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KARTA, ALIENATION &

PARTITION
Week 3 &
4
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Topics to be covered
• Karta
• Who is Karta
• His position, powers, privileges and obligations
• Female as Karta
• Alienation
• Management and alienation of joint family property.
• Debts: Doctrine of pious obligation; Antecedent Debt
• Partition
• Partition in Mitakshara
• What can be partitioned
• Modes of partition
• Persons entitled to share in partition
• Allotment of shares
• The manner in which it is effected
• Reopening of partition
• Can daughter call for partition of ancestral property?
• Partition under Dayabahaga
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Texts:
• 1. Poonam Pradhan Saxena, Family Law lectures, Family
Law II (3rd Edition) - Pg. No – 143-254
• 2. Basis and Nature of Pious Obligations of Son to pay
Father's Debt vis-à-vis Statutory Modifications in Hindu
Law – Vijendra Kumar
• 3. B. SlVARAMAYYA - Shares to Female Members at a
Partition under Mitakshara Law, 5 JILI 270 (1963)
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Cases:
i. M/s. Nopany Investments (P) Ltd. v. Santokh Singh (HUF), 2007
(13) JT 448 (Karta)
ii. Dev Kishan v. Ram Kishan, AIR 2002 Raj. 370 (Alienation-LN+
Pious Obligation)
iii. Balmukand v..Kamlawati (AIR 1964 SC 1385) (Alienation-BOE)
iv. R. Kuppayee v. Raja Gounder (2004) 1 SCC 295 (Alienation-Gift)
v. Sunil Kumar v. Ram Prakash (1988) 2 SCC 77 (Alienation)
vi. Puttrangamma v. Ranganna, (1968) 2 SCR 119 (Partition)
vii. Namdev Vyankat Ghadge v. Chanadrakant Ganpat Ghadge (2003)
4 SCC 71(Partition)
viii. Kakumanu Pedasubhayya v. Kakumanu Akkamma, AIR 1968 SC
1042(Partition)
ix. Kesharbai v. Tarabai Prabhakarrao Nalawade (2014) 4 SCC
707(Partition)
x. Sujatha Sharma v. Manu Gupta, CS (OS) 2011/2006 (Karta)
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KARTA
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Karta
• Rationale: Joint family is a unique institution under Hindu
law. As a unit, it deals with outsiders and even statutory
authorities, and therefore, it becomes imperative that as unit,
it must be headed by a person from within the family who can
generally be trusted to act in the best interests of the family.
• A Karta is a “Patriarch”/Manager of Hindu joint family who-
• Represents the family
• Binds the family members with bona fide actions and
decisions
• Manages the business and affairs of joint family
property
• Even if two persons look after family property management,
the family is represented by only one Karta
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Who can be a Karta:

• The Father or senior most male member and coparcener is the Karta
of the joint family.
• Ordinarily, senior-most male member, by virtue of seniority
• Position is based on seniority and does not depend upon merely the
consent or agreement of family members
• Temporary absence of the senior member is no reason for a junior
person to become the Karta.
• Even if aged, infirm or ailing, he is entitled to Kartaship
• After Karta’s death, Kartaship passes to senior-most male member,
who may be uncle, if coparcenary consist of uncle and nephews, or
eldest brother if coparcenary consists of brothers. This senior most
male adult member may be brought on record in execution
proceedings.
• The Karta does not have any larger proprietary rights than any other
member although he has a superior right of disposition for causes
recognized as just and proper under Hindu Law.
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Junior Member of coparcenary as Karta

• Junior male member when Karta relinquishes his right

• Senior-most male (Karta) may expressly or by necessary
implication relinquish his right of management
• Another coparcener, not necessarily in order of seniority,
may be appointed with concurrence of family members.
All members must agree.
• If there is no concurrence of the family and the senior
most coparcener is not in a position to manage the affairs
of the family- the next senior most male coparcener is
appointed as the Karta.
• A minor can be a Karta of the joint family, through his
natural guardian, his mother, where father’s whereabouts
are not known at the time.
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When can a younger person act as a Karta:

• Junior male member in the absence of or due to
unavailability of senior-most member
• Where the Karta relinquishes his right expressly or by
necessary implications
• In the absence of the Karta in exceptional and
extraordinary circumstances such as Distress or
calamity on the family
• Whereabouts of the Karta are not known
• In absence of the father
• Karta is in a remote country and his return within a
reasonable or anticipated time is unlikely
• Temporary absence of the Karta is not sufficient
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Female members as Karta:

• Karta must be a coparcener
• Pre-2005:
• Widow of deceased coparcener is not a
coparcener, therefore cannot be Karta
• Daughter could not be a coparcener and hence
she could not be a Karta.
• Post-2005:
• Now since the daughter has been added as a
coparcener, she can be a Karta and represent
the family in all matters.
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Remuneration to Karta
• Money received while managing family affairs belongs to the
family
• Not entitled to receive any remuneration or additional share
for his services, unless contrary agreement exists
• Payment must be genuine and not excessive. It should not be a device
to escape tax.
• Karta has a right to manage, not a duty to carry on a particular family
business
• Where a junior member of the family conducts the business of the
family and is granted a salary for doing so, there is no reason why
Karta can be granted the same.
• All conditions fulfilled—valid agreement; bona fide and
reasonable remuneration
• Deduction allowed under tax law.
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Hypo:
• There is a HUF carrying out joint family business.
• The Family consists of two brothers and their minor sons
• Elder brother is the Karta and is managing the joint family
business.
• Elder brother asks the younger brother that since he is devoting
time and effort and managing the joint family business, he should
be paid a monthly salary.
• Younger brother agrees.
• Karta starts taking a monthly salary out of the income earned
from the joint family business as his separate property
• In the HUF accounts, this was shows as an expenditure
• HUF claimed deduction under Income Tax Act
• Should the deduction be allowed? Can Karta ask for
remuneration for his services in managing the joint family?
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Solution:
• Present case:
• Two brothers + minor sons
• Minors sons can be represented by their respective fathers (Karta
and younger brother)
• All conditions fulfilled—valid agreement; bona fide and reasonable
remuneration
• Deduction allowed
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Position of Karta: Relationship between Karta and other members

• Sui generis
• It comes to him by being born in the family and is maintained by seniority
• Relationship between Karta and other members:
• Not principal-agent, even though he is head of the family
• Not partners, even though Karta acts on behalf of other members, because his
powers are almost unlimited
• Not a trustee, even though he stands in a fiduciary relationship with other
members, as he is not accountable to the family generally
• Karta cannot be held liable for negligence or questioned when he
acts honestly, with bona fide intention, in the best interests of the
family
• Where Karta misappropriates or uses joint family funds for purposes
other than for family benefits, he is liable to refund the amount
• In the absence of proof of fraudulent or improper use, a coparcener
cannot ask the Karta for past accounts even at the time of partition.
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Karta’s Liabilities:
• To maintain all members of the family. He can be sued for
maintenance and for arrears of maintenance.
• Responsible for marriage of all unmarried members
• To provide for funeral expenses of the departed members
• Represents the family in litigations filed against the family (by
members or outsiders)
• Representative of the family vis-à-vis all outsiders
• Pays taxes and other dues on behalf of the family
• Can be sued for his dealings on behalf of the family with outsiders
• Duty to recover debts due to the family
• Duty to spend reasonably but not economically
• Duty not to alienate the coparcenary property without the
consent of all the coparceners, unless he is doing so for legal
necessity or benefit of estate.
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Karta’s Liabilities:
• Duty to render accounts when a partition suit is filed:
• In the absence of proof of misappropriation or fraudulent and
improper conversion by the Karta of a joint family estate, he is
supposed to account only for assets which he has received.
• A coparcener is not entitled to require the manager to account
for past dealings with the family property.
• A coparcener is only entitled to is an account of the family
property as it exists at the time he demands a partition.
• Since the institution of the suit for partition, which amounts to
the severance of joint family status, the Karta is from and after
the date of such suit strictly bound to account for all receipts
and expenses.
• Duty not to start a new business without the necessary
consent of other coparceners, as it is going to impose a risk and
liability on them
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Powers of Karta
• Right to receive and spend family income
• Powers to manage family affairs
• Power of alienation of joint family property
• Right to representation
• Liability to account
• Power to contract debts
• Power to acknowledge debts
• Power to settle family disputes
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Right to income

• Karta receives the joint family income

• Karta is the head of the family and hence the custodian of the property
and the family income.
• All income of joint family property, whosoever may collect them, must
be handed over to the Karta, unless the Karta has specifically allotted
income of a particular property to a member
• No member is entitled to any definite share of the income of the joint family
property or business
• The decision of how to spend this joint family income and on whom to
spend it, is with the Karta. His actions of spending the income for the
purposes of the family cannot be challenged.
• Karta can spend the income for the maintenance of family members and
for the permitted purposes, i.e., legal necessity (education, marriage),
benefit of estate and for performance of religious and indispensable duties.
• If he spends more than the other members approve- their remedy is to
demand for a partition.
• If he misappropriates the family money- then he is supposed to return the
money.
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Powers of management
• Almost absolute powers to manage joint family funds
and family affairs
• May manage (or mismanage) the family affairs, family
property and business the way he likes without being
questioned
• No obligation to save or economize, invest funds
• Power to decide how and on whom to spend the income
• May discriminate between members of the family in
terms of giving money, providing education, housing
space, etc.
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Powers of management (contd.)

• Karta can allot specific portions of the house to different
members
• But cannot deny maintenance or use and occupation of
property to other members
• If a member insists on exclusive possession of part of
property without Karta’s consent, Karta may evict the
member from there
• Karta can throw out from the house any coparcener
whose presence has a become a nuisance as a result of his
disorderly behaviour or bad habits
• Check on his powers: affection and natural concern for
members; complete faith and confidence of members;
partition
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Power of alienation of joint family property

• Limited powers
• Can be exercised with consent of all family members
• Where the coparcener does not give consent or is
incapable of giving consent being a minor, Karta can
alienate property for: legal necessity; benefit of estate;
or performance of religious or charitable purposes
• Alienations bind all family members, including minors
• Unauthorized alienations: Coparceners have a right to
challenge and get the decree set aside
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Right to representation
• Represents the family in all matters—legal, social,
religious and revenue matters
• Can enter into transaction on behalf of the family
• Represents the family in suits and other legal
proceedings
• Karta acts on behalf of the family and his acts are
binding on all of the joint family
• Even where the Karta loses a case on account of his
negligence, it is not open to other members to have the
decree set aside on that ground alone
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Power to settle family disputes

• Karta can refer disputes for arbitration

• Karta can enter into compromise on behalf of the family
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Power to contract debts

• Power to contract debts for ordinary purposes of family
business or for family purposes in case of non-business
families
• “Family purpose”: Similar to legal necessity, benefit of estate or
performance of indispensable and pious duties
• The debt binds the share of all the coparceners
• Even after partition, a coparcener cannot escape liability
of the debt contracted by Karta from his share
• The burden of proof is on the lender-
• where money has been borrowed by the manager on the
representation that it is required for a family purpose or for family
business and the lender seeks to render the whole family liable for
debt- he is not entitled to a decree against the whole family
unless he shows that there was a necessity for the loan, or that
he made reasonable inquiry as to the necessity of the loan.
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Power to acknowledge debts

• Can acknowledge, on behalf of the family, any debt due to
the family
• Power to pay interest on a debt
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M/s. Nopany Investments (P) Ltd. v. Santokh

Singh (HUF), 2007 (13) JT 448
• Karta of a Hindu Joint family was studying in the United Kingdom and was not in a
position to handle the joint family affairs in India, due to his absence from the country
• He executed a power of attorney in favor of his youngest brother, Jasraj Singh and
the whole family accepted the latter's management of the joint family affairs without
any protest.
• Appellant –Tenant (Nopany) had entered into a lease with the Singh HUF for a
period of 4 years.
• In 1992, Jasraj Singh (younger brother) claiming to be the Karta of the Singh HUF
sent a notice for enhancement of rent by 10% and also termination of tenancy of the
appellant.
• In reply to the notice, the tenant denied the right of Jasraj Singh to enhance the rent.
• After that a Notice of eviction was sent by Jasraj Singh to the tenant, asking them to
vacate the suit property and the Tenant refused to vacate the same.
• The youngest brother filed a suit for eviction against the tenant claiming to be the
Karta, and the tenant raised a preliminary objection that as he is not the Karta, the
suit for eviction filed by him doesn’t hold good in law.
• Issue: Can the younger brother act as Karta?
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Ratio:
• The Court here clarified that though the settled principle of classical
Hindu Law remains that Karta would be senior most male member
of the family in the following circumstances a younger brother of the
joint Hindu family can deal with the family property as Karta:
i. If the senior member or the Karta is not available
ii. Where the Karta relinquishes his right expressly or by necessary
implication
iii. In the absence of the manager in exceptional and extraordinary
circumstances such as distress or calamity affecting the whole
family and for supporting the family
iv. In the absence of the father
v. Father’s whereabouts are not known
vi. Who was away in a remote place due to compelling
circumstances and his return within a reasonable time was
unlikely or not anticipated.
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Ruling and Holding:

• The Court dismissed the contention of the tenant and observed that it was
not open for the tenant to raise such a kind of objection with respect to the
maintainability of the suit at the instance of the younger brother of the
Karta who was realizing the rent from the tenant and the tenant is now
stopped from raising any such question, and the suit was maintainable at
the instance of the younger brother claiming himself to be the Karta of the
joint family despite the fact that he was not the senior most male member
of the family.
• The Court held that where the Karta of the joint family is away in a foreign
land for a long time and his return within a short period is unlikely and due
to his absence he cannot look after the affairs of the joint family, a younger
member of the coparcenary with the consent of all the members of the
family can act as Karta of the family. He is also empowered to enter into
transactions on behalf of the joint family, such as execution of the lease or
filing a suit for eviction of the tenant inducted into the joint family premises.
• Therefore Jasraj had the power to act as the Karta of the family and file a
suit for eviction.
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Delhi HC judgment: Sujata Sharma v. Manu Gupta, 2015 SCC OnLine Del 14424, decided on 22-12-2015

• Issue: Whether a female being the first born amongst the

coparceners of the Hindu Undivided Family (HUF)
property, particularly after her marriage, would by virtue of
her birth, be entitled to be a Karta.

• Rule: It was held that as a daughter is a coparcener after

the 2005 Amendment, she can also be the Karta if she is
the eldest most coparcener in the family.
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Facts
• A joint family consisted of DR Gupta and his five sons. The
plaintiffs (Sujata Sharma) and the defendants (Manu
Gupta) are the descendants of DR Gupta.
• Shri D.R. Gupta, constituted a Joint Hindu Family HUF
known as D.R. Gupta and Sons, HUF. The said HUF has
been in existence since 5th January, 1963 and he has
stated that all his immovable and moveable properties will
belong to the HUF
• DR Gupta died in 1971 and subsequently all his sons died.
The issue arose after the death of his fifth son in 2006.
• The plaintiff (Sujata Sharma) being the eldest most female
member claimed to be the Karta of the joint family and her
paternal uncle’s sons opposed this claim.
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Facts:
• Manu Gupta, the eldest of Sujata’s male cousins but 10
years younger than her, declared himself the karta.
• Sujata challenged him, saying that as the eldest of their
generation, she would be the karta.
• The male members of the family had said that she was
not entitled to the position since the 2005 amendment
specified only a share in the property and did not
automatically give any right to the management of the
property. They also argued that customary practice did not
allow women to become karta.
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Analysis and Ruling:

• The court held that since the 2005 amendment had given
“equal” rights to the daughters as coparceners, there was
“no reason why Hindu women should be denied the position
of karta… If a male member of an HUF, by virtue of his being
the first-born, can be a karta, so can a female member”.
• The bench also said that married daughters cannot be
prevented from becoming the karta of the family as they
have coparcenary rights to the HUF property.
• The court also noted that the 174th Report of the Law
Commission of India had “argued that when women are
equal in all respects of modern-day life, there is no reason
why they should be deprived of the right and privilege of
managing HUF as their karta.”
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Ruling
• The Court further observed that As per Section 6 of the
Hindu Succession Act, 1956, the plaintiff’s right in the
HUF property did not dissolve after her father’s death, but
was inherited by her, which cannot be altered by the virtue
of her marriage.
• Moreover there is a positive constitutional protection in
favor of the women under Articles 14, 15 and 16 of the
Constitution as well as in the Directive Principles of State
Policy granting females the same right as men in all
aspects of life is a very important component for women
to live with dignity.
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Critique 1:
• The Court failed to take into account the Prakash v.
Phulavati judgment. As per the case of Prakash v.
Phulavati (2015), for a daughter to be a ‘All that is
required is that daughter should be alive and her father
should also be alive on the date of amendment of HSA
2005”
• The court failed to notice that she was not the “daughter
of the coparcener” as her father died before the 2005
amendment of S 6 of HSA.
• The court did not take into consideration the concept of
notional partition on the death of a coparcener and the
division of the Hindu Joint Family.
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Critique 2:

• The interpretation of law “ignores the context” in which the

Indian joint family system works. “While the law is a
beneficial legislation, practical problems will arise with
regard to giving Kartaship to women, as women of most
business families in the country rarely participate in the
actual management of the business and property,”
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ALIENATION OF JOINT
FAMILY PROPERTY
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What is alienation?
• Transfer of property inter vivos, such as by sale,
mortgage, gift, license or lease (including perpetual lease)
• A basic incident of ownership
• Rationale for Alienation of joint family property :
Property of a joint family should not be transferred to the
detriment of its members. But, an absolute prohibition on
Karta to transfer the property can be disadvantageous to
the family
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Who may alienate coparcenary property?

I. Alienation by the Karta
II. Alienation by the coparceners
III. Alienation by the sole-surviving coparcener
IV. Alienation by the Father
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Alienation of joint family property by the Karta

• The Karta of the joint family has the power to alienate for
value, joint family property so as to bind the interest of
both the adult and the minor coparceners in the
property.
• Where a property is owned by more than one person: a
single person cannot alienate the whole property, unless
other co-owners expressly authorize her/him to do so.
This is known as express authorization.
• Alienation binding on the interests of all members
• Purpose of alienation: immaterial
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Alienation of joint family property by the Karta

• Alienation by the Karta-
• If one or more coparceners withhold consent/ express dissent, or
incapable of giving valid consent due to minority, the property cannot
be alienated. EXCEPT in case of:
• Legal necessity
• Benefit of the estate
• Performance of religious and indispensable duties
• This is knows as judicial authorization
• Karta can even exceed his own share and include the portion of
dissenting coparceners
• Alienation without express or judicial authorization is not void, but
voidable at the option of other coparceners who, if major, did not
consent, or were minors
• An adult coparcener who consented cannot later challenge the
validity of the alienation
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Legal necessity
• Any necessity that can be sustained in law or justified in law
• Any need or purpose that requires money and the family does not
presently have that kind of money or alternative resources
• Not necessarily actual compulsion, but pressure that is serious and
sufficient in law
• For example, pressure to pay off a debt is sufficient, even
though creditors may not have filed a suit or threatened to do
so
• Lack of alternative resources: Pay it from savings or other funds,
or from mortgage instead of sale unless mortgage is at a very high
interest
• Karta, as manager, decides the appropriate course of action. His
action is subject to challenge.
• TEST: What a reasonable, prudent person, entrusted with
welfare of family and family property, will do
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Illustrations:
• Maintenance of coparceners and of the members of their
families
• Marriage expenses of the male coparceners and of the
daughters of coparceners
• Performance of family ceremonies
• Necessary litigation in recovering or preserving the family
or family property
• Costs of defending the head of the joint family or any
other member against a criminal charge
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Legal necessity contd.

• Essentials for an alienation to be valid under legal
necessity:
• 1. Existence of a need or purpose, i.e. a situation with
respect to family members or its property that requires
money
• 2. Lawful purpose, not illegal, immoral or opposed to
public policy
• 3. No monetary or alternative resources from which the
requirement can be met
• 4. The course of action taken by Karta is such as an
ordinary prudent person will take with respect to the
property
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Legal necessity contd.

• Sale with no consideration or inadequate
consideration: not valid, even where legal necessity
present. Not binding on coparceners
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Example Yes/No
Providing food, clothing and shelter to family members Y
Education of family members Y
General maintenance Y
Marriages expenses of unmarried daughters Y
Medical expenses of family members Y
Marriage expenses of unmarried sons Y
Defending family members against criminal charges Y
Defending himself (Karta) against criminal charges Y
Marriage expenses of minors N (public policy)
Defending against charge of murder of a family member N
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Example Yes/No
Performance of family ceremonies like funerals Y
Performance of annual Shraddha Y
Payment of debts due to the family, i.e. antecedent debt with Y
respect to the family property
Payment of rent Y
Payment of government revenue or debts payable of family Y
property
Litigation expenses for recovering or preserving family property Y
Discharge mortgage against family property of higher value Y
Discharge mortgage against family property of lower value but Y
of special significance to the family
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Dev Kishan v. Ram Kishan, AIR 2002 Raj. 370

• The Karta effected a mortgage, a sub mortgage and a

sale of two houses belonging to the joint family, worth
around Rs. 8000 to 9000, for a consideration of Rs. 400 to
900, which according to him, were to be utilized for the
marriage of his three minor children.
• The sale deed was executed on the day the son was
getting married.
• Issue: Whether alienation of joint family property
could be done for marriage of minor daughter as legal
necessity?
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Ruling and Holding:

• The transfers were held void as opposed to public policy,
in view of the Child marriage Restraint act, 1929.
• The Court held that even if the amount of money was
actually spent on the marriage of such children, who were
in the age group of 8-12 years, it cannot be termed as
legal necessity.
• Secondly, the members of the family were earning and
there was no need to sell the family property to raise the
money.
• Thirdly, the transfer was grossly undervalued and if there
was a need of money, the transfers should have been
effected for an adequate consideration.
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Benefit of estate
• By transfer of the joint family property or by its sale
proceeds, the property or any other family estate is
benefitted
• What is benefit of estate also depends from case to case
basis.
• Benefit: an advantage, betterment or to profit
• Estate: joint family landed property
• Includes defensive actions for protection of property from
threatened danger or destruction, and other transfers to
bring advantage or improvement in the family estate
• Prerogative of the Karta—must exercise due care and
diligence
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Benefit of Estate contd.

• In each case, the court must be satisfied from the
material before it, that it was in fact as such as
conferred or was reasonably expected to confer
benefit on the family at the time such act was done

• Two conditions:
• Degree of prudence required from Karta is higher than the level
that is expected of a person who deals with her/his exclusive
property
• How sale proceeds are utilized is important. It must be shown that
the proceeds are used or intended to be used to benefit the family
property or the rights of the family members in the property
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Utilization of sale proceeds

• For example, sale of property to convert it into money
simpliciter or to spend it into speculative transactions
such as stock and shares would not amount to
benefit of estate, even if consideration received is in
excess of the market value
• Where:
• Sale of property is with the intention to use the money for purchase
of more productive land
• Money kept in bank till transaction finalized
• But the money lost in bank
• Sale is for benefit of estate
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Examples of benefit of estate

• Sale of property for construction of dikes and bunds,
to prevent flooding of land
• Sale of part of property to provide for expenses for
defence of property involved in hostile litigation
• Mortgage of property or loan utilized for making
additions and improvements to a family house
• Sale of portion of property to convert leasehold rights in
residence to ownership rights
• Sale of inconveniently situated, encumbered and
unprofitable property or of land not easily cultivable
and purchase in its place of property that is sound
investment or of cultivable land
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Transactions not included:

• The Karta is not entitled to sell joint family
property land solely for the purpose of
reinvesting the price of it in an income larger
than that derived from the probably safer and
certainly more stable property

• Where alienation is done to:

• Simply purchase another land or property
• For speculative developments of family estates
• A permanent lease of land for a fixed rent
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Balmukand v..Kamlawati (AIR 1964 SC 1385)

• A Hindu Joint family owned a small portion of a big plot of land

owned by the alinee, who approached the Karta (Pindidas) for
the purchase of the joint family land, and offered him a higher
consideration than the market value.
• Initially, accepting his offer, the Karta accepted the earnest
money, but he alter failed to execute the sale deed. He entered
into an agreement for the sale of 3/20th share of land in
certain fields.
• The alinee filed a suit for specific performance of the contract.
He was the owner of the 17/20th share and hence wanted to
buy the rest of the 3/20th share
• The Karta contended that he was not empowered to sell the
land as it was neither for legal necessity nor for benefit of the
estate.
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• The family was in affluent circumstances and there was

nothing in evidence to show that the Karta was having any
difficulty in managing the property or that the family was
incurring a loss in retaining that property. Nor was there
any suggestion that he wanted to invest the sale proceeds
in a profitable manner.
• Karta (Pindidas) died during the pendency of appeal
before the HC.
• Suit was resisted by all the defendants (coparceners).
• They said that the transaction was not binding on them as
the sale was not for the benefit of the family not was there
any necessity for sale.
• Issue: Whether the opposition by adult coparceners is
a decisive factor to assess benefit of estate?
 58

Ruling and Holding

• The Supreme Court observed that there was nothing to
suggest that any sale was being contemplated by any
consideration of prudence.
• The Court therefore, held that the contract and the
proposed sale was not for the benefit of estate and no suit
for the specific performance of the contract could be
decreed.
• It was also held that the view of the other adult
members also has to be taken into consideration.
• In this case, all the brothers of Pindidas were adults
when the contract was entered into. Hence the
alienation was held to be invalid and suit for specific
performance failed.
 59

Religious and Indispensable Duties

• Hindu rites and ceremonies: Believed to bring peace,
prosperity and harmony to family, its members and even
departed ancestors
• Conditions:
• Performance of indispensable religious ceremonies
• No alternative resources
• Pious and charitable purposes:
• Quantum of property sold is material
• Unlike legal necessity, benefit of estate and performance of
religious ceremonies, totality of property cannot be alienated. Only
a small portion of the property can be alienated.
 60

Example Yes/No
Performance Of funeral rites for father Y
Performance of funeral rites of other family members Y
Annual Shraddha ceremony (paying homage to departed ancestors, Y
giving feast to Brahmins)
To pay off debts contracted in the past for performance of ceremonies Y
Marriage of coparceners (and unmarried daughters) Y (also legal
necessity)
Performance of marriage -related ceremonies Y (also legal
necessity)
Maintenance or provision of an idol in a public temple Y (only a small
portion)
Gifts for dharamshala Y (only a small
portion)
Gifts of love and affection by Karta to any person (except daughters) N
 61

Alienation of joint family property by the coparceners –

:
• All the coparceners would have to consent to the alienation of the
property even for any of the permitted purposes .
• Any other coparcener cannot alienate the property even to the extent of his
share without others’ consent and even for any of the permitted purposes.
Such alienation is void and not binding on the joint family property.
• There is no requirement of a purpose or a reason for such an alienation
• Such alienation is void and not binding on the joint family property.
• If it is made without the consent of all- in Bombay and Madras, Madhya
Pradesh- bind the shares of the consenting coparceners
• In the abovementioned states, a coparcener may sell, mortgage or otherwise alienate for
value, his undivided interest in coparcenary property without the consent of the other
coparceners.
• In West Bengal and Uttar Pradesh, Bihar, Orissa, Punjab and Delhi-
alienation cannot be done of its own share without the consent of all
the coparceners and it will not bind the share of the alienor or the
consenting members.
 62

Alienation of joint family property by the coparceners

–
• The general rule of the right of the
purchaser-
• No right to joint possession with other
coparceners but has the remedy of
general partition to which all the
parties must be joined as parties.
• Only entitled to the share at the date of
the sale of such undivided share.
 63

Alienation of Undivided Interest by a Coparcener

• Courts have allowed repayment of loan or execution

of money decrees against the undivided interest in
joint family property of a borrower coparcener
• Provided that if the borrower-coparcener died before
institution of suit by the creditor, or during pendency of
the litigation but before his undivided interest could by
attached by court, the undivided interest cannot be
attached by the court. It devolves by survivorship.
• If the interest was attached before his death, doctrine of
survivorship will not apply
 64

Wills
• PRE-1956:
• Testamentary disposition seen as against the idea of
coparcenary as it is opposed to the principle of
survivorship
• No coparcener could dispose of undivided interest under
a will even with the consent of other coparceners
• Sole surviving coparcener could make such a will, but it
becomes non-operative if another coparcener (including
child in womb or an adopted child) exists at the time of his
death
 65

Wills
• POST-1956:
• Section 30, HSA: An undivided coparcener may make a
testamentary disposition of his undivided interest in favour of
‘anyone’
• In such case, doctrine of survivorship will not apply
• If the coparcener bequeaths his share to a stranger, s/he will
step into the shoes of the coparcener and may ask for
partition and specification of the share as it stood at the
time of the death of the coparcener.
• Not necessary for the coparcener to inform the Karta or other
members before making such a will
• If the Karta makes a valid alienation of the coparcener’s interest
before his death, it is possible that no property may be left when
the will becomes operative (when the coparcener dies)
 66

Gifts
• A coparcener may make a valid gift after the consent of all
the coparceners or in favour of all the coparceners to the
extent of his total share
• A gift in favour of another coparcener to the exclusion of
others is void
 67

R. Kuppayee v. Raja Gounder (2004) 1 SCC 295

• By a registered settlement deed, the respondent father

settled an extent of 12 cents out of 3 acres of ancestral
family property in favour of his married daughters (the
appellants). The gift included a tiled house standing on the
gifted land.
• As per recitals in the settlement deed, the settlement was
made by the respondent out of natural love and affection
for the appellants and the possession of property was
handed over on the day the settlement deed was executed.
• After nearly five years, the respondents and his asked the
appellants to vacate the property and tried to trespass into
the property.
 68

Facts contd..
• The appellants thereupon filed a suit seeking relief of
restraining the respondent and his associates from interfering
with the appellants’ peaceful possession and enjoyment of the
suit property in any way by way of a permanent injunction, or,
for grant of relief deemed fit in the circumstances of the case.
• The respondent resisted the suit took the stand that he had
not executed any settlement deed, that his son-in-law, i.e.
husband of Appellant had purchased a house site and the
respondent was taken to the Sub-Registrar’s office to witness
the sale deed. That he was used to take liquor and taking
advantage of his addiction to liquor the appellants and their
respective husbands fraudulently by misrepresentation instead
got the sale deed executed from him and that the property in
dispute being a joint Hindu family property consisting of himself
and his son could not be gifted under any circumstances.
 69

Procedural History:
• The trial court accepted the submissions of the
respondent and dismissed the suit.
• The order of the trial court was affirmed by the first
appellate court as well as the High Court.
 70

Issue:
• Whether the gift/settlement made by the father in favour
of his married daughters of a reasonable extent of
immovable property out of the joint Hindu family property
is valid?
 71

Analysis and Holding:

• The position in the Hindu law is that whereas the father has
the power to gift ancestral movables within reasonable
limits, he has no such power with regard to ancestral
immovable or coparcenary property. He can, however, make
a gift within reasonable limits of ancestral immovable
property for “pious purposes”. Though the alienation must be
by an act inter vivos and not by will, but the extended
meaning given to the words “pious purposes” enables
the father to make a gift of ancestral immovable
property within reasonable limits to a daughter at the
time of her marriage or even long after her marriage.
However, the extended meaning has not been extended
to the gift made in favour of other female members of
the family.
 72

Analysis and Holding:

• Question as to whether a particular gift is within the
reasonable limit or not has to be judged according to the
status of the family at the time of making the gift, the
extend and total value of the property owned by the
family and the extent and value of the gifted property and
so on. Simply because the gifted property is a house, it
cannot be held that the gift made was not within the
reasonable limits. However, if, on facts, it is found that the
gift was not within reasonable limits, such a gift would not
be upheld. No hard and fast rule prescribing
quantitative limits of such a gift can be laid down. The
answer to such a question would vary from family to
family.
 73

Analysis and Holding

• It was for the respondent to plead and prove that the gift
made by the father was excessive or unreasonable,
keeping in view, the total holding of the family. In the
absence of any pleadings or proof on these points, it
cannot be held that the gift made in this case was not
within the reasonable limits of the property held by the
family. The respondent has failed to plead and prove
that the gift made was to an unreasonable extend,
keeping in view the total holding of the family.
 74

Conclusion:
• The total property held by the family was 3 acres. 12
cents would be approximately 1/26th share of the total
holding. The share of each daughter would come to
1/52nd or 1/26th share of the total holding of the family,
which cannot be held to be either unreasonable or
excessive under any circumstances.
• Further, the finding of the trial court and the high court that
the respondent was taken to the Sub-Registrar’s office to
witness a sale deed by his sons-in-law whereas deed of
settlement/gift was got executed from him, was on
misreading of evidence and being perverse, the same
cannot be sustained in law. Appeal allowed.
 75

Renunciation of Coparcenary Interest

• Not alienation
• A coparcener may renounce his share in favour of other
coparceners as a whole
• But not in favour of some to the exclusion of others
• Shares of others increase collectively as if one member
had died
• After renunciation, the coparcener remains a family
member but his interest in the coparcenary property
comes to an end
• He is no longer a coparcener:
• Not entitled to share on partition
• Son born to him has no right by birth in the coparcenary property
 76

Alienation of joint family property by the sole

surviving coparcener:
• Alienation by the sole surviving coparcener:
• A sole surviving coparcener can treat Joint Family
property as separate property after fulfilling the
rights of the other members of the family.
• Challenge to alienation can be also done by a
subsequently born coparcener, if he was in the womb
at the time of alienation.
• Where he makes a will, but before the death of the
coparcener, another coparcener comes into existence,
the will is invalid. Otherwise, the will is valid.
 77

Alienation of joint family property by the father

• Alienation made by the father-
• A father has special powers of alienating property.
• He may make a gift of ancestral movable property.
• He also has the right to mortgage ancestral property,
whether movable or immovable, including the
interest of his sons, grandsons and great
grandsons therein for the payment of his own debt-
• The debt should be antecedent in nature and,
• It was not incurred for immoral or illegal purposes.
 78

Challenge to Alienations
• Two remedies available to coparceners opposed to
alienation by the Karta:
• Before alienation: Demand his share and cease to be a member
of the family
• After alienation: Challenge the alienation
• Validity of alienation can be challenged by any
coparcener on the ground that it is not for permitted
purposes or by coparceners who did not consent to
the alienation
• Can be challenged only by coparceners and not by other
family members, including a widow of a coparcener,
mother or wife
 79

Burden of Proof on Alienee

• Burden of proving the validity of the alienation is on the alienee
(in whose favour the transfer has been effected)
• Burden to prove that Karta has competency to alienate the
property.
• Rationale: Where a transferee enters into a transaction with a transferor
who is not the exclusive owner of the property, duty is on the transferee
to act with caution and due diligence and make bona fide enquiries
• An unauthorized transfer is seen as against the interests of the
coparceners and the alienee is seen as the beneficiary
• When an alienation by Karta is challenged, the alienee has to
prove:
• Alienation was for one of the permitted purposes
• Family did not possess enough alternative financial resources, ie
there was a necessity
 80

Burden of Proof on Alienee (contd.)

• Made reasonable inquiries about whether the transaction is for a
permitted purpose and that the Karta acted in the family’s interest
• Inquire as a prudent person dealing with a transferor who is not the sole
owner of the property
• Alienee’s actions must be honest and bona fide
• Prove that s/he paid a fair price. Where consideration is unreasonably
low, the transaction is not justified, because it is need-based. The court
may reduce the interest rate if it is excessively high and maintain
the validity of the transfer.
• Not bound to see the actual application of the money paid. Sufficient
to show that s/he made due inquiries before entering into the transaction.
• Mere recitals in the transfer deed do not prove the validity of the
alienation. Alienee should ascertain the facts from Karta, the
coparceners, other family members or through independent means.
Recitals are admissible, but not conclusive.
 81

Refund of Consideration
• In case an alienation is set aside by the court as
unauthorized, alienee may proceed against the
transferor personally for a refund of the consideration
already paid by the alienee
• To claim refund from the coparceners, alienee must
prove that the consideration went to the joint family
assets or were used in paying off charges on the property
• If the possession of the property was already delivered
to the alienee, the coparceners are entitled to have it
back
 82

Period of Limitation:
• The limitation period varies depending upon who had alienated the property and the
nature of remedy asked
• Alienation made by the father/Karta/coparcener- when alienee has taken
possession:
• Where the alienation was made by the father, of either movable or immovable
properties, and the son files a suit for a setting aside of alienation, he can do so within a
“period of 12 years” from the date of alienation
• Where immovable properties are alienated by the Karta or by an ordinary coparcener,
and the alinee has taken possession of the property, and a coparcener files a suit for
recovery of possession, he can do so again, within a “period of 12 years”.
• Alienation made by the father/Karta/coparcener- when alienee has not taken
possession:
• Where the suit is for declaration that the alienation is void and not binding on the
family, the limitation “period is 6 years” from the date from which the right to sue
arises.
• Minor:
• Where the challenging coparcener was a minor at the time of alienation, he can file a
suit for setting aside such alienation within “three years of his attaining majority”.
• The bar of limitation against an elder son, who was a major at the time of the alienation
done by the father does not operate as a bar against a younger son, who was a minor
 83

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

• The defendant, Ram Prakash, as karta of Hindu joint family, executed an

agreement to sell certain house property and received a sum as
earnest money on the date of the agreement.
• Ram Prakash later refused to execute a sale deed. Thus, a suit was
filed for specific performance of the agreement to sell.
• Sons of Ram Prakash made an application for being impeded in this suit
which was dismissed as they were held to be unnecessary parties to the
suit.
• Thereafter the three sons of defendant instituted a suit for permanent
injunction against their father to restrain him from alienating the house
property stating inter alia that the said house was JFP and the
proposed sale was neither for legal necessity nor for the benefit of the
joint family estate, nor it was an act of good management to sell the
same without the consent of the plaintiffs.
• Thus the relief sought for is to restrain by permanent injunction the karta of
the Hindu joint family from alienating the house property in question.
 84

Issues:
• Whether interference of the court (through a suit for
permanent injunction) could be sought by a
coparcener to restrain the karta of Hindu joint family
from alienating coparcenary property?
• A coparcener has as much interest as that of karta in the
coparcenary property. The right of coparcener in respect of
his share in the ancestral property would remain
unimpaired, if the alienation is not for the legal necessity or
for the benefit of the estate. When these two rights are
preserved to a coparcener, why should he not prevent the
karta from dissipating the ancestral property by moving the
court? Why should he vainly wait till the purchaser gets
title to the property?
 85

Analysis and Holding:

• Right to obstruct alienation could not be considered
as incidental to the right to challenge alienation:
• No doubt the law confers a right on the coparcener to
challenge the alienation made by karta, but that right is
not inclusive of the right to obstruct alienation. These are
two distinct rights. One is the right to claim a share in
the joint family estate free from unnecessary and
unwanted encumbrance. The other is a right to
interfere with the act of management of the joint
family affairs. The coparcener cannot claim the latter
right and indeed, he is not entitled to it.
 86

Analysis and Holding:

• Suit for permanent injunction is not maintainable:
• In a suit for permanent injunction under Section 38 of the specific
Relief Act by a coparcener against the father or manager of the joint
Hindu family property restraining the karta from alienating the
coparcenary property, an injunction cannot be granted as the
coparcener has got equally efficacious remedy to get the sale set
aside and recover possession of the property.
• The coparcener has adequate remedy to impeach the
alienation made by the karta in a suit subsequent to the
completion of the sale. If it is held that a suit for permanent
injunction would be competent the result would be that each time
the manager or the karta wants to sell property, the coparcener
would file a suit which may take number of years for its disposal.
The legal necessity or the purpose of the proposed sale which may
be pressing and urgent nature, would in most cases be frustrated
by the time the suit is disposed off.
 87

• Legally speaking, unless the alienation in fact is

completed there would be no cause of action for any
coparcener to maintain a suit because the right is only to
challenge the alienation made and there is no right
recognized in law to maintain a suit to prevent the
proposed sale.
• The principle that an injunction can be granted for
preventing waste by a manger or Karta obviously would
not be applicable to such a suit because the proposed
alienation for an alleged need or the benefit of the estate
cannot be said to be an act of waste or ouster an injunction
may be granted against the manager of the Hindu joint family
at the instance of the coparcener.
• But nonetheless a blanket injunction restraining permanently
from alienating the property of the Hindu joint family even in
the case of legal necessity, cannot be granted.
 88

Ratio:
• Where the karta is contemplating the transfer of the joint
family property for a permitted purpose, as ascertained by
him, the coparceners cannot prevent him from transferring
his property by seeking a temporary or permanent
injunction from the court. Managing the joint family
property is one of the inherent powers of the karta and
even the court is not empowered to encroach upon this
power, unless the validity of the transfer is challenged
before it.
 89

DEBTS
 90

Debts
• Rationale in Hindu law behind Payment of debts:
• Payment of one’s debts as necessary for salvation of the soul
• Duty to pay debts during your lifetime
• Belief in rebirths: serve the creditor in next life
 91

Debts
I. Liability of separate property for debts: Liable for payment
of debt both in lifetime and after death
II. Liability of the undivided interest of a coparcener for his
debts: Not liable after death unless it was attached or sold in
his lifetime.
1. Debts contracted by a Hindu male for joint family
purpose: see Karta and alienation of joint family property
2. Debts contracted for personal purposes
• Liability of joint family property for father’s personal
debts
a. Where the property is sold in execution of a decree
obtained against the father alone. Doctrine of Pious
Obligation.
b. Where the property is alienated by the father in the
payment of an antecedent debt
 92

I. Liability of separate property for Debts

• The separate property of a Hindu is liable for the payment
of his debts both in his lifetime or after his death.
• Purpose for which the debt was taken is immaterial
• Liability of heirs:
• SP received by way of Succession: Where separate property
passes by intestate or testamentary succession, the heirs are liable
only to the extent of the assets inherited by them from the
deceased.
• Self acquired separate property: Heir is not personally liable,
even if he is a son or grandson
 93

II. Liability of undivided interest of a coparcener

• Undivided interest of the coparcener is always liable for payment of

his debts during his lifetime. Undivided interest to a coparcener
may be attached in his lifetime in execution of a decree secured by
the creditor against him for his personal debt
• Undivided coparcenary interest of a Hindu is not liable after his
death, unless during his lifetime, the creditor has secured a
decree in his favor and got the property attached in execution
proceedings.
• If it is attached during his lifetime, it may be sold after his death
• It cannot be attached after his death because it passes to other
coparceners by survivorship
• If the property is attached during the coparcener’s lifetime, it
prevents the accrual of his interest to his coparceners by
survivorship
 94

Illustrations:

• A and B his brother are members of the coparcenary. A is

indebted to C for Rs. 3,000. C may obtain a decree
against A, and may enforce it in A’s lifetime by attachment
and sale of A’s undivided share in the joint family property.
However if A’s interest was not attached in A’s lifetime, it
cannot be attached after his death.
 95

Illustrations:
• A and his brother are members of a coparcenary. A is indebted
to C in the sum of Rs. 3000. C obtains a decree against A in A’s
lifetime. Before any step is taken in execution of the decree, A
dies leaving behind a widow and his brother. He also leaves
separate property worth Rs. 1500. Here A’s separate property
will pass to his widow as his heir and C may enforce the decree
by attachment of that property but he cannot attach the share
that has passed on to the brother.
• A and his brother B are members of a coparcenary. A is
indebted to C in the sum of Rs. 3000. C obtains a decree
against A and in execution proceedings gets A’s interest in the
coparcenary property attached. A then dies leaving behind B.
The interest of A has been attached and it does not matter if the
sale takes place before or after A dies.
 96

Liability of Joint family property for father’s debts

• If a father, father’s father’ (paternal grandfather), father’s father’s father
(paternal great grandfather) dies leaving debts, in such a case:
• Where the sons (including grandsons) are joint with their father, and debts have
been contracted by the father in his capacity as a manager and head of the
family for family purpose, the sons as members of the joint family, are bound
to pay the debts to the extent of their interest in the coparcenary property.
• Where the sons are joint with their father, and debts have been contracted by
the father for his own personal benefit, the sons are liable to pay the debts,
provided they were not incurred for an illegal or immoral purpose.
• It is not extended to separate property and extends to only the interest in the joint
family property. Undivided interest can be sold by the creditor, even to the extent
of the whole of the property
• Where the debt was contracted after partition, share obtained on partition is not
liable for payment of father’s debt
• A person lending to a Hindu who has no separate property (and no sons of three
generations), has no chance of recovering his money back, unless he enforces the
decree during his lifetime.
 97

Exception to Liability of undivided interest of a coparcener: Doctrine of pious obligation:

• A Hindu male is under the pious obligation to pay the debts of his father,
grandfather and great grandfather. The liability however is not a personal
liability and is confined to their undivided interest in the joint family property.
• If they repay the debt of the departed father, father’s soul will be liberated
from the burden of the debt.
• Grandfather’s debt must be paid first, then father’s and then his own.
• Not as an obligation to the creditor, but for spiritual benefits to the departed
father
• People who can save the debtor: Sons, Grandsons, Great-grandsons.
• Liability extends to three immediate male lineal descendants (son, son’s
son, son’s son’s son)
• Any other relative/coparcener (brother, father, uncle, nephew, wife): no
liability
• Liability exists even when father is not Karta. Where joint family
consists of persons other than the father and his sons, shares
belonging to the father and his male issues will be liable
 98

Son’s remedies:
• O 21, r 58 CPC, 1908: object to the attachment and
sale on the ground that the debt incurred by the father
was for an illegal or immoral purpose.
• A suit against the creditor that they are not bound by
money decree or mortgage decree and for an
injunction restraining him from selling the property,
but this share will not be released from attachment, unless
they show that debt incurred by the father was for an
illegal or immoral purpose.
 99

Immoral Debts
• Purpose for which debt was contracted is relevant
• Avyavaharika debt: Any debt for a cause repugnant to
good morals
• Son not liable to repay such debts
• Son is bound by a just debt, which is:
• Actually due
• Not immoral, illegal or opposed to public policy
• Not contracted as an act of reckless extravagance or wanton waste
• Examples- Spirituous liquor, for idle gifts, for promises
made under the influence of liquor, taxes, love gifts.

• Is the son liable to pay the following?

 100

Example Yes/No
Money borrowed to pay a fine inflicted for a criminal offence N
Father’s telephone bills Y
Money to be paid under decree for amount obtained on theft N
Payment of damages awarded under decree for defamation N
Debt to defend against a defamation lawsuit Y
Criminal misappropriation of goods as cashier N
Debts contracted for business Y
Criminal misappropriation of goods as employee N
Debt for marriage of concubine’s daughter N
Debt to litigate against son himself and defeat his legitimate rights N
Father’s liquor bill N
Liability for negligence in discharge of duties as managing
Y
director of cooperative bank
 101

Shift in the doctrine of pious obligation

• Shift in focus from benefits to departed father to rights of
creditors
• To escape liability, sons must prove:
• 1. Debt was for illegal, immoral or improper purposes
• 2. Creditor/purchaser had knowledge that the debt was for
such purposes
• The right to creditor to proceed against the sons on the
ground of pious obligation after the amendment of 2005
came into force is circumscribed.
• However, the right of creditor to proceed against the sons
for debts contracted by a ancestor before the
commencement of this 2005 amendment is saved.
 102

Section 6 (4) HSA

• (4) After the commencement of the Hindu Succession (Amendment) Act, 2005*,
no court shall recognize any right to proceed against a son, grandson or great­-
grandson for the recovery of any debt due from his father, grandfather or great-
grandfather solely on the ground of the pious obligation under the Hindu law,
of such son, grandson or great-grandson to discharge any such debt: Provided
that in the case of any debt contracted before the commencement of the
Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section
shall affect—
• (a) the right of any creditor to proceed against the son, grandson or great-
grandson, as the case may be; or
• (b) any alienation made in respect of or in satisfaction of, any such debt, and any
such right or alienation shall be enforceable under the rule of pious obligation in
the same manner and to the same extent as it would have been enforceable as if
the Hindu Succession (Amendment) Act, 2005 had not been enacted.
• Explanation. —For the purposes of clause (a), the expression “son”, “grandson”
or “great-grandson” shall be deemed to refer to the son, grandson or great-
grandson, as the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 2005*.
 103

Antecedent debt

• The undivided interest of the sons, grandsons and great grandsons

can be bound for a payment of an antecedent debt. Alienation for
payment of an antecedent debt by father is valid.
• The father of a joint Hindu family may sell or mortgage the joint
family property including the son’s interest therein to discharge a
debt contracted by him for his own personal benefit, and such
alienation binds the sons, provided:
• (a) the debt was antecedent to the alienation
• (b) it was not incurred for an immoral purpose
• Debt which is:
• 1. Prior in time
• 2. Prior in fact
• 3. Not incurred for an immoral purpose
• Prior in time: Debt must precede the present alienation of
property by the father; both cannot be simultaneous.
• Prior in fact: Debt and alienation must be two independent and
separate transactions.
 104

Antecedent debt
• Alienation is valid even in the absence of legal necessity (or fulfillment of other
requirements of a valid alienation)
• Father can alienate the joint family property to pay antecedent debts, even
to the extent of the whole of the estate
• Other coparceners cannot prevent the father from alienation of joint family
property for payment of his debts
• Only remedy: Partition. After partition, their shares cannot be touched by the
father to repay his own debts
• To constitute a debt as an ‘antecedent’ debt, it is not necessary that the
prior and subsequent creditors should be different persons. All that is
necessary is that two transactions must be dissociated in time as well as
in fact.
• For example, where a previous mortgage deed is renewed in favor of same
mortgagee, and the consideration for the subsequent mortgage deed is the
amount due on the earlier one, the alienation would be one for an ‘antecedent’
debt, unless the first debt was a mere device and was incurred merely for the
sake of creating an antecedence in time and with a view to support the
subsequent deed.
 105

ILLUSTRATION:

• Samvit (the father of a joint family), borrows Rs. 2000

from Veda for his own use. Subsequently, he executes a
mortgage of the joint family property to Veda to secure the
previous debt. It is not proved that the money borrowed
was used by Samvit (the father) for immoral purposes.
The mortgage binds not only the father’s but also his son
Raja’s interest in the property. Here, the debt is
antecedent of the mortgage in fact as well as in time.
 106

Example:
• Satyam and his sons are members of a joint Hindu family
governed by the Mitakshara law as interpreted in Uttar
Pradesh. In 2005, Satyam mortgages the joint family house to
Aditya. In 2007, Satyam executes a second mortgage of the
same house to Samridh. In 2008, Satyam executes mortgage
of the property to Raghuveer to pay off the earlier mortgages
to Aditya and Samridh. Raghuveer then sues Satyam and his
sons on the mortgage of 2008. It is not proved that the
mortgages to Aditya and Samridh were executed by Satyam
for family necessity. Here, the mortgage to Raghuveer having
been made to pay off the antecedent debt due to Aditya and
Samridh, it binds the whole property including the son’s
interest there in, and Raghuveer is entitled to a decree for the
sale of entire property.
 107

Dev Kishan v. Ram Kishan, AIR 2002 Raj. 370

• Plaintiffs and defendant No. 2 were members of

Hindu joint family. Defendant no. 2, who was the
Karta of the family twice mortgaged the property in
question to appellants/defendant no. 1 for a
consideration of Rs. 500 /- and Rs. 900/-
respectively for the necessity of marriage of his
three minor children.
• Later a sale deed was executed by the Karta of the
same properties in favour of defendant no. 1 for a
consideration of Rs. 2000/- though the value of
those two houses was about Rs. 8000/-
 108

• The plaintiff instituted the suit with the prayer

that the sale deed be declared null and void as
there was no legal necessity for mortgaging as
well as for selling the properties in question, and
if, at the most, properties were sold for the illegal
and immoral purposes, for the plaintiff are not
bound.
• The suit was contested by the
appellant/defendant no. 1 that Karta of the
family took loan from him for the legal necessity
of the family or those loans should be termed as
antecedent debt and for that, the plaintiffs were
bound to pay.
 109

Issues:
• Whether the taking of the debt by the Karta of the
family for the marriage of a minor member of the
family is a debt incurred for a legal necessity or is
for illegal purposes?
• Whether the further debts incurred and sale of
mortgaged properties effected by the Karta for
satisfying the loan taken on earlier mortgages for
the marriage of a minor member should be
considered to have been incurred for legal
necessity of satisfying antecedent debt?
 110

Analysis: First issue

• The Court held that there is no doubt that the marriage
expenses of male coparceners and of the daughters of
coparceners can be termed as legal necessity.
• But in the present case since the debt was taken for
marrying his minor daughters and as the child marriage is
prohibited under Child Marriage restraint Act, 1929,
therefore such debt is opposed to public policy and
cannot be termed as lawful debt and alienation on that
ground cannot be regarded as a lawful alienation binding
upon minors.
• The expenses incurred in connection with the marriage of
a child cannot constitute legal necessity.
 111

Analysis: Second issue

• The “antecedent debt” means antecedent in fact as well as in time
i.e., the debt must be truly independent and not part of the
transaction impeached.
• A borrowing made on the occasion of the grant of mortgage is not an
antecedent debt.
• The father of joint Hindu family may sell or mortgage the joint family
property including the son’s interest therein to discharge a debt
contracted by him for his own personal benefit, such alienation binds
the sons provided-
• (a) the debt was antecedent to the alienation, and
• (b) it was not incurred for an immoral purpose.
• The debt taken for the purpose of marrying minor children, which
were not lawful, was not a lawful debt.
• Thus the present and subsequent transaction of the mortgage and
sale cannot be regarded as transaction for payment of antecedent
debt.
 112

Ratio:
• Debt incurred for the marriage of a minor
being unlawful and against the public policy
cannot be a legal necessity. The
antecedent debt to pay off which an
alienation of the joint property is made must
be antecedent in fact as in time, i.e., the
debt must be truly independent and no part
of the transaction impeached.
 113

Debts under Dayabhaga System

• On the death of a Hindu governed by Dayabhaga law, the
sons, grandsons and great grandsons are liable to pay
to the extent of their inheritance.
• No separate liability of the sons, grandsons and great
grandsons.
 114

HYPOS
 115

Hypo:
• A Hindu joint family comprised of five brothers Ashish, Brij,
Chetan, Dev and Emir. Brij who was not happy with the
style of functioning of Ashish as the Karta, filed for
partition against him in a Court of Law, claiming one-fifth
share in the coparcenary property. During the pendency of
the litigation, Ashish died and now Brij wanted to withdraw
the suit, and assume charge as the Karta. Can he do so?
Discuss.
 116

Hint:
• Filing of suit is the most explicit expression of declaration
of intention to separate and the severance of status takes
place from the day the suit was instituted. A decree will
only contribute for working out definite shares.
 117

Hint:
• Intention to separate has been validly communicated to
the Karta of the family. It is true that partition which
occurred on 30th May relates back to 20th May according
to doctrine of relation back. But vested rights are not
affected by this doctrine. See Raghavamma v
Chenchamma, AIR 1964 SC 136
• The Karta sold the joint family property for a “legal
necessity”. So, Rishabh will not succeed in his claim.
 118

HYPO
• Fali Nariman and his son Rohinton Nariman constitute a
Mitakshara coparcenary. The family has several acres of
paddy field in Uttar Pradesh. Fali acting as karta sold the
paddy field in order to escape the risk of successive
droughts which he had experienced earlier. Out of the
sale proceeds Fali constructed a five star hotel and a
sprawling shopping complex. Rohinton challenged the
alienation made by his father by saying that it was neither
supported by legal necessity nor for the benefit of the
estate. Discuss and Decide. Whether the purchaser of the
field will be affected if it is proved that the sale proceeds
have been misappropriated by Fali for his personal use?
Give reasons.
 119

HYPO
• X along with his two adult brothers Y and Z and one adult son
S constitute a Mitakshara coparcenary. The family is settled in
Delhi. Determine the validity of the following transactions:
• (a) The family owns a valuable piece of land. An outsider
approaches X and makes lucrative offer of Rs. 90 lacs to
purchase the same. X without taking consents of other
coparceners sells away the land.
• (b) The family owns shares in a reputed multinational
company. X sells the shares for the second marriage of his
brother Y, while his first wife is already alive.
• (c) X mortgages the jewels belonging to the family for
obtaining money for the purpose of assisting prosecution of
person accused of murder of his son.
 120

HYPO
• Discuss the validity of the following alienation made by
father as Karta of a Mitakshara joint family.
• (i) Sale of a land to perform the marriage of his daughter.
• (ii) Sale of a house without the consent of other adult
coparceners.
• (iii) Mortgage of a piece of land in order to gift diamond set
to his wife on her birthday.
• (iv) Gift of small portion of immovable property to his
daughter.
 121

HYPO
• K, a karta of Mitakshara joint family, wants to sell his
ancestral house in the city for a sum of Rs. 80 lakhs to P.
He intends to utilize the purchase amount for the following
purposes.
• (i) For the re-marriage of his widow daughter D;
• (ii) For the re-marriage of his son S, after his divorce to
his earlier wife
• (iii) To meet the legal expenses in connection with the
prosecution of his brother B on charges of dacoity and
murder
• (iv) Performance of necessary family ceremonies.
 122

HYPO
• A Hindu joint family comprised of two brothers A and B, their
wives W1 and W 2 respectively, two sons and a daughter of A,
AS 1, AS 2 and AD and two sons of B i.e., BS 1 and BS 2. AD
who was 19 years old eloped with a man of lower caste and
the news left the entire family stunned. AS1 vowed to kill AD to
save the family honor and took out his pistol. BS 1 tried to
pacify him, but in the scuffle that ensued between them, BS1
died of gunshot. AS1 was booked for the murder of BS1 and in
order to give him the best legal assistance; A sold the entire
joint family property without taking the consent of the other
coparceners. B, however, challenges the validity of the
alienation. Whether he would be successful? Discuss
elaborating on the powers of karta to alienate the joint family
property.
 123

Hypo
• A is the karta of the joint family which consists of A, A’s wife- W, their
two sons- S1 and S2. S1 is married to W1 and has three sons S3, S4
and S5. The joint family property consists of two house in Sonipat and
one house in Delhi and the joint family also has a savings account with
a balance of Rs. 10 Lakhs.
• a. The Karta wants to sell all the properties and with the proceeds of
the sale and the money in the bank account wants to buy one single
property in Delhi. Can he do this?
• b. One of the coparcener is accused of murder of a high profile
person. There is huge media uproar about the case. The Karta wants
to hire the best lawyer and hence decides to hire Mr. Sethmalani, the
best criminal lawyer in town. He has quoted a fee of Rs. 15 Lakhs per
hearing. Mr. Sethmalani manages to get the coparcener acquitted and
the Karta has to alienate all the joint family property to pay Mr.
Jethmalani’s fee. Discuss if the action of the Karta can be challenged.
 124

HYPO:
• The Karta of a part of the joint family alienates property (a
house in Bangalore) on 1.01.1999 to his friend X without
the consent of the coparceners. His reason for alienation
is that no one was using the house and it was difficult to
get substantial rent from the property and the cost of
maintaining the property was actually more. The
coparceners disagreed saying that the property was in an
area which was undergoing development and property
rates were increasing. X takes possession of the property.
Coparceners file a suit for recovery of possession on
01.01.2012. Discuss the case on merits and technicalities.
 125

HYPO:
• A,B and C brothers and form a joint family property. A
executes a writing renouncing his interest in the joint
family property in the favor of B. Is it a valid renunciation?
If yes, what are the rights of B.
 126

PARTITION
 127

Partition
• Division or splitting of joint Hindu family into smaller,
separate and independent units, with conferment of
separate status on the undivided coparceners
• No partition is possible in the absence of at least two
coparceners
• Partition, in essence, is the disruption of the undivided
coparcenary in a joint family
• Split between coparceners
 128

Split this family!

F W

S – SW D
 129

Split this family!

F W

S – SW D
 130

Sole surviving coparcener

• Joint family property can continue on his behalf.
• No partition is possible as he is the only
coparcener.
• He is also under the responsibility of maintaining
the female members.
• He can separate himself from the family but only
after making due provisions for the female
members. It’s usually called as a family
arrangement.
 131

Split this family!

F W

D1 D2
 132

What are we splitting in the coparcenary?

• Community of interest: joint ownership

• Unity of possession: common physical enjoyment of
property
 133

De Jure Partition
• The moment community of interest is broken partition takes
place in law
• Severance of status
• Extent of ownership and shares are fixed
• No fluctuation of shares
• No scope of application of
survivorship
• Unity of possession may continue
• Tenants-in-common:
• no coparcener can claim a Specific
• item of property as his own
 134

De Jure Partition
F

S-W

• For example, in de jure partition between father and son:

• Each coparcener gets ½ share
• Common enjoyment of joint family house
• If son dies, father does not get his share by
survivorship. It passes on to son’s widow as his heir
 135

De Facto Partition / Partition by Metes and Bounds

• Unity of possession is broken
• Replaced by exclusive possession
• Actual physical division of the property
 136

Division of Property:

• What can be partitioned?

• Coparcenary property
• Not separate property
• For determining the available property for
partition:
• The liabilities of the joint family first has
to be exhausted
• After taking care of the liabilities, the
available joint family property can be
 137

Before division of property

• Make provision for liabilities of the joint estate, such as:
• Debts due or claims against the family
• Charges on account of maintenance of disqualified heirs, female members,
etc.
• Expenses for marriages (not of coparceners) and other family ceremonies
like mother’s funeral expenses when partition takes place between sons
• Where division takes place between father and sons: provision for
discharge of father’s debts (not immoral), along with other family debts
• At the time of Partition, no coparcener is entitled to call upon the Karta to
account for his past dealings with the joint family, unless there is evidence to
show fraud, misappropriation.
• No charge is to be made against a coparcener who was given a larger share
of joint family income by the Karta.
• Mesne Profits: A coparcener who was entirely excluded from the enjoyment
of the family property is entitled to an account of the income derived from the
joint family property and to have his share of the income ascertained and
paid to him.
 138

What about non-coparcener joint family members?

• Ownership of joint family property: coparceners

• All members:
• Right to maintenance out of joint family funds
• Right to residence in the joint family house
• Right to possess and enjoy joint family property
• Before actual division of property, provision must be made
for maintenance and residence of female members and
disqualified coparceners
• If father is not alive, provision must be made for meeting
the marriage and funeral expenses of unmarried sister
 139

Follow these rules:

 140

Division as per nature of property:

• Whatever property is capable of division- should be
divided.
• Property not capable of division (Impartible property):

What if in trying to divide the property,

its intrinsic value would be lost or
substantially diminished or the property
would be destroyed?
 141

Divide this property

 142

Previous enjoyment not conclusive

• Enjoyment of property before partition does not give any
preferential right
• Even if one coparcener was in exclusive control of the property
• Even if the coparcener substantially improved the property, but
without the consent of other coparceners. EX: Addition of extra
rooms to the Joint family house.
 143

Balance corresponding values of properties

• Impartible properties which are:

• Usually multiple in number
• Whose value can be reasonably determined at the time of partition
• Not likely to rise substantially in future
• Divide the items such that what one coparcener takes
has a value that is comparable to the items given to
other coparceners (Balancing out in terms of value)
• Even though each coparcener may not get identical
things
• Examples?
 144

• Household items
• Kitchen utensils
• Vehicles
• Furniture
• Books
• Clothes
• Ornaments
• Artefacts
 145

Balancing it out
Sofa and television Dining table and refrigerator
 146

Money compensation
• Where:
• Only one impartible property, or
• Few in number and shares are more, or
• No balancing possible due to unequal values
• Allotted to one person
• Money compensation given to other
• Principle of equality of partition
 147

Sale and distribution of cash proceeds

• Where:
• No balancing possible, or
• No agreement with respect to receiving money compensation, or
• One or more coparceners wants a single item of impartible
property
• Sell the property & Distribute the cash proceeds equally
 148

Compulsory common enjoyment

• Property which:
• by its very nature cannot be given exclusively to one person
• Cannot be sold because it is essential to enjoyment by the family
members of their shares
• Even after partition, coparceners and their families
must share these properties
• Examples?
 149

Well
Staircase

Road/right of way
 150

Sharing by turns
• Where impartible property has a special significance to
the family
• Members may share by turns
• In the event of disagreement: eldest member retains it
with junior members having access
• Examples?
 151

Family idols
Place of worship
 152

How do you partition when only one coparcener wants to leave?

 153

Partial partition
• Not necessary that all members should separate
• Not necessary for the entire joint property to be divided
• Partial partition with respect to:
• Members
• Property
 154

Partial with respect to persons

• Where partition is brought at the instance of one
coparcener, only he (or his branch, if he has male issues)
separates
• Other members may continue to remain joint
• A coparcener cannot choose to separate from a few
members and remain joint with other members (except his
branch)
• Even if it is necessary to informally work out the shares of
remaining coparceners, they still remain joint
155
 156

A B C D
 157

A B C D
 158

A B C D

A cannot choose to remain joint with B but separate from C and D

 159

Partial Partition with respect to property

• All coparceners may partition a portion of the property
and divide it amongst themselves, with consent
• They may maintain a joint status with respect to the
remaining property
• Where there is evidence to show that parties intended to
sever, joint family status ends
• With respect to property that remains undivided,
presumption is that members hold is as tenants-in-
common
 160

Circumstances justifying partial partition

• A complete partition may not be possible
• Where:
• Joint family property is by nature or by custom impartible
• Property not available with the family, e.g. property with mortgagee
under usufructory mortgage, property with tenant under lease, etc.
 161

3 brothers may divide the

agricultural land but not
the joint family house
 162

Presumption that partition is complete

• Where partition takes place, it is presumed that it is
complete partition both with respect to members and
property
• The person alleging that partition was partial has to prove
it
• Question of fact
 163

Share received on partition

• Fixed specific share
• Separate property with respect to everyone (except his
male issues)
• Coparcenary property with respect to his male issues, if
any. Doctrine of survivorship applies.
• If no male issues are present, property passes by
inheritance/testamentary succession
 164

A B C D

The share that A receives on partition: Separate as regards B, C,

D; coparcenary as regards S
 165

Can Karta discriminate in allotting shares?

• When the family is joint, Karta can discriminate in
allocating funds to different members of the family due to
love and affection, size of coparcener’s family, special
needs, etc.
• At the time of partition: equal shares
• If a coparcener had:
• Spent joint family funds to discharge personal debts without
the consent of other coparceners: debited from his shares
• Spent his separate income for improvement of joint property
(not as gift), entitled to re-imbursement
• If the coparcener had alienated his undivided share- debited
from his share
 166

Who can ask for partition?

 167

Coparceners
• Every coparcener is entitled to a share upon partition, who is:
• Major, and
• Of sound mind
• Inherent right as a joint owner
• He can ask for demarcation and specification of his share
and right to deal with it as a separate person
• Can demand a partition any time
• No explanation / reason required
• In Bombay, a son is not entitled to ask for a partition, if the
father is joint with his own father, brothers or other
coparceners, he can enforce a partition against his father
only after the father separates
 168

Can coparceners agree to partition?

• All coparceners may agree to partition (severance of status or partition
by metes and bounds): Partition by agreement
• Minor coparcener: represented by guardian
• An agreement to separate is not required by law to be in writing.
Although if it is in writing and clearly indicates an intention to separate,
it results in strong evidence.
• Bona fide agreement: not to defeat rights of third party or provisions of
law
• The moment there is a bona fide agreement to effect a severance of
status: shares become fixed, survivorship no longer applies
• If an agreement is not in writing or the document is not clear per se,
subsequent conduct of the parties becomes material in order to
determine whether there was a partition or not.
• Coparceners may agree to divide the property unequally subject to
interests of a minor i.e. Family arrangements can be included in a
partition agreement- disputed rights are comprised
 169

How to ask for partition?

• Through a voluntary act, express your intention to
separate
• Involuntary partition/partition by conduct/Forced
separation:
• Conversion
• Marriage to a non-Hindu
• Automatic severance of status
• Intention to separate or stay joint is immaterial
• Does not affect the status of other coparceners
• Here, the share is handed over to such a coparcener
 170

Conversion:
• On conversion, a person immediately ceases to be a
member of the Hindu joint family or a coparcener
• Share becomes fixed and does not fluctuate by the birth
and death of any other coparcener.
• Share on the date of conversion is handed over
• Rights in the joint family and coparcenary property are not
forfeited
• Rights are ascertained
• Hereafter, governed by the law of the religion which he
embraces
 171

Marriage to non-Hindu
• Marriage to a non-Hindu under Special Marriage Act,
1954
• Automatic severance of status from joint family and
coparcenary
• Share is specified and handed over
• Different for Hindu married to Hindu after 1976.
 172

Can coparceners agree not to partition?

• Coparceners may agree not to partition till a specified
time, or till the happening of a certain event, or till the life
of a coparcener
• Cannot agree to never partition or postpone the partition
in perpetuity
• Binding on all parties personally; not binding on
descendants
 173

Minor coparcener
• Equal in ownership of property
• But no right to demand partition
A

S1 S2
(minors)
• What if A is mismanaging the property?
 174

Minor coparcener (contd.)

• Minor can file a suit against Karta for partition through a
next friend/gaurdian
• Court acts as parens patriae
• Court will look at:
• Existing situation in the family
• Whether the assessment of the next friend is correct
• Who are the persons who can effectively manage the property
• Consequences of partition on the minor
• Test: Whether the partition would be for the benefit of
the minor?
• The court will not pass a decree for partition unless the
partition is likely to be for the benefit of the minor by
advancing his interests and in his welfare.
 175

Example Yes/No
Refusal of father to maintain the minor son Y
Father’s immoral behavior Y
Minor sons were born to father’s second wife N

Investment of joint family funds in speculative transactions Y

Misappropriation of joint family funds Y

Father is in possession of JFP & is wasting the property Y

Father sets up an exclusive title in his favor Y
 176

Alienee or purchaser
• Where an undivided coparcener had alienated his share
(in states where such alienation is valid): Alienee can ask
for partition
• Where an undivided coparcener contracts a debt and
debtor sells the share in execution of a decree: purchaser
can ask for partition
• No right to joint possession with other coparceners except
in some states
• Entitled to demarcate only the share they are entitled to
• Partition has no adverse effect on the status of other
coparceners
 177

Can father impose partition?

• Father has the authority to not only separate himself from the rest of
the joint family by effecting a partition
• Like other coparceners, father can separate himself by partition
• He can also separate each son, including minors
• Father can also effect partial partition of joint family property
• May effect only a severance of status or a partition by metes and bounds
• Dissent of sons is irrelevant
• Must allot equal share to each son
• Coparceners may consent to an unequal division
• If the coparceners do not give their consent and the division is unequal and unfair,
then they can repudiate it.
• Minor’s share: Father retains its control as guardian. But it is the
minor’s separate property, so father cannot alienate it without court’s
permission. A minor coparcener cannot avoid a partition effected by the
father till he attains majority, whereupon he can expressly repudiate it.
 178

Who to ask for partition?

• Karta
• Karta cannot reject a demand for partition
• Karta cannot ask for explanation or justification
• Where Karta does not accept a demand for partition, the
coparcener may approach the court and institute a suit for
partition
 179

Adopted son
• Right by birth from the date of adoption
• Right to demand partition
• Entitled to an equal share as the adoptive father and
natural born son

• Namdev Vyankat Ghadge v. Chanadrakant Ganpat

Ghadge, (2003) 4 SCC 71
 180

Section 12 HAMA
• 12. Effects of adoption.-

• An adopted child shall be deemed to the child of has or her adoptive father or mother for
all purposes with effect from the date of the adoption and from such date all the ties of
the child in the family of his or her birth shall be deemed to be served replaced by those
created by the adoption in the adoptive family:

• Provided that-

• (a) the child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth.

• (b) any property which vested in the adopted child be before the adoption shall continue to
vest in such person subject to the obligations, if any, attaching to the ownership of such
property, including the obligation to maintain relatives in the family of his or her birth.

• (c) the adopted child shall not divest any person of any estate which vested in him
or her before the adoption.
 181

Section 13 HAMA
• 13. Right of adoptive parents to dispose of their
properties.-
• Subject to any agreement to the contrary an adoption does
not deprive the adoptive father or mother of the power to
dispose of his or her property by transfer inter vivos or by
will.
 182

Illegitimate son
• Not a coparcener
• Cannot ask for partition
 183

Can an after-born son demand his share?

A
W

S1 S2 S3

W is pregnant at the time of partition. S3 is born after

partition has been effected. Can S3 demand his share
now?
 184

Can an after-born son demand his share?

A
W

S1 S2 S3

What if W does not know that she is pregnant at the time of

partition?
 185

Can an after-born son demand his share?

• Son in the womb at the time of partition and born
subsequently
• Treated as if in existence at the time of partition
• Rule: If the factum of pregnancy is known, either the
partition should be deferred till birth or share should
be kept apart. If child born is not alive or is female,
share should be redistributed among all coparceners
• If no share is reserved (whether factum of pregnancy is
known or not), he has a right to demand a re-opening of
partition
 186

Can an after-born son demand his share?

A
W

S1 S2 S3

What is S3 was conceived after partition?

 187

Son conceived and born after partition

• A father separating from his sons, may or may not
reserve a share for himself at the time of partition.
• Right to demand partition depends upon whether his
father took a share himself or not
• (1) Where father takes an equal/comparable share as his
sons:
• After-born son is not entitled to have the partition reopened
• Becomes a coparcener with his father
• Entitled to inherit father’s property after father’s death (share
allotted on partition + whole of separate property of father
acquired before/after partition) to the exclusion of other sons
• Section 8, HSA: Abolished the distinction between divided and
undivided sons in the matter of inheritance of father’s separate
property
 188

Son conceived and born after partition

• (2) Where father does not take a share:
• After-born son is entitled to have the partition reopened
• Can get a share allotted to him not only in the property as it
stood at the time of original partition, but in the accumulations
made with the help of that property
 189

Can a disqualified coparcener ask for partition?

A
W

S1 S2 (S3)

What is S3 is a disqualified coparcener?

 190

Disqualified coparcener
• Cannot ask for partition
• EX: Persons of unsound mind-
• Not entitled to ask for partition and no right to a share on partition.
• When cured of insanity, both rights revive, He may reopen partition.
• His male issues are not excluded from getting a share.
• This disqualification has been amended by the Hindu
Inheritance (Removal of Disabilities Act), 1928. It
removed disability to inherit on the basis of Blindness,
Deafness, Dumbness. After the 1928 Act, only congenital
lunacy/idiocy was a ground for disqualification
• After Hindu Succession Act, 1956- even that
disqualification has been removed. (Section 28)
 191

Demanding a partition
• To bring a severance of status, a demand must include:
• Formation of an intention to separate from the joint family
• Declaration of this intention (oral/written/through institution of
suit for partition)
• Communication of intention to Karta (if Karta is unavailable, to
other coparceners)
• Clear, unambiguous and unequivocal formation and
declaration of intention
• Coparcener’s right to demand a partition; cannot be
delegated
• May use a third person as medium of communication
• The Karta cannot restrict the right of a coparcener to
partition
 192

Example Yes/No
“I want a partition and demarcation of my share” Y
“I do not wish to continue as a member, hand me my share” Y
“I have one-fourth share in the property” N

“Hand over my share to my wife after my death” N

“I want a partition from the joint family and lead an Y
independent life”
Taking over possession and improving a part of property N
“I am not interested in my father’s estate” N
Wife asks Karta for partition; no confirmation comes from N
the coparcener
Notice for severance of status sent by coparcener through Y
lawyer
 193

INCIDENTS OF
PARTITION:
 194

What is the effective date of severance of status?

• After severance of status:

• Share of coparcener becomes fixed
• No longer susceptible to fluctuation by subsequent births and
deaths. No application of survivorship.
• Karta cannot touch this share even for valid alienations

• From the time of communication to the Karta or other

coparceners when Karta is not present.
• Depends upon the manner of communication of intention
 195

E.g. communication in
person/ communication
through phone

Where
communication and
is coming to
knowledge of Karta
is instantaneous,
severance of status
is instantaneous

When the
coparcener
expresses his
intention to
separate, he
becomes a separate
member even if
other coparceners
are not aware
 196

Where there is a gap

between expression of
intention and it coming
into Karta’s knowledge:
E.g. letter
Date of determination of
status: Date when
communication is put in
course of transmission
Date of calculation of
shares: When
communication is complete,
i.e. when it comes to the
knowledge of the Karta
Valid transactions can take
place between these two
dates
 197

DOCTRINE OF RELATIONS BACK:

• The rule that severance of status takes

place only when it comes to the knowledge
of the Karta, is applied strictly. But where
the expression of this intention was put in
the course of transmission at a former date,
with the application of the doctrine of
relation back, severance would relate back
to the former date and settled rights in
between these two dates will not be
disturbed.
 198

Example: Date of calculation of shares:

• A (coparcener) writes a letter to K (Karta) and posts it on
20 August
• K alienates property on 21 August
• K receives letter on 22 August
• Alienation is binding on the A’s share, even though he
became a separate member on 20 August
• DOCTRINE OF RELATIONS BACK doesn’t affect the
transactions which have happened between 20th August
and 22nd August.
 199

Example: Date of determination of status

• A writes a letter to Karta and posts it on 20 August
• A writes a will on 21 August disposing of his share in the
property (under the classical Hindu law)
• Karta receives letter on 22 August
• The will is valid, because A became a separate member
on 20 August and was empowered to write such a will
• DOCTRINE OF RELATIONS BACK APPLIES here.
 200

What if coparcener dies before communication is complete?

• S (coparcener) writes a letter to K (Karta) and posts it on

20 August
• S dies on 21 August
• K (Karta) receives letter on 22 August
• What happens to the share of S?
 201

What if coparcener dies before communication is complete?

• Share of S passes on to other coparceners by

survivorship
• No severance of status takes place
• Communication must be completed during the
lifetime of the coparcener:
• Exception to the above rule on severance of status
 202

Hypo:
• Rishabh, a coparcener living in Chandiagrh sends an email to his
father Mohanlal at Bombay expressing his intention to separate
from the joint family on 20th May 2014. He then executed a gift of
his share in the property in favor of Helpage India on the same
day. Mohanlal was very busy as the elder brother of Rishabh was
involved in a motor vehicle accident that had seriously injured the
life of a young boy. Mohanlal as the Karta of this joint family sold
the joint family property including the share of Rishabh to pay
compensation to the accident victim in order to bring about a
compromise and to save the eldest son from the prospects of
penal litigation. Due to this incident Karta failed to check his mails
and came to know about the demand of Rishabh only on 30 May,
2014. Rishabh files a suit against the Karta challenging the validity
of the sale. Discuss whether he would be successful?
 203

Hint:
• Intention to separate has been validly communicated to
the Karta of the family. It is true that partition which
occurred on 30th May relates back to 20th May according
to doctrine of relation back. But vested rights are not
affected by this doctrine. See Raghavamma v
Chenchamma, AIR 1964 SC 136
• The Karta sold the joint family property for a “legal
necessity”. So, Rishabh will not succeed in his claim.
 204

Hypo:
• Raja, Sakshar and Atish are three brothers constituting a Mitakshara
coparcenary. Sakshar sends a registered letter on 4.6.2000 to his
eldest brother expressing his unequivocal intention to separate the
joint family. On 15.6.2000 he makes a will of all his property in favor
of Kashish, Sakshar dies on 20.6.2000. Before the receipt of the
letter, Raja alienates some property on 14.6.2000 to pay of the debt
which his father had taken for his personal benefit. The letter sent by
Sakshar actually reaches Raja on 2.7.2000. Examine:
• (i) Whether Kashish is entitled to the Share of Sakshar under the
Will
• (ii) whether the alienation made by Raja is valid
• Will your answer be same if instead of a will Sakshar had executed
a gift deed and bequeathed all his property to Kashish on 15.6.2000
and died on 20.6.2000?
 205

Hint:
• Sakshar died before the letter was received by Raja. So, his death
occurs before the completion of communication to separate.
• For a partition to be effected the separating coparcener must
communicate his intention during his lifetime. If this communication
occurs after the death of such coparcener, partition cannot take place.
Therefore, Sakshar is an undivided coparcener. However, Sakshar has
made a will in this case and S. 30 of HSA, 1956 applies. Therefore,
Kashish will succeed in her claim.
• Raja alienates the property before the letter to pay an antecedent debt
incurred by his father. If this debt is not immoral, it will bind the
undivided interest of all the coparceners. See Brij Mohan,
Raghavamma. Therefore, Sangram’s share in the joint family property
is reduced proportionately to the property alienated to pay father's
debt.
• Even after HSA, 1956 a coparcener is not allowed to make a valid gift
of his undivided coparcenary interest. So, Kashish is not entitled to the
share of Sangram under a deed of gift.
 206

Hypo:
• A Hindu joint family comprised of the father, and his three
sons X, Y and Z. On coming to know that the father was
trying to sell some of the joint family properties without
any legal necessity, X who is aged 30 years walks up to
Karta and says, “I want partition and please hand me my
share”, karta refuses. X executes a gift of one-fourth
share of the property in favor of his friend and dies. Is the
gift valid? Discuss in light of rules relating to demand of a
partition under Hindu law.
 207

Hint:
• You need to show that X died after the completion of
intention to separate from the Hindu joint family.
 208

Coparcener manifests his

intention through filing of a
partition suit
Date of severance of status:
Date of institution of suit in
court as it is an unequivocal
intimation of his intention to
separate
Irrespective of when the decree
is passed
If he dies during pendency of
suit, dies as a separate
member.
Legal Representatives may
continue the suit.
No birth or death can affect
the shares after the date of
institution of the suit in the
court as severance of status
 209

Evidence of Partition:
• Clearest evidence is when partition is done by metes
and bounds and each member is in separate
possession and enjoyment of the share allotted to
him.
• Coparceners do not divide the property physically but
agree to hold the property in defined shares as separate
owners. Written agreement to that effect showing clear
intention
• In absence of any written agreement- cumulative effect
of facts, circumstances and subsequent acts and the
burden of proof is on the person asserting that there has
been a partition.
 210

Can you revoke partition by unilateral withdrawal?

• Partition can be effected by unilateral expression of

intention
• But it cannot be revoked by unilateral withdrawal of
intention
• Demand may be withdrawn before it is communicated
• Once demand is communicated, status is severed and it
cannot be unilaterally withdrawn
• If intention is put into course of transmission but
withdrawn before it reaches Karta, no partition takes place
• It is possible for family members to unite again by a
mutual agreement
 211

Can Partition be reopened?

• Fraud-
• If due to concealment of joint family property, there was unfair
advantage to one of the coparceners,
• More property added after partition-
• property was seized or lost and was recovered subsequent to
partition, some property left out either by fraud or mistake.
• Minor:
• Can be reopened at the instance of a minor only when it is unjust
and detrimental to his interests.
• Extra property partitioned –
• It is discovered that property allotted to a coparcener did not
belong to the joint family, or was subject to mortgage; Coparcener
entitled to compensation out of shares of other coparceners. If
required, partition may be reopened for readjustment of shares
• Female:
• A female entitled to a share not given a share can ask for partition.
 212

Reunion:
• Can take place only between persons who were parties to
the original partition
• Intention necessary to constitute reunion.
• It is implicit in the concept of a reunion that there shall be an
agreement between the parties to reunite in estate with an
intention to revert to their former status, such an agreement
may be express or may be implied for the conduct of the
parties.
• Heavy burden on the party who asserts the fact of reunion.
• Share of properties to each coparcener may have increased or
decreased or may not exist at all. Not necessary to bring back
the properties in the same proportion
• Reunion restores the joint family and coparcenary, Unity of
possession and community of interest, Shares become
fluctuating, and Survivorship applies.
 213

Family Arrangement:
• A Family Arrangement is an agreement between members
of the same family, intended to be generally and reasonably
for the benefit of the family, either by compromising doubtful
or disputed rights or by preserving the family property or the
peace and security of the family
• A family settlement is usually used to settle common
property or joint property that the family owns as opposed to
individual or self-acquired property.
• Firstly, the settlement document must be signed by all the
family members involved.
• The next step is to register the agreement. Family
settlement or agreement, which creates a new right or
extinguishes a right must be registered.
 214

Entitlement & Calculation

of Shares:
 215

Who is entitled to receive a share?

• All coparceners (son, son’s son, son’s son’s son) have a
right to obtain a share on partition. Both minor and major
coparceners have a right by birth.
• Since daughters are now coparceners, they can ask for
partition and are entitled to a share
• Sons conceived at the time of partition, but born after
partition
• Sons conceived as well as born after partition depending
on the share taken by the father.
• Disqualified coparceners are not entitled to ask for
partition and no right to a share on partition.
 216

Rules relating to division of property:

• All members may effect a division among themselves, or Branches may
separate.
• Division between father and sons (per capita)
• Per Capita Distribution: Each person takes an equal share
• Father and son have equal shares.
• Father’s share: His separate property with respect to his sons.
• Son’s share: Coparcenary with respect to male issues, if any. If no male
issues, takes it as a sole surviving coparcener.
• Division between brothers (per capita)
• Division among the branches (per stripes and per capita)
• Per Stripes Distribution: Each branch in the family takes the property as
per stripes as regards every other branch, but the members of each branch
take the property per capita as regards each other.
• Right of Representation of a share of Deceased coparcener:
• Where one son dies during his father’ lifetime, leaving behind male issues,
the branch of the deceased son takes his share, benefit of son’s death
goes to his male descendants, not to collaterals of ascendants.
 217

Allotment to Female members under Classical Hindu Law:

• They cannot demand for partition

• If a partition is demanded by a coparcener, or partition
happens by mutual agreement, following females are entitled
to claim a share:
• Father’s wife
• Mother
• Paternal grandmother
• Severance of status is not enough, females can get a share
only when partition by metes and bounds takes place.
• If a female dies before the partition by metes and bounds
is effected- her share remains in the common joint
property pool.
• Maintenance rights are affected if she takes a share.
 218

Shares of Female members under Classical Hindu

Law:
• Father’s wife:
• Between father and his sons, equal to that of a son
• Widowed Mother:
• Partition takes place between brothers, the widowed mother is
entitled to a share that is equal to the share of the brothers
• Paternal widowed grandmother:
• Partition amongst grandsons, paternal grandmother will get a share
Equal to that of a grandson
 219

ILLUSRATION: Father’s wife:

(1/3) F –W(1/3)

S(1/3)

• If the father dies before effecting a Partition, the son will

take the entire property under the doctrine of survivorship
and the wife will not get anything.
• If the father was married prior to HMA, 1955 and has
more than one wife, each wife will get a separate share on
Partition.
 220

ILLUSTRATION: Widowed Mother

(F)-M(1/4)

S1(1/4) S2(1/4) S3(1/4)

• The term ‘mother’ includes a ‘stepmother’.

 221

ILLUSTRATION: Paternal widowed grandmother: Equal Share of Grandsons

(F)-W (1/4)

(S)

S1(1/4) S2 S3

CALCULATION:
W: 1/4
S1, S2, S3= 1/4
 222

ILLUSTRATION 2: Paternal widowed grandmother:

(F)-W (1/7)

(S1)(1/3) (S2)(1/3) (S3)(1/3)

S4(6/21) S5(6/42) S6 S7(6/63) S8 S9

CALCULATION: Different share of grandsons

W: 1/7
Remaining property: 1-1/7= 6/7
S4: 1/3*6/7=6/21
S5 &S6: 1/6*6/7=6/42
S7,S8,S9: 1/9*6/7=6/63
 223

Share of grandmother: Rule

• A paternal grandmother(father’s mother) cannot herself
demand a partition, but when a partition takes place
between her son’s son, her own sons being dead, she is
entitled a share equal to that of a son’s son.
• She is similarly entitled to a share when a partition takes
place between her son and the sons of a deceased son.
• However, where the son, as well as grandsons, are alive, i.e.
when partition takes place between her son and his sons
(her grandsons); there is a conflict of judicial opinion about
whether the paternal grandmother gets a share or not.
• According to the Calcutta and Patna High Courts (Mithila
school), she gets a share, but the Bombay and Allahabad
High Courts rule that she does not get a share.
 224

THREE STEPS TO
AMELIORATE
CONDITION OF
WOMEN:
 225

Changes in Classical law:

• 1937: After the Hindu Women’s Right to Property Act,
1937 was passed- Widow of a deceased coparcener
has in the joint family property the same interest as he
himself had as for Hindu Woman’s estate and has the
same right to claim partition and allotment of a share to
her as fully male coparcener. Thus, a widow could step
into the shoes of a deceased coparcener and asked for
partition.
• Pre HSA, 1956: Took the share as a limited owner. No
power to alienate the property.
• Post HSA, 1956: Takes the share as the absolute owner
Hindu Women’s Right to Property Act, 1937
• Limited Ownership: Widow’s share in Joint Family
Property (Limitation on Survivorship)
• The Hindu Women’s Right to Property Act, 1937 was the first codified
law which brought some changes to the Classical Hindu Law and
diluted the concept of survivorship.
• It gave a limited right to the widow of a coparcener to hold his share
after his death.
• The limited right means that the widow has a right to enjoy the
property and any income arising out of it, she does not have the right
to sell it or alienate the property.
• When she dies- the property passes on to the coparcenary pool if the
coparcenary exists after she has claimed for partition.
• If the coparcenary does not itself exist (the other coparceners have
also partitioned amongst themselves) the widow’s share after she dies
passes on to her deceased husband’s heirs. (Reversioner)
 Hindu Women’s Right to Property Act, 1937
• Post-1937:
• When a coparcener dies leaving behind his widow, she steps into the shoes
of the deceased coparcener
• His undivided interested does not devolve on other coparceners by
survivorship
• Right to challenge unauthorized alienations
• Cannot alienate by will, gift or sale
• Limited ownership, terminable on death or remarriage
• Right to ask for partition
• On death/remarriage:
• No partition: interest devolves by survivorship to other coparceners
• Partition: Succession traced to her husband on the basis that the property
was his separate property; interest goes to heirs of deceased husband as
if her husband had died on the day when the interest of the woman
terminated. After 1937 Act: widow, predeceased son’s widow and
predeceased son’s predeceased son’s widow became entitled to inherit.
 228
• Section 3, HWRP, 1937:
• 3. (1) When a Hindu governed by the Dayabhaga School of Hindu Law dies
intestate leaving any property, and when a Hindu governed by any other
school of Hindu Law or by customary law dies intestate leaving separate
property, his widow, or if there is more than one widow all his widows together,
shall, subject to the provisions of sub-section (3), be entitled in respect of
property in respect of which he dies intestate to the same share as a son:
• Provided that the widow of a predeceased son shall inherit in like manner
as a son if there is no son surviving of such predeceased son, and shall
inherit in like manner as a son's son if there is surviving a son or son's son
of such predeceased son:
• Provided further that the same provision shall apply mutatis mutandis to the
widow of a predeceased son of a predeceased son.
• (2) When a Hindu governed by any school of Hindu Law other than the
Dayabhaga School or by customary law dies having at the time of his death
an interest in a Hindu joint family property, his widow shall, subject to the
provisions of sub-section (3), have in the property the same interest as he
himself had.
• (3) Any interest devolving on a Hindu widow under the provisions of this section
shall be the limited interest known as a Hindu Woman's estate, provided
however that she shall have the same right of claiming partition as a male owner.
 229

Changes in Classical law: HSA, 1956:

• HSA, 1956: Proviso to Section 6 and the Class I Heirs (Widow, Mother,
daughter) (Notional/Statutory Partition)
• This Act placed further restrictions on the ambit of devolution of joint
family property on the remaining coparceners by survivorship.
• According to the Proviso to Section 6, if the deceased coparcener has
left him a surviving female relative specified in Class I of Schedule
to the Act or a male relative specified in that class who claims
through such Female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by testamentary
succession under this Act and not by survivorship.
• Under Section 30, a coparcener may make a testamentary disposition of
his undivided interest in the joint family property.
• Thus the rule of survivorship comes into operation only:
• (1) Where the deceased does not leave him surviving class I female
heirs (widow, mother, daughter)
• (2) When the deceased has not made a testamentary disposition of
his undivided share in the coparcenary property.
 230

• 30 Testamentary succession. —
• Any Hindu may dispose of by will or other testamentary
disposition any property, which is capable of being so
[disposed of by him or by her], in accordance with the
provisions of the Indian Succession Act, 1925 (39 of
1925), or any other law for the time being in force and
applicable to Hindus.
• Explanation.— The interest of a male Hindu in a
Mitakshara coparcenary property or the interest of a
member of a tarwad, tavazhi, illom, kutumba or kavaru in
the property of the tarwad, tavazhi, illom, kutumba or
kavaru shall notwithstanding anything contained in this Act
or in any other law for the time being in force, be deemed
to be property capable of being disposed of by him or by
her within the meaning of this [section.]
 231

Changes in Classical law: HSA, 2005

• Hindu Succession (Amendment) Act, 2005 and the
Position of Daughter: Daughter as coparcener.
• Complete abolition of the concept of survivorship and the
enhanced status of daughter as a coparcener is the
hallmark of this Amendment Act.
• This Amendment Act has substituted Section 6 with effect
from 9.9.2005
• With effect from this date, the devolution of interest in the
coparcenary property shall be governed by the amended
Section.
 232

Section 6 HSAA, 2005

• In a Mitakshara Joint Hindu family, the daughter of a
coparcener shall
• (a) by birth become a coparcener in her own right in the
same manner as a son
• (b) have the same rights in the coparcenary property as
she would have had if she would have been a son
• (c) be subject to the same liabilities in respect of the said
coparcenary property as that of a son, and any reference
to a Hindu Mitakshara coparcener shall be deemed to
include a reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a daughter of a
coparcener.
 233

CASES
 234

Kakumanu Pedasubhayya v. Kakumanu Akkamma, AIR 1968 SC 1042

W1----------------------F(D1)------------------W2

S1(D2) S2(D3) Minor Son Daughter

• The maternal grandfather of a minor, aged 2 and1/2 years, filed a

suit for Partition on his behalf, as against his father and two major
brothers (sons born from first wife).
• It was stated in the Plaint that the family was in good circumstances, and
that there were no debts owing by it.
• In spite of that the Karta (father), along with his two major sons born
to him from his first wife, were managing the joint family property
in a manner that was detrimental to the interests of the minor.
 235

Facts contd…
• They were selling the joint family properties, including
the share of the minor and out of the sale proceeds, they
were purchasing properties in their individual names.
• The minor was also thrown out of the family house
along with his mother (father’s second wife) and
sister.
• The petition was admitted, but during the pendency
of the litigation, the minor died.
• After the death of the minor, his mother was
recorded as his legal representative, and transposed
as the plaintiff.
 236

Issue:
• What is the nature of the jurisdiction in which the court
exercise when they decide whether a suit is for the benefit
of a minor or not?
• What was the status of the minor on his death? Did he die
as an undivided member of the coparcenary, or as a
separate member?
• Whether the court should continue with the suit, even
though the person on whose behalf the suit was filed is
dead, or should the suit be abated?
• What would be the effective date of severance of joint
status of minor coparcener in case the suit for partition is
held to be for the benefit of minor’s interest?
 237

Analysis:
• The Sovereign as parens patriae has the power, and is indeed
under a duty to protect the interests of minors, and the function has
devolved on the Courts. In the discharge of that function, therefore,
they have the power to control all proceedings before them wherein
minors were concerned. They can appoint their own officers to
protect their interests, and stay proceedings if they consider that
they are vexatious.
• Under Hindu law, there is no distinction between the rights of a
minor and a major coparcener, as far as the coparcenary
property is concerned. His share is equal to that of a major
coparcener, and he has a similar right of maintenance,
possession and enjoyment of property.
• However, as he is minor, the courts act as parens partriae, in order
to protect his interests and assess whether a partition will benefit
him or not.
 238

Analysis
• But even this action, which is purely protective in nature, will not
make the effective date of severance any different in the case
of a minor, than in the case of a major coparcener. Therefore,
where the suit is filed by minor, through his next friend, and
the court comes to the conclusion that effecting partition
would be in the interests of the minor, the severance of his
status would relate back to the date of the institution of the
suit and he would be deemed to be a separate member from
the date when the petition was presented in the court.
• The moment a suit is filed on behalf of the minor the severance
of status takes place, and the only difference between the
cases of major and minor coparcener is, that here, it was
conditional upon the court coming to the conclusion that it will
further the interests of the minor. Till the Court examines this
issue, the status of minor at the time of his death, remain uncertain.
 239

Analysis
• If he died as a separate member, then his legal
representatives will inherit his properties as per the laws of
inheritance, who in this case would be the mother.
• But if he died as an undivided member, then due to the
application of the doctrine of survivorship, the property will
go to the surviving coparceners, in this case, the father and
the two brothers, the same persons who were accused by
the next friend as acting against the interests of the minor.
• As the status can be determined only when the court
decides the case on merits, to determine whether, in the
light of the facts and circumstances of the case, a partition
would have advanced the interests of the minor.
 240

Ratio:
• Minority is not a bar to seek Partition, but a minor cannot
seek partition directly. He can institute a suit for Partition
through a next friend in a court of law. Whether or not a
Partition can be effected, would be subject to the outcome
of the suit. The Court will take cognizance of the situation
and would enforce Partition only when it is satisfied that
the Partition would be beneficial to or would promote the
interest of the minor.
 241

Conclusion:
• The Court came to the conclusion that the father and
two brothers of the minor were acting in a manner so
as to defeat his interests and so, a partition was
desirable.
• It was held that with the application of the doctrine of
relation back, his severance from the joint family took
place on the date of filing of the partition suit and at
the time of his death, he was a separate member.
• Therefore, his share in the property would go by
inheritance to his mother and not to the coparceners
under the doctrine of survivorship.
 242

Puttrangammav.Ranganna,(1968)2SCR119

• The plaintiff (Karta) (Savoy Ranganna) and his three

brothers and their decedents, the defendants (Coparceners)
were living together as member of HJF.
• The plaintiffs had no male issue but only four daughters.
• In order to safeguard the interests of his daughters, since he
became ill (85 years old), he issues a notice to other
coparceners declaring his unequivocal intention to separate
from them.
• At the time of issuing of this notice, his younger brother’s
son was present in the hospital.
• He snatched the notice and attempted to tear it, but was
prevented from doing so.
 243

Facts:
• After the notices were registered at the post office certain
well-wishers of the family intervened to bring about the
settlement. (January 8, 1951)
• On their request he notified to the post office that he
intended to withdraw the registered notices.
• But as no agreement could be subsequently reached
between the parties, the plaintiff instituted the present suit
for Partition of his share in the joint family properties and
for granting his separate possession of the same.
• The daughters of the Plaintiff are appellants in this case.
 244

Facts contd..
• The defendants contention was that there was no
disruption of joint status at the time of death of the Plaintiff
(Karta) either because of the notice or because of the
institution of the suit on a later date.
• As far as notice was concerned, there was no
communication of any such notice to them and, in
any case, the notices were withdrawn unconditionally
from the post office.
• Similarly the institution of suit is not applicable as it
was filed on the day of his death.
 245

Issues:
• Issue: Whether intention for partition can be revoked
after the intention has been communicated?
• What was his status at the time of his death: that of a
separate member or of a joint family member?
• Did the withdrawal of the notice operate as a complete
renunciation of his intention that he has earlier expressed
to separate from the family?
• As he had died on the day the suit was instituted, did it
mean that since no summons were sent to the other
members, the communication was not complete during his
lifetime?
 246

Analysis and Holding:

• The question as to what was his status at the time of his death
was very important to determine the devolution of his share in
the property.
• As he died without leaving a male issue, but four daughters
only, if he was still an undivided member at the time of his
death, his interest in the property would be taken by
survivorship, by the surviving coparceners, and the
daughters will not be entitled to anything.
• However, if the severance was already effected and he, at
the time of his death was a separate member, the remaining
coparceners would not get anything out of his property, as
it will go by inheritance to his four daughters. The brothers
therefore, contended that as he had withdrawn the notice
unconditionally, he had died as an undivided member.
 247

Analysis and Holding:

• The SC agreed with the verdict of the trial court and held
that it is not necessary that the communication must be
through a formal notice, sent through post. Here, even
at the time notice was dictated and signed in the
hospital, one of the coparceners was present.
• Further, the family members, including the coparcener who
knew that a notice to this effect had been sent, tried to
persuade him to withdraw it and agree to a family
settlement, consequent to which only, the notice had been
withdrawn.
• The demand made by the erstwhile Karta was known to
all other coparceners, and therefore, the severance of
such status had already taken place.
 248

Analysis and Holding:

• The withdrawal of the notice did not take place before
the communication of the intention to separate was
made, but took place subsequent to the severance of
status, consequently, the partition had already been
effected, his status had become that of a separate
member and unilateral withdrawal on the persuasion of
family members, so that he could rethink his decision,
could not restore his formal status, more so as the
deceased had instructed his lawyer to file a suit for
partition, that was in fact, filed on the day he died.
• The Court therefore, held that he died as a separate
member.
 249

Holding:

• The court held that there was a unilateral declaration of an

intention by the Karta (Savoy Ranganna) to divide from
the joint family and there was sufficient communication of
this intention to the other coparceners and therefore in law
there was in consequence a disruption or division of the
status of the joint family with effect from January 8, 1951
when Ranganna issued notices.
 250

RATIO:
• “A member of a joint Hindu family can bring about his
separation in status by a definite, unequivocal and
unilateral declaration of his intention to separate himself
from the family and enjoy his share in severalty. It is not
necessary that there should be an agreement between all
the coparceners for the disruption of the joint status.”
 251

QUESTION FOR DISCUSSION:

• Whether the rights of an adopted son are in all respect
identical with that of a natural-born son?
• Whether the adopted son could divest the property
invested in others prior to his adoption?
• DOCTRINE OF RELATIONS BACK:
• The rule that severance of status takes place only when it
comes to the knowledge of the Karta, is applied strictly.
But where the expression of this intention was put in
the course of transmission at a former date, with the
application of the doctrine of relation back, severance
would relate back to the former date and settled
rights in between these two dates will not be
disturbed.
 252

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

• Two Brothers (HJF)

• B1 (Sole surviving coparcener) B2W B2

• (Died:8.2.1978) (Widow: Def. 2) (Died:1930)

• B1S1 B1S2 B1D1 B1D2 B1D3 B2WS

• (Karta) (Pl.) (Adopted Son, Def.)
• (Def. 1) (Adopted on: 10.6.1978)
• B1: Vyankat Rao; B2: Anand Rao; D2: Wife of Anand Rao
• D-1 and plaintiffs are the sons of Vyankat and D-3 to D-5 are the
daughters of the Vyankat. D-6 is the adopted son of D-2. (Dattatraya )
 253

Facts:
• On Death of B1, opening of succession and devolving of properties of the
joint family in his hands vested in his heirs (sons and daughters) as per
Section 6 of HSA. About four months after the death of B1, B2W adopted
a son, B2WS (defendant).
• Apart from that, B1S1(New Karta/Defendant) in collusion with B2W (widow)
got the name of B2W mutated in records showing half share in the property
and got another half share mutated in his name in the suit properties being
the Karta of the family.
• Plaintiff challenged the mutation entry however defendants obstructed their
possession over the suit property. Hence the plaintiff filed a suit for Partition
of his share in the suit property. He contended that Section 12 (c) of HAMA,
1956 precluded adopted son from claiming his share in the already vested
property before his adoption and this restriction is applicable to the
interest vested in the sole surviving coparcener when the adoption was
made subsequent to the death of sole surviving coparcener. Defendants
contended that the adopted son is having a share in the property.
 254

Facts:
• B1 (Vyankat) died in 1978 and the joint family properties
vested in the heirs of Vyankat as per Section 6 of the HSA
(Statutory Partition).
• D-2 (Wife of B2) adopted a son four months after the
death of Vyankat, when already the property had been
divested by virtue of Section 6 of the Act and claimed that
as the date of adoption relates back to the death of
the deceased husband, it should be assumed that D-6
was present at the time of divesting of the joint family
property.
 255

Issues:
• Whether doctrine of relation back i.e. date of adoption
by the widow to the date of death of deceased will be
applicable after the enactment of HSA, 1956 and HAMA?
• What is the real ambit of effect of adoption which for certain purposes
relates back to the death of the adoptive father? Is there any
difference between adoption before and after collateral’s death?
• Whether the rights of an adopted son are in all respect identical with
that of a natural-born son? Whether the principle of relation back is
an absolute principle or it has certain limitations?
• Whether the adoption of a son by the widow of a pre-deceased
brother of a sole surviving coparcener, after the death of that sole
surviving coparcener, makes any real difference in determining
the rights of the adopted son in relation to the family properties?
Whether the said adopted son could divest the property, which
devolved on the heirs of sole surviving coparcener and vested in
them prior to his adoption?
 256

Section 12 HAMA
• 12. Effects of adoption.-

• An adopted child shall be deemed to the child of has or her adoptive father or mother for
all purposes with effect from the date of the adoption and from such date all the ties of
the child in the family of his or her birth shall be deemed to be served replaced by those
created by the adoption in the adoptive family:

• Provided that-

• (a) the child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth.

• (b) any property which vested in the adopted child be before the adoption shall continue to
vest in such person subject to the obligations, if any, attaching to the ownership of such
property, including the obligation to maintain relatives in the family of his or her birth.

• (c) the adopted child shall not divest any person of any estate which vested in him
or her before the adoption.
 257

Section 13 HAMA
• 13. Right of adoptive parents to dispose of their
properties.-
• Subject to any agreement to the contrary an adoption does
not deprive the adoptive father or mother of the power to
dispose of his or her property by transfer inter vivos or by
will.
 258

Holding:
• It is not disputed that the adoption took place after the death of the sole
surviving coparcener. Opening of succession and devolving of
properties of the Joint Hindu family in his hands operated immediately
on his death and his share of the joint family properties stood vested
in his heirs (sons and daughters) as per Section 6, HSA, 1956.
(Statutory/Notional Partition)
• It was held that section 12(c) of the HAMA is a limitation to the
doctrine of relation back.
• In view of the Proviso (c) of Section 12, HAMA, 1956 the adopted
son by virtue of his adoption four months after the death of the
sole surviving coparcener could not divest the properties vested
in the heirs of sole surviving coparcener so as to claim his share.
• Principle of relation back is not an absolute principle but it has
certain limitations. For instance, one limitation is that any lawful
alienations made by the last absolute owner would be binding on
the adopted son. Similarly, to come in as heir of the collateral does
not entitle the adopted son to come in as heir of the collateral.
 259

Ratio:
• On the death of a sole surviving coparcener, his interest in
the joint family property devolves and vests in his heirs
(sons and daughters) as per Section 6 HSA, 1956, and a
son adopted by the widow of another pre-deceased
coparcener will not divest the properties vested in the
heirs of the sole surviving coparcener. The adoptee son
cannot claim a share in such vested property.
 260

Critical Analysis:
• The HAMA, 1956 has narrowed down the rights of an
adopted child as compared with the rights of a child born
posthumously.
• Under the classical law, if a child was adopted by a
widow, he was treated as a natural born child and,
consequently, he was treated as a natural-born child and,
consequently, he could divest other members of the family
of rights vested in them prior to his adoption.
• It is only with the limited object of avoiding any such
consequence on the adoption of a child by Hindu Widow
that these provisions in clause (c ) of the Proviso to
Section 12, and Section 13 of HAMA were incorporated.
 261

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

• Issue: Whether partition- partial or complete takes

away the presumption of the jointness of Hindu
Undivided Family?

• RULE: General presumption is that a Hindu family is joint

and properties are joint family properties but once a
partition takes place in a family, presumption would be
that all properties stood partitioned. Burden of proof of
exclusion of certain property from partition would be on
party who asserts same to be joint.
 262

FACTS:
Deorao Jointly Family Tree

Saluba Deorao

Prabhakarrao-P1(W) Trimbakrao-D-7(W) Eknathrao

P2 P3 P4 (1/2) D-8 D-9 D-10 D-11 D-12

• P-1 is the wife and P-2 to P-4 are the children of the deceased Prabhakarrao s/o
Saluba. D-7 is the wife and D-8 to D-12 are the children of the deceased Trimbakrao
s/o Deorao. Plaintiffs filed a suit for partition for half share in some properties. It was
claimed amongst the property, agricultural land and another plot of land were
bought by the deceased Deorao and Saluba in the name of Deorao jointly.
• A house was said to be have constructed on a plot jointly bought by the brothers.
Both brothers were residing in the same house during the lifetime.
 263

FACTS:
• Another house, it was stated that both the brothers had purchased the plot on
which the house is constructed. It was further claimed that the plot was
purchased in the name of Eknathrao and his family was residing in that
house.
• It was further alleged that there was a family arrangement and one house
was given to Trimbakrao and Prabhakarao and one plot of open land was
given to Eknathrao.
• Eknathrao had the exclusive possession of the second house, which was
not part of the family arrangement.
• The suit property is question was the property which was in name of
Eknathrao and whether that was a joint family property or self-acquired
property of Eknathrao
• There was evidence that Eknathrao had independent means to buy the
property and also was residing exclusively in the property and Prabhakarrao
never lived in the house and in fact was living in rented premises.
• There was also no reason why the property would be bought in Eknathrao’s
name alone if it was a joint family property.
• The Court held the property in Eknathrao’s name to be his self-acquired
property and not joint family property.
 264

HOLDING:
• In this case, the trial court as well as the High Court has
held that there was a complete partition in the year 1985.
• Therefore since there was a partition, the presumption
would be that there was complete partition of all the
properties.
• Consequently, the burden of proof that certain
property was excluded from the partition would be on
the party that alleges the same to be joint property
and not on the person alleging the house which was in the
name of Eknathrao to be self-acquired property.
 265

HYPOS
 266

Hypo:
• A Hindu joint family comprised of five brothers Ashish, Brij,
Chetan, Dev and Emir. Brij who was not happy with the
style of functioning of Ashish as the Karta, filed for
partition against him in a Court of Law, claiming one-fifth
share in the coparcenary property. During the pendency of
the litigation, Ashish died and now Brij wanted to withdraw
the suit, and assume charge as the Karta. Can he do so?
Discuss.
 267

Hint:
• Filing of suit is the most explicit expression of declaration
of intention to separate and the severance of status takes
place from the day the suit was instituted. A decree will
only contribute for working out definite shares.
 268

Hypo:
• One Abhay, who was governed by Mitakshara Hindu law,
died leaving behind his two sons, Lakshit and Mayank.
Mayank died issueless in the year 2000 leaving behind his
widow Akanksha. Lakshit became the sole surviving
coparcener on the death of Mayank. The widow adopted
Ritwik in 2004. In 2005, the adopted son and the widow
filed a suit for Partition and separate possession of one
half of the share in the properties of the joint family.
Before the adoption took place two items of the joint
family properties had been sold in favor of others for
consideration. Is the claim for Partition valid?
 269

Hint:
• Adoption of Ritwik took place during the lifetime of Lakshit
and as such Ritwik became a member of coparcenary to
claim the share. Partition claim is valid but he cannot
object to the alienations made prior to his adoption.
 270

HYPO:
• A joint family consists of F, the father, his wife- W, two
sons S1 and S2 and their wives W1 and W2. S1 and W1
have a son S3. Discuss the share in each one’s hand at
partition.
 271

HYPO:
• A joint family consists of F, the father being the karta of
the family and three sons S1, S2 and S3. S1 has two sons
S4 and S5. F wants a partition from the joint family and
finally effects a complete partition, hence partitioning his
sons and further partitioning the family of S1 as well. S1
and S2 do not want the partition. What is the effect of F’s
decision.
 272

HYPO:
• A dies leaving behind two sons B and C. B dies leaving
behind one son S1 and S1 has three sons S2,S3 and S4.
C dies leaving behind sons E,F and G. E dies leaving
behind one son S 5, F dies leaving behind two sons – S6
and S7 and G dies leaving behind one son S8. What are
the shares that S1, S2, S3, S4, S5, S6, S7, S8 will get.
 273

HYPO:
• A, his brothers B and C are members of a joint Hindu
Family. A files a suit for partition. After the suit but before
the decree of the court, A dies leaving a widow. How does
the share of A devolve?
 274

HYPO:
• A family governed by the Mitakshara School consists of F,
the father, W, the wife and his five sons- A ,B, C, D and E.
A, B and C are married to W1, W2 and W3. D & E are
unmarried. A has two sons S1 and S2, B has three sons
S4, S5 and S6 and C has two sons S7 and S8. D marries
a Christian woman and gets his marriage registered under
the Special Marriage Act in 1975.
• a. F dies in 1980, and there is a partition between the
sons, discuss the shares and nature of property in each
one’s hand.
• b. F dies, W dies and A, B and C die, discuss the shares
in each one’s hand.
 275

HYPO:
• A joint family consists of F and three sons S1, S2 and S3.
S3 predeceases F leaving a widow W1.
• a. discuss the shares in each one’s hand.
• b. If S3 and W1 had a son, discuss the shares.
 276

HYPO:
• A joint family consists of F, the father and three sons S1,
S2 and S3. S2 has two sons S4 and S5. S2 and S4
predecease F. S4 leaves behind a widow W. Discuss each
one’s share
 277

HYPO:
• A joint family consists of F, his wife W, their sons S1, S2,
S3. S1 has four sons S4, S5, S6 and S7 and S2 has two
sons S8, S9 and S3 has one son S10. F and S1, S2, S3
die. Partition between the grandsons is effected. Discuss
the shares of each grandson.
 278

HYPO:
• A joint family consists of F, two sons S1 and S2. S1 has
three sons S3, S4 and S5. S3 has two sons S6 and S7.
S7 has three sons S8, S9, and S10. S10 has one son
S11.
• a. Discuss the shares at partition.
• b. Discuss the shares at partition if F dies.
 279

HYPO:
• A Mitakshara family having coparcenary property consisted of
X, his mother M, his brother B, his sister S, his wife W, two
daughters D1 and D2, his son XS and XS’s wife XSW.
Ascertain with reasons the shares of the claimants on the
death of X if
• (a) X dies in 1925
• ANSWER: Coparcenary property is divided between
M=B=X= 1/3 and X’s share goes to his son XS
• (b) X dies in 1945
• ANSWER: Coparcenary property is divided between
M=B=X= 1/3 and X’s share goes equally to his son XS and
widow W i.e. XS and widow W i.e. 1/6 each due to passing
of HWRP Act, 1937
 280

SOLUTION: X dies in 1925

• Coparcenary property is divided between M=B=X= 1/3 and X’s share goes
to his son XS
• Under classical Hindu law, if X died before demanding partition the family
will remain joint. The share of X in the coparcenary property will devolve by
survivorship to other coparceners XS and B.
• Assuming X died after demanding partition from his brother B, or if a
partition happens between XS and B, following shares can be ascertained:
• M: Widowed mother takes share equal to brothers. M’s share will be 1/3rd
of joint family property.
• B: Brother B’s share will be 1/3rd of joint family property.
• XS: XS will represent X’ branch of family due to application of ‘rule of
representation’. XS will get entire 1/3rd property as he is sole-surviving
coparcener for his branch.
• W: She will not get any share after the death of her husband as XS is the
sole-surviving coparcener.
• D1, D2 and S were not recognized as coparceners and will not be entitled
to any share in the joint family property.
 281

S
O
1
9
4
5nL
U
O
iT
e
sId
N
iX:

• Under classical Hindu law, if X died before demanding partition the family will remain joint.
The share of X in the coparcenary property will pass to other coparceners XS and B by
survivorship. However, W will be entitled to demand her husband’s share by partition.
• Assuming X died after partition with his brother B, or if a partition happens between XS
and B, following shares can be ascertained:
• M: Widowed mother takes share equal to brothers. M’s share will be 1/3rd of joint family
property.
• B: Brother B’s share will be 1/3rd of joint family property.
• C: As daughters were not recognized as coparceners, she will not be entitled to any share
in the joint family property.
• X’ branch will receive 1/3rd of the joint family property:
• W: Under Hindu Women’s right to property act, 1937, the widow of a deceased
coparcener has same interest in the joint family property as he himself had and has the
same right to demand partition. She will step into the shoes of her husband and will be
entitled to 1/6th share in the joint family property and will be limited owner. After her
death, the 1/6th share will revert to S1 being the legal heir of the husband.
• XS: XS will get 1/6th of the joint family property as he is sole-surviving coparcener for his
branch.
• D1, D2 being daughters were not recognized as coparceners and will not be entitled to
any share in the joint family property.
282
 283

• In the above picture, assuming the Lannister family to be

a Hindu Joint family, assess the following:
• a. Shares on partition when partition is effected in 1921
when everyone is alive.
• b. Shares on partition when partition is effected in 1934
after Tywin dies.
284
 285

• The Bachchan family is a Mitakshara family and owns

joint family property worth Rs. 10 crores. Ascertain the
shares of the family members (mentioned in this tree) will
receive on the death of Harivansh Rai with reasons, if
• A) Shares on partition when partition is effected in 1932
when everyone is alive
• B) Harivansh dies in 1936 and a partition is effected
between family members after his death
• C) Harivansh dies in 1948 and a partition is effected
between family members after his death
286
 287

• The Kapoor family is a Mitakshara family and owns joint

family property worth Rs. 100 crores. Ascertain the shares
the family members (mentioned in this tree) will receive on
the death of Raj Kapoor with reasons, if
• a) Raj Kapoor dies in 1932 after partition from his brother
Shammi Kapoor;
• b) Raj Kapoor dies in 1936 before partition from his
brother Shammi Kapoor
• c) Raj Kapoor dies in 1936 after partition from his brother
Shammi Kapoor
 288

HYPO:
• Sohanlal along with his three sons (Manu, Akash and Ranjan)
constitute a Mitakshara coparcenary. Ranjan is displeased with the
other members of the family because of their opposition to his
marriage. He emigrates to Canada. On 10.12.1999 he writes a letter to
his father expressing his firm intention to separate from the joint family
and executes a gift deed of all his properties in favour of his friend,
Kamini. The letter reaches Sohanlal and his family on 3.1.2000.
Sohanlal seeks your advice on the following:
• (a) Whether the intention to separate has been validly communicated?
• (b) Whether the gift deed is valid?
• (c) Whether the selling of an ancestral house in Chandigarh on
20.12.1999 for defending Manu against whom a serious criminal
charge is levelled is valid?
• Will your answer be same if instead of a gift deed, Ranjan had
executed a Will and bequeathed his properties to Kamini on
11.12.1999 and died the same day?
 289

HYPO:

• Ketan had two sons Girish and Sirish. He gave Sirish in

adoption to his maternal uncle, who was not in affluent
circumstances. Sirish complained to his natural father about the
conditions in the adoptive family. Therefore, Ketan wanted to
leave his share by a Will to Sirish. But Girish was opposing his
father’s move vehemently. When Girish went to a nearby town
on business for a couple of days, Ketan sent a letter to Girish
on August 30, 1946 expressing his intention to separate from
the joint family. After posting the letter he executed a Will
disposing of his interest in the joint family property to Sirish. He
died on September 4, 1946. Girish on hearing the news of his
father’s death rushed back only on September 6, 1946; he
received the letter of his father. Examine whether Sirish is
entitled to get his natural father’s interest under the Will. What
would be the position if the facts arose in 2001?
 290

HYPO:
• Three brothers Rohit, Shridhar and Gaurav form a Mitakshara Hindu Joint
Family living in Delhi. Shridhar a stage artist stationed in Bombay, writes a
letter on 6.1.1950 addressed to the Karta expressing his intention to
separate from the joint family and also informs Balu a common friend of the
family living in Bombay of his intention. Intending to post the letter, while on
his way to rehearsal of a play he carries the letter. His pocket gets picked in
a bus and he loses the letter along with all his money. In the meantime, on
10.1.1950 Balu who goes to visit Shridhar’s family conveys to the family
Shridhar’s intention to separate. However, on 8.1.1950 a suit instituted for
recovery of debt against the family was decreed and a portion of the family
property was attached in furtherance of the decree. Balu on returning back
to Bombay informs Shridhar that he has conveyed to his family of his
intention to separate. Shridhar also receives a letter from Rohit informing
him of the attachment of the property by a court decree. Decide:
• (i) Is Shridhar still supposed to be Joint with his family or severance of
status has taken place?
• (ii) How does the court decree affect his share in the joint family property?
 291

HYPO:

• Kamal, a male Hindu governed by Mitakshara School, had two sons

Ganesh and Saurabh. The family lived in Bombay. Ganesh was a
business executive with a multinational firm and lived in a rented
house in Delhi along with his wife Hemalata. Unfortunately, Ganesh
met with a road accident on 25h March, 2015 and was admitted to
a private nursing home. He wrote a letter on 20th March, 2015
expressing his intention in in unequivocal terms to separate from
the joint family. He executed a Will on 26th March, 2015 with
respect to his undivided interest in favor of his wife Hemalata and
died on the same day. The letter was delivered to other members of
the family on 30th March, 2015. Hemalata, being the only heir of
her deceased husband, claims the coparcenary interest of her
husband under the Will? Can she succeed? Give reasons.
• Also discuss her claims under the following circumstances:
• (i) If Ganesh had died without making a Will.
• (ii) If Ganesh had died in 1954 after executing a Will.