28 February 2018 11:20

Expanded Lecture Outlines and Reading Assignments:

Week 1-2
Introduction to the course
- Conceptual understanding of inheritance
- Overview of inheritance under different religious laws in India

Required Readings:
1. Inheritance – Jens Beckert
2. The Hindu Joint Family- S. Chandrasekhar, Social Forces, Vol. 21, No. 3 (Mar., 1943), pp. 327-333
3. Law and the Predicament of the Hindu Joint Family – JDM Derrett
4. The Theory of Inheritance Author(s): James M. Morton, Jr. Source: Harvard Law Review, Vol. 12

Coparceners and Coparcenary Property

- Mitakshara and Dayabhaga schools of Hindu law
- Features of Joint Hindu Family and coparcenary
- Nature of property
- Distinction between ancestral and self-acquired property.
- Rights of coparceners.
- Female as a Coparcener- Legislative Changes
8, No. 3 (Oct. 25, 1894), pp. 161-167

Cases
1. Commissioner of Income Tax v. G. Lakshmninarayan AIR 1935 Bom 412
2. State Bank of India v. Ghamandi Ram AIR1969SC1330
3. Moro Vishwanath v. Ganesh Vithal (1873) 10 Bom. 444
4. CWT v. Late R Sridharan & CWT v. Rosa Maria Steinbicher Sridharan (1976) 4 SCC 489
5. Revanasiddappa and Anr. v. Mallikarjun and Ors. (2011)11SCC1
6. Muhammad Husain Khan v. Babu Kishva Nandan Sahai, AIR 1937 PC 233
7. C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495
8. Smt. Dipo v. Wassan Singh, AIR 1983 SC 846

Recommended Readings:
1. Economic Agents, Cultural Subjects: Gender, the Joint Family, and the Making of Capitalist
Subjects, 1900-1940 (excerpts from the chapter in Ritu Birla’s book, Stages of Capital)
2. The Nuclear Family is on the Decline in India – John Samuel Raja D
(http://scroll.in/article/669053/The-nuclear-family-is-on-the-decline-in-India)
3. Principles of the Law of Succession to Intestate Property, W. D. Rollison, 11Notre Dame L. Rev.14
(1935).
4. Public Attitudes about Property Distribution at Death and Intestate Succession Laws in the United
States Author(s): Mary Louise Fellows, Rita J. Simon and William Rau Source: American Bar
Foundation Research Journal, Vol. 3, No. 2 (Spring, 1978), pp. 319391
5. English Inheritance Law and Its Transfer to the Colonies Author(s): Carole Shammas Source: The
American Journal of Legal History, Vol. 31, No. 2 (Apr., 1987), pp. 145-163

Week 3 - 4

Karta
- Who is Karta
- His position, powers, privileges and obligations
- Female as karta
Alienation

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Alienation
Required Readings:
Texts:
1. Poonam Pradhan Saxena, Family Law lectures, Family Law II (3rd Edition) - Pg. No – 143-254
2. Basis and Nature of Pious Obligations of Son to
13
- Management and alienation of joint family property.
- Debts: Doctrine of pious obligation; Antecedent Debt

Partition
- Partition in Mitakshara
- What can be partitioned
- Modes of partition
- Persons entitled to share in partition
- Allotment of shares
- The manner in which it is effected
- Reopening of partition
- Can daughter call for partition of ancestral property?
- Partition under Dayabahaga
pay Father's Debt vis-à-vis Statutory Modifications in Hindu Law – Vijendra Kumar
3. B. SlVARAMAYYA - Shares to Female Members at a Partition under Mitakshara Law, 5 JILI 270
(1963)

Cases:
1. M/s. Nopany Investments (P) Ltd. v. Santokh Singh (HUF), 2007 (13) JT 448
2. Dev Kishan v. Ram Kishan, AIR 2002 Raj. 370
3. Balmukand v..Kamlawati (AIR 1964 SC 1385)
4. R. Kuppayee v. Raja Gounder (2004) 1 SCC 295
5. Sushil Kumar v. Ram Prakash (1988) 2 SCC 77
6. Puttrangamma v. Ranganna, (1968) 2 SCR 119
7. Namdev Vyankat Ghadge v. Chanadrakant Ganpat Ghadge (2003) 4 SCC 71
8. Kakumanu Pedasubhayya v. Kakumanu Akkamma, AIR 1968 SC 1042
9. Kesharbai v. Tarabai Prabhakarrao Nalawade (2014) 4 SCC 707
10. Sujatha Sharma v. Manu Gupta, CS (OS) 2011/2006
11. Shreya Vidyarthi v. Ashok Vidtyarthi, Supreme Court, CIVIL APPEAL NOS.3162-3163 OF 2010

Week 5 - 7

Hindu Intestate Succession

- Laws before and after Hindu Succession Act, 1956 for both males and females
- General rules and disqualifications under HSA, 1956
Inheritance right of extra-marital child, adopted child, child conceived by artificial means, step child;
Inheritance right among Same-Sex couple and cohabitants;

Required Readings:
Texts:
1. Mulla (17th ed., Vol. 1): Chapter 3, ‘General Principles of Inheritance’
2. Poonam Pradhan Saxena, Family Law lectures, Family Law II (3rd Edition) - Pg. No – 271-434
3. Coparcenary Rights to Daughters: Constitutional and Interpretational Issues – B.
SivaramayyaIntestate Inheritance Claims: Determining A Child’s Right to Inherit When Biological and
Presumptive Paternity Overlap, Megan Pendleton (2008) 29 Cardozo L.Rev. 2823- 2859
Cases:
1. Prakash and Ors. v. Phulavati and Ors., MANU/SC/1241/2015
14
2. Uttam v. Saubhag Singh, (2016) 4 SCC 68
3. Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr. AIR2012SC169
4. Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR 1978 SC 1239 5. CWT v.
Chander Sen, AIR 1986 SC 1753

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Chander Sen, AIR 1986 SC 1753
6. Shalini Sumant Raut & Ors v. Milind Sumant Raut & Ors. and Dr. Gautam Manohar Raut & Anr.
2013(5)BomCR430
7. Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628
8. Jagannathan Pillai v. Kunjithapadam Pillai, AIR 1987 SC 1493
9. Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi, AIR 1977 SC 1944
10. Bhagat Ram v. Teja Singh, AIR 2002 SC 1
11. Jayalakshmi Ammal v. Kaliaperumal, AIR 2014 Mad 185
12. Omprakash v. Radhacharan, 2009(7) SCALE 51
13. Vellikannu v. R. Singaperumal and Anr. MANU/SC/0367/2005; AIR2005SC2587
14. Dhannulal and Ors. v..Ganeshram and Ors., AIR 2015 SC 2382
15. Jupudy Parda Sarathy v. Pentapati Rama Krishna SC Civil Appeal No. 375 of 2007 decided on 6th
Nov 2015
16. Mamta Dinesh Vakil v. Bansi S. Wadhwa MANU/MH/1869/2012

Law Commission Reports: -

Report No – 174, 204, 207, 208

Recommended Readings:
1. Report of the Hindu Law Committee 1948
2.. Lawyers Collective Report on the HSA Amendment of 2005
3. http://freepressjournal.in/headlines/women-born-before-2005-hindu-succession-act-also-have-
equal-rights-on-ancestral-property-supreme-court/1216577

Week 8 - 9

Wills
- Object of Will
- Essentials of a Valid Will
- Revocation of a Will
Required Reading:

Texts:
1. Poonam Pradhan Saxena, Family Law lectures, Family Law II (3rd Edition) - Pg. No – 451-504
15
- Will under Muslim law
- Exercise: How to draft a will
Gifts (HIBA)
- Concept of Gift
- Requirement of a Valid Gift
- Conditional Gifts
- Revocation of Gifts
-Musha, Hiba-e-iwaz, Hiba-i-shartul iwaz, marz-ul-maut gift
Cases:
1. Hafeeza Bibi and Ors. v. Shaikh Farid (dead) by L.Rs. and Ors., 2011(5)SCALE371
2. Mussa Miya walad Mahammed Shaffi v. Kadar Bax, AIR 1928 PC 108
3. Valia Peedikakkandi Katheessa Umma v. Pathakkalan Narayanath Kunhamu, AIR 1964 SC 275
4. Hayatuddin v. Abdul Gani, AIR 1976 Bom. 23
5. Abdul Hafiz Beg v. Sahebbi, AIR 1975 Bom. 165
6. Commissioner of Gift Tax v. Abdul Karim, AIR 1991 SC 1847
10-11
Muslim Intestate Succession
- General principles of inheritance
- Hanafi law of inheritance and
Shia law of inheritance
Required Readings:
Texts:
1. Poonam Pradhan Saxena, Family Law lectures, Family Law II (3rd Edition) - Pg. No – 503-555

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1. Poonam Pradhan Saxena, Family Law lectures, Family Law II (3rd Edition) - Pg. No – 503-555
2. The Hanafi Law of Intestate Succession: A Simplified Approach, Lucy Carroll Modern Asian Studies,
Vol. 17, No. 4 (1983), pp. 629-670
3. The Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law Applicable in SouthAsia:
Lucy Carroll, Modern Asian Studies, Vol. 19, No. 1 (1985), pp. 85-124
Cases:
1. Khuran Sannath Society and others v. Union of India, High Court of Kerela at Ernakulam,
WP(C).NO. 31299 of 2008 decided on July 2, 2015
2. Khairunnisabegum v. Nafeesunisa Begum, High Court of Bombay (Aurangabad Branch), First
Appeal Nos. 1155 and 505 of 2013 decided on September 22, 2014
12 On Gender
Required Readings:
1. Flavia Agnes, Family Law II, Oxford
2. Lucy Carrol, Daughter’s Right of Inheritance in India, Modern Asian Studies, Vol. 21 No.4 (Oct,
1991)
3. Legal Change and Gender Inequality: Changes in Muslim Family Law in India - Narendra
Subramanian, Law & Social Inquiry, Vol. 33, No. 3 (Summer, 2008), pp. 631-672
4. Gendered Justice, M. J. Joseph Economic and 16
Political Weekly, Vol. 28, No. 50 (Dec. 11, 1993), p. 2711
5. Women’s Property Rights under Traditional Hindu Law and the Hindu Succession Act, 1656: Some
Observations - Prakash Chand Jain 45 JILI (2003) p. 509
6. BAMMA and Islamic Feminism
BMMA here: https://bmmaindia.com/
7. Nitya Rao, "Good Women Do Not Inherit Land": Politics of Land and Gender in India”, Orient
Blackswan.
8. A Field of Her Own – Bina Agarwal (Pages 227 - 236)
Recommended Readings:
1. Debarati Halder and K. Jaishankar, “Property rights of Hindu Women A Feminist review of
succession laws of Ancient, Medival and Modern India”, Journal of Law and Religion Vol. 24, No. 2
(2008-2009), pp. 663-687
2. Sudhir Chandra, Enslaved Daughters, Oxford Univesity Press (2008)
3. Poonam Pradhan Saxena, “Succession Laws & Gender Justice” in Archana Parasar, Amit Dhanda
et.al.(eds.), Redefining Family Law in India, p. 289 (Routledge, New Delhi, 2008)
13
Intestate succession under Indian Succession Act, 1925 for Christian and Parsi
Required Reading
Text:
1. Paruck’s The Indian Succession Act, 1925 (10th ed., 2011).
2. Halsbury's Laws of India - Vol. 38: Wills and Succession
3. Sebastian Champappilly, “Christian Law of Succession in India”
4. Phiroze K Irani, Personal Law of Parsis in India, in Family Law in Asia and Africa J N D Anderson
(ed.,) (1972) p. 274
5. Sebastian Champappilly, “Christian Law of Succession and Mary Roy’s case (1994) 4 SCC (Jour) 9
6. Succession laws for Indian Christian, The Hindu, October, 16, 2004
Cases:
1. Clarence Pais & Ors. etc. v. Union of India
17
AIR2001SC1151
2. Mary Roy v State of Kerela 1986(2) SCC 209.
Law Commission Reports:
Report No.- 110, 209, 247
Recommended Reading:
1. L L Sardesai (ed.,) Glimpses of Family Law of Goa, Daman and Diu, 1982
2. . Step Backward, Economic and Political Weekly, Vol. 28, No. 50 (Dec. 11, 1993), pp. 2689-2690
3. . Mancherji v Mithibai I Bom 349.
14
Succession under Goa Civil Code, under tribal groups; Special Notaries and Inventory Proceeding Act,
2012.; Matrimonial Property Rights; Succession and Conflict of laws; Intestate Succession in

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2012.; Matrimonial Property Rights; Succession and Conflict of laws; Intestate Succession in
Historical and Comparative perspective
Required Readings:
Text:
1. A Note on the Common Civil Code, Marriage and Inheritance in Goa – Shaila De Souza Pg.
277-285
2. Matrilineal Joint Family Patterns in India, U. R. Von Eenfel, Journal of Comparative Family Studies,
Vol. 2, No. 1 (SPRING 1971), pp. 54-66
3. Mother-right among Khasis and Malay, R. O. Winstedt, Journal of the Malayan Branch of the Royal
Asiatic Society, Vol. 10, No. 1 (113)(JANUARY 1932), pp. 9-13
4. Matrimonial Property Law: Concepts and Issues – B Sivaramayya
5. Maharashtra Matrimonial Property (Rights of Women upon Marriage) Bill 2012
6. Intestate Succession in Historical and Comparative perspective, Kenneth Reid, Marius de Waal,
and Reinhard Zimmermann, Comparative Succession Law: Volume II: Intestate Succession, 442-512
Cases:
1. Madhu Kishwar and others v. State of Bihar and others AIR1996SC1864 39 pages
2. Bahadur v. Bratiya, High Court of Himachal Pradesh, RSA No. 8 of 2003 decided on June 26, 2015
60 pages
3. Smt. Kajal Rani Noatia v. Sri Raybahadur Tripura, High court of Tripura, RSA No.38 of 2009 decided
on February 26, 2015
Recommended Readings:
18
1. Matriliny, Patriliny and the Postmodern Condition: Complexities of "Family" in Kerala, Vineetha
Menon, Journal of Comparative Family Studies, Vol. 43, No. 1, The Indian Family: A
Revisit(January-February 2012), pp. 41-51
2. Legacies of Matriliny: The Place of Women and the "Kerala Model",Robin JeffreySource: Pacific
Affairs, Vol. 77, No. 4 (Winter, 2004/2005), pp. 647-664 3. NCW Report on Tribal laws 4.
http://www.thehindu.com/news/national/other-states/Goa-passes-bill-to-replace-Portugese-
succession-law/article14556836.ece
15
Pre-emption and Wakf
Preemption
- Meaning, nature
- Constitutionality, classification
- Rights and Formalities
Wakf –
Meaning and formalities
for creation
- Administration and powers of Mutawalli
Required Reading:
Text:
R.K Singh, Textbook on Muslim Law, 2011 Ed, New Delhi, page numbers - 263-291, 295-312
Cases:
1. Bhau Ram v. Baij Nath, AIR 1962 1476
2. Atam Prasad v. State of Haryana, AIR 1968 SC 859
3. Krishna v.. State of Haryana, 1994 AIR 2536
4. Cheddi Lal Mishra v. Civil Judge (2007) 4 SCC 632

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Assessment
01 February 2018 08:09

Research Paper: 15 Marks

5 Marks + 10 Marks 2000-2500 words , you can write more if you'd like

20th February - Telling the professor what we're writing about , Research Question imp.
20th March - Submission

Topic: Inheritance
Pick a country whose inheritance you want to work on , theoretical lens to look at it
gender, economic, philosophical etc.

Structure: Clear and descriptive Introduction

Few lines about the topic, thesis statement answers the research question , third person writing
This paper argues that..,
Explain the theory first

On-Call: 10 Marks
Group on-call , teaching with the professor
Team-work and Creativity

Mid-Term: 15 Marks
Thursday, 29th March

Portions: Up until Week 7

Application based questions

Class Participation: 10 Marks

Not less than 80% Attendance

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Inheritance Jens Beckert: Inheritance retaining the feudal system
01 February 2018 08:16 The Feudal System was abolished through Land
Allocation Act - Socialist System
• Mortis Causa: As a result of death Overton Window: Vox
• Creating wealth within my lifetime and that going to my family and off-springs is economic Kessler and Mason (1988)
reproduction
• Chaos Theory shows that there is no necessary linear causality. It recognises that patterns are
complex.
• The concept of transferring everything to the eldest son is primogeniture.
• Behaviour Aspects of inheritance laws at the individual level is also about how I behave in the
market place.
• Social inequality is reproduced every time inheritance comes into place.
• Every time I gain wealth a part of it goes to the state as tax.
• Rawlsian Difference Principle justifies the existence of inheritance through progressive taxation
and the poor getting some wealth.

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Hindu Undivided Family
02 February 2018 14:02
Musso society in China-Matriarchal
Society
Garo and the Kasi tribes in India; none
• A lot of people believe that this unit of family should not be regulated. Here the constitution (privacy) and family of the sexual freedom had to be
overlap. Privacy lawyers had to give way to the Commercial lawyers. restrained
• The Karta would make decisions about the property. Doctrine of Escheat
• One of the largest ways this is done is through Mitakshara. As soon as a child is born they have a right in property.
• Lack of population and abundance of resources generated the Hindu Joint Family. The Decline of the HUF came
about because the very conditions that caused it to exist were now non-existent. The people in the HUF were so After 1956 there was doctrine of
comfortable that more and more people were born and there was a population boom. With a population boom, survivorship for someone with a class 1
the abundance of resources dwindled and the HUF was slowly destroyed. female heir. If not, then notional
• The same generation sons cannot claim different co-parcenerys with their father , in the Mitakshara systems. partnership.
Mitakshara depends on blood relation or propinquity.
• In a Dayabhaga system, death triggers a new co-parcenery. Dayabhaga system depends on who can burn the
father.
• A person can only will away their sole properties.
• Doctrine of survivorship; all the properties that one has will continue to be a part of the co-parcenery no matter
who dies or who is born. This existed until 1956.
• The Malabar system is a social system and not a legal system.
• The Hindu Succession Act 1956 changed the way we functioned earlier and now it's just Mitakshara.
• The HUF gets tax exemptions because it takes the burden and responsibility of taking care of the people.
• Sections 7-17 are for matrilineal societies. Muramakattanam and Alayastanam.
• Post-1956 the two systems were merged together. That four generations have ownership is retained from
Dayabhaga and the rest of was retained from Mitakshara. Mitakshara always depended on propinquity or blood
relation. However, now it is just four generations of people. Four generation of people because the last generation
has the right to give fire to the first generations fire. When a fifth generation arrives unless the first generation
dies, the fifth generation can't be a part of the co-parcenery property.
• In 2005, instead of just males females too became a part of the co-parcenery. However the co-parcenery ends
there. Her co-parcenery is continued through her husband.
• The three reasons a Karta can sell land are legal necessity , family ceremonies (last resort) and . The co-parceners
can sue if they think the Karta is misusing the co-parcenery property.
• The doctrine of fluctuating interest made it hard to see how much anybody owned. Therefore, Section 6 of the
Hindu Succession Act, allows for notional partnership. This takes place upon the death of any individual. Here it is
assumed that before his death a partition is taken place. The dead co-parceners property is divided among the
others as separate property.
• In 1928, women were given the right to step into the husbands shoes if their husbands died and they could hold
the property until their death.
• The sole-surviving co-parcener is an absolute owner of the co-parcenery. This is only possible if the above three
generations are dead. Once a sole-surviving co-parcener has a child, it starts a new co-parcenery.
• Illegitimate children did not have a right in the co-parcenery property of their father. But, they do have rights over
their father's separate property and their mother's property. Post-1956 the illegitimate child's right got stronger
because of notional property.
• If you're not a Hindu, you are automatically ousted from the co-parcenery. When a co-parcener gets married to a
person with another faith under the Special Marriages Act then they get ousted from the co-parcenery. While
their co-parcenery rights were forfeited, they still had a right to land but no rights for their heirs.
• There is fluctuating non-specific interest when a person is born. Because, there is doubt about how much the co-
parceners own.
• Every co-parcener has the right to ask for partition and this happens unilaterally. In reality, sometimes the part of
land that the co-parcener requires has to be liquidated. The moment the letter of partition reaches the Karta the
partition is actuated.
• There is community of interest in the property that everyone owns , unity of possession.
• Alienation of Undivided Interest: A co-parceners interest in the undivided family property is alienated or reduced .
This is done through a court order. To pay off debts the co-parcener has incurred where the only property he has
is the co-parcener property.
• Every person in the co-parcenery has the right to ask the Karta for accounts.
• There are three situations where the Karta can be held accountable to show their accounts. When it is in the
nature of business and accounts are required. When there are charges of fraud. When a co-parcener asks for a
partition.
• A co-parcener cannot partition without asking his father for partition. In Punjab and Mumbai this is not acquired.
However, the Karta cannot refuse partition.
• The Caste Disabilities Act enabled inter-caste/inter-religion marriage.

Commissioner of Income Tax v. G. Lakshminarayan (1935) Bombay High Court

Income Tax

Facts: A co-parcenery has a father , his wife and his son. The father dies and only the son remains. The question is
whether he is still a HUF or a person as a person for taxation purposes.

Analysis: The liberal tax is given to the HUF and he still HUF because the widow and the wife are dependent on him.

CWT v. R Sridharan (1976)

Wealth Tax

Dipo v. Wassan Singh (1970)

Facts: Do the male cousins get the property or does the sister get the property. The rule says that if it is ancestral
property

Analysis: It's only ancestral property if there are decedents. Therefore it would not go to the collaterals it would go to
the sister.

Mudaliar v. Mudaliar (1954)

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 Facts:

Analysis: If the will said that it was not ancestral that stands. If the will is silent, we will look at the way the property has
been divided. If it is similar to intestate succession then we can believe that it is ancestral property. If it is different it can
be assumed it is ancestral. Self-acquired property if so mentioned in the will cannot be ancestral and go straight to the
sons

Muhammad Hussain Khan v. Kishva Nandan Sahai

If maternal grandfather property, cognate and not a agnate it becomes a separate property and not an ancestral
property. Property inherited from Maternal Grandfather is separate property and is therefore self-acquired. It is not
ancestral.

SBI v. Ghamandi Ram

A HUF is a group of individuals. Pakistan ordinance case.

Ravanasidappa v. Mallikaarajun

Acc. to the plaintiffs the defendant was the illegitimate wife and vice versa.
Illegitimate children born from a void marriage are regarded as (sort of) coparceners post-1956. Section 16 does not
specify whether they get the separate property or the co-parcenery property . During the lifetime of the father, the
illegitimate children's rights are not equal to that of the legitimate children. They are also not entirely equal after the
death. While they do get right to the co-parcenery property they don't get all rights. Notional partition makes the
property separate property. That’s why they get a right to the co-parcenery property. Not because they are co-
parceners.

• Two types of heritage existed were spratibandhit and apratibhandit depending on whether there were restrictions on
the property or not. Unobstructed heritage is when property directly passes among the male heirs according to
survivorship. Any property that is my separate property is spratibandhit because I can will it away or use it and thus my
children don't get any of it. By birth children have ownership over apratibhandit property. This is the only two kinds of
property in classical inheritance.
• Co-parcenery property could be ancestral or non-ancestral property. Property can be joint family property but not a co-
parcenery example when the property is joint family property because there is only one male and the other females are
dependent on him. (Commissioner of Income Tax v. G. Lakshminarayan)
• Separate property can be added to joint property.
• The moment it is ancestral property the child can ask for partition. If it is self-acquired then your child can't ask for
partition.

Pre-1956 Property
Every time a property is gotten from an ancestor it is all ancestral property which would convert into co-parcenery
property.
A gift would be understood as inheritance from father to son.
'Favour conferred by father' could be separate property or ancestral property. Thus the default could be either separate
or ancestral depending upon which Jurist you listen to.

Post-1956 Property
By default a gift from the father is separate property unless specified that it is ancestral.
A gift given through will is separate property unless specified both pre and post. If the will is ambiguous , where you
don't know whether it should go as ancestral property or separate property; if it is devolving in a way that is similar to
the way it would go exactly without a will , it will go as ancestral if not it will go as separate. If you can’t ascertain who
gets it, the rules of intestate succession work.

Use of Joint Family Property

• You can get maintenance, can use it for business.

• If you built on joint family land or use joint family income or property, whatever you built is also joint family property.
• Where the Karta sets aside money for personal use by a person for maintenance, income made from that is his separate
property. This is called profit savings or accrued savings.

Doctrine of Survivorship
When a person dies everyone who survives that person gets a larger interest as a consequence of the death.

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Karta, Alienation and Partition
09 February 2018 13:58

Karta
When the non-eldest male member of the family can become Karta

1. Absence from Country

2. If nobody objects
3. Did not want position of Karta, relinquishing the right

Decisions and legal developments allowing other people to be Karta:

• A Karta who is the senior most male member can continue in office as long as he wants. He
does not have to get off even when age and inability to manage property get in his ways.
• Unless he relinquishes the rights voluntarily than he cannot step down. It is not about
agreements within the family about who can be Karta. If the Karta relinquishes the position a
democratic process can be triggered. When the Karta goes missing a junior can take over. If
my implication the Karta relinquishes his right, a junior can take over.

M/s Nopany Investment Ltd v. Santosh Singh

Facts: The eldest male relative of the HUF is Dhuman Singh. His younger brother, Jasraj Siingh has
self-proclaimed himself to be Karta. The Nopany Investment had a lease with the HUF. Can the
younger brother act as Karta and file an eviction notice when the eldest male co-parcener is alive.

Analysis: The Court decided that in the first case of Sunil Kumar nowhere it said that the juniormost
male cannot be Karta. In Tribhovan Das there gave various circumstances where the junior co-
parcener can become the Karta. That the Karta is away or that he has relinquished his rights. In this
case, the elder brother was in UK and his return in reasonable time was not anticipate. He also gave
him the power of attorney. There was no protest by his family that the junior co-parcener was Karta.
Another contention by the court was that the petitioner had been dealing with Jasraj Singh in his
capacity as Karta for a long time.

Mrs. Sujata Sharma v. Shri Manu Gupta and Others (2010)

Facts: D.R Gupta's five sons and they were the subsequent Karta. The fifth son died in 2005. The
plaintiff being the eldest-coparcener.

Analysis: Prior to 1985, only the senior most male member of the family could be the Karta. Since a
female is not a co-parcener she could not become Karta. In 1984, few states in South India AP, TN ,
Maharashtra and Karnataka unmarried daughters could be co-parceners. She continues being co-
parcener even after being married of the family she was born in. It depends on state legislation. If
she is the senior-most member of the family she can represent he HUF. Post- 2005 Section 6 allowed
women to be co-parceners.

A/c can be asked for:

1. Partition
2. Misrepresentation
3. Business

The Karta doesn't draw salary,

If by agreement this is written down, then it is binding.

Alienation

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These are the exceptions to alienation of property:

Legal Necessity
It has to be the last resort to alienate property.

Benefit of Estate
When it came into being it was only used in emergency purposes. As time evolved and profit became
better, the concept expanded to allow sale for profit.

Performance of Religious and Indispensable Duties

Bal Mukund v. Kamlawati

Benefit of estate need not be just defensive. There was no evidence to show that the property was
hard to manage. Whether the intention was benefitting is important. When there are adults of the
family are present they should consent first to the sale. The tangible benefit is examined by the
court and so is the intention through circumstantial evidence.

Dev Krishnan v. Ram Kishan (2002)

The defendant said that he mortgaged the property for legal necessity as he wanted to marry his
daughters. However, his daughters were minors so the mortgage was an unlawful purpose. It was in
contravention of Child Marriage Restraint Act, 1929 therefore it cannot be called lawful alienation.

The three categories of alienation though distinct, intersect. The moment it is illegal it can't fit under
any head. Women had limited ownership (licensing, rent). After the Hindu Women's Property Act
after which they could step into their husbands.

R.Kuppayee and Anr v. Raja Gounder (2004)

The father gave his daughter some land as gift. After five years the father tried to make them give it
back. The issue was whether alienation by gift/settlement by the father in favour of his daughter
was proper alienation. The alienation can be allowed for pious purposes. The court said that the
father is allowed to give reasonable amount of property to his daughters out of love and affection.
Even though it was ancestral it was allowed as long as it is reasonable.

Challenging Alienation
The person who has the burden of proof to prove that it is one of the three allowances for alienation
is the alienee. This is hard because the circumstances surrounding the alienation are not privy to the
alienee. The alienee has to prove that the Karta was acting in the interest of the family and that it
was necessary. The alienee has to prove that there were no alternative reasons/ways of acquiring
the resources they wanted. Also it must be shown that he acted honestly with no mala fide
intentions and also that it was a fair transaction. Alleging that you know what the alienation is for
increases your burden. The longer it has been since the transaction the it is easier for the alienee.
The moment a coparcener agrees to a transaction, he cannot challenge the alienation.

The son has both legal and moral obligations. The son has to pay the debts of his great grandfather,
grandfather, then father etc. in that order. Irreligious debts were kept aside. Debts which are
immoral don't have to be paid. If you misappropriate things and do things illegal and the father is an
agent then the son has the pay . If there are debts that don't involve the father but are debts
antecent to him, the son still has to pay. Post-1956, the concept of pious obligation ceased to exist ,
only ancestral property and separate property does not have to be used to pay the fathers debts.
Illegitimate children don't have pious obligation.

Alienation by father as the Karta vs the brother as the Karta

The father can alienate joint family property unlike a brother as Karta. If there is someone else in
your same generation then you can’t use the property to pay off your personal debts. The father as a
Karta has more rights as brother as karta when it comes to Alienation.

Family Law II Page 11

Transfer of Property
If you renounce property, you cannot decide where it goes. It goes to the rest of the family.
Otherwise the renunciation is not legal. Gifting the property is not allowed unless it comes under the
exceptions. Willing of the property differs pre-1956 and post-1956. Post 1956 you can will away your
property, because of notional partition (which means your property is assumed to be partitioned
right before your death) Whatever you inherit is separate property what you partition and take away
is ancestral property. When you get kids though it becomes ancestral property in your co-parcenery
because it started as co-parcenery property.

The reason the burden of proof was on the alienee is because of historical reasons. If the alienee is
prudent enough they won’t buy property from the joint family and this benefits everyone.

Rights of an Alienee
In Bombay , the alienee has the right for joint Possession
The alienee will have the right to ask for partition and take it away everywhere else

Susil Kumar v. Ram Prakash (1988) 2 SCC 77

The issue was whether in the facts of the case the alienation was maintainable. Under the special
relief act , permanent injunction is not allowed if an equal relief is available. Justice Jay said that an
injunction allowing coparceners to permanently injunct the Karta from selling the property when
there is a genuine legal necessity to alienate the land , it won't be possible. Justice Shetty spoke
about how the burden of proof of proving the alienation was on the person who was buying the
property anyway. Moreover , the co-parceners can always the challenge the alienation and get back
the property. The ratio of the case is that permanent injunction cannot be given to the Kartas in case
of legal necessity. Manye's Hindu Law which said that one cannot restrict the rights of the Karta.
Permanent injunction cannot be granted specifically in the cases of legal necessity. Section 38 of
specific relief act where permanent injunction cannot be granted if an equally efficacious relief
available.

Partition
There can be severed family but joint possession. De-facto partition or partition in leaps and bounds
which means the land is actually partitioned and can be taken away . De-jure parition comes before
the de-facto partition and means they have joint possession and that their shares are certain.

In case of indivisible property, partial partition will end up happening. In such cases, the court will
use the following rules to divide indivisible property.

Indivisible Property: Rules

Past usage is not important when it comes to partition. Just because someone was using a piece of
property before partition it doesn't mean that thy get it after.

Compulsory common use for example that of a well is allowed. Like a staircase that leads up to the
floors. Everyone would use this.

Balancing Corresponding Values to make sure that things which have similar value or similar usages
can be divided among all co-parceners.

Principle of Owelty is when I want say something like a dining set and a part of it should technically
go to the others, the person can pay to get the share.

Instead of keeping the dining set, it can be sold and the money can be divided.

Sharing by turns is allowed where certain items are sentimentally significant. Like an idol of the god
that the entire family prays to. This access is legal access. If access is denied then legal action can be
taken.

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taken.

Namdev Vyankat Ghadge v. Chanadrakant Ganpat Ghadge (2003) 4 SCC 71

Adoption is like birth but the adoption happened after the death of the Karta, so his property rights
had already had dissipated to his three sons . So the newly adopted son by the Karta's wife will not
get property rights.

Consequences of Partition
On present co-parceners they get their share and go away.
For future co-parceners they get they either form a new co-parcenery with their partitioned father.
Before 2005 every female was dependent, they technically get a certain amount set aside for them.
They will be getting this just for their maintenance. The family can have a trust to maintain the
females post partition. Or a particular property can be given to them to maintain them.

Per-capita is each person taking property, per-stripe is each branch taking property.

The Pre-Partition Ritual

Before the 1928 Disabilities Removal Act, all those with disabilities including physical disabilities did
not have right to property. People who have congenital idiocy or disability now do not have the right
to property. Those who have partial or temporary insanity have right to property , the only right
taken away from them is the right to ask for partition during their period insanity. Women pre-2005
did not have right to property and post-2005 women who marry into the family don't have right to
property.

No Coparcener to account for preference shown towards her pre-partition.

Property sued to pay personal debts without the consent of the other co-parceners has to be
brought into account.

Property alienated has to be brought to account.

When separate property is used to perform functions such as marriages are funerals or to improve
family property, said coparceners to be compensated for the same.

If I am a father co-parcener I don't have to account for my personal debts to the family. Not if I am a
brother karta. If its for an immoral reason etc. it is not allowed either way.

In classical Mitakshara law there is no distinction b/w minor and major co-parcener.

Kakumanu Pedasubhayya v. Kakumanu Akkamma, AIR 1968 SC 1042

The child has a right to partition that already exists in him when the child was born, the only limit is
that he cannot exercise it without a legal representative. The court decides whether the partition is
for the benefit of the minor. The severance is done not when the case is decided but when the case
is filed. This is the doctrine of relating back.

The people can agree to not partition and this agreement cannot exist unless it is time-barred. If you
married a Hindu under the SMA until 1976 you had to partition.

The Process
The absolute intention to partition
A clear verbal , written or even a declaration by a suit for partition counts as declaration. A will can
be a declaration, as long as it is public.
Communication which is instantaneous works. The moment somebody dies their share dissipates.
Therefore, the communication should have been made before death. But this is only pre-1956.
Post-1956 notional partition happens anyway.
The communication decides the effective date of severance.

Puttrangamma v. Ranganna, (1968) 2 SCR 119

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Puttrangamma v. Ranganna, (1968) 2 SCR 119
Unequivocal communication of partition

Kesharbai v. Tarabai Prabhakarrao Nalawade (2014) 4 SCC 707

Family arrangements are the same as partition. In the family arrangement you can divide up shares
the way it is not done in partition i.e. with different shares.

The first step is to divide up the first two generations. There are three women in the family who get
shares when a de-facto partition occurs. This depends on who's getting the partition. First will be
the father's wife, second is the widowed mother and the third is the paternal grandmother.
Father's wife gets equal share to that of the son. The second, the mother's share should be equal to
the brothers. When she is the paternal grandmother she gets a share equal to the grandchild.
Realistically, all the grandchildren cannot get equal share. Therefore to determine the share of the
grandmother, she is counted along with the grandsons and gets a hypothetical equal share (for
example. 6 grandsons then she gets 1/7th of the property) and the rest is divided among the
grandchildren in their proportions.

Family Law II Page 14

Hindu Succession Act
15 February 2018 08:51

In Limited ownership rights you are not allowed to mortgage or sell the property or alienate in any way. However, in There is notional partnership when and if
absolute ownership rights which includes all the rights involved. there is a class 1 heir who has an interest
in the property. If not , no then after 1956
There are two schemes for succession. One for men and one for women. Within women, there is further sub- and before 2005.
division on the basis of origin whether it was acquired from her father or father-in- law. The wives could inherit
property just like everyone else even through affinity, and not just consanguinity (blood relations) Dasi putras had When notional partition is done the
more rights than those illegitimate child. The rights this person has is two-fold; 1. can give the dasi putra share person who died his share becomes
equal to that of the other sons if father is alive 2. if father is dead you can ask for partition and get 1/4th property. separate property ad devolves as per
intestate succession.
1932: Widows got some property
1956: Class I Heirs , diluted survivorship but treating property as separate property
2005: Complete removal of survivorship only notional partnership

This is always separate property. The fact that there are two widows does not mean that the wives have more than
one share. Both wives get the share as one. A second marriage is not recognized. Therefore a second wife will not
get share and neither will the child. This is not an illegitimate child who can be statutorily recognized.

The mother excludes the father. If the mother gets it from the son the father doesn't.

An illegitimate child which is born out of a void or voidable marriage or a live in relationship. This is a statutorily a
legitimate child. However, a child born out of a second marriage is not even an illegitimate child.

Succession to the Property of a Male Intestate

Class 1 heirs. Four people, two females were added to class 1 heirs after the amendment in 2005. First there were 9
females , now there are 11. There were 3 males and now there are 5 males. Class 1 heirs inherit equally. Doctrine of
Representation is where those who represent a pre-deceased class 1 heir will inherit what they would. If there are
no class 1 heirs it goes to class 2 heirs.

The mother is the biological mother and the adopted mother. The step-mother is not included. The widow is not
permitted if she was married under the Special Marriage Act. If it is proven that she converted to Hinduism. It
matters if she is a Hindu widow. Illegitimate children inherit only their dads property. Sons can be natural born
children or adopted children. The illegitimacy of the dead man doesn't matter, just that of a son of a son.

Gurupad Khandappa v. Virapai Khandappa

Khandappa died and left behind two sons and three daughters. Hirabai his wife asks for partition and her share
(1/4th + 1/4th x 1/6th) of 7/24th of her husband's property. Former being the joint family property and the latter
being separate property. When there is a de-facto partition that is the only time widows and wives get share. The
son says that the notional partition should not give any share to his mother. Proviso of Section 6 applies which says
that doctrine of survivorship does not apply, notional partnership - intestate succession. After the death of the
father, his share in the co-parcenery property is treated as separate property and that devolves through intestate
section. After 1956, the doctrine of survivorship has been diluted and it is assumed that a partition has been done.

Commissioner of Wealth Tax v.

Partial HUF, where the father and son are business partners (partition of business) and they are still a Hindu Joint
Family. The father dies and the son gets the business property along with his father's property. Under Section 8,
since grandsons are not Class 1 heirs the property inherited by the son does not have to his son or the dead person's
grandson. The son inherits property therefore as separate property. In classical Hindu Law, the father's separate
property also becomes a part of co-parcenery property.

Shalini Sumant Raut v. Milind Sumant Raut (2013)

Rajaram died in 1991 and left behind 8 kids , 5 sons and 3 daughters. He further has grandchildren and great
grandchildren. The issue was who all from the co-parcenery and which law governs the division of property. What
matters is when the father dies and not when the case comes to court. So 1956 is the law that appies.

Pre-1956
Mulla's Hindu Law
Doctrine of Survivorship + fluctuation

1956
Hindu Succession Act
Section 6, dilution of doctrine
notional partition

2005
Section 6, abolition of doctrine

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15 March 2018 17:55

Pillai v. Pillai (1987)

There can be actual possession or constructive possession. Not just tangible possession can be called
possession but eve

Section 14 of the Hindu Succession Act

After the 1937 Act we have the 1956 Act where Section 14 and 15 came in, it stayed the same post
the 2005 Amendments . Women who have limited estate can now become absolute. This will not
happen when new rights are created a new instrument that gives them the limited estate. It needs
to be maintenance from the joint family property , a pre-existing right.

Prathiba Rani v. Suraj Kumar and Another (1953)

The husband used his wife's property that she got as dowry. She sued for criminal breach of trust. It
was Stridhan property and belonged to the fine. The husband says that S.14 of abolished the
concept of Stridhan property. Section 14 gives a remedy to the wife under property under civil law
its modified the concept of Stridhan property. The court said that entrustment does not mean
ownership and the husband acted like a banker, the wife still owned it.

On Stridhan property, the women have right of alienation. On Saudayika, it's her own, got from her
parents. On non-Saudayika, her relatives give her property and that belongs to the family she goes
into.

V Tulasamma v. S. Reddi (1977)

The plaintiff was the wife after her husband died, brother became Karta. She goes to the court
asking for maintenance. The Karta gave her some property for maintenance but not the right of
alienation. Later she leased out some property and sold some property. S. Reddi is arguing that she
got in under a decree and thus she comes under 14(2).

Faizal Ali
14(1) says any property so it can be both immovable and movable. Possession means both
constructive and actual possession. He talks about limited right vs restricted right. Restricted right is
species and limited right is genus. Because Hindu Marriage is a sacrament, when the husband has
primary right , the wife has a secondary right. This is all to say that there is a pre-existing right of the
women in the husbands right. There are two kinds of judicial decrees. One that creates a new right,
one that is a pre-existing right. If it was a pre-existing right , it will not be a restricted right as under
14(2). The property right is jus ad rem that she has a future right. She has the right only if her
husband right. Its not jus in rem.

Because there existed a pre-existing right the right would fall under 14(1) and not 14(2).

Jailakshmi Amal v. Kaliaperumal (

Bhagat Ram v. Teja Singh (2002)

After coming to India, the two daughters of Keher Singh get his property equally because the mom
dies too. The first daughter dies. Only Indro , the second daughter is left over and the first sister's
property goes to the second property. Santi's brother in law wants her property. 15(1) says that
when children and husband aren't there when the women dies, and when they aren't there then the
husbands heirs get it. Bhagat Ram is the brother in law of Santi. Within Section 15(2) it says
notwithstanding anything in Section 15(1) …..Therefo

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Family Law II Page 17
Gifts under Muslim Law
29 March 2018 08:44

• A gift, under Muslim law is called a hiba, but this is only one kind of gift. Corpus refers to the very thing, it denotes
absolute transfer. Usufruct is not absolute transfer.
• There needs to declaration of intention ijab and acceptance qubool. No consideration because it is a gift.
Transfer/delivery of position has to be immediate in order for the gift to be valid qabza. Oral gifts are valid as long as
the three elements are fulfilled. A future gift is not valid under Muslim law.
• The declaration should be done in public, and there must be witnesses. A major , someone who is of sound mind and
owns the subject matters of the gift can be a declarant. If they are of sound mind and major they can accept the gift. It
has to be free from impediments like co-erosion etc.
• A gift is void if a donee does not give acceptance.
• The test of delivery of possession is whether the donee can exercise rights of property over it. No registration is
required and no written deed is required.
• The subject matter of a gift can be corporeal , non-corporeal , physical etc. Example: good will, actionable claims
• Three exceptions to the transfer rule, people who live in the same premises and the premises are the subject matter of
the gift then transfer is not necessary, husband to wife and father/guardian to minor.
• Hiba-Bil-Iwaz It means gift for consideration already received. Exchange of gifts. A true hiba-bil -iawz is an exchange of
gift and it can't be revoked, a hiba-bil-iwaz is sometimes a disguised sale.
• Hiba-ba-shartul-iwaz is a gift for a future date of consideration.
• Gifts of future property, contingent gifts, gifts to unborn persons are all void.
• Before delivery, revocation is allowed. After delivery, a court order may be required.
• Shia law says that a declaration will do. Sunni law has more conditions.
• Mushaa means confusion. It refers to undivided share in property. If it is capable to be divided, then it should be before
transfer. If it is not capable of being divided there would be conditions. In Sunni law it is an irregular and invalid gift if it
is indivisible and under Shia law it is valid.
• The ability of the mother to be a guardian depends upon the father or grandfather. Their will can give the woman the
guardianship rights. If there is an orphan child and the woman who takes the child becomes the de-facto guardian, but
this does not arise in law this arises in fact. Through a will another person can be given guardianship rights.
• In Sunni law a gift has to be unconditional , gift would be valid but the condition would not be valid.
• Under Shia law you can make a conditional gift, the gift and the condition will both be valid.
• Maraz-au-Maud Maraz is illness. The translation is illness that leads to death. The conditions applicable here are
different from conditions applicable normal gift. A quantitative limit is put on the gift. A gift made in the apprehension
of death leading to death. The subjective belief needs to be supported by circumstantial evidence. It’s not about the
objective situation that I was going to die. There should be something you could do before you can't do anymore (like
can't do prayer anymore). You cannot give more than a third of your property through a will. A gift maraz-au-maud is in
a way a will. Islamic people don't believe after life so they don’t think that anything in the material world matters
anymore. Under Muslim law if the person doesn't die it becomes an ordinary gift.
• A donation Mortis Causa as stipulated for S.191 ISA is similar to Marz-ul-Maut. There is a restriction on the kind of
property that can be donated. Movable property can be donated and there are no quantitative limits. In case the donor
recovers, the gift fails.
• Sadquah is a gift with religious motive that is irrevocable. Here acceptance is not required. Waqf is like Sadquah , it is
permanent dedication of property to god. Corpus belongs to god here and therefore waqf cannot be sold or
transferred. The Usufruct of the property is to use it for religious purpose. Sadquah can be transferred. Ariyat is the
right to enjoy the usufruct in a specific property for a specific time period. It is not absolute, it is revocable and it not
transferable or inheritable.
• Gift tax is not applied.

Hafeeza Bibi and Ors. v. Shaikh Farid (dead) by L.Rs. and Ors., 2011(5)SCALE371D2
claimed that A gifted him some land that was under suit for partition by oral agreement and immediate transfer of
possession. Acc. To the appellants the gift should have been written and registered. The respondent mentioned S. 49
of the Registration Act where it said that writing is not essential for a gift. The court said that under Muslim law, a deed
is not required to make a valid gift. Section 129 of TPA excludes gifts of movable property made under Muslim Law. The
SC said that S.129 can apply to both immovable and movable property is if the three conditions under S. 149 are
completed. These do not have to be registered. The HC said that the registration of the deed is important if the deed is
the instrument of the gift. This means that the gift Is being created in the first place. The SC reversed this said that as
long as there is an oral deed , there is no requirement of registration whether the gift deed is an instrument or
memorandum. The three necessary factors need to be met. If the entire gift is through the deed , without any
components outside the deed then it will have to be registered.

Family Law II Page 18

Mussa Miya walad Mahammed Shaffi v. Kadar Bax, AIR 1928 PC 108
The plaintiff claimed an heir under Muhammadan law of his brother Abdul Rasul. The property is divided with 1/8th to
the widow, 1/2 to the daughter and 3/8th to the plaintiff. The plaintiff claims this 3/8ths. The defendants contend that
the property only belong to the daughter's two sons because the entire property was gifted to them by virtue of a
letter. The plaintiff filed a suit declaring that gift invalid. Another issue was whether in the absence of deliver of
possession or any relinquishment of control whether the gift was valid. The court said that to make a gift complete
possession has to be transferred and there has to be acceptance from the natural guardian of minors. As long as the
natural guardian of the minor child is alive, the natural guardian should be given possession and should give
possession. Here the father was alive and was therefore the natural guardian. This is therefore, not a case of guardian
making gift to his charges. Because the grandfather had retained the property and not delivered possession. Moreover,
the father did not declare acceptance so it is not a valid gift deed.

Valia Peedikakkandi Katheessa Umma v. Pathakkalan Narayanath Kunhamu, AIR 1964 SC 275 - Umma v. Kunhamu
A husband gifted property to his wife through a registered deed and later died. When the wife died, the elder brother
of the husband asked for 6/16 of the property and the two sisters for 3/16 share each. The wife was a minor girl and
the property was accepted on her behalf by her mother. The issue therefore is if a gift by a husband to his minor wife
and accepted on her behalf by her mother valid. The court said that gift is not valid unless possessed. The court said
that the donor can nominate a person to accept the gift on behalf of the minor. A document embodying the intention
of the document was delivered to the minor and she had accepted it and she could in a husband-wife relationship. In
the present case, the gift is valid. The intention to make the gift was clear and manifest because it was made by a deed
which was registered and handed over by the husband to his mother-in-law and accepted by her on the behalf of the
minor. The acceptance is not coming from the mother and the gift deed is valid even without the overt action of the
mother because of the exception to the three conditions in a husband-wife relationship. There is no need for
acceptance or transfer in a husband-wife relationship.

Family Law II Page 19

Muslim Intestate Succession
18 April 2018 14:08

Two Basic Rules Well filled v. Well-formed

The direct relationship will be more important than the indirect one. The one closer to the dead family member is , the 1. Orientation to detail
one nearer in degree is the better poised they are. Those nearer in degree exclude those further away. 2. Logical thinking
3. Chasing Excellence
For example siblings, you are related to your siblings because of your father/mother. So if you're related to those people 4. 'How' instead 'what'
(via) someone, then you don't get a share and are excluded. 5. Not knowledge but skills

Three categories of Related Heirs

Sharers - Everybody present in the Muslim law tables are sharers and they sometimes become residuary depending on
the presence of some person. The first category in the table, are sharers who get specific shares. What's leftover goes to
the residuary. The first category of residuary is son.

The category of distant kindred only exists in Sunni law, not Shia law. If there are neither sharers or residuary, then it
goes to distant kindred. This is when there is no agnate. Only if the spouse exists , then the distant kindred will still get
the property, this is an exception to the rule of distant kindred. This is because the spouse is an exception to the sharer
category anyway because everyone else is related to you by blood.

Doctrine of Return or Radd

When there are no residuaries, then the sharers take the fixed share of the property in the proportion to their shares.
Here, instead of passing to the distant kindred it is returned to the sharers. There is an exception, living spouse. If there
are no residuaries and distant kindred then it goes to the spouse. (full in case of husband, half in case of wife and this
has been revived)

Doctrine of Increase (AUL)

This is when , the sum total of shares that the sharers are entitled to exceeds unity. Here the denominator is smaller
than a numerator and there isn't therefore enough property.

The numerator then becomes the denominator and the proportion of shares stays the same. (look at slides to
understand)

Hanafi- Sunni Law

Agnatic and Quaranic Heir

Qur'anic heris are sharers. Agnatic heirs are residuaries. These are those leftover after the Qur'anic heirs. Most Qur'anic
heirs are girls. The Qur'anic heirs are girls mostly because females because they need to be provided for by the Quran.
Think of it as maintenance.

True Grandfather
The false grandfather is anyone who is related through a female. Any female intervening makes him a false grandfather,
this becomes a cognatic relationship. If a grandmother is the mother of a false grandfather, then she is a false
grandmother. True grandfather's share and true grandmother's share is 1/6th.

The only people who become female agnatic heirs are sisters not daughters.

The conditions for a female agnatic heir are that there should not be any brothers.

The germane sister excludes the consanguine heir, but not the uterine.

Khairunnisabegum v. Nafeesunisa Begum, High Court of Bombay (Aurangabad Branch), First Appeal Nos. 1155 and
505 of 2013 decided on September 22, 2014

The parents have three daughters and one son. The one son , Farooq Maohammad Khan died and left behind a widow.
They have one daughter, Nabehga. The plaintiffs are the sisters of FMK and the defendants are FMK's widow and
daughter. The issue is whether the plaintiffs get a share in the property. Whether the defendants were entitled a share
was also under question. The court held that the sisters were residuaries and the defendants were Qur'anic heirs. This is
because of the exception. When there are only females, which is so after the death of FMK, that’s when the females
become the female agnatic heir and that’s why they are residuaries. This is because FMK has a daughter and a widow
that the exception applies. The daughter and widow of FMK are sharers. The three sisters therefore are residuaries.

Shia Law

When there is a son and a daughter then, the property will be divided 2:1. Here the female becomes an agnatic co-
sharer and she is not a Quaranic heir anymore.

Germane exclude the consanguine. 2:1 is only for germane brother and sister and consanguine brother and sister.
Mom's side always equal. It happens in 2:1 ratio on every side.

If there is excess then Radd, if there is deficit then AWL.

The proximity rule does not exclude the people entirely , jut from their Quaranic share, they still stay as residuaries.

Khuran Sannath Society and others v. Union of India, High Court of Kerela at Ernakulam, WP(C).NO. 31299 of 2008

Family Law II Page 20

Khuran Sannath Society and others v. Union of India, High Court of Kerela at Ernakulam, WP(C).NO. 31299 of 2008
decided on July 2, 2015

The issue before the court was the constitutionality of the inheritance law where the female child does not get equal
share to the male child. The court said that since it is related to personal law, it cannot be adjudicated by the court . Only
the Parliament can decide on such matters. They cited Maharshi Avadesh v. Union of India where it was held that
personal law cannot be reviewed by the judiciary.

Widow Succession
Under Sunni law, widows always have a chance of taking share in the property of her husband. Under Sunni law, the
other family members have to agree and only then she would get some property.
PPT has it.

Daughters w.r.t to Succession

The article was in 1971 and 2005 Amendments hadn't happened. The justification of dowry is that, the exclusion of
daughters from property, requires dowry. But this is reduction and oversimplified. She compares daughters rights under
Mitakshara, Dayabhaga and Muslim law and concludes that under Muslim law the daughter's rights are better.

The nature of separate property for daughters under Hindu law is temporary. Under Hindu law, the best the daughters
get is 1/12. Under Hindu personal law, the father can exclude his daughters and not give them any property. Under
Muslim law , the daughters will get 1/6. If the father wills away the property, 1/3rd can only be willed away and
therefore 1/9 is the share of the daughter. Thus, even in the worst case scenario daughters are better poised under
Muslim law.

Under Dayabhaga system, since the person has to die and only then the rights are decided a woman being co-parcener
is not a threat. Under Dayabhaga system since there is no difference between Hindu joint family property and separate
property. Thus, all the property gets divided according to intestate succession. Thus, the Dayabhaga system is better
than the Mitakshara system.

He first reform option is, to giving daughter's birthright to property. The Andhra Act tried this, but there was a huge
debate and ended with a compromise where daughters ended up getting really less. Her second reform option is
abolish birthright and survivorship. Even after this, maybe take into account Muslim's laws limit onto will.

Feminism
Classical Liberal Feminism will call for reform in law.
Marxist Feminism will call for abolishment of inheritance.
Radical Feminism would want the State out of the equation and require social development.

Feminist Review of Succession Laws

Inheritance from father or her family is Stridhan, that from her husband is Women's estate. Stridhan can be alienated.
Women's estate cannot be alienated. In Stridhan there is Saudyka and non-Saudakya. In the former they had full control
over the property , in non-Saudakya the husband had control over the property.

During the mediaeval period, Stridhan took the form of dowry as it began to be seen as a status symbol. When the
Mughals came, Muslim law took center stage. Thus Hindu law morphed and changed a bit during the Mughal rule. There
was no supervision during that time of the Hindu laws.

In the 1937 Hindu Women's Right to Property Act. They were three kinds of widows under the Act. The widows were
four generations of women. This however did not give complete control of the property to women. The Hindu Code Bill
in 1955, also made some modifications. This was the first legal draft that attempted to give women absolute right over
property. This was codified with the Hindu Succession Act, Section 14. Then there was the Hindu Succession
Amendment Act 2015.

Muslim Law
The author is trying to defend Muslim law and tries to assert that Muslim Law is gender just. He says that certain social
factors are the reason why it is not gender just in use. He says that Hindu law is not gender just and that there will be a
point of convergence, where Hindu law will meet Muslim law and be just as gender just. He uses Narasu to show that
there is discourse on whether the laws are in accordance with fundamental rights. He discusses Shah Bano and Daniel
Latifi to show discourse of Muslim Law and gender justice in the country.

Family Law II Page 21