Answer key

MODULE -1

1. CONCEPT / FEATURES OF HINDU JOINT FAMILY

Hindu joint family is a fundamental aspect of life of Hindu. Its origin can be traced to ancient
patriarchal system which was one of the earliest systems of human society. According
to Mitakshara law a Hindu joint family consists of the common ancestor and all his lineal male
descendants up to any generation together with the wife(s) or widows and unmarried daughters of the
common ancestor and of the lineal male descendant. It can consist of any degrees of generations. A
‘child in womb’ is also deemed to be a member of joint family for limited purposes. The existence of
the common ancestor is necessary for bringing a joint family into existence but not necessary for its
continuance. Joint family revolves around some joint property though it is not essential that at every
point of time there should be some joint property. The existence of some joint property is essential for
commencement of the joint family status but in order to destroy the joint status of family, a mere loss
of property is not sufficient rather there should be partition. The family should have jointness not only
in estate rather in food and worship. Though, mere severance in food and worship does not operate as
a separation. Speaking about the characteristic features of joint Hindu family, the Supreme Court
in Surjit Lal Chabda v. Commissioner of Income Tax, AIR 1976 SC 109, observed that the joint Hindu
family is thus a larger body consisting of a group of persons who are united by the tie of ‘ Sapindaship’
arising by birth, marriage or adoption. The fundamental principle of the joint Hindu family
is sapindaship. It is a natural association based on sapindaship. It does not take more than one male
to form a joint Hindu family with females, is well established. For creation of Hindu joint family,
existence of a common male ancestor is essential but for its continuance a common male ancestor is
not required. Death of common male ancestor does not mean that Hindu joint family has ended.

Chief characteristics of Hindu joint family

1. It cannot be created by the act of the members or by an agreement. It is a creation of law.

2. Status can be acquired only by birth, marriage or adoption.

3. It has no distinct legal entity separate from its members. In Chotey Lal and Others v. Jhandey
Lal and Another, AIR 1972 All 424, it was held that a joint Hindu family is neither a juristic person nor
a corporation.

4. It is a unit represented by Karta.

5. Member of Hindu joint family can be ousted due to partition, conversion, valid adoption or by
marrying a non Hindu.

6. It may consist of a single male member and his wife and daughters, or a single male member and a
widow of coparcener, or even when there are only widows. In Sitabai v. Ram Chandra, AIR 1970 SC
343, it was held that even on the death of sole surviving coparcener, the Hindu joint family does not
come to an end so long as it is possible in nature or law (i.e. adoption) to add a male member to it. A
single male or female cannot make a joint family. There must be at least two members to constitute it.

2. DOCTRINE OF PIOUS OBLIGATION

The doctrine of pious obligation states that a son is liable to pay the debts of his father or his grandfather or his great grandfather after
their death unless the debt incurred was for an immoral or illegal purpose.[1] Post the Hindu Succession (Amendment) Act, 2005, the
pious obligation of the son has been abolished. Section 6(4) of the Hindu Succession (Amendment) Act, 2005 in this regard states that
However, if the debt is incurred before 2005, the son, grandson and the great-grandson will be liable under the doctrine of pious
obligation based on piety and religion. Hindu law states that when a Hindu dies and his soul is indebted, he may have to face evil
consequences. Therefore, the son of such a person has the responsibility to free the soul of his father from indebtness.
there are two types of Debts; Vyavaharika and Avyavaharika. A son’s pious obligation is only to pay his ancestors Vyavaharika debts i.e.,
debts taken for legal purposes. Avyavaharika debts are not binding upon sons.
the male descendants are liable to pay only for their ancestor’s legal debts i.e. vyavaharika debts. The Doctrine of Pious Obligation is that
doctrine under which sons are made liable to discharge father’s debts. It is solely religious. But the doctrine inevitably postulates that the
debts of the father must be vyavaharika. If the debts are not vyavaharika, the doctrine of pious obligation shall not apply to the sons.
It is being believed that non-payment of debts is a sin(paap) and any person, who died leaving the debts behind, cannot go to
heaven(Swarg). The 'Putra' i.e., the son, grandson, and great-grandson by paying off such debts, reliefs his parted ancestor from the debt
and enables him to reach the heaven and thus enables him to attain Moksha. This duty or obligation of a son to repay the debts of the
deceased ancestor is based on a special doctrine, known as "The Doctrine of Pious Obligation" However; this obligation applies only to
non-avyavaharika debts.

3. CONCEPT OF COPARCENARY

A Hindu joint family consists of lineal descendants of a common ancestor. In other words, a male
head and his descendants, including their wives and unmarried daughters. A coparcenary is a smaller
unit of the family that jointly owns property. A coparcenary consists of a ‘propositus’, that is, a person
at the top of a line of descent, and his three lineal descendants — sons, grandsons and great-
grandsons. Coparcenary property is named thus because the co-ownership is marked by “unity of
possession, title and interest”.
The English term itself is borrowed from common law, but the concept is found in Hindu law. In the
Mitakshara school, which prevails in most parts of India, a male’s right to be a coparcener is by birth.
But if a newborn male is the fifth lineal descendant — that is a great-great-grandson, while the
common ancestor, his son, grandson and great-grandson are alive — the right to be included in the
coparcenary will ripen only when the common ancestor dies. In other words, a coparcenary has
succession up to four degrees of lineal descent. It is believed that this is based on the Hindu tenet that
only males up to three degrees can offer spiritual ministration to ancestors. And only males can be
coparceners.

The coparceners have the following rights:

 Right to maintenance: Every person in the joint family property is entitled to get maintenance.
Mainly the female members, the persons who doesn’t receive any share from the family because of
disqualification grounds, or unmarried daughters, then all of them will be getting maintenance from
the Joint family.
 Right to challenge alienation: The term alienation means transfer of property in case of any legal
necessity or benefit of the estate. The coparcener, karta and the sole surviving coparceners have the
right to alienate the property for the debts of the family or for any kind of legal necessity of the Joint
family. If the above mentioned person alienate the property with any kind of improper intention or
without any clear intention then the coparcener can challenge the alienation.
 Right to partition: The coparcener’s have the right to partition in the joint family property. Until the
partition is done, the shares of the each individuals will be fluctuating and unpredictable.

Before there is the commencement of the Hindu Succession (Amendment) Act, 2005, the concept of
coparcenary under Hindu law typically related to a coparcener was the male member of the family
who acquired their interest in the coparcenary property by birth. The eldest member of a HUF and the
following three generations constitute a coparcenary under the Hindu Law. This means the list of
coparceners in a coparcenary is made of the head of the family or Karta along with his sons,
grandsons, and great-grandsons. Following the Mitakshara system, this interest over coparcenary
property is acquired by birth. Whenever there is a birth of a son in the family, he becomes
a coparcener in HUF and acquires his undivided interest over the coparcenary property naturally. This
means the share of coparceners in a property is not static. It can be diminished or enlarged by the birth
or death of any other members of the coparcenary respectively. However, one’s interest in the
property remains undivided.
Coparcenary is counted till fourth generation from the last owner or the original owner.
Only male member of the family can be a coparcener, female cannot be a coparcener. After the
enactment of the Hindu Succession Act, 2005 has enables daughters to become coparcener like a son.
A coparcener has an interest in joint family property by birth but the interest is flexible and
unpredictable which can be increased by the death of other coparcener and decrease by taking birth of
a new coparcener in a joint family.
An illegitimate son is not considered as a coparcener in the joint family property.
Interest of coparcener is fixed only by the partition of joint family property.

4. KARTA

Karta is a person who acquires a main position in the joint family property. He is denoted a manager, occupier
of the family. The position of Karta is known as Sui Generic means he hold a unique position in the Joint family
property. There can be more than once Karta in the Joint Family9. The Karta can be the Senior most male
member of the family. His main duty is to represent his family members or act behalf of them. He is a person
to whom all the family members are depended upon just they hold a fiduciary relation between them that they
always wants a person to manage and look after the wellbeing of the family without any issues. So the Karta
will look after the females, minors in the joint family and also give them maintenance. If the Karta fails to give
maintenance then he can be sued or the maintenance as well as the arrears of the maintenance. He is
responsible to give maintenance to unmarried daughters in the Joint family along with the debts if the family is
having at any point of time. Thus all this will be the liability of a Karta to maintain the Joint Family member as
well the business carried on.
The following persons can be Karta in the Joint Family:
 Senior Most Male Member: It is observed in Shreeama v. Krishavenanama10that the Senior male can be
Karta without the agreement or consent of the coparceners and he hold the Kartaship
 Junior Male Member: it is observed in Narendra Kumar v. Commissioner of Income Tax11that Junior Male
can be Karta by understanding or agreement among the coparceners. In case M/s Nopany Investments (P) Ltd.
V. Santokh Singh12 it was held that the Junior Karta will not the capacity to file a suit. In HariharSethi v. Ladu
Kishore Sethi13 it was held by the Orissa High Court that junior coparcener can be the Karta when the senior
most coparcener waives his right of Karta then a junior member can become Karta.
D. KARTA’S POWER IN THE JOINT FAMILY PROPERTY.
 Female Member: It was observed inPandurang v. Pandurang14that the females can be Karta in the absence
of the male adult member. In the case Commr. Of Income Tax v. Seth Govind Ram15 it was held that the
females can’t hold the position of Karta as per the Hindu Law text. It is contravention part of the Joint Family.
1. Power to manage
2. Power to contract debt
3. Power to represent16
4. Power to enter into contracts
5. Power to refer dispute to arbitration
6. Power of acknowledgment17
7. Power of alienation

5. DOCTRINE OF SURVIVORSHIP

The doctrine of survivorship was a model of property division, prevalent in the Mitakshara school of thought
In the original Mitakshara coparcenary set-up, the
under Hindu legal traditions.
property of the family devolved by survivorship, i.e., the interest held by a
coparcener in the property did not cease to exist on his/her death but this
interest was transferred to the remaining coparceners. In State Bank of India
v. Ghamandi Ram[7], the Supreme Court has held that “the Mitakshara
coparcenary entails certain incidents, such as (i) the property, in which the male
issue of a coparcener acquires an interest by birth; and (ii) the joint property
devolves by survivorship, and not by succession.” The first incident pointed out in
the above-cited case is one of the most remarkable features of the concepts of
coparcenary and survivorship. The interest that a coparcener is entitled to at his/her
birth, is never a fixed interest. Rather, the interest keeps fluctuating along with the
occurrence of births and the deaths in the family. Death of an existing coparcener
will enlarge the interest of the remaining members in the coparcenary. On the
contrary, the birth of a new member in a coparcenary will diminish the interests of
pre-existing members as the number of people having an interest in the property will
increase.

Section 6 of the Hindu Succession Act, 1956 makes provisions for the devolution of
interest in coparcenary property of a person who dies intestate, i.e., without making a
will before dying. Prior to the amendment of the Act in the year 2005, men and
women were not deemed to have equal rights under the Hindu personal law. The law
provided then that when a person died intestate, leaving behind only male heirs, the
coparcenary property will devolve accordingly by survivorship to his sons, grandsons
and great-grandsons. The devolution and inheritance process included only male
heirs up to three generations from the deceased coparcener. In a nutshell, this is
what is referred to as the doctrine of survivorship.

6. RULE OF BLENDING OF PROPERTY

The theory of blending under the Hindu Law involves the process of a wider sharing of one's own properties by
permitting the members of one's joint family the privilege of common ownership and common enjoyment of
such properties. But, while introducing. new sharers in one's exclusive property one does not by the process of
blending efface oneself by renouncing one's own interest in favour of others. To blend is to share along with
others and not to surrender one's interest in favour of others to the exclusion of oneself.
Property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of
joint family property if it is voluntarily thrown by the owner into the common stock with the intention of
abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate
rights must be established. There are judicial pronouncements that whatever may be the extent of the
contribution of the acquiring member himself out of his self-acquired fund, if he takes the aid of any portion of
joint or ancestral property in acquiring the property, however small that aid may be, the property so acquired
assumes the character of joint family property and cannot be claimed by him as self-acquisition
The ‘doctrine of blending’ was clearly explained in Mallesappa Bandeppa Desai And another vs Desai Mallappa
And Others, 1961 AIR 1268, 1961 SCR (3) 779. It was observed in this ruling that the rule of blending in Hindu
Law as evolved by judicial decisions can have no application to a property held by a Hindu female as a limited
owner. That rule postulates a coparcener deliberately and intentionally throwing his independently acquired
property into the joint family stock so as to form a part of it.

Joint Family Property : Presumption

If a member of joint family property acquired in his own name in the presence of ancestral nucleus, it shall be
presumed to be joint family property. Law relating to blending of separate property with joint family property is
well settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with the
character of joint family property if it is voluntarily thrown by the owner into the common stock with the
intention of abandoning his separate claim therein but to establish such abandonment a clear intention to
waive separate rights must be established. From the mere fact that other members of the family were allowed
to use the property jointly with himself, or that the income of the separate property was utilised out of
generosity to support persons whom the holder was not bound to support, or from the failure to maintain
separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be
regarded as an admission of a legal obligation. See: Lakkireddi Chinna Venkata Reddi vs Lakkireddi
Lakshmama,1963

7. MITAKSHARA COPARCENARY SYSTEM

In Hindu law all the thoughts are divided mainly on the bases of two schools.
Two main schools of thoughts are: Mitakshara
Dayabhaga
Mitakshara School of thought

It is based on Yajnayalkya smriti which is interpreted by Vijneshwara. This school of thought is applicable
whole over India except West Bengal and Assam.

Dayabhaga School of thought

It is based on Yajnayalkya smriti which is interpreted by Jimutvahana. This school of thought is applicable only
in West Bengal and Assam.
In Mitakshara School only main members are considered as coparceners. After enacted of Hindu Succession
Act, 2005 female can also be a coparcener in the ancestral property. Coparcenary is a narrow body of persons
within a joint family. It consist of the father and next three male lineal ascendants i.e
., son, son’s sons, son’s son’s son. In this case share of the property is divided between A, B, C and D. All
coparcener’s get equal share i.e., one-fourth (1/4) and is not a coparcener.

If A dies than B, C, D and E get the equal share i.e., one-third (1/3).

If B dies than A, C and D get the one-third (1/3) share of the property and E is not considered as a coparcener
because from A four-generation comes till D only. So E is not a coparcener. In this case if all members are
alive then each coparcener gets an equal share in property i.e., one-sixth (1/6).

If C dies than A, B, D, E, F and G are coparceners and they get an equal amount of share i.e., one-fifth (1/5).
Acquires coparcenary by birth or adoption. Property dissolved on the doctrine of survivorship. In case of the
death of one coparcener, his share in the property is belongs to other coparcener..
In mithakshara school right to ancestral property arises by birth. In mithakshara school the
property can be partitioned. The son becomes the co-owner of the property sharing similar
rights as to father. The father does not have a right to alienate property. There is survivorship
in mithakshara school. There are two types of inheritance in mithakshara school. They are
apratibandhadaya which means property inherited from direct male ancestors like father,
father’s father etc. There is also Sapratibandhadaya which means property inherited from
paternal uncle, bother and others etc.

MODULE -2

1. Hindu Succession ( Amendment ) Act , 2005

The Hindu Succession (Amendment) Act, 2005 (39 of 2005) was enacted to remove gender
discriminatory provisions in the Hindu Succession Act, 1956. Under the amendment, the daughter of
a coparcener shall by birth become a coparcener in her own right in the same manner as the son.
The daughter shall now have the same rights in the coparcenary property (ancestral property of the
Hindu undivided family) as a son. This amendment also repeals Section 23 of the Hindu Succession
Act which disentitled a female heir to ask for partition in respect of a dwelling house, wholly
occupied by a joint family, until the male heirs choose to divide their respective shares. Section 24 of
the Act which denied rights of a widow to inherit her husband‟s property upon her re-marriage has
been repealed. This Act has brought about a central amendment which is applicable to all the state
governments.

But only after 2005, the Hindu Succession Amendment Act was brought in by the parliament
rectifying the status of daughters in the Joint Hindu family, granting them equal rights as
that of son. This change brought in the act was based upon the recommendations of the
174th law commission report on women’s right in property under Hindu law advocating the
changes to be brought in the code to ensure equal treatment of both the genders.

2. DIFFERENT CLASSES OF HEIRS UNDER SUNNI LAW OF INHERITANCE

Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are the ones who are entitled to a
certain share in the deceased’s property and Residuaries would take up the share in the property that is left
over after the sharers have taken their part.
Sharers:
The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son
(or son's son or son's son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on
the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother

The share taken by each sharer will vary in certain conditions. For instance, a wife takes 1/4th of share in a
case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case
of succession to the wife's estate) takes a half share in a case where the couple is without lineal descendants,
and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind
more than one daughter, all daughters jointly take two-thirds

If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become
residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each
daughter gets.
Non-Testamentary and Testamentary succession under Muslim law:
In Non-testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the
other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance
is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis.
Birthright:
Inheritance of property in Muslim law comes only after the death of a person, any child born into a Muslim
family does not get his right to property on his birth. If an heir lives even after the death of the ancestor, he
becomes a legal heir and is therefore entitled to a share in the property. However, if the apparent heir does not
survive his ancestor, then no such right of inheritance or share in the property shall exist

Distribution of the Property:

Under the Muslim law, distribution of property can be made in two ways – per capita or per strip distribution.
The per capita distribution method is majorly used in the Sunni law. According to this method, the estate left
over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends
on the number of heirs
The per strip distribution method is recognised in the Shia law. According to this method of property
inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the
quantum of their inheritance also depends upon the branch and the number of persons that belong to the
branch.

Rights of females:
Muslim does not create any distinction between the rights of men and women. On the death of their ancestor,
nothing can prevent both girl and boy child to become the legal heirs of inheritable property. However, it is
generally found that the quantum of the share of a female heir is half of that of the male heirs. The
reasobehind this is that under the Muslim law a female shall upon marriage receive mehr and maintenance
from her husband whereas males will have only the property of the ancestors for inheritance. Also, males have
the duty of maintaining their wife and childrenn

According to Sunni law, legal heirs are divided into three classes, i.e. the sharers, the residuaries and the
distant kindred

Classes of heirs:
In Muslim Law. three Classes of Heirs are recognized. They are
Sharers : Who are entitled to a prescribed share of the inheritance.
Residuaries : Who take no prescribed share, but succeed to the ―residue‖ after the claims of the shaers are
satisfied.
Distant Kindred :- Those relations by blood who are neither sharers nor Residuaries.
Sharers:
The Sharers are 12 in number and are as follows:
(1) Husband,
(2) Wife,
(3) Daughter,
(4) Daughter of a son (or son's son or son's son and so on),
(5) Father,
(6) Paternal Grandfather,
(7) Mother, Mother,
(8) Grandmother on the male line,
(9) Full sister
(10) Consanguine sister
(11) Uterine sister, and
(12) Uterine brother.
Residuaries:-
If there are no Sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the
whole inheritance or the residue as the case may be, devolves upon Residuaries in the order set forth
1. Descendants
1. Sim
2. Sons son
II Ascendants:
i. Father.
ii. True Grand father
III Descendants of father:
i. Full brother.
ii. Full sister.
iii. Consanguine brothers. iv. Consanguine sister.
v. Full brothers son
vi. Consanguine brother’s son
vii. Full brother’s sons’s son
viii. Consanguine brother’s son’s son
IV Descendants of true Grandfather
i. Full paternal uncle
ii. Consanguine Paternal Uncle
iii. Full paternal uncle’s son
iv. Consanguine Paternal uncle’s son
v. Full paternal uncle’s son’s son
vi. Consanguine paternal uncle’s son’s son
vii. Full paternal uncle’s son’s son
viii. Consanguine paternal uncle’s son’s son
ix. Consanguine paternal uncle’s son’s son
x. Male descendants or more remote true grandfathers
(1) If there be no shares or Residuaries, the inheritance is divided

Grounds of Disqualifications

Preclusions which suspend the Heirs to succeed the property of the intestate are—

Killer or Murderer

Under the Sunni Law, an individual who has caused the death of another, regardless of whether intentionally,

or then again unintentionally, negligence, or accident, is suspended from succeeding to the estate of that

other. Crime under the Shia Law isn’t a bar to succession except if the death was caused intentionally.

Illegitimate Children

Under the Hanafi School, an illegitimate kid isn’t qualified for inheritance. Such a kid can’t acquire from his/her
dad however can acquire from his/her mom and all family members of the mother. The mother can likewise
inherit the property of her illegitimate youngsters.

Child in the womb

A child in the womb of its mom can inherit only if he is brought into the world alive. A child in an embryo is
viewed as a living individual and, accordingly, the property vests in that child. if such a child in the womb isn’t
brought into the world alive, the share previously vested in it is

divested and, it is assumed as though there was no such heir (in the womb) by any means.

Difference of Religion

A non-Muslim couldn’t inherit from a Muslim however the Caste Disabilities Removal Act of 1850 does away in
India with the avoidance of a non-Muslim from the inheritance of the property. If a non-Muslim acknowledges
Islam, and afterward dies, the Act of 1850 can’t warrant the application of his change law of succession to his
property; the Muslim Law will apply in such a case. Where a convert to Islam died leaving behind a daughter,
as against the

the claim of his non-Muslim relatives her daughter would be given all her father’s property – ½ share as her
share as Quranic heir and the remainder by the method of return.
Where a Muslim registers his marriage under the Special Marriage Act of 1954, he stops to be a Muslim for
objectives behind an inheritance. In like manner, after the death of such a

Muslim his (or her) properties don’t devolve under Muslim law of Inheritance. The Inheritance of the properties
of such Muslims is administered by the provisions of the Indian Succession Act, 1925, and the Muslim law of
inheritance isn’t appropriate.

Escheat

Where a Muslim who died and he has no legal heir under his law, his properties are inherited by Government
through the process of escheat. The state is viewed as a definitive heir of deceased persons.

3. INTESTATE SUCCESSION AMONG INDIAN CHRISTIANS

Succession among Christians

The law that lays down the rules of distribution of property of a Christian dying intestate (without making a
Will), is the Indian Succession Act, 1925 (ISA).

The Indian Succession Act, 1865, Cochin Christian Succession Act, 1921, Travancore Christian Succession Act,
1916 etc applicable to Christians in the past were repealed and consolidated into ISA.

Legal provisions of ISA applicable

The Sections 31 to 49 of ISA deal with rules of Christian succession.

A Christian who dies intestate, as per Section 32 of ISA, will have three categories of legal heirs: they are the
Spouse, Lineal Descendants and the Kindred.

The Section 24 of ISA refers to the concept of kindred or consanguinity. The term is defined as the “connection
or relation of persons descended from the same stock or common ancestor”. Kindred of an intestate can be
descendants such as children, grandchildren, ascendants such as his father, mother, grandfather,
grandmother, or collaterals such as his brothers, sisters and their descendants, or his uncles, cousins and other
relations, who are not the descendants of the siblings of the deceased.

The Section 25 of ISA defines “lineal consanguinity” as the descendants in a direct line such as man and his
father, grandfather and great grandfather, children and grandchildren etc. Lineal descendants mean all those
who are directly related to the deceased and are living at the time of distribution of the property.

Who is an Indian Christian?

An Indian Christian, as per Section 2(d) of ISA, means a native of India who is, or in good faith claims to be, of
unmixed Asiatic descent and who professes any form of the Christian religion.

The succession to the movable property in India of the deceased, as per Section 5 of ISA, will be governed by
the law of the country where he had his domicile at the time of his death. But the succession to his immovable
property will be governed by the law of India, wherever he had his domicile at the time of his death.

A person can have only one domicile for the purpose of succession to his movable property, as per Section 6 of
ISA.

What is meant by dying intestate?

A person is deemed to died intestate in respect of all property of which he has not made a testamentary
dispossession which is capable of taking effect, as per Section 30 of ISA.

Therefore, any property, which has not already been bequeathed or allocated as per a Will, devolves on his
death as per the Rules 31 to 49 of ISA.

When the widow and lineal descendants remain

Where an intestate has left a widow and lineal descendants, such as children and grandchildren, one-third of
his property shall belong to the widow, and the remaining two third shall go to the lineal descendants (Section
33).

If the intestate has left the widow, no lineal descendants but some people who are kindred to him the widow
will get one-half and the remaining one-half to be shared by the kindred.
If the intestate has left the widow, no lineal descendants and no kindred, then the entire property will devolve
on to the widow/widower.

The law applicable to a widow will be applicable to a widower who survives his wife, under Section 35 of ISA.

Rules for succession among lineal descendants

If the intestate has left only a child or children and no more lineal descendants, then the property belongs to
the surviving child, or equally divided amongst the surviving children (Section 37).

If the intestate has left no child, but only a grandchild or grandchildren and no more remote descendant
through deceased grandchild, then the property belongs to the surviving grandchild or is equally divided
amongst the surviving grandchildren (Section 38).

If the intestate has left only great-grandchildren or other remote lineal descendants to the same degree, then
the property belongs to the surviving great-grandchildren or other remote lineal descendants, equally for both
males and females (Section 39).

If the intestate has left lineal descendants who do not stand in the same degree of kindred to him, and the
persons through whom the more remote are descended are dead, then the property shall be shared equally by
all the lineal descendants of the intestate who stand in the nearest degree of the kindred to him at the time of
his death, or of the like degree of the kindred to him, who died before him leaving lineal descendants (Section
40).

Succession laws when there are no lineal descendants

If the intestate’s father is living, the widow will get one-half of the share and the father of the deceased will get
one-half of the share. The father will get the whole, if the widow of intestate is no more, irrespective of the fact
that others among the kindred are alive (Section 40).

Where the intestate’s father is dead, but his mother, brothers, and sisters are living, then the widow will get
one-half share and the remaining one-half share will be divided equally between mother, sisters, and brothers
or full share to be shared equally between them, if widow of intestate is alive (Section 43).

Where the intestate’s father is dead and his mother, a brother or sister, and children of any deceased brother
or sister, are living then the widow will get one half share and the remaining one-half share will be divided
equally per stirpes by mother, brother, sister and children of deceased brother or sister. Such children (if more
than one) would equally divide the share of their deceased parent amongst themselves (Section 44).

Where the intestate’s father is dead and his mother and children of any deceased brother or sister are living
then the widow will have one half share, and the remaining one-half share will be divided equally per stirpes by
mother and children of deceased brother and sister. Such children if there are more than one, would equally
divide the share of their deceased parent amongst themselves (Section 45).

Where the intestate’s father is dead, but his mother is living and has no brother, sister, nephew, or niece, then
the widow will get one-half share and the mother will get the remaining one-half share. If no widow of the
intestate, then the entire property will go to the mother (Section 46).

Where intestate has left neither lineal descendant, nor father, nor mother, then the widow will get one-half
share and remaining one-half share will be equally divided per stirpes between his brothers and sisters and
children of deceased brothers and sisters. Such children, if more than one, would equally divide the share of
their deceased parent amongst themselves (Section 47).

When no widow, lineal descendants or kindred

Where intestate has left neither parent, nor lineal descendant, nor any sibling, the widow will get one-half
share and the remaining one-half share will be divided equally amongst the kindred who are at the nearest
degree to the intestate such as grand-father and grand-mother. The property will be equally shared by them.

Any surviving uncles, aunts, great-grandfather, great-grandmother will be excluded as they are third-degree
kindred. On the other hand, if second-degree kindred is not living, then the property will be equally divided
amongst all the kindred in the third-degree, fourth-degree kindred will be excluded, and so on (Section 48).

If no heirs, government will have the property

If there are no heirs whatsoever to the intestate, as per the doctrine of escheat, the property will devolve on to
the Government.

4. DISTRIBUTE ESTATE OF A DECEASED HINDU PERSON

/ RULES OF SUCCESSION OF A HINDU MALE UNDER THE HINDU SUCCESSION ACT

Intestate Succession

In situations wherein a person dies leaving behind a property but without leaving a will or a testament or any
instruction concerning its distribution that is capable of taking effect in accordance with the law in force, the
said property will be distributed to its legal heirs by the rules of inheritance. This kind of devolution wherein the
property is devolved and distributed by the rules of inheritance is called intestate succession.

Arrangement of succession and Scheme of inheritance

and as per Hindu Succession Act, 1956
The act lays down a set of general rules for the devolution of property of a male
Hindu and also specifies the rules governing the determination of shares and
portions of various heirs. It provides for separate general rules for the devolution of
property of a female dying intestate. The said act is exhaustive and its latter part
covers all the exceptions, disqualifications, and special circumstances. The below-
given table explains the arrangement of sections in the act:

Provision Of Succession Dealt Under

Male intestate succession Section 8-13

Succession of a property of a Male Intestate

All the heirs either related by blood, marriage or adoption are divided into four classes or categories this
categorization is primarily based on propinquity in the relationship of the heir with the deceased, though other
factors like natural love and affection are also taken into consideration. Further, the rule of agnate over
cognate has been retained from the earlier regime.

Rules for devolution of property of a Male Intestate

On the death of an intestate, the property shall first devolve to class I heirs, as long as a single class I heir is
present, the property will not go to heirs in class II category. In the absence of a class II heir category, the
property shall devolve upon heirs in class III or agnates which primarily comprises the leftover heir who are
blood relatives of the intestate related to him through a whole male chain of relatives. If in case there is no
heir present in class III, the interest in the property shall devolve upon any other blood relative of the
intestate.

It is significant to note that the provisions of the act or any schedule to that effect does not put a full stop so
far as the heirs are concerned, hence in absence of a near relative a person may be eligible to inherit its
property. If he can trace his blood relation to the deceased however distant he or she may be. This was a
significant change as in the old regime before this act only four generations were recognized but now the
limitation on the degree has been removed.

Class I Heirs

Class I heirs comprises people to whom the interest in the property shall devolve in the first instance upon the
death of the intestate. The category contains eleven female members and five male members. All the class I
heirs take the property absolutely and exclusively as their separate property, further unlike the old joint family
regime no person can claim a right by birth in this inherited property.

The following heirs find a place in Class I:

Mother [M]
Widow [W]
Daughter [D]
Widow of a predeceased son [SW]
Daughter of a predeceased son [SD]
Daughter of a predeceased daughter [DD]
Daughter of a predeceased son of a predeceased son [SSD]
Widow of a predeceased son of a predeceased son [SSW]
Son [S]
Son of a predeceased son [SS]
Son of a predeceased son of a predeceased son [SSS]
Son of a predeceased daughter [DS]
Daughter of a predeceased daughter of a predeceased daughter [DDD]
Son of a predeceased daughter of a predeceased daughter [DDS]
Daughter of a predeceased daughter of a predeceased son [SDD]
Daughter of a predeceased son of a predeceased daughter [DSD]
The below-given figure shows all the class I heirs of the deceased (A) and explains their relationship with the
deceased:

Rules governing the distribution of interest among class I heirs

Section 10 elaborately defines the rules pertaining to the division of interest among the class I heirs. Following
are the rules governing the division of interest among class I heirs

The share of each son and daughter and that of the mother shall be equal.
The widow of the deceased shall take one share and if there is more than one widow all of them, collectively
take one share i.e., the share equal to the son or daughter and will divide it equally among themselves.
A predeceased son survived by a widow or son or daughter shall be allotted a share equal to a living son.
Out of the portion allotted to the predeceased son his widow and living sons and daughters will take equal
portions with respect to each other. Any branch of the predeceased son of this predeceased son will get an
equal portion.
The rule applicable to the branch of predeceased son of the predeceased son is the same as of predeceased
son wherein son, daughter and widow will get an equal share.
A predeceased daughter who is survived by a son or a daughter is to be allotted an equal share to that of a
living daughter.
The son and daughter of the predeceased daughter shall take an equal portion in the share. The same rule
shall apply to any branches of a predeceased daughter of a predeceased daughter.
Class II heirs

In case wherein a male Hindu dies, unmarried, and is not survived by any class I heir, the property shall
devolve among class II heirs. The second class of heirs comprises 19 heirs out of which ten are males and nine
are females; these heirs are further divided into nine subcategories. The under given table depicts the
classification of class II heirs into various subcategories categories:

Subcategory

List of Heirs

Subcategory I

Father

Subcategory II

Son’s daughter’s son

brother,
sister
Subcategory III

Daughter son’s son

Subcategory IV

Brother’s son
Sister’s son
Brother’s daughter
Sister’s daughter
Subcategory V

Father’s father
Father’s mother
Subcategory VI

Father’s widow
Brother’s widow
Subcategory VII

Father’s brother
Father’s sister
Subcategory VIII

Mother’s father
Mother’s mother
Subcategory IX

Mother’s brother
Mother’s sister

Rules of distribution and Preference of interest among class II heirs

The division of interest among the class II heirs is primarily governed by two rudimentary principles:

The heirs in a higher subcategory will exclude the heirs in the lower subcategory. For instance, the heirs in the
first subcategory will have preference over the heirs in the second subcategory, the second one will have
preference over the third and so on.
All the heirs in one category shall take the property equally according to per capita rule of distribution of
property, the order in which the name appears in a subcategory is irrelevant.
Class III heirs or agnates

Class III heirs or agnates inherit the property in the absence of class I or class II heirs. An agnate under class
III category is a person who is related to the intestate through the line of male relatives only and does not find
a place in class I or class II category of heirs, it is also significant to note that an agnate can be male or female
as it is the sex of the relative and not the sex of the heir that is material. An agnate can be a direct ascendant
or descendant, or a collateral with no limitation of a degree from the deceased.

The rule of preference and division of interest among agnates

For the computation of the degree of relationship and to ascertain the preferences the following rules shall be
taken into consideration:

Each generation is called a degree, and for computation of degree, the first degrees is the intestate itself.
Degree of ascent means upward or ancestral degree and degree of descent means downward or descendant
degree.
Where an heir has both ascent and descent degree both degrees shall be taken separately, and not
cumulatively.
An agnate of only descent is preferred over ascent irrespective of the number of degrees (or generation).
When two agnants have both ascent and descent degree, the one with fewer no of ascent degrees will be
preferred.
Class IV category or cognates

The last category includes the rest of the heirs of the intestate who do not find a place in the above three
classes. A cognate is an heir who was related to the heir through a mixed chain of relatives in the term of sex.
Further,if a single female intervenes between an heir and the intestate then also it is a cognatic chain.

Cognates inherit when none of the class I or class II or the entire category of agnates are present. The rule
pertaining to computation of degree and ascertainment of preferences is the same as in the case of agnates.

Doctrine of Escheat

If none of the class I or class II or agnate or cognate is present the property of the intestate will devolve into
the government by the virtue of the doctrine of escheat.

5. PROPERTY DIVISION AFTER THE DEATH OF A MUSLIM MALE

Non-Testamentary and Testamentary succession under Muslim law:

In Non-testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the
other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance
is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis.
In cases where the subject matter of property is an immovable property, situated in the state of West Bengal,
Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only
for the purposes of testamentary succession.
Administration of the estate of a deceased Mahomedan:-
The estate of a deceased Mahomedan is to be applied successively in payment of (1) his funeral expenses and
death-bed charges; (2) expenses of obtaining probate, letters of administration, or succession certificate; (3)
wages due for service rendered to the deceased within three months next preceding his death by any labourer,
artisan or domestic servant; (4) other debts of the deceased according to their respective priorities (if any);
and (5) legacies not exceeding one-third of what remains after all the above payments have been made. The
residue is to be distributed among the heirs of the deceased according to the law of the sect to which he
belonged at the time of his death, and the heir has a right of contribution against his co-heirs, if by the action
of the judgment creditor under a decree under sec.52 of the Civil Procedure Code against all the heirs, he was
left with less than his proper share of the net estate of the deceased. Under Mahomedan law, the payment of
the debts of the deceased takes precedence over the legacies.
Thus, with regard to item No.5, it is to be noted that a Mahomedan cannot by Will dispose of more than one-
third of what remains of his property after. payment of his funeral expenses and debts, unless the heirs
consent thereto. If the inheritance includes both partible and impartible estate, and the debts of the deceased
have been paid out of the partible estate, there is no right of contribution against the heir who has succeeded
to the impartible estate.
The whole estate of a deceased Mahomedan if he has died intestate, or so much of it as has not been disposed
of by Will, if he has left a Will, devolves on his heirs at the moment of his death, and the devolution is not
suspended by reason merely of debts being due from the deceased. The heirs succeed to the estate as
tenants-in-common in specific shares.
Devolution of inheritance:
Unlike Hindu Law, estate of a deceased Mahomedan, if he has died instestate, devolves on his heirs at the
moment of his death. Under the Mahomedan Law, birth right is not recognised. The right of an heir apparent or
presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until
then to any interest in the property to which he would succeed as an heir if he survived the ancestor. There is
no joint tenancy in Mahomedan law and the heirs are only tenants-in-common. Therefore, an heir can claim
partition in respect of one of the properties held in common without seeking partition of all the properties.
In Abdul Raheem vs. Land Acquisition Officer, AIR 1989 AP 318, it was held that the joint system family or
joint property is unknown to Muslim law and therefore the right, title and interest in the land held by the
person stands extinguished and stands vested in other persons
Heritable property:
As per Sec.51 of Mulla Law about Inheritance, there is no distinction in the Mahomedan Law of inheritance
between movable or immovable properties or between ancestral and self-acquired property.
There is no such thing as a Joint Mahomedan family nor does the law recognize a tenancy in common in a
Mahomedan family. In a Mahomedan family there is a presumption that the cash and household furniture
belong to the husband. The Mahomedan law does not recognise a joint family as a legal entity. In fact
according to the rules of Mahomedan law of Succession, heirship does not necessarily go with membership of
the family. There are several males and females who have no interest in the heritage but may be members of
the family. On the other hand there are several heirs like, for example, married daughters of a deceased male
owner who take an interest in the estate but are no part of the family Birth right not recognized:
4
As per Sec.52, birth-right is not recognised. The right of an heir-apparent or presumptive comes into existence
for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property
to which he would succeed as an heir if he survived the ancestor.
Transfer of spes succession is renunciation of chance of succession.—
The chance of a Mahomedan heir-apparent succeeding to an estate cannot be the subject of a valid transfer or
release.
Life-estate and vested remainder:-
(1) Sunni Law:- The Judicial Committee in J-Iumeeda v. Bud/un (1872) 17 W.R.525 observed that "the
creation of a life estate does not seem to be consistent with Mahomedan usage and there ought to be very
clear proof of so unusual a transaction"; and in Abdul Gafurv. Nizarnuddin (1892) 19 I.A. 170 referred to " life-
rents" as a kind of estate which does not appear to be known to Mahomedan law". The difficulty arises out of
the Mahomedan law of gift and does not appear to extend beyond cases of pure hiba whether inter vivos or by
will. As explained in Chapter XI, if a Gift be made subject to a condition which derogates from the grant, the
condition is void, e.g., a partial restraint on alienation; but a condition which does not affect the corpus of the
thing given is not within the rule, e.g. when there is a reservation of income to the donor or a gift of usufruct
to another donee.
(2) Family settlement:- A life-estate may be created by an agreement in the nature of a family settlement,
whether such agreement is preceded by litigation or not, but "the creation of such a life-estate does not seem
to be consistent with Mahomedan usage, and there ought to be very clear proof of so unusual a transaction"
[Humeeda v. Bud/un (1872) 17 W.R. 525J. Such an agreement is from its very nature a transaction for a
consideration, and it must be distinguished from a pure hiba or gift mentioned in sub-sec. (1) above.
Exclusion of daughters from inheritance by custom or by statute:-
Where daughters are excluded from inheritance ether by custom or by statute, they should be treated as non-
existent, and the shares of the other heirs should be calculated as they would be in default of daughters.
There is no custom that daughter can inherit her father's property only as Khananishia daughter or not at all—
Such custom has to be pleaded and proved by cogent evidence. AIR 1963 J & K 4, FoIl.) Ghulam Hassan v.
Msz. Saja, A.I.R. 1984 Jammu & Kashmir.

Classes of heirs:
In Muslim Law. three Classes of Heirs are recognized. They are
Sharers : Who are entitled to a prescribed share of the inheritance.
Residuaries : Who take no prescribed share, but succeed to the ―residue‖ after the claims of the shaers are
satisfied.
Distant Kindred :- Those relations by blood who are neither sharers nor Residuaries.
Sharers:
The Sharers are 12 in number and are as follows:
(1) Husband,
(2) Wife,
(3) Daughter,
(4) Daughter of a son (or son's son or son's son and so on),
(5) Father,
(6) Paternal Grandfather,
(7) Mother,
(8) Grandmother on the male line,
(9) Full sister
(10) Consanguine sister
(11) Uterine sister, and
(12) Uterine brother.
Under Shia Law of inheritance, the heirs are divided into two groups, namely,
(i) Heirs by consanguinity i.e. blood relations and (ii) Heirs by marriage i.e. husband and wife.
Heirs by consanguinity are divided into three classes and each class is sub-divided into two sections. These
classes are
(I). (i) Parents, (ii) Children and other lineal descendants how lowsoever.
(II). (i) Grandparents how high so ever (True as well as False), (ii) Bothers and sisters and their descendants
how low so ever.
(III). (i) Paternal and (ii) Maternal, uncles and aunts of the deceased and of his parents and grandparents how
high so ever and their descendants how low so ever.
Of these three classes of heirs, the first excludes the second from inheritance, and the second excludes the
third. But the heirs of the two sections of each class succeed together, the nearer degree in each section
excluding the more remote in that section
Residuaries:-
If there are no Sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the
whole inheritance or the residue as the case may be, devolves upon Residuaries in the order set forth.
I Descendants:

i. Son
ii. Son’s son II Ascendants:
i. Father.
ii. True Grand father
III Descendants of father:
i. Full brother.
ii. Full sister.
iii. Consanguine brothers. iv. Consanguine sister.
v. Full brothers son
vi. Consanguine brother’s son
vii. Full brother’s sons’s son
viii. Consanguine brother’s son’s son
IV Descendants of true Grandfather
i. Full paternal uncle
ii. Consanguine Paternal Uncle
iii. Full paternal uncle’s son
iv. Consanguine Paternal uncle’s son
v. Full paternal uncle’s son’s son
vi. Consanguine paternal uncle’s son’s son
vii. Full paternal uncle’s son’s son
viii. Consanguine paternal uncle’s son’s son
ix. Consanguine paternal uncle’s son’s son
x. Male descendants or more remote true grandfathers

Distant Kindred:-
6
Residuaries:-
If there are no Sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the
whole inheritance or the residue as the case may be, devolves upon Residuaries in the order set forth.
I Descendants:
(2) If the only sharer be a husband or wife, and there be no relation belonging to the class of Residuaries, the
husband or wife will take his or her full share, and the remainder of the estate will be divided among Distant
Kindred.
Distant Kindred are divided into four classes, namely,
(1) Descendants of the deceased, other than sharers and residuaries
(2) 2) Ascendants of the deceased, other than sharers and residuaries;
(3) (3) Descendants of parents, other than sharers and residuaries;
 (4) (4) Descendants of ascendants how highsoever other than residuaries. The descendants of the
deceased succeed in priority to the ascendants,
(5) the ascendants of the deceased in priority to the descendants of parents, and the descendants of
parents in preference to the descendants of ascendants.
(6) The following is a list of Distant Kindred comprised in each of the four classes:—
(7) I. Descendants of the deceased:—
(8) I. Daughter's children and their descendants.
(9) 2. Children of son's daughters h.l.s. and their descendants.
(10)II. Ascendants of the deceased:-
(11)1. False grandfathers h.h.s.
(12)2. False grandmothers h.h.s.
(13)IlL Descendants of parents:-
(14)1. Full brothers' daughters and their descendants.
(15)2. Can. brothers' daughters and their descendants.
(16)3. Uterine brothers' children and their descendants,
(17)4 Daughters of full brothers' sons hJ.s. and their descendants.
(18)5. Daughters of con. brothers tons his, and their descendants.
(19)6. Sisters' (f, c., or Ut.) children and their descendants.
(20)IV. Descendants of immediate grandparents (true or false):—.
(21)J. Full pat, uncles' daughters and their descendants.
(22)1 Con. pat. uncles' daughters and their descendants.
(23)3. Uterine pat. uncles and their children and their descendants.
(24)4. Daughters of full pat. uncles' son h.l.s and their descendants.
(25)S. Daughters of con. pat. uncles' son hi.s and their descendants.
(26)6. Pat. aunts (f., c., or Ut.) and their children and their descendants. 7. Mat. uncles and aunts and
their children and their descendants. and descendants of remoter ancestors h.h.s. (true or false).
(27)Succession among the heirs of the same class but belonging to different branches may either be per-
capita or per-strips.
(28) The per capita distribution method is majorly used in the Sunni law. According to this method, the
estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of
each person depends on the number of heirs. The per strip distribution method is recognised in the
Shia law. According to this method of property inheritance, the property gets distributed among the
heirs according to the strip they belong to. Hence the quantum of theirinheritance also depends upon
the branch and the number of persons that belong to the branch

6. DOCTRINE OF AUL AND DOCTRINE OF RADD

Doctrine of Aul

There may be cases where the arithmetic sum of the functional shares allotted to the heirs of the deceased is
more than equity or less than equity. Where the sum of the shares is less than equity, then the doctrine of Aul
or doctrine of increase is applied. When the total shares exceed unity, then the shares of each sharer is
reduced by making a common denominator and increasing the denominator in order to equate it to the sum of
numerators.

Let us understand with the help of an illustration.

Where the husband gets ½ share and 2 full sisters get ⅔ share, the total becomes 7/6 which is greater than 1.
This means that the doctrine of Aul is to be applied.

Step 1: Make a common denominator. So, the common denominator is 6.

Step 2: Increase the denominator and make it equal to the sum of the numerators. So, 3/6 + 4/6 changes to
3/7 + 4/7 = 7/7 = 1.

Now, the shares are divided proportionately. The husband will get a 3/7 share and the sisters will get 4/7 share
collectively.

Doctrine of Radd

After the division of shares, the total allotted shares are less than 1, and there is no residuary to inherit the
residue, then the residue reverts back to the sharers in the same proportion of their shares. The only exception
to this rule is that the wife or husband is not entitled to receive the return in the presence of an heir. This is
the doctrine of radd or doctrine of return.

Following is an illustration for better understanding.

The Mother of the deceased has ⅙ share and the daughter has ½ share of the estate. The total is ⅔, which is
less than 1. Hence, the doctrine of radd will be applied.

Step 1: Make a common denominator. Here, the common denominator is 6.

Step 2: Decrease the denominator and make it equal to the sum of the numerators. So, ⅙ + 3/6 becomes ¼ +
¾ which is equal to 1.

Thus, the mother will get ¼ share and the daughter will get ¾ share.

In Islamic Inheritance Law, Awal is when the prescribed shares of the heirs add upto more than 100% of the
inheritance, so in such case, the prescribed shares are reduced proportionally so that it's 100% of the
inheritance while the reduction is shared proportionally according to the shares. For example, a deceased
person (female) left a husband, mother and daughters. The husband's prescribed share is a quarter (1/4) of
the inheritance because the wife (deceased) has left offspring (daughters). The mother's share is a sixth (1/6)
because of the daughters also. Finally, the daughters take two-thirds (2/3) of the inheritance. Now if we add
up the prescribed shares: 3/12 + 2/12 + 8/12, we have 13/12 which is 108% of the inheritance. So to correct
the percentage to be 100% we put reduction to all the fractions in proportion to their shares. So the husband
instead of taking 3/12 equivalent to 1/4, he will take 3/13 which is slightly less than a quarter. Likewise the
mother instead of taking 2/12 equivalent to 1/6, she will be reduced to 2/13, a slight reduction from 1/6.
Finally the daughters will instead of 8/12 be taking 8/13 which is less than their 2/3 share. Notice how the
reduction entered all of the shares in proportion to their original shares. This new correction makes the shares
100% of the inheritance.

As for Radd, it is the opposite of awal, meaning that the prescribed shares of the heirs add up to less than
100% of the inheritance, so in such case, the prescribed shares are increased proportionally so that it's 100%
of the inheritance while the increase is shared proportionally according to the shares. For example, a deceased
person left a mother and daughter only. The mother's prescribed share is a sixth (1/6) because the deceased
left offspring (daughter). The daughter takes half because she's only one and no brother or cousin is with her.
So when we add up the prescribed shares: 1/6 + 3/6, we have 4/6 which is only 66.66% (2/3) of the
inheritance. So now we have to give the remaining 33.33% back to the mother and daughter because they are
the only inheritors alive. Since the mother and daughter take 4 shares and divide between themselves in a
ratio 1:3, which will give the mother a quarter (1/4) and daughter three-quarters (3/4). Notice the shares
increased proportionally. The mother instead of taking 1/6 will now take 1/4. The daughter instead of taking
half (1/2) will now take three-quarters (3/4). Now if we add up shares: 1/4 + 3/4, we have 100% of the
inheritance.

7. NATURE OF PROPERTY ACQUIRED BY THE WIFE OF A HINDU MALE

Section 14 in The Hindu Succession Act, 1956

14. Property of a female Hindu to be her absolute property.—
(1) Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited
owner. Explanation.—In this sub-section, “property” includes both movable and immovable
property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any person, whether a relative or not,
before, at or after her marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any such property held by her as
stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift
or under a will or any other instrument or under a decree or order of a civil court or under an
award where the terms of the gift, will or other instrument or the decree, order or award
prescribe a restricted estate in such property.

When we check the systems of inheritance in Hindu law, there can find two different systems of inheritance,
namely:

THE MITAKSHARA SYSTEM

THE DAYABHAGA SYSTEM
The former system prevails in Bengal and the latter system prevails in other parts of India. Both the systems
are based upon the text of Manu that “to the nearest Sapinda the inheritance next belongs; after them, the
Sakulyas, the preceptor of the Vedas, or a pupil.”[21] The guiding principles of the two systems are different.
The Mitakshara interprets the law of inheritance as nearest blood will be the heir ie; based on the principles of
consanguinity. Whereas according to Manu, the dayabhaga system is based on the principle of religious
efficacy or the nearest Sapinda can offer oblation to the souls. Modes of devolution of property is also different
in both schools.

MITAKSHARA SYSTEM

Devolution Of Mitakshara School Can Be In The Form of:

Separate Property Of The Last Owner;

Joint Family Property.
The Classification Of Heirs Under Mitakshara Are As Follows:

Sapindas
Samanodakas, And
Bandhus
Under Mitakshara law, females takes only limited estate whereas males takes absolute interest in estate. Males
succeeding as heirs, whether to a male or to a female, took absolutely. Females succeeding as heirs to a male
took a limited estate in the property inherited by them, except in certain cases. If a separated Hindu under
Mitakshara or any Hindu under Dayaghaga died leaving a widow, and brother the widow succeeded to the
property as his heir but she being a female did not take the property absolutely. She was entitled to the
income of the property. She could not make a gift of the property nor could she sell it unless there was some
legal necessity. On her death, the property would pass not to her heirs, but to the next heir of her husband, ie;
his brother.

Under Mitakshara law, the right of inheritance was a right which vested immediately on the death of the owner
of the property in the person who was the nearest heir at that time. But it has some exceptions:-

A son or daughter in the mother’s womb at the time of death of owner is not entitled to inheritance.[23]
A son validly adopted to the deceased owner by his widow.[24]
“Apart from the case of a child en ventre sa mere or of an adopted child , the estate once vested in an heir will
not be divested by the subsequent birth of a person who would have been a preferable heir had been alive at
the time of the time of the death of last owner.”[25]
However both under Mitakshara and Dayabhaga schools, in certain special cases women has excluded from
inheritance of property. Under Mitakshara the only heir liable to be excluded from inheritance on unchastity is
widow of the deceased.[26]

Sections 24 and 25 of “The Hindu Succession Act, 1956” have also laid down the grounds for excluding a
person from inheritance while Section 28 of the said Act of 1956 provides that no person shall be disqualified
from succeeding to any property on the ground of any disease, defect or deformity or on any ground except as
provided in the said Act of 1956. Therefore, the disabilities left after the Hindu Inheritance (removal of
disabilities) Act, 1928, have been removed by the Hindu Succession Act, 1956.

The Section 8 -13 of The Hindu Succession Act, 1956, deals with the rules of succession with separate property
of a male Hindu, dying intestate. The Act applies to cases of succession which opens after the Act came into
force. The property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow
and son.[27]

The Section Divides The Heirs Of A Male For The Purposes Of Inheriting The Property Into Four Classes. These
Include:

Relations Mentioned In The Class I Of The Schedule

Relations Mentioned In The Class Ii Of The Schedule
Agnates Of The Deceased And
Cognates of the Deceased.
The Section 6 and 8 Of The Hindu Succession Act, 1956

The relationship between the above stated Sections can be read out from decisions of courts.

Section 6 is applied to the devolution of coparcenary property of a male Hindu who dies after the
commencement of the Act. Section 8 is applied to the devolution of a self-acquired property of male Hindu.[28]

In Narayanan v. Pushparajani,[29] Kerala High Court observed that where a person dying intestate does not
have wife or children and leaves behind him brother by half blood and a sister by full blood. In such a case, the
sister by full blood would be excluded by the brother by half blood. Thus sister by full blood alone would inherit
the property excluding the brother by half – blood.

Illustration: A Hindu dies intestate leaving a widow. The widows together will take the whole.
Under Mitakshara Law, father’s widow and brother’s widow were not heirs. But now they are recognized as
heirs and are given a high place in the order of succession. Similarly, in the case of persons mentioned under
class ii of schedule (brother’s brother, sister’s daughter and father’s father) were used to inherit property as
‘bandhus’ after all the agnates are exhausted, are now placed in the high place of order of succession.

Hence it is possible to conclude that, the recent developments regarding the law of Hindu women’s property
rights has definitely enriched the possibilities of providing extensive rights on deserved property.

8. MARY ROY v STATE OF KERALA

This case is one of the landmark decisions taken by the Honorable Supreme Court of India. It deals with giving
a Christian woman the inheritance law rights of their parents. It was upheld for the first time and overturned
by the Travancore Succession Act of 1916, which applied to the Travancore region of Kerala.

Before July 1949, the State of Travancore was a princely state, and the law that applied to its borders
regarding the succession was the ‘Travancore Christian Succession Act of the Kollan era. Then the former State
of Travancore merged with the former state of Cochin to form a part of Travancore-Cochin.

In what has become known in Indian legal history as the “Mary Roy case,” named after Mary Roy, an educator
and human rights activist who is the mother of renowned writer Arundhati Roy. She had put a petition before
the Supreme Court for gender equality in inheritance. She is the woman who conducted the legal battle and
the apex court ruled in 1986 that women members of the community had equal rights in their father’s
property.

Facts of the Case:

In the given case, Mary Roy was a widow and her husband had left to his heavenly abode. Mrs. Mary was
tormented, harassed, and humiliated by her family members. This was done because they wanted her to
evacuate their father’s property.
The brothers of Mrs. Mary wanted the property by hook or crook. They even employed some thugs who
threatened her that they will use harsh and bodily force against her unless she evacuated the premises.
But Mrs. Mary Roy being a strong woman flatly refused to do so, even though that she had nowhere else to
live. Her brothers, on the other hand, were adamant that she had to leave the place as they claimed that the
property was theirs under the Travancore Succession Act of 1916 and that she was illegally remaining and
claiming the property as hers.
Mary Roy believed her fundamental principle of equality was being infringed, so she decided to bring the case
to trial to have it restored.

As mentioned in the Introduction, Travancore was earlier governed by the Travancore Succession Act of 1916,
which was the source of the conflict. This statute implied that there was no law in place before 1916 that
allowed for the succession of Christians living in the area.
This law did not recognize successors’ coparcenary rights to the property; instead, it solely acknowledged
property acquisition by inheritance. Under Section 24 of the Act, a widowed mother would receive just a life
interest in the property, and the daughters who had previously been given Stridhan would not be entitled to
gain it.
Mrs. Mary initially initiated a lawsuit against her brother George Isaac to get equal succession rights, but the
lower court denied her request. She subsequently filed an appeal with the Kerala high court, challenging the
lower court’s decision. Her application to the Kerala high court was granted.
Even after winning the lawsuit, her execution petition was granted to her after 8 years of battling the matter,
and she was given control of the property. After that, she moved into her father’s cottage, but her brothers
again began to pester her in the above-mentioned manner.
Mrs. Mary then chose to take her case to the Hon’ble Supreme Court of India to continue her fight against her
brothers. She contested a section of the Travancore succession law, which was enacted in 1916. Invoking
constitutional remedies under Article 32 of the Indian constitution, Mary Roy filed a petition at the Supreme
Court of India.
Issues Raised:

If the clause of the Travancore succession statute of 1916 related to the interstate succession violated of the
1925 succession laws?
If part B of the State Laws Act of 1961 applied to Travancore?
Will the old Travancore Cochin Succession Act 1902 govern and maintain the matter of intestate succession in
Travancore in mind, or will the Indian Succession Act of 1925 govern and keep the question of intestate
succession in Travancore in mind?
If the Kerala high court’s verdict was appropriate and legal, it would be applied retroactively?

Contention Raised:

By Petitioner:
The petitioners argued that these laws discriminated against women by stating, among other things, that a
widow or mother becoming responsible under sections 16,17,21, and 22 will have only a life interest in the
intestate’s immovable property, which will terminate upon death or remarriage. It stated that why a daughter
is not given the same value as a son and only given 1/4th as that of a son. This is violative of Article 14 of the
Constitution of India.

By Respondent:

The respondent had correctly noted that the legislation was developed in the past and that repealing it would
be a blow to many people’s customs and values. They further maintained that since the statutes were enacted,
they were unconstitutional. The petitioner was chastised by the respondent(s), who believed she was breaking
the norm and on the verge of becoming too independent and modern. They believed she was purposefully
challenging society’s traditional nature.

Judgement:

The court ruled that ‘No Personal Law’ can be prioritized or held above the Indian Constitution and that any
conduct in an area that invalidates the relevance and importance of the constitution’s provisions will be
declared illegal and inapplicable.
As a result, it was determined that the Travancore Succession Act 1916 provision governing the succession
mentioned in the case violated the ‘Right to Equality’ granted under Article 14 of the Indian constitution due to
its discriminatory nature toward women, and so could not be applied in the current case. And even in that
area, Chapter 2 of Part V of the Indian Succession Act of 1925 was to be implied over intestate succession.
As a result, the law governing succession in the Travancore region will be the Indian Succession Act 1925,
rather than the Travancore Succession Act 1916.
The judgement was ruled ‘In Favour’ of Mrs. Mary returning the possession of her father’s ancestral property.

The court determined that the bereaved mother would receive 1/3rd of her husband’s property, 1/3rd to the
daughter, and the remaining 1/3rd to the brother. To me, there was no difference or discrimination.
The court also decided that if a man dies intestate without children or a widow, his property will first go to his
father, and if he is not there, it will go to his mother, brother, and sister, who will divide it equally among
themselves. The court further stated that no law or provision should be made to benefit a religious sect or a
segment of the community.
This decision is a watershed moment in Indian history since it empowers women to speak out and defend their
rights. This was a landmark moment in human history, challenging patriarchal and traditional society at every
turn and forcing people to reassess their attitudes about women. As a result of this decision, women have
become more outspoken and willing to fight for their rights in the face of prejudice.
This decision has made a big difference in the lives of women who were previously denied the right to inherit
their fathers’ property. Although Mrs. Mary Roy was just speaking for herself in this case, her voice ended up
speaking for all the women who had been affected by this antiquated statute.
This decision sparked a massive rebellion among dissatisfied women, and so therefore came to be known as a
landmark decision.

9. RIGHT TO INHERITANCE OF COLLATERALS

Heirs are individuals who are entitled to inherit a deceased person's property. Many people die having written a
will, which describes how they want their property distributed after death. Others die without a will -- or
"intestate." State laws provide guidance regarding who receives a deceased person's property in the event the
deceased person failed to make a last will and testament. Collateral heirs are a specific class of people who are
not direct descendants of a person who passed away.
Collateral heirs are a class of relatives who are not direct descendents of a deceased person. For example, the
parents, grandparents, brothers, sisters, nieces and nephews of a deceased person are all collateral heirs
because they are not direct descendents of a deceased person. Cousins, aunts and uncles are also collateral
heirs. Collateral heirs may share a portion of a deceased individual's estate -- pursuant to laws of intestate
succession -- if the deceased individual had no surviving spouse, children or grandchildren.
A collateral descendant, also referred to as a collateral heir or collateral kin, descends from the same common
ancestor as the decedent, but does not descend directly from the decedent. For example, siblings, cousins,
nephews, nieces, aunts, and uncles are collateral descendants, while children and grandchildren are direct
descendants.

In most cases involving intestacy, collateral descendants inherit property only if the decedent does not have
any living direct descendants, such as children or parents. Some states narrowly limit intestate succession to
only those collateral descendants within five degrees of kinship to the decedent. For example, North Carolina
prohibits inheritance if a collateral heir is more than five generations removed from the decedent. Under this
restriction, persons who are not descended from the deceased’s parents or grandparents are precluded from
inheriting any property. By contrast, other states permit inheritance by remote collateral descendants in order
to avoid escheat to the state.
 10. DIFFERENT MODES OR EFFECTING PARTITION

A partition can be made by definite declaration of the intention by any member to separate himself from the
family. If the partition is done after the declaration, it amount to be division of status, what type of mode is to
be used for this. The partition can be effected by suit, by submitting the dispute as to division of the property
to arbitration by a demand for a share in the properties, it also effected by the agreement for division of
property
. If any member is living or has separate enjoyment does not means that they have division of the status.

PARTITION BY SUIT
When the coparceners file a suit for the partition, it amounts to an unequivocal
intimation of the intention to sever. And consequently, severance of status take
place from the date the suit is filed in court. The decision taking the view that the
partition is effected by a decree of the court are wrong.

PARTITION BY AGREEMENT
The partition may be effected by an agreement between the parties of coparceners.
In the case privy council in Approvier V. Rama, says that intention is a real test,
an agreement between the coparceners parties to hold and enjoy property in
defined shares as their separate owners operates as partition but it cannot clearly
say that actual division of partition between parties might take place or not.
Under Hindu law, an agreement to partition need not be written. If it is written, it
should clearly shows the parties intention for partition and severance of status date
place at the time when the agreement to partition is signed. A written agreement is
not need to be registered it merely records what happened. But, if properties are
divided by the agreement, it is necessary to register. The property divided by the
agreement may not be equal or may be equal, it not compulsory partition is unjust.

ORAL PARTITION
There is long line of cases holding the view that oral partition can be validly made.
As early as in Privy council in Rewan Prasad V. Mst. Radha, said that it is
undisputed that a division of joint property might be effected without an instrument
in writing.
UNILATERAL DECLARATION
The severance of status can also be brought about by a unilateral exercise of power
to partition. This, in other words, means that the consent of the other coparceners is
not necessary. But this does not mean that intention need not be communicated.
The communication of intention is necessary whatever the mode of partition one
may use. An unambiguous and definite expression of intention by a coparcener to
partition is sufficient to bring about a division in status, with all the legal
consequences resulting therefore.
PARTITION BY ARBITRATION
The partition may be effected by the way of arbitration. When any member of a
joint family enter into the agreement and appoint arbitrators for dividing the joint
family property among themselves or coparceners. The severance of status takes
place from the date entered into an agreement. The award is made when fact are
immaterial. In case Chandra Kant V. Balkrishan, thse pervious suit for partition,
the court passed a preliminary decree for partition on the basis of arbitration award
made accordance with an agreement between the parties. A commissioner was
appointed for dividing the property on the basis of the award. The arbitrator was
awarded the property and parties take the possession of their separate property. The
suit later on dismissed as the parties did not pay the fees of commissioner. After
sometime another suit is filed in Supreme Court. The Supreme Court held that the
second suit was not maintainable as severance of status and partition were already
affected in the earlier suit on the basis of award.
PARTITION BY CONDUCT
The severance of the status may also take place by way of conduct. The conduct,
like declaration of intention, must be unequivocal, explicit and definite. There can
be number of circumstances which show the severance of status. For instance,
separation in food, worship, separate living and enjoyment of the property, separate
income or generate separation for separate purpose and other conducts which show
that severance of the status from the joint family.

AUTOMATIC SEVERANCE OF STATUS

The conversion is a way for the automatic severance of the status, any coparcener
conversion into the non-Hindu religion like Christian. Islam, parsi etc. those person
automatically cease to the coparcener from when they convert their religion into
any non Hindu religion and severance of status take place from the date of person
conversion. Who converted their religion get some share from the join family
property at the time when person get converted. Same rule is followed when, if any
coparcener married with the non Hindu under the special marriage act, 1954.

REGISTRATION OF PARTITION
Under Hindu law, it is not necessary to register for the partition. It also may be oral
partition between the parties. An unregistered memorandum of partition is
inadmissible in evidence but it can be used for only collateral purposes, such as the
intention of coparceners for the partition.

PARTIES TO PARTITION
In any suit for the partition, the essential parties for the suit are heads of the
branches. No other member of the branch is essential need for parties of the suit
PARTITION BY WILL
Before the enactment of the Hindu Succession Act, 1956, the undivided interest of
a coparcener in the joint family property devolved on his death by the rule of
survivorship. So, a coparcener cannot make an effective will for his coparcenary
interest.

11. RIGHT OF PRE- EMPTION

is the right of an owner of immovable property to acquire by purchase another

immovable property which has been sold to another person. In other words, under
this right owner of an immovable property is entitled to repurchase an adjacent
property which has been sold to someone else.

We can understand pre-emption with this illustration: A and B is owners of their

houses which are adjacent to each other. B sells his house to C, who may be a
stranger for A. Under this pre-emption right, A who is a pre-emptor can legally
repurchase that house from C at the same price at which B sold it to C. In this
manner, the right of pre-emption would enable A to avoid C from being his
permanent neighbour. As a matter of fact, an apprehended inconvenience which
may be caused by Before the advent of Moghul Rule in India, there was nothing
akin to the law of pre-emption.2 It was only during the Moghul rule, that the law of
pre-emption was introduced and made applicable as rule of general law of the land
for all communitiesaThe right of Pre-emption and Its Constitutional Validity :

As far as constitutional validity of right of pre-emption is concerned, it can look

into the Pre- emption after dividing two stages, (i) before 44th Constitutional
Amendment, and (ii) after 44th Constitutional Amendment.

(i) Before 44th Constitutional Amendment, 1978 : Article 19(1) (f) of the Indian
Constitution provides all citizens had a fundamental right to acquire, hold and
dispose off property. Article 19 (5) provided that reasonable restrictions may be
imposed on this right of a person to acquire, hold and dispose off a property yet it
was protected under Clause (5) of Article 19. With the help of power exercise
under this Clause, this right on the ground of vicinage or on ground of
consanguinity or on ground of participation of some immunity was held
Constitutional. Further, the right held Constitutional whether it was exercised
under some enactment or under Muslim personal law. But in 1962, in the case of
Bhau Ram v. Baij Nath,5 the Supreme Court overruled this view and held that Pre-
emption only on the ground of vicinage was unconstitutional and cannot be
enforced. The court held that unless the Pre- emptor and the vendor are co-sharer
or participators in some immunity, the right cannot be protected. Accordingly,
claim of Pre-emption on ground of being co-sharer or participator in immunity was
constitutional but Pre-emption only on ground of vicinity was unconstitutional.
The Supreme Court reaffirmed this view in Sant Ram v. Labh Singh.6

(ii) After 44th Constitutional Amendment : Article 19(1) (f) has now been repealed
by the 44th Amendment Act, 1978. The result is that now there is no fundamental
right of acquiring, holding and disposing off a property. Thus, right to acquire,
hold and dispose off, is neither a fundamental right nor a mere constitutional right.
However, Pre-emption still continues to be a legal right. It is therefore, submitted
that the reasonableness of the right of pre-emption can still be examined under
Article 14 and 15 of the Constitution. In Atma Prakash v. State of Haryana,7the
Supreme Court held that claim of Pre-emption on ground of consanguinity is ultra
vires. The court observed that the reasons which justified Pre-emption in the past
namely, the preservation of the integrity of rural society, the unity of family life
and the agnatic theory of succession, are totally irrelevant. The court held that the
claim for possession by way of Pre-emption only on ground that claimant had
superior rights being father’s brother’s son of the owner, cannot be sustained.
Accordingly, Section 15 of Punjab Pre-emption Act, 1923 (which provided Pre-
emption to co-sharer for kinsfolk of a vendor) was held to be unconstitutional by
the Supreme Court because there was no reasonable classification of the co-sharer
entitled to claim Pre-emption stranger has been the very basis of this right.

Only three classes of persons may claim the exercise of the right under Muslim
law. Under Muslim law, pre-emptor are classified into three categories :

i. The Co-sharers or Shafi-i-Sharik

ii. The Participators in Immunities or Shafi-i-Khalit, and

iii. The Owners of Adjacent Properties or Shafi-i-Jar

i. The Co-sharers or Shafi-i-Sharik

The persons who are entitled to inherit the properties of a common ancestor are
called co- sharers. The co-sharers have the preferential right of pre-emption against
any other class of pre-emptors. For example, brothers or two sisters are the co-
sharers. If one of them sells his/her house, the other is entitled to claim pre-
emption. Co-sharers are given preference against other categories of pre-emptors
because they are common blood-relations

ii. The Participators in Immunities or Shafi-i-Khalit

In the absence of a co-sharer, Shafi-i-Khalit is entitled to pre-empt in the following

cases :

In Bhau Ram v. Baij Nath,8 the Supreme Court has held that pre-emption on the
basis of participation exists only in the easements of way and water on private
land. It does not extend to any other easement such as easements of air and light.9
It may be noted here that for claiming the right of pre-emption on the basis of
being a Shafi-i-Khalit, is that the right to way and right to discharge water must be
a private right. The right to use common thoroughfare such as common village
roads will not give rise to the right of pre-emption.

A person cannot said to be the Shafi-i-Khalit and would not be entitled to the right
of pre- emption in the following cases :

a. The right of pre-emption cannot be claimed on the basis of easement of light or

air.

b. The mere fact that the owners of land have the right to draw water from a
Government

water course does not give them any right of pre-emption.10

c. On the basis that the branches of his tree project over the land of a neighbour,
the

owner of the tree cannot claim the right of pre-emption as Shafi-i-Khalit on the sale
of

that land.11
d. The right to use common thoroughfares, such as village roads, big canals, etc.
does

not give rise to the right of pre-emption.

iii. Owners of Adjacent Properties or Shafi-i-Jar :

Shafi-i-Jar is the owner of an adjoining property or in other words it is mere

neighbour who can be a pre-emptor i.e., there is vicinage if two properties are
adjacent to each other, but only in the absence of Shafi-i-Sharik and Shafi-i-Khalit.
The right on the basis of neighborhood arises only in favour of the owner of the
adjoining immovable property. So, the right does not belong to a tenant or to a
person who is in possession of property but does not have any ownership in it

12.PROPERTY DIVISION AFTER DEATH OF A HINDU FEMALE

A woman may acquire property as:

1. Ancestral property
2. Self-acquired
3. Received as gift/will
4. Inherited

In India, the property rights of women are governed by law enacted by the
legislature and personal laws.

A. In the case of Hindu women (Jain, Sikh and Buddhists are included)The
property of a woman devolves as per the Hindu Succession Act, 1956. The
Act deals with intestate succession and not wills.
B. Hindu woman is an absolute owner of the property acquired by her through
inheritance, partition, gift, will, in lieu of maintenance or purchased by her.
The ownership gets limited in case the property transfer is subject to some
restriction.
Sec 15 of the Act, 1956 provides the list of heirs of Hindu Woman’s property if she
dies intestate and section 16 prescribes the order of preference:

Own children, children of predeceased children, husband – all share equally

Heirs of the husband (only when heirs in point 1 are absent)

Parents of Hindu woman (only when heirs in point 1 and 2 are absent)

Two exceptions to this rule are

If property by a Hindu woman is inherited from her father – in the absence of her
children or predeceased children’s children, it goes to the heir of her father and not
to the husband.

If the property is inherited from her husband or father in law – in the absence of
her children or predeceased children’s children, it goes to heirs of the husband.

In case of self-acquired property, it is always advisable to make a will in time so

that the property is bequeathed to beneficiaries one desires. As per the scheme of
the Act, the self-acquired property of a Hindu Woman would go to heirs of the pre-
deceased husband in case she dies intestate and has no issues.

After the amendment of 2005 in the 1956 Act, daughters are also coparceners, and
they inherit the share in the ancestral property equally as a son and subject to same
rights and liabilities as a coparcener. If she dies intestate, her interest devolves as
per 1956 Act. She also has a right to make a will of her share.

13.INTESTATE SUCCESSION UNDER INDIAN SUCCESSION ACT

intestate the governing law is the Indian Succession Act, 1925 specifically under
Section 31 to 49 of the Act.
3. This Act recognizes three types of heirs for Christians:- 1. Spouse

2. Lineal Descendants 3. Kindred

Lineal Descendants:

The phrase “Lineal Descendant” 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”. An illegitimate child is not a child within the meaning of the act.
Therefore, such a child has no share in the property of the parents. But in Jane
Anthony Vs. Siyath 2008 (4) KLT 1002 recognized the right of illegitimate child
under Indian Succession Act.

Kindred or Consanguinity:

The term “Kindred” means, relations 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. 24 of the Act makes an initial reference to the concept of kindred and

consanguinity, defining it as “the connection or relation of persons descended from
the same stock or common ancestor.” S. 25 qualifies ‘lineal consanguinity' with
regard to descent in a direct line. Under this head fall those relations who are
descendants from one another or both from the same common ancestor. 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 nearest kindred to the
deceased, one would be deemed to stand in the shoes of such relative and claim
‘per stirpes.'
S. 26 qualifies ‘collateral consanguinity' as occurring when persons are descended
from the same stock or common ancestor, but not in a direct line (for example, two
brothers). It is interesting to note that the 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. 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. However, a decision has been made to the effect that it does recognise
adoption and an adopted child is deemed to have all the rights of a child natural-
born, although the law does not expressly say so.

The law of intestate succession under S. 32 states that: The property of an intestate
devolves upon the wife or husband or upon those who are of the kindred of the
deceased, in the order and according to the rules hereinafter contained in this
Chapter. However, as aforementioned, the Act recognises three types of heirs for
Christians: the spouse, the lineal descendants, and the kindred.

The Concept of Succession :

Section 2(d) of the Act defines “Indian Christian” means,

a native of India who is or in good faith claims to be, of unmixed Asiatic Descent
and who professes any form of the Christian Religion. The religion of the deceased
determines the Succession to his estate. 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, 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.
5. The rules relating to Intestate Succession among Christians governed under
Sections 29 to 49 in Part V of Indian Succession Act. But if there is a will executed
by the deceased, the General Law as contained in Sections 57 to 391 would apply.

6. Testamentary Succession among Indian Christians:

A will is the expression by a person of wishes which he intends to take effect only
at his death. In order to make a valid will, a testator must have a testamentary
intention to which he

gives deliberate expression to take effect only at his death.

8. Testamentary Succession is dealt with under Part VI of Indian Succession

Act, 1925. Part VI of the Act has Sections 57 to 191, that comprehensively
deal with all issues connected with wills and codicils and the making and
enforcing of the same, capacity and formalities to make a will. According to
Section 59, every person of sound mind, not being a minor may dispose of
his property by will. Married women, deaf/dumb/blind persons who are not
there by incapacitated to make a will are all entitled to disposing their
property by will. Soundness of mind and freedom from intoxication or any
illness that render a person incapable of knowing what he is doing are laid
down as pre-requisites to the process.

8. Intestate Succession among Indian Christians:

Section 30 of the Indian Succession Act, 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 bequeathed or
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.
Rules of Distribution:

The Succession Act contemplates only those relations that

arise from a lawful marriage. Where an intestate has left a widow and if he has left
lineal descendants, i.e., Children and Children’s Children, 1/3rd of his property
shall belong to the widow, and the remaining two third shall go to the lineal
descendants. If the intestate has no lineal descendants, but has left persons who are
of kindred to him, half of his property shall belong to the widow and the other half
shall go to those who are of kindred to him.

9. A husband has no right to inherit the property of a divorced wife. In case of a

judicial separation under the Indian Divorce Act, 1869, the property of the wife
would devolve upon her legal heirs as if her husband were dead.

10. A daughter-in-law has no right of succession to the estate of her intestate

father-in-law.

11. Where the intestate has left a widow, and there are no lineal descendants, the
widow’s share is one half of the estate of the intestate, as is provided under Section
33 (b).

12. Where an intestate has left no child, but only a grandchild or grandchildren and
no other remote descendant, the property shall belong to the grandchild if only one
grandchild is left by the intestate and if there are grandchildren, the property shall
belong to the surviving grandchildren in equal shares.

13. As there is no statutory recognition for adoption by Christians in India, an

adopted child cannot claim the right to succession unless a custom of adoption can
be proved.

In case of a Christian daughter, she has no pre-existing right in the family property
and her rights arise when her parents die intestate.

16. As per Section 48, when the intestate has left neither lineal descendant, nor
parent, nor sibling, his property shall be divided equally among those of his
relatives who are in the nearest degree of kin to him. If there are no heirs,
whatsoever to the estate, the Doctrine of Escheat can be invoked by the
Government, where upon the estate of the deceased will revert to State.

Important Case Laws:

1. Mrs. Mary Roy etc. Vs. State of Kerala and others - 1986 SCR (1) 371.

2. Thankamma and another Vs. N. Kunjamma and others –AIR 1986 Kerala

134.

3. Anthappa (Deceased) by his LRs Vs. Distinappa alias Subbanna - AIR

2006 Kant 60.

4. Thomayar Vs. Mary - 2004 (1) KLT 863.

5. Mary and others Vs. Eliyamma and others – AIR 1974 Kerala 107. 6.
E.V.George Vs. Annie Thomas and another – AIR 1991 Kerala 402. 7. Mathew
Varghese Vs. Rosamma Varghese – AIR 2003 Kerala 312.

MODULE -3

1. PROBATE AND LETTER OF ADMINISTRATION

Probate
According to section 2(f)1 of the Indian Succession Act, 1925 Probate refers to a
copy of the will that is certified by the seal of a court of competent jurisdiction.
Through Probate, rights pertaining administration of an estate is granted to the
applicant (who is an executor under the will). It is a judicial process through which
the validity and authenticity of a will is determined in a court of law. In this
process, the executor of the will, beneficiaries, and value of the estate are
determined. Probate helps the executor to receive a certification from the court that
he is duly authorized to administer the estate of the testator under the will. Even a
beneficiary can be appointed as an executor under the will

To whom Probate cannot be granted

According to section 2232 of the Indian Succession Act, 1925, Probate cannot be
granted to any person who is a minor or is of unsound mind. Neither it can be
granted to an association of individuals unless it is a company which satisfies the
conditions prescribed by rules to be made by notification in the Official Gazette by
the State Government in this behalf.

Letter of Administration

The critical difference between Probate and Letter of Administration is that

Probate is granted to an executor nominated under the will. Whereas, if a will does
not nominate an executor, the beneficiaries of the deceased will have to file an
application for Letter of Administration. This Letter of Administration would grant
the same administrative rights to the beneficiaries that an executor would have
enjoyed. However, If a person dies intestate, then an applicant seeking
administrative rights pertaining to the deceased estate files for Letter of
Administration.
Hence, when a person dies intestate/ or doesn't nominate an executor under the
will, it is then, the Letter of Administration acts as a facilitating document. Letter
of Administration is granted to the beneficiaries after they apply to a Court of law
having competent jurisdiction. Letter of Administration entitles the administrator
to all rights belonging to the intestate as effectually as if the administration had
been granted at the moment after his death3.

According to section 2344 of the Act, if the executor, residuary legatee or

representative of the residuary legatee doesn't exist, declines, is incapable of acting
or cannot be found, then the person who would have been entitled to administer the
estate in case of the deceased dying intestate would be entitled to file an
application for the Letter of Administration. The same provision under the act
empowers any other legatee having a beneficial interest or a creditor to file an
application for the Letter of Administration as the case may be.

To whom Letter of Administration cannot be granted

Letters of administration cannot be granted to any person who is a minor or is of

unsound mind, nor to any association of individuals unless it is a company which
satisfies the conditions prescribed by rules to be made by notification in the
Official Gazette by the State Government in this behalf5.

Is it mandatory to obtain Probate /Letter of Administration?

Section 213(1) makes it mandatory for every legatee or executer to obtain a Probate of
the will or Letter of Administration with the will before they try to execute a will.
Otherwise, an executor or legatee cannot establish any right in a court of law pertaining
to the concerned will and any estate mentioned therein.

In simple words, an executor or the legatee can only perform their testamentary
operation and their respective roles disposition of the deceased estate, when they duly
obtain a Probate/Letter of Administration from a court of competent jurisdiction.
If the deceased had made a Will

If the deceased had made a will, the authority given by the court is called a Grant
of Probate and the person dealing with Estate is called an “Executor”.

If the deceased person did not make a Will

If the deceased did not make a will, the authority given by the court is called
Letters of Administration, and the person dealing with the Estate is called the
“Administrator”.

If there was a valid Will – apply for Grant of Probate

A Grant of Probate will only be issued to the Executor named in the Will.

The Executor is an essential person in the probate process – they collect the
assets and distribute them to the beneficiaries. The beneficiaries cannot replace
them as the deceased had specifically appointed the Executor in their Will.
Hence, if you are thinking of making a Will, you should carefully consider your
choice of Executor. The Executor must be someone you trust and capable of
managing the probate process that can take several months to complete.

The Executor normally will do the following: deal with the deceased’s affairs, sell
the deceased’s assets, pay off debts and finally, distribute the assets to the
beneficiaries named in the Will.

The Grant of Probate is legal confirmation from the Court that the Will is valid.
The financial institutions that require a Grant of Probate want to be sure that the
Will is valid and the named Executors are the correct people responsible for
dealing with the Estate before any funds are released to them.

If there was no Will – apply for Letters of Administration

Letters of Administration are similar to a Grant of Probate but are issued instead
to the next of kin of an individual who dies without a valid Will.

If you have not made a Will, this means you have not appointed a specific person
as your Executor to administer your Estate. Accordingly, the law prescribes a list
of persons who can apply for Letters of Administration. The persons who can
apply for Letters of Administration (in order of priority) are as follows:

the spouse;

the children of the deceased;

the parents;

brothers and sisters;

nephews and nieces;

grandparents; and

uncles and aunts.

It is not uncommon that the person(s) who have priority to apply for Letters of
Administration may not want to do so, and all the beneficiaries agree that
someone more suitable should become the Administrator instead. In such an
instance, the beneficiaries can “renounce” their right to be the administrator in
favour of someone.

If the person did not leave behind a valid will, section 7 of the Intestate
Succession Act kicks in. Section 7 spells out the division and distribution of the
assets. So, if the deceased has no parents or children, the spouse will be entitled
to the whole of the inheritance. If the deceased had children and a spouse, then
the estate will be divided such that the spouse gets 50% and the children get the
remaining 50% equally.

2. RULE OF BEQUEATH-ABLE ONE THIRD

Testamentary Power and its Limits (Bequeathable one-Third)

A Muslim does not possess an unlimited power of making disposition by Will.

There are two-fold restrictions on the power of a Muslim to dispose of his

property by Will, which are in respect of the person in whose favour the bequest
is made, and as to the extent to which he can dispose of his property.
This is obvious, because the object behind this restriction is to protect the
interests of the testator’s heirs.

# No Muslim can make a bequest of more than one-third of his net assets after
payment of funeral charges and debts. If the bequeathed property exceeds one-
third, the consent of other heirs is essential (Sunni and Shia laws).

A bequest of entire property to one heir to the exclusion of other heirs is void -
Husaini Begum V. Mohd. Mehdi

Where the heirs refuse to give their consent, the bequest would be valid only to
the extent of one-third of the property and the rest of the two-thirds would go
by intestate succession.

# In respect of bequest of one-third to an heir, the consent of other heirs is

required in Sunni law, but not in Shia law. In case of a non-heir (stranger) the
consent of heirs is not required in both.

# The above rule of bequeathable one-third will not apply to a case where the
testator has no heir. The right of Government to take the estate of an heirless
person will not, in any way, restrict the right of a person to make a disposition of
his property as he likes. Thus Government is no heir to an heirless person.

# A bequest made for pious purposes is valid to the extent or one-third of the
property, both under Sunni as well as Shia law.

# The ‘1/3rd limit’ rule will not apply if a Muslim marries under the Special
Marriage Act, 1954, because then he has all the powers of a testator under the
Indian Succession Act, 1925.

Consent of Heirs

Consent must be of heirs and not of presumptive heirs.

Whether a person is an heir or not will be determined at the time of the

testator’s death because a person who is an heir at the time of making the Will
not remain an heir at the time of testator’s death and vice versa.
Consent by heirs under Sunni law, shall be given only after death of the testator,
while in Shia it may be before or after the death of the testator.

Consent must be definitive, whether express or implied by positive conduct, and

mere silence on the part of an heir will not amount to implied consent.

The attestation of the Will by the heirs and acquiescence in the legatee taking
possession of the property has been held to be sufficient consent.

In cases where only some of the heirs give their consent the shares of those
consenting will be bound, and the legacy in excess is payable out of the
consenting heir’s share. The consent of heirs who are insolvent has been held
effective in validating a bequest.

Consent once given cannot be later rescinded. Similarly, consent cannot be given
after an heir has previously repudiated it.

Bequest to Heirs and Non-heirs

Where the testator makes a bequest to heir as well as non-heir by the same
legacy, in absence of the consent of heirs, the legacy will not be invalid in its
entirety but will take effect with respect to non heirs. The rule is that as far as
possible, the Will, will be given the maximum effect that it is capable of.

For example, if the testator bequeaths his total property to an heir and a non-
heir, without the heirs giving the consent, the non-heir will take one-third of the
property and the rest of the two-thirds will go to the heirs of the testator by
inheritance -Muhammad V. Aulia Bibi.

3. LAWS GOVERNING WILLS BY INDIAN CHRISTIANS

TESTAMENTARY SUCCESSION AMONG INDIAN CHRISTIANS

A will is the expression by a person of wishes which he intends to take effect only
at his death. In order to make a valid will, a testator must have a testamentary
intention to which he gives deliberate expression to take effect only at his death.

Testamentary Succession is dealt with under Part VI of Indian Succession Act,

1925. Part VI of the Act has Sections 57 to 191, that comprehensively deal with all
issues connected with wills and codicils and the making and enforcing of the same,
capacity and formalities to make a will. According to Section 59[7], every person
of sound mind, not being a minor may dispose of his property by will. Married
women, deaf/dumb/blind persons who are not there by incapacitated to make a will
are all entitled to disposing their property by will. Soundness of mind and freedom
from intoxication or any illness that render a person incapable of knowing what he
is doing are laid down as pre-requisites to the process.

Testamentary Succession among Indian Christians

A will is the expression by a person of wishes which he intends to take effect only
at his death. In order to make a valid will, a testator must have a testamentary
intention i.e. he must intend the wishes to which he gives deliberate expression to
take effect only at his death.

Testamentary Succession is dealt with under Part VI of the Indian Succession Act,
1925. According to S. 59, every person of sound mind, not being a minor, may
dispose of his property by will. The explanations to this Section further expand the
ambit of testamentary disposition of estate by categorically stating that married
women as also deaf/dumb/blind persons who are not thereby incapacitated to make
a will are all entitled to disposing their property by will. Soundness of mind and
freedom from intoxication or any illness that render a person incapable of knowing
what he is doing are also laid down as prerequisites to the process.

Part VI of the Act encompasses 134 Sections from S. 57 to S. 191, that

comprehensively deal with all issues connected with wills and codicils, and the
making and enforcing of the same, including capacity to make a will, formalities
needed for wills, bequests which can be validly made etc

4. REQUISITES OF A VALID WILL UNDER MUSLIM LAW

Under Mohammedan Law, every will made by the testator must satisfy the following conditions which are
stated as under:

The person by whom the will is made also known as the testator must be competent to make it.
The legatee, or person in whose favour the will is made, must be competent to accept the bequest.
The bequest subject must be lawful.
The bequest cannot exceed the testator’s powers, which is one-third of their estate.
The above-mentioned requisites are explained below:

Competency of person making will i.e. testator– The first condition for making a valid will is that person
making it should be competent to make it that is he must have attained the age of majority and be of sound
mind so that he is able to understand the consequences of his act. A will made by a minor or someone who is
mentally ill is not legitimate. Under Muslim law, the age of majority is 15, but in India, wills are governed by
the Indian Majority Act rather than personal law, hence the age of majority for making a valid will is 18. In the
case of an unsound mind person, Tyabji says that “a will made by a testator whose mind is unsound does not
become valid by his subsequently becoming of sound mind. A will made by a person while of sound mind
becomes invalid if the testator subsequently becomes permanently of unsound mind.”
Competency of the person in whose favour will is made i.e. legatee – The second condition for a valid will is
that the legatee must be capable of receiving property. A legatee under a will can be anyone who is capable of
possessing property. As a result, taking a bequest is not limited by sex, age, creed, or religion. After the
testator’s death, the legatee’s direct or implicit consent is required to complete the title to the subject of the
bequest.
The bequest subject must be lawful – Next condition which is to be fulfilled for making a valid will is that
property which testator wants to bequeath after his death must be capable of being transferred and property
must be owned by him. If he is not the owner of the property then a valid transfer cannot take place. The
bequeathed property must exist at the time of the testator’s death, but not at the time of his making will.
Bequest not to exceed testamentary power – The last condition to be fulfilled in order to make a valid gift is
that it should not exceed the power conferred under Muslim law to make a will. The restrictions on making a
will are with respect to person and property.
HOW CAN “WILL” BE REVOKED?

A will can also be revoked any time before the death of the testator. It can be done either expressly or
impliedly.

(a) Express revocation – Express revocation means revocation of will either orally or by writing

(b) Implied revocation – Implied revocation means revocation by any act of the testator i.e. when the testator
does any act which shows his intention to cancel the bequest. His intention may be implied when he dispose
property before his death to any other person or when he destroys the property.

MOUDLE -4

1. HIBA

Under Muslim law, Muslims can divide their property in many ways. It could be through Gift which is known as
Hiba in Muslim law and through a will which is known as Wasiyat in Muslim law

Muslim is allowed to give away his whole property in his lifetime but he can only give one-third of his property
through a will. Also, the religion of the person to whom the gift is made is irrelevant. The transfer of property
through the way of gift is immediate and without consideration. It is an unconditional transfer of property.
Although the gift being a property has to be governed by the Transfer of property act, 1882. But Chapter 7 of
Transfer of Property Act 1882 does not cover the gift under Muslim law. So, the Muslim Personal law governs
the Muslim gift or “Hiba

Essentials of Hiba

There are mainly three conditions which need to be fulfilled for the successful transfer of property or making of
a gift by a Muslim person. These conditions are as follow:

Declaration of gift by the donor.

Acceptance of gift by the donee.
Transfer of possession by the donor and it’s acceptance by the donee.
Before proceeding further let us first understand the meaning of terms donor and donee.

The person who signifies his willingness to the other person for transferring his property is known as a Donor.
On the other hand, the person who expresses his consent for the acceptance of the gift made by the donor is
known as the Donee.

The requisites of the donor are as follow:

Firstly, the person who is giving the property or making the gift i.e Donor, he/she must be a Muslim. Any other
person in place of Muslim cannot make Hiba.
Secondly, the person should be of the competent age i.e he/she must be major.
Thirdly, the consent of the donor must be free. If the consent of the person is obtained by force, coercion,
undue influence is no consent and such a gift is no gift.
Fourthly, the person must be of sound mind. Any gift made by a person of unsound mind is not a valid gift.
And lastly, the donor should be having the ownership of the property which he is going to give away in the
form of a gift.

Kinds of Gifts

Hiba-il-iwaz
Hiba ba Shart ul Iwaz
Hiba-il-iwaz

Under Islamic law, Hiba means gift and iwaz means consideration. Hiba-il-iwaz thus means, the gift for the
consideration already given. Under all the laws, there is no system where there is a consideration for the gift.
But under Muslim law, there is a system of gift with an exchange.

For example- If A makes a gift of his bungalow in favor of his friend B, and in return, B makes a gift of his car
to A, then it is known as Hiba-il-iwaz. The second gift made by B to A is iwaz i.e. return.

Requisites of a valid Hiba-il-iwaz:

Firstly, there must be a complete and valid gift made by the donor to the donee. If the gift made is not
according to the rule of Muslim law then it is no gift.
Secondly, there must be a payment consideration made by the donee. In the case of Khajoorunissa vs
Raushan Begam, the facts were that the father gave one-third of his property to his eldest son in return of
Rs.10,000 but the consideration was never paid. It was held that the quantum of consideration is not
important, the only thing important is that the consideration must be bona fide.
Hiba-ba-Shart-ul-Iwaz

It means a gift made with a stipulation for return. In this case, the consideration is not paid by the donee by
his own choice but it is paid because it is a necessary condition here.

Requisites of a valid Hiba-ba-Shart-ul-Iwaz:

Firstly, the delivery of possession is important; it is revocable until the iwaz is paid.
Secondly, as soon as the iwaz is paid it becomes irrevocable.
Thirdly, a transaction when completed by payment of Iwaz, assumes the character of a sale.
Revocation of gift

Although old traditions show us that the prophet was against the system of revocation of gifts. Today, it can be
seen that it is the well-established principle of Muslim law that all the gifts which are made voluntarily can be
revoked. The revocation of the gift of different kinds depends upon the different schools and Shia’s and
Sunni’s. The Muslim lawgiver categorised the types of revocation under two different types:

Revocation of gifts before the delivery of possession

Revocation of gifts after the delivery of possession.
Under Muslim law, the revocation of gifts before the delivery of possession is allowed. Suppose A has
transferred the property to B by the way of gift-deed. Now, if A revokes his gift and no delivery of possession
has taken place, this revocation is valid.

One the other hand, declaration of revocation of gifts by the donor after the delivery of possession is not
sufficient to revoke a gift. Until and unless the decree of a competent court is passed, the donee can use the
property in any manner he wishes to.

When the delivery of possession is not necessary:

There are some cases where the delivery of possession is not necessary. Like, a gift from one spouse to
another, or say guardian to the ward.
Donor and donee living in the same property:
In a case where the subject matter of the gift is a house in which both the donor and donee are living together,
any delivery of possession is not important. But there must be the bona fide intention of the donor for the
transfer of property.

In the case of Humera Bibi v. Najmunnissa, in this case, was an old lady who used to live with his nephew. She
transferred the property to his nephew who was living with her in the same house. However, when the
property was given on rent, the rent was collected in the name of the donee. The court held the gift valid.

Gift by the spouses to each other:

Where a gift of immovable property is made by one spouse to the other the delivery of possession is not
mandatory.

In the case of Fatma Bibi v. Abdul Rehman, the husband made an oral declaration of transfer of property in
the name of his wife. The stepson who was living with the mother challenged the validity of the gift as no
delivery of possession was made. The court held that the gift was valid.

Gift of property already in possession of donee:

In the cases where the possession of the property is already with the donee, only the declaration by the donor
and acceptance by the donee is enough to make this gift as a valid gift.

For example- If A is having a car and he is using it for his own use and now his father transfers it to his name,
the declaration by the father and the acceptance by the son is enough to make this gift as a valid gift.

2. GIFT OF MUSHA

Gift of Musha

The term Musha has been derived from the Arabic word which refers to Shuyua which actually means
‘confusion’. It means Musha the ‘undivided part’ or share, which could also be a common building or
land. As a gift of a part of a thing which is capable of division is not valid unless that particular part is
divided off and separated from the property of the donor, however, the gift of an indivisible thing is
absolutely valid. In Muslim law, Musha signifies an undivided share in joint property. Musha is thus, a
co-owned which is also the joint property. Moreover, if one of the several owners of that particular
property makes a gift of their own share, there may be a confusion regarding the matter that which
part of the property has to be given to the donee. In other words, there could be a real difficulty in
delivering the possession of the gift if it is of a joint property which is made by a donor without
partition of that gifted share. In order to avoid such confusions and difficulties in the stage of delivery
of possession, the jurists pertaining to the Hanafi law have evolved the principle of Musha where the
matter of a gift is co-owned or joint property, the doctrine of Musha becomes applicable for examining
the validity of that particular gift. The doctrine is strictly confined to the rules by the interpretation of
judiciary and has been cut down in a considerable manner.

Musha which is indivisible:

The Gift of Musha indivisible is valid. There are some of the properties which are by its very nature
indivisible. The physical partition or the division of those properties is not practical. Moreover, if it is
against the nature of such properties, their partition or division is affected at all and hence their
identity is lost entirely, they do not remain the same properties which they were before the partition.
For instance; a bathing ghat, a staircase or the cinema house cannot be divided as Musha properties.
However, if on the bank of a river or a tank, there is a bathing ghat which is in the co-ownership of
two or more persons, then each of the owner has right to deal with his share as he deems fit including
the right to make a gift of his share, however, if a sharer has attempted to separate his share, the
utility of the ghat will get completely finished. Where a staircase is jointly owned by, for instance, two
persons, then each being the owner of half of the stair-case, is entirely entitled to make a gift of his or
her share, but, if the stair-case is divided into two parts, it would either be too narrow to be used by
anyone, or the upper half may come in the share of one and the other lower half is in the other’s
share hence, in both the cases the staircase would become useless for both of them and also for the
donee as well. It has also been provided that to every Hiba the doctrine of Musha applies, except
insofar as it must be taken that the creators of the doctrine could not have contemplated that it
should be applied to the subject-matter of any particular gift.

Musha which is divisible:

In the Hanafi law, the gift of Musha of the divisible property is termed to be irregular that is fasid if
made without partition, however, a co-owned piece of land, house or a garden, is Musha which is
 divisible. The land can be divided and the specific share can be separated by a visible mark of
identification. Similarly, a house which is jointly owned may be divided by a partition wall without
changing its entire identity. However, under the Hanafi doctrine of Musha, the gift without partition
and the actual delivery of possession is not void ab initio; it is merely irregular which means fasid. The
result is that where such a gift has been made, it may be regularized by the successive partition and
by giving to the donee the actual possession of the specified share of the property. It is clearly evident
that the doctrine of Musha is limited, both in its application as well as in its effects.

3. POWERS OF WAKAF BOARD

Powers and functions of the Board

Section 32 of the act, guides the power and functions of the board. General superintendence of all waqf in a
State shall vest in the Board established by the concerned State and it is the duty of the board:

To ensure proper administration, maintenance, and control of the waqf.

To ensure income and income of other properties of waqf are applied to the objects for the key purpose, the
waqf was created.
To give directions in the administration of waqf and to settle schemes for management of waqf.
To appoint and remove mutawallis and also to scrutinize and approve the budget submitted by mutawallis.
To take necessary measures for recovery of waqf property.
Authorized to institute and defend suits in relation to waqf property.
To administer the waqf fund.
Power to inspect and investigate waqf properties, accounts, records, and documents.
And to carry out all the necessary activities in relation to maintenance, administration, and control of waqf
properties

4. HIBA BIL IWAZ

GIFT FOR CONSIDERATION (HIBA-BIL-IWAZ).— Hiba means gift and iwaz means consideration. Hiba-bil-iwaz
means gift for consideration already received. As it has been already mentioned in the beginning that gift is a
"a transfer of property without consideration". This hiba-bil-iwaz departs from the original definition. Hiba-bil-
iwaz is a transaction, made up for two mutual or reciprocal gifts between two persons. One gift was from the
donor to the donee and the other from donee to the donor. The gift and the return gift are separate and
independent transactions which together make up hiba-bil-iwaz.
Hiba-bil-iwaz in India.- Hiba-bil-iwaz was introduced in India as a device for effecting a gift of mushaa in a
property capable of division. A hiba bil-iwaz in India is a gift for consideration (hiba is a transfer of property
without sale. Registration is necessary in case of hiba-bil-iwaz as in case of a sale.91 So the delivery of
possession is not essential for a complete transfer and prohibition against mushaa does not exist.
•Requisites of a valid hiba-bil-iwaz.- (1) Actual payment of consideration on the part of the donee is necessary.
In Khajuooroonissa v. Raushan Jehar92 Their Lordships of the Privy Council said "undoubtedly the adequacy of
consideration is not the question. A consideration may be perfectly valid which is wholly inadequate in amount
when compared with the thing given. Some of the case have gone so far as to say that even a gift of a ring
may be a sufficient consideration, but whatever is amount, it must be actually and bona fide paid.,
(2) A bona fide intention on the part of the donor to divest himself in possession of the property and to confer
it upon the donee

HIBA-BA-SHARTUL-IWAZ.-„Shart‟ means stipulation, Hiba-ba-shartul iwaz means a gift made with stipulation
(Shart), for a return. Unlike Hiba-bil iwaz, in a Hiba-ba-shartul-iwaz, the payment of consideration postponed.
As. the consideration is not immediate, the delivery of possession is essential. The transaction becomes final
immediately on the delivery of possession. When the consideration is paid, it assumes the character of sale and
is subject to pre emption (shufa) Further as in case of a sale, either party can return the subject of sale for a
defect.
Thus it contains the following features:
i. As in the case of hiba, so in this case, delivery of possession is necessary.
ii. It is revocable until the iwaz (Return) is paid.
iii. It becomes irrevocable on the payment of iwaz.
iv. The transaction when completed by payment of iwaz, partakes of the
character of sale
 5. POWERS OF MUTAWALLI

Provisions for Mutawallis

Mutawalli is the manager of the waqf or waqf property. He is not the owner or trustee of the property; his duty
is to supervise that the usufructs of the property are being properly utilized as desired by the waqif. According
to Section 3(i) mutawalli, is defined as the person appointed by a competent authority for managing and
administering waqf. The position of mutawalli had been explained in Syed Ahmad v. Hafiz Zahid, it stated that
the position of mutawalli is not merely the manager or servant of waqf, and to carry out the directions of waqif
as mentioned in the deed, but rather a significant one. He has the right to exercise his discretion and take
decisions diligently while managing a waqf.

i. Duties of mutawalli

Section 50 states the required duty of a mutawalli:

To carry out the directions of the board in accordance with the said act.
To furnish such returns and supply such information which is needed by the board.
To allow inspection of waqf properties, accounts, documents, and records.
To discharge all the public dues, and to carry out all the necessary activities which are lawfully required under
this act.
ii. Penalties faced by mutawalli

A mutawalli will be facing penalties if he fails to perform the following activities as mentioned in Section 61(1):

Apply for registration of waqf,

Furnish statements of accounts required under this act,
Allow inspection of waqf properties and follow the directions of the board,
Discharge any public dues,
And any other activity which is lawfully required under this act.
iii. Removal of mutawalli

A mutawalli will be removed under the following circumstances as per the provisions laid down in Section 64:

If a person is convicted of an offense more than once under Section 61 of The Waqf Act,1995. Or if a person is
convicted due to criminal breach of trust or moral turpitude.
If a person is of unsound mind or an undischarged insolvent.
If a person is proved to be addicted to drinking or any other narcotic drug.
If a person is employed to be a paid legal practitioner on behalf or against waqf.
If the person has failed to maintain accounts for two consecutive years without providing any reasonable
excuse.
If the individual willfully disobeys the lawful orders made by the Central Government, State Government, or
any Board.
If the person persistently neglects his duties or fraudulently deals with the property of waqf.

6. MARZ UL MAUT

GIFT DURING DEATH ILLNESS (MARZ UAL MAUT- DONATION MORTIS CAUSA)
If the donor is suffering from death-illness or marz-ul-maut, such a gift is called donatio mortis causa. Strictly,
it is neither exactly a gift, nor exactly a legacy (will), but a mixture of both.
In order to constitute the death-illness, it is essential that
1. The illness must cause the death of the ill person;
2. The illness must create apprehension of death in the mind of the deceased40,
and
3. There must be some external symptoms of a serious illness.
A gift made during marz-ul-maut cannot take effect beyond one-third of the estate of the donor, after paying
funeral expenses and debts, unless the heirs give their consent after the donor's death. Nor such a gift can
take effect if made in favour of an heir, unless the other heirs give their consent, after the donor's death. A gift
in death-illness takes place only when the donor dies. Such a gift is subject to all the conditions necessary for
the validity of a simple gift, including delivery of possession by the donor to the donee
 7. ESSENTIALS OF VALID WAKAF

Essentials of A Valid Wakf

The essentials of a valid Wakf according to Hanafi Law, (Sunni Law) are three fold:
A permanent dedication of any property;
the dedicator (wakif) should be a person professing the Mussahnan faith and of sound mind and not a minor
or lunatic; and
the dedication should be for a purpose recognized by the Muslim law as religious, pious or charitable.

Permanent dedication of any property:

The first essential of a valid wakf is, that it should be a permanent dedication of property. This implies three
things:
there must be a dedication,
the dedication must be permanent, and
the dedication must be of any property
Explanation:
(i) There must be a dedication: It means that there must be a substantial dedication of the usufruct
of the property to religious, pious or charitable purposes as understood by Muslim Law. The
dedication implies a declaration of the dedication. No particular form of words is necessary for
making a declaration of dedication

Essentials of a Valid Wakf

To constitute a valid wakf, the following conditions are necessary:

1. The dedication must be Permanent

2. The subject of Wakf be any property (movable and immovable)

3. The property dedicated must belong to the Wakf (dedicator).

4. The object of Wakf must be one that is recognized by the Mohammedan law as religious, pious or
charitable.

Thus, it must be permanent and not for a limited period, Wakf for 10 years is not valid as it is a
limited period. The subject of Wakf may be movable and immovable properties. It is to be noted that
the object of Wakf must be valid.

MODULE – 5

1. KINDS OF GUARDIANS

Section 4 (b) of the Hindu Minority and Guardianship Act defines "Guardian" (major) means a person having
the care of the person of a minor or of his property or of both his person and property and includes –
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(ii) a guardian appointed or declared by a court, and
iv) a person empowered to act as such by or under any enactment relating to any court of wards.

3) Kinds of Guardians -
 (i)

According to Section of the Hindu Minority and Guardianship Act, 1956 there are
four Kinds of Guardians are as follows -
(1) a natural guardian,
(2) a guardian appointed by the will of the minor’s father or mother,
(3) a guardian appointed or declared by a court, and
(4) a person empowered to act as such by or under any enactment relating to any
court of wards.

(i) Natural Guardian -

A natural guardian is one who becomes so by reason of natural relationship with the minor.In
other words, a natural guardian is a person having the care of the person of a minor or of his property
or both, by virtue of his natural relationship with the minor. The natural guardian of a minor boy or
minor unmarried girl is the father. On the death of the father, the mother becomes the natural guardian.
Section 4(c) of the Hindu minority and guardianship Act 1956 defines "Natural guardian', Section 6
of the Hindu Adoption and Maintenance Act deals with the Natural guardian and Section 8 Lays down the
powers of the natural guardian.

ii) Testamentary Guardian or Guardian Appointed by will

Testamentary Guardian is a person appointed by who will to be the 'guardian of a child' under
18. (See.... who is Minor ) Under the old law only the Father by which will could appoint a
testamentary guardian. Under the Hindu minority and guardianship Act 1956, even the mother can do
so. The powers of the testamentary guardian are not higher than those of a natural guardian. They are
subject to the limitations imposed by the will. This was so under the old Law also. But under the new
law, the testamentary guardian's power's are statutorily curtailed just like the power of natural
guardians. That is, the prior permission of the court is required for alienations as in the case of a natural
guardian.

(iii) Guardian Appointed or declared by Court

Where the court is satisfied that it is for the Welfare of minor that an order should be made
appointing a Guardian of his person or property or both, the court may make an order under the
Guardians and Wards Act, 1890 appointing a guardian. In appointing or declaring a person as the
Guardian of a minor Welfare of the minor shall be the Paramount consideration.

(iv) A person empowered to act as such by or under any enactment relating to any Court of Wards.

Under order 32 of the Civil Procedure Code, a guardian ad litem may be appointed or removed or
where the management of an estate is vested, for the time being in a court of wards, Guardian of the
minor whose estate is so wasted may be appointed under the provisions of the Court of Wards Act.

v) De Facto Guardian

A de facto Guardian of a minor is neither a legal Guardian nor a testamentary Guardian nor a
Guardian appointed by the court, but he is a person who himself, takes over the management of the
affairs of the minor as if he was a natural guardian. The old law recognized a de facto Guardian. In
regard to alienations of property, his powers wear those of natural guardian. Under the new law of the
concept of de facto Guardian has been abolished.
Section 11 of the hi Hindu Minority and Guardianship Act, 1956 deals with De Facto
Guardian. Section 11 of the said act prohibits a de facto Guardian to deal with minors property.
According to Section 11 of the Act, no person shall be entitled to dispose of, or deal with, the property of
Hindu minor merely on the ground of his or her being the de facto guardian of the minor.

vi) Ad Hoc Guardian

 One who acts as a Guardian of the minor for the temporary period or for a single transaction, he is
called 'Guardian ad hoc'.

vii) A Guardian ad litem -

A person who is appointed to defend an action or other proceedings on behalf of minor or person
under a disability is called 'a Guardian ad litem' a Guardian ad litem is not De facto or De jure guardian.

2. ACKNOWLEDGMENT OF PATERNITY

Acknowledgement means to accept or admit the existence of a thing or a fact and paternity mean the
state of being someone father. So put together acknowledgement of paternity means accepting the
fact of being someone's father. Acknowledge of paternity is required so as to prove the legitimacy of a
child. The acknowledgement is just in nature of a declaration by father that the child is his offspring.
This doctrine of acknowledgement draws its genesis from the Quranic provision:- "call them after their
fathers"[1].

Under the Muslim law a child to be legitimate:-

must be born during lawful wedlock and

must be conceived during the lawful wedlock
A child born after six months of marriage is legitimate, unless declaimed by his father and a child born
within six months marriage is illegitimate unless the father acknowledges it. So acknowledgement is a
tool for keeping the family intact and not allowing the child to live without the love, care and
protection of the father. So for an acknowledge being made doubtfulness of paternity of the child is a
prima facie requisite. When the paternity of the child cannot be established by marriage between the
parents at the time of conception or birth, such void of marriage and legitimate descent is filled
through acknowledgement.

So a child to be legitimate must be begotten out of lawful wedlock. The law with regard to
the Mohammedans requires or necessitates the existence of a valid marriage between the male
person (begetter) and the carrier (mother) at the time of conception. This above-contemplated
requisite has been highlighted in case of Habibur Rahman Chowdhari v Altaf Ali Chowdhari[2], to state
expressly:- "a son to be legitimate must be the offspring of a man and his wife or a man and his
slave, any other offspring is the offspring of the 'gina', that is, illicit connection, and cannot be
legitimate."

Therefore under the Muslim law legitimacy of a child can be established through
direct or indirect marriage between the father and the mother of the child. In cases wherein lawful
marriage can be proved in tot, the presumption of a lawful marriage saves the day. The cases vide
which a lawful marriage may be presumed, are envisaged as under:-

Prolonged cohabitation of a man and a woman (excluding a prostitute);

Acknowledgement by a man of a woman as his wife.
Acknowledgement of being the father of the child.
So acknowledgement, though an effective remedy for those children, whose legitimacy is doubtful, but
for the use of this remedy proof of valid wedlock is a requisite. A child begotten between prostitute or
concubine and man is prima facie an illegitimate and so cannot be given the tag of legitimacy even by
the use of this remedy i.e. acknowledgement of paternity. This narrowness in the application in the
doctrine has a twinning effect, firstly giving legitimacy to the children in cases where their legitimacy
is in issue in a persisting marriage and secondly, on the other hand, prohibits men and women to
have an adulterous relationship outside the wedlock as acknowledging does not remedy those children
who are ipso facto illegitimate. The case of Sadiq Husain v. Hashim Ali[3] gives a thrust to the above-
mentioned statements and in addendum contemplates that, an acknowledgement cannot legitimate a
child who is proved to be illegitimate.

How legitimacy is presumed under Muslim Law?

The Islamic law sets out criteria, some general whereas some differences in relation to some of its
schools, in relation to the presumption of legitimacy. These are mentioned as under:-

Unless the father acknowledges, a child born with six months of the marriage is illegitimate.
Unless the purported father declaims the child [through lian (i.e.dissolution of marriage, by the
allegation of adultery to wife)], a child born after six months is presumed to be legitimate.
Cases wherein a child born after the dissolution of marriage is legitimate if:-

Born within 10 lunar[4] months, under the Shia law.

Born within 2 lunar years, under the Hanafi law.
Born within 4 lunar years under Shafei and Maliki law.
These rules though had primacy before, but have been done away with as the same is rarely or not all
applicable in the Indian context. It also needs to be emphasised that the principle of
acknowledgement of paternity is not only a mode of evidence but is also a part of the substantive
Shariat law.

Conditions requisite for a valid acknowledgement are envisaged below:-

Intention to confer legitimacy

The acknowledge must not be of sonship alone but must be of legitimate sonship. Such
acknowledgement must be well-intended and not have been casually made with no intention to confer
legitimacy.

Acknowledger's Age
The parties thereto must be of such age, so as to be considered as father and son, i.e. the
acknowledger must be twelve and a half years older than the child acknowledged.

The legitimacy of the child must be in question (the child must not be known to be the child of
someone else)
The acknowledged by the acknowledger should not be known to be the child of another.

Confirmation must be made by the person so acknowledged.

The acknowledger i.e. the must verify the acknowledgement or at least not repudiate it and believe
himself/ herself to be the child of the acknowledger.

Legal Marriage must be possible between the parents of the acknowledged child
There must not be any kind of prohibited relationship between the parents of the child acknowledged,
i.e. either by consanguinity, affinity etc.. The marriage should be possible when the child was
begotten.

The acknowledger must be competent

The acknowledger must bear capacity for entering into a valid contract, that is he should be adult and
sane.

Should not be Zina's ( incest) Offspring

The child acknowledged should be an outcome of lawful wedlock, should not be born without marriage
or born out of a void marriage, born out of adultery etc.

Now coming to the statutory law in the Indian regime with regard to the presumption of legitimacy,
which has been inscribed under section 112 of the Indian Evidence Act,1872 (IEA for brevity). This
section raises a legal presumption for the legitimacy of a child, under two circumstances:-

When the child is born during the continuance of valid marriage;

With 280 days of the dissolution of marriage, provided the mother remains unmarried.
The fact that the child is born between these two periods as contemplated above, is considered to be
conclusive proof of legitimacy in letters of section 112 of the Indian Evidence Act, 1872. But the
conclusiveness of such legitimacy can be rebutted if the parties show no access.

Both under the Muslim law and Indian Evidence Act there is a window whereby the
presumption of legitimacy of a child can be denied. In the former case, it is through lian(disclaim) and
in the latter by proof of non-access. Whether the presumption under IEA supersedes the presumption
under Muslim law. To this dilemma, the opinions of High courts have differed, but in the majority of
opinion it has been contended that presumption under IEA eclipses the presumption under the Muslim
Law and applies to Muslim as well.[5]

But a flaw that is very well-identified in the requisites for the application of
section 112 for IEA, that is there must be a valid marriage and no such presumption of legitimacy of
the child can be raised under section 112 of IEA if the marriage is not valid. This particular proposition
had been highlighted in the case of Abdul Rahemankutty v Aisha Beevi[6]. So if a child is begotten of
a marriage which is invalid the remedy of presumption under 112 of IEA cannot be invoked. But in
such a contingency, panacea can be obtained vide the presumption of legitimacy under Muslim law.
So what can be inferred is that, if a given situation has all requisites which mandate section 112 IEA
to invoked then the case shall continue as usual but if in cases, where marriage is not valid, the
presumption of legitimacy under Muslim law shall prevail. But still, it cannot be stated in general as to
presumption under which law (IEA S-112 or Muslim law) will prevail over the other.