and

full sister.

2. In the absence of the above persons, she gets all the

rights of full sister.

10. True Grand Father (Father’s Father)

1. He is excluded is the presence of father or nearer true

grandfather.

2. In the absence of the above persons, he occupies the

position of the father.

11. True Grand Mother

She is divided into two types:

a. Maternal grand mother.

b. Paternal grand mother.

a. Maternal Grand Mother

1. She is excluded in the presence of mother, nearer

true grand mother and father.

2. In the absence of the above persons, his share is 1/6.

b. Paternal grand mother

1. She is excluded in the presence of mother, nearer

true grand mother and father.
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2. In the absence of the above persons, her share is 1/6.

12. Son’s Daughter (and son’s son’s daughter)

1. She is excluded in the presence of son.

2. In the presence of son, she becomes residuary.

3. In the presence of the daughter, or nearer son’s

daughter, her share is 1/6.

4. If there are two or more daughters, she is excluded.

5. In the absence of the above persons, her share is 1/2.

6. If there are two or more son’s daughters, then their

share is 1/3 divided equally among themselves.

7. When father and mother are alone left, their share is

1/6 mother and 5/6 father.

II. RESIDUARIES

i. Son, daughter and father are residuaries. They get as

residuaries, after the sharers.

ii. So, if there is no sharer, the whole property is

converted as residuary.

iii. In the order of succession, the Residuaries group is as

follows:

a. Descendants (Son, Son’s Son)

b. Ascendants (Father, true grandfather)

c. Descendants of father (Full brother, Full sister.

Consanguine brother, Consanguine sister, full
brother’s son, Consanguine brother’s son.

d. Descendants of true grandfather, how high so ever

(Full paternal uncle, Consanguine paternal uncle, Full
 26

paternal uncle’s son, Consanguine paternal uncle’s

son, Full paternal uncle’s son’s son, Consanguine
paternal uncle’s son’s son).

1. Son

i. Son is always a residuary.

ii. In the presence of daughter, he takes the share in the

ratio of 2:1.

iii. The son’s son, in the absence of son, takes his place
among the sharers.

2. Daughter

In the presence of son, daughter becomes a

residuary. She takes the property in the ratio of 1:2.

3. Father

In the absence of child, or son’s child, the father

becomes the residuary and he takes the remaining
property left out, after the sharers have taken their
shares.

III. DISTANT KINDRED

a. Distant kindred are the relations by blood. They are

neither Sharers nor Residuaries.

b. They succeed either in the absence of both the

Sharers and the Residuaries or when there are no
Residuaries and the only Sharer is the husband or
wife.
c. Similarly, if the surviving relations belong to the class
of distant kindred, the nearer relation excludes the
more remote.
 27

They are divided into four Classes for determining

their order of succession:

1. Each class mentioned above excludes the Class

coming later (E.g. Class I excludes II, etc)

2. In each class, the nearer in degree excludes the

remoter ones.

3. In Class II, if claimants are of the same degree,

relationship through sharers exclude those who are
not so.

4. In Class III, Children of residuaries are preferred to

those of distant kindred. Descendant of full brothers
exclude those



8. SUCCESSION CERTIFICATE
(Sec. 370 to 390)

UNIVERSITY QUESTIONS

1. What is Succession Certificate? Is it necessary if the

deceased was a Hindu? When can it be revoked?

2. Describe the procedure for obtaining a Succession

Certificate. Can a ‘Succession Certificate’ be revoked
and if so, under what circumstances?

3. Explain to whom obtaining of “Succession Certificate”,

is made compulsory under the Indian Succession Act.
What are the legal effects of the grant of Succession
Certificate?

Answer

A. INTRODUCTION
 28

1. A Succession Certificate is a certificate given by the

civil court to the legal heirs to claim any debt or
security.

2. The Succession Certificate helps to the collect the

debts on succession.

3. Generally, after the death of the elder, there may be

fight among the relatives for the collection of the
debts.

4. The Succession Certificate gives protection to the

debtors of the deceased against the multiple claims
of the debt by different relatives.

5. The Court grants the Succession Certificate to the

right person of the debts given by the deceased
person.

B. EFFECT OF SUCCESSION CERTIFICATE

1. The Succession Certificate gives protection to the

debtor from many claims from different legal heirs.

2. After payment to the succession certificate holder,

the debtor is safe.

3. The holder of Succession Certificate is the legally

authorised person to collect the debts due to the
deceased.

C. GROUNDS FOR THE GRANT OF SUCCESSION

CERTIFICATE

1. In all cases where Probate or Letters Administration

is compulsory, a Succession Certificate is not granted.
 29

2. When the deceased person is an Indian Christian

dying without will, then Succession Certificate can be
granted.

3. When the deceased is a Hindu who has lost a will,

then Succession Certificate can be granted.

4. In case of joint family property, Succession Certificate

can be granted.

D. PROCEDURE ON APPLICATION

The District Judge follows the following procedure in

disposing of the application:

1. After the filing of application, the judge fixes a day

for hearing and sends notice to the parties.

2. He decides the right of the parties to the Certificate.

3. If he decides that the applicant has the right for the

Certificate, he orders for the grant of the certificate.

4. If there are more than one applicant for the

Certificate, the Judge may give the certificate to the
eligible applicant.

E. REVOCATION OF SUCCESSION CERTIFICATE

Under the following circumstances, a Succession

Certificate may be revoked:

1. If the proceedings to get the Certificate were

defective.

2. If the Certificate was got fraudulently by making false

information.
 30

3. If the Certificate has become useless due to

circumstances.


MOST IMPORTANT AND MOST EXPECTED SHORT NOTES
- SIMPLE LANGUAGE

SHORT NOTE NO – 1
EFFECT OF CONVERSION TO ISLAM AND OTHER
RELIGIONS

Mohammedan law applies to Mohammedans by birth

and Mohammedan by conversion.

Conversion to Islam may be done by a non muslim

who has attained majority and is of sound mind.

Apostacy means abandoning one’s religion.

There are two methods of conversion:

1. The person may just declare that he believes in the

oneness of God and the prophetic character of
Mohammed, or

2. He should go to a mosque and utter kalma (Lailaha-ill-

Allah-Muhammad-ur-Rasoolullah) before the person
who is well versed with the Islamic theology. He is
given a muslim name and then he may profess to be a
Mulsim.

APOSTACY IN MOHAMMEDAN LAW

(Conversion to Muslim law)

1. Conversion must be bonafide and the Court will not

permit any fraud upon the law by pretending to be a
convert to islam, in order to escape from the personal
law.
 31

2. Conversion by wife in order to separate from her

Hindu husband was also held to be a fraud upon the
law and invalid.

3. After conversion to Islam, the Mohammedan law

substitutes the original religion of the convert.

4. Apostacy does not have a retrospective effect; it has

an immediate and prospective effect.

5. Succession to the property of a convert is governed

by Muslim law.

EFFECT OF CONVERSION TO ISLAM ON MARITAL

RIGHTS

i. Conversion from Hindu to Islam:

(a) If a Hindu married woman converts to Islam, the

previous marriage does not come to an end. This is
because, both under the Hindu law and Mohammedan
law, a woman cannot marry again while her husband
is alive.

(b) If the converted married woman marries again, she is

punishable for bigamy under Sec. 494 I.P.C.

(c) Only on the death of her husband, the marriage

stands dissolved and she becomes free to marry a
Muslim husband.

(d) An Indian Christian domiciled in India and married to

an Indian Christian girl domiciled in India, embraces
Islamic faith, his contract of marriage with a
Mohammedan woman is valid though his first
marriage subsists.

ii. Conversion from Christianity to Islam:

 32

(a) Conversion in the case of a marriage of a christian

male with a Christian female does not dissolve the
marriage, because marriage by a muslim male with a
Christian female is permitted.

(b) On the other hand, if a Hindu married male converts

to Islam, it is doubtful whether he can marry again,
though under the Hindu Marriage Act, monogamy is
introduced and under the Mohammedan Law,
polygamy is permitted.

EFFECT OF CONVERSION TO ISLAM ON RIGHTS OF

INHERITANCE

When a Hindu gets converted to Islam, succession

and inheritance are governed by Mohammedan law except
if there is a custom to the contrary.

CONVERSION FROM ISLAM (APOSTACY)

(a) If a Mohammedan married male converts himself to

another religion, the marriage automatically comes to
an end and the wife can marry again without applying
to the Court for dissolution of marriage.

(b) If a Mohammedan wife converts herself to another

religion, the marriage does not come to an end. She
can marry only after obtaining dissolution of the
previous marriage under Sec.4 of the Dissolution of
Muslim Marriage Act, on some grounds like cruelty,
failure to maintain, etc.

(c) In the case of apostacy by guardian, the apostate

cannot act as a guardian and loses his right to
contract a minor’s marriage.


 33

SHORT NOTE NO – 2
SCHOOLS OF MOHAMMADEN LAW

The major divisions of Schools of Mohammedan law

are:

1. Sunni School 2. Shia School

1. Sunni School:

On the death of the Prophet, Mohammed Abubeker

was elected as the successor. Those who supported the
election were called Sunnies. They are predominant
among Muslims in India.

2. Shia School:

Those persons who did not support the election to fill

the vacancy of the Prophet were considered Shias. They
supported the succession to the office by inheritance and
not by election.

SUB SCHOOLS AMONG THE SUNNIES

1. The Hanafi School:

Founded in Kufa (now it is Iraq) by Imam Abu Hanafi

in the 8th century A.D. Two disciples by name Aba Yusuf
and Imam Mohammed were responsible for the growth of
the Hanafi school.

2. The Maliki School:

 34

Founded in Madina(now in Saudi Arabia) by Imam

Malik ibn Anasin the 8th century A.D. This school attached
importance to Ijmaa as a source of Mohammedan law.

3. The Shafei School:

Founded in Egypt by Imam Muhammad ibn Idrisash-

Shafe a pupil of Imam Malik ibn Anas in early years of the
9th century A.D.

4. The Hanbali School:

Founded in Baghdad (Now in Iraq) by Immam ibn

Hanbal (a pupil of Shafei) in the 9th century.

5. The Zaydi School:

Named after Imam Zaid.

6. The Jafari School (Ithna Ashari School):

Named after aforesaid Imam Zaid’s nephew Imam

Jafer. After the 11th Imam, his son at the age of 5, was
not seen after entering cave. He was the 12th Imam and
the followers of this School believed that the 12th Imam
would appear one day.

7. The Ismaili School (Fatimi):

Named after the aforesaid Imam Jafer saqiq’s elder

son Imam Ismail. The Ismailies are divided into eastern
ismailies (khojas) and western ismailies.

8. The Ibadi School:

 35

Developed by a section of the extinct kawariji and

now found mainly in the Sultanate of Oman.

SCHOOLS PREVALENT IN INDIA

In India, only four of the above-mentioned Schools of

Muslims prevail. They are:

1. The Hanafi School.

2. The Shafi School.
3. The Ithna Ashari (Jafari School)
4. The Ismaili (Fatimi School).



SHORT NOTE NO – 3
THE SHARIAT ACT, 1937

Before the enactment of the Shariat Act 1937,

different enactments were enforced in different parts of
India regulating the application of Muslim Law. Since
there were differences in the application of principles
between the different States, the Shariat Act, 1937 has
substituted all enactments thereby regulating the
application of Muslim Law in the different States of India.

This Act applies only when the person is a Muslim,

and is competent to contract within the meaning of
Section 11 of Indian Contract Act, 1872, and he should be
a resident of India.

This Act applies Muslim Personal Law in a number of

important matters, where parties are Muslims.

According to Section 2 of the Shariat Act, in spite of

the prevailing custom or usage, in all questions (except
questions relating to agricultural land) the rule of decision
 36

in cases where the parties are Muslims shall be the

Muslim personal Law (Shariat).

The scope and purpose of Sec. 2 is to abrogate (annul

or invalidate) custom and usage to the extent they have
displaced the rules of Muslim Law.

The following are the subjects expressly declared in

which Muslim personal Law (Shariat) shall be applied:
1. intestate succession,

2. special property of females including personal

property inherited or obtained under contract or gift
or any other provision of personal law of marriage,

3. dissolution of marriage,

4. maintenance,

5. dower,

6. guardianship,

7. gifts,

8. trust and trust properties and Waqfs (other than

charities and charitable institutions and charitable
and religious endowments)



SHORT NOTE NO – 4
ACKNOWLEDGEMENT OF PATERNITY
(Legitimacy of a child)

Adoption is unknown to Mohammaden law. The legal

effect of adoption in Hindu law is to legitimize the birth of
the child by the adopter.

The legitimacy of the child is brought by the theory of

acknowledgement of paternity in Mohammaden law. The
 37

illegitimate child can be made legitimate by the

acknowledgement of a man that he is the father of the
child.

ESSENTIALS FOR A VALID ACKNOWLEDGEMENT

1. The father should have treated the child as his

legitimate child.
2. Legitimacy must be legally possible. In other words,
the persons acknowledging the child must be capable
of marrying the mother of the child.

3. The acknowledgement of paternity becomes invalid if

the marriage is void or disproved.

4. The mother should not repudiate the

acknowledgement by the person acknowledging.

5. The acknowledger should be an adult and sane i.e.

capable of entering into a contract.

EFFECT OF ACKNOWLEDGEMENT

1. The effect of acknowledgement primarily creates a

presumption that the marriage is deemed to have
taken place in the absence of direct disproof.

2. The child becomes legitimate and gets all rights of

inheritance over the property of the man
acknowledging paternity.

DIFFERENCE BETWEEN ACKNOWLEDGEMENT AND

ADOPTION

i. Adoption:

1. The adoptee is a child of another person.

2. Motive of adoption may be for religious purposes or

spiritual purposes
 38

3. The adoptee gets transplanted into the adoptive

family from the natural family.

4. Natural descent of the adoptee and the adoptive

father is not considered.

5. The natural parents give their child as a gift to the

adoptive parents.

ii. Acknowledgement:

1. Acknowledgment proceeds on the basis of paternity.

2. No motive is present in Acknowledgement of

paternity.

3. No such change is possible in Acknowledgement.

4. There is actual descent of the acknowledgor in a legal

manner.

5. Acknowledgement is possible, only when the

paternity of the child is not able to be proved.



SHORT NOTE NO – 5
THE INDIAN DIVORCE ACT, 1869
(CHRISTIAN LAW)

The Divorce Act, 1869 is invoked to dissolve the

marriage between the parties professing Christian religion
(or one of the parties was a Christian when the petition
was filed) and who are domiciled in India, even if the
marriage was solemnized out of India.

GROUNDS FOR DISSOLUTION OF MARRIAGE (Sec. 10)

 39

Whether before or after the commencement of the

Indian Divorce (Amendment) Act, 2001, either the
husband or the wife may apply for divorce by presenting a
petition for divorce to the District Court.

The grounds of divorce are:

1. The respondent has committed adultery, or

2. The respondent has converted himself / herself to

another religion, or

3. The respondent has been suffering from an incurable

form of unsoundness of mind for 2 years continuously
immediately preceding the presentation of the
petition of divorce, or

4. The respondent has been suffering from a virulent

and incurable form of leprosy for 2 years continuously
immediately preceding the presentation of the
petition of divorce, or

5. The respondent has been suffering from a venereal

disease in a communicable form for 2 years
continuously immediately preceding the presentation
of the petition of divorce, or

6. If the respondent has not been heard of as being alive

for a period of 7 years or more by people who might
have known naturally if he/she had been alive, or

7. If the respondent has wilfully refused to consummate

the marriage and so, the marriage has not been
consummated, or

8. The respondent has deserted the petitioner for two

years immediately preceding the presentation of the
petition, or
 40

9. The respondent has treated the petitioner with so

much of cruelty that the petitioner has been subject
to reasonable apprehension in mind that it would be
harmful or injurious for the petitioner to live with the
respondent.

10. Special ground for woman: A wife may present a

petition for dissolution of marriage if the husband has
been guilty of rape, sodomy or bestiality since
solemnization of the marriage.

DISSOLUTION OF MARRIAGE BY MUTUAL CONSENT

(Sec.10 A)

1. A petition for dissolution of marriage may be

presented to the District Court by both the parties to
a marriage together.

2. The ground of divorce is that they have been living

separately for two years or more and they have not
been able to live together and they have mutually
agreed that the marriage should be dissolved.

3. From 6 months of presentation of the petition and

before 18 months from the date of application of
petition, after inquiry, if the Court is satisfied, then it
passes a decree declaring the marriage to be
dissolved with effect from the date of decree.

NULLITY OF MARRIAGE (Sec. 18)

A husband or wife may present a petition to the

District Court praying that his/her marriage may be
declared null and void.

A marriage may be nullified on the following grounds:

1. The respondent had been impotent at the time of the

marriage and at the time of institution of the suit.
 41

2. The petitioner and respondent are in prohibited

degrees of consanguinity or affinity.

3. Either the petitioner or respondent was a lunatic or

idiot at the time of the marriage.

4. The former wife/husband of the petitioner or

respondent was living at the time of the marriage and
the marriage with such former husband or wife was
then in force. (Bigamy)

CUSTODY OF CHILDREN (Sec. 41)

1. In any suit for obtaining a judicial separation, a

dissolution of marriage or decree of nullity of
marriage, the Court may from time to time, before
making its decree, make interim orders, with respect
to the custody, maintenance and education of the
minor children.

2. The application with respect to the maintenance and

education of the minor children pending the suit, is
disposed of within sixty daysfrom the date of service
of notice on respondent.



SHORT NOTE NO - 6
GIFT OR HIBA
(Hiba-bil-iwaz and Hiba ba shartul-iwaz) (Mushaa)

In Muslim law, a gift satisfying certain legal

requirements is called Hiba.

A. ESSENTIALS OF HIBA

1. It must be free or gratuitous.

 42

2. There must be immediate delivery of possession by

one person to another.
3. The transfer must be unconditional.
4. The property must be in existence.
5. A future gift is not allowed and it is valid only as a
will.
6. Any restraint against alienation in a Hiba is void and
the gift takes effect unconditionally.
B. SUBJECT MATTER OF HIBA

Regarding the subject matter of gift, the

Mohammedan law recognises the difference between the
two elements of a property namely (1) Corpus and (2)
Usufruct.

Corpus means the absolute right of ownership over

the property, which is heritable and is unlimited in point
of time. Gift of corpus of property is called Hiba. Any
condition which affects from absolute dominion over the
subject of gift is void.

Usufruct means the right of a person to use and enjoy

the property. This right is limited in point of time and not
heritable. Gift of usufruct of property is called ariya.

C. CAPACITY TO MAKE HIBA

1. The donor must be a major and of sound mind.

2. The donor must be the owner of the property, which

is the subject of Hiba.

3. There should be bonafide intention of the owner to

transfer property and it must be made by his free
consent. If a gift is made under undue influence, then
it is void.

4. If a Hiba is made with a clear intention to defraud the

creditors, then it is void.
 43

D. CAPACITY TO RECEIVE HIBA

(CAPACITY OF THE DONEE)

1. Hiba can be made in favour of natural persons,

artificial persons, non Muslims - their future heirs,
minors, insane persons, unmarried, divorced or
widowed women.

2. Hiba cannot be lawfully made in favour of an unborn.

Such a Hiba will be void.
E. MUSHAA

1. Mushaa is an ‘undivided share’ in a property.

2. Musha can be the subject matter of gift.

3. A valid gift can be made of musha, if the property is

not capable of division. Here, the donee and the other
co-owner has to own, possess and enjoy the subject
matter jointly.

4. If the property is capable of division and if the gift of

musha is made without actual division, the gift is
irregular and not void. By a subsequent partition, it
can be made valid.

F. REVOCATION OF HIBA

The revocation of gift in every case is governed by

that school of law to which the donor belongs.

When a gift is revocable by the donor, the following

are the conditions to be noted.

1. Intervention of the Court is not necessary, if the

donee agrees to the revocation.
 44

2. If the donee does not agree to it, an order of the

Court of cancellation of the gift has to be obtained by
the donee.

3. If the donee agrees for revocation, ownership of the

gifted property reverts to the donor.

4. Inter spousal gifts are irrevocable.

G. ONEROUS BEQUEST

1. If a bequest is made to a person and it consists of

several things i.e. some burdened with obligation and
the rest without obligation, the legatee must accept
the whole bequest.

For e.g. A makes bequest of a house and a land

to B. The house is under mortgage of Rs. 5,000/-.
However, B must accept the full bequest, and he
cannot accept the land alone.

But if the bequest contains 2 or more separate

independent transfers made on different occasions,
then the legatee can accept the beneficial bequest
alone and reject the onerous bequest.

2. If an onerous bequest and a beneficial bequest are

made to a minor or lunatic, the legatee can accept the
beneficial bequest alone and reject the burdensome
bequest.



SHORT NOTE NO - 7
PRE EMPTION
 45

1. Pre emption is the first right of one co owner to buy

the jointly owned property.

2. The co owner has the first option to buy the property,

if it sold by the other co owner.

3. The co owner must pay the market value for the

property.

4. Pre emption is not recognised in Muslim law.

The right of Pre-emption is a right to acquire by

compulsory purchase of immovable property in preference
to all other persons.
The object of pre-emption is to prevent the
introduction of a stranger among co-sharers.

Eg: A and B are co-owners of an immovable property.

A sells his share of the property to C instead of selling to
B. Here, by means of the right of pre-emption, B can
compel C to sell the property to him.

ESSENTIALS OF THE DOCTRINE OF PRE-EMPTION

1. It is a right of the “owner” of a certain immovable

property to obtain proprietory possession of certain
other immovable property not his own.

2. Such right is in substitution of the buyer who has

already purchased the other immovable property.

3. The terms of purchase of the immovable property by

the “owner” are the same as that of the purchase by
the other buyer.

4. The objective of pre-emption is the quiet enjoyment

of the property.

CASES IN WHICH THE RIGHT OF

 46

PRE-EMPTION ARISES

1. Only in cases of sale, the right of claiming pre-

emption is applicable. Such sale must be valid,
bonafide, and a mere intention to sell can never be a
sale. Sale includes exchange, but not gift, waqf,
inheritance, bequest of a lease in perpetuity.

2. Only on completion of sale, the right of pre-emption

arises, and not before. On payment of the purchase
money and possession of property, the sale is
considered to be complete. The execution of the
instrument of sale is not needed, according to Muslim
law.

Cases in which the right of pre-emption does not arise:

1. Gifts.
2. Waqf.
3. Bequest.
4. Inheritance
5. Lease in perpetuity.
6. Mortgage though by conditional sale.
7. Conditional sale.

CONSTITUTIONAL VALIDITY OF RIGHT OF PRE-EMPTION

Article 19(1)(f) guarantees right to freedom to

alienate property. It was doubtful whether Right of Pre-
emption was a restriction of such freedom.

It is now settled by the Supreme Court that:

Bhau Ram Vs. Baijnathsingh 1961 AIR 1327

1. The Court held that customary right of pre-emption is

void. Statutory as well as customary pre-emption by
 47

an adjoining owner on the ground of vicinage is an

unreasonable restriction and not valid.

2. It is valid in the case of co-ownership in undivided

property, where the right of pre-emption is a
reasonable restriction.

3. In the case of easement, whether pre-emption is

reasonable or unreasonable depends upon the nature
of easement and the inconvenience apprehended
(look forward to with fear) by the pre-emptor to his
rights.

WHERE THE RIGHT OF PRE-EMPTION IS LOST

1. Death of the pre-emptor during the pendency of the

suit for pre-emption extinguishes the right of pre-
emption in the case of Sunni law, but in Shia law, the
suit may be carried on by the heirs of the deceased
pre-emptor.

Under the Indian Succession Act, the suit may be

continued by the executor or Administrator, as the
right is not extinguished by the death of the pre-
emptor.

2. Acquiescence: If the pre-emptor either by taking the

lease of the same property from the purchaser or by
failure to make demand, he is deemed to have
acquiesced in the sale and thus loses his right to pre-
empt.

3. If in the suit for pre-emption, the pre-emptor joins

another person as co-plaintiff, but the co-plaintiff has
no right to pre-empt, then the right for pre-emption is
lost.
 48

4. If the pre-emptor transfers the immovable property

which is the subject matter of pre-emption, then he
loses the right to pre-empt.

5. Waiver: By entering into a compromise with the

purchaser, if the pre-emptor waives his right of pre-
emption, it is lost.

6. Failure to make demand: If the pre-emptor fails to

make the immediate demand and Confirmatory
demand, then he loses his right of pre-emption.

7. If the pre-emptor releases his right for consideration,

then he loses the right.



SHORT NOTE NO - 8
DOMICILE (Sec. 4 to 22)

1. Domicile is the relationship of a person with a nation.

2. The domicile is different from nationality and

citizenship.

3. Domicile is of 2 types

a. Domicile by birth

It arises due to the birth of a person in a nation.

b. Domicile by choice

Here the domicile arose by choice of a person.

4. The son and daughter get the domicile of father.

 49

5. The wife gets the domicile of her husband after

marriage.

6. Domicile is useful to claim the movable and

immovable properties.



SHORT NOTE NO - 9
PRIVILEGED AND UNPRIVILEGED WILLS
(Sec. 63 to 66) (Bequests)

I. UNPRIVILEGED WILL

1. Unprivileged will is ordinary will.

2. The person writing the will is called Testator.

3. The will comes into force only after the death of the
testator.
4. The will should be written by a major of sound mind.

5. It must be in writing, signed and witnessed by two

witnesses.

II. PRIVILEGED WILL

1. It is will made in emergency circumstances.

2. It need not be in writing and it can be written

afterwards.

Examples

Will written in war, at the time of death, sea man in a

ship ands airman in aeroplane.

3. It need not be witnessed.

 50

4. It may be orally made to someone nearby. The other

person can write afterwards.



SHORT NOTE NO - 10
LEGACIES

Legacy’ means - a money or property, which is left to

somebody in a will.

These are three types of Legacies:

1. General Legacies
2. Specific Legacies
3. Demonstrative Legacies

1. General Legacies

These legacies are paid out of general assets of the

testator. After payment of debts and necessary expenses,
it is liable to abatement (meaning - If after payment of
debts, the assets are not sufficient to pay all the legacies,
then proportionate reduction of the legacy is done) but
not Ademption (meaning - the legacy cannot take effect by
reason of the subject matter having been withdrawn from
the operation of the will).

2. Specific Legacies

It is a legacy of a particular part of the testator’s

property which is distinguished from all other parts of the
property.

E.g. a gold ornament of the testator. It is not liable to

abatement but liable to Ademption. A bequeaths to B in
the following terms-

a. My gold ring.
 51

b. A sum of Rs. 2,000/- in a certain chest.

c. All my shares in the bank
d. All my household items in my residence in K. Street in
Chennai at the time after my death.

In specific legacy, specific property is given to the

legatee.

In demonstrative legacy, legacy is directly to be paid

out of specified property.

E.g. “Rs 10,000 out of the sum of Rs. 20,000/ due to

me by Raman. “Rs 20,000/- out of my estate at Natham
Village”. This is demonstrative legacy.

3. Demonstrative Legacies

1. When a testator bequeaths a certain sum of money or

certain quantity of any other commodity to be paid
out of a primary fund or stock, such legacy is said to
be demonstrative legacy.

2. This is a legacy directed to be paid out of particular

fund. It is not liable to ademption.

3. Even if the funds cease to exist, because the legacy is

not liable to ademption, the legacy will be payable
out of the general assets.

4. It is not liable to abatement when the fund is

sufficient to meet the claim of the legacies.

5. If the fund is insufficient, it is treated as a general

legacy and is liable to abatement.

6. Even in case the property on which a demonstrative

legacy is charged by the will does not exist at the
time of the death of the testator, or has been
converted into property of a different kind, it is paid
 52

out of the general assets of the testator and cannot

be adeemed (cannot take effect).

ADEMPTION OF LEGACY

‘Ademption’ means that the legacy cannot take effect

by reason of the subject matter having been withdrawn
from the operation of the will. Only a specific legacy is
liable to Ademption.

Eg., “A sum of Rs.10,000/- from a certain chest of

drawers.” “All the horses in my stable”.

At the death of A, no money is in the chest and no

horses in the stable. This legacy is adeemed (cannot take
effect).

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SHORT NOTE NO - 11
FAMILY COURTS ACT, 1984

There is a separate Court to decide family disputes. It

is called Family court.

The objective of family court is mediation and

settlement of family disputes including maintenance.

CONSTITUTION

1. Family Courts are established in a city of population

of more than 10,00,000.
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2. It is presided by a District Judge or a Judicial Member

of Tribunal member who has 7 years experience or an
Advocate of 7 years bar experience in any High Court.

3. Women are preferred in the appointment of Judges in

the Family Court.

JURISDICTION

Family Courts have jurisdiction on all marriage matters.

The following are the proceedings before the Family

Courts:

1.Divorce
2.Judicial separation.
3.Restitution of Conjugal rights.
4.Nullity of marriage.
5.Maintenance(Alimony.)
6.Custody of children
7.Declaration of legitimacy of a child.
8.Declaration of validity of marriage.

‘IN CAMERA’ PROCEEDINGS

1. In camera proceedings mean that the proceedings are

in private without any entry of the public.

2. They are conducted in closed chambers in the

presence of the Judge with the parties to the
marriage dispute.

3. Usually, the in camera proceedings are followed by

the Family Court, if sensitive questions about the
morality of the woman, etc., are involved.

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SHORT NOTE NO -12

POWERS OF EXECUTOR OR ADMINISTRATOR
(Sec. 217 to 260)

When a will is written by a testator( will writer), he

appoints a person to distribute the properties mentioned
in the will. The person so appointed is called “Executor”.

If no executor is appointed in the will, then court will

appoint a person to distribute the properties according to
will. He is called “Administrator”.

1. The powers of Executor/ Administrator is that he

should divide the properties as per will and distribute
them to the legal heirs.

2. Till then, he manages the properties.

3. He cannot transfer the properties.

4. He can take reasonable amount as salary for his

functions.

5. He can be removed for misuse of his powers.

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