Q.NO.1.

Trace the history of the different schools of Hindu Law,

pointing out their distinguishing features. ?INTRODUCTION The
Schools of Hindu Law came into being when different commentaries
appeared to interpret smritis with reference to different local
customs in vogue in different parts of India. SCHOOL OF HINDU LAW
There are 2 schools of Hindu Law 1. Mitakshara School 2.
Dayabhaga School 1. Mitakshara School:- This school prevails in all
parts of India. It is a running commentary on code of Yajnavalkaya
& was written by Vijanneshwara in 11th century. It is of supreme
authority thought out India except Bengal. 2. Dayabhaga School :-
This School prevail in Bengal. It is not a commentary on any one
code, but purports to be a digest of all the codes. It was written by
Jimutavahana. It was written 2 centuries after mitakshara. It is
supreme authority in Bengal. Here also Mitakshara is supreme but
if there is no conflict between this schools. The Mitakshara school is
sub-divided into 4 main schools I. Banaras SchoolII. Mithila School
III. Bombay School IV. Madras School V. Punjab school also
recognizes the authority of mitakshara. I. Benaras School:- Except in
Mithila and Punjab this school prevails in the whole of Northern
India including Orissa. II. Mithila School It prevails in Tirhoot &
Bihar. The following are the commentaries treated as authoritative
in this school. III.Bombay School or Maharastra School It prevails in
almost the whole of the state of Bombay including Gujarat, Kanara
and the parts where the Marathi language is spoken as the local
language. IV. Madras School:- The whole Madras state is governed
by the madras School of Hindu Law This school was once sub-
divided into Tamil, Karnataka and Andra school, but there is no
justificationV. Punjab School It prevails in East Punjab. The following
are authorities in this school 2. DAYABHAGA:- It prevails in west
Bengal, Assam with some variances. Dayabhaga is written by
Jimutvahana. The accepted authorities 1. Dayabhaga 2. Dayatatva
3. Daya-sangraha 4. Viramitrodaya 5. Dattaka Chandrika
Q.No.2. Explain the sources of Hindu Law.? 1. SOURCES OF HINDU
LAW The main sources of Hindu law are as follows. 1. Srutis 2.
Smritis 3. Commentaries and Digests 4. Judicial decisions 5.
Legislation 6. Justice, equity and good conscience, and 7. Customs 1.
THE SRUTIS:- the name (sruti) is derived from the root < 8what is
heard9. • By sruti or what was heard from above, it meant the
veda. • It is believed to contain the very words of the diety revealed
to inspired sages. • Srutis are considered to be the primary and
paramount sources of Hindu law. • This is a supreme authority as it
is considered to be divine source. • But practically the srutis is of no
legal significance. • The srutis consists of the four Vedas and the
Upanishads dealing chiefly with religious rites and the means of
attaining true knowledge and Moksha or salvation. The four vedas
are as follows 1. Rig veda 2. Yajur veda 3. Sam veda 4. Atharva veda
2.Smritis:- smritis means "what was remembered" and is of human
origin and is believed to be the recollections of Rishis handed down
to us, constituting the principle sources of Hindu Law.
The smritis are divided into primary and secondary smritis,The
primary smritis are again classified into a. Dharma sutras:-
Baudhyana, Apastamba, Harita, Vasishtha and Vishnu are the chief
writers.b.) Dharmashastras: Manu, Yajnyavalkya, Brihaspati and
Narada are the writers of this Shastras. The Smritis are of 2 kinds:
In prose style:- the Smritis in prose are called "Dharma Sutras". ii. In
Poetry style:- the smritis in verse are called Dharmashastras".
The code of Manu has always been treated by Hindu sages and
commentators, as a being of paramount authority.
According to Brihaspati Manu holds the first place because he has
expressed in his code the whole sense of the vedas and no code is
authoritative which contradicts him.
3. COMMENTARIES AND DIGESTS:- The period of commentaries and
digest is between 700 A.D. to 1700 A.D.. The commentaries and
digests were also the records of the traditional customs recorded in
the Smritis as well as the new customs claiming for and found
worthy of recognition. Because of incompleteness and frequent
conflicts in the rules of the smritis and desirability of interpretation
of the injunctions of smritis in a manner so as to suit prevalent
custom and usages of different parts of the country, there was the
necessity to reconcile them on the points of difference. In this
process there arose this important source. The commentaries,
though professing and purporting to rest on the smritis, explained,
modified and, enlarged the traditions recorded therein to bring
them into harmony and accord with prevalent practices of the day.
4. CUSTOM WHAT IS A CUSTOM? In section 3(a) of the Hindu
Marriage Act 1955 the expression custom and usage signify any rule
which, having been continuously and uniformly observed for a long
time, has obtained the force of law among Hindus in any local area,
tribe, community, group or family; provided that the rule is certain
and not unreasonable or opposed to public policy; provided further
that in the case of a rule applicable only to a family it has not been
discontinued by the family. Difference between custom and useage.
It often that custom and usage terms are used as synonym but
there is difference that is Custom must be of antiquity and usage is
of recent origin. So, the custom to have the force of law or rule of
law, it is necessary for the party claiming it to plead and thereafter
prove that such custom is ancient, certain and reasonable. Kinds of
custom. a. Local custom b. Class custom c. Family custom. *. Local
custom:- such customs belong to some particular locality, or district
and they are binding on the inhabitants of such place. Case Law
Smt.Subhani V. Nawab [AIR 1941 Lah 154]* B. Class custom:- such
customs are of a caste, or a sect or of the followeres of a particular
profession or occupation, such as agriculture, trade, mechanical art
and the like. C. Family customs:- such customs relate to a particular
family, particularly concerning succession to an impartible Raj or
succession to Maths or religious foundations.
Q.NO.4. Discuss the important changes brought by the Hindu Marriage Act
1955 and marriage laws (Amendment) Act, 1976 to the Hindu Law.?
Introduction This act is a landmark in the history of social legislation This
enactment is exhaustive and it has brought important and dynamic
changes in Hindu matrimonial concept. It has not simply codified the
Hindu law of marriage but has introduced certain important changes in
many respects. The Hindu marriage contemplated by the Act hardly
remains sacramental. The Act has introduced some changes of far-
reaching consequences which have undermined the sacramental character
of marriage and rendered it contractual in nature to a great extent.
CHANGES BROUGHT ABOUT BY THE HINDU MARRIAGE ACT 1955. The
following changes were brought about by the Act in the law of marriage
are important, 1. Inter- caste marriage in not prohibited. According to
Section 29 of the Act, the marriage solemnized between the different caste
or different religion is valid. 2. Monogamy which is essentially the
voluntary union for life of one man with one women to the exclusion of all
others, is not enforced by legislation- Section 5(i) . any marriage
solemnized after the commencement of this Act is null and void if at the
date of such marriage either party had a husband or wife living 3. Bigamy
has been made punishable as an offence under the Indian Penal Code (sec
17). 4. The conditions and requirements of a valid Hindu marriage have
been considerably simplified (section 5 to 7). • The sapinda prohibition has
although been accepted yet the degree of sapinda relationship has been
curtailed. • It has now been confined to fifth degree from the father and
third degree from the mother in upward line. • Further, the Act has
enumerated the list of prohibited degree of relations, between whom a
valid marriage could not take place. • Several matrimonial reliefs has been
provided by the act. Ex. Divorce, judicial separation. • Legitimacy has been
conferred on such children who are born of void and voidable marriage. •
Provision for alimony pendent lite, permanent alimony and maintenance
have been made. CHANGES BY VIRTUE OF MARRIAGE LAWS(AMENDMENT)
ACT, 1976. A few more changes have been brought by Act of 1976. 1.
Section 13-B now provides for divorce by mutual consent of the parties. 2.
Divorce on the ground of adultery has made easy. Now a single instance of
adultery on the part of the other spouse entitles the spouse to seek
divorce. 3. Divorce on the ground of incurable unsoundness of mind,
incurable leprosy or venereal disease, formerly the party seeking divorce
could not file petition for 3 years had elapsed. Now the party seeking
divorce on this ground need not wait for 3 years.
Q.No.5. What is marriage? Explain the essential requisites of valid
marriage.? SYNOPSIS ➢ INTRODUCTION. ➢ DEFINITION OF
MARRIAGE ➢ ESSENTIAL REQUISITIES OF HINDU VALID MARRIAGE
➢ Section 5(I): Monogamy. ➢ Section 5(Ii):- Soundness Of Mind ➢
Section 5(Iii):- Age Of Marriage ➢ Section 5(Iv):- Beyond Prohibited
Degrees ➢ Section 5(V):- Beyond Sapinda Relationship ➢
CONCLUSION INTRODUCTION Under the ancient hindu law the
object of marriage was sublime (means it has wonderful quality
that affects you deeply. One of the characteristic features of a
Hindu Marriage it that it was more connected with the performance
of religious duties and betting of a son, who enables a man to get
deliverance from the sufferings of Hell. HINDU MARRIAGEACT,1955.
This act is a landmark in the history of social legislation This
enactment is exhaustive and it has brought important and dynamic
changes in Hindu matrimonial concept. It has not simply codified
the hindu law of marriage but has introduced certain important
changes in many respects. The Hindu marriage contemplated by the
Act hardly remains sacramental. The Act has introduced some
changes of far- reaching consequences which have undermined the
sacramental character of marriage and rendered it contractual in
nature to a great extent. SECTION 5:- CONDITIONS FOR MARRIAGE
UNDER HINDU MARRIAGE ACT, 1955. SECTION 5(i): Monogamy.
Section 5(ii):- Soundness of Mind Section 5(iii):- Age of Marriage
Section 5(iv):- Beyond prohibited degrees Section 5(v):- Beyond
sapinda relationship 1. SECTION 5(i): Monogamy:- Before the
commencement of this act, a Hindu could marry any number of
wives, even if he had a wife or wives living, although this practice
was always looked with disfavor. Monogamy :- it means is the state
or custom of being married to only one person at a particular time.
Case law SHANTA DEV BERMA V. SMT. KANCHAN PRAVA DEVI [AIR
1991 SC 816] The supreme court held that the proof of the
performance of ceremonies is essential for a valid marriage.
JOGINDER SINGH V. SMT. JOGINDERO [AIR (1996) S.C 1654]
2. Section 5(ii):- Soundness of Mind:- The parties to the marriage
are of sound mind and are not suffering from any mental disability
as to be unfit for giving a valid consent • It is laid down under the
marriage laws (amendment)Act 1976, • Neither party at the time of
marriage is incapable of giving a valid consent.
AMINA ROY V.S PRABODH MOHAN ROY [AIR 1969 CAL 304] • In this
case the emphasis was upon the unsoundness of mind to a degree
which renders the marriage meaningless. • The recurrent attacks of
insanity have also been added to be ground of voidability of
marriage. • Thus mental incapacity of any nature affecting the very
purpose of marriage has been ground of voidability of marriage.
3. Section 5(iii):- Age of Marriage:- The minimum age of the parties
to the marriage is fixed. • Originally, according to Hindu marriage
Act, 1955, the age provided for the bridegroom was 18 years and
for the bride was 15 yrs. • Though where the bride was below 18,
the consent of her guardian was necessary. • The child marriage
restraint (Amendment)Act 1978, has raised the minimum age fixed
for marriage to 21 years in case of bridegroom and 18 years in case
of bride 4. Section 5(iv):- Beyond prohibited degrees • This clause
prohibits marriage between persons who are within the prohibited
degrees of relationship with each other. • The following will be
within the degrees of prohibited relationship of a male. *brothers
daughter *sisters daughter *mothers sister. 5. Section 5(v):- Beyond
sapinda relationship SAPINDA :- means one of the same pinda.
According to ancient texts, the word has been used in two senses,
firstly, it means a relation connected through the same body, and
secondly, it means, relation connected through funeral obligation of
food. Relationship includes:- 1. Relationship by half or uterine blood
as well as by full blood. 2. Illegitimate blood relationship as well as
legitimate; 3. Relationship by adoption as well as by blood.
CONCLUSION ;This are the essential elements of a valid marriage.
Contravention of the above mentioned essentials shall make
marriage void or voidable.
Q.No.10.WHO IS A KARTA? WHAT CIRCUMSTANCES HE CAN
ALIENATE JOINT FAMILY PROPERTY.? INTRODUCTION The affairs of a
joint family, consisting of generally ladies and infants, cannot be
managed by all the members of it nor are they managed jointly by
all the adult male members, probably by reason of the inequality in
their rank. But ordinarily they are, by the consent of all managed by
a singly male member who is the head of the family by reasons of
his seniority and superior rank. He is called manager or karta of the
family. WHO MAY ACT AS KARTA? The father, if living would
generally be the manager or karta of the joint family. If father is not
there the elder senior brother, if the senior brother is away in a
remote place and a junior member can act has a karta. WHERTHER
FEMALE CAN BE KARTA? After the Hindu succession (amendement)
Act, 2005 daughter of a coparcener is a coparcener. Therefore it is
submitted that she may become a Karta, provided she is a
seniormost coparcener. POWERS OF MANAGER [KARTA] The
following are the general powers of karta POWER OF KARTA:- → He
has no larger proprietary interest in the family property → Larger
rights to enjoy the same, than any other coparcerner → Not
entitled to any remuneration . 1. Power over income and
expenditure He has the control over the income, expenditure and
surplus and he is the custodian of the same. He can spend the
income for the family ie, maintainance, education, marriage ,
sraddha and other religious ceremonies of the members of the
family. 2. Power to manage joint-family business:- He has the power
to manage joint-family business. 3. Power to contract debt for
family purpose:- The karta has implied authority to contract debt. i.
For the joint family purposes or9 ii. For a joint family business 4.
Power to contract:- Relating to family business the karta is having
the power to contract, give receipts, compromising or discharging
contracts. 5. Power to refer to arbitration:- The karta is having the
power to refer matters of Hindu family to arbitration. Coparcerners
and minors are bound by the award. 6. Power of compromise:- The
karta is having the power to settle accounts with the debtors and to
make a reasonable reduction either towards principal in the
interest of the family. But here the karta is having no power to give
up a debt due to the joint family and give up a valuable item
without any return or consideration. 7. Power to acknowledge
debts:- The karta has power to acknowledge a debt or make a part
payment of it so as to extend the period limitation. But he cannot
execute a fresh promissory note or a bond as to revive a time
barred debt. 8. Power to give discharge:- The karta has power to
give a valid discharge for debt due to the joint family. 9 . Power to
represent in suits and other proceedings:- The karta may sue or be
sued in respect of the transaction entered by him as the karta of the
family and joint family property. The member are binding to the
decree passed in favour or against them. 10.Power to alienation :- It
includes sale, gift, mortgage lease, or exchange. The karta can
alienate for value the Joint family property so as to bind the
interest of the other coparcener (minor/adults) provided it is
made . 1. With the consent of all the coparcener in existence 2. For
legal necessity 3. For the benefit of the estate
*CASE LAW SNIL KUMAR VS. RAM PRAKASH [AIR 1988 SC 576] The
hon9ble Supreme court held that the father who is the karta can
alienate the Joint Family property for legal necessity no coparcener
can restrain him from doing so by filing a suit for injunctions. If the
coparcener thinks the sale is illegal he can challenge the same
afterwards.
Q.NO.7. WHAT IS JUDICIAL SEPARATION? EXPLAIN THE GROUNDS
FOR JUDICAIL SEPARATION. ANSWER:- SECTION 10(1):- Either party
to a marriage, whether solemnized before or after the
commencement of this Act, may present a petition praying for a
decree for judicial separation on any of the grounds specified in
section 13 (1) and in case of a wife also on any of the grounds
specified in section 13 (2)and petition for divorce might been
presented. (2)where a decree for judicial separation has bee
passed, it shall no longer be obligatory for the petitioner to cohabit
with the respondent, but the court may on the application by
petition of either party and on being satisfied of the truth of the
statements made in such petition rescind the decree if it considers
it just and reasonable to do so.
GROUNDS AVAILABE TO HUSBAND AND WIFE BOTH (1. ADULTERY:-
Where the other party has, after the solemnization of the marriage,
had voluntary sexual intercourse with any person other than his or
her spouse. A single act of adultery may be sufficient now for the
relief under this head. 2. CRUELTY Where the other party has
treated the petitioner with cruelty. 3. DESERTION Where the other
party has deserted the petitioner for a continuous period of not less
than 2 years immediately preceding the presentation of the
petition. 4. CONVERSION Where the other party has ceased
to be a hindu by conversion to another religion 5. UNSOUNDNESS
OF MIND Where the other party has been of incurable unsound
mind, or has been suffering continuously or intermittently from
mental disorder of such a kind and to such a extent that the
petitioner cannot reasonably be excepted to live with the
respondent. 6. LEPROSY Where the other party has been suffering
from a virulent and an incurable form of leprosy. 7. VENEREAL
DISEASE Where the other party has been suffering from venereal
disease in a communicable form. 8. Renunciation of
world Where the other party has renounced the world by entering
any religious order. 9. Presumed death where the other party has
not been heard of as being alive for a period of seven years or more
by the those persons who would naturally have heard of it had that
party been alive.
ADDITIONAL GROUNDS TO WIFE: 1. BIGAMY:- Where the husband
has married to another women. 2. Rape, sodomy or bestiality That
the husband has since the solemnization of the marriage, been
guilty of rape or sodomy or bestiality; 3. Non-resumption of
cohabitation after decree or order of maintenance Under section 18
of Hindu adoption and maintenance act or in a proceeding under
section 125 of Cr.P.C 1973, a decree or order as the case may be, has
been passed against the husband awarding maintenance to the
wife and that since the passing of such decree or order;
cohabitation between the parties has not been resumed for one
year or upwards. 4. OPTION OF PUBERTY That her marriage was
solemnized before she attained the age of 15 yrs and she has
repudiated the marriage after attaining the age of 15 years but
before attaining the age of 18 years.
INCIDENTS AND EFFECTS OF JUDICIAL SEPARATION 1. that the
marriage tie is not dissolved. 2. the husband and wife are not
bound to live together or dine together as judicial separation is
separation from bed and board. 3. it will not be obligatory for the
parties to cohabit with each other. 4. it does not prevent the parties
from subsequently resuming cohabitation and living together as
husband and wife as originally they did. 5. If either of the spouse
marries during that period, he or she will be guilty of bigamy and
will be liable for punishment prescribed by sec 17 of the Act.
6. the petitioner, if she be the wife, becomes entitled to alimony
from the husband, and if he is the husband he can claim
maintenance from wife under section 25 of this Act.
Q.NO.6. EXPLAIN RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU
MARRIAGE ACT 1955.? 1. RESTITUTION OF CONJUGAL RIGHTS [SECTION
9] After the marriage the society of the husband and wife is entitled to
each other. Therefore a cause the action arises when one of the parties
to the marriage withdraws the society of the other. Section 9:- deals
with restitution of conjugal rights. The foundation of this section is that,
one spouse is entitled to society and comfort consortium- of the other
spouse and where either spouse has abandoned or withdrawn from the
society of the other without reasonable excuse or just cause the court
should grant a decree for restitution. WHEN THE RIGHTS ARISE? UNDER
THIS SECTION THE COURT MAY DECREE THE RESTITUTION OF CONJUGAL
RIGHTS, WHEN. 1. Either of the party has, without reasonable excuse,
withdrawn from the society of the other. 2. The court is satisfied of the
truth of the statement made in the petition for restitution of conjugal
rights; and 3. There is no legal ground why the application should not be
granted.  According to this provision either of the spouse can institute
proceedings in court for directing the other spouse to give back the
conjugal society which has been unreasonably withdrawn. SUSHILA BAI
V/S PREM NARAYAN [AIR 1976 MP 225]  The MP high court held that in
order to sustain a petition for restitution of conjugal rights, it is
necessary to establish that the respondent has withdrawn from the
society of the petitioner.  The burden of proof is very light,  It is for
that person to prove the conditions which have necessitated such
course to be taken.  Thereafter the burden would shift to the other
party to show that he or she has withdrawn from the society of the
other for a reasonable excuse. UNREASONABLE EXCUSES FOR
WITHDRAWING FROM THE SOCIETY  Mere frivolity, falling short of
adultery and giving no reasonable ground for belief that it has been
committed.  Mere frailty of temper and habits which are distasteful to
the other spouse.  Habits of intemperance  Differences on account of
the wife9s inability to agree with the step-child  Discovery of pre-
marital misconduct which has not resulted in pregnancy with another
man.  Development of insanity after marriage.
BRIEFLY STATE THE GROUNDS FOR DIVORCE UNDER THE HINDU
MARRIAGE ACT 1955? Under the Hindu Marriage Act, 1955, divorce
can be granted on several grounds. The Act provides various
provisions under which a party to the marriage can seek dissolution of
the marriage. Let's briefly go over the grounds for divorce under
Section 13 of the Hindu Marriage Act, along with relevant case law.
Grounds for Divorce under Section 13 of the Hindu Marriage Act,
1955: 1. Adultery (Section 13(1)(i)),*Definition: Adultery refers to
voluntary sexual intercourse by a spouse with someone other than
their partner. *Ground for Divorce: If a spouse has committed
adultery, the other spouse can file for divorce. *Case Law: Narayan v.
Suman (1959) – The court held that the petitioner must establish that
the respondent has committed adultery, and that it has caused harm
to the marriage. 2. Cruelty (Section 13(1)(i-a)) *Definition: Cruelty
refers to behavior that causes physical or mental suffering to the
spouse. It can include physical violence, mental harassment, or other
forms of cruelty. *Ground for Divorce: If a spouse has treated the
other with cruelty, the aggrieved party can file for divorce.
*Case Law: Savita Sharma v. Ramesh Sharma (2007) – The Supreme
Court held that cruelty may be both physical and mental, and even
verbal abuse can be grounds for divorce if it affects the mental well-
being of the spouse. 3. Desertion (Section 13(1)(i-b)) *Definition:
Desertion occurs when one spouse abandons the other without
reasonable cause or consent. It must be for a continuous period of at
least two years.*Ground for Divorce: If a spouse has deserted the
other for a period of two years or more, the deserted spouse can file
for divorce.*Case Law: Smt. Indra Sarma v. V.K.V. Sarma (2013) – The
court noted that desertion means voluntarily leaving the matrimonial
home without any reasonable cause and without consent.
4. Conversion to Another Religion (Section 13(1)(ii)) *Definition: If
either spouse converts to another religion, the other spouse may seek
a divorce. *Ground for Divorce: If a Hindu spouse converts to another
religion, it becomes a ground for divorce. *Case Law: Lalitha v. Ravi
(2006) – The court upheld that conversion to another religion can be a
ground for divorce as it disrupts the religious foundation of a Hindu
marriage. 5. Mental Disorder (Section 13(1)(iii)) *Definition: If one
spouse is suffering from a mental disorder that renders them unfit for
marital life. *Ground for Divorce: If one spouse has been suffering
from a mental disorder for a prolonged period, the other spouse can
seek a divorce. *Case Law: K. Srinivasan v. K. Nirmala (1997) – The
court granted divorce on the ground of mental disorder when it was
established that the respondent’s condition was such that it could not
allow normal marital relations. 6. Incurable Disease (Section 13(1)(v))
*Definition: If a spouse is suffering from a venereal disease or leprosy,
it can be a ground for divorce. *Ground for Divorce: A spouse who is
suffering from a communicable or incurable disease can seek divorce
on this ground. *Case Law: V. Bhagat v. Mrs. D. Bhagat (1994) – The
court held that leprosy is a serious incurable disease and can be a
valid ground for divorce under the Act.
7. Presumption of Death (Section 13(1)(vii)) Definition: If a spouse has
been missing for a period of seven years, and there is no evidence of
their death, the other spouse may file for divorce. *Ground for
Divorce: If a spouse has been absent for seven or more years and
presumed dead, the remaining spouse can file for divorce. *Case Law:
Smt. Sushila Devi v. Harish Chander (2006) – The court allowed
divorce under the presumption of death when the husband had been
missing for more than seven years without any communication.
Conclusion:
The Hindu Marriage Act, 1955, provides several grounds for divorce,
including adultery, cruelty, desertion, mental disorder, conversion to
another religion, incurable disease, and the presumption of death.
These grounds ensure that individuals who are in abusive or
untenable marriages have legal recourse to seek a divorce.
.No.9. WHAT IS PARTITION. EXPLAIN THE VARIOUS MODES OF
AFFECTING A PARTITION AND WHEN CAN BE RE-OPENED?
SYNOPSIS • Introduction • Modes Of Partition • Effects Of Partition
• Suit For Partition • Reopening Of Partition • Conclusion According
to Mitakshara Law Partition is the adjustment of diverse rights
regarding the whole by distributing them or particular portions of
the aggregate. CASE LAW KALYANI VS. NARAYANAN [AIR SC 1173]
Essentials ingredients of partition 1. Male members should express
his clear wish for partition. 2. Expression according to circumstances
3. The desire of partition must be noticed to all members of the
family 4. It is severance of the joint status 5. Every coparcener has
right to claim partition 6. By partition the joint status comes to an
end resulting in putting the coparcenary to an end. MODES OF
PARTITION:- 1. Partition by mere declaration to separate:- 2.
Partition by notice 3. Partition by will 4. Conversion to another faith
5. Marriage under special marriage act 1954 6. Partition by
agreement 7. Partition by arbitration 8. Partition by father 9.
Partition by suits
1. Partition by mere declaration to separate:- To constitute partition
is a definite and unequivocal indication of his 8intention9 by a
member of joint-family to separate himself from the joint family
and enjoy his share in severalty. 2.Partition by notice A severance of
joint status may be effected by serving a notice by a coparcener on
the other coparceners, including his intention to separate and enjoy
the property in severalty or demanding partition of the property.
3.Partition by will Partition may be effected by a coparcener by
making a will containing a clear and unequivocal intimation to his
coparceners of his desire to server himself from the joint family or
containing an assertion of his right to separate. 4.Conversion to
another faith:- Conversion of a coparcener to any other religion
operates as partition of the joint status as between him and other
members of the family. 5.Marriage under special Marriage Act,
1954. Marriage of a hindu under the Special Marriage Act causes
severance between him and the other members of the family.
6.Partition by agreement. The agreement between the members of
a joint family to hold and enjoy the property in certain defined
shares as separate owner operates as partition, although the
property itself has not been actually divided by metes and bounds.
7.Partition by arbitration:- An agreement between the members of
a joint family whereby they appoint an arbitrator to arbitrate and
divide the property operates as a partition from the date thereof.
8.Partition by father:- The father may also cause the severance of
the sons without their consent. Doctrine of patria potestas
(paternal power) • According to this doctrine father can get the
shares of his sons fixes and also get them separated. REOPENING OF
PARTITION :- The general rule is that partition once made cannot be
re-opened. But there are certain exceptions Cases where partition
may be re-opened. 1. A son conceived at the time of partition,
though not born before partition can re-open it if a share has not
been reserved for him On the other hand if a son is begotten as well
as born after partition and if a share has been allotted to the father,
such after born is not entitled to have the partition re-opened and
same rule to daughter. 2. A son begotten as well as born after
partition can demand a re-opening of partition, if his father entitled
to a share has not reserved a share for himself. 3. A disqualified
coparcener after the removal of disqualification or a missing
coparcener on his return can re-open the partition. 4. A partition re-
opened be minor coparcener on attaining the majority if the
partition made during his minority was unfair or prejudicial to his
interest. 5. If a coparcener has obtained an unfair advantage in the
division the partition may be reopened for the readjustment of
shares. Conclusion:- The coparcener of the joint family can also go
for re-union on certain conditions. For re-union intent of the parties
to reunite in estate and interest. There shall be an agreement with
in the members.
Q.NO.14 . EXPLAIN THE POWERS AND LIABILITIES OF THE
GUARDIAN OVER THE PERSON AND PROPERTY OF A HINDU
MINOR.? POWERS OF A NAUTRAL GUARDIAN. SECTION 8:- The
natural guardian of hindu minor has power, subject to the powers
provision of this section, to do all acts which are necessary or
reasonable and proper for the benefit of the minor or for the
realization, protection or benefit of the minor9s estate:- but the
guardian can in no case bind the minor by a personal covenant. The
natural guardian shall not, without the previous permission of the
court c. Mortgage or charge or transfer by sale, gift, exchange or
otherwise any part of the immovable property of the minor, or d.
Lease any part of such property for a term exceeding 5 years of for a
term extending more than one year beyond the date on which the
minor will attain majority. 7. Any disposal of immovable property
by a natural guardian, in contravention of sub section (1) or sub-
section (2) is voidable at the instance of the minor of any person
claiming under him. 8. No court shall grant permission to the
natural guardian to do any of the acts mention in sub-section (2)
except in case of necessity or for an evident advantage to the minor.
9. The guardians and wards Act. 1890 shall be applicable. 10. Court
means city civil court NECESSARY OR REASONABLE AND PROPER
ACTS FOR THE BENEFIT OF THE MINOR. A natural guardian has the
power to place such restraint on the minor in regard to his
upbringing, education and health as may be necessary or
reasonable or proper for the benefit of the minor. MANIK CHAND V.
RAM CHAND [AIR 1981 SC 519] The Supreme court clearly laid
down that, the natural guardian has been empowered to do all such
acts which are necessary for the welfare and benefit of the child.
POWER TO ENTER INTO CONTRACTS. RUMAL V. SRINIWAS [AIR 1985
DEL. 153] The Delhi High court has held that any contract executed
by the guardian of the minor can be specifically enforced by the
minor or against the minor. Under the law the natural guardian has
been empowered to enter into the contract. If the contract is in the
welfare of the minor, it will be binding and will be enforceable.
COMPROMISE BY NATURAL GUARDIAN:- A guardian is competent to
enter into a compromise on behalf of his ward.
ACKNOWLEDGMENT OF DEBT BY GUARDIAN: A natural guardian of
a minor as well as a guardian appointed by the court or has power
to acknowledge a debt or to pay interest on a debt so as to extend
the period of limitation provided the act is for the protection or
benefit of the minor9s property. FAMILY ARRANGEMENT:- The
natural guardian has the power to enter into family settlement on
behalf of the minor provided it is the nature of a bona fide
compromise of doubtful claims. POWER OF ALIENATION:- The
natural guardian of a Hindu minor has power in the management of
the estate to sell or mortgage any part of the estate in case of
necessity or for benefit of the estate, provided the natural guardian
has taken permission of th court prior to such alienation. Case law
JANARDHAN PILLAI V. B.A RADHAMMA [AIR 1986 KER. 303] The
court held that a sale of minor9s property effected by his natural
guardian without obtaining the specific sanction of the court under
section 8(2) is an act which is prohibited by law and is, therefore
invalid. CONTROL OVER THE POWERS OF NATURAL GUARDIAN.
PREVIOUS PERMISSION OF THE COURT:- SECTION 8(2) The natural
guardian without the previous sanction of the court shall do no
transaction by sale, gift, exchange or otherwise of any part of the
immovable property of the minor and lease of any part of such
property for a term exceeding 5 years of for a term extending more
than one year beyond the date on which the minor will attain
majority. WHEN COURT TO GRANT PERMISSION:- 3. Necessity, or 4.
An evident advantage to the minor.
Q.No.15. What is an adoption? Explain the powers of a male and
female Hindu in adoption as per the Hindu Adoption and
Maintenance Act 1956?. INTRODUCTION :- Manu defines an
adopted son as follows:-

Thus adoption is the transplantation of son from the family in

which he is born, to another family where he is given by the natural
parents by way of gift. The adopted son is then taken as being born
in the new family and acquired rights, duties, and status there only
and his ties with the old family comes to an end. The powers of a
male and female Hindu in adoption as per the Hindu Adoption and
Maintenance Act 1956. Section 7 deals with adoption by a male
Section 8 deals with adoption by a female Section
7 deals with adoption by a male:- The capacity of a male to take in
adoption. Section 7 Any male Hindu a. who is sound mind b. who is
not a minor has the capacity to take a son or daughter in adoption.
Provided – if he has wife consent of the wife is needed The consent
of the wife is not needed → if the wife has completely renounce the
world → has converted to another religion → or unsound mind the
consent of the wife is not needed If the consent of the wife is not
taken the adoption is invalid. Case Law GHISALAL VS. DHAPU BAI
[AIR 2011 SC 644] The supreme court has laid down that the
consent of wife either should be in writing or reflected by positive
act voluntarily and willingly done by her. If the person is having 1 or
more wives consent of all the wives is necessary. Consent of wife
when not necessary; The consent of the wife will not be necessary
if the wife whose consent is sought has, 1. Completely and finally
renounced the world. 2. Ceased to be a Hindu 3. Has been declared
by a court of competent jurisdiction to be of an unsound mind.
Section 8 deals with adoption by a female The capacity of a female
to take in adoption. Any female a. who is of sound mind b. who is
not a minor c. who is not married or if married, i. whose marriage
has been dissolved ii.. whose husband is dead whose husband has
completely and finally renounced the world. *Whose husband has
ceased to be a hindu. *Whose husband has been declared by a
court of competent jurisdiction to be of unsound mind.
RIGHT OF MALE AND FEMALE TO ADOPT Section 11 – other
conditions for a valid adoption- 1. If the adoption is son , the father
or mother should not have son, son9s son, or son9s son9s son living
(whether legitimate or adoption) living at the time of adoption.
2. If the adoption is of a daughter , the father and mother must not
have a Hindu daughter or son9s Daughter (Whether legitimate
blood relationship or by adoption) living at the time of adoption. 3.
If the adoption is by a male and the person to be adopted is a
female the adoptive father is at least 21 yrs older than the person
to be adopted. 4. If the adoption is by a female and the person to
be adopted is a male the adoptive mother is at least 21 yrs older
than the person to be adopted. 5. The child shall not be adopted by
2 or more persons 6. The child to be adopted must be actually given
and taken from the place of family to the adopted family.
CASE LAW. GOLAK CHANDRA RATH VS. KRATIBAS [AIR 1979 ORI
205] In this case the Orissa High court held that, The condition
under section 11 must be fulfilled in adoption otherwise adoption is
not valid. WHO MAY GIVE IN ADOPTION:- Section 9(1) prescribes
the capacity of persons, who give the child in adoption to another.
1. No person except the father or mother or the guardian of a child
shall have the capacity to give the child in adoption. 2. Subject to
the provisions of sub-sec 4 , the father, or the mother, if alive, shall
have equal right to give a son or daughter in adoption. Who may be
adopted? Section 10:- No person shall be capable of being taken in
adoption unless the following conditions are fulfilled, namely, i. He
or she is a Hindu ii. He or she has not already been adopted. iii. He
or she has not been married, unless there is a custom or usage
applicable to the parties which permits persons who are married
being taken in adoption .
GIFTS ?Section 122 of transfer of property Act 1882, defines Gift Gift
is the transfer of certain existing movable or immovable property
made voluntarily and without consideration, by one person called
the donor; to another called the done, and accepted by or on behalf
of the done.9 Under this Act, a gift of immovable property can only
be effected by a registered instrument signed by or on behalf of the
donor and attested by atleast two witnesses. For movable property,
the transfer may be effected by a registered instrument or by a
delivery of possession. The essentials of a valid gift are that there
must be a donor, a done, a proper object of gift and a transaction
involving certain formalities. GIFT UNDER MITAKSHARA LAW- Gift
consists in the relinquishment (without consideration) of ones own
right (in property) and creation of the right of another, and the
creation of another man9s right is completed on the others
acceptance of the gift, but not otherwise. Subject matter of gift- The
following property may validly be disposed of by gift even after the
commencement of the transfer of property Act 1882. 1. Separate or
self-acquired property of a Hindu, whether governed by Mitakshara
or Dayabhaga law. 2. Stridhana i.e. woman9s absolute property. 3.
Impartible property, unless prohibited by custom or the term of the
tenure. 4. Interest of a coparcener under the dayabhaga law. 5. The
whole of the ancestral property by the father under the Dayabhaga
law. 6. A small portion of the property, inherited by hindu widow,
may be gifted by her daughter or her son-in-law at the time of
marriage. 7. Movable property inherited by a widow governed by
mayukha law. GIFT WHEN COMPLETED? Though a gift is registered,
it should accompanied by delivery of possession. GIFT TO UNBORN
PERSONS. According to transfer of property act. No gift is invalid by
reason only that any person for whose benefit it may have been
made was not born at the time of the gift. REVOCATION OF GIFT:- A
gift once completed cannot be revoked unless it was obtained by
fraud or under influence.
WILLS ?DEFINITION:- A will is the legal declaration of the intention
of a testator with respect of to his property. Meaning of codicil:- A
codicil means instrument made in relation to a will and explaining,
altering or adding to its dispositions and shall be deemed to form
part of the will. PERSON CAPABLE OF MAKING A WILL. Every person
of sound mind, not being a minor may dispose of his property by
will. A mitakshara coparcener can dispose of by will his or her
undivided interest in the coparcenary property- according section
30 of Hindu succession act 1956. The same rule is applicable for
dayabhaga coparcener. THE ONUS OF PROOF. • The onus of proving
a will is on the propounder. • In the absence of suspicious
circumstances surrounding the execution of will. • The proof of
testamentary capacity and the signature of the testator. • Is
sufficient to discharge the onus of proof. • The propounder to
explain them to the satisfaction of the court before the will could
be accepted as genuine. • The testator must have a disposing mind.
• He must be able to dispose of his property with understanding
and reasons. WHAT PROPERTY MAY BE DISPOSED OF BY WILL?
According to mitakshara, the following property. 1. Separate or self-
acquired property. 2. A sole surviving coparcener may dispose of his
property by will. 3. Sandayika stridhan 4. All stridhan during
widowhood, and 5. Impartible property, unless prohibited by
custom or the terms of the grant. REVOCATION AND ALTERATION IN
WILL. A will is liable to be revoked or altered by the maker of it any
time when he is competent to dispose of his property by will. But
marriage or birth of the son will revoke the will. BEQUEST TO
UNBORN PERSON. A will can be executed in behalf of an unborn
person. RAM GOPAL V. NAND LAL [AIR 1951 SC 139] The supreme
court observed that, It may be taken to be quite settled that , when
a grant of an immovable property is made to a Hindu female, she
does not get an absolute or alienable interest in such property,
unless such power is expressly conferred upon her.