MODULE 1 (ADOPTION)

An adopting a child helps couples to complete their family. The main advantage of adoption
is that a childless person can make somebody else's child as his own. Thus adoption means
transplantation of the child from the family of his birth to the adoptive family.

Object Of Adoption

 Spiritual benefit: The object of adoption are two-fold. The first object is religious.
Namely, to secure spiritual benefit to the adoptor and his ancestors, by having a son to
offer funeral cakes and libations of water.
 Progeny: The second object of adoption is secular, namely, to secure an heir and
perpetuate the name of the adoptor.

The Hindu Adoptions And Maintenance Act, 1956 came into effect from 21 December 1956.
The law of adoptions has been simplified after the commencement of the Hindu Adoptions
and Maintenance Act, 1956. This Act applies to Hindus, Buddhists, Jain and Sikhs and to
any other person who is not a Muslim, Christian, Parsi or Jew by religion. An adoption
effected contrary to the provisions of this Act will be void and it will not create any right in
the adopted child.

Requirements Of Valid Adoption (Section 6): The requisites of valid adoption are four in
numbers. For making the adoption valid:

 The person adopting has the capacity and also the right to take in adoption (sec 7 & 8
of HAMA)
 The person giving in adoption has capacity to do so. (sec 9 of HAMA)
 The person adopted is capable of being taken in adoption and (sec 10 of HAMA)
 the adoption is made in compliance with the other conditions (sec 11 of HAMA)

In Smt. Prafulla Bala Mukherjee v. Satish Chandra Mukherjee 1988, it was held that for
an adoption to be valid in nature, not only the person adopting but also the person giving the
child up for adoption must be lawfully capable of doing so and that all the prerequisites as
under Section 6 of the HAMA are fulfilled before the adoption takes place.
Who Can Adopt: The sections 7 and 8 bring about important changes in the Hindu law of
adoption, and specify the persons who may lawfully take a son or daughter in adoption.

Capacity of Hindu Male to Adopt: Under S.7, any male Hindu of sound mind, and who is
not a minor, can take a son or a daughter in adoption. If he has a wife who is alive, he cannot
adopt without her consent, unless the wife:

 Renunciation of world: has completely and finally renounced the world; or

 Apostasy: has ceased to be a Hindu; or
 Unsound mind: has been declared to be of unsound mind by a Court of competent
jurisdiction.
 In case, he has a unsound wife declared by court or if wife has renounced the world
or ceased to be Hindu then consent is not necessary.

Capacity of Hindu female to adopt: Under S.8 of the Act (as amended by the Personal
Laws (Amendment) Act,2010), any female Hindu who is of sound mind and is not a minor,
has the capacity to take a son or a daughter in adoption. However, if she has a husband who is
alive, she cannot adopt without the consent of her husband, unless the husband:

 Renunciation of world: has completely and finally renounced the world; or

 Apostasy: has ceased to be a Hindu; or
 Unsound mind: has been declared to be of unsound mind by a Court of competent
jurisdiction.

Person Who Can Give The Child-Giving In Adoption

Three categories of persons: Section 9 of the Act deals with persons who can lawfully give
a son or daughter in adoption. Only three categories of persons, that is, the father, the mother
and the guardian are given this right. Further, it is also clarified that the terms father and
mother do not include the adoptive father and the adoptive mother.

Equal right of father and mother: Under the amended section, both father and the mother
have an equal right to give a son or daughter in adoption. Even so, either of them cannot
exercise this right except with the consent of the other spouse, unless such other spouse:

 has completely and finally renounced the world; or

  has ceased to be a Hindu; or
 has been declared to be of unsound mind by a Court of competent jurisdiction.

The guardian means a person having the care of the minor's person, or of both his person and
property, and includes. The guardian of the child has also been given the power to give a
child in adoption, with the previous permission of the Court, in cases where both the father
and mother:

 are dead; or
 have completely and finally renounced the world; or
 have abandoned the child; or
 have been declared to be of unsound mind by a Court of competent jurisdiction;
 or the parentage of the child is not known.

The Person Who Is Adopted Should Be Capable Of Being Taken In Adoption

Section 10 provides that no person shall be capable of being taken in adoption, unless the
following four conditions are satisfied, viz.

 he or she is a Hindu
 he or she has not already been adopted;
 he or she is not married unless there is a custom or usage applicable to the parties,
which permits married persons being taken in adoption; and
 he or she has not completed the age of fifteen years unless there is a custom or usage
applicable to the parties, which permits persons over fifteen years being taken in
adoption.

A.S. Sailaja v. Kurnool Medical College: In this case child was given to adoption in a lower
caste family only for the purpose of getting reservation. But child was still living with hois
birth family. Physical transfer was missing which is an element of adoption. Violating section
11 which states Conditions of a valid adoption. Hence, admission got cancelled of that child.

Conditions For A Valid Adoption: As per section 11 in every adoption, the following
conditions must be complied with;
  if the adoption is of a son, the adoptive father or mother by whom the adoption is
made must not have a Hindu son, son's son or son's son's son (whether by legitimate
blood relationship or by adoption) living at the time of adoption;
 if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son's daughter (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
i. if the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be
adopted;
ii. if the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted;
iii. the same child may not be adopted simultaneously by two or more persons

Effects/Consequences Of Adoption (Section 12):

After adoption, the adopted child becomes the aurasa son of his adoptive parents and gets
disqualified to perform Sradha, Pinda Karma of his natural parents. Section 12 of the Hindu
adoptions and maintenance act, 1956 deals with the effects/consequences of the adoption

 An Adopted child is deemed to be the natural born child of his/her adoptive

father/adoptive mother.
 All the ties of the adopted child with the original family stand extinguished from the
date of adoption (i.e. Kinship disappears in the original family and is born in the
adaptive family). This rule is subject to the following exceptions:
i. The Child cannot marry any person, whom he/she could not have married
prior to the adoption.
ii. The property vested in the child prior to the adoption shall continue to vest,
subject to the obligations.
iii. The adopted child shall not divest any person in the adoptive family of any
estate, which is vested in him/her before the adoption. (i.e. the adoption of
child does not affect the rights and the members of the adoptive family).
 MODULE 2
CRITICAL NOTE ON THE POWERS OF A NATURAL GUARDIAN & DE FACTO GUARDIAN UNDER THE
HINDU MINORITY & GUARDIANSHIP ACT, 1956 & THE HINDU GUARDIAN & WARDS ACT, 1890
Under the Hindu Minority and Guardianship Act (HMGA) of 1956 and the Hindu Guardians and
Wards Act (HGWA) of 1890, the powers and responsibilities of natural guardians and de facto
guardians are outlined. However, it is important to note that the interpretation of these provisions
and the powers granted to these guardians can vary based on individual cases and judicial decisions.
Powers of Natural Guardians: The HMGA recognizes the father as the natural guardian of a Hindu
minor child under Section 6(a), followed by the mother as the natural guardian under Section 6(b).
The powers of natural guardians include:
a. Custody and Maintenance: Natural guardians have the right to custody and control of the child's
person and property, and they are responsible for the child's care, education, and maintenance. This
power is outlined in Section 8 of the HMGA.
b. Decision-making: Natural guardians have the authority to make important decisions on behalf of
the child. They can consent to medical treatment, determine the child's residence, and oversee their
education. The power to make decisions on behalf of the child is provided in Section 9 of the HMGA.
In the case of Githa Hariharan v. Reserve Bank of India (1999), the Supreme Court held that both
parents have equal rights as natural guardians under the HMGA. The court emphasized gender
equality and the best interests of the child in determining the powers of natural guardians.
1. Powers of De Facto Guardians:
The concept of a de facto guardian is not explicitly mentioned in the HMGA but is recognized under
the Hindu Guardians and Wards Act (HGWA). The HGWA provides guidance on the powers of a de
facto guardian.
a. Temporary Guardianship: A de facto guardian may exercise temporary guardianship over a child's
person and property in the absence of a legal guardian. Section 11 of the HGWA allows the court to
appoint a de facto guardian when it is deemed necessary or in the best interests of the child.
b. Limited Decision-making: A de facto guardian may make day-to-day decisions regarding the
child's routine matters, such as education, healthcare, and welfare. However, their powers may be
limited compared to those of a legal guardian. The extent of the de facto guardian's powers is
determined on a case-by-case basis, considering the best interests of the child.
In the case of Saraswathi Amma v. V.K. Velayudhan (2003), the Kerala High Court held that a de
facto guardian's powers are not as extensive as those of a legal guardian. The court emphasized that
a de facto guardian can act only within the limits of necessity and the best interests of the child.
It is important to note that the powers of natural and de facto guardians can be subject to judicial
interpretation and intervention based on the specific circumstances of each case. The courts
prioritize the best interests of the child and ensure that the exercise of these powers aligns with the
child's welfare, protection, and development.
Powers of a Natural Guardian: Section 8 of the HMGA lays down the powers of a natural
guardian.
Section 8 (1) provides that the natural guardian of a Hindu minor has power to do all acts
which are necessary or reasonable and proper for the benefit of the minor or for the
realisation, protection or benefit of the minor's estate. Also, the guardian cannot bind the
minor by a personal covenant in any case.

Section 8 (2) provides that the natural guardian shall not, without the previous permission of
the court:

 mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the
immovable property of the minor; or
 lease any part of such property for a term exceeding five years or for a term extending
more than one year beyond the date on which the minor will attain majority.

Section 8 (3) specifies that 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 or
by any person claiming under him.

Section 8 (4) provides that no court shall grant permission to the natural guardian to do any of
the acts mentioned in sub-section (2) except in the case of necessity or for an evident
advantage to the minor.

Section 8 (5) provides that the Guardians and Wards Act, 1890, shall apply to and in respect
of an application for obtaining permission of the court under sub-section (2) in all respects as
if it were an application for obtaining the permission of the court under section 29 of that Act.

PROVISIONS RELATING CUSTODY OF CHILD

Under the Hindu Minority and Guardianship Act (HMGA) of 1956 and the Hindu Guardians and
Wards Act (HGWA) of 1890, provisions are made regarding the custody of a child. These provisions
outline the legal framework for determining custody and the factors considered in deciding what is
in the best interests of the child.
Hindu Minority and Guardianship Act (HMGA), 1956:
a. Section 13: This section empowers the court to determine the custody of a minor child. It states
that in any proceeding regarding the custody of a minor, the court shall be guided by the welfare of
the child as the paramount consideration.
Gaurav Nagpal v. Sumedha Nagpal (2009):
In this case, the Supreme Court emphasized that while determining custody, the welfare of the child
is of paramount importance. The court held that the court should consider various factors such as
the child's age, health, educational needs, and the conduct of the parents.
Hindu Guardians and Wards Act (HGWA), 1890:
a. Section 7: This section outlines the factors to be considered by the court in determining the
custody of a minor. These factors include the age, gender, and wishes of the child, as well as the
child's religious and cultural upbringing.
Rosy Jacob v. Jacob A. Chakramakkal (1973): In this case, the Supreme Court held that the
paramount consideration in determining custody is the welfare of the child. The court emphasized
that the happiness, welfare, and well-being of the child must be the primary concern while deciding
custody disputes.
b. Section 17: This section empowers the court to make orders regarding the custody and
maintenance of the minor. It gives the court the authority to specify the duration, conditions, and
restrictions of custody.
Nil Ratan Kundu v. Abhijit Kundu (2008): In this case, the Supreme Court held that while
determining custody, the court should consider the best interests and welfare of the child. The court
should also take into account the child's emotional, physical, and educational needs.
These provisions and case laws highlight the importance of the child's welfare as the paramount
consideration in determining custody. The courts take into account various factors such as the child's
age, health, wishes, and overall well-being while making custody decisions. It is essential to note that
the application and interpretation of these provisions may vary based on the specific facts and
circumstances of each case, as well as the discretion of the presiding judge.

CAN MOTHER OF CHILD BE GUARDIAN IN PRESENCE OF FATHER?

According to the Hindu minority and guardianship act (HMGA) of 1956, the father is considered the
natural guardian of a Hindu minor child. However, the mother can also be recognized as a guardian
under certain circumstances.
Hindu minority and guardianship act (HMGA), 1956:
a. Section 6: this section defines the natural guardians of a Hindu minor. It states that the father is
the natural guardian, and, in the absence or incapacity of the father, the mother becomes the
natural guardian.
Githa Hariharan v. Reserve bank of India (1999): in this landmark case, the supreme court clarified
that both parents have equal rights as natural guardians of a minor child. The court held that the
mother, like the father, can act as a natural guardian of the child. The court emphasized gender
equality and the best interests of the child while determining the rights of the mother as a natural
guardian.
B. Section 8: this section deals with the powers and duties of a natural guardian. It grants the natural
guardian the authority to care for and make decisions regarding the child's person and property.
C. Section 13: this section empowers the court to determine the custody of a minor child, keeping in
mind the welfare of the child as the paramount consideration.
Surya vadanan v. State of tamil nadu (2015): in this case, the madras high court held that the
mother can be appointed as the guardian of the minor child if it is in the child's best interests. The
court considered the welfare of the child and concluded that the mother was better suited to be the
guardian in that particular case.
Based on the provisions of the HMGA and the case laws above-mentioned, it is clear that the mother
can be recognized as a guardian of a child in the presence of the father. Thus, the rights of both
parents as natural guardians are upheld, and the determination of guardianship is made based on
the best interests of the child.

GEETHA HARIHARAN V. RESERVE BANK OF INDIA (1999)

The case of Geetha Hariharan v. Reserve Bank of India (1999) was a significant landmark case in
Indian jurisprudence that addressed the issue of gender equality in parental rights and the
interpretation of the Hindu Minority and Guardianship Act (HMGA) of 1956. This case highlighted
the rights of both parents as natural guardians and the principle of the best interests of the child.
Background:
Geetha Hariharan, the petitioner, challenged the requirement of obtaining the father's consent for
opening a bank account for her minor children. She argued that the requirement infringed upon her
rights as a mother and violated the principles of gender equality enshrined in the Indian
Constitution.
Issues:
1. Interpretation of the HMGA: The primary issue in this case was the interpretation of Section
6(a) and (b) of the HMGA, which defines the natural guardians of a Hindu minor child. The
section recognizes the father as the natural guardian, and in the absence or incapacity of the
father, the mother assumes the role.
Rules:
1. Section 6(a) and (b) of the Hindu Minority and Guardianship Act (HMGA): These provisions
recognize the father as the natural guardian, and in the absence or incapacity of the father,
the mother assumes the role of the natural guardian.
2. Article 14 of the Indian Constitution: This article guarantees the right to equality before the
law and prohibits discrimination based on gender.

Analysis:
The Supreme Court analyzed the provisions of the HMGA and the underlying principles of gender
equality and the best interests of the child. The court emphasized that the welfare of the child is of
paramount importance in determining guardianship rights and that both parents should be
considered as equal natural guardians.
The court held that the requirement of obtaining the father's consent for matters related to the
child's welfare and finances unjustly restricted the mother's rights as a natural guardian. It
emphasized that gender equality should be upheld, and the mother's consent should be treated on
par with that of the father.
Conclusion:
The Supreme Court ruled in favor of Geetha Hariharan, stating that the requirement of the father's
consent for opening a bank account for the minor children was unconstitutional and violated the
principles of gender equality. The court held that both parents have equal rights as natural guardians
and their consent is required for important decisions concerning the child's welfare.
Significance:
The Geetha Hariharan case played a crucial role in establishing the equal rights of both parents as
natural guardians and recognizing the importance of the best interests of the child. It contributed to
the evolving understanding of gender equality and parental rights in Indian family law.

MODULE 3 (SURROGACY)

Meaning of Surrogacy and its types

Surrogacy had been derived from the latin word surrogatus which means replacement. In
simple terms, Surrogacy is process in which a woman gave birth to a child and handed it to
another couple. 'Surrogacy' is an arrangement where an agreement is made with a woman to
bear a child for 9 months and then handover it to another married couple. The woman who
bears the child is known as surrogate mother and the child born out through this arrangement
is known as surrogate child. The women are indulged in the act of surrogacy because of
money. It is a good business which earns a lot of money.

Surrogacy (Regulation) Bill, 2019 has been introduced in the Lok Sabha. The Bill aims
to prohibit commercial surrogacy in India.

Commercial surrogacy, a practice also known as 'Rent a Womb', was legalised in India in the
year 2002, in order to promote medical tourism. And soon, India became the hub of
surrogacy. Driven by factors like low cost and the absence of a strict legislation, commercial
surrogacy became a booming business in the country.

The Salient Features of this bill are as follows -:

 Proposal for making commercial surrogacy illegal,

 Allows altruistic surrogacy only,
 Requires intended parents to be married for five years,
 The Intending parents need to have a certificate of their infertility,
 Women can be a surrogate mother only once in her lifetime,
 The surrogate mother should be a close relative of the intended parents,
 The surrogate mother should be married and have a biological child &
 Bans single parents, homosexuals and live-in couples from surrogacy
  It also specifies that no sex selection can be done when it comes to surrogacy.

Criticism of the Bill

 It prevents same sex couples from having surrogate children even though
there is a credible scientific research to show that same sex parents are as good
as hetrosexual parents, thus violating the Article 14 of the Constitution.
 The Bill also violates the Puttaswamy judgement of the Supreme Court (Right
to privacy was added in the list of fundamental rights guaranteed by the
Constitution).
 The eligibility condition under the Bill amounts to unreasonable restriction on
the reproductive rights of a married Indian couple, violative of Article 21 of
the constitution.
A case came forward Baby Manji Yamda V. Union of India, in which a baby was born out
of surrogacy and handed over to Japanese couple but she was unable to leave India because
her nationality was not identified yet. The apex court in this case issued travel certificate to
the baby considering commercial surrogacy as legal in India and Japanese government
granted one- year visa to her on humanitarian grounds.

Ethical and Legal Implications of Surrogacy in India:

Although, surrogacy is introduced with the motive to provide parenthood feelings to infertile
couples and for economic assistance to surrogate mother who has to fight every day for her
subsistence living. But, due to lack of proper surrogacy legislation, only the middlemen are
profit earners and intended couples and surrogate mothers are in a way being exploited. There
are several moral and legal issues related with commercial surrogacy.

As per the latest Surrogacy Bill of 2019, commercial surrogacy has been banned and
altruistic surrogacy had been permitted. The main reasons to ban commercial surrogacy were
to prevent the exploitation of women, selling and purchasing of babies, illegal trading of
human embryos The criteria mentioned for surrogate mother that she should be a close
relative of infertile couple but not accurately defined the term close relative makes it a little
vague to understand the concept.

The parents have to wait for 5 years and had to get a medical certificate from Doctors and
have to complete certain legal formalities, which is itself a very complex and time consuming
task. It is also very sarcastic that live- in couples are not allowed to go for surrogacy. This, in
a way, is discriminating for live- in couples, who are not married, as for having a child,
marriage is a compulsory criteria.

This means that live- in couples cannot enjoy the parenthood feeling without getting married.
It is practically very difficult to find out such a women, who is a close relative and is ready to
carry pregnancy for the intended couples free of cost. It become more complex in the case if
the women (in close relative) is working as she does not have time to have children of her
own, then, how could she find time to carry pregnancy for that intended couples? In between
a major concern about society is drawn that what society will think of her. Societal and
family impression is the big issue as society never accepts this kind of behaviour..

Next big concern which arose is that attachment of mother with her child. It is very difficult
for any mother to keep her child away from her because of an emotional attachment built
between gestational mother and child. Making surrogacy agreements by the intended couples
with the women within their relation could even cause genetic disorders in child. This makes

clear that exploitation can be done even in the altruistic surrogacy.( Altruistic surrogacy
refers to those surrogacy agreements where the surrogate does not receive monetary

compensation.)

There are no laws made which accurately deal with surrogacy contracts. Surrogacy morally
degrades the dignity of women in the eyes of society as ultimately it is a woman carrying
pregnancy for the enjoyment of another couple who are infertile to procreate a child. There is
possibility that child could have emotional problems after knowing that he or she is not the
biological child of commissioning mother.

ADOPTION VS SURROGACY

What’s the difference between adoption vs surrogacy?

There are several differences between adoption vs surrogacy. In an adoption, the potential
parents are called adoptive parents. In a surrogacy, the potential parents are called intended
parents. Here are some main differences between adoption vs surrogacy:

 Adoption involves bringing a child into your life who is not biologically related to
you.

 In a surrogacy, a woman becomes pregnant through in vitro fertilization (IVF) using

the intended parents’ sperm and egg (or the sperm and/or egg of a donor).
  Intended parents have a legally binding contract with the surrogate. The surrogate
cannot change her mind and keep the baby after it is born.

 There are no legally binding “adoption contracts” that say who the parents will be.
The birth mother can change her mind and keep the baby after it is born.

 Adopting parents become the legal parents of their child several months after the child
is placed with them.

 Intended parents become legal parents before the child is born.

Adoption versus Surrogacy: Pros and Cons

Adoption involves a lot of uncertainty. Surrogacy is much more certain, and the intended
parents have much more control over the process than in an adoption. Here are some of the
pros and cons:

 A child born via surrogacy is biologically related to the intended parents.

 The legal status of the intended parents is certain in surrogacy.

 The surrogate might not be able to get pregnant. The intended parents may worry that
that IVF will fail.

 Adoption makes a stable home possible for a child who needs it.

 A woman chooses adoption when she is already pregnant. Adoptive parents do not
have to worry whether the birth mother will get pregnant. There is already a baby in
utero.

 The birth mother can change her mind after the baby is born.

 Adoptive parents have no control over the prenatal environment. Adoptive parents
may know little about their child’s medical history.

Adoption versus Surrogacy: Cost

 Surrogacy is expensive. The costs include medical expenses for IVF, out of pocket
expenses incurred by the surrogate, possibly compensation to the surrogate.
Surrogacy also includes medical expenses for pregnancy and delivery, and legal
costs.

 Adoption is less expensive. It includes at least the cost of a home study. Most people
need help finding a baby to adopt. A birth mother might also need help with expenses.
Most states allow adopting parents to help birth mothers with expenses.
 MODULE 4

Succession/Inheritance Under Hindu Law:

Hindus were governed by Shastric and Customary laws which varied from region to region
and sometimes it varied in the same region on a caste basis. As the country is vast and
communications and social interactions in the past were difficult, it led to adversity in the
law.
The two systems of inheritance which are predominant amongst the Hindus in India are;
Mitakshara system and Dayabhaga system. Dayabhaga system prevails in Bengal,
Mitakshara system in other parts of India. The difference between the two systems arises
from the fact that, while the doctrine of religious efficacy is the guiding principle under
Dayabhaga School, there is no such definite guiding principle under Mitakshara School.

Mitakshara System recognizes two modes of devolution of property, namely, survivorship

and succession. The rule of survivorship applies to joint family property, the rule of
succession apply to property held in absolute severalty by the last owner. The reason is that
while every member of a Mitakshara joint family has only an undivided interest in the joint
property. On birth, the son acquires a right and interest in the family property.

According to this school, a son, grandson and a great grandson constitute a class of
coparcenars, based on birth in the family. This means that with every birth or death of a male
in the family, the share of every other surviving male either gets diminished or enlarged. If a
coparcenary consists of a father and his two sons, each would own one third of the property.
If another son is born in the family, automatically the share of each male is reduced to one
fourth. No female is a member of the coparcenary.

Dayabhaga recognizes only one mode of devolution, namely, succession. It does not
recognize the rule of survivorship even in the case of joint family property, a member of a
Dayabhaga joint family holds his share in quasi-severalty, so that it passes on his death to his
heirs as if he was absolutely seized thereof, and not to the surviving coparceners.

The Dayabhaga school neither accords a right by birth nor by survivorship though a joint
family and joint property is recognized. Neither sons nor daughters become coparceners at
birth nor do they have rights in the family property during their father's lifetime. However, on
his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School
that the daughters also get equal shares along with their brothers.

Joint Hindu Family

A joint Hindu Family consists of all persons lineally descended from a common ancestor, and
includes their wives and unmarried daughters. Joint Hindu Family is controlled by the head
of the family and is called Karta. Gowli Buddanna v. Commissioner of Income-tax, Mysore.

There must be atleast two members to constitute it. It may even consists of two female
members. It may similarly consists of a male Hindu and the widow of the deceased
brother Smt. Sitabai and another v. Ramachandra

No doubt, the Old Hindu Law, after coming into being of The Hindu Succession Act,1956
has been codified, to the extent mentioned therein. However, even, at the time of framing the
Act,1956, the concept of Joint Hindu Family co-parcenary property, was retained, by the law
framers. It was, under these circumstances, that Section 6 of the Act, was incorporated, in the
said Act, which relates to the mode of devolution of the property, which was co-parcenary, in
the hands of the male holder.

Under the Hindu Law, the moment a son is born, he gets a share in father's property and
become part of the coparcenary. His right accrues to him not on the death of the father or
inheritance from the father but with the very fact of his birth. Normally, therefore whenever
the father gets a property from whatever source, from the grandfather or from any other
source, be it separated property or not, his son should have a share in that and it will become
part of the joint Hindu family of his son and grandson and other members who form joint
Hindu family with him. This position has been affected by section 8 of the Hindu Succession
Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation
contemplated by Section 8, he does not take it as Karta of his own undivided family but takes
it in his individual capacity. The son's son would not have any right in the property of his
grand father.

What Is the Concept of Ancestral Property?

Ancestral property means any movable or immovable property an individual inherits from

their ancestors. It includes properties that are inherited as well as properties that are acquired
through inheritance, gift, purchase, or any other means. The law governing the concept of

ancestral is different in each country, but it typically covers a wide range of assets, including

land, buildings, businesses, and securities.

To Whom Does the Ancestral Property Concept Apply?

The Hindu inheritance law treats ancestral property as part of the deceased’s estate, while

Muslim law does not recognise it as a separate estate.

The concept may also apply to other religions, although there is no definitive answer.

Ancestral property is important in India because it allows people to pass on assets to their

descendants without having to pay taxes on them. This is especially important for families

who can save tax on their inheritances.

How the Ancestral Property Concept Evolved in India?

At one time, it was commonplace for families to inherit the land and other holdings from

their ancestors. Today, the concept of ancestral property is more nuanced, and it can refer to a

wide range of assets and investments that a family may own.

Under Indian law, ancestral is generally defined as any land or assets a family acquires.

Today, the ancestral property typically refers to real estate and other investments held by

families through trusts or other legal arrangements. These assets can include land, hotels,

factories, and shops.

Ancestral is an important asset for the descendants of indigenous peoples and those who

share the same ancestral heritage. Thus, ancestral property is essential for preserving cultural

traditions and passing on knowledge from one generation to another.

The loss of access to the ancestral property can also have devastating effects on the natives’

way of life by depriving them of their only source of income, for example, by eliminating

their ability to use their land as a source of livelihood or by retarding the development of

family businesses.
What Is Self-Acquired Property in India?

In India, self-acquired land refers to any land a person acquires through efforts without

anyone else’s help. This includes things like land, businesses, and personal belongings. Self-

acquired property is mostly protected by law in India, meaning people can usually keep it

unless they violate someone else’s rights.

Does Indian Law Recognise Self-Acquired Property?

Self-acquired property is a legal concept in Indian law that has been defined in different ways

by various courts. The concept of self-acquired land has been considered by Indian courts to

include both movable and immovable assets acquired by the individual.

The concept of self-acquired land has been considered by Indian courts to have a significant

impact on the way that individuals can own and use their assets. The ruling in one case even

stated that the concept of self-acquired land was ‘fundamental’ to the Indian legal system.

However, the concept of self-acquired property does not always enjoy unanimous support

among Indian courts. In particular, some courts have expressed concerns about how the

concept can be used to protect an individual’s assets.

DIFFERENT MODES OF PARTITION OF COPARCENARY PROPERTY

INTRODUCTION

Partition means bringing joint family status to an end. It is a division of joint family property,
i.e., coparcenary property. Under Hindu law, a joint Hindu family means a family which
consists of two or more generations living together under the same roof and related to each
other mostly through the paternal side. The eldest member of the family is the head of the
family who enjoys supreme authority over the family, and all the major decisions relating to
family are taken by him. All other family members residing with him refer under Hindu law
as coparceners. Under the Dayabhaga school, coparceners already have ascertained and
specified shares, so the property division takes place by such shares. On the other hand, under
Mitakshara school, unlike Dayabhaga School, coparceners do not have ascertained and
specified shares; in this school division of property does not only divide the property into
specified shares but there is also the partition of status or severance of status or interest.

A partition can be made by any family member making a clear declaration of their desire to
be separated from the rest of the family. If the partition is done after the declaration, it
amounts to a split of status, regardless of the mode utilized. The partition can be affected by a
suit, by referring the dispute over property division to arbitration, or by a demand for a
portion in the properties. It can also be affected by a property division agreement, etc.

Partition by Suit: Partition suit - When a member of a joint Hindu family files a petition, it
amounts to an unmistakable declaration of intent to separate. As a result, severance of status
happens on the date the suit is filed rather than on the date of the decision. A court order does
not affect partition. Even if such a lawsuit were to be dismissed, the split in status would still
be presumed to have occurred. There is no severance of status if the suit is withdrawn before
trial due to the plaintiff's lack of desire for separation ('before trial' means before the
summons is served on the defendants, i.e., before the communication of intention).

Partition by Agreement: The partition can also be initiated through an agreement. The
agreement may be oral or written. The intention of separation must be expressed. The
severance of status occurs on the date the agreement is signed. A written agreement that
describes what transpired does not need to be registered. However, if the agreement divides
properties, registration is required. The Privy Council stated in "Approver v. Ram Subba
lyer that no coparcener can claim any defined share in joint family property, but where the
coparceners agree that each member will have a specific and defined share in the future, the
joint status is affected and each coparcener acquires the right to separate his specific share
and use it to the exclusion of others."

Oral Partition: Partition may also be effected orally. There is no law requiring that partition
must be effected by written instruments and oral partition can be validly done. According to
the "Privy Council in Rewan Prasad V. Mst. Radha, it was acknowledged that a written
document is not necessary for the purpose of making partition of property."

Unilateral Declaration: Another mode of effecting is by unilateral declaration. This partition

is done when any of the coparceners makes a declaration of his intention to partition the joint
family property. But there should be clear and unequivocal intention to partition and the
intention must be communicated to all other coparceners. "It is settled law that a member of a
joint Hindu family can bring about a separation in status by a definite declaration of his
intention to separate himself from the family and enjoy his share in severalty by a definite
declaration of his intention to separate himself from the family," the Supreme Court said in
"Raghvamma v. Chenchemma.

Partition by Arbitration: The partition can also be done by appointing an arbitrator.

Members of the joint family may agree to the appointment of an arbitrator for the purpose of
dividing joint family property. When all of the coparceners jointly refer the issue of the
partition of their shares to an arbitrator, it expressly indicates that they intend to separate from
joint status. Even if no award is given in such cases, their intent is not lost.

Partition by Conduct: The partition can also be done through conduct. But the conduct
should be clear and unequivocal. What conduct will amount to severance of status will
depend on the facts and circumstances of each case. For instance, separate income and
expenditure, separation of food, separate enjoyment of the property, etc., are some examples
when conduct may amount to partition.

Partition by Will: A will, also known as a testament, is a legal document in which a person,
known as the testator, states their desires for how their property should be dispersed after they
die and names one or more people, known as the executors, to administer the estate until its
final distribution. Coparceners can divide their property by writing a will. The will must state
clearly and unequivocally that he wishes to be separated from the joint family.

Partition by Notice: The partition can also be done by serving Notice to other coparceners.
The most significant feature of partition is the intention to separate, which must be declared
to other coparceners. As a result, a notice to the coparceners, whether or not accompanied by
a suit, may be sufficient to achieve partition.

Partition by Father: The partition can also be one by the father; even if the sons do not
consent, the father has the power to separate them. According to Hindu law, the father has the
authority to divide his property at any moment throughout his lifetime, and his sons are
bound by it. It would bind the sons not just because they agreed to it, but because the father
does have the authority to do so, but that authority is restricted by the utility of the authority
and the family's overall interests. It must be assessed whether or not it is legal in the spirit of
Hindu law.

SCOPE & PURVIEW OF AMENDMENT OF 2006

CHANGES BROUGHT BY HINDU SUCCESSION (AMENDMENT) ACT, 2005

 Provision which expressly denied the application of HSA, 1956 to prevention of

fragmentation of agricultural holdings or for the fixation of ceilings or for the
devolution of tenancy rights in respectof such holdings has been omitted.
 Provision dealing with devolution of coparcenary right under Mitakshara School was
substituted with new law.
 Daughter is given the same rights in coparcenary property and imposed same
liabilities as obligated on a son.
 Coparcenary right is given to daughter from 9th September 2005, the date of
commencement of Amendment Act, 2005.
 Daughter's right to claim partition is recognised but is limited to coparcenary property
which has not been partitioned, alienated or disposed before 20th December 2004,
 Daughter's coparcenary share is liable to fluctuate with birth of coparcener in the
family.
 Daughter also has the right to make testamentary disposition of her coparcenary share.
 The Amendment Act, 2005 introduces the mode of partition of coparcenary property
to be only by registered deed or by decree of court.
 Devolution of property after the Amendment Act, 2005 could be only by intestate
succession or testamentary succession ie., devolution of survivorship has been
completely removed.
 Daughter as coparcer er has right to be given the same coparcenary share as is given
to son. The share of the pre-deceased child, both male and female, as he/she would
have been allotted at the time of partition, is allotted to his surviving child. Similarly
share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter,
as such child would have got had he or she been alive at the time of the partition, is
allotted to the child of such pre deceased child of the pre-deceased son or a pre-
deceased daughter.
  Creditor's right to file a suit on the basis of pious obligation is not maintainable after
the enforcement of the Amendment Act, 2005 but retains his right to file a suit for
past debt and protects nd 100 alienation made in satisfaction of such debt.dd gay
 Notional partition introduced by parent Act, HSA, 1956 is retained.
 The separated coparcener has right to inherit the coparcenary property of deceased
coparcener which devolves by intestacy.
 The provision disentitling a female of Class I to claim partition of dwelling house and
disentitling a married daughter the right of residence in the dwelling house has been
omitted.
 The disqualification on widow of pre-deceased son, or widow of pre- deceased son of
a pre-deceased son or widow of brother to inherit property on her remarriage before
succession opened has been deleted.

RIGHTS AND LIABILITY OF KARTA

In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position.
There is no office or institution in any other system of the world can be compared with it. He
is a person with limited power but he possess such vast power with in ambit of joint family
which nobody enjoys.

Who is a Karta:- Karta means manager of joint family and joint family properties. He is the
person who takes care of day to day expenses of the family looks after the family and protects
the joint family properties.

Who can be a Karta:-It is a presumption that ordinarily senior most male member is the
Karta and Karta is always a member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues
as Karta. By his death Kartaship will pass on to next senior most male member.

In the presence of senior most male member a junior cannot act as Karta but if all coparcener
agree, a junior also can become a Karta. Karta owes his position by consent or agreement of
all coparceners.
Female Member:-Generally female member cannot become Karta but in exceptional
circumstances female also can act as Karta. Nagpur High Court held the view that mother
even though not a coparcener, in the absence of adult male member can act as Karta.

Position of Karta:- Karta is sui generis (of its own kind) the relationship between him and
members is not like principal or agent or like partners in a partnership firm. He is the head of
the family and acts on behalf of other members. He stands fiduciary relationship with other
members but he is not a trustee, nobody can question what he spent unless charges of
misappropriation.

When any coparcener charges of improper alienations made by Karta, burden of proof lies on
him to prove such are malafide act of Karta.

Powers of Karta:-With in joint family Karta has vast powers with limitations.

i. Power of management:- He is the head of the family, his management powers are
absolute. He may manage the family affairs and family property and business the way
he likes for the benefit of estate, no one can question his management.
ii. Right to Income:- It is general rule that all members who works or do business out of
joint family property must hand over income to Karta. It is for Karta to allot funds to
the members and look after needs and requirements, so long as family remains joint,
no member can ask for any specified share in the income.
iii. Right to representation:- He represent the family, represents the family in all matters,
legal, social and religious. He can enter into any transaction on behalf of the family,
his acts are binding on the entire joint family.
iv. Power to compromise:- He has power to compromise all disputes relating to family
property or their management. He can compromise pending suits, family debts, and
other transactions. However if his act is not bonafide can be challenged in a partition.
v. Power to refer a dispute to arbitration:- Karta has power to refer any dispute to
arbitration and Arbitrator’s award is binding on all the members.
vi. Power of acknowledgement and to contract debts:- Karta has power to acknowledge
on behalf of the family any debt due to the family, also has power to pay debt or to
make pack payment of debt.
vii. He has power to contract debts for the family such debts incurred in the ordinary
course of business are binding on entire joint family.
 viii. Even Karta when takes loan or execute promissory note for family purpose or
for family business joint family is liable to pay such loan.
ix. Power to enter into contract:- Karta has power to enter into contract and such contract
is enforceable against the family.
x. Power of alienation:- Nobody in the family has power to alienate joint family
property. However Karta has power of alienation under 3 circumstances.
 Legal Necessity
 Benefit of estate
 Indispensable duties

Kartas Liabilities: Karta has vast powers same time his position is fiduciary and has lot of
responsibilities and liabilities.

 Liable to maintain:- Karta is responsible to maintain all the members of joint family.
If he improperly excludes any member from maintenance, he can be sued for
maintenance and also arrears of maintenance.
 Liability to render accounts:- As long as family remains joint, Karta is not supposed
to keep accounts, but when partition takes place at that time he is liable to account for
family property. If any of the coparcener is not satisfied with his account can institute
a suit against Karta to discover the truth and to know any misappropriation is made by
Karta.
 Liability to recover debts due to the family:- Kartas should realize all debts due to the
family with in reasonable time but should not allow them to bar by limitation.
 Liability to spend reasonably:- As Karta of joint family has control over the income
and expenditure of the family, he is custodian of surplus income. However he should
spend family funds reasonably and for the purpose of the family.
 Liability not to alienate coparcenary property:- Unless it is for benefit of family, estate
or for necessity Karta cannot alienate joint family property without the consent of all
the coparceners.

CONCEPT OF STRIDHAN
Stridhan
The Smritikars defined "Stridhan" as the property that a female got as a gift from her kin,
which mostly consisted of moveable property. During both the bridal procession and the
wedding ceremony, Stridhan is said to be carrying gifts provided by her wedding guests. In
the case of Bhagwandeen Doobey v. Maya Baee (1869), the Privy Council stated that the
possessions that a Hindu female acquires from men are not covered by Stridhan. Instead, the
properties will be categorised as "women's estate."

In the case of Kasserbai v. Hunsraj (1906), The Bombay High Court created the Bombay
School doctrine, according to which property inherited from other females is termed Stridhan.

The Hindu Succession Act of 1956 declared the joint property received by partition to be an
absolute property, or Stridhan. As the owner of absolute property, a woman has complete
control over its alienation, which means she may give, sell, lease, trade, mortgage, or do
whatever she wants with it.

The Supreme Court of India had observed in the case of Pratibha Rani v. Suraj Kumar &
Anr (1985) that according to Mitakshara and Dayabhaga Schools, Stridhan consists of the
following items in the hands of a woman (maiden, married, or widow):

 Gifts given before the nuptial fire.

 Gifts given at the time of the bridal procession.
 Gifts given as a gesture of love by her mother-in-law or father-in-law at the occasion
of her marriage.
 Gifts created by the women's mothers, fathers, and brothers.

Sections 15 and 16 of the Hindu Succession Act, 1956, respectively, provide forth basic
norms of succession for female Hindus, as well as the sequence of succession and mode of
distribution among a female Hindu's heirs.

Stridhan vis a vis dowry: Despite the fact that 'Stridhan' and 'Dowry' are two distinct terms,
they are sometimes used interchangeably. Under domestic law, dowry refers to any property
or valuable security given or agreed to be given by the bride's family to the bridegroom's
family before, after, or during the marriage.

The most important contrast between 'dowry' and 'Stridhan' is that the former includes
"demand, undue influence, or force," whilst the latter does not. Stridhan is a gift given
willingly to women rather than as a consequence of coercion, undue influence, or force. The
difference between Stridhan and dowry has been established by Indian courts. The main
reason for this distinction is because if a future marriage fails, the lady will be able to collect
the things she got as Stridhan, whereas dowry gifts would not be recoverable.

in the case of Pratibha Rani v. Suraj Kumar (1985), the Apex Court established the
distinction between dowry and Stridhan. It was agreed that the lady would be the sole
proprietor of her Stridhan and may use it whatever she pleased. While the husband had no
right or interest in the Stridhan under normal circumstances, it was determined that he might
use it in times of extreme sorrow and must return it when he was able.

SECTION 14 OF HAS ACT

Before getting into who the heirs of the female's property are, it is significant to understand
what the female Hindu's property is and to what extent and scope. Section 14, Hindu
Succession Act, 1956 states that 'a female Hindu's property is her absolute property'. The
term absolute here implies that any property which she earned, inherited, got as a gift or as
maintenance either before or after the commencement of this act will be only hers.

In view of Section 14(1), it is immaterial as to how the female acquired the property and after
the commencement of this act, if she possess any property it is considered as her absolute
property as held in the case of Chaudhary v. Ajudhia. However, in the light of Section
14(2) of this act, if the property is the first time acquired property and that too by a 'grant
without any pre-existing right', it cannot be treated as her absolute property.

Scope and Extent: The absolute right of a female to the property possessed by her is not only
limited to the actual possession but also the constructive possession. The term 'possession'
has been used in a wider sense so as to include the "state of owing or having in ones hand or
power".

The term 'property' is restricted in this Section to not include the sum of money given for
maintenance as held in the case of Sulabha v. Abhimanyu. But any property acquired as a
right to maintenance by the karta of a Joint Hindu Family is the widow's absolute
property.The right will not be absolute if she has been specifically given a limited estate as
this is covered in Section 14(2).
Succession Of The Property Of A Hindu Female: Prior the commencement of the act, the
laws relating the succession of a female's property were very complex and confusing.

This act simplified the provisions and divided it into three heads:

 Property inherited by parents.

 Property inherited by husband or in-laws.
 Other Sources.

The basic idea behind dividing it into different sources is that the property should go back to
its original source. However, this criterion is applied only when the woman does not have
children. If she has children, the source of the property is immaterial and they will
automatically be the first heirs of the property.

MODULE-6
CHRISTIANS SUCCESSION: The ISA, 1925 provides for the inheritance laws for all
other religions, including Christians. Christians have varied laws on succession and familial
relations. The rules for succession among the Christians has been codified under the ISA,
1925. Certain customary practices also influence the principles of inheritance in case of
Christians and have also been considered by the courts in India. Customary practices also
have an influence on the principles of inheritance, protestant and Tamil Christians (Living in
certain talukas) are still governed by their respective customary laws.
Sources of CL
MOSAIC LAW – consider to be the old testament, also called Divine law, Biblical law, Law
of Moses (Holy covenants-10 commandments)
CANON LAW – Body of laws and regulations made by ecclesiastical authority for the govt
of the Christian organization & its members. (Marriage and property)
APOSTOLIC DECREE – observed by the Greek orthodox church
Succession, in brief, deals with how the property of a deceased person devolves on his heirs.
This property may be ancestral or self-acquired, and may devolve in two ways:
1. By Testamentary Succession, i.e. when the deceased has left a will bequeathing his
property to specific heirs
2. By Intestate Succession, i.e. when the deceased has not left a will, whereby the law
governing the deceased (according to his religion) steps in, and determines how his estate
will devolve.
-Laws of Succession applicable to Christians for the intestate the governing law is the Indian
Succession Act, 1925 specifically under S.31 to 49 of the Act.
-This Act recognizes three types of heirs for Christians:- 1. Spouse 2. Lineal Descendants 3.
Kindred
Lineal descendants: means “ a descendant born out of a lawful marriage”
-Thus a daughter’s illegitimate son or a son’s illegitimate daughter or other illegitimate issue
cannot be said to be a “Lineal Descendant” ( illegitimate child is not a child in eye of this
Act) Case: Jane Anthony V. Siyath recognized the right of illegitimate child under ISA,1925.
Kindred or Consanguinity: “Kindred” means relation by blood through a lawful marriage.
Therefore, relations by illegitimate birth are not recognized as kindred under the act.
-Kindred does not include relation by affinity such as mother-in-law or step mother or step
father. Thus, a step father or a step mother has no legal right of Succession to the property of
his or her step children. The position is the same in the case of a father-in-law as well.
-S.25 of Act qualifies “lineal consanguinity” with regard to descendants in direct line. Under
this fall, descendants from one another or both from the same common ancestors are laid
down.
-Now, succession can be either ‘per capita' (one share to each heir, when they are all of the
same degree of relationship) or ‘per stirpes' (division according to branches when degrees of
relationship are discrete).
-For Christians, if one were to claim through a relative who was of the same degree as
the 3 nearest kindred to the deceased, one would be deemed to stand in the shoes of such
relative and claim ‘per stirpes.'
-S.26 Act qualifies “Collateral Consanguinity” occurring when persons are descended from
the same stock or common ancestor, but not in a direct line (for example, two brothers)
- law for Christians does not make any distinction between relations through the father
or the mother. If the relations from the paternal and maternal sides are equally related
to the intestate, they are all entitled to succeed and will take equal share among
themselves.
- Earlier, the Indian law didn't recognize the adoption, especially the adoption by a Christian
but in the case of Joyce Pushapalath Karkada Alias v. Shameela Nina Ravindra Shiri, 2010,
it was held by the Court that even an adopted child has the right to succession as similar to
the rights of a natural-born child. There is no distinction made between the rights of adopted
or naturally born children.
- Also, no distinction is made between full-blood/half-blood/uterine relations; and a
posthumous child is treated as a child who was present when the intestate died, so long
as the child has been born alive and was in the womb when the intestate died.
-Christian law does not recognise children born out of wedlock; it only deals with
legitimate marriages. Furthermore it does not recognise polygamous marriages either.
CHRISTIAN INTESTATE/ INTESTATE SUCCESSION AMONG INDIAN
CHRISTIANS: S.30 of ISA, 1925 defines Intestate Succession thus, a person is deemed to
die intestate in respect of all property of which he has not made a testamentary dispossession
which is capable of taking effect. Thus, any property which has not already been allocated as
per legal process, will, upon the death of the owner, in so far, as he is an Indian Christian,
devolve as per the Rules contained in Chapter II of the Act. If a person has not made a
testamentary disposition of his property which is capable of taking effect, he is deemed to
have died intestate in respect of his entire estate. Intestacy is either total or partial. There is a
total intestacy where the deceased does not effectively dispose of any beneficial interest in
any of his property by will. There is a partial intestacy where the deceased effectively
dispossess of some, but not all, of the beneficial interest in his property by will.
PARSI PROVISIONS AND DETAILS:
Who is s Parsi?
 The Parsis came and settled down in India as a result of their persecution in their
native land, Persia.
 The Indian Parsis belong to the Zoroastrian faith, and in that sense in India, the words
‘Parsis’ and ‘Zoroastrians’ are synonyms.
 Zoroastrianism is founded on the belief in one God and on the basic principles of
good thoughts, good words and good deeds
  Sec 2 of Parsi Marriage and Divorce Act 1936 defines a Parsi as Parsi Zoroastrian,
professing Zoroastrian religion.
The Parsi intestate is administered by the rules mentioned under Part V chapter III of the Act
and it states how the estate is distributed among the legal heirs of the deceased. S 51 to 56
state about the intestate succession of Parsis, the general rules of Parsi intestate succession
are:
 No share for lineal descendant of an intestate who had died before the death of
intestate, only in distant issues the predeceased child of the intestate has left neither
any widow nor widower, children, nor any widow of lineal descendant od such pre-
deceased child. If the predeceased child of the intestate has any one of the
abovementioned relations alive, then that child's share shall be counted for the
distribution of the estate. (S-53)
 S.53(B): if the predeceased child is a daughter, then widower shall not get any share
but children of the pre-deceased daughter shall receive share of their mother, which
has be distributed equally among them. And if no lineal descendant of a daughter,
then her share won’t be counted.
 - No share will be given to nay widow or widower of any relative of the intestate if
person re-marriage during the lifetime of intestate.
 EXCEPTION- if the mother or paternal grandmother of the intestate marries again
during the lifetime of the intestate, then also they will be entitled to share in the estate.
MODULE 7 (Will and Codicil)

WILL& CODICIL
A Will is a declaration. A Will is by which a living person (called testator) declares his
desires or intentions. A Will is never an agreement or contract or settlement. It is for this
reason that the beneficiaries of a Will should not be parties to the Will.
Will is defined under section 2(h) of Indian Succession Act, 1925 as follows:
(h) “Will” means the legal declaration of the intention of a testator with respect to his
property which he desires to be carried into effect after his death. It is also worthwhile to look
at the definition of a codicil under Indian Succession Act, 1925.
(b) “Codicil” means an 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;
Clearly, a codicil is a document that is prepared in relation to an existing will to either modify
or explain or add to the provisions of the will. The codicil becomes part of the will to which it
relates and has no independent existence.
Another term that is relevant to the discussion about wills is “Probate,” which is defined as
follows by Indian Succession Act, 1925.
S.2(f) “Probate” means the copy of a will certified under the seal of a court of competent
jurisdiction with a grant of administration to the estate of the testator.
-Application for probate needs to be made to the appropriate court after the death of the
testator. Application for probate can be moved either by the executor of the will or by the
beneficiary/beneficiaries . If a court grants probate in relation to a will , all those acting on
the basis of the will have no ground to doubt the genuineness of the will.
Ingredients:- Legal declaration -Intention of testator -With respect to his/her property
-Desires to be carried into effect after his/her death
PERSON CAPABLE OF MAKING WILLS: Sec. 59 Persons capable of making wills
Every person of sound mind not being a minor may dispose of his property by will.
Explanation 1 A married woman may dispose by will of any property which she could
acierate by the "own act curing her" life.
Explanation 2 Person who are deal or cumb or blind are not thereby incapacitated for making
a will if they are able to know what they do by it.
Explanation 3 A person who is ordinarily insane may make a will during an interval in which
he is of sound mind.
Explanation 4 No person can make a will while he is in such a state of mind, whether arising
from intoxication or from illness or from any other cause, that he does not know what he is
doing.
There are only two considerations to determine capacity for making a Will. The first is that
the person should be of sound mind and the second is that he/she should not be minor.
Illustrations: A can perceive what is going on in his immediate neighbourhood, and can
answer familiar questions, but has not a competent understanding as to the nature of his
property, or the persons who are of kindred to him or in whose favour it would be proper that
he should make his will. A cannot make a valid will.
FORMATION OF A WILL
Registration of will is not mandatory, as under the Indian Succession Act, 1925, under
section 17 (Act), and according to section 18 (e) of the Registration Act, 1908. There is no
restriction on how many times a Will can be made by a testator. However, only the last Will
made before his death is enforceable. A Will has to be executed by the testator, by signing or
affixing his thumb impression on it. It should be attested by two or more witnesses, each of
whom should have seen the testator signing the Will.
When a person dies intestate i.e., dies after executing a will (testate/testament) the law applies
is, 'testamentary succession'. This part of the subject, the law of will deals with 'Testamentary
succession of Muslims and Non-Muslims i.e., Hindus, Christians, and others. The will of
Hindus is covered underSee. 30 ofthe Hindu Succession Act, 1956 and other than Muslims
covered under the Indian Succession Act, 1925. The will of Muslims is covered under
Muslim Law.
When a person makes a will, he/she is declaring how the assets and properties are disbursed
and to whom after his/ her death. Of course, the property and assets can't be ancestral, but
only self-owned.
Why you should make a will? Four reasons why you need a will:
 A will makes it much easier for your family or friends to sort everything out when
you die - without a will the process can be more time consuming and stressful.
 If you don't write a will, everything you own will be shared out in a standard way
defined by the law - which isn't always the way you might want.
  A will can help reduce the amount of Inheritance Tax that might be payable on the
value of the property and money you leave behind.
 Writing a will is especially important if you have children or other family, who
depend on you financially, or if you want to leave something to people outside your
immediate family.
TYPES OF WILL WITH REFRRENCE S.59 TO S.69 OF ISACT, 1925
1. Unprivileged Will: Will created by a person who is not a soldier employed in an
expedition or engaged in actual warfare or a mariner at sea is known as an
unprivileged Will. For an unprivileged Will to be valid, it must satisfy the following
conditions:
 The person creating the Will must sign or affix his/her mark to the Will. Else,
some other person should sign as per the directions of the testator (Person
creating the Will) in his/her presence.
 The signature or mark of the testator or the signature of the person signing for
the testator must be placed so that it appears that it was intended to give effect
to the writing as will.
 The two or more witnesses should attest to the Will. The witnesses must have
seen the testator sign or affix his mark to the Will or has seen some other
people sign the Will, in the presence and by the direction of the testator.
2. Privileged Will: Privileged Wills are Wills that may be in writing or made by word
of mouth by those in active services like a soldier, airman or mariner. The legal
requirement for the validity of a privileged Will has been reduced to enable certain
persons to quickly make a Will. The following conditions are applicable for a
privileged Will:
 The testator writes the whole will with his own hand. In such a case, it need
not be signed or attested.
 The testator should sign the privileged will written wholly or in part by
another person. In such a case, there is no requirement for attestation.
 A Will written wholly or partly by another person and not signed by the
testator is a valid Will if it is proved that it was written by the testator's
directions or that the testator recognized it as his/her Will.
 A half-completed privileged Will is also considered valid if it is proved that
non-execution was due to some other reason and does not appear to be an
abandonment of intentions to create a Will.
 A privileged Will can be made by word of mouth by declaring intentions.
 If a soldier or airman or mariner has given written or verbal instruction for the
preparation of a Will but has died before it could be prepared and executed.
And such will is a valid Will.
Illustrations
(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a
soldier actually employed in an expedition, and can make a privileged will.
(ii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare,
and as such can make a privileged will.
 3. Oral or Nuncupative Will: An Oral or Nuncupative Will is a will which has been
orally declared by the testator making it in the presence of witnesses. It may be noted
that the Indian Succession Act does not provide for making of oral or nuncupative
will except by the soldiers, mariners and airmen (as provided under Sections 65 and
66).
4. Mutual (or reciprocal) Will: Mutual will is a will under which two testators confer
reciprocal benefits upon each other.
5. Joint Will: A joint will is a will whereby two (or more) testators agree to make a
conjoint will. Very common example of joint will is the will made by a husband and
wife disposing of their property under one will jointly made by both.
6. Conditional or Contingent Will: It is a will which is expressed to take effect only in
the event of the happening or non happening of a certain conditions or contingency
specified therein.
7. Holograph Will: It is a will written by the testator in his own handwriting.
8. Duplicate Will: It is the duplicate of the original will. The duplicate will can be
proved and probated if the loss of the original will is proved.

DISPUTES RELATING TO WILLS & CODICILS

1. Executors inaction leads to heirs dissatisfaction: Executors are responsible for
carrying out the wishes of the deceased and manage the probate. There’s no legal time
limit in which executor must take action, but generally rule executor must act within
12motnhs of the death. If executor delays for over a yr. those who were expected to be
beneficiaries can apply in S.C and seek a deadline for executor to obtain n grant a
probate.
2. Disagree on disposition of the estate property: A big of contention for many family
is whether the family home should be sold or kept in the family. Best way to resolve
is for the beneficiaries looking up to keep the house, buy out the interest of ppl.
Wanting to sell. But the deceased have to explicitly mention about the beneficiary
having an option to buy the home from estate. But even if he doesn’t an agreement
can be reached an set out in a deed. When one or more beneficiaries buy the home, the
parties should consider seeking an expert to conduct a valuation of the property to
determine an appropriate amount to pay.
3. Beneficiaries allege unauthorized transfers of assets: When one child or close
family member is given power of attorney, named as executor and/or otherwise put in
charge of the deceased's assets, other beneficiaries may argue that there have been
suspicious unauthorised asset transfers by the person in charge of managing the
money. If the person with power of attorney moved funds out of bank accounts, for
example, the other beneficiaries may argue that the transfer of assets was an unfair
reduction of the value of the estate.
4. Accusations of undue influence are made: If a family member or friend unduly
influenced the deceased regarding estate planning, a will that was created under
 duress or as a result of undue influence is challengeable and may be declared invalid.
Close family and friends can challenge contest a will, however, they will need to
prove a problem occurred in its creation. If undue influence or proof of duress makes
the will invalid, earlier versions of the will may apply or intestacy rules will dictate
how an estate is to be divided.
5. Heirs point out problems with the will: Many people either try to create a will
themselves or use will kits. These wills are often more susceptible to being
challenged, as they may not be clear about a deceased's wishes, or because they don't
follow the legal requirements of a will. This can be avoided by consulting with a wills
dispute lawyer when thea will is being created. If no lawyer was consulted and the
deceased has passed away, the court can make a decision on whether the will should
be probated and what this means for beneficiaries.
Execution of under privileged will
Modification/Revocation of Will : A will can be revoked or modified at any time during the
lifetime of the testator who made the origin will. Revocation as well as modification process
is the same as that for making a will. As in making of the will, in case of revocation or
modification the key considerations are (a) sound mind of the testator (b) Testator to sign in
front of the witness and (c) the witness it sign in front of the witness. Revocation can either
be by writing or by burning, tearing or otherwise destroying of the will by the testator of by
some other person under the directions of the testator in the presence of two or more witness.
Relevant sections on Indian Succession Act read as follows.
Section 70 Revocation of unprivileged will or codicil: No unprivileged will or codicil, nor
any part thereof, shall be revoked otherwise than by marriage. Or by another will or codicil,
or by some writing declaring an intention to revoke the same and executed in the manner in
which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing,
or otherwise destroying the same by the testator or by some person in his presence and by his
direction with the intention of revoking the same.

Illustrations:- A has made an unprivileged will, A makes another unprivileged will which
purports to revoke the first. This is a revocation.

Interpretation of language (Rule Of Armchair)

Courts have adopted the "Armchair Rule" which requires that the court to put itself in the
position of the testator at the point in time when he or she made the will (not at the time of
death), and from that vantage point construe the language in the will in light of the
surrounding facts and circumstances known to the testator at that time;

The main source of evidence should come from the "four corners" of the will (meaning you
simply look at the writing in the will), but the armchair rule entitles the court to look to
extrinsic evidence to identify the surrounding circumstances known to the testator at the time
the will was made which might reasonably be expected to influence the testator in the
disposition of his or her property. For example, the court can look at the occupation of the
testator, the state of his property and the general relationship of the testator to his or her
immediate family and other relatives.

The modern judicial approach to interpreting a will is to admit all the evidence regarding the
surrounding circumstances at the start of the hearing and then to construe the will in the light
of those surrounding circumstances.

As it can be seen, the real key for anyone looking to have a will interpreted is putting before
the Court a clear picture of who the testator was and what made him or her tick (the arm chair
rule might be called the "walk a mile in my shoes rule"). It is through this understanding that
Courts will be able to best interpret what a testator meant by the words used in his or her will.

Case: Perrin v. Morgan, In other words, the exercise is meant to resolve the ambiguity and
uncertainty created by the actual words used in the Will. That can sometimes be done with
evidence that will assist in construing a document or phrase so as to arrive at the testatrix’s
real meaning according to the language and the surrounding.

WILL AS PER MUSLIM LAW

Under Islamic law, a Muslim can dispose of his property by gift, by creating a wakf, or by
accessing his testamentary powers i.e. by making a Will.

In Islamic law, a Will executed by a Muslim is known as 'Wasiyat. The person who executes
the Will is called 'legator' or 'testator' and the person in whose favour the Will is made is
known as 'legatee' or 'testatrix'.

There is a strict rule in Islamic law thata Muslim can make a Will in favour of anyone, only
to the extent of one-third of his total property. If the Will is made beyond one-third of the
property, the consent of the legal heirs is mandatory no matter in whose favour the Will is
made.
In a case where a Muslim has married under the Special Marriage Act, 1954, the Will made
by such Muslim is regulated by the provisions of the Indian Succession Act, 1925 and not by
the Muslim Personal Law.

MODULE 9 (UCC)

A uniform civil code (UCC) in India refers to a set of laws that would govern personal
matters such as marriage, divorce, adoption, inheritance, and succession for all citizens of the
country, irrespective of their religious affiliation. Currently, personal laws in India are based
on religious practices and are applicable to individuals belonging to different religious
communities, including Hindus, Muslims, Christians, and others. These personal laws are
codified and regulated separately, often leading to different legal provisions and practices for
individuals from different religious backgrounds.

The concept of a uniform civil code aims to bring about a unified and secular legal
framework that would apply equally to all citizens of India, irrespective of their religion. It
seeks to ensure equality, justice, and uniformity in personal laws, avoiding discrimination and
promoting harmony among different religious communities. The objective behind a UCC is
to provide a common set of laws that upholds fundamental rights, gender equality, and social
justice for all individuals, regardless of their religious beliefs.

The Concept of Uniform Civil Code: The idea of a uniform civil code was enshrined in
Article 44 of the Indian Constitution, which is a directive principle of state policy. It states
that "The State shall endeavor to secure for the citizens a uniform civil code throughout the
territory of India." However, implementing a UCC has faced significant challenges due to the
diverse religious and cultural practices followed by different communities in India.

Features of UCC: If UCC gets implemented, following would be some of the key features:

1. Uniformity: A UCC aims to establish a uniform set of laws governing personal matters,
such as marriage, divorce, adoption, inheritance, and succession, for all citizens, irrespective
of their religious affiliation. It seeks to replace the separate personal laws currently based on
religious practices.
2. Gender Equality: A UCC endeavors to promote gender justice and equality. It seeks to
eliminate discriminatory practices prevalent in personal laws that may disproportionately
affect women, such as unequal inheritance rights, polygamy, and divorce laws.

3. Secularism: A UCC reflects the principles of secularism by treating all citizens equally
under the law, irrespective of their religious beliefs. It aims to ensure that religious practices
do not supersede individual rights and the principles of justice and equality.

4. Individual Rights: A UCC seeks to protect and uphold the fundamental rights of
individuals guaranteed by the Constitution, including the right to equality, freedom of
religion, and the right to personal liberty. It strives to strike a balance between individual
rights and community practices.

5. Social Harmony: A UCC aims to promote social cohesion and harmony by fostering a
sense of unity among diverse religious communities. It seeks to provide a common legal
framework that respects religious diversity while ensuring equality and justice for all
citizens.

Implementation of UCC: Implementing a uniform civil code is a complex and sensitive

issue in India due to the diverse religious and cultural practices followed by its citizens. It
requires careful consideration, dialogue, and consensus-building among different
stakeholders, including religious communities, to strike a balance between personal freedom
and societal norms while ensuring equal rights and justice for all citizens.

The implementation of a uniform civil code (UCC) in India has been a subject of debate and
discussion for many years. A UCC refers to a set of laws that would govern personal matters
such as marriage, divorce, inheritance, and adoption for all citizens, regardless of their
religious affiliation. Currently, personal laws in India are based on religious practices and are
applicable to individuals belonging to different religious communities. Here is an overview of
the concept of a uniform civil code in India, along with relevant landmark case laws that have
influenced the discourse.

a. Shah Bano Case (1985): This case played a significant role in the debate surrounding the
implementation of a UCC. Shah Bano, a Muslim woman, sought maintenance from her
husband after their divorce. The Supreme Court, in its judgment, awarded her maintenance
under the provisions of the Indian Code of Criminal Procedure, which is applicable to all
citizens. The judgment sparked controversy and led to protests from conservative Muslim
groups, resulting in the government passing the Muslim Women (Protection of Rights on
Divorce) Act in 1986, which curtailed the rights of Muslim women in matters of
maintenance.

b. Sarla Mudgal Case (1995): This case dealt with the issue of bigamy and conversion to
Islam for the sole purpose of contracting a second marriage. The Supreme Court held that a
Hindu husband cannot solemnize a second marriage after converting to Islam without
dissolving the first marriage. The court emphasized the need for a uniform civil code to
ensure gender justice and equality.

c. John Vallamattom Case (2003): In this case, the Supreme Court discussed the importance
of a UCC for the nation and the need to avoid discrimination on the grounds of religion while
determining personal laws. The court emphasized that gender justice and equality should
prevail over religious customs and practices.

d. Shayara Bano Case (2017): This case challenged the constitutionality of the practice of
triple talaq (instant divorce) in Muslim personal law. The Supreme Court, in its judgment,
declared triple talaq unconstitutional and violative of the fundamental rights of Muslim
women. The court's decision reiterated the need for a uniform civil code to ensure gender
equality and protect the rights of individuals.

These landmark cases highlight the judiciary's recognition of the need for a uniform civil
code in India to promote gender justice, equality, and the protection of individual rights.
However, the implementation of a UCC remains a complex and sensitive issue, requiring
careful consideration of the diverse religious and cultural practices followed in the country.
Any significant steps towards a UCC would necessitate extensive dialogue and consensus-
building among different stakeholders, including religious communities, to ensure a fair and
inclusive legal framework for all citizens.

"UCC IS THE ONLY SOLUTION FOR THE GLARING DISCRIMINATIONS IN

THE PERSONAL LAWS"

The statement that a uniform civil code (UCC) in India is the only solution for the glaring
discriminations in personal laws is a perspective that has been put forth by many individuals
and groups advocating for the implementation of a UCC. However, it is important to
acknowledge that this is a complex and contentious issue, and there are multiple viewpoints
on the matter.

Proponents of a UCC argue that having a single set of laws governing personal matters for all
citizens, irrespective of their religious affiliation, would promote equality, justice, and
secularism. They believe that the current system of different personal laws based on religious
practices leads to inherent inequalities and discrimination, particularly against women. They
argue that a UCC would ensure gender equality, protect individual rights, and create a more
inclusive and uniform legal framework for all citizens.

Opponents of a UCC, on the other hand, argue that personal laws are deeply rooted in
religious and cultural traditions and should be respected as part of the country's diversity and
pluralism. They argue that implementing a UCC could potentially infringe upon the freedom
of religion and the rights of minority communities to practice their own personal laws. They
believe that reforming existing personal laws to address discriminatory practices would be a
more appropriate approach, rather than imposing a uniform code on all citizens. It is crucial
to recognize that any significant changes in the legal framework, including the
implementation of a UCC, would require extensive dialogue, consensus-building, and
consideration of diverse perspectives. The views and concerns of different religious and
cultural communities need to be taken into account to strike a balance between individual
rights, cultural practices, and social harmony.

Ultimately, the question of whether a UCC is the only solution for the glaring discriminations
in personal laws depends on one's perspective and the ability of society to find a balance that
upholds fundamental rights, promotes equality, and respects the diversity and cultural
traditions of its citizens.

DR. AMBEDKAR'S PERSPECTIVE WITH JUDICIAL DECISIONS

Dr. B.R. Ambedkar, the architect of the Indian Constitution and a prominent social reformer,
expressed his support for a uniform civil code (UCC) in India. He believed that a UCC
would help eliminate inequalities and discrimination present in personal laws based on
religious practices.
Dr. Ambedkar viewed the existing personal laws as perpetuating social inequalities,
particularly against women and marginalized communities. He argued that personal laws
should be reformed to ensure gender justice and equality for all citizens, irrespective of their
religious affiliation. He believed that a UCC would be a step towards creating a more just and
egalitarian society.

While Dr. Ambedkar's views on a UCC were influential, it is essential to note that his
perspectives were not universally accepted during the drafting of the Indian Constitution.
Recognizing the sensitive nature of personal laws and religious practices, the Constitution
allowed for the continuation of existing personal laws, safeguarding the religious freedoms of
various communities. The Indian judiciary has played a crucial role in interpreting and
shaping the discourse on a UCC through landmark decisions. Some judicial decisions have
supported the idea of a UCC, emphasizing the need for equality, justice, and gender rights.
For example:

Sarla Mudgal v. Union of India (1995): The Supreme Court held that a Hindu husband
cannot solemnize a second marriage after converting to Islam without dissolving the first
marriage. The court emphasized the need for a UCC to ensure gender justice and equality.

John Vallamattom v. Union of India (2003): The Supreme Court discussed the importance
of a UCC for the nation and the need to avoid discrimination on the grounds of religion while
determining personal laws. The court emphasized that gender justice and equality should
prevail over religious customs and practices.

It is important to note that while these judgments highlight the judiciary's recognition of the
need for a UCC, the implementation of such a code remains a subject of debate and requires
careful consideration of various religious and cultural practices prevalent in India.

Dr. Ambedkar's perspective, coupled with judicial decisions on issues related to personal
laws, provides valuable insights into the discourse surrounding a UCC in India. The topic
continues to be a subject of deliberation and requires a nuanced approach that balances the
principles of equality, religious freedom, and social justice.