FAMILY LAW

JHF

 JHF or Joint Hindu Family is not defined anywhere.

 It is just implicitly mentioned in Smrithis and Shruthis.
 Mitakshara and Dayabhaga are the two schools that give authority to JHFs even after the
codification.
 The primary ingredients of JHF are as follows
a. Joint- All the members must be joint. Some of the determinants of whether a family
is joint are
1. Worship- If the members are worshipping or offering prayers together, they are
joint.
2. Food- Members who share food may constitute a JHF
3. Income- One person may get income and this may be divided and given to the
members. Then it is considered as joint hindu family.
4. Estate- If they stay at the same estate- they are considered joint.
5. Status- This is the most important criterion. If the members present themselves
as belonging to a JHF, they are considered as members. However, in case of
confusion, another criteria is considered, which is whetehr the JHF property has
been partitioned before by the forefathers.
b. Hindu- If a person isn’t hindu (even if it is done through conversion), they are not
considered as a part of the JHF. The requirement is that they should be considered
hindu by birth, adoption or inclusion in the family.
c. Relations- By blood and adoption
 Who can be a part of the JHF- A JHF consists of all those who have lineally descended
from one common ancestor and includes their wives and unmarried daughters of the Joint
Family. A JHF includes
a. Linear connected members connected in the male line- This will be considered from
the descendants of the eldest son.
b. Collaterals
c. Relations by adoption
 d. Poor dependants
e. Son/daughters born out of marriage under the Special Marriage Act

Who are not members of the JHF

a. Married daughters- After marriage, daughters are considered as a part of the

husband’s family. However, she can re-join back into the family upon her husbands
death, upon the will of the father, who can rejoin her after taking due consent of all
members of the JHF. They are however not considered equal to daughters, who
are members out of their own accord, and will be given lesser share in the
property
b. Convertees- If anyone enters into marriage with a non hindu, or converts himself,
they are ousted from the family on the grounds of being a non hindu.

2005 AMENDMENT

 S.6(1) of the HSA- If any daughter is there within four generations of the senior most
known ancestory, then she is also considered as a coparcenary. She is a coparcenary
irrespective of whether she is married or not (If she is married her subsequent generation
wont be a coparcenary, as she is a member of another family.
 S.6(3) of HSA- If a deceased male is a coparcenary, then whatever share he had in
property will be given to the widow and legal heirs. Widow will get share in property
which will be distributed among all legal heirs.

RIGHTS OF MEMBERS OF THE JHF

 Right to maintenance- It is to be given to all ordinary members of the JHF. It is an

absolute right which can be invoked against the karta of the JHF.
 Right to residence- It is available to all members. Karta is duty bound to provide
residence to all. Every member has the right to enjoy ancestral or common stock
property.
 Right to joint possession- Every member has the right to enjoy ancestral property.
  Right to joint enjoyment- Rents from property leased out. Here every member is
entitled to it.
 Right to partition- All coparceners have the right to ask for partition at anytime. It is an
absolute right.
A JHF comes to an end upon (1) death of all members or (2) partition. The Karta has to
give effect to such partition.
 Right to call for accounts- Only a coparcenary can ask for the account.

Property which is divided at time of partition is always ancestral property. When the bigger
JHF comes to an end, smaller JHFs are formed.

MANAGEMENT OF THE JHF

 Management of the JHF is done by the Karta, who is a common ancestor and the
seniormost person. However a person need not be a seniormost person as long as
consent of all the members are taken.
 The partition is enforced by the Karta- He is the manager of all affairs of the family.
 According to the original Mitakshara, a Karta cannot be a female.

COMPARISONS BETWEEN JHF AND PARTNERSHIP

Criteria JHF Partnership

Creation By status By contract
Share No definite share Definite share
Interest By birth By contract
Dissolution By partition Act of the parties
Death of members Does not result in dissolution Death of partners result in
dissolution
MAJOR DIFFERENCES BETWEEN MITAKSHARA AND DAYABHAGA

Mitakshara

 Coparcenary property can be divided only between the coparcenaries (Not the widow or
other persons etc)
 1937 Deshmukh act- widow could only get the husbands share. This could be enjoyed
only by the husbands share- This could be enjoyed by her only during her life (could not
transfer it)
Now the law is that when the husband is dead his share would be given to the legal heirs.
 Karta can partition property only with the consent of the coparcenaries, unless a situation
of emergency.

Dayabhaga

 Father has absolute right over the property (They gave no concept of coparcenary). More
similar to Hindu Succession Act.
 The property is transferred only on the death. Even upon death, the property will pass
only to the next generation (No concept of coparcenaryship like Mitakshara)
 The widow is also entitled to property when the property is transferred from the father
(Mitakshara didn’t recognize right until the Deshmukh act).
The share of the widow is absolute.

RANDOM TRIVIA

 JHF is not possible with just one member

 JHF with one male and other female members- it is possible.
 JHF with all females- It is possible. But if possibility of adoption is there, then it may
continue further. If female members decide, they may discontinue.
 Whether female members can blend their own property in the JHF?- Coparcenaries and
ordinary members can contribute to the common stock of the family. Mitakshara school
does not permit female members to contribute, as they are not considered coparceners
 Status of JHF- JHF is a juristic person- It has to be represented by the Karta always. It
can be sued.
Mitakshara property devolution

 Property devolution- happens through survivorship

 Any descendant will get the right over mitakshara ancestral property. Ancestral property
refers to the property received from three ascendants.
 Common stock of the JHF- everyone can contribute from their own self acquired
property- This would become JHF property.
 Coparcenary can receive share of ancestral property by demand (through partition)
 Due to the transfer of property by birth- It is called unrestricted heritage.
 Post 2005- Rights continue even after death- it was not there under the original
mitakshara.
 If Karta doesn’t provide for maintenance of the minor, then the guardian on behalf of the
minor can enforce his interest.
 Concept of coparcenary- Narrow body of persons within a joint family and consists of
the father plus 4 generations counted from the oldest generation. Post 2005, daughters are
included as coparcenaries, irrespective of their marital status.
 Devolution works on the doctrine of fluctuating interest- Interest of each of the
coparcenary member’s increases and decreases with the birth and death of new members.
However, after the 2005 amendment, interest of the dead person was required to be given
to the legal heirs. Therefore, all the coparceners properties wont be affected (doctrine
abolished).
 Determinant of share- Share of each coparcenary fluctuates with the death of other
coparcenaries according to the doctrine of fluctuating interest.. Now this doctrine
somewhat stands abolished. Earlier after death, his share was given to other
coparcenaries. Now deceased persons share is given to the legal heirs. Hence the
share does not fluctuate.
Aspects of property devolution under Hindu law

 Sole surviving coparcenaries- If all the coparcenaries are dead but one, then it results in
a sole surviving coparcenaries. Such a sole surviving coparcener will be the karta, and
considered as the true owner of the family. He has to now provide for maintenance for all
the wives of the deceased coparceners. However, he gets the absolute right to do
whatever he wants with the property.
 Devolution of property for widows- In 1937, deceased coparcenaries share was given to
the widows. However, this was for their sole enjoyment during the lifetime of the person.
After death, their interest would be transferred to the sole surviving coparcenary.
2005- Share of coparcenary is to be given to the legal heirs. In such a situation, the
widow will get absolute right over property.
 Abolition of doctrine of fluctuating interest- no more doctrine of fluctuating interest-
Now after death of a coparcener- the property will go to legal heirs- not other
coparceners.
 Conversion- Under HSA the property upon conversion devolves differently for three
categories
a. Person changing the religion- The person will lose membership in the JHF as soon
as he converts. Status will be gone forever. No longer entitled for maintenance,
residence etc. He is expelled from the JHF. He will be coparcenary but not a member
of the JHF. He cannot enforce he partition. However, when other person enforces
partition, he is entitled for his share.
b. His wife- There wont be any effect on the wife’s status in the JHF. If wife converts,
husband will continue to be a part of the JHF.
c. His child- Conversion effects the status of the child
1. If the child takes birth after conversion, then the religion of the father will be the
religion of the child. Hence he wont be a part of the JHF.
2. If the child is already there at time conversion, then his status won’t be affected.
 3. Child takes birth after conversion but parents mutually decide that the upbringing
of the child will be according to Hindu law- then childs status wont be affected.
(Provided at least the mother or the father is still in the JHF).
4. If both parents convert, then they cannot decide to have hindu law for the
upbringing.
 Marriage under other law- If marriage is with hindus under SMA- No change except
that their property will be governed by the Indian Succession Act. If marriage is with a
non hindu under SMA- he will be expelled from the JHF. That girl also cannot be a part
of the JHF.
Ex- A married a non hindu girl. A is dead now. His property will be given to the legal
heirs. Hence she will get the property. But if partition takes place while A is alive, girl
wont get anything.
 If a minor coparcener child is given in adption- Under HAMA, child will lose all
rights in the previous family. He will secure property in another family. If the property is
on his own name, only then will it stay with him.
In Mitakshara school, child will lose all membership and status in his previous family. If
he is a coparcener in another family, he will get right.
HSA is however silent on whether when one child is adopted by another JHF
member, then he will get the right.

ILLEGITIMATE CHILD

 Coparcenaryship does not extend to the illegitimate son. Suppose one person has one
legitimate and another illegitimate son, he wont be considered either as a member of the
JHF or the coparcenary.
 HSA does not provide any right to illegitimate child- Mitakshara system provided
illegitimate child with rights over his mother’s property. (Mother anyways does not have
rights over ancestral property).
 Illegitimate child was further entitled to his fathers own property (self acquired property).
 The two rights are however different
a. Mothers property- illegitimate child can claim it
 b. Fathers property- father may or may not give the property.
 Rights of illegitimate children over the years
a. Deshmukh act 1937- Widows were given the right. Still no right was given to
illegitimate children (not even after death of the mother)
Mothers property given back to the family, as the property was first of all given only
for her ‘use’.
b. HSA 1956- This too was silent as the mitakshara property was left untouched.
c. 1976 Amendment- Without amending the HSA, by amending the HMA illegitimate
children were given equal rights in the property. However, this right did not extend to
ancestral property.
d. 2005 amendment- The new S.6(3) was introduced, according to which the right in
coparcenary property was to be given to legal heirs. However, illegitimate children
were already included within the term legal heirs. Therefore , confusion was created
as the HSA did not want to interfere with devolution of Mitakshara property.

C- Revasiddappa v. Mallikarjun-

Q- Whether illegitimate children are entitled to ancestral property after the death of the
husband and also as a coparcenary?

Held- Indian constitution treats all citizens equally and confers equal rights. This right to
equality does not discriminate between legitimate and illegitimate children. Relationship
between parents may not be sanctioned by law but they continue to be parents of the
illegitimate child. Child should not be punished. All kinds of properties have to be
distributed equally.

Current position- Right is extended to illegitimate children to o with regard to ancestral

property. Illegitimate child is considered equal to legitimate child in fathers self acquired
property. Absolute right given to child which was earlier at the discretion of the father.
MITAKSHARA V. DAYABHAGA

Criteria Mitakshara Dayabhaga

Acquisiton of right by the By birth By virtue of death
son
Father’s power to This power is limited Karta is the absolute owner of
dispose/sale property- no difference
between self acquired and
ancestral property
Sons right to claim partition There’s right because of Right will arise after death of
community of interest the father, hence no right
Interest in ancestral By birth No such concept
property
Constitution of If all are dead, the last will be Share of every coparcenary is
coparceneryship the sole survivorship fixed- No coparcenary until
father is alive.
Widow coparcenary No Widow can be considered
coparcenary- not mandatory-
at the desire of coparcenaries
if they want to consider
Female coparcenary Yes as shares are not defined- In Dayabhaga- no as the
everyone’s a joint owner shares are not fixed until
death
Unity of ownership Yes as shares are not defined- No as there is no fixed share-
Everyone are joint owners They may have possession
but not ownership.

RIGHTS OF A COPARCENARY

 Right to ask for accounts- This right can be exercised under three conditions
a. Partition
 b. If coparcener wants to know when the nature of business is such that accounts are
required to be maintained
c. If coparceners think that the karta is involved in some fraud or mismanagement
 Right to maintain his interest- He cannot renounce half of his interest- If he renounces
he has to do so completely.
 Right to restrain improper acts of other coparceners- If any coparcenary is creating
nuisance, then others can restrain him.
 Power of coparcenaries to sale, alienate the share- Karta can sell/ alienate the property
in case of legal necessity. Undivided interest can be sold/alienated if there is money
decree- decree of court- can be transferred to anyone after decree of court.
Eg- Suit has been instituted- before final judgment- coparcenary dies then in such a case
court cannot attach property. Post 2005, because of notional partition, money will be
taken from the legal heirs.
 Right to challenge unauthorised alienation of property- Duty of the coparcenary can
challenge unauthorised alienation if not bonafde. If sole surviving coparcenary is there
and a child is conceived- then the child has the right to challenge the alienation.

KARTA

 He is the head of the patriarchal joint family system

 Generally the seniormost member of the JHF- As long as the father is alive, he is a karta.
Upon his death, it passes on to the senior most male member, who may be the uncle id
the coparcenary consists of the uncle and the nephews

Can a junior member be a karta

This matter has been considered in two cases

C- Narendra Kumar v. CIT Commissioner- SC held that if the seniormost member does
not perform his duties and relinquishes his right as a karta, then the junior member can
 become a karta. However, even in this case if the coparcenaries are not giving consent, he
cannot become Karta (In such a case the next seniormost person becomes a karta).

C- Tribhovandas Haribhai v. Gujarat Revenue- Gave six conditions on which junior ca

became karta

a. Senior member is not available

b. Karta relinquishes right expressly or by necessary implication
c. During his temporary absence, in exceptional and extraordinary circumstances such as
distress or calamity which affects the entire family
d. In absence of father
e. Where the Kartas whereabouts aren’t known.
f. Karta was away in a remote area due to compelling circumstances and his return is
unlikely and not anticipated.

Other features of Karta

 Can 2 members act as a karta in JHF- Generally no, yes in some cases. Ex- when the
business is large and the business cant be managed by one person, then the potfolio can
be given to another person. But this is an internal arrangement. The Karta will only
represent JHF.
 Decree against Karta- If one decree has been passed in favour/against Karta, he
represents the JHF (and does not act in an individual capacity, then the principle of res
judicata will apply. Cannot go to court multiple times for the same issue.
 Status of widow/ son in JHF if they have taken undivided interest of coparcenary in JHF-
a JHF member cannot challenge alienation of JHF property if Karta and other
coparcenaries have consented to it. This is because they have no interest in the property.
 Son/daughter of married daughter cannot claim maternal grandfather’s property.

Duties of Karta

 Managing the affairs of the JHF

  Maintaining books of accounts, filing tax returns of JHF, maintaining other members of
the JHF
 To enter into contracts, or refer on behalf of the JHF.
 Can start a new JHF business with the consent of all the coparcenaries.
 Not to alienate coparcenary property.

Powers of karta

 Power over income and expenditure

 Power to enter into contract (any contract which affects the affairs of the JHF)
 Power to refer any dispute to arbitration.power to represent parties in arbitration
 Power to enter into compromises
 Power to represent in suits
 Power of alienation of joint family property. Which can be exercised
a. During ‘apathkale’- Emergency’
b. ‘Kutumbatker’- For family
c. ‘Dharmarthe’- Performing religious duties

New three requirements are

a. Legal necessities (Includes apathkale and kutumbarthe)

b. For the benefit of the estate
c. For the performance of religious and indispensable duties.

Kartas power of alienation

 This power generally comes in two ways

a. Express- With the express consent of all parties
b. Judicial- Justified in the eyes of the law
 While exercising this power, the karta is required to be a prudent man. This means that
a. There must be a need or a requirement
b. Must be for a lawful purpose
Other points on Karta

 Legal necessities in which karta can alienate include- food, shelter, payment of debts,
payment of government duties for medical care of members of the family etc.

Females as Karta

 Prior to 2005- females were not considered as coparcenary- did not have any rights.
 Female members would become karta only if male karta is a minor (she discharges this
duty as a guardian of the minor child). She could also be a karta if there are no male
members in the family

Cases- widows and daughters as Karta

 CIT v. Govindram Sugar Mills- SC held that only a coparcenary can become a karta.
As a woman is not a coparcenary, she cannot become a karta. This was also reiterated in
the decision of Shreya Vidyarthi v. Ashok Vidyarthi (Both were in the context of
widows).
This however does not mean that the mothers of a minor karta cannot discharge duties on
his behalf.)

Daughter’s rights

 Under S.6(3) of the HSA- property devolves equally to both sons and daughters. Upon
death of coparcenary, ancestral property too divides as self acquired property equally
among all heirs.
 S.6(1)- Daughter can become a coparcenary of her own right, and has equal rights as a
son.
 Daughter can become a karta too, as
a. She is an eligible coparcenary
b. She can be the eldest member

Mr Sujatha Sharma v. Manu Gupta-

Q- Can married or unmarried daughters be considered as Karta of JHF?

 D- S.4 of the HSA has an overriding effect. Old law will apply where the act doesn’t
extend. S.6(1) and S.6(3) does not mention anything, so she can’t be a Karta.

Held-previously only disqualification was that female should be coparcenary – now the
distinction is removed – so even married or unmarried daughter can become karta.

PARTITION

Essentials of partition

 At least two coparceners (two members wont suffice)

 Intention of the members/member
 Existance of the property is not essential
 Reason of severance is immaterial
 Division in metes and bounds are not required (Exact demarcation if each share is not
required- share is fixed but exact demarcation is not required)

Partition- how it works

 For Partition to be initiated, the intention of partition must be expressed to any of the
coparcenaries. The share ot be granted to the coparcenary would be that which she is
entitled to at the time of expression of the intention. Subsequent births and deaths
wouldn’t affect this.
 Property which cannot be partitioned according to manusmriti- These include
dress/food/vehicle/ property for pious use/ slave etc/

How partition may be affected

 Mutation- Document maintained by municipality. Earlier property in name of karta.

Now members will register their names.
 Court
 Demand notice of partition- If karta is not available then DN can be given to other
members.
  Reference to arbitration for partition
 Agreement among JHF members and declaration
 Family arrangements

Who can claim partition?

 Major son
 Grandson- cannot ask for partition if the father is still alive (only in Maharashtra, son
cannot ask for partition when the father is still alive without his consent).
 Daughter- After the HAS amendment, daughter has the same rights as a son.
 Adopted son- If a natural son is born after the adopted son, the adopted son would get
only one third of the right of the natural son. The status of the two sons would be equal
and they will incur all rights and liabilities. The same is the case even for illegitimate son.
 Minors- They cannot ask for partition by themselves. They can only ask through a
guardian or a next friend. Even this will be granted by the court only if they prove that it
is for the benefit of the minor.
 Widows- Post 2005, share in deceased persons undivided property- Earlier widows did
not have the right to ask for partition- post 2005 she can ask for partition.
 Insane/ lunatic coparcenary- He can ask for partition after recovery
 Illegitimate son- Same as natural son- Post 1976 amendment he can ask for partition.
 Converted coparcenary- The share of a coparcenary will be fixed as and when he
converts- share remains fixed irrespective of subsequent changes. Under S.19 of the
HSA- marriage under other religions, as per the HSA, it would be considered as if the
person is expelled. The new S.21A states that if the person marries a Hindu, Buddhist,
Jain etc- S.19 and 21 wont apply. (Earlier even if marriage was with hindu if done under
SMA- expulsion would happen if the marriage is under the Special Marriage Act).

When alien to the family ask for partition?- If there is a money decree to which an undivided
interest has been attached by the court, the beneficiary of such decree ask for partition.

Adjustment of claims- Before invoking partition, any debt in name of JHF will be paid out first.
Duty of karta to make proper provision for maintenance for dependants. (who will not get any
share after partition).
(Impt point- On murder a person becomes disqualified- but his descendants don’t become
disqualified- indirectly he can get the property- this was when the law was amended- however
now, the law says that descenedants are disqualified- but it doesn’t say anything about siblings.)

Reopening of partition

In order to settle the gaps

a. If son is conceived before and born after partition- lawful guardian of the child can
claim for the property.
b. If son is conceived and born after partition- child here does not have rights (no
question of determination of share)
c. Disqualified coparcenary on ground of some inability, after removal of disability –
Disqualification can happen on the grounds of (1) murder (2) conversion.
d. Missing coparcener- This is due ot the presumption of death under the evidence act-
coparcenary can ask for partition upon coming back.
e. Minor on attaining majority
f. Unfair advantage by coparcener by fraud
g. Property does not belonging to coparcenery property
h. Heirs of disqualified coparcenery
i. Fraud/ misrepresentation/ coercion.

If any person entitled to the share either doesn’t receive his share or feels that he deserves
more property, then he is entitled to reopen the partition. However, the partition cannot be
reopened if one explicitly consents to the terms, even if they are unequal.

Family arrangement

This is an arrangement made by family members primarily to avoid partition. The main logic
behind family arrangement is

a. Intention or demand notice of partition

b. To avoid litigation
c. To retain joint status
Characteristics

a. Shares as per mutual agreement between members as opposed to share based on status of
partition
b. Diversion for convenient enjoyment- based on mutual enjoyment of family arrangements
as a part of the property which they enjoy
c. This is done to avoid partition
d. No end to joint status.
e. Legal validity- courts would allow for family arrangement only if these conditions exist
1. Bonafide intention of coparcenary
2. Terms are fair
3. Agreement of members are there

Difference between partition and Family arrangement

 Partition may be effected unilaterally while family arrangement cannot

 Family arrangement is done to settle dispute with regards to share to conflict- partition
may not
 Coparcenery can only affect partition- other members may also enter for family
arrangements (not just coparceners).

Reunion

 This concept comes into effect only after partition

 This can be done only by those members who were the original members of the partition
 Reunion can happen only among between the father, the brother and the paternal uncle
(This is followed in most mitakshara schools, dayabhaga and madras school).
 In Gujarat and Mithila schools, reunion can happen with all members who were part of
the original partition.
 In case the members have either increased their share (through investments etc) or lost
their share, it does not mean that the members would retain the original share prior to
partition. It is completely based on the intention of the members.
  Conseequence- they become on JHF.

HSA- PROBLEMS AND SHIZZ

Law of inheritance- applicability

 Governs the right of hindu man/woman in the intestate property.

 Applies to Hindu, Sikh, Jin and Buddhist communities
 Recognizes absolutes right of woman’s property.
 There are two schemes, one applicable for males and the other for females

Applicability (S.2) –

 Hindu
 Other religions if they are able to prove that they are not governed by any other personal
law at the time being (S.2(c) ).
 Legitimate and illegitimate children (Illegitimate children are governed by the mother’s
religion)
 Convertees

Important terms

 Intestate (S.3g)- Person has died in such a state that his property has not been disposed
off by testamentary disposition
 Heir- There is a difference between heir and a legatee (legatee is a person in whose
favour a testamentary document is executed).
 Descendants
 Ascendants
 Collaterals (Family of your brothers/cousins family)
 Full blood (Same mother and father)
  Half blood (Father same and different mothers).
 Uterine brother (Same mother and different fathers).
 Agnates- comes beyond class 1 and 2 herirs- One person is said to be an agnate of
another if the two are related by blood or adoption wholly through males.
 Cognate- same as agnates with a female in between

Features of the HSA-

 Law relates only to intestate property- wont apply to JHF, ancestral property except in
situations mentioned under S.6.
 Order of succession is provided under S.8. The order given for males and females are
different. (Earlier females property was not considered legitimate, and the sources of their
property are different).
 HSA is not applicable to persons who contracted, their marriage under the SMA (ISA for
succession)
 Unlike customs, HSA provides for rule based offering on an offering of Pindas
 Remotest agnate and cognates can also be the heir
 Right of residence to unmarried daughters widow, women deserted by husband- given
under S.23 of the HSA (has been repealed)
 Status of converts and descendants of convertees (S.26)
 Disqualified heir- S.27
 Defect/ diseases has been given as grounds for exclusion
 Unborn child and his status (S.20)

S.4- Overriding effect of the HSA.- In case there is any conflict between any text and
interpretation of hindu law and usage with current law- then the old law would be invalid and
this act would have an overriding effect.

S.8- General rule of succession- In case of males- heirs of a male hindu are divided into four
categories, namely

a. Class 1
 b. Class 2
c. Class 3
d. Class 4

S.18- Full bloods will be given preference over half bloods

S.30- Gives right to males to create a will for the undivided interest (it cannot be sold, but can be
gifted in certain cases). After 2005, females are given a right to execute a will regarding their
undivided interests too.

Applicable situations

 Must be after death of male/female

 Left behind some property
 Not made any valid will to such property
 Male/female died after HSA
 Separate property and undivided interest in joint property as per HSA.

Not applicable situations

 Testamentary disposition (S.30 HSA)

 Coparcenary property (except undivided interest).

Additional features

 If self acquired property has been inherited by any legal heir, then it will be considered as
SA and not ancestral property after enactment of HSA.
 If undivided interest of a coparcener who died before partition, interest will be distributed
among his legal heirs as self acquired property under S.6(3) of the HSA. (Their original
share as coparcener remains as ancestral property though.

DEVOLUTION RULES AND IMPORTANT STUFF

S.9- Devolution under each class

 Class 1- shall take simultaneously to the exclusion of all heirs

  Class 2- those in the first entry of class 2 shall be preferred over those in the second

S.10- Rules of succession in class I

 R.1- Intestate’s widow, or if there are more widows than one, all widows together, shall
take one share.
 R.2- The surviving sons and daughters and mother of the intestate shall each take one
share.
 R.3- The heirs in branch of each pre-deceased son or each predeceased daughter of the
intestate shall each take between them one share
 R.4- The distribution of shares of properties devolved under R.3
a. Among heirs in the branch of predeceased son- widow +sons + daughters
b. Among heirs in branch of predeceased daughters – sons + daughters

S.11- Division of property among class 2

Property of an intestate shall be divided between the heirs specified in any one entry in class 2 of
the schedule so that they are shared equally.

S.12- Rules for agnates and cognates

 R.1- Of the two heirs, the who has fewer or no degrees of ascent is preferred
 R.2- Where the number of degrees of ascent is the same or none, the one who has fewer
or no degrees of descent
 R.3- Where neither heir is entitled to be preferred to the other under R1 and R2 they take
simultaneously.

S.13- Determining succession for agnates and cognates

 For the purposes of determining the order of succession among agnates or cognates,
relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent
or degrees of descent or both, as the case may be.
 Degrees of ascent and descent shall be calculated inclusive of the intestate.
 Every generation- constitutes a degree wither ascending or descending.
SPECIAL RULES OF DEVOLUTION

 Under son category

a. Legit son- comes under class 1
b. Illegitimate child- may not be considered for property from his brother/sister/ Both
1956 and 1976 amendment- gives rights only to parental property.
c. Son begotten but born after death of propositus- Gets a share- one determined
share is reserved (Earlier under the mitakshara- if child was a girl the property could
be distributed)
d. Adopted by propositus- Adopted at the time of partition- would get the same
treatment of adopted son
e. Adopted by widow- Unlike the last instance- adopted child was adopted here only
after death of propositus- here wont get any property, as when the opening if
succession happened, the child wasn’t in existence
f. Step son- Class 1 includes only legitimate and illegitimate son- only for stepson to
get property is through class 3 and 4.
 Widow
a. One or more widow- They are entitled to get a collective share
b. Remarried- Generally remarriage was disqualification- However the determining
point is the time of opening of succession- fact that she remarries isn’t of any
consequence.
c. Unchaste- not relevant- only relevant to stop maintenance under S.18 of the HAMA.
 Daughter
a. Married and unmarried daughter- They will get the property
b. If predeceased daughter has no legal heirs and leave only husband- then wont
husband get any property. The property will go to the mother (principle- property
should continue in the propositors family only
 Mother
a. One or more than one mother- they will all get the status of step mother- they will
collectively get a share.
 Full blood brothers will get preference over half blood brothers
  Convertee- Convertee does not lose rights- descendants may lose the rights though, if
they done follow Hinduism.

Do from notes

 Per capita and per stripe

 Daughters devolution- S.6

a. S.6 was amended in 2005- right of daughter in coparcenary property. The 2005
amendment gave rights to daughter in coparcenary property of JHF.
b. Daughters got rights in father, GF and mothers property in the HSA
c. 2005 amendment is applicable only to mitakshara school
d. Coparceneryship after 2005 is since birth and all daughters in existence at the time of
divisin of property post 2005 will get the right- They claim the same right at death.
e. Same rights as that of son- no disqualification- They are also subjected to equal
liability
f. Any alienation affected before amendment will not be affected. Daughter may form a
small JHF with her own father but not an entire JHF. The property is exhausted by
partition so no joint stock remains

Relevance of the time of birth of the ddaughter

a. S.6(1) created rights in the name of the daughter- then what is relevant at the time of
birth of the daughter?
C- Prakash v. Phulavati- Q- When the daughters are already there in existence
before the amendment, whether 2005 amendment will be applicable.
H- Interpreted S.6(1) and said that it will always remain prospective. Daughter
existing at the time of the amendment and subsequent birth of the daughter will have
right over property as a coparcenary.
They also looked at the use of the language of S.6(1) which says ‘daughter of the
coparcenary’ which makes it eligible. Therefore,
Any daughter of coparcenary will get property after 2005. Coparcenary means
existing father. Thus both the fathers and the daughter need to be alive to have
 effect of the 2005 aemndemnt. If father is dead before the amendment then the
amendment wont apply
b. The judgment went behind the logiv that what had been done prior to 2005 couldn’t
be undone, reopened and reconsidered. Rights can be created only for fathers and
daughters who are alive.
C- Suman Surpur and Anr v. Amar (Dannamma v. Amar)
After the Phulavati judgment, various Hs gave opinion against the decision. Therefore
here the Phulavati judgment was reiterated.

 Females right in the property

a. S.14- Daughters property- it is under S.14,15,16 and 17
b. Property may be of different natures
1. S.14- property on which females has absolute right only can be divided-
2. S.15- Property there with female through partiion, will etc. is considered as
absolute property (having absolute rights).

But in cases of son, the property received in partition is not absolute property- It is
considered as ancestral property

c. There is a difference in the devolution of ancestral coparcenary property- any

right received by males in ancestral property on partition will remain as ancestral
property only. However for females it is considered different, and the female gets
absolute right upon partition. This is because the children will be considered as a part
of the fathers JHF upon partition. This is through S.6(1) and S.6(3)
d. Under S.6(3) now, the widow now holds the property in absolute terms.

Devolution difference- notionl partition.

a. S.6(3)- Any property which gets divided under S.6(3) of the HAS will be considered
as self acquired as it gets divided under the HAS- The nature of the property converts
into self acquired property. This was to solve the problem of multiple JHFs.
However this still applies only on death. If the property is partitioned it will still
devolve as ancestral property only.
 b. What happens in this section is a notional partition- it does not end the JHF and
merely converts ancestral property as self acquired property which is to devolve as
per the HS.

Pious obligations

a. Under the principle of pious obligation, those who were in a position to offer funeral
rites would get preference in property (Those who offered pindas). Under Hindu law
they were expected to pay off the debts of the father/grandfather/great grandson
b. This principle continued in any aspects and it was recognized in 1956 act- it could be
enforced.
c. Any particular son in the name of religious or pious obligations had to settle the dues
of the family. It was extended to 3 generations of ascending- son/grandson/great
grandson. (It goes in succession).
Ex- Father takes a loan fails to repay- dies as per principle- son has to settle it. If son is
not alive- the liability extends to the son, son of the son, and his son.
d. The dues of the grandfather however wont extend beyond these 3 generations
(Practically- only 3-4 generations exist at a time). This was sad as the son had to settle
the dues from his own pocket- even if he had no ancestral property.
e. There can be partial responsibility sharing between the son and the grandson
(and great grandson). It extends to loans taken in personal capacity too. It however
doesn’t extend to females
f. If a person converts before liability arises, he wont be bound by this obligation
g. In 2005- amendment abolished this pious obligation.
h. Can Indian contract act be used ot make son liable under this- No personal
contracts of one person cannot bind another person. Ex- fathers loan is of father and
can be settled by his estate only. Liability cant be extended
 i. Present position- The liability passes on only to the son when the father dies.
Liability is not to pay debts from the personal money- but from the estate of the
father.
 S.21- Simultaneous death- Presumption in cases of simultaneous death- provides
certainity when there is ambiguity in death persons. General principle in H and A for
devolution is that if a senior person is predeceased then junior member

SUCCESSION OF FEMALE PROPERTY

 Females’ property can be divided among eligible legal heirs only if it qualifies as
property under S.14 of the HSA.
 Under S.14- property includes movable and immovable property, acquired by a female
hindu according to the conditions would be her absolute property.
 Property of females can be divided only the females are given an absolute ownership over
the property- situations where this happens is given under S.14. To understand this , the
ancient perspective or female property is to be seen.
 Stridhan- These are properties received by females post marriage, over which woman
has absolute right. However stridhan is not defined under HSA- we have to lookat
traditional law for this.
1. This is a broader term used in Mitakshara and Dyabhafa schools- it is a combination
of the words stri plus dhan.
2. The concept comprises of these two aspects
- Saudaghya- gifts with love and affection- coming from relation on both.
- Non Saudhagya- all other types of gifts received from stranger, property ,
acquired by self exertion or much art.

Why distinction?- In case the property is received as a part of a marriage, then there
is a slight difference on how the properties are to be transferred. In marriage, if the
 female receives something (before, after or at the time of marriage)- it is considered
as stridhan, and she has absolute right over same.

In case the marriage gift is gifted to both husband and wife jointly, then she does not
get any rights over the same, and this therefore it does not come under the ambit of
Stridhan property.

 In the HSA, when S.14 was introduced, they did not look at where the property was
coming from. The situation of joint gift was mentioned under S.27 HMA (S. 27 HMA –
in case of dissolution of marriage, the court at its discretion can divide the joint property
equally between the parties).
(Now irrespective of which source the property comes from- any property over
which woman has absolute right is called stridhan).
 Types of property that comes under S.14
a. Inheritance- Includes every source of inheritance coming from all classes (1,2,3 and
4) and females devolution. Exception to this are
1. Property received from her own mother
2. Property received from own father.

(There are covered under separate rules under S15(2) ).

b. Partition- Female includes daughter , wife and mothers (Why does this section say,
partition being a 1956 act, when it is only post 2008 that women get partition rights).
This refers to those properties received for the purpose of maintenance in the name of
the wife. The wife here gets absolute right over such property
c. Maintenance or areas of maintenance- In case of property received as maintenance
or income aristing out of the property- woman has absolute right over such a
property.
d. Gifts received- Any gift received from relatives or non relatives (irrespective of
source, then it is the woman who has absolute right over the same).
 Property with females, unlike males can only devolve in accordance with the HSA-
This is unlike male property which devolves according to HSA and ancient law. Only
fact that needs to be considered is wether the person has absolute right over the property.
 Exception- property received as inheritance from mother and father. (This too denotes
under HSA).

C- Rashmi Kumar v. Mahesh Kumar Bhada- When wife entrusts Streedhan property
with dominion over that property to her husband or any other members of the family and
husband or such other member of the family dishonestly misappropriates/ converts to his
own use that property or wilfully does so, he is liable for criminal breach of trust under
S.405 of the IPC

SUCCESSION COMES UNDER THE ACT.

 Sources of acquisition of property- there are three sources

a. Inherited from father/ mother
b. Inherited from husband/ heirs of husband
c. Self acquired
 Property of female hindu dying intestate shall devolve
a. Firstly, among the sons and daughters (including children of any predecessor) and
husband
b. Secondly, upon heirs of the husband (Here the rules regarding male dissolution are to
be followed)
c. Thirdly, upon the mother and the father
d. Fourthly, upon the heirs of the father.
e. Heirs of the mother
 S.15(2)- Inherited from father/ mother-
a. If female inherits from father/ mother- father is dead- property will devolve to the
female- Doesn’t include property from any other source
b. If inherited from the father/mother, then husband alone will not get the property. He
will share It with the female’s sons/ daughters after the death of the female.
c. Dissolution of fathers/mothers property
1. (A) category
2. If (A) not available, then directly to (D), i.e. the heirs of the father. (known as the
reversionary principle). Property is going back to the source
d. Dissolution of property inherited from the husband
1. Property coming from husbands side will remain there nly
2. First to (A) category
3. If not (A) , it will go to (B) only- it wont go to any other member.