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MITAKSHARA AND DAYABHAAG SCHOOL

1. MITAKSHARA SCHOOL
The Mitakshara school is a branch of Hindu law focused on inheritance and succession. The term
“Mitakshara” means “commentary,” and the school is named after a text called the Mitakshara, which
explains the Yajnavalkya Smriti.
Primarily practised in northern and western India, the Mitakshara school centres around joint family
property. This means that property belongs collectively to the entire family rather than individual
members.
Within the Mitakshara school, there are four ways property is inherited:
• by birth
• by adoption
• by will and
• by survival
The school also recognises coparcenary, ensuring all male descendants of a common ancestor share
equal rights to ancestral property.
Stridhana, another concept in the Mitakshara school, refers to property women inherit through gifts or
inheritance. This property is absolutely owned by the woman and can’t be taken by her husband or
family members.
2. DAYABHAGA SCHOOL
The Dayabhaga school is one of the two main schools of Hindu law in India, the other being the
Mitakshara school. This school is predominantly practised in the eastern parts of India, notably in
Bengal, Assam, Orissa and parts of Bihar.
The term “Dayabhaga” comes from Sanskrit, where “Daya” means compassion and “Bhaga” means
share. This school places more importance on an individual’s right to property compared to the
Mitakshara school. In the Dayabhaga school, an individual has complete control over their property’s
distribution. Sons and daughters do not inherently inherit their parent’s property; inheritance follows
either the deceased’s will or rules of inheritance based on the closeness of the relation.
The Dayabhaga school is renowned for its commentary on the Manusmriti (Hindu law code), authored
by Jimutavahana. This commentary, known as the Dayabhaga, serves as the primary legal source for
this school.

BASIS MITAKSHARA DAYABHAGA

Joint family system Includes both male and female Focuses on male members of
family members the family
Right to property Children gain rights after Sons, grandsons and great-
father’s death grandsons have rights by birth
Partition Involves physical separation Partition is based on defined
and individual ownership shares
Rights of women Provides stridhan and equal Women have limited rights and
rights in husbands’ property can’t demand partition
Features Considered a more liberal Considered a more conservative
system system
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HINDU JOINT FAMILY

Joint Hindu Family is an inevitable and fundamental concept of the Hindu family law which in present-
day is governed by the Hindu Succession Act, 1956. It is a normal condition of Hindu society. For a
Hindu, it is a never-ending process, if in one generation it is brought to an end by the means of a
partition, it comes back into existence in the next generation automatically. This rule gives support to
the presumption that every Hindu family is a Joint Hindu family.
It is presumed that the family continues to be a joint family if it is joint in affairs of food, worship, and
estate as observed in Rukhmabai v. Lala LaxmiNarayan; Rajagopal v Padmini. However, if a family is
not joint in food and worship, i.e. even if they live separately, they constitute a Joint Hindu family
provided they are joint in the estate. A Joint Hindu Family is neither a corporation nor a juristic person
as they do not have a separate legal entity from that of its members as held in the case of Chhotey Lal
and Ors. v. Jhandey Lal and Anr. It is a unit and is represented by the Karta of the family in all matters.
➢ COMPOSITION
It consists of all the family members i.e. all the male members descended lineally up to any generation
from a common ancestor together with their mothers, wives, widows, and unmarried daughters as
observed in Surjit Lal Chhabda v. CIT. A daughter remains a part of her parents’ joint family, till the
time she is unmarried. Once she gets married, she becomes a part of her husband’s Joint Hindu family.
If the daughter is deserted by her husband or becomes a widow, and returns to her father’s home
permanently, she again becomes a part of that Joint Hindu family. Her children, however, remain a part
of their father’s Joint Hindu family and do not become a part of the mother’s father’s Joint Hindu family.
It was observed in the case of Gur Narain Das v. Gur Tahal Das that even an illegitimate son of a male
descendant will be a part of his Joint Hindu family.
It is pertinent to note that without a common ancestor Joint Hindu Family cannot be brought into
existence. The presence of a common ancestor is a necessity for its beginning, but it is not necessary
for its continuation i.e. the death of the common ancestor does not bring the Joint Hindu Family to an
end. Upper links of the family are removed and lower links are added by marriage, birth, or adoption
of the child in the marriage. This process continues as long as it does not become extinct. The members
are bound by the fundamental principle of Sapinda relationship(belonging to the same ancestors, up to
three and five lines of ascent from mother’s and father’s side, respectively) or family relationship.
The status of being a part of the Joint Hindu Family can be ceased in the following cases:
• By conversion to another religion or faith.
• By marriage to a non-Hindu(a person who is not Hindu as per Section 2 of the Hindu Marriage
Act, 1955 which include a Muslim, Jew, Parsi or Christian by religion).
• By being given in adoption to a third party by the competent parents.
• By marriage of a daughter.
1. Position when there is only one male member in the family
In such a case the Joint Hindu family can still continue to function as the requirement of a male member
is essential to start a Joint Hindu family and not for its continuance. It is not necessary to have at least
two or more male members in the family to make it a Hindu Undivided family as a taxable entry. In the
case of CIT v. Gomedalli Lakshminarayan it was held that even if the coparcenary does not exist in a
family still that family continues to be a Hindu Undivided family.
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2. Position when there are only female members (widow)

On the death of the sole male member, a joint Hindu family can continue to exist at the instance of
already existing female members of the family. The term ‘continuation’ is different from starting or
forming a joint family for the first time.
In the case of CIT v. Sarwan Kumar, the Supreme Court held that on the death of the last surviving male
member, the other family members can continue to be a Joint Hindu family, even if they are not
coparceners. The death of the male member is a self declaratory fact that there was an existence of male
members in the joint family.
The court in the case of Attorney General of Ceylon v. Arunachalam Chettiar held that as per the law,
so long as the female members of the family can add a male member to the family, a joint family does
not come to an end.
Therefore, the test laid down is the potential of the female members to add a male member to the family
either by natural means or lawful means as observed in Ashok Kumar Ratanchand v. CIT also.
• Position when there are only daughters
Before the Hindu Adoption and Maintenance Act, 1956:
As discussed above that female members should have the capacity to add a male member in order to
continue the Joint Hindu family. However, before 1956 daughters did not have the capacity to add a
male member to her father’s joint family. The reason being that she could give birth to a legitimate child
only after her marriage, and once she is married she becomes a part of her husband’s joint family and
ceases to be a part of her father’s joint family.
➢ AFTER THE HINDU ADOPTION AND MAINTENANCE ACT, 1956
The Act gave power and permission to even a single woman to adopt a child. As per law, the status of
an adopted child is the same as that of a child born into the family. Now, the woman could add a male
member to her father’s Joint Hindu family without getting married. Therefore, an adopted child can be
maintained by a single parent also.
➢ AFTER THE 2005 AMENDMENT IN THE HINDU SUCCESSION ACT, 1956
The amendment to the Act gave the right to a daughter to be a coparcener and now she can not only
continue the Joint Hindu family but also constitute one with her father and brothers.
• Position when there are only husband and wife
As there is a chance of adding a male member or basically a coparcener to the family by the couple,
therefore they can constitute a Joint Hindu Family. There is a conflict in the judicial opinion on the
question, whether husband and wife can form a joint family as per revenue statutes to take advantage
of the exemption from tax as Hindu Undivided Family?
In the case of T. Srinivasan v. CIT, a partition took place in a Joint Hindu Family and the son took his
share. For a certain while, he filed his returns as an individual until he got married. The question came
into consideration when his wife was pregnant. It was held that only when the son is born, he becomes
a member of the joint family.
In Surjit Lal’s case, it was held that the property which a coparcener obtains on the partition does not
become for all times his individual property. If he is married he has an obligation to maintain his wife.
If he has children then he is obligated to maintain his unmarried daughter and minor son. If a son is
born he is entitled to a share in ancestral property. The court also held that the absence of a history of
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jointness between a man and his ancestors should not cause any problem in forming a Joint Hindu
family with his wife.
It is the duty of the husband to maintain his wife as per Section 18 of the Hindu Adoption and
Maintenance Act, 1956. The wife can, therefore, claim maintenance from the husband’s separate as well
as ancestral property.
Thus the individual while receiving property on partition and getting married with no son or no children
at all is considered as the Karta of the Joint Hindu Family.
To conclude a husband and a wife can constitute a Joint Hindu Family as well as Hindu Undivided
Family.
➢ CASE LAWS
1) Janakiammal vs. S. K. Kumarasamy & Ors.
Facts: In the case of R. Janakiammal vs. Kumarasamy, there was a partition dated 7th November
1960 between three brothers. The Appellant claimed that the said partition agree was entered by the
three brothers to save the landed property from Land Ceiling Act and there was no intention of
separating each branch and changing the joint family status. The Appellant contended that there was a
reunion between the three brothers to revert to the status of Hindu Joint Family which can be proved
from the acts and conduct of the parties after 7th November 1960.

Judgment: The issue before the Hon'ble Apex Court was whether a particular house property
purchased in 1979 is a joint family property or not. Considering the facts of the case, the Top Court
Bench of Hon'ble Justices Ashok Bhushan and Subhash Reddy found that in 1979, when the
residential property was obtained in the name of one brother, all 3 branches were a part of the Hindu
joint family. The Hon'ble Supreme Court in its judgment held that Hindu Joint Family, even if
partitioned can revert and continue the status of joint family. The Supreme Court Bench observed that
acts and conduct of the parties may lead to the inference that the parties reunited after partition. The
Court held that the house property purchased in the name of one member of the Hindu joint family
was for the benefit of all.
2) Palani Ammal vs. Muthuvenkatacharla Moniagar & Ors.
Facts: The appeal was filed by Palani Ammal, a Hindu lady who was one of the several defendants,
against a decree of the High Court at Madras, which affirmed a decree for partition of the Vadimitta
estate, of the District Judge of Madura. The impugned property, which appeared to be a large
zamindari, was purchased by Periyar Muthukumaraswami, who passed away in 1834. He was a Hindu
Sudra, and he and his descendants were governed by the law of the Mitakshara and constituted a
Mitakshara joint family unless they separated. He had two wives. With the first wife, he had six sons,
most of whom were married and had a male child. With the second wife, he had one son, who left a
male issue. As the family was not ancient, the property, which was acquired in modern times, was in
the possession of the senior son and his descendants as managers of the joint family and not as the
senior male member of a joint family.
Judgment: The Judges observed the members of that joint family intended to separate. Their object
was probably to establish themselves, if possible, as a joint family with an impartible estate
descending according to a rule of lineal primogeniture with rights of maintenance and other privileges
for the younger members. It was held in this case that if a Hindu joint family separates, the family or
any members of the family may agree to reunite as a Hindu joint family. However, such a reunion
must be strictly proved as any other disputed fact is proved under the Mitakshara law.
3) Mukku Venkataramayya vs. Mukku Tatayya & Ors.
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Facts: The appeal is in light of a suit instituted by the appellant for a declaration of his exclusive title
to the properties set out in three schedules attached to the plaint and for possession thereof. The first
respondent, the Appellant’s younger brother disputes the claim and contends that they are the joint
properties of both the brothers. Respondents 2 to 9 are claimed to be the adherents of the first
Respondent who have come together to keep Appellant from the enjoyment of the properties.
Judgment: After considering the facts and the shreds of evidence of the case, the Court negatived the
claim of the Appellant of having exclusive ownership of the properties and it was held that to establish
a reunion, it is necessary to show that the parties have not only lived together and were divided but
that they did so intending to alter their status and of forming a joint estate with all its usual incidents.
CONCEPT OF COPARCENARY
The term coparcenary was derived from the Hindu Undivided Family (HUF). Coparcenary is the
division of property between the co-owners or joint owners who have inheritance to the Hindu joint
family. The head of the coparcenary is called as the Karta.
Hindu joint family was defined in a case of Rajgopal v Padmini according to this case if two or more
families agree to live together by sharing their food, water resources etc and comes under a roof it will
come under Hindu joint family.
In another case of Ram Kumar v Commr. Income Tax it was observed that Hindu joint family is
considered as a unit and it is headed by a person called as karta. Karta is a very important person in
the Hindu undivided family he is denoted As a manager of the family. The position of karta is known
as Sui generis. This means he holds a unique position in the Hindu family property.
Unlike the Joint Hindu Family, coparcenary consists of all male lineal descendants up to three
generations from the last holder of the property. Senior-most member is called the ‘last holder’ and
from him up to three generations i.e. son, son’s son, and son’s son’s son constitute the coparcenary.
There can be any number of male members in a particular generation.
Every member of the coparcenary is related to each other either by blood or valid adoption. It is a laid
rule that no person can become a coparcener by marriage or any agreement to become a coparcener as
coparcenary is a creation of law as observed in Sudarshan v. Narasimhulu. As per the Hindu
Succession Act, 1956 no female member could be a coparcener but it was later altered with 2005’s
amendment to the Act. Now, Section 29A of the Hindu Succession Act provides that a female is
entitled to receive the same share in the coparcenary property as that of a son.
There can be more than one person as karta in a Hindu family. He can be any senior member or any
person who is apt to manage the whole family. His main duty is to represent his family members or
act behalf of the family. The females are dependent on the karta of the joint family. Minors are also
dependent on the karta. They all are dependent on karta for the maintenance. If the Karta failed to give
maintenance to unmarried daughter in the joint family, he will not be eligible to call as karta. The
powers of karta changes at any point of time.
Karta can also be changed in a joint family. Karta has certain rights in the joint family property other
than the other members of the family. He has the power to manage the whole property and the family
members. He have to contract Dept. He can manage or take loans from other people if there is a need
for the family. He has the power to represent the family in the case of legal aspects or for other
concerns.
The Karta has the power to represent the whole family. He has the power to enter into contracts for
the benefit of family and he should look after the family and does not have any evil intention. He has
the power to refer disputes to arbitration if there is any dispute among the family members. He has the
power to acknowledge the family members about the situations in the coparcenary. He even has the
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power to alienate the property of the joint family if there is any need like paying back of debt which
was taken for the purpose of joint family.
➢ FORMATION OF COPARCENARY – UNDER MITAKSHARA AND DAYABHAGA
There are two main schools in the coparcenary. They are Mithakshara and Dayabagga school. In
mithakshara school right to ancestral property arises by birth. In mithakshara school the property can
be partitioned. The son becomes the co-owner of the property sharing similar rights as to father. The
father does not have a right to alienate property. There is survivorship in mithakshara school. In
dayabhaga school the right to ancestral property only arises after the death of the last owner. The
father has a right to alienate the property in Dayabhaga School. There is succession in this school.
There are two types of inheritance in Mithakshara school. They are apratibandhadaya which means
property inherited from direct male ancestors like father, father’s father etc. There is also
Sapratibandhadaya which means property inherited from paternal uncle, bother and others etc.
➢ COPARCENARY AND JOINT FAMILY
There are some basic differences between joint family and coparcenary. In joint family both males and
females are the members of joint family but in coparcenary only male members are the members of
coparcenary. There is no limitation of generation with regard to the membership of joint family but in
coparcenary up to 4 degree of generation from the senior most male members are members of
coparcenary. Coparcenary is a very narrow body, and it includes only those persons who acquire right
by birth and in exceptional cases adoptions. Every joint family is not a coparcenary, but every joint
family will be a coparcenary. Joint family will be there even after the death of the Karta, but
coparcenary comes to an end in the death of the last coparcener. In one of the leading cases of Appaji
versus Ramachandra the Bombay High Court held that it is one important exception to the above
given case that is the father in the joint family is not agreeing for partition then son cannot impose a
partition against the will of the father. This means that junior member cannot execute a partition
without his parents’ permission and interest of others.

HINDU JOINT FAMILY COPARCENARY

It is a wider institution as it includes all- It is a narrower institution as it includes only
male lineal descendants from a common three male lineal descendants from the last
ancestor, it also includes their wives and holder of the property.
unmarried daughters.
There is no limitation of generations, it can There is a four-generation rule i.e. males
extend to any number of generations. within four generations from, and inclusive
of the eldest member of the family.
Every family member can be part of it Only males can be coparceners and after the
including females and illegitimate sons. 2005’s amendment daughters were given the
right to be coparcener.
Even after the death of all coparceners or The coparcenary comes to an end when all
male members, it does not ipso facto mean the male members or coparceners die.
that Joint Hindu Family has come to an end.
As long as a female member has the right to
add a new male member to the family, it
continues.
In a Joint Hindu Family, the existence of In a Coparcenary, the existence of property
property is not essential. is very essential.
The rights and interests of the joint family The rule of survivorship is followed and not
members are determined by the Law of the law of succession as on the death of a
Succession. coparcener, his interest in the property
devolves on surviving coparceners.
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Members have limited rights, viz, of The rights of coparceners are very wide, viz,
maintenance and marriage expenses of the Right to partition, and right to alienate. Each
unmarried daughters. coparcener is the owner of the entire
property but no one can set up an individual
title to any part of the property.
Every Joint Hindu Family is not a Every coparcenary is a Joint Hindu Family.
coparcenary.
➢ RIGHTS OF COPARCENERS
There are several rights and duties for each coparcener. The property of coparcener is of mutual
interest and no one has an exclusive possession right. Everyone will share income and there will be a
joint family and is entitled to join possession and enjoyment of family property. If anyone is excluded
from doing so, he can enforce his right by going to court of law. Everyone is having a right to
maintenance and other necessary expenses in a coparcenary and every coparcener have a right to
restrain in property alienation by the katha or any member of the coparcenary. In any case coparceners
can partition coparcenary property.
In the case of Commissioner of Gift-tax v. N.S. Getty Chettiar it was given that the individuals in the
coparcenary will not have a right to sell any share of the joint family. If they need to sell it they need
to first partition the property and then they have to sell this. This is because the property belongs to all
people in that coparcenary and share of a coparcener is not specified before partition. In the present
coparcenary women can become Kartha and lead and manage the coparceners.
In the case of Pandurang v. Pandurang it was observed that women can also become kartha and lead
the family. It gives power to women in the absence of men in the joint family. In the case of Prakash
and Others vs. Phulavati there was a classic decision to the women’s property rights. The Supreme
Court held that women will not succeed the property from the past coparcenary and there is no
retrospective effect for the succession in the coparcenary. This means that only women who were
alive after before their father died has the property rights. Later this decision was changed, and new
amendment were brought to have a prospective effect to the system and people doesn’t have to look
when the amendments came into force.
➢ COPERCENAR WITHIN COPARCENARY
There can be coparcenary within coparcenary. In a leading case of Nachiappa vs commissioner, of
Income Tax the Madras High Court has illustrated a beautiful example of coparcenary. During the
time of income tax assessment, the income tax authorities assessed son A and father B as separate
entities. The court held that there is a coparcenary within the coparcenary. That is why they were
assessed separately. After some time the son united with the father and gave a suit against the
assessment of income tax authorities and told that they are the same entity, but the court held that that
is not true and they still are separate entities and will be assessed separately. One of the major
confusions came in the property of Hindu Undivided family is the field of taxing.
In the case of Narendra Nath vs commissioner of wealth tax define Hindu undivided family as a male
and his wife. It is not defined as two males and two wives. This confusion came because Hindu
undivided family share their properties and they paid tax for the share property, so the tax authorities
got clarified from the court.
In the case of Commissioner of Income Tax versus Gomedalli Lakshmi Narayan there was a confusion
in how Hindu joint family can be assessed for tax. There was a father and his wife and his son.
Income tax department had a confusion whether father and son are two separate entities to pay tax. It
was held that the son’s right over the property was not absolute because to females in the family had a
right of maintenance to the property. So the income of the assasee should be attached as a single
Hindu undivided family.
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➢ EVOLUTION OF COPARCENARY
There have been drastic changes happened in the coparcenary system. There has been inclusion of
daughter in mithakshara school. According to the 2005 Hindu Succession Amendment Act and a
daughter can be a coparcener of a coparcenary. Property right to women is a drastic change in the
coparcenary system and the Hindu succussion. There are also constitutional provisions upholding
women’s property right like the Article 14,15 and 16 of the Indian Constitution.
Section 6 of the Hindu Succession act was the first step of women’s right. It stated that “on and from
the commencement” of the Amendment Act, 2005, the daughter of a coparcener shall have a right on
the coparcenary property by birth, just the way that it is with the son. The daughter also shall have the
same liabilities as the son does. This concept is termed as “unobstructed heritage”. The daughters now
have the right to inherit property. It is like a son that the coparcener should be born like a son in the
family.
A daughter can do whatever with her share and the men will not come into managing their property. If
a female dies then her children will inherit the property rather than the lineage of the husband. There
was a cancellation of succession as per survivorship and there came a succussion of testamentary
succession and intestate succession. Hindu Succussion Act became more gender neutral and brought
many changes, but it still didn’t give exclusive right to women but later the amendment came. This
amendment became a pillar in upholding the constitutional principles and India became a more
welfare state.
The Kerala Hindu family abolition Act 1975 abolished the joint family system in the Kerala state with
effect from 1976. These all shows how women has grown in the society. The society is now seeing
women in a different perspective than they saw in the earlier days. Ownership to property and assets
to women make them more powerful and it should be a role model. They excelled in the society
because of these new amendments. The law makers were showing their skill in making the laws
carefully and with no gender bias. These amendments made the probability of exploitation of women
less and if someone exploits them their voice is heard in the society.
The women’s rights should be respected and there should be a culture to respect them as equal human
beings. There was lack of awareness among women and in society in these kinds of issues. There are
still some missing pieces in the coparcenary system which needs to be addressed and rectified. There
is still male dominance in the coparcenary system. However, theoretically men and women are
considered as equals but, in some coparcenary, men are treated more than female members.
If a woman dies intestate the property will go to the husband’s heirs first and Hindu women’s property
is kept in the husband’s lien. There has been several Acts which repealed the coparcenary in the
ancient world. There still needs the education of legal rights to incorporate the full changes which
have been brought under the present Hindu law. There should be social awareness to the people and
their attitudes needs to be changed for equality.
➢ CAN A WOMAN BECOME A COPARCENER
Before the amendment of the Hindu Succession Act, 1956, a woman was not considered a coparcener.
As a result, they did not have any right to their ancestral property after marriage. But now, after the
recent amendment in the succession law, women are now coparceners. Both males and females have
the same rights and liabilities over the property. A daughter, even after her marriage is a coparcenary.
After her demise, her children get the coparcenary status.
➢ CAN YOU SELL A COPARCENARY PROPERTY
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While a coparcener may ask for a partition to obtain their share, he or she cannot sell the property
without the consent of all coparceners. The owner is legally entitled to sell their share of property after
inheriting it through partition.
➢ RIGHT TO PROPERTY AS A COPARCENARY DIFFERS FROM RIGHT TO
MAINTENANCE
The Dharwad Bench of the Karnataka High Court has clarified that granting property to a wife or
daughter for maintenance differs from allotting them a share in the property. Justice Anant Ramanath
Hegde, presiding as a single judge, further emphasised that exceptions to Section 6(1) of the Hindu
Succession Act, 1956, do not hold if the partition of property contradicts a court order.

In Western and European nations, such as the USA, Germany, and France, inheritance laws use
gender-neutral language. India uses terms like sons, daughters, parents, children, and spouses. By
using such language, the foreign nations ensure that everyone, regardless of their gender, is entitled to
inherit the property. In India, if this approach is adopted, inheritance laws will be gender-neutral.
KARTA
In the entire Hindu joint family, the karta or the manager occupies a very pivotal position. Earlier, he
was the unquestioned ruler of the family, but the domain of his power as the head of the family has
been considerably diluted as a result of innovative legislative enactments and equitable judicial
interpretations. A Karta is the manager of a joint family and its properties.
They are responsible for handling the family’s day-to-day expenses, taking care of the family
members, and protecting the joint family properties.
➢ WHO CAN BE A KARTA
Hindu Law presumes that the seniormost male member is the karta of the joint family. The seniormost
male member is Karta because he is the seniormost male member. He does not owe his position to the
agreement or consent of other coparceners. So long as he is alive, he will continue to be the Karta.
After the death of the Karta, the senior male member takes his place as Karta. In the presence of a
senior male member, a junior male member cannot be the Karta. But if all the coparceners agree, a
junior male member can be a karta. Two persons may look after the management of the property, but
the joint family has to be represented by only one karta. Even a minor can act as karta and represent
the family through the guardian.
➢ POSITION OF KARTA
▪ The position of Karta is sui generis.
▪ He holds a distinctive position within the family and cannot be compared to other family
members.
▪ He possesses a wide range of powers as he is in charge of managing all the family affairs.
▪ The relationship between him and other members is not that of principal or agent.
▪ He is the head of the family and acts on behalf of other members.
▪ He stands in fiduciary relationship with other members, but he is not a trustee.
▪ Ordinarily he is accountable to none.
▪ His position is superior to other members, and he represents the family.
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▪ He is not required to maintain a regular and systematic account of the joint family property,
▪ He is not liable for his positive failures such as failure to invest, to prepare accounts or to
save money, where he misappropriates the joint family funds or uses them for purposes other
than for family benefits, he is accountable, otherwise his discretion cannot be closely
scrutinized.
▪ He is not bound to pay the income of the joint family in any fixed proportion to other
members.
▪ The position of karta is purely honorary. Thus, he is not entitled to draw or receive any
salary for the services rendered.

➢ FEMALE MEMBER AS A KARTA

▪ Earlier, a female was not given the chance to be a coparcener and so she was not empowered
to act as a karta.
▪ After the enactment of the Hindu Succession Amendment Act, 2005, equal property rights
on daughters of a Hindu Joint Family were conferred.
▪ Now, a daughter can be a coparcener in a Hindu Joint Family in the same way as the sons.
▪ After her marriage, she becomes a part of her Husband’s Hindu Joint Family but does not
cease to be a coparcener in the Hindu Joint Family of her father.
▪ She can exercise all the rights given to any coparcener before and even after marriage.
▪ Therefore, in the father’s absence she can be karta, if she is the senior most member in the
family.
➢ CASE LAWS
1) In Tribhovan Das v. Gujarat Revenue Tribunal (1991), the Supreme Court observed that a
younger member of the joint Hindu family can deal with the joint family property
as manager in the following circumstances:
o If the senior member or the karta is not available.
o Where the karta relinquishes its right expressly or by necessary implication.
o 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.
o In the absence of a father whose whereabouts were not known or who was away in
a remote place due to compelling circumstances and his return within a reasonable
time was unlikely or not anticipated.
2) In Damodar Misra v. Sanamali Misra (1967), it was held that two kartas cannot lead to the
smooth management of the property of a joint Hindu family and other affairs of the family
in view of the powers of the karta .
3) In Manu Gupta v. Sujata Sharma & Ors. (2023), the Delhi High Court held that neither the
legislature nor the traditional Hindu Law in any way limits the rights of a woman to be a
Karta of a Hindu Undivided Family.
4) Dev Kishan Vs. Ram Kishan AIR 2002: In this case, the plaintiff filed a suit against the
defendant. Both plaintiff and defendant are members of the Joint Hindu Family. Defendant 2
is the Karta, who is under the influence of Defendant 1, sold and mortgaged the property for
an illegal and immoral purpose which is for the marriage of minor daughters Vimla and
Pushpa. The defendant contended that he took the loan for legal necessity. The court held that
the debt was used for the unlawful purpose. Since it contravened the Child Marriage Restraint
Act, 1929, therefore, it can be called as lawful alienation.
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➢ CHARACTERISTICS OF KARTA
1) Unique position: The Karta holds a distinctive and independent position within the family,
and cannot be compared to other family members.
2) Unlimited Power: The Karta has extensive authority, but even when acting on behalf of other
members, they cannot be considered a partner or agents.
3) Control and Wide Powers: Karta is in charge of managing all the family affairs and possesses
broad powers.
4) Individual Responsibility: The Karta is accountable to no one, except in cases involving fraud,
misappropriation, or conversion, where they can be held responsible.
5) Discretion in Resource Usage: The Karta is not obligated to invest, save, or economise. They
have the authority to utilise resources as they see fit, as long as they are not responsible for the
charges mentioned earlier.
6) Unequal Distribution of Income: Karta is not required to divide the income generated from
joint property equally among family members. They can exercise discrimination and are not
obligated to be impartial. However, they should ensure that everyone receives sufficient funds
for basic necessities such as food, clothing, education, and shelter.
➢ RIGHTS OF KARTA
1) Right to Income and Expenditure: The Karta has the right to manage the income and
expenditure of the joint family property. They can utilise the property for various family needs
such as marriages, ceremonies, education, and maintenance of family members. The Karta can
spend the income as long as it is for valid reasons.
If other family members believe that the Karta is spending excessively, their only recourse is to
seek a partition. Karta is liable to reimburse other coparceners for any wasteful expenditures, but
only for the actual amount spent. The Karta is the manager of income and expenditure, not a trustee
or agent.
2) Right to Alienation: Karta has the right to transfer joint family property for value. However, the
value or money obtained from the alienation must be utilised for the benefit or maintenance of
the family. Any alienation will also bind the minors in the family. Property acquired for greater
profit is considered legally valid.
3) Right to Start or Manage Business: Karta has the right to initiate new business ventures using
the family property for the benefit of the family. They are also responsible for operating and
maintaining the family business. Although their role is similar to that of a trustee, they are not
legally considered as such.
4) Right to Seek Arbitration: In case of disputes between family members or between a family
member and an outsider, Karta can refer the dispute to arbitration. The decision made by the
arbitrator is binding and final. However, Karta must make the reference without any fraudulent
or malicious intent.
5) Right to Enter into Contracts: Karta has the right to enter into contracts related to joint family
business activities. These contracts should solely aim at generating business profits. Such
contracts are binding on all family members, including minors.
6) Right to Legal Representation: The Karta of a Joint Hindu family can sue or be sued in matters
pertaining to the family business. The decisions made in disputes bind all family members.
However, in partition suits, each family member represents themselves individually.
7) Right to Provide Valid Discharge: The Karta has the right to provide a valid discharge for debts
owed by the family. They can make partial payments, pay interest, and acknowledge debts.
However, they cannot revive a debt that is already time-barred. Payments can only be made
within the specified period of limitation.
8) Right to Incur Debts: The Karta has the right to incur debts for the purposes of the family
business and other family needs. They can pledge the family property as collateral for the family
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business and other activities. If the Karta borrows money through a promissory note, they are
personally liable for the debt, while the other coparceners are liable only up to their share in the
property.

➢ LIABILITIES OF A KARTA
1) Responsibility for Maintaining Members: The Karta is fully responsible for providing
maintenance to all members of the Joint Hindu family. This includes wives, descendants,
unmarried daughters, and others. Maintenance entails providing food, shelter, clothing,
education, marriage expenses for unmarried sisters and daughters, medical expenses, and
more.
2) Obligation to Recover Debts: The Karta has a duty to recover any debts owed to the Joint
Hindu family or the family business. They should make every effort to minimise the debt or
interest, but they cannot waive any valid debt.
3) Duty to Seek Consent for New Family Business: Before initiating a new family business, the
Karta must obtain the consent of the family members, either explicitly or implicitly. The Karta
cannot impose the burden of a new family business on either minor or adult members of the
family without their agreement.
4) Duty to Provide Compensation: Suppose there is proven fraud or misappropriation by the
Karta concerning the Joint Hindu family property. In that case, they are required to
compensate the other coparceners for the loss incurred in relation to their share in the
property.
5) Obligation to Provide Accounts: Any coparcener has the right to request accounts related to
the Joint Hindu family property and profits from the Karta at any time. Karta is obligated to
provide these accounts. They are not required to provide accounts for past transactions, but if
there is clear evidence of misappropriation, they must provide accounts related to that.
Accounts must be given during a partition, and if a Joint Hindu family business exists, the
Karta is responsible for maintaining accounts for it.
6) Liability to Spend Reasonably: The Karta is liable to spend the Joint Hindu family’s resources
reasonably and only for the benefit and maintenance of the family. If any coparcener has
concerns about the Karta’s expenditures, they have the right to request a partition.
7) Duty to Refrain from Alienating Coparcenary Property: The Karta has absolute authority over
the family property, and this right is not challengeable in court. Coparceners can only seek
partition if there is a disagreement. Members are entitled to their share when a partition takes
place, but they cannot initiate the partition themselves.
A Karta can only alienate family property if it is for the benefit of the HUF, due to a legal necessity, or
to fulfil an indispensable duty. Without these reasons, any alienation by the Karta would be invalid
unless approved by all the coparceners.
Under Hindu law, a Karta can decide to alienate the family estate in situations of legal necessity, for
the benefit of the family, or to perform religious duties. In these special circumstances, Karta’s
decision cannot be legally disputed.
Before alienating coparcenary property, the Karta must discuss and obtain consent from the other
family members. However, no consent is required if the alienation is for legal necessity. The key
consideration in determining the necessity of alienation is whether a natural owner would dispose of
their property in the given situation.
However, if the Karta were to alienate the property without valid reasons, the decision would be null
and void, and the Karta could be taken to court. In such cases, the burden of proof lies with the Karta
if the matter is brought to court by a dissatisfied party.
RULE OF SURVIVORSHIP
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The Hindu Succession Act, of 1956, plays a pivotal role in determining the inheritance rights of
individuals adhering to Hinduism. Within this legal framework, one encounters the intriguing concept
of the Rule of Survivorship, which holds particular importance in family law. In this article, we delve
into the Rule of Survivorship in Hindu succession, dissecting its meaning, implications, and
significance in shaping inheritance dynamics within Hindu families.
The Rule of Survivorship in Hindu succession refers to the principle that governs the devolution of
property in joint Hindu families. It essentially dictates that in the event of the demise of a coparcener
– an individual who shares ancestral property with others – his or her share in the property
automatically passes on to the surviving coparceners. This rule is deeply embedded in the traditional
joint family system, where property is held jointly, and each member possesses an undivided share in
the family estate.
➢ IMPLICATIONS
The Rule of Survivorship plays a crucial role in determining the succession of property in Hindu law.
It essentially promotes the idea of continuity and unity within the joint family structure. When a
coparcener passes away, instead of his or her share being subject to testamentary disposition, the
property seamlessly devolves upon the surviving coparceners. This ensures the preservation of the
joint family estate and prevents fragmentation.
The Rule of Survivorship also aligns with the concept of coparcenary, wherein all the male
descendants up to four generations, including the holder of the property, are considered coparceners.
The devolution is, therefore, restricted to coparceners within the family, promoting a hierarchical
system of inheritance.
In family law, the Rule of Survivorship serves as a distinctive feature of Hindu succession. It
reinforces the idea that joint family property should be preserved and passed on to the surviving
members of the family unit rather than being subjected to testamentary freedom. This contrasts with
the testamentary succession prevalent in other legal systems, where the property can be bequeathed
according to the individual’s wishes through a will.
The Rule of Survivorship also brings forth the concept of survivorship as a mode of succession,
emphasizing the collective ownership and management of family property. This collective ownership
is seen as a cohesive force that strengthens family bonds and ensures the economic stability of the
family unit.
The Rule of Survivorship plays a significant role in shaping the inheritance dynamics within Hindu
families. It contributes to the maintenance of family unity and the preservation of joint family
property. The automatic devolution of the deceased coparcener’s share ensures a smooth transition of
property rights, minimizing disputes and legal complexities that may arise in the absence of a clear
testamentary disposition.
Additionally, the Rule of Survivorship aligns with the socio-cultural fabric of Hindu society,
emphasizing the collective and familial aspects of property ownership. It reflects the traditional values
of joint family living, where the welfare of the family as a whole takes precedence over individual
interests.
➢ HISTORICAL CONTEXT
Historically, the doctrine of survivorship has been prevalent in different forms across cultures and
legal traditions. One notable example is the Mitakshara school of thought in Hindu jurisprudence.
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In this system, joint family property was allocated based on possession by birth, granting exclusive
rights to sons while excluding daughters. The surviving male heirs were considered the natural
inheritors and the property continued to be held jointly.

➢ PATRIARCHAL FOUNDATION
The doctrine, in its historical context, often reflected patriarchal norms, as evidenced by the exclusion
of female family members from property rights. Sons, as the male heirs, enjoyed exclusive birthright
privileges, while daughters were denied similar rights. This gender-based discrimination persisted in
various legal systems for a considerable period.
➢ LEGAL REFORMS AND CHALLENGES
Over time, societal and legal changes led to challenges to the traditional doctrine of survivorship. In
many jurisdictions, legal reforms were initiated to address gender inequalities and provide more
equitable solutions.
The Hindu Women’s Right to Property Act of 1937 in India, for example, marked an early step toward
recognising the rights of female heirs, particularly widows, in joint family property.
➢ NATIONAL PARTITION AND WIDENING INCLUSION
Legal amendments, such as those introduced in the Hindu Succession Act of 1956, brought about a
significant shift in the application of the doctrine. The concept of notional partition was introduced,
envisioning a hypothetical division of property as if a partition had occurred before the death of a
coparcener. This allowed for a more equitable distribution, especially in cases involving surviving
female heirs.
➢ LANDMARK CASE
Landmark cases, such as Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, played
a pivotal role in clarifying the application of notional partition in practice.
The judiciary’s interpretation and clarification became crucial in ensuring fair and just outcomes,
addressing the complexities and ambiguities arising from legal reforms.
➢ ABOLITION OF SURVIVORSHIP
The most transformative change came with the 2005 amendments to the Hindu Succession Act, which
marked the outright abolition of the doctrine of survivorship. Daughters were granted equal
coparcenary rights, challenging the traditional notion that only male heirs could inherit ancestral
property. The amendments brought about a paradigm shift by recognising daughters as coparceners
with the same birthright privileges as sons.
➢ CHALLENGES AND INTERPRETATIONS
Despite the progressive changes, challenges remain, including the need for clarity on the retrospective
application of amendments. Legal cases such as Prakash vs. Phulavati and Danamma v. Amar
Singh have raised questions about the timing of a father’s death and the status of pending partition
cases, highlighting the nuances and potential conflicts in the application of the hindu law.
➢ Difference between the rule of succession and rule of survivorship
The amendment of the Hindu succession act in 2005 brought forth the rule of succession overrules of
survivorship. Prior to this amendment the daughters and other female relatives of the family were only
considered as heirs and were entitled to their share of notional partition only after the death of the
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Karta while all the male members were eligible to acquire their shares even before the Karta’s death
due to bearing the rights of coparceners, this was the rule of survivorship.
The rule basically meant that only sons of the family could inherit property by coparcener rights
because they were considered responsible for the further survival of the family name. While the rule
of succession implies that the property would be inherited by the order of birth irrespective of gender.
This rule was introduced by the 2005 amendment and thereby included the daughters of the family
within the coparcener rights.
ANCESTRAL PROPERTY
While not defined explicitly under any provision, the Hindu Succession Act 1956 covers the concept
of ancestral property. Any property that is generationally inherited through only male ancestors is
known as an ancestral property. For any property to become ancestral property, it needs to be passed
on to at least four generations. That is, from great-grandfather to grandfather to father to son, all on
the paternal side.
The concept of ancestral property is unique to Hindu law, making it a part of the Hindu Succession
Act, which only applies to Hindus, Sikhs, Jains, and Buddhists. It is a type of coparcenary property, in
which multiple people inherit the same property as a joint ownership. In its essence, an ancestral
property is an undivided property with transferrable interest.
According to the Mitakshara school of law, the essential part of any ancestral property is that it passes
through the male members of the family. While female heirs can now also claim ownership and
interest, any ancestral property passed from the female heir to her children (male or otherwise) would
not be qualified as ancestral property. Instead, it would be recognised as a separate property.
This was backed in the case of Muhammad Husain Khan v. Babu Kishva Nandan Sahai (1937), where
it was held that any property passed down or inherited from the maternal side or the female line of
descent would not be recognised as an ancestral property under Mitakshara law.
To simplify it, for any property to be recognised as an ancestral property, it shall have the following
characteristics:
• It should be passed down through at least four generations.
• The right to property or the interest in the property itself shall be acquired by birth. In other
words, the son shall have an interest in the ancestral property from birth, regardless of
whether his father is alive at the time or not.
• The property shall not have been divided in a partition by the Hindu Joint Family. Partition of
any ancestral property results in the divided property being recognised as a separate property
of the individual.
• The ratio or percentage of interest in the ancestral property shall be determined on the basis of
the subdivision of the amount of property inherited by the direct predecessor. In simpler
terms, if the father inherits ⅓ of the property, then his two sons will inherit ⅙ each.
• Property inherited by will, gift, or any other method is not recognised as ancestral property.
• Property inherited from the maternal side or by anyone other than the direct male line of
descent (father, father’s father, father’s father’s father, etc.) would not be recognised as
ancestral property. Even a transfer of ownership of property from the brother would not be
recognised as one. Instead, these properties would be recognised as separate properties.
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• Separate or self-acquired property can only be recognised as ancestral property when they are
added to the ancestral property and are enjoyed by the undivided family together.
➢ ANCESTRAL PROPERTY AS HUF PROPERTY
While there are many similarities between a Hindu Undivided Family (HUF) property and an
ancestral property, both are still treated differently in the legal context. The biggest difference between
the two is ownership. The Karta is the head of a HUF property and has the responsibility to manage
all the affairs pertaining to the property, including its sale, lease, or even mortgage. However, such is
not the case in ancestral property, where the consent of all the legal heirs is required for any such
decision.
In the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen (1986), the Supreme Court held
that any immovable property passed down at least up to three generations or degrees may qualify as a
HUF property automatically. As such, any member with an interest in that property would no longer
remain in the position as prescribed under Section 8 of the Hindu Succession Act, 1956, which gives
the position of a male heir in case of succession.
Later, in the case of Yudhishter v. Ashok Kumar (1987), the Supreme Court reiterated the judgement
given in the previously mentioned case. It was held that after the enforcement of Section 8 of the
Hindu Succession Act, any inheritance of the ancestral property shall not create an HUF property. In
simpler terms, the ancestral property shall be recognised as a HUF property only if it was inherited
before the enforcement of the Act in 1956 and continues to exist and be passed on even after. Any
ancestral property created and passed on after that shall not be constituted as a HUF property
➢ LEGAL IMPLICATIONS OF OWNERSHIP
As stated earlier, ancestral property is a type of coparcenary property. The term ‘coparcener’ here
refers to the legal heirs of the property who have an interest in or right to ownership in the ancestral
property from the moment of their birth. This type of property is usually passed onto joint family
members, where the property remains undivided while legal heirs enjoy their respective interests in
the shares of the property.
As held by the Supreme Court in the case of Rohit Chauhan v. Surinder Singh & Ors (2013), all
coparcenary properties usually consist of the ancestral property of the family that shall not be divided
or partitioned if that status is to be maintained. The Court also defined a coparcener as an individual
legal heir who inherits a common ancestral property alongside other coparceners. In simpler terms, a
coparcener is a member of a joint family with an interest or right of ownership in the common
ancestor property of the family.
Thus, only coparceners can claim any interest or right of ownership over an ancestral property. Other
non-coparcener members (like the daughter-in-law) only have the right to claim maintenance,
especially in case something happens to the coparcener they are related to. In simpler terms, non-
coparcener members have no inherent interest in the ancestral property, because of which they cannot
claim any right to ownership either.
On the other hand, if the coparcener is the only surviving legal heir of the ancestral property, he shall
claim over the entire property. In the case of multiple coparceners, each legal heir is entitled to only
one share of a property, which shall be proportionate to the number of coparceners in their generation.
They can, however, claim their share by seeking a partition of the ancestral property.
While the ancestral property is mostly maintained and managed by the eldest male coparcener of the
family, or ‘Karta’, all the coparceners have an equal say in the transfer or sale of the property. In
simpler terms, the transfer of ownership of an ancestral property requires the consent of all the
coparceners of the property. Without such a consensus, no sale or transfer can take place.
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Furthermore, the right to ownership of an ancestral property is equal for both the father and the son. In
simpler terms, both have a right to claim ownership of the ancestral property from birth. However,
what differs is the share that is to be claimed, since the share of the son in the ancestral property
directly depends on the determined share of the father. It is the father’s share that will be subdivided
further among the son and his successive generations. Due to this, the interest of each successive
generation diminishes due to the share determined by the first generation only getting subdivided into
the next one.
➢ ACQUISITION
As explained earlier, ancestral property is any property or possession that is passed down from father
to son for at least four generations. By this definition, we can conclude that the mode of acquisition of
an ancestral property is usually by passing down the property after the death of the father. In simpler
terms, it follows the succession of an undivided property, where the whole of it passes onto the son
after the death of the father.
However, while the acquisition of ancestral property is not made until after the death of the current
generation in possession, the next generation still has an interest and right in the property from the
moment of his birth. In other words, a child acquires an interest in the ancestral property along with
the right to inherit it from the very day they are born, as held in the case of Smt. Ass Kaur by L. Rs v.
Kartar Singh By L.Rs. (2007).
Unless disqualified under Sections 25 to 28 of the Hindu Succession Act, all the heirs have an equal
right over the ancestral property proportionate to the right of the previous generation on the property.
All heirs, regardless of gender, can claim their rights over the ancestral property. There is no explicit
time limit mentioned for the claiming of ancestral property under Hindu law.
Thus, it can be said that the heirs can claim their interest in the ancestral property at any time, given
they have evidence to prove their right to the ancestral property and are not disqualified as an heir for
succession.
Legal heirs can also relinquish or waive their right to ancestral property by giving a formal declaration
of such waiver of the right to inheritance in favour of the other heirs besides them. Once such a
declaration of relinquishment is made through a deed, the heir cannot claim any right over the
ancestral property. Furthermore, the children, or even the children of the children of the heir, cannot
claim any interest in the ancestral property due to the relinquishment of the rights. This was further
clarified in the case of Elumalai @Venkatesan v. M. Kamala (2023), where the Supreme Court held
that the relinquishment of the right to inheritance by the son will also extend to his successors by
binding them through estoppel.
Usually, all heirs have an equal claim to the ancestral property, which remains undivided among the
members. Due to this, any kind of transfer of the ancestral property needs to be approved by all the
legal heirs. This includes a gift, sale, lease, mortgage, or even partition of the property. Any
disagreements or discords between the heirs can be settled through court proceedings or alternate
dispute resolution methods.
➢ LIMITATIONS ON ACQUISITION
1) Cannot be divided: Ancestral property, which must be passed through the male heirs for four
generations, is usually jointly owned by the descendants of the family. Any division or
partition of the property results in the property becoming a separate property. It is a type of
coparcenary property in which multiple people inherit the same property as a joint owner. In
its essence, an ancestral property is an undivided property with transferable interest.
2) Only passed through male heirs: While the female descendants also have an interest or right
to claim over the ancestral property, any such property passed onto the next generation from a
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female heir is usually identified as a separate property rather than an ancestral one. Thus, to
maintain the status of the ancestral property during its acquisition, it has to be passed from the
father to the son.
3) Only claimed under Hindu law: As mentioned earlier, the concept of ancestral property is
unique to Hindu law, which only extends to Hindus, Sikhs, Jains, and Buddhists. Thus, people
practicing other religions cannot acquire ancestral property under the Hindu Succession Act.
4) Cannot be sold without the consent of all heirs: For the sale, mortgage, lease, etc. of the
ancestral property, the consent of all the legal heirs is required. Without the approval of all the
heirs, any sale agreement of such nature would be voidable at the option of the legal heir
whose permission was not sought. In cases of objection or disagreement, the legal heirs can
initiate a suit in court to prevent the sale from taking place.
5) Depends on the status of the predecessor: In the case of ancestral property, if the predecessor
has waived their interest or right to claim over the ancestral property, the successors also lose
such a right by estoppel. Thus, the acquisition of ancestral property directly depends on how
much right the predecessor has over the property.
6) Decreasing share with each generation: If the ancestral property remains the same, with no
additional property added to it by the members, then the ownership right of the father stands
equal to that of the son. However, with each passing generation, the share decreases with the
increase in legal heirs. In other words, the interest or right of claim over the ancestral property
is subdivided with each successive generation, which can result in the successive generations
having a negligible share of the ancestral property. For instance, if the ancestral property at
present is 100 and the father (A) has two sons (B and C), both the sons will have over 50
each. However, the heirs of each son will have their share of that 50 instead of the total 100.
In essence, C’s sons D and E will have 25 each, and their heirs will have to further divide that
25. Thus, the share of each generation is determined by the predecessor’s share, which shall
be subdivided among the future heirs.
INHERITED PROPERTY
Inherited property, as the term suggests, is the type of property that is passed onto an individual
through the process of succession. In simple terms, this is a type of property that is usually transferred
from one person to another after the death of the previous owner. The transfer can be through a
testamentary will or another inheritance law.
Usually, inherited property is received by an individual after the death of a family member, regardless
of whether it is from someone of direct lineage or not. Anyone from the maternal or paternal side can
pass on such property, including brothers and sisters.
Every religion has its own law of inheritance, with the Hindu Succession Act covering the inheritance
of Hindus, Sikhs, Jains, Buddhists, and Arya Samaj. Meanwhile, the Indian Succession Act, 1925,
covers the law of inheritance for Christians and Parsis. On the other hand, the Islamic law of
inheritance governs the Muslims, which does not differentiate between the inheritance of ancestral or
separate property, making the laws for both types of property similar in nature.
Furthermore, the ancestral property received from the maternal side can also be classified as an
inherited property, given how it would be separate. Usually, any personal property that was self-
acquired and then transferred to the next generation upon the death of the owner falls under this
category.
➢ LEGAL IMPLICATIONS OF OWNERSHIP
The legal implications of ownership of an inherited property are much simpler than those of an
ancestral property. Since the transfer of such property only needs the consent of the current owner, it
can be transferred at any time and without any restrictions except the ones given in the legal
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provisions. The owner can sell, lease, mortgage, gift, or bequeath the property as per their own
wishes.
The interest of a legal heir in an inherited property is not allotted from the moment of their birth,
unlike ancestral property. Instead, it is formally declared through a testamentary will or agreement.
The legal heir can even be disqualified as a successor. The owner of the property has complete right
over who shall be their successor and the conditions for such succession.
➢ ACQUISITION
As defined earlier, inherited property is any property that is received by a person through a gift or
testamentary will upon the death of the previous owner. It can be inherited from a family member, a
distant relative, or any other beneficiary. Unlike ancestral property, inherited property can be
transferred from both the maternal and paternal sides.
Under Hindu succession law, inherited property can usually be classified as a separate property that is
acquired by an individual during their lifetime. In simpler words, it is a type of property that is neither
acquired using the family funds nor is a part of the ancestral property. It is a self-acquired property.
Thus, given this definition, it can be said that the acquisition of inherited property is usually done by
either a transfer of the property through sale or gift or by passing it down after the death of the
previous owner through their testamentary will.
Let us take an example for better understanding. If a father transfers the ownership of his house,
which is self-acquired in nature, to his son, then such property can be recognised as an inherited
property. The transfer of such property can be by will, gift, or, in some cases, sale. However, it is not
mandatory that only self-acquired property shall be transferred as inherited property. In certain
circumstances, an ancestral property can also become an inherited property.
As noted earlier, the only property that can be identified as ancestral property is usually inherited by
the male heirs for more than four generations. Therefore, any ancestral property that is passed down
by a female heir to their children can be classified as an inherited property as opposed to an ancestral
property.
This point of view was first addressed in the case of Muhammad Husain Khan v. Kishva Nandan
Sahai (1937), where the question arose as to whether the son should have an interest from birth in the
property that his father inherited from his maternal grandfather. The Bombay High Court had held that
any ancestral property inherited from the maternal side would cease to be ancestral in nature and shall
be treated as an inherited property upon succession.
This stance was iterated by the Supreme Court in the case of Maktul v. Mst. Manbhari (1958), where
it was held that the Mitakshara school of Hindu law states that an ancestral property can only be
passed down from a male ancestor to a male successor. In the case of a female ancestor, the ancestral
property passed down to the next generation shall become a separate property.
This principle would also be followed in the case of any ancestral property passed from family
members other than the father or direct male ancestor, such as brother, uncle, aunt, grandparents, wife,
etc.
➢ LIMITATIONS ON ACQUISITION
1) Not guaranteed: Unlike ancestral property, the acquisition of inherited property is not always
guaranteed. Testamentary wills can be changed and legal heirs can be disqualified as per the
inheritance laws. Furthermore, such property can also be transferred to those who may not
identify as legal heirs through gifts, trusts, etc. under the Transfer of Property Act, 1882.
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2) Contestation: The right to ownership of inherited property can be contested by the other legal
heirs, especially in cases where the predecessor passed away interstate. Thus, the succession
of such property can lead to lawsuits that may drag on for years without any proper
settlement.
Arunachala Gounder v. Ponnusamy, (2022) 11 SCC 520
The Supreme Court held that the self-acquired property of a Hindu male dying intestate i.e., without
writing a will, would devolve by inheritance and not by succession. Further, the Court said that such
property shall be inherited by the daughter, in addition to the property of the coparceary which was
obtained through partition. The Court observed that if a woman dies intestate, then any ancestral
property passed onto her from her father would be bestowed upon the heirs of her father and similarly
the property passed onto her from her husband’s family would be bestowed to her husband’s heir.
K.C. Laxmana v. K.C. Chandrappa Gowda, 2022 SCC OnLine SC 471
The Supreme Court held that a Hindu father or any other managing member of a Hindu Undivied
Family has power to make a gift of ancestral property only for a ‘pious purpose’ and what is
understood by the term ‘pious purpose’ is a gift for charitable and/or religious purpose. Therefore, a
deed of gift regarding the ancestral property executed ‘out of love and affection’ does not come within
the scope of the term ‘pious purpose’.
Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1
The Supreme Court held that a woman/daughter shall also be considered as a joint legal heir as a son
and can inherit ancestral property equally as male heir, irrespective that the father was not alive before
the Hindu Succession (Amendment) Act, 2005, came into effect.
SELF ACQUIRED PROPERTY
Property acquired from any person other than his or her paternal ancestors. Property acquired by the
Hindu as his share of the partition of joint family property provided he has no son in existence.
Property gifted by the father to her daughter at her marriage is known as separate property or self-
acquired property. In a self-acquired property, ownership is straightforward with the buyer being the
sole owner of the property. As an owner, one can transfer or sell the property to anyone at any time.
The Hindu Succession Act, 1956, states that any property that is acquired by a person himself, either
by way of his own resources or by way of division of the ancestral property, is his self-acquired
property. Similarly, a property acquired by virtue of being a legal heir, through a gift deed or ‘will’ etc.
also comes under the category of self-acquired property. Property inherited from a deceased brother,
uncle, etc. is also self-acquired property.
➢ TYPES OF SELF ACQUIRED PROPERTY
1. Property acquired by own exertion and not by joint labor with other members of the family, without
detriment of family property.
2. Property inherited by a Hindu from anyone other than his father, grandfather or father
3. Property obtained as his share in partition of a joint family property, provided he has no issue (Issue
in family law means children. If children are there, then they would also obtain a right to the property
by birth as before partition it was part of Joint Family Property. After partition the person along with
his sons would constitute a coparcenary.)
4. Property devolving upon sole surviving coparcener – no widow in existence who has the power to
adopt or have a child in the womb.
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5. Property obtained by gift or will–not made to proposition by father, G For GGF–made exclusively
for himself not for benefit of family
6. Property obtained by way of gift of ancestral movable property by father by way of affection
7. Governmental grants
8. Joint Family Property lost and subsequently recovered without the help of joint family funds
9. Gains of learning
10. Income from separate property
11. Marriage gifts
12. Income from Joint Family Property allowed to a person for their maintenance – eg. Amount given
as maintenance to widows
13. Benefit of insurance policy–premium paid from Joint Family funds but for benefit of the intended
person only.
➢ WHO HAS RIGHTS ON SELF-ACQUIRED PROPERTY
Sons and daughters have the first right (as Class I heirs) over the self acquired property of their father
if he dies intestate i.e. without leaving a Will and since both the son and daughter are also
coparceners, they also have the legal rights to get shares in ancestral property.
➢ CAN SELF ACQUIRED PROPERTY BE CHALLENGED
Yes you can challenge it. But before that some aspect has to be seen that is whether property was self
acquired property of your father and if so then your father has absolute right to execute will under
section 30 of Hindu succession act.
➢ CAN SELF ACQUIRED PROPERTY BECOME AN ANCESTRAL PROPERTY
According to the Hindu law, properties can be classified into two types: an ancestral property and a
self-acquired property. The self-acquired and undivided property of a person’s great-great grandfather
becomes an ancestral property.
Self-acquired property in common pool treated as joint property: Karnataka HC
If a member of a Hindu Undivided Family (HUF) puts their self-acquired property into the common
pot, giving up their individual claim, it becomes a joint property, the Karnataka High Court (HC) has
ruled.
While dismissing an appeal by one T Narayana Reddy and another, Justice Krishna S Dixit and
Justice G Basavaraja, said: “Law relating to blending of separate property with those of joint family is
well settled. Such an intention can be inferred by the words and if there are no words, then from his
conduct.”
Housewives have equal share in husband’s self-acquired property: Madras HC
Housewives have an equal share in the property purchased by the husband since they contribute to the
acquisition through daily chores, the Madras High Court (HC) has ruled. The ruling came as a verdict
in the Kannaian Naidu and others versus Kamsala Ammal and others case.
“No law prevents the judges from recognising the contributions made by a wife facilitating her
husband to purchase the property. In my view, if the acquisition of assets is made by joint contribution
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(directly or indirectly) of both the spouses for the welfare of the family, certainly, both are entitled to
equal share,” the HC said in the order dated June 21, 2023.
“In generality of marriages, the wife bears and rears children and minds the home. She, thereby, frees
her husband for his economic activities. Since it is her performance of her function which enables the
husband to perform his, she is in justice, entitled to share in its fruits,” it added.
SECTION 6 OF HINDU SUCCESSION ACT
Coparcenary is a concept that consists of those people in a Hindu joint family who inherit or have a
common legal right to their ancestral property. Such people are called coparceners. These are the
descendants of a common ancestor, and they acquire their right to joint property by birth. The Act also
provides for the devolution of interest in coparcenary property, and there has been a change in the
position with respect to coparcenary property due to the Hindu Succession (Amendment) Act, 2005.
➢ BEFORE AMENDMENT
As mentioned earlier, the Mitakshara school recognises two modes of devolution of property, i.e., by
survivorship and by succession. The rule of survivorship applies to coparcenary property, while
succession applies to the separate or self-acquired property of a person. Coparcenary property is an
ancestral property of a Hindu joint family and consists of:
• Property inherited by a person from their ancestors,
• Any property whose acquisition was done by the coparceners with the help of ancestral
property,
• Joint acquisition by coparceners,
• Separate property of coparceners as common stock.
The concept of coparcenary ceases to exist once a partition is done in a Hindu joint family. Section 6
of the Act provides for the devolution of interest in coparcenary property. Before the Amendment of
2005, if a person died intestate, i.e., without making a will, his interest in the coparcenary property
would be governed and devolved according to the rule of survivorship and not succession. It further
prescribed that if a person who died intestate left female heirs mentioned in Class I, then the rules of
succession would be applicable, which means that the rule of survivorship was not applicable to
female heirs nor did they inherit property if male heirs were present.
For example, if A person X dies intestate, leaving behind his two sons, B and C, and a daughter, D.
His undivided share would devolve on B and C according to the provision before the amendment. In
the case of Satyendra Kumar v. Shakuntala Kumaru Verma (2012), the court held that if a person or
coparcener gifts his undivided share in a coparcenary property as a gift and there is no evidence to
show the completion of partition, such a gift will be void.
➢ AFTER AMENDMENT
The position of the law with respect to coparcenary property has changed since the 2005 amendment.
It is now a well-established law under Section 6 of the Act that daughters are coparceners by birth and
have the same and equal rights as sons. She has all the rights to inherit coparcenary property like a son
and would also have to fulfil the liabilities. All of this is applicable after the commencement of the
amendment Act. However, there will be no change in any devolution done before 2004.
It also provides that such a property inherited by a female will be her own property, and she will be an
absolute owner and not a limited owner. It further states that a coparcenary property will be devolved
assuming that a partition has taken place with respect to such property, in which the daughters will
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receive the same share as given to the sons. The Court, in the case of Ramesh Verma v. Lajesh Saxena
(2017), held that the rules of succession will be applicable to separate property acquired by a person
on division by notional partition.
The Madras High Court clarified that unmarried daughters are coparceners by birth and must be
treated equally with sons and hence be given an equal share like him. The Amendment Act also
provides that the right of married girls to seek partition is an absolute right and is not restricted by any
limitation (Nagammal v. N. Desiyappan, 2006). The Supreme Court in one of the cases held that the
rights of daughters as coparceners under the 2005 amendment were not limited to their date of birth.
They are entitled to be coparceners irrespective of their birth date (Prakash v. Phulavati, 2016).
Vineeta Sharma v. Rakesh Sharma (2020)
Facts: In this case, the coparcener had died before the 2005 Amendment Act came into being, and
hence, it was held that the daughter (Vineeta Sharma) was not entitled to a share in the coparcenary
property as she was not the daughter of a living coparcener. This is irrespective of the father being
alive before the Amendment.
Judgment: Section 6 of the Act was given the correct interpretation by a 3-judge constitutional bench.
The Court based on past judgments and authorities said that joint Hindu family property is
unobstructed heritage and the right of partition is absolute which is given to a person by virtue of
his/her birth. The Court went on to say that obstructed heritage rights are not by birth. It depends upon
the death of the original owner of that separate property. The SC overruled its judgment given in the
case of Phulavati vs Prakash (2015) and held that coparcenary rights are transferred from a father to a
living daughter. They cannot be transferred from a living coparcener to a living daughter. The Court
talking about the effects of the provisions of Section 6 said that these provisions are retroactive in
nature. They are neither prospective nor retrospective in nature.
Section 6 being retroactive in nature means that on and after 9th November 2005 it is immaterial
whether the father is dead or alive for granting equal rights to the daughter as same as the son. This
judgment, one can say that it has ended years of uncertainty over the correct interpretation of Section
6 of the Hindu Succession Act 1956.
TYPES OF SUCCESSION
1) Testamentary Succession: When the succession of the property is governed by a testament or
a will, then it is referred to as testamentary succession. Under Hindu law, a Hindu male or
female can make the will for the property, including that of a share in the undivided
Mitakshara coparcenary property, in favour of anyone. This should be valid and legally
enforceable. The distribution will be under the provisions of the will and not through the laws
of inheritance. Where the will is not valid, or not legally enforceable, then property can
devolve through the law of inheritance.
2) Intestate Succession: Intestate has already been defined above as someone who dies leaving
behind no will or testament. When such a situation happens, then this property will be
distributed among the legal heirs by following the laws of inheritance.
RULES OF OWNERSHIP IN THE CASE OF MALES
Section 8 lays down the general rules for succession in the case of males. Section 8 applies in cases
where succession opens after the commencement of the Act. It is not necessary that the death of the
male Hindu, whose property has to be devolved by inheritance, should take place after the
commencement of this Act. For example: if a father, during his lifetime, settles his property in favour
of his wife and after the death of his wife, wishes that it should pass to his daughter, and the daughter
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dies after the commencement of this Act, then the succession will open and the property would
devolve according to Section 8.
Classification of heirs
Heirs are classified into four categories:
• Class I
• Class II
• Class III (Agnates)
• Class IV (Cognates)
Class I heirs
• Sons
• Daughters
• Widows
• Adopted sons
• Mothers
• Sons of a predeceased son
• Widows of a predeceased son
• Son of a predeceased son of a predeceased son
• Widows of a predeceased son of a predeceased son
• Daughter of a predeceased son
• Daughter of a predeceased daughter
• Daughter of a predeceased son of a predeceased son
• Son of a predeceased daughter
• Daughter of a predeceased daughter of a predeceased daughter
• Son of a predeceased daughter
• Son of a predeceased daughter of a predeceased daughter
• Daughter of a predeceased daughter of a predeceased son
• Daughter of a predeceased son of a predeceased daughter
All of them will inherit simultaneously and even if any of them is present, then the property will not
go to the Class II heirs. All Class I heirs have absolute rights in the property and the share of a Class I
heir is separate, and no person can claim a right by birth in this inherited property. A Class I heir
cannot be divested of his/her property, even by remarriage or conversion, etc.
Until the Hindu Succession (Amendment) Act, 2005, the Class I heirs consisted of twelve heirs, eight
of which were females and four were males, but after 2005, four new heirs were added, of which
eleven are female and five are male.
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Now we will observe who classifies as son, mother, daughter or widow and what kind of interests
they have in the property.
Son
The expression ’son’ can include both a natural-born son or adopted son but does not include a
stepson or illegitimate child. In Kanagavalli v. Saroja AIR 2002 Mad 73, the appellants were the legal
heir of one Natarajan. Natarajan was earlier married to the first respondent, the second respondent was
the son and the third respondent was the mother of Natarajan. The first respondent obtained a decree
of restitution of conjugal rights but still no reunion occurred between them. The first appellant
claimed to have married Natarajan in 1976 and the appellants 2 to 5 were born through them.
Natarajan died afterward. The suit was filed for declaration that the appellants were the legal heirs of
the said Natarajan along with respondents 1 to 3, and they were entitled to the amounts due from the
Corporation where Natarajan worked. The Court held that a son born of a void or voidable marriage
that is declared to be annulled by the Court will be a legitimate child and would thus inherit the
property of his father. A son has an absolute interest in the property and his son cannot claim birthright
in it. Therefore, ‘son’ does not include a grandson, but does include a posthumous son.
Daughter
The term ‘daughter’ includes a natural or adopted daughter, but not a stepdaughter or illegitimate
daughter. The daughter of a void or voidable marriage annulled by the Court would be a legitimate
daughter and thus would be eligible to inherit the father’s property. The daughter’s marital status,
financial position, etc is of no consideration. The share of the daughter is equal to that of the son.
Widow
The widow gets a share that is equal to that of the son. If there exists more than one widow, they
collectively take one share that is equal to the son’s share and divide it equally among themselves.
This widow should have been of a valid marriage. In the case of Ramkali v. Mahila Shyamwati AIR
2000 MP 288, it was held that a woman who was in a voidable or void marriage, and that marriage
was nullified by the Court on the death of the husband, would not be called his widow and would not
have rights to succeed to his property.
If the widow of a predeceased son, or the widow of a brother has remarried, then she shall not be
given the term of ‘widow’, and will not have the inheritance.
Adopted son
The Act has clearly clarified the position of sons with respect to succession. He has been given all his
rights as of the date the Act was enacted. Before the amendment of 2005, he was preferred over
daughters and was eligible to be a coparcener but after the amendment, even the daughters are given
equal rights. The question that arises now is whether an adopted son has any right to inherit
property. This question has been amicably addressed by the Act. The explanation to Section 6(4) of
the Act clearly states that a son, grandson, or great-grandson includes a son who was born or adopted
before the commencement of the Amendment Act of 2005. This also means that an adopted son is
treated the same as a natural son under the Act and has all the rights given to him.
Class II heirs
The Class II heirs are categorized and are given the property in the following order:
• Father
• Son’s Daughter’s son
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• Son’s daughter’s daughter

• Brother
• Sister
• Daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s
daughter’s daughter
• Brother’s son, sister’s son, brother’s daughter, sister’s daughter
• Father’s father, father’s mother
• Father’s widow, brother’s widow
• Father’s brother, father’s sister
• Mother’s father, mother’s mother
• Mother’s brother, mother’s sister
If no one from the Class I heirs takes the property, then Class II heirs fall in line to get the property.
In Kalyan Kumar Bhattacharjee v. Pratibha Chakraborty AIR 2010 (NOC) 646 (Gau), the property fell
into the share of the defendant’s brother named Ranjit, who was unmarried. However, he became
traceless and the property was divided amongst two other brothers in equal shares. The plaintiff’s
brother called Jagadish then executed a will in favour of both the plaintiff and died afterward.
However, the defendants then asked them to vacate the land, contending that inter alia that the land
has been purchased in the name of three brothers; namely Jagadish, Ranjit and Kalyan, defendant
number 1. It was held that when a Hindu male is unmarried and he dies, and is not survived by a Class
I heir, the Class II heirs would get the property.
Similarly, when in heirs in Class III and IV are there, the property would only go to them if no one
from Class II is present.
Class III heirs
This consists of the agnates of the deceased. Class III heirs only inherit the property when none from
the earlier classes gets the property.
An agnate is a person who is related to the intestate only through male relatives. An agnate can be a
male or a female.
Rules of preference among agnates
• Each generation is referred to as a degree. The first degree is intestate.
• Degrees of ascent mean ancestral or upwards directions.
• Degrees of descent means in the descendants or downward direction.
• Where an agnate has both ascent and descent degrees, each has to be considered separately.
• An agnate having a descent degree will be preferred over the one having an ascent degree.
• When two agnates have ascent and descent degrees, the one having a lesser number of ascent
degrees will be preferred.
Class IV heirs
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A cognate (Class IV) is someone who was related to the intestate through mixed relatives, in terms of
sex. For example, an intestate’s paternal aunt’s son is his cognate, but his paternal uncle’s daughter
will be an agnate.
Therefore, to sum up it can be said that the property of the Hindu male devolves in the following
manner:
• First, to the heirs in Class I.
• Second, if there exists no heir of Class I, then it goes to Class II heirs.
• Third, if none from the Class I or II exists, then it goes to the agnates (Class III).
• Fourth, if no one from the earlier three classes exists, then it goes to the cognates (Class IV).
AMENDMENT FOR GENDER EQUALITY
The Hindu Succession Act of 1956 underwent essential changes in 2005, i.e., the Act got amended,
and it was a landmark change. This amendment focused on gender equality and the rights to ancestral
property. This amendment also had a significant effect on female felicity because, after the
amendment, females could also claim their rights over ancestral property, which was also one of the
reasons for female felicity.
When we look into the amendment, there are some of the key provisions, which are.:
1. Removal of gender bias: By giving daughters equal rights to inherited property, the
amendment attempted to remove gender equality in Hindu inheritance laws. Before the
amendment, daughters’ rights to coparcenary property, which mainly belonged to male heirs,
were severely restricted. Regardless of when they were born before or after the 2005
amendment, daughters were granted the same rights as sons.
2. Equal and coparcenary rights to the daughters: The amendment explicitly addressed the
ideas of coparcenary, which denoted that the male members of a Hindu Undivided Family
(HUF) shared ownership of ancestral property. In addition to their sons, females were given
the right to become coparceners and receive an equal portion of the property. The ancient
system of patriarchal rules that favoured male lineage, which was significantly altered by
amendment, gave strength to women in the home and society.
3. Retrospective effect: The amendment’s retrospective applicability was one of the main
factors. It made it clear that rights granted by the amendment would be retrospective, meaning
daughters would still have an equal claim to ancestral property irrespective of the father’s
death before the amendment. This made up for an injustice done to the daughters, who were
denied their portion of property as there was discrimination against women.
4. Social and economic empowerment: The amendment had a significant effect on women’s
social and economic advancement. It gave daughters a feeling of safety, acceptance, and
financial independence. It closed the gender gap, advanced gender equality and gave women
more authority within the family and society by giving them equal rights to ancestral property.
This Hindu Succession (Amendment) Act 2005 brought about a drastic change among the
communities, and it strived for Article 14 of the Constitution, which is “equality.”. It just overlooked
previous gender-based discrimination, questioned conventional patriarchal conventions, and
acknowledged daughters equal rights to inherit familial property. The whole Hindu society accepted
the changes by giving equal rights to the daughters in the ancestral property. It also brought significant
changes to society.
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Exceptional circumstances in the Hindu Succession Act

The Hindu Succession Act provided a legal framework for the distribution of property. There will be
certain special cases, so some exceptions have also been inserted in the Act. So, some of the
exceptional cases are:
1. Adoption: When the couple doesn’t have any biological children, they don’t lose their rights
over their ancestral property. If the childless couple adopts a child in legal form, i.e., a legally
adopted child, then such a child will have the same rights and obligations over the ancestral
property of the adoptive parents.
2. Illegitimate children: An illegitimate child is a child born out of wedlock. In the 1956 Act,
the illegitimate child couldn’t claim any rights over the parental property. But the 2005
Amendment Act gave an illegitimate child a right over their mother’s property and even he
can claim the father’s property if parental consent is proven.
3. Women’s property (stridhan): Stridhan is a property or an asset that women have acquired
in the way of gifts, inheritance, and self-acquisition. This gives an exclusive right to the
women and it is not combined with joint family property. Women have a complete right over
the Stridhan property regarding its disposal.
4. Conversion: When a person gets converted, they lose their rights over the ancestral property.
The 2005 Amendment Act said that the conversion doesn’t take away the rights to ancestral
property, but it has some restrictions over the coparcener or heirs.
Even in exceptional cases, the Hindu Succession Act gave protection to the individual and also gave
rights and obligations to the individual over ancestral property.
➢ CASE LAWS
1) V. Tulasamma and Ors. vs. Sesha Reddi (dead) (1977)
In this case, the whole decision is very noteworthy because it made the rules for how the Hindu
Succession Act should be interpreted to promote gender equality clear. The court highlighted that the
act must be construed broadly in order to promote gender equality and prevent further gender-based
discrimination. This ruling established a standard for similar instances in the future and affected how
the court should address gender inequalities in succession rules.
2) Ms. Gita Hariharan and Anr. vs. Reserve Bank of India (1999)
In this case, the Supreme Court addressed the problem of discrimination against daughters concerning
succession. According to the judge, the daughter’s claim to her father’s properties was unaffected by
whether or not she was still living with her father at the time of his passing. It confirmed that girls,
regardless of their marital status, have equal rights to inherit family property. This ruling helped
establish the daughter’s equal and autonomous standing under succession rules.
3) Prakash vs. Phulavati (2016)
In this case, under the Hindu Succession (Amendment) Act, 2005, retroactive applicability was
addressed in the Supreme Court decision. The Court decided that even if the father had gone away
before the amendment took effect, the amendment guaranteeing daughters equal rights in coparcenary
property would still apply to him. This decision made it very clear that daughters had an equal claim
to inherited property.
4) Vineeta Sharma vs. Rakesh Sharma (2020)
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This case established how the Succession (Amendment) Act, 2005, should be interpreted. No matter
whether the father was still living or not at the time of the amendment, the court ruled that daughters
have rights to coparcenary property by birth. Additionally, it was decided that the change is retroactive
and supersedes any norms, practices, or previous rulings. The equal rights of daughters to inherited
property were confirmed in this instant case.
5) K Laxmanan vs Thekkayil Padmini & Ors: held that burden of proof is on propounder. He
has to prove legality & genuineness of Will by proving absence of suspicious circumstances,
testamentary capacity and signature of testator.
6) In a 2015 judgment in the Prakash v. Phulavati, a two-judge bench had held that if the
coparcener (father) had passed away before 9 September 2005 (date on which the amendment
came into effect), his daughter would have no right to the coparcenary property.
7) However, in the Danamma v. Amar in 2018, another two-judge bench had held that the two
daughters in this matter would get a share in the property, even if their father had passed away
in 2001.
8) Vineeta Sharma v. Rakesh Sharma held that daughters would hold equal coparcenary rights
in Hindu Undivided Family (HUF) properties even if they were born before the 2005
amendment to the Hindu Succession Act, 1956 (Act) and regardless of whether their father
coparcener had died before the amendment.
9) In P. Srinivasamurthy v. P. Lellavathy, it was held that where co-heir was not taken into
consideration to exercise his option, his suit for setting aside alienation is maintainable.
SECTION 15
Rules of female succession are stated under Section 15 and Section 16 of the HSA, 1956. Section 15
of the Hindu Succession Act provides for intestate succession (when one dies without making a will)
to a Hindu female intestate’s property. Before ascertaining the share that will go to which legal heirs,
it is important to know the origin of the property to know which provisions will apply for the
succession of the property. In case the Hindu female has succeeded property and she has children and
grandchildren alive then Section 15(1) of the HSA,1956 will be applicable but Section 15(2) is
applicable in case there are no children or grandchildren that are alive. If the said property is self-
acquired, through will, a gift, stridhan, etc then Section 15(1) will be applicable.
As per Section 15(1) of the HSA,1956, when a female Hindu dies without preparing a will then the
devolution of her property is done to the following as per rules set out in Section 16:
• Upon the sons and daughters which includes the children of any pre-deceased son or daughter
and the husband.
• Upon the heirs who are of the husband.
• Upon the mother and father of the female.
• Also upon the heirs of the father.
• Upon the heirs of the mother of the female.
If the property is succeeded by the female from her father’s family then the devolution of the property
is done to the heirs of the father. However, if the property is inherited from her husband’s family then
the heirs to the property are the heirs of her father-in-law and this is only when the husband is
predeceased already.

Omprakash and Others v. Radhacharan and Others (2009)

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In this case, Smt Narayani Devi was driven out of her matrimonial house once she got widowed just
after 3 months of her marriage. She then returned to live in her parental house where she received
education and found employment. In 1996, she died intestate and left behind various bank accounts
and huge sums of money in her provident fund. Her mother, Ramkishori, had applied for the grant of
a succession certificate. The respondents (sons of the sister of Narayani Devi’s deceased husband)
also applied for the same.
The Apex Court here assumed that the contention of the husband’s family not lending any support to
the deceased was correct but also opined that just because a case is tough, a different interpretation of
a statutory provision would not be invoked which is otherwise impermissible. In this case, Narayani’s
mother died, and her brothers became the appellants. The issue, in this case, was whether devolution
of self-acquired property of the deceased fell within the applicability of Section 15 (1) and Section 15
(2) of the Hindu Marriage Act, 1956. Section 15(1) lays down the ordinary rules of
succession. Section 15(2)(a) provides for a non-obstante clause, when the property is devolved upon
the deceased from her parents’ side, on her death the same would relate to her parents’ family. The law
is silent about the self-acquired property of a woman. Section 15(1) does not make a distinction
between self-acquired property and the property which the woman had inherited. The self-acquired
property of a female would be her absolute property and not the property which she had inherited
from her parents.
The Court relied on HSIDC v. Hari Om Enterprises (2008), Subha B. Nair v. State of Kerala
(2008), and Ganga Devi v. District Judge, Nainital & Ors (2008) to express the well-settled principle
of law that sympathy and sentiments will not be the only factor in determining the rights of parties
which are clear and unambiguous. The Court held that Sub-section 15(1) of the Act would apply and
not Sub-section 15(2) thereof. Sub-section 15(1) would apply only in a case where a female Hindu has
died intestate. In such a situation, the normal rule of succession as provided for by the statute must
prevail. The Court found no merit in the appeal and thereby, the appeal was dismissed.
Here, the Court granted the property to the very people who behaved cruelly with the deceased and
did not maintain the relationship when she needed it the most.
Tarabai Dagdu Nitanware and Ors. v. Narayan Keru Nitanware & Anr.(2018)
In the case, the petitioners had challenged the order which the Trial Court had given contending that
the respondent cannot have any share in the suit property because of provisions of Section 15(2) (a) of
the Hindu Succession Act, 1956 which says that if a female Hindu has inherited any property from her
father/mother, and if she doesn’t have any children of her own then it shall be devolved upon the heir
of the father. Over here the deceased’s husband who is the respondent had filed a suit for declaration,
partition, and injunction in the suit properties that belonged to the deceased. This suit of properties
was received by the deceased from her parents.
The respondent had children (not born to the deceased but from the respondent’s second wife) who
were claiming a share in the said property. According to the petitioners, the deceased Sundarabai had
died without any issues, and the husband’s children had not been born to the deceased, but to the
respondent’s second wife (which he admitted himself). So, these children would then have no share in
the suit properties. Section 15(2) (a) of the Hindu Succession Act, 1956 is applicable over here as this
provision excludes a husband from inheriting the property which was received by a female Hindu
from her parents if she does not have any children of her own or has died issueless.
The Trial Court accepted that the suit property which was received by the deceased, from her parents
and since the children were not hers, leads to the fact that Sundarabai had died issue-less or without
any heirs and in a situation where a son or daughter is absent, her husband can’t inherit her property,
but the property will devolve to the legal heirs of her father. Therefore, the husband had no reason to
file a suit for partition of Sundarabai’s property. Lastly, the High Court of Bombay held that if a
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Female Hindu dies childless or without any heirs then the property which was given to her by her
parents would be inherited by her parents and will devolve upon the legal heirs of her father and not
the husband.
➢ Gender bias and Section 15 of HSA, 1956
Generally, in India and the world over, the woman goes into the family of her husband after marriage
and not otherwise. A woman gives up her natal family ties and assumes her husband’s name after
marital ties. Hence, intestate succession for Hindus (females) has taken into consideration this ground
reality.
In practice, considering the present Hindu Succession Act, the property of the female is not likely ever
to devolve on a female Hindu’s parents, as the list of the husband’s heirs is so exhaustive. However,
there is no such provision when it comes to the devolution of a Hindu Male’s property. Also, any
property that devolved on a female through her husband would be reverted to the husband’s heirs on
her demise. However, similar consideration is not given to a property that a woman acquires through
the exercise of her skills. It’s so absurd that on the death of a Hindu female, intestate and childless and
with no surviving husband the unrelated distant relatives of the husband’s family have a stronger
claim to the Hindu female’s property than her own natal family.
It can be said that Section 15 is extremely discriminatory because the female’s property, even if self-
acquired, is not inherited by her core heirs. Further, a Hindu female, who could succeed to an estate of
another Hindu female as an heir, has a chance only after the distant relatives of the husband of the
deceased female who is not even known to her. Therefore, Section 15 should be considered ultra vires
of the scheme of the Constitution and hence invalid.
In contrast, if a Hindu Male dies intestate and childless leaving behind no surviving wife, his wife’s
relatives cannot stake any claim in her husband’s property. His mother has the highest priority of
succession followed by his father and siblings, distant relatives, etc. however, his wife’s natal family
has no claim to the property. This is highly discriminatory.
Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012)
It was argued in the Mamta Dinesh Vakil v. Bansi S. Wadhwa, (2012) case, that the inequality which
exists in Section 15(1) of the Act is not based on gender alone, but also on the family ties, and
considering this reality the legislature has provided for the heirs of the husband in the woman’s
property. The Bombay High Court, in this case, overruled this reason and added that the
discrimination in the Section is only based on gender and not on family ties. The Court analyzed the
succession scheme/pattern of the male intestates under the HSA,1956 to check the possibility of the
argument. It observed that keeping the property within the family was not being taken into the picture
because the property of a male Hindu would not be then inherited by his daughters, sister’s sons, and
daughters. It thus reasoned that the only basis of this classification was gender.
➢ Gender equality within other Indian succession laws
The two examples given in the Indian law scheme of devolution are more gender-equitable
than Section 8 and 15 of the HSA, 1956. The first one is the Goa Succession, Special Notaries and
Inventory Proceeding Act, 2012 (GSSNIP) and the second is the Indian Succession Act, 1925 (ISA).
Goa had become a part of the Union of India in 1961 after the enactment of HSA. The state of Goa
was earlier governed by the Portuguese Civil Code in matters related to personal law and the same
statute continued to be applicable even after joining the Union of India. The Civil Code of Goa is
based on the Portuguese Civil Code which contains the gender-equitable scheme of devolution. The
ISA also governs the testamentary succession for citizens of all religions. This statute also governs the
intestate succession for all religions other than Hindus, Muslims, Buddhists, Jains, and Sikhs. In the
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landmark judgment of Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012), the Bombay High Court said
that under the ISA the devolution scheme is more reasonable than the one which is prescribed by
Section 8 and 15 of the HSA, 1956, this is in spite of the ISA being older. Over here, there are two
pieces of legislation and they are compared to Section 8 and 15 of the HSA, this exercise has a two-
fold purpose. The first being the comparison, which can produce very useful insights on how one can
reform the HSA. Second, is that it acts as a demonstration for making the schemes of devolution in
the HSA gender-neutral which would not be a novel idea. Precedents for these kinds of reforms
already exist in India.
➢ Constitutional validity of Section 15 of HSA, 1956
Article 15(1) of the Constitution mandates that there cannot be discrimination against any citizen
based solely on religion, race, caste, sex, place of birth, or any of them since it is against the principles
of the constitution. But not the one which is based on the mentioned grounds along with some other
criteria like social and educational backwardness. There exist different laws for different religions but
there cannot exist different laws for different sexes.
When the Hindu Women’s Property Rights Act was enacted in 1937, the socio-economic conditions of
women were different. But today women hold a good share of personal property many times self-
acquired by her and her family ties with her in-laws are the same as with her own family owing to the
developing concept of nuclear families. The adoption of a century-old law to modern times and its
applicability to women today does not make any sense and presents the possibility of being
discriminatory and vague.
The term ‘property is not specifically defined by the Hindu Succession Acts but for the purpose of
Section 15 of the 1956 Act, it means the property of the deceased Hindu female heritable under the
Act. The property here includes both movable and/or immovable properties owned and acquired by a
Hindu female. This could be by inheritance, at partition, by gift, or by purchase.
This Section is unable to differentiate between the property inherited by a Hindu female and the self-
acquired property of a Hindu female. It only advocates that if the property is inherited from the
female’s husband or father-in-law, it would go to her husband’s heirs. In this situation, if the property
is inherited from her father or mother, then in the absence of her children, the property should go to
the heirs of her father and not go to her husband.
There is a legislative partiality to a Hindu female intestate’s in-laws over her blood relations. The
heirs of the husbands are considered more proximate in relation to an issueless Hindu widow when
compared to her paternal and maternal heirs and are given preference in the order of succession to her
property. The source of acquisition of property of a Hindu female is a deciding factor in the heirs but
so is not in the case of a Hindu male. Gross discrimination can be seen as when a married Hindu male
dies, his mother receives equal shares in the property along with his widow and children, while in the
case of death of a Hindu female, heirs of the husband rank before even her mother.
Section 15 of the Act is unfair as it has failed to consider the equity of the fate of the self-acquired
property of a Hindu female dying intestate. Absurdly, it appears that women would always be
subjugated and never venture out to earn money because the legislators while framing the legislation
did not envision, at that time, that Hindu females would hold self-acquired property.
Sonubai Yeshwant Jadhav v. Bala Govinda Yadav (1983)
The constitutional validity of Section 15 of the HSA, 1956, in question, was brought before the
judiciary in this case. It was held that the object of the legislation was to retain property within the
joint family upon marriage which brought males and females together, forming one institution.
Therefore, it is obvious then that in recognition of that position when the wife’s succession opened,
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the heirs of the husband were permitted to succeed. This was as a result of the unity of the wife into
the husband’s family upon marriage.
The succession laws are not about those who are entitled to the property only, but also about those
who should be disentitled. The 21st edition of Principles of Hindu Law (Mulla) also observes that
Section 15(2) is founded on the grounds that property must not pass to the individual to whom justice
would not require to pass.
It is ironic that even when the Hindu society is thriving towards gender equality, the succession laws
in our country continue to be discriminating, and legislation that discriminates only based on gender
should be questioned.
PARTITION
The division of property into two parts is known as partition. Under the Hindu law, partition means a
division of property of a Joint Hindu family in order to give separate conferment of status on the
undivided coparceners. It is pertinent to note that no partition is possible if there is only a single
coparcener in a Joint family. A coparcener is a person who inherits estate as cohier with others.
The concept of a coparcener is an integral part of the Joint family property in accordance with the
Hindu Law. Each of the coparceners has an equal share of the property of the Joint Hindu Family and
each of them reserves an inherent title in the property. If a Hindu Joint family decides to do partition
then its joint status of a family comes to an end. However, in order to establish a state of jointness
among the coparceners in a family, it is imperative to have at least two coparceners present in the
family.
A partition can be possible on the property which is capable of being partitioned. If at all there is a
separate property of any of the coparceners in the Joint family it cannot be subjected to partition3. In
the case of Mrutunjay Mohapatra v. Prana Krushna Mohapatra, the Court stated that when the elder
brother had purchased the property from his persona funds it cannot be subjected to partition and
included in the Joint Family at the instance of a younger brother.
Moreover, in the case of Prafulla Kumar Mohapatra v. Joy Kanta Krushna Mohapatra the court
stated that when the property belongs to the paternal uncle and there is no substantial evidence about
the share of the property of claimant’s father, it would be considered as separate property and not a
property of Joint Hindy family.
➢ Partition under Mitakshara and Dayabhaga School
The concept of partition under Hindu law is mainly regulated by two schools of thought, i.e.,
Mitakshara and Dayabhaga, respectively. Both schools have two distinct meanings for the term
‘Partition.’ As far as Mitakshara school is concerned, partition does not simply mean division of
property into certain or specific shares amongst the coparceners, but it actually means a division of
status along with severance of interest, i.e., in ancestral property, the shares of the coparceners
fluctuates as per the birth and death of the coparcener, which means that whenever a birth takes place
in a joint family, the shares of the coparceners decreases, whereas when the death takes place, the
shares of the coparceners increases by its very nature. Under this school of thought, property rights
are created by birth, and devolution is through survivorship. So, the partition is said to be completed
once the shares are defined, and therefore it is not required that the division of property should take
place via metes and bounds. Hence, under the Mitakshara school of thought, unity of ownership is
considered as an essence of the coparcenary.
Dayabhaga school: In a Dayabhaga school every adult coparcener reserves a right to demand
partition by the physical demarcation of his shares. Such partition must be in accordance with the
demarcation of specific shares of partition i.e. partition by bounds and metes.
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Mitakshara school: In Mitakshara school there is no demarcation of property into specific shares,
and essentials of a coparcener need to be established, but the existence of Joint property is not an
essential element for demanding partition. All it takes to demand a partition is a definite and
unequivocal declaration that conveys his intention of separating from the family.
➢ De jure and De facto Partition
De Jure Partition: In an undivided coparcenary, all the existing coparceners have a joint share in the
property, and till the partition takes place, none of the coparceners can tell the exact amount of share
that he owns in the property.
Further, due to the application of the doctrine of survivorship, the interests can keep on fluctuating
due to births and deaths of the other coparceners. But, when the community interest is broken down at
the instance of one coparcener or by mutual agreement that the shares are now clearly fixed or
demarcated, such type of partition is known as De Jure partition wherein there is no scope of
application for Doctrine of Survivorship.
De facto Partition: Unity of possession which signifies the enjoyment of property by the coparceners
may even continue after severance of Joint status or division of community interest. The amount of
shares in the property might not be fixed but no coparceners reserve the right to claim any property as
falling into his exclusive shares. “This breaking up of Unity of Possession is affected by an actual
division of property and is called a de facto partition.”
➢ Essentials of a valid partition
It is pertinent to note that a coparcener reserves a right to demand partition at any time without the
consent of the other coparceners. Therefore, in order to bring demand for partition the following
essentials must be established:-
1. There must be an intention to separate from the Joint Family.
2. There must be a clear, unequivocal and unilateral declaration which conveys the intention to
separate from the Joint Family.
3. The intention must be communicated to the Karta or to the other coparcener in his absence.
➢ Persons entitled to demand partition
As per Hindu law, every coparcener of a joint Hindu family is entitled to demand partition of the
coparcenary property. However, every coparcener does not have an unqualified and unrestricted right
for an enforcement of partition.
The persons, who are entitled to seek partition are as follows;
• COPARCENERS:
According to Hindu law, both a major and minor coparcener have a right to get a share during the
partition irrespective of whether they are demanding a partition as sons, grandsons, or great-
grandsons. A coparcener can make a demand for partition anytime with or without reason, keeping in
mind that this demand has to be complied upon legally by the Karta of the family. Here, all the
coparceners have an undivided interest in the property, and through a partition, the title is divided
amongst them, thereby leading to exclusive ownership. In the case of minor, the only condition that
has to be considered for demanding partition is that; the suit for partition has to be filed by a guardian
of the minor on behalf of the minor.
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• FEMALE MEMBERS:
Female members in this regard comprise of three types of females, i.e., the father’s wife, the widowed
mother, and the paternal grandmother. Generally, the female sharers do not have a right to ask for a
partition, but they can get their share when the joint family property is actually being divided after
partition. As far as the father’s wife is concerned, when a partition occurs between a father and his
sons, the wife is entitled to get an equal share to that of a son irrespective of the fact that whether the
partition has been affected by the father himself or it had occurred at the instance of a son. Due to
some reason, if the father passes away without effecting a partition, then according to the doctrine of
survivorship, the entire property will be taken by the son, and the wife will not get anything. On the
other hand, if we talk about a widowed mother, she is entitled to get an equal share to that of the
brother when a partition actually takes place after the death of the father, whereas a paternal
grandmother gets an equal share as that of a grandson when a partition occurs after the death of her
sons.
• DISQUALIFIED COPARCENER:
Any coparcener who is incapable of enjoying and managing the property due to any deformities like
incurable blindness, lunacy, leprosy, etc. from the time of the birth would be considered disqualified
and will be disentitled to get a share during partition, but, if in a joint family, a member has no
congenital disqualification, then he would acquire a right by birth, in the coparcenary property, and
thus, if he becomes insane subsequently over time, then he would not be deprived of his interest.
• SONS BORN AFTER PARTITION:
After-born sons are usually categorized under two heads; firstly, those sons who are born or conceived
after partition, and secondly, the sons born after partition but begotten before the partition. In other
words, if a son is said to be in her mother’s womb, then he would be treated in existence in the eyes of
the law and can re-open the partition to receive an equal share along with his brothers. On the other
hand, if a son is begotten or born after partition, and if his father has taken his share in the property
and has got separated from the other sons, then also the newborn son would be entitled to his father’s
share from the partition, but here, in this case, he wouldn’t be entitled to re-open the partition for his
separate property.
• SON BORN OF A VOID OR VOIDABLE MARRIAGE:
A male child born of a void or voidable marriage is considered to be the legitimate child of his parents
and, thus, is entitled to inherit their separate property as per the law. He cannot inherit the property of
parent’s relatives.As far as statutory legitimacy is concerned; the male child can be treated as a
coparcener for the properties held by the father. He does not have a right to ask for partition during the
putative father’s lifetime. Furthermore, he can ask for partition only after the father’s death. So, it can
be concluded that the rights of a son born of a void or voidable marriage are much better than an
illegitimate child but are inferior to those of a child born of a valid marriage.
• ADOPTED SON:
According to the present scenario, an adopted son can become a member of the joint family through a
valid adoption. This change was brought after the passing of HAMA, 1956, where all the laws related
to adoption were clarified and modified. Now, post-adoption, an adopted son is considered dead for
the natural family and is presumed to be born in the adoptive family, meaning thereby, he acquires a
right by birth in the joint family property from the date of adoption. Therefore, he is entitled to
demand a partition in joint family property and have a right to an equal share to that of the adoptive
father.
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• ILLEGITIMATE SON:
Under Hindu law, an illegitimate son’s right to get a share during the time of partition depends upon
the caste to which he belongs to. Presently, an illegitimate son cannot inherit from the father, but he
can inherit from his mother. As far as three castes are concerned, viz. Brahmins, Kshatriyas and
Vaishyas, an illegitimate son is not regarded as a coparcener under it and do not have any vested
interest in the joint Hindu family property, and thus, he is not entitled to demand a partition. However,
he is entitled to maintenance out of his father’s estate.
➢ Effect of Partition
A Partition can lead to severance of property or separation of property in a joint Family. After
partition, a person is considered as free from his rights, obligations, duties and responsibilities arising
out of a Joint Family. After the partition has happened the fixed number of shares of every existing
coparcener gets defined. Moreover, post-partition since the number of shares has been fixed the
fluctuations that happen in a family due to births and deaths stops. And the property which has been
acquired by the coparcener after the partition will be known as his separate property or self-acquired
property.
➢ Partition of coparcenary property
If an intention is expressed to partition the coparcenary property, then each share of coparceners
becomes clear and ascertainable. It is pertinent to note that once the share of the coparcener is
determined, it ceases to be a coparcenary property. The parties in such an event would not possess the
property as joint tenants but they will possess the property as tenants-in-common. Tenancy in
common is an arrangement where two or more people share rights in the property.
➢ Various modes of partition
1) Partition by father: The father under the Hindu Law has superior powers in comparison to the
other coparceners wherein by virtue of his rights i.e. ‘patria potestas’, he can separate himself
from the Joint family15 and also separate each and every son, including minors by affecting a
partition.
2) Partition by agreement: If all the coparceners dissolve the joint status, it is known as Partition
by agreement. The court does not have the power to recognize any partition unless there is an
agreement between the parties on mutually agreeable terms. Moreover, a Partition agreement
can also be an internal arrangement among the family members, wherein the rights are
compromised in order to keep the dignity of the family and avoid unnecessary litigation. It is
pertinent to note that coparceners by a mutual agreement, can agree that they would not affect
partition till the happening of certain event, specific time period or even till the life of a
particular coparcener.
3) Partition by Suit: The most common way to express one’s intention to separate himself from
the joint family property is filing a suit in the court. As soon as the plaintiff expresses his
unequivocal intention to get separated in the court, his status in the joint family property
comes to an end. However, a decree from the court is required which decides the respective
shares of the coparceners. The severance of status takes place from the date of filing such a
suit in the court. Both a minor and a major coparcener may approach the court for this
purpose.
In the case of Jingulaiah Subramanyam Naidu v Jinguliah Venkatesulu Naidu, a partition was sought
of the property in the name of the wife of the opposite party claiming that they are joint properties and
without making titleholder as the party. Therefore, the court stated that when the partition is sought of
a party, it is a mandatory condition to make titleholder as a necessary party.
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4) Partition by Conversion: Conversion to a non-Hindu religion can lead to severance of status

of coparcener belonging to the Joint Family. The member who converted into religion would
lose his membership of the coparcenary but it will not affect the status of other coparceners.
5) Partition by Arbitration: In this mode of partition, an agreement is made amongst the
coparceners of a joint family in which they appoint an arbitrator to arbitrate and divide the
property. Such a partition becomes operative from the date thereof.
6) Partition by Notice: “The essential element of partition is the intention to separate which must
be communicated to other coparceners. Therefore, a partition may come into effect even
by notice to the coparceners, whether accompanied by a suit or not.

➢ Right to Demand Partition

As a common rule, every coparcener of a Hindu joint family is permitted to demand partition of the
coparcenary/ Hindu joint family property.
1. Special power of father: A Hindu father reserves a right to effect a partition between himself
and his sons. Despite the express consent or dissent of his sons, he can exercise this right.
Therefore the severance of the property can be done as per the special power given to the
father.
2. Son, Grandson and Great-grandson: All coparceners, who is major and of sound mind is
entitled to demand partition anytime irrespective of whether they are sons, grandsons or great-
grandsons. A clear demand made by any coparcener, with or without reasons, is sufficient and
the Karta is legally bound to comply with his demand.
3. Daughter:-Moreover, daughters, son in a mother’s womb, adopted son, son born after void or
voidable marriage, an illegitimate son etc. also reserves a right to demand partition.
In the case of Pachi Krishnamma v. Kumaran, the court stated that the daughter claimed his share as
equal to the son in the partition of joint family property, but she failed to prove her customs which
says that a daughter can get an equal share as to the son. But after the amendment of 2005 in Hindu
Succession Act, it gave the power that a daughter has the right to ask for partition and can claim an
equal share as to the son in the partition of joint family property
In the case of Prakash & Ors. v. Phulavati & Ors Full Bench of the Bombay High Court in this case
in Para No. 23 of the judgement held that: Accordingly, we hold that the rights under the amendment
are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such
daughters are born. Disposition or alienation including partitions which may have taken place before
20-12-2004 as per the law applicable prior to the said date will remain unaffected. Any transaction of
partition effected thereafter will be governed by the explanation.
In the instant case of Danamma Suman Surpur & Anr. v. Amar & Ors, The Hon’ble Supreme Court of
India in this case as on 1st Feb 2018 held that: Daughters Have Equal Rights In Ancestral Property,
Even If They Were Born Before Enactment Of Hindu Succession Act.
In the instant case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan. Vs. Patel
Shantaben Bhikhabhai & Others, in this the Gujarat High Court as on 26/09/2017 held that a Hindu
daughter after marrying to a Muslim guy does not lose her right to inherit property under The Hindu
Succession Act . It was further observed that:
“Prima facie, I am of the view that for the purpose of getting her name entered in the record of rights,
all that was necessary to be indicated was that the applicant is one of the Class-I legal heirs. It was not
necessary for her to declare that she is married to a Muslim and she has embraced Islam by
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renouncing her Hindu religion. Once the question of law is answered in favour of the applicant, I do
not see any good reason to lay much emphasis on the issue of an affidavit filed by the applicant.”
4. Minor coparcener: The test for partition in case of a minor coparcener is whether the partition is
in the benefit or interest of the minor or whether it can cause danger to the interests of the minor
person. It is pertinent to note that it’s upon the discretion of the court to decide that a particular case
falls under the ambit of interests of the minor.
As per the Hindu Law, if at all a minor has an undivided share in a Joint Family the Karta of the Joint
family will act as a guardian of the minor. However, when it comes to the right to demand partition by
a person, the rights of the minor and rights of major are similar in nature.
The minor reserves a right to claim partition just like an adult coparcener by filing a suit through his
guardian. But, if it is found that the suit is not beneficial to the minor the suit can be dismissed.
Therefore, it is the duty of the court to serve justice to the minor by protecting their rights and
interests.
➢ Reopening of Partition
The Hindu law, after the partition, has made it possible to reopen the partition or revoke the partition.
In the cases of Mistake, Absentee Coparcener, Fraud, Son in Womb, Son conceived and born after
partition, Disqualified coparceners and the additional property after the partition can be reopened in
accordance to the Hindu Law.
1. Mistake: If at all the members of the Joint family have left their joint family properties by
mistake and are left out of the partition, then the partition can happen later.
2. Fraud: Any partition can be revoked which is done because of the fraudulent activities. For
example- If the assets are fraudulently represented, then the coparcener can claim his right for
the reopening of partition.
3. Disqualified coparcener: There can be instances wherein due to some technical constraint,
the disqualified coparcener can fall short of his share at the time of partition. He reserves a
right to get the partition removed by removing the disqualification.
4. Son in Womb: If a son is in Womb, and no shares were allotted to him, at the time of
partition then later it can be reopened.
5. Absentee Coparcenary: Coparcerner can reopen the partition if he is absent at the time of
partition and no share is allotted to him.
➢ Reunion under Hindu law
The Dayabhaga, Mitakshara and the Madras School of Law are of the opinion that when a member of
a Joint Family if once separated, they can only be reunited with father, brother and paternal uncle and
not with the other members of the family. It is pertinent to note that only the coparceners who are
affecting the joint status and it’s only at the instance of a coparcener that a reunion can take place.
In order to constitute a reunion, there must be the intention of the parties which conveys their interest
to reunite. By showing an intention to reunite there is an agreement between the parties to reunite in
the Joint family. Such an agreement need not necessarily be expressed and it can be implied also.
Moreover, the Burden of proof of reunion will be on the person who is willing to assert it. The
members tend to come back together if at all they can maintain the severance but can also dwell
together or trade together. This coming together is totally different from a formal reunion.
➢ Suit for Partition
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1) Suit for partition and Joint Hindu Family: Where there were no accounts of the joint family
income nor any substantial proof that has been submitted in order to show that property as
alleged was actually purchased by father from the Joint family income and on the other hand,
the defendant brother was successful in proving by cogent and necessary evidence that the
property in dispute was actually acquired from his own income and resources i.e. without
taking any aid from the joint family income, therefore, the suit filed by plaintiff-brother is
liable to be dismissed.
Moreover, it was further held that if at all any family member were living in the same premises, there
could not be any presumption or any inference with regard to the joint family nucleus so far as income
is concerned until and unless it is proved in accordance with any cogent legal evidence.
2) Suit for partition and separate possession filed by minor son: When the suit was filed by
minor son for partition and there was no dispute with regard to fact that Karta and his son
both were entitled to half of the share in the suit property, however, at a later stage it was
found that the Karta had sold a portion of the suit property without having the consent and
knowledge of the minor son.
Then it was accordingly held that in the event of partition between the parties the portion which is
sold already by Karta under sale in question cannot be allotted to his proposed share and as such no
prejudice per se would be caused to the minor son due to the sale in question and so impugned order
holding a sale in question and so it was accordingly held that the impugned order is valid and it does
not require any inference.
3) Suit for partition filed by widow :If at all a suit is instituted by a partition i.e. a member of a
Joint Hindu Family, all the coparceners have to be made parties to it, as defendants. Further,
wherein the partition is sought between the branches, then only branches who are
representative parties shall be made parties to the suit.It is imperative to note that all the
females in the family are entitled to get the share at the time of partition. or a purchaser of a
coparcener’s vested interest can also be implicated as defendants.
In the case of Jingulaiah Subramanyam Naidu v. Jinguliah Venkatesulu Naidu, in the instant case, a
partition was sought of the property in the name of the wife of the opposite party and they were
accordingly claiming that they were as the joint family proprieties and therefore no as such titleholder
of the instant property has been made. Therefore, the apex court held that when there is a partition of a
particular property, the titleholder must be made a necessary party for such property.
➢ Effect of oral partition
In Ram Charan Sharma v. Suresh Chand Pathak and others, the finding was recorded by the Trial
court that the deceased had orally partitioned the disputed property equally in favour of the two sons
during her lifetime in presence of her husband and sons.
However, the husband was claiming one-third share in the disputed property but due to failure on part
of the husband i.e. to examine himself before a trial court to state on oath that no partition had taken
place during the lifetime of his wife, it was duly held that husband would not be entitled to get one-
third share of the property that has already been partitioned because of oral partition is permissible in
accordance with the Hindu Law.
Moreover, in the same case itself, it was observed that the deceased had orally partitioned the property
in dispute equally in favour of the two sons during her lifetime in presence of her husband and sons,
however, husband’s claim for the one-third share in the property in dispute was rejected in absence of
a separate suit or a counterclaim by a husband seeking a decree for same from the Trial Court with the
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requisite court-fee, therefore, the husband was held not entitled to prefer an appeal against the
partition decree in favour of son.
In a case wherein it was not disputed that the suit property was a joint family property and the
document in respect of the partition came into existence after the commencement of oral partition had
already taken place, therefore the aforesaid document would neither require requisites of stamp or
registration. If at all there is an oral partition, the oral partition itself creates a vested interest in that
specific property and not the document which comes into existence later the document can be used for
proving the severance of status.
➢ Oral partition in a joint Hindu Family
It is pertinent to note that, where there was an oral partition in the joint Hindu family and the land was
duly partitioned among the father and his sons and land as also recorded in the revenue papers
accordingly, thereafter, if the father had the father has accordingly chosen to reside with elder son who
is taking care of father in terms of food and agriculture, it cannot be stated that there was a reunion of
the family as it was only a pious duty and obligation of the elder son or any other son of the family to
take care of the old father.
Therefore, when the father was taken care by the elder son, the land which fell into the share of the
father was taken care by the elder son, and the land which fell into the share of the father by itself
cannot be treated as an incidence of reunion.
It is imperative that there must be an agreement which is specific or implied in nature between the
parties which can also be gathered from the given circumstances. And the burden to prove the reunion
lies on the person who claims reunion of the partitioned family. Therefore, mere residing or providing
food and taking care of the lands of the old age father is not bound to be treated as a reunion of the
family i.e. to deprive other brothers to succeed property of the father, the consequence on his death
will be that all the sons will get an equal number of shares.
➢ Shares to female members at a partition
The allocation of shares to female members in Mitakshara coparcenary partition gives rise to
considerable uncertainty and doubt, especially after the passage of new enactments that codify the law
of succession, adoption and maintenance.
Most of this is due to partial codification of the Hindu Law. codifying the Hindu law of marriage,
succession, adoption and maintenance, the legislature left the law of partition unchanged and even
ignored the law of partition to be amended. Under the practice, however, Section 6 of the Hindu
Succession Act provides for the retention of a coparcenary under Mitakshara, thus granting succession
rights to female members of Class I of the Schedule or to male members who claim through such
female members.
➢ Partition at the lifetime of the father
(a)Taking a liberal view that a wife’s right to a share on partition during the father’s lifetime exists due
to her co-ownership in the property of the husband, the wife should be allocated a share on partition
during the father’s lifetime.
(b)Even if it is to be presumed that it is in place of maintenance, there is no express or implied
provision which, during the lifetime of the family, negates its right to such a share on the partition.
Such a case cannot be protected by Section 22(2) of the Hindu Adoptions and Maintenance Act, 1956,
if it has an impact at all, as it deals only with the maintenance issue subsequent to devolution of
property by maintenance.
A paternal grandmother’s right to share among grandsons on a partition is not affected.
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➢ A partition claim is filed and the husband or son’s death happens when the suit is pending
(a) If a preliminary decree has been passed in the partition dispute, she will be entitled to both the
shares i.e. share on the partition as well as the inheritance.
(b) Where succession opens after a partition suit is introduced but before the preliminary decree is
passed, the issue should be considered as open. Moreover, the most preferable point of view would be
that she is entitled to the share.
Where a mother or wife receives a share under the Hindu Succession Act on the death of the husband
or son and thereafter an actual division among the coparceners takes place
1. The right of a woman to share in the partition after her father’s death was “replaced” by
the 1937 Hindu Women’s Rights to Property Act. In repealing the Hindu Women’s Rights to
Property Act of 1956, the Hindu Succession Act cannot be regarded as reviving the mother’s
right in the absence of any explicit legislative provision to that effect.
2. The share given to a mother on the partition after the death of the father is in lieu of
maintenance. Since the Hindu Adoptions and Maintenance Act codified the law and gave the
mother a specific right, the old rule should be considered to have been abrogated if it remains.
Definition and Meaning of Streedhan in Hindu Law
The term ‘Streedhan’ is derived from the Sanskrit words ‘Stri’ meaning woman and ‘dhana’ meaning
property. Therefore, Streedhan translates to ‘woman’s property.’
What Constitutes Streedhan?
As per Hindu Law, Streedhan encompasses all the movable and immovable property, gifts, jewellery
and other items that a woman receives at different stages of her life:
• Before Marriage: Any property or gifts received by a woman prior to her marriage.
• At the Time of Marriage: Property and gifts given to the woman during the marriage
ceremony.
• During Childbirth: Gifts and property received upon the birth of a child.
• During Widowhood: Property and gifts received during widowhood.