BLJ4.3 Reading Material

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR
Course Outline
BLJ4.3 LAW OF INTESTATE AND

TESTAMENTARY SUCCESSION
B.A.LL.B.(Honours in Adjudication and Justicing)

Academic Year: 2024-25
2nd YEAR, SEMESTER-IV
Designed and Developed by:

Prof. (Dr.) Vijender Kumar
Professor of Law
Dr. Ashwini Kelkar

Assistant Professor of Law
Course Instructors:
Prof. (Dr.) Vijender Kumar
Professor of Law
Dr. Ashwini Kelkar

Assistant Professor of Law
January 2025
(Strictly for private circulation)
LAW OF INTESTATE AND TESTAMENTARY SUCCESSION
Semester-IV January-May, 2025
Course Code 4.3
Course Credit 3
Maximum Marks 100
Teaching Hours Required 48
Presentation Hours 8-10
Medium of Instruction English
Course Compulsory
Introduction
The course is a successor for the course which was offered to the students in the
previous semester in which students were enlightened with various basic concepts of
personal laws. These laws have their bases in the religion of the respective communities. In
continuation to those concepts, this course unearths the legal nuances that occurs on the
formation of a family. In India, there are different personal laws governing the matters
relating to property rights of the family members such as partition, succession including
intestate and testamentary, and most importantly the property rights of woman in a family.
Therefore, the Law of Intestate and Testamentary Succession course offers an insight to the
students regarding the unique jurisprudential aspects of different personal laws in India
relating to property rights in a family. Further, this course also offers the nuances of
disputes relating to property and its administration by the court of competent jurisdiction.
The course deliberates the issues and challenges faced by these courts while ascertaining
the legitimate claimants to the property in division and devolution which is the fundamental
process of identifying the share of members in property. Further, special care is taken in the
course to look at the status of women and children in family relations with a view to ensure
greater protection of Constitutional rights of these groups in the administration of property
matters. The course also offers an understanding of the laws based on customs, religious
texts, judicial pronouncements and statutory provisions. Through this course, the budding
judges will be motivated to initiate and work for reforms in personal laws.
This course has been structured in a way which will help the students to understand the
importance of status and property rights of members. It also focuses on the emerging issues
in the field of personal laws relating to property rights in India; so that the students will be
able to undertake further research in this field to help the society at large. Hence, this
course has been divided into four modules based on the status and property rights of
members in the family. The first module deals with the significance of a Hindu joint family
and its composition in which status and property rights of members in the family will be
explained. The second module deals with partition under Hindu law in which various
nuances of partition will be discussed. Further, it discusses the concept of Stridhana
(woman’s estate) which has its roots in the ancient Hindu jurisprudence. The journey of
woman’s property rights will be discussed in this module. Also, the module deals with the
emerging jurisprudence of matrimonial property rights which will enunciate on various
facets of this property. Furthermore, the third module deals with the intestate succession of
a male and female under different personal laws which will be dealt in a comprehensive
manner. Lastly, module four deals with the concept of testamentary succession along with
its various essentials.
Course Objectives
The course is designed to acquaint, train and equip the students with a comprehensive
Page 1 of 16
knowledge of the personal laws relating to property rights prevailing in India. Further, the
course intends to motivate the students to analyse historical and social perspective for
understanding the reasons behind emergence of these laws. The course also aims to develop
a pragmatic approach in understanding the disputes relating to property. Therefore, the
precise objectives of the course are to:
• Impart knowledge of the principles and laws governing nature of property, property
rights, and division and devolution of property among the family members under
personal laws;
• Inculcate the understanding of Hindu Joint Family with its changing contours and
Coparcenary within the family relations;
• Develop an understanding of the law of partition under Hindu Law and the rights of
member(s) and coparcener(s) in the Hindu Joint Family property;
• Enable the learners to comprehend the nuances of intestate succession (inheritance)
under personal laws; and
• Develop skills in interpretation of law relating to of testamentary succession.
Teaching Methodology
The teaching methodology is not a traditional lecture method but participatory teaching
with discussion on legal principles and judicial precedents in the classroom. The students
are informed in advance about the topic for discussion and the topic of project/assignment
they have to prepare. The students prepare their topics from the sources suggested to them.
The students are also encouraged to do independent research on their respective
assignments. In the classroom, every student is required to present his/her topic and to have
his/her doubt cleared through discussion. The teachers will be helping and guiding the
students in their pursuits of legal learning. The teachers summarises after the students have
completed their discussion, and clarifies their doubts. In these unprecedented pandemic
times prevailing globally, the utilisation of Information and Communication Technology
(ICT) tools is encouraged which will make the students familiar with the concepts
efficiently. Further, teaching-learning pedagogy will also include a cooperative teaching
which will enhance and provide the students different perspectives related to personal laws.
Case Law Reporter/Journal
The exclusive dedicated law reports on family related issues are abbreviated as DMC
(Divorce and Matrimonial Cases) published from Delhi; HLR (Hindu Law Reporter)
published from Chandigarh; AIR (All India Reporter) from Nagpur; and SCC (Supreme
Court Cases) published from Lucknow. These reporters are available in print as well as in
CD ROM (electronic form) in the University Library. For comparative study and research,
the students can also access family law cases of United Kingdom from Fam (the ‘official’
reports of the Family Division of the High Court and appeals from the Court of Appeal),
FLR (Family Law Reporters), FCR (Family Court Reporter).
The Journals in this area include AIR, HLR, DMC, SCC, JILI etc. For comparative
study and research, the students can also use Family Law (Fam Law), Child and Family
Law Quarterly (CFLQ), Journal of Social Welfare and Family Law (JSWFL), International
Journal of Law, Policy and the Family (IJLPF). Some of the journals are available on
LexisNexis, West Law data basis etc.
Course Text Books
There are several books on family law which may assist students’ study and research.
The preferred books are: D.F. Mulla, “Hindu Law”; John D. Mayne, “Hindu Law and
Usage”, Paras Diwan, “Hindu Law”, “Principles of Mahomedan Law”, and “Family Law in
Page 2 of 16
India”; G.C.V. Subba Rao, “Family Law in India”; Vijender Kumar, “Hindu Law of
Adoption”, and “Law Relating to Domestic Violence”; A.M. Bhattacharjee, “Hindu Law
and the Constitution”, “Matrimonial Remedies and the Constitution”;
A.A.A. Fyzee, “Outlines of Muhammadan Law”; Tahir Mahmood, “The Muslim Law
of India”; Kande Prasad Rao, “The Law Relating to Marriages and Christians in India”;
Shabbir and Manchanda, “Parsi Law in India” etc.
There is a long list of suggested references being attached separately at the end of
course outline. Students are advised to use references from the said list for their in-depth
knowledge, project research and/or independent research for publication. Students would
be encouraged to browse e-sources for their understanding of law and research on their
projects. However, they would be cautioned not to browse unauthorized websites or e-
sources. Though all possible care would be taken to avoid plagiarism for their research
projects.
Course Evaluation Method
The Course is assessed for 100 Marks in total by a close book examination system.
There shall be a Mid-Semester Exam for 20 Marks and End Semester Exam for 40 Marks.
25 Marks are allotted for the Project work which includes 20 Marks for written research
work and 5 Marks for presentation of Project and 10 Marks for Review of Literature. The
question papers shall be designed on a decided or under-trial case based; therefore, students
are advised to take classroom exercise seriously and to develop their own application base
skills.
Course Outcomes
The students are expected to understand the nuances of each module and thereafter they
shall be able to decide the property disputes based on status of members in a family and
their property rights as provided in the statutes or guided by judicial pronouncements. The
students will study on a comparative basis the personal laws of Hindus, Muslims,
Christians and Parsis to find out the point of similarities and differences in these laws.
Further, the students shall be able to administer justice in property related matters of
family. On completion of the course, the students will be able to:
• Understand principles and laws governing property rights in a family and identify the
eligible claimants, their interest or share on division and devolution of property in light
of existing personal laws;
• Learn the relevance of a Hindu Joint Family and its composition especially in the
contemporary society;
• Analyse the legal principles and judicial precedents of partition and rights under Hindu
law;
• Apply relevant provisions of law of intestate succession keeping in view legitimate
claimants, available property and relation with the intestate; and
• Comprehend the legal provisions of testamentary disposition and its procedural
requirements.
***
Page 3 of 16
COURSE CONTENTS
Module-I: Hindu Joint Family and Coparcenary [Teaching Hours 10]
1.1 Hindu Joint Family: Hindu Joint Family: Definition, Nature, Concept and requisite of
Hindu joint family; Hindu undivided family; Hindu composite family; Hindu trading
family; rights of male and female members in Mitakshara and Dayabhaga Hindu joint
family; impact of modern lifestyle on Shastric and traditional Hindu joint family and
impact of daughter being coparcener on Hindu joint family.
1.2 Coparcenary and Coparcenary Property: Mitakshara coparcenary; Dayabhaga
coparcenary and Mitakshara statutory coparcenary; son’s and daughter’s right by birth
in father’s, grand-father’s and great grand-father’s property; dual membership in the
Shastric and traditional Hindu joint family and impact of daughter being coparcener on
Shastric and traditional Hindu coparcenary system. Corporate ownership; individual
ownership; coparcenary property; incidents of coparcenary property; self- acquired
property; New Coparcenary as defined and codified by the Hindu Succession
(Amendment) Act 2005; position of daughter in the family of her birth and marriage;
daughter as Karta in the family of her birth and marriage; daughter’s right of
alienation etc.
1.3 Karta (Manager), Position of Karta and Powers of Karta: Karta/manager’s legal
position; Power and Position of Karta; Woman as Karta.
1.4 Alienation: Alienation, Subject of alienation; alienation of undivided coparcenary
property; Doctrine of legal necessity/ (exceptions-Apatkale, Kutumbharte and
Dharmarthe).
1.5 Liability for Debts: Debts of father; Doctrine of Pious Obligation; liability of
coparcener taking by survivorship; and Antecedent Debt.
Law Commission of India Reports
• 204 Report (2008) on “Proposal to amend the Hindu Succession Act 1956 as amended
by the Act 39 of 2005”.
• 207 Report (2008) on “Proposal to amend Section 15 of the Hindu Succession Act
1956 in case a female dies intestate leaving her self-acquired property with no heirs”.
Statutory References
The Kerala Joint Hindu Family System (Abolition) Act 1975 (Act No. 30 of 1976)
The Hindu Succession Act 1956 (Act No. 30 of 1956)
The Hindu Succession (Andhra Pradesh Amendment) Act 1986 (Act No. 13 of 1986)
The Hindu Succession (Tamil Nadu Amendment) Act 1990 (Act No. 1 of 1990)
The Hindu Succession (Maharashtra Amendment) Act 1994 (Act No. 40 of 1994)
The Hindu Succession (Karnataka Amendment) Act 1994 (Act No. 23 of 1994)
The Hindu Succession (Amendment) Act 2005 (Act No. 39 of 2005)
Judicial References
Surjeet v. W.T. Commissioner AIR 1976 SC 109
Jagannath v. Lokanath AIR 1981 Ori. 52
K.O. Reddy v. V.N.Reddy AIR 1984 SC 1171
Kamesh Panjiyar v. State of Bihar 2005 (2) SCC 388
Commissioner of Income-Tax v. Seth Govind Ram AIR 1966 SC 2
Katama Nachiar v. Raja of Sivaganga 9 MIA 539
Hanooman Persaud Pandey v. Mussumat Babooee (1856) 6 MIA 393
Page 4 of 16
Hanuman Prasad v. Indrawati AIR 1958 All. 304
Rao Balwant Singh v. Rani Kishori (1898) 25 IA 54
Bijay Kumar Shah v. Rama Pati Basu ILR (1942) 2 Cal. 413
Sunil Kumar v. Ram Prakash AIR 1988 SC 576
Guramma v. Mallappa AIR 1964 SC 510
Sahu Ram Chandra v. Bhup Singh 6 MIA 393
Brij Narain v. Mangla Prashad (1923) 51 IA 129
Amrit Lal v. Jayantilal AIR 1960 SC 964
Amarjit Kaur v. Karamvir Singh AIR 2006 SC 2481
Uttam v. Saubhag Singh AIR 2016 SC 1169
Arshnoor Singh v. Harpal Kaur AIR 2019 SC 3098
Beereddy Dasaratharami Reddy v. V. Manjunath 2021 SCC OnLine SC 1236
Compulsory Readings
• Satyajeet A. Desai (rev.), D.F. Mulla, HINDU LAW, 23rd ed. 2018, 5th rep. 2020, Ch.
XII (Joint Hindu Family Coparceners and Coparcenary Property- Mitakshara-Law),
pp. 315-427, pp. Ch. XIII (Coparceners and Coparcenary Property-Dayabhaga Law),
pp. 429-435.
• Vijender Kumar (rev.), J.D. Mayne, HINDU LAW & USAGE, 18th ed. 2020, Ch. 12
(The Joint Family), pp. 917-1013; Ch. 14 (Alienations), pp. 1058-1118.
XIV (Debts-Mitakshara Law), pp. 437-482; Ch. XV (Debts-Dayabhaga Law), p. 483.
(Liability for Debts), pp. 1014- 1057.
• Vijender Kumar, “Equal Property Rights of Daughters under Hindu Law: A Socio-
Legal Study” 62 (2020) JILI, p. 217.
Suggested Readings
• Vijender Kumar, “Coparcenary under Hindu Law: Boundaries Redefined”, NALSAR
Law Review, 2008-09, Vol. 4, pp. 27-40.
• B. Sivaramyya, “Coparcenary Rights to Daughters: Constitutional and Interpretational
Issues”, (1997) 3 SCC (Jour) 25.
st
• J.D.M. Derrett, ESSAYS IN CLASSICAL AND MODERN HINDU LAW, 1 ed.
st
1977, 1 Ind. Rep. 1995 Vol. 4, pp. 126-137, “May a Hindu Woman be the Manager of
a Joint Hindu Family at Mitakshara Law?” Bom.LR. J., LXVIII 1966, 1-11.
st
st
1977, 1 Ind. Rep. 1995 Vol. 2, pp. 8-130, “The Development of the Concept of
Property in India C.A.D. 800-1800”, ZVR LXIV, 1957, 15-130.
st
st
1977, 1 Ind. Rep. 1995 Vol. 3, pp. 169-181, “Alienation at Hindu Law: A
Revolutionary Full Bench Decision”, SCJ 1957, 85-96.
st
st
1977, 1 Ind. Rep. 1995 Vol. 3, pp. 365-372, “Acquisition of Joint Family Property
through a Coparcener: Let Shastric and Equity Principles join hands”, Bom.LR. J.,
LXXI 1969, 75-81.
• Vijender Kumar, “Basis and Nature of Pious Obligation of Son to Pay Father’s Debt
Page 5 of 16
vis-à-vis Statutory Modifications in Hindu Law”, 36 (1994) JILI, p. 339.
st
st
1977, 1 Ind. Rep. 1995 Vol. 4, pp. 173-185, “Hindu Law: Mitakshara: The Pious
Obligation and the Doctrine of ‘Antecedency’: The End to a Prolonged Controversy?”,
SCJ XVIII, 1955, 139-150.
Module-II: Partition- Rights and Powers of the Members [Teaching Hours 10]
2.1 Partition under Hindu Law: Partition under Mitakshara and Dayabhaga Schools of
Hindu law; Subject of Partition; Persons entitled to ask for Partition; Persons entitled
to take share on Partition.
2.2 Principles of Partition: Doctrine of representation; Doctrines of per stripes and per
capita; Modes of Partition; Minor’s suit for Partition; Mode of division; Birth and
deaths during pending suit; Suit for Partition by stranger.
2.3 Partial Partition- Person and Property; Partition by Metes and Bounds; Re-opening of
Partition; and Re-Union of Partition.
2.4 Stridhana: Stridhana under Hindu Law (woman’s estate); Significance of Stridhana in
Contemporary Hindu Society.
2.5 Matrimonial Property Law in India: Defining of “matrimonial property”;
Formulating a standard method to allocate the share proportionate to the domestic
economic capacitance of the Hindu spouse; The basic policy postulate recognition of
the child care, household management and financial provision as joint responsibilities
of both the spouses.
Law Commission of India Report
• 208 Report (2008) on “Proposal for amendment of Explanation to Section 6 of the
Hindu Succession Act 1956 to include oral partition and family arrangement in the
definition of ‘Partition’”.
The Hindu Gains and Learning Act 1930 (Act No. 30 of 1930)
The Partition Act 1893 (Act No. 4 of 1893)
The Hindu Women’s Rights to Property Rights 1937 (Act No. 18 of 1937)
The Hindu Married Women’s Rights for Separate Maintenance Act 1946
The Hindu Adoptions and Maintenance Act 1956 (Act No. 78 of 1956)
Judicial References
Appovier v. Rama (1866) 11 MIA 75
Rewun Prasad v. Mst. Radha (1856) 4 MIA 137
Girja v. Sadashiv 1916 PC 104
Raghavamma v. Chenchamma AIR 1964 SC 136
Puttrangumma v. M.S. Rangamma AIR 1968 SC 1018
Kasinath v. Narsingsa AIR 1961 SC 1977
Nani v. Gita AIR 1958 SC 706
Kalloomal v. Tapeswari Prasad (HUF) AIR 1982 SC 760
Chowdhry Ganesh v. Mst. Jewash (1904) 31 IA 10
Munnalal v. Rajkumar AIR 1962 SC 1493
Duddi v. Duddin AIR 1983 SC 583
Page 6 of 16
Pushpalatha N.V. v. V. Padma AIR 2010 Kant 124
Shyam Narayan Prasad v. Krishna Prasad (2018) 7 SCC 646
Seshamma v. Ramakoteswara Rao AIR 1958 SC 280
Kotturuswami v. Veeravva AIR 1959 SC 577
V. Tulasamma v. Sesha Reddi AIR 1977 SC 1944
Raghubar Singh v. Gulab Singh AIR 1998 SC 2401
Danamma v. Amar (2018) 3 SCC 343
Ripudaman Singh v. Tikka Maheshwar Chand (2021) 7 SCC 446
R. Janakiammal v. S.K. Kumarasamy (2021) 9 SCC 114
Khushi Ram v. Nawal Singh 2021 SCC OnLine SC 128
Compulsory Readings
• Satyajeet A. Desai (rev.), D.F. Mulla, HINDU LAW, 23rd ed. 2018, 5th rep. 2020,
Ch. XVI (Partition and Reunion- Mitakshara Law), pp. 485-539; Ch. XVII
(Partition-Dayabhaga Law) pp. 541-546.
(Partition), pp. 1119-1191.
X (Women’s Property: Part-I Stridhana-Law Prior to the Hindu Succession Act 1956),
pp. 205-239; Ch. XI (Women’s Property: Part II Property Acquired by a Woman by
Inheritance-Law Prior to the Hindu Succession Act 1956), pp. 241-310.
(The Hindu Women’s Rights to Property Rights), pp. 1295-1304; Ch. 20 (Stridhana),
pp. 1313-1338; and Ch. 21 (Women’s Estate), pp. 1339- 1386.
• Satyajeet A. Desai (rev.), D.F. Mulla, HINDU LAW, 23rd ed. 2018, 5th rep. 2020, Part-
II, Ch. III (The Hindu Adoptions and Maintenance Act 1956), pp. 1387-1416.
(The Hindu Adoptions and Maintenance Act 1956), pp. 751- 816.
• Iqbal Ali Khan (rev.), D.F. Mulla, PRINCIPLES OF MAHOMEDAN LAW, 22nd ed.
2017, Ch. XIX (Maintenance of Relatives), pp. 467-472.
Suggested Readings
st
st
1977, 1 Ind. Rep. 1995 Vol. 2, pp. 169-181, “The Hindu Law Relating to Pre-
emption”, Adyar Lib. Bull. XXV, 1961, 13-27.
2017, Ch. XIII (Pre-emption), pp. 308-337.
th
• A.A.A. Fyzee, OUTLINES OF MUHAMMADAN LAW, 5 ed. 2008, Ch. 10 (Pre-
emption), pp.271-288.
th
• A.A.A. Fyzee, OUTLINES OF MUHAMMADAN LAW, 5 ed. 2008, Ch. 7
(Maintenance), pp. 173-180.
• Vijender Kumar, “Proprietary Rights of Females under Hindu Law: Strains and
Stresses” 39 (1997) JILI, p. 376.
• Vijender Kumar, Matrimonial Property Law in India: Need of the Hour, JILI Vol. 57:4
2015, pp. 500-523.
• Kamala Sankaran, “Family, Work and Matrimonial Property: Implications for Women
and Children”, Archana Parashar and Amita Dhanda (eds.), REDEFINING FAMILY
Page 7 of 16
LAW IN INDIA, 1st ed. 2008, pp. 258-281.
Module-III: Law of Intestate Succession [Teaching Hours 20]
3.1 Intestate Succession under Hindu Law
3.1.1 General Rules of Succession in the case of Male Hindu: Devolution of an interest
in coparcenary property; Order of succession among heirs in the Schedule;
Distribution of property among heirs in Class-I of the Schedule; Distribution of
property among heirs in Class-II of the Schedule; Order of succession among
agnates and cognates; Computation of degrees; Doctrine of Escheat.
3.1.2 General Rules of Succession in the case of Female Hindu: Order of succession
and manners ofdistribution among heirs of a female Hindu.
3.2 Incidents of Intestate Succession: Mode of Succession of two or more heirs; Right
of child in womb; Presumption in cases of simultaneous death; Preferential right to
acquire property in certain cases.
3.3 Disqualifications of Intestate Succession: Murderer (predeceased son v. Non-
existent son), Convert’s disqualified from succession; Succession when heir
disqualified.
3.4 Intestate Succession under Muslim Law: General Principles of Inheritance under
Shia and Sunni Laws; Principle of representation. Classes of Heirs-Sharers;
Residuaries and Distant Kindred; Doctrine of Increase (Aul); Doctrine of Return
(Radd); Allotment of Shares; Rules of Exclusion. Step-children; illegitimate children;
Missing persons and Doctrine of Escheat.
3.5 Intestate Succession under Christian and Parsi Law: Provisions relating to Intestate
Succession for Christians and Parsis from the Indian Succession Act 1925.
The Hindu Disposition of Property Act 1916 (Act No. 15 of 1916)
The Hindu Inheritance (Removal of Disabilities) Act 1928 (Act No. 12 of 1928)
The Hindu Gains and Learning Act 1930 (Act No. 30 of 1930)
The Indian Succession Act 1925 (Act No. 39 of 1925)
Judicial References
Gurupad v. Hirabai AIR 1978 SC 1239
Commissioner of Wealth Tax, Kanpur v. Chander Sen AIR 1986 SC 1753
Satyacharan v. Urmila AIR 1970 SC 1714
Gangu v. Chandrabhagabai (1908) 32 Bom. 275
Bhagat Ram v. Teja Singh AIR 1999 SC 1944: AIR 2002 SC 1
Lachman Singh v. Kirpa Singh AIR 1987 SC 1616
Bhagwania v. Gilli 1977 JLJ 137
Smt. Dhanistha Kalita v. Ramakant Kalita AIR 2003 Gau. 92
Kenchava K. S. Hosmani v. Girimallappa Channappa Somasagar AIR 1924 PC 209
Gangu v. Chandrabhagabai (1908) 32 Bom. 275
Vellikannu v. R. Singaperumal AIR 2005 SC 2587
Nawazish Ali Khan v. Ali Raza Khan (1948) 75 IA 62
Abdul Manan Khan v. Mirtuza Khan AIR 1991 Pat 154
Mazhar Husen v. Bodhi Bibi (1898) 21 All 91
Page 8 of 16
Baboo Beri Pertab v. Maharajah Rajender Pertab (1867) 12 MIA 28
Ishwari Singh v. Baldo (1884) 11 IA 135
Ghulam Mohammad v. Ghulam Hussein 1932 PC 81
Uttam v. Saubhag Singh AIR 2016 SC 1169
Babu Ram v. Santokh Singh AIR 2019 SC 1506
V. Kalyanaswamy v. L. Bakthavatsalam 2020 SCC OnLine SC 584
Compulsory Readings
IIII (General Principles of Inheritance-Law Prior to the Hindu Succession Act 1956),
pp. 101-107; Ch. IV (Order of Inheritance of Males According to Mitakshara-Law
Prior to the Hindu Succession Act 1956), pp. 109-172; Ch. V (Female Heirs-Law Prior
to the Hindu Succession Act 1956), pp. 173-178; Ch. VII (Order of Inheritance to
Males According to Dayabhaga or Bengal School-Law Prior to the Hindu Succession
Act 1956), pp. 185-194; (Notes and Commentary on the Hindu Succession Act 1956) pp.
1093-1292.
(Succession under Mitakshara Law-Principles of Succession), pp. 1192- 1279; Ch. 17
(Succession under Dayabhaga Law-Principles of Succession), pp. 1280-1294; Ch. 19
(Exclusion from Inheritance), pp. 1305- 1312; Ch. 22 (Notes and Commentary on the
Hindu Succession Act 1956) pp. 1387- 1568.
2017, Ch. V (Succession and Administration), pp. 33-49; Ch. VI (Inheritance-General
Rules), pp. 50-63; Ch. VII (Hanafi Law of Inheritance), pp. 64-113; Ch. VIII (Shia Law
of Inheritance), pp. 114-135.
• Vijender Kumar, “Equal Property Rights of Daughters under Hindu Law: A Socio-
Legal Study” 62 (2020) JILI, p. 217.
• Vijender Kumar and Vidhi Singh, “Facets of Legitimacy of Children and their Property
Rights under Hindu Law: A Socio-Legal Analysis”, CONTEMPORARY LAW
REVIEW, Vol. 4 No. 1, 2020, pp. 1-40.
• Vijender Kumar and Vidhi Singh, “Extinguishing Hindu Joint Family and Mitakshara
Coparcenary: A Critique”, CONTEMPORARY LAW AND POLICY REVIEW, Vol. 1
No.1 2018, pp. 1-24.
Suggested Readings
th
• A.A.A. Fyzee, OUTLINES OF MUHAMMADAN LAW, 5 ed. 2008, Ch. 13 (Sunni
Law of Inheritance), pp. 314-351; Ch. 14. (Shia Law of Inheritance), pp. 352-369.
• Poonam Pradhan Saxena, “Succession Laws and Gender Justice”, Archana Parashar
st
and Amita Dhanda (eds.), REDEFINING FAMILY LAW IN INDIA, 1 ed. 2008, pp.
282-305.
• Bina Agarwal, “‘Bargaining’, Gender Equality and Legal Change: The Case of India’s
Inheritance Laws”, Archana Parashar and Amita Dhanda (eds.), REDEFINING FAMILY
st
LAW IN INDIA, 1 ed. 2008, pp. 306-354.
Module-IV: Law of Testamentary Succession [Teaching Hours 8]
4.1 Testamentary Succession under Hindu Law: Meaning and Nature; Power of
Making a Testament; Definition and extent of testamentary power; Subject of Will;
Persons capable of making Will; Bequests to unborn persons.
Page 9 of 16
4.2 Testamentary Succession under Muslim Law: Law on Vasiyat; Its Essentials.
4.3 Execution of Unprivileged Wills: Number of Witnesses; Essentials of a Valid Will;
Capacity of Parties; Modification of Will; Registration of a Will.
4.4 Probate and Letters of Administration (LOA): Jurisdiction for Probate; Process of
Obtaining a Probate and LOA; Probate and Succession Certificate; Objections to
Probate; Revocation.
4.5 Kinds of Will: Privileged Wills; Joint Wills; Living Wills; Holograph Wills.
The Indian Succession Act 1925 (Act No. 39 of 1925)
Judicial References
Khalida Adib Begum v. S. A. Bashirunnissa Begum (1970) II MLJ 98
Abdul Rahman v. Athifa Begum AIR 1998 Kant 39
Nawazish Ali Khan v. Ali Raza Khan (1948) 75 IA 62
Enaet Hossein v. Khoboonnissa (1869) 11 WR 320
Mulani v. Maula Baksh (1924) 46 All 260
Mahboob Khan v. Abdul Rahim AIR 1964 Raj 250
Abdul Fata v. Russomoy (ILR (1894) 22 Cal. 619 (PC)
Ahmed G.H. Ariff v. Commissioner of Wealth Tax AIR 1971 SC 1691
Mohammad Shah v. Fasihuddin Ansari AIR 1956 SC 713
Abu Sayed v. Bakar Ali (1901) 24 All 190
Md. Ali v. Dinesh Chandra AIR 1940 Cal 417
Syeda Nazira Khatoon v. Syed Zahiruddin Ahmed Baghdadi AIR 2019 SC 4676
Compulsory Readings
XIX (Wills), pp. 555-567.
(Wills), pp.1681- 1712.
2017, Ch. IX (Wills), pp. 136-150.
(Gifts), pp.1668- 1680.
2017, Ch. X (Death-bed Gift and Acknowledge), pp. 151-154; Ch. XI (Gifts), pp. 155-
199.
2017, Ch. XII (Auqaf), pp. 200-307.
Suggested Readings
th
• A.A.A. Fyzee, OUTLINES OF MUHAMMADAN LAW, 5 ed. 2008, Ch. 11 (Wills and
Death-bed Gifts), pp. 289-303.
th
• A.A.A. Fyzee, OUTLINES OF MUHAMMADAN LAW, 5 ed. 2008, Ch. 8 (Gifts),
pp. 181-223.
***
Page 10 of 16
FAMILY LAW
A List of Printed Sources for in-depth Research on Family related Issues
Agarwala A.K. Hindu Law

Banerjee, G. The Hindu Law of Marriage and Stridhan
(T.L.L)Bhattacharjee, A.M. Hindu Law and the Constitution
Bhattacharjee, A.M. Matrimonial Remedies and the
Constitution Bhattacharya J.N.Commentaries on Hindu Law
Buckland, W.W. A Text Book of Roman Law
Colebrooke, H.T. Daya-Bhaga and Mitaksara
Derrett, J.D.M Modern Hindu Law
” Hindu Law Past and Present
” A Critique of Hindu Law
” Death of Marriage Law
” Essays in Classical and Modern Hindu Law (Vol. 1 -
Dharmasastra and Related Ideas)
” Essays in Classical and Modern Hindu Law (Vol. 2 -
Consequencesof the Intellectual Exchange with the Foreign
Powers)
” Essays in Classical and Modern Hindu Law (Vol. 3 –
Anglo-Hindu Legal Problem)
” Essays in Classical and Modern Hindu Law (Vol. 4 –
Current Problems and the Legacy of the Past)
Dhanda Amita Redefining Family Law in India
Diwan, Paras Family Law
Diwan, Paras Modern Hindu Law
Diwan, Paras Law of Marriage and Divorce
Diwan, Paras Law of Adoption, Minority, Guardianship and Custody
Diwan, Paras Law of Joint Family System
Diwan, Paras Law of Intestate and Testamentary Succession
Diwan, Paras Law relating to Dowry, Dowry Deaths, Bride Burning, Rape
and
Related Offences
Gharpure, J.R. Translation on the Smriti of Yajnavalkya
Ghose, H.L. The Principles of Hindu Law 3 volumes
Gour, H.S. Hindu Code
Gupte, S.V. Hindu Law of Marriage
Hamid Ali Outlines of Roman Law
Holmes, W. Common Law
Jayaswal, K.P. Manu and Yajnavalkya (T.L.L)
Jha, G.N. Hindu and Yajnavalkya (T.L.L.)
Jha, G.N. Hindu Law in its Sources
Jha, G.N. Manu Bhashya of Medhatithi
Jois M. Rama Legal and Constitutional History of India
Jolly Julius History of the Hindu Law
Jolly, J. Law and Custom
Jolly, J. Outlines of an History of the Hindu Law
Jolowicz, H.F. Historical Introduction to Roman Law
Kane, P.V. History of Dharmasastra
Kohli Hari Dev Law and Illegitimate Child
Kuber Dattaka Chandrika, Translated Sutherland
Kumar Vijender Hindu Law of Adoption
Page 11 of 16
Kumar Vijender Law Relating to Domestic Violence
Lee, R.W. The Elements of Roman Law
Macnaghten, F. Considerations on Hindu Law
Macnaghten, W.H. Hindu Law
Mahmood, T. Hindu Law
Mahamod Tahir Civil Marriage Law
Maine, H.J.S. Ancient Law
Maine, H.J.S. Village Communities
Mandlik, V.N. The Vyavahara Mayukha and Yajnavalkya, Sanskrit text and
Translation with Introduction and Appendices, Bombay (1880)
Manju Goel Marital Disputes and Counselling
Mayne, John D. Treatise on Hindu Law & Usage
Mookerjee, A. Marriage, Separation and Divorce
Mukherjee, B.K. The Hindu Law of Religious and Charitable Trust
(T.L.L)Mulla, D.F. Principles of Hindu Law
Muller F. Max Sacred Books of the EAST (50 Vols. Set)
Nanda Pandit Dattaka Mimamsa, translated Southland
Nelson The Hindu Law
Nicholas, B. An Introduction to Roman Law
Nijjar M.S. Nullity of Marriage under
Hindu LawRaghavachariar, N.R. Hindu Law Principles
and Precedents
Sarvadhikari, R. The Principles of the Hindu Law of Inheritance
(T.L.L.)Sarkar, G.C. The Hindu law of Adoption (T.L.L.)
Sarkar, G.C. A Treatise on Hindu Law
Sarkar, K.L. The Mimansa Rules of
Interpretation as Applied to Hindu
Law (T.L.L.)
Sarkar U.C. Epochs in Hindu Legal History
Sarswati, P.N. The Hindu Law of Endowment (T.L.L)
Sastri, C.S. Fictions in the Development of Hindu Law Texts
Sen Gupta, N.C Evolution of Ancient Indian Law (T.L.L.)
Sen Gupta, N.C The Evolution of Law
Sen, P.N. General Principles of Hindu Jurisprudence (T.L.L)
Sharma, S.D. Administration of Justice in Ancient India
Shuklendra Acharya Hindu Law
Shuklendra Acharya Hindu Undivided Family, Taxation and Tax
Planning Simone De Beauvoir The Second Sex (Penguin)
Stokes Hindu Law Books
Strange, T. Hindu Law
Strange, T.L. Manual of Hindu Law
Subba Rao G.C.V. Family Law in India
Supakar Shraddhakar Law of Procedure and Justice in
Ancient IndiaSutherland Synopsis of the Law of Adoption
Trevelyan, E.J. Hindu Law
Vandana Sexual Violence Against Women
Vijnaneswara Mitakshara Commentary on Yajnavalkya Smriti
West and Buhler’s Hindu Law
Ahmad Aqil Mohammedan Law

Ali Ameer The Spirit of Islam
Page 12 of 16
Ali Ameer Mahomedan Law
Baillie Digest of Moohummudan Law
Baillie Moohummudan Law of
Inheritance Bhattacharjee, A.M Muslim Law and the
Constitution
Charles Hamilton The Hedaya (Commentary on the Islamic
Laws)Coulson, N.J. History of Islamic Law
Diwan, P Muslim Law in Modern India
Fatima Tanzeem Islamic Law and Judiciary
Faqih Irfan Glimpses of Islamic History
Faruki A. Kemal The Evolution of Islamic Constitutional Theory and
Practice Fyzee, A.A.A. Outlines of Muhammadan Law
,, A Modern Approach to Islam
,, Cases in the Muhammadan Law of India, Pakistan and
Bangladesh
,, The Pillars of Islam
Hasan Ahmed The Early Development of Islamic Jurisprudence
Iyer, V.R. Krishna Muslim Women (Protection of Rights on Divorce)
Act 1986 Kader, S.A. Muslim Law of Marriage and Succession
Mahmood Tahir Muslim Law
,, The Muslim Law of
India Mulla, D.F. Principles of
Mahomedan Law
Rahim Abdul Mohammedan Jurisprudence
Rashid, S.K. Muslim Law
Siddiqi M. Iqbal The Family Laws of Islam
Siddiqi M.M. Women in Islam
Schacht Joseph An Introduction to Islamic Law (1964)
,, Origins of Muhammadan
Jurisprudence Tyabji Muslim Law
Wani, M.A. Maintenance Rights of Muslim Women 1989
West & Buhler Digest of Muslim Law, Bombay
Rao Kande Prasada The Law relating to Marriages of Christians

in India Shabbir & Manchanda Parsi Law in India
Page 13 of 16
READING MATERIAL
Contents
PART-I
S. Title of the Paper Author
No.
1. Course Objectives, Teaching Methodology and Preface Vijender Kumar
2. May a Hindu Woman be the Manager of a Joint Hindu Family J. D. M. Derrett
at Mitakshara Law?
3. Coparcenary under Hindu Law: Boundaries Redefined Vijender Kumar
4. Proprietary Rights of Females under Hindu Law: Strains and Vijender Kumar
Stresses
5. Basis and Nature of Pious Obligation of Son to Pay Father’s Vijender Kumar
Debt vis-à-vis Statutory Modifications in Hindu Law
6. Family, Work and Matrimonial Property: Implications for Kamala
Women and Children Sankaran
7. Matrimonial Property Law in India: Need of the Hour Vijender Kumar
8. Equal Property Rights of Daughters under Hindu Law: A Socio- Vijender Kumar
Legal Study
9. Facets of Legitimacy of Children and Their Property Rights Vijender Kumar
under Hindu Law: A Socio-Legal Analysis and Vidhi Singh
10. Extinguishing Hindu Joint Family and Mitakshara Coparcenary: Vijender Kumar
A Critique and Vidhi Singh
PART-II
S. No. Name of the Case Citation
1. Hunooman Persaud Pandey v. Must. Babooee 1856 PC 393
2. Bachoo Hurkrisondas v. Mankorebai (1907) 34 IA 107
3. Brij Narain v. Mangla Prasad (1923) 51 IA 129
4. Hanuman Prasad v. Indrawati AIR 1958 All 304
5. Seshamma v. Ramakoteswara Rao AIR 1958 SC 280
6. Kotturuswami v. Veeravva AIR 1959 SC 577
7. Amrit Lal v. Jayantilal AIR 1960 SC 964
8. V. Tulasamma v. Sesha Reddi AIR 1977 SC 1944
9. Gurupad v. Hirabai AIR 1978 SC 1239
10. Commr. of Wealth-Tax, Kanpur v. Chander Sen AIR 1986 SC 1753
11. Sunder Das v. Gajananrao AIR 1997 SC 1686
12. Raghubar Singh v. Gulab Singh AIR 1998 SC 2401
13. Kamala Kumari Bohara v. Harekrishna Ghadei AIR 1998 Ori 196
14. Des Raj v. Mehar Singh AIR 1999 HP 21
15. Commr.of Income-Tax, Bihar v. Sandhya Rani Dutta AIR 2001 SC 1155
16. P.J.Avva v. K.J. Naga Kumar AIR 2001 Ker 38
17. Bhagat Ram v. Teja Singh AIR 2002 SC 1
18. V.Muthusami v. Angammal AIR 2002 SC 1279
19. Harihar Sethi v. Ladukishore Sethi AIR 2002 Ori 110
20. Vellikannu v. R. Singaperumal AIR 2005 SC 2587
21. Pushpalatha N.V. v. V. Padma AIR 2010 Kant 124
22. Uttam v. Saubhag Singh AIR 2016 SC 1169
23. Arshnoor Singh v. Harpal Kaur AIR 2019 SC 3098
24. Shyam Narayan Prasad v. Krishna Prasad (2018) 7 SCC 646
Page 14 of 16
25. Danamma v. Amar (2018) 3 SCC 343
26. Babu Ram v. Santokh Singh AIR 2019 SC 1506
27. Syeda Nazira Khatoon v. Syed Zahiruddin Ahmed Baghdadi AIR 2019 SC 4676
28. Vineeta Sharma v. Rakesh Sharma AIR 2020 SC 3717
***
Page 15 of 16
Part-I
Readings on Family Law-II
17
MAY A HINDU WOMAN BE THE MANAGER OF A JOINT FAMILY AT MITAKSHARA
LAW?
J.D.M.Derrett
The concept of a “manager” of a joint Hindu family has been in existence for two thousand years
or more. There should be no doubt whether a woman could be a manager. The Courts in India have
recently expressed the most diverse views, and the matter demands a thorough study. On the subject of
the rights of a minor male to act as manager very curious views have been expressed, and text-book
writers do not tell quite the same tale. The matter is of great importance, and this is an instance where
the ancient Hindu law can come to the aid of the Anglo-Hindu law (which still rules in this uncodified
field). But first let us see what the practical problem is.
The Practical Problem
Let us suppose that a family consists of two brothers, their wives and their children, all the latter
very young. The senior brother dies. The wife and children will not suffer, because the younger
brother, the surviving coparcener, will represent the family (if he is fit to do so), and so act as
manager. Now let us suppose that the younger brother also dies, and the family consists thereafter of
two widows and their respective children. That the ladies are the natural guardians of their children is
not doubted. But they might wish to do things for their children which their husbands might have done
in their capacities as managers, in turn, of the family properties. Though the managers, when they
were alive, were indeed guardians of the minors’ interests in the coparcenary property, the powers of
the manager were (as they are) wider than those of a guardian. A manager, acting as the prudent father
of a family, may take action for the benefit of the family which a guardian of the property of a minor
would not be entitled to take. For example, a guardian cannot properly invest the minor’s assets in a
limited company, thereby placing them at risk: if he invests he must do so in a perfect security. If the
minor’s property is land it is presumed that this is the best security of all (though an intending
borrower will be told when he approaches a bank that industrial shares are needed as security), and to
sell land in order to invest in a business is at the moment (until Courts follow actual business methods)
beyond the guardians’ powers.1But this conservative and somewhat restricted scope of operation is not
nowadays the rule for managers of joint families. No doubt the Court still looks narrowly at sales of
land,2 but an exchange of assets which is prudent and which does not place the coparcenary property at
risk may well be within the manager’s powers. A good example for our purposes, would be the power
to enter a partnership, and the power to receive a stranger into partnership. A manager undoubtedly
has this power 3 provided he uses his discretion as a prudent man. A guardian has no power to cause his
ward to enter a partnership except upon the footing that the minor is admitted to a share in the profits:
the guardian cannot admit strangers into partnership with the minors.
The widows, acting as guardians of their own children, can take generally only conservative
action, for necessity or for the benefit of the estate. The powers conferred on the guardians of Hindu
minors by the Hindu Minority and Guardianship Act, 1956, are stated in rather wider terms (and
because of the non-existence of an adult male member there may be some doubt whether there is a
manager, whose presence would suspend the application of guardians’ powers to joint family
property), but it would be unwise to insist upon the difference between the traditional and the modern
formulation. It is certain that guardians acting under the Act cannot undertake every class of
proceedings that would be open to a manager, and the Act does not purport to confer upon guardians
the powers of managers. It abstains from interfering with the exclusive powers of managers to deal
with the interests of minors in joint family property.
Let us suppose that a widowed mother, who has one or more minor sons, wishes to mortgage the
landed property to pay for the sons’ schooling. It is of no consequence to ask whether she acts as
manager or as guardian, because a guardian has this power, and her act will be construed as the act of
a guardian. But if the case is that she wants to invest the sons’ property in a business, much will
1 Hemraj Dattabava v. Nathu (1935) I.L.R. 59 Bom. 525, [1935] AIR Bom 295. See also Thota Appanna v. NakkavaAppanna
[1963] AIR AP 418. A more generous outlook is to be seen in Govinda Reddy v. Pathimunnissa [1958] AIR Mad 510,
[1958] 2 MLJ 28.
2 Senqoda v. Muthuvellappa [1955] AIR Mad 531. SC [1955] 2 MLJ 331; Nirmal Singh v. Satnam [1960] AIR Raj313.
3 Firm Bhagat Ram v. E.P.T. Commr., [1956] AIR SC 374, 377.
18
depend upon her capacity. If she is the mother of one son, and seeks to act as guardian her act may be
voidable at his option for want of capacity on her part to sell. If she is the mother of two sons, or
mother of one and step-mother of the other, and thus would purport, or must purport in the latter case,
to act as manager, the act may well be impregnable, for it might well have been within a manager’s
normal discretion: that is to say, if it is admitted that she can be a manager.
Now there must be thousands of families in which the father has died and the mother is the de
facto manager of the children’s affairs. If there are more than one son there is a Mitakshara
coparcenary and the coparcenary property can be managed by a guardian, whether by the mother as
natural guardian or by an appointed guardian, but in neither case (so the law appears to say) can the
powers of a manager be exercised until one minor reaches majority. This would be intolerable, and so
the Courts have endeavoured to find ways of escape. Two paths have been chosen and both deserve to
be investigated. Another case, almost as hard, is that of the mother of a family, whose husband, the
manager of the coparcenary, goes away and is unable to attend to business, whether because he is
absent for a long period, or is unheard of, or simply throws up his responsibilities and fails to inform
his family that he has done so. In ancient times the long absence of the father or his becoming a
sanyasi would by themselves clothe the other members of the family with greater freedom of action:
but even in ancient times there was always a period of grace during which the father-husband might
return and resume his status and responsibilities, and during that period the question would arise as to
who might deal with the family property. Naturally, as we shall see, emergency provisions existed,
though these are not as well known today as they ought to be.
At first sight the problem of the mother, left to cope with the family’s problems, is different if she
is still a wife from that she would present if she were already a widow. The father-husband might
return and repudiate, in the first case, the actions done by his wife in his absence. One must accept this
possibility, for otherwise it would be unsafe to leave home while one’s wife was liable to be practised
upon by rascals. Yet, on further reflection, we see that the problems are closely similar, and attempt
(such as have been made) to differentiate them ought to fail. The predicament is not of the female
herself, but of the minor members. Are their assets to be employed for their greatest advantage, or are
they not? Whether the father is absent or dead, it is all one from their point of view. Assuming that the
mother or step-mother is capable (with or without skilled and independent advice) of expressing
managerial powers, why should she not exercise them: not as delegate from or deputy of her husband
the manager, who may be dead and therefore cannot delegate, or may have run away without
constituting her his deputy, but in her won person? Let us look first at what the sages of the
dharmasastra, the true traditional Hindu law, had to say on the subject.
The Dharmasastra Solution
The full details about the absent husband, who was evidently a feature of ancient Indian life, are
superfluous here. All we need to know is whether in the absence of the manager, whether by
prolonged journeys abroad or by dying without leaving another manager to succeed him in his
function, a female could act as manager. The Madras High Court has had much to say about the status
of female members of the family, especially since 1937, and more than one Judge has deprecated the
apparently careless handling of the dharmasastrain Nagpur, but none of the learned Judges has so far
noticed that sastra contains adequate provisions, whereby females can be managers. The present writer
would insist that here lies the solution to our difficulties, and that once this is grasped all the other
subterfuges can be abandoned.
In all searches through the dharmasastra the first essential is to know what to look for. One can
be forgiven for not noticing what is, after all, tucked away in a chapter which has not been published
in English amongst the so-called “Hindu law books” once consulted so frequently in the Courts. The
topic we are looking for is the Power to Incur Debts. What debts must be paid out of family property?
The sastra is clear that in the absence of the senior member a junior member (if he has reached the age
of legal competence) may incur debts for the needs of the family, and in the absence of a male member
a female member may do so. Debts incurred even by a female member in such circumstances will be
binding upon the family and must be paid out of the joint family funds, whether at partition or earlier.
Since debts would not be incurred without granting security of some kind, and since the most favoured
type of security in ancient times was a mortgage of land, we can be quite sure that in proper
circumstances the mother of the family, whether her husband was alive (but absent) or dead, could
19
validly bind the minor’s property, whether it was his own or his interest in a coparcenary, and likewise
the interests of all minor coparceners, whether they were her sons or others, in order to pay debts
properly incurred by her. The test was whether her act was for the benefit of the family, and there is no
reason whatever to doubt but that in this indirect manner a female member might act as manager,
doing acts of positive benefit to the family and not merely conservative or protective or negative acts.
The fact that a male member of the family or even an agent might in nine cases out of ten actually
negotiate or handle the business has no bearing on our question, whether she had the capacity so to
bind the family and the sastra plainly enough shows that she had it. Let us look at some of the Sanskrit
texts:
Sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat
Kutumbahetorucchinnamvodhavyam tat kutumbina.
The manager (or householder, actual or eventual) is liable to accept (or admit) all alienations
made for the purposes of the family by a pupil, apprentice, slave, wife, agent or bailiff.
This is a text of Narada, numbered ch. III, 13 in Jolly’s edition in translation of the shorter
Narada-smriti (London, 1876). It is II, 10 in the Naradiya-Manu-samhita(p. 23) published with the
commentary of Bhavasvamin (Trivandrum, 1929). It appears in L.S. Joshi’s Dharma-kosha,
Vyavahara-kanda (Wai, 1938), vol. I, pt. 2, p. 696. Its importance cannot be denied since it is cited in
the Smritichandrika, the Vivada-ratnakara, the Parasara-Mudhaviya, the Vyavahara-prakasaof the
Viramitrodaya, and the by no means insignificant Vivada-tandava(now effectually resuscitated by an
edition appearing in Our Heritage, Calcutta). It is therefore a text of binding authority in Benaras,
Madras and Andhra, not to speak of Maharashtra and Gujarat. The meaning of the text, which is
abundantly clear from its words, is explained in the commentaries cited in the Dharma-kosha.
Bhavasvamin says that this verse does not authorise the representatives of the absent manager to incur
debts which he has himself specifically forbidden, even if they are for maintenance. The inference is
that any alienations for maintenance or even for less necessary purposes (provided they are for the
family’s benefit) will be binding upon the manager (when he returns or appears on the scene by simply
coming of age, as the case may be) because in his absence the implied authority rests with his formally
authorised representative or, failing one such, with his fellow members of the family who, though not
major coparceners, are able to transact business in such emergencies. The author of the
Smritichandrika rather modestly instances rendering up a deposit as the sort of act which, for the
benefit of the family, can be done by a wife, for example, in her husband’s absence, in order to secure
a loan needed for the family (a loan, no doubt, which could not have been negotiated without a deposit
or pledge). The reason the author alleges is interesting, and altogether applicable to our problem:
kutumba-bharanasyasvakaryatvad, “because it is his peculiar duty to maintain the family”: therefore,
he cannot, one understands, dispute the act. Incidentally, and while we are envisaging wives’ incurring
loans for the support of the family, we may note a passing remark of Apararka. Apararka’s
commentary on the Yajnavalkya-smriti is very well known and is to be consulted for the history of the
Hindu law in the Konkan and Deccan. His date differs little from that of Vijnanesvara. Commenting
on a sloka of Sankha dealing with the independence of sons, and pointing out that they cannot achieve
this while their mother is alive, he adds that this will be true matuhkutumba-bharanesamarthyesati, “so
long as the mother is capable of looking after the family’s affairs”, for the word kutumba-
bharanameans “support of the family” in the broadest sense of the phrase, and it is evident that
Apararka envisaged the widowed mother managing things, standing in her husband’s shoes, as many a
Maharashtrian widow was capable of doing.
Meanwhile Narada gives a little more information:
Na ca bharya-kritamrinamkathancitpatyurabhavet
Apatkritad rite, pumsamkutumbartho hi vistarah.
This is sloka 19 in Jolly and II. 15 in the Naradiya-Manu-samhita. It may be translated:
A debt contracted by his wife never binds the husband, except that incurred in a time of distress:
expenses for the benefit of the family fall upon males.
We notice the phrase kutumbarihaand alsoapat-krita, both reminding us of Mitakshara I, i.28,
where the classical grounds for the manager’s own alienations appear. Our present sloka appears at the
Dharma-kosha at p.698. It will, there be observed that scribes and others had difficulty with the
unusual word abhavet, and that other readings are evidenced: but there is no significant difference in
20
the sense. In the commentary there printed the point is emphasised that the business of making
disbursements belongs to the male members-but in default of them naturally females have to make
them, and their disbursements will be binding, provided they are justified by the necessities of the
family. An act in the family’s interest will be binding, if no male major member of the family is
available. The same idea is to be seen in a text Katyayana, and another of Brihaspati. This agreement
of texts puts the law beyond doubt. Katyayana, slokas 545 and 578 in Kane’s edition (Bombay, 1933),
are as follows (the translations are Kane’s and appear at the same place, pp. 226, 237):
Proshitasyamatenapikutumbarthamrinamkritam
Dasa-stri-matri-sishyairvadadyatputrenavaBhriguh.
A debt incurred for the purposes of the family by the slaves, the wife, the mother, the pupil or the
son, even without the master’s consent, when he has gone abroad should be paid (by him). Thus says
Bhrigu.
Deyambharya-kritamrinambhartraputrenamatrikam
Bharturarthekritamyatsyadabhidhaya gate disam.
The husband should pay a debt contracted by his wife and the son should pay a debt contracted by
his mother, if it is contracted for the sake of the husband (by the wife or the mother) when he (the
husband or the son) goes abroad after telling her.
Kane is particular to add (footnote to p.237) that a better reading would confine the debts to those
for maintenance, and the same result would follow whether or not the departing husband notified his
wife of his journey. A better reading would be, “without providing for her maintenance”. Kane,
himself, at History of Dharmasastra, III (Poona, 1946), p. 451, f.n. 761, shows that according to
Apararka the persons entitled to incur such debts include, not the mother, but agnates residing in the
house: but this is only one reading and the reading with “mother” is well authenticated (see Dharma-
kosha, p. 713, where the commentary in the Vivada-ratnakara, there extracted, is enlightening).
Brihaspati’s text is important, because of the great popularity of that author in vyavahara contexts. In
RangaswamiAiyangar’s reconstructed text (Baroda, 1941) the relevant sloka is X. 121 (p. 118):
Pitrivya-bhratri-putra-stri-dasa-sishyanujivibhih
Yad grihitamkutumbarthe tad grihi datum arhati.
Whatever is incurred for the sake of the family by an uncle, brother, son, wife, slave, pupil or
dependant, that must be paid by the householder.
The text appears at Dharma-kosha, p.708, where we find the author of the Smritichandrika
commenting that by “householder” is meant not the householder alone, but the kutumbin, the
“manager”, who may well be someone else, i.e., the manager for the time being. The sloka appears
also in the Kritya-Kalpataru (p. 314), the Vyavahara-Nirnaya (p. 259), and the Vivada-Chintamani (ed.
Bombay, Venkateshwar Press, Samvat 1955, pp. 27-8; trans. Ganganatha Jha, Baroda, 1942, p. 32)
with a short commentary. In the light of all these texts we can understand the brief synopsis of the
position given in Manusmriti, VIII. 167:
Kutumbarthadhyadhinopivyavaharamyaacharet
Sva-dese vavideseva tam jyayannavicalayet.
Should even a dependant effect a transaction for the purpose of the family, the master-whether in
his own country or abroad-shall not repudiate it.
There is an old-attested reading vicarayet: “shall not call in question”. It is of interest to see what
the earliest commentator, Bharuchi, says:
The transaction into which even a dependant enters for the sake of the family is authoritative,
binding on his senior, what to say of transactions entered into by relations… Thus sometimes the
dependant must be admitted to have independence for the benefit of the family, when his senior is
absent (kathancidadhyadhinasyajyayasiparokshegriharthesvatantryamkalpayitum).
Which is the effect of reading Manu VIII 163 and 167 together.
Meanwhile we notice the broad word vyavahara(“transaction”) in Manu’s text. Whatever it may
be, whether a simple loan, or an alienation of some interest, as by mortgage, must be upheld if it was
done in the interests of or for the benefit of the family. That is the test, according to the smritis. The
benefit of the family is the touchstone, not the identity of the alienor.
One might comment: “Well, granted that those powers existed at Hindu law at the beginning of
the British period, they amount to no more than the powers of the guardian at Anglo-Hindu law!” That
21
might be correct, if we were concerned with an alienation by a mother of the property of her own son.
But what concern us are alienations by the wife of an absent, or the widow of a dead manager, of
family property belonging to numerous minors, unable to enter into contractual relationships in their
own persons, yet reasonable for maintaining dependants and carrying the various continuing burdens
of the family. A step-mother or aunt by marriage purporting to alienate a minor’s property does so not
as guardian but as manager-or, as is often said, as de facto manager or de facto guardian, to which
point we must return. Meanwhile it must be admitted that the Sanskrit texts speak of a woman binding
the family property in what amounts to emergency or quasi-emergency conditions, by acts, including
debts and alienations, which would otherwise be within the competence of a male manager. We notice
that no distinction is drawn between a wife and a bailiff, who would unquestionably have been
authorised to manage and exercise powers of management.
Now an objection may be raised. Are not women declared by the sastra to be incapable, or unfit
for independence? Wherever a male member of the family is available, his signature should be taken
rather than that of any female. A male member should be associated in all a female’s acts. Particularly
in North India this view has predominated. Our smriti tests, though we have seen them distributed in
authoritative nibandhas, seem not to have been so well favoured in the North as elsewhere. Harita has
a nasty little parody on the famous text of Manu about women’s needing perpetual tutelage (IX.3)
which emphasises women’s lack of independence for our purposes:
Danarthevadhanarthevadharmarthevaviseshatah
Adanevavisargevanastrisvatantryamarhati.
In a matter of gift, in a matter of wealth, and especially in a matter of dharma, whether she be
taking or paying out, a woman should not be independent.
The picture is of a woman, alone, being cheated by some charlatan of a swamiji. The recently
published Prithvichandrodaya, Vyavahara-prakasa(ed. J.H. Dave, Bombay, 1962), p. 202, gives the
obviously correct comment: “The meaning is that the king should render null and void any act by a
dependant person done without the permission of the independent person.” But the text goes on to
quote relevant stanzas of Katyayana and our own stanza of Brihaspati, all obviously as exceptions to,
and qualifications of, the principle already stated. And rightly so the supposition behind our enquiry is
that the woman in question is de facto svatantra: as soon as the husband returns or her son reaches
majority she becomes paratantraagain, but meanwhile the responsibility rests with her, and powers
should obviously be allowed to her accordingly. We may now turn to the complicated case-law, secure
in the knowledge of what the old Hindu law intended for the benefit of minors.
The Nagpur Position on the Subject
The Nagpur High Court perished, but not without leaving progeny. In a conflict between a
Bombay decision and a Nagpur decision the Bombay decision would bind the Nagpur Bench of the
Bombay High Court. But the merits of the cases in conflict must be investigated in any event,
especially where, as in this instance, the Nagpur view has penetrated here and there and commended
itself to many Courts.
The beginning of the Nagpur view has not been sufficiently understood in all quarters. It lies in
Kesheo v. Jagannath.1There, as far back as 1925, the Full Bench held that any adult member may the
manager of the joint family, and in case of need a step-mother could bind her step-son, who was a
minor, by alienation of the joint family property, in whatever character she purported to act. The ratio
was simple. Hunoomanpersaud’scase2 (one of the greatest cases in the history of Hindu Law) dealt
with the powers of a widow mother as manager of the property of her minor son, and was in reality a
case in the context of managership rather than guardianship properly so called. The test of the lady’s
act was not who she was or in what capacity she purported to act, but whether the act was necessary or
in the minor’s interest as understood by the law. Granted the necessity (as in that case) the realities
must be observed and the female alienor must be understood to have acted as manager of the estate.
This point of view (which, in the present writer’s submission, was correct) was followed in Pandurang
Dahake v. Pandurang Gorle.3 There the widowed mother passed a promissory note for necessity as
1 [1926] AIR Nag 81, SC 22 NagLR 5, FB.

2 Hunoomanpersaud Panday v. MussumatBabooee M. Koonweree (1856) 6 MIA 393.
3 [1947] AIR Nag 178, SC [1947] Nag 299.
22
guardian of her two minor sons. She was a de facto manager and was held to have managerial powers,
and the sons could not repudiate the debt. Naturally the Court is not willing to lend its aid to schemes
to defraud honest creditors of the family. In I.T. Commr. v. Laxmi Narayan1the mother as Karta of the
undivided family consisting of herself and her two minor sons entered into a partnership., renewing
thereby the partnership which her late husband had had with his brothers. The learned Judges, Pollock
and Shevde, JJ., expatiated on the narrower view supposed (wrongly) to have been entertained by the
ancient Hindu law, referred to Seethabai v. Narasimha2in Madras with disapproval, pointed out that at
Dayabhaga law women could be coparceners and so possibly even managers, and noted that a female
might be manager of a religious endowment. The view (in Madras) which prevented a woman from
exercising managerial powers was “antediluvian”. The Act of 1937 had improved a widow’s status.
The cases of Kesheo and Pandurang were correct and must be followed.
In 1954 a Full Bench of the then Travancore-Cochin High Court in a short and not deeply
considered passage approved of the Nagpur position3 and relied on Pandurangand on the case of the
Commissioner of Income Tax v. Laxmi Narayan (above). The lack of detailed discussion is not of
much significance, for it is hardly likely that a Kerala Court could take any other view of the status
and powers of woman. The Nagpur position was noticed in other cases which will be referred to
below, but was specifically reconsidered in Seth Bros v. I. T. Commr.4 In that case the conflict between
Nagpur and Madras was not resolved, but the Madras position was not viewed with favour, and the
Madras case affecting the problem before the Court was easily distinguished on the ground that the
lady in Madras had not purported to act as manager. In Budhi Jena v. Dhobai Naik5the issue was
whether a minor can act as manager through his guardian (an issue to which we return) and the words
spoken on the subject of the mother’s powers as manager were therefore obiter dicta. But it is
abundantly clear that if the mother had purported to act as manager, and had her husband not been
alive, the Court would have followed the Nagpur view and allowed her act as that of a manager.
The Madras Position on the Subject
The Madras view is simplicity itself. We have already referred to the first case in the series,
Seethabai v. Narasimha.6 There the widows claimed that they were undivided members of the
coparcenary by reason of the operation of the Act of 1937. They objected to the appointment of a
guardian for the property of the minor sons. The Court appointed one widow guardian of one minor
and a stranger was appointed guardian of the other. None of the widows, it was held, could be
manager. To be a manager one must be a pukka coparcener, a male with a birth-right and not a mere
statutory interest. It may be pointed out in passing that if the law is as contended for in this paper, the
Court has no jurisdiction to appoint a guardian of the interests in joint family property while a female
member exists competent to act as manager-except for the special powers of the old Presidency High
Courts and powers deriving from those on which we cannot dwell here (see Derrett, Introduction to
Modern Hindu Law 68).
Sri Banatwala sided with Madras in this controversy. 7 The ball having passed once again into the
Nagpur Court, it could not be long before Madras struck once again. In Radha Ammal v. I.T. Commr,
Madras,8 which is the leading case, Satyanarayana Rao and ViswanathaSastri, JJ., affirmed with much
emphasis the previous position. The Nagpur decision in the case or I.T. Commr. v. Laxmi Narayan9
was an “unwarranted extension”. The well-written protest of the first-mentioned Judge attacks the
Nagpur decision as nothing better than a plea for reform, which must come, if at all, from the
legislature and not the judiciary. In the case of Radha a mother, guardian of minor sons, purported to
execute a deed of partnership admitting a stranger as a partner in the ancestral business. It was held
that this was outside her powers and the deed could not be registered under Section 26 (a) of the
1 [1949] AIR Nag128, SC [1948] Nag 775.

2 [1945] AIR Mad 306, SC [1945] Mad568.
3 Balakrishna v. Ganesa [1954] AIR TC 209, FB.
4 [1956] AIR Nag 84.
5 [1958] AIR Ori 7.
6 [1945] AIR Mad 306, SC [1945] Mad 568.
7 [1951] AIR Journal 66.
8 [1950] AIR Mad 538, SC [1951] Mad 56.
9 [1949] AIR Nag 128.
23
Income-tax Act, 1922. A woman could not be a manager. The argument that Hunoomanpersaud’s case
(above) allowed the act of a de facto manager to binding even if she were a woman, was not noticed,
much less examined. This was a weakness in the Madras decision, which was in any case strictly
formal and antiquarian in its approach. Nevertheless, it had the merit of not disturbing what appeared
to be the traditional position so long as conclusive reasoning had not been produced against it.
In the Bombay High Court it was alleged in Rakhmabai v. Sitabai1 that a step-mother as manager
of a joint family consisting of her co-widow and minor step-son and a minor step-daughter, had the
power to resist the appointment of a guardian of the property of the step-son. She was managing the
estate and her authority should not, it was urged, be undermined by such an appointment. But the
learned Judge, Dixit, J., said that in such a case the proper course was to appoint a guardian for the
coparcenary property. A widow could not be a manager of joint family property (p.58). The case of
Seethabaiin Madras (above) was noticed and agreed with. Thus, at the time of writing, it appears that
the Bombay High Court sides with Madras and against Nagpur. Unfortunately, the Nagpur decisions
were drawn to the learned Judge’s attention only by way of the Madras decision above-mentioned,
which takes a dim view of the earlier of them. There is no trace in the judgment of Dixit, J., that Laxmi
Narayan’scase, of two years earlier, was cited or examined. Had it been discussed it is not impossible
that different views might have emerged.
The Orissa High Court, which has experienced the greatest difficulties with this topic, was faced
in 1955 with the problem of a father who was absent for many years. An absent father is demonstrably
not the same source of difficulty as a dead father, and to one who does not know the dharmasastra on
the subject, an opening for a distinction at once presents itself. But this is illusory. From the minors’
point of view, it is all one whether the father is indefinitely absent, or dead. In MaguniPadhano v.
LokananidhiLingaraj Dora2it was held that a mother, whose husband is alive, cannot be a manager.
She might indeed act as guardian of her son, if her husband was dead, and perhaps as de facto
guardian. But as manager she had no powers whatever. Laxmi Narayan’s3 case was not followed. The
principle that a woman could be a manager was decisively rejected.
More recently in Patna the same point of view has asserted itself. In Sheogulam v. Kishun
Chaudhuri.4 N.L. Untwalla, J., in an admirably brief judgment, denied that a mother of a minor son,
during the long absence of her husband, might act as Karta and incur debts for family purposes. All
such loans would not be binding upon the family. The case of Maguni(above), which was relevant,
was relied upon, and, unfortunately, Pandurang’s case in Nagpur was both distinguished (it was, after
all, a “widow” case) and dissented from. Radha and Rakhmabai were also relied upon.
On the surface it might seem that Madras has the best of it. But a further examination makes us
hesitate. The natural desire that deserted mothers and widows should have ample powers to look after
their minor sons’ interests, acting for necessity or the benefit of the family, has expressed itself, as
things will, in an irregular way, seeing that it was frustrated in expressing itself in some quarters in a
regular way.
The Minor Manager mare’s nest
If the mother could not act as manager in her own person could she not obtain managerial powers
by acting as guardian of her minor eldest son, who would be manager were he not a minor? She would
then act with the powers of a manager, qua guardian of a minor manager, qua guardian of a minor
manager. The main difficulty, of course, is to find an analogy, under which the powers of a guardian
are assimilated to those the ward would have if he were not under a disability. The extremely
ingenious notion was fed, however, by the extraordinary provisions of Section 21 of the Guardians and
Wards Act, 1890, a provision which, for reasons not at all obvious, most writers have accepted at its
face value. The section says that a minor is incompetent to act as guardian of any minor except his
own wife or child or, where he is the managing member of an undivided Hindu family, the wife or
child of another minor member of that family.
1 (1951) 54 Bom LR 55, SC [1952] AIR Bom 160.

2 [1956] AIR Ori 1.
3 [1949] AIR Nag128.
4 [1961] AIR Pat 212.
24
The section was unhappily drafted. The sarcasms of a learned Judge in Madras obiter 1 seem to
have been fully justified. The words “where he is the managing member of an undivided family”
cannot make him a manager where he was not one before. They are not enacting words but conditional
words. They are not even declaratory, and their discrimination between Hindu joint families and other
joint families requires an explanation. In fact, the ancient Hindu law was adamantly opposed to any
acts by an aprapta-vyavahara(a minor) which would purport to bind him himself or anybody else.
Narada’s text on the subject is so clear that detailed citations are unnecessary to support something
upon which all Smritis are agreed. No matter how urgent the necessity or how pressing the emergency
no minor can have managerial powers. Nor, until this curious phrase was picked upon, did anyone
think that a minor could be manager.
But we may be quibbling over words. By “manager” we mean one who can make an alienation of
property, one who can incur debts that will bind the family. The word is also capable of meaning the
one who handles the affairs of the family. Internally, domestically, a minor may well be a manager.
But he is not a manager vis-à-vis the outside world. Thus, in dealings with money-lenders and others,
no minor can be a manager. How then can his guardian exercise on his behalf powers of managership?
Powers he does not himself possess can hardly be exercised on his behalf. A guardian’s powers stem,
surely, from another source. The guardian is not the agent of the minor.
Unfortunately, this curious notion spread and took root. In TrimbakRaoji v. Lonkaran2Pollock and
Padhye, JJ., held that by reason of that Section 21 a minor may be a manager, and particularly when he
has a capable guardian he can exercise managerial powers through that guardian. The circumstances of
the case were these: Trimbak contended that his interests had not been properly protected when he was
defendant in mortgage proceedings and his uncle had acted as guardian while his mother, the real
guardian, was alive. His younger brother was not party to the proceedings, and thus, what with the
non-joinder of a proper party and the improper representation of himself, the enforcement of the
mortgage had been improper. To get out of this purely procedural difficulty it had been held that the
uncle properly representedTrimbak and that Trimbak as the (minor) manager represented his brother.
The operative words in this judgment are these (p. 398 of the I.L.R. report):
… There is nothing in the Hindu law so far as we have seen and nothing has been pointed out to
us by Dr. Kathalay… which absolutely forbids a minor through a senior member of a joint Hindu
family from occupying the status of a managing member of the joint Hindu family, particularly when
such a senior member has a capable guardian to represent him.
As we have seen, the whole trend of the sastra is against a manager’s under-taking any obligation
while he is a minor, and a contract by a minor will have been voidable if not absolutely void (the point
must be left open). That a boy of fifteen (or in these days seventeen) may well be able to manage a
household internally and for domestic purposes will be admitted but the Act of 1890 did not make a
minor capable of contracting with the outside world and binding himself and his juniors. The presence
of a guardian will not alter this position, nor turn a guardian into a manager. We have observed that
the difference is material. The case of Trimbakwas weakly supported by somewhat similar
observations in Bajirao v. Gulabsingh,3 but the authority of both stands or falls as a unit.
The position that a minor can be manager of the family was asserted in 1957 in Orissa, in Budhi
Jena v. Dhobai Naik.4 The case of Trimbakwas agreed with. A yet more recent case has emerged in
which the same position is asserted. 5 D.F. Mulla is cited as an authority on this point. In his tenth and
eleventh editions the possibility of a minor being a manager is stated, but of course with no better
authority than the statute, and the proposition is phrased negatively: “There is no rule of Hindu law
that the managing member of an undivided family should be an adult…” (which we know to be
wrong). But in the most recent edition of Mulla the learned editor, S.T.Desai, a former judge of the
Bombay High Court, removed the statement, substituting for it, at pp. 1039-40, a qualified denial of a
1 Mohideen Ibrahim v. Md. Ibrahim [1917] AIR Mad 612 (2), SC ILR Report at pp. 615-6. They are frequently noticed, but
treated as unimportant in view of the non-amendment of the statute (prior. That is, until the effect of the codification of
1956 was noticed.
2 [1948] AIR Nag 324. SC [1948] Nag 393.
3 (1912) 8 Nag LR 136.
4 [1958] AIR Ori 7.
5 Jaggernath Singh v. Narayan Sarogi [1965] AIR Pat 300, 303.
25
minor’s right to be a manager. His reason was this, that Section 10 of the Hindu Minority and
Guardianship Act, 1956 positively provided that “a minor shall be incompetent to act as guardian of
the property of any minor”. This produces a most curious situation. In the latest view stated in “Mulla”
the general acknowledgement of a minor as being capable of being a manager is withdrawn from the
section of the book dealing with managers, and restated in the portion dealing with the “Hindu Code”.
The case of Trimbakis referred to at p. 378, but without comment on the managerial question at large.
The restatement at p. 1040 of the minor’s right to be manager is qualified by the most important
proviso, that there shall be no minor coparcener with him. How then can he be manager? Only in such
a context where the only other owners of coparcenary property are widows who have taken under the
Act of 1937 (this is not stated by Mulla), so that we have a joint family with joint family property, but
no other coparcener. In other words, in the exact situation where there is a widow-mother and a minor
sole surviving coparcener the latter is the manager and not the former! Either this is right and the cases
which allow the mother to be manager are wrong, or the latter are right and the former is wrong. In
actual fact Mulla’s and his latest editor’s notion that the statute of 1890 enabled a minor to enter into
contracts to bind the family property is a misconception, and the cases founded on this misconception
are to that extent unsupported.
It might be argued plausibly that Section 10 of the Hindu Minority and Guardianship Act, 1956,
did not affect interests in joint family property, since that Act is not intended to deal with such
property, unless it specifically so provides. But whatever be the truth of this, nothing can make a
minor a manager of a Hindu joint family in dealing with strangers.
TrutiaMirdha v. Basudev Singh,1 a recent case of the series, was a case where the father was
absent, and the mother acted as guardian. For legal necessity she sold family property. She joined with
other members of other branches of the family who held the property as tenants in common. She acted
as Karta of the branch not merely because as female she might do so (Nagpur and Madras views were
compared) but because in fact her minor son acted as manager of his branch through her.
That this is bad law is shown, in almost the same terms as those used above by the present writer,
in the comments of N.R.Raghavachariar (Hindu Law, Principles and Precedents, 4 th ed. 1960, at p.
1014; 5th ed. 1965, pp. 1094-5). In his view he, the minor manager, cannot enter into contracts with
strangers; in particular, he cannot sell, even for necessity-but he can purchase. In the present writer’s
view, he cannot purchase when the transaction creates against him, still more against the family, any
rights. It is submitted that subject to these reservations Raghavachariar is right and Mulla and these
recent cases are wrong.
Conclusion
Here is a case where the law of the dharmasastrais our one and only sure guide. The Anglo-
Hindu law was, indirectly, faithful to the fundamental principle in Nagpur, and not in Madras. Sooner
or later the whole question must be reviewed, perhaps by a Full Bench.
The notion that a widowed mother can act as guardian and thus indirectly acquire managerial
powers, whether or not she has the status of a manager, is an altogether unnecessary device. The truth
is that females in a family bereft of its male managing member are, or should be, able to make
transfers for necessity or benefit of the family. This is the position under the ancient Hindu law, and
has always been the position ideally speaking. It is subject to the proviso that the manager should not
be within reach and should therefore be unable to exert authority and fulfil responsibility whether
personally or through a delegate, such, for example, as the female herself might well have been had
circumstances permitted.2 Nagpur was right: the true test is not who transferred or incurred the
liability, but whether the transaction was justified by necessity. 3
Though very plausible, the Madras view is unsound. It is too rigid, and rigidity in law is a fatal
flaw. This view of the position depended too much on the ill-directed question whether the transferor
was a coparcener. In the future, as the capacity of females to handle questions of business increases,
1 [1964] AIR Ori 123. This is in conflict with the [1956] Orissa case (above) and the [1961] Patna case (above).
2 The Mysore case emphatically cited by Raghavachariar at p. 275, 276 (4th edn.), viz.Siddappa v. Lingappa 16 MysLJ 32,
SC 42 MysHCR 669, may properly be relied upon. It was there opined that the onus of proving such exceptional
circumstances lay on those setting them up.
3 One cannot point too emphatically, to the case in the Federal Court of Kondamuru Sriramulu v. MynemiPundarikakshayya
[1949] AIR 218, 260. JDM Derrett, Introduction to Modern Hindu Law, §113.
26
Courts which at present prefer the Madras view will lean to the other; meanwhile the cases should be
seen on their merits. If the widow or deserted wife has not been practised upon, or used as a tool, has,
on the contrary, used independent advice and has done prudently what a true manager would have
been entitled to do, she should, it is submitted, according to Hindu law, be treated as having exercised
managerial powers, and her act should not be upset for want of authority to transfer. 1
--------------------
1 Another view of the position was taken in JDM Derrett. Op. cit., §94, §424. The writer believed that the Madras view
correctly represented Mitakshara law. The full force of the sastric provisions relating to binding debts incurred by family
dependants, and, a fortiori, widows had not struck him.
27
COPARCENARY UNDER HINDU LAW : BOUNDARIES REDEFINED
Vijender Kumar
Introduction
In Hindu social system, Dharmasastras do not separate the spiritual from the secular, therefore, in
the grasthasramaa person is given the training to lead a complete and meaningful life for the benefit
and welfare of those who left and those who are present and those who will be born. It is a unique
phenomenon of Hindu philosophy that the Hindu family has been thought of as one of the most
important institutions because all other institutions like brahmacharya, vanaprastha and
sanyashadepend on it. Hence, the importance of the family is advocated in the Dharmasastras.
The coparcenary as understood in Hindu law has its origin in the concept of Dayaas explained by
Vijnaneshwara while commenting on Yajnavalkyasmriti in the
Dayavibhagaprakranamvayavaharaadhaya. Here, Vijnaneshwara discussed that Dayais only that
property which becomes the property of another person, solely by reason of relation to the owner. The
words solely by reason of relation exclude any other cause, such as purchase or the like. 1
Narada also approves the meaning of the Daya which is a coparcenary property because
according to him, sons can divide only father’s property which has been approved by the learned
(Svatvanimitasambandhopalashanam). Therefore, the unique concept of coparcenary is the product of
ancient Hindu jurisprudence which later on became the essential feature of Hindu law in general and
Mitakshara School of Hindu law in particular.
The concept of coparcenary as understood in the general sense under English law has different
meaning in India or Hindu legal system. In English law, coparcenary is the creation of act of parties or
creation of law. In Hindu law, coparcenary cannot be created by acts of parties, however, it can be
terminated by acts of parties. The coparcenary in Hindu law was limited only to male members who
descended from the same male ancestors within three degrees. These coparceners have important
rights as regards to property of the coparcenary but so long the coparcenary remains intact no member
can claim any specific interest in any part of the property of the coparcenary because of the specific
nature of coparcenary in the Mitakshara School of Hindu law.
However, under Hindu law, the coparcenary in the Mitakshara and the Dayabhaga Schools of
Hindu law have different meanings with the result that this difference in the concepts of coparcenary
of the Mitakshara and the Dayabhaga Schools of Hindu Law resulted in the difference of definition of
partition and the duty of the son to pay the debt of his father. Therefore, the deviation in the original
concept of coparcenary is the result of social and proprietary influence. Hence, when females are made
entitled to become coparceners it does not militate against the nature and concept of coparcenary
because it is the social and proprietary aspect which prominently make it necessary that females
should be included in the concept of coparcenary. However, the term Apatya (child) is a coparcener
 Original research paper was published in NALSAR Law Review, Vol. 4, 2008-09, pp. 27-40.
 Professor of Law, Commonwealth Fellow & Head-Centre for Family Law, NALSAR University of Law, Justice City,
Shameerpet, Hyderabad.
1 Solely by reason of relation: “solely” excludes any other cause, such as purchase or the like. “Relation”, or the relative
condition of parent and offspring and so forth, must be understood of that other person, a son or kinsman, with
reference to the owner of the wealth. (Balam Bhatta). The meaning is this: wealth, which becomes the property of
another, (as a son or other person bearing relation,) in right of the relation of offspring and parent or the like, which he
bears to his father or other relative who is owner of that wealth, is signified by the term heritage. (Subodhini). In right
of their being his sons or grandsons: a son and a grandson have property in the wealth of a father and of a paternal
grandfather, without supposition of any other cause but themselves. Theirs consequently is inheritance not subject to
obstruction. (Subodhini). Property devolves on parents: Visweswara Bhatta reads “parents, “brothers, and the rest”,
(pitri-bhratradinam), and expounds it ‘both parents, as well as brothers and so forth’. Balam Bhatta writes and
interprets an ‘uncle and a brother or the like’, (pitrivya-bhratradinam), but notices the other reading. Both are
countenanced by different copies of the text. The same holds good in respect of their sons: here the sons or other
descendants of the son and grandson are intended. The meaning is this: if relatives of the owner be forthcoming, the
succession of one, whose relation to the owner was immediate, is inheritance not liable to obstruction, but the
succession of one, whose relation to the owner was mediate or remote, is inheritance subject to obstruction, if
immediate relatives exist. (Subodhini). In respect of their sons: meaning sons and other descendants of sons and
grandsons, as well as of uncles and the rest. If relatives of the owner be forthcoming, the succession of one, whose
relation was immediate, comes under the first sort; or mediate, under the second. (Balam Bhatta); H.T.Colebrooke,
Daya-Bhaga and Mitaksara, 1984, pp. 242-243.
28
because according to Nirukta, Apatya means child which includes both son and daughter. Therefore,
when a female is made a coparcener, it is only the recognition of the meaning of child in its true sense
without making any distinction between a son and a daughter.
Now, a question which may arise in the case of a daughter is how the coparcenary interest will be
determined at the time of her marriage. In fact, it would pose no problem because the male members
of a coparcenary can determine the coparcenary interest any time at their will so why should there be
any difficulty in the case of daughters. In fact, the main emphasis is on granting the proprietary rights
to female children equal to the proprietary rights of male children. Therefore, the marriage of a
daughter may or may not have any impact on the proprietary interest rather it will depend upon the
will of the female herself. The division of property of a coparcenary will depend on the nature of the
property whether the property which is in the hands of the coparceners is ancestral property or it is the
self-acquired property of the coparceners. This problem has already been in existence both in the
Mitakshara and the Dayabhaga Schools of Hindu law and the solution of the problem of division or
partition of coparcenary property may follow either the pattern followed in Hindu law or statutory
provisions may be made in this behalf. But, in any case inclusion of a female child in coparcenary is
not against the letter and spirit of Hindu law.
Concept of Coparcenary: Historical Perspective
Coparcenary is "unity of title, possession and interest". To clarify the term further, a Hindu
Coparcenary is a much narrower body than a Hindu joint family, it includes only those persons who
acquire by birth an interest in the coparcenary property, they being the sons, grandsons, and great-
grandsons of the holders of the property for the time being.
The Black's law dictionary gives a more comprehensive explanation of the term coparcenary. It
says, "such estate arises where several take by descent from same ancestor as one heir, all coparceners
constituting but one heir and having but one estate and being connected by unity of interest and of
title. A species of estate, or tenancy, which exists where lands of inheritance descend from the ancestor
to two or more persons. It arose in England either by common law or particular custom. By common
law, as where a person, seised in fee-simple or fee-tail, dies, and his next heirs are two or more
females, his daughters, sisters, aunts, cousins, or their representatives; in this case they all inherit, and
these coheirs, are then called “coparceners”, or, for brevity ‘parceners’ only. By particular custom, as
where lands descend, as in gavelkind, to all the mates in equal degree, as sons, brothers, uncles
etc…An estate which several persons hold as one heir, whether male or female. This estate has the
three unities of time, title and possession; but the interests of the coparceners may be unequal.”1
In Dharmasastra coparceners are referred to as Sahadaee. The term coparceners came to be used
as a result of influence of Western Jurisprudence. Therefore, the present concept is not very difficult
from the earlier one. The justification of coparcenary according to the Mitakshara School is that those
who can offer funeral oblations (Pindh-daan) are entitled to the property. The concept of Pindh-daan
is that the person who offers funeral oblations share the same blood with the person to whom he is
offering a Pindh.
A coparcenary is purely a creation of law; it cannot be created by act of parties, except by
adoption. In order to be able to claim a partition, it does not matter how remote from the common
ancestor a person may be, provided he is not more than four degrees removed from the last male
owner who has himself taken an interest by birth. 2
In Hindu law of succession, the coparcenary is still not codified. There are two Schools, viz., the
Mitakshara and the Dayabhaga. According to the Mitakshara School, there is unity of ownership - the
whole body of coparceners is the owner and no individual can say, while the family is undivided that
he has a definite share as his interest is always fluctuating being liable to be enlarged by deaths and
diminished by birth in the family. There is also unity of possession and enjoyment. Further, while the
family is joint and some coparceners have children and others have few or none or some are absent,
they cannot complain at the time of partition about some coparceners having exhausted the whole
income and cannot ask for an account of past income and expenditure. Katyayana expressly states that
1 Joseph R. Nolan et al., Black’s Law Dictionary, 6thed. 1990, p. 335.

2 P.V.Kane, History of Dharmasastra, Vol. III, 3rded. 1993, p. 591. Vide Moro v. Ganesh, 10 Bm. HCR, p. 444, pp.
461-468 where Mr. Justice Nanbhai Haridas very lucidly explains by several diagrams the limits of a coparcenary and
what persons are entitled to demand a partition and from whom.
29
the joint family property devolves by survivorship that is on the death of a coparcener his interest
lapses and goes to the other coparceners. The conception of coparcenary under the Dayabhaga School
is entirely different from that of the Mitakshara School. Under the Dayabhaga School, sons do not
acquire any interest by birth in ancestral property, but the son's right arises only on the father's death
and the sons take property as heirs and not as survivors.
However, the coparcenary in Hindu law is not identical to the coparcenary as understood in
English law. Thus, in the case of death of a member of coparcenary under the Mitakshara law, his
interest devolves on the other members by survivorship while under English law, if one of the co-heirs
jointly inheriting properties dies, his or her right goes to his or her legal heirs.
Mitakshara School of Hindu Law
It is important to note the distinction between ancestral property and separate property. Property
inherited by a Hindu from his father, father's father, or father's father's father, is ancestral property.
Property inherited by him from other relations is his separate property. The essential feature of
ancestral property is that if the person inheriting it has sons, grandsons, or great grandsons, they
become coparceners with him and become entitled to it by reason of their birth. Thus, if A, who has a
son B, inherits property from his father, it becomes ancestral in his hands, and though A, the head of
the family, is entitled to hold and manage the property, B is entitled to an equal interest in the property
with his father, A and to enjoy it in common with him, B can, therefore, restrain his father from
alienating it except in the exceptional circumstances, viz., apatkale, kutumbharte, dharmarte or legal
necessity. Such alienation is allowed by law and he can enforce partition of it against his father. On his
father's death, he takes the property by survivorship and not by succession. 1 However, as to separate
property, a man is the absolute owner of the property inherited by him from his brother, uncle, etc. His
son does not acquire an interest in it by birth and on his death, it passes to the son not by survivorship
but by succession2. Thus, if A inherits from his brother, it is his separate property and it is absolutely
at his disposal. His son B acquires no interest in it by birth and he cannot claim partition of it nor can
he restrain A from alienating it. The same rule applies to the self-acquired property of a male Hindu.
But it is of the utmost importance to remember that separate or self-acquired property, once it
descends to the male issue of the owner becomes ancestral property in the hands of the male issue who
inherits it. Thus, if A owns separate or self-acquired property it will pass on his death to his son B as
his heir. But in the hands of B it is ancestral property as regards his sons. The result is that if B has a
son C, C takes an interest in it by reason of his birth and he can restrain B from alienating it, and can
enforce a partition of it as against B.
Ancestral property is species of coparcenary property. As stated before, if a Hindu inherits
property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said
that the son becomes a coparcener with his father as regards the property so inherited and the
coparcenary consists of the father and the son. But this does not mean that a coparcenary can consist
only of a father and his sons. It is not only the sons but also the grandsons and great grandsons who
acquire an interest by birth in the coparcenary property. Thus, if A inherits property from his father
and he has two sons B and C, they both become coparceners with him as regards the ancestral
property. A, as the head of the family, is entitled to hold the property and to manage it and hence is
called the manager of the property. If B has a son D and C has a son E, the coparcenary will consist of
the father, sons and grandsons, namely, A,B,C,D, and E. Further, if D has a son F, and E has a son G,
the coparcenary will consist of the father, sons, grandsons, and great grandsons, in all, it will consist of
seven members. But if F has a son H, H does not become a coparcener, for a coparcenary which is
1 Section 6 of the Hindu Succession Act, 1956: When a male Hindu dies after the commencement of this Act, having at
the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
2 Section 8 of the Hindu Succession Act, 1956: The property of a male Hindu dying intestate shall devolve according to
the provisions of this Chapter —
(a) Firstly, upon the heirs, being the relatives specified in Class-I of the Schedule;
(b) Secondly, if there is no heir of Class-I, then upon the heirs, being the relatives specified in Class-II of the Schedule;
(c) Thirdly, if there is no heir of any of the two Classes, then upon the agnates of the deceased; and
(d) Lastly, if there is no agnate, then upon the cognates of the deceased.
30
limited to the head of each stock and his sons, grandsons, and great grandsons. H being the great great-
grandson of A cannot be a member of the coparcenary so long A is alive.
Genesis of Coparcenary
A coparcenary is created when, for example, a Hindu Male A, who has inherited no property at
all from his father, grandfather or great grandfather, acquires property by his own exertion. A has a
son B, B does not take any vested interest in self-acquired property of A during A's life time, but on
A's death he inherits the self-acquired property of A. If B has a son C, C takes a vested interest in the
property by reason of his birth and the property inherited by B from his father A becomes ancestral
property in B's hands, and B and C are coparceners as regards this property. If B and C continue joint
and a son D is born to C, he enters into the coparcenary by the mere fact of his birth. And if a son E is
subsequently born to D, he too becomes a coparcener with his father and grandfather.
Though a coparcenary must have a common ancestor to start with, it is not to be supposed that at
every extent coparcenary is limited to four degrees from the common ancestor. A member of a joint
family may be removed more than four degrees from the common ancestor (original holder of
coparcenary property) and yet he may be a coparcener. Whether he is so or not depends on the answer
to the question whether he can demand partition of the coparcenary property. If he can, he is a
coparcener but not otherwise. The rule is that partition can be demanded by any member of a joint
family who is not removed more than four degrees from the last holder, however, remote he may be
from the common ancestor or original holder of the property.
When a member of a joint family is removed more than four degrees from the last holder he
cannot demand partition, and therefore, he is not a coparcener. On the death, however, of the last
holder, he would be entitled to a share on partition, unless his father, grandfather and great grandfather
had all predeceased last holder. The reason is that whenever a break of more than three degree occurs
between the holders of property the coparcenary comes to an end.
Another important element of a coparcenary under the Mitakshara law is unity of ownership. The
ownership of the coparcenary property is in the whole body of coparceners. According to the rule, the
notion of an undivided family governed by the Mitakshara law, no individual member of that family
whilst it remains undivided can predicate of the joint and undivided property that he, that particular
member has a definite share, one third or one fourth. His interest is a fluctuating interest, capable of
being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on
partition that he becomes entitled to a definite share. The most appropriate term to describe the interest
of a coparcener in coparcenary property is “undivided coparcenary interest”. The rights of each
coparcener until a partition takes place consist in a common possession and common enjoyment of the
coparcenary property. As observed by the Privy Council in KatamaNatchiar v. The Rajah of
Shivaganga,1 there is community of interest and unity of possession between all the members of
coparcenary, and upon the death of any one of them, the others will take by survivorship in which they
had during the deceased’s life time a common interest and a common possession.
The Supreme Court has summarised the position and has observed that the coparcenary property
is held in collective ownership by all the coparceners in a quasi-corporate capacity. The incidents of
coparcenary are: first, the lineal male descendants of a person up to the third generation, acquire on
birth ownership in the ancestral properties of such person; secondly, that such descendants can at any
time work out their rights by asking for partition; thirdly, till partition each member has ownership
extending over the entire property jointly with the rest; fourthly, as a result of such co-ownership, the
possession and enjoyment of the properties is common; fifthly, no alienation of the property is
possible unless it is for necessity, without the concurrence of the coparceners; and lastly, the interest of
a deceased member passes on his death to the surviving coparceners.
Dayabhaga School of Hindu Law
The conception of coparcenary and coparcenary property according to the Dayabhaga School is
entirely distinct from that of the Mitakshara School. According to Mitakshara School, a son acquires at
birth an interest with his father in ancestral property held by the father and on the death of the father
the son takes the property, not as his heir, but by survivorship. According to Dayabhaga School, the
son does not acquire an interest by birth in ancestral property. Son's right arises only on the death of
1 (1863) 9 MIA 539.

31
his father. On the death of the father he takes such property as is left by him whether separate or
ancestral, as heir and not by survivorship.
According to the Mitakshara School, the foundation of coparcenary is first laid on the birth of a
son. The son's birth is the starting point of a coparcenary according to Mitakshara School. Thus, if a
Hindu governed by the Mitakshara School has a son born to him, the father and the son at once
become coparceners.
According to Dayabhaga School, the foundation of a coparcenary is laid on the death of the
father. So long as the father is alive, there is no coparcenary in its strict sense of the word between him
and his male issue. It is only on his death leaving two or more male issues that a coparcenary is first
formed. Thus, it would be correct to say that the formation of a coparcenary does not depend upon any
act of the parties. It is a creation of the law. It is formed spontaneously on the death of the ancestor. It
may be dissolved immediately afterwards by partition but until then the heirs hold the property as
coparceners. These observations must obviously be read in the context of a father dying leaving two or
more male issues who would constitute a coparcenary, though of course, in their case, there would be
only unity of possession and not unity of ownership. Thus, till a partition by metes and bounds, that is,
actual and final distribution of properties takes place; each coparcener can say what his share will be.
In other words, none of them can say such and such property will fall to his share. Each coparcener is
in possession of the entire property, even if he has no actual possession, as possession of one is
possession of all. No one can claim any exclusive possession of property unless agreed upon by
coparceners.
In SudarsanaMaistriv. Narasimhulu,1it was held that a joint family and its coparcenary with all
its incidents are purely a creature of Hindu law and cannot be created by act of parties, as the
fundamental principle of the joint family is the tie of sapindashiparising by birth, marriage and
adoption.
Andhra Pradesh Module: Step towards Proprietary Equality
The Hindu Succession Act, 1956 has conferred rights of succession on Hindu females as provided
in Section 6 of the Act, relating to succession to an undivided interest in a joint family property when a
coparcener dies intestate. But a male was free to dispose of inter vivos or by will, his interest in the
joint family property which meant the female could still be deprived of proprietary right. Considering
it unfair to exclude a daughter from participation in the ownership of coparcenary property, and in
order to confer the right to property by birth on a Hindu female and assimilate her to the position of a
male member of a coparcenary, a Bill, L.A. Bill 12 of 1983 was introduced in the Andhra Pradesh
Legislative Assembly. The Bill was enacted by the Andhra Pradesh State Assembly on September 25,
1985 and received the assent of the President and came into force on September 5, 1985.
The Hindu Succession Act, 1956 was amended by introducing a new Chapter, Chapter II-A
consisting of Sections 29-A, 29-B and 29-C. Section 29-A provides that the daughter becomes a
coparcener by birth along with other male members and has a right to obtain partition having the equal
share with son. Section 29-B provides that a daughter’s interest in the joint family property would
devolve by survivorship upon the surviving members of the coparcenary and not in accordance with
the Hindu Succession Act. The Hindu Succession (Andhra Pradesh Amendment) Act, 1986 was
extended to the whole of the State of Andhra Pradesh.
This was a very progressive measure and removed to a large extent the inequality between males
and females among Hindus with regard to property under Hindu law. The example set by Andhra
Pradesh has been followed by other States, viz., the Hindu Succession (Tamil Nadu Amendment) Act,
1989, the Hindu Succession (Maharashtra Amendment) Act, 1994, and the Hindu Succession
(Karnataka Amendment) Act, 1994. In order to have a uniform law for the whole of India it was hoped
that all other States would follow this example or the Union Legislature would amend the Principle
Act of 1956 on the above lines.
In Narayan Reddy v. Sai Reddi,2where in a suit for partition of joint family properties, a
preliminary decree was passed ascertaining the share of the parties, it was held that it was open to the
1 (1902) 25 Mad. 149.

2 AIR 1990 AP 263.
32
unmarried daughter to claim share in those properties under Section 29A as amended by A.P.
Amendment Act, 1986 before the passing of the final decree.
InAshok Kumar Ratanchandv. CIT,1 the A.P. High Court held that where a coparcener who
obtains property on partition and marries subsequently, the status of unit of assessment after marriage
is necessarily that of a Hindu undivided family and the income from such property is assessable in that
status and not in the status of the individual. After discussing the entire case law on the subject, the
Court observed that the property which a coparcener obtains on partition does not become for all times
his individual and separate property. If he has a wife or a daughter, depending on him the property will
be charged by the obligation to maintain them. If he marries later, his property, ancestral or self-
acquired, will be burdened by an obligation to maintain his wife. If he begets a son, that son becomes
entitled to a share in the property which thereby revives the character of joint family property. If he
begets only daughters, the obligation to maintain them will be fastened on the property. An unmarried
Hindu male, obtaining a share of ancestral property on partition retains the property as his absolute
property. But after marriage the property becomes encumbered by an obligation to maintain his wife
or other dependents. It sheds the character of separate property and revives its character as joint
property of the smaller unit consisting of himself and his wife. In that limited sense, the income
therefrom may be the income of the Hindu undivided family consisting of himself and his wife. 2
The main points for consideration and elucidation of the consequences of the result of statutory
inclusion of a daughter in the category of Mitakshara Coparcenary were that the anomalies and
inconsistencies must be eliminated. As for the anomaly, it is to be made clear that at the time of
marriage, the daughter must for all purposes cease to be a member of the coparcenary in the family of
her birth. The anomaly is that by virtue of marriage she has become the member of the family of her
husband and the member of her husband’s family cannot be the member of coparcenary of her family
of birth. However, for the purpose of succession under Section 6 of the Hindu Succession Act, 1956,
she will remain an heir in the Class I of the Schedule and as for the inconsistency, it would be
inconsistent to regard her children to be the members of the coparcenary of their mother’s family,
because in the case of male coparceners, the children of the coparceners become the member by virtue
of their birth in the family. But the daughter’s children, in lieu of the coparcenary membership of their
mother’s family, get the membership of coparcenary of the family in which their mother is married, so
there is no denial of any equality to the daughter of a daughter by denying her the coparcenary
membership in the family of her mother’s birth.
It was felt that not many cases on the Hindu Succession (Andhra Pradesh Amendment) Act, 1986
for claiming coparcenary interest were coming up in Courts. There might be two reasons for this. First,
it might be that they were satisfied with the newly created statutory right in their favour. The second
reason might be that the females did not want to disturb the existing usages, customs and practices of
their family of birth. This reason seems to be the most plausible reason. Granting of coparcenary
interest to females not only brings them proprietary interest but at the same time the females are also
liable to the same duties to pay the debt of their father as the males are and after satisfying the debt
their interest can be taken. Therefore, whether they do not claim the interest they would still be liable
to pay the debt of their father. Further, the coparcenary interest will also be affected when a Karta
alienates the joint property of the coparcenary. If the alienation is for legal necessity or for the benefit
of the estate or for the welfare of the family, the female coparcener will be bound by the alienation
unless she proves that the alienation was not for legal necessity or for the benefit of the estate or for
the welfare of the family or that it was immoral or illegal. The aforesaid implications are not
imaginary but they are natural and practical problems which the law must take into account.
Evaluation
The ownership and transfer of ownership is crucial to an understanding of the economic and
social functioning of the institution of the family. It is impossible to study the relevance of the Hindu
joint family, without examining the provisions of law relating to property. In other words, it is
imperative that there exists an identification of the members of a family, who are entitled to inherit and
pass on the property. It is the members of the family who hold and manage the joint family property.
1 (1990) 186 ITR 475.

2 Ibid, p. 488.
33
In ancient times, everywhere, property could be owned by the patriarch of the family, who had an
absolute control over persons and property of the family. The patriarch was held to be responsible for
all the matters relating to household, ultimately earning him the title of the “Grahapati” or master of
the household. In Roman law, he was known as Patria Potestas. The patriarchal system also laid the
foundations for the system of primogeniture, whereby, the eldest male member of the family was
deemed worthy of inheriting the family’s property. Briefly speaking, this was the mindset of the Vedic
Scholars, who spoke of property distribution, ownership and transfer. The concept of the coparcenary
finds its origins against this very socio-economic backdrop. The coparcenary consisted of all those
members within a family, who were identified as those capable of managing, and deserving of holding
property. The members of the coparcenary were in better financial position than others, as they held
within their hands, the reigns to the family’s property and consequently, were at the helm of the
family’s economic affairs.
The constitution of the coparcenary differed depending on the customs and practices of the
region. The multiplicity of customs led to the broad classification of customs related to property in two
Schools, viz., the Mitakshara and the Dayabhaga. The coparcenary in Mitakshara law can be defined as
a group consisting of all those males who take by birth an interest in the joint or coparcenary property.
These include father, his son, son’s son, and son’s son’s son. 1 The same was envisaged by Section 6 of
the Hindu Succession Act, 1956. Some eminent scholars are of the opinion that discriminatory
treatment has always been meted out to women. The coparcenary has always been considered a
narrower body within the joint family. In other words, these scholars are of the opinion that the control
of the ancestral property continued to rest in a patrilineal regime.
The Amendment made to the Hindu Succession Act, 1956 in 2005 has attempted to make the
daughter of coparcener a ‘coparcener’. This amendment was made under the pretext of allowing for
gender friendly succession laws. However, there are many ambiguities surrounding an understanding
the Hindu Succession (Amendment) Act, 2005. There are several implications of the amendment, the
most significant being a possible reconstitution of the Mitakshara Coparcenary. By introducing the
daughter as a coparcener, the traditional patriarchal nature of the coparcenary has experienced a
dramatic change. There is a confusion surrounding the definition of the Mitakshara Coparcenary, in
the light of the Hindu Succession (Amendment) Act, 2005 - the position of the “daughter of a
coparcener” is one which needs to be examined better.
Section 6 of the Hindu Succession (Amendment) Act, 2005 clearly states that the daughter of a
coparcener shall by birth become a coparcener in her own right in the same manner as the son. It also
states that she shall have the same rights in the coparcenary property as she would have had she been a
son, and that she would be subject to the same liabilities. The daughter is thus, an acceptable member
of the Hindu coparcenary, by virtue of the Section 6 of the Hindu Succession (Amendment) Act, 2005.
However, the matter is not so simple.
The first problem encountered on examining Section 6 entails the lack of an explicit distinction
between married and unmarried daughters. This fact must be emphasized as the married and the
unmarried daughter do differ in respects such as membership of family; something which is crucial to
the notion of the coparcenary. However, working under the assumption that the term daughter, as used
in the Act, is inclusive of both married and unmarried daughters, it is necessary to understand that the
attempt to distinguish between a married and unmarried daughter might prove futile, with respect to
defining the coparcenary.
Another interesting problem while defining the coparcenary concern the inclusion or exclusion of
the adopted daughter is concerned. The text of the Section 6 of the Hindu Succession (Amendment)
Act, 2005 nowhere mentions any reference to an adopted daughter, but maintains the inclusion of only
a daughter by birth, as a part of the coparcenary. Thus, for all practical purposes, it is impossible to
include the adopted daughter in the new definition of the coparcenary - a matter which needs to be re-
examined.
The crux of the problems lies in the confusion which surrounds the phrase, “the daughter of a
coparcener”. It is clear from a reading of Section 6 that the daughter of the propositus is most
definitely a coparcener, entitled to a share in the coparcenary property, equal to that of her brother’s.
1 P.V. Kane, History of Dharmasastra, Vol. III, 3rded. 1993, p. 591.

34
However, it is necessary to understand that the applicability of this phrase is restricted to this
interpretation alone. In other words, it is incorrect to include the daughter’s children as coparceners in
their mother’s family. The text of Section 6 clearly makes no mention of the daughter’s son, and
hence, it may be safely assumed that he is to be excluded from his mother’s coparcenary. However,
while there is ambiguity surrounding the position of the daughter’s daughter, it is impractical to
suggest that the daughter of the daughter may be considered a member of her mother’s coparcenary.
On marriage the daughter ceases to be a member of her family of birth. Thus, she is a coparcener in
her natal family, but no longer a member of it. Her daughter will receive a share in her father’s
coparcenary. If the daughter’s daughter is allowed a share in the mother’s coparcenary, she would be
the recipient of a double share that is, a share from each of her parent’s coparcenary. Thus, the
daughter’s children cannot be made coparceners.
This emphasises the unfair advantage attributable to the daughter’s children that stems from
problems linked to membership of a family. In essence, the married daughter’s share in her father’s
coparcenary will only serve to help her husband’s family. Thus, there is a crucial problem surrounding
the membership of a family, and the coparcenary itself.
It is necessary to note that the system of the Mitakshara coparcenary loses its meaning, as
membership of joint family is no longer a pre-requisite. The amended Section 6 of the Hindu
Succession Act, 1956 has made a daughter who is not a member of the family, a coparcener. The
system of the coparcenary proves itself futile as no matter how the property passed onto the married
daughter, it will only benefit the family of her marriage. In essence, it is perhaps time to reconsider the
notion of the coparcener, and in effect re-look the constituents of the Hindu joint family. However,
based on the analysis of the sources mentioned above it is suggested that the Mitakshara coparcenary
shall now consist of “the common ancestor, the son, son’s son, son’ son’ son, the daughter of common
ancestor, son’s daughter and son’s son’s daughter”.
The Hindu Succession (Amendment) Act presumes the married female’s continuance in the
family of her birth. This presumption is neither logical nor workable. Therefore, the Act must provide
that a daughter on marriage ceases to be the coparcener in the family of her birth … that the
coparcenary interest of a daughter in the family of her birth would be determined at the time of
marriage. Her interest will be ascertained on the date of the marriage presuming that it was the date on
which the severance of her status has affected and it must follow actual division of coparcenary
property (partition)…otherwise the Act will create more problems than it solves. The net result would
be social and family feuds and tensions. Therefore, it is suggested that the aforesaid provision
regarding continuance of a daughter as coparcener even after marriage be removed.
Further, it is submitted that the Hindu Succession (Amendment) Act makes discrimination
between a daughter born in the family and a daughter adopted in the family of her adoption. Therefore,
this anomaly must be removed by making an amendment in the existing Act to absorb adopted
daughter in the family of her adoption as a coparcener as is done in the case of an adopted son.
Finally, it is submitted that if there is a real desire to help the female in general and the Hindu
female in particular in the light of the Hindu Succession (Amendment) Act, 2005, the provisions to
make the wife a sharer in the property at the moment of her entry into the family of her marriage must
be made. Since her entry in the family of her marriage is not temporary but is permanent for life, the
female should be made a sharer in the property of the relations of her husband. Where the husband is a
sharer, she should be an equal sharer with her husband. If the Parliament is serious to improve
financial position of Hindu female, the wife, who is the other half of her husband, it should make a law
that should give her equal economic rights in the property of her husband and equal right of heirship
with her husband in the property of relatives of her husband as she is the inseparable half of her
husband. It will be in total conformity with the spirit of Hindu view of life as she is SapindaGotraja.
On the analogy and rationale of Dattaka, all her rights must cease in the family of her birth after
marriage and consequent replacement must take place in the family of her marriage. Further, every
marriage must be registered.1 If these provisions are made, divorce will become only an exception, and
1 Seema v. Ashwani Kumar AIR 2006 SC 1158: The Supreme Court held that marriages of all persons, citizens of India,
belonging to various religions should be made compulsorily registrable in their respective States, where marriage is
solemnized.
35
on divorce a Hindu female should be divested of all her properties which she had got by virtue of her
marriage.
…………………
36
PROPRIETARY RIGHTS OF FEMALE UNDER HINDU LAW: STRAINS AND STRESSES 
Vijender Kumar
Introduction
Legislative approach and judicial pronouncements have resulted in amelioration the proprietary
status of Hindu female. But the real point is missed and much remains to be done. An analysis of the
various relevant statutory provisions and judicial opinions reveals that the Hindu female's personal and
proprietarystatusmore or less remains the same as it was before emergence of the statutory era in
Hindu law. Juristic efforts have been eclipsed by the socio-religious influence on Hindu society.
Property and personality are interdependent terms. While property concept is inconceivable without
person likewise personality is inconceivable without property. Hence, Maine has rightly remarked that
“the development of the progressive societies has hitherto been a movement from status to contract”.1
The study of the legal systems of the world, ancient and modern, reveals one thing in common that the
females have been denied the proprietary status under all the male dominated legal systems, which
resulted in deteriorating their social status and reducing them into the 'other' class, definitely of
inferior human beings. This paper studies the strains and stresses, felt during the chequered history of
female's proprietary rights under the Hindu jurisprudence.
Under Hindu law, ancient and modern no author except Vijnaneswaraever advocated and
recognised full proprietary rights to females. In fact, Section 14 of the Hindu Succession Act, 1956 is
the literal reproduction of Vijnaneswara's rule that all property, howsoever acquired, shall become the
absolute property of Hindu female.
During the British Indian legal history the Privy Council preferred the Dayabhaga rule limiting
the proprietary independence of Hindu females and, thus, Vijnaneswara's2view was thwarted to
emerge and develop into a rule of law. The Hindu female's absolute right to property advocated by
Vijnaneswara was judicially curtailed by the Privy Council for the first time in 1866 in
MussumatThakoorDeyhee v. Rai Baluk Ram.3In this case the Privy Council held that a widow may
have power of disposing of movable property inherited from her husband but she had no such right in
respect of immovable property. This case was from the Benares Hindu law and the Privy Council held
that though under the Bengal School a Hindu widow is restricted to dispose of both kinds of property
movable and immovable but in Benares School she was free to dispose of movable property inherited
from her husband. In 1867 the Hindu woman's power was curtailed in Benares School also, by the
Judicial Committee of the Privy Council even to dispose of movable property inherited from her
husband. In BhugwandeellDoobey v. Mynabaee,4the Privy Council held:
By the Hindoo law prevailing in Benares (the Western School) no part of the Husband’s estate,
movable or immovable, forms portion of his widow’s stridhan, and she has no power to alienate the
estate inherited from her Husband, to the prejudice of his heirs which, at her death, devolves on them. 5
The aforesaid two cases were decided by the Judicial Committee in order to reconcile the then
existing conflicting interpretations given to the texts of Dharmasastrason stridhan. The Bengal School
accepted the restricted interpretation of the text of Yajnavalkyawhich was finally accorded approval by
the Judicial Committee of the Privy Council and, thus, is born the concept of woman’s limited estate
which in 1937 was statutorily recognised in the Hindu Women’s Rights to Property Act. The concept
of Hindu woman’s limited estate gave rise to two types of property owned by Hindu woman, viz., (i)
woman’s limited estate and, (ii)stridhan. It was only in 1956 that the concept of woman's limited
estate, a judicial creation, was undone by the statute of the Parliament of Indian Republic.
 Original research paper was published in the Journal of Indian Law Institute, New Delhi at 39 (1997) JILI 376-385.
 Professor of Law, Commonwealth Fellow & Head, Centre for Family Law, NALSAR University of Law, Justice City,
Shameerpet, R.R. District, Hyderabad.
1 H.J.S. Maine, “Ancient Law” (1917 Rep. 1965), p.100.
2 Mitakshara, Ch. 2. S. II. paras 2-4. See also Subramaniam v. Arunachelam (1905) I LR 28 Mad 17; Salemma v. Lutchmanal
(1898) I L R 21 Mad 100, 103-105.
3 (1866) XI MIA 39.
4 (1867) XI MIA 487.
5 (1867) XI MIA 487, 488.
37
Efforts and attempts to bring about a viable change in the social status of Hindu females did not
succeed because the problem of female's life-long tutelage has not been attended to in the right
perspective. The present scenario is not conducive for the change in the position of females in general.
The greatest damage is done by the news and electronic media to the prestige and social status of
woman by impinging on the private life of females. The media persons are always eager to exploit
each and every move of a female, if thereby they may get a frontpager. The way the electronic media
and newspapers present the incidents relating to females is both damaging and destructive of their
independence and privacy. It is all done in the name of freedom of expression and to get frontpager.
The first and foremost thing that is required is to prohibit by law all news regarding private life of
persons in general and that of females in particular without their prior consent. This very provision
will provide sufficient social security and respectability to females.
Proprietary Right of Hindu Female in Historical Perspective
The era of Hindu law Acts which primarily started in independent India in 1955, was the
emergence of four statutes on Hindu law. Although these Acts ostensibly proclaim to improve the
position and social status of Hindu females, yet a keen observer will easily see that whatever is
incorporated in the four Acts is only an eyewash and the old wine is put into the new bottle. To
illustrate, the discriminatory treatment meted out to females under the Hindu law is the proviso of
Section 3(1)(j) of the Hindu Succession Act, 1956 which reads:
"related" means related by legitimate kinship:
Provided that illegitimate children shall be deemed to be related to their mother and to one
another, and their legitimate descendants shall be deemed to be related to them and to one another; and
any word expressing relationship or denoting a relative shall be construed accordingly.
Further, Section 3(2) gives primacy to male and expressly excludes the gender female. It provides
that "unless the context otherwise requires, words importing the masculine gender shall not be taken to
include females".
It reminds one as to what Simone de Beauvoir has rightly said: "in the mouth of a man the epithet
female has the sound of an insult, yet he is not ashamed of his animal nature; on the contrary, he is
proud if someone says of him: 'He is a male". 1
The proviso to Section 3(1)(j) adversely discriminates against the Hindu female. Rationally and
logically the greater responsibility for the procreation of a child is that of a man, but the proviso
absolves the male completely for owning the responsibility for the birth of the child he sires outside
wedlock. The simple reason for excluding the male from shouldering responsibility lies in the fact that
the male himself is a lawmaker. This legislative discrimination is in fact ultra vires the Constitution as
it discriminates against the female on the ground of sex alone. Again, the centuries old discrimination
meted out to the female has become so natural that it does not seem to be strange and unnatural. This
discrimination on a social plane with the female has completely percolated in the field of proprietary
sphere of females which the statutory law though pertained to remedy, yet fails miserably to succeed.
A study of relevant provisions of the Hindu Succession Act, 1956 reveals that Parliament was not
serious enough to remedy the wrongs suffered by females since time immemorial.
Proprietary benefit to Hindu Female under the Hindu Succession Act 1956
Parliament introduced changes in the Hindu law of succession by bringing in females in the line
of heirs of a male Hindu who are his close relations. These females are included in class-I of the
Schedule to the Hindu Succession Act, 1956. They are: mother, widow, daughter, daughter of pre-
deceased daughter, pre-deceased son's widow and daughter, and widow; and daughter of a pre-
deceased son of a pre-deceased son.
These female relations are sentimentally very close, to every person and they have been given the
right to succeed to the property of a male to whom they relate along with male relatives on equal
terms. If actually, itwas so no objection or criticism to Section 6 could be made. But is it so? The
answer is definite no. Because, the females partaking in heritage are dependants on the sweet will of
males since they can deprive them of their right to succeed by making a will. Therefore, they can be
denied their rights to succeed completely. Before the decision of the Supreme Court in
1 Simone de Beauvoir, “The Second Sex”, (1972 rep.1987).

38
Gurupad's1case, the words 'notional partition’ in the proviso to Section 6 were construed narrowly
which gave little to the female heirs of class-I of the Schedule. The interests of the Mitakshara
coparcener dying intestate required to be ascertained in the manner prescribed by explanation I to
Section 6. The explanation embodies a legal fiction and in order to give effect to it, two views were
possible. One view was that it is a rule of interpretation, well settled that in construing the scope of a
legal fiction it would be proper and even necessary assume to all those facts on which the legal fiction
can operate.2 This view finds its basis in the following observations of Lord Asquith:
[I]f you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited
from doing so, also imagine as real the consequences and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or accompanied it.3
The other view of interpretation of legal fiction is that it cannot be stretched off beyond the
purpose forwhich it was enacted.410 Thus, it has been stated:
[W]hen there is an heir of the nature specified in the proviso, the share of the deceased coparcener
has to be determined on the assumption and deemed fiction that a partition of the property has taken
place immediately before his death as the explanation points out that such legal fiction has to be given
effect to irrespective of the fact whether the deceased coparcener is entitled to claim partition or not. 5
The Supreme Court in A. Raghavamma v. A. Chenchamma6laid down that it would be a question
of fact to be determined in each case upon the evidence relating to the intention of the parties whether
there was a separation amongst the other coparceners or that they remained united. The burden is
certainly on the person who sets up partition to prove the said fact.
The Supreme Court reiterated the same view in Girijanandini Devi v. BijendraNarain.7Again, in
1975 the Bombay High Court in Shirambai v. KalgondaBhimgonda8held that females are entitled to
succeed to a share on the death of husband and father and under Section 4 the rule of partition must be
deemed to have been abrogated.9
The correctness of this decision was doubted in the case of Rangubai Lalji Patil v. Laxman Lalji
Patil.10It was held that as a result of the notional partition contemplated by the proviso to Section 6 of
the Hindu Succession Act, 1956 the shares of persons other than the deceased coparcener also become
fixed as if a partition had taken place during the lifetime of the deceased coparcener is correct.
Again, Rangubai's11case was considered by the Full Bench of the Bombay High Court in
Sushilabai v. Narayanrao.12After considering the opinions on the scope of the fiction in explanation I
of Section 6 of Hindu Succession Act, 1956, expressed by various High Courts and the opinion
expressed in Rangubai's13case on the question whether the scope of the fiction is as wide as was held
in Rangubai's14case, the Bombay High Court held:
[A]s we have pointed out in our judgment, it is not necessary for the purpose of this case to
express any opinion on this part of the legal fiction. The whole of our judgment is based upon the
assumption that the fiction should be carried to a narrow extent only with a view to implementing the
purpose for which it was introduced. Proceeding on that footing, having regard to the facts of this case
as there were only two coparceners and one of them died, then if any person other than the coparceners
is entitled to a share as a result of severance of the share of the deceased coparcener, the share of such
other person will become fixed. 15
1 Gurupad v. Hirabai AIR 1978 SC 1239.

2 Commr, of Income-Tax, Delhi v. Teja Singh AIR 1959 SC 352.
3 East End Dwelling Co. Ltd. v. Finsbury Borough Council 1952 AC 109.
4 This view is based upon decisions of the Supreme Court in State of Travancore Cochin v. Shanmugha Vilas Cashew Nut
Factory AIR 1953 SC 333, 343; Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955 SC 661, 680.
5 AIR 1975 Bom 257, 261.
6 AIR 1964 SC 136.
7 AIRI967 SC 1124.
8 AIR 1964 Born. 263.
9 AIR 1975 Bom 257, 264.
10 AIR 1966 Bom 169.
11 AIR 1966 Bom 169.
12 AIR 1975 Bom 257.
13 AIR 1966 Bom 169.
14 AIR 1966 Bom 169.
15 AIR 1975 Bom 257, 269-70.
39
The question of the family of the deceased coparcener whose coparcenary interest devolves on his
widow after working out a notional partition remaining undivided or partitioned has been debated. The
Supreme Court in State of Maharashtra v. Narayan Rao1caseexamined this question in the light of
Gurupad's,2 case and held:
[A] legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes
for which it is enacted but it cannot be carries beyond that. It is no doubt there that the right of a
female heir to the interest inherited by her in the family property gets fixed on the date of the death of
a male member under Section 6 of the Act but she cannot be treated as having ceased to be a member
of the family without her volition as otherwise it will lead to strange results which could not have been
in the contemplation of Parliament when it enacted that provision. 3
Enlargement of Hindu Female’s Proprietary Right under the Hindu Succession Act 1956
The problem of proprietary right of Hindu female has been occupying the attention of Hindu law
jurists since ancient times. The writers of Smritis were divided as to the nature and extent of female's
right to property. However, the ancient writers have recognised the existence of woman's property,
technically known as stridhan. But, there was no agreement as to the nature of rights of a woman over
the property because several writers of ancient India spoke of limitation on the right of a woman over
the property she owned. It was only Vijnaneswarain the twelfth century who recognised in clear terms
the absolute right of woman over property irrespective of the fact whether it was (i) movable or
immovable or (ii) obtained by gift, purchase or inheritance, etc. Section 14 of Hindu Succession Act,
1956 after a gap of eight centuries again accords a similar right to Hindu females as were advocated by
Vijnaneswara.4 It shows the strength, merit and richness in ideas of Hindu jurisprudence, which are so
relevant in the modern era where a female is subjected to various infirmities and incapacities.
Section 14 (1) has in the beginning remained very controversial as to its interpretation. The
problems in its interpretation arose mainly as to its operation whether the Act was retrospective or it
was prospective or if retrospective the extent to which it was so. It has been coming up before the
Supreme Court for interpretation as to its scope and ambit. The word "possessed" in sub-section (1) of
Section 14 of the Act created two different approaches to the interpretation of this Section.
(1)Total retrospective
One view, taken by the Patna5 and Allahabad6 High Courts was that the property acquired and
"possessed" before the commencement of this Act as limited property will become her absolute
property though the property which she "possessed" sometime in the past and later on alienated would
amount to become her absolute property retrospectively with the result that the reversioners of her
husband would not be entitled to question the alienation after the commencement of the Hindu
Succession Act, 1956 which would result in obliterating the reversioners from the Statutes Book. This
view was to regard Section 14 in total retrospectivity.
This interpretation resulted in giving benefit to the transferee who took from the limited owner.
The benefit which was accrued to a Hindu female ultimately went to the alienees from the limited
owner, the Hindu female.
(2)Partial retrospective
The other view, taken by the High Courts of Andhra Pradesh, 7 Madras,8 Calcutta,9 Bombay, 10
Madhya Pradesh, 11 Punjab,12 Orissa,13 Kerala,14 Gujarat,1 and Mysore2 was that the Section does not
1 (1985) ASC 716.

3 (1985) ASC 716, 721.
4 Mitakshara, Ch. 2. S. II. paras 2-4. See also Subramaniam v. Arunachelam (1905) I LR 28 Mad 17; Salemma v. Lutchmanal
(1898) I L R 21 Mad 100 at 103-105.
5 R.A. Missir v. Raghunath AIR 1957 Pat 480.
6 Hanuman Prasad v. Indrawati AIR 1958 Ass 304.
7 Venkayamma v. Veerayya AIR 1957 AP 280.
8 Marudakkal v. Arumugha AIR 1958 Mad 255.
9 Gostha Behari v. Haridas AIR 1957 Cat. 557.
10 Ramchandra v. Sukharam AIR 1958 Bom 244.
11 Lukai v. Niranjan AIR 1958 MP 160 (FB).
12 Amar Singh v. Sewa Ram AIR 1960 Punj 530.
13 Sansir Patel v. Satyabati Naikani AIR 1958 Ori. 75.
14 Chandrasekhar v. Sivaramakrishna AIR 1958 Ker. 142.
40
purport to enlarge an estate determined before commencement of the Act. It means that a property
which was "possessed" by a Hindu female as limited estate if alienated before the commencement of
the Hindu Succession Act, 1956 to this property, as it is not possessed by a Hindu female her rights
would not be enlarged as to this property since the property has already been determined, hence the
reversioners are entitled to challenge the alienation if made without legal necessity, otherwise the
benefit of the Section will go to the alienees.
(3) Judicial controversy resolved by Supreme Court
This controversy was set at rest, finally, in Kotturuswami v. Veeravva 3in which the essential
question for consideration before the Supreme Court was as to how the words "any property possessed
by a female Hindu, whether acquired before or after the commencement of this Act" in Section 14 of
the Act should be interpreted. Section 14 refers to property which had been acquired either before or
after the commencement of the Act and also that such property should be possessed by a female
Hindu. Reference to property acquired before the commencement of the Act certainly made the
provisions of the Section retrospective, "but even in such a case the property must be possessed by a
female Hindu at the time the Act came into force in order to make the provisions of the Section
applicable".4
The Supreme Court approved the opinion of P.N. Mookherjee J. in Behari v. HaridasSamanta5as
to the meaning of the word any property "possessed" by a female Hindu. As the opening words
"property possessed by a female Hindu” obviously meant that to come within the purview of the
Section it must be in possession of the female concerned at the date of commencement of the Act,
clearly they contemplated the female's possession when it came into force. Such possession might
have been either actual or constructive or in any form recognised by law. 6 The Supreme Court finally
held that in its opinion, the view expressed above was the correct view as to how the words "any
property possessed by a female Hindu" should be interpreted. 7
Ambit of Section 14 of the Hindu Succession Act 1956
The interpretation of the word "possessed" which had raised a controversy as to its operative
aspects having been settled in the Kotturuswami’s8case, the other aspect of Section 14 was called for
analysis as to its ambit and its applicability in diverse situations. The beneficial interpretation given to
the provisions of Section 14 by the Supreme Court of its vitality and force was because in Mahesh
Chand Sharma v. Raj Kumari Sharma9the court had gone even to the extent of granting the benefit of
these provisions to a Hindu female and allowed her to raise a question in appeal which is not referred
to at the lower stage.10
Applicability of Section 14 as to Nature of Property
Section 14 has application to all kinds of property whether movable or immovable and the right
of the Hindu female to the property which she acquired as a limited estate before the commencement
of this Act are enlarged. It is immaterial whether acquisition was through inheritance, devise, gift,
partition, in lieu of maintenance or its arrears.
The question of (i) enlargement of absolute right in the property given to a widow in lieu of her
maintenance, and (ii)the instrument by which it was recorded that she would hold the property as
limited owner, came up before the Supreme Court in V. Tulasamma v. SeshaReddi11where it was
debated whether sub-section (1) or sub-section (2) of Section 14 would apply. The Court considered
the conflicting opinions of different High Courts and examined as many as forty three decision of
various High Courts and the Supreme Court itself and after consideration of these decisions observed
that when a specific property was allotted to the widow in lieu of her claim for maintenance, the
1 Kamala v. Ochhavalal AIR 1965 Guj. 84.

2 Damodar Rao v. Bhima Rao AIR 1965 Mys. 290.
3 AIR 1959 SC 577.
4 AIR 1959 SC 577, 581.
5 AIR 1957 Cal. 557.
6 AIR 1957 Cal. 557, 559.
7 AIR 1959 SC 577, 582.
8 AIR 1959 SC 577.
9 AIR 1996 SC 869.
10 AIR 1996 SC 869, 881.
11 AIR 1977 SC 1944.
41
allotment would be in satisfaction of her jus ad rem, i.e., the right to be maintained out of joint family
property. 1 It would not be a grant for the first time without any pre-existing right in the widow. Also,
where property was allotted to a widow under an instrument decree, order or award which prescribed a
restricted estate for her in the property, 2 sub-section (2) of Section 14 would not be applicable. 3
Thus, the Tulasamma4case decided that sub-section (1) of Section 14 is attracted here the right in
the property is created not for the first time. On this principle sub-section (1) of Section 14 has
application to a case where the life estate is given to the wife and daughter-in-law to provide them
maintenance.
An interesting question arose in V.V Subba Rao v. C.S. Ranganayakamma.5In this case the
property which the Hindu female hold as a life estate formed part of the property which fell under the
Land Reform Laws and excluded the jurisdiction of civil courts. The Supreme Court reversed the
judgment of the High Court of Andhra Pradesh, where sub-section (1) of Section 14 had been applied
to the property held by the Hindu female and enlarged her life interest and limited estate into absolute
property. On appeal the Supreme Court held the view of the High Court as not correct and observed
that the civil court could not unsettle the pattawhich had become final in the decree now passed
pursuant to the declaration. 6
The enlargement of the limited estate of a Hindu female into absolute estate is applicable only in
those cases where the limited estate was held by a Hindu female with reference to her pre-existing
right; and sub-section (1) of Section 14 will be applicable.
But sub-section (2) of Section 14 will be attracted where 1imited interest to the Hindu female is
given without any reference to her pre-existing right namely where a husband bequeaths property to
his wife under a will and gives her limited interest in the property. Sub-section (2) of Section 14 will
apply because although the husband has a duty to maintain his wife yet this right is a personal right.
Likewise where a daughter under the customary law of Punjab has no pre-existing right in the property
of her father, a gift or devise to the daughter with limited interest will attract sub-section (2) of Section
14 of the Act.
Analysis of Proprietary Right of Hindu Female
An evaluation of the provisions of Sections 6 and 14 of the Hindu Succession Act, 1956 intended
to confer proprietary benefit on Hindu females are neither effective nor qualitatively beneficial to the
Hindu females. The existence of provisions permitting a coparcener to bequeath his coparcenary
interest is to nullify the provisions of Section 6 which allow the Hindu female to succeed to the
interest of the deceased coparcener of the Mitakshara family. Therefore, so long the limitation on the
power to bequeath his interest by a coparcener is not imposed Section 6 will have no viable impact on
the proprietary status of Hindu females.
In the modern era when a hue and cry is made every day to ameliorate the proprietary status of
females in general and Hindu female in particular the purpose would not be solved unless specific
provisions in the personal law of Hindus are made that the males required to ensure some interest in
their property to their daughters and wives, which they would not be entitled to give away to anyone
by will. In Muslim law the provision that a Muslim cannot bequeath more than one third property by
will, may serve as a guide.
Section 14 has undoubtedly contributed to the proprietary status of the Hindu female but it served
only a limited purpose. When a woman will not be entitled to inherit any property, there would not be
any property into which her right would become absolute. In fact, the property which a Hindu female
acquires through inheritance is in most cases a friction of movable property. In some states specially,
Uttar Pradesh, the daughter is excluded from inheriting the agricultural property of her father. Are the
champions of female's rights to property really not aware of this fact?
In the light of the provision of the Constitution what is necessary and what can actually
lendluster, prestige, confidence and security to the females, is to prevent the making of discrimination
1 AIR 1977 SC 1944, 1945.

2 Nirmal Chand v. Vidya Wanti AIR 1969 SC 1118.
3 AIR 1977 SC 1944, 1951.
4 AIR 1977 SC 1944.
5 AIR 1997 SC 3082.
6 AIR 1997 SC 3082, 3086.
42
between a male and a female at the time of divorce. When a divorce takes place why a female should
be made to move out of the home? Why not the male? Therefore, in the personal laws a provision
should be made that all properties of the family will be the joint property of the husband and the wife
and all earnings made by any partner of the marriage will be their joint property because the home
cannot be a home worth the name without a contribution by both the parties. Therefore, if equal
proprietary interest in the matrimonial property is jointly held by both partners of the marriage a
female will have an equal economic security and social status. This provision will also act as a
deterrent to the recurring practice of divorce. It will contribute to social solidarity and the male
predominance in the society will vanish. Further the interpretation by the Supreme Court in
Gurupad1case as regards the notional partition in the proviso to Section 6 of the Hindu Succession
Act, 1956 to ascertain the interest of the deceased coparcener has largely contributed to strengthen the
proprietary status of the Hindu female by providing equality in the shares of sons and the
widow/mother. It is an example of the judicial law.
----------------------

43
BASIS AND NATURE OF PIOUS OBLIGATION OF SON TO PAY FATHER’S DEBT
VIS-À-VIS STATUTORY MODIFICATIONS IN HINDU LAW
Vijender Kumar
Introduction
Moral and legal obligations have common origin but the technology of their enforcement differs.
Twentieth century jurisprudence concerned itself with legal obligations only. Because, generally, all
legal obligations have their origin in moral obligations since, law has been defined as “minimum
morality”. When an act affects the interests, rights and obligations of persons other than that of the
doers the basis for law making, i.e., placing restrictions on the acts of persons whose acts affect other’s
interests, is justified. It is the duty of the state to prevent harm to third persons by the acts of others.
The justification for making law is prevention of harm to others.
The liberty of the person to act as one’s wishes is protected so long as it is not harmful to others.
The approach of the ancient Indian thinkers as to the concept of liberty was different. They will not
permit an individual to do as one pleases, if his action is injurious to his own interest only and the third
party is not affected. The ancient Indian codes embody norms prescribing conduct for individuals, and
these norms have a priori basis, for example, if a person does not perform prescribed daily duties he is
punished in the next world and incurs sin. It is this type of belief which is at the root of the doctrine of
pious obligation of the son to pay the debt of his father.
Bases of Pious Obligation in Ancient Indian Literature
Ancient Indian legal literature is unique in its approach as to the authority of morals which was
recognised even by the judiciary during the British Indian period, when precedence to moral
obligations was given over legal rights. Pious obligation of the son is one such moral obligation where
precedence to moral obligation was given over legal rights. A perusal of Vedic literature, the most
ancient written record, makes one feel astonished as to how conscientious and serious thought has
been given to the concept of debt and its payment. “The idea of the liability to pay off one’s debts was
developed in India in the most ancient times”. 1 It has been said, “let us drive away the evil effects of
bad dreams as we pay off debts”.2 The evolution and development of the concept of runa and the
importance attached to its paying back is the basis of the modern doctrine of pious obligation of the
son to pay the debt of his father; P. V. Kane observes :
It appears to me that this theory of spiritual debts being already in the air, the same sanctity came
gradually to be transferred to one’s promises to repay monetary debts and carry out other secular
engagements. The word runa had been applied both to spiritual and secular debts. It is on account of
this that the son was not only desired for repaying the spiritual debt owed to one’s ancestors, but he
was also expected to free his father (if the father could not himself repay the monetary debt) from the
liability he incurred to his creditor.3
P.V. Kane’s view is perfectly in consonance with the philosophy of ancient Indian law codes,
popularly known as Dharmasastras.4 The ancient Indian literature is full of evidence of the importance
given to the discharge of liability to pay off debt from ancient times. According to ancient Indian
thought one is born indebted; and is under an obligation to discharge the liability. 5
 Original research paper was published in the Journal of Indian Law Institute, New Delhi at 36 (1994) JILI339-355.
 Professor of Law, Commonwealth Fellow & Head, Centre for Family Law, NALSAR University of Law, Justice City,
Shameerpet, Hyderabad- 500 078.
1 P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2nded. 1972, p. 414.
2 Rg. VIII, 47, 17; vide P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2nded. 1972.
3 P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2nd ed. 1972, p. 416.
4 Narada IV, 5, 9; Katyayana, 551, VI, IX; Manu, 35, 37; Vasishtha, 17.5; Vishnu Dharmasastra, 15, 46.
5 From very ancient times one of the articles of faith was that a man was born with debts that he owed three debts to Sages,
Gods, and Pitras and that by brahmacharya (studenthood), by performing yajnas and by procreating sons he freed himself
from those three debts respectively. Vide. VI Tai. S., 3 10.5; Sat. Br., 1.7.2.11; Att. Br., 33.1. The last very succinctly states
the purposes served by a son, viz., payment of the debt to ancestors, the securing of immortality and heaven, Rigveda, 4, 10
(Prajabhiragne amrtatvam-asyam) prays (‘may I obtain immortality through progeny’, Vas. Dh. S., 17, 1, 4 quotes these
passages of the Tai. S.; Ait. Br.; and Rg. The X Rg. 85, 45, invokes the blessing of ten sons on the newly married bride and the
Rg. is full of the yearning for a son at every step, vide Rigveda, 1, 91, 20, 1, 92, 13. III. 1, 23 and C. Jaimini (VI.2.31)
discusses the passage of Tai, and arrives at the conclusion that the duties laid down in it are obligatory and not left to choice
44
Liability of Son to pay father’s Debt according to Dharmasastras
First of all, it would be proper to examine the texts occurring in the code of Manu dealing with
the son’s pious obligation. Manu states that when a son has paid the three debts, let him apply his
mind to (the attainment of) final liberation; he who seeks it without having paid (his debts) sinks
downwards.1 Having studied the Vedas in accordance with the rules, having begotten sons according
to the sacred law, and having offered sacrifices according to his ability, he may direct his mind to (the
attainment of) final liberation.2 A twice-born man, who seeks final liberation, without having studied
the Vedas, without having begotten sons, and without having offered sacrifices, sinks downwards. 3
Because a son delivers (trayate) his father from the hell called put, he was therefore called put-tra (a
deliverer from put) by the self-existent (svayambhu) himself.4 Between a son’s son and the son of a
daughter there exists in this world no difference, for even the son of a daughter saves him (who has no
sons) in the next world, like the son’s son. 5
These texts state that the son was desired not for the sake of spiritual reasons alone but one of the
most important reasons was the desire of the father to secure guarantee through the birth of a son for
the discharge of his secular liability also, most important of the liabilities being the liability to pay off
one’s debt. The non-payment of debt not only affected the next life of the debtor but it also made the
life of the debtor miserable in this world itself. A very detailed account of the liability of the son to
pay off his father’s debt has been given by Narada.
Which debts must be paid, which other debts must not be paid; by whom, and in what form (they
must be paid); and the rules of gift and receipt, (all that) is comprised under the title of “recovery of a
debt”. The father being dead, it is incumbent on the sons to pay his debt, each according to his share
(of the inheritance), in case they are divided in interest. Or, if they are not divided in interests, the debt
must be discharged by that son who becomes manager of the family estate. If a debt has been
legitimately inherited by the sons, and left unpaid by them, such debt of the grandfather must be
discharged by his grandsons. The liability for it does not include the fourth in descent. Father’s wish to
have sons on their own account, thinking in their minds, that “he will release me from all obligations
towards superior and inferior beings”. 6
As regards the liability of the ancestors Naradastates:
Three deceased (ancestors) must be worshipped; three must be reverenced before the rest. These
three ancestors of a man may claim the discharge of their twofold debt from the fourth in descent. 7
On this text Jolly refers to litigation from Ashaya’s commentary on the Naradasmriti which
throws light on the nature of the liability of the son, grandson, and great-grandson to pay the debt of
their ancestors. He observes:
Three deceased ancestors, i.e., the father, grand-father, and the great-grandfather, may claim the
discharge of their terrestrial and celestial liabilities from the fourth in descent. This rule is illustrated
by the history of an action which was brought before a court in Patna. A merchant of the Brahman
caste, by the name of Sridhara, had lent the whole of his wealth, consisting of 10,000 drammas
(drachmas), which he had gained through great labour, to a trader, by the name of Devadhara, on
condition that interest amounting to two per cent, per mensem of the principal stock should be paid to
him. The interest was duly paid to Sridhara at the end of the first month. In the second month,
however, Devadhara met his death through an accident. His son died of an attack of choleral.
Devadhara’s great-grandson alone was left. His name was Mahidhara. As he was addicted to licentious
courses, the management of the estate was undertaken by his sons, and maternal uncles. They got into
the hands of a cunning Brahman called Smartadurdhara, who advised them not to pay a single rupee to
Sridhara, as he was able to prove from the law-books that he had no claim to the money. The uncles of
and Sabara adds another explanation that these duties are obligatory on all dvijatis and the word ‘brahmana’ is used in Tai. S.,
as illustrative only. Vide P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2nded. 1972, pp. 560-561.
1 Manu, VI, SBE, vol. 25, p. 35.
2 Ibid, p. 36.
3 Id., p. 37.
4 Manu, IX, SBE, vol. 25, p. 138.
5 Ibid, p. 139.
6 Narada, 1, 2, 4, 5, SBE, vol. 33, pp. 41-42
7 Ibid, pp. 43-44.
45
Mahidhara, much pleased with this piece of advice, promised to give 1,000 drammas to the Brahman
if they need not pay the money to Sridhara. Thus, when at the close of the second month, the uncles
and guardians of Devadhara’s great-grandson, Mahidhara were asked by Sridhara to pay 200
drammas, being the amount of interest due on the sum lent to Devadhara, they refused payment. They
said: ‘we do not owe you the principal, much less any amount of interest. The Brahman
Smartadurdhara has pointed out to us that the obligation to pay stops with the fourth in descent’.
Sridhara was struck dumb with grief and terror on hearing this announcement made to him. When he
had regained his senses, he repaired to the court of justice, attended by his family, friends, and
servants, and impeached Mahidhara, together with his uncles, for their dishonesty. Both parties took
sureties. The uncles of Mahidhara engaged Smartadurdhara to plead for them. After pretending his
clients to be connected with his family by a friendship of long standing, he went on to refer to a text of
Narada as proving that the obligation to pay the debts of ancestors stops with the fourth in descent. All
his arguments, however, were refuted, and held out to derision by a learned Brahman, by the name of
Smartasekhara, who, at the end of his address, charged him openly with having taken a bribe from his
clients. The consequence was that Mahidhara and his uncles lost their cause. 1
This case is quoted in full, because it presents a vivid picture of the way in which actual judicial
proceedings used to be transacted in ancient India before the advent of the Muslim and the British
influence. The case of Sridhar v.Mahidhar2 illustrates that the obligation of the son was an
independent obligation based on religious texts. It was actually acted upon irrespective of the fact
whether the son acquired the property of the father or not. The obligation was independent of receipt
of property.
Narada states the consequences for non-payment of debt. The liability does not die with the death
of the debtor; therefore, the son has to pay the debt. If a man fails to pay on demand what had been
borrowed or promised by him, that sum (together with the interest) goes on growing till it amounts to a
hundred crores (one milliard).3 A hundred crores having been completed, he is born again, in every
successive existence, in his (creditor’s) house as his slave, in order to repay the debt (by his labour). 4
Brihaspati says that the father’s debt must be paid first of all, and after that, a man’s own debt; but
a debt contracted by the paternal grandfather must always be paid before these two even. 5 The father’s
debt, on being proved, must be paid (by his son’s sons) without interest; but the son of a grandson
need not pay it at all.6
We find that Brihaspati has made a distinction in the liabilities of son, and grandson, and has
absolved the great grandson from the liability to pay the debt of his great grandfather. The views of
Brihaspati are not in conformity with the texts of Narada and Manu, who are of the opinion that debts
of three ancestors are to be paid, three ancestors are to be worshiped and the consequential liabilities
of the three ancestors must be discharged. It is the considered opinion of the ancient Indian jurists that
the liability of son arises from religious injunctions, the non-fulfillment of which is also a sin. From
this theory it follows that the son is not liable to pay off the debt of his father if the nature of debt is
irreligious.
According to Katyayana a debt contracted by the grandfather which is known to the father and is
not paid by him the grandson’s liability is to the extent of paying the principal only without interest. 7
He further says that a debt incurred by the father should be cleared at the time of partition and Narada
says that the son should try his best to absolve his father from debt. 8 Brihaspati says that a loan shall
be restored on demand, if no time has been fixed (for its restoration); or on the expiration of the time
1 Narada, 1, 2, 4, 5, SBE vol. 33, pp. 43-44.

2 Ibid.
3 Narada, 7, p. 44.
4 Narada, 8, p. 44.
5 Brihaspati, XI, 48, SBE, vol. 33.
6 Brihaspati, XI, 49, SBE, vol. 33, pp. 328-329.
7 If a debt that had been contracted by the grandfather and was known to the father as valid and as not discharged by the sons of
the original debtor, it should be paid without interest by the grandsons-(Katyayana in Smrtichandrika, 397), and Apararka.
651. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 208.
8 Narada quoted in Vivadaratnakara, p. 54. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1sted. 1930, p. 203.
46
(if a definite period has been fixed); or when interest ceases (on becoming equal to the principal). If
the father is no longer alive, the debt must be paid by his sons. 1
Yajnavalkya says that if the father is dead or gone abroad or smitten with trouble, his debt should
be paid by his sons and grandsons; if on denial, it is proved by witnesses. 2
Commenting on this text Mitakshara says that the sons and grandsons have to pay even though
they may not have inherited any property from the father. The order of the liability is that in the
absence of the father, the son has to pay, and in the absence of the son, the grandson has to pay. 3 So far
the liability of the sons to pay the debt of his father during the lifetime of the father is concerned the
Hindu jurists have imposed a duty on the son to pay the debt of the father even during his lifetime if
the father has become unable to pay the debt because of his old age and disease. 4
There are texts which make the son and the grandson liable to pay the debt of their father and
grandfather irrespective of the fact whether they have acquired the property from them or not; their
duty is of religious nature. The duty to pay the debt was independent of receipt of any property,
grandson’s liability according to some writers is only to pay the principal amount on their attaining the
majority. 5
The original texts contained in the legal literature right from the time of Rigveda down to the
Dharmasastraperiod in unequivocal terms declare the liability of the son to pay the debt of his father.
This liability extends to the grandson and is not dependent on the fact whether the father or the
grandfather has left property or not. The consequences for non-payment of debt are not only temporal
but the indebtedness of a debtor follows him in the next life according to the Hindu jurists. There are
innumerable texts to this effect. Brihaspati says that “he who, having received a sum lent or the like,
does not repay it to the owner, will be born hereafter in his creditor’s house, a slave, a servant, a
woman, or a quadruped”.6 And Narada says that “when a devotee, or a man who maintained a
sacrificial fire, dies without having discharged his debt, the whole merit of his devotions, or of his
perpetual fire belongs to his creditors”. The duty of relieving the debtor from these evil consequences
falls on his male descendants, to the second generation, and was originally quite independent of the
receipt of assets.7
According to Indian legal literature the son is desired because of the reasons that he would pay
the debts spiritual and worldly of his father. Because of the reasons that the pious obligation of the son
is based on the authority of the religion, therefore, as a logical corollary it follows that the son is not to
pay the debt of his father which are irreligious in character, the reasons for this are: First, there are
religious authorities absolving the son from the liability to pay debts of the father which are irreligious
in nature in the same way as there are religious authorities which impose liability on sons to pay off
the debt of their fathers. Second, to make the son liable to pay irreligious debt would amount to the
contribution and augmentation of irreligious acts of the father.
Debts Son Not Liable to Pay
Manu enumerates certain types of the debts which a son is not liable to pay. They are:
1 Brihaspati, XI, 47, SBE, vol. 33, p. 328.

2 Yajnavalkaya, 2, 50. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1sted. 1930, p. 209.
3 G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1sted. 1930, p. 204.
4 Even when the father is alive if he is stricken by disease, or has gone away from the country, his sons shall pay his debt after
twenty years. (Katyayana in Smrtichandra, 394).
5 If, on repudiation, it has been proved by witnesses and other proofs, the debt shall be paid by the sons and grandsons (Yajna
2.50).
The grandsons shall pay the grandfather’s debts only after attaining their majority, (Smrtichandrika, 398). If he who
contracted the debt should die or become a renunciate, or remain abroad for twenty years, that debt shall be discharged by hi s
sons and grandsons; but not by remoter descendants; against their will, (Visnu 6.27-28) (quoted in Smrtichandrika, 398); G.N.
Jha, HINDU LAW IN ITS SOURCES, vol. I, 1sted. 1930, p. 209.
6 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10thed. 1938, p. 395; dig. I. 228.
The text is not found in Brihaspati, SBE, vol. 33. Nilakantha attributes the text to Katyayana in Vyav. Mayakha, V, IV, II
Narada, SBE, vol. 33, 1.7.8 p. 44 says. If a man fails to pay on demand what had been borrowed or promised by him, that sum
(together with the interest) goes on growing till it amounts to a hundred krores (one milliard). A hundred krores having been
completed, he is born again, in every successive existence, in his (creditor’s) house as his slave, in order to repay the deb t (by
his labour).
7 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10thed. 1938, pp. 395-396.
47
The man who becomes a surety in this (world) for the appearance of a (debtor) and produces him
not, shall pay the debt out of his own property. 1 But money due by a surety, or idly promised, or lost at
play, or due for spirituous liquor, or what remains unpaid of a fine and a tax or duty, the son (of the
part owing it) shall not be obliged to pay. 2 The just mentioned rule shall apply to the case of a surety
for appearance (only); if a surety for payment should die the (judge) may compel even his heirs to
discharge the debt.3 On what account then is it that after the death of a surety other than for payment,
whose affairs are fully known, the creditor may (in some cases) afterwards demand the debt (of the
heirs).4 (If the surety had received money (from him for whom he stood bail) and had money enough
(to pay), then (the heir of him) who received it; shall pay (the debt) out of his property; that is the
settled rule. 5 A contract made by a person intoxicated, or insane, or grievously disordered (by disease
and so forth), or wholly dependent, by an infant or very aged man, or by an unauthorised (party) is
invalid. 6 That agreement which has been made contrary to the law or to the settled usage (of the
virtuous) can have no legal force, though it be established (by proofs). 7 There are texts of Gautama
who also absolves the sons to pay certain debts contracted by the father. The sons shall not be made to
pay surety money, trade duties, debts due to gambling or drinking or fines. 8 Brihaspati says, debts due
to liquor, gambling, futile gifts, gifts promised in love or anger, surety, money balance of fines and
taxes, these debts of the father the son shall not be made to pay. 9
“Gifts promised in love” and “taxes” have been commented differently by Apararka, Haradatta
and Balambhatti.10 There are certain types of gifts which a son is not liable to pay. Fine or balance of
fine, tax or balance of tax, or what is not proper, such debts of the father, the son shall not pay. 11
John D. Mayne has enumerated from these taxes certain categories of debts which a son is not
required to pay.12 Debts which are not to be paid by sons and grandsons according to Dharmasastra
are termed avyavaharikadebt. Vyas and Usanas have used the term avyavaharika. The term
avyavaharika has been used to devote the debts similar in nature to debts which a son is expressly
absolved from paying. Various scholars have understood the term avyavaharikadifferently. According
to Colebrooke the term means “any debt for a cause repugnant to good morals”. 13 Jagannatha
1 Manu, VIII, 158, SBE, vol. 25, p. 282.

8 Gautama, 12, 41, quoted in Vivadartnakara, 58.
9 Brihaspati, XI, 51; also Yajna 2, 47, where however “anger” has been omitted.
10 Gifts promised in love, i.e., in adulterous love-making, ‘gifts promised in anger’ in a fit of anger a man damages the property
of another person, and then in order to placate him, promises a present, this is what is meant-(Apararka, 649). ‘Shukla’ has
been explained by Haradatta on Gautama as ‘bride-price’, Balambhatti explains it as ‘taxes’; vide G.N. Jha, HINDU LAW IN
ITS SOURCES, vol. I, 1sted. 1930.
11 Vyasa in Vivadaratnakara, 58, but Ushanas in Apararka, 648 and in Mitakshara, 47. That is not proper. This is the meaning of
‘na viyavaharikam’, as explained by, Apararka: Smrtichandraka and Viramitrodaya explain it as ‘due to wine’: Balambhatti as
‘what was not used for the family; Vivadachinitamani as ‘what is not admissible under normal conditions, or ‘what is not
admissible in law’. P. V. Kane remarks that the Bombay High Court (ILR 32 Bom 348) has accepted the meaning to be a debt
which no decent or responsible man would incur’: Allahabad (33 All 472). Madras (37 Mad 48) and Calcutta High Courts (39
Cal 862) have dissented from the above: Calcutta High Court explaining it as ‘what is not lawful, usual or customary or which
is for a cause repugnant to good morals’: vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I,1sted. 1930.
12 (i) debts due for spirituous liquor;
(ii) debts due for lust;
(iii) debts due for gambling;
(iv) unpaid fines;
(v) unpaid tolls;
(vi) debts due for anything idly promised or promises without consideration or anything promised under the influence or wrath;
(vii) suretyship debts due as surety for appearance, or for confidence or honesty of another: (viii) commercial debts; and
(ix) debts that are not “vyavaharika”; videS. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND
USAGE, 10thed. 1938.
13 Dig., I, 211; vide S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10thed. 1938, p.
398.
48
understands it in the sense of unlawful, unusual and not customary, since the word vyavaharikameans
‘lawful, usual or customary’. 1
The expression in the text of Vyasa (navyavaharikam) is explained by Misra, as “excluded from
usual causes”. Consequently the debt which is contracted for some civil purpose consistent with the
prescriptive usage of good men must be paid by sons and the rest; but if it be the reverse, it need not
be discharged.2 The interpretation of the term vyavaharikaby V.N. Mandlik and Jogendranath
Bhattacharya as ‘proper’ is in accordance with the opinion of Apararka and there is no material
difference between the three renderings. The last category of avyavaharikadebts is not an independent
category but only a residuary one comprising debts which are ejusdem generis with those that have
been enumerated.3
John D. Mayne says :
The term commonly used in decisions and text books to describe those debts of the father for
which the son is not liable is “illegal or immoral”. The expression was doubtless originally meant to
render ‘avyavaharika’but it has come to be used as a compendious term to cover all the cases
enumerated in the Smrities. 4
When Gautama says :
Pratibhavyavaniksulkamadyadyutadandanaputranadhyabhaveuh.5
He does not refer to debts which are incurred in due course of business. He refers to such debts.
(i) which are speculative and hazardous ventures; and (ii) the son is not liable to pay because he
recognises trading as an occupation of Vaisya community. 6 Such debts incurred for ordinary trade
activities cannot be placed in the category of debts which a son will not be liable to pay.
Son’s Liability : Judicial Approach
Immoral, illegal and avyavaharika debts fall in the category of debts which are not payable by the
son under the pious obligations doctrine. Avyavaharikadebts do not form a separate category of debts
from those known as immoral or illegal debts, they comprise only residuary ones which are ejusdem
generis with illegal and immoral debts. MahabirPrasadv. Basdeo Singh,7 is a case in which the
question of avyavaharikadebt arose before the court. The facts of the case were that a decree was
made against a Hindu, governed by Mitakshara, for money which he had criminally misappropriated.
The transferee by sale of the decree brought to sale in execution thereof the judgment debtor’s right of
occupancy in certain land as a tenant at fixed rates. The judgment debtor’s two sons brought a suit
against the purchaser to recover two third of the holdings.
It was held that the right of occupancy at fixed rates in such land was ancestral property, that is,
property in which under Hindu law the sons took vested interest by birth. There was no doubt that the
debt for which the decree was obtained was one not binding on the sons, the decree being obtained for
money which Laljit had embezzled. The respondent was not entitled to be protected as a purchaser at
an execution-sale without notice, on the principle laid down by the Privy Council in
GirdhareeLallv.Kantoo Lal,8and Suraj BunsiKoerv. Sheo Prasad Singh.9 The decree was a mere
money-decree against the father of the plaintiffs personally, and the family property was not liable to
be taken in execution of the decree, and the respondent was to satisfy himself on these points by
examining the decree. This point was elaborated in Suraj BunsiKoer’scase.10
The other important case is Durbarv.Khachar,11 in which the plaintiff obtained a decree against
the defendant’s father for damage to the plaintiff’s property caused by a dam erected by the latter
which obstructed the passage of water thereto. On the latter’s death the decree was sought to be
1 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10thed. 1938, p. 398.
2 Supra n. 1, pp. 398-399.
3 Supra n. 1, p. 399.
4 Supra n. 1, p. 399.
5 Gautama, 12, 41; G.N. Jha, HINDU LAW IN ITS SOURCES, Vol. I, 1sted. 1930, p. 207.
6 Gautama, 10, 49; G.N. Jha, HINDU LAW IN ITS SOURCES, Vol. I, 1sted. 1930, p. 207.
7 (1884) ILR 6 All 234
8 (1874) 1 IA 321.
9 (1879) 6 IA 88.
10 Ibid.
11 (1908) 32 Bom 348.
49
enforced against his son with respect to the ancestral estate in the hands of the son. The court referred
to the text of Usanas which reads :
A fine, or the balance of a fine, likewise a bribe or a toll or the balance of it, are not to be paid by
the son, neither shall he discharge improper debts.1
The court observed that applying these maxims to the case before us, we must conclude that the
son is not liable under the decree. His father’s act in obstructing the passage of water to the decree
holder’s lands may not have been illegal in the usual sense of the term that is to say, it may not have
been committed in contravention of any express provision of the law; but the result of the suit shows
that it was wrongful, and for a liability so incurred the son cannot be held answerable when the estate
that has come to his hands has derived no benefit from the act.2
In ChhakauriMahtonv.Ganga Prasad,3 the Calcutta High Court examined the question of the
son’s pious liability in case of avyavaharikadebt, and observed that there has been a well marked
divergence of judicial opinion upon the question, how far a Hindu son is under a pious obligation to
discharge a debt of his father when such debt consists of money misappropriated by the latter.
MahabirPrasadv.Basdeo Singh,4ParemanDassv.BhattuMohton,5 and McDowellv.RagavaChetty6seem
to negative the liability of the son under such circumstances, while
7 8 9
Natasayyanv.Ponnusami, Kanemarv.Krishna, and ErasalaChettyv.Addepally Chetty, apparently
support his liability for such debts. These cases, however, may possibly be reconciled if we recognise
the distinction between a criminal offence and a breach of civil duty. In the first three cases, the father
was guilty of criminal misappropriation as regards sums of money for which he was accountable;
while in the second set of three cases, the father merely failed to account for the money received by
him, and his failure to do so constituted nothing more than a breach of civil duty. The distinction is
real though refined, and was recognised in MedaiTirumalayappaMudaliarv.Veerabadra.10
In this case it was ruled that if a debt was incurred by a person as an agent, his son was liable to
pay the debt and the liability of the son was not affected by the circumstance that the father
subsequently misappropriated the sum or made himself criminally liable. Consequently, the proper
position is that, where the taking of the money itself is not a criminal offence a subsequent
misappropriation by the father cannot absolve the son from his liability to satisfy the debt; but the
position is different if the money has been taken by the father and misappropriated under
circumstances which render the taking itself a criminal offence. 11
The other important case is ToshanpalSinghv.District Judge of Agra,12 where the father was a
secretary of a school committee. He was in charge of a fund deposited with a bank. He was authorised
to draw upon it only for specific purpose connected with the school. After his death the committee
sued his sons to recover from them out of property left to them by their father, or out of the property of
their joint Hindu family, an alleged deficiency in the fund. The deficiency amounted to Rs. 42,993/-
and according to the father’s own admission Rs. 30,016/-, of it was due to drawings by him for
purposes other than those authorised. Hence, the court held that the drawings in question were
criminal breaches of trust within Section 405 of the Indian Penal Code 1860 and that under Hindu law
the sons to that extent were not liable.
A perusal of the ancient texts which exempt the son to pay certain type of debts and the decisions
thereon indicate that the judiciary has gradually developed the law with great caution. While toll taxes
and sulka are mentioned among the categories of the taxes which a son is not liable to pay, the
judiciary had always been aware of the taxes which in the modern time are considered necessary and
1 Mitakshara, II, 48. Vide Bhattacharya, HINDU LAW, 2nded., p. 247.

2 Mitakshara, II, 48. Vide Bhattacharya, HINDU LAW, 2nded., pp. 348, 351-352.
3 (1912) ILR 39 Cal 802.
4 (1884) ILR 6 All 234.
5 (1897) ILR 24 Cal 672.
6 (1903) ILR 27 Mad 71.
7 (1893) ILR 16 Mad 99.
8 (1908) ILR 31 Mad 161.
9 (1908) ILR 31 Mad 472.
10 (1909) 19 Mad LT 759.
11 Ibid, pp. 871-872.
12 (1934) ILR 56 All 548.
50
legal, the arrears of which a son is liable to pay. The interpretation of the text containing the term
avyavaharika has been made by the Supreme Court in S.M. Jakativ.S.M. Borkar,1 in the modern
context. This term has been translated as being that which is not (i) lawful just; or (ii) what is not
admissible under the law; or (iii) normal conditions. 2Colebrooke translated it as “a debt for a cause
repugnant to good morals”. There is another track of decisions wherein it has been translated as
meaning “a debt which is not supported as valid by legal arguments.”
In Pannalal v. Mt. Naraini,3 the Supreme Court observed that there is no discrepancy of judicial
opinion as to the pious duty of Hindu sons, and approved the dictum of Suleman A.C.J. in
Bankeylalv.Durga Prasad.4 In ToshanpalSinghv.District Judge of Agra5 it was held that Hindu law
texts based the liability of the son on the pious obligation principle itself and not on the father’s power
to sell the son’s share.6
The Supreme Court attached great importance to the payment of debts which is regarded by
Dharmasastraas a very heinous sin if remained unpaid. 7 The pious obligation theory received the
approval of the Supreme Court in SidheshwarMukherjeev.Bhubneshwar Prasad Narain Singh.8 There
are quite a good number of judicial dicta regarding exemption from payment of immoral or illegal and
avyavaharikadebts. A son is not liable to pay such debts because the transactions have been of an
irreligious nature.
Antecedent Debt and Liability of Son’s Estate
The son’s liability to pay the antecedent debt of his father has been discussed by the Privy
Council in Brij Narainv.Mangal Prasad9 in which the facts were that on the 4th of March 1908, Sita
Ram granted a mortgage for Rs. 11,000 in favour of Raja Narain Brij Rai and Jagdish Narain Rai. The
mortgage was secured on ancestral and joint property of which Sita Ram was at that time manager, the
other members of the joint family being his two sons, minors. In 1912 the mortgagees brought a suit
on the mortgage and obtained a decree ex parte. In 1913 the present suit was raised by the mother on
behalf of her two minor sons (the elder has since become major) to have it declared that the mortgage
was not binding on them and that the decree granted was, so far as they were concerned, null and void.
The mortgage in suit bears to have been executed in order to pay off two prior mortgages on the
same property of date 12 December 1905, and 19 June 1907, respectively.10
The Privy Council examined the long line of cases and laid down the following propositions of
law on the basis of the existing authorities :
(i) The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua
manager except for purposes of necessity.
(ii) If he is the father and the reversionaries are the sons he may, be incurring debt, so long as it is
not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a
decree for payment of that debt.
(iii) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge and
antecedent debt, it would not bind the estate.
(iv) Antecedent debt means antecedent in fact as well as in time, that is to say, the debt must be
truly independent and not part of the transaction impeached.
(v) There is no rule that this result is affected by the question whether the father, who contracted
the debt or burdens the estate, is alive or dead. 11
Pious Obligation Doctrine and the Hindu Succession Act 1956
The passing of the Hindu Succession Act 1956 has very far reaching impact on the nature and
constitution of the joint Hindu family. Though the Act does not propose to make changes in the joint
1 AIR 1959 SC 282 : (1959) SCR 1384.

2 Ibid, p. 286.
3 1952 SCR 544 : AIR 1952 SC 170, 174-176.
4 AIR 1931 All 512 (FB).
5 61 IA 350.
6 Ibid, p. 519.
7 Id. p. 527.
8 1954 SCR 177, 183-184; AIR 1952 SC 487, 90.
9 (1923) ILR 46 All 95.
10 (1923) ILR 46 All 95, 98.
11 (1923) ILR 46 All 95, 104.
51
family, its provisions have introduced radical changes in the nature of the Hindu joint family governed
by the Mitakshara law. MuttayanChetti and NanomiBabuasinhave limited the liability of the son to the
extent of joint estate of the father and the son. It is the property in which the son acquires right of
ownership by birth. In NanomiBabuasinthe Judicial Committee said that the pious obligation is
destructive of birthright of the son in ancestral property. The liability to pay the debt is not destructive
of the right of ownership, if it would have been destructive the liability would have existed even in the
event of the debt being tainted with immorality or illegality. It is based also on the equitable principle
that if one takes benefit under a rule the burden has also to be accepted under the rule. There is little or
no difference between the piousness of the doctrine and its equitable aspect.
The Act has an impact on the joint family property which has very far reaching implications. The
rule of survivorship and doctrine of ownership by birth have been affected by provisions of the Act
mainly by Sections 6, 8 and 30 which have made serious inroads in the two doctrines. These two
doctrines are the basis of the doctrine of pious obligation. As observed by the Judicial Committee :
Destructive as it may be of the principle of independent coparcenary rights in the sons, the
decisions have, for some time, established the principle that the sons cannot set up their rights against
their father’s alienation for an antecedent debt, or against his creditor’s remedies for their debts, if not
tainted with immorality. On this important question of the liability of the joint estate, their Lordships
think that there is now no conflict of authority. 1
The birthright of the son in ancestral property which developed absolutely and uninterruptedly on
the son by survivorship is curtailed, rather drastically curtailed, by virtue of the provisions of Section 6
of the Hindu Succession Act 1956.2
Hindu Succession Act abolishes Avyavaharika Debt Concept
What is important in the light of the impact of Section 6 of the Hindu Succession Act 1956 is that
the interest of the coparcener dying intestate shall devolve not by survivorship but under the
provisions of the Act. The joint family stands partitioned immediately before the death of the
coparcener. Now in the case of a father who dies intestate and indebted his interest which shall
devolve by succession on the heirs enumerated in Class-I of the Schedule shall be liable for the
payment of the debt of the deceased and the liability of the heirs will be absolute including that of the
son with respect of the share which he gets as an heir of Class-I of the Schedule. Neither the son nor
any other heir can claim exemption from the liability to pay the debt of the deceased on the ground
that the debt was immoral, illegal, or avyavaharika. Thus the pious obligation being based on religious
sanction has become converted into legal obligation. The nature of the joint estate stands destroyed.
The approach of judiciary in interpreting the nature of property inherited under the scheme of
Section 8 of the Hindu Succession Act 1956 has been destructive of pious obligation doctrine.
However, the construction of the principles underlying the scheme is both logical and rational. The
Madras High Court decision delivered by its full bench is perfectly in line with the Dayabhaga
doctrine where it was held that property inherited by son from his divided father even assuming that it
was ancestral property in the hands of the father would be his separate and individual property and not
of the joint family consisting of his wife, sons and daughters. 3
This decision of the Madras High Court has a far reaching consequence; it obliterates the very
concept of ancestral property in the Mitakshara school of Hindu law which is the foundation of
judicially modified doctrine of pious obligation of the son to pay his father’s debt.
Again in Shrivallabiv.Modani,4 the Madhya Pradesh High Court while interpreting the principles
underlying Section 8 of the Hindu Succession Act 1956 observed, “it would be taken as a self-
contained provision laying down the scheme of devolution of the property of a Hindu” and pointed out
that in constructing the section the law in force earlier should be ignored and the court should confine
itself to the language used in the new codifying Act. 5 This approach of the Madhya Pradesh High
1 Manomi Babuasin v. Modun Mohun (1885) 13 IA 1, 17-18.

2 Section 6, the Hindu Succession Act 1956 deals with devolution of interest in coparcenary property.
3 Additional Commissioner of Income-Tax v. P.L.Karuppan Chettiar AIR 1979 Mad 1; vide Sunderlal T. Desai (rev.), D.
F. Mulla, HINDU LAW, 16thed. 1990, p. 784.
4 (1983) 138 ITR 637 (MP).
5 Sunderlal T. Desai (rev.), D. F. Mulla, HINDU LAW, 16thed. 1990, p.76.
52
Court cannot be supportive of pious obligation doctrine since it has the effect of converting the
ancestral property into self-acquired property.
This has been the consistent trend in other High Courts also. In Commissioner of Income -
Taxv.MukundGirji,1 the Andhra Pradesh High Court held that the properties which devolved upon a
son in 1958, by inheritance, after the Act came into force, were properties of the son in his individual
capacity and not of the joint family of the son. His sons have no right by birth in such properties and
cannot therefore, claim any share or sue for partition of such properties. 2 On perusal of the provisions
of the Hindu Succession Act 1956, the High Court observed :
A perusal of the Hindu Succession Act 1956 would reveal that Parliament wanted to make a clean
break from the old Hindu law in certain respects consistent with modern and egalitarian concepts. For
the sake of removal of any doubts, therefore, Section 4 (1) (a) declared that, in so far as a matter is
provided for by the Act, one should look only to the Act and not to the pre-existing Hindu law. It
would, therefore, not be consistent with the spirit and object of the enactment to strain the provisions
of the Act to accord with the prior notions and concepts of Hindu law. That such a course is not
possible is made clear by the inclusion of females in class I of the Schedule. To hold today that the
property which devolves upon a Hindu under Section 8 of the Act would be Hindu Undivided Family
property in his hands vis-à-vis his own sons would amount to creating two classes among the heirs
mentioned in Class-I, viz., the male heirs in whose hands it would be joint family property vis-à-vis
their sons; and female heirs with respect to whom no such concept can be applied or contemplated.
The intention to depart from the pre-existing Hindu law is again made clear by Section 19 which states
that two or more heirs succeeding together to the property of an intestate shall take the property as
tenants-in-common and not as joint tenants. According to Hindu law, as it obtained prior to the Hindu
Succession Act 1956 two or more sons succeeding to their father’s property took it as joint tenants-in-
common. The Act has, however, chosen to provide expressly that they shall take as tenants-in-
common. Accordingly, properties which devolve upon an heir mentioned in Class-I of the Schedule
under Section 8 constitute his absolute properties, and his sons have no right by birth in such
properties and cannot, therefore, claim any share or sue for partition of such properties. 3
This decision of the Andhra Pradesh High Court like the decisions of the Madras High Court4 and
Madhya Pradesh High Court5 has a destructive impact on ancestral property and makes the situation
much more like the proprietary jurisprudence under the Dayabhaga school.
The seal of finality has been placed on this approach by the Supreme Court in Commissioner of
Wealth-Tax, Kanpurv.Chandersen.6
Now, the share which a son obtains in the capacity as an heir of Class-I of the Schedule will
become his separate property in which the son’s son will not take an interest by birth.7 Thus, the basis
of the liability of the son by virtue of the right of ownership by birth in ancestral property has been
eroded; consequently the very basis of the pious obligation to pay the father’s debt has become
anfractuous. Naturally, the very basis of the pious obligation has been destroyed.
The question as to the nature of the property in the hands of the son has been finally decided by
the apex court in Chandersen.8 In this case the Supreme Court has very elaborately discussed and
examined the views of the Allahabad High Court,9 Madras High Court,10 Madhya Pradesh High
Court11 and Andhra Pradesh High Court12 on the one hand and that of the Gujarat High Court 13 on the
other hand.
1 (1983) 144 ITR 18 (AP).

2 Ibid, pp. 784-785.
3 (1983) 144 ITR 18 (AP).
4 Additional Commissioner of Income-Tax AIR 1979 Mad 1.
5 Commissioner of Income-Tax v. Mukundgirji (1983) 138 ITR 673 (MP).
6 AIR 1986 SC 1753 : (1986) 3 SCC 567.
7 (1983) 144 ITR 18 (AP).
8 AIR 1986 SC 1753: (1986) 3 SCC 567.
9 Commissioner of Income-Tax, U.P. v. Ram Rakshpal, Ashok Kumar (1968) 67 ITR 164(All).
10 Additional commissioner of Income-Tax AIR 1979 Mad 1.
11 Shavallabhdas Modani v. Commr. of Income-Tax MP (1982) 138 ITR 673.
12 Commr. of Income Tax (1983) 144 ITR 18 (AP).
13 Commr. of Income-Tax, Gujarat-I v. Babubhai Mansukhbhai (1977) 108 ITR 417 (Guj).
53
In this case the important question involved was whether a son as heir of Class-I of the Schedule
inherits the property of his father who dies intestate in his individual capacity or as Karta of his own
undivided family in which his son shall take interest by birth.
In Chandersen, the view of the Gujarat High Court was overruled and the views of the Allahabad
High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High
Court were approved. In brief the facts were: There was a partition of joint family business between
the father and his only son. Thereafter, they continued the business in the name of the partnership firm.
The son formed a joint family with his own sons. The father died and amount standing to the credit of
the deceased father in the account of the firm devolved on his son. The wealth tax authorities while
assessing the wealth tax in respect of the family of the son, i.e., the assessee, included the amount in
computing wealth. Held, that the son inherited the property as an individual and not as Karta of his
own family. Hence, it could not be included in computing the assessee’s wealth. 1 The Supreme Court
observed :
In view of the Preamble to the Act, i.e., to modify where necessary and to codify the law, in our
opinion it is not possible when Schedule indicates heirs in Class-I and only includes son and does not
include son’s son but does include son of a predeceased son, to say that when son inherits the property
in the situation contemplated by Section 8 he takes it as Karta of his own undivided family. If the
Gujarat High Court’s view noted above, if accepted, would mean that though the son of a predeceased
son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would
by applying the old Hindu law get a right by birth, in the said property contrary to the scheme outlined
in Section 8. Furthermore, as noted by the Andhra Pradesh High Court the Act makes it clear by
Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It
would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu
Succession Act 1956 would be HUF property in his hand vis-à-vis his own son, that would amount to
creating two classes among the heirs mentioned in Class-I, the male heirs in whose hands it will be
joint Hindu family property and vis-à-vis son and female heirs with respect to whom no such concept
could be applied or contemplated. It may be mentioned that heirs in Class-I of Schedule under Section
8 of the Act included widow, mother, daughter of predeceased son etc. 2
This interpretation of the Supreme Court of the scheme of Sections 8 and 6 of the Act is both
logical with the philosophy of the Hindu Succession Act and also in conformity with the social and
legal demands of the society and law. Why a person should acquire property of another person without
being obliged to pay his debts and seek exemption on the ground of such other person’s borrowing for
illegal and immoral ends. It is unsocial and illegal. Again, why a creditor should lose his legal right to
recover his debt merely because the debtor was involved in illegal and immoral acts?
The approach of the Supreme Court is also in conformity with the doctrine of equality enshrined
in the Constitution. Since in the Dayabhaga school and in society in general no debtor can escape the
liability from paying off his debts on the ground that the debt was incurred for illegal or immoral
purposes, the Supreme Court decision is sound on social and legal grounds. The son cannot use the
defence of illegal and immoral debts of his father to protect the property inherited under the Act.
Impact of Section 16 of the Hindu Marriage Act 1955 on Pious Obligation
The provision of Section 16 of the Hindu Marriage Act 1955 makes it a law which is not based on
logic but on social requirement. The illegitimacy of a child is a social stigma on the child and on the
society itself. The Hindu Marriage Act 1955 by this section has tried to wipe out the stigma of
illegitimacy on the child born of a void or voidable marriage. That is undoubtedly a progressive step
but at the same time the child is only partially given the status of a legitimate child and if this
legitimate child born of a void or voidable marriage happens to be a son then he will not be liable to
pay the debt of his father and his grandfather because he does not acquire any right in the property of
his father and his grandfather by birth as that of a son born to a valid marriage of his parents.
Therefore, the pious obligation in this case cannot be enforced.
The changes mentioned above by the two Acts have affected the very basis of the pious
obligation doctrine. Therefore, now, there is nothing left in this doctrine and the old adherence to this
1 AIR 1986 SC 1753 : (1986) 3 SCC 567.

2 (1986) 3 SCC 567 : AIR 1986 SC 1753, 1760.
54
doctrine may be abandoned as sub-section (4) of Section 6 of the Hindu Succession (Amendment) Act
2005 has abolished the doctrine of pious obligation finally.
Inequitability of Pious Obligation Doctrine
What is left of the pious obligation doctrine after the amendments in Hindu law is the
inequitability of the doctrine of pious obligation of the son to pay his father’s debt, namely, even now
the father during his lifetime can alienate the joint family property of himself and of his son for the
payment of his personal debts incurred by him which were neither necessary nor beneficial for the
family. This is the residue, which is neither justifiable nor reasonable. However, it is the logical and
equitable consequence of the birthright of the son in the joint estate.
Social-Legal Impact and Conclusions
As examined the socio-legal impact of the pious obligation doctrine is not consistent with the
modern jurisprudencial trends in the field of proprietary jurisprudence. The Hindu law as stands
amended by the various Acts 1 favours the absolute right of ownership with regards to Hindu females;
it cannot stand to logic and reason that where the woman’s limited estate has been abolished the son’s
right in the joint family property should be allowed to be taken away under the doctrine of pious
obligation. What is important in this respect is to convert the pious obligation doctrine into the
absolute obligation and bring it in conformity with the Dayabhaga school of Hindu law because that
has already been the impact of Chandersen’sdecision of the Supreme Court.
-----------------------
1 The Hindu Marriage Act 1955, the Hindu Succession Act 1956 (2005), the Hindu Minority and Guardianship Act 1956
and the Hindu Adoptions and Maintenance Act 1956.
55
FAMILY, WORK AND MATRIMONIAL PROPERTY: IMPLICATIONS FOR WOMEN AND
CHILDREN
Kamala Sankaran
B. Sivaramayya’s illuminating book Matrimonial Property Law in India (1999) was perhaps the
first comprehensive study of the subject in India. The book bears the imprint of his scholarship, the
years of insight in the area of family law which many of us as former students, and later as colleagues,
were fortunate to witness. Elaborating on the concept of matrimonial property, Sivaramayya (1999)
went on to describe and analyse the different regimes of matrimonial property that exist in India and
also focused on the way forward for a gender just development of this key area of family law in the
country. In the introduction he highlighted the low ownership of property by women in the world.
“This position has arisen because of the social and legal failure to recognize marriage as an economic
partnership also. The disproportionate holding of assets occurs primarily for three reasons: (1) Law
and policies of the states do not recognize ‘domestic work’ as ‘productive work’–even Marx does not.
(2) nature and nurture burden women with bearing and rearing of children. They are frequently forced
to give up their careers to look after their homes. (3) Even when women take up jobs, they are
confined to relatively low-paid ones’ (ibid.: xiii).1 In this article, I explore these themes further, and
examine in particular the gendered nature of work and the implications this has for women’s and
children’s rights in matrimonial property.
Importance of Property for a Woman’s well-being
It must be made clear at the outset that the issue of matrimonial property and its equitable division
is a matter that concerns those families that have property; and that number is not small in India. 2 It is
well-documented that the ownership of property, in the form of land and other assets, is highly skewed
in favour of men worldwide. In 1980, the International Labour Organisation (ILO) calculated that
women do two-thirds of the world’s work for 5-10 percent of the income, and own one percent of the
assets. The importance of enhancing women’s property ownership is for the sake of the empowerment
of the woman, and also for the improved well-being of the family, particularly children. The link
between women’s agency and social change has been forcefully brought out by Amartya Sen in recent
times: he notes that ‘[t]he ownership of property can also make women more powerful in family
decisions’ (1999: 189-203; 192).3
The importance of wealth, in the sense of property ownership, to a person’s quality of life cannot
be underestimated. Access to and control over property is a vital factor that determines a person’s
standard of living, avenues of future income and sense of economic security. Ownership of a piece of
land, however small, would often permit a family to eke out a livelihood. Thus it has been noticed that
access to land is linked to incidence of rural poverty. In addition, it has been noted that having access
to land ‘serves as collateral for credit and as a mortgageable or saleable asset during crisis, and
improves bargaining position with employers (Agarwal 1997: 39). Owning a ‘field of one’s own’ is
not important for the family alone as a unit but particularly for the woman. Her social status and well
being are directly connected to this ownership (Agarwal 1994). Of course, ownership of land by
women may not necessarily lead to improved economic status. Often decision-making over the land is
in the hands of men. Brahmanical customs and social taboos prohibit women from handling tools and
means of production (such as the plough) needed for tilling land.
In urban areas, access to housing is critical for survival. Huge sums are paid to gain the ‘right’ to
set up a shop or slum on a pavement or plot of land. Access to housing implies that women who
otherwise may not be able to venture out to work because of the need to look after small children or
the aged, can engage in home-based work. Therefore, the right to live in the matrimonial home (even
if she does not have ownership rights over it) is an important right for the woman.
1 I use the term ‘matrimonial property law’ in the sense in which Sivaramayya used it, namely, the ‘appropriate
principles that should guide the division of assets on the termination of marriage’ (Sivaramayya 1999:1)
2 Agarwal (1994:362) notes that in 1982, the percentage of landless (i.e., owning neither agricultural nor homestead
land) to total rural households in India was 11.3 percent. However, 62.4 percent of these land-owning households had
merely between 0.002-1.00 hectares (ibid.: 364).
3 Sen draws attention to the overlap between the ‘agency’ approach and the ‘well-being, welfarist’ approach while
maintaining the distinction between the two conceptions.
56
Ownership of income-creating assets is also a source to future incomes. The micro-finance
movement in the country shows that loans of even small sums of money generate significant amounts
of capital, and this is used by women and men to buy some income-creating asset or is used as seed
money to set up a small livelihood-sustaining enterprises.1 In times of crisis, any asset owned by the
woman can be sold or mortgaged. This provides her with a buffer and a fall-back option in times of
need. In sum, ownership of property is an important, though not complete, guarantee against poverty.
It is also important to recognize that having a source of regular income may often be an inadequate
substitute for the sense of equality and empowerment that is provided by property ownership in an
increasingly insecure environment.
Several writers have pointed to the positive link between women’s access to property and
enhanced bargaining positions both within the community and the family (cf. Jain and Banerjee 1985;
Sen 1990). Thus, for instance, Bina Agarwal notes that this bargain involves both cooperation and
conflict, and that ‘[t]he person who has a stronger fall-back position (better outside options), and/or
whose claims enjoy, greater legitimacy, would emerge with a more favourable outcome, although both
parties would be better-off than if they did not co-operate (Agarwal 1994: 54-55).’ It has been noticed
that women who have property are given greater respect and looked after better by their relatives. In
the case of widows, it has been noticed that those with access to property or income have a better
status within the family and in society (Chen 1998). A recent study carried out in Kerala has shown
that women owning immovable property (land or house) are found to face a significantly lower risk of
marital violence than women with no property (Panda and Agarwal 2005). This would point to the
need for women to have access to both property and incomes in order to improve their positions within
the family and outside.
Property rights for women are important in another sense too. The extent to which their labour
within the household and outside is rewarded with wages is also important given the manner in which
household income is spent. It is well-documented that women’s earning often go towards meeting
food and other basic need of family members. 2 For instance, it has been noted that in 1989-99, ‘one
out of nine households [was] dependent on women’s earnings to meet half or more of her expenditure
(Kishor and Gupta 2004: 694).’ Giving control over this income/property and thus also a voice in
decision-making then may be beneficial not only for the woman but other members of the family too.
Personal Law and Matrimonial Property
Ownership of property is primarily obtained through inheritance. Women who inherit property
from their fathers usually waive this right in favour of the male kin, generally brothers, in order to
maintain good links with their natal family (cf. Jaising 1997; Kishwar 1994: 2145-67), Property could
also be acquired through acquisition of savings out of one’s earnings. This is the backdrop within
which the concept of matrimonial property becomes crucial and its disposition and devolution critical
to the position of women within the family and outside. The manner in which the property of spouses
is controlled and its ownership determined, during marriage and at its dissolution, lie at the core of the
debate over matrimonial property. Broadly speaking, in the regime of matrimonial property that we
have for most communities in India, spouses continue to treat the property they bring into the marriage
as their separate property.
The property acquired by either spouse during the period of marriage continues to be the
individual property of the spouse that acquired the property. The valuation of the matrimonial
property that may take place at the time of the death of the husband or at the time of the dissolution of
marriage follows what Sivaramayya referred to as the ‘separation of property’ model. Under such a
system there is no corpus of ‘matrimonial property’ over which both spouses can exercise a claim, and
related to that, there is no conception of an economic partnership between the spouses that would
come into existence upon marriage. (While most of the country follows the separation of property
model, in Goa, the Civil Code of Goa has elements of all these regimes (cf. Sivaramayya 1999: 10-
11).] As a result, for many women, the initial corpus of wealth that they have at the time of marriage
(including stridhan), together with accretions to their property that are made by their own effort or
1 See, for instance, the First Report of the Committee on Empowerment of Women (2004-05) cited in ‘The Promise of
SHGs’ (2005).
2 The greater responsibility of women towards maintaining the household has been noted in Sardamoni (1991) and
Menscher (1988), cited in Kodoth (2004: 1914).
57
through gifts or inheritance, alone constitute the property over which they exercise ownership at the
time of the dissolution of marriage.
In many families in India the ‘breadwinner’ is the male and the woman, even if educated, gives
up her job in order to run the house and look after children. It comes as no surprise that women’s
chance of increasing their share of property during marriage (which also coincides with the bulk of
their possible working life) is practically nil. In other cases, where the man is engaged as a self-
employed businessman, small-scale entrepreneur, shopkeeper or farmer, the wife or child may well be
engaged in helping out in his work. However, their role is perceived as that of a family helper and
their contribution to the eventual income from the business/land is never separately calculated or
credited to them.
The property of the husband (except for ancestral property in the case of Hindus belonging to the
Mitakshara school) is treated as his exclusive property over which he has exclusive control. 1 In the
case of communities like the Hindus, the man can even dispose of his property freely through his will
and testament to the complete exclusion of his family members. Marriage not being an ‘economic
partnership’ results in the limited capacity of the wife to claim rights over the property of her husband
at the time of divorce. 2 This has profound implications for the rights of the wife over matrimonial
property. Assets such as the matrimonial house or movable assets purchased by the husband are
treated to be his exclusive property. The contribution of the wife in creating his savings in the first
instance through performing (unpaid) household work is not a relevant factor in India.3
One of the most important properties over which the woman would like to exercise some control
usually is the matrimonial home. In case of breakdown of marriage or otherwise, it is this matrimonial
home which is her only place of residence, her shelter. Given the fact that most marriage in India are
patrilocal, with the woman moving to the residence of her husband, dissolution of marriage or her
leaving the husband’s home because of domestic violence and her consequent loss of matrimonial
home would also render the woman homeless. The Protection of Women from Domestic Violence
Act 2005 now grants rights of residence (though not necessarily ownership) in the matrimonial home
or shared household to the battered and estranged wife. The residence order passed by a magistrate
under the Act can extend to restraining the respondent from alienating, disposing of or renouncing his
share in the shared household or encumbering it. In certain cases the magistrate can direct the
respondent to provide the same level of alternate accommodation as enjoyed by the aggrieved person
in the shared household or to pay the rent for such accommodation if the circumstances so warrant. 4
While this is no doubt a major step forward, we must not overlook the fact that the entitlement of the
wife to the matrimonial property in the matrimonial home remains an unfulfilled demand. We must
also note the implications of another recent amendment that has enhanced the residence rights of
women. The limited rights of residence for daughters (married or unmarried) in their family home
have been reversed with the recent amendment to the Hindu Succession Act 2005. 5
Thus, despite the rights to residence which have been enhanced in recent times, given the
separation of property model that exists in India, with no acknowledgement for the household work
put in by the wife, she is not a joint owner of any assets acquired during marriage by the husband. In
case of the dissolution of the marriage through the husband dying intestate, the widow would be
1 This discussion does not take into account the matrilineal systems of poverty devolution we have in some parts of
India.
2 The wife’s right to inherit the husband’s property is, of course, not under dispute. However, the fact that the husband
is free to treat his property as entirely his own is borne out by the unlimited right to will away his property defeating
claims of his wife in many religious personal law systems. And this right to inherit is not relevant when the marriage
ends in dissolution.
3 Cf. Sivaramayya 1999) for a comparative perspective on this issue.
4 Thus, the Protection of Women from Domestic Violence Act 2005 provides for the rights of women to secure housing.
It provides for the right of the woman to reside in the matrimonial home or shared household, whether or not she has a
right or title to reside in such home or household. This right is secured through a residence order passed by a
Magistrate. Perhaps, in a notional sense then, the Act provides for each woman to ‘have a room of one’s own’ in the
sense mentioned by Virginia Woolf (1929) given the small size of the dwelling units in most Indian homes. It must
also be borne in mind that the Domestic Violence Act 2005 deals not only with the wife as the aggrieved person, but
extends to those related by consanguinity, marriage or those living in a joint family.
5 The Hindu Succession (Amendment) Act 2005 has deleted Section 23 and now given all daughters – whether married
or unmarried – the equal rights of residence, and to demand partition in the family dwelling home as sons.
58
eligible for a share of his property according to the rules of the personal law governing them. The
personal law for most communities accords the wife a status no higher than that of the children, thus
completely ignoring her contribution to the household and family in the form of unpaid work. She is
treated as a ‘beneficiary’ with no claims over the deceased husband’s estate, and could be willed out of
his estate should he wish to do so. Even the provisions of Section 27 of the Hindu Marriage Act 1955
(HMA) that speaks of distribution of property received at or about the time of marriage fall far short of
incorporating equitable principles of distribution of matrimonial property. Explaining Section 27 of
the HMA, The Supreme Court had clarified that ‘[t]he expression “property presented on or about the
time of marriage: used in Section 27 has to be property construed to include such property which is
given at the time of marriage as also the property given before or after marriage to the parties to
become their “joint property”, implying thereby that the property can be traced to have connection
with the marriage. All such property is covered by Section 27 of the Act. 1 In a recent case, the
Bombay High Court has cited this decision to clarify that property not given to the couple as their joint
property cannot be the subject matter of an order under Section 27 of the HMA. Thus, property
acquired by the couple by their own individual efforts and not given to them at or about the time of
marriage to be held jointly, would not be property covered by Section 27 of the Act. Thus, it is
necessary that for an order under Section 27 to be passed, the property must have been presented at or
about the time of marriage to become their joint property.2
In the event of the dissolution of marriage by divorce, the wife would no doubt be entitled to
maintenance. However, the right to maintenance is at best only a right to a regular payment, and
cannot be equated with the right to property. Even this right to maintenance is subject to many
conditions being imposed upon the wife which she has to scrupulously fulfill in order to continue
receiving maintenance. Maintenance is normally not granted as a capitalized sum in India, and thus, in
the absence of a claim over matrimonial property the woman usually has not means of using a
lumpsum to purchase any income-creating asset. In fact, the provisions for maintenance of the spouse
(usually the wife) have to be understood in the context of the legal position that any property
owned/acquired by a spouse continues to be the sole property of the spouse (usually the male).
Maintenance claims by the wife could thus be rationalized as the claims that the wife could make on
the husband for the ‘matrimonial duties’ performed in marriage. Note however, that her claims upon
the property of the spouse are restricted to a claim of maintenance, and never go so far as to claim a
share in the property owned/acquired by the husband in the marriage. Again, in the case of the claim
to maintenance, she must perform her wifely duties in order to maintain her claim. The same may be
the case for children’s right to maintenance.
The notion of a ‘good wife’ who performs her ‘matrimonial duties’ is a motif write large in the
different provisions of personal law in India. What exactly do these ‘matrimonial duties’ entail?
Amongst other things such as the duty to engage in marital sexual intercourse (marital rape is not an
offence in India), it would certainly include her duty to perform domestic work and run the household
by performing all the household labour expected of a ‘good wife’. 3 Added to this is the idea that the
man is the breadwinner and therefore has the duty to maintain the wife 4, and coupled with that the
right to determine the location of the matrimonial home. 5 The notion that the man is engaged in
production and the woman in reproduction, forms the basis of the notion that sexual division of labour
1 Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam AIR 1997 SC 3562.

2 Kamalakar Ganesh Sambhus v. Master Tejas Kamalakar Sambhus AIR 2004 Bom 478. In this case, even though the
wife showed that she had made half the contribution for the construction of the house property, the Court held that this
could not be the subject matter of an order under Section 27 of the Act, and set aside the order of the Family Court on
these grounds.
3 See Kalpana Srivastava v. S.N.Srivastava AIR 1985 All. 253 where the court held that failure by the wife to prepare
tea for the husband’s friends, among other factors, amounts to cruelty. This could be read to be sufficient grounds to
allow him to divorce her.
4 See, for instance, the gender unequal duty to maintain the wife that is cast upon the husband alone under the Hindu
Adoption and Maintenance Act 1956
5 See Kailashwari v. Ayodhya Prakash (1977) 79 PLR 216, Tirath Kaur v. Kirpal Singh AIR 1964 Punj. 28, Swaraj
Garg v. K.M.Garg AIR 1978 Del 296
59
is a universal truth.1 This gendered understanding of the roles each spouse is traditionally expected to
perform has never been seriously challenged by the courts. On the contrary, the failure to cook and
look after children has been regarded as cruelty and constituting grounds to obtain divorce in India.
This understanding–that there is an inherent division of labour within the household – appears to have
been implicitly internalized by the courts. Further, the performance of matrimonial duties only gives
the wife a right to claim maintenance / alimony, but the law has not been willing to recognize this as
giving rise to a right on the part of the wife who undertakes the bulk of the domestic and care
responsibilities (whether with outside assistance or otherwise) to claim part of the husband’s property
upon divorce as a claim she has upon the ‘matrimonial property’. The limitations in providing for the
rights to maintenance alone when a marriage breaks up reveals itself in the greater impoverishment of
women after divorce. It has been noted that marriage, for the woman, is an ‘economic arrangement for
life’, and failure of the marriage often leads her into a life of poverty and dependence (cf.
Mukhopadhyay 1998: 35-76).
Unpaid work and the Sexual Division of Labour
The gender stereotyping of women and the roles ascribed to women in the household is not
unique to the personal law or the manner in which the private domain is constructed alone. Domestic
work is often monotonous, repetitive and physically taxing work. Cooking, taking care of children,
and other arduous physical activity such as walking long distances to fetch water, or to collect
firewood needed for cooking, to purchasing things from the weekly rural market are the kinds of
chores most women perform on a daily basis. In urban areas it may entail being up all hours of the
night for water, standing in queues for ration, dropping and collecting school-going children, etc. They
could also be engaged in maintaining a kitchen garden or looking after household poultry and dairy
activities (Kodoth 2004: 1914).
Sociologists have distinguished between ‘family’ and ‘households’ in India and use the term
‘family’ for a wider group connected to each other through kinship and marriage whose members may
live in more than one household, whereas members of a household live together, sharing a common
hearth and worship. For the present purpose, we are using the term ‘household’ while describing the
work performed by the women within it, while retaining the term ‘family’ to describe the property
division between the spouses since ‘family law’ or personal law’ are the expressions used in legal
discourse.
A serious debate among scholars in different countries has concerned the question of how
women’s unpaid work within the household should be viewed from the point of view of whether they
contribute to the national economy, and whether this constitutes ‘work’. Traditionally, only paid work
was considered as gainful employment. The economist Alfred Marshall made the point that if he hired
a woman as a domestic help the national economy would increase, but if he married her it would go
down! In the 1961 Census, economic data collection was based on the definition of ‘work’, defined as
‘any person whose main activity was participation in any economically productive work either by
his/her physical or by his/her mental activity’ (Shimray 2004: 1698, 1702; Sen and Sen 1985: WS 49-
56). In the 1971 Census, a ‘worker’ was one whose main activity in the reference year was
economically meaningful work. In the 1981 Census, it was recognized that people could work for
different durations, and therefore two categories of workers emerged: main workers (working 183
days or more) and marginal workers (employed for less than 183 days). In all these cases, productive
or meaningful work was understood as either work that was remunerative i.e., in a context of an
employer-employee relationship or self-employment outside the household- (Shimray 2004).
In the earlier censuses, the unpaid work done on farm and in family enterprises did not get
included as economically productive or meaningful work. However, in the 1991 Census those workers
who did un-paid work on farms or family enterprises were included even though they did not receive
wages for the work done. Subsistence activities, i.e., production for own consumption was also
included in the case of certain crops. The scope of the definition of work was expanded in the 2001
Census to include production of milk for domestic consumption. 2
1 It has been shown that, agriculture, it is women who do the actual work in several communities in India. See
Mazumdar and Sharma (1990: 185-97).
2 In the 1991 Census, cultivation of certain crops even for self-consumption was treated as economic activity. The scope
of the term ‘cultivation’ was expanded in the 2001 Census to include certain other crops such as tobacco, fruits, all
60
The Nairobi forward-Looking Strategies for the Advancement of Women (1985: Para 120) stated
that ‘remunerated and, in particular, the unremunerated contributions of women to all aspects and
sectors of development should be recognized, and appropriate efforts made to measure and reflect
these contributions in national accounts and economic statistics and in the gross national product.
Concrete steps should be taken to quantify the unremunerated contribution of women to agriculture,
food production and household activities. The Copenhagen Declaration and Programme of Action:
World Summit for Social Development (1995: Para 46) recommended, ‘Worldwide most of this work
is done by women who often face the double burden of remunerated and unremunerated work. Efforts
are needed to acknowledge the social and economic importance and value of remunerated work…. and
to accord social recognition for such work, including by developing methods for reflecting its value in
quantitative terms for possible reflection in accounts that may be produced separately from, but
consistent with, core national accounts. The Platform for Action adopted at the World Conference on
Women in Beijing in September 1995 indicated that efforts should be made in the direction of
devising ‘suitable statistical means to recognize and make visible the full extent of the work of women
and all their contributions to the national economy, including their contribution in the unremunerated
and domestic sectors, and examine the relationship of women’s unremunerated work to the incidence
of and their vulnerability of poverty’ (The Beijing Declaration and the Platform of Action, 1996: Para
68). Despite these international efforts, the position in many countries continues to fall short of
granting visibility to women’s unpaid work.
The United Nation’s System of National Accounts (SNA) elaborates what could be considered
productive in order to counted towards the national accounts. These mainly correspond to what is
considered ‘productive’ for the market (SNA activities). It ‘lists a large number of productive activities
undertaken within the household which are not included in the production boundary. For example, the
production of domestic and personal services for consumption within the same household: preparation
of meals, care and training of children, cleaning, repairs, etc. (Unni 2001: 2360, 2370).’These
activities have been termed ‘extended SNA’ activities, while ‘activities related to learning, social and
cultural activities, mass media and self-maintenance are categorised as non-SNA activities (ibid.).’
Thus, domestic work and ‘care work’ or what is also termed the work of ‘reproduction’ as opposed to
production have been treated as extended SNA activities.
In order to ascertain the amount of time spent by women on these extended and non-SNA
activities, the National Sample Survey Organisation carried out a large-scale survey spread across six
states in 1998-99.1 Observing the time-use pattern of members over the span of a week (168 hours).
On an average, women spent 19 hours a week on SNA activities (rural women spending up to 23
hours a week) while the corresponding figure for men was 42 hours. This can be understood in the
context of the national accounts treading ‘productive’ work for the market alone as contributing to the
national income. However, when it came to extended SNA (domestic work and care work), the
situation completely changed. Women spent longer hours, almost 35 hours a week compared to a low
of less than four hours a week for men (roughly one-tenth the time spent by women) in these activities.
Women reported that they spent about 2.1 hours per day on cooking food, about 1.1 hour on cleaning
the household and utensils. Participation of men in these activities was just nominal. Taking care of
children was also mainly the women’s responsibility as they spent about 3.16 hours on these activities
types of flowers, roots and tribers, potatoes, chillies and turmeric, pepper, cardamom, all types of vegetables and
fodder crops, etc. This meant that activities related to production of all the above mentioned crops for domestic
consumption has been classified under ‘plantation’ in the Census of India, 2001. See
http://pondicherry.nic.in/open/depts/ecostal/census/population.htm. The National Sample Survey Organisation also
provides data on women’s employment. These surveys are conducted once every five years. They adopt a broader
notion of work–it encompasses all activities pursued for pay, profit or family gain. Thus its data about the extent of
women in the labour force is higher than that reached by the Census data. For further details, see Report of the Study
Group on Women and Child Labour (2001).
1 A ‘Time-Use’ Survey was conducted in 18,591 households spread over six selected states, namely, Haryana, Madhya
Pradesh, Gujarat, Orissa, Tamil Nadu and Meghalaya between 1998 and 1999. The main objectives of the survey were
to collect data for properly quantifying the economic contribution of the women in the national economy and to study
the gender discrimination in the household activities. For details see http://mospi.nic.in/t5_2.htm.
61
as compared to only 0.32 hours by males. In non-SNA activities, which pertain to learning, leisure
and personal care, males spent about 8 hours more as compared to females. 1
What are the implications of this for women? We can note from the data relating to SNA and
extended SNA activities that women work longer hours a week compared to men. The view that
women’s work never ends is borne out. The proportion of women’s work compared to the total of
men and women’s work works out to roughly 55 per cent. 2 Thus, if extended SNA activities were
treated as economical activities the share of women would be greater.
It must be noted that while there is a need for more activities performed by women to be treated
as economic activities for the purpose of assessing their contribution to the household and the national
income, much of the work of this nature that is performed is unpaid (even though an economic value
may be imputed to it). Such activities may be performed either by family labour or through exchange
labour. For the six states combined, payment was not made for about 38 per cent of the time spent in
SNA activities. The amount of unpaid activities was higher in the case of women (51 per cent) as
compared to men (33 per cent). The predominance of females in unpaid activities, which was visible
in all the states, had great regional variation too. The percentage of time spent by women in unpaid
activities was highest in Haryana (86 per cent) and the lowest for Tamil Nadu (32 per cent). No doubt
social, cultural and economic factors play a role in the regional variations.
Where time has been used as a unit for measurement, as in the time-use surveys mentioned above,
the amount of time spent by women to do domestic work has been a factor to incorporate unpaid work
as economically productive work. Another way to do so has been to impute a monetary value to this
work. According to experts, the most accepted method for this is the ‘third-party principle’ according
to which ‘domestic production refers to unpaid activities that can be performed by a third person for
pay. Clearly this criterion includes tasks such as shopping, cleaning, food preparation and child care;
it does not include leisure or personal activities such as watching television or getting dressed (Beneria
1999:295).’
What is very clear is that what Marx had referred to as the activities needed for the ‘reproduction
of labour’, i.e., those activities carried on within the household for the worker to recoup and report for
work the next day, are also now getting acknowledged as having value. Not just use-value, but these
can have a monetary value ascribed to them as well. Thus, while examining the quantum of minimum
wages payable under the Minimum Wages Act 1948 we can observe that while the law is silent about
what elements the minimum wage have filled this lacuna. The minimum wage should at least meet
the bare sustenance of an employee and his family. It also includes expenses necessary for his other
primary needs, such as medical expenses, expenses to meet some education for his children, and in
some cases transport charges, etc. The Supreme Court has approved the norms for fixation of
minimum wages approved by the Tripatite Committee of the Indian Labour Conference held in New
Delhi in 1957.3 The five norms have been emphasized and enhanced in further cases. The Court has
held that in calculating minimum wage (i) the standard working-class family should be taken to
consist of three consumption units for one earner, the earnings of women, children and adolescents
should be disregarded; (ii) minimum food requirement be calculated on the basis of a net intake of
calories, for an average Indian adult of moderate activity; (iii) clothing requirements should be
estimated as per capita consumption of 18 yards per annum which should give, for the average
worker’s family of four, a total of 72 yards; (iv) in respect of housing, the rent corresponding to the
minimum area provided for under the Government’s Industrial Housing Scheme should be taken into
consideration in fixing the minimum wage; and (v) fuel, lighting and other ‘miscellaneous’ items of
expenditure should constitute 20 percent of the total minimum wage. The Supreme Court added the
following additional components as a guide for fixing the minimum wage (vi) children’s education,
medical requirements, minimum recreation including festivals/ ceremonies and provision for old age,
1 In order to place this data in an international context, we can compare the Indian data on time use with the data
provided for selected developing countries. Women worked 116 percentage of the time worked by men. Of the total
work time the proportion of time spent by men on market and non-market activities was 72 and 21 respectively. On
the other hand, women spent proportionately less time on market activities (40) and more on non-market activities (60)
on an average.
2 The Human Development Report 1995, UNDP, notes an average figure of 53 percent worldwide.
3 Standard Vaccum refining Co. of India v. Its Workmen 1961 2 LLJ 227 (SC), AIR 1961 SC 895.
62
marriage etc., which should constitute 25 per cent of the total minimum wage. 1 The Court emphasises
that the above six components are nothing more than a minimum wage at subsistence level which the
employees are entitled to at all times and in all circumstances. It may be noted that no amount has
been set aside for the cost of processing of food, as the cost of the purchase the required calorie intake
in its unprocessed form is provided. The cost of cooking, cleaning, care-work and other domestic work
performed by the women is left out of minimum wage calculations. It may be argued that the
minimum wage fixed by assuming that the invisible domestic work is cost-less in effect results in the
woman’s domestic work subsidizing the cost to the employer in employing a worker at the (reduced)
minimum wage. It is in this sense that the links between patriarchy and capitalism may be understood.
What implications does this debate have upon the law of matrimonial property? No doubt the
family members’ perception of women’s contribution to the household income would be coloured by
popular and economists’ conception of what constitutes ‘work’. Thus, invisibility of women’s work in
the public domain would have serious implications for under-valuing the share of women in
matrimonial property. While the question can remain open about whether household work like
cooking, cleaning and child-care contribute to the national income, there can be no doubt that they
contribute to the family income and well-being as well, the two being interlinked. There are many
aspects to this argument. The subsistence work put in by women due to the sexual division of labour
has been shown to be the basis that allows males to go out to work and for their employers also to
absorb the surplus value created. Thus patriarchy – which sustains the sexual division of labour within
households – also creates the basis for the creation of surplus value for the capitalists (cf. Dalla Costa
and James 1972); Mies 1982).
Women often increase their burden of housework and caring in times of crises and as a coping,
survival strategy for the family in times of poverty and unemployment. It has been argued that the
presence of a large pool of unpaid workers in the form of women act as ‘shock absorbers’ for the
family to respond to the cyclical crises of capitalism (Glazer 1980: 259). The effect of the position of
women in the economy also has an impact on the position of women within the family.
I have already noted that under the separation of property model that we have for matrimonial
property in India, the woman’s property consists of the property she brings into the marriage and
additions made to it. Assets purchased during the marriage usually by the husband are often times
because of the unpaid work put in by women that contribute to the husband’s savings. If we were to
use the ‘replacement cost’ model to ascertain the economic contribution of the woman in the
household, we would no doubt arrive at a figure that captures her share in the ‘separate’ property
acquired by the husband during the marriage. This has in fact been the basis for the laws of many
countries accepting the notion of matrimonial property. There is urgent need for the Indian law to
incorporate some such similar system of matrimonial property (see Pradhan Saxena 1993;
Sivaramayya 1999).
The care-work performed by women also reduces the burden that families place upon support
services provided by the state. Thus women’s labour allows the abdication of its duties to its citizens
by the state. Poor hospital care, lack of adequate of affordable child-care and care services for the sick
and aged add to the burden of women within the household. Caring labour which provides
personalized attention and care to members of the family may be motivated by feelings of love and
compassion, but as feminist thinkers have pointed out it is also a gender-specific responsibility borne
by women alone. (We see, for instance, that paternity leave is granted in limited circumstances in
India, mainly to government employees.) While it may or may not have an economic value assigned
to it, caring labour is essential for the proper development of members of the household, most
particularly children and the aged. This is done often at the cost of personal careers or at the expense
of other income-generating activities, but is difficult to reduce to an economic worth, particularly at
the time of divorce. The debate over matrimonial property is only now beginning to take into account
the caring labour performed by women, while the domestic unpaid work component has been
incorporated in several jurisdictions.
It is not just women who perform unpaid work within households but also very often children,
particularly the girl child. For instance, it has been pointed out that statistics on child labour
1 Workmen v. Reptakos Brett & Co. Ltd. 1992 1 LLJ 340, AIR 1992 SC 504.
63
frequently show a preponderance of boys rather than girls engaged in child labour. However, if
unpaid activities are included under child labour, more girls than boys are engaged in child labour
(Greenwork 2002). According to NSS data, the incidence of child labour was 3.8 per cent in 1999-
2000 whereas it was 5.1 per cent according to the 1991 Census data. However, based on time-use
surveys 20 per cent of boys and girls in the age group of 6-14 years participate in economic activities.
They are engaged in unpaid or subsistence activities such as animal grazing, collection of fuel and
fodder, farming and other services (Dev 2004: 741).
This brings us to the obvious question of whether matrimonial property should be a matte that is
an issue only between spouses? How do we assign shares for the unpaid work performed by children
in the family, and how do we take care of their independent contribution to economic assets in
matrimonial property at the time of divorce? Unpaid family labour is an integral part of the lives of
many children growing up in India. The Child Labour (Prohibition and Regulation) Act, 1986
specifically acknowledges this work and makes clear that it is outside the scope of legal regulation. 1
This is, in fact, the basis for the distinction that is often made between child labour and child work
(Sankaran 2004). This is an area that the developing law of matrimonial property must acknowledge
and make provisions. The models of matrimonial property regimes that we have of other countries
focus on the division of matrimonial property among the spouses. This does not take into account the
contribution that children of the house have made towards the corpus of ‘family’ property. 2 Both
where children perform paid employment outside the home and in cases where they perform unpaid
work for the household or household enterprise/farm, there is a definite contribution towards
household income and hence property.
It may, no doubt, be argued that the parents are responsible for the welfare and upbringing of the
children and therefore it would not be correct that the children be allotted a share in the division of
matrimonial property. However, in the event where the children in the family perform paid or unpaid
work, the situation could change. In order to give agency to the child it would be necessary that the
child too be allotted a share commensurate with his/her contribution to the family property. To deny
them their due would in fact constitute unjustified enrichment of the property of the father (and
mother) in the case of a division of matrimonial propriety in the event of a divorce, or other heirs in
the event of the death of a parent. Such a position would protect the child’s interest and be in
conformity with the Convention on the Rights of the Child 1989.
Occupational Segregation by Sex and the Earnings gap
Women’s property holdings within the family are currently low for reasons related to their
(lower) employment levels and wages as well. Their capacity to obtain paid employment is lower than
that of men, hence their earning – and therefore savings – capacity is reduced. The Labour force
Participation Rate (LFPR) is uniformly lower for women as compared to men. According to the
Census 2001, rural LFPR for woman was 30.98 compared to 52.36 for men, and the corresponding
figures for urban areas were 11.55 and 50.85 respectively (Dev 2004: 736). Even when women work
outside the house, they work in low-paid jobs, their work is systematically under valued and thus their
earning capacity is reduced. Women workers are often found as agricultural labourers, construction
workers and domestic workers–all of which are low paying (ibid.:739). In fact, it has been commented
that ‘women are found to own and control so remarkably fewer assets and income than men, and are
so significantly less educated that it has been suggested that their class positions are uniformly lower
than men (Harriss-White 2004:27). The common feature of the work performed by women is that they
work in the low paid occupations.
Women are often to be found in the lowest paid jobs that are repetitive, and often replicate the
kind of work they perform at home. Thus domestic workers, who are invariably women, perform for
remuneration the work they undertake within their own households. This aspect alone helps to keep
the wages for domestic work low, as it is perceived as women’s work and thus not as valuable. The
low significance and economic value ascribed to it within the household and the economy is mirrored
in the lower levels of wages earned for similar kinds of work outside. It could be speculated that, in
the long term, acknowledging the work done within the house by women as having economic worth
1 Section 3 of the Child Labour (Prohibition and Regulation) Act 1986.

2 I cannot use the term ‘matrimonial’ property here for obvious reasons.
64
would reflect in the higher comparable worth ascribed to work involving similar levels of skill, effort
and responsibility in the workplace.
The clustering of women into low-end jobs is also not entirely attributable to their lower
educational qualifications, indicating strong gender-based segregation at work in the labour market
(Anant and Sankaran 2003). The gender segregation of women into low-end jobs is a feature that is to
be found in all countries in the world. A law to deal with gender discrimination such as the Equal
Remuneration Act 1976 can deal with discrimination between men and women who are differentially
paid for performing same or similar work; yet this law cannot cope with occupational segregation
where women are clustered in low-status and law-paying jobs.1
Women are often concentrated in those jobs that reflect the care-work they perform at home such
as in nursing and teaching. It has been noted that women’s earnings, as compared to men’s, reflect an
earnings gap in India. This is despite the fact that occupational segregation by sex is lower in countries
in Asia in comparison with the rest of the world (Anker 1998). The gender gap in earnings and the
persistent payment of lower wages in jobs where women are employed has been a feature of women’s
employment world-wide. 2
Thus it seems that women’s wages seem uniformly lower than those of men everywhere, and in
agriculture for instance women on an average earn only 71 per cent the wages of those earned by men
{Harriss-White 2004: 28}.
The implication of this earnings gap is that even where women work, their contribution to
household income, and therefore accretion to matrimonial property, is diminished. This is a factor that
should be borne in mind while developing models for the distribution of matrimonial property. While
working women may bring in lesser amounts into the family kitty due to diminished wage levels at the
workplace, we often find that their contribution to domestic and care-work is in no way diminished or
shared because of their status as working persons. The double, nay triple, burden cast upon working
women has often been commented upon. Thus the future or present earning capacity of women should
not be a factor to discount the amount of matrimonial property they ought to be entitled to receive
upon the dissolution of marriage. Not only do women earn less, their earnings are almost entirely spent
on maintaining the household, leaving them with little or no savings. Thus, even within the family the
working women’s capacity to create assets is far lower than that of men; yet at the time of the
dissolution of marriage, this imbalance is not taken care of.
Should the aspect of occupation segregation and the earnings gap be taken into consideration
while deciding issues of the division of matrimonial property during a divorce? This does not appear
to be the case internationally. Some of the problems that would confront law-makers and judges would
be the difficulty (in the absence of empirical data) of determining by how much to compensate a
working wife for such factors. While the gendered nature of work outside the house is a factor
adversely affecting women, we must not lose sight of the fact that working women often increase their
bargaining positions within the household. Characterising these as ‘co-operative’ conflicts, Amartya
Sen (1990) points out that a woman’s ability to obtain employment outside the home considerably
improves the perception of her contribution within the family to its economic resources. Restrictions
that are placed by cultures in not allowing a woman to seek employment outside the home constitute
an infringement of her liberty and quest for gender equity (Sen 1999). Should such deprivations be
compensated while dividing the corpus of matrimonial property at the time of divorce? This is another
issue that merits consideration. Thus, the economic factors that typically cast women into low-paying
jobs, and the cultural prohibitions that prevent women from entering employment should be distinct
factors that need to be kept in mind while developing a regime for matrimonial property division.
Those who engage in care-work and domestic work within the house reduce their future earning
capacity should they ever enter the labour market. The skills required for housework and care-work
1 India does not yet have a legislative framework dealing with comparable worth allowing us to compare jobs performed
by men and women. One reason for this is the reluctance of the Government to bring about an amendment to the Equal
Remuneration Act 1976 to replace the expression ‘same or similar work’ with the ILO mandated ‘equal pay for work
of equal value’ contained in the ILO’s Equal Remuneration Convention No.100 (1951).
2 The Equal Remuneration Act 1976 in India mandates that men and women should be paid equal wages for ‘same or
similar work’. The ILO’s Equal Remuneration Convention 1951 (No.100) uses the concept of equal pay for work of
equal value – a formulation that has the potential to deal with occupation segregation by sex.
65
are not recognized as highly skilled, and they also have lower value ascribed to it. This is especially
the case should there be a divorce, and women have to support themselves. ‘The human capital that
housewives and/or househusbands acquire is less transportable than that of a partner who specializes
in market work, leaving them in a weaker bargaining position in the family and economically
vulnerable to separation or divorce (Lee Badget and Folbre 1999).
Conclusion
There is a lacuna in the law inasmuch as it does not recognize a notion of matrimonial property in
India. Barring the limited case of the Civil Code of Goa, the personal laws in India have yet to
acknowledge this gap. Section 27 of the Hindu Marriage Act 1955 does not suffice, as Sivaramayya
himself convincingly argued. Given the limited rights to inherit property that women have in many
religious personal laws and their lower levels of participation in the labour force, it comes as no
surprise that the property ownership of women is limited. There can be no debate that ownership of
assets is invaluable in the process of empowerment of women {cf.Agarwal 1994}.
Developing a suitable regime of matrimonial property in India would clearly require a close
examination of the function of marriage and the role played by women in establishing, nurturing and
caring for the members of the household. There is an urgent need to broaden the concept of what
constitutes matrimonial property and develop a true recognition of a woman’s contribution to the well-
being and wealth of the household.1 The sexual division of labour within the household and the so-
called ‘natural’ roles cast upon women to perform these tasks must be subject to close scrutiny. While
women may freely wish to continue to perform these roles, the question of the democratization of
relations within the household and ascribing adequate worth, and therefore respect, for the women
who perform this work is a matter of great importance for women’s equality. The skewed nature of the
distribution of domestic and care responsibilities cast upon women in the household has to be
recognized and made visible. Further, the close connections between the perceptions of the nature of
this work in the ‘public’ domain, the lack of adequate recognition of its economic worth and its
invisibility in national accounts, on the one hand, and the reduced value ascribed to such work in the
‘private’ domain of the family by economics and personal law must be highlighted. Economics and
law must inform each other in order that a real and correct picture of the contribution of women’s
work to the well-being of the family is incorporated in a matrimonial property law in India.
REFERENCES
Agarwal, B. 1994. A Field of One’s Own. Camrbidge Cambridge University Press.
----------- 1997. ‘A Field of One’s Own: Gender and Land rights in South Asia, Salient Features of the Book’, in Nitya Rao
and LuiseRurup (eds), A Just right: women’s Ownership of Natural Resources and Livelihood Security. New Delhi: Fredrich
Ebert Stiftung, pp 37-43.
Agnes, Flavia. 2000. Law and Gender quality. Delhi: Oxford University Press.
Anant, T.C.A., and Kamala Sankaran. 2003. ‘Economic Growth, employment Generation and Fundamental Principles and
rights at Work’, Background paper for ILO-CIE Conference on ‘Globalisaton, Decent Work and the ILO Declaration on
Fundamental Principles and Rights at Work’, Kolkata, 24-25 February.
Anker, R. 1998. Gender and Jobs: Sex Segregation of Occupations in the World. Geneva: International Labour Office.
The Beijing Declaration and the Platform of Action. 1996. New York: The United Nations.
Beneria, Lourdes. 1999. “the Enduring Debates over Unpaid Labour, International Labour Review vol. 138: 287-309.
Chen, Martha alter (ed.). 1998 – Widows in India. New Delhi: age Publications.
The Copenhagen Declaration and Programme of Action: World Summit for Social Development. 1995. New York: The
United Nations.
Dalla costa, Mariosa, and Selma James. 1972. The Power of women and the Subversion of the Community Bristol: Falling
Wall Press.
Dev, S. Mahendra. 2004 “Female Work Participation and Child Labour, Economic and Political weekly, Vol. 39 (19): 736-44
Glazer, Nona. 1980. Women and Household Labour, in Susan Fenstemaker Berk (ed.) Women and Household Labour.
Beverly Hills: Sage Publications.
Greenwork, Adriana Mata. 2002. ‘Gender Issues in Labour Statistics’, in Martha FetherholfLoutfi (ed.) Women, Gender and
Work: What is Equality and How Do We Get There? Geneva: International Labour Office, pp. 3-20, rpt Rawat publications,
Jaipur.
1 For an account of the legislative attempts relating to married women’s property, see Agnes (2000: 184, 255), and
Menski (2003: 468).
66
Harris-White, Barbara. 2004. India Working: Essays on Society and Economy. New Delhi: Foundation Books.
Jain, Devaki, and Nirmala Banerjee (eds). 1985. Tyranny of the Household: Investigative Essays in Women’s Work. New
Delhi: Vikas Publishing House.
Jaising, Indira. 1997 ‘Women’s Inheritance Rights in Contemporary Jurisprudence’, Nitya Rao and LuiseRurup (eds), a Just
Right: Women’s Ownership of Natural Resources and Livelihood Security. New Delhi: Fredrich Ebert Stiftung, pp. 110-21.
Kishor, Sunita and Kamla Gupta. 2004. “Women’s Empowerment in indiaandits States, Economic and Political Weekly, vol.
39 (19): 694-712.
Kishwar, Madhu. 1994. ‘Codified Hindu law: Myth and Reality’, Economic and Political Weekly, vol. 29(33): 2145-161.
Kodoth, Praveena. 2004. ‘Gender, Property Rights and Responsibilities for Farming in Kerala’, Economic and Plitical
Weekly, vol. 39(19): 1914-920.
Lee Badgett, M.V., Nancy Folbre. 1999. ‘Assigning Care: Gender Norms and Economic Outcomes, International Labour
Review, vol. 138(3): 311-26.
Mazumdar, Vina, and Kumud Sharma. 1990. ‘Sexual Division of Labor and the Subordination of Women: A Reappraisal
from India’, in Irene Tinker (ed.) Persistent Inequalities: Women and World Development, New York: Oxford University
Press, p.p. 185-97.
Menscher, Joan P. 1988. “Women’s Work and Poverty: Women’s Contribution to the Household in South India’, in Daisy
Dwyer and Judith Bruce (eds), A Home Divided: Women and Income in the Third World. Stanford: Stanford University
Press, pp. 99-119.
Menski, Werner. 2003. Hindu Law. New Delhi: Oxford University Press.
Mies, Maria. 1982. Lacemakers in Narsapur: Indian Housewives Produce for the World Market. London: Zed Book.
Mukhopadhyay, Maitrayee. 1998. Legally dispossessed: Gender, Identity and the Process of Law. Calcutta: Street
Publications.
The Nairobi Forward Looking Strategies for the Advancement of Women. 1985 New York: The United Nations.
Panda, Pradeep and Bina Agarwal. 2005. “Marital Violence, Human Development and women’s Property Status in India’,
World development, vol. 33(5): 823-50
Pradhan Saxena, Poonam. 1993,: Concept of Matrimonial Property’, in Kusum (ed.) women March Towards Dignity: socio-
Legal Perspectives. Delhi: Regency Publications, pp. 74-86.
Report of the Study Group on Women and Child Labour. 2001. Government of India: National Commission on Labour.
Sankaran, Kamala. 2004. Strategies to Eliminate Child Labour’, in Ved Kumari and Susan Brooks (eds), Creative Child
Advocacy. New Delhi: Sage Publications, pp. 301-14.
Sardamoni, K. 1991. Filling the Rice Bowl: women in Paddy Cultivation. New Delhi: Sangam Books.
Sen, Amartya. 1999. Development as Freedom. Delhi: Oxford University Press.
Sen, A.K. 1990. “Gender and cooperative conflict’, in Irene Tinker (ed.) Persistent Inequalities: Women and World
Development, New York: Oxford University Press, pp. 123-49.
Sen, Gita and C. Sen. 1985. ‘Women’s Domestic Work and Economic Activity’, Economic and Political Weekly, vol. 20:
WS 49-56.
Shimray, U.A 2004. ‘Women’s Work in Naga Society’, Economic and Political Weekly, vol. 39(19): 1698-711.
Sivaramayya, B. 1999. Matrimonial Property Law in India. Delhi: Oxford University Press.
The Human Development Report 1995. United Nations Development Project.
‘The Promise of SHGs’ 2005. Economic and Political weekly, 40(9): 696-97.
Unni, Jeemol. 2001. ‘Gender and Informality in Labour Market in South Asia’, Economic and Political Weekly, vol. 36(19):
2360-377.
Woolf, Virginia. 1929. A Room of One’s Own. New York: Harcourt, Brace & Co.
---------------------------
67
MATRIMONIAL PROPERTY LAW IN INDIA : NEED OF THE HOUR
Vijender Kumar
Abstract
Matrimonial property is one of the most important issues pertaining to the
Institution of marriage. In spite ofimmense contributions made by women to the
household economy, they receive unsatisfactoryfinancial support. Their
contribution to the growth of the family is not seen as productive work and
therefore, they are not given any economic co-ownership with equal rights. This
paper argues that there is a need to deliberate rationally on this issue. Marriage
ought to be recognised as an ‘equal economic partinership’ between the hsband
and the wife. Indian laws need to make clear provisions regarding ‘matrimonial
property’ and its share among spouses. This paper also tries to study the strains
and stresses in the introduction of the concept of ‘matrimonial proerty’ in the
existing family system. In order to emphasise on the issue, an attempt is made to
closely analyse the inheritance rights of women in different legal systems. It is
followed by a study of different functional models of matrimonial property across
the world and a discussion on the best suited model for the Indian scenario.
Introduction
It is true to say that women constitute half of the world’s population, performs multi-skilled
responsibilities in the matrimonial home and receive unsatisfactory, unprofessional and unhealthy
financial support as their contribution in the growth of family has not been considered as productive
work and they have not been given any economic co-ownership with equal rights. In the regime of
matrimonial property in India, spouses continue to treat the property they bring into the marriage as
separate property. The valuation of the matrimonial property that may take place at the time of death
of the husband or the dissolution of marriage follows what Prof. B. Sivaramayya referred to as the
‘Separation of Property’ model. Under such a system there is no corpus of ‘matrimonial property’
over which both the spouses can exercise a claim, and related to that, there is no conception of an
economic partnership between the spouses that would come into existence upon marriage. 1 As a
result, for many women, the initial corpus of wealth that they have at the time of marriage, together
with accretions to their property that are made by their own effort or through gifts or inheritance,
alone constitutes the property over which they exercise ownership at the time of the dissolution of
marriage.
In the matrimonial home the disproportionate holding of assets occurs primarily for three
reasons: first, laws and policies of India do not recognise ‘domestic work’ as ‘productive work’;
secondly, nature and nurture responsibilities of women with bearing and rearing of children where
they are frequently forced to give up their careers to look after their homes are not considered as
‘productive work’; and thirdly, even when women take up jobs, they are confined to relatively low-
paid ones. The solution of these problems is also three fold: first, it is to recognise ‘domestic work’ as
‘productive work’; secondly, solution is to draw women into the managerial and remunerative work in
a normal way; and thirdly, it is to recognise marriage as an ‘equal economic partnership’ between the
husband and the wife, and to give weight to wife’s contribution to the acquisition of assets by way of
suitable legal mechanism.
Legislative approach and judicial pronouncements have resulted in amelioration of the
proprietary status of Hindu female. But the real point is missed and much remains to be done. An
analysis of the various relevant statutory provisions and judicial opinions reveals that the Hindu
female’s personal and proprietarystatusmore or less remains the same as it was before emergence of
the statutory era in Hindu law. Juristic efforts have been eclipsed by the socio-religious influence on
 Original paper was published in the Journal of the Indian Law Institute (JILI), Vol. 57, No. 4, 2015, pp.
500-523.
 Professor of Law, Commonwealth Fellow-UK and Vice-Chancellor, National Law University, Assam (Guwahati).
1 B. Sivaramayya, MATRIMOINAL PROPERTY LAW IN INDIA, 1sted. 1999, p. 112.
68
Hindu society. Eventually, property and personality are interdependent terms; while property as a
concept is inconceivable without person likewise personality is inconceivable without property. The
study of the legal systems of the world, ancient and modern, reveals one thing in common that the
females have been denied the proprietary status under all the male dominated legal systems, which
resulted in deteriorating their social status and reducing them into the ‘other’ class, definitely of
inferior human beings.
Under Hindu law, ancient and modern no author except Vijnaneswaraever advocated and
recognised full proprietary rights to females. In fact, Section 14 of the Hindu Succession Act 1956 is
the literal reproduction of Vijnaneswara’s rule that all property, howsoever acquired, shall become the
absolute property of Hindu female. During the British Indian legal history, the Privy Council
preferred the Dayabhaga rule limiting the proprietary independence of Hindu females and, thus,
Vijnaneswara’sview was thwarted to emerge and develop into a rule of law. The Hindu female’s
absolute right to property advocated by Vijnaneswara was judicially curtailed by the Privy Council
for the first time in 1866 in MussumatThakoorDeyhee v. Rai Baluk Rai.1
The aforesaid case was decided by the Judicial Committee of the Privy Council in order to
reconcile the then existing conflicting interpretations given to the texts of Dharmasastrason stridhan.
The Bengal School accepted the restricted interpretation of the text of Yajnavalkyawhich was finally
accorded approval by the Judicial Committee of the Privy Council and, thus, is born the concept of
woman’s limited estate which in 1937 was statutorily recognised in the Hindu Women’s Rights to
Property Act. The concept of Hindu woman’s limited estate gave rise to two types of property owned
by Hindu woman, viz., (i) woman’s limited estate; and (ii)stridhan. It was only in 1956 that the
concept of woman’s limited estate, a judicial creation, was undone by the statute of the Parliament of
Indian Republic in the form of the Hindu Succession Act 1956. Further amendments have been made
in the Hindu Succession Act 1956 by the Hindu Succession (Amendment) Act 2005 wherein the
daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as
the son and have the same rights in the coparcenary property as she would have had if she been a son
in the joint Hindu family governed by Mitakshara law. 2 The amendment is a welcome step towards
socio-legal and economic empowerment of Hindu daughters but it provides equal proprietary rights
only in the family of birth to a daughter whereas this amendment has nothing to do with proprietary
rights of a woman who is in marriage with a male coparcener of another family and contributes her
share in bearing and rearing of children and household works in the matrimonial home but gets no
proprietary rights as a legally wedded wife, though as a widow of her deceased husband, she becomes
her deceased husband’s class-I heir as specified in the schedule of Section 8 of the Hindu Succession
Act 1956 and being widow of pre-deceased son of her father-in-law and gets inheritance rights.
Efforts and attempts to bring about a viable change in the social status of Hindu females did not
succeed because the problem of female’s life-long tutelage has not been attended to in the right
perspective. Efforts can be made to analyse the English and the Indian (Hindu) legal system to
introduce a matrimonial property law where both the spouses should have an equal share in the
property either earned before marriage or on marriage or after marriage irrespective of the status being
male spouse, who he is a coparcener in the family of his birth, means that he is having an interest in
the ancestral property by birth, whereas a female spouse was not a coparcener in the family of her
birth before September 5, 2005 but now she, being a daughter is a coparcener in the family of her
birth, and she is a wife of a coparcener in the family of her marriage. On the death of her husband, she
steps into the shoes of her deceased husband as a widow of a coparcener and gets the same share
which her deceased husband would have taken had he been alive but during her husband’s life time
she has no proprietary right in the matrimonial home. The only right she has during her marriage
persisting is the right to get maintenance from her husband which is not even enough to survive with a
dignified life. If she divorces her husband because of any reason she gets nothing from her husband’s
property except permanent maintenance alimony. In the absence of clear law of maintenance, it is left
on the discretion of the court to decide what would be the amount of permanent maintenance alimony,
and for obvious reasons it depends upon the facts and circumstances of each case. Thus, in these
1. (1866) XI MIA 39.

2. Section 6, the Hindu Succession (Amendment) Act 2005.
69
circumstances it is desirable to have matrimonial property law in the country. In Matrimonial
property, legal recognition should be given to the economic value of the contribution made by the
wife through household work for purposes of determining ownership of matrimonial property, instead
of continuing the archaic test of actual financial contribution. 1 This research paper studies the strains
and stresses for introduction of new concept of ‘matrimonial property’ in the existing family system
where property is made an integral part of the marriage institution and it devolves on a person as per
the status he / she holds in the family.
Concept of Matrimonial Property
Until recent past matrimonial home was to be provided by the husband only. However, with
passage of time women are equally contributing in making of a matrimonial home therefore, a
matrimonial home should be recognized as belonging to both the spouses holding it as joint tenants.
The connotation of matrimonial home in the Indian context gives rise to a special problem within
Hindu law, namely, to what extent a joint family house (dwelling house) can be treated as a
matrimonial home. If the spouse’s share, capable of separate possession and enjoyment, is regarded as
a matrimonial home, the problem may assume an awkward, if not a serious turn, if a divorced wife
decides to exercise her right to live in the joint family house of the husband. 2 At present, no clear
answer is possible and it is left to the factual solutions and wisdom of the parties. It is hoped that the
existing legal system will meet the challenges of the occupants of the joint family house. The
prevailing approach of English law giving power to a court to adjust the assets is unsuited in India. It
involves time-consuming determination by the courts and fails to recognize marriage as an ‘economic
partnership with equal rights’. Hence, Indian law should make it clear who provides the matrimonial
home on marriage and within its ambit which property should be recognised as ‘matrimonial
property’ subject to equal distribution on dissolution of marriage by divorce or death.
An attempt to define ‘matrimonial property’ was made by the legislators while amending and
codifying the law of marriage among Hindus in the form of the Hindu Marriage Act 1955 and to
regulate the property acquired at or about the time of marriage of a spouse. While doing so, the
Section 27 of the Hindu Marriage Act provides that in any proceeding under this Act, the court may
make such provisions in the decree as it deems just and proper with respect to any property
presented, at or about the time of marriage, which may belong jointly to both the husband and the
wife. However, any matrimonial matter comes before the court; it is difficult for the court to make a
decision with respect to the property under this Section as the source of property is very narrowly
designed by the legislators. Wherein several conditions need to be fulfilled to determine whether the
property is ‘matrimonial property’ in accordance with the construction of the section such as the
property ‘may’ belong jointly to both the husband and the wife; and the property must be presented ‘at
or about the time of marriage’.
As property presented at or about the time of marriage indicates that the relatives, friends, family
members, colleagues and well-wishers have given it in the form of gifts to the bride or the bridegroom
at the time of marriage or some gifts are given by the parents and relatives after marriage on different
occasions which are also included in the purview of ‘matrimonial property’ though the acquisition of
this property in form of gifts did not involve any labour of either or skill of the two spouses. The
intention of the donor is given importance with respect to such properties and hence, the property
belongs to both the spouses, as part of the ‘matrimonial property’ which may be divided equally
between them at the time of dissolution of their marriage. In case the donor intended to gift the
property to either of the two spouses, then it is considered as the separate property of such spouse and
is not subjected to division between them. Therefore, the use of ‘may’ rather than ‘shall’ has been
taken into consideration by the legislators in Section 27 of the Hindu Marriage Act 1955. Hence, the
present Section 27 of the Act does not serve the purpose to introduce ‘matrimonial property’ in the
matrimonial home where both the husband and the wife are sharer to it on the dissolution of their
marriage, if such situation emerged among them; and it shall provide equal economic support to the
parties on divorce.
1 Indira Jaising, “Women’s Inheritance Rights in Contemporary Jurisprudence”, Nitya Rao and Luise Rurup (eds.), A
JUST RIGHT : WOMEN’S OWNERSHIP OF NATURAL RESOURCES AND LIVELIHOOD SECURITY. 1sted.
1993, pp. 110-21.
2 B. Sivaramayya, MATRIMONIAL PROPERTY LAW IN INDIA, 1sted. 1999, p. 83.
70
In addition to an attempt to define ‘matrimonial property’ under Section 27 of the Hindu
Marriage Act 1955, the ‘matrimonial property’ shall consist of property-moveable and immovable and
acquired by the spouse(s) at or about the time of marriage. It indicates clear intention of the
legislators that the property in its any form presented at or about the time of marriage must be
considered the property jointly owned by both the husband and the wife. Hence, the legislators did not
include the property which is inherited at or about the time of marriage or inheritable by both the
spouses within the purview of this section and also the property acquired either both the spouses or
either of them after their marriage. While making this attempt for the first time, the legislators have
not even thought of the contribution of the wife in making of household, who spends her life in taking
care of the household and family, indirectly contributes towards the acquisition of a lot of properties.
Her contribution forms the base of the family and provides opportunity to the other earning members
in the family to acquire such properties. However, the level of contribution differs from household to
household. Therefore, a wife’s non-economic contribution must be recognised in law and the property
acquired by the husband during marriage must be made jointly owned property of both the husband
and the wife. If, for any reason, they decide to divorce in future, the property so acquired, must be
divided on divorce equitably, was the intention of the legislators while designed Section 27 of the
Hindu Marriage Act.
An initiative was taken by the Maharashtra Legislative Assembly to provide equal share to
women in the ‘matrimonial property’ at the time of dissolution of marriage by the introduction of
‘Matrimonial Property (Rights of Women upon Marriage) Bill 2012’. Wherein the Bill defines
‘matrimonial property’ to include ‘self-acquired properties-moveable and immovable, husband’s
property, agricultural land along with pensions, provident fund’ is a welcome step of the government
of Maharashtra but we need to wait until this Bill becomes the real law.
Judicial Approach on Matrimonial Property Law
The phrases used in the Section 27 of the Hindu Marriage Act ‘may belong jointly to both the
husband and the wife’ and ‘at or about the time of marriage’ have created scope for contradictory
interpretation as used by the courts in adjudication of justice. Eventually, the courts have interpreted
these phrases differently while executing matters on Section 27 of the Hindu Marriage Act.
In Surinder Kaurv.MadanGapal Singh,1 the Punjab and Haryana High Court held that the
following to be indispensable for any proceeding to be governed by section 27 of the Act that (i) the
application for disposal of property must be made at the time when the matrimonial proceedings are
pending in the court and before the judgment has been pronounced; (ii) it is not obligatory on the part
of the court to admit such an application. It is discretionary on its part; (iii) the decree made under
the section concerned by the court must be just and proper giving importance to the adjustment of the
share of the parties; (iv) the property which has been presented ‘at or about the time of marriage’,
includes not only the property which has been given to the spouses at the time of marriage but also at
any time before or after the marriage. The most essential condition here is that the property must
have been given to the spouses in relation to the marriage and close to the time of marriage. The time
duration is of importance here; (v) the concerned property may be given to either of the two spouses
or both of them jointly; and (vi) when the matter is brought before the court of competent jurisdiction,
the property concerned must belong to either of the two spouses or jointly to both of them.2
In Surinder Kaurv.MadanGapal Singh,3 the High Court has interpreted the term ‘belong’ to mean
and associate with the property and not merely ownership of the same irrespective of whether the
concerned party has title over the property. The court had interpreted the term as if the property which
has been given to either of the spouses individually or jointly to both of them in the given time-limit,
the court has the discretion to adjudicate on the same within the ambit of this Section. The court
further observed that irrespective of the source of the property, ‘the nature of the property, intention of
the donor or by the agreement of the spouses’ is given importance to decide whether Section 27
governs the property. To exemplify, if a property is meant for joint use by the spouses, then the
property belongs to them jointly, irrespective of the fact that it is owned by one of them exclusively.
1. AIR 1980 P&H 334.

2. Id., para 7.
3. AIR 1980 P&H 334.
71
The court further observed that a property belonging to the spouses jointly is different from the
property which was received by the spouses jointly. 1 In Sunita Shankar Salvi v. Shankar Laxman,2
where the marriage was dissolved by mutual consent of the parties and the parties of divorce petition
were living in the flat which was registered in the joint names of the wife and the husband, the Family
Court held that the flat is to be divided equally between the husband and the wife. When the matter
was brought before the Bombay High Court in appeal, the High Court upholds the decree of the
Family Court and observed that the wife has 50% right, title and interest in the said flat jointly owned
by both of them.
In KamtaPrasadv.OmWati,3 the Allahabad High Court held that the court can pass a decree with
respect to any property which is owned by either the husband or the wife in addition to the property
owned by both of them jointly.4 The court further held that the provision gives power to the court to
deal with both types of properties, belonging to either of them and both of them jointly, and the power
is not restricted to the properties owned by both of them jointly. 5 In Hemant Kumar v.Laxmi Devi,6 the
Allahabad High Court held that property owned by either the husband or the wife would be covered
under this Section ‘provided that it was presented at or around the time of marriage’. The Court
stressed on the use of the term ‘may’ and not ‘must’, the latter being obligatory in nature. The use of
the term ‘may’ in the phrase suggests that the property exclusively owned by one of the spouses is not
excluded. 7 For any property to be governed by this Section, it is necessary that the same was
presented to the parties in relation to marriage and not otherwise. 8 On the contrary, in Shuklav.Brij
Bhushan,9 the Delhi High Court held that the court does not have the power under Section 27 of the
Hindu Marriage Act to pass a decree with respect to any property owned by either the husband or the
wife exclusively.10
In Krishnanv.Padma,11 the Karnataka High Court interpreted the term ‘at’ as referred in Section
27 of the Hindu Marriage Act to mean ‘actual time of marriage’ and the word ‘about’ to mean ‘near
or roundabout’ the time of marriage and not subsequent to the marriage. The court further cautioned
not to confuse the property given to spouse at the time of marriage with property given after
marriage.12
In Balkrishna Ramchandra Kadamv.Sangeeta Balkrishna Kadam,13 the Supreme Court of India
held that property under this section would not be restricted to property given to a spouse at the time
of marriage only but would also include property given to the spouse at the time of marriage, whether
before and after marriage. The Supreme Court specified that the property must be given in relation to
the marriage. 14
On the contrary, in Surinder Kaurv.Madan Gopal,15 the court has interpreted the term to include
the property which was given to the parties prior to or after the marriage. The property as
contemplated by Section 27 of the Act is not the property which is given to the wife at the time of
marriage only. It includes the property given to the parties before or after marriage also, so long as it
relates to marriage. In Kamalakar Ganesh Sambhusv.TejasKamalakarSambhus,16 the Bombay High
Court held that the provision does not govern the property which was acquired by the parties by their
joint efforts during their marriage and deals with the property which was presented at or about the
1. Id., para 11.

2 AIR 2003 Bom 431.
3. AIR 1972 All 153.
4. Id., para 3.
5. Id., para 6.
6. AIR 2004 All 126.
7. Id., para 21.
8. Vijender Kumar (rev.), John D. Mayne, TREATISE ON HINDU LAW & USAGE, 17thed. 2014, p. 536.
9. AIR 1982 Del 223. See also Amarendranath Sanyal v. Krishna Sanyal 1993 (1) HLR 578.
10. Id., para 2.
11. AIR 1968 Kant 226.
12. Id., para 18.
13. AIR 1997 SC 3562 : (1997) 7 SCC 500.
14. Id., para 13.
15. (1970) 80 Bom LR 384.
16. AIR 2004 Bom 478.
72
time of marriage.1 Thus, it can be seen from different judicial pronouncements that the courts have
interpreted the terms in a contradictory manner leading to ambiguity.
Where wife claimed return of gold and silver ornaments given to her by her parents and
application for recovery of said stridhana was filed under Section 27 of the Hindu Marriage Act and
Sections 4 and 151, Order 7, Rule 7 of the Civil Procedure Code, the claim was allowed as all
provisions of Code of Civil Procedure are applicable to matrimonial proceedings under the Act. 2
Similarly in Sangeeta B. Kadam v. Balkrishna Ramchandra Kadam,3 the claim of wife for disposal of
property on divorce which included gold and silver ornaments presented to her at the time of marriage
and the claim was not opposed by the husband, the Family Court has jurisdiction in the matter and the
wife was returned the ornaments so claimed. However, efforts were made by the wife to prove that
her stridhana was lying with the husband and a list of articles was enclosed with the petition which
was not signed by the husband or his parents, the cognisance could not be taken as the same had not
been proved with reliable evidence. Hence, an application of the wife was rejected. 4
In Pratibha Rani v. Suraj Kumar,5 the Supreme Court of India observed that neither Section 27
of the Hindu Marriage Act 1955 nor Section 14 of the Hindu Succession Act 1956 go to the extent of
providing that the claim of a woman on the basis ofstridhana is completely abolished. The Section 27
of the Hindu Marriage Act does not in any way take away the right of the wife to file a criminal
complaint if the property belonging to her is criminally misappropriated by her husband.
Women and Inheritance Rights
In India, property rights including inheritance rights are attached with the institution of marriage
wherein different laws are applicable to marriage of persons belonging to different religion, faith and
spiritual traits. The Hindu law of intestate succession is governed by the Hindu Succession Act 1956
though Section 30 of the Act provides substantive law of testamentary succession but procedural law
of Will is laid down in the Indian Succession Act 1925. The Muslim intestate succession is governed
by Quaranic law and testamentary succession is governed by the Indian Succession Act 1925 whereas
intestate and testamentary successions of Christian and Parsi are governed by the Indian Succession
Act 1925. Therefore, inheritance and succession laws are well settled wherein a woman is provided
with property rights in the matrimonial home but these rights are subject to some or the other
incidence to happen then only these rights are put into execution otherwise remain suspended rights.
However, there is no property right in the matrimonial home where wife gets property right by virtue
of being married to a male member of the family of her husband reason being there is no matrimonial
property law per se in existence. A woman in marriage gives birth to a male or a female child, the
child so born becomes coparcener under Mitakshara Hindu law and gets an interest by birth in the
coparcenary property of his or her father but the woman who has given birth gets no property right by
virtue of marriage or being mother of a coparcener. However, on being widow, she gets inheritance
rights from her deceased husband and / or if her husband predeceased his father, she becomes an heir
to her father-in-law and on his intestacy she gets inheritance rights.
Property Rights of Muslim Women
Under Muslim law, both Sunni and Shira, a daughter though a quranic sharer can be excluded by
customs and statues.6 Though at variance with the quranic principles, these customs are valid and
treat a daughter as non-existent at the time of opening of the intestate succession. In some
communities in Jammu and Kashmir, a daughter can succeed only in the absence of all male agnates
of the deceased, while in other states she can inherit only if she is a Khananashin.7 A daughter is also
not entitled to inherit the watanland under theWatan Act 1886 (Bombay). The Oudh Estates Act 1869
that follows the rules of primogeniture for devolution of the taluqdariproperties also excludes the
1. Id., para 3.
2 Manish Nema v.Sandhya Nema AIR 2009 MP 108.
3 AIR 2005 Bom 262.
4 Renu v. Rakesh Kannojia AIR 2013 Utr 1.
5 AIR 1985 SC 628 : (1985) 2 SCC 370 : (1985) 3 SCR 191.
6 A childless widow, in absence of all other relations of the deceased, only can inherit his total property following the
doctrine of Radd (Return); See also Abdul Hamid Khanv. Peare Mirza AIR 1935 Oudh 78.
7 Iqbal Ali Khan (rev.), D. F. Mulla, PRINCIPLES OF MAHOMEDAN LAW, 20thed. 2013, p. 63.
73
daughter and her heirs.1 In Sheikh Madar v. Kursheeda Begum,2 the trial court and the Andhra
Pradesh High Court, both affirmed and held the principle of Muslim law of inheritance under Hanafi
law that the residuary can get a share on partition if the property is left after distributing it to the
sharer which constitutes the first category of property inheritors. Wherein the wife of the deceased,
who basically stated that both the daughter and the other relatives, who constitute the Residuaries
cannot ask for a share simultaneously. The same was held by both the trial and High Court not to be
true as the learned Bench stated that if after giving the share to the daughter any share is left then the
Residuary would definitely be entitled for the same. The reason for the same was that the daughter
and the Residuaries were demanding for the share on partition simultaneously which did not give a
ground to the wife of the deceased, i.e., the widow to refuse the share of the Residuary. It was also
stated that if the share which is to be divided is equal to unity then the Residuaries would not be
entitled to a share but if the share to be divided is less than a unity then the sharers would inherit the
property first and then later the Residuaries would share the rest of the left over property.
In Kulusumbiv. Aziza Begum3 it was held that the property inherited by the widow on the death of
her husband cannot be divested on her re-marriage. The facts of the case are that on the death of
Osman Pasha (husband of Aziza begum), Aziza Begum got a right to her 1/8 th share as his sharer
along with the mother, brother and sister of Osman Pasha and her first husband. These shares had
their shares specifically carved out in accordance with the provisions of Hanafi law. The relatives of
the deceased claimed that since the widow has now remarried, therefore she had evil intention in the
first place and on the same basis a presumption was contended that collusion would have taken place
between the widow and the killer of her husband. The same was thrashed by both the trial and the
Karnataka High Court held that the position of the property already inherited by the wife would not be
affected as per the Hanafi School of law. Hence, the Court held that “a vested inheritance is the share
which vests in an heir at the moment of the ancestor’s death. If the heir dies before distribution, the
share of the inheritance which has vested in him will pass to such persons as are his heirs at the time
of his death. The shares therefore are to be determined at each death”.4 In Taufeeq Hassan v.Dr.
Khurshid Ara Begum5and Syed Fateyab Ali Meerzav.Union of India6similar principles relating to both
Hanafi and Shia law of inheritance were affirmed where daughters, whether married or unmarried
were in consideration.
Property Rights of Christian Women
The property rights of Christian women are laid down in the Indian Succession Act 1925. The
authoritative case which deals with property rights of Christian women is the case of Mary Roy v.
State of Kerala7 where it was laid down that daughter is entitled to equal share in property of the
father and will get the equal amount of share which is given to the son. Women who are entitled to
receive property by interstate succession under Christian law: the daughter is entitled to part of the
2/3rd share which is left behind for the lineal descendants. It is equally distributed between male and
female relatives. The practice of Christian daughters executing release deeds at the time of marriage
so as to get them excluded from succession may not achieve the desired result, because only if there is
a pre-existing right it can be conveyed. In case of a Christian daughter, she has no pre-existing right in
the family property and her rights arise when her parents die intestate. Therefore, a release deed
executed after the date of intestacy alone would be valid. Whereas, an adopted daughterhasnostatutory
recognition for her adoption under any statutes applicable to the Christians in India though in the
Indian Succession Act 1925 takes care of intestate and testamentary successions among Christian. An
adopted child cannot claim the right to succession unless a custom of adoption can be proved. If
proved, then adopted daughter equal to a real daughter and can claim share and gets equal share as
that of the son. As for Christian widow, the Sections 33 and 33-A of the Indian Succession Act deal
1 Ghulam Hassan v. Mst.Saja, AIR 1984 J&K 26, Mohammad Zia-Ullah v. Rafiq Mohammad, AIR 1939 Oudh 213;
Abdul LatifKhanv. Mt.Abadi Begum AIR 1934 PC 188.
2 2005 (5) ALD 818, 2005 (5) ALT 591.
3 ILR 1986 Kant 4027, 1986 (2) KarLJ 388.
4 M. Hidayatullah (rev.), D. F. Mulla, PRINCIPLES OF MOHOMEDAN LAW, 17thed. 1972, p. 53.
5 2006 (3) ALD 494.
6 2006 (3) CHN 407.
7 AIR 1986 SC 1011 : (1986) 2 SCC 209 : (1986) 1 SCR 371.
74
with succession to widows. If the heirs of the deceased are the widow and lineal descendants, then,
the widow receives a 1/3rd share, while the balance of 2/3rd goes to the lineal descendants. If the
intestate has no lineal descendants, but has left persons who are of kindred to him, ½ of his property
shall belong to the widow and the other ½ shall go to those who are of kindred to him. If the intestate
has left none who are of kindred to him, the whole of the property shall belong to the widow. A
widow may be excluded from inheritance by a valid contract made before her marriage.
Property Rights of Parsi Women
The property rights of Parsi women are governed by the succession laws initially laid down in
the Parsi Interstate Succession Act 1925 which was later incorporate in Chapter-III, Part-V, (Sections
50-56) of the Indian Succession Act 1925. Women under the Parsi law are entitled to receive
property by interstate succession. 1 However, the underlying criterion for receiving property under
Parsi law is that the person should be a part of the Parsi community. Children of Parsi fathers by non-
Parsi women are admitted into the Zoroastrian religion and governed by the Parsi succession laws.
However, children of Parsi women married to non-Parsis males are not considered Parsis and have no
right under Parsi law.2
There is no restriction imposed on a Parsi man, if he wants to give away his property and women
have been given no right to object to such an action. Women, who are entitled to receive property by
interstate succession under Parsi law, a daughter gets ½ the share of a son in the property of the father.
If a Parsi woman dies interstate, her property is divided equally among her husband and children.
Therefore, a daughter is entitled to equal share in the property of her mother. Among Parsi adoption
per se is not recognised by custom or law for the purposes of inheritance and succession. However, a
Parsi widow without any children can adopt a son on the 4th day of her husband’s death. This is for the
temporary purpose of performing certain religious rites for the dead man. This adoption is for a
limited purpose and does not grant any property rights on the adopted ‘palak’. In case of a Parsi
widow, she has in the property of her deceased husband an equal property right to that of a son and
twice the share of a daughter. If a person dies interstate leaving only a widow and no lineal
descendants, the widow can take ½ of the property. If there is any widow of lineal descendants, the
widow and the widow of the lineal descendant must each be given 1/3 rd of the property. In such cases
the remaining property shall be distributed among the remaining relatives of the deceased. However,
if she remarried during the lifetime of her husband, she is not entitled to any share in his property
Property Rights of Hindu Women
The Hindu Succession Act 1956 provides provisions for two entirely different schemes of
intestate succession based on grounds of the sex which are distinct from each other. 3 There is further
divergence in case of female intestates linked with the source of the property that is the subject matter
of inheritance. Thus, where a woman inherits property from her patents and dies issueless, this
property on her death does not go to her own heirs but goes to the heirs of her father. Similarly, where
she inherits the property from her husband or her father-in-law, on her death this property goes to her
husband’s heirs from whom or from whose father she had inherited the property. The sub-division of
the schemes of succession in case of female intestate is outdated and irrational. The heirs are not
described as brother, sister, her brother-in-law etc., but as heirs of her parents, and heirs of her
husband. She is perceived to have no identity of her own. The legislature while framing this scheme
was very much influenced by the whole Mitakshara law, its concepts of stridhana and inheritance by
female in double capacity. This reversion of the once-inherited-property back to her father’s or her
husband’s heirs shows a desperateness on the part of the legislature to treat her only as a temporary
occupier.
The Hindu Succession (Amendment) Act 2005 and Hindu Daughters
Under Shastric Hindu law the male heirs were put on a higher footing by providing that they
shall inherit an additional independent share in the coparcenary property over and above what they
inherit equally with female heirs on intestacy, the concept of coparcenary was that of ‘an exclusive
right of male members in the family’. Now this concept has changed while introducing daughters of a
1 Shailendra Jain and Peeyushi Diwan (rev.) Paras Diwan, HINDU LAW, 2nded. 2005, pp. 228-229.
2 Ibid.
3 Sections 8-13 of the Hindu Succession Act 1956 provide provisions for male intestate succession; whereas Sections
15-16 provide provisions for female intestate succession.
75
coparcener as coparcener by statutory amendment, if the family is governed by the Mitakshara law.
However, even today, after the new law came into force on September 5, 2005 coparcenary remains a
primary entitlement of male members; no doubt law provides for equal division of share between all
heirs, male and female on the death of a male coparcener, but in practice the scene is totally different.
Legally, on intestacy self-acquired property devolves equally between male and female heirs but
female heirs are asked to relinquish their share by making relinquishment deeds. Before the
amendment of 2005, if the intestate property includes a dwelling house, the female heirs had no right
to partition until the male heirs choose to divide their respective shares but now the situation is
different as the daughters are made coparcener, so they can ask their share on partition from the
dwelling house property, if they wish to do so. Further, if a Hindu female dies intestate but issueless,
then her property inherited by her on the intestacy of her parents the property devolves first on the
heirs of her father, then on her mother’s heirs; if the property inherited by her on the intestacy of her
husband or father-in-law the property devolves first to husband’s heirs, then to husband’s father’s
heirs respectively; thus the intestate succession of Hindu female property is kept within the father’s or
husband’s domain. By retention of Hindu joint family system and introducing daughters as
coparceners, the legislative efforts to usher in gender parity have resulted in abundant confusion.
Under the classical law, a female could not be a coparcener, but a daughter born in the family was a
member of her father’s joint family. Upon her marriage she ceased to be a member of the joint family
of her father and joined the joint family of her husband. The Supreme Court in Kamesh Panjiyarv.
State of Bihar1 held that a bride leaves the parental home for the matrimonial home, leaving behind
sweet memories therewith a hope that she will see a new world full of love in her groom’s house. She
leaves behind not only her memories but also her surname, gotra and maidenhood. Presently, under
the amending Act of 2005 wherein a daughter is made a coparcener in the same manner as that of a
son, i.e., irrespective of her marital status now she is a member of her father’s coparcenary and
member of the husband’s joint family. The anomaly is on two counts: first, a daughter who has
married on the day the amendment came into force would not be a member of her father’s joint family
as upon marriage a daughter cease to be a member of her father’s joint family, but due to the
amendment she would become a member of a narrow institution within the undivided family, i.e.,
coparcenary. Secondly, the retention of the Hindu joint family system with a superimposition by way
of introduction of daughters as coparceners, without fundamentally altering the basic structure, is
perplexing. A daughter who is born in the family will be a coparcener and a member of the joint
family of her father. She retains her rights to be coparcener even after her marriage, and consequently,
upon her marriage, she would be a member of the joint family of her husband. Consequently, the
amendment has created dual membership jurisprudence whereas this incongruous situation could have
been avoided by a simple abolition of the Hindu joint family system.
A female under Hindu law inherits in a double capacity. She inherits as a daughter from her
parents and also inherits as a daughter-in-law from her husband’s family. As far as the rights of the
daughter-in-law are concerned, she has to be a widowed daughter-in-law.2 If she remarries before the
day of opening of the succession she forfeits her rights of succession and if her husband is alive she is
his wife, and the primary right of inheritance is with him and not with her, and therefore a daughter-
in-law simpliciter is not eligible to inherit at all from any of her relatives.
Different Models of Matrimonial Property followed across the World
In the western countries, if the spouses were married without any provision concerning
matrimonial property law, the default statutory system of a limited community property is applied. 3 In
this system, only property acquired during the marriage is held in common, although gifts and
inheritances acquired during the marriage are the separate property of each spouse. 4 Community
property belongs to both spouses jointly, although each spouse is able to make ordinary acts of
administration of community property. However, important transactions relating to this kind of
1 AIR 2005 SC 785 : (2005) 2 SCC 388.

2 Section 24 of the Hindu Succession Act, although this Section has been deleted by the Amending Act of 2005, yet the
effect remains the same.
3 Carolyn Hamilton & Alison Perry, FAMILY LAW IN EUROPE, 2nded. 2002, p. 260.
4 C. Civ. 1402 (France).
76
property need the consent of both spouses.1 Importantly, when the record of marriage mentions that a
marital agreement has not been made; third parties may assume that spouses have been married under
the default statutory regime of limited community property. 2 However, this rule is not applied if the
spouses have declared, in the transaction entered into with a third party, that they had made a marital
agreement.3
The freedom of contract in the field of marital agreements is very well-developed in French law,
especially when compared to the other European countries. 4 In their marital agreements, spouses in
France may choose one of the property regimes mentioned by the Civil Code, but may also modify
the rules of these regimes: spouses may mix different regimes and are even able to establish new
regimes that are not recognized by the law.
Finally, in their marital agreements, spouses may make provisions for a spouse's death.
Specifically, they may decide that the surviving spouse be authorized to receive from the common
property “either a specified sum, or a specified property in kind, or a specified quantity of a
determined kind of property”.5 Such a provision does not affect the rights of the surviving spouse
under inheritance law. 6 Expenses arising during the marriage may also be allotted to each spouse by a
marital agreement. 7
While European matrimonial property law is codified in each country’s civil code, the American
tradition of freedom of contract provides spouses with the power to contract around state statutory law
on the subject. Americans are therefore not restricted to the property regimes laid out in statutes,
whether community property or equitable distribution, and may contract around them subject to few
limitations by the court. In fact, spouses may even import into their agreements any of the European
property systems, such as a system of accruals. Meanwhile, Europeans are often limited to selecting
one of the property regimes statutorily permitted in their countries. Although this permits them to
avoid the statutory default, they must nonetheless select one of the regimes recognized by law. Only
occasionally may spouses alter the rules of those European systems. Americans therefore enjoy more
autonomy in premarital contracting relative to Europeans. These differing levels of contractual
autonomy have differing consequences.
Further, there are various models of ownership of matrimonial property have been adopted and
implemented in accordance with their societal needs. However, each model has its own merits and
demerits, the researcher would unfold them in the following paragraphs :
Separate Ownership of Property
In this model, there is separate ownership and administration of property, irrespective of whether
the property was bought before or after the marriage. The property owned by a spouse is retained by
him / her even after dissolution of the marriage. Whereas the other spouse does not get a share in it at
the time of dissolution of the property, in effect, the property owned by a spouse is retained by him /
her as its sole owner, and the other spouse has no right in that property after dissolution of the
marriage.
This system was adopted in England8 to protect the wives whose husbands got half of her
property in accordance with the communal ownership of property which was followed there earlier.
Following passing of the Marriage Women’s Property Act 1882, an individualist approach with
respect to ownership of property was taken in order to benefit the women who, in the nineteenth
century, were at a disadvantage due to losing half of their estate to their husbands. 9 Further, the

2 The record of marriage is a certificate given to the spouses and serves as proof that they are married.
4 Walter Cairns & Robert McKeon, INTRODUCTION TO FRENCH LAW, 1995, pp. 52, 69.
7 According to article 214 of the French Civil Code, when spouses do not regulate this matter, they shall contribute to
the marriage expenses in proportion to their respective means. See C. Civ. 214 (France).
8. The Married Women’s Property Act 1882.
9. Lucky Ann Buckley, Matrimonial Property and Irish Law : A Case for Community, NORTHERN IRELAND LEGAL
QUARTERLY, Vol. 53, 40 (2002).
77
husband got right to enjoyment, possession, income and management of his wife’s property. 1
Presently, the Courts have been given wide discretion with respect to the division of matrimonial
property. 2 The wide ambit of power of discretion, with respect to the division of matrimonial property
at the time of dissolution of marriage, given to the English Courts produces tailored results for each
case. This model assumes that both the spouses are financially independent and are having equal
capability to accumulate wealth. 3
The spouses share the company of each other but with respect to property, neither of them can
claim a share in the property of the other. This model promotes individualism which goes against the
basic principles of the Hindu family system. The dependent spouse has no individual standing. The
dependent spouse has no source of income after termination of marriage and this model leads to
detriment of such spouse. This model is thus not suitable to the Indian social scenario especially
Hindu family system.
Community Ownership of Property
In this model, the property is assumed to common between the spouses and both have equal share
in the same. This model is based on the assumption that the marriage is a partnership of spouses and
both contribute equally to the common fund through which properties are bought. This assumption
holds even when one of the spouses takes care of the house, which in most of the cases is the female.
Both spouses are joint and equal owners of the properties irrespective of the fact that title of the
property belongs to one of them. 4 Here the contribution of the female partner is given its due
importance and is not neglected as being of no significance. Further, this provides financial security to
the non-working spouse. This model promotes equality between the spouses and thus several
countries like Sweden 5 implemented this system to provide financial security and promoted equality
between the spouses.
In France, community ownership of matrimonial property is followed in case the parties do not
enter into a contract specifying the division of property in case of termination of their marriage. Three
kinds of funds exist in the French marriages, viz : (a) husband’s fund (husband’s separate property);
(b) wife’s fund (wife’s separate property); and (c) community fund (collective property).6 The
husband’s fund and wife’s fund referred to the property owned by the husband and the wife
respectively before their marriage, whereas the community funds include the property owned by
either of them after their marriage. 7 The marriage is considered to be a contract in which the spouses
are given the freedom to decide the fate of their respective properties and their collective property.
They can mutually decide the financial agreement or the arrangement which would govern their
properties and their division at the time of dissolution of the marriage or death. In case they do not
mutually come to a conclusion then the ‘legal regime’ according to Article 1400 of the Civil Code is
applicable. The joint property of the spouses is subjected to the debts and liabilities of the parties save
in case of fraud by any of the spouses. 8 The joint property comprises of the properties bought due to
their joint or individual efforts during the subsistence of their marriage. 9 The right to manage this
property is held by both of them. Each spouse has full control over his / her separate property and this
property cannot be subjected to the debts of the other spouse. 10
Thus, this model gives autonomy to both the spouses with respect to their individual properties,
while at the same time they have equal rights over the joint property. This provides financial security
1. Mary Ann Glendon, Matrimonial Property : A Comparative Study of Law and Social Change, 49 TUL. L. REV. 21, 26
(1974-1975).
2. Charman v. Charman (No. 4)[2007] 1 FLR 1246 para 124.
3. Ibid, p. 143.
4. Carolyn J. Frantz, Hanoch Dagan, Properties of Marriage, COLUMBIA LAW REVIEW, Vol. 104 No. 1 125, 75-133
(2004).
5. Bradley, Marriage, Family, Property and Inheritance in Swedish Law, (1990) 39 ICLQ, pp.370, 371-374.
6. Lucky Ann Buckley, Matrimonial Property and Irish Law : A Case for Community, NORTHERN IRELAND LEGAL
QUARTERLY, Vol. 53, 40 (2002).
7. Mary Ann Glendon, Matrimonial Property : A Comparative Study of Law and Social Change, 49 TUL. L. REV. 21, 26
(1974-1975).
8. Frédérique Ferrand and Bente Braat, National Report: France, NETHERLANDS, September 2008.
9. Article 1401 of the French Civil Code.
10. Ibid, Article 1428.
78
to the dependent spouse, whose work, though not recognised in economic terms but is indispensable
for the efficient and successful working of the other spouse.
Model best suited for Indian Scenario
India follows the separate ownership model of matrimonial property distribution. This model
does not recognise the contribution of the non-working spouse, who in most of the cases is woman. 1
In 2002, the statistics were dismal as the participation of women in economic activity was as low as
14.0% and 28.1% in the urban and rural areas respectively. In 2012, the situation has not changes
much. The workforce participation of women in India is as low as 13.8% in urban areas and 26.1% in
rural areas.2 This reflects the persisting patriarchal system in the society. Thus, most of women in
India are home makers. Since their contribution cannot be measured in monetary terms, their work is
not given its due importance. They are economically dependent on the male spouses. In the Census of
2001, they were equated with prostitutes, beggars and prisoners and were qualified as non-workers.3
This drew criticism from Supreme Court in Arun Kumar Agrawal v.National Insurance Co. Ltd.4
where Justice A. K. Ganguly opined that ‘they participate in the production of goods and services but
their consumers are family members, so they do not earn in monetary terms. Due to this, their work is
not valued’. The court held that it is unfair and undignifies a homemaker’s work. The court further
questioned the rationale behind equating the homemakers work with one third of the earning spouses’
salary. While Justice G. S. Singhvi opined that “it is highly unfair, unjust and inappropriate to
compute the compensation payable to the dependents of a deceased wife/mother, who does not have
regular income, by comparing her services with that of a housekeeper or a servant or an employee
who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and
children cannot be equated with the services of an employee, and no evidence or data can possibly be
produced for estimating the value of such services.”5
Community ownership of matrimonial property provides women with financial security. Further,
equal division of matrimonial property promotes a sense of equality in their relationship and it
decreases the tendency of a spouse to look at the property through the lens of ownership. 6 Such
practice leads to domination, which is the reason behind persisting patriarchal society in India.
Women are subjected to physical and mental torture in many parts of the country. The work of a home
maker is as important as income of the working members of the family. The gender biasness in
society has led to degradation of position of women in the society as a whole. Such callous approach
towards their work contributes to women oppression in the society. 7 Due to their complete financial
dependency on the other spouse, they do not file suit for termination of their marriage as they would
be left homeless without any source of income.
Thus, India should follow the community ownership of ‘matrimonial property’ replacing the
existing separate ownership of property. This would help overcome the oppression of women and
would empower them. This is the need of the hour for the Indian society which needs to disentangle
itself from the clutches of the male dominated society.
Disposal of Matrimonial Property between the Spouses
1. Barun Kumar Mukhopadhyay and Prasanta Kumar Majumdar, Status of Gender-Differentials and Trends in India
Population, Health, Education and Employment, accessible at
www.isical.ac.in/~wemp/Papers/PaperBarunKM&PKM.doc. (Visited on October 17, 2015).
2. Women and Men in India 2012, 14th Issue, National Statistical Organisation, Ministry of Statistics and Programme
Implementation, Government of India, p. xxiii.
http://mospi.nic.in/mospi_new/upload/women_men_2012_31oct12.pdf(Visited on October 17, 2015).
3. J. Venkatesan, Assess value of Homemaker Services properly : Court, THE HINDU, July 23, 2010
http://www.thehindu.com/news/national/assess-value-of-homemaker-services-properly-court/article530178.ece
(Visited on October 17, 2015).
4. AIR 2010 SC 3426 : (2010) 9 SCC 218.
5 J. Venkatesan, Assess Value of Homemaker Services properly : Court, THE HINDU, New Delhi, July 23, 2010
6. Carolyn J. Frantz and Hanoch Dagan, Properties of Marriage, COLUMBIA LAW REVIEW, Vol. 104 No. 1 104, 75-
133 (2004).
7. J. Venkatesan, Assess Value of Homemaker Services properly : Court, THE HINDU, New Delhi, July 23, 2010
79
Justice M.B. Shah, judge of Bombay High Court Bench at Goa, commented that the incidents of
atrocities committed on women in Goa are very less as compared to other states in the country. 1 In
Goa, personal matrimonial laws, as applied throughout the country, are not applicable. It follows the
Portuguese Civil Code 1867 which provides uniform civil code for everyone. According to this Code,
registration of marriages is compulsory. Marriage is considered to be a contract as opposed to a
sacrament in Hindu law. The parties are at liberty to decide mutually as how their properties would be
divided at the time of dissolution of their marriage. In case they do not decide, the law of community
property is applicable. According to this Code, both the spouses are joint owners of their properties as
a whole. Further, their properties are divided equally between them at the time of dissolution of their
marriage.2 Thus, it provides women with financial resources at the time of termination of her
marriage, as opposed to currently applicable ‘separation of assets’ law, according to which wife does
not have any right to her husband’s properties.
Taking inspiration from the law applicable in Goa and France, the matrimonial property in India
should be equally divided between the spouses to promote equality among the spouses and empower
the women to stand on their own feet. Equal share in the matrimonial property provides financial
security to women who devote her life towards taking care of the family and contributing indirectly
towards the development and progress of the family.
Prenuptial Agreement of Marriage
The registration of marriage as provided under Section 8 of the Hindu Marriage Act 1955 and
has been held by the Supreme Court in Seema v. Ashwani Kumar3casethat the registration of
marriagemust be made compulsory as it would serve as an evidence of the marriage and would help
the women in seeking matrimonial remedy, though, in spite of some of the states have made law in
this regard, yet the registration of marriage remains futile. To achieve desired result of registration of
marriage which has not been fulfilled yet, the alternative would be prenuptial agreement of marriage.
Prenuptial agreements are agreements entered by prospective spouse before marriage. These
agreements state the rights and liabilities of spouse especially in financial matters like all the
properties of both the parties are listed, procedure of divorce, conditions relating to adoption of child
or maintenance, with the consent of both the parties. The objectives behind prenuptial agreement are
little certainty for future uncertain events like protection of wealth and assets acquired prior to
marriage, protection from debts of other spouse, protection of family business, continuation of
professional practice, child custody, divorce procedure etc. This type of agreement is very progressive
approach where parties before marriage decide all foreseeable disputes redresses. Prenuptial
agreements are not only for rich people a normal person can also enter into it, it is a precautionary
step by spouse for financial security against future uncertain events. As society is changing day by
day and spouse are worried about their career and individuality and wants to keep it intact even after
marriage, prenuptial agreement is best option available because; first, it is most economical solution,
considering the divorce cost or any sort of suit relating to maintenance or adoption etc. through court;
secondly, parties are free to include conditions which is suitable to them with mutual consent; thirdly,
it is more relaxed procedure then going through court and trail strict statute provisions; and lastly, it
keeps check on misrepresentation made by either spouse and reduces possibilities of fraud and hence
parties can be protected from such bitter experiences. A properly drafted prenuptial agreement has
binding effect over both parties and legally enforceable.
Conclusion and Suggestions
At present, there is no law among Hindus which deals with ‘matrimonial property’ among the
married couples and provides them an equal share at the time of dissolution of their marriage by
divorce. Though a Hindu legally wedded wife is considered to be a Class-I heir to her deceased
husband where she gets a share on her husband’s death from his self-acquired property and his share
from the coparcenary property but during the marriage, the wife has no share in the property of her
husband whether the property is self-acquired or an interest in the coparcenary property. The Hindu
1. Sandesh Prabhudesai, Judiicary Advocates Uniform Civil Code for India, GOA NEWS, May 23, 1997
http://www.goanews.com/news_disp.php?newsid=581. (Visited on October 17, 2015).
2. Tina M. Thomas, A Uniform Civil Code in India: The Flaws of the Personal Law System and Goa as a Model for a
Common Law, INTERNATIONAL AFFAIRS JOURNAL, Vol. 5, No. 1 12, 7-13 (2009).
3 AIR 2006 SC 1158 : (2006) 2 SCC 578.
80
Succession (Amendment) Act 2005 has provided daughters coparcenary rights by birth in the family
of their birth but this Act too has not provided them coparcenary rights by marriage in the family of
their marriage. It is surprising to understand that woman as daughter is given equal property rights in
the family of her birth where her parents always give their best for her upbringing and educate her
with the best of their efforts but once she becomes a matured, well-educated and responsible human
being, she is given in marriage wherein she contributes whole life in many ways but by virtue being
marriage, she is not given any property rights along with her husband in the family of her marriage. If
this anomaly is taken care by introduction of ‘matrimonial property’ law in the family of marriage and
if the law is also made for its equitable distribution among the married spouses, the real object of
women empowerment will be achieved. Further, this move may also remove constant increasing
gender gap between male and female ratio in the country and married couples may become more
responsible towards their offspring. Rather young educated citizen of country may take marriage as
their priority with equal parental responsibility instead of going for live-in relationships as an
alternative of marriage as they do not feel safe in marriage due to unequal treatment in terms of
financial matters.
In Goa, where Portuguese Civil Code is applicable which follows the principle of ‘Community
ownership of property’, tends to follow the common law principle of ‘separation of property’,
according to which the spouse who has title to a property is the owner of the property and the other
spouse has no right in it. Therefore, the term ‘matrimonial property’ must be defined in clear and
unambiguous terms so as to remove ambiguity which is currently prevailing in the Indian legal
system. The present provision which vaguely refers to ‘matrimonial property’ under Section 27 of the
Hindu Marriage Act must be amended to include the property received, bought, inherited or any other
mode of acquisition during the marriage irrespective of the fact that either of the two spouses has joint
title and co-ownership to the same.
The prevailing ‘separation of assets’ principle in the matrimonial home must be replaced by
‘community ownership of the property’ as women are highly affected with financial hardship on
termination of their marriage. During the subsistence of her marriage, the wife is economically
dependent on her husband. After the termination of the marriage, the wife goes into the financial
hardship as she has no source of income. Giving women right to equal share in the ‘matrimonial
property’ would provide recognition to the work done by them as a homemaker as productive work.
Besides, it would provide them financial, social and legal security.
The introduction of new legislation on ‘Matrimonial Property (Rights of Women upon Marriage)
Bill 2012’ in the Maharashtra and deliberations on the introduction of the Marriage Laws
(amendment) Bill 2012 in the Parliament are welcome steps towards creation of new jurisprudence on
‘matrimonial property’ in India which will help women to claim their right in the ‘matrimonial
property’. In addition, there is a need to amend Section 27 of the Hindu Marriage Act 1955 to create
wider scope of the word ‘property’ ‘presented at or about the time of marriage’ being used in the
Section to include earning of both the spouses during their marriage and inherited properties of both
the spouses as well. So that a comprehensive amount of property is created and it may be divided
equally between the parties at the time of divorce, by the court of competent jurisdiction, on an
equitable principle.
Therefore, the lacuna in the present law inasmuch as it does not recognize ‘matrimonial property’
in India; the personal laws in India have yet to acknowledge this gap. Section 27 of the Hindu
Marriage Act 1955 does not suffice the purpose fully, as Prof. B. Sivaramayya himself convincingly
argued. Eventually, the limited rights to inherit property that women have in many personal laws and
their household work not being recognised as productive work which has resulted that the property
ownership of women is limited in general and the wife in the matrimonial home in particular. There
can be no debate that ownership of matrimonial property is invaluable in the process of empowerment
of a wife in the matrimonial home. The researcher hopes that this move definitely will strengthen the
marriage institution and the matrimonial relationship between the married couples will become more
reliable and compatible.
While developing a suitable law and policy on ‘matrimonial property’ in India which would
clearly require a close examination of the objects and functions of marriage and also the role played
by women in establishing, nurturing and caring for the members of the family and the socio-economic
81
and legal protection provided to women at present in the matrimonial home. There is an urgent need
to recognise the concept of ‘matrimonial property’ and to develop a true recognition of a woman’s
contribution towards household work as productive work.
EQUAL PROPERTY RIGHTS OF DAUGHTER UNDER HINDU LAW: A SOCIO-

LEGAL STUDY
Vijender Kumar
Abstract
Daughter brings bucket full of virtues in the family. She needs care, love and
affection from her parents, family members, relatives, and society. She blooms
into a career-oriented woman; who also gives equal focus to her personal life.
After marriage, she leaves behind her parents, maidenhood, surnameand sweet
memories. The society presumes her ties to her natal family are severed on
marriage and replaced by her matrimonial home. In such situations, given her
unequal equilibrium in matrimonial home and the property accumulated jointly by
spouses, the law needs to protect her humanly dignified existence with property
rights. Law has strived to grant daughter equal property rights in her natal
family; however, this right in her family of adoption and matrimonial home has
not received much attention. This paper attempts to analyse existing laws, judicial
decisions and their socio-economic impact to bring out existing inequality and
unequal treatment towards daughters.
---------------------------------------------------------------------------------------------------
Key Words: Hindu joint Family, Daughter, Daughter-in-law, Coparcener,
Property, Equal Share, Interest, Partition, Succession.
 Professor of Law and Vice-Chancellor, Maharashtra National Law University, Nagpur.

82
I Introduction
The ancient Indian legal philosophy is peculiar in its emphasis on ‘duty’ rather than on
‘right’. In daily life, an individual was ordained to perform his duty conscientiously and
diligently. The same rule applied to the State. This principle was based on the theory that
rights flow from duty and not vice-versa.1 Hence, the emphasis was on ‘duty’. As M.K.
Gandhiji rightly opined, ‘take care of your duties, rights will take care of themselves’. A
person who was in a privileged position in the society was expected to discharge his duties
more seriously and sincerely. The kings and the brahmins were punished more severely than
other ordinary offenders on account of their exalted political and social position. 2 According
to ancient Hindu law, not only the kings, but the judges also3 could not go unpunished on
account of wanton and negligent judgment, if any. Thus, the kings and the judges were also
not above the law and even they could not claim any immunity from the operation of the law
of the country. But, in the coeval society, norms of life have changed with new outlook of
rights’ oriented approach at individual, society and state level. It is the ingenuity of the Indian
thinkers, that they could solve the problem of inequality and lay the foundation of a real
democratic society. In the absence of metaphysical doctrine of non-dualism, such an
approach was not possible in the western thought. The western sociologists, therefore, found
it difficult to put forth any satisfactory solution of the problem of inequality, and in their
enthusiasm, accepted a fact contrary to reason and experience, that all men are equal: Is there
equality among human beings in any country? If there would have been equality, there would
not have been the ruler and the ruled. Principle of equality is the basis of both, social justice
and democracy. Manu has laid down rules for the realisation of these two important aims of
society. He divided the whole social order into five groups.4 This classification is based on
function. The unit of the society was not to be a single individual, but men and women were
to form a social unit of Hindu social order. Unlike the other legal systems of the world, the
Hindu society started with the idea of collectiveness and it is the unique characteristic of the
social system of Manu.5 In the contemporary society, equality is governed by the provisions
of the Constitution of India. Article 14 reads, “the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India”. The kind of
equality guaranteed by the Constitution seems to be more materialistic in nature rather than
internal and intrinsic, which is the core of Hindu jurisprudence, wherein a person is governed
by his/her inner-self, spiritual virtues and not materialistic norms.
In the contemporary society, individual autonomy and freedom with regard to life style,
intellectual assimilation and freedom of speech and expression must be regarded in due
process of social norms and legal provisions. To think about holistic growth and peaceful
working of a person, irrespective of gender or religion, one must have sufficient property to
survive respectfully. Further, to understand the concept of ‘property’,whether self-acquired,
ancestral or coparcenary among Hindus in India, which was governed by the provisions of
either the Mitakshara or Dayabhaga law until 1956, and after 1956 is governed by the Hindu
Succession Act, one must have a fair understanding of Hindu law on property. Some of the
1 Ved Prakash Varma, PHILOSOPHICAL REFLECTIONS: ESSAYS ON SOCIO-ETHICAL PHILOSOPHY

AND PHILOSOPHY OF RELIGION, 1st ed. 2005, p. 34.
2 U.C. Sarkar, THE LAW REVIEW, 5; “Introduction” by S.K. Ayangar to HINDU ADMINISTRATIVE
INSTITUTE, by V.R.R. Dikshitar, 32, 33; see also Vishnu, 33, 70; Kautilya Arthasastra, I. 29.
3 Manu, VIII. 8.
4 M.V. Patwardhan, MANUSMRITI: THE IDEAL DEMOCRATIC REPUBLIC OF MANU, 1st ed. 1968, p.
79.
5 Manu, IX, 45; Vijender Kumar, “Oriental and Occidental Approaches to Law”, (2005) 5 SCC (J) 17.
83
areas of Hindu law relating to property are still uncodified and governed by these two
systems of law. On the other hand, succession- intestate or testamentary, among Hindus,
which was previously governed by the Mitakshara or Dayabhaga law, is now governed by the
statutory law viz., the Hindu Succession Act 1956 (2005) and the Indian Succession Act 1925
respectively. Hence, reliance on original text of the Mitakshara or Dayabhaga laws still plays
a vital role in securing property rights, even in the contemporary Hindu society. Daughter
under Dayabhaga law enjoys all property rights in both the families i.e., family of birth and
family of adoption, as the redrafted/amended Section 6 of the Hindu Succession Amendment
Act 2005 applies only to coparceners, who are governed by the Mitakshara law. Therefore, in
case of an adoption of a daughter by a Hindu, who is governed by Dayabhaga law, by virtue
of her adoption, she does not lose any property rights in the family of her adoption, if such
adoption fulfills all requirements as laid down under Hindu Adoptions and Maintenance Act
1956. While tracing equal property rights for daughters who are governed by Mitakshara law,
in the family of birth, adoption and marriage, in the existing laws among Hindus, certain
issues come up for the consideration. First, an adopted daughter needs to be considered as a
coparcener in the family of her adoption in the same way as a natural born daughter is
considered under Section 6 of the Hindu Succession (Amendment) Act 2005. Secondly, while
by virtue of Section 6 of the Hindu Succession (Amendment) Act 2005, a natural born
daughter is made coparcener along with her father and brother in the family of her birth,
butshe is not provided with such status of being a coparcener along with her husband and
father-in law in the family of her marriage. Hence, she should be a coparcener along with her
husband, owing to the replacement of her original coparcenary ties in her family of birth with
those towards her family of marriage. Finally, there is a dire need to introduce and recognise
joint family property between the wife and the husband, to be known as ‘matrimonial
property’, in which both spouses will have an equal share during their lifetime. Upon the
death of either of the spouses, the said property shall devolve on their survivor(s) as per the
law of intestate or testamentary succession, as the case may be. Further, on the dissolution of
marriage, the said property shall be divided either equally or proportionately, depending on
their respective contributions.
II ISSUE-I
Adoption under Hindu law, ancient/ Shastric or modern, has been considered as one of
the ways to get membership in a Hindu joint family. However, under ancient Hindu law it
was only the son who could be adopted. One of the reasons could be as the son was required
to discharge religious duties, including offering oblation towards the ancestors. For the first
time, through the Hindu Adoptions and Maintenance Act 1956, a reformative and equitably
drafted legislation, daughter was considered the subject matter of adoption among Hindus
and thereafter, son and daughter, both were considered as the subject of adoption in equal
terms. Though the adoption of a daughter could have no such religious significance towards
discharging such duties, yet she has been considered for adoption. The reference to ‘son’ and/
or ‘daughter’ can be seen in principal clause of Sections 7 and 8 of the said Act under the title
“Capacity of a Male Hindu to take in Adoption” and “Capacity of a Female Hindu to take in
Adoption” respectively. However, Section 10 the said Act uses the word ‘person’ under the
title “Persons who may be Adopted”, which includes son and daughter both within its scope
of context with certain conditions as provided in sub-sections (i), (ii), (iii) and (iv) of Section
10 of the said Act. Further, Section 12 of the said Act uses the word ‘child’ for the purpose of
effect of a valid adoption on the property. Whereas this Section provides that “an adopted
child shall be deemed to be the child of his or her adoptive father or mother for all purposes
with effect from the date of the adoption and from such date all ties of the child in the family
84
of his or her birth shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family”.1 Considering all facets of terms son, daughter, person or
child, as referred earlier, it can be comprehended that daughter is a competent person to be
taken in adoption among Hindus and she gets all rights including property in the family of
adoption. Hence, there is a sense of equality among brother and sister; father, son and
daughter; uncle, nephew and niece and property is to be divided equitably among these
relations after the Hindu Adoptions and Maintenance Act came into force.
As consequential to the introduction of a daughter for adoption under the codified Hindu
law, she has been considered as Class-I heir to her adoptive parent(s), grandparents and great
grandparents. It can be seen in the Schedule which provides a list of relatives mentioned as
Class-I and Class-II heirs, appended to the Section 8 of the Hindu Succession Act 1956 where
‘daughter’ finds a place as Class-I heir. Further, Clause (f) of sub-section (1) of Section 3 of
the Hindu Succession Act 1956 defines the term ‘heir’ which reads as “any person, male or
female, who is entitled to succeed to the property of an intestate under this Act”. Furthermore,
Clause (g) of sub-section (1) of Section 3 of the Act defines the term ‘intestate’ which reads
as “a person is deemed to die intestate in respect of property of which he or she has not made
a testamentary disposition capable of taking effect”. Hence, an adopted daughter is a legal
heir to her adopted parents and gets property from them on intestacy.
Redrafted Section 6 of the principal Act, viz., the Hindu Succession Act 1956 in 2005
proclaims daughter of a coparcener, who is governed by Mitakshara Hindu law, which reads
as:
By birth become a coparcener in her own right in the same manner as the son;
have the same rights in the coparcenary property as she would have been if she
had been a son; be subject to the same liabilities in respect of the said
coparcenary property as that of a son; and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a reference to a daughter of a
coparcener.2
So, a plain reading of the statutory provision makes daughter of a coparcener entitledto
hold special status in the family of her birth as ‘coparcener’, which brings her a bucket full of
property rights. She enjoys these property rights with full ownership, though an interest from
the coparcenary comes to her as ‘incidents of coparcenary ownership’ with a tag capable of
being disposed of by her through testamentary disposition3, which she enjoys not only during
her lifetime, but also on her death.4 On her intestacy, the said property devolves on her
relativesas per the provisions of the Hindu Succession (Amendment) Act 2005. However, the
daughter as referred in Section 6 of the Act of 2005 becomes a coparcener only ‘by birth’.
The reference of daughter ‘by birth’ does not include a daughter ‘by adoption’, who becomes
a member of her adoptive family. The said Section confers coparcenary status only on a
daughter ‘by birth’ which does not include a daughter ‘by adoption’. Therefore, a daughter
who is taken in adoption by the adoptive father, mother, or both, does not become a
coparcener in the family of her adoption by virtue of amended Section 6 of the Act of 2005.
Under Shastric Hindu law, an adopted son was considered as good as the son begotten from
the lawful wedlock by birth, ‘Putrachyavaham’, means that reflection of the
1 Section 6, the Hindu Adoptions and Maintenance Act 1956.

2 Section 6(1)(a)(b) and (c), the Hindu Succession (Amendment) Act 2005.
3 Section 6(2), the Hindu Succession (Amendment) Act 2005.
4 Section 30, the Hindu Succession Act 1956.
85
Aurasa(legitimate) son1 but under the statutory provisions of the Hindu Succession
(Amendment) Act 2005, the adopted daughter has not been considered as ‘Putrichyavaham’,
means reflection of the Aurasa (legitimate) daughter. Hence, she has not been considered as
coparcener in the family of her adoption and consequently, she is not provided with property
rights in the family of her adoption, which she was/is enjoying before her adoption in the
family of her birth, being coparcener ‘by birth’ by virtue of Section 6 of the Hindu
Succession (Amendment) Act2005.
Following the aforesaid status and property rights of a daughter ‘by birth’ and ‘by
adoption’; who was allowed to be adopted under the provisions of the Hindu Adoptions and
Maintenance Act 1956 and Hindu Succession Act1956 permitted her to become an heir in
both the situations, i.e., birth and adoption. The Hindu Succession (Amendment) Act 2005
does not disturb heirship rights of an adopted daughter; however, it does not confer status of a
coparcener and property rights to her. The situation is not favourable to a daughter who is/
has been adopted under the provisions of the Juvenile Justice (Care and Protection of
Children) Act 2000 which was also amended in 2015. The issue becomes more serious in a
situation where adoption of a daughter, female child or person, is made by an unmarried
Hindu female, to herself, either under the provisions of the Hindu Adoptions and
Maintenance Act 1956 or the Juvenile Justice (Care and Protection of Children) Act 2015 and
creates her own family by adoption; this family is separate from the family of her own birth.
In a traditional patriarchal setup of Hindu family system, an unmarried daughter is not
permitted to add a member to the joint family of her father, but a son is permitted for the
same. So, in a family created by an unmarried Hindu female who adopts a female child/
person, the child so adopted cannot become a coparcener as there is no independent
coparcenary to which this adoptive mother is a coparcener. The provisions of the Hindu
Succession (Amendment) Act 2005 provides daughter the status of a coparcener, as being the
daughter of the coparcener who is governed by Mitakshara law. It means a daughter becomes
coparcener only in the coparcenary of her father and acquires the status which brings her
special property rights in the coparcenary property. But, there may be a situation where there
is no coparcenary property in existence, though she has confirming status of being a
coparcener along with her father and other male coparcener in the family of her birth.
Therefore, in a family where only adopted mother is the sole creator of such family and there
is no independent coparcenary and/ or its property, an adopted daughter may neither become
a coparcener nor get any interest in the coparcenary property. Following equality principle
while confirming equal status and/ or right, the Supreme Court in Voluntary Health
Association of Punjab v. Union of India2 held that,
A female child is entitled to enjoy equal right that a male child is allowed to
have. The constitutional identity of a female child cannot be mortgaged to any
kind of social or other concept that has developed or is thought of. It does not
allow any room for any kind of compromise. It only permits affirmative steps
that are constitutionally postulated. Be it clearly stated that when rights are
conferred by the Constitution, it has to be understood that such rights
recognised regard being had to their naturalness and universalism. No one,
endows any right to a female child or, for that matter, to a woman. The question
of any kind of condescension or patronization does not arise.3
1 Vijender Kumar, HINDU LAW OF ADOPTION: Principles and Precedents, 1st ed. 2004, p. 417.
2 AIR 2016 SC 5122.
3Ibid, p. 5136.
86
For example, let’s take the case of Ms. Ekta Kapoor, an unmarried Hindu female, who
created her own family with a ‘female child’ through surrogacy, though the male involved in
the surrogacy process who offered his semen to create embryo is not known to the general
public. There is a strong presumption that, ‘neither a man alone nor a woman can create a
child on his or her own’. But, for our academic research purpose, it is imperative to
understand whether the female child who has come in this world as a member of her family
can be a coparcener along with her mother as that of a natural born child to both the parents.
After having due analysis of the existing law on the issue, it can safely be narrowed down
that the said female child would be an heir to Ms. Ekta Kapoor, but not a coparcener in her
‘Single Parent Family’. On the contrary, let’s take the case of Mr. Karan Johar, an unmarried
male Hindu, who also had twins (son and daughter) through surrogacy and added them into
the family to which he himself is a member. In the case of Mr. Karan Johar, the female
involved in the surrogacy process who offered female egg to create an embryo to him is also
not known to the general public. However, for all practical purposes, in a patriarchal society
these children would have the status of an heir and coparcener and would acquire property
rights as that of any natural born children in a normal course of things.
III ISSUE-II
Apart from birth and valid adoption, marriage is another mode of getting membership in
a Hindu joint family under Hindu law. Traditionally, among Hindus a daughter is given in
marriage by her parents, family members and relatives to the qualified groom by observing
certain customary and religious rites and ceremonies, and on marriage she moves to the next
family. Therefore, on marriage she becomes a member of the family of her marriage for all
purposes and her membership in her natal familyis deemed to seize. Therefore, the issue
demanding contemplation by the law and policy makers, legal adjudicators, executors, and
academia is about making ‘daughter-in law’ a coparcener along with her husband and the
father-in-law in the family of her marriage. From the time, daughter of coparcener governed
by Mitakshara law is made coparcener ‘by birth’ through the Amendment Act of 2005, along
with her father and brother in the family of her birth, there seems to be an achievement of
increased percentage in the happiness index among the daughters, as they have been provided
with coparcenary property rights at par with the male coparceners. This step of law makers
has been well appreciated, though it was a long pending demand from the jurists, academia,
women organisations and social workers. Going into depth of the issue, one finds that in
normal course of things, a lot of investment is made on a daughter by her family members
from birth till marriageable age or until she becomes employable. It is the family of her birth
which takes care of her educational, medical and other expenses either from the individual or
joint account. Even her marriage expenses are taken care of by the joint account of the natal
family. On marriage, a daughter goes to the next family, the family of her marriage and
becomes Sapindagotrajya of that family. In Kamesh Panjiyarv. State of Bihar1 the Supreme
Court held that,
A bride leaves the parental home for the matrimonial home, leaving behind
sweet memories therewith a hope that she will see a new world full of love in her
groom’s house. She leaves behind not only her memories, but also her surname,
gotra and maidenhood. She expects not only to be a daughter-in law, but a
daughter in fact.2
1 2005 (2) SCC 388.

2 Ibid, p. 390.
87
Further, the Supreme Court in Narendra v. K. Meena1 held that “in normal
circumstances, a wife is expected to be with the family of the husband after the marriage. She
becomes integral to and forms part of the family of the husband”.2Looking into the
composition of a Hindu joint family, wife by virtue of her marriage to a male member in the
family of her marriage becomes a member of the said Hindu joint family and thereafter she
contributes in that family during her lifetime. She contributes to the family of her marriage
not only in terms of bearing and rearing children, but also economically and socially to the
best of her abilities. The existing laws governing property among Hindus, whether ancestral,
coparcenary or self-acquired, do not consider ‘wife’ as equal share holder except being
‘widow’ and ‘widow of a pre-deceased son’, who has been considered as Class-I heir as
enlisted in the Schedule of Heirs as Class-I heir under Section 8 of the Hindu Succession Act
1956. It means on the death of her husband, she becomes an heir to her deceased husband and
in case her husband dies during the lifetime of his father, she being the widow of his (father-
in law) predeceased son (husband) becomes Class-I heir to her father-in law, but during the
lifetime of her husband she gets nothing as sharer from the property owned by her husband
and/ or father-in-law, separately or jointly. On the other hand, in the family of her birth, a
daughter remains undivided coparcener along with the other male coparceners, though her
membership in terms of the Hindu joint family seizes on her marriage and is replaced in the
family of her marriage. On marriage, she becomes a member of her husband’s joint family,
but she does not get the status of being coparcener in that family, whereas she remains
undivided coparcener in the coparcenary of her father, uncle, and brothers, wherein her
normal membership and rights get suspended on marriage and those rights are replaced in the
family of her marriage. The Amendment Act of 2005 has created a new doctrine in the Hindu
joint family governed by the Mitakshara law, viz., dual membership, which means that ‘the
daughter of coparcener governed by the Mitakshara law who is a member by birth in the
family of her birth until marriage remains undivided member of her father’s coparcenary
even after marriage, but on marriage she becomes a family member of her husband and gets
no membership in his coparcenary’. For the purpose of determining property rights, the court
has made a distinction between normal members and special members of a Hindu joint family
and their property rights. InThimma Reddy v. Chandrashekara Reddy3 the court held that the
right of a person to claim membership of Hindu joint family or coparcenary is based on the
right of succession to joint family property, but there is no bar in claiming an ordinary
membership of a family. The word ‘family’ has a wide connotation and cannot be confined
only to a group of persons who are recognised by law as having a right of succession or
claiming to have a share. It is for this reason, strangers brought up by original owner treating
them as his children can be considered as member of his family, though not member of his
joint family. 4
Further, judiciary looks at daughter and/or daughter-in law in the family of her marriage
from different lenses and provides certain rights to her including property. There are some of
the decisions referred here for the understanding of the readers on the issue incidental or
accidental thereto. InJayamati Narendra Shah v. Narendra Amritlal Shah5 the court held that
in a Hindu undivided family, only son(s) vertically, and brother(s) laterally, would constitute
a coparcenary in a Hindu joint family; their wives may be members of the Hindu joint family
but are not coparceners, if the Hindu joint family owns any joint property. The wives of
1 AIR 2016 SC 4599.

2Ibid, p. 4603.
3 AIR 2018 Kant 54.
4 Ibid, p. 57.
5 AIR 2014 Bom 119.
88
coparceners do not get any interest in the joint property owned and held by coparceners who
are co-owners. The wives of the co-owners do not get any interest by virtue of their marriage.
It is only a Hindu widow who gets the interest of her husband in the coparcenary or joint
family property upon the death of her husband. That interest enables her to claim
maintenance and the residence. Only a widow can demand partition of the interest which her
deceased husband would have been entitled while he was alive. Consequently, a wife has no
share, right, title or interest in the Hindu undivided family in which her husband is a
coparcener with his brothers, father or sons, and after the amendment of Section 6 of the
Hindu Succession Act in 2005 with his sisters and daughters also. The wife by virtue of
marrying a male member of the family of her husband becomes a member of the Hindu joint
family of her husband. But, by virtue of being a member in the Hindu joint family of her
husband, she cannot get any share, right, title or interest in the Hindu joint property which
that family owns. Therefore, a wife cannot demand partition unlike a daughter. She would get
a share only if partition is demanded by her husband or sons and the property is actually
partitioned. The claim by a wife during the life time of the husband in the share and interest
which he has as a coparcener in his Hindu undivided family is wholly premature and
completely misconceived. If any bequest is made by the wife under the Will which does not
show the title of the wife to such property, it will be void in law. InMeenu Seth v. Binu Seth1
it was seen that the endeavour of the wife is to take control of the family joint properties and
that failure of the wife in the said petition under the Mental Health Act 1983 will not mean
that the wife is in any manner prevented from filing any suit seeking to enforce her right as a
member of the joint family, assuming that there exists a Hindu joint family/ Hindu undivided
family. Thus, the wife is not in any manner prejudiced as she can always file a suit seeking
her rights in Hindu undivided family properties, assuming that there is a Hindu undivided
family, and this aspect will only be considered when the wife initiates a civil suit in an
appropriate court for appropriate relief.
The above-referred analysis of the factual and judicial matrix makes it clear that position
of a daughter-in law is not very well defined in the existing Hindu law with reference to her
status being a coparcener, an heir and her interest, shares, co-ownership etc., in the family of
her marriage. Though she is a permanent member of the family of her marriage; contributes
whole life to the best of her abilities in the holistic growth of this family, but she is not
conferred the status of being coparcener in this family and gets no interest or share in the
coparcenary property; which disentitles her to become a KartaorManager in the family of her
marriage. As the two conditions must be fulfilled by a person who wishes to become a
KartaorManager of the Hindu joint family, viz., (i) one must be a permanent member; and (ii)
must be a coparcener in the said family. 2 Therefore, not having a confirmed status of a
coparcener in the family of her marriage, a daughter-in law cannot be considered to be
eligible for Kartashipor Managership in her own rights. Therefore, author of the paper
earnestly requests the law makers, executors and the protectors to note such an injustice
which had been done towards an adopted daughter, who is also governed by the Mitakshara
Hindu law in the family of her birth and having status of coparcener and rights in the
coparcenary property by virtue of birth, but loses her status and property rights on adoption in
the adoptive family for no fault of her own but for the choices made by her parents or the
guardian. Hence, she is not only losing her status and rights under the Hindu law, but there is
also a violation of her fundamental rights guaranteed under the Constitution of India.
IV Issue III: Daughter’s Property Rights
1 AIR 2018 Del 54.

2 Commissioner of Income-Tax v.Seth Govind Ram AIR 1966 SC 2.
89
Daughter in the family of her birth not only gets a membership but also gets property
rights as Class-I heir to her father, grandfather and great grandfather and legal heir to her
mother. On and from the commencement of the Hindu Succession (Amendment) Act 2005,
in a Hindu joint family governed by the Mitakshara law, the daughter of a coparcener shall
by birth become a coparcener in her own right in the same manner as the son; have the
same rights in the coparcenary property as she would have had if she had been a son; and
be subject to the same liabilities in respect of the said coparcenary property as that of a son.
Consequently, a daughter born to a coparcener gets special status being coparcener in the
family of her birth and this status conferred on her unique property right in the coparcenary
property for the first time in the history of Hindu joint family system governed by the
Mitakshara law. Hence, this amendment has brought equality among sexes with regards to
Hindu joint family property.
Further, the demand of daughter for equal share or interest in ancestral property was first
conceded in the erstwhile Andhra Pradesh in 1985. Later on, Karnataka, Tamil Nadu and
Maharashtra States followed the suit. Those amendments were prospective and were made
conditional on any partition not having taken place in the family and the daughter claiming a
share was not married by that date. In other words, if by the time the amending legislation
came into force, a partition had taken place already in the family or the daughter was married,
such daughter could not have claimed a share/ interest and disturbed the properties already
vested in the other members of the family. By introducing a similar amendment through the
Hindu Succession (Amendment) Act 2005, the Parliament has included these two conditions
carefully. When these conditions as contained in the State Amendments were questioned
before the courts, they were held to be valid and that they did not suffer from the charge of
any discrimination or excess favouritism. The courts have further upheld the rule that, any
amendment which affects the rights of parties already accrued in favour of others, shall not
disturb the interests so vested. In a similar situation, the Hindu Adoptions and Maintenance
Act 1956 contained a provision that the rights already vested in the joint family properties
shall not be divested in any manner by adoption. 1 It means, that the adoptee, if he/ she has
any joint family property vested in him/ her at the date of adoption, he/ she shall carry it
along with him/ her to the family of the adoption. Again, by reason of adoption, the adoptee
shall not disturb the share/ interest of the members of the family to which he/ she goes as an
adoptee. Now, the daughter of a coparcener, who is governed by Mitakshara law, is affirmed
as a coparcener in the family of her birth, if she is unmarried by the date of adoption she will
naturally carry the share/ interest she has in the natal family to the family of her adoption. In
a like manner, she will not disturb the share/interest in the properties vested in the sons and
daughters of the family to which she goes in adoption by that date.
InPushpalatha N.V. v. V. Padma,2plaintiff’s father, Sri D.N. Vasantha Kumar, who
was the owner of all the suit schedule properties having acquired the same under the
registered partition deed on March 29, 1967. He died intestate on December 31, 1984
leaving behind him, his widow, daughter and other legal heirs. All the children after his
death succeeded to his estate. They were all in joint possession of the suit properties. The
daughter was entitled to 1/5th share in all the suit properties. The schedule property was
earning a rent of Rs.1000/- and the entire amount was appropriated by the defendants and
no share was given to the plaintiff. Therefore, she was entitled to mesne profits to the
extent of 1/5th share from the income of the said property. When she was not given her
legitimate right in the property, she filed a suit for declaration that she was entitled to
1 Section 12(c), the Hindu Adoptions and Maintenance Act 1956.

2 AIR 2010 Kant 124.
90
1/5thshare in the suit properties for partition and separate possession of her 1/5 th share in the
suit properties and also for mesne profits. The court held that‘the Hindu Succession
(Amendment) Act 2005 has retrospective effect and daughters shall have equal shares at
par with sons’. 1
In Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari2 the court held that
a bare perusal of sub-section (1) of Section 6 of the Hindu Succession (Amendment) Act
2005 would, thus, clearly show that the legislative intent in enacting clause (a) is prospective
i.e., daughter born on or after September 9, 2005 will become a coparcener ‘by birth’, but the
legislative intent in enacting clauses (b) and (c) is retrospective, because rights in the
coparcenary property are conferred by clause (b) on the daughter who was already born
before the amendment, and who is alive on the date of Amendment coming into force. Hence,
if a daughter of a coparcener had died before September 9, 2005, since she would not have
acquired any rights in the coparcenary property, her heirs would have no right in the
coparcenary property. Since Section 6(1) of the Act expressly confers right on daughter only
on and with effect from the date of coming into force of the Amendment Act, it is not
possible to take the view that heirs of such a deceased daughter can also claim benefits of the
Amendment Act.3
Further, on examination of amended Section 6 of the Principal Act and bearing in mind
the words ‘on and from commencement of the Hindu Succession (Amendment) Act 2005’
mentioned in Section 6, it must follow that the rights under the amended Section 6 of the Act
can be exercised by a daughter of a coparcener only after the commencement of the
Amendment Act of 2005. Therefore, it is imperative that the daughter who seeks to exercise
such a right must herself be alive at the time when the Amendment Act of 2005 was brought
into force. It would not matter whether the daughter concerned is born before 1956 or after
1956. This is for the simple reason that the Hindu Succession Act 1956 when it came into
force applied to all Hindus in the country, irrespective of their date of birth. The date of birth
was not a criterion for application of the Principal Act of 1956. The only requirement is that
when the Act is being sought to be applied, the person concerned must be in existence/living.
The Parliament has specifically used the word ‘on and from the commencement of Hindu
Succession (Amendment) Act 2005’ so as to ensure that rights which are already settled are
not disturbed by virtue of a person claiming as heir to a daughter who had passed away
before the Amendment Act came into force.4
In JamanbhaiMaganbhaiMavaniv. BhanubenMaganbhaiMavani5 the court held that once
the partition was not proved or there was no partition, coparcenary property would continue
to have the same character. Such right is saved by the amendment made in provision of
Section 6 of the Hindu Succession (Amendment) Act 2005. On the date of death of the father,
if the property remained as coparcenary property and no division or partition was made prior
to the amendment, the right cannot be extinguished of the Hindu female in coparcenary
property. In this case, no satisfactory evidence was produced before the trial court nor before
the high court to show that the property was partitioned prior to the amendment. If the
property was not partitioned prior to the amendment, merely, because the father, one of the
coparceners of the property had expired, such right cannot be said to extinguish nor it be said
that the right of partition had accrued only on the death of the father. If on the date of
1 AIR 2010 Kant 124, 147-148.

2 AIR 2014 Bom 151.
3Ibid, pp. 168.
4 Id., p. 172.
5 AIR 2014 Guj 185.
91
amendment, the property has continued as coparcenary property, the daughter will have right
at par with the son.1
In Swaran Lata v. Kulbhushan Lal2 the court held that, where the member of Hindu
undivided family (HUF) dies leaving behind the heirs of Class-I namely, wife and daughters,
there will be a deemed partition at the time of the death of deceased member. However, this
does not mean that the share in the coparcenary property for the suit would be decided
according to that event or that the shares would have crystallized and become unalterable.
Rather, the coparcenary would continue, and the extent of shares would be decided at the
time of actual partition, either through a registered deed of partition or a decree of thecourt.
Further, that event, i.e., the death, only determines how that person’s share will be divided
amongst the family members, either by survivorship or by succession, rather than effecting
any broad-based changes in the family holding or effecting a partition inter se that would
hold against subsequent changes in the family composition or changes in the law. Secondly,
neither is the proposition that the shares are defined at the time of filing of the suit for
partition correct; nor the HUF, and specifically, the coparcenary, continues even after the
filing of the suit. The filing of a suit by itself does not mean that a partition has taken place,
until a decree of the court effects partition, or a registered deed of partition is signed inter
seby the parties. Accordingly, the death or birth of the family members during the pendency
of a suit obviously will affect the shares in partition. Similarly, any change in law during the
pendency of the suit, as for example is the case with Section 6 of the Act, would affect the
ultimate shares of the parties. A contrary conclusion would not only fly in the face of the
definition of ‘partition’ in Section 6(5) of the Amendment Act of 2005, but would also mean,
for example, that no partition suit can be withdrawn after it is filed, a proposition which has
been rejected on various occasions. Further, a deemed partition under the proviso to Section 6
of the Act, is not an actual partition that crystallizes the interest of all members of the HUF,
but only a legal construction introduced by the legislature to determine how the interests of
the deceased would devolve upon his heirs if a Class-I female relative is alive. The purpose
of this fiction of deemed partition, as opposed to following the simple rule of survivorship
otherwise, is that Class-I female heirs also receive a share in the coparcenary property of the
deceased male, as they would otherwise be excluded, not being coparceners themselves,
before the Amendment Act of 2005. To agree that such deemed partition crystallizes the
interest of the daughters finally, and that any rights accruing to them at a later stage, which
grants an interest in the coparcenary property are unenforceable is contrary to the terms and
the spirit of the proviso to Section 6 of the Act, as it existed before the Amendment Act of
2005 and also after the amendment. Therefore, where till date no final decree for partition has
been passed, and neither has any registered partition deed placed on record or relied upon by
any of the parties, the amended Section 6 of the Amendment Act of 2005 is applicable and
shares would be decided accordingly. 3
InPrakash v. Phulavati4 the Supreme Court held that, the legislature has expressly made
the amendment applicable on and from its commencement and only if death of the coparcener
in question is after the amendment. Thus, no other interpretation is possible in view of
express language of the statute. The proviso to Section 6 of the Act keeping dispositions or
alienations or partition prior to December 20, 2004 shall remain unaffected and cannot lead to
the inference that the daughter could be a coparcener prior to the commencement of the Act.
1 AIR 2014 Guj 185, 186.

2 AIR 2014 Del 86.
3 Ibid, pp. 99-100.
4 AIR 2016 SC 769.
92
The proviso only means that the transactions not covered thereby will not affect the extent of
coparcenary property which may be available when the main provision is applicable.
Similarly, explanation has to be read harmoniously with the substantive provision of Section
6(5) by being limited to a transaction of partition effected after December 20, 2004.
Furthermore, normal rule is that a proviso excepts something out of the enactment which
would otherwise be within the purview of the enactment, but if the text, context or purpose so
requires, a different rule may apply. Similarly, an explanation is to explain the meaning of
words of the Section, but if the language or purpose so require, the explanation can be so
interpreted. Rules of interpretation of statutes are useful servants but difficult masters. Object
of interpretation is to discover the intention of legislature. In this background, it can be found
that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intends to exclude the
transactions referred to therein which may have taken place prior to December 20, 2004,when
the Bill was introduced. Explanation cannot permit reopening of partitions which were valid
when effected. Object of giving finality to transactions prior to December 20, 2004 is not to
make the main provisions retrospective in any manner. The object is that by fake transactions,
available property at the introduction of the Bill is not taken away and remains available as
and when conferred by the statute becomes available and is to be enforced. Main provision of
the amendment in Section 6(1) and (3) is not in any manner intended to be affected but
strengthened in this way. Settled principles governing such transactions relied upon by the
applicants are not intended to be done away with for a period prior to December 20, 2004. In
no case, statutory notional partition even after December 20, 2004 could be covered by the
explanation or the proviso in question. Hence, the rights under the Hindu Succession
(Amendment) Act 2005 are applicable to living daughters of living coparceners as on
September 9, 2005, irrespective of when such daughters were born. Disposition or alienation
including partition which may have taken place before December 20, 2004 as per law
applicable prior to the said date will remain unaffected. Any transaction of partition effected
thereafter will be governed by the explanation.1
In Danammav. Amar2 the Supreme Court has held that the daughters who were born
before the enactment of the Hindu Succession Act 1956 are entitled to equal shares as son in
ancestral property. The ruling was rendered in an appeal filed by daughters challenging a
decree in a partition suit, which excluded them from partition. The partition suit was filed by
the grandson of the deceased propositus of a joint family in 2002. The trial court held that
daughters were not entitled to share in property, as they were born before 1956, the year of
enactment of Hindu Succession Act. The trialcourt also denied them the benefit of the
Amendment Act of 2005, which conferred equal coparcenary status to daughters as sons. The
high court upheld the decree of the trial court. Thereafter, the matter came before the
Supreme Court and the court after due analysis of the law and previous decisions held that the
courts below erred in holding that daughters were not entitled to partition because they were
born before 1956. It was further held that, according to Section 6 of the Amendment Act,
when a coparcener dies leaving behind any female relative specified in Class-I of the
Schedule to the Act (which includes a daughter), his undivided interest in the Mitakshara
coparcenary property will not devolve upon the surviving coparceners by survivorship, but
upon his heirs by intestate succession. Therefore, the interest of the deceased coparcener
would devolve by intestate succession on his heirs, which included his daughters.The court
1 AIR 2016 SC 769, 776-777.

2 (2018) 3 SCC 343: AIR 2018 SC 721.
93
also held that the daughters are entitled to the benefit of Amendment Act of 2005 as well, and
on that basis also they are entitled to shares. 1
InRatnamala Vilas More v. TanajiMachindraPawar2 which was regarding the
entitlement and share of the daughter in the suit property, the court held that daughter of a
coparcener acquires ‘by birth’ the status of coparcener in her own right in the same manner as
the son. This view was confirmed and reaffirmed by the Supreme Court in Prakash v.
Phulavati3and also in Danammav. Amar4. Further, one of the incidents of coparcenary, being
the right of a coparcener to seek severance of status, even a daughter can now avail right to
partition. It was categorically held that “even when the daughters are born prior to enactment
of the Hindu Succession Act 1956, in view of the amendment to Section 6 of the said Act in
the year 2005, they also acquire the status of a coparcener by virtue of birth and hence they
are entitled to sue for partition”5. It was further held that “the amended provision of Section 6
of the Hindu Succession Act, statutorily recognises the rights of daughter as coparcener since
birth, as the Section uses the words in the same manner as the son.”6 Therefore, both the
daughter and son having been conferred the right of being ‘coparcener by birth’, and the right
to partition being inherent in the coparcenary property, it can be availed of by any
coparcener. Hence, as regards the right of the daughter of suing for partition of her share in
the suit property, the legal position now being fairly well crystallized, the finding of the
appellate court denying her the said right, being against this legal position, is required to be
quashed and set aside. Further, once it is held that the daughter, being the coparcener ‘by
birth’ has right to sue for partition, it follows that in the said partition, the mother/ widow,
who is legally wedded wife of the deceased husband, is also entitled to claim partition and
separate possession of her share in the joint family property. 7
V ISSUE-IV
In traditional Indian family set up, a ‘matrimonial home’ was to be provided by the
husband or his family members. But, in the recent past with the changing contours of joint
family concept, ‘matrimonial home’ has become a central focal point for the newly married
couples to discuss and decide upon it. However, with passage of time and liberation of
patriarchy, women are equally contributing in making of a ‘matrimonial home’, wherein
financial liabilities are shared by both the spouses, though exceptions are in existence
wherever joint family still exists. Therefore, a ‘matrimonial home’ should be recognized as
belonging to both the spouses holding it as joint tenants. The connotation of ‘matrimonial
home’ in the Indian context gives rise to a special problem within Hindu law, namely, to what
extent a joint family house (dwelling house) can be treated as a ‘matrimonial home’. If the
spouse’s share, capable of separate possession and enjoyment is regarded as a ‘matrimonial
home’, the problem may assume an awkward, if not a serious turn, if a divorced wife decides
to exercise her right to live in the joint family house of the husband. 8 At present, no clear
answer is possible in the existing laws and it is left to the factual solutions and wisdom of the
parties. It is hoped that the existing legal system will meet the challenges of the occupants of
the joint family house. The prevailing approach of English law giving power to a court to
1 AIR 2018 SC 721, 725.

2 AIR 2018 Bom 260.
3 AIR 2016 SC 769.
4 AIR 2018 SC 721: (2018) 3 SCC 343.
5 AIR 2018 Bom 260, 263.
6 Ibid.
7 AIR 2018 Bom 260, 263.
8 B. Sivaramayya, MATRIMONIAL PROPERTY LAW IN INDIA, 1st ed. 1999, p. 83.
94
adjudicate the assets is unsuited in India. It involves time-consuming determination by the
courts and fails to recognize marriage as an ‘economic partnership with equal rights’. Hence,
law should provide a comprehensive mechanism to govern as to who provides a ‘matrimonial
home’ on marriage and within its ambit which property should be recognised as ‘matrimonial
property’ subject to equal and equitable distribution on dissolution of marriage by divorce or
death and provisions for maintenance of the children from such wedlock.
An attempt to define ‘matrimonial property’ was made by the legislatures while
amending and codifying the law of marriage among Hindus in the form of the Hindu
Marriage Act 1955 and to regulate the property acquired ‘at or about the time of marriageof a
spouse’. While doing so, Section 27 of the Hindu Marriage Act 1955 provides that,“in any
proceeding under this Act, the court may make such provisions in the decree as it deems just
and proper with respect to any property presented, at or about the time of marriage, which
may belong jointly to both the husband and the wife.”Wherever, any matrimonial matter
comes before the court of competent jurisdiction; it is difficult for the court to make a
decision with respect to the property under this Section as the source of property is very
narrowly designed by the legislatures. Wherein several conditions need to be fulfilled to
determine whether the property is ‘matrimonial property’ in accordance with the construction
of the Section such as the property ‘may’ belong jointly to both the husband and the wife; and
the property must be presented ‘at or about the time of marriage’.
As property presented ‘at or about the time of marriage’ indicates that the relatives,
friends, family members, colleagues and well-wishers have given it in the form of gift to
either the bride or the bridegroom at the time of marriage or some gifts are given by the
parents and relatives after marriage on different occasions, which are also included in the
purview of ‘matrimonial property’; though the acquisition of this property in the form of gifts
did not involve any labour of or skill of the spouses. The intention of the donor is given
importance with respect to such properties and hence, the property belongs to both the
spouses, as part of the ‘matrimonial property’ which may be divided equally between them at
the time of dissolution of their marriage. In case the donor intended to gift the property to
either of the two spouses, then it is considered as the ‘separate property’ of such spouse and is
not subjected to division between them. Therefore, the use of ‘may’ rather than ‘shall’ has
been taken into consideration by the legislatures in Section 27 of the Hindu Marriage Act
1955. Hence, the present Section 27 of the Act does not serve the purpose to introduce
‘matrimonial property’ in the ‘matrimonial home’holistically, where both the husband and the
wife are sharer to it on the dissolution of their marriage, if such situation emerges among
them; and it shall provide equal economic support to the parties on divorce.1
Further, Section 27 of the Hindu Marriage Act 1955 does not provide any scope or
incident of ‘matrimonial property’ in case of subsequent earning- jointly or separately by the
spouses during their matrimonial relationship. Neither Section 27 of the Act recognises
home-makers’ work as productive work and convert it into the earning of the wife nor it
provides any formula of distribution of matrimonial property among the disputing spouses.
Furthermore, daughter-in-law is not an heir either to her husband or the in-laws so long her
husband is alive. On the other hand, before marriage a daughter is provided with coparcenary
status and property rights and she is a Class-I heir to her father and legal heir to her mother
but on marriage, she becomes Sapinda-gotrajya to the family of her marriage, theoretically
all her ties with the natal family are deemed to have been ceased and replaced by those in the
family of her marriage, but practically the reality remains otherwise, as she is neither a
1 Vijender Kumar, “Matrimonial Property Law in India: Need of the Hour”, 57 (2015) JILI, pp.499-522.
95
coparcener nor an heir in the family of her marriage. Hence, the existing legal provisions
relating to ‘matrimonial property’, its distribution, incidents connected to it needs to be
relooked keeping in view the changing contours of individual earning of the spouses and their
right over such property.
Therefore, identification and division of matrimonial property among disputing married
couples becomes more serious when they fight to get matrimonial remedies from the Family
Court established by the Family Courts Act 1984,1 which does not have general powers to
deal with civil matters relating to the ownership of property; howeverit deals with “a suit or
proceedings between the parties to a marriage with respect to the property of the parties or
of either of them”2. In S.P.G. Sundaram v. InduVedamurthy3 the court held that,
Matrimonial courts have jurisdiction to dispose exclusive property of spouses
provided it was presented at or about the time of marriage.4
The said provision makes it clear that, at the time of disposition of a matrimonial suit for
divorce, the court would settle the matter relating to the property as referred in Section 27 of
the Hindu Marriage Act 1955, but may not deal with the property: for the wife, ‘acquired by
her after marriage’, ‘inherited by the wife’, and ‘enabled by Section 6 of the Hindu
Succession (Amendment) Act 2005 as coparcener- coparcenary interest’; and for the
husband, ‘inherited from the parents’, ‘acquired by him after marriage’ and an ‘interest from
the coparcenary property’. Though the Section provides an alternative remedy to the wife so
that she can recover the property which is covered by the Section, by including in the decree
in the matrimonial proceedings, without having to take recourses to the filing of a separate
civil suit and avoid further litigation. Yet, to remove ambiguity on property rights in the
matrimonial home, there is a need of matrimonial property to be introduced with holistic
method of division and devolution of it among the disputing married couples and their
children.
Hence, equality in its real sense can be achieved only when not only equal opportunity,
but also equal distribution of resources is taken care off among the members of society, and
matrimonial property should not be an exception to it. Though economic freedom,
independence and opportunity cannot bring holistic empowerment among women, yet
personality development to a great extent is dependent on the financial viability. For
example, if a woman wishes to educate herself with vocational or professional higher
education, domestically or internationally, she needs a lot of money. If she wants to start a
businessor for that matter any entrepreneurship, she needs money. Therefore, income, interest
or profit from the property, partially or wholly, with an absolute ownership right can only
bring modern outlook among the women, wherein they will contribute to the best of their
abilities in the development of the nation building with smile on their face and respect for law
in their heart.
VI Conclusion
After reviewing the existing literature on the issue in hand, there seems to be a
distinction created by the lawmakers while redrafting Section 6 of the Hindu Succession
(Amendment) Act 2005, between‘a daughter born to a coparcener and a daughter adopted by
a coparcener’ governed by Mitakshara Hindu law. Whether this kind of distinction stands
1 An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure
speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.
2 Section 7(1) exp. (c), the Family Courts Act 1984.
3 AIR 2016 Mad 173.
4 Ibid, p. 176.
96
valid under the provisions of the Constitution of India is a moot point. But, a daughter who is
central focal person in debate is a coparcener by birth in her family of birth, but under Section
6 of the Hindu Succession (Amendment) Act 2005, she is not considered as coparcener in the
family of her adoption. ‘Daughter’, whether born to the legally wedlock of her parents or
adopted legally by the adoptive parents shall be considered as ‘daughter’ for all practical
purposes. In the redrafted Section 6 of the Hindu Succession (Amendment) Act in 2005, the
law makers have considered only the ‘daughter’ by birth for conferring a special status on her
as ‘coparcener’, but have distinguished her from an adopted ‘daughter’ who is also as
competent to be a ‘coparcener’ as any natural born daughter to her respective parents born
within their legal wedlock; in such a situation, how can such a ‘daughter’ be different in the
eyes of law for not considering as ‘coparcener’ and conferring on her the special status being
‘coparcener’ in her family of adoption. Let’s not forget the issue involved here, according to
Section 10 (iv) of the Hindu Adoptions and Maintenance Act 1956, “daughter must not have
completed fifteen years, unless there is a custom or usage applicable to the parties which
permits persons who have completed the age of fifteen years being taken in adoption”1. It
means that such daughter cannot give herself in adoption to the adopter, whereas she has been
given in adoption by either father or mother or both or the guardian. Therefore, her property
rights by birth in the family of her birth have been curtailed by the person who has given her
in adoption. But, the lawmakers while redrafting Section 6 of the Hindu Succession
(Amendment) Act 2005 either did not pay due attention on this point or they have
deliberately ignored this point and have left this issue unattended.
Further, since the Hindu Succession Act 1956 came into force on June 17, 1956, a
daughter born to the legal wedlock of her parents is considered as Class-I heir to her deceased
father, grandfather and great grandfather and legal heir to her mother. On September 9, 2005,
Section 6 of the Hindu Succession (Amendment) Act 2005 has recognised ‘daughter’ as
coparcener in the family of her birth along with her male siblings, the father, grandfather and
great grandfather. She being a coparcener gets all the rights of a coparcener as the male
members in the Hindu joint family property governed by Mitakshara Hindu law. The
amendment so made truly justifies the concept of equality of sexes in the inheritance to the
family joint property. As per the established practice, after a daughter is married, she goes to
the family of her husband and becomes member of that family for all purposes. Thereafter,
she contributes in all possible ways in bearing, rearing, and upbringing children, and also
participates in social and religious activities of the family of her marriage. But, being
daughter-in-law, though a member of the matrimonial family, she has not been considered by
the amending law as co-partner, co-sharer or coparcener in joint family property to which her
husband, being son of that family is and enjoys all rights in his joint family properties. Hence,
there is a dire need to consider daughter-in-law as coparcener in the family of her marriage
and she needs to be made co-sharer along with her husband, his siblings and the father-in-
law. If such an amendment is made in the existing law, it will provide equality in letter and
spirit in the matrimonial home and rising graph of divorce in India will fall flat among the
young married couples and it will also bring a sense of security among the prospective
couples. Further, there will be assurance to the parents of their daughter when she goes in
marriage to the next family, which may also impact prevalent practice of dowry in the society
to reduce it drastically. Therefore, the author of the paper is of a definite opinion that, if a
daughter-in-law is provided coparcenary property rights in the matrimonial home, the
existing joint family system will further strengthen as it has already seen unprecedented
withdrawal in its original outfit.
1 Section 10(iv), the Hindu Adoptions and Maintenance Act 1956.

97
Furthermore, scope and application of Section 27 of the Hindu Marriage Act 1955 needs
to be enlarged while considering large amount of properties acquired, inherited and
contributed by both the spouses during their lifetime. On dissolution of marriage by a decree
of divorce, the said property shall be distributed among the disputing parties, as enshrined in
Section 27 of the said Act. In case of death of either of the spouses, the said property shall be
inherited by the surviving members of the deceased spouse under the provisions of the Hindu
Succession Act 1956 as amended in 2005. Further, on and from September 9, 2005, the
daughter of a coparcener governed by the Mitakshara law becomes a coparcener and gets an
interest in the coparcenary property ‘by birth’ and ‘by adoption’, as advocated
aforementioned in the paper, in the family of her birth or adoption, as the case may be, and on
marriage, she carries this form of property in the family of marriage, where she acquires by
her skills, expertise and employment a lot of self-acquired property, besides the property
inherited from her father or mother or both. All the three kinds of properties mentioned here,
a daughter holds them with absolute ownership rights under the provisions of the Hindu
Succession Act. At present, Sections 15 and 16 of the Hindu Succession Act deals with
intestate succession of a female Hindu only on two kinds of properties, viz., ‘property
acquired by her’ and ‘property inherited by her’, but do not deal with the property in which
‘an interest’ has been created by Section 6 of the Hindu Succession (Amendment) Act 2005
for the first time in 2005. So long a Hindu female dies intestate leaving behind a son or a
daughter or the children of predeceased son or daughter, there is no problem as these children
along with the husband inherits her properties, ‘inherited and acquired’ by her during her
lifetime, but the problem still prevails when she dies intestate leaving behind no child alive or
children of predeceased child but the husband alone, who inherits only her ‘self-acquired
property’, wherein ‘inherited property’ goes back to its source and devolves on the heirs of
her father or the mother. Therefore, an interest in the coparcenary property which was created
for a daughter by the Hindu Succession (Amendment) Act 2005 in normal course of things
goes in inheritance to her children and the husband and consequently, it fragments the
original coparcenary property to that extent while going out of the fold.
As of now, there is no joint property among the married couples under Hindu law. In the
matrimonial home, both the spouses hold property, especially inherited one, on their own
name and same is the case of an interest in the coparcenary property in which by virtue of
marriage, no new co-sharer or co-ownership gets into existence. It means there are two
parallel methods of property working hand-in-hand in the matrimonial home. For example,
wife is not a Class-I heir to her husband or the father-in-law, but being a widow, she is a
Class I heir to her deceased husband and being a widowed daughter-in law, she is also a Class
I heir to her father-in-law. But, there is no joint ownership between the spouses on any of the
properties in the matrimonial home. Apparently, there seems to be an urgent need of
matrimonial property to be introduced in the matrimonial home not only to save Hindu joint
family system, but also to control rising graph of divorce among the young married couples.
Further, there is also a dire need to prepare and approve a formula on which joint property
among the disputing married couples shall be partitioned, divided and inherited without
disturbing the existing system of partition and succession under Hindu law.
Keeping in view the diverse cultural, religious and social practices, and the prevailing
situation on registration of marriage since May 1955 till date, though mere registration of
marriage does not provide a conclusive proof of marriage, yet in the contemporary society,
especially in view of the advancement of technology and social media coverage of
individual’s life, a reliable proof of marriage with maximum possible details about the
prospective spouses are the need of the hour. It is possible only when prenuptial agreements
98
with due application of law are introduced in the country. It will help not only to the
disputing parties to the matrimonial proceedings, but also to the courts including the family
courts to dispose of matrimonial matters in a more logical and speedy manner. 1
At the end of the paper, the author advocates that: (i) the daughter who has been legally
adopted must be considered a coparcener in the family of her adoption through proper
amendment into the Section 6 of the Hindu Succession (Amendment) Act 2005; (ii) the
daughter has been provided equal property rights including in the coparcenary property in the
natal family by Section 6 of the said Act of 2005. In a similar way, she should be provided
with equal property rights in the family of her marriage during the life time of her husband
through suitable amendments in the provisions of the Hindu Succession (Amendment) Act
2005; and (iii) the daughter-in law must be welcomed in the matrimonial home with equal
property rights in the matrimonial property. The time has come where we need to understand
and recognise homemakers’ work as productive work and the same shall be remunerated in
the due form and share in the matrimonial property. Further, she should be enabled to hold
joint ownership in the matrimonial property, where division and devolution of such property
is taken care of equally by her and on her children accordingly,through suitable amendment
into the provisions of the Hindu Succession (Amendment) Act 2005 and the Hindu Marriage
Act 1955. If such amendments are incorporated, there shall be real quality among the sexes
with regards to property rights, matrimonial remedies and social realities, where odd practice
of live-in relationship, breakdown of marriage and emergence of nuclear family will be
controlled to a great extent.
1 Vijender Kumar, “Quest for Prenuptial Agreement in Institution of Marriage: A Socio-Legal Approach”, 60
(2018) JILI, pp. 406-426.
99
FACETS OF LEGITIMACY OF CHILDREN AND THEIR PROPERTY RIGHTS
UNDER HINDU LAW: A SOCIO-LEGAL ANALYSIS
Vijender KumarandVidhi Singh
Abstract
Children are the human assets of a nation state and their existence depends on
their parents. If the parents are married as per law, personal or state made, as
applicable to them, then there is no legal issue for such children. But, if their
parents are not legally married or their relationship is not protected by law or
custom, then such children are left to the mercy of social mores, and legal system
of the state. The Hindu Marriage Act 1955 protects the interests of children who
are legitimate in fact, and also to a certain extent who are legitimate in law,
wherever there has been either a marriage, an attempt or presumption of
marriage. The Hindu Succession Act 1956 governs the inheritance rights,
considers only legitimate children for inheritance and relates illegitimate
children only to the mother. However, the children who are not socially
recognised and legally protected are left outside the gamut of getting property
rights of their father albeit maternity is certain. Hence, this paper is an attempt to
analyse socio-legal facets of legitimacy of children and their property rights
under Hindu law.
Keywords: Children, Parents, Family, Status, Legitimacy, Marriage,
Relationship, Property.
Introduction
In the contemporary Hindu society, cordial family life has become a challenge. With
extinguishing ancient family structure among Hindus, individuals have been testing sense of
freedom or independence in their matrimonial homes; but children are the most affected
creatures by this pursuit of carefree life. In earlier days, marriage was the binding force
between two families as their male or female members used to have arranged marriages. But,
with liberalisation, privatisation and globalisation, marriage has become individual affair
where family has been put on the least priority. In the pretext of job, business, trade,
professional requirements, young married or ought to be married couples are forced to live
far from their native places in diverse cultural, ethical and professional conditions. Hence,
Hindu marriage institution per se is facing twofold socio-legal challenges, viz., first,
 Professor of Law and Vice-Chancellor, Maharashtra National Law University, Nagpur, e-mail:
vijenderkumar@yahoo.com.
 Student, Symbiosis Law School, Hyderabad, e-mail: singhvidhivk@gmail.com.
100
individual freedom; and second, public attitude towards marriage. Nowadays, the young
people have become career oriented where family bonding lacks in letter and spirit.
Individualism is on its peak; due to which many times children suffer from lack of family and
social learnings at home. They hardly get exposure towards other relations in family life or
society, as their parents have cut themselves off from their respective joint family members
due to demands of modern life.
Property, ancestral or coparcenary, is most affected phenomena nowadays in a joint Hindu
family. Many members have moved from their place of birth to other places and have settled
there with their immediate family. Consequently, only few members, specially the elder ones,
are left at the original place of joint Hindu family. They are not in the position to manage the
ancestral properties which number of generations accumulated while investing their
sentiments and earnings. As part of Indian cultural ethos, ancestors always tried their best to
protect properties for future generations; hence, either they covert the nature of such property
or sell it off. By doing so, the young generation is distanced from their roots in wake of
accomplishing success in their life and they do not consider maintaining relations with elders
as important as elders used to take care of them. But, in later point of time, if anything goes
wrong in their personal or professional life, they do not know where to fall back for social
and financial support. Such kind of family life is neither good for the spouses or cohabitees
nor conducive for the upbringing of children. Therefore, a healthy family life with
preservation of family relations and property is the only mantra for one’s successful life.
The birth of a child under Hindu law is celebrated with due importance attached from the
moment they are conceived by their mothers. Once a woman is known to be in the family
way (pregnant), she is cared for by the family members, natal as well as marital. While doing
so, a married female Hindu performs one of the matrimonial duties. Under Hindu law,
progeny within the legal wedlock is one of the core objectives of the marriage which she
fulfils by giving birth to a child. Once a child is born in the family, it becomes the asset of the
family and the child is confirmed with membership of his/her father’s family. Further, the
child becomes Sapindagotraja (part and parcel of his/her ancestral linage including the
father) of his/her father’s family. Consequently, the child is confirmed with the
surname/Gotra of his/her family and thereafter he/she is known by this surname. The child so
born to the family and his/her parents are subject to the same personal law, as the parents are
subject to their personal law. Furthermore, in personal law of Hindus-uncodified or codified,
status of children is given due importance in ancient as well as in contemporary Hindu
society which brings them certain property rights in the family. In case of difference of status
among children within the family, it leads to unequal distribution of property among them,
principally. For example, illegitimate children are family members of their putative father but
are not coparceners whereas children born to their parents’ legal wedlock are the members as
well as the coparceners of their father’s family. Under the Constitution of India children have
equal rights irrespective of whether they are legitimate or illegitimate by status. But, in
personal law situation is different, as it deals with matters such as marriage, adoption,
maintenance, custody, divorce, coparcenary, partition and succession, among the persons
based on their status, he or she carries within the family and confirms upon him/her property
rights accordingly. As a matter of international policy, India on November 11, 1997 has
signed a Convention on ‘the Rights of the Child’ and committed to uphold all rights of the
children within the territory of India. Being party to this international instrument, India as
nation state has its own domestic/municipal laws to govern personal and public life of its
citizens. By and large, children are governed by the personal law of their respective parents.
For the purpose of this paper, the authors consider it relevant to deal with only Hindu
personal law, to be precise, the Hindu Marriage Act 1955 and the Hindu Succession Act
101
1956. Hence, the authors have analysed position, status and rights including property rights of
children in accordance with the Hindu personal law in this paper.
Present form of the Hindu Marriage Act 1955 creates three categories among children,
viz., (i) children born of their parents’ wedlock; (ii) children born of void or voidable
marriages including presumption of marriage; and (iii) children born of live-in relationship
and/or other relationships which are not covered under the Act. Children mentioned in
category (i) are the children who are legitimate, infact, as they are born to legal wedlock of
their parents. They get social recognition and legal protection and all their rights such as
coparcenary and heirship in the family of their parents are secured. Whereas children
mentioned in category (ii) are the children who are born to void or voidable marriages or
presumption of marriage. They are legitimate by virtue of law as referred in sub-sections (1)
and (2) of Section 16 of the Hindu Marriage Act 1955 and though they get social recognition
and legal protection, it is a limited legitimacy which is only to the extent to their parents
against whom the property rights can be invoked. While referring to children of category (iii),
these are the children who are born of live-in relationships or other such relationships which
are not covered in sub-sections (1) and (2) of Section 16 of the Act. These children neither
have social recognition nor legal protection under any law and remain illegitimate. Further,
these children get nothing from the male persons who had access to the women, who
happened to be the mothers of such children. However, these children are entitled to inherit
their mother’s property as a matter of legal right.
Hence, there are some research questions which would be answered in this paper based on
the customary practices, statutory laws and judicial pronouncements on legitimacy of
children and their property rights. They are: (i) whether children born of null and void
marriages or marriages which are annulled by a decree of nullity, who are legitimate in law,
are the Class-I heirs of their putative father, if so, whether they share half-blood relationship
with the children of their putative father through his legally wedded wife? (ii) In cases
wherever the courts have granted succession certificate to the children born of null and void
marriages or marriages which are annulled by a decree of nullity, the execution of such
decrees or final orders would be governed by the provisions of the Hindu Succession Act
1956 or they would be governed as special cases/laws. (iii) Whether children born from live-
in relationships, by circumstances, hold the status being legitimate in fact or in law, and if so,
whether they will be considered as Class-I heirs of the live-in partner of their mother? (iv) In
cases wherever the courts have granted succession certificate to the children born of live-in
relationship, by circumstances, the execution of such decrees or final orders would be
governed by the provisions of the Hindu Succession Act 1956 or they would be governed as
special cases/laws. (v) Whether preference among the full blood and half-blood relations
makes any adverse impact on the inheritance rights of these children? (vi) Whenever intestate
succession is opened among the heirs born from properly solemnized marriages, null and
void marriages or marriages which are annulled by a decree of nullity, would in any way
have an application of Section 19 of the Hindu Succession Act 1956? (vii) Whenever
intestate succession is opened among the heirs born from properly solemnized marriage and
live-in relationship, by circumstances, would in any way have an application of Section 19 of
the Hindu Succession Act 1956? Finally, the paper focuses on to critically analyse the status
and property rights of children from different categories. It provides insightful facets of
legitimacy among these children and also analyses judicial pronouncements on claim of
property rights by these children. While concluding on variety of issues, through this paper,
the authors appeal to the Hon’ble Chief Justice of India to constitute a larger bench at the
Supreme Court to decide the ‘scope and extent’ of the word ‘property’ as referred in sub-
102
section (3) of Section 16 of the Hindu Marriage Act 1955, and property rights of children
born from null and void or voidable marriages or live-in relationships.
Historical Perspective on Legitimacy of Children
Each member of a joint Hindu family holds status which provides certain rights in its fold,
be it matrimonial, care and protection, maintenance, or property. Legitimacy is such a status
confirmed on a child born out of the wedlock of a male member of that joint family. Under
Hindu law legitimacy of a child is understood as ‘Aurasa’ wherein Hindu jurisprudence
conceived the concept of Aurasa which is different from the concept of legitimacy as
understood under English law. A joint Hindu family either governed by Mitakshara school or
Dayabhaga school confirms its membership through marriage, birth and adoption. It
presumes that its member by birth, who is born to a validly solemnized marriage, and that the
child is not only born but also conceived after the marriage to be socially recognised and
legally protected. It means that the procreation of a child in addition to birth is given due
importance in Hindu law as compared to the birth of a child alone in English law. Therefore,
Hindu law considered both conception/procreation and birth of a child during the continuance
of lawful wedlock. In ancient Hindu law, there were 12 or 13 kinds of sons mentioned but
one of them is ‘Aurasa’ son. Manu says that “him whom a man begets on his own wedded
wife, let him know to be a legitimate son of the body (Aurasa), the first in rank”1. Apastamba,
Vashistha, Baudhayana and Vishnu are also of the same opinion. 2 Further, Vijnaneswara, the
author of Mitakshara, seems to be in agreement with Manu in upholding that
conception/procreation as well as birth; and both must have taken place after marriage in
order to confer the status of legitimacy on a son.3
Keeping in view the abovementioned description of ‘legitimate child’, there seems to be
difference among Roman law, English law and Hindu law which indicates that (i) in Roman
law subsequent marriage renders the child legitimate. It covers both conception/procreation
and birth; (ii) in English law before 1926, birth should be during the wedlock, however,
conception may not be (see Section 112 of the Indian Evidence Act 1872); (iii) in Hindu law,
both conception/procreation and birth must be during the subsistence of wedlock. Thus,
Hindu law speaks of marriage as condition precedent, but Roman law speaks of marriage as
condition subsequent. However, English law takes the middle course; condition precedent for
birth and condition subsequent for conception. However, this concept of legitimation, from
the Roman law passed into the Canon law in or about the twelfth century4 and gradually
became the law of almost all Western Europe. In Western Europe, the principle found general
acceptance and is embodied in the Civil Codes of France, Belgium, Italy, Spain, Portugal,
Holland, Germany, Austria, Norway, Denmark, Sweden5 and Switzerland6. Sir Dennis
Fitzpatrick says that “from Europe the system was extended to countries where the Latin
influence obtained a predominance”7. Thus, this concept took root in the French Island of the
West Indies, in Mexico, Brazil, Argentina, Chile, Peru, Venezuela, Guatemala, Columbia and
Ecuador.8
1 Manu, IX, 166, SBE, Vol. 25, p. 361.

2 Apastamba, II, 18.1; Vashistha, XVII, 13; Baudh, II, 2.3.14; Vishnu, XV, 2.
3 Yajn. II, 28; Mitakshara, I, XI, 2.
4 Decretal-Greg 4, xvii.6 etc. Tanta est enim vis sacramenti (matrimonii) ut qui antea sunt geniti post
contractum matrimonium legitimi habeantur.
5 See the references in Sir Dennis Fitz Patrick’s article “Legitimation by Subsequent Marriage”, Journal of
Comparative Legislation, J.C. Leg N.S. VI 1905, p. 22.
6 Article 258 of the Swiss Civil Code 1907.
7 Supra n. 5.
8 Supra n. 5, pp. 34-35. vide Hari Dev Kohli, LAW AND ILLEGITIMATE CHILD, 1st ed. 2003, pp. 99-100.
103
Further, in Hindu law, the illegitimate child, putative father and natural mother have not
been considered as strangers to each other and an illegitimate child has never been considered
as ‘filiusnullius’1. In some cases, he was considered to be a member of the family. The
illegitimate son under Shastric law is put in two categories: (i) the child born to a regenerate
class by a permanent and exclusively kept concubine; and (ii) the child born to a Sudra by a
permanent and exclusively kept concubine. In case2 of (i), the child being the member of his
father’s family though not as a coparcener, has full rights of maintenance throughout life. In
case3 of (ii), the child enjoying a much higher place having a status of a son and a member of
his father’s family. Since there was no concept of filius nullius, there was no such necessity
imposed to have a subsequent marriage to legitimatize the illegitimate son. Hence, he is
recognised as a son. But, in modern Hindu law, two legal instances have given rise to an
inference of legitimation by subsequent marriage though indirectly. First, Section 112 of the
Indian Evidence Act 1872 provides presumption of legitimacy. It says, “that any person was
born during the continuance of a valid marriage between his mother and any man…”. This
provision provides of birth and not conception during lawful wedlock which overrules the
Hindu law and this view has been in number of cases 4 upholding with a rider and burden of
proof is put on the father to show ‘Non Access’. Second, instance can be gathered from
Section 12(1)(d) of the Hindu Marriage Act 1955 wherein Section 12 of the Act provides
voidable marriage. The Section provides grounds on which such marriage can be declared as
annulled. The sub-section (1)(d) of Section 12 stipulates, “that the respondent was at the time
of marriage pregnant by some person other than the petitioner”. The expression ‘other
person that the petitioner’ is legally significant. So if the petitioner had pre-marital
intercourse with a woman and then later on marries the same woman, such a marriage is valid
and not voidable and the child so born shall be legitimate child under the doctrine of
‘legitimatio per subsequence matrimonium’. Though this doctrine has not been taken directly
as such situation is exceptional but the law has covered even this exceptional situation and
that such a marriage cannot be declared as null and void. So such a marriage is lawful and the
child so born is legitimate.5
While researching on Aurasa son, who is ‘legitimate in fact’ and first in rank, under
ancient Indian literature and the importance attached with such son in Hindu law, the authors
of this paper find that Aurasason in ancient Indian legal literature occupies a very high status.
It is through the Aurasa son that the seers desired immortality. Hence, the Aurasason was
desired. It is from the Rigvedic6 period that the prayer for Aurasa son is being made. The
Sutrakaras and the Dharmasastrakarashave defined the Aurasa son in an unambiguous way.
Apastamba defines “an aurasa son as a son begotten by a man who approaches, in the
proper season, a woman of equal caste, who has not belonged to another man, and who has
been married legally, (sastravihita) have a right to (follow) the occupations (of their castes)
1 Latin term which means ‘a son of nobody’, however, an illegitimate child who had few legal rights under the
Common Law. Further, laws have broadened the legal rights of illegitimate children who, in the language of
some statutes, are referred to as non-marital children.
2 Mitakshara, I, 12.3.
3 Manu, IX, 179, SBE Vol. 25, p. 364. The text of Manu read as “a son who is (begotten) by a Sudra on a
female slave, or on the female slave of his slave, mat, if permitted (by his father), take a share (of the
inheritance); thus the law is settled”. vide also Yajnavalkya, II, 133-134; Mitakshara, I, 12; Dayabhaga, IX,
28; Mayukha, IV, 29-30.
4 Karapaya Servai v. Mayandi AIR 1934 PC 49; Bhagwathi v. Aiyappan AIR 1953 TC 470; Palani v. Sethu
AIR 1924 Mad 677; Kahan Singh v. Natha Singh AIR 1925 Lah 414.
5 Hari Dev Kohli, LAW AND ILLEGITIMATE CHILD, 1st ed. 2003, p. 113.
6 Rig. 7.4.7.8.
104
and to inherit the estate.”1Baudhayana, like Apastambadefines the aurasason in the same
way. He states that “one must know a son begotten by (the husband) himself on a wedded wife
of equal caste (to be) a legitimate son of the body (Aurasa). They quote also (the following
verse);from the several limbs (of my body) art thou produced, from my heart art thou born;
thou art ‘self’ called a son; mayest thou live a hundred autumns”2. Apastambaand
Baudhayanaboth insist that the Aurasason is only one who is born of a wife of the same
varna. This view has not been followed by the later Dharmasutrakarasand
Dharmasastrakaras. However, Vasishtha defines the Aurasa son as one who is assigned the
first place among the twelve kinds of sons, who is begotten by the husband himself on his
lawfully wedded wife. Vasishtha does not insist that the married wife should be of the same
varna as that of husband. 3Vishnu Dharmasutradefines the Aurasason as the son of the body,
viz., “he who is begotten (by the husband) himself on his own lawfully wedded wife”.4 Unlike
Baudhayanaand Apastamba, Vishnu Dharmasutra does not speak of the same varna of the
wife as that of the husband. Manu defines an Aurasason as one, whom a man begets on his
own wedded wife, let him know to be a legitimate son of the body (Aurasa), the first in rank.5
He speaks only of the wedded wife and does not require that the wife should be of the same
varna. Kautilayasays that an Aurasason is one who has been procreated by a man himself on
his wedded wife according to the rules of Shastra.6The Aurasason is ‘in fact a son’ born in a
lawful wedlock. Gradually, the varna of the wife became irrelevant, at least in the case of an
anuloma marriage. 7
However, the definition of the Aurasason was subjected to the judicial scrutiny in Pedda
Amani v.Zemindar of Marungpuri8 where the Privy Council following the English law did not
approve of the Indian definition of Aurasason. The court made modifications in this
definition and held that procreation after marriage was not distinctly necessary for legitimacy
as a son even according to the ancient texts, that to hold so would be an inconvenient doctrine
and that the Hindu law is the same, in that respect as the English law. This decision of the
Privy Council being the law of the land is based on the English conception of legitimacy and
on the Section 112 of the Indian Evidence Act 1872. This decision has been criticized by
Gooroodass Banerjee in his ‘Tagore Law Lectures’9 by concluding that ‘the Hindu law of
legitimacy is stricter than even the English law’.
Hence, under Hindu law both conception/procreation and birth must be within ones’
wedlock to legitimize children born to such marriage. Sub-section (1) of Section 16 of the
Hindu Marriage Act 1955 refers as, “…whether such child is born before or after the
commencement of the Marriage Laws (Amendment) Act 1976”, which indicates that ‘birth’ of
a child includes both conception/procreation and birth in itself; but it must be within the
marriage which may be declared by a court on a petition filed by either of the parties to such
marriage as null and void. Though the expression ‘conceived’ explicitly is not to be found in
sub-section (1) of Section 16 of the Act as it applies to children born before or after the
amended Act of 1976.10 Further, Sub-section (2) of Section 16 of the Act states that even if a
1 G.N. Jha, HINDU LAW IN ITS SOURCES, 1st ed., 1930, Vol. II, pp. 175-176.
2 Baudhayana, 11, 2, 3, 14, SBE Vol. 14, p. 226.
3 Vasishtha, XVII, 13, SBE Vol. 14, p. 85.
4 Vishnu, XV, 2, SBE Vol. 7, p. 61.
5 Manu, X, 166, SBE Vol. 25, p. 361.
6 Svayamajatah Kritkriyamaurasash, Arth. III, 7.
7 P.V. Kane, HISTORY OF DHARMASASTRA, 2nd ed. 1973, Vol. III, p. 656.
8 1 I.A. 282, 293.
9 Gooroodass Banerjee, THE HINDU LAW OF MARRIAGE AND STRIDHANA (TLL), 1878.
10 Surjit Singhv.Mohinder Pal Singh AIR 1988 P&H 156: Sengu Baiv.Sitaram (1988) 1 HLR 687 (Bom).
105
voidable marriage is annulled by a decree of nullity under Section 12 of the Act, the children
begotten or conceived before the decree is made, shall be deemed to be legitimate
notwithstanding the decree of nullity. It is to be noted that this provision applies not only to
children begotten but also conceived before the decree though born after the decree.
Furthermore, under Hindu law of partition conception of a child is considered at par with
birth of a child. For example, in case of reopening of partition, there are exceptions in Hindu
law and one among them is the child in the womb of the mother, on which Manu says that
“once is the partition (of the inheritance) made,…”1. Partition can also be reopened in case of
after-born child. While referring judicial pronouncements on the issue it can safely be said
that “a son who was in his mother’s womb at the time of partition but was born subsequently
to it, is however entitled to reopen the partition and to receive a share equal to that of his
brothers. For a son in the womb is in point of law in existence”2. Again in Yekeyamian v.
Agniswarian,3 the court held that “if the pregnancy is known at the time, the distribution
should be deferred till its result is ascertained, or the distribution may take place and a share
equal to that of a son may be provisionally reserved so as to be allotted to the after-born son,
if any. If the pregnancy is not known, and a son is afterwards born, a redistribution must take
place of the estate as it then stands”4. Similarly, in case of intestate succession among
Hindus, the child in womb of his/her mother at the time of the death of his/her father, who
died intestate,5 is considered as legitimate claimant on the intestacy of his/her father and gets
the same share as he/she would have been given had he/she been born before the death of the
intestate.6 Section 20 of the Hindu Succession Act 1956 makes it clear that under Hindu law
for the purpose of intestate succession it considers both, conception and birth, of a child
though this provision makes it mandatory that such a child must be born alive subsequent to
the death of the intestate.
Property under Hindu Law
The Mitakshara school classifies property mainly under two heads: first,
ApratibandhaDaya or unobstructed heritage; and secondly, SapratibandhaDaya or obstructed
heritage. All properties inherited by a male Hindu from a direct male ancestor, not exceeding
three degrees higher to him are called ApratibandhaDaya. In this property his son, son’s son,
son’s son’s son acquires an interest by birth. Therefore, it is called as unobstructed heritage.
On the other hand, when a person inherits property from any other relation, such as maternal
or paternal uncle or brother, nephew, etc., then it is known as SapratibandhaDayaand his son,
son’s son and son’s son’s son, or for that matter, any other person does not acquire an interest
by birth. The Mitakshara property is further divided into two heads, viz., joint family property
and self-acquired property. First, in joint family property, the property flows from different
sources from which all members of the joint family draw out to fulfill their multifarious
needs. One of its sources isancestral property, i.e., any property inherited from an ancestor or
ancestress. It includes a share allotted on the partition, and the property begotten on severance
of status. In the former, the share, which a coparcener obtains on the partition of ancestral
1 Manu, IX, 47, SBE Vol. 25, p. 335.

2 Jagat Krishna v. Ajit Kumar AIR 1964 Ori 75.
3 (1870) 4 Mad HC 307.
4 Vijender Kumar (rev.), John D. Mayne, HINDU LAW & USAGE, 18th ed. 2020, p. 1129.
5 Section 3(1)(g) of the Hindu Succession Act 1956 defines the term ‘intestate’ as “a person is deemed to die
intestate in respect of property capable of which he or she not made a testamentary disposition capable of
taking effect”.
6 Section 20 of the Hindu Succession Act 1956 reads as “a child who was in the womb at the time of an
intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or
she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a
case with effect from the date of the death of the intestate”.
106
property, is known as ancestral property with respect to his male issue. The coparcener takes
an interest in it by birth, whether he is in existence at the time of the partition or is born
subsequently;1 as regards to the latter, whenever a coparcener expresses his intention to
partition, a severance of status takes place. Once severance of status takes place among the
interested parties to partition then partition takes place by metes and bounds, meaning thereby
actual partition. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe,2 Justice A.N. Sen had
observed that “the character of any joint family property does not change with severance of
status of the joint family and a joint family property continues to retain its joint family
character so long as the joint family property is in existence and is not partitioned among the
co-shares.”3 Secondly, self-acquired property, according to Yajnavalkya, whatever is
acquired by the coparcener himself, without detriment to his father’s estate such as a present
from a friend or a gift at marriage, does not appertain to the coparceners. According to
Mitakshara, property acquired by means of learning would be self-acquired property provided
that learning was obtained without detriment to the ancestral property. Under old Hindu law
there has been a distinction between ordinary education and specialized education/training.
On this issue, there has been number of Privy Council judgements. 4 But, by enacting the
Hindu Gains of Learning Act 1930 this distinction was taken care of. This Act makes it clear
that gains of learning are only self-acquired property, whether the education imparted
happens to be ordinary education or specified education. Gains of learning are thus always
self-acquired property under this Act.
Primarily, the Hindu Marriage Act 1955 was enacted to provide codify and uniform law of
marriage among Hindus which can be seen in the long title of the Act which reads as “an Act
to amend and codify the law relating to marriage among Hindus.” After an amendment in
1976 into the principal Act of 1955, apart from other objects of the Act, children born from
null and void marriages or marriages annulled by a decree of nullity were confirmed with
legitimacy, who would otherwise have suffered of illegitimacy. While doing so, the amended
Act has also confirmed certain property rights to these children under sub-section (3) of
Section 16 of the Act, though the property per se is the subject matter of either Hindu law of
coparcenary, partition, or succession and these issues are governed by separate wing of Hindu
law but not by the Hindu Marriage Act. The word ‘property’ is used by the lawmakers in
Section 16(3) of the Hindu Marriage Act 1955, but the Section 16 does not specify the kind
of property that is subject to sub-section 16(3); It is uncertain that whether such property
qualifies as ancestral property, or coparcenary property or self-acquired property of the
parents. It is clear from the plain reading of sub-section 16(3) that a child who is considered
legitimate under sub-sections (1) and (2) of Section 16 of the Act cannot claim any share in
the property of any other person than the parents. Sub-section (3) of Section 16 of the Hindu
Marriage Act 1955 reads as “nothing contained in sub-section (1) or sub-section (2) shall be
construed as conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nullity under Section 12, any rights in or to the property of any
person, other than the parents, in any case where, but for the passing of this Act, such child
would have been incapable of possessing or acquiring any such rights by reason of his not
being the legitimate child of his parents”. Therefore, in Hindu law there are many ways to
acquire property rights, such as an Aurasa (legitimate) child under Mitakshara law gets an
interest in the coparcenary property by birth; under the Hindu Succession Act 1956 legitimate
children upto three degrees are the Class-I heirs to their deceased father, grandfather and
1 Adurmoni v. Chaudhary (1878) 3 Cal 18.

2 AIR 1986 SC 79.
3 Ibid., p. 90.
4 Mehta Ram v. Rewa Chand 45 Cal. 666 (PC): Gokul Chand v. Hukam Chand 2 Lah 40 (PC).
107
great grandfather. Also, irrespective of being legitimate or illegitimate status, under Hindu
law, children are legal heirs to their mothers.
Further, plain reading of sub-section 3(1)(j) of the Hindu Succession Act 1956 makes it
clear that the word ‘related’ is specifically restricted to legitimate kinship and other relations
are not covered. Sub-section (1)(j) of Section 3 of the Act reads as “‘related’ means related
by legitimate kinship. Provided the illegitimate children shall be deemed to be related to their
mothers and to one another, and their legitimate, descendants shall be deemed to be related
to them and to one another, and any word expressing relationship or denoting a relative shall
be construed accordingly”. In Daddo v. Raghunath,1 the court held that the illegitimate sons
or daughters are therefore not to be reckoned as sons and daughters under the Act and they
are excluded from the line of succession by virtue of this definition except to the extent
allowed in the proviso. Further, the court held that “it is indeed unfortunate that an otherwise
dynamic legislation should have extinguished the intestate succession rights of illegitimate
sons of Sudras herebefore enjoyed by them unperturbed over the centuries. One hopes for the
time when the resultant injustice stands remedied. Till then however the law as in force has to
prevail and must be given effect to.”2 Under old Hindu law, it was well settled that an
illegitimate son of Sudra by a continuously kept concubine was entitled to succeed to the
estate both separate and ancestral property of his putative father to a limited extent. If the
succession opened after the Act came into force it would be governed by the provisions of
this Act only and an illegitimate son of Sudra is not entitled to succeed to the estate of his
putative father by way of intestate succession which opens after the Act came into force. 3
Further, in ChodonPuthiyothShyamalavalli Amma v. KavalamJisha,4 the court held that
“under Section 3(1)(j) of the Act word ‘related’ means ‘related by legitimate kinship’. In fact,
to safeguard the rights of the illegitimate children, a proviso thereafter was added to the
effect that illegitimate children shall be deemed to be related to their mother and to one
another and their legitimate descendants shall be deemed to be related to them and to one
another. The deeming provision is not extended to the father of the illegitimate children.
Hence, only a legitimate kinship is a relative, who is entitled to inherit to the property of a
male Hindu, as provided under the Hindu Succession Act.”5
After reading statutory provisions and judicial pronouncements, it can be simply
understood that to acquire property, ancestral or coparcenary or self-acquired, one must have
legitimate status within the matrimonial alliance of his/her parents. Present codified laws
governing property among Hindus do not distinguish between illegitimate children either
from Sudras, permanent kept concubine of a Sudra, or any other segment of Hindu society,
but look at whether such children are from lawful wedlock of their parents or not; and
accordingly confirms upon them a status which brings along with it certain property rights.
However, the Hindu Succession Act 1956 makes a distinction between legitimate and
illegitimate children and confirms upon them status and property rights in their family
accordingly. Therefore, principle clause of sub-section 3(1)(j) of the Act recognises
legitimate kinship as ‘related’ not only of their mother but also to their father and his family
members. Consequently, legitimate kinships are entitled to get coparcenary status and they
are Class-I heirs too to their father and his family members besides legal heir to their mother;
whereas, illegitimate kinships are governed by the ‘proviso’ attached with the principle
clause of sub-section 3(1)(j) of the Act which provides them a limited property rights.
1 AIR 1979 Bom 176.

2 AIR 1979 Bom 176, p. 181.
3 Vijender Kumar (rev.), John D. Mayne, HINDU LAW & USAGE, 18th ed. 2020, p. 1400.
4 AIR 2007 Ker 246.
5 AIR 2007 Ker 246, 249.
108
Presumption of Relationship (Marriage or in Nature of Marriage)
When a clear proof of a marriage which is supposed to be solemnised by observing
religious and customary rites by the parties, who otherwise fulfil all conditions laid in Section
5 of the Hindu Marriage Act 1955, cannot be proved before the court then the courts are at
liberty under the Indian Evidence Act 1872 to presume certain facts based on certain
inferences and administer justice in the matter. While understanding facets of presumption
under the Indian Evidence Act, Phipson describes that “presumptions may be either of law or
fact, and when of law may be either conclusive (proesumptiones juris et de jure), or
rebuttable (proesumptiones juris), but when of fact (proesumptiones hominis) are always
rebuttable”1. He further says that “presumptions of fact are inferences which the mind
naturally and logically draws from given facts, irrespective of their legal effect. Not only are
they always rebuttable, but either the trier of fact may refuse to make the usual or natural
inference notwithstanding that there is no rebutting evidence”2. The Supreme Court in
Vattacherukuru Village Panchayat v. Nori VenkataramaDeckshuthulu, 3 held that a
presumption can be raised to fill the gaps in evidence, but it cannot be used to contradict
evidence. Further, in State of UP v. Gangula Satya Murthy4 case, the Supreme Court held that
the power conferred by Section 114 of the Indian Evidence Act 1872 is in respect of
inferences which may be drawn by the court. The section does not authorise the courts to
legislate as to the manner in which human beings should conduct themselves. Furthermore, in
State of Karnataka v. David Rozario,5 the Supreme Court held that a presumption of facts is
an assumption resulting from one’s experience of the course of natural events of human
conduct and human character. Such experience can be used in the ordinary course of life as
well as in the business of the courts. Hence, it is settled law that presumption of fact is a rule
in law of evidence that a fact otherwise doubtful may be inferred from certain other proved
facts. When inferring the existence of a fact from other set of proved facts, the court exercises
a process of reasoning and reaches a logical conclusion as the most probable position. 6
Section 112 of the Indian Evidence Act 1872 provides that legitimacy of a child is proved
only if he/she was born during the continuance of a valid marriage between his mother and
father. The children born from a live-in relationship were ‘illegitimate’in the eye of existing
law. However, the Supreme Court in Tulsav. Durghatiya7 held that children born out of such
a relationship will no more be considered illegitimate. Again in Vidyadhariv. Sukhrana Bai,8
the Supreme Court held that even if a person had contracted second marriage during the
subsistence of his first marriage, children born out of such second marriage would still be
legitimate though the second marriage would be void. Thus, in a case where a couple has
lived together for a long time, there shall be presumption of marriage and a child born from
such a relationship shall enjoy all the rights of a legitimate child. In Ram Lubhaya v.
Lachhmi,9 the court held that long association of the parties as the husband and wife accepted
by public at large leads to presumption of valid marriage. This presumption was fortified by
the fact that the woman was shown as widow in the death certificate of the man as well as in
1 Michael V. Argyle et al. (eds.), Sidney L. Phipson, EVIDENCE, 10th ed. p. 2012; Shakil Ahmad Khan
(rev.), Ratanlal & Dhirajlal, THE LAW OF EVIDENCE, 26th ed. 2017, pp. 595-596.
2 Ibid, p. 596.
3 (1991) Supp. 2 SCC 228.
4 AIR 1997 SC 1588: State v. Bhera 1997 Cr LJ 1237 (Raj).
5 2002 Cr LJ 4127 (SC).
6 Shakil Ahmad Khan (rev.), Ratanlal & Dhirajlal, THE LAW OF EVIDENCE, 26th ed. 2017, pp. 596-597.
7 2008 SC 1193.
8 AIR 2008 SC 1420.
9 AIR 2010 P&H 137.
109
the mutation certificate. She was held to be entitled to inherit the property as a legal heir.
While dealing with live-in relationship, the Supreme Court in Madan Mohan Singh v. Rajni
Kant,1 held that where a live-in relationship continues for a long time, it can no longer be
treated as ‘walk-in and walk-out relationship’. In fact, the Supreme Court in Tulsa v.
Durghatiya,2 held that prolonged relationship of this kind gives rise to presumption of
marriage. Whereas in Swaminathan v. Palaniammal,3 the court held that where by reason of
the provisions in the Hindu Marriage Act 1955 the second marriage, during the subsistence of
the first, is void abinitio, there would be no presumption of validity even if the couple is
living together as the husband and wife and the society recognised them as such. Such
marriage does not create any right of succession. Therefore, a long living fact of two
heterosexuals creates a valid presumption, though it is a matter of fact but gets due
application in law while considering such relationship towards live-in relationship as
presumption of marriage. This assumption in turn provides legal recognition to such
relationships and makes them legal in the eyes of law. But, children born from such presumed
relationships among heterosexuals are not provided any legal support as Section 16 of the
Hindu Marriage Act 1955 does not consider them within its scope.
Birth as Conclusive Proof and Legitimate Children
Birth of a child is primarily the choice of married couples on their mutual agreement.
Reason being that child is a combination of female egg (gamete) and male egg (sperm) which
creates another human being. In birth of a child, one thing is certain, i.e., ‘maternity’, a
woman/mother who gives birth to the child. Hence, mother and child relationship is a certain
phenomenon meaning thereby it is a matter of fact. If such birth of a child is from the woman
who is within her legal wedlock then neither the birth of such a child nor her status of being
mother is questioned, socially or legally. If by any chance, the woman who mothered the
child is not within her legal wedlock or presumed to be in marriage relationship other than the
birth of such a child then her status of being mother is questioned. But, the male/man who has
fathered the child, with his male egg to the woman who has given birth to the child, is a
matter of presumption to be decided on certain conclusive facts and to be provided with legal
protection. It means that ‘paternity’ is an issue in law, which needs to be decided based on
conclusive facts and law applicable to such issue. Therefore, the question of legitimacy
between the mother and the child is never an issue in law; as it is a fact that a particular
woman has given birth to a child, which cannot be denied in either way. Whether this woman
is in a marriage relationship or not is a matter of law or custom. Whether relationship
between this woman and the man, who has fathered the child, is legitimate or not is a matter
of law and custom. But, when a child is born to such a woman and a man, it is the law which
needs to protect not only the interest of these two heterosexuals; but also the child born to
them. On a larger note, it is the marriage institution which takes care of the interest of mother,
father, and the children and provides them social recognition and legal protection. However,
it is the society which decides as to what kind of relationship among the heterosexuals needs
to be recognised and accordingly the law protects such relationships. Therefore, law
recognises mother-child relationship as legitimate; but puts on legal scrutiny the father-child
relationship to examine whether the birth is within the wedlock, or recognises such
relationship and accordingly confirms status on them which attracts certain rights including
property rights on the children, who are born to such relationship. In such a situation,
religious and customary rites, personal law and public law, such as Indian Evidence Act do
1 AIR 2010 SC 2933, p. 2938.

2 AIR 2008 SC 1193.
3 AIR 2007 MP 242.
110
apply to the father-child and/or mother-child relationships. Whereas judicial scrutiny of the
customary practices and legal provisions applicable to the parties becomes crucial in
confirming upon them legitimacy of their relationship and to fill the gap.
Birth of a child is a matter of fact, if it is from a validly solemnized marriage whereas
confirming legitimacy is a matter of law and policy of the state. Marriage becomes the focal
point from where birth gets into existence; and if it is within legal fold, law confirms on it
legitimacy as status. Substantive as well as procedural laws consider validity of such
marriage as conclusive proof to legitimize birth of a child and confirming certain rights upon
that child. Therefore, birth of a child during marriage is considered a conclusive proof of
legitimacy under Section 112 of the Indian Evidence Act 1872.1 In Bhima v. Dhulapp2 the
court held that Section 112 of the Indian Evidence Act is based on the principle that when a
particular relationship, such as marriage, is shown to exist, then its continuance must prima
facie be presumed. The intention of law makers while designing Section 112 of the Act seems
to be of two-fold, i.e., (i) there must be a marriage; once the validity of marriage is proved;
and (ii) presumption of legitimacy- legal fiction; there is strong presumption about the
legitimacy of children born from that wedlock. However, such presumption can only be
rebutted by strong, clear, satisfying and conclusive evidence. First, there must be a marriage,
is the concern of personal law. Each personal law has certain requirements including religious
and customary rites and ceremonies to be followed. Based on the fulfilment of these
requirements and observance of such religious and customary rites and ceremonies, a
marriage attains the status of being legal wedlock. Secondly, marriage whether Hindu,
Muslim or civil is considered to be a union of two heterosexuals who have reproductive
instincts. So there is a strong presumption that if these two heterosexuals consummate their
relationship, there is likely to be birth of a child. If such birth is outcome of a legal wedlock,
then legitimacy of such child is not questioned, whereas if such birth is out of non-legal
wedlock or such a relationship which neither has social recognition nor legal protection, the
birth of such a child is open for legal scrutiny and then legal fiction comes into play. Section
16 of the Hindu Marriage Act 1955 provides scope and application of such legal fiction while
considering birth of children in certain cases and confirming upon them status and certain
property rights. The Supreme Court in P.E.K. Kalliani Amma v.K. Devi3 held that “Section 16
contains a legal fiction. It is by a rule of fictio juris that the legislature has provided that
children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding
that the marriage was void or voidable”4. Further, the Supreme Court in
ChilukuriVenkateswarlu v. ChilukuriVenkatanarayana5 held that “the presumption under this
Section is a conclusive presumption of law which can be displaced only by proof of non-
access between the parties to the marriage at a time when according to the ordinary course
of nature the husband could have been the father of the child. Access and non-access connote
the existence and non-existence of opportunities for marital intercourse. Non-access can be
proved by evidence direct or circumstantial though the proof of non-access must be clear and
1 Section 112 of the Indian Evidence Act 1872, which reads as “the fact that any person was born during the
continuance of a valid marriage between his mother and any man, or within two hundred and eighty days
after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son
of that man, unless it can be shown that the parties to the marriage had no access to each other at any time
when he could have been begotten”.
2 (1904) 7 Bom LR 95.
3 (1996) 4 SCC 76: AIR 1996 SC 1963.
4 II(1996) DMC 82 (SC).
5 AIR 1954 SC 176.
111
satisfactory as the presumption of legitimacy is highly favoured by law”1.
While summarizing on the issue of birth as conclusive proof towards legitimacy of child, it
is pertinent to mention that marriage, being a social institution, is governed by personal law
of the parties and remains in personal domain of the parties with due legal protection.
Whereas any child born from a non-marriage relationship, or presumed to be marriage, or
relationship in the nature of marriage, is the subject matter of state’s made law, whose status
is decided in accordance with law and based on the status so confirmed in law, such child
gets property rights against the parent/s. But, while deciding status of any child under Hindu
personal law applicable to such child through proper application of law is the area where
personal and public laws applied together which largely depends on presumption of public
morality and public policy in existence at that point of time. The Supreme Court in Sham v.
Sanjeev2 held that in a civilised society it is imperative to presume the legitimacy of a child
born during continuation of a valid marriage and whose parents had ‘access’ to each other. It
is undesirable to enquire into the paternity of a child whose parents ‘have access’ to each
other. In S.P.S. Balasubramanyam v. Suruttayan,3 the Supreme Court held that “if man and
woman are living under the same roof and cohabiting for a number of years, there will be a
presumption under Section 114 of the Indian Evidence Act that they live as husband and wife
and the children born to them will not be illegitimate”4.
Status of Children under the Hindu Marriage Act and their Rights
Under Hindu law the issue of legitimacy of children is considered to be having both
procreation/conception and birth from a legal wedlock as the key factors. However, under
English law birth alone of a child from the wedlock is sufficient to consider the child as
legitimate. In contemporary Hindu society, there is no discrimination made among male and
female children with regard to legitimacy, they have been treated at par, and except
inheritance laws, other laws are also gender neutral. In 1955, Indian law makers had imported
English concept of legitimacy while drafting Hindu Marriage Act. The law relating to
marriage among Hindus was amended and codified in 1955 in the form of the Hindu
Marriage Act. The Act introduced a uniform and codified law among Hindus to govern their
marriage in a monogamous manner. Among many other new developments, divorce among
Hindus was also introduced and it was accepted by the Hindu society. On and after May 18,
1955, the day on which the Hindu Marriage Act 1955 (Act 25 of 1955) came into force, so
long as a marriage qualifies all conditions mentioned in Section 5 of the Act and solemnised
with due ceremonies as provided in Section 7 of the Act, any child born to such a wedlock is
considered as legitimate child and such child shall have all rights in the family of his/her
father. Section 11 of the Hindu Marriage Act 1955 provides that any marriage solemnized
after the commencement of the Hindu Marriage Act 1955 which contravenes any provision
laid in clauses (i), (iv) and (v) of Section 5 of the Act shall be null and void. A court of
competent jurisdiction may, on a petition presented by either party thereto against the other
party, declare the marriage as null and void by a decree of nullity if it contravenes any of the
conditions specified in these clauses. Further, Section 12 of the Act provides grounds for
nullity of marriage, wherein any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on
any ground provided thereunder. Sections 11 and 12 of the Hindu Marriage Act exhibit that
there are two categories of legitimate children: (i) child born out of legal wedlock- this child
1 AIR 1954 SC 176, p. 178.

2 (2009) 12 SCC 454.
3 AIR 1992 SC 756.
4 Ibid, p. 757.
112
is legitimate as a matter of fact, because his parents’ marriage is socially recognised and
legally protected; (ii) child born from the marriage which was either found to be null and void
and was annulled by a decree of the court of competent jurisdiction on the grounds mentioned
in Section 12 of the Hindu Marriage Act; hence, the child who in normal course of things
would have been illegitimate but due to amended Act of 1976 the child shall be considered as
legitimate, i.e., ‘legitimate in the eyes of law’. However, this legitimacy is limited to the
extent of: first, removing social stigma from the child who is not at fault but born to the
parents as of their choice; secondly, keeping in view financial hardships of the child in future,
he has been provided certain property rights under Section 16(3) of the Hindu Marriage Act.
Therefore, confirming legitimacy upon the children born from the marriages which are either
found to be null and void or annulled by a decree of the court are legitimate ‘in law’ but not
legitimate ‘in fact’. Hence, they cannot be considered as members of their putative father’s
joint family or members of his coparcenary. Eventually, sub-section (1) of Section 16 of the
Act provides legitimacy to children born out of void marriages, sub-section (2) of Section 16
provides legitimacy to children born out of voidable marriages and sub-section (3) of Section
confirms certain property rights to children from marriages which are declared null and void
under Section 11 of the Act or annulled by a decree of nullity under Section 12 of the Act.
However, such property right can be claimed only from the parents of such children.
Marriage among Hindus was considered a holy union. It was not a contract but a
Samskara or sacrament. However, with the advent of times, keeping in view the
developments in Hindu society, correspondingly the law making process and change in
behavioural pattern among Hindus, marriage among Hindus became a social contract while
upholding customary and religious sanctity. But, in this transition, marriage as social
institution has undergone sea changes, confirming status on children born from defectively or
incompletely solemnized marriages among the parents. For this purpose, Section 16 of the
Act has been consistently attacked on various occasions through numerous judicial scrutinies
while interpreting it in beneficial manner in favour of children born to marriages which were
null and void or annulled by a decree of nullity. One such case was of P.E.K. Kalliani Amma
v. K. Devi,1 where the court analyzed original Section 16 with amended Section 16 of Act and
held that “Section 16 was earlier linked with Sections 11 and 12. On account of the language
employed in unamended Section 16 and its linkage with Section 11 and 12, the provisions had
the effect of dividing and classifying the illegitimate children into two groups without there
being any nexus between the statutory provisions and the object sought to be achieved
thereby. It is to be seen whether this mischief has been removed. Section 16(1) of the Act
begins with a non obstante clause”2. Similarly, in number of cases3 the court held that “non
obstante clause is sometimes appended to a section in the beginning, with a view to give the
enacting part of the section, in case of conflict, an overriding effect over the provision or Act
mentioned in that clause. It is equivalent to saying that in spite of the provision or Act
mentioned in the non obstante clause, the enactment following it will have its full operation
or that the provision indicated in the non obstante clause will not be an impediment for the
operation of the enactment.”4 Further, the phrase “notwithstanding that a marriage is null
and void under Section 11” employed in Section 16(1) indicates undoubtedly the following:
(a) Section 16(1) stands delinked from Section 11; (b) Provisions of Section 16(1) which
1 AIR 1996 SC 1963: (1996) 4 SCC 76, pp. 101-102.

2 (1996) 4 SCC 76, 101.
3 Union of India v. G.M. Kokil AIR 1984 SC 1022: Chandavarkar Sita Ratna Rao v. Ashalata S. Guram
(1986) 4 SCC 447: R.S. Raghunath v. State of Karnataka (1992) 1 SCC 335; P.E.K. Kalliani Amma v.K.
Devi (1996) 4 SCC 76, p. 102.
4 P.E.K. Kalliani Amma v. K. Devi (1996) 4 SCC 76, p. 102.
113
intend to confirm legitimacy on children born of void marriages will operate with full vigour
in spite of Section 11 which nullifies only those marriages which are held after the
enforcement of the Act and in the performance of which Section 5 is contravened; (c) Benefit
of legitimacy has been conferred upon the children born either before or after the date on
which Section 16(1) was amended; (d) Mischief or the vice which was the basis of
unconstitutionality of unamended Section 16 has been effectively removed by amendment;
(e) Section 16(1) now stands on its own strength and operates independently of other sections
with the result that it is constitutionally valid as it does not discriminate between illegitimate
children similarly circumstanced and classifies them as one group for conferment of
legitimacy. Hence, Section 16, in its present form, is, therefore, not ultra vires to the
provisions of the Constitution of India. 1
In Ampthill Peerage2 Lord Simon of Glaisdale observed, “legitimacy is a matter of status.
It is the condition of belonging to a class in society the members of which are regarded as
having been begotten in lawful matrimony by the men who the law regards as their fathers.
Motherhood, although also a legal relationship, is based on a fact, being proved
demonstrably by parturition. Fatherhood, by contrast, is a presumption. A woman can have
sexual intercourse with a number of men any of whom may be the father of her child; though
it is true that modern serology can sometimes enable the presumption to be rebutted as
regards some of these men. The status of legitimacy gives the child certain rights both against
the man whom the law regards as his father and generally in society.”3 Further, in an
Australian case4, Barwick, C.J. held that “I cannot attribute any other meaning in the
language of a lawyer to the word ‘legitimate’ than a meaning which expresses the concept of
entitlement or recognition by law.”5 Further, the Supreme Court of India in P.E.K. Kalliani
Amma v.K. Devi6 held that “illegitimate children are children as are not born either in lawful
wedlock, or within a competent time after its determination. It is on account of marriage,
valid or void, that children are classified as legitimate or illegitimate. That is to say, the
social status of children is determined by the act of their parents. If they have entered into a
marriage, the children are legitimate; but if the parents commit a folly, as a result of which a
child is conceived, such child who comes into existence as an innocent human baby is
labelled as illegitimate. Realizing this situation, Parliament enacted Section 16 of the Hindu
Marriage Act. The object of Section 16 was to protect legitimacy of children born of void or
voidable marriages.”7 Thus, the Hindu Marriage Act 1955 is a beneficent legislation and has
to be interpreted in such a manner that it advances the very object of the legislation. In fact,
the Act intends to bring about social reforms. Conferment of social status of legitimacy on a
group of innocent children, who are otherwise treated as bastards, is the prime object of
Section 16.8 Hence, it is evident that Section 16 of the Act intends to bring about social
reforms, conferment of social status of legitimacy on a group of children, who are otherwise
treated as illegitimate, as its prime object.9
1 Ibid.
2 [1977] AC 547: [1976] 2 All ER 411; P.E.K. Kalliani Amma v.K. Devi (1996) 4 SCC 76: AIR 1996 SC
1963.
3 Supra n. 1, pp. 96-97.
4 Salemi v. Minister for Immigration and Ethnic Affairs [1977] 14 Aus LR 7; P.E.K. Kalliani Amma v.K. Devi
(1996) 4 SCC 76: AIR 1996 SC 1963.
5 Supra n. 64, p. 97.
6 Supra n. 64.
7 P.E.K. Kalliani Amma v. K. Devi (1996) 4 SCC 76, p. 97.
8 Ibid., p. 100.
9 Bharatha Matha v. R. Vijaya Renganathan AIR 2010 SC 2685, p. 2689.
114
Under original Hindu Marriage Act 1955, no heed was paid towards confirming upon
children born out of null and void marriage or the marriage which was annulled by a decree
of nullity, as a status of legitimate child; hence, they remained illegitimate and suffered from
social stigma which denied them of property rights. For reflective understanding of the
readers, Section 16 of the original Act is reproduced here which reads as: “Section16.
Legitimacy of children of void and voidable marriages- Where a decree of nullity is granted
in respect of any marriage under Section 11 or Section 12 any child begotten or conceived
before the decree is made who would have been the legitimate child of the parties to the
marriage if it had been dissolved instead of having been declared null and void or annulled
by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree
of nullity: Provided that nothing contained in this section shall be construed as conferring
upon any child of a marriage which is declared null and void or annulled by a decree of
nullity any rights in or to the property of any person other than the parents in any case
where, but for the passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of his parents”.
Such state of affairs continued until 1976 when Section 16 of the Act 1 was amendment
confirming upon children born out of null and void marriage or annulled by a decree of
nullity, legitimacy as status removing social stigma from such children who were not the
party of such birth on their own but for the parents, they were paying the price of
illegitimacy. Section 16 of the Act has not only confirmed status being legitimate on such
children but also provided them with property rights from the immediate parents. Finally, the
Hindu Marriage Act underwent important changes by virtue of the Marriage Laws
(Amendment) Act 1976, which came into force with effect from May 27, 1976. Under the
ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the
marriage itself is void on account of contravention of the statutory prescriptions, any child
born of such marriage would have the effect, per se, or on being so declared or annulled, as
the case may be, of bastardizing the children born of the parties to such marriage.
The legitimate status of the children which depended very much upon the marriage
between their parents being valid or void, thus turned on the act of the parents over which the
innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a
permanent setback in life and in the eyes of society by being treated as illegitimate. A
laudable and noble act of legislature is seen in enabling Section 16 which puts an end to a
great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in
ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that
1 Substituted by Act 68 of 1976, Marriage Laws (Amendment) Act 1976,Section 11, w.e.f. 27.5.1976. For
ready reference amended Section 16 is reproduced here which reads as: Section 16. Legitimacy of children
of void and voidable marriages-(1) Notwithstanding that a marriage is null and void under section 11, any
child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate,
whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act,
1976 (68 of 1976) and whether or not a decree of nullity is granted in respect of that marriage under this Act
and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child
begotten or conceived before the decree is made, who would have been the legitimate child of the parties to
the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child
of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights
in or to the property of any person, other than the parents, in any case where, but for the passing of this Act,
such child would have been incapable of possessing or acquiring any such rights by reason of his not being
the legitimate child of his parents.
115
the marriage was void or voidable chose also to confine its application, so far as succession
or inheritance by such children is concerned, to the properties of the parents only. 1
It seems relevant to bring an analogy adopted by the Karnataka High Court in Sarojamma
v. Neelamma,2 where the court held that when the object of sub-sections (1) and (2) of
Section 16 of the Hindu Marriage Act 1955 is to confer a status of legitimacy to a child who
is born out of wedlock which is found to be null and void or which can be annulled by a
decree of nullity under Section 12 of the Act, it would not be right to limit the properties of
the parents referred to under sub-sections (1) and (2) of Section 16 of the Act only to the self-
acquired properties of the parents and exclude either the joint family or the ancestral
properties of the parents. It should not make any difference whether it is a joint family
property or a self-acquired property of the parent. Once such a child is given the status of
legitimacy, as for all purposes, the child should be treated at par with the other children born
to the parents whose marriage is valid in law. The child born out of such marriage, which is
given the status of legitimacy under Section 16 of the Act, in no way can be held responsible
for the contravention of law. They should be given a right in the properties of their parents
and cannot be deprived of the right to take his/her share either in the joint family property or
ancestral properties of the parents. The object of Section 16 of the Act is intended to protect
the interest of such children both in regard to their status and the right to succeed to the estate
of their parents. Such a beneficial provision, which intended to protect such children, should
be given a liberal and wider meaning, which would serve the object of the legislation.
Further, it is also necessary to point out that such a child of a void or voidable marriage,
should be treated as related to its parents within the meaning of Section 3(1)(j) of the Hindu
Succession Act 1956 by virtue of Section 16 of the Hindu Marriage Act 1955. The proviso
given to Section 3(1)(j) of the Act of 1956 must be confirmed to those children who are not
clothed with legitimacy under Section 16. Therefore, by virtue of Section 16(1) of the Act of
1955 as amended in 1976, the illegitimate son can be equated with his natural sons and
treated as coparceners for the properties held by the father whether the properties are
originally joint family property or not. However, the only limitation is that during the lifetime
of the father, the illegitimate son of a void marriage is not entitled to seek for partition and he
can seek for partition only after the death of his father. 3
The Supreme Court in JiniaKeotin v. Kumar Sitaram Manjhi4held that Section 16 of the
Act though enacted to legitimize children who would otherwise suffer by becoming
illegitimate, expressly provides in sub-section (3) thereof for a provision with a non-obstante
clause stipulating specifically that nothing contained in sub-section (1) or sub-section (2)
shall be construed as conferring upon any child of a marriage which is null and void or which
is annulled by a decree of nullity under Section 12 of the Act. Further, it was held that there is
no room for according upon such children who, but for Section 16 of the Act, would have
been branded as illegitimate, any further rights than envisaged therein by resorting to any
presumptive or inferential process of reasoning, having recourse to the mere object or
purpose of enacting Section 16 of the Act. Any attempt to do so would amount not only to
violate the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also
attempt to relegislating on the subject. 5
Legal Disability of Status among Children Born out of Other Relationships
1 Jinia Keotin v. Kumar Sitaram Manjhi 2003 (1) SCC 730, p. 733.
2 AIR 2005 NOC 422: 2004 (2) KCCR 1161.
3 AIR 2005 NOC 422, pp. 422-423.
4 2003 (1) SCC 730.
5 2003 (1) SCC 730, 733.
116
Children born out of null and void marriages or marriages which are annulled by a decree
of nullity are governed under Sections 11 and 12 of the Hindu Marriage Act 1955
respectively and they have been provided with status being legitimate under sub-section (1)
and sub-section (2) of Section 16 of the Hindu Marriage Act 1955. However, children born
from other relationships or marriages which are not covered under Sections 11 and 12 of the
Act still remained as illegitimate children. In ReshamlalBaswan v.Balwant Singh Jwalasingh
Punjabi1 the courtheld thatSection 16 does not entitle the benefit to children born out of an
illicit relationship as there was no marriage between their parents. The benefit under Section
16, even after the 1976 amendments, is available only where there is a marriage but is hit by
Section 11 of the Act. In Ramayammalv.Muthammal2 case, the court held that where a third
party is successful in challenging the marriage as void as per Section 11 of the Hindu
Marriage Act in other proceedings, it would not be deemed that the child of such marriage is
legitimate. In MeenalSahu v. Krishna Kumar Sahu3 the court held that on a plea of the
husband that, the wife had concealed of her earlier marriage and that marriage was declared
null and void. But, she remarried during pendency of a case as the decree of nullity of
marriage in favour of the wife by itself does not give any entitlement for remarriage unless
conditions under Section 15 of the Act are satisfied. Therefore, marriage performed between
the parties was manifestly illegal and was not a marriage at all in the eyes of law. 4 Further, a
marriage which is void as being in contravention of the provisions of Section 15 of the Act
either before or after its amendment, is not covered by sub-section (1) of Section 16 of the
Act and the children would remain illegitimate whether or not the marriage is declared null
and void by a decree of nullity. 5 Furthermore, in Anurag Mittal v. Shaily Mishra Mittal,6the
Supreme Court has rendered an extensive judgment clarifying the law pertaining to
remarriage of divorced persons. The judgment throws light on the circumstances in which
second marriage would be valid. The court in this case deals with Section 15 of the Hindu
Marriage Act 1955 which puts a condition on a divorcee in contracting a second marriage.
The cause of action in the case arose when the appellant married the respondent even before
the appeal was withdrawn from the High Court in the case. The court held that restriction
placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not
apply to a case where parties have settled and decided not to pursue the appeal. 7
Another example could be live-in relationships among heterosexuals in India. As on today,
live-in relationship is not recognised under the Hindu Marriage Act 1955; consequently,
children born from such relationships are not covered under Section 16 of the Hindu
Marriage Act 1955. Hence, children born from such relationships remain illegitimate. The
amended Section 16 of the Act provides no relief to such children. In some cases 8, the
Supreme Court has recognised long lasting relationship among adult heterosexuals by giving
them the benefit of presumption under Indian Evidence Act 1872. On close scrutiny of these
cases, one can make out that the Apex Court has given benefit to those couples or cohabitees
whose marriages were either found to be null or void or annulled by a decree of nullity under
1 1994 (2) HLR 188 (MP).

2 AIR 1974 Mad 321.
3 AIR 2017 Chh 206.
4 Meenal Sahu v. Krishna Kumar Sahu AIR 2017 Chh 206, p. 208.
5 Kanwaljitv.N.K. Singh AIR 1961 P&H 331.
6 AIR 2018 SC 3983: (2018) 9 SCC 691.
7 Ibid, p. 3991.
8 Lata Singhv. State of UP AIR 2006 SC 2522: Madan Mohan Singhv. Rajni Kant AIR 2006 SC 2522: S.P.S.
Balasubramanyamv. Suruttayan @ Andali Padayachi AIR 1992 SC 756: Tulsav.Durghatiya AIR 2008 SC
1193: Vidyadhariv.Sukhrana Bai AIR 2008 SC 1420: Revanasiddappav. Mallikarjun AIR 2011 SC (Supp)
155.
117
Section 11 and 12 of the Hindu Marriage Act 1955 respectively. Meaning thereby is that in
these marriages, there had been an attempt to marry by a minimum one of the parties. Such
attempt of the party or parties facilitated the court to presume certain fact of relationship and
cohabitation, as husband and wife, among them besides social recognition. Hence, such
marriages have been considered by the Apex Court as one class of marriage and provided
with legal protection to the parties involved and the same protection has been extended to the
children born from such marriages. But explicitly, there is no provision in the Hindu
Marriage Act 1955 to protect live-in relationship among heterosexuals. Thinking about live-
in relationship among homosexuals is far from the legislative imagination, as marriage
among homosexuals in the country is not yet permitted by the existing laws. At the same
time, we cannot ignore the possibility of having child by these homosexuals by using
surrogacy, or adoption or any other medico-legal instrument. Therefore, the existing laws
must have suitable provisions to recognise and protect live-in relationships in the country.
Similarly, children born from such relationships and their property rights against the
cohabitees have no answer in the Hindu Marriage Act 1955. Hence, there is also a need to
have suitable law to recognise and protect the interest and rights of such children.
Children from Void and Voidable Marriages and their Property Rights
In normal course of things birth of a child in the family is expected from the legal wedlock
of the parents. Section 5 of the Hindu Marriage Act 1955 provides conditions for a Hindu
marriage and Section 7 of the Act provides ceremonies for a Hindu marriage. A marriage
where these sections have been followed and the marriage is solemnized properly. Such a
marriage is recognised by the Hindu society and is protected by the Hindu Marriage Act
1955. A child who is born from the marriage which is socially recognised and legally
protected is a legitimate in fact, he is a coparcener in his father’s coparcenary; he is a Class-I
heir to his father, and legal heir to his mother. But, when a child is born from a null and void
marriage or marriage which is annulled by a decree of nullity, such a child is having a
different kind of status under Hindu law. Such a child is not legitimate in fact but legitimate
in law. Legitimacy as status is confirmed on such children under either sub-sections (1) or (2)
of Section 16 of the Hindu Marriage Act 1955. In such circumstances, children born to null
and void marriages or marriages annulled by a decree of nullity are neither coparcener nor
Class-I heirs to their putative father but they are legal heir to their respective mother.
Therefore, under this section of the paper, the authors would try to explore the status of
children born from void and voidable marriages and their property rights under present Hindu
law supporting his arguments with the relevant case law.
While pondering on whether illegitimate child can acquire/claim as of a matter of right, a
share in the joint family property, the Andhra Pradesh High Court dealt with this question in
G. Nirmalamma v. G. Seethapathi1wherein the court held that under Section 16(3) of the Act
of 1955 an illegitimate child would be entitled to succeed/claim a share in the joint Hindu
family property as well. This view of the Court was contrary to the law laid down by the
Supreme Court in JiniaKeotin v. Kumar Sitaram Manjhi2. Further, in Neelamma v.
Sarojamma,3 the Supreme Court while reiterating its earlier decision held that an illegitimate
child cannot succeed/claim a share in the joint Hindu family property. Such illegitimate child
would only be entitled to a share in the self-acquired property of the parents.
1 AIR 2001 AP 104.

2 2003 (1) SCC 730. See also Minor Gopi v. Rathinam I (2002) DMC 90 (Mad); Pediredla Appayamma
v.Kostu Apparao 2003 (1) HLR 47 (AP); Rajeshwari v.Silvia 2003 (2) HLR 59 (Kant).
3 (2006) 9 SCC 612.
118
Further, the property rights of illegitimate children to their father’s property were
recognized in the cases of Sudras to some extent by the court in Kamulammal v. T.B.K.
Visvanathaswami Naicker1, the Privy Council held that “when a Sudra had died leaving
behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the
illegitimate son and his wife would be entitled to an equal share in his property. The
illegitimate son would be entitled to one-half of what he would be entitled had he been a
legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept
concubine is entitled to share in his father’s property, along with the legitimate children”2.
Further, in P.M.A.M. Vellaiyappa Chetty v. Natarajan3, it was held, “the illegitimate son of a
Sudra from a permanent concubine has the status of a son and a member of the family and
share of inheritance given to him is not merely in lieu of maintenance, but as a recognition of
his status as a son; that where the father had left no separate property and no legitimate son,
but was joint with his collaterals, the illegitimate son was not entitled to demand a partition
of the joint family property, but was entitled to maintenance out of that property”4. Sir
Dinshaw F. Mulla, speaking for the bench, observed, “though such illegitimate son was a
member of the family, yet he had limited rights compared to a son born in a wedlock, and he
had no right by birth. During the lifetime of the father, he could take only such share as his
father may give him, but after his death he could claim his father’s self-acquired property
along with the legitimate sons”5. Whereas in Raja JogendraBhupatiHurriChundun
Mahapatra v. NityanundMansingh6, the facts were that “the Raja was a Sudra and died
leaving behind legitimate son and daughter, an illegitimate son and three widows. The
legitimate son had died and the issue was whether the illegitimate son could succeed to the
property of the Raja. The Privy Council held that the illegitimate son was entitled to succeed
to the Raja by virtue of survivorship”7. Further, in Gur Narain Das v. Gur Tahal Das,8 a
bench comprising Justice K.B.S. Sir Fazal Ali and Justice Vivian Bose agreed with the
principle laid down in P.M.A.M. Vellaiyappa Chetty v. Natarajan9 and supplemented the
same by stating certain well-settled principles to the effect that “firstly, that the illegitimate
son does not acquire by birth any interest in his father’s estate and he cannot therefore
demand partition against his father during the latter’s lifetime; secondly, that on his father’s
death, the illegitimate son succeeds as a coparcener to the separate estate of the father along
with the legitimate son(s) with a right of survivorship and is entitled to enforce partition
against the legitimate son(s); and thirdly, that on a partition between a legitimate and an
illegitimate son, the illegitimate son takes only one-half of what he would have taken if he
was a legitimate son.”10 However, the bench was referring to those cases where the
illegitimate son was of a Sudra from a continuous concubine. Furthermore, in SinghaiAjit
Kumar v. Ujayar Singh11, the main question was whether an illegitimate son of a Sudra vis-a-
vis his self-acquired property, after having succeeded to half-share of his putative father’s
estate, would be entitled to succeed to the other half share got by the widow. The bench
referred to Ch. 1, S. 12 of the Yajnavalkya (Mitakshara) and the cases of Raja
1 AIR 1923 PC 8.
2 Ibid.
3 AIR 1931 PC 294.
4 P.M.A.M. Vellaiyappa Chetty v. Natarajan AIR 1931 PC 294, p. 298.
5 Ibid.
6 1889-90 IA 128.
7 Ibid.
8 AIR 1952 SC 225.
9 AIR 1931 PC 294.
10 AIR 1952 SC 225, 227.
11 AIR 1961 SC 1334.
119
JogendraBhupatiHurriChundun Mahapatra v. NityanundMansingh1 and P.M.A.M.
Vellaiyappa Chetty v. Natarajan 2and concluded that “once it is established that for the
purpose of succession an illegitimate son of a Sudra has the status of a son and that he is
entitled to succeed to his putative father’s entire self-acquired property in the absence of a
son, widow, daughter or daughter’s son and to share along with them, we cannot see any
escape from the consequential and logical position that he shall be entitled to succeed to the
other half share when succession opens after the widow’s death.”3
While relying on presumption of long lasting relationship among the parents, the court in
Radhakrishnan v.Balakrishna4 held that “since even illegitimate children can inherit from the
properties of their parents irrespective of the fact whether there had been a valid marriage in
between his father and mother, it is sufficient if it comes to be proved that the claimant is
born to his parents from out of their living together for a reasonable time”5. Further, in
Revanasiddappa v. Mallikarjun,6 the Supreme Court opined that “with the amendment
of Section 16(3), the common law view that the offsprings of marriage which is void and
voidable are illegitimate ‘ipso-jure’ has to change completely. We must recognize the status
of such children which has been legislatively declared legitimate and simultaneously law
recognises the rights of such children in the property of their parents. This is a law to
advance the socially beneficial purpose of removing the stigma of illegitimacy on such
children who are as innocent as any other children.”7 The Court further opined that “in our
view, in the case of joint family property such children will be entitled only to a share in their
parents’ property but they cannot claim it on their own right. Logically, on the partition of an
ancestral property, the property falling in the share of the parents of such children is
regarded as their self-acquired and absolute property. In view of the amendment, we see no
reason why such children will have no share in such property since such children are
equated under the amended law with legitimate offspring of valid marriage. The only
limitation even after the amendment seems to be that during the life time of their parents such
children cannot ask for partition but they can exercise this right only after the death of their
parents.”8
The Supreme Court in BhogadiKannababu v.VugginaPydamma9 case held that it is a
settled matter relating to the right of children born out of null and void marriage to inherit
their father’s propertyalong with other heirs and is also entitled to obtain succession
certificate.10 However, in case of a woman married to a person who already has a living
spouse is not entitled to maintenance and any share at all in benefits of deceased husband, but
children born to her have right to get maintenance and other benefits. 11 Further, in the case of
two wives claiming to be married to the deceased and children were born to both women
from the deceased, though wife claiming to be first wife could not produce documentary
evidence from public record to prove her marriage, yet second wife produced marriage
1 (1891) 17 IA 128.
2 AIR 1931 PC 294.
3 Singhai Ajit Kumar v. Ujayar SinghAIR 1961 SC 1334, p. 1337.
4 2002 (1) HLR 482 (Mad).
5 Radhakrishnan v.Balakrishna 2002 (1) HLR 482 (Mad).
6 AIR 2011 SC (Supp) 155.
7 Revanasiddappa v. Mallikarjun AIR 2011 SC (Supp) 155, para 33.
8 Ibid., para 35.
9 AIR 2006 SC 2403. See also Gulabia v.Sitabiya AIR 2006 (NOC) 1379 (All); Sivaraman v.Rajeshwari II
(2005) DMC 581 (Mad); Mahaveer v.Sukumar Tulajagonda AIR 2013 (NOC) 331 (Kant); Pediredla
Appayamma v.Kostu Apparao 2003 (1) HLR 47 (AP).
10 Sarita Baiv.Chandra Bai AIR 2011 MP 222. See also Chandramathi K.v.B.N. Usha Devi AIR 2013 Kant 1.
11 Savitaben Somabhai Bhatiya v.State of Gujarat AIR 2005 SC 1809.
120
certificate issued by the Marriage Registrar. Therefore, second wife being legally wedded
wife of deceased would be entitled to succeed to his estate along with her children; however,
first wife would not be entitled to succeed to estate of the deceased as her marriage was not
proved; however, her children would be entitled to succeed to estate of the deceased upon
presumption of legitimacy; and second wife would also be entitled to pension of deceased as
per Maharashtra Civil Service Pension Rules 1982. 1
Further, illegitimate son can be equated with his natural sons and treated as coparceners
for the properties held by the father whether the property be originally joint family property
or not. The only limitation attached is that during the lifetime of the father, the illegitimate
son of a void marriage is not entitled to seek a partition. He can seek a partition only after the
death of the father.2 Whereas on partition of the ancestral property, it is regarded as the self-
acquired and absolute property of the deceased father. If he leaves no male issue, the
daughters from the first and second marriage shall share the property in equal shares. 3
Furthermore, when at the time of death of the father of a child of a void marriage, who was
the sole surviving coparcener, who could deal with the property as his own in any manner he
preferred subject to the right of the female members of the joint family. The coparcenary
property in possession of such a sole surviving coparcener should be held to be his separate
or exclusive property for the purpose of section 16(3).4 Similarly, where coparcenary
property devolved upon father as sole surviving coparcener and he had no legitimate son, in
such a case property inherited by him is considered as his self-acquired property. An
illegitimate son would be entitled for share in property of his father even though he had no
right in coparcenary property.5 Whereas a suit for partition and separate possession of joint
Hindu family property, during lifetime of the father, by children born out of void marriage is
not maintainable, as such right can be availed only by coparceners. 6 However,
inBalakrishnan v. Selvi,7 the court held that right of an illegitimate child extends to the self-
acquired property of the parents only. Such child cannot seek right over properties as
coparcener to the parents. Hence, in this case, no cause of action arose to illegitimate
daughter claiming partition over property of her father during his lifetime. Further, in Amrit
Lal v. Savitri,8 the court held that “a child begotten in a marriage which is otherwise null and
void, even for the reason that either parent had a spouse living at the time of the second
marriage, would have no right to coparcenary or other property of either parent, except that
property which is their own parents. Thus, even ancestral property falling specifically to the
share of a person, would devolve upon the son (and after 2005 also to the daughter) of that
person, even if his children are born in a marriage otherwise void. Further, the suit property
was not proved to be coparcenary property but was proved to be ancestral property, the
children would be entitled to the property held by their father as his own share of ancestral
property.”9 Furthermore, while considering a child born from second marriage as a member
of the putative father’s family, for benefiting him of compassionate appointment in
government job, the Supreme Court in Union of India v. V.R. Tripathi10 held that “in sub-
1 Nanda Santosh Shirkev.Jayashree Santosh Shirke AIR 2011 (NOC) 286 (Bom).
2 Rasala Surya Prakasarao v.Rasala Venkateswararao 1993 (1) HLR 233 (AP).
3 Kusum Shivajirao Babarv.Hirabai Balwant Shingate 2001 (1) HLR 59 (Bom).
4 Chikkammav.Suresh (N) 2000 (2) HLR 464 (Kant).
5 Vempati Anasuyammav.Gouru Venkateswarloo AIR 2008 AP 207: Kenchegowdav.K.B. Krishnappa AIR
2009 (NOC) 277 (Kant).
6 N. Sadasivav.Purushothama AIR 2011 (NOC) 40 (Kant).
7 AIR 2018 Mad 103.
8 AIR 2017 P&H 130.
9 Amrit Lal v. Savitri AIR 2017 P&H 130, p. 138.
10 AIR 2019 SC 666.
121
section (1) of Section 16 of the Hindu Marriage Act 1955, the legislature has stipulated that a
child from a marriage which is null and void under Section 11 of the Act is legitimate,
regardless of whether the birth has taken place before or after the commencement of
Amending Act 68 of 1976. Legitimacy of a child born from a marriage which is null and void,
is a matter of public policy so as to protect a child born from such a marriage from suffering
the consequences of illegitimacy”1. The Court further held that “once Section 16 of the Hindu
Marriage Act 1955 regards a child born from a marriage entered into while the earlier
marriage is subsisting to be legitimate, it would not be open to the State, consistent with
Article 14 to exclude such a child from seeking the benefit of compassionate appointment.
Such a condition of exclusion is arbitrary and ultra vires.”2
From the above-mentioned judicial pronouncements, and statutory analysis of relevant
provisions on the issues, it can easily be concluded that Section 16(3) of the Hindu Marriage
Act 1955 and Section 3(1)(j) of the Hindu Succession Act 1956 have been interpreted and
applied in favour of children born from the marriages which were to be either null and void
or annulled by a decree of nullity. But, one thing was made crystal clear that there has been
an attempt to marry by a minimum one of the parties to such marriages or one of the parties
fulfilled all conditions of marriage or religious and customary rites were followed by one of
the parties. Further, the courts in India while dealing with these cases have not only uphold
reasons and objects of amended Section 16 of the Hindu Marriage Act 1955 or real intention
of law makers; but also have gone much ahead in propounding new jurisprudence through
presumption of marriage and confirming legal status on children born to such relationships.
These judicial efforts need appreciation from all of us, though much is yet to be achieved.
Children from Live-in Relationships and their Rights
The situation is different in case of children born from live-in relationships as they are not
covered under Section 16 of the Hindu Marriage Act 1955. The fiction of legitimacy created
by Section 16 of the Act of 1955 is limited to the extent of children born from null and void
marriages or marriages which are annulled by a decree of nullity. The children born from
such marriages are having right in property of their respective parents. The reason why
children born from live-in relationships are not considered could be the absence of ‘marriage’
among the live-in partners, which cannot be proved to be solemnized as required by Sections
5 and 7 of the Hindu Marriage Act 1955. In live-in relationships which are ‘by choice’, there
is no attempt to marry by the parties. On the other hand, in live-in relationships which are ‘by
circumstance’, there has always been an attempt to marry by one of the parties, though the
other party, who was having a living spouse and did not disclose this material fact to the live-
in partner. Therefore, neither sub-section (1) nor sub-section (2) of Section 16 of the Hindu
Marriage Act 1955 recognise such relationship of live-in partners; and at the same time these
sub-sections do not confirm legitimacy as status on the children born from such relationships.
Consequently, sub-section (3) of Section 16 does not provide any property rights or financial
support to such children. The Supreme Court in Revanasiddappa v. Mallikarjun,3 case held
that “however, one thing must be made clear that benefit given under the amended Section
16 is available only in cases where there is a marriage but such marriage is void or voidable
in view of the provisions of the Act”4. Further, the Supreme Court, while considering live-in
relationship sympathetically, in Indra Sarma v. V.K.V. Sarma5 held, that “the (woman)
appellant’s status was that of a mistress, who is in distress, a survivor of a live-in
relationship which is of serious concern, especially when such persons are poor and
1 Ibid., p. 671.
2 Ibid., p. 672.
3 AIR 2011 SC (Supp) 155.
4 Ibid., para 34.
5 AIR 2014 SC 309.
122
illiterate, in the event of which vulnerability is more pronounced, which is a societal reality.
Children born out of such relationship also suffer most which calls for bringing in remedial
measures by the Parliament, through proper legislation”1. Furthermore, inNandakumar v.
State of Kerala,2the Supreme Court held that when a male of 20-year and a woman of 19-year
married; such a marriage is not a void marriage under the Hindu Marriage Act. The said
marriage may attract Section 12 of the Act, at the most, may be voidable at the instance of the
party who is below the marriageable age. This Court relied on the fact that both the parties to
the marriage are major. Even if they were not competent to enter into the wedlock, they have
right to live together even outside wedlock. It would not be out of place to mention that ‘live-
in relationship’ is now recognised by the legislature itself which has found its place under the
provisions of the Protection of Women from Domestic Violence Act 2005. Therefore,
position of children born from live-in relationships is somehow different in the eyes of law;
and judicial system of the country also looks at these relationships differently.
Some judicial pronouncements are unveiled in the forth-coming lines. In S.P.S.
Balasubramanyam v. Suruttayan @ AndaliPadayachi,3 the Supreme Court held that if man
and woman are living under the same roof and cohabiting for a number of years, there will
be a presumption under Section 114 of the Indian Evidence Act that they live as husband
and wife and the children born to them will not be illegitimate. Further, in P.E.K. Kalliani
Amma v. K. Devi,4 the Supreme Court held in view of the legal fiction contained in Section
16 that the illegitimate children, for all practical purposes, including succession to the
properties of their parents, have to be treated as legitimate. They cannot, however, succeed
to the properties of any other relation on the basis of this rule, which in its operation, is
limited to the properties of the parents. Furthermore, in Rameshwari Devi v. State of
Bihar,5 where after the death of a government employee, children born illegitimately to the
woman, who had been living with the said employee, claimed the share in pension/gratuity
and other death-cum-retirement benefits along with children born out of a legal wedlock.
The Supreme Court held that under Section 16 of the Act, children of void marriages are
legitimate. As the employee, a Hindu, died intestate, the children of the deceased employee
born out of void marriage were entitled to share in the family pension, death-cum-
retirement benefits and gratuity. Whereas in JiniaKeotin v. Kumar Sitaram Manjhi,6 the
Supreme Court held that while engrafting a rule of fiction in Section 16 of the Act, the
illegitimate children have become entitled to get share only in self-acquired properties of
their parents. The same view has been approved and followed by the Supreme Court in
Neelamma v. Sarojamma7. While taking live-in relationships seriously and equating them
with presumption of marriage, the Supreme Court in Lata Singhv. State of UP8 held, that
live-in relationship is permissible only in unmarried major persons, heterosexual. The live-
in relationship if continued for such a long time, cannot be termed in as ‘walk in and walk
out’ relationship and there is a presumption of marriage between them. 9 Hence, the
Supreme Court in BharathaMatha v. R. Vijaya Renganathan,10 held, “a child born of void
or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property
1 Ibid., para 66.

2 AIR 2018 SC 2254.
3 AIR 1992 SC 756.
4 AIR 1996 SC 1963.
5 AIR 2000 SC 735.
6 (2003) 1 SCC 730.
7 (2006) 9 SCC 612.
8 AIR 2006 SC 2522.
9 Madan Mohan Singhv. Rajni Kant AIR 2010 SC 2933.
10 AIR 2010 SC 2685.
123
but is entitled only to claim share in self-acquired properties, if any… further, question of
inheritance of coparcenary property by the illegitimate children, who were born out of the
live-in relationship, could not arise”1. In ChodonPuthiyothShyamalavalli
2
Ammav.KavalamJisha, the court held that where the marriage was not solemnized
between the parties and a child was born out of it. The child born was not legitimate.
Therefore, Section 16 does not apply to the child born out of this relationship; and hence,
the child is not entitled to share in property of the putative father. 3 Further, in
Vidyadhariv.Sukhrana Bai,4 the Supreme Court granted the inheritance to the four children
born from a woman with whom the man shared a live-in relationship during his lifetime,
calling them ‘his legal heirs’. In Madan Mohan Singhv.Rajni Kant5 the Supreme Court
held that live-in-relationship is permissible only among unmarried major persons of
heterogeneous sex and reiterated that if a man and woman are living under the same roof
and cohabiting for a number of years, there will be a presumption in favour of marriage
and against concubinage under Section 114 of the Indian Evidence Act 1872, that they live
as husband and wife and the children born to them will not be illegitimate; however, such
presumption can be rebutted by leading unimpeachable evidence.
Present form of the Hindu Marriage Act 1955 does not provide scope for live-in
relationships among the heterosexuals or homosexuals, though it protects void and voidable
marriages among Hindus and also protects interest of children born from such marriages.
However, in number of cases,6 the Apex court has provided legal status to the parties to live-
in relationships and also provided protection to the children born out of such relationships.
Looking at growing number of live-in relationships among Hindus in the country indicates
that such kind of relationships find their acceptability among young working peoples and
members of upper-class of society. But, there is no legal provisions to protect such
relationships except the Protection of Women from Domestic Violence Act 2005 which
provides certain rights. However, a well-designed legislation to this effect or suitable
amendments into the Hindu Marriage Act is the need of the hour.
Disposal of Property by the Parents
After understanding statutory provisions on providing legitimacy to children born to null
and void marriages or marriages annulled by a decree of nullity under sub-sections (1) and
(2) of Section 16 of the Hindu Marriage Act 1955 and confirming upon them property rights
under sub-section (3) of Section 16 of the Act; and after reviewing judicial pronouncements
on these sub-sections of Section 16 of the Act, the authors remind that the children who have
been declared legitimate by amended Section 16 of the Act of 1955 (as amended in 1976) are
entitled to get, to claim, to inherit property from their putative father and mother only. This
looks to be a glossy picture in theory, but in practice, it does not appear to be the same, as
there are numerous ways in which the parents may exclude their children from inheriting
their properties. For instance, every Hindu male, who is governed by Mitakshara law, in the
normal course of things, is entitled to hold: (a) ancestral property/coparcenary property, and
(b) self-acquired property, with absolute ownership rights on them. In fact, under the Hindu
law, a son (daughter of a coparcener who is governed by Mitakshara law after September 9,
1 AIR 2010 SC 2685, 2690.

2 AIR 2007 Ker 246. See also Premiv. Ram Lok AIR 2008 (NOC) 1861 (HP).
3 Ibid.
4 AIR 2008 SC 1420. See also Revanasiddappav. Mallikarjun AIR 2011 SC (Supp) 155.
5 AIR 2010 SC 2933.
6 S.P.S. Balasubramanyam v. Suruttayan AIR 1992 SC 756; P.E.K. Kalliani Amma v. K. Devi AIR 1996 SC
1963; Madan Mohan Singhv. Rajni Kant AIR 2010 SC 2933; Revanasiddappav. Mallikarjun AIR 2011 SC
(Supp) 155; Indra Sarma v. V.K.V. Sarma AIR 2014 SC 309.
124
2005 also), born to legal wedlock of his/her parents gets an interest by birth in his/her father’s
coparcenary property, also by virtue of his/her birth becomes Class-I heir to his/her father,
grandfather and great grandfather and confirms his/her share in the ancestral property of
them, and also is entitled to hold the self-acquired property. Further, this son/daughter is also
a legal heir to his/her mother. But, under Section 16 of the Hindu Marriage Act 1955, there is
a category of legitimate children who are otherwise not legitimate, meaning thereby is that,
there are two categories of legitimate children: (a) children who are legitimate in fact; and (b)
children who are legitimate in law. Additionally, there is another category of children who
are neither legitimate in fact nor in law, i.e., children born from live-in relationships or born
to other relationships which are not covered under Section 16 of the Hindu Marriage Act
1955.
So, present Hindu law has no other option but to treat these children (legitimate in fact, in
law, neither in fact nor in law) differently with regards to their property rights. For example, a
child born to the legal wedlock of his/her parents is a coparcener by birth in his father’s
coparcenary, Class-I heir to his/her father, grandfather and great grandfather whereas a child
born to the marriage which was either found to be null and void or annulled by a decree of
nullity is neither a coparcener by birth in his/her father’s coparcenary nor a Class-I heir to the
father or grandfather or great grandfather, though he/she is a legal heir to his/her mother. The
point which appears to be more crucial here is that under Hindu law, past or present, a child
who is born to a marriage which is found to be null and void or annulled by a decree of
nullity, there is no father-child legal relationship which creates a joint property among them.
Similarly, under Hindu law, though there is mother-child legal relationship, there is no joint
property concept among them. Therefore, in both the situations, these children cannot claim
any share from their parents’ self-acquired property during their lifetime. The situation
becomes more vulnerable in cases of the children born from live-in relationships or any other
relationships which are not covered under section 16 of the Hindu Marriage Act 1955.
Whereas, children born to the legal wedlock of their parents, being coparcener can ask for
partition, even against the will or wish of their father, from the coparcenary property to which
their father is a member, but this kind of status and right is not available to the children who
are legitimate by virtue of Section 16 of the Hindu Marriage Act 1955 nor such a status and
right is available to the children who are not covered by Section 16 of the Act.
Now, let’s take a case of a putative father, who is a coparcener in his father’s coparcenary
governed by Mitakshara law, has ancestral property in hands and also has a lot of self-
acquired properties to his credit. Normally, his children from legal wedlock are the
coparceners and Class-I heirs. They will get a share in coparcenary and ancestral properties
and along with their mother, they will also inherit their father’s self-acquired properties. But,
in case of legitimate children, by virtue of Section 16 of the Act, they are entitled to a share in
his self-acquired property and his share from the coparcenary property if partition had taken
place during his lifetime, which needs to be claimed through the intervention of the court;
however, they are required to share such properties along with the children, who are
legitimate in fact, born to their putative father. Further, if the putative father does not behave
as a prudent person, he can easily exclude these children by making a Will under Section 30
of the Hindu Succession Act 1956 of his self-acquired property, an interest in the coparcenary
property and his share from the ancestral property, in favour of any one of his choice during
his lifetime. As Section 30 of the Hindu Succession Act 1956 does not put a cap on limit as
upto what extent a Hindu male or female can make a Will of his or her property, meaning
thereby a Hindu can make a Will of his/her entire property even to the extent of excluding his
Class-I heirs or legal heirs who otherwise can claim share into those properties on intestacy
on their parents.
125
Same is the case of a female Hindu, under Hindu law, though there are well established
principles of law that maternity is certain which creates mother-child relationship but there is
no list of Class-I relatives with regards to a female Hindu under the Hindu Succession Act
1956. The Act provides relations who are legal heirs to a female Hindu. Hence, children born
to marriages which are null and void or annulled by a decree of nullity or live-in relationships
are attached with their mother and they are the legal heirs to their mothers; but if these Hindu
females do not act as prudent persons then they can also exclude these children from
inheriting their properties through the instrument of Will, as empowered by Section 30 of the
Act. Therefore, in such circumstances, we need to think holistically about the children born to
marriages which are null and void or annulled by a decree of nullity or live-in relationships or
other relationships which are not covered under Section 16 of the Act; and to provide them
due social recognition and legal protection through suitable law.
Though the judiciary is quite sensitive and dynamic on these issues resolving them timely
and holistically, in many cases, either due to non-arability of law on the issue or different
interpretation and application of existing law, the Apex Court invoked Article 142 of the
Constitution of India. As law making process in the country is found to be very slow,
especially in regards to personal laws; hence, many children are suffering from legal
disability for no fault on their part, but the legal system does help them. The best example for
this could be the Hindu Marriage (Amendment) Bill 2010, (it seeks to amend the Hindu
Marriage Act 1955 and the Special Marriages Act 1954 which provides for irretrievable
breakdown of marriage as an independent ground for divorce as well as grants women the
right to a share in the property of their husbands), is still pending with the Parliament and has
not seen the light of the day.
Inheritance Rights of the Children
A unique issue relating to inheritance rights of the children born to validly solemnized
marriages, null and void marriages, marriages annulled by a decree of nullity and live-in
relationships has raised a conflict in law, among certain provisions of the Hindu Marriage Act
1955 and the Hindu Succession Act 1956 on the one hand, and the judicial pronouncements
on the other. The children born to the parents whose marriage was solemnized properly are
legitimate infact, coparcener and Class-I heirs to their father under Mitakshara law, and legal
heirs to their mother. Further, the children born to the parents whose marriage was null and
void or annulled by a decree of nullity are legitimate inlaw; neither they are coparcener in
their father’s coparcenary nor Class-I heirs to their putative father, however, they are legal
heirs to their mother. But, the situation is different in case of children born to live-in
relationship. For example, sub-section (1) of Section 16 of the Hindu Marriage Act 1955
provides legitimacy to the children born, before or after the commencement of the Hindu
Marriage (Amendment) Act 1976, to a marriage which is null and void under Section 11 of
the Act. Similarly, sub-section (2) of Section 16 of the Hindu Marriage Act 1955 provides
legitimacy to the children begotten or conceived before the decree of nullity is made under
Section 12 of the Act. Further, sub-section (3) of Section 16 of the Act confirms upon any
child of a marriage which is null and void or which is annulled by a decree of nullity, any
rights in or to the property of the parents, in any case where, but for the passing of this Act,
such child would have been incapable of possessing or acquiring any such rights by reason of
his not having the legitimate child of his parents. Furthermore, the courts in some cases have
considered the children born to the parties, who are found to be living as the husband and
wife for a considerable period of time and the society treated them as the husband and wife,
as legitimate and provided them with inheritance rights. Hence, the Hindu Marriage Act
1955, being a social welfare legislation, confirms legitimate status on certain children under
126
Section 16 of the Act and also provides property rights to such children. But, the said Act
does not deal with inheritance law among Hindus. The law relating to inheritance among
Hindus is provided by the Hindu Succession Act 1956.
The Hindu Succession Act 1956 provides intestate and testamentary succession which is
based on the gender, relation and status. For the purpose of a male Hindu, there is a schedule
attached with Section 8 of the Act which indicates the relations fall under which category or
class of the heirs, such as heirs in Class-I and Class-II. Further, Section 18 of the Act
provides preferential right of succession among ‘full blood’ heirs related to an intestate over
the ‘half-blood’ heirs, 1 which reads as “heirs related to an intestate by full blood shall be
preferred to heirs related by half blood, if the nature of the relationship is the same in every
other respect”.2 Therefore, Section 18 of the Act makes it clear that if the intestate leaves
behind his heirs related by full blood and half-blood, then the heir related by full blood will
inherit in preference to the heir related by half-blood, subject however to the condition that
the nature of the relationship should be the same in every other respect. The nature of
relationship is defined in Section 3(1)(j) of the Hindu Succession Act 1956. 3 Therefore, after
reading of Sections 3 and 18 of the Hindu Succession Act 1956 it can be presumed that
relationship between the intestate4 and the heir 5 must stand in legitimate status, irrespective of
the fact that whether the legitimacy is in fact or in law. Even the woman through whom the
child is to be reckoned to the intestate must hold the status being a legally wedded
wife/widow. The nature of the heirs’ relationship to the intestate should be with reference to
the classification made in Section 8 read with Section 10 to 13 of the Act for a male Hindu
and Sections 15 and 16 of the Act for a female Hindu respectively. Further, in case of heirs
referred in Class-I of the schedule attached with Section 8 of the Act, the question of their
relationship with the intestate (male Hindu) by half-blood does not arise, because except the
mother of the intestate, all other heirs are descendants of the intestate. On the other hand, if
the intestate is a female Hindu, the child born to her husband by another woman cannot be
considered to be related to her by half-blood as there is no blood relationship at all in such a
case.
With such an understanding of law relating to intestate succession among Hindus, if there
are children born from legal wedlock, on one hand and children born from the marriages
which are found to be null and void or marriages which are annulled by a decree of nullity,
on the other. The children in both the situations are related to their father, a male Hindu (a
unit of relationship); but also related through two females (two separate units of relationship).
The existing Hindu law considers these children related to their father by legitimate kinship.
If the status of these children is the same for the purpose of intestate succession among
Hindus, then they are to be considered as “if the nature of the relationship is the same in
1 Section 3(1)(e)(i) of the Hindu Succession Act 1956 defines the terms ‘full blood’ and ‘half-blood’ which
reads as “two persons are said to be related to each other by full blood when they are descended from a
common ancestor by the same wife, and by half-blood when they are descended from a common ancestor but
by different wives”.
2 Section 18 of the Hindu Succession Act 1956.
3 Section 3(1)(j) of the Hindu Succession Act 1956 which reads as “‘related’ means related by legitimate
kinship: Provided the illegitimate children shall be deemed to be related to their mothers and to one
another, and their legitimate, descendants shall be deemed to be related to them and to one another, and any
word expressing relationship or denoting a relative shall be construed accordingly”.
4 Section 3(1)(g) of the Hindu Succession Act 1956 defines the term ‘intestate’ which reads as “a person is
deemed to die intestate in respect of property of which he or she has not made a testamentary disposition
capable of taking effect”.
5 Section 3(1)(h) of the Hindu Succession Act 1956 defines the term ‘heir’ which reads as “heir means any
person, male or female, who is entitled to succeed to the property of an intestate under this Act”.
127
every other respect”. In such a situation, the preferential claim on intestacy of their father
among the full blood and half-blood relations plays a vital role. Further, providing preference
to the full blood relations under Section 18 of the Act is based on the principle of propinquity
which says that “closer a person to the intestate, more the chances of inheriting the property,
remoter the person lesser the chances of inheriting the property of the intestate”.
Furthermore, under the Hindu Succession Act whenever intestate succession for a male
Hindu is opened and the property is divided among the Class-I heirs, it is opened in a
particular manner, which denotes the mode and nature of the property in the hands of the
legitimate claimants. The Section 19 of the Act provides such law which reads as “if two or
more heirs succeed together to the property of an instate, they shall take the property: (a)
save as otherwise expressly provided in this Act, per capita and not per stripes; and (b) as
tenants-in-common and not as joint tenants.”1 Therefore, it becomes necessary to understand
that receiving heirs who holds the property on intestacy of their father, whether they would
hold it as tenants-in-common and not as joint tenants. So in such a situation, where legitimate
claimants of intestate succession include children born to legal wedlock and other
relationships, how would they inherit property on their father’s intestacy and would they hold
that property as tenants-in-common? If they are not the member of their father’s family;
whether the law would permit fragmentation of joint family property into small pieces and let
it go out of the joint family fold. However, the preference given to the full blood relations
over the half-blood relations and mode of succession of two or more heirs do not serve the
purpose in today’s times.
While relying on the beneficial interpretation and application of Section 16 of the Hindu
Marriage Act 1955, and having in view best interest of the children, the court in Sarita
Baiv.Chandra Bai,2 case held that “the children born out of null and void marriage would
inherit their father’s propertyalong with other heirs and is also entitled to obtain
succession certificate.”3 Further, in Amrit Lal v. Savitri,4 the court held that “the children
would be entitled to the property held by their father as his own share of ancestral
property.”5 Again in BharathaMatha v. R. Vijaya Renganathan,6 held that “a child born of
void or voidable marriage is entitled only to claim share in self-acquired properties”7.
These are some of the cases, where courts have found the children, born from null and void
marriages or marriages annulled by a decree of nullity, entitled to the share on intestacy of
their putative father along with succession certificate. On the other hand, the court in
Vidyadhariv.Sukhrana Bai,8 has granted inheritance rights to the four children born from a
woman with whom the man (live-in partner) shared a live-in relationship during his
lifetime and certified them as ‘his legal heirs’.9 Further, in Madan Mohan Singhv.Rajni
Kant10 case, the Supreme Court while retreating its own judgment of S.P.S.
Balasubramanyam’s case (supra) held that “the children born from live-in relationship will
not be illegitimate”.11
1 Section 19 of the Hindu Succession Act 1956.

2 AIR 2011 MP 222.
3 Ibid., p. 224.
4 AIR 2017 P&H 130.
5 Ibid., p. 138.
6 AIR 2010 SC 2685.
7 Ibid., p. 2690.
8 AIR 2008 SC 1420.
9 Vidyadhariv.Sukhrana Bai AIR 2008 SC 1420, p. 1424.
10 AIR 2010 SC 2933.
11 Madan Mohan Singhv.Rajni Kant AIR 2010 SC 2933, p. 2938.
128
Above-mentioned cases are the examples, where the courts not only protected the status
of the children born from null and void marriages or marriages which are annulled by a
decree of nullity or live-in relationship, by circumstances, but also provided them property
rights from the putative father or the live-in partner. The courts have been treating such
cases sympathetically and tried their best to protect best interest of the children. No one can
raise any doubt that justice has been done while protecting property rights of these
children, but when we look at the application of inheritance law, one must understand that
the courts are propounding new jurisprudence of inheritance among the children born from
different kind of relationships of their parents. The new jurisprudence of inheritance may
have long lasting impact on existing inheritance laws. For example, whenever intestate
succession among Hindus is opened, it is opened among the surviving relations of the
propositus such as his widow, sons, daughters, mother, son of pre-deceased son, daughter
of pre-deceased son, widow of pre-deceased son, etc., meaning thereby that the property of
the propositus devolves among his surviving relations who are having legitimate
relationship with him, either by birth or by adoption or by marriage. At the same time, the
property which is subject to the intestacy is not the property to be divided only among the
relations of one degree/generation, it may be divided among the relations of more than one
degree/generation of its ascending or descending order. The law of intestate succession in
case of a male Hindu is laid down in the Hindu Succession Act 1956. This Act considers
only legitimate relations among the propositus and the surviving heirs. The issue for our
consideration comes when a child who is not legitimate under the provisions of the Hindu
Succession Act 1956 but such child is considered legitimate under the Hindu Marriage Act
1955. This child is provided with limited property rights under Section 16 of the Hindu
Marriage Act and granted succession certificate by the court. So in such cases, whether the
provisions of the Hindu Succession Act 1956 for the execution of such decree of
succession certificate would apply or such cases would be governed by other law, as
special cases?
Further, the child who is not legitimate in fact, but is legitimate in law, is not a
coparcener in his/her putative father’s family, but is a member of his/her putative father’s
family; is not a Class-I heir to his/her putative father but is a legal heir to his/her putative
father; is not a full blood relative to his/her putative father along with the children born
from his legal wedlock but is a half-blood relative to them. If the provisions of the Hindu
Succession Act 1956 apply for the execution of such succession certificate, the children
born from validly solemnized marriages and the children born from null and void
marriages or marriages which are annulled by a decree of nullity or live-in relationship, by
circumstances, would inherit the property from their father and/or putative father as tenant-
in common and not joint tenant, meaning thereby such order of the court i.e., succession
certificate, would club these full bold and half blood relatives together. Such kind of
situation may disturb social fabric of the joint family system.
In such circumstances, it becomes imperative for any student, research scholar and
teachers of family law to understand that under which inheritance law or in what manner
these inheritance rights are to be executed while diverse kind of relationships, status and
rights are exhibited, recognised and protected by law. Further, family relations among
young people are diverse in their nature and instability of marital relations is at its peak.
Changing living pattern of young couples impacts on their marriage responsibilities or
obligations and priorities are ever changing. At the same time, Hindu joint family property
is losing its significance and getting fragmented in bits and pieces. Intrinsic value attached
with ancestral property, specially the dwelling house, is getting converted day by day into
sky-high residential flats, gated community housing, micro, small and medium enterprises
129
(MSMEs), commercial complexes etc. and agricultural land getting converted into
commercial crops such horticulture, floriculture, polyculture etc. On the other hand, in the
contemporary Hindu society, there are new emerging forms of relationships such as live-in
relationship, relationship in the nature of marriage etc. In today’s society people do not
believe in marriage but they do not mind to get in live-in relationship. If a child is born out
of such relationships, such a child is not legitimate under the present Hindu law, and he/she
is also not covered within the ambit of Section 16 of the Hindu Marriage Act 1955. The
problem for consideration in such complex legitimacy issues needs to be answered by
keeping in mind the contours of the Hindu law of inheritance and their impact on next
generation as well.
Conclusion
As the paper addresses research questions with the best possible material available on the
complex facets of legitimacy attached with children and their property rights under Hindu
law, the authors arrive at and fully exhibits the lacunae in the present Hindu law of marriage
and inheritance. The children who are born from null and void marriages or marriages
annulled by a decree of nullity or born from live-in relationship by circumstance are at the
receiving end of such lacunae in law. Hence, the authors have tried to persuade the
lawmakers that there is a need to redefine the word ‘property’ as given in Section 16(3) of the
Hindu Marriage Act 1955 and to expand the term ‘related’ as given in Section 3(1)(j) of the
Hindu Succession Act 1956 besides other relevant provisions of these Acts. Against this
rather disheartening picture, the authors find solace in the Supreme Court of India’s
cognizance on February 27, 20201 of a long pending matter before the Apex Court of the
country. It has initiated the matter to be placed before the Hon’ble Chief Justice of India to
constitute a larger bench, as was also opined by another bench of the Supreme Court in 2011
inRevanasiddappa’s case (supra). Since March 31, 2011, there has not been any attention
paid to the matter where property rights of children, born from null and void marriages or
marriages annulled by a decree of nullity, were involved and the matter was to be decided by
the Apex Court of the country. But, in the present scenario of administration of justice system
at the Apex Court, the authors are confident that a due attention will be paid towards
protecting property rights of these children through the constitution of a larger bench.
To recap the matter once again for the consideration of a larger bench of the Supreme
Court would be: first, “the legislature has used the word “property” in Section 16(3) and is
silent on whether such property is meant to be ancestral or self-acquired. Section 16 contains
an express mandate that such children are only entitled to the property of their parents, and
not of any other relation”2. Therefore, a clarification on the word ‘property’ is required with
its nature and scope of division and devolution among the children born from (i) legal
wedlock, (ii) null and void marriages or marriages annulled by a decree of nullity, and (iii)
live-in relationships, by circumstances, meaning thereby live-in relationship among the
heterosexuals. Secondly, “on a careful reading of Section 16(3) of the Act we are of the view
that the amended Section postulates that such children would not be entitled to any rights in
the property of any person who is not his parent if he was not entitled to them, by virtue of his
illegitimacy, before the passing of the amendment. However, the said prohibition does not
apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that
1 Parvathamma v. Gangadharaih Civil Appeal No(s). 3576/2010, February 27, 2020,

https://main.sci.gov.in/supremecourt/2008/37129/37129_2008_12_108_20919_Order_27-Feb-2020.pdf,
(visited on April 18, 2020).
130
such children shall be legitimate. If they have been declared legitimate, then they cannot be
discriminated against and they will be at par with other legitimate children, and be entitled to
all the rights in the property of their parents, both self-acquired and ancestral. The
prohibition contained in Section 16(3) will apply to such children with respect to property of
any person other than their parents”1. Hence, discrimination among the children born from
various categories of relationship of their parents needs to be done away with and equal
property rights may be provided to these children. Thirdly, to consider live-in relationships
among heterosexuals as living in the nature of marriage or presume to be marriage and
provide them legal protection under Section 16 of the Hindu Marriage Act 1955. And lastly,
to provide social and legal status and equal property rights to the children born to live-in
relationships and other relationships which are not covered, at present, by Section 16 of the
Hindu Marriage Act 1955. The Supreme Court of India may issue appropriate directions to
the Law Commission of India and National Commission for Women, New Delhi “to
deliberate on the issues referred above and to make appropriate recommendations to the
Government of India to enact suitable law”.
It seems to be pertinent to mention here what the bench of the Supreme Court in
Revanasiddappa’scase(supra) opined, “with changing social norms of legitimacy in every
society, including ours, what was illegitimate in the past may be legitimate today. The
concept of legitimacy stems from social consensus, in the shaping of which various social
groups play a vital role. Very often a dominant group loses its primacy over other groups in
view of ever changing socio-economic scenario and the consequential vicissitudes in human
relationship. Law takes its own time to articulate such social changes through a process of
amendment. That is why in a changing society law cannot afford to remain static. If one looks
at the history of development of Hindu Law, it will be clear that it was never static and has
changed from time to time to meet the challenges of the changing social pattern in different
time”2. Therefore, the law on the above mentioned issues must change keeping in view
changing social pattern of society. As Martin Luther King Jr rightly said, “injustice anywhere
is a threat to justice everywhere”. Hence, to do justice to the children who are the future of
nation state, the lawmakers and the Apex Court are under social, moral and constitutional
obligations.
*********
1 Ibid., para 26.

131
Part-II
Cases on Family Law-II
132
1.
IN THE PRIVY COUNCIL ON APPEAL FROM THE EAST INDIES
Hunooman Persaud Panday
v.
MussumatBabooeeMunrajKoonweree
On Appeal from the SudderDewannyAdawlut at Agra, North Western Provinces.
This was an appeal from a decree of the SudderDewanny Court of Agra, which reversed the
judgment of the Principal SudderAmeen of the District of Gorruckpore, pronounced in favour of the
Appellant, in a suit, which was brought by Lal Inderdowun
Present: Members of the Judicial Committee–The Right Hon. The Lord Justice Knight Bruce, the
Right Hon. Sir Edward Ryan, the Right Hon. The Lord Justice Turner, and the Right Hon. Sir John
Patteson. Singh, since deceased, and now represented by the Respondent, his son, against the
Appellant, the chief Defendant, and RaneeDegumberKoonweree.
The object of the suit was, first, to recover possession of certain ancestral estates called
DareeDeha, Mohundur, & C., situate in the PergunnahNuggerBustee, in the District of Goruckpore,
with mesne profits and interest; and, secondly, to set aside a mortgage Bond, dated
AssarSoodeePoornumashee, Fuslee (July, 1839), and to cancel the Appellant’s name as mortgagee in
the Collector’s records.
Assessor – The Right Hon. Sir Lawrence Peel.
The circumstances under which the suit arose were these: -
The Appellant, a Banker, carrying on business in the District of Gorruckpore, was in the habit of
making advances and loans to the neighbouring landholders.His father, BuccusPanday, before him
had been engaged in the same business, and in the course of the latter’s transactions he had advanced
the sum of Rs. 8,002, to RajaFobraj Singh, the paternal ancestor of LalSeetlaBukshBahadurSingh, of
whom; the Respondent was guardian. On the occasion of this advances, Raja Fobraj Singh executed
several deeds, conveying certain villages, part of his estate, by way of usufruct mortgage, to the
Appellant’s fathers.In 1235, Fuslee, after the death of RajaFobrajSingh, an adjustment of; accounts
took place; between Appellant’s father and RajaSheobukshSingh, the son and heir of
RajaFobrajSingh, when; a balance of Rs.5, 252, as against RajaSheobukshSingh was agreed on.For
this sum Bonds were assigned to Appellant’s father by RajaSheobukshSingh by way of usufruct
mortgage. RajaSheobukshSingh died shortly after this transaction, leaving an only son,
LalInderdowunSingh, an infant, whereupon his widow, RaneeDegumberKoonweree, assumed the
proprietorship of; the estates of her late husband, and the guardianship of his infant son.Her name was
registered with that of LalInderdowunSingh, the infant, on the records, until he attained his majority,
when a deed of gift having been executed by the Ranee in his favour, her name was removed from the
government register of landowners by a petition for mutation in the ordinary way.In 1239, Fuslee,
after the death of RajaSheobukshSingh, another adjustment of accounts took place between the
Appellant (who had in the meantime succeeded to the business and property of his father, then
deceased) and RaneeDegumberKoonweree, as the representative ‘of her late husband, in which a
balance of Rs.3, 200 was agreed to be debited to the Ranee.In the same year, the family estates being
in arrear of the revenue payable to Government, and in danger of sequestration by reason of such
arrear, the Appellant, under authority of an order from RaneeDegumberKoonweree, paid into the local
Collectorate, to the account of such arrears, Rs.3, 000 for which sum the Ranee afterwards executed
three several Bonds, of Rs.1, 000 each, and bearing date respectively PhagoonSoodeePoornumashee
F.S. 1243, AssarSodeePoonumashee F.S. 1243, and KatikbudeePoornumashee.Previous to executing
the abovementioned Bonds, the Ranee had, in consideration of Rs. 1,200, part of the balance before
found to be due to the Appellant, and of a further loan of Rs.600 from GoordialPanday (which was
afterwards repaid by the Appellant), executed to the Appellant and GoordialPanday a Bond and deed
of mortgage, conveying to them the MouzasMohunder and DeeMar in usufruct, granting at the; same
time a lease of the same to him for the whole term of the mortgage.In the month Sawun, in the same
year, the Ranee executed a mortgage to the Appellants, charging 200 beegahs of land lying in
Bundeheree, in consideration of Rs.1, 000, part of the balance of Rs.2, 000, then remaining
unsecured.In F.S. 1244, the Appellant, having paid off certain incumbrances to the amount of Rs.4,
133
000, which the Ranee had previously effected on the lands of the Raj, received from her a Deed dated
FeytSoodeePoonumashee F.S. 1244, conveying to him in usufructuary mortgage the villages Dee
Mar, DareeDeha, andMohunder, also a pottah for the same bearing the same date; the consideration
for the whole being Rs. 5,000 of which sum Rs. 1,000 was the balance due on the original account,
and Rs. 4,000 the amount of incumbrance paid off by the Appellant. In F.S. 1246 a final adjustment of
accounts took place between the Appellant and RaneeDegumberKoonweree, in which the items stood
as follows: -Monies paid by Appellant to Tahsildar on account of Government revenue due from the
Raj, Rs. 5,186; amount of monies secured by mortgage of Mohunder, DareeDeha, and lands in Dee
Mar, Rs. 5,000; amount secured by mortgage of Bundeheree, Rs. 1,000; amount secured by three
several Bonds of RaneeDegumberKoonweree for Rs. 1,000 each, Rs.3, 000; amount due, being
balance of Rs. 1,500 secured by Bond, Rs.814; making in the whole, Rs. 15,000. On this balance
having been ascertained, the Ranee and Lal Inderdowun Singh, then a minor, by a mortgage Bond,
dated Assar SodeePoornumasheeF.S 1246, conveyed to the Appellant in usufructuary mortgage.
DareeDeha, Dee Mar, Bundeheree, Rajabaree, Mohunder, and GundhereaFaiz, which transaction
formed the subject of the present suit. In this bond the Raneewas described as being possessed of the
mortgaged property in proprietary right.
Apart from these transactions of loan and mortgage, Raja Sheobuksh Singh granted to the
Appellant in Birt some thirty beeghaasof wasteland lying in Bundeheree, in consequence of, which
grant Appellant expended much money in reclaiming the waste, erecting buildings, and otherwise
improving the land.
RaneeDegumberKoonwereeafterwards, finding that Appellant possessed no evidence of his Birt
title, compelled him to pay Rs. 500 for a Birt puttee, which she executed. Beside this portion ofBirt
lands the Appellant had purchased three and a half beeghas, lying in Dee Mar, from GosainMusan
Nath Fakir, to whom they had granted for religious services by Raja Pirthee Pal Singh, the ancestor
of the original Plaintiff.
On The 10thDecember, 1849, Lal Inderdowun Singh, having the attained majority, filed a plaint
in the Zillah Court of the Principal Sudder Ameen ofGorruckporeagainst the Appellant and
RaneeDegumberKoonweree, for the possession of Zamindary right, unencumbered by Birt,
ofDareeDeha, Mohunder, GundhereaFaiz, and of certain lands lying in Bundeheree, Dee Mar
andRajabaree;also to set aside the mortgage Bond before mentioned, bearing date Assar
SodeePoonumasheeF.S. 1246, and to oust the Appellant. The plaint alleged that
RaneeDegumberKoonwereehad acted as the guardian for the Plaintiff and managed his affairs for him
since minority; that she being a Purdah Nusheen and totally ignorant of matters of business, had been
imposed on and deceived by her servants and agents, who had, without her knowledge or authority,
made contracts of loan and mortgage with divers parties, and effected incumbrances on the Plaintiff’s
property; that the Appellant, among others by collusion and fraud obtained from them, under pretence
of mortgage, the possession of certain lands and villages; that the villages and lands so unlawfully
possessed by the Appellant were component parts of Plaintiff’s ancestral Raj, and inalienable by the
act of a guardian.
The answer of the Appellant set forth the circumstances above stayed under which the debts were
contracted and the mortgage Bonds executed, and traversed the allegations respecting the, Ranee’s
ignorance of matters of business and the Appellant’s collusion with the Ranee’s agents; and alleged
that the Plaintiff, in F.S. 1255, after he had attained majority, had personally acknowledged the
validity of the mortgage Bond and the debt due under it; that the Appellant in expressing a desire to
redeem GundhereaFaiz and Baree (which second village was not included in the suit), had proposed
to execute a fresh mortgage of Mohunder, DareeDeha, and the lands in Bundehree, DeMar and
Rajabaree, and that the Plaintiff since attaining majority, had borrowed money on Bond from the
Appellant, and the Appellant by his answer finally insisted that the amount of mense profits was
greatly exaggerated.
The answer of the RaneeDegumberKoonweree averred ignorance of the mattes in issue, asserting
that the Appellant had been for some time employed by her in the capacity of Manager.
Lal Inderdowun Singh having died, MussumatBabooeeMunrajKoonweree, the Respondent, was
admitted by the Court to prosecute the suit as guardian of LalSeetlaBukshBahadurSingh, the infant
son and heir of LalInderdowunSingh.
134
By a proceeding of the principal SudderAmeen of Goruckpore, had on the 3rd of April 1850, the
issues to; be disposed of were settled.The first was upon a point of practice arising out of an alleged
irregularity of the replication the second was, whether the mortgage Bond was the act and deed of
RaneeDegumberKoonweree; and whether it ought to have effect against the mortgaged villages; also
if the mesne profits, as stated, were correct.
Evidence was entered into on both sides, the effect of which is contained in the SudderAmeen’s
judgement.
On the 23rd of December 1850, the suit was heard and decree dismissed the suit.The material part
of his judgement was as follows: - “My opinion on; these second is this-That the mortgage Bond was
written, and that it exists at this time, neither of the parties in; their pleadings call it into question; for
the witness on both sides dispose that it was executed on the part of RaneeDegumberKoonweree and
Lal InderdowunSingh.The only dispute is, that the Plaintiff avers it was made without the knowledge
of RaneeDegumberKoonweree the second named Defendant; while the first named Defendant
declares that RaneeDegumberKoonweree was cognizant of its execution. My opinion is, that the
Plaintiff’s plea of the Bond having been made without the knowledge of RaneeDegumberKoonweree,
the second-named Defendant, is opposed to facts, and on several grounds inadmissible.First; several
witness, among whom are some who attested the Bond, others who were percipient witnesses of the
transaction, have deposed on both sides, especially some who are the servants, dependants, and some
who are the servants, dependants, and Mallgoozars of the Raja, have deposed to the fact.It is there
fore, impossible that so many persons should be aware of the transactions, and yet the Ranee and Raja
remain in ignorance, as stated by the Plaintiff’s witnesses.Secondly; had this Bond, by which certain
property was mortgaged, been made without the Ranee’s knowledge, seeing that she was the Manager
of the Raj, the Defendant would not have been able to get possession of; the property mortgaged by
the Bond; for when the Defendant attempted to take possession he would have been opposed by the
Ranee.Thirdly; that at the settlement the Defendant’s name would not have been recorded as
mortgage. Fourthly; assuming the Plaintiff’s statement to the effect that the Karindas colluded with;
the Defendant, and executed the Bond as he dictated, and they moreover filed a petition admitting the
mortgage in the settlement, it is obvious that there was nothing to prevent the Defendant, in collusion
with the Karindas, from fabricating a deed of sale conveying the disputed property to him: he would
not, seeing that he had such great influence, have been content with the mortgage Bond.Hence it is
clear to me that RaneeDegumberKoonweree, being in want, and also wishing to satisfy formor debts
in order to preserve the estates in her hands, mortgaged the estates in order to pay the debts and put
the Defendant in possession; otherwise it is not possible to credit, that in the face of such dishonesty
on the part of the Karindas, she should refrain from complaining in the Courts, and preventing
Defendant from entering upon the estates; for her experience and sagacity are demonstrated by the
fact that she has saved the estates of the Raj, and has continued to manage them herself to the present
time.Fifthly; were the plea of the Plaintiff to the effect that the Karindas were ungrateful and
dishonest, they would not have given their evidence in favour of the Ranee as supporting her
statement: they would unequivocally have declared that the Bond was made with the knowledge and
sanction of the Ranee.These witnesses, after the lapse of so long a period, not having the fear of
eternity before their eyes, depose that they acted under the tutorage of Defendant, and did not acquaint
the Plaintiff with the transaction. Then what more is required to prove their attachment and
subservience to the Ranee?Indeed, from the fact that the Defendant has been in that possession, the
settlement was concluded with him, that RaneeDegumberKoonweree and Lal Inderdowun Singh,
deceased, remained silent for so long a period, it is clearly inferred that the statement of the Defendant
and his witnesses is true.On these grounds my opinion is, that there can be no doubt that the Bond was
made with the knowledge of RaneeDegumberKoonweree, the Manager of the Raj, and that the
statement of Plaintiff and of her witnesses is made with dishonest intentions.Several witnesses have
been adduced on the part of the Plaintiff, who states that RaneeDegumberKoonweree and her
predecessors had no occasion to borrow money.This assertion is sufficiently rebutted by the exhibits
filed on the part of the first-named Defendant.It is opposed to common sense to suppose that although
the Raj was to be maintained and that the expenses of the Rajas were great, and moreover that a
woman was the manager, that there should have been no occasion to borrow money.Indeed, copies of
papers obtained from the office of Register of Deeds, and more especially the decree of the
135
Moonsiffof Captain Gunj, dated 21st of September, 1847, is conclusive evidence to prove the
Plaintiff’s statement to be false. The second point remains to be considered, namely whether the
mortgage pleaded by Defendant is valid and of effect touching the villages in dispute.The record
shows that RaneeDegumberKoonweree was the manager of the Rajview of the case. Finally, since the
Plaintiff’s claim is dismissed by me, there remains no necessity for an inquiry into the matter of
menseprofits.On the ground above started, it is ordered, that the plaintiff’s claim be dismissed, with
costs”.
From this judgement the Respondent appealed to the SudderDewannyAdawlut at Agra.The
principal grounds of appeal were, that Lal Inderdowun Singh, at the time the Bond was made,was a
mere child, that the Ranee was not designated as guardian in the Bond, but as proprietor, and that the
Bond, therefore, was totally invalid, since, under the Regulation, or the Hindoo law, a deed made by
an infant could have no effect or force: that even admitting the bond to be genuine,
RaneeDegumberKoonweree was not competent by the Hindoo law to make such a Bond; that under
the law of the Shastras, the son of the deceased living, the RaneeDegumberKoonweree could have no
personal title to the Property; but as the son was an infant she was not competent to make such a
transfer of the property as had been made; and lastly, that the Ranee was not cognizant of the Bond
being executed or of the transaction.
The appeal, which was referred to the full court, came on for hearing on the 22 nd January, 1852,
when the Messrs. Begbie, Deane, and Brown, the Judges of the SudderDewanny Court, by their
judgement, held, that the question which the Court had to deal with, related to the right of the Ranee
to execute the deed before them.They remarked that the deed itself assigned to the Ranee a proprietary
character, and that it was not among the Defendant’s pleas that the Ranee acted as her son’s guardian
but during the infancy of Lal Inderdowun Singh, and that all her acts and deeds are recognised in the
Revenue Department and in the Special Commission.During her management, with the object of
saving the estates, of paying the debts of her predecessors, and of satisfying the claims of Mahajuns,
the Mortgage Bond was executed.Seeing, moreover that the settlement was also made with the
defendant by the Settlement officer, that a bond of this nature does not extinguish the title of the
infant, it follows the, as a matter of justice and equity, that the bond is valid and of effect.For if it is be
held to be invalid, two difficulties will arise – First, that then the Raj is under the management and
guardianship of a person, should necessity arise to take money on loan in order to pay the
Government Malgozaree and to pay other necessary expenses of the Raj, no person will be willing to
lend the money, the loss of the estates will be the consequence.Secondly, should any person, on the
faith of the raj, and satisfied that there are assets sufficient to liquidate his loan, advance money to the
manage of the Raj and save the Raj from being lost, and subsequently, should this fact be proved, and
on the suit of the proprietor, on his attaining his majority, he should be able to repudiate the loan, it
would be gross injustice.Their next remains to consider the fact that the name of Lal inderdowun
Singh is associated with that the RaneeDegumberKoonweree I the Mortegagebond.I remark that this
is not a suit brought by the defendant, consequently this point need not be tried and disposed of, since
in my opinion the claim must be dismissed; and precedents adduced by the Plaintiff do not apply to
this case; on the contrary, it is a legitimate inference that these precedents support my that the claimed
for her the proprietary character both in his answer to the plaint, and still more broadly and
unreservedly I his answer to the pleadings in appeal.That the plaintiff, on the other hand, had,
throughout, argued for the avoidance of the Bond by denying the Ranee’s proprietary right in any
way; and such being the issue joined between the parties, the Court, looking to the fact that the estates
in dispute unquestionably devolved on the plaintiff, to the exclusion of the Ranee on the death of the
plaintiff’s father, Raja Sheobuksh Singh, had no hesitation in declaring that ever on the assumption
that the Ranee voluntarily executed the Bond and received full consideration for it, the Bond was not
binding on the plaintiff, and that neither he nor his ancestral property could be made liable in
satisfaction of it.That it was needless for the court their inquiries being thus stopped in limine, to enter
on the real merits of the transaction as between the Ranee and Hunoomanpersaud Panday: but that a
Final judgement could not then be pronounced, the amount of the waisilat (mense profits) being,
disputed, any no investigation on that point having been made by the court below. The court,
therefore, decreed to be plaintiff in alteration of the Principal Sudder Ameen’s judgment so much of
his claim as related to the avoidance of the Bond, and remitted the suit with directions to the principal
136
Sudder Ameen, that he determine what amount of mesne profits from the date from which they were
claimed the plaintiff was entitled to recover. It was ordered, therefore, that the judgement of the
principal Sudder Ameen of Goruckpore, dated 23rd of December, 1850 be amended; that the Bond set
up by the defendant be set aside and that a decree do pass in favour of plaintiff, and that the costs be
awarded in the decree to the extent of the Jumma of the property claimed.
Against this decree the present appeal was brought.
Mr. R. Palmer, Q.C., and Mr. Leith, for the Appellant; and
Mr. Wigram Q.C., Mr. Bagshaw, Q.C., and Mr. W. Field, for the Respondent.
The principal points submitted to the Court in the Argument were: -
First, as to the validity of the Mortgage bond, whether it was executed by the Ranee at all, and
further, as the Bond purported to be executed by her in a beneficial character, if it constituted a valid
incumbrance on the Raj.
Second.Whether the incumbrance created by Raja Sheobuksh Singh entitled the Appellant to
retain possession of the villages and lands in the mortgage bond executed by him until such
incumbrnce was paid off, or whether it was a personal charge only on the heir; and the Appellant had
not a right to stand in the place of the Ranee in respect of the monies he had advanced.
Third.Whether it was competent by the Hindoo law to the Ranee, as the registered proprietor of
the family estate and curator of the infant’s property, to charge ancestral estates by the of mortgage, in
consideration of the advances made for the benefit of the minor’s estate to prevent a sequestration and
probable confiscation.
Fourth.Whether after the factum of the mortgage Bond was established and proof of the advances
made, the presumption of law was not in favour of the charge and the onus probandi was not upon the
heir to disprove the necessity of the advances.
Upon these points the following authorities were cited: -
As to the power by the Hindoo law of a manage or guardian in possession to mortgage ancestral
estates, to charge by way of mortgage for payment of debts or Government revenue to save the estate
from sequestration, or in any way to alienate ancestral estate by deed or will, 2 Colcb. Dig., pp. 265,
270, 284, 294, 319, the Mitacshara, ch. I. Sec. I paras 28, 29, 30, where reference is made to Inst. Of
Menu ch.xiIStrange’s Hindu Law p.18 (2nd Edit). Rajah Sahibdeen Khan v. Brig Raj Sing 1;
GopeeChurunBurral v. MussumautLukheeIshwareeDibia 2 ;Anohutto Day v. MoheschunderDutt3;
Sheogovidpershadsingh v. ramchurumDoobe4 ; NagalutchmeOmmal v. GopooNadaraja
Chetty5;Rungamma v. Atchama 6; LekanyVencataramaFagganadha Row7; by the English Law, Archer
v. Hudson 8.
That the debts of ancestors were charges upon the estate, I Strange’s Hindu Law, p.166 Oomed
Rai v. HeeraLall9 .
Upon whom the onus probandi lies, Rajah Sahibdeen Khan v. Brig Raj Sing 10.
As to the manner of taking mortgage accounts. Ben Reg. XV of 1792.
And upon the practice of framing the issues of the points in dispute, Ben Reg. XXVI, sec 10, els
2 & 3 of 1814 Macpherson on Civil procedure 207.
Judgement was delivered by
The Right Hon the Lord Justice Knight Bruce.
The complainant in the original suit, was Lal Inderdowun Singh described in the plaint as
proprietor of the Raj of PergunahMunsoorNuggur Bustee. The suit was against the present Appellant,
the Chief Defendant, and RaneeDegumberKoonweree, the second Defendant, the mother of the
complainant. The complainant sought by his plaint the possession of certain immovable property
1 6 Sud. Dew. Adaw. Rep.47.

2 3 Sud. Dew. Adaw. Rep.93.
3 Fulton’s Rep. 380.
4 9 Sud. Dew. N.W. P.133.
5 6 Moore’s Ind. App. Cases, 309.
6 4 Moore’s Ind. App.Cases, 1.
7 2 Moore’s Ind.App. cases, 54.
8 7 beav. 551.
9 6 Sud. Dew. N.W.P. 218.
10 6 Sud. Dew. Adaw. Rep. 47.
137
described in his claim, the particulars of which it is unnecessary to state.He sought also to set aside a
mortgage bond bearing date Assar SoodeePoorunmashee, 1246 Fuslee, set up by the Appellant; to
oust the Appellant, to cancel the name of the Appellant as Mortgagee in the Collector’s records, and
to recover mesne profits.
To this suit the defendant put in his answer.The title of the complainant to the lands as heir was
not denied by the answer; but the defendant alleged his title as mortgagee (except as to some Birt
Lands, the claim to which was abandoned in the suit, and to which it is unnecessary further to
refer).The substantialdispute between the parties was, as to the lands for which the suit
proceeded.Whether the defendant could resist, under his title as mortgagee to the extent of that
interest, the title of the complainant as heir and proprietor of the lands.
It is necessary to enter in detail into the pleadings or proceedings in the suit.It is sufficient to
state, that in the result the Sudder Ameen decided in favour of the security, and dismissed the claim
generally but that on appeal from the decision, the Sudder Court decided against the security, and in
substance granted the relief, asked by the plaint, except in so far as it was abandoned.
The reasons for the decision of the appellate Court are contained in their judgement.The court
says, the question with which the court have first to deal respects the right of the Ranee to execute the
instrument before them.They then remark that the Bond itself assigns to the Ranee a proprietary
character, and that it was not amongst the Defendants please that the Ranee acted as her son’s
guardian, but that he has Ranee acted as her son’s guardian, but that he has claimed for her the
proprietary character, both in this answer to the plaint, and still more broadly and unreservedly in his
answer to the pleadings in appeal.The plaintiff, on the other hand, has throughout argued for the
avoidance of the Bond, by denying the Ranee’s proprietary title I any way; and such being the issued
joined between the parties, the Court, looking to the fact that the estates in dispute unquestionably
devolved on the plaintiff to the exclusion of the Ranee, on the death of the plaintiff’s father, Raja
Sheobuksh Singh, have no hesitation in declaring that, even on the assumption that the Ranee
voluntarily executed the Bond, and received full consideration for it, the Bond is not binding on the
plaintiff, and that neither he nor is ancestral property can be made liable in satisfaction of it.It is
needless for the court, their inquiries being thus stopped in limine to enter on the real merits of the
transaction as between the Ranee and Hunoomanpersaud Panday.
Their Lordships collect from this judgement that the court thought that a bar was interposed by
the pleadings, and by the Ranee’s act of assumption of proprietorship, to the further consideration
whether the Appellant’s charge could in any character be sustained against the estate.
The court did not enter upon the question of the validity of the charge, in whole or in part, as a
charge effected by a de facto manager, or proprietor, whether by right or by wrongful title, nor advert
to the fact that the charge included some items of former charge wholly unaffected by the objection
which they considered of so much weight.
This judgment may be considered under the following points of view:
First.Did the appellate jurisdiction rightly construe the pleadings, and take aright view of the
issues framed under the direction of the Judge according to the practice of those courts?
Secondly.Did it take aright view of the relation in which the Ranee intended to stand to her son’s
estate? And,
Thirdly.Did it consider the point, whether the rights of these parties could wholly depend upon
the question whether that relation was duly or unduly constitute?
On the first point their lordships think it right to observe, that it is of the utmost importance to the
right administration of justice in these courts, that it should be constantly borne in mind by them that
by their very constitution thy are to decide according to equity and good conscience ; that the
substance and merits of the case are to be kept constantly in view; that the substance and not the mere
literal working of the issues is to be regarded ; and that if, by inadvertence, or other cause, the
recorded issues do not enable the court to try the whole case on the merits, an opportunity should be
afforded by amendment, and if need be, by adjournment, for the decision of the real points in dispute.
But their lordships think that if the working of the issue he carefully considered, it will be found
that the issue in substance is, whether the charge under the instrument bound the lands.The words in
which the Principal SudderAmeen States the issue on this point are: Whether it (the mortgage bond)
ought to have effect against the mortgaged villages.It was not an issue limited to the particular
138
description or character in which this act was done, and a misdescription or error in that respect would
not have been fatal to the charge.Consequently, their Lordships cannot agree with the
SudderDewannyAdawlut, upon the first point, that the real question in dispute between these parties,
namely whether the charge bound the lands in the hands of the heir, was not substantially included I
the issues which were evidently intended to raise it.Neither can their lordship adopt the reasoning or
the conclusion of the SudderDewannyAdawlut, upon the second point, as to the relation if which the
Ranee meant to stand, and substantially stood, to the estate of her son.
Deeds and contracts of the people of India ought to be liberally construed.The form of
expression, the literal sense, is not to be so much regarded as the real meaning of the parties which the
transaction discloses.Now, that is meant by the assumption of proprietorship on the part of the Ranee,
which the judgement ascribes to her?It is not suggested that the ever claimed any beneficial interestin
he estate as proprietor; had she done so, it would have been prontoa claim adverse to her son; and it is
conceded by the Respondent’s counsel that she did not claim adversely to her son.The terms of
Proprietor and of heir when the occur, whether in deeds or pleadings, or documentary proofs, may
indeed by a mere adherence to the letter be constructed to raise the conclusion of an assumption of
ownership in the sense of beneficial enjoyment derogatory to the rights of the heir; but they ought not
to be so construed unless they were so intended, and in this case their lordships are satisfied that they
were not so intended.They consider that the acts done on behalf of another, whatever description she
gave to herself, or others gave to her; that she must to herself, or others gave to her; that she must be
viewed as a manager, inaccurately and erroneously described as proprietor or heir and it is to be
observed, that the collector takes this view, for, whilst he remarks o the improper description of her as
heir, or proprietor he continues her name as Surberakar if the whole context of all these documents
and pleadings be taken into consideration and the construction proceed on every part, and not on
portions of them, they are sufficient, in their lordships judgement, to show the real character of her
proprietorship.
Upon the third point, it is to be observed that under the Hindoo law right of a bonafide
incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the
purpose of savings the estate, or for the benefit of the estate, is not (provided the circumstances would
support the charge had it emanated from a de facto and de jure manager) affected by the want of union
of the de facto, with the dejuretitle.Therefore, had the Ranee intruded into the estate wrongfully, and
even practised a deception upon the curt of wads, or the collector, exercising the powers of a court of
wards, by putting forth a case of joint proprietorship in order to defeat the claim of a court of wards to
the wardship, which is the case that Mr. Wigram supposed, it would not follow that those acts,
however wrong, wold defeat the claim of the incumbrancer.The objection, then to the Ranee’s
assumption of proprietorship, in order to get the management into her hands, does not really go to the
root of the matter, nor necessarily invalidate the charge; consequently, even had the view which the
sudderDewannyAdawlut took of the view which the SudderDewannyAdawlut took of the character of
the Ranee’s act, as to having been done by her as guardian, been correct their decision was cited.Their
lordships, however, must to be understoodto say, that they see any ground of probability for the
assertion, that the Ranee really meant to deceive the court of wards, or the collector exercising its
authority, by any consciously false description of herself.The title to this Raj cannot readily be
supposed to have been unknown in the collector’s office nor is it probably that the Ranee could have
deceived the office by such a false description of herself.
It is a circumstance worthy of remark too, that the complainant does not ascribe this conduct to
her in his plaint.The case that the plaint makes is not that the intruded upon him and assumed
proprietorship.The plaint itself says she had possession as guardian, that is, as managing in that
character; and on a review of the whole pleading and documentary evidence, and of the probabilities
of the case, their lordship thinks it a strained and untrue construction to assign any other character to
her acts than that which the plaint ascribes to them, not withstanding the use of terms inconsistent
with it.For these reasons, their lordships think that the judgement on he grounds which thatcourt has
assigned.
It then remains to be considered whether the judgement is substantially right, though the reasons
as signed for it are not satisfactory or sufficient.
139
If the evidence discloses, as it is contended for the Respondent that it does disclose, no permit
facie case of charge at all o this ancestral state, then, as the only bar to the resumption by the heir of
his estate is the alleged mortgage title over it, the proof of which lies on the mortgagee, the
complainant’s title to the estate, to the mesne profits and to the other relief, is made out, but if, on the
other hand, the evidence discloses even a prima facie case of charge some inquiry at least ought, as it
seems to their Lordships, to have been directed.
The question then next to be considered is, whether a prima facie case of a subsisting charge is
made out by the Appellant.The question involves the consideration to two points; first, the actual
factum of the deed; and, next, the consideration for it.
First, as to the factum. The execution of the Bond by the Ranee is stated by several of the
attesting witnesses.It was argued, however, on behalf of the Respondent, that the Court ought not to
act on their evidence.Some discrepancies, - such, however, as are not unfrequently found in honest
cases in native testimony, - we dwelt upon.TheSudder Ameen, who decided this case originally, has
made some pertinent remarks on the confirmation which circumstances give to the oral evidence that
the Bond is the deed of the Ranee.The decision by a native judge possessing the intelligence which
this judgement of the SudderAmeen evinces, on a question of fact in issue before him, is in the
opinion of their Lordships, entitled to respect; he must necessarily possess superior knowledge of the
habits and course of dealing of natives, and that knowledge would be likely to lead him to a right
conclusion upon a question of disputed fact.TheSudder Ameen observes, in substance, that possession
went along with this Bond, and that the Mortgagee was inscribed in that character as proprietor on the
records of the collector.He was, therefore, put in possession as mortgagee, and was publicly known as
mortgagee in the collector’s officer.
It is to be observed further, that his receipt of the rents and profits of the lands included in this
conveyance would diminish protanto the annual income of the estate, which would come to be
administered by the Rance and that this state of things continued for several years after the execution
of the Bond.TheRanee, ignorance, then, of such title, possession, receipt, and diminution, is as the
SudderAmeen justly observes, not a probable supposition.It could be rationally accounted for only on
one supposition that the Ranee was a mere cypher, and entirely ignorant of that which was done in her
name.This, however, does not appear to have been the case: she herself denied it on a subsequent
context as to the managership; and the act of the collector in his decision upon that dispute, in putting
her into the management, confirms her own statement of her capacity.Had her incompetency been of
so flagrant a character, as the above hypothesis demands to be attributed to her, it is to reasonable to
suppose that it would have been unknown in the collector’s office, nor is it reasonable to suppose that
the management would have been confided to her had such been her character.It was argued, indeed,
that she may have become by that time capable; but it is to be observed that a long course of neglect
and mismanagement, which is attributed to her, would not be a school of improvement.
It was argued that the complainant was not to be bound by the Ranee’s allegations of her own
competency; that she had tasted the sweets of management and would desire their
continuance.Certainly the complainant is not to be bound by her assertion; but it is not the assertion
that is relied on as confirmation.What is relied on is the result of the contest, and the
acknowledgement of her as one competent to the management of the estate by an officer interested in
its right administration.
Their Lordship cannot but concur with the Sudder Amen in thinking that these circumstances do
materially confirm the story of the attesting witnesses as to the Ranee’s execution of the deed.The
story of her non-execution of it is based in a considerable degree on a supposition of her
incapacity.That the deed is hers, is in the opinion of their Lordships, further confirmed by the great
improbability of the history which some of the witnesses of the Respondent give as to the factum of
the instrument.The story told by the witnesses, Heeralala and GyapershadPatuk is so destitute of
probability, so little in harmony with the ordinary conduct of men in like circumstances, that their
lordships can place no reliance upon it.According to the case of the Respondent, this bond was
fraudulently executed in the name of the Ranee, without her sanction or knowledge in order to this
story, conspiring together for this object.According to the witnesses, who give nearly verbatim the
same account of the transaction, these conspirators had witnesses ready, though not present who were
to attest consciously the false deed as true ; yet such is at once the impatience and the folly of these
140
conspiring parties, that everyone of the witnesses, each of whom is described as dropping in by
chance as it were, is solicited without any assigned adequate motive, and with no previous sounding
to become a party to this fraud by consciously attesting the false deed as true.Each witness declines,
and each is entreated to secrecy and each preserves the secret inviolate, contrary to duty and without
any assigned motive for secrecy.The communication and the concealment are both without motive
according to the account, which is given us.And the story of this utterly needless communication of
his crime, is told of a man used to business, intelligent, and described by the Respondents as the
habitual accomplice of crafty and designing men, the Karindas, in acts of fraud.
Taking the whole circumstances as to the factum of this instrument into consideration, their
Lordships concur in the finding by the SudderAmeen as to it.
Next, as to the consideration for the Bond.The argument for the Appellant in the reply, if the
correct, would indeed reduce the matter for argument, if the factum of a deed of charge by a manger
for an infant be established, and the fact of the advances be proved, the presumption of law is prima
facie to support the charge, and the onus of disproving it rests on theheir.For the position a decision,
or rather a dictum of the SudderDewannyAdawlut at Agra, in the case of Oomed Rai v. HeeraLall (6
Sud. Dew. N.W.P. 218), was quoted and relied upon.But the dictum there, though general, must be
read in connection with the facts of that case.It might be very correct course to adopt with reference to
suits of that particular character, which was one where the sons of a living father were, with his
suspected collusion, attempting, in a suit against a creditor, to get rid of the charge on an ancestral
estate created by the father, on the ground of the alleged misconduct of the father in extravagant waste
of the estate. Now, it is to be observed that a lender of money may reasonably be expected to prove
the circumstances connected with his own particular loan, but cannot reasonably be expected to know
or to come prepared with proof of the antecedent economy and good conduct of the owner of an
ancestral estate; whilst the antecedents of their father’s career would be;more likely to be in the
knowledge of the sons, members of the same family, than of a stranger; consequently, this dictum
may perhaps be supported on the general principle that the allegation and proof of facts, presumably
in his better knowledge, is to be looked for from the party who possesses that better knowledge, as
well as on the obvious ground in such suits of the danger of collusion between father and sons in fraud
of the creditor of the former.But this case is of a description wholly different, and the dictum does not
profess to be a general one, nor is it so to be regarded.Their Lordships think that the question of whom
does the onus of proof lie in such suits as the present, is one not capable of a general and inflexible
answer. The presumption proper to be made will vary with circumstances; and must be regulated by
and dependent on them.Thus, where the mortgagee himself with whom the transaction took place, is
setting up a charge in his favour made by one whose title to alienate he necessarily knew to be limited
and qualified, he may be reasonably expected to allege and prove facts presumably better known to
him then to the infant heir, namely, those facts which embody the representations made to him of the
alleged needs of the estate, and the motives influencing his immediate loan.
It is to be observed that the representations by the Manager accompanying the loan as part of the
res gesta and as the contemporaneous declaration of an agent, though not actually selected by the
principal, have been held to be evidence against the heir ; and as their Lordships are informed that
such primafacie proof has been generally required in the Supreme Court of Calcutta between the
lender and the heir, where the lender is enforcing his security against the heir, they think it reasonable
and right, that it should be required.A case in the time of Sri Edward Hyde East, reported in his
decisions in the 2nd volume of Morely’s “Digest”, seems the foundation of this practice.(See also the
case of Brown v. Ram DunaeeDutt, I ISud. Dew. Adaw. Rep. 791)
It is obvious, however, that it might be unreasonable to require such proof from one not an
original party, after a lapse of time, and enjoyment and apparent acquiescence; consequently, if as is
the case here as to part of the charge, it be created by substitution of a new security for an older one,
where the consideration for the older one was an old precedent debt of an ancestor not previously
questioned.Appellant would be reasonable.The case before their Lordships is one of a mixed
character; the existing security represents loans and transactions at various times and under varying
circumstances: it is a consolidating security; and as to part, at least – namely, the ancestral debt-there
is, in the opinion of their Lordships, ground to raise a primafacie presumption in the Appellant’s
favorof a consideration that binds the estate.It is unnecessary to the decision to pursue the inquiry as
141
to the other items of charge, but that part of it which relates to the advance for payment of the revenue
seems to be at least primed facie proved as against the estate.And, as to the whole charge, there is also
at least primed facie evidence in the admissions of the Plaintiff, proved by several witnesses,
uncontradicted on the point,as to the debt;of the ancestors, it was said that itwasalreadysecured, and
thatthe estate being ancestral, could not, accordingto the lawcurrent in the North-WesternProvinces,
be charged, in the hands of theheir,for an ancestor’sdebt. But it is to be observedas to the change
ofsecurity,thattherewas a reductionof interest, it istherefore,atransaction,Primafacie,for the benefitof
the estate;andthoughan estate be ancestral, it may be charged of some purposes against the heir,for the
father’s debt,by the father,as, indeedthecaseabovecitedfrom the 6 thvolumeoftheDecisionsof the
SudderDewannyAdawlut, North-WesternProvinces, incidentally shows. Unlessthe debt was of such a
naturethatit was notthedutyof the son to pay it, the dischargeof it, even though if affectedancestral
estate, would stillbe an act ofpious duty in the son from theobligationtodischargethe father’s debt, has
respect to thenature of the debt,and not to the nature of the estate, whetherancestral or acquired by the
creatorofthedebt. TheirLord ships, therefore, are clearly of opinion that prima facie case of charge for
some thin was made out; andit is not necessaryto determine, nor, indeed, have theirlordships the
necessaryfactsbeforethem to enable them todetermine, or how much, ifforany thing, this deed must
ultimately stand as a security.
One point remains to be considered, namely, whether, in takingtheaccountbetweenthese parties,
the Defendant is to be charged, asmortgagee in possession, with the actual rents and profits, or only
with the rent fixed by the pottah. It is saidfor the Appellant, that theSudderDewannyAdawlut did not
set aside the pottah. In termstheycertainlydid not. ButtheirLordshipsthinkthat it waspart of one
mortgagesecurity, consistingofseveralinstruments of equal date with the mortgage Bond; and that
itwasintendedto create, not adistinctestate but only a securityfor the mortgagemoney. Mr. Palmer
contended that a stipulation such as this pottahevidences,may stand
inIndiabetweenmortgagorandmortgagee,and that theRegulationsas to interestdonottouchsuch a case.
TheRegulationsprovide for the case of an evasion
ofthelawastointerestbyinvalidatingthemortgagesecurity, andforfeitingthe claim of the mortgagee to his
principaland interest: but Mr. Palmer contends that wherethere is nosuch evasion, and a bond fide and
fair rent is fixed uponas representing communibusannis, the rents and profits of the estate, the court
oughttostandonthatthe agreement of the parties and not to direct the taking of the
accountsbetweenmortgagor and mortgagee on any other basis.Itiscertainlypossible that by reasonof
theprovisionthat the rent shall be a fixed one not withstanding losses and casualties themortgagee
might be a loser, in his characterof lessee, on an account calculatedonthisbasis, but, notwithstanding
that contingency their lordshipsthink that as it was not meant thattheprincipal should beriskedit was
virtuallyaprovisiontoexcludeanaccountof the rents and profits and that decree of the
SudderDewannyAdawalut, directinganaccountof the actualrentsandprofits, thereforeproceedson the
right principle, and is in accordancewith the truenature of the security and the spirit of the
Regulations.
In the case of Roy FuswuntLallv.SreekishenLall, reported in the decisionsof the Sud. Dew.
Adaw, in 1852, vol.14,p.577, the courtseems to have thoughtthat where a mortgageleasewasgranted,
andwhilst the termwas running, the mortgage account could not be taken; but it appearsfrom that
case,that in former decisionsof that court notreported, where theleasehadexpired, the court
directedthecourtdirectedthe account to be taken on the ordinaryfooting of the
receiptofrentsandprofitsof the mortgagedestate.Their Lordships think that, under the Regulations,
unless the principal is meant to be risked, and is put in risk, the estate created as part of a mortgage
security, whatever be its form or duration, can be viewed only as a security for a mortgage debt, and
must be restored when the debt, interest and costs are satisfied by receipts.
Upon the whole, their Lordships are of opinion that the cause must be sent back for further
inquiry.They think its desirable, however, in order to prevent a future miscarriage, to state the general
principles, which should be applied to the final decision of the case.
The power of the Manager for an infant heir to charge an estate not his own, is under the Hindoo
law, a limited and qualified power.It can only be exercised rightly in a case of need, or for the benefit
of the estate.But where, in the particular instance, the charge is one that a prudent owner would make,
in order to benefit the estate, the bond fide lender is not affected by the precedent mismanagement of
142
the estate.The actual pressure onthe estate, the danger to be averted, or the benefit to be conferred
upon it, in the particular instance, is the thing to be regarded.But of course, if that danger arises or has
arisen from any misconduct to which the lender is or has been a party, he cannot take advantageof his
own wrong, to support a charge in his own favour against the heir grounded on a necessity which his
wrong has helped to cause.Therefore, the lender in this case, unless he is shown to have
actedmalafide, will not be affected, though it be shown that, with better management, the estate might
have been kept free from debt.Their lordships think that the lender is bound to inquire into the
necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with
whom he is dealing, that the manger is acting in the particular instance for the benefit of the estate.But
they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and
reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not
think that, under such circumstances, he is bound to see to the application of the money.It is obvious
that money to be secured onany estate is likely to be obtained on easier terms than a loan which rests
on mere personal security, and that, therefore, the mere creation of a charge securing a proper debt
cannot be viewed as improvident management; the purposes for which a loan is wanted are often
future, as respects the actual application and a lender can rarely have unless he enters on the
management, the means of controlling and rightly directing the actual application.Their Lordships do
not think that a bond fide creditor should suffer when he has acted honestly and with due caution, but
is himself deceived.Their Lordships will, therefore, humbly report to Her Majesty in the following
terms:
Their Lordships are of opinion that the Rance ought to be deemed to have executed the mortgage
Bond, dated Assar SoodeePoornumashee, in the pleadings mentioned, as and tin the character
ofguardian of the infant Lal Inderdowun Singh.
“And their Lordships are of opinion that the validity, force and effect of the Bond, as to all and
each of the sums, of which the sum of Rs.15,000/- thereby purporting to be secured, is
composeddepend on the circumstances under which the sums or such of them as were advanced by
the Appellant, were respectively so advanced by him, regard being had also, in so far as may be just,
to the circumstances under which the same were respectively borrowed.
And their Lordships are also of opinion that, assuming the Bond to be invalid and ineffectual, the
Appellant would, nevertheless, be entitled to the benefit of any prior mortgage or mortgages paid off
by him affecting the property comprised in the Bond, if and in so far as such prior mortgage or
mortgages was or were valid and effectual.
“And their Lordships, therefore, are of opinion that the decrees of the Zillah and Sudder Courts
respectively ought to be reversed, and the cause remitted to the Sudder Court, with directions that
inquiry be made into the several matters aforesaid, and that all such accounts to taken and such other
inquires made as having regard to such matter and to the necessary and proper with directions also
that the Sudder Court do proceed therein as may be just, both with respect to the said mortgage bond
and the several instruments of even date therewith; and that the costs of the appeal be costs in the
cause, to be dealt with by the Sudder Court.
------------------
143
2.
BachooHurkisondas
v.
Mankorebai
ON APPEAL FROM THE HIGH COURT AT BOMBAY
Hindu Law of Adoption – Rights of adopted son in ancestral Estate – Rights of sole survivor of a
Hindu Joint Family.
In a suit by the posthumous son of one of two Hindu brothers forming a joint Hindu family for a
declaration that he was exclusively entitled to the ancestral property, it appeared that the other and
surviving brother died before the plaintiff’s birth leaving will whereby he validly made certain
dispositions liable to be defeated by the plaintiff’s birth, but expressly authorizing his widow in any
event to adopt a son, which adoption was effected after the plaintiff’s birth:
Held, that the son so adopted became by virtue of his adoption jointly entitled with the plaintiff
to the estate in suit.
Sri Raghunada V. Sri Brozo Kishore, (1876) L.R. 3 Ind. Ap.154, followed.
Appeal from a decree of the High Court (January 25, 1904), modifying a decree of Tyabji J.
(October 4, 1902)
The suit was brought by the appellant under the circumstances stated in their lordships judgement
to establish his exclusive title to the property in suit and to question the legality of the alleged
adoption of Nagurdas, the second respondent.
The lower courts agreed in upholding the adoption, but differed as to the validity of a gift of
Rs.20,000 made to the sixth defendant by her father Bhagwandas, the first court holding that the gift
was invalid;The principal question decided by their Lordships was whether a Hindu co-parcener by
will can authorize his widow to adopt a son so as to divest his co-parcener, in whom, as survivor, the
whole ancestral estate has become vested, and thus diminish his share, which has become augmented
by law.
With regard to the gift and adoption in dispute, it appeared that on November, 5,19000,
Bhagwandas made a gift of Rs.20,000/- Government promissory notes to his only daughter, named
Navalbai, and on the 30th of the same month he made a will whereby he appointed the first three
defendants, along with two others, his executors. I the 9 th clause of the will the testator gave the
following directions;“I hereby direct my wife to adopt a son to me but such adoption must be made by
the consent of Sir Balchandra Krishna and Rao BhadurGhanshamNilkantNadkarni; such adoption is
to be made even though a son is born to my brother’s widow.In the event of a son being born to my
brother’s widow, however my wife should before making the adoption enter into an agreement with
the adopted son or his proper guardian that such adopted son shall be bound to accept as valid the
provisions hereby made for my daughter Navalbai and my wife”.
Tyabji J. decided that the adoption of Nagurdasby the widow of Bhagwandas was duly made and
valid in law, and that he became a co-parcener with the plaintiff, who but for the adoption would have
been the exclusive owner of the properties in suit, and that it was not to the interest of either that a
partition of those properties should be made.In regard to the contention that there could be no valid
adoption into a joint family, even if such adoption were made with the express authority of the
husband, he observed; “Numerous authorities were cited to me on this point not a always reconcilable
with each other, and laying down more or less conflicting principles, but it seems to me that sitting as
a single judge, in a court of first instance, the point is not open to me for discussion.I am concluded by
the decision of the privy council in Sri Raghunada v. Sri Brozo Kishore,1 as explained and acted upon
by the Calcutta High Court in Surendra Nandan v. Sailaja Kantdas,2 where the authoritiesbearing on
this point were fully discussed, and it was decided that when the widow adopts, with the full authority
of her husband, the adoption even into a joint family is valid and the adopted son takes an interest in
the property of the family accordingly.
The High Court affirmed this judgement in regard to the adoptionits validity and legal effect, and
also declined to direct a partition.It held the gift to Navalbai to be valid.
1 L.R. 3 Ind. Ap. 154.

2 (1891) I.L.R 18 Calc. P. 385.
144
Jardine, K.C., and Ross for the appellant and his mother Gangabai, the fourth respondent,
contended, that the testamentary power to adopt, and the adoption following thereon, were invalid in
law.Bhagwandas thereby attempted to make a disposition of his property, which Hindu law does not
allow.The Ancestral estate had vested solely in the appellant by survivorship on the death of
Bhagwandas.It could not afterwards be diverted to the extent of Bhagwadas’sshare,nor cold that share
be transferred to the alleged adopted son on his adoption.Bhagwandas’s widow had no power to adopt
so as to vest in the adopted child a share in the ancestral estate without the consent of the appellant or
his guardian.Moreover, the adoption was not made from a proper motive: see, however, the full bench
case of Ram ChandraBhagwan v. MuljiNaxabhai,1 which lays down that the motive for adopting is
irrelevant, a ruling which must be compared with that in VellankiVenkataKrishnaRaow v.
VenkataRamaLakshmi.2 With regard to the doctrine of divesting the ownership of the appellant in
favour of the adopted son, reference was made to BhoobumMoyeeDebiav.
RamkishoreAchrajChowdhry3.Thyammal v. Venkatarama4;RupchandHindumal v. Rakhmabai5; Sri
Raghunanda v. Sri BrozoKishore6; SurendraNandan v. SailajaKantDas7; BaujiLakshman v.
Pandurang8; KalidasDas v. KrishnaChandraDas.9 Then, with regard to the other point in the
casenamely the gift to Navalbai, the third respondent it was contended that Bhagwandas had no power
to deal with the property in that way.The gift was not a valid gift, being beyond the disposing power
of the donor.It was not given for Navalbai’s marriage, it was given very shortly before his death, and
there was no special reason or urgency for making such a gift.Reference was made to Parvati v.
Ganpatrao.10As to the share which the adopted son was entitled to if his adoption was held valid and
the court decreed partition, see RaghubanundDoss v. SadhuChurnDoss11 and RamaswamiAiyan v.
Vencataramaiyan.12
CohenK.C. and DeGrugther, for the first three respondents, the widow and adopted son and
daughter of Bhagwandas, were heardon the question of the legal rights and status of the adopted son
under the circumstances, assuming the adoption to be proved in fact and valid in law.They contended
that his adoption operated to constitute him a member of the joint family, with all the rights in the
ancestral estate which would have accrued to him had be been a member by birth.According to Hindu
law, the shares in the joint ancestral estates were, until partition, always liable to be increased by
deaths or diminished by births, regardless of any doctrine as to vesting.An adopted sonin no way
differed in that respect from a born son.He was entitled to succeed on partition to the share which
would have accrued to his father had he been living, and until partition was interested I the joint estate
as a male member of the joint family.The family continued to be a joint one so long as any widow
remained in it with a power to adopt.The family estate, therefore, never vested solely and absolutely
in the appellant, and no divesting on the adoption by Bhagwandas’s widow was necessary.It was joint
estate in his hands, and a coparcenary interest therein was immediately created by the
adoption.Reference was made to west and Buhler, p.600; BhoobunMoyeeDebia v.
RamakishoreAcharjChowdhry13; KathamaNatchiar v. Rajah of Shivagunga14;
JogendraBhupatiHurriChundunMahapatra v. Nityanund ; Sri Raghunanda v. Sri BrozoKishoro16;
15
Mayne’s Hindu Law, 7th ed p. 241; SurendraNandan v. SailajaKantDas17; MondakiniDasi v.
1 (1896) I.L.R. 22 Bomb. 558.

2 (1876) L.R. 4 Ind. Ap. 1, 14.
3 (1865) 10 Moo. Ind. Ap. 279, 309.
4 (1887) L.R. 14 Ind. Ap.
5 (1871) Bomb. H.C.R.A.C.J 114, 119.
6 L.R. 3 Ind. Ap. 154, 193.
7 I.L.R. 18 Calc. 385.
8 (1882) I.L.R 6 Bomb. 61.
9 (1869) 2 Beng. L.R. (F.B) 103.
10 (1893) I.L.R. 18 Bomb. 177, 183.
11 (1878) I.L.R 4 Calc. 425.
12 (1879) L.R. 6 Ind. Ap. 196.
13 10 Moo. Ap. 196.
14 (1863) 9 Moo. Ind. Ap.539, 589.
15 (1890) L.R. 17 Ind. Ap. 128,131.
16 L.R. 3 Ind. Ap. 154, 193.
17 I.L.R. 18 calc. 385, 398.
145
AdinathDey1; Vithoba v. BapuPudmacoomariDebi v. Court of Wards2; VellankiVenkata Krishna Raw
v. VenkataRamaLakshmi.3 With regard to the gift to Navalbai it was contended that it was valid and
within the disposing power of Bhagwanadas.The state of the property justified it, and the High Court
found that it was made, not out of the corpus of the estate, but out of the income. The partition asked
made to Appovier v. RamaSubhaAiyan4; Mayne’s Hindu Law, 7th ed. p. 370 and West and Buhler p.
994.
Jardine, K.C., replied.
The judgement of Their Lordships was delivered by:
Sir ARTHUR WILSON.In the year 1900 two brothers, Hurkisondas and Bhagwandas, formed a
joint Hindu family governed by the Mitakshara law as in force in Bombay, and as such they held large
ancestral property.
On September 14, 1900 Hurkisondas died without male issue but leaving his widow pregnant.On
November 30 of the same year Bhagwandas made his will, by which he purported to make certain
dispositions of the family property, and also directed his widow to adopt a son.The terms of this
willbe considered hereafter.On December 17 following Bhagwandas died, and on the next day
Hurikisondas’ widow gave birth to a son Bachoo, the present plaintiff and Nagurdas as son to her
deceased husband, with the consents prescribed by his will.
The parts of that will material for the present purposes are the following:-
By clause 2 he appointed executors and trustees.
4. I have a daughter by name Navalbai.I direct that my executors and trustees shall got her
suitably married (if she is not married in my lifetime), at an outlay of Rs.5,000/- five thousand or
thereabouts.I also direct that they shall on the occasion of her marriage present her with ornaments of
the value of Rs.10000/- ten thousand or thereabouts and wearing apparel and silver pots of the value
of Rs.5000/- five thousand or thereabouts.
5.”I further direct that my executors and trustees shall during her lifetime place at her absolute
disposal two carriagesand two horses and maintain the said carriages and horses out of my estate.
6. “I hereby direct my executors and trustees to set apart for my said daughterso much of my
immoveable property at Kasu as will yield a net income of Rs.200/- two hundred per month.I also
devise and bequeath to her my house in Bombay which opens on Narayen Dhuru Street and Bibi Jan
Street, and bears nos.13-23, 61-69.She is to enjoy the said immoveable property and the said house
during her lifetime, and on her death the said property and house shall belong to such of her children
as may be born or conceived in my lifetime, but in default of her having any such children I hereby
give her power to appoint the said property and house in such manner as she may in her absolute
discretion deem fit.In the event of her not making any such appointment and not leaving any such
children as aforesaid, I direct that the said property and house shall after her death be treated as a part
of the residue of my estate.”
Clause 7 dealt with the contingency of the brother’s widow giving birth to a daughter, and
purported to make provision for the girl, in a manner somewhat similar to that made for the testator’s
own daughter.
Clause 8 contained provisions for the two widows, the testator’s and his brother’s.
Clause 9 said: “I hereby direct my wife to adopt a son to me but such adoption mustbe made with
the consent of Sir Bhalchandra Krishna and Rao Bahadur GhanshamNilkant Nadkarni; such adoption
is to be made even though a son is born to my brother’s widow.In the event of a son being born to my
brother’s widow, however my wife should, before making the adoption, enter into an agreement with
the adopted son of his proper guardian that such adopted son shall be bound to accept as valid the
provisions hereby made for my daughter Navalbai and my wife”.
These are all the facts relevant to the principal questions arising in the present case.
The plaint was filed in the High court of Bombay on February 28, 1901 immediately after the
adoption, on behalf of Bachoo, the posthumous son of Hurkisondas, against a number of persons,
amongst whom was the fifth defendant, the adopted son of Bhagwandas.The main controversy in the
1 (1890) I.L.R. 18 Calc. 385, 398.

2 (1890) I.L.R. 15 Bomb. 110.
3 L.R. 4 Ind. Ap. 1, 8.
4 (1866)11 Moo. Ind. Ap. 75.
146
case lay between those two parties.The plaint asked for a declaration that the plaintiff is exclusively
entitled to the ancestral property, that the firth defendant is not the adopted son of Bhagwandas, and is
not entitled to any interest in the estate.In the alternative in case the exclusive right of the plaintiff
should not be established, the plaint asked for partition. All these claims were opposed.
Tyabji J. who tried the case, held that the adoption was valid, and rejected the claim of exclusive
right set up on behalf of the plaintiff.He further refused to order a partition, on the ground that it
would not be beneficial to the infants concerned, or to either of them. On all these points the court of
appeal agreed with him.
On the last point, that of partition it is enough to say that their Lordships entirely concur with the
courts in India.
As to the adoption and its effect, the first raised by the appellant was this; it was contended that,
on the face of the will, the power to adopt was a part of a plan for the description of the family
property which was in contravention of the law, and that the power was dependent upon that plain
having effect. But this is to misread the will.
The dispositions made by the testator were with in his competence at the date of the will and at
the date of his death; they were only liable to be defeated in one event (which in fact happened),
namely his brother’s widow giving birth to a son.And the will expressly said that, supposing that
event to occur, the adoption should still be made.
The next point raised was as to the effect of the adoption upon the title to the joint property.It
was contended that, at the time when the adoption took place, the family estate had become vested
absolutely and that the adoption could not detract from the right so vested.Their Lordships are,
however, of opinion, as were the courts in India, that the case of Sir Raghunadha v. Sir BrozoKishoro
(1), decided by this Board governs this case and excludes the appellants’ contention.
The point that remains for consideration is quite unconnected with the other question in the
case.Navalbai, the daughter of Bhagwandas, was made a defendant in the suit.In her written statement
she alleged that she was absolutely entitled to Government promissory notes, of the nominal value of
Rs.20,000/- as given to her and transferred to her name by her father in his lifetime.As to the fact of
the gift and the transfer there is now no controversy.At the time of the gift Bhagwandas was the head
of the family, and indeed the only male member of it, and the estate was large. Tyabji j. considered
that the gift was not justified by the circumstances of the case. The court of appeal having in the
meantime ascertained that the gift was made out of income, not out of capital took a difference view,
and decided in favour of Navalbai.
The question belongs to class in respect of which this board is always very unwilling to interfere
with the decisions of the courts in India. And no sufficient reasons have been shown why they should
do so in the present instance.
Their Lordships will humbly advise His majesty that the appeal should be dismissed.The
appellant will pay the costs.
-------------------
147
3.
Brij Narain
v.
Mangla Prasad
ON APPEAL FROM THE HIGH COURT AT ALLAHABAD
Hindu Law – Joint family property – Mitakshara – Alienation by Father – Antecedent Debt – Pious
Obligation of Sons during Father’s Lifetime.
The managing member of joint Hindu family governed by the Mitakshara, and consisting of
himself and his two minor sons, mortgaged in 1908 part of the ancestral property, the mortgage being
expressed to have been executed in order to discharge mortgages of the same property executed in
1905 and 1907, and the whole of the money advanced was applied to discharge those mortgages,
which were not found to have been executed for an immoral purpose.In a suit by the sons against their
father and the mortgagees.
Held, that the liability under the earlier mortgages was an antecedent debt so as to render the
mortgage of 1908 biding upon the sons.
Sahu Ramchandra v. Bhup Singh (1917) L.R. 44 I. A. 126 explained, and observations therein
not followed.
Armugham Chetty v. Madan Lal (1893) I.L.R. 15A 75, 79, Govind v. Sakhram (1904) I.L.R. 28
B. 383, 389 and RamasamiNadan v. UlaganathaGoundan (1898)I.L.R. 22 M.49. 63, as to the pious
obligation upon sons during their father’s lifetime approved.
Judgment of the High Court (I.L.R. 41 A 235) reversed.
The Judicial Committee, upon a consideration of the authorities, laid down the following
propositions:-
(1) The managing member of a joint undivided estate cannot alienate or burden the estate qua
manager except for purposes of necessity; but (2) if he is the father, and the other members are his
sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be
taken in execution proceedings upon a decree for payment of that debt. (3) If he purports to burden the
estate by a mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind
the estate. (4) Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt
must be truly independent and not part of the transaction impeached.(5) There is no rule that this
result is affected by the question whether the father, who contracted the debt of burdens the estate, is
alive or dead.
APPEAL (No. 51 of 1922) from a decree o the High Court (August 14, 1919) affirming a decree
of the Subordinate Judge of Ghazipur (December 23, 1915)
The suit was brought in 1915 by the two first respondents, minors suing by their mother for a
declaration that a decree passed in 1912 against, their father Sita Ram and themselves upon a
mortgage for Rs.11,000 executed by him on March, 4 1908, was not binding upon the plaintiffs.The
plaint alleged that the Mortgage had been executed by their father upon the joint family property
without necessity s as to bind them, and that they had not been properly represented in the suit in
which the decree had been made ex parte.Both when the mortgage was executed and the suit was
brought Sita Ram and the Plaintiffs formed a joint Hindu family governed by the Mitakshara. The
defendants to the suit were the mortgagees, the appellant and the fourth respondent, and Sita Rama the
Fifth respondent.
The mortgage was upon ancestral property of the joint family, and was expressed to be made in
order to discharge mortgages upon the same property made in 1905 and 1907 by Sita Ram; it was
found by the High Court that the whole of the sum advanced had been applied to that purpose.
It was found in both courts that the plaintiffs had not been properly represented in the suit which
resulted in the decree of 1912.
The trial judge made a decree setting aside the decree. Upon appeal the learned judgesofthe High
Court(Tudball and Muhammad Rafique JJ.) dealt with the questionwhether the
moneyborrowedunderthemortgageof 1908was moneyraisedtodischarge” an antecedent debt” within
the meaningof the Mitakshara law. They were of opinion that observations in the judgment of the
Judicial Committee in Sahu Ram Chandra v.BhupSingh (1) established that a mortgageby the
148
managingmemberofajointHindu family upon its propertycouldnotconstitute an antecedent debt” to
validate a later mortgage and consequently that that decision was fatal to the validity of the mortgage
of 1908. The judgment of the High court is reported at ILR 41 A 235. It wasthenurgedonbehalfof the
mortgagesthat the mortgagesof 1905and 1907 might have been binding upon the estate as
havingbeenincurredforanantecedent debt withinthe limited meaningattributed to that expression in the
observations in the above appeal. TheHigh Court accordingly remanded the case to the trialjudge to
recordan additional finding on that question, directinghimthatto support the mortgageof 1908 the
earliermortgagesmust have beenmadetodischargeobligationsincurred not only antecedently but also
wholly irrespectiveof the ownership of the joint family estate.
The subordinate judgeafterhearingfurther evidence, found that Sita Ram had borrowed the money
in 1905 and 1907 mighthave been bindingupontheestateas having been incurred for an antecedentdebt
within the limited meaning attributed to the expressionin the observationsin the above appeal. The
High Court accordingly remanded the case to the trial judge to record an additional finding on that
question, directing him that to support the mortgage of 1908 the earlier mortgages must have been
made to discharge obligations incurred not only antecedently but also wholly irrespective of the
ownership of the joint family estate.
The subordinate Judge, after hearing further, evidence found that Sita Ram had borrowed the
money in 1905 and 1907 on the security of the joint family estate, and not merely upon his personal
security.
The present appeal was first argued in April, 1923, and as ordered to be re-argued before a full
board.
1923. Oct.18, 20, De Gruyther KC and Dube for the appellant. The liability under the mortgages
of 1905 and 1907 was an antecedent debt which rendered the mortgage of 1908 binding upon the
dons. The appellant concedes that if the debt due form the father had been incurred as part of the
mortgage transaction which is impeached, the debt could not have been an "antecedent debt” so as to
validate the mortgage. The actual decision of the Board in Sahu Ram Chandra v.BhupSingh (1) went
no further. For the reasons stated by the Full Bench of the Madras High Court in Armugham Chetty
v.MuthuKoundan (2) the observations in the judgment of the Board cannot be treatedas authority for
the judgment of the boardcannot be treatedas authority for the view that an earlierand independent
mortgageof the jointfamily property cannot be an “antecedent debt”. The observationto the effect that
the pious obligation ofthe sons to pay the fathers debts arises only upon the death of the father were
alsonotnecessaryfor the determinationof the appeal, and are not in accordancewithauthority. (In
addition to the cases referred to in the judgment of the Judicial Committeereferencewasmade to the
definitionof “antecedent debt” in Khalilul Rahman v.GovindPershad (14) and (on the question
ofthepiousobligation of the sons) to Suraj BunsiKoer v. Shoe PrashadSingh (2); Laljee Sahay
v.FakeerChand (3); Dattatraya Vishnu v. Vishnu Narayan (4); ChidambaraMudaliarv.Koothaperumal
(5); KandasamiGoundan v.KuppuMooppan (6). Upon thequestion whether Sahu Rams case (7) had
been acted onby the JudicialCommitteereferencewas made to Narain Prasad v. SarnamSingh(8);Jogi
Das v. Ganga Ram(9); and Chet Ram v. Ram Singh(10).
Nov 14. The judgment of their Lordships was delivered by LORD DUNEDIN. The facts in this
case may be very shortly stated. On March 4, 1908 Sita Ram granted a mortgage for Rs.11, 000 in
favour of Raja Narain Brij Rai and Jagdish Narain Rai. The mortgage was secured on ancestral and
joint property, of which Sita Ram was at that time Manger, the other members of the joint family
being his two sons, minors. In 1912 the mortgages brought a suit on the mortgage and obtained a
decree ex prate. In 1913 the present suit was raised by the mother on behalf of her two minor sons (the
elder has since become major) to have itdeclaredthat the mortgagewas not binding on them and
thatthe decree granted was so far as they were concerned, null and void.
The mortgage in suit is expressed to have been executed in order to pay off two prior mortgages
on the same property of date December 12, 1905, and June 19, 1907 respectively
In the suit the plaintiffs imp leaded the two mortgages and their own father Sita Ram, who had
granted the mortgage. Sita Ram did not appear to defend. Jagdish Narain Rai made over his interest to
his brother Raja Narain Brij Rai, who appeared to defend and pleaded that the mortgage in question
having been granted to pay off an antecedent debt of the plaintiff’s father it was binding on the estate.
149
The subordinate judge found as facts: (1) that the property was ancestral and joint. (2) That the
money rose under the mortgage was to the extent of Rs.10, 265 employed in paying off the earlier
mortgages. (3) That the sons had not been properly represented when the ex parte decree of 1912 was
granted.
He then found in law that the plaintiff’s sons were not bound by the decree of 1912, and he
accordingly set aside the decree of 1912 so far as the sons were concerned; he made no further
declaration. The defendant appealed. The learned judges who heard the appeal affirmed the findings
of fact of the subordinate judge with the variation that they found the whole Rs.11,000 had been
employed in paying off the earlier mortgages; but in vie of what had been said by this board in the
case of Sahu Ram Chandra v. BhupSingh(1), decided after the date of the decree under appeal, they
remitted the suit to the subordinate Judge to find whether the earlier mortgages were incurred to
discharge obligations not only previously incurred but incurred wholly irrespective of the joint family
property.The learned subordinate judge set out additional evidences to the two earlier mortgages.On
this evidence being taken up by the learned judges of the appellate court, they came to the conclusion
that it was impossible to say for what precise purpose the money raised by the two earlier mortgages
had been used, or that the debt then incurred was incurred wholly irrespective of the family
property.They accordingly dismissed the appeal.Appeal was then taken to the King in Council.
The defendant admits that the ex parte decree is not binding on the minors in respect that they
were not properly represented, but contends that there ought to have been a declaration that under the
circumstances the property became bound and is liable to be taken in execution.
In the case of Sahu Ram Chandra v. Bhup Singh(1) the suit was brought upon a mortgage twenty
seven years old for Rs.200, and Rs.15, 000 was demanded in respect of the principal and accrued
interest.It was pleaded that the Rs.200 had been borrowed for family necessity, but this contention
was negative in fact.It was, therefore, a simple case of a debt having been constituted byway of
mortgage on the family estate by the father manager and been allowed to swell to gigantic
proportions, no money having been paid thereon.The creditors had put forward the universal
proposition that if debt was found to encumber the estate, it was necessary for the other members of
the family who wished to affirm its non-efficiency to prove that it was incurred immoral purposes.If
they failed to do so, then the encumbrance must stand without further question.This view was
negative d by the High Court, and in order to allow the point to be settled leave was given to appeal to
the Kind in council.The appeal was heard ex parte.At the hearing it became clear that there was in no
sense an antecedent debt.The encumbrance itself was the debt, the money being advanced as the
encumbrance was granted.In the course of the judgment, however, Lord Hobhouse’s opinion
inNanomiBabuasin v. ModunMohun(2) was cited, and commenting on this it was said; in their
Lordship opinion these expressions, which have been the subject of so much difference of legal
opinion, do not give any countenance to the idea that the joint family estate can be effectively sold or
charged insuch a manner as to bind the issue of the father, except where the sale of charge has been
made in order to discharge an obligation not only antecedently incurred, but incurred wholly apart
from the ownership of the joint estate or the security afforded or supposed to be available by such
joint estate” (1).
The learned judges interpreted that to mean that a mortgage per se could not be an antecedent
debt, for a mortgage is obviously a security which is not apart from the security of the estate over
which it is constituted.If, therefore, it could not be shown that an anterior mortgage had been incurred
in respect of an antecedent debt unconnected with the estate, then the anterior mortgage could not be
held to be debt antecedent to the subsequent mortgage, and that subsequent mortgage could not stand
though its proceeds were entirely used to pay off the prior mortgage.
Before the present case came up to their Lordships, the expression used in Sahu Ram’s case (2)
had come the case of PedaVenkanna v. SreenivasaDeekshatlulu (3), where the question was referred
to a full bench.In of saying that no mortgage could ever be an antecedent debt the payment of which
was capable to support a new mortgage.In both cases the Madras court came to the conclusion that the
judgment of the Board in Sahu Ram’s case (2) ought not to be so interpreted.
Upon this appeal, when their Lordships were satisfied that there was this discrepancy of opinion
between the judgments of the High Court of Allahabad in this case and have the question argued
before a Full Board, which has been done. Their Lordships have had the advantage of a very full and
150
able argument in which many authorities have been quoted.It is to b regretted that this case also is ex
parte, but their Lordships are satisfied that the whole of the authorities bearing on the question have
been fairly brought to their notice.
It cannot be denied that the law on the subject of what binds an estate when the manager of the
joint family estate is the father, and the other members are sons, is in a state which is somewhat
illogical and in the absence of binding authority could not be accepted.On the one hand it is settled
law that the manager as such cannot bind the estate at his own free will and without any compelling
cause so as to bind the other members.He can bind it for necessity, the necessity being the necessity of
the family, and so far there is no difficulty in principle, though the question of whether in any
particular instance there was a necessity may, like other questions of fact liable to be involved in a
question of decree, be difficult to decide.But then there comes in the further doctrine that, a debt
having been contracted by the father, the pious obligation incumbent o the son to see his father’s debts
paid prevents the son from asserting that the family estate, so far as his interest is concerned, is not
liable to purge that debt.It may become liable by being taken in execution o the back of decree
obtained against the father, or it might become liable by being mortgaged by the father to pay the debt
for which otherwise decree might be taken and execution be sought.It is more, than apparent how in
practice these two principles may not clash, nor is this in any sense a new discovery. Nothing clearer
could be said than what was said by Lord Hobhouse delivering the judgment of the Board
inNanomiBubuasin v. ModunMohun (1) already quoted.“Destructive as it may be of the principle of
independent coparcenary rights in the sons, the decisions have for some time, established the principle
that the sons cannot set up their rights against their father’s alienation for an antecedent debt, or
against his creditor’s remedies for their debts, if not tainted with immorality.On this important
question of the liability of the joint estate, their Lordships think that there is now no conflict of
authority.
It is probably bootless to speculate as to how these seemingly conflicting principles were allowed
to develop.On the one hand there is the general rule of the Mitakshara law that the manager cannot
burden the estate for his own purposes.This is set forth at some length in the judgment in Salu Ram’s
case (1) On the other hand there is the obligation of the son to discharge his father’s debts, based o the
doctrine of pious duty, but perhaps reflecting a remnant as suggested by SadasivaAyyar J. in
Armugham Chetty v. Muthu Koundan (2), from the older laws of Manu under which the son had no
interest during the father’s lifetime.It is enough to say that both principles are firmly established by
long trains of decision and it certainly occurs to the view that the term antecedent debt represents a
more or less desperate attempt to reconcile the conflicting principles. For after all, if looked at straight
in the face, what position could be more anomalous than this? A father, who is manager, borrows a
like sum from A and B.to a he gives a mortgage on the family estate containing a persona
covenant.ToB.he gives a simple acknowledgement of loan.B sues and gets a decree; on this decree
execution can follow and the estate can be taken.A suing upon his mortgage cannot recover.It seems
to have been felt that if the debt for which a mortgage was given was in any proper sense antecedent,
then, it so to speak, escaped the direct infringement of the principle that the father manager could not
burden the estate except of necessity.
In such a matter as the present it is above all things necessary stare decision not to unsettle what
has been settled by a long course of decisions. Their Lordships entirely agree with the views of the
learned chief justice in the full bench madras, case Armughum Chetty v. Muthu Koundan (3). They
think that Sahu Ram’s case (1) must not betaken to decide more than what was necessary for the
judgment namely, that the incurring of the debt was there the creation of the mortgage itself and that
there was there the creation of the mortgage itself and that debt was there the creation of the mortgage
itself and that there was there no antecedency either in time or in fact.Moreover, if proper attention is
paid to the word incurred, they think that it will be seen to be proper interpretation of the sentence
which has caused the doubts.
There are however some observations in Sahu Ram’s case (1) which are not necessary for the
judgment but which their Lordships are bond to say that they do not think can be supported.Founding
upon them, the learned counsel in this case argued in the court below that no liability of the sons,
based on the pious obligation to pay a father’s debt, could be made available to the creditor while the
father would be much to be said in favour of a position which seems consonant with common
151
sense.But their Lordships are satisfied that a long train of authorities has settled the question.Instances
of sale being permitted when the father for whose debt the sale was made was still alive may be found
I the following cases:GirdhareeLall v. Kanto Lall (2);Deendyal Lal v. JugdeepNarainSingh
(3);NanomiBabuasin v. ModunMohun (4);BhagbutPershad v. GirjaKoer (5);Meenakshi Naidu v.
Immudi Kanaka RamayaKounden (6);MahabirPershad v. Markunda Nath Sahai (7); Sripat Singh v.
Tagore (8).
It is true that the point was not actually taken so far as appears in any of these cases, but when a
long series of cause, extending over a long period of time, the parties being represented by eminent
counsel, is decided in one way, and if an evident plea had been taken and upheld the decisions would
have been the other way, there arises an irresistible conclusion that the plea was not taken because it
was felt to be had.The plea, however, was actually taken in Badri Prasad v. Madan Lal (9) and was
rejected by a Full Bench.InGovind Krishna Gujar v. SakharamNarayan (10) Chandavarkar J. says :
The law is now well established that under the Hindu law the pious obligation of a son to pay his
father’s debts exists whether the father is alive or deed. The point was again taken and negatived in
Yamasaki Nadine v. UlaganathaGoundan (1)
Their Lordships may sum up the propositions which they would wish to lay down as there result
of these authorities as follows:-
1) The managing member of a joint undivided estate cannot alienate of burden the estate qua
manager except for purposes of necessity; but
2) If he is the father and the other member are the sons he may, by incurring debt, so long as it is
3) If he purports to burden the estate by Mortgage, then unless that mortgage is to discharge an
4) Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must
be truly independent and not part of the transaction impeached.
5) There is no rule that this result is affected by the question whether the father, who contracted
the debt of burdens the estate, is alive or dead.
Applying this proposition to the present case, their Lordships consider that the present mortgage
was raised in order to pay an antecedent debt – namely the two elder mortgages, and consequently
binds the estate.
The result will be that the appeal will be allowed and the decrees of the courts below set aside
with costs, and a declaration made that the mortgage of March, 4, 1908 affects the estate which may
be brought to sale.
Their Lordships will advise his majesty accordingly.The respondents will pay the costs of the
appeal.
---------------------
152
4.
AIR 1958 ALLAHABAD 304 (V 45 C 60)
M.C. DESAI AND U.U. BEG.JJ

B. Hanuman Prasad
v.
Mst. Indrawati
G.P. Bhargava, S.K. Verma and N.D. Ohja for appellants, J. Swarup and K.N. Sethfor DEASI J :
This is an appeal by the defendants from a decree passed by a Civil judge, Mathura for a
declaration that an alienation made by SriMati Bhagwati in favour of the defendants’ appellants was
“void beyond the life timeofMstBhagwti and does notbindthereversioners, who wouldbeentitledafter
the death of MstHagwati to possession overtheassetsofBabuKalyan Singh”. The last male owner of
the property in dispute, Kalyansinghdiedin 1918leavinghis widowSrimati Bhagwati
whoinheritedhispropertyas a Hindu widow, his mother Srimati Hardevi and two
daughtersSritherSrimatiHardeviand two daughtersSrimatiIndrawati, Plaintiff respondent, and Srimati
RadhaRaniproformadefendant respondent.
On the death of Kalyan singh there were disputes and criminal cases between the claimants to his
property and on 10.10.1919 Bhagwati executed a deed of iqrarnama to settle them. The plaintiff
contendedthat the deed of iqrarnama was tantamount to a deed of transfer in favour of the defendant
appellants and was not binding on the reversioners.
(2) The suit was contested by the defendants / appellants but has been decreed by the learned
civil judge.
(3) After the appeal was filed the Hindu Succession Act (No.XXX of 1956) was enacted to
amend and codify the law relating to intestate succession among Hindus, Section 6 of the Act
provides for devolution of interest in coparcenary property and Section 8 lays down general rules of
succession in the case of males.
When a male dies, his property will devolve upon his sons and daughters, sons and daughters of
predeceased sons and daughters, his intestate and widow of predeceased sons and sons of predeceased
sons of predeceased sons. Each son each daughter, the widow and the mother will take one share
each. Section 14 lays down that:
“any propertypossessed by a female Hindu whetheracquiredbeforeor after the commencement of
this Act, shall be held by her as full owner thereof and not as limited owner”. The explanation to the
section provides that property includes immovable property acquired by a female Hindu by
inheritance or devise or in lieu of maintenance or by partition or by gift or by her own skill or
exertion, or by purchase or prescription or in any other manner whatsoever and also any property held
by her as stridden. Section 15 days lays down general rules of succession in the case of females.
The propertyof a femaledying, intestate devolves firstly upon her sons, daughters and husband
each taking one share in the absence of such heirs it will devolve upontheheirsof her husbandas laid
down in S.8, in the absence of such heiritwilldevolveupon her motherand father, in theabsence of
them it will devolveupon the heirs of the mother.
There is an exception in respect of property;inherited from the husband or the father in law in the
absence of any son or daughter it will devolve upon the heirs of the husband. Section 29 provides for
an intestate’s dying heirless and Section 30, for testamentary succession.
(4) On account of theseprovisions it was contended beforeus that Bhagwati
becameanabsoluteownerof the propertyinherited by her from KalyanSingh, that she could transferit to
any one without any restrictionthat now there is nothing like a reversioner and that the
plaintiffnotbeinga reversioner, is not entitledto the declaration. In reply it was urged that Section 14
deals with property still possessed or held by a female and not with property previously held but now
alienated by her.
(5) The positionunder the customary Hindu Law before the enactment the Hindu succession
Actwasthatawidowinheritingpropertysubject only to arestrictionuponherpowerof alienation that she
could alienate the propertyabsolutelyfor legal necessity that on her deathitwasinheritednot by her own
heirs but by thenextheirs of her husband(calledreversioners) as if he had diedon the date
ofherdeathand that as if shealienateditwithoutlegalnecessityshecouldnotherselfimpugn the alienation
153
but it could be impugned during herlife time bythe presumptive reversionersand they wouldbe entitled
to recover possessionfrom the alliance on her death. Authorities in supportof these propositions may
be quoted. In MoniramKolita v. Kerry Kolitany 7 Ind App 115 (PC) (A) Sir Barnes Peacock described
a Hindu widow estate in the following words at page 154.
“A widowwhosucceedsto the estate of her husband in default of male issue, whether she
succeedsby inheritance orsurvivorship(as to which see KatmaNatchlar v.RajahofShivaganag 9 Moo
Ind App 539 (PC) (B)at p 604) The wholeestate is for the timevested some respects for
onlyaqualifiedinterest. Her estate is an anomalies one, has been compared to that of a tenant in tail.
InBijoy Gopal Mukerji v. Krishna Mahishi Debi 34 and Ind App 87 (PC) (C) Lord Davey
observed at pages 91-92.
“A Hindu widow is not a tenant for life, but is owner of her husband’s property subject to certain
restrictions on alienation and subject to its devolving upon her husband’s heirs upon her death.
In RangasamiGounden v.NachiappaGounden 46 Ind App 72: (AIR 1918 PC 196) (D) Lord
Dunedin observed at page 79 (of Ind App): (at p 198 of AIR).
“The rights of a Hindu widow in her late husband’s estate are not aptly represented by any ofthe
terms of English law applicable to what might seem analogous circumstances.Phrased in English law
terms, her estate is neither a fee nor an estate for life, nor estate tail. Accordingly, one must not, in
judging of the question, become entangled in western notions of what a holder of one or other of these
estates might do”.
In KalipadaChakraborti v. Palani Bala Devi 1953 SCR 503: (AIR 1953 SC 125) (E) Mulkherjea
J. expressed himself in almost the same language as Sir Barnes Peacock; he said at page 514 (of
SACR): (at p. 129 of AIR):
“The estate of a Hindu female heir, as is well known, is extremely anomalous in its character; it
cannot be described either as an estate of inheritance or one for life, though it partakes of thenature of
both”.
AaininNatvarlalPunjabhai v.Dadubhai Manubhai,1954 SCR 339: (AIR 1954 SC 61) (F) he said
at p. 355 (of SCR): (at p 68 at AIR):
“Though loosely described as a “life estate” the Hindu widow’s interest in her husband’s
properly bears no analogy to that of life tenant under the English law”.
At p. 356(of SCR):(at p. 68 of AIR) he pointedout that shehas larger rights than alife estate
holder, because for legalnecessityshe can convey to another an absolutetitle to the
propertytoanotheran absolute title to thepropertyamong the most recent authorities we may refer to
Dhiraj Kuer v. Lakhan Singh 1957 MPC 143: (AIR 1957 MP 38) (G) at p. 145 (of MPC) (at p 40 of
AIR) per SenandBhutt JJ. while she was alive the widow was an absoluteowner of the
propertyinheritedby her; in spiteof the restriction on her power to alienate she fully represented the
estate during her life time; nobody else had any interest, even a vested interest in the property. The
presumptive reversioner, i.e., the next heir of her husband had only a spessuccessionis. In 1954 SCR
339; (AIR 1954 SC 61) (f), it was stated at p. 347 (of SCR) : (at p. 65 of AIR):-
“The presumptive reversioner has got no interest in the property during the life time of the
widow. He has a mere chance of succession which may not materialise at all. He can succeed to the
property at any particular time only if the widow dies at that very moment”.
In Kalishankar Das v. Dhirendera Nath, 1955 SCR 467 : (AIR 1954 SC 505) (H), Mukherjea J.
followed the case of 46 Ind App 72; (AIR 1918 P.C. 196) (D) and stated that an alienee from a widow
without legal necessity got only the widow’s estate which was not evern an indefeasible life estate,
because it could come to an end even during her life time on the happening of other contingencies like
re-marriage, adoption etc. Refhunath, 1956 BLJR 734: (s) AIR 1957 Pat 480) IK) at P. 736 (of BLJR)
at pp 481-482 of AIR).
6. As pointed out above widow’s estate could not be compared to any estate known to English
law and much confusion has resulted from calling it a limited estate of a life estate.We have cited
authorities laying down that it was not a life estate at all and that the widow was not a mere life
tenant. Shewas no more a life tenant of the property than any other owner would have been; a person
can own property only while he is alive; it is impossible to conceive of his continuing to own it even
after his death.The Property of any owner would be inherited by his heirs on his death, but the
propertyof widow was inherited not by her own heirs but by the heirs of her husband; if on account of
154
this differnce her estate could be said to be alife estate. There would be no objection to calling it so
provided other incidents of life estate were not imported into the case and how she could deal only
lfieestate.Myne has rightly deprecated thedescribing of a widow’s estate as a life estate; in his Treatise
on Hindu Law and Usage, 11th Edition page 753 he said that Hindu law knew nothing of estates for
life, or tail or in fee. One result of confusing a widow estate with a life estate was the decisions in
Sreramulu v. Kirtamma, 12 Mad LJ 197 (J) and SaguChidambaranamma v. SaraddiHussainmma, 29
Mad LJ 546 (AIR 1916 Mad 347) (K) in the case of Sreeramulu (J) BhashyamAiyangar J. stated at P.
201:-
“A Hindu widow has an absolute right to the fullest beneficial interest in her husband’s property
for her life and…..she has a personal right therein, which she can exercise at her will and pleasure, by
giving, selling or transferring the estate to another for her own life….if a portion of the inheritance has
been lawfully severed there from and transferred to as stranger, alienation was for a necessary
purpose, the adopted son could on principle succeed only to the remaining inheritance which was
vested in the widow at the time of the adoption.”
In 29 Mad LJ 546: (AIR 1916 Mad 347)(K) Sadasiva Aiyar J. recognized that a widow
represented the estate fully, but because an alienation made by her without legal necessity was valid
during her life time and conveyed to the alienee a right to enjoy the property during her life time he
felt compelled to conclude.
“that the absolute estate vested in her becomes by her alienation for her own purposes (valid
during her life time) divided into two estates (1) a life estate enjoyable by the purchaser during her life
time and (2) a reversionary estate to be enjoyed after life time both of which estates or rather the total
of which, belonged to her husband at his death. So far as her life interest is concerned, it became by
her alienation not available to the creditors of her husband; but the ownership of the remaining
reversionary estate continues in her as part of the estate which she inherited from her husband…...No
person can claim during the widow’s life time, after the alienation of the widow’s life estate to be the
owner of that reversionary interest, but it does not follow therefrom that no reversionary interest in
property forming part of the husband’s estate, is left after her alienation of her life estate. If an interest
belonging to the husband’s estate is left, some legal person must be its owner. If a presumptive and
contingent reversionary is not the legal person in whom the reversionary right exists, it must be the
widow in whom the legal estate vested at her husband’s death.(See page 549(of Mad LJ) : (at pp. 349
-350 of AIR)
Tyabji J. agreeing with him observed at page 550 (of Mad LJ): (at p.350 of AIR):
“It seems to me that the widow was a party to the proceedings in two capacities:
(1) as to life interest in her own absolute right and (2) as to the reversion as the representative of
her deceased husband’s estate which is to devolve on his reversioner.”
Similar observations are also to be found in Venkayamma v. Veerayya,1956 Andhra LT 1045:
((S) AIR 1957 Andh-Pra. 280) (L); Vishwanatha Sastry J. remarked at page 1048 (of Andhra LT):(at
p. 281 of AIR) that a widow could convey her limited interest in the property in the property in the
absence of any necessity. The correct position, however, under the customary Hindu Law was that a
widow was not a mere life tenant or did not inherit a mere life estate; she was the full proprietor of the
estate. She inherited the very estate that her husband left at the moment of his death; if she inherited
anything less, somebody else must have inherited remainder or the balance, but admittedly it was not
the case. The whole of the estate left by her husband vested in her; there was no remainder or balance
vesting in somebody else, such as her husband’s next heirs or reversioners.
It is not to be disputed that the next heirs did not acquire any interest in the estate of her
husband. It, therefore, could not be contended that she inherited, possessed or held a life estate. She
was a proprietor in the full sense of the word except that her power of alienation was restricted.
According to the ancient Hindu law a widow had no right to inheritance through the instrumentality of
Niyoga. At first her right was not trammeled by any restrictions but later some of the schools
succeeded in restricting her right to inherit to a bare right to abstemious use of the usufruct. Further
developments of her possession came with the Commentaries and Nibandhas in the middle ages.
The legal rule laid down by Katyayana to the effect that a sonless widow keeping unsullied the
bed of her husband and following her vrata shall enjoy the inheritance abstemiously until her death
and that her husband’s heirs shall take after her death made her more or less a custodian for life of her
155
husband’s estate:see N.C. Sengupta’s Evolution of Ancient Indian Law, p.183 etc.She was not
permitted to transfer any part of the estate except for legal necessity; she was not permitted to transfer
even the so-called life interest because the Hindu law did not recognize anything like transfer of life
interest. If a male owner could not transfer his life interest in the property owned by him, a widow
also could not. In practice also a widow did no alienate her life interest; even when there was no legal
necessity,she generally purported to alienate the absolute estate or the very property inherited by her.
The alienation was invalid according to the Hindu law, but the question arose who was aggrieved
by it and what could be done. The only persons who could at all be affected were she and the
reversioners; nobody else had any interest in the estate during her lifetime or subsequently. Even the
reversioners could be affected only after her death (because they would not get the property), but so
long as she remained alive they were not at all affected and could not feel aggrieved. They could not
get the alienation set aside since they had no vested right in the alienated property; see
VaidyanathaSatri v. Savitri Ammal AIR 1918 Mad 469 (FB) (M) and 1954 SCR 339: (AIR 1954 SC
61) (F).
The widow could not be said to be aggrieved because it was her own voluntary act and moreover
if she instituted a suit to challenge the alienation, she would be estopped by her representations to the
alienee from pleading that the alienation was without legal necessity. Consequently, no suit could be
brought during her lifetime to recover the property from the alienee; the reversioners could sue to
recover it only after her death. Because the property could not be recovered by anyone during her life
time, it became customary to say that the alienation was valid for the widow’s lifetime though really it
was invalid.
The alienee did remain in possession of the property, but it was not because the alienation was
valid. On the death of the widow the estate left by her husband (minus the portion alienated for legal
necessity) vested in the next reversioner. If she had alienated any part of it without legal necessity it
still vested in the next reversioner and he at once became entitled to recover its possession from the
alienee. He was an heir of the husband and not the widow and did not claim through her and was,
therefore, not estopped from estopped from suing for possession as she had been. Moreover, the
alienation was against his right which was against his right which was to inherit the estate left by her
husband and the principle that barred her from suing for possession did not operate to debar him.
The decisions in the cases of 12 Mad LJ 197 (J) and 29 Mad LJ 546 : ( AIR 1916 Mad 347) (K)
were overruled in the case of AIR 1918 Mad. 469 (M) . KumaraswamiSastri J. pointed out at page
477 that the texts and Smrithis did not countenance the view that a widow could make a valid
alienation of any kind or to any extent without legal necessity and that they did not empower her to do
what she liked with her so-called limited estate.
In 1954 SCR 339(AIR 1954) SC 61) (F) the view advanced by BhashyamAiyangar J. in the case
of 12 Mad LJ 197 (J) was disapproved and the view of KumaraswamiSastri J. in the case of AIR 1918
Mad 469 (M), that the Hindu law did not countenance the idea of widow’s alienating her property
without legal necessity merely as a mode of enjoyment was accepted. In the case 1954 SCR 339:
(AIR 1954 SC 61) (F), Mukherjea J. pointed at page 356 (SCR): (at p.68 of AIR) that the transfer was
invalid though nothing could be done and the widow’s estate could come to an end even during her
lifetime, for an example by remarriage or adoption or surrender and rejected the theory that an
alienation without legal necessity split up the estate into two parts and gave the alienee an interest co-
extensive with her life time.
Though the estate did not vest in the presumptive reversioner during the widow’s life time he
was given a right by the Anglo Hindu law to file a suit for a declaration that the alienation was invalid
and did not bind the reversioner after her death. He could only obtain a declaration; this right was
given to him on account of convenience. The suit that he brought was a representative suit on behalf
of the whole reversion.
Naturally he could not be certain of being the next reversioner at the moment of the widow’s
death; so he could not seek a declaration that the alienation would not bind him on the widow’s death.
The declaration that he could seek was that it would not bind whomsoever was the next reversioner at
the time of her death; in other words, it was a suit on behalf of whomsoever was the next reversioner.
If he himself became the next reversioner on her death, there would be no difficulty in holding
that he was bound by the result, not on the ground that he represented the presumptive reversioner
156
who had filed the suit but on the ground that it was a suit representing all the reversioners, next and
remote. There are numerous authorities in support of this proposition, such as Kesho Prasad v.
SheoPrakash, 29 Cal WN 606: (AIR 1924 PC 247) (N); Kesho Prasad v. Shiva Prasad, AIR 1922 All
301 (FB) (O); Venkatnarayana Pillai v. Subbammal, 42 Ind App 125: (AIR 1915 PC 124) (P);
Pramatha Nath v. Bhuban Mohan, ILR 49 Cal 45: (AIR 1922 Cal 321) (Q); Sudehaiya v. Ram Dass,
AIR 1957 All 270(R) and Varamma v. Gopaladasayya, 35 Mad LJ 57: (AIR 1919 Mad 911) (FB) (S).
An alienation by a widow without legal necessity though not authorized under the Hindu law was
not void. As pointed out earlier so long as she was alive nobody had a remedy against it. On her death
the estate vested in the reversioner “under operation of law without any act on his part,in the words of
Mukherjea J. in the case of 1954 SCR 339: (AIR 1954 SC 61) (F), at p.357 (of SCR): (at pp. 68-69 of
AIR), and he at once became entitled to recover possession from the alienee who had never acquired
lawful title. It has been the practice to say that the alienation was not void but voidable.
In RamgowdaAnnagowda Patil v. Bhausaheb,AIR 1927 PC 227(T), Lord Sinha stated at p. 229
that an alienation by a widow in excess of her powers was not altogether void but only voidable by the
reversioners who may either singly or as a body be precluded from excercising their right to avoid it
either by express ratification or by acts which treat it as valid or binding. In 34 Ind App 87 (PC) (C),
Lord Davey observed at page 92:
“Her alienation is not therefore absolutely void but it is prima facie voidable at the election of the
reversionary heir.”
In 46 Ind App 72: (AIR 1918 PC 196)(D), Lord Dunedin used similar language. It was voidable
in the sense that it was open to the reversioner, in whom the estate vested not to sue the alienee for
possession. Under Article 141 of the Limitation Act limitation began to run against him from the date
of the widow’s death; see 3 Ind App 87 (C), at p. 92, 1953 SCR 503: (AIR 1953 SC 125) (E) and 29
Mad LJ 546: (AIR 1916 Mad 347) (K). The widow’s death was the cause of action snd not any
exercise of election by the reversioner.
Had the transfer become voidable in the sense in which the word is used in the law of contract,
the period of limitation for a suit by the reversioner to recover the property would have commenced
on the date on which he elected to avoid it; so long he did not elect and did not avoid it, he would not
have acquired the right to recover possession and the period of limitation would not have started
running.But unquestionably his conduct or act was no part of the cause of action for the suit. Whatwas
meant by describing the alienation as voidable on the widow’s death was simply this that only the
reversioner had a right to sue to recover possession that so long he did not sue, the alienation
remained in force.
2) That is, more or less the position in an ordinary case of trespass; the trespasser remains in
possession so long as the true owner does not obtain a decree against him. The next reversioner when
he sued, exercised election no more than, and not different from, election exercised by true owner
suing the trespasser. If he did not file a suit within the period of limitation, his right was lost forever,
but that was by operation of the law of limitation and not because he had elected to ratify the
alienation. The Supreme Court described the alienation “invalid” in the case of in the case of 1954
SCR 339: (AIR 1954 SC 61) (F), at p.357 (of SCR) : (at p 68 of AIR),this only meant that it was
against the Hindu law. In AIR 1927 PC 227 (v 44) : 1957 All LJ 498 the Judicial Committee was
really considering the effect of an act of the presumptive reversioner in joining in execution of a deed
of alienation by the widow.
This was the position of the law when the Hindu Succession Act was enacted. The provisions of
Section 14 are retrospective in some respects and prospective in some. They are retrospective to the
extent that they govern the property acquired by a Hindu female even before the commencement of
the Act: every property of a widow whether inherited before the commencement of the Act or after
became her absolute property. But they are not retrospective to this extent that a property alienated by
her before the commencement of the Act was deemed to have been owned by her absolutely. They do
not have so much retrospective effect as to make her an absolute owner of the whole inheritance with
effect from the date of the inheritance.
They contain no provision affecting alienations made by her before the commencement of the
Act; in other words their validity and effect are left untouched The provisions are prospective in the
sense that the property becomes absolute property of the female only with effect from the
157
commencement of the Act; the words “shall be held by her as full owner” mean that she will hold it as
a full owner since the commencement of the Act and not that she will be deemed to have held it as full
owner with effect from the date of inheritance.
Consequently, if a widow had alienated the property without legal necessity, the alienation that
was invalid according to the customary Hindu law remained invalid and its invalidity was not affected
by the provisions of Section 14. Since it remained invalid, it remained challengeable on the ground of
want of legal necessity as if the act had been enacted. We have already said that the only two persons
who could possibly challenge it are the widow and the presumptive reversioners; whether they can
challenge it after the commencement of the Act is dealt with subsequently.
The property that a widow will now hold as full owner must be the property possessed by her at
thetime when the Act came into force; any property previously alienated by her whether for or
without legal necessity, cannot be said to be held by her as full owner at the time of the passing of the
Act. She cannot be the owner of any kind of property alienated by her; if she has no interest left in the
property,the question whether she is a full owner or not cannot arise.
It is immaterial if the alienation was invalid and challengeable, the effect of it still was that the
title and possession had passed from her to the alienee and the Act does not profess to retransfer them
to her.The respondent is, therefore, right in his contention that the property in dispute alienated by
Bhagwati before the commencement of the Act cannot be said to be still possessed by her at the
commencement of the Act and the question of considering whether she holds it as an absolute owner
or not cannot arise. It is not within the scope of Section 14 at all.
It was argued, on the authorities of 12 Mad LJ 197 and 29 Mad LJ 516, that when Bhagwati
transferred her life estate out of the inheritance,she was left with something which would attract the
provisions of Section 14. We have already shown that the argument is fallacious. What is that thing
which is still left with a widow when she alienates the property without legal necessity has not been
described?
Its existence seems to have been thought of only for the purpose of contending that Section 14 of
the Act governs the property even though it was transferred without legal necessity before its
commencement. But the object in view is not at all achieved; under Section 14 only that thing that is
possessed by the widow becomes her absolute property. If after the alienation she is left with
something that something may become her absolute property but not the property itself. The suit of
the reversioner is in respect of the property and not in respect of the imaginary something.
Finally,Section14 governs what has been inherited by the widow from the husband; she inherited the
property and not the imaginary something and the property would become her absolute property and
not the latter.
In the cases of AIR 1919 Mad 911 (V 6) : 35 Mad LJ 57 (FB) 7, (S) AIR 1957 Andhra Pra 280
(V 44) : 6,9,10, 15, (S) AIR 1957 Pat 480 (v 44) : 1956 BL 5,10,15 (S) ARI 1957 MP 38 (v 44) : 1957
MPC 5,10,15,(S) AIR 1957 SC 434(V 44) : 1957 SCA 290, (S) AIR 1957 Punj 89 (V 44) : 59 Pun LR
56, (S) AIR 1957 Cal 557 (v 44) 61 Cal wN 325, AIR 1957 Kerala 86 (V 44) : ILR (1957) Kerala
287, it was held that the provisions of Section 14are retrospective to this extent that they govern the
property inherited by a female before the commencement of the Act. It was also held in the cases of
(S) AIR 1957 Andhra Pra 280 (V 44) : 6,9,10, 15, (S) AIR 1957 Cal 557 (v 44) 61 Cal wN 325AIR
1957 Kerala 86 (V 44) : ILR (1957) Kerala 287, (S) AIR 1957 Punj 89 (V 44) : 59 Pun LR 56, that
only that property, which was still held or possessed by a Hindu widow at the commencement of the
Act, would become her absolute property, that Section 14 will not apply to the property already
alienated by her before the commencement of the Act and that the Act did not improve the title of the
alienee. In the case of (S) AIR 1957 Punj 89 (V 44) : 59 Pun LR 56, Bishan Narain J. said at p. 19:
“As long as she was in the possession of the property, it could be said that she was possessed of it
and therefore in future she could hold it as a full owner, but after its sale it cannot possibly be said that
at the time when this statute came into force she was possessed of the property and if that been not so
she can obviously not hold it in future either as full owner or as limited owner….. the transaction is
binding on her during the lifetime and she has no rights left in this property on account of the sale.”
In the case of (S) AIR 1957 Cal 557 (v 44) 61 Cal WN 325, PK Sarkar J. pointed out that Section
14 (1) only declares the law which will come into force on the enactment of the Act, that it does not
enact that the law should be deemed to have been always so and that it cannot be interpreted in a
158
manner to affect interests already acquired or vested in the absence of express words to that effect. PN
Mookerjee J. concurring said:
“If a Hindu female had lost possession before the Act and was not in possession of the property,
either actual or constructive or in any sense of the term at the date of its commencement, Section 14
would not obviously apply.”
In (S) AIR 1957 Andhra Pra 280 (V 44) : 6,9,10, 15, Vishwanath Shastri J. said :
“Where, however, before the Act came into force, the female owner had sold away the property
in which she had limited interest and put the vendee in possession, she should in no sense be regarded
as possessed of the property when the Act came into force…. a Hindu female limited owner who,
before the coming into the force of the Act, had its own property inherited by her retains no right to or
interest in the property on the date of the coming into the force of the Act. Section 14 merely enlarges
her limited interest into an absolute estate in the property held by her when the Act came into force
and does not enlarge the right of a purchaser of her limited interest before the Act came into force.”
Though an alienation made before the passing of the Act remains vulnerable and does not
dispose off the preliminary dispute, the question still remains who can impugn it and how? Now arises
the real difficulty of the respondent. The widow continues to be estopped from challenging the
validity on the ground of want of legal necessity and reversioners have completely disappeared by
virtue of the provisions of Section 15. The customary law of succession has been completely
abrogated by the Act which exhaustively amends and codifies the law relating to intestate succession
among Hindus. Even the heirs of the husband referred to in Section 15 are the heirs mentioned in
Section 8 and not the heirs under customary law. The next reversioner, who was a creation of the
customary law is no longer in the picture.
It makes no difference whatsoever if by accident the heir of the widow is the same person who
would have inherited the property on her death as the next reversioner; if he inherits the property now,
it will be in his capacity as the widow’s heir and not as the next reversioner. Since, there will be no
reversioners after the passing of the Act nobody can get a decree as a reversioner now. Even these
persons who could have obtained a decree before the passing of the Act that an alienation made before
the passing of the Act was invalid cannot now get a declaration to that effect because they have lost
the status by virtue of which they could get it.
The heirs of the widow, who now replace the reversioners, also cannot challenge the alienation.
In the first place, they claimed to her and are estopped as much as she was. Secondly, they have not
the same right as was possessed by the presumptive reversioners. The latter were the heirs to the
estate left by the husband and were given the right to see that the estate left by him remained intact
during the widow’s lifetime and was passed on to them. They were, therefore, allowed to sue for a
declaration of the invalidity of an alienation even during the widow’s lifetime. No such right can be
claimed by the heirs of the widow who have no right whatsoever to inherit the estate left by her
husband. The widow has been given an unrestricted power of alienation and even otherwise they have
no right to prevent her from alienating it for any purpose. The only right that they possess now is to
get whatever estate is left by her at her death.
The Hindu Succession Act makes no provision for an alienation made without legal necessity by
a widow before it came into force. Therefore, no decree for declaration about the invalidity of an
alienation can be granted after it came into force. Here the respondent obtained a decree before the
Act came into force, but we cannot maintain it on appeal, even if it was correct at the time when it
was granted, because the declaration that has been granted is rendered futile by the Act. So long as
there were reversioners a declaration would usefully be granted by a court that they were not bound
by an alienation.
Now that there are no reversioners at all there is no question of alienation howsoever illegal it
might be not being binding on reversioners. The declaration that was granted by the trail court has lost
all meaning now. Nobody is entitled to the estate left by Kalyan Singh and no declaration can be
given in favour of any such person. We are not called upon in this appeal to decide whether anybody
will have right, on the death of Bhagwati to recover possession of the alienated property from the
appellants. The suit of the respondents was for a declaration and not for possession. Even if he would
be entitled (which seems very doubtful) to recover possession after Bhagwati’s death he is not entitled
to retain the declaration that has been granted to him by the trail court.
159
In the cases of(S) AIR 1957 Pat 480 (v 44) : 1956 BL 5,10,15, (S) ARI 1957 MP 38 (v 44) : 1957
MPC 5,10,15, (S) AIR 1957 Orissa 1 (V 44) L ILR (1956) Cut 599, it ws held thata reversioner
cannot after the commencement of the ac t obtain a declaration that the alienation made by a female
without legal necessity was invalid. A similar view was expressed by Shri JDM Derrett in an article in
1957 Bombay Law Reporter Journal page 49. He observed that the title of an alienee is not at all
improved or enlarged by the Act, which does not purport to do it, that the alienation remains
vulnerable, that, “although there is no longer any reversioner who can benefit from the persisting right
to challenge the alienation after the widow’s death, forfeiture or surrender, the title of the purchaser or
his successor remains limited, that “ no reversioner can challenge the alienation after June 17th 1956,
since whatever interest may exist by virtue of the defect in the title of the purchaser exists for the
benefit of the widow herself, and that “ the reversioner as such is nowhere in the picture.” We are in
full agreement with these views of the learned writer. In(S) AIR 1957 Andhra Pra 280 (V 44) : 6,9,10,
15, a presumptive reversioner was allowed to get a declaration but without any discussion of the
question whether anybody could claim the right of a presumptive reversioner after the commencement
of the Act.
It is necessary for us to go into the other matters. The decree passed in favour of the respondent
is rendered infructuous by the enforcement of the Hindu Succession Act and also cannot be retained
by him. The suit instituted by him cannot now be maintained. We, therefore, allow the appeal; set
aside the decree passed by the trial court and dismiss the suit. Since the appeal has been allowed only
on account of the passing of an Act after the decree was passed, it is proper that we make no order
about costs of either court.
Appeal allowed
-----------------
160
5.
AIR 1958 ANDHRA PRADESH 230 (V 45 C 79)
BHIMASANKARAM AND SATYANARAYANA RAJU JJ.
ChunduruSeshamma
v.
ChunduruRamakoteswara Rao
BHIMASANKARAM J. :
This appeal is by the 1 st defendant in O.S. No.44 of 1949 on the file of the Subordinat Judge,
Tenali. She is the widow of one Appayya who died on 19-3-1949 and according to the plaintiffs,
intestate.
(2) The suit was brought by the respondents 1 and 2 who are his divided sons, for partition and for
separate possession of their share of the properties of the deceased Appayya. The 2 nd defendant who is
the 3rd respondent is another son of Appayya while the defendant No.3 who is the 4 th respondent is the
widow of one Gopala Krishnamurthy, a predeceased son of Appayya.
The 1st plaintiff separated from the joint family in the year 1927, the 2 nd plaintiff in 1931 while
the other members of the joint family effected a partition in the year 1940.As that partition, the
properties described in the plaint schedule are stated to have fallen to the share of Appayya.According
to the plaintiffs, Appayya’s properties are to be divided into five shares each plaintiff getting one and
the defendants 1, 2 and 3 getting one each.The 4 th, 5th and 6th defendants are impleaded as lessees of
some of the items of the property.The plaintiffs also claimed a share of the rentals due from them.
(3) The 1st defendant in her written statement denied that Appayya died intestate and relied upon an
unregisterd will stated to have been executed by Appayya on 21-5-1948.She claimed that under that
will, he had confirmed two gifts made by him in favour of his two daughters and made a gift to a
choultry and further provided that all the rest of his properties except one item were to be enjoyed by
her with absolute rights.She also pleaded that the 3 rd defendant, the widowed daughter-in-law has not
entitled to any share in the suit properties.
“As the same cannot be deemed to be the reparte properties of late Appayya for the purpose of
succession under the Hindu Women’s Rights to Property Act.”
She, therefore, asserted that in the event of a division, the other shares will each be entitled to a
fourth share and not a fifth as claimed in the plaint. She also disputed the correctness of the schedules
given in the plaint. The 2nd defendant supported her in his written statement. The 5 th and 6th
defendants also filed their written statements disputing their liability to the plaintiffs.
(4) The main issue in the case centered round the genuineness or otherwise of the will set up by the
1stdefendant which is marked as Exhibit B-3 in the case.The trial Court found that the will was not
proved to have been executed by Appayya. Though the authenticity of the signatures in the will was
disputed, no attempt was made by either party in the Court below to obtain the opinion of a
handwriting expert.
At an earlier hearing of this appeal on 23-2-1956, we therefore, directed at the instance of the
appellant, that Exhibit B-3 should be sent to the Government Handwriting Expert for comparing the
signatures therein with those in Exhibit B-4, which contained some admitted signatures of late
Appayya. The opinion submitted by the Government Handwriting Expert is, against the appellant.
We stated in our previous order that the parties might make their submissions as to whether they
would like to examine the Hand-writing Expert in person after the receipt of the opinion.The appellant
does not desire to examine him.Nor are the respondents interested in examining him as his opinion is
in their favour.We shall, therefore, proceed to discuss the oral evidence in the case in support of the
will.
(5) The case of the 1stdefendant is that Exhibit B-3 was prepared by D.W.6 at the residence of
Appayya on the date which it bears and that it was attested by D.Ws. 2 to 4 at their respective
residences while the 2 nd defendant is stated to have attested it on 22-5-1948. As D.W.1 the 2nd
defendant deposed that after the will was drawn up by D.W.6, the testator took it to D.W.4, who is a
doctor, who inserted his attesting signature therein and that the testator signed in it thereafter.
As the learned Subordinate Judge point out, there could be no attestation before execution and
D.W.4’ so-called attestation would be of no avail. D.W.4 who claims to be a registered Medical
161
practitioner says that when he a in his hospital, the testator brought the instrument to him and he
attested it there.His hospital is very near Appayya’s house. He asserts that Appayya put his signature
on the three pages of Exhibit B-3 in his presence.
He admits that he is a tenant of the house belonging to Gopalakrishnamurthy, the 3 rd defendant’s
deceased husband which was let out to him by the testator.He admits that he did not treat Appayya in
his last illness and his treatment was given up a month before Appayya’s death. While the 1 st
defendant says in her evidence that the time when the will was executed. Appayya’s limbs were
swollen D.W.4 gives a different version saying that he was able to move about and in fact by the date
of the will, he was better than before.
He further admits that he was present when the Commissioner appointed in the suit went to make
an inventory of the articles in the possession of the 1st defendant. The learned Subordinate Judge
thought that he was interested in the 1st defendant and was not inclined to attach much importance to
his evidence. D.W.2 is another attestator. He is a tenant of the 2nd defendant though the lease was
actually given by Appayya.
He admits that his “house was 20 houses away” from that of Appayya, and that he had dealings
with him but does not remember whether he owed him any money by the date of the will on his
death.He asserts that he asked Appayya if he would register the will and that he was told that it would
be registered in a few days.He says that he was formerly a tenant of the 1 st plaintiff before he became
a tenant of the 2nd defendant but he denies the suggestion that he vacated the 1st plaintiff’s premises
because of disputes with him.
It must be remembered that the case of the 1st defendant is that Appayya did not want to get the
will registered because he was anxious to avoid his sons getting to know of it.
(6) D.W.3 is the third attestor.He admits that all the properties he acquired in Tenali were lost and that
he paid to his creditors “4annas or 6 annas” in the rupee. According to him,Appayya brought the will
to the factory (in the lease of which he claims to have a share), which is about one, or to furlongs from
Appayya’shouse.He states that he was not asked to keep the will secret and that the will was read out
to him though he does not remember the content. D.w.6, who is the scribe, is a clerk of 1st defendant’s
advocate and he has been such for 16 years.
He is careful enough to say that he did not see the testator or attestators sign in Exhibit B-3. He
merely wrote the body of the will on instructions from the testator.He, however, claims to have seen
the will next day after it as signed and attested and says that he then inserted the sentence that the will
was written by him and signed thereunder.He also claims to have asked the testator to register the will
and that he was told that the testator did not want to do so, as the sons might create trouble.
Though he knew that the will could be deposited with the Registrar in a sealed cover, he did not
advise Appayya to do so.He says that he received a sum of Rs.4/- for writing the will and that the
payment was entered in the account book. The account book however it may be noted was not
produced.The learned Subordinate Judge was disinclined to believe the case that Appayya wanted to
keep the will secret because he apprehended in the words of the 1st defendant that “his sons would
beat him to death.”
(7) It must be remembered that late Appayya was a 1st class Honorary Magistrate and that he died at
the ripe age of 80.He was living in the town of Tenali and if he really wanted to make a secret will, he
could have easily done so.The story deposed to by these witnesses about his having gone from place
to place reciting the contents of the will and asking the attestators to attest the document cannot be
true, if he did not want his depositions to be known to his sons.
In fact, none of the attestators says that Appayya asked him to keep the contents of the will
secret.There is no satisfactory explanation why Appayya did not get the will registered, when it could
have been so easily done or why he did not deposit it with the Registrar.It cannot be said that the
evidence above summarized suffices to establish the execution of the will.
The learned Subordinate Judge has in our opinion, given good reasons for rejecting the oral
testimony.We are not persuaded that his finding is wrong.We may remark, in passing, that the
conclusion reached by the learned Subordinate Judge is fortified by the opinion of the Government
Hand-writing Experts.
(8) Mr. Ramachandra Rao, for the appellant, has now raised, before us, a point of law based upon the
Hindu Women’s Rights to Property Act.He conceded that it was not raised in the Court
162
below.Wehave allowed him to do so, however, because it is a pure question of law. The argument is
based upon Section3 of the Hindu Women’s Rights to Property Act (XVIII of 1937). We give below
so much of S.3 of the Act as is necessary for the purpose of considering his argument:
“Section3 (1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate
leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary
law dies intestate leaving separate property, his widow, or if there is more than one widow all his
widows together, shall subject to the provisions of sub-secction (3) be entitled in respect of property
in respect of which he dies intestate to the same share as a son:
(1) When a Hindu governed by any school of Hindu Law other than the Dayabhaga School or by
customary law dies having at the time of his death an interest in a Hindu joint family property, his
widow shall, subject to the provisions of sub-section (3) have in the property the same interest as he
himself had.”
It may be noted that while the first sub-section of Section3 contains the words “dies intestate,”
the second sub-section does not. It is obvious, however, that this makes no difference because
Section2 (which is not quoted) lays down that the Act applies “where a Hindu dies intestate”. The
language of the Act, amended as it has been by a subsequent enactment involves difficulties of
interpretation which are not made any the easier by the case law which has been brought to our notice.
The contention for the appellant is that when Appayya died, he had, at the time of his death, an
interest in a Hindu joint family property within the meaning of sub-section (2) of Section3 and that the
1st defendant, his widow, therefore became entitled to have therein the same interest as he himself
had.
(9) Before we discuss this submission, we may observe that the 1 st defendant’s case in the written
statement was that it was “not the separate property of Appayya within the meaning of the Hindu
Women’s Right to Property Act’.She stated that therefore the 3 rd defendant as not entitled to any share
and claimed that she would be entitled to a fourth share in the property along with her sons.
But, the stand now taken on her behalf is that she would be entitled to the whole of the interest of
her husband in the property of which he died possessed, that is to say, that the suit would be liable to
total dismissal apart from the will which she set up and which we have already found not to have been
proved to have been executed by late Appayya.
Her present claim though it is not inconsistent with her averment that the property was not the
separate property of Appayya, would however run counter to her concession that each other sons was
entitled to a share along with her.
(10) There is also a petition, O.M.P.No. 815 of 1957 presented on her behalf seeking amendment of
the written statement along these lines.On the other hand, there is also an application filed on behalf
of the plaintiffs, C.M.P.No. 1133 of 1957 seeking an amendment of their plaint to enable them to aver
that what their father died possessed was neither his self acquired property within the meaning of sub-
s 91) of S.3 nor “an interest in a Hindu joint family property” within the meaning of Sub-section (2)
of Section3 and that their mother is not entitled to a share at all.
(11) Now both the appellant and the respondents before us rely for their respective positions upon the
decision of the Federal Court reported in Umyal Achi v. Lakshmi Achi, 1945-1 Mad LJ 108: (AIR
1945 FC 25) (A), which both sides agree is binding upon us.In that case their Lordships were dealing
with a claim by a widowed daughter-in-law to a share in the property of which her father-in-law died
possessed as the last surviving member of a Mitakshara joint family.
Varadachariar J., who discussed the matter at considerable length and whose opinion on this pont
was accepted by the other learned Judges expressed disagreement with the view of the Madras High
‘court that the word “separate property” covered every kind of property over which a person had
disposing power.He observed that the expression “separate property” may be the antithesis of three
other expressions, viz., “ancestral property” “coparcenary property” and” joint family property” and
that it was necessary to determine in the light of the scheme of the Act the particular sense in which
the expression has been used here.
He pointed out that, judged by the test of power of disposition, the expression might cover three
kinds of property – (1) property obtained by a Hindu as his share at a partition. (2) property held by
him as a sole surviving coparcener and (3) property acquired by him by his own exertions without the
assistance of family property.He then proceeded to discuss the scheme and purpose of the Act and
163
ultimately reaches the conclusion that the words “separate property” were used in sub-section (1) of
Section3 of the Act to denote the third of the three kinds of the property described above, that is to
say, what is known generally as self-acquired property.
(12) The appellant contends that the act deals with all kinds of property of which a Hindu dies
possessed and if the property which Appayya had obtained at the partition with his sons is not the
separate property within the meaning of sub-section (1) of Section 3, it follows that it must be
considered that he died possessed of “an interest in a Hindu joint family property”.
The respondents, on the other hand, would say that what Appayya died possessed was separate
property of a kind not covered by sub-section (1) of Section3 and could not be properly described as
an interest in a joint Hindu family property and that therefore, it is a kind of property to which the
provisions of the Act do not apply.There is authority in support of both the contentions.
(13) In Bhacorao v. Chandrabhagabai, ILR 1948 Nag 456: (AIR 1949 Nag 108) (B), a Division
Bench of the Nagpur High Court considered the applicability of the Act to a share allotted to a
coparcener on partition. They pointed out that under the general Hindu law the position of the divided
son is superior to that of the widow in regard to succession to both self-acquired property as well as
property obtained on partition.
Then they considered whether the Act made any difference to the position and came to the
conclusion that the widow would only be entitled to a share in the self-acquired property of her
husband and not in any other kind of separate property.They were referred to a decision before that of
the Federal Court taking a contrary view but they held that it was impliedly overruled by the Federal
Court;
(14) A single Judge of the Madras High Court declined, however, to follow this decision of the
Nagpur High Court in Subramaniam v. KalyanaramaIyer, 1952-2 Mad LJ 575: (AIR 1953 Mad 22)
(D).In his view, the ruling of the Federal Court should be confined to the case of property in the hands
of a sole surviving coparcener and that property obtained at a partition was separate property within
the meaning of sub-section (1) of Section3.
With the greatest respect to the learned Judge, it seems to us that this view is directly opposed to
the whole basis and the reasoning of the judgment of the Federal Court.Varadachariar J., made it plain
that of all three senses in which the expression “separate property” could be used, the Act used it only
in one sense, i.e., to cover self-acquired property alone.
Further, one fails to see any difference between property obtained by a person as his share at a
partition and property held by him as a sole surviving coparcener.Indeed, Varadachariar. J., points out
that these two kinds of property have the same features in common and stand apart from self-acquired
property.The following observations from his judgment are apposite in this context:
“There is however, this difference between them, viz., That in the case of self-acquired property,
the owner’s power of disposition will continue to remain undiminished throughout his life-time,
unless he chooses voluntarily to throw it into the joint family stock, whereas, in the case of the other
two kinds of property, his power of disposition will become qualified and his interest reduced the
moment a son is born to him or the widow of a pre-deceased coparcener takes a boy in adoption.
It would not therefore be right to place these three kinds of property on the same footing merely
on the ground that at a particular point of time, the owner may enjoy unrestricted powers of
disposition over them.”
(15) In our judgment, the decision of Krishnaswami Nayudu J., in 1952-2 Mad LJ 575: (AIR 1953
Mad 22) (D), runs counter to the Ratio Decidendi of the decision or the Federal Court.
(16)Mr. Ramachandra Rao for the appellant, however, relied strongly on Visalamma v. Jagannadha
Rao, (S) AIR 1955 Orissa 160 (E), which is a decision of a Division Bench of the Orissa High Court.
There, the learned Judges were dealing with the property of a Hindu father who had effected a
partition with his only son and the contest before them was between his son and his widow.
They held that RamayyaNayudu, the owner, died possessed or an interest in a Hindu family
property within the meaning of sub-secction (2) of Section 3and that his widow became entitled to
the same interest in it which he had, i.e., the entire 16 annas interest.They declined to follow the
decision in ILR (1948) Nag 465: (AIR 1949 Nag 108) (B), as well as that in 1952-2 Mad LJ 57: (AIR
1953 Mad 22) (D).They first discussed the question whether the disputed property was separate
164
property within the meaning of sub-section (1).Holding that it was not, they proceeded to make the
following observations:
“This conclusion however does not solve the difficulty.
Two other questions are:
(i) If the properties do not come within the scope of sub-section (1) of Section3 can they be held to
be ‘joint family properties’ within the scope of sub-section (2) of Section 3?
(ii) Do the disputed properties from a separate class of their own to which the provisions of the Act
do not apply at all”.
It appeared to the learned Judges that, on a fair construction of the Act it was intended to cover
properties of all classes of Hindus by whatever school or custom they may be governed.They went on
to say:
“Neither in the preamble nor in any other section of the Act are found words which either
expressly or by implication justify the inference that the Act was not intended to be exhaustive so far
as various classes of properties of a Hindu dying intestate are concerned.The only class of property
that is excluded from the operation of the Act is that described in sub-section (4) of Section3”.
(13) That sub-section, it may be noted incidentally, relates to an estate descendible to a single heir or
other property to which the Indian Succession Act, 1925 applies. The learned judges found support for
their view in Anant Bhikkappa v. shankar Ramchandra, 1943-2 Maa LJ 599 : (AIR 1954 SC 379)
(G).With the utmost deference, we find ourselves unable to appreciate the reasoning of the learned
Judges.
In the first place, we must point out that the actual words used in sub-section (2) of Section3 are
“an interest in Hindu Joint family property”.This expression seems to us to posit (1) the existence of a
Hindu joint family and (2) the person dying having an interest in property belonging to that family.It
would, in our opinion.Be straining the language beyond all reason to say that what a person obtains as
a share on partition or what he holds as the sole surviving coparcener is an interest in a Hindu joint
family property.
It seems to us that the reasoning of Varadachariar J. excludes the possibility of any such
construction. He refers to the passages in Mulla’s Hindu Law describing the three kinds of separate
property and the course of devolution in the case of each and indeed seems to approve of them.He
does not think it inappropriate that the three kinds of property referred to by him should be described
as separate property.
He could have easily stated that what is not self-acquired property would be an interest in a
Hindu joint family property falling under sub-section (2) of Section 3 if the position was so simple
and clear.The illustration that he gives at a page 33 of the report, (AIR 1945 FC 25) (A), on the other
hand seems clearly to support the view that he did not think that what is not self acquired property is
necessarily an interest in a Hindu joint family property.He says:
“If A and B were undivided brothers and the family property passed by survivorship to B, on the
death of A leaving a widow, B would be the last surviving coparcener with the possibility of A’s
widow taking a boy in adoption.According to the recent decision of the Judicial committee in 1943-2
Mad LJ 599: (AIR 1943 PC 196) (F), A’s widow can exercise her power to adopt, even after the
family property had devolved on B’s widow by inheritance; the result of her so adopting a boy would
be to divest B’s widow of the whole estate.
Even if the adoption should take place after the Act had come in operation. B’s widow could
derive no benefit by relying upon sub-section (1) of Section 3. The only possibility of calling of the
Act to her aid is by the application of sub-section (2) of Section3 if a double fiction could be imported
so as to justify the assumption not only that the joint family was being continued by the adopted boy
but that B must be deemed to have died after the adoption.
On this assumption, B’s widow could retain a half of the estate as against the adopted son of A
only if B’s ownership could be described as an ‘interest in the joint family property’.The possibility of
such varying consequences cannot be allowed to control the natural and reasonable interpretation of
the Act.”
(14) This passage seems to imply that even in a case where one of the possibilities whereby such
separate property can become joint family property has materialized a double fiction would be
165
necessary to enable the widow to invoke the aid of the Act.He seems to imply a double whether such
a double fiction could be imported.
This passage fortifies our conclusion that the learned Judge was not inclined to consider that two
of the three kinds of separate property referred to in Mulla’s Hindu Law could always be described
merely because of the potentiality of their being convertible into joint family property in certain
contingencies, as an interest in a joint Hindu family property.
We entertain no doubt that fictions could not be resorted to for the purpose of interpreting
statutory provisions.There can be little doubt that under the general law property obtained by a Hindu
at a partition or held by him as the sole surviving member of a coparcenary is descendible as separate
property just as it could be disposed of by the person holding it as separate property, subject, of
course, to the qualification that in cases where it becomes joint family property in his hands by birth
or adoption, his disposing power as well as the course of devolution would be affected.
The passages relating to these two kinds of separate property in Mulla represent the true position
under the general Hindu Law and that position remains unaffected by the Act.
(15) It is true that their Lordships of the Privy Council in 1943-2 Mad LJ 599: (AIR 1943 PC 196)
(F), accepted the view of the Nagpur High Court embodied in the following passage:
“We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible
in nature or law to add a male member to it. The family cannot be at an end while there is still a
potential mother if that mother in the way of nature or in the way of law brings in a new male
member.”
(16) Does this, however, mean that when a sole surviving co-parcener dies without any widow in the
family capable of making any adoption, he must be deemed to have died as a member of a joint Hindu
family?We think not.
(17) We would like also to observe that the learned Judges of the Orissa High Court used the words
“joint family properties” in formulating the question for determination iinstead of “an interest in a
Hindu joint family property”.A further observation to be made is that if such property might be
described, as an interest in a joint Hindu family property the owner would have no disposing power
over it.
It would be anomalous to hold that a person can have an interest in a Hindu joint family property
over which he has disposing power, which would be the result if the view of the learned Judges is
accepted.In this connection, it is perhaps not unworthy of notice that sub-section (2) omits the words
“dies intestate” occurring in the first sub-section presumably for the reason that there is an underlying
assumption that such property is not capable of testamentary disposition.
(18) Further, in our opinion, the Act does not deal with all kinds of property of which a Hindu dies
possessed.Indeed, Varadachariar J’s judgment shows that it does not.He gives an illustration to show
that it does not apply to a particular kind of separate property for he says:
“When a son is born to A, the owner of a share obtained on partition, the father and son will
become coparceners and if the son should predecease the father, the son’s widow would get his share
under sub-section (3) of Section3.If, at this stage, the father-in-law and the daughter in law should
divide the property, the father-in-law would be the owner of his share.
Should this share be treated as “separate property” within the meaning of sub-section (1) of
Section3 the result might be that at the father-in-law’s death, his widow would have to share it again
with the predeceased son’s widow notwithstanding the fact that the latter had already taken a half
share as representing her husband. If it is not treated as separate property within the meaning of the
Act the father-in-law’s widow would ‘succeed to her husband’s share under the ordinary Hindu Law’.
There is no force in the criticism that such a construction assumes that the legislation has not
dealt with all conceivable cases. Obviously that was not the purpose of the measure.”The italics (here
into….) are ours).
(19) This passage seems to assume that the father-in-law’s widow would succeed to her husband’s
share under the ordinary Hindu law instead of getting it under sub-section (2).Therefore, the learned
Judge does not treat it as an interest in a Hindu joint family property and he is clear that the Act does
not deal with such property and in his view, the Act does not purport to deal exhaustively with all
kinds of property of which a Hindu died possessed.
166
(20) As regards the reliance placed by the learned Judges of the Orissa High Court, upon the
observations of the Supreme Court in 1954-1 Mad LJ 630: (AIR 1954 SC 379) (G), as they
themselves point out, the observations made therein:
“were made while discussing the properties that devolved on a sole surviving coparcener from
his father and grand-father at a time when there was a widow capable of making an adoption.”
Although we agree with the learned Judges, that there is no distinction in principle between the
case of a sole surviving coparcener and a father who has effected partition with his son, we cannot
agree that the mere possibility of a coparcener coming into existence by birth or adoption would make
the property ‘the property of Hindu joint family” even in cases, where the possibility has not been or
cannot be realized.
It appears to us, therefore, that the decision of the Supreme Court is of no assistance to us in
interpreting the terms of the Act.
(21) We are unable, therefore, to agree with the view taken by the Orissa High Court and we prefer
that adopted by the learned Judges of the Nagpur High Court in ILR 1948 Nag 465: (AIR 1949 Nag
103) (B).
(22) As a result of the foregoing discussion, we are of the opinion that sub-section (1) of Section3 of
the Act deals only with the self-acquired property of a deceased Hindu and neither that subsection nor
sub-section (2) deals with the two categories of separate property represented by what a Hindu holds
as a sole surviving coparcener and what he has obtained at a partition as and for his share.
(23) Since preparing the above judgment, we have come across a report of the decision of Rajamannar
C.J. and Ramaswami J., of the Madras High Court in Subramaniam v. A.S. KalyanaramaIyer L.
P.A.No. 364 of 1952: (1957-1 Mad LJ 250: (AIR 1957 Mad 456) (H) against the decision of
Krishnaswamy Nayudu J. in 1952-2 Mad LJ 575: (AIR 1953 Mad 22) (D).While disagreeing with
Krishnaswamy Nayudu J., that property obtained by a Hindu at a partition was separate property
within the meaning of Section3 (1) of the Act, the learned Judges held that such property ‘must be
deemed to be an interest in Hindu joint family property within the meaning of sub.section (2) of
Section3”.
In expressing their view, the learned Chief Justice stated as follows on behalf of the Bench: -
“If the fact that on the birth of a son such son would have a right by birth in the property obtained
by a coparcener at a partition prevents us from holdings that such property is separate property, it
follows from that very fact that it should be deemed to be joint family property.As pointed out by the
Privy Council in 1943-2 Mad LJ 599: (AIR) 1943 PC 196) (F), a coparcenary must be held to subsist
so long as there was in existence a widow of a coparcener capable of bringing a son into existence by
adoption.In that very case, their Lordships of the Judicial Committee referred to the property held by a
surviving coparcener as joint family property in his hand.Likewise, it should be held that the property
which a coparcener obtains at a partition is joint family property though the coparcener may after the
partition, have absolute powers of alienation so long of course as there is no son born to him after the
partition, who would on birth be entitled to a share in such property.”
They expressed their agreement with the view taken by the Orissa High Court in (S) AIR 1955
Orissa 160 (E), so far.They, however, voiced a doubt as to whether the Orissa High Court were right
in holding that the widow in such circumstances would be entitled to the whole of the property of
which her husband died possessed.In that connection, they made the following observations:
“The more difficult point which, however, does not fail for decision in this case is; what is the
share to which the widow would be entitled in a case like the present?Will she be entitled exclusively
to the property left by her husband or should she share it with the two divided sons?
In the Orissa case (AIR 1955 Orissa 160) (E) the learned Judges held that the widow would be
entitled to the entire interest to the exclusion of the divided son.It may be a matter for argument that if
the property held by the divided member of the family is deemed to be joint family property, the other
member of the erstwhile coparcenary must also be deemed to have an interest in them.”
(24) This very doubt expressed by the learned Judges seems to us to be destructive of the
interpretation put by them upon the language of the Act.The general Hindu Law does not enable a
divided member to claim any interest in the share taken away by another divided member.But if we
assume that such a share is an interest in a Hindu joint family property we should be making an inroad
upon the general Hindu law as a consequence of this interpretation of this Act - a result which would
167
hardly have been in the contemplation of the Legislature which was concerned merely “to give better
rights to women.”
If the learned Judges’ implication is right, even the testamentary capacity of the owner of such a
share might be affected.We have, therefore ventured to adhere to the view we have expressed above,
despite the great respect with which we regard the learned Judges of the madras High Court.
(25) The result of our above interpretation of the Act is that the sons would be exclusively entitled to
the whole of the property left by Appayya. But we cannot overlook the fact that each of the plaintiffs
sought only a fifth share in the properties while the widow asserted that she was entitled to a fourth
share along with her sons.
The trial Court has given each of the plaintiffs a fourth share on the basis of the widow’s
contention.We do not think it would be proper for us to allow the plaintiffs to amend the plaint and
claim a considerably larger share than that.Indeed, in the plaint, they conceded the right of the 1 st
defendant the widow to a share in the property.So, their application for amendment C.M.P.No. 1133
of 1957 must fail and is dismissed.
(26) C.M.P.No. 815 of 1957 filed on behalf of the 1st defendant must fail not only on the ground that
it is too late to seek such an amendment but also on the ground that the claim based on the amendment
sought is unsustainable.Therefore, this application is also dismissed.
(27) We shall now deal with the memorandum of cross-objections presented by the 2ndplaintiff.This
relates to issues 2 and 4 decided against the plaintiffs by the lower Court.These issues are:
“2 Whether the late Appayya was the owner of item 2 and D.No.16/1 of item 5?
4. What items of B and C schedule did Appayya die possessed of?”
We shall first deal with issue 2.This item is a house in the town of Tenali the site on which it
stands was purchased under three sale-deeds Exhibits B-5, B-7 and B-8 in all of which the 1st
defendant was the vendee. But, it appears from Exhibits A-3 and A-4 entries in the day-books kept by
Appayya that the consideration for the purchases under Exhibits B-7 and B-8 was paid by Appayya
while there is no evidence as to who paid the consideration of Rs.1,775/- relating to Exhibit B-5.
Exhibit A-9, a partition book shows that in the last partition of 1940 between Appayya and his
sons, this house was also to be divided.But, there seems to have been an agreement between the
parties that they should pay a sum of Rs. 3600/- to the 1st defendant in order to entitle them to do so.
The 1st defendant had claimed in an earlier litigation that the purchases under Exhibits B-5 and
B-7 were affected with her own money and that the purchase under Exhibit B-8 was made by her
husband for her benefit by way of provision for her maintenance.She, therefore, claimed that the
property belonged to her but added that it was agreed that the joint family should acquire the property
from her on payment of a sum of Rs.3600/-.
It does not appear – and there is no case to that effect – that this sum of Rs.3,600/- was paid to
her by the members of the family.Further, in a compromise effected between Appayya, the 2 nd
defendant and the 1 st defendant, Appayya and the 2nd defendant recognized the title of the 1st
defendant to this house as well as to item No.5 (2) of Exhibit A-1 schedule. Appayya himself having
admitted the title of the 1st defendant to this item; the plaintiffs, as his heirs, cannot claim an interest
in this property.
(28) Even in regard to the demarcation No.16/1 out of item 5 of plaint A-1 schedule Appayya
recognised the 1st defendant’s right thereto in the aforesaid compromise.For the same reason as that
which applied to the former item, the plaintiffs cannot claim a share in this item too. These
submissions on behalf of the cross-objector must fail.
(29) As regards issue No.4, the lower Court found that Appayya died possessed of movables
mentioned in Exhibit A-6, the partition book of 1940, except those mentioned in Exhibit B-19 the
compromise decree already referred to that compromise, the 1 st defendant’s right certain movables
claimed by her in Exhibit B-17 her written statement in that suit, was conceded.
Therefore, the learned Subordinate Judge held that those movables should be excluded from
those mentioned in Exhibit A-6.He also further provided that if there are any items as per the list of
admitted movables filed along with the written statement of the 1 st defendant, they would also be
liable for partition.
168
The learned counsel for the 2nd plaintiff has been unable to show how this finding is wrong.In the
result, both the appeal and the cross objections are dismissed with costs.In the appeal respondents 1
and 2 only with get costs.
Appeal and Cross-objections dismissed.
------------------
169
6.
AIR 1959 Supreme Court 577 (V 46 C 79)(From Madras: AIR 1952 Mad 609)19 th December, 1958.
S.J. IMAM, S.K. DAS AND J.L. KAPUR JJ
GummalapuraTagginaMatadaKotturuswami
v.
SetraVeeravva
Civil Appeal No.120 of 1955.
The following Judgment of the Court was delivered by
S.J. IMAM J.:
This appeal is before us on a certificate granted by the High Court as according to that Court a
substantial question of law arose in the case which was stated by it to be“Is the adoption of the second
defendant invalid, as the approval or consent of the five trustees mentioned in paragraph 14 of the will
of Kari Veerappa, Ext. P-2 (a) was not obtained; and is the authority to adopt at an end if any one of
those five persons did not accept the trusteeship or died before the adoption or refused to give their
approval”.In view of certain matters about to be stated the question of law as propounded by the High
Court does not require to be considered.
(2) Kari Veerappa was the last male owner of the estate mentioned in his will, Ex.t P-2 (a), which he
executed on October 10, 1920.Under this will he authorized his wife SetraVeeravva, first defendant,
to adopt a son for the purpose of continuation of his family, as he had no issue.The authority to adopt
was in the following terms:
“I have given her permission to adopt as many times as would be necessary, should the previous
adoption be unsuccessful.ButVeeravva must adopt only a boy approved by the respectable persons
appointed by me in paragraph 14, should Veeravva die before making any adoption, the persons
becoming trustees should arrange for the adoption of a boy for the continuation of my family in
accordance with my kulachara (family usage)”.
(3) At this stage it is unnecessary to refer to the other provisions of the will of Kari Veerappa.This
gentleman died on October 23, 1920.After his death, his widow made two attempts to adopt a son in
accordance with his will. Thefirst attempt was in 1939 which did not accomplish the purpose of the
will as the person alleged to have been adopted died. The validity of this adoption was being
questioned, but as the boy said to have been adopted had died, efforts to dispute the adoption did not
materialise.Verravva thereafter, on October 11, 1942, adopted second defendant,
SesalvadaKotraBasayya.Two documents in this connection are on the record.The first document is
Exbt. D-25 dated the 18th of September, 1942 which was a registered agreement to adopt the second
defendant. The second document is also a registered document, which is described as the deed of
adoption and is dated June 23, 1943. This clearly stages that on October 11, 1942.Veeravva had
adopted the 2nd defendant. Reference was also made in this document to the agreement of September
18, 1942. The appellant claiming to be the nearest reversioner of Kari Veerappafiled the present suit
asking for a declaration that the adoption of the second defendant by Veeravva was invalid and not
binding on the appellant or the other reversioners to the estate of the late Kari Veerappa.
(4) The suit filed by the appellant was heard by the District Judge of Bellary who dismissed it.The
appellant appealed to the High Court of Madras.His appeal was dismissed and the decision of the
District Judge was substantially affirmed.The High Court did not allow compensatory costs granted
by the District Judge, nor did it agree with his facing that the appellant had failed to prove the
relationship he had propounded and that he was not a reversioner at all, far less the nearest
reversioner.In the opinion of the High Court, the appellant was a relative and reversioner, though he
had not proved that he was the nearest reversioner alive at the time the appeal was heard and that he
need not prove this until he actually sought to recover possession of the property after
Veeravva’sdeath.
(5) When this appeal came on for hearing the learned Advocate for the respondents took a
preliminary objection that the suit filed by the plaintiff must in any event fail.Having regard to the
provisions of Section14 of the Hindu Succession Act, 1956 (30 of 1956).Hereinafter referred to as the
Act.Hence, the present appeal arising out of that suit must also fail.It was contended on behalf of the
respondents that either there was a valid adoption or there was not.If there was a valid adoption and
170
the decisions of the High Court and the District Judge on this question were correct, then obviously
the suit of the appellant must be dismissed.If, on the other hand, it was found that the adoption of the
second defendant by Veeravva was either invalid or, in fact, had not taken place then under the
provisions of Section14 of the Act Veeravva became the full owner of her husband’s estate and was
not a limited owner thereof.Consequently, the appellant’s suit was not maintainable.In view of this
submission we are of the opinion that the point raised by way of preliminary objection must first be
considered and decided.It is well settled, that an appellate court is entitled to take into consideration
any change in the law. (Vide the case of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri,
1940 FCR 84, (AIR 1941 FC5).
(6) Section 14 of the Act states: -“14(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by her as full owner thereof and not as a
limited owner.
Explanation. – In this sub-section, “property” includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or
arrears of main enhance, or by gift from any person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or
under a will or any other instrument or under a decree or order of a civil court or under an award
where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted
estate in such property.”
(7) On behalf of the appellant it was urged that Section14 of the Act did not apply to the facts of the
present case because the estate of Veerappa was not in possession of his widow Veeravva but was in
possession of the second defendant at the time the Act came into force and, secondly, because under
sub-s. (2) of Section 14 Veeravva got a restricted estate under the will Exbt. P.2 (a) and the agreement
to adopt, Exbit. D-25.It was submitted that the widow’s power of adoption did not depend on her
ownership of theestate of her husband.That power in the present case was derived under the Hindu
law either from the authority conferred by her husband or the consent of his agnates.The Act did not
enlarge her power of adoption and did not render an invalid adoption made by her immune from
attack by the reversioners during her life time.The act of Veeravva in the present case was to bring in
a stranger.The appellant as a reversioner was, therefore, entitled during the life time of Veeravva to
bring the present suit to obtain a declaration that the adoption of the second defendant was invalid.
(8) The question raised by the preliminary objection taken by the respondents must be considered on
the assumption that the adoption of the second defendant was invalid. The provisions of Section14 of
the Act would not arise for consideration, if the second defendant had been validly adopted.It is
necessary, therefore, to determine whether the provisions of Section14 apply to the facts of the present
case.
(9) It wasstrongly urged on behalf of the appellant that the words “any property possessed by a
female Hindu” in S.14 of the Act referred to actual possession of the property whether the property
was acquired before or after the Act came into force.This was a condition precedent to the
applicability of the provisions of Section14 to the present case.Since the Act came into force on June
17, 1956, and the decision of the High Court was given on March 25, 1955, the question as to who
was in actual possession of the estate of Veerappa did not arise for consideration on the case of the
appellant set out in his plaint.The appellant should accordingly be given an opportunity to have a
finding recorded on this question after the taking of evidence in that respect.On behalf of the
respondents it was urged that the words “any property possessed by a female Hindu” did not refer
merely to actual physical possession only but to ownership and possession in law as well.
(10) It was further urged on behalf of the respondents that even if it be assumed that the words
“possessed by a female Hindu” mean actual possession then, in the present case, it had been proved
that Veeravva was in actual possession of the estate of Veerappa when the Act came into force.It
could not be disputed that on the death of VeerappaVeeravva came into possession of his estate and
that she remained in possession at least until 1942 when the adoption of the second defendant is said
to have taken place.But even on the adoption of the second defendant, the agreement to adopt dated
171
September 18, 1942, stated that Veeravva was to remain in possession of her husband’s estate during
her life time in spite of the adoption.In the written statement filed by Veeravva and the second
defendant it was clearly stated in para 6 thereof that Veerava came into possession of her husband
property and that she recovered possession of the property covered by the decree in O.S.20 of 1921 on
the file of the Subordinate Judge’s Court, Bellary and that she had been in sole possession of the said
property up to date and that although she had adopted the second defendant on October 11, 1942, it
was subject to retention of the enjoyment, possession and management by her of her husband’s
property during her life time.An affidavit had been filed in this Court by the second defendant in
which he has clearly admitted that Veeravva is still in possession of his adoptive father’s estate in
pursuance of the agreement of September 18, 1942.This was an admission against his own interest by
the second defendant which he was not likely to make unless it was a fact that veeravva was in
possession of the estate since her husband’s death up to the present.In answer to the affidavit of the
second defendant and Veeravva that she was in actual possession, the appellant had failed to file an
affidavit with any clear assertion that to his knowledge Veeravva was not in possession.The affidavit
filed by the appellant was in the nature of submnissions made to the Court rather than an affidavit in
which facts to his knowledge were asserted.In para.2 he had made the significant statement.
“I understand that the possession of the suit properties has been and is now, in truth and in fact,
with the alleged adopted son the second petitioner.He is in possession of these properties and is
dealing with them.”He did not disclose how he came to understand this. He certainly did not assert
that all that was stated in para.2 was to his knowledge. As an alternative, the appellant in para 4 of his
affidavit had submitted.
“If I succeed in providing that the adoption is not true and valid, the petitioners cannot turn round
and say that the possession of the first petitioner is that of a widow of an intestate and invoke the
provisions of Section14 of the Succession Act.”
He had further submitted in this paragraph that, even on the case of the respondents set out in
their petitioner for adding additional grounds. Veeravva’s estate was divested by the adoption and as
she came into possession by reason of the ante-adoption agreement exbt. D-25, Section14 of the Act
was not applicable.It seems to us that if it were permissible to decide the question of Veeravvas
possession on only the affidavits before us, we would find no difficulty in holding that he was in
possession of her husband’s estate when the Act came into force.It is to be remembered, however, that
this question has arisen now and the appellant has had no real opportunity to establish his assertion
that the second defendant is in actual possession and not Veeravva. It is necessary therefore to
consider the true scope and effect of the provisions of sub-section(1) of Section14 of the Act.Ifthe
words “possessed by a female Hindu” occurring therein refer only to actual physical possession, it
may be necessary to call for a finding on the question of such possession; if, on the contrary, these
words have a wide commotation and include constructive possession or possession in law, the
preliminary objection can be determined on the footing that Veeravva was in such possession at the
relevant time.
(11) The provisions of Section14 of the Act have been subject of scrutiny and interpretation by
various High Courts.In the case of Rama AyodhyaMissir v. Raghunath Missir, AIR 1957 Pat 480 and
in the case of Mt. JankiKuer v. Chhathu Prasad, AIR 1957 Pat 674 the Patna High Court took the
view that the effect of Sections 14 and 15 of the Act was that a reversioner recognised as such under
the Hindu law was no more a reversioner, as a female Hindu possessing any property, whether
acquired before or after the commencement of the Act, held not a limited estate but an absolute estate
therein an after the coming into force of the Act, he had no right of reversion or any kind of spes
succession is. The High Courts of Calcutta, Andhra Pradesh and Madhya Pradesh have taken a view,
which does not support the view expressed by the Patna High Court in the aforesaid cases.The High
Court of Madhya Pradesh in the case of Mt. Lukai v. Niranjan, AIR 1958 Madh-Pra 160 (FB)
dissented from the decisions of the Patna High Court in the above-mentioned cases. Indeed the Patna
high Court in the case of Harak Singh v. Kailash Singh, AIR 1958 Pat 581 (FB) overruled its previous
decisions referred to above, and rightly pointed out that the object of the Act was to improve the legal
status of Hindu women enlarging their limited interest in property inherited or held by them to an
absolute interest, provided they were in possession of the property when the Act came into force and,
therefore, in a position to take advantage of its beneficial provisions; but the Act was not intended to
172
benefit alienees who with their eyes open purchased the property from the limited owners without
justifying necessity before the Actcame into force and at a time when the vendors had only limited
interest of Hindu women.
(12) In the case before us, the essential question for consideration is as to how the words “any
property possessed by a female Hindu, whether acquired before or after the commencement of this
Act” in Section14 of the Act should be interpreted. Section 14 refers to property, which was either
acquired before or after the commencement of the Act and that such property should be possessed by
a female Hindu.Reference to property acquired before the commencement of the Act certainly makes
the provisions of the section retrospective, but even in such a case the property must be possessed by a
female Hindu at the time the Act came into force in order to make the provisions of the section
applicable. There is no question in the present case that Veravva acquired the property of her deceased
husband before the commencement of the Act. In order that the provisions of Section14 may apply to
the present case it will have to be further established that the property was possessed by her at the
time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual
possession of the second defendant and not Veeravva at the relevant time.On behalf of the respondent
it was urged that the words “possessed by” had a wider meaning than actual physical possession,
although physical possession may be included in the expression.In the case of Venkayamma v.
Veerayya AIR 1957 Andhra-Pra 280; ViswanathaSastri J. with whom Satyanarayana Raju J agreed,
expressed the opinion that “the word ‘possessed’ in Section14 refers to possession on the date when
the Act came into force.Of course, possession referred to in Section14 need not be actual physical
possession or personal occupation of the property by the Hindu female but may be possession in
law.The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a
guardian or a trustee or an agent of the female owner would be her possession for the purpose of
Section14.The word “possessed’ is used in Section14 in a broad sense and in the context possession
means the state of owning or having in one’s hands or power. It includes possession by receipt of
rents and profits”.The learned Judges expressed the view that even if a trespasser were in possession
of the land belonging to a female owner, it might conceivably be regarded as being in possession of
the female owner, provided the trespasser had not perfected his title.We do not think that it is
necessary in the present case to go to the extent to which the learned Judges went.It is sufficient to say
that “possessed” in Section14 is used in a broad sense and in the context means the state of owning or
having in one’s hand or power.In the case of Gostha Behari v. HaridasSamantaAIR 1957 Cal 557 at
p. 559 P.N. Mookherjee J. expressed his opinion as to the meaning of the words” any property
possessed by a female Hindu” in the following words: -
“The opening words “property possessed by a female Hindu” obviously means that to come
within the purview of the section the property must be in possession of the female concerned at the
date of the commencement of the Act. They clearly contemplate the female’s possession when the Act
came into force.That possession might have been either actual or constructive or in any form
recognized by law, but unless the female Hindu, whose limited estate in the disputed property is
claimed to have been transformed into absolute estate under this particular section was at least in such
possession, taking the word “possession” in its widest connotation, when the Act came into force, the
section would not apply.”
(13) In our opinion, the view expressed above is the correct view as to how the words “any property
possessed by a female Hindu” should be interpreted. In the present case if the adoption was invalid,
the full owner of Veerappa;’s estate was his widow Veeravva and even if it be assumed that the
second defendant was in actual possession of the estate his possession was merely permissive and
Veeravva must be regarded as being in constructive possession of it through the second defendant.In
this situation, at the time when the Act came into force, the property of Veerappa must be regarded in
law as being possessed by Veeravva.
(14) It was suggested that according to the will of Veerappa, Exbi. P-2 (a) in the properties mentioned
in para. 4 of that will Veeravva got only a restricted estate.The provisions of para. 4 of the will,
however, make it clear that they would come into force only if the trustees mentioned in the will and
Veeravva should disagree.No material was shown to us that, in fact, the trustees and Veeravva had
disagreed and that the provisions of para. 4 were given effect to.Paragraph 12 of the will also showed
that if the adoption was invalid, the property devolved on Veeravva as in intestacy.It is clear,
173
therefore, that the provisions of para.4 are of no assistance to the appellant in applying the provisions
of sub-section (2) of Section14 of the Act. Reference was also made to the contents of the agreement
Exbt. D-25, dated September 18, 1942 in this connection.It is clear, however, that by this agreement
no estate was conferred on Veeravva and he did not thereby acquire any estate, much less a restricted
estate. All that this document stated was that there was an agreement between the guardians of the boy
to be adopted and Veeravva that even if the boy adopted, veeravva would remain in possession and
enjoyment of their husband’s estate during her life time.In our opinion, there is no material on the
record by which it can reasonably be said that the provisions of sub-section (2) of Section14 of the
Act applied to the present case.
(15) It was urged that the act of Veeravva in adopting the second defendant was to bring in a stranger
and this act of hers could be questioned by a reversioner as any alienation made by her, during her life
time.Reference was made to Section42 of the Specific Relief Act, Illustration (f).In our opinion, this is
of no avail to the appellant, because Illustration (f) obviously refers to a Hindu widow’s estate and has
no reference to a full owner.The right of a reversioner as one of the heirs under Section 42, Specific
Relief Act, is limited to the question of preserving the estate of a limited owner for the benefit of the
entire body of reversioners; but as against a full owner, the reversioner has no such right.In our
opinion, under the Act Veeravva becoming a full owner of her husband’s estate, the suit could not
succeed and the appeal must accordingly fail.
(16) In our opinion, the appellant’s suit was not maintainable; having regard to the provisions of
Section14 of the Act even if it be assumed that there was no valid adoption of the second defendant.
The appeal accordingly fails and is dismissed with costs.
Appeal dismissed.
--------------------
174
7.
AIR 1960 SC 964 (V 47 C 171) (From Saurashtra: AIR 1954 Sau 36). 4th May 1960
P.B. GAJENDRAGADKAR, K.N.WANCHOO AND K C DAS GUPTA, JJ.
Luhar Amrit Lal Nagji
v.
Doshi JayantilalJeythalal
Civil Appeal No.121 of 1956
The following judgment of the court was delivered by:
GAJENDRAGADKAR J:
This appeal by special leave raises an interesting question of Hindu law. If a Hindu son wants to
challenge an alienation made by his father to pay hisantecedent debts it necessary for him to prove not
only that the saidantecedentdebtwas immoral but alsothatthealieneehad notice of the immoral
characterof the said debt, the high courthas held that the son must proveboththeimmoralcharacterof
the debt and notice of it to the alienee; the correctnessofthatviewischallenged before us by
theappellantsin the presentappeal.
(2) The appellants are two brothers Amritlala and MohanlaNagji and their mother Bai Jakal Arjan.
The three appellants and respondent 2 Nagji Govind, the father of appellants 1 and 2 and the husband
of appellant 3. Constitute an undivided Hindu family respondent 2 executeda mortgage deedin favour
of respondent1 JayantilalDoshr in respect of the joint family propertyfor Rs.2,000. This document was
executed on February 5,1946. In 1950, respondent1 sued respondent2 on his mortgage, obtained a
decree for saleand filed an applicationforexecutionfor sale of the mortgagedproperty. At thatstagethe
appellants filedthepresentsuit on April 30, 1951, and claimeda declaration that thedecree passed in the
mortgagesuit (civil suit No.589 of 1949) in favour ofrespondents 1 andagainstrespondent2
wasnotbindingin respect of the 3/4thshare of the appellants in the mortgagedproperty; they also
askedfor a perpetual injunction restraining respondent 1 from executing the said decree in respect of
their share.To this suit the mortgagor respondent 2 was impleaded as a party.
(3) In their plaint the appellants have stated that respondent 2 had speculated in gold and silver and
had thereby lost a large amount of money which he sought to make up by borrowing amounts from
several creditors.One of such creditors was DharsiShamji to whom Rs.2,000 were payable by
respondent 2. According to the appellants the impugned mortgage had been executed by respondent 2
for the payment of the said debt of Rs.2,000, and since the said debt was immoral or avyavaharik the
appellants were not bound by it.
(4) The claim was resisted by both respondent 1and respondent 2 who pleaded that the mortgage had
been executed for the payment of debts which were binding on the family and that there was no
substance in the plea of immoral debts raised by the appellants.It was also alleged by them that the
mortgaged property was not the property of the undivided Hindu family.
(5) On these pleadings the trial court framed appropriate issues. It found that the mortgaged property
was the coparcenary property of the family, that the mortgage deed in question had been executed to
pay off a debt which was immoral and that in consequence the mortgage was not binding against the
appellants. According to the trial court the debt contracted by respondent 2 to pay the losses incurred
by him in speculative transactions must be held to have been contracted for illegal and immoral
purposes and as such the subsequent alienation for the payment of the said debt cannot bind the
appellants. The trial court also observed that respondent 1 had not stepped into the witness box to give
evidence to show that he had made any enquiries about the existence of any antecedent debt payable
by respondent 2.
In the result the suit filed by the appellants was decreed.Against the said decree respondent 1
preferred an appeal before the District Judge, but the District Judge agreed with all the findings made
by the trial Court and dismissed the said appeal.Respondent 1 then took the matter before the High
Court of Saurashtra in second appeal.The High Court agreed that the mortgaged property was the
property of the joint Hindu family and that respondent 1 had made no attempt to prove any enquiry on
his part before he entered into the transaction.The High Court did not think it necessary to consider
whether the antecedent debt due to DhariShamji, for the repayment of which the impugned mortgage
was created, was in law immoral or illegal it proceeded to deal with the appeal on the assumption that
175
the said debt was illegal or immoral.On that assumption the High Court considered the material
principles of Hindu Law and held that it was for the appellants to prove not only that the antecedent
debt was immoral or illegal, but also that respondent I had notice of the said character of the debt; and
since the appellants had led no evidence to discharge this onus they were not entitled to claim any
relief against respondent 1.On this finding the second appeal preferred by respondent 1 was allowed
and the suit filed by the appellants was ordered to be dismissed.It is against this decree that the
appellants have come to this Court by special leave.
(6) On behalf of the appellants Dr.Barligay has urged that the principles of Hindu law do not justify
the view taken by the High Court that the appellants had to prove the alienee’s knowledge about the
immoral character of the antecedent debt.He concedes that the judicial decisions on this point are
against his contention; but he argues that there is paucity of case law on the subject, and that, having
regard to the importance of the point raised by him, we should examine the true legal position by
reference to the texts rather than by reference to judicial decisions. Let us then set out the appellants’
argument based on the textual provisions of Hindu law.
(7) The doctrine of pious obligation under which sons are held liable to discharge their father’s debts
is based solely on religious considerations; it is thought that if a person’s debts are not paid and he
dies in a state of indebtedness his should may have to face evil consequences, and it is the duty of his
sons to save him from such evil consequences.The basis of the doctrine is thus spiritual and its sole
object is to confer spiritual benefit on the father.It is not intended in any sense for the benefit of the
creditor.As has been observed by the Privy Council in Sat Narian v. Sri Kishen Das 63 Ind App 384 at
p. 395 : (AIR 1936 PC 277 at p. 280), this doctrine “was not based on any necessity for the protection
of third parties but was based on the pious obligation of the sons to see their father’s debts paid”.
(8) This doctrine inevitably postulates that the father’s debts which it is the pious obligation of the
sons to repay must be vyavaharik.If the debts are not vyavaharik or are avyavaharik the doctrine of
pious obligation cannot be invoked. The expression ‘avayavaharik’ which is generally used in judicial
decisions has been based on the text of Usanas which has been quoted by Mitakshara in commenting
on the relevant text of Yajnavalkya, (Yajnavalkya, if, 47).According to Usanas, whatever is not
vyavaharik has not to be paid by the son.‘Navyavaharikam’ are the words used by usanas, and put in a
positive form they mean ‘avayavaharik’.Colebrooke has translated these words as meaning “debt for a
cause repugnant to good morals”.These words have received different interpretations in several
decisions.Sometimes they are rendered as meaning “a debt” which as a decent and respectable man
the father ought not to have incurred”, Durbar Khachar v. KhacharHarsur, ILR 32 Bom 348 at p.
351; or, “not lawful, usual or customary”.ChakouriMahton v. Ganga Proshad, ILR 39 Cal 862 at pp.
868, 869; or, “not supportable as valid by legal arguments and on which no right could be established
in a court of justice in the creditor’s favour”, Venugopal Naidu v. Ramanadhan Chetty, ILR 37 Mad
458 at p. 460 :AIR 1914 Mad 654 at pp. 654-655).But it appears that in Hemraj v. Khemchand, ILR
(1943) All 727 : (AIR 1943 PC 142), the Privy Council has, on the whole, preferred to treat
Colebrooke’s translation as making the nearest approach to the real interpretation of the word used by
Ussanas; but whatever may be the exact denotation of the word, it is clear that the debt answering the
said description is not such a debt as the son is bound to pay, and so as soon as it is shown that the
debt is immoral the doctrine of pious obligation cannot be invoked in support of such a debt.
(9) In this connection, it has also been urged by Dr.Barlingay that the onus placed on the sons to prove
the immoral character of the debt is already very heavy.In discharging the said onus the sons are
required to prove not merely that their father who contracted the impugned debt lived an extravagant
or immoral life but they are required to establish a direct connection between the immorality of the
father and the impugned debt.If this onus is made still more onerous by requiring the sons to prove
that the alienee had knowledge of the immoral character of the antecedent debt, it would virtually
make the sons’ task impossible, and notwithstanding the spirit underlying the doctrine of pious
obligation the sons in fact would be compelled to pay the immoral or impious antecedent debt of their
father.That is why the rule which requires that the sons should prove the knowledge of the alienee is
inconsistent with the basis of the doctrine of pious obligation.Thus presented the argument is of doubt
simple and prima facie attractive. The question which we have to consider is whether we should
attempt the task of examining the texts and determiningthe true effect of the original provisions of
176
Hindu law in spite of the fact that the point raised is covered by judicial decisions which have been
treated for many years as laying down the correct law on the subject.
(10) Before answering this question it is necessary to consider the relevant judicial decisions.In 1874,
the Privy Council had occasion to consider this branch of Hindu law in Girdharee Lal v. Kantoo Lal,
1 Ind App 321 (PC).It appears that Kantoo Lal and his minor cousin had brought a suit to recover
possession of certain properties belonging to their family which had been sold respectively by a
private sale and at court auction.The private sale had taken place on July 28, 1856, and the deed had
been executed by the fathers of the two plaintiffs. The case of the plaintiff was that they were not
bound by the impugned transaction.The Principal Sudder Ameen dismissed the suit but the High
Court set aside that decision and awarded Kantoo Lal one-half of his father’s share.The claim made
by the other plaintiff was dismissed on the ground that he had not been born at the time of the
impugned transaction.The decree passed in favour of Kantoo Lal was challenged by the alienee before
the Privy Council.Evidence showed that at the time when the sale deed was executed a decree had
been obtained against Bhikharee Lal, the father of Kantoo Lal upon a bond executed by him in favour
of his creditor and an execution had issued against him upon which the right and share in the property
had been attached.It was therefore thought necessary to raise money to pay the debt of Bhikharee Lal
and get rid of the execution.It was on these facts that the Privy Council had to consider whether
Kanoo Lal was justified in challenging the binding character of the sale transaction.In dealing with
this point the Privy Council referred with approval to the rule which had been enunciated by the
Board earlier in the case of Hanooman Persaud v. MussummatBabooeeMunrajKoonweree, 6 M.I.A.
393.The rule of Hindu Law had been thus stated by Lord Justice Knight Bruce in that judgment:
“The freedom of the son from the obligation to discharge the father’s debt has respect to the
nature of the debt, and not to the nature of the estate, whether ancestral or acquired by the creator of
the debt.
Then the Privy Council held that if the debt of the father had been contracted for immoral
purpose the son might not be under any pious obligation to pay it; but that was not the case before the
Board.It had not been shown that the bond upon which thedecree was obtained was for immoral
purpose; and, on the other hand, it appeared that an action had been brought on the boad, a decree had
been passed on it and there was nothing whatever to show that the debt was tainted with
immorality.The Privy Council also noticed that Kantoo Lal had brought the action probably at the
instigation of the father, and we may add, that is many times the feature of such litigation.On these
facts the Privy Council set aside the decree passed by the High Court and held that Kantoo Lal was
not entitled to any relief.It would thus be seen that this decision merely shows that where any
alienation has been effected by the father for the payment of his antecedent debt and the said
antecedent debt is not shown to be immoral the son cannot challenge the validity of the
alienation.Since the antecedent debt was not shown to be immoral no question arose as to what would
be the nature of the onus which the son would have to discharge if the antecedent debt is in fact
shown to be immoral.
(11) In regard to the auction sale which the plaintiffs challenged in that suit the Privy Council held
that a purchaser under an execution is surely not bound to go back beyond the decree to ascertain
whether the court was right in giving the decree, or having given it, in putting up the property for sale
under an execution upon it.Evidence showed that the auction purchaser acted bonafide, had made
enquiries and was satisfied that the decree had been properly passed and purchased the property at
auction sale on payment of valuable consideration.On these facts it was held that the plaintiffs were
not entitled to any relief.This decision also was not concerned with the position that would arise if the
antecedent debt had in fact been proved to be immoral.
(12) That question arose before the Privy Council in Suraj BunsiKoer v. Sheo Persad Singh, 6 Ind
App 88 (PC).In that case an ex parte decree for money had been obtained against a Hindu governed
by Mitakshara on a mortgage bond; the property mortgaged being ancestral immoveable estate.Under
the said decree the mortgaged property was attached and the decree-holder sought to bring the said
property to sale.Prior to the execution sale, however, the judgment-debtor died and his infant sons and
co-heirs filed a petition of objections; but they were referred to a regular suit.In the suit which they
filed they challenged the binding character of the debt and claimed appropriate relief against the
execution creditor and the purchasers.The Privy Council held that as between the infant sons of the
177
judgment debtor and the execution creditorneither the sons nor the ancestral immovable properties in
their hands were liable for the father’s debt; and as regards the purchasers, it was held that, since they
had purchased after objections had been filed by the plaintiffs, they must be taken to have had notice
actual or constructive thereof and therefore to have purchased with the knowledge of the plaintiffs’
claim and subject to the result of the suit to which they had been referred.The subordinate judge
decreed the claim, set aside the mortgage bond, the decree thereon and the execution sale thereof.By
this decision the mortgage, the decree and the execution sale in regard to the alienor’s share had also
been set aside.The High Court, however, reversed that judgment and dismissed the suit. The Privy
Council partly allowed the appeal preferred by the plaintiffs, and held that the shares of the plaintiffs
were not bound either by the mortgage deed, the decree or the execution sale. Thus it is clear that in
that case the Privy Council held that the antecedent debt was for immoral purposes and that the
auction purchaser had notice of it.But in dealing with the question of law raised before it the Privy
Council had occasion to examine the relevant provisions of Hindu law and the decisions bearing on
them.Amongst the decisions considered by the Privy Council was the case of Kantoo Lal, 1 Ind App
321 (PC).Sir James Colvile; who delivered the judgment of the Board, referred to the case of
Kantoolal, 1 Ind App 321 (PC), and observed that:
“this case then, which is a decision of this tribunal, is undoubtedly an authority for these
propositions: 1st that where joint ancestral property has passed out of a joint family, either under a
conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to
pay off an antecedent debt, or under a sale in execution of a decree for the father’s debt, his sons, by
reason of their duty to pay their father'’ debts, cannot recover that property, unless they show that the
debts were contracted for immoral purposes, and that the purchasers had notice that they were so
contracted; and secondly, that the purchasers at an execution sale, being strangers to the suit, if they
have not notice that the debt were so contracted, are not bound to make inquiry beyond what appears
on the face of the proceedings”.
The first proposition which have been laid down in this judgment as deduced from Kantoolal’s
case, I Ind App 321 (PC), is clear and unambigoous.Where ancestral property has been alienated
either under a conveyance executed by the father in consideration of an antecedent debt, or in order to
raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father’s
debt, the sons have to prove not only that the antecedent debts were immoral but also that the
purchasers had notice that they were so contracted.With respect, it is open to argument whether the
two propositions inevitably arise from the earlier decision of the Privy Council in Kantoolal’s case, I
Ind App 321 (PC); but since 1879 when this proposition was thus enunciated it has apparently been
accepted by all the courts in India is the correct statement of Hindu law on the point.
(13) In Sat Narain v. Behari Lal, 52 Ind App 22 :AIR 1925 PC 18), while dealing with the question as
to whether the property of the joint family consisting of an insolvent Hindu father and his sons does
not, by virtue of the father’s adjudication as insolvent, became vested in the official assignee, Sir John
Edge, has incidentally referred to these two propositions with approval.No decision has been cited
before us where the correctness of these propositions has ever been doubted or questioned.
(14) In this connection it may be relevant to recall that soon after the Privy Council pronounced its
judgment in the case of Kantoolal, I Ind App 321 (PC), Bhattacharyya, in his Tagore Law Lectures on
the “Law realting to Joint Hindu Family”, (pp.549, 550) examined the said decisions and observed
that:
“Many in the profession think that the case dealt a death-blow to the institution of Hindu family,
that it has done away with the essential feature of that institution that it has rendered the father
independent of the control of his sons in dealing with ancestral property which had all along been
looked upon as a common fund belonging as much to the sons as to the father”.
Having thus expressed his surprise at the decision Mr. Bhattacharyya also added that “the
shifting of the burden of proof to the son imposed upon him a difficulty which is almost practically
insuperable”.Nevertheless, he has not failed to take notice of the fact that the promulgation of the
principle which was adopted by the Privy Council had become almost a necessity to put an end to
serious abuse which had become rife in the Mitakshara districts; and he had added that
“in those place the fathers of families knowing well that ancestral properties were secure against
the claims of their own creditors had established almost a regular system of inveigling innocent
178
persons of substance to lend money to them and when a decree was obtained and properties were
attached they used to put forward their sons to contest the creditor’s claims”.
According to the author the resuscitation by the Privy Council of the forgotten rule of Hindu Law
“served as a timely intervention to deal a death-blow to a revolting practice of systematic
fraud”.These observations incidentally explain the genesis of the decision in Kantoolal’s case, 1 Ind
App 321 (PC), and give us a clear idea as to the mischief which the Privy Council intended to check
by laying down the said principles.
(15) Whilst we are dealing with this question we may refer to the decision of the Privy Council in the
case of Brij Narain v. Mangala Prasad, 51 Ind App 129: AIR 1924 PC 50, where the vexed question
about the powers of the manager and the father to bind the undivided estate was finally resolved by
the Privy Council, and Lord Dunedin, who delivered the judgment of the Board laid down five
propositions in that behalf in these words:
(1) The managing member of a joint undivided estate cannot alienate or burden the estate qua
manager except for purposes of necessity; but
(2) If he is the father and the other members are the sons, he may, by incurring debt, so long as it is
(3) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an
(4) Antecedent debt means antecedent in fact as well as in time that is to say, that the debt must be
truly independent and not part of the transaction impeached.
(5) There is no rule that this result is affected by the question whether the father, who contracted
the debt or burdens the estate, is alive or dead.
Propositions 2,3and 4 with which we are concerned in the present appeal showed that a mortgage
created by the father for the payment of his antecedent debt would bind his sons; so that, if the sons
want to challenge the validity of the mortgage they would have to show not only that the antecedent
debt was immoral but that the alienee had notice of the immoral character of the said debt.That would
be the result of the first proposition laid down in the case of Suraj BunsiKoer, 6 Ind App 88 (PC).
(16) Now the propositions laid down by the Privy Council in the case of Brij Narain, 51 Ind App 139:
9AIR 1924 PC 50), as well as in the case of Suraj bunsiKoer, 6 Ind App 88 (PC), may be open to
some objections based on ancient Hindu texts.AsDr. Kane has pointed out, for the words “antecedent
debt” which were used for the first time by the Privy Council in the case of Suraj BunsiKoer, 6 Ind
App 88 (PC), there is nothing corresponding in the Sanskrit authorities, and that the distinction made
by the Privy Council in the case of Brij Narain, 51 Ind App 129: AIR 1924 PC 50, between a simple
personal money debt by the father and the debt secured by the mortgage is also not borne out by the
ancient texts and the commentaries alike. (History of Dharmasastra – By Dr. P. V. Kane, Volume III,
page 450).So we go back to the question with which we began.Would it be expedient at this stage to
consider the question purely in the light of ancient Sanskrit texts even though for more than three
quarters of a century the decision in Suraj BunsiKoer’s case, 6 Ind App 88 (PC), has apparently been
followed without a doubt or dissent.
(17) We have carefully considered this matter and we are not disposed to answer this question in
favour of the appellants.First and foremost, in cases of this character the principle of stare decisis
must inevitably come into operation.For a number of years’ transactions as to immovable property
belonging to Hindu families have taken place and titles passed in favour of alienees on the
understanding that the propositions of law laid down by the privy Council in the case of Suraj
BunsiKoer, 6 Ind App 88 (PC), correctly represent the true position under Hindu law in that behalf.It
would, we think, be inexpedient to reopen this question after such a long lapse of time.
(18) Besides it would not be easy to decide today what the relevant Sanskrit texts really provide in
this matter.It is well known that though the Smriti texts are given a place of pride among the sources
of Hindu Law, in the development of Hindu Law sadarchar or approved conduct, which is another
source has played an important part”.The existence of different schools of Hindu Law and sub-schools
clearly brings out the fact that during the ages Hindu law has made changes so as to absorb varying
customs and usages in different places from time to time.It is a remarkable feature of the growth of
179
Hindu Law that, by a skilful adoption of rules of construction, commentators successfully attempted
to bridge the distance between the letter of the Smriti texts and the existing customs and usages in
different areas and at different times.This process was arrested under the British Rule; but if we were
to decide today what the true position under Hindu law texts is on the point with which we are
concerned, it would be very difficult to reconcile the different texts and come to a definite
conclusion.In this branch of the law several considerations have been introduced by judicial decisions
which have substantially now become a part and parcel of Hindu law as is administered; it would,
therefore not be easy to disengage the said consideration and seek to ascertain the true effect of the
relevant provisions contained in ancient texts considered by themselves.
(19) It is also well known that, in dealing with questions of Hindu Law, the Privy Council introduced
considerations of justice equity and good conscience and the interpretation of the relevant texts
sometimes was influenced by these considerations.In fact, the principle about the binding character of
the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have
all been introduced on considerations of equity and fairplay. When the Privy Council laid down the
two propositions in the case of Suraj BunsilKoer, 6 Ind App 88 (PC), what was really intended was to
protect the bona fide alienees against frivolous or collusive claims made by the debtors’ sons
challenging the transactions.Since the said propositions have been laid down with the object of doing
justice to the claims of bona fide alienees, we do not see any justification for disturbing this well-
established position on academic considerations which may perhaps arise if we were to look for
guidance to the ancient texts today.In our opinion, if there are any anomalies in the administration of
this branch of Hindu Law their solution lies with the legislature and not with the Courts. What the
commentators attempted to do in the past can now be effectively achieved by the adoption of the
legislative process. Therefore, we are not prepared to accede to the appellants’ argument that we
should attempt to decide the point raised by them purely in the light of ancient Sanskrit texts.
(20) It now remains to consider some of the decisions to which our attention was invited. In P.
Lakshmanaswami v. T.P.T. Raghavacharyulu, AIR 1943 Mad 292, the Madras High Court was
dealing with the debt contracted by the father on a promissory note executed by him for the payment
to his concubine for meeting the expenses of her grand-daughter’s marriage. The sons had no
difficulty in proving that the debt was immoral; but it was urged on behalf of the creditor that the sons
could not succeed unless the creditor’s knowledge about the immoral character of the debt had been
established and reliance was apparently placed upon the two propositions laid down by the Privy
Council in the case of Suraj BunsiKoer, 6 Ind App 88 (PC).This plea was rejected by the High
Court.PatanjaliSastri J., as he then was, who delivered the judgement for the Court observed that:
“The remarks made by the Privy Council had reference to family property sold in execution of a
decree obtained against the father as to which different considerations arise, the bona fide purchaser
not being bound to go further back than the decree.”
In other words, this decision shows that the principles which apply to alienations made by a
Hindu father to satisfy his antecedent debts cannot be extended and invoked to cases where the sons
are challenging the binding character of the debts which are not antecedent and are in fact immoral.
(21) The Allahabad High Court has had occasion to consider different aspects of this problem in
several cases, and different, if not somewhat conflicting, views appear to have been taken in some of
the decisions.We will, however, refer to only two decisions which the directly in point. In Kishan Lal
v. Garuruddhwaja Prasad Singh, ILR 21 All 238, Burkitt J., has observed that had it been proved that
the debt had been contracted for immoral purpose and that the person who advanced the money was
aware of the purpose for which it was being borrowed the son would not have been liable.This,
however, is a bare statement of the law, and the judgment does not contain any discussion on the
merits of the proposition laid down by the judge nor does it cite the relevant judicial decisions bearing
on the point.InMaharaj Singh v. Balwant Singh, ILR 28 All 508, the same High Court was dealing
with amortgage by Sheoraj Singh to pay the antecedent debts of the father.Maharaj Singh, the younger
brother, also joined in the execution of the document. It was, however, found that at the material time
Maharaj Singh was a minor and so the mortgage was, as regards his interest in the mortgaged
property, absolutely void.This finding was enough to reject the mortgagee’s claim against the share of
Maharaj Singh in the mortgaged property; but the High Court proceeded to consider the alternative
ground urged by Maharaj Singh and held that it was not necessary for Maharaj Singh to prove notice
180
of the immoral character of the antecedent debt because the ancestral property in question had not
passed out of the hands of the joint family.Maharaj Singh was defending his title; he was not a
plaintiff seeking to recover property, but a defender of his interest in ancestral property of which he
was in possession.These observations show that the High Court took the view that the propositions
laid down in the case of Suraj Koer, 6 Ind App 88 (PC) would not apply to cases of mortgage but
were confidined to cases of purchase.We do not think the distinction between a purchase and a
mortgage made in this decision is well founded.The propositions in question treated an alienation
made for the payment of the father’s antecedent debt on the same footing as an alienation made in
execute of a decree passed against him and in both cases the principle enunciated is that order to
succeed in their challenge the sons must prove the immoral character of the antecedent debt and the
knowledge ofthealienee.Having regard to the broad language used in stating the two propositions, we
do not think that a valid distinct could be made between a mortgage and sale particularly after the
decision of Privy Council in the case of Brij Narain, Ind App 129: AIR 1924 PC 50.That is the view
taken by the Nagpur High Court in UdmiramKoroodimal v. BalramdasTulsiram, AIR 1956 Nag 76.
(22) In the result the appeal fails, but in the circumstances of this case there would be no order as to
costs.
Appeal dismissed.
--------------------------
181
8.
AIR 1977 SC1944 : From : AIR 1969 AP 300
P.N. BHAGWATI, A.C.GUPTA AND S. MURTAZA FAZAL ALI. JJ.
V. Tulasamma
v.
V. SeshaReddi
Civil Appeal No. 1360 of 1968. D/ 17-3-1977.
Judgments of the Court were delivered by :
BHAGWATI, J. (for himself and on behalf of A.C. Gupta J):- We have had the advantage of reading
the judgment prepared by our learned brother S. Murtaza Fazal Ali and we agree with the conclusion
reached by him in that judgment but we would prefer to give our own reasons. The facts giving rise to
the appeal are set out clearly and succinctly in the judgment of our learned brother and we do not
think it necessary to reiterate them.
2. The short question that arises for determination in this appeal is as to whether it is sub-section (1)
or sub-section (2) of Section 14 of the Hindu Succession Act, 1956 that applies where property is
given to a Hindu female in lieu of maintenance under an instrument which in so many terms restricts
the nature of the interest given to her in the property.If sub-section (1) applies, then the limitations on
the nature of her interest are wiped out and she becomes the full owner of the property, while on the
other hand, if sub-section (2) governs such a case, her limited interest in the property is not enlarged
and she continues to have the restricted estate prescribed by the instrument.The question is of some
complexity and it has evoked wide diversity of judicial opinion not only amongst the different High
Courts but also within some of the High Courtsthemselves.It is indeed unfortunate that though it
became evident as far back as 1967 that sub-sections (1) and (2) of Section 14 were presenting serious
difficulties of construction in cases where property was received by a Hindu female in lieu of
maintenance and the instrument granting such property prescribed a restricted estate for her in the
property and divergence of judicial opinion was creating a situation which might well be described as
chaotic, robbing the law of that modicum of certainty which it must always possess in order to guide
the affairs of men, the legislature, for all these years did not care to step in to remove the
constructional dilemma facing the courts and adopted an attitude of indifference and inaction,
untroubled and unmoved by the large number of cases on this point encumbering the file of different
courts in the country, when by the simple expedient of an amendment, it could have silenced judicial
conflict and put an end to needless litigation.This is a classic instance of a statutory provision, which,
by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise
for lawyers.It illustrates forcibly the need of an authority or body to be set up by the Government or
the Legislature which would constantly keep in touch with the adjudicatory authorities in the country
as also with the legal profession and immediately respond by making recommendations for suitable
amendments whenever it is found that a particular statutory provision is, by reason of inapt language
or unhappy draftsmanship, crating difficulty of construction or is otherwise inadequate or defective or
is not well conceived and is consequently counter-productive of the result it was intended to
achieve.If there is a close inter-action between the adjudicatory wing of the State and a dynamic and
ever-alert authority or body which responds swiftly to the drawbacks and deficiencies in the law in
action, much of the time and money, which is at present expended in fruitless litigation, would be
saved and law would achieve a certain amount of clarity, certainty and simplicity which alone can
make it easily intelligible to the people.
3. Since the determination of the question in the appeal turns on the true interpretation to be placed on
sub-section (2) read in the context of sub-section (1) of Section 14 of the Hindu Succession Act, 1956,
it would be convenient at this stage to set out both the sub-sections of that section which read as
follows:
“14 (1) Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation–In this sub-section, “property” includes both movable and immovable property
arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her
182
under a will or any other instrument or under a decree or order of a civilcourt or under an award
where the terms of the gift will or other instrument or the decree, order or award prescribe a restricted
Prior to the enactment of Section 14, the Hindu law, as it was then in operation, restricted the
nature of the interest of a Hindu female in property acquired by her and even as regards the nature of
this restricted interest, there was great diversity of doctrine on the subject.The Legislature, by enacting
sub-section (1) of Section 14, intended, as pointed by this Court in S.S. Munna Lal v. S.S. Rajkumar,
1962 Supp (3) SCR 41: (AIR 1962 SC 1493) “to convert the interest which a Hindu female has in
property, however restricted the nature of that interest under the Sastric Hindu law may be into
absolute estate”.This Court pointed out that the Hindu Succession Act, 1956 “is a codifying
enactment, and has made far-reaching changes in the structure of the Hindu law of inheritance, and
succession. The Act confers upon Hindu females’ full rights of inheritance and sweeps away the
traditional limitations on her powers of disposition which were regarded under the Hindu law as
inherent in her estate”.Sub-section (1) of Section 14, is wide in its scope and ambit and uses language
of great amplitude.It says that any property possessed by a female Hindu, whether acquired before or
after the commencement of the Act, shall be held by her as full owner thereof and not as a limited
owner.The words “anyproperty” are, even without any amplification, largeenough to cover any and
every kind of property, but in order to expand the reach and ambit of the section and make it all
comprehensive, the Legislature has enacted an, explanation which says that property would include
“both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a
relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever and also any such property held by her as stridhana
immediately before the commencement” of the Act.Whatever be the kind of property movable or
immovable and whichever be the mode of acquisition, it would be covered by sub-section (1) of
Section 14 the object of the Legislature being to wipe out the disabilities from which a Hindu female
suffered in regard to ownership of property under the old Sastric law, to abridge the stringent
provisions against proprietary rights which were often regarded as evidence of her perpetual tutelage
and to recognize her status as an independent and absolute owner of property. This Court has also in a
series of decisions given a most expansive interpretation to the language of sub-section (1) of Section
14 with a view to advancing the social purpose, of the legislation and as part of that process, construe
the words ‘possessed of’ also in a broad sense and in their widest connotation.It was pointed out by
this Court in GumalapuraTagginaMatadaKotturuswami v. SetraVeeravva, 1959 Supp (1) SCR 968 :
(AIR 1959 SC 577 that the words ‘possessed of’ mean “the state of owning or having in one’s hand or
power”.It need not be actual or physical possession or personal occupation of the property by the
Hindu female, but may be possession in law.It may be actual or constructive or in any form
recognised by law.Elaborating the concept, this Court pointed out in Mangal Singh v. Rattno, AIR
1967 SC 1786 that the section covers all cases of property owned by a female Hindu although she
may not be in actual physical or constructive possession of the property, provided of course, that she
has not parted with her rights and is capable of obtaining possession of the property.It will, therefore,
be seen that sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition
of property by a female Hindu including acquisition in lieu of maintenance and where such property
was possessed by her at the date of commencement of the Act or was subsequently acquired and
possessed, she would become the full owner of the property.
4. Now, sub-section (2) of Section 14 provides that nothing contained in sub-section (1) shall apply to
any property acquired by way of gift or under a will or any other instrument or under a decree or order
of a civil court or under an award where the terms of the gift, will or other instrument or the decree,
order or award prescribe a restricted estate in such property.This provision is more in the nature of a
proviso or exception to sub-section (1) and it was regarded as such by this Court in Badri Pershad v.
Smt. Kanso Devi, (1970) 2 SCR 95 : (AIR 1970 SC 1963).It excepts certain kinds of acquisition of
183
property by a Hindu female from the operation of sub-section (1) and being in the nature of an
exception to a provision which is calculated to achieve a social purpose by bringing about change in
the social and economic position of women in Hindu society, it must be construed strictly so as to
impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section
(1).It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a
Hindu female of the protection sought to be given to her by sub-section (1).The language of sub-
section (2) is apparently wide to include acquisition of property by a Hindu female under an
instrument or a decree or order or award where the instrument, decree, order or award prescribes a
restricted estate for her in the property and this would apparently cover a case where property is given
to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or award
giving such property prescribes limited interest for her in the property. But that would virtually
emasculate sub-section (1) for in the event, a larger number of cases where property is given to a
Hindu female at a partition or in lieu of maintenance under an instrument order or award would be
excluded from the operation of the beneficent provision enacted in sub-section (1). Since in most of
such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there
would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited
interest in the property and where property is given to the Hindu female subsequent to the enactment
of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall
have only a restricted interest in the property and thus make a mockery of sub-section (1).The
Explanation to sub-section (1) which includes within the scope of that sub-section property acquired
by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless,
because there would hardly be a few cases where the instrument, decree, order or award giving
property to a Hindu female at a partition or in lieu of maintenance would not contain a provision
prescribing restricted estate in the property.The social purpose of the law would be frustrated and the
reformist zeal underlying the statutory provision would be chilled. That surely could never have been
the intention of the Legislature in enacting sub-section (2).It is an elementary rule of construction that
no provision of a statute should be construed in isolation but it should be construed with reference to
the context and in the light of other provisions of the statute so as, as far as possible, to make a
consistent enactment of the whole statute.Sub-section (2) must, therefore, be read in the context of
sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read,
it must be confined to cases where property is acquired by a female Hindu for the first time as a grant
without any re-existing right, under a gift, will, instrument, decree, order or award, the terms of which
prescribe a restricted estate in the property.This constructional approach finds support in the decision
in Badr Prasad’s case (supra) where this Court observed that sub-section (2) “can come into operation
only if acquisition in any of the methods enacted therein is made for the first time without there being
any pre-existing right in the female Hindu who is in possession of the property”.It may also be noted
that when the Hindu Succession Bill 1954, which ultimately culminated into the Act, was referred to a
Joint Committee of the Rajya Sabha, Cl. 18(2) of the Draft Bill, corresponding to the present sub-
section (2) of Section 14, referred only to acquisition of property by a Hindu female under gift or will
and it was subsequently that the other modes of acquisition were added so as to include acquisition of
property under an instrument, decree, order or award.This circumstance would also seem to indicate
that the legislative intendment was that sub-section (2) should be applicable only to cases where
acquisition of property is made by a Hindu female for the first time without any pre-existing right – a
kind of acquisition akin to one under gift or will.Where, however property is acquired by a Hindu
female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an
acquisition would not be within the scope and ambit of sub-section (2) even if the instrument, decree,
order or award allotting the property prescribes a restricted estate in the property.
5. This line of approach in the construction of sub-section (2) of Section 14 is amply borne out by the
trend of judicial decisions in this Court.We may in this connection refer to the decision in Badri
Parsad’s case (AIR 1970 SC 1963) (supra).The facts in that case were that one Gajju Mal owning
self-acquired properties died in 1947 leaving five sons and a widow.On August 5, 1950, one Tulsi
Ram Seth was appointed by the parties as an arbitrator for resolving certain difference which had
arisen relating to partition of the properties left by Gajju mal. The arbitrator made his award on
October 31, 1950 and under Clause 6 of the award, the widow was awarded certain properties and it
184
was expressly stated in the award that she would have a widow’s state in the properties awarded to
her.While the widow was in possession of the properties, the Act came into force and the question
arose whether on the coming into force of the Act, she became full owner of the properties under sub-
section (1) or her estate in the properties remained a restricted one under sub-section (2) of Section
14.This Court held that although the award gave a restricted estate to the widow in the properties
allotted to her, it was sub section (1) which applied and not sub-section (2), because inter alia the
properties given to her under the award were on the basis of a pre-existing right which she had as an
heir of her husband under the Hindu Women’s Rights to Property Act, 1937 and not as a new grant
made for the first time. So also in Nirmal Chand v. Vidya Wanti (dead) by her legal representatives,
C.A.No. 609 of 1965. Dt.21-1-1969 (SC) there was a regular partition deed made on December 3,
1945 between Amin Chand, a coparcener and Subhrai Bai, the widow of a deceased coparcener, under
which a certain property was allotted to Subhrai Bai and it was specifically provided in the partition
deed that Subhrai Bai would be entitled only to the user of the property and she would have no right
to alienate it in any manner but would only have a life interest.Subhrai Bai died in 1957 subsequent to
the coming into force of the Act after making a will bequeathing the property in favour of her
daughter Vidyawati. The right of Subhrai Bai to bequeath the property by will was challenged on the
ground that she had only a limited interest in the property and her case was covered by sub-section (2)
and not sub-section (1).This contention was negatived and it was held by this Court that though it as
true that the instrument of partition prescribed only a limited interest for Subhrai Bai in the property
that was in recognition of the legal position which then prevailed and hence it did not bring her case
within the exception contained in sub-section (2) of Section 14.This Court observed:
“If Subhrai Bai was entitled to a share in her husband’s properties then the suit properties must
beheld to have been allotted to her in accordance with law. As the law then stood she had only a life
interest in the properties taken by her. Therefor the recital in the deed in question that she would have
only a life interest in the properties allotted to her share is merely recording the true legal
position.Hence it is not possible to conclude that the properties in question were given to her subject
to the condition of her enjoying it for the lifetime.Therefore, the trial Court as well as the first
Appellate Court were right in holding that the facts of the case do not fall within Section14 (2) of the
Hindu Succession Act, 1956.”
It will be seen from these observations that even though the property was acquired by Subhrai
Bai under the instrument of partition, which gave only a limited interest to her in the property this
Court held that the case fell within sub-section (1) and not sub-section (2).The reason obviously was
that the property was given to Subhrai Bai in virtue of a pre-existing right inhering in her and when
the instrument of partition provided that she would only have a limited interest in the property, it
merely provided for something which even otherwise would have been the legal position under the
law as it then stood.It is only when property is acquired by a Hindu female a new grant for the first
time and the instrument, decree, order or award giving the property prescribes the terms on which it is
to be held by the Hindu female, namely, a restricted owner, that sub-section (2) comes into play and
excludes the applicability of sub-section (1).The object of sub-section (2), as pointed out by this Court
in Badri Parsad’s case (supra) while quoting with approval the observations made by the Madras
High Court in Rangaswami Naicker v. Chinnammal, AIR 1964 Mad 387 is only to remove the
disability of women imposed by law and not to interfere with contracts, grants or decrees etc. by
virtue of which a women’s right was restricted” and, therefore, where property is acquired by a Hindu
female under the instrument in virtue of a pre-existing right such as a right to obtain property on
partition or a right to maintenance and under the law as it stood prior to the enactment of the Act, she
would have no more than limited interest in the property, a provision in the instrument giving her
limited interest in the property would be merely by way of record or recognition of the true legal
position and the restriction on her interest being a “disability imposed by law” would be wiped out
and her limited interest would be enlarged under sub-section (1).But where property is acquired by a
Hindu female under an instrument for the first time without any pre-existing right solely by virtue of
the instrument, she must hold it on the terms on which it is given to her and if what is given to her is a
restricted estate, it would not be enlarged by reason of sub-section (2).The controversy before us,
therefore boils down to the narrow question whether in the present case the properties were acquired
185
by the appellant under the compromise in virtue of a pre-existing right or they were acquired for the
first time as a grant owing its origin to the compromise alone and to nothing else.
6. Now, let us consider now the property in question came to be acquired by the appellant under the
compromise.The appellant claimed maintenance out of the joint family properties in the hands of the
respondent who was her deceased husband’s brother.The claim was decreed in favour of the appellant
and in execution of the decree for maintenance, the compromise was arrived at between the parties
allotting the properties in question to the appellant for her maintenance and giving her limited interest
in such properties. Since the properties were allotted to the appellant in lieu of her claim for
maintenance, it becomes necessary to consider the nature of the right which a Hindu widow has to be
maintained out of joint family estate.It is settled law that a widow is entitled to maintenance out of her
deceased husband’s estate, irrespective whether that estate may be in the hands of his male issue or it
may be in the hands of his coparceners. The joint family estate in which her deceased husband had a
share is liable for her maintenance and she has a right to be maintained out of the joint family
properties and though, as pointed out by this Court in Rani Bai v. Yadunandan Ram,(1969) 3 SCR 789
: (AIR 1969 SC 1118) her claim for maintenance is not a charge upon any joint family property until
she has got her maintenance determined and made a specific charge either by agreement or a decree or
order of a court, her right is “not liable to be defeated except by transfer to a bona fide purchaser for
value without notice of her claim or even with notice of the claim unless the transfer was made with
the intention of defeating her right.”The widow can for the purpose of her maintenance follow the
joint family property “into the hands of any one who takes it as a volunteer or with notice of her
having set up a claim for maintenance”. The courts have even gone to the length of taking the view
that where a widow is in possession of any specific property for the purpose of her maintenance, a
purchaser buying with notice of her claim is not entitled to possession of that property without first
securing proper maintenance for her. Vide Rachawav. Shivayogapa, (1894) ILR 18 Born 679 cited
with approval in Ranibai’s case (supra).It is, therefore, clear that under the Sastric Hindu Law a
widow has a right to be maintained out of joint family property and this right would ripen into a
charge if the widow takes the necessary steps for having her maintenance ascertained and specifically
charged on the joint family property and even if no specific charge is created, this right would be
enforceable against joint family property in the hands of a volunteer or a purchaser taking it with
notice of her claim.The right of the widow to be maintained is of course not a jus in rem since it does
not give her any interest in the joint family property but it is certainly jus ad rem, i.e., a right against
the joint family property.Therefore, when specific property is allotted to the widow in lieu of her
claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be
maintained out of the joint family property.It would not be a grant for the first time without any pre-
existing right in the widow. The widow would be getting the property in virtue of her pre-existing
right, the instrument giving the property being merely a document effectuating such pre-existing right
and not making a grant of the property to her for the first time without any antecedent right or
title.There is also another consideration which is very relevant to this issue and it is that even if the
instrument were silent as to the nature of the interest given to the widow in the property and did not,
in so many terms, prescribe that she would have a limited interest, she would have no more than a
limited interest in the property under the Hindu law as it stood prior to the enactment of the Act and
hence a provision in the instrument prescribing that she would have only a limited interest in the
property, would be to quote the words of this Court in Nirmal Chand’s case, C.A.No. 609 of 1965, dt.
21-1-1969 (SC) (supra) “merely recording the true legal position” and that would not attract the
applicability of sub-secton (2) but would be governed by sub-section (1) of Section 14. The
conclusion is, therefore, inescapable that where property is allotted to a widow under an instrument,
decree order or award (which) prescribes a restricted estate for her in the property and sub-secction
(2) of Section 14 would have no application in such a case.
7. We find that there are several High Courts which have taken the same view which we are taking in
the present case.We may mention only a few of those decision, namely B.B. Patil v. Gangabai, AIR
1972 Bom 16: Sumeshwar Mishra v. Swami Nath Tiwari, AIR 1970 Pat 348 GadamReddayya v.
Venkataraju, AIR 1965 AndhPra 66: ThathaGurunadham v. Smt. T. Navaneethamma, AIR 1967 mad
429 : H. Venkatagouda v. Hanamangouda, AIR 1972 Mys 286: Smt. Sharbati Devi v. Harilal, AIR
1964 Punj 114:Sasadhar Chandra Dav v. Smt. Tara SundariDasi, AIR 1962 Cal 438: Saraswathi
186
Ammal v. AnanthaShenai, AIR 1966 Ker 66 and Kunji Thommen v. Meenakshi, ILR (1970) 2 Ker 45:
(AIR 1970 Ker 284). It is not necessary to refer to these decisions since we have ourselves discussed
the question of construction of sub-sections (1) and (2) of Section 14 on principle and pointed out
what in our view is the correct construction of these provisions.We may only mention that the
judgment of Palekar J., as he then was, in B.B. Patil v. Gangabai (supra) is a well-reasoned judgment
and it has our full approval. The contrary view taken in Gurunadham v. Sundararajulu, ILR (1968) 1
Mad 567 : (AIR 1967 Mad 429):Santhanam v. Subramania. ILR 1967) 1 Mad 68: S.
KachapalayaGurukkal v. V. SubramaniaGurukkal, AIR 1972 Mad 279: Shiva Pujan Rai v. Jamuna
Missir, (1968) ILR 47 Pat 1118 :GopisettiKondaiahv.G. Subbarayudu, ILR (1968) AndhPra 621; Ram
Jag Misir v. Director of Consolidation, U.P., AIR 1975 All 151 andAjab Singh v. Ram Singh, AIR
1959 J& K 92 (FB) does not in our opinion represent the correct law on the subject and these cases
must be held to be wrongly decided.
8. In the circumstances, we reach the conclusion that since in the present case the properties in
question were acquired by the appellant under the compromise in lieu or satisfaction of her right of
maintenance, it is sub-section (1) and not sub-section (2) of Section 14 which would be applicable and
hence the appellant must be deemed to have become full owner of the properties notwithstanding that
the compromise prescribed a limited interest for her in the properties.We accordingly allow the
appeal, set aside the judgment and decree of the High Court and restore that of the District Judge,
Nellore.The result is that the suit will stand dismissed but with no order as to costs.
FAZAL ALI, J.: - 9.This is a defendant’s appeal by special leave against the judgment of the
High Court of Andhra Pradesh dated November 22, 1967 and arises in thefollowing circumstances.
10. Venkatasubba Reddy, husband of appellant No.1 VaddeboyinaTulasamma – hereinafter to be
referred to as a ‘Tulasamma’ – died in the year 1931 in a state of jointness withhisstep brother V.
Sesha Reddy and left behind Tulasamma as his widow. On October 11, 1944 the appellant
Tulasamma filed a petition for maintenance in forma pauperis against the respondent in the Court of
the District Munsif, Nellore.This application was set ex parte on January 13, 1945 but subsequently
the petition was registered as a suit and an ex parte decree was passed against the respondent on June
29, 1946. On October 1, 1946 the respondent filed an interlocutory application for recording a
compromise alleged to have been arrived at between the parties out of Court on April 9, 1945. The
appellant Tulasamma opposed this application which was ultimately dismissed on October 16, 1946.
An appeal filed by the respondent to the District Judge, Nellore was also dismissed. Thereafter
Tulasamma put the decree in execution and at the execution stage the parties appear to have arrived at
a settlement out of Court which was certified by the Executing Court on July 30, 1949 under O, XXI,
Rule 2 of the Code of Civil Procedure. Under the compromise the appellant Tulasamma was allotted
the Schedule properties but was to enjoy only a limited interest therein with no power of alienation at
all.According to the terms of the compromise the properties were to revert to the plaintiff after the
death of Tulasamma.SubsequentlyTulasamma continued to remain in possession of the properties
even after coming into force of the Hindu Succession Act, 1956 – hereinafter to be referred to as “the
1956 and May 25, 1961, the appellant pleaded out some of the properties to defendants 2 & 3 by the
first deed and sold some of the properties to defendant 4 by the second deed.The plaintiff/respondent
filed a suit on July 31, 1961 before theDitrictMunsiff, Nellore for a declaration that the alienations
made by the widow Tulasamma were not binding on the plaintiff and could remain valid only till the
lifetime of the widow.The basis of the action filed by the plaintiff was that a the appellant
Tulassamma had got restricted estate only under the terms of the compromise her interest could not be
enlarged into an absolute interest by the provisions of the 1956 Act in view of Section 14 (2) of the
aid Act.The suit as contested by the appellant Tulasamma who denied the allegations made in the
plaint and averred that by virtue of the provisions of the 1956 Act she had become the full owner of
the properties with absolute right of alienation and the respondent had no locus standi to file the
present suit.The learned Munsiff decreed the suit of the plaintiff holding that the
appeallantTulasamma got merely a limited interest in the properties which could be enjoyed during
her lifetime and that the alienations were not binding on the reversioner.Tulasamma then filed an
appeal before the District Judge, Nellore, who reversed the finding of the trial Court allowed the
appeal and dismissed the plaintiff’s suit holding that the appellant Tulasamma had acquired an
absolute interest in the properties by virtue of the provisions of the 1956 Act. The learned Judge
187
further held that sub-section (2) of Section 14 had no application to the present case, because the
compromise was an instrument in recognition of a pre-existing right. The plaintiff/respondent went up
in second appeal to the High Court against the judgment of the District Judge.The plea of the
plaintiff/respondent appears to have found favour with the High Court which held that the case of the
appellant was clearly covered by Section 14(2) of the Hindu Succession Act and as the compromise
was an instrument as contemplated by Section 14(2) of the 1956 Act, Tulasamma could not get an
absolute interest under Section 14(1) of the Act.The High Court further held that by virtue of the
compromise the appellant Tulasamma got title to the properties for the first time and it was not a
question of recognising apre-existing right which she had none in view of the fact that her husband
had died even before the Hindu Women’s Right to Property Act, 1937.We might further add that the
facts narrated above have not been disputed by counsel for the parties.
11. The appeal has been argued only on the substantial question of law which turn upon the
interpretation of sub-sections (1) and (2) of Section 14 of the Hindu Succession Act, 1956.It I
common ground that in this case as also in the other connected appeals, the properties in suit were
allotted under a compromise or an instrument in lieu of maintenance.It is also admitted that the
appellant Tulasamma was in possession of the properties at the time when the 1956 Act came into
force.Finally, it is also not disputed that the compromise did purport to confer only a limited interest
on the widow restricting completely her power of alienation.We have now to apply the law on the
facts mentioned above.Similar points were involved in the other two appeals Nos. 135 of 1973 and
126 of 1972.We have heard all the three appeals together and in all these appeals counsel for the
parties have confined their arguments only to the questions of law without disputing the findings of
fact arrived at by the Courts below.
12. Thus the two points that fall for determination in this appeal may be stated thus:
(1) Whether the instrument of compromise under which the properties were given to the appellant
Tulasamma before the 1956 Act in lieu of maintenance falls within Section 14(1) or is covered
by Section 14(2) of the 1956 Act: and
(2) Whether a Hindu widow has a right to property in lieu of her maintenance, and if such a right is
conferred on her subsequently by way of maintenance it would amount to mere recognition of a
pre-existing right or a conferment of a new title so as to fall squarely within Section 14(2) of
the 1956 Act.
(3) There appears to be serious divergence of judicial opinion on the subject and the High Courts
have taken contrary views on this point.Some High Courts, particularly the Bombay, Punjab,
Calcutta and Patna have veered round to the view that a right of maintenance claimed by a
Hindu widow is a pre-existing right and any instrument or document or transaction by which
the properties are allotted to the widow in lieu of her maintenance would only be in recognition
of a pre-existing right and would not confer any new title on the widow.Following this line of
reasoning the aforesaid High Court have held that the properties allotted to the Hindu widow
even though they conferred a limited interest would fall clearly within the ambit of Section 14
(1) of the 1956 Act by virtue of which the limited interest would be enlarged into an absolute
interest on the coming into force of the 1956 Act.On the other hand, the Orissa, Allahabad,
Madras and Andhra Pradesh High Courts have taken a contrary view and have held that as the
Hindu widow’s right to maintenance is not a right to property, the property allotted to her in
lieu of maintenance confers on her a right or title to the property for the first time and therefore
such conferment is protected by Section 14 (2) of the1956 Act and is not covered by Section 14
(1).Unfortunately, however, there is no decision of this Court which is directly in point, though
there are some decisions which tend to support the vie taken by the Bombay High Court.
14. Before, however, resolving this important dispute it may be necessary to consider the real legal
nature of the incidence of a Hindu widow’s right to maintenance.In order to determine this factor, we
have to look to the concept of a Hindu marriage.Under the Shastric Hindu Law, a marriage, unlike a
marriage under the Mohammedan Law which is purely contractual in nature, is a sacrament – a
religious ceremony which results in a sacred and a holy union of man and wife by virtue of which the
wife is completely transplanted in the household of her husband and takes a new birth as a partner of
her husband becoming a part and parcel of the body of the husband.To a Hindu wife her husband is
her God and her life becomes one of selfless service and unstinted devotion and profound dedication
188
to her husband.She not only shares the life and love, the joys and sorrows, the troubles and
tribulations of her husband but becomes an integral part of her husband’s life and
activities.Colebrooke in his book ‘Digest of Hindu Law’ Vol.II describes the status of wife at p. 158
thus:
“A wife is considered as half the body of her husband, equally sharing the fruit of pure and
impure acts: whether she ascends the pile after him, or survives for the benefit of her husband, she is a
faithful wife”.This being the position after marriage, it is manifest that the law enjoins a
corresponding duty on the husband to maintain his wife and look after her comforts and to provide her
food and raiments.It is well settled that under the Hindu Law the husband has got a personal
obligation to maintain his wife and if he is possessed of properties then his wife is entitled as of right
to be maintained out of such properties.The claim of a Hindu widow to be maintained is not an empty
formality which is to be exercised as a matter of concession or indulgence, grace or gratis or
generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal
relationship of the husband and wife.As the wife is in a sense a part of the body of her husband, she
becomes co-owner of the property of her husband though in a subordinate sense.Although the right of
maintenance does not per se create a legal charge on the property of her husband, yet the wife can
enforce this right by moving the Court for passing a decree for maintenance by creating a charge.This
right is available only so long as the wife continues to be chaste.Thus the position is that the right of
maintenance may amount to a legal charge if such a charge is created either by an agreement between
the parties or by a decree.
15. There are a number of authorities which have taken the view that even if the property is
transferred and the transferee takes the property with notice of the right of the widow to be maintained
out of the property, the purchaser takes the obligation to maintain the widow out of the property
purchased and the wife or widow can follow the property in the hands of the purchaser for the limited
purpose of her maintenance.We shall, however, deal with thee authorities a little later.
16. Colebrooke in his ‘Digest of Hindu Law’, Vol. II, quote, the Mahabharata at p. 121 thus:
“Where females are honoured, there the deities are pleased, but where they are unhonoured, there
are religious act become fruitless”.This clearly illustrates the high position which is bestowed on
Hindu women by the ShastricLaw.AgainColebrooke in his book Vol. II, p. 123, while describing the
circumstances under which the maintenance is to be given to the wife, quotes Manu thus.
‘MANU: - Should a man have business abroad, let him assure a fit maintenance to his wife, and
then reside for a time in a foreign country; since a wife, even though virtuous, may be tempted to act
amiss, if she be distressed by want of subsistence.
While her husband, having settled her maintenance, resides abroad, let her continue firm in
religious austerities; but if he leaves no support, let her subsist by spinning and other blameless arts”.
“This extract clearly shows that there is a legal obligation on the part of the husband to make
arrangements for his wife’s due maintenance even if he goes abroad for business purposes.Colebrooke
again quotes Yajnavalkya at p. 243 of the book Vol. II thus:
‘When the father makes an equal partition among his sons, his wives must have equal shares with
them, if they have received no wealth either from their lord or from his father.
If he makes an equal partition among his sons by his own choice, he must give equal shares to
such of his wives also as have no male issue.”
This shows that when a partition is affected, the Hindu law enjoins that the wife must get an
equal share with the sons.Thus reinforcing the important character of the right of maintenance which a
Hindu wife or widow possesses under the Hindu Law.
17. Similarly Golapchandra Sarkar Sastri dealing with the nature and incidents of the Hindu widow’s
right to maintenance observes in his treatise ‘Hindu Law’ at p. 533 thus:
“When the husband is alive; he is personally liable for the wife’s maintenance, which is also a
legal charge upon his property; this charge being a legal incident of her marital co-ownership in all
her husband’s property. … But after his death, his widow’s right of maintenance becomes limited to
his estate, which, when it passes to any other heir, is charged with the same… There cannot be any
doubt that under Hindu law the wife’s or widow’s maintenance is a legal charge on the husband’s
estate: but the Courts appear to hold, in consequence of the proper materials not being placed before
them, that it is not so by itself, but is merely a claim against the husband’s heir, or an equitable charge
189
on this estate; hence the husband’s debts are held to have priority, unless it is made a charge on the
property by a decree”.The view of the author appears to be that the Courts hold that the right of
maintenance of a widow does not amount to a legal charge and this is so because proper materials
were not placed before the Courts.In other words, the author seems to indicate that the original Hindu
Law contained clear provisions that the right of maintenance amounts to a charge on the property of
her husband and the obligation runs with the property so that any person who inherits the property
also takes upon the obligation to maintain the widow. Sastri quotes from the original texts various
extracts regarding the nature and extent of the right of maintenance of the Hindu woman some of
which may be extracted thus:
“The support of the group of persons who should be maintained is the approved means of
attaining heaven but hell is the man’s portion if they suffer: therefore, he should carefully maintain
them.
The father, the mother, the Guru (an elderly relation worthy of respect) a wife, an offspring, poor
dependants, a guest, and a religious mendicant are declared to be the group of persons who are to be
maintained. – Manu, cited in Srikrishna’s commentary on the Dayabhaga, 11, 28.
It is declared by Manu that the aged mother and father, the chaste wife, and an infant child must
be maintained even by doing a hundred misdeeds – Manu cited in the Mitakshara while dealing with
gifts.”
The last extract clearly shows the imperative nature of the duty imposed on the owner of the
property to maintain wife, aged mother, father etc. even at the cost of perpetrating a hundred
misdeeds.Similarly,Sastri in his book quotes Yajnavalkya at p. 523 thus:
“Property other than what is required for the maintenance of the family may be given.”–The
learned author highlights the importance of the right of maintenance as being a charge on the property
of the husband and observes as follows:
“The ancestral immovable property is the hereditary source of maintenance of the members of
the family, and the same is charged with the liability of supporting its members, all of whom acquire a
right to such property from the moment they become members of the family, by virtue of which they
are at least entitled to maintenance out of the same.Such property cannot be sold or given away except
for the support of the family: a small portion of the same may be alienated, if not incompatible with
the support of the family.
There is no difference between the two schools as regards the view that the ancestral property is
charged with the maintenance of the members of the family, and that no alienation can be made,
which will prejudicially affect the support of the group of persons who ought to be maintained. Hence
heirs are bound to maintain those whom the last holder was bound to maintain.”
The author further points out that under the Mitakshara law the daughter-in-law does, with her
husband, acquire a right to the ancestral property,since her marriage, but she becomes her husband’s
co-owner in a subordinate sense, and the principal legal incident of this ownership is the right to
maintenance, which cannot be defeated by gift or devise made by the holder of such property.Similar
observations have been made by the learned author at p. 528 of the book which may be extracted thus:
“According to both the schools, the lawfully wedded wife acquires from the amount of her
marriage a right to the property belonging to the husband at the time and also to any property that may
subsequently be acquired by him, so that she becomes a co-owner of the husband, though her right is
not co-equal to that of the husband, but a subordinate one, owing – to her disability founded on her
status of perpetual or lifelong tutelage or dependence.
This right of the wife to maintenance from her husband is not lost even if the husband renounces
Hinduism.
This right subsists even after the husband’s death although her husband’s right as distinguished
from hers may pass by survivorship or by succession to sons or even to collaterals; these simply step
into the position of her husband, and she is required by Hindu law to live under their guardianship
after her husband’s death.”
Finally, it is pointed out by the learned author at p. 529 of the Book that the right which awoman
acquires to her husband’s property subsists even after his death and observed thus:
“According to both the schools, the right which a woman acquires to her husband’s property
subsists after his death, whether his interest passes by succession or by survivorship to the male issue
190
or any other person, and that this right does not depend upon the widow’s not possessing other means
of support.”
18. Summarizing the nature of the liability of the husband to maintain his wife, the learned author
observed as follows at p. 533 of his Book:
“When the husband is alive, he is personally liable for the wife’s maintenance, which is also a
legal charge upon his property, this charge being a legal incident of her marital co-ownership in all
her husband’s property…. But after his death, his widow’s right of maintenance becomes limited to
his estate, which, when it passes to any other heir, is charged with the same…… There cannot be any
doubt that under Hindu law the wife’s or widow’s maintenance is a legal charge on the husband’s
estate; but the Courts appear to hold, in consequence of the proper materials not being placed before
them, that it is not so by itself, but is merely a claim against the husband’s heir, or an equitable charge
on his state; hence the husband’s debts are held to have priority, unless it is made a charge on the
property by a decree.”
To sum up, therefore, according to Sastri’s Interpretation of Shastric Hindu Law the right to
maintenance possessed by a Hindu widow is a very important right which amounts to a charge on the
property of her husband which continues to the successor of the property and the wife is regarded as a
sort of co-owner of the husband’s property though in a subordinate sense, i.e., the wife has no
dominion over the property.
19. Similarly Mayne in his “Treatise on Hindu Law & Usage”, 11thedn., has traced the history and
origin of the right of maintenance of a Hindu woman which according to him arises from the theory of
an undivided family where the head of the family is bound to maintain the members including their
wives and their children.The learned author observes thus: (p. 813).
“The importance and extent of the right of maintenance necessarily arises from the theory of an
undivided family.The head of such a family is bound to maintain its members, their wives and their
children, to perform their ceremonies and to defray the expenses of their marriages.” Again at p. 816
para 684 the author stresses the fact that the maintenance of a wife is a matter of personal obligation
on the part of the husband and observes thus:
“The maintenance of a wife, aged parents and a minor son is a matter of personal obligation
arising from the very existence of the relationship and quite independent of the possession of any
property, ancestral or acquired…. ‘It is declared by Manu that the aged mother and father, the chaste
wife and an infant child must be maintained even by doing a hundred misdeeds.”
Again it has been observed at page 318 para 687:
“The maintenance of a wife by her husband is, of course, a matter of personal obligation, which
attached from the moment of marriage.”
The author points out at p. 821 paragraph 689 that even after the coming into force of the Hindu
Women’s Right to Property Act, 1937 which confers upon the widow a right of succession in respect
of the non-agricultural property, she is still entitled to maintenance from the family property.The
author observes thus:
“It is cannot, therefore be said that the reason of the right has ceased to exist and the right is
gone.It was accordingly held that the widow of a deceased coparcener is still entitled to maintenance
notwithstanding her right under the Act to a share in the non-agricultural part of the family estate.”
Furthermore, the author cites the passage of Narada cited in Smritichandrika regarding which
there is no dispute.The saying runs thus:
“Whichever wife (patni) becomes a widow and continues virtuous, she is entitled to be provided
with food and raimant.”
At p. 822 para. 690 the author points out that the right of a widow to be maintained is taken over
even by the heirs of the husband who succeed to his property either by inheritance or by
survivorship.In this connection the following observations are made:
“She is entitled to be maintained where her husband’s separate property is taken by his male
issue.Where, at the time of his death, he was a coparcener she is entitled to maintenance as against
those who take her husband’s share by survivorship.”
The Hindu Law is so zealous in guarding the interests of Hindu women that the obligation for
maintaining the Hindu woman falls even on the King when he takes the estate by escheat or by
forfeiture.
191
20. Similarly Mulla in his book “Hindu Law”, 14thedn., describes the incidents and characteristics of
Hindu wife’s right to maintenance and observes thus at p. 597:
“A wife is entitled to be maintained by her husband, whether he possesses property or not.When
a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the
obligation of maintaining her in that style.The maintenance of a wife by her husband is a matter of
personal obligation arising from the very existence of the relationship, and quite independent of the
possession by the husband of any property, ancestral or self-acquired.”
We might further mention that the Hindu women’s right to maintenance finally received statutory
recognition and the entire law on the subject was consolidated and codified by the Hindu married
Women’s Right to Separate Maintenance and Residence Act, 1946 – hereinafter to be referred to as
‘the Act of 1946’ – which came into force on April 23, 1946.Thus there appears to be complete
unanimity of the various schools of Hindu Law on the important incidents and indicia of the Hindu
women’s right to maintenance which has now received statutory recognition and which only shows
that the right to maintenance though not an indefeasible right to property is undoubtedly a pre-existing
right. We shall now refer to some of the authorities which have dealt with this aspect of the matter.
21. In Narayan Rao Ramchandra Pant v. Ramabai, (1878) 6 Ind App 114 (PC) the Judicial
Committee pointed out that the widow’s right to maintenance arises from the common law which
developed from time to time.Justice West of the Bombay High Court appears to have entered into a
very elaborate discussion of the entire law on the subject in Lakshman Ramchandra v. Satyabhambai,
(1877) ILR 2 Bom 494 and observed as follows:
“These several authorities, no doubt afford in combination, a strong support to the proposition
that a widow’s maintenance, especially as against the sons, is a charge on the estate, a right in re in the
fullest sense adhering to the property, into whatever hands it may pass.”
These observations were reiterated in a later case in Narbadabai v. Mahadao Narayan, (1880)
ILR 5 Born 99. The observations of Wet, J., in Lakshman Ramchandra Joshi’s case were fully
approved by the Judicial Committee in Mst. Dan Kuer v. Mst. Sarla Devi, 73 Ind App 208 : (AIR
1947 PC 8) where it was observed:
“But, apart from this circumstance, the judgment of West J., whose dissertations on Hindu Law
must always command great esteem, contains an exposition of the law on this point, and the case is
therefore rightly regarded as a leading authority on the question.In the course of his judgment that
learned Judge quotes with approval the remarks of Phear J., in Srimati Bhagabati v. KanailalMitter.
91872) 8 being LR 225 – that “as against one who has taken the property as heir, the widow has a
right to have a proper sum for her maintenance ascertained and made a charge on the property in his
hands.She may also, doubtless, follow the property for this purpose into the hands of anyone, who
takes it as a volunteer, or with notice of her having set up a claim for maintenance against the heir’
and that “when the property passes into the hands of a bona fide purchaser without notice, it cannot be
affected by anything short of an already existing proprietary right, it cannot be subject to that which is
not already a specific charge, or which does not contain all the elements necessary for its ripening into
a specific charge”.
“The true rule of Hindu law in such matters would appear to be as follows:-Two obligations
confront a joint Hindu family. (1) The obligation to pay the debts (for instance, of the father) binding
on the family, and (2) the moral obligation to provide maintenance to the widows of the family.The
latter obligation would, under certain circumstances, ripen intoa legal obligation, as, for instance,
when a charge is created on specific property of the family either by agreement or a decree of the
court: that so long as neither of these two obligations has taken the form of a charge on the family
property, the obligation to pay the binding debts will have precedence(as, for instance, in the course of
the administration of the estate) over mere claims of a female member’s maintenance but, if either of
these two obligations assumes the shape of a charge, it would take precedence over the other”.
In PratapmullAgarwalla v. Dhanabati Bibi, 63 Ind App 33: (AIR 1936 PC 20) the Judicial
Committee pointed out that while a mother may not be the owner of her share until partition is made
and has no pre-existing right with regard to the share in the property, but she has a preexisting right
for maintenance.This Court also has made similar observations in a large number of cases regarding
the nature and extent of the Hindu women’s right to maintenance.In (1969) 3 SCR 789: (AIR 1969 SC
1118) this Court, while dealing with a situation where a widow claimed the right of maintenance but
192
refused to hand over possession of the property until she secured her proper maintenance observed as
follows:
“It cannot be disputed that the appellant who is the widow of a predeceased son of Jangi Jogi was
entitled to receive maintenance so long as she did not remarry out of the estate of her father-in-
law.Although her claim for maintenance was not a charge upon the estate until it had been fixed and
specifically charged thereupon her right was not liable to be defeated except by transfer to a bona fide
purchaser for value without notice of a claim or even with notice of a claim unless the transfer was
made with the intention of defeating her right.The courts in India have taken the view that where a
widow is in possession of a specific property for the purpose of her maintenance a purchaser buying
with notice of her claim is not entitled to possession of that property without first securing proper
maintenance for her: (vide Rachawa v. Shivayagoappa, (1894) ILR 18 Bom 679)… In the present
case it is difficult to understand how the appellant could be deprived of the possession of properties by
a trespasser.Moreover, she was presumably in possession of these properties in lieu of her right of
maintenance and could not be deprived of them even by Jugli Bai without first securing proper
maintenance for her out of the aforesaid properties.”
In ShepDyal v. Judoonath, (1868) 9 South WR 61 the Calcutta High Court stressed the fact that
although the widow may not be the owner of a share but she had a pre-existing right of maintenance.
22. Elucidating the nature and extent of a right of a Hindu wife to maintenance, the Calcutta High
Court pointed out in Srinath Das v. Probadh Chunder Das. (1910) 11 Cal LJ 580 that the right of
maintenance is really identified with the husband’s proprietary right though of a subordinate nature.
23. In NamanginiDasi v. Kedarnath Kundu Chowdhury, (1889) U.R. 16 Cal 758 (PC) the Privy
Council held that if the estate remained joint and undivided the maintenance of the mother remained a
charge of the whole estate and that any share that the widow took in the property which was equal to
the share of a son was really in lieu of maintenance for which the estate was liable.
24. The position has been very succinctly stated and meticulously analyzed by a decision of the
Madras High Court in K.V. Thangavelu v. The Court of Wards, Madras, (1946) 2 Mad LJ 143: (AIR
1947 Mad 38) where, dealing with the entire history of the matter and relying on various original texts
of the Hindu jurists, the Madras High Court pointed out that a cogent ground for preferring the
widow’s claim is to be found in her qualified or subordinate co-ownership in the husband’s property
declared by the Mitakshara.The Court referred to verse 52 of Vyavaharadhava (Chapter II) where the
Mitakshara refers to Apestamba'’ Dharmasutra as follows:
“From marriage arises also jointness (Sahatwam) in the holding of property
(dravyaparagraphestiu).”
25. In an earlier case Sarojinidevi v. Subrahmanyam, ILR (1945) : Mad 61: (AIR 1944 Mad 401) the
Madras high Court held that even after the coming into force of the Hindu Women’s Right to Property
Act, 1937, which did not apply to agricultural lands, the right of the Hindu widow to maintenance
stood intact and the widow was entitled to maintenance notwithstanding her right under the Act to a
share in the non-agricultural part of the family estate.
To the same effect is an earlier decision of the Madras High Court in Jayanti Subbiah v.
AlameluMangamma, (1904) ILR 27 Mad 45 where the High Court pointed out that under the Hindu
Law the maintenance of a wife by her husband is a matter of personal obligation arising from the very
existence of her relationship and quite independent of the possession by the husband of any property
ancestral or self-acquired.We’ fully agree with this exposition of the law which is supported by a large
number of authorities as discussed above.
26. In Vellawa v. Bhimangavda, (1894) ILR 18 Bom 452 the Bombay High Court was of the view that
even the heir of the husband’s property could not be allowed to recover possession from the widow
without first making proper arrangement for her maintenance.This case was approved by this Court in
Rani Bai’s case (AIR 1969 SC 1118) (supra).
27. Thus on a careful consideration and detailed analysis of the authorities mentioned above and the
Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidence
and characteristics of a Hindu woman’s right to maintenance:
(1) That a Hindu woman’s right to maintenance is a personal obligation so far as the husband is
concerned, and it is his duty to maintain her even if he has no property.If the husband has
property, then the right of the widow to maintenance becomes an equitable charge on his
193
property and any person who succeeds to the property carries with it the legal obligation to
maintain the widow;
(2) Though the widow’s right to maintenance is not a right to property but it is undoubtedly a pre-
existing right in property, i.e., it is a jus and rem not jus in rem and it can be enforced by the
widow who can get a charge created for her maintenance on the property either by an
agreement or by obtaining a decree from the civil court;
(3) That the right of maintenance is a matter of moment and is of such importance that even if the
joint property is sold and the purchaser ha notice of the widow’s right to maintenance, the
purchaser is legally bound to provide for her maintenance;
(4) That the right to maintenance is undoubtedly a pre-existing right which existed in the Hindu
Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-
existing right:
(5) That the right to maintenance flows from the social and temporal relationship between the
husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of
her husband, though her co-ownership is of a subordinate nature; and
(6) That where a Hindu widow is in possession of the property of her husband, she is entitled to
retain the possession in lieu of her maintenance unless the person who succeeds to property or
purchases the same is in a position to make due arrangements for her maintenance.
28. With this preface regarding a Hindu woman’s right to maintenance and the necessary
concomitants and incidents of those rights, we now proceed to determine the question of law that
arises for consideration in this appeal.Before taking up that question, I might trace the historical
growth of the legislation introducing slow and gradual changes in the Shastric Hindu law from time to
time.The exact origin of Hindu Law is steeped and shrouded in antiquity and therefore, it is not
possible to determine the ethics or justification for assigning a somewhat subordinate position to a
Hindu woman in matters of inheritance, marriage and the nature of the limited interest which she took
even after inheriting her husband’s property.It is also strange that the Hindu Law made no provision
for divorce at all.This may be due to the fact that during the time of Manu and Yajnavalkya the
structure of the Hindu society was quite different and there being no social problem of the magnitude
that we have today, it was not considered necessary to break up the integrity and solidarity of a Hindu
family by allowing ownership rights to the Hindu females.Another object may have been to retain the
family in order to consolidate the gains which a particular family may have made.However, there are
matters of speculation.But one thing is clear, namely, that the Hindu jurists were very particular in
making stringent provisions safeguarding the maintenance of the Hindu females either by the husband
or even by his heirs after his death.Perhaps they thought that the property which a widow may receive
in lieu of maintenance or the expenses which may be incurred for her maintenance would be a good
substitute for the share which she might inherit in her husband’s property.Nevertheless, the
Legislature appears to have stepped in from time to time to soften the rigors of the personal law of
Hindus by adding new heirs, conferring new rights on Hindu females and making express provisions
for adoption, maintenance etc.It appears that the question of conferring absolute interest n the Hindu
female had engaged the attention of the Legislature ever since 1941 but the idea took a tangible shape
only in 1954 when the Hindu Succession Bill was introduced and eventually passed in 1956.This Bill
was preceded by a Hindu Code Committee headed by Mr. B. N. Rau who had made a number of
recommendations which formed the basis of the 1956 Act.
29. After the attainment of independence, the entire perspective changed, the nature of old human
values assumed a new complexion and the need for emancipation of womanhood from feudal
bondage became all the more imperative.Under the strain and stress of socio-economic conditions and
a continuous agitation by the female Hindus for enlargement of their rights a new look to the rights of
women as provided by the ShastricHindu Law had to be given.In pursuance of these social pressures
it was necessary to set up a new social order where the women should be given a place of honour and
equality with the male sex in every other respect.This was the prime need of the hour and the temper
of the times dictated the imperative necessity of making revolutionary changesin the Hindu Law in
order to abolish the invidious distinction in matters of inheritance between a male and a
female.Similarly, it was realized that there should be express provision for divorce on certain
specified grounds in as much as the absence of such a provision had perpetrated a serious injustice to
194
the Hindu females for a long time.It seems to me that it was with this object in view that the
Legislature of our free country thought it as its primary duty to bring forth legislation to remove the
dangerous anomalies appearing in the Hindu Law.Even during the British times, there was certain
legislations modifying certain provisions of the Hindu Law, e.g., the Hindu Law Inheritance Act
which added a few more heirs including some females; the Hindu Women’s Right to Property Act,
1937, which provided that on partition a widow would be entitled to the same share as the sons in the
property of her husband. The Act of 1937, while giving a share to the wife on partition had not
disturbed her right to claim maintenance which was preserved intact and although she was not
permitted to sue for partition she was undoubtedly entitled to sue for maintenance without having
recourse to the remedy of partition.After independence the Parliament passed the Hindu Minority and
Guardianship Act, 1956 the Hindu Adoptions and Maintenance Act, 1956; the Hindu Marriage Act,
1955 which regulated the law of marriage and divorce and ultimately the Hindu Succession Act, 1956
which provided for intestate succession. The Hindu Succession Act, 1956 which provided for intestate
succession.The Hindu Succession Act, 1956 was therefore, undoubtedly a piece of social legislation
which fulfilled a long felt need of the nation and was widely acclaimed by the entire people would
appear from the debates which preceded the passing of the Act.
30. It is in the light of these circumstances that we have no to interpret the provisions of Section 14 (1)
and (2) of the Act of 1956. Section 14 of the 1956 Act runs thus:
“14. (1) Any property possessed by a female Hindu, whether acquired before or after the
Explanation – In this sub-section, “property” includes both movable and immovable property
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way f gift or
under a will or any other instrument or under a decree or order of a civil court or under an award
This Court has interpreted the scope and ambit of Section 14 (1) and the Explanation thereto on
several occasions and has pointed out that the object of the legislation was to make revolutionary and
far-reaching changes in the entire structure of the Hindu society.The word “possessed” used in
Section 14 (1) has also been interpreted by this Court and it ha been held that the word has been used
in a very wide sense so as to include the state of owning or having the property in one’s power and it
is not necessary for the application of Section 14(1) that a Hindu woman should be in actual or
physical possession of the property.It is sufficient if she has a right in the property and the aid
property is in her power or domain.InS.S. Munnalalv. S.S. Rajkumar, (19620 Supp 3 SCR 418: (AIR
1962 SC 1493) it was held by this Court that the interest which a widow got by declaration of her hare
under a preliminary decree would fall within the ambit of Section 14 (1) and even though the widow
did not get actual possession of the property until a final decree is passed she would in law be deemed
to be in possession of the property.In that case the High Court had held that mere declaration of the
share of the widow passed only an inchoate interest to her and she never came to possess the share
within the meaning of Section 14 of the Act and, therefore, the property remained joint family
‘property.This Court reversed the judgment of the High Court holding that once a preliminary decree
was passed in favour of the widow granting her a share in the property she must be deemed to be in
possession of the property in question.Their Lordships emphasized that the words “possessed by” use
dinSection 14(1) clearly indicated that such a situation was envisaged by the Legislature.While
interpreting the provisions of Section 14 the Court also pointed out that the 1956 Act was a codifying
enactment which had made far-reaching changes in the structure of the Hindu Society and object was
to sweep away traditional limitations placed on the rights of the Hindu Women.In this connection, the
Court observed as follows:
“The Act is a codifying enactment, and ha made far-reaching changes in the structure of the
Hindu Law of inheritance and succession. The Act confers upon Hindu females full rights of
195
inheritance, and sweeps away the traditional limitations on her powers of dispositions which were
regarded under the Hindu Law as inherent in her estate….. Normally a right declared in an estate by a
preliminary decree would be regarded as property,and there is nothing in the context in which S.14
occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in
relation to the estate of a joint family in favour of a Hindu Widow is not property within the meaning
of S.14.In the light of the scheme of the Act and its avowed purpose it would be difficult, without
doing violence to the language used in the enactment, to assume, that a right declared in property in
favour of a person under a decree for partition is not a right to property.If under a preliminary decree
the right in favour of a Hindu male be regarded as property, the right declared in favour of a Hindu
female must also be regarded as property.
“By Section 14 (1) the Legislature sought to convert the interest of a Hindu female which under
the Shastric Hindu law would have been regarded as a limited interest into an absolute interest and by
the explanation thereto gave to the expression “property” the widest connotation.
The expression includes property acquired by a Hindu female by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a
relative or not, before at or after her marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever. By Section 14(1) manifestly it is intended to convert
the interest which a Hindu female has in property however restricted the nature of that interest under
the Sastric Hindu law may he into absolute estate.
31. The matter was again considered by this Court in Erarama v. Verrupanna [1966] 2 SCR 626
where it was held that before a widow can get absolute interest under Section 14(1) she must have
some vestige of title, i. e., her possession must be under some title or right and not be that of a rank
trespasser. In this connection the Court observed as follows:
The property possessed by a female Hindu, as contemplated in the section, is clearly property to
which she has acquired some kind of title whether before or after the commencement of the Act. It
may be noticed that the Explanation to Section 14(1) sets out the various modes of acquisition of the
property by a female Hindu and indicates that the section applies only to property to which the female
Hindu has acquired some kind of title, however, restricted the nature of her interest may be.... It does
not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title.
It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a
female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of
Section 14(1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the
property of the last male holder on the date of the commencement of the Act when she is only a
trespasser without any right to property.
32. In Mangal Singh v. Smt. Rattno[1967] 3 SCR 454 a widow came into possession of her husband's
property in 1917 and continued to be in possession of the same till 1954 when she was dispossessed by
a collateral of her husband under the orders of the Revenue authorities. She filed a suit for recovery of
possession and during the pendency of the suit the Act of 1956 came into force. This Court upholding
the -judgment of the High Court held that the dispossession of the widow being illegal, she must be
deemed to be, in the eye of law, to continue in possession of the properties and acquired an absolute
interest with the coming into force of the Act of 1956. It was not a case where a Hindu female had
parted with her right so as to place herself in a position where she could in no manner exercise her
rights in that property any longer when the Act came into force. This Court observed as follows:
It is significant that the Legislature begins Section 14(1) with the words "any property possessed
by a female Hindu" and not "any property in possession of a female Hindu". If the expression used had
been "in possession of instead of "possessed by", the proper interpretation would probably have been
to hold that, in order to apply this provision, the property must be such as is either in actual possession
of the female Hindu or in her constructive possession. The constructive possession may be through a
lessee, mortgage, licensee, etc. The use of the expression "possessed by" instead of the expression "in
possession of", in our opinion, was intended to enlarge the meaning of this expression. It is commonly
known in English language that a property is said to be possessed by a person, if he is its owner, even
though he may, for the time being, be out of actual possession or even constructive possession.
It appears to us that the expression used in Section 14(1) of the Act was intended to cover cases of
possession in law also where lands may have descended to a female Hindu and she has not actually
196
entered into them. It would of course, cover the other cases of actual or constructive possession. On
the language of Section 14(1), therefore, we hold that this provision will become applicable to any
property which is owned by a female Hindu, even though she is not in actual, physical or constructive
possession. On the language of Section 14(1), therefore, we hold that this provision will become
applicable to any property which is owned by a female Hindu, even though she is not in actual,
physical or constructive possession of that property.
33. Again, while referring to an earlier case, namely, Eramma v. Verrupanna1966] 2 SCR 626 (supra)
the Court clarified the position thus:
This case also, thus, clarifies that the expression "possessed by" is, not intended to apply to a case of
mere possession without title, and that the legislature intended this provision for cases where the
Hindu female possesses the right of ownership of the property in question. Even mere physical
possession of the property without the right of ownership will not attract the provisions of this section.
This case, also, thus, supports our view that the expression "possessed by" was used in the sense of
connoting state of ownership and, while the Hindu female possesses the rights of ownership, she
would become full owner if the other conditions mentioned in the section are fulfilled. The section
will, however, not apply at all to cases where the Hindu female may have parted with her rights so as
to place herself in a position where she could, in no manner, exercise her rights of ownership in that
property any longer.
34. In Sukhram v. Gauri Shanker[1968] 1 SCR 476 the facts were as follows:
Hukam Singh and Sukh Ram were two brothers. Chidda, the second appellant was the son of
Sukh Ram and thus Chidda, Hukam Singh and Sukh Ram were members of a joint Hindu family
governed by the Benares School of Mitakshara Law. Hukam Singh died in 1952 leaving behind his
widow Krishna Devi. On December 15, 1956, Krishna Devi sold half share of the house belonging to
the joint family. This sale was challenged by the other members of the joint family on the ground that
Krishna Devi had merely a life interest. The question raised was whether Krishna Devi acquired en
absolute interest in the properties after coming into force of the Hindu Succession Act, 1956. It was
argued before this Court that according to the Benares School, a male coparcener was not entitled to
alienate even for value his undivided interest in the coparcenary without the consent of other
coparceners and, therefore, Krishna Devi could not have higher rights than what her husband
possessed. This Court, however, held that in view of the express words of Section 14 of the 1956 Act,
once the widow was possessed of property before or after the commencement of the Act, she held it as
full owner and not as a limited owner and, therefore, any restriction placed by Shastric Hindu Law was
wiped out by the legislative intent as expressed in the Act of 1956. The Court observed thus:
But the words of Section 14 of the Hindu Succession Act are express and explicit: thereby a
female Hindu possessed of property whether acquired before or after the commencement of the Act
holds it as full owner and not as a limited owner. The interest to which Krishna Devi became entitled
on the death of her husband under Section 3(2) of the Hindu Women’s Right to Property Act, 1937, in
the property of the joint family is indisputably her "property" within the meaning of Section 14 of Act
30 of 1956, and when she became "full owner" of that property she acquired a right unlimited in point
of user and duration and uninhibited in point of disposition.
This case indirectly supports the view that if the intention of the legislature was to confer absolute
interest on the widow, no limitation can be spelt out either from the old Shastric law or otherwise
which may be allowed to defeat the intention. This Court went to the extent of holding that the words
in Section 14(1) are so express and explicit that the widow acquired a right unlimited in point of user,
though a male member governed by the Benares School had no power of alienation without the
consent of other coparceners. Under the Act the female had higher powers than the male because the
words of the statute did not contain any limitation at all. On a parity of reasoning, therefore, where
once a property is given to the widow in lieu of maintenance and she enters into possession of that
property, no amount of restriction contained in the document can prevent her from acquiring absolute
interest in the property because the contractual restriction cannot be higher than the old Hindu Shastric
Law or the express words of the Act of 1956.
35. In Badri Pershad v. Smt. Kanso Devi[1970] 2 SCR 95 the propositus died in 1947 leaving behind
five sons and a widow. Soon after his death disputes arose between the parties and the matter was
referred to an arbitrator in 1950. The arbitrator in his award allotted shares to the parties wherein it
197
was stated that the widow would only have widow's estate in those properties. While the widow was in
possession of the properties, the Act of 1956 came into force and the question arose whether or not she
became full owner of the property or she only had a restricted interest as provided in the grant,
namely, the award. This Court held that although the award had given a restricted estate, but this was
only a narration of the state of law as it existed when the award was made. As the widow, however,
inherited the property under the Hindu Women’s Right to Property Act, her interest became absolute
with the passing of the Act of 1956 and she squarely fell within the provisions of Section 14(1) of the
Act. It was further held that the mere fact that the partition was by means of an award would not bring
the matter within Section 14(2) of the Act, because the interest given to the widow was on the basis of
a pre-existing right and not a new grant for the first time. This Court observed as follows:
The word "acquired" in Sub-section (1) has also to be given the widest possible meaning. This
would be so because of the language of the Explanation which makes Sub-section (1) applicable to
acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of
maintenance or by gift or by a female's own skill or exertion or by purchase or prescription or in any
manner whatsoever. Where at the commencement of the Act a female Hindu has a share in joint
properties which are later on partitioned by metes and bounds and she gets possession of the properties
allotted to her there can be no manner of doubt that she is not only possessed of that property at the
time of the coming into force of the Act but has also acquired the same before its commencement.
This Court relied upon two earlier decisions: viz., S. S Munnalal's case AIR1962SC1493 and
Sukhram's case [1968]1SCR476 (supra). This case appears to be nearest to the point which falls for
determination in this appeal, though it does not cover the points argued before us directly.
36. Lastly our attention was drawn to an unreported decision of this Court in Nirmal Chand v. Vidya
Wanti (dead) by her legal representatives C. A. No. 609 of 1965 decided on Jan. 21, 1969 (SC) in
which case Amin Chand and Lakhmi Chand were the owners of agricultural and non-agricultural
properties. The properties were partitioned in the year 1944 and Lakhmi Chand died leaving behind
him the appellant and his second wife Subhrai Bai and his daughter by this wife. There was a regular
partition between Amin Chand and Subhrai Bai by a registered document dated December 3, 1945
under which a portion of the property was allotted to Subhrai Bai and it was provided in the document
that Subhrai Bai would be entitled only to the user of the land and she will have no right to alienate it
in any manner but will have only life interest. Later, Subhrai Bai bequeathed the property in 1957 to
her daughter Vidya Wanti. Subhrai Bai died and Vidya Wanti's name was mutated in the papers after
coming into force of the Act of 1956. The point raised before the High Court was that as Subhrai Bai
had been given only a limited interest in the property she had no power to bequeath the property to her
daughter as her case was not covered by Section 14(1) but fell under Section 14(2) of the Act. This
Court pointed out that at the time when the property was allotted to Subhrai Bai, the Hindu Succession
Act had not come into force and according to the state of Hindu Law as it then prevailed Subhrai Bai
was undoubtedly entitled only to a limited interest. There was a restriction in the partition deed that
Subhrai Bai would enjoy usufruct of the property only and shall not be entitled to make any alienation.
It was not a restriction as such but mere statement of law as it then prevailed. Such a restriction,
therefore, would not bring the case of Subhrai Bai under Section 14(2) of the Act and, therefore, she
would acquire an absolute interest after the passing of the Act of 1956 and was, therefore, competent
to execute the will in favour of her daughter. This Court observed as follows:
If Subhrai Bai was entitled to a share in her husband's properties, then the suit properties must be
held to have been allotted to her in accordance with law. As the law then stood she had only a life
interest in the properties taken by her. Therefore, the recital in the deed in question that she would
have only a life interest in the properties allotted to her share is merely recording the true legal
position. Hence it is not possible to conclude that the properties in question were given to her subject
to the condition of her enjoying it for her lifetime. Therefore the trial Court as well as the first
Appellate Court were right in holding that the facts of the case do not fall within Section 14(2) of the
Hindu Succession Act, 1956.
37. In the light of the above decisions of this Court the following principles appear to be clear:
(1) That the provisions of Section 14 of the 1956 Act must be liberally construed in order to
advance the object of the Act which is to enlarge the limited interest possessed by a Hindu
widow which was in consonance with the changing temper of the times;
198
(2) It is manifestly clear that sub-Section (2) of Section 14 does not refer to any transfer which
merely recognises a pre-existing right without creating or conferring a new title on the widow.
This was clearly held by this Court in Badri Pershad's case [1970]2SCR95 (supra).
(3) That the Act of 1956 has made revolutionary and far-reaching changes in the Hindu Society
and every attempt should be made to carry out the spirit of the Act which has undoubtedly
supplied a long felt need and tried to do away with the invidious distinction between a Hindu
male and female in matters of interstate succession;
(4) That Sub-section (2) of Section 14 is merely a proviso to Sub-section (1) of Section 14 and has
to be interpreted as a proviso and not in a manner so as to destroy the effect of the main
provision.
38. We have given our anxious consideration to the language of Section 14(1) and (2) and we feel that
on a proper interpretation of Section 14(2) there does not appear to be any real inconsistency between
Section 14(1), the explanation thereto and Sub-section (2). To begin with, Section 14(1) does not limit
the enlargement of the estate of a Hindu widow to any particular interest in the property. On the other
hand the explanation to Section 14(1) brings out the real purpose of Section 14(1) by giving an
exhaustive category of cases where principle of Section 14(1) has to operate, i.e., to cases where a
Hindu female would get an absolute interest. The argument of the learned Counsel for the appellant is
that as the right of maintenance was a pre-existing right, any instrument or transaction by which the
property was allotted to the appellant would not be a new transaction so as to create a new title but
would be only in recognition of a pre-existing right, namely, the right of maintenance. On the other
hand, Mr. Natesan appearing for the respondents submitted that the object of the proviso was to
validate rather than to disturb the past transactions which had placed certain restrictions or curbs on
the power of Hindu female and as the language of the proviso is very wide there is no warrant for not
applying it to cases where pre-existing rights are concerned. In the alternative, Mr. Natesan argued that
the Hindu Women’s right to maintenance is not a legal right unless an actual charge is created in
respect of the property and is, therefore, not enforceable at law. It is, therefore, not correct to describe
a claim of a Hindu female's right to maintenance simplicities as a pre-existing right because all the
necessary indicia of a legal right are wanting.
39. After considering various aspects of the matter we are inclined to agree with the contentions raised
by Mr. Krishna Murthy Iyer appearing for the appellant. In the first place, the appellant's contention
appears to be more in consonance with the spirit and object of the statute itself. Secondly, we have
already pointed out that the claim of a Hindu female for maintenance is undoubtedly a pre-existing
right and this has been so held not only by various Courts in India but also by the Judicial Committee
of the Privy Council and by this Court. It seems to us, and it has been held as discussed above, that the
claim or the right to maintenance possessed by a Hindu female is really a substitute for a share which
she would have got in the property of her husband. This being the position, where a Hindu female who
gets a share in her husband's property acquires an absolute interest by virtue of Section 14(1) of the
Act, could it be intended by the legislature that in the same circumstances a Hindu female who could
not get a share but has a right of maintenance would not get an absolute interest? In other words, the
position would be that the appellant would suffer because her husband had died prior to the Act of
1937. If the husband of the appellant had died after 1937, there could be no dispute that the appellant
would have got an absolute interest, because she was entitled to her share under the provisions of the
Hindu Womens Right to Property Act, 1937. Furthermore, it may be necessary to study the language
in which the Explanation to Section 14(1) and Sub-section (2) of Section 14 are couched. It would be
seen that while the Explanation to Section 14(1) clearly and expressly mentioned “property acquired
by a female Hindu” at a partition or in lieu of maintenance or arrears of main tenancy, there is no
reference in Sub-section (2) at all to this particular mode of acquisition by a Hindu female which
clearly indicates that the intention of the Parliament was to exclude the application of Sub-section (2)
to cases where the property has been acquired by a Hindu female either at a partition or in lieu of
maintenance etc. The Explanation is an inclusive definition and if the Parliament intended that
everything that is mentioned in the Explanation should be covered by Sub-section (2) it should have
expressly so stated in Sub-section (2). Again the language of Sub-section (2) clearly shows that it
would apply only to such transactions which are absolutely independent in nature and which are not in
recognition of or in lieu of pre-existing rights. It appears from the Parliamentary Debates that when the
199
Hindu Succession Bill, 1954, was referred to a Joint Committee by the Rajya Sabha, in
Section 14(2) which was Clause 16(2) of the Draft Bill of the Joint Committee, the words mentioned
were only gift or will. Thus the intention of the Parliament was to confine Sub-section (2) only to two
transactions, namely a gift or a will, which clearly would not include property received by a Hindu
female in lieu of maintenance or at a partition. Subsequently, however, an amendment was proposed
by one of the members for adding other categories, namely, an instrument, decree, order or award
which was accepted by the Government. This would show that the various terms, viz., gift, will,
instrument, decree, order or award mentioned in Section 14(2) would have to be read ejusdem generis
so as refer to transactions where right is created for the first time in favour of the Hindu female. The
intention of the Parliament in adding the other categories to Sub-section (2) was merely to ensure that
any transaction under which a Hindu female gets a new or independent title under any of the modes
mentioned in Section 14(2), namely, gift, will, decree, order, award or an instrument which prescribes
a restricted estate would not be disturbed and would continue to occupy the field covered by
Section 14(2). This would be the position even if a Hindu male was to get the property by any of the
modes mentioned in. Section 14(2); he would also get only a restricted interest and, therefore, the
Parliament thought that there was no warrant for making any distinction between a male or a female in
this regard and both were therefore, sought to be equated.
40. Finally, we cannot overlook the scope and extent of a proviso. There can be no doubt that Sub-
section (2) of Section 14 is clearly a proviso to Section 14(1)and this has been so held by this Court in
Badri Pershad's case [1970]2SCR95 (supra). It is well settled that a provision in the nature of a
proviso merely carves out an exception to the main provision and cannot be interpreted in a manner so
as to destroy the effect of the main provision or to render the same nugatory. If we accept the
argument of the respondents that Sub-section (2) to Section 14 would include even a property which
has been acquired by a Hindu female at partition or in lieu of maintenance then a substantial part of the
Explanation would be completely set at naught which could never be the intention of the proviso. Thus
we are clearly of the opinion that Sub-section (2) of Section 14 of the proviso should be interpreted in
such a way so as not to substantially erode Section 14(1) or the Explanation thereto. In the present
case we feel that the proviso has carved out completely a separate field and before it can apply three
conditions must exist:
(i) that the property must have been acquired by way of gift, will instrument, decree, order of the
Court or by an award;
(ii) that any of these documents executed in favour of a Hindu female must prescribe a restricted
estate in such property; and
(iii) that the instrument must create or confer a new right, title or interest on the Hindu female and
not merely recognise or give effect to a pre-existing right which the female, Hindu already
possessed.
Where any of these documents are executed but no restricted estate is prescribed, Sub-section (2)
will have no application. Similarly where these instruments do not confer any new title for the first
time on the female Hindu, Section 14(2) would have no application. It seems to me that
Section 14(2) is a salutary provision which has been incorporated by the Parliament for historical
reasons in order to maintain the link between the Shastric Hindu law and the Hindu Law which was
sought to be changed by recent legislation, so that where a female Hindu became possessed of
property not in virtue of any pre-existing right but otherwise, and the grantor chose to impose certain
conditions on the grantee, the Legislature did not want to interfere with such a transaction by
obliterating or setting at naught the conditions imposed.
41. There was some argument at the bar regarding the use of the term "limited owner" in
Section 14(1) and "restricted estate" in Section 14(2). Not much, however, turns upon this. I think that
the Parliament advisedly used the expression "restricted estate" in Section 14(2), because while a
limited interest would indicate only a life estate, a restricted estate is much wider in its import. For
instance, suppose a donor while giving the property to a Hindu female, inserts a condition that she will
have to pay Rs. 200/- to donor or to one of his relatives till a particular time, this would not come
within the term "limited interest", but it would be included by the term "restricted estate". That is the
only justification for the difference in the terminology of Section 14(1) and (2) of the Act.
200
42. Having discussed the various aspects of Section 14(1) and (2) we shall now deal with the
authorities cited before us by counsel for the parties which are by no means consistent. We will first
deal with the authorities which took the view that we have taken in this case. In this connection the
sheet-anchor of the argument of the learned Counsel for the appellant is the decision of the Bombay
High Court in B. B. Patil v. Gangabai,AIR1972Bom16 and that of the counsel for the respondents is
the decision of the Madras High Court in Gurunadham v. Sundrarajulu,AIR1967Mad429 and
Santhanam v. Subramania, ILR (1967) 1 Mad 68. The latter case was affirmed in appeal by the
Division Bench of the Madras High Court in S. KachapalavaGurukkal v. V.
SubramaniaGurukkal, AIR 1972 Mad 279 and the aforesaid Division Bench judgment forms the
subject-matter of Civil Appeal No. 135 of 1973 which will be disposed of by us by a separate
judgment.
43. We will now take up the case of the Bombay High Court relied upon by the learned Counsel for
the appellant which, in our opinion, lays down the correct law on the subject. In B. B. Patil
v. Gangabai,AIR1972Bom16 (supra) the facts briefly were that the properties in question were the
self-acquired properties of Devgonda and after his death in 1902 Hira Bai daughter-in-law of
Devgonda (widow of his son Appa, who also died soon thereafter) came into possession of the
properties. Disputes arose between Hira Bai and Nemgonda, the nephew of Devgonda, and the matter
having been referred to the arbitrator he gave his award on October 15, 1903 and a decree in terms of
the award was passed on October 24, 1903. Under the decree in terms of the award 65 acres of land
and one house was allotted to Hira Bai out of which 30 acres were earmarked for the provision of
maintenance and marriage of the three daughters and the rest of the property was ordered to be
retained by Hirabai for life with certain restrictions. After her death these properties were to revert to
Nemgonda. The dispute which was the subject-matter of the appeal before the High Court was
confined to 35 acres of land and the house which was in possession of Hira Bai. Hira Bai continued to
be in possession of these properties right up to February 25, 1967. Meanwhile Nemgonda had died and
his sons’ defendants 2 to 6 claimed the properties. After the death of Hira Bai, the plaintiffs, who were
two out of the three daughters of Hira Bai, filed a suit for possession claiming entire title to the
properties in possession of Hira Bai on the ground that Hira Bai was in possession of the properties as
limited owner at the time of the passing of the Hindu Succession Act, 1956 and so her limited estate
was enlarged into an absolute estate and the plaintiffs were, therefore, entitled to succeed to her
properties in preference to the reversioners. The suit was contested by defendants 2 to 6 mainly on the
ground that as Hira Bai under the compromise was to retain only a life interest in the properties, her
case would be covered by Section 14(2) of the Act and after her death the properties would revert to
the reversioners. The Court held that as Hira Bai was put in possession of the properties in lieu of her
maintenance, Section 14(2) had no application, because the award merely recognised the pre-existing
rights of Hira Bai and did not seek to confer any fresh rights or source of title on Hira Bai. Thus even
though the award did provide that Hira Bai would have a limited interest, Section 14(2) would have no
application and Hira Bai will get an absolute interest after the coming into force of the Hindu
Succession Act, 1956. The Court observed:
The explanation thus, brings under its purview all properties traditionally acquired by a Hindu
female in which merely by reason of the incidents of the Hindu law she has limited ownership. In
other words, Sub-section (1) read with this explanation provides that any property, howsoever
acquired and in possession of a Hindu female after the commencement of the Act shall be held by her
as a full owner in all cases where she formerly held merely limited ownership. As a matter of fact, this
Sub-section proceeds on the basis that there are several categories of properties of which a Hindu
female, under the provisions of the Hindu Law is merely a limited owner By this enactment her rights
are enlarged and wherever under the Hindu Law she would merely obtain limited ownership she
would after the commencement of the Act, obtain full ownership.
There is consensus of judicial opinion with regard to the ambit of sub-section (2) of Section 14 of
the Act. It covers only those cases of grants where the interest in the grantee is created by the grant
itself, or, in other words, where the gift, will, instrument, decree, order or award is the source or origin
of the interest created in the grantee. Where, however, the instruments referred to above are not the
source of interest created but are merely declaratory or definitive of the right to property antecedently
enjoyed by the Hindu female, sub-section (2) has no application; and it matters not if in such
201
instruments it is specifically provided in express terms that the Hindu female had a limited estate or
that the property would revert on her death to the next reversioner, such terms are merely the
reiteration of the incidents of the Hindu Law applicable to the limited estate.Dwelling on the nature
and incidents of the right of the widow to maintenance before the Hindu Women’s Rights to Property
Act, 1937, Palekar J., speaking for the Court described the various characteristics and incidents of the
right of a Hindu female for maintenance (which have already been discussed by us). Finally, the Judge
observed as follows:
It appears to us that in the context of the Hindu widows the right to maintenance conferred under
the Hindu Law is indistinguishable in quality from her right to a share in the family property. That
may well be the reason why the explanation to sub-section (1) of Section 14 of the Act makes the
female allotter of property "in lieu of maintenance" as much a limited owner as when the widow
acquires on "inheritance" or "at a partition". And if in the latter two cases it is conceded that sub-
section (2) does not apply on the ground of antecedent right to the family properties we do not see any
rational justification to exclude a widow who has an equally sufficient claim over the family properties
for her maintenance.
44. Thus the following propositions emerge from a detailed discussion of this case:
(1) that the widow's claim to maintenance is undoubtedly a tangible right though not an absolute
right to property so as to become a fresh source of title. The claim for maintenance can,
however, be made charge on the Joint family properties, and even if the properties are sold
with the notice of the said charge, the sold properties will be burdened with the claim for
maintenance;
(2) that by virtue of the Hindu Women’s Rights to Property Act, 1937 the claim of the widow to
maintenance has been crystallized into a full-fledged right and any property allotted to her in
lieu of maintenance becomes property to which she has a limited interest which by virtue of
the provisions of Act of 1956 is enlarged into an absolute title:
(3) Section 14(2) applies only to cases where grant is not in lieu of maintenance or in recognition
of pre-existing rights but confers a fresh right or title for the first time and while conferring the
said title certain restrictions are placed by the grant or transfer. Where, however, the grant is
merely in recognition or in implementation of a pre-existing right to claim maintenance, the
case falls beyond the purview of Section 14(2) and comes squarely within the explanation to
Section 14(1).
The Court dissented from the contrary view taken by the Orissa and Madras High Courts on this
question. We find that the facts of this case are on all fours with the present appeal, and we are in
complete agreement with the view taken and the reasons given by Palekar, J. Once it is recognised that
right of maintenance is a pre-existing tangible right, it makes no difference whether a Hindu widow
died before or after the enactment of Hindu Women’s Rights to Property Act, 1937.
45. A similar view was taken by an earlier decision of the Andhra Pradesh High Court in
GademReddayya v. Varapula Venkataraju,AIR1965AP66 , where the Court held that the family
settlement was only in recognition of the pre-existing right of the widow to maintenance and,
therefore, was not covered by Section 14(2) of the Act of 1956. In our opinion, this case correctly
states the law on the subject.
46. In Sumeshwar Mishra Swami Nath Tiwari, AIR1970Pat348 the High Court of Patna appears to
have taken the same view, and in our opinion very correctly. The Pittas High Court differed from the
decision of the Madras High Court in ThathaGurunadhanChetti v. Smt. Thatha
NavaneethammaAIR1967Mad429 and in our opinion rightly. We are of the opinion, for the reasons
that we have already given above, that the view of the Madras High Court was not legally correct. A
later decision of the Patna High Court in Lakshmi Devi v. Shankar JhaAIR1974Pat87 has also taken
the same view. We however, fully approve of the view expressed by the Patna High Court and Andhra
Pradesh High Court referred to above.
47. Similarly in H. Venkatagouda v. Hanamangouda, AIR 1972 Mys 286, the Mysore High Court
adopted the view of the Bombay High Court in B. B. Patil v. Gangabai,AIR1972Bom16 (supra) and
dissented from the contrary view taken by the Madras and the Orissa High Courts. In our opinion, this
decision seems to have correctly interpreted the provisions of Section 14(2) of the 1956 Act and has
202
laid down the correct law. The view of the Madras High Court and the Orissa High Court which was
dissented from by the Mysore High Court is, in our opinion, legally erroneous and must be overruled.
48. In Smt. Sharbati Devi v. Hiralal, AIR 1964 Pun 114, the Punjab High Court clearly held that
application of Section 14(2) was limited to only those cases where a female hindu acquired a title for
the first time, for otherwise the property acquired in lieu of maintenance even though conferring a
limited estate fell clearly within the ambit of explanation to Section 14(1) of the Act and would,
therefore, become the absolute property on the widow. Thus the Punjab High Court also fully favours
the view taken by the Bombay, Patna, Mysore, Andhra Pradesh and other High Courts discussed
above and has our full approval. The only distinction in the Punjab case is that here the widow got the
properties after the coming into force of the Hindu Women’s Rights to Property Act, 1937 but that, as
we shall point out hereafter makes no difference with respect to the legal right which a widow has to
maintain herself out of the family property.
49. The Calcutta High Court has also taken the same view in Sasadhar Chandra Dey v. Smt. Tara
Sundari Desi,AIR1962Cal438 which we endorse.
50. In Saraswathi Ammal v. AnanthaShenoi, AIR 1966 Ker 66 the Kerala High Court, after a very
detailed discussion and meticulous analysis of the law on the subject, pointed out that the right of a
widow to maintenance was not a matter of concession but under the Sastric Hindu Law it was an
obligation on the heirs who inherited the properties of the husband to maintain the widow and any
property which the widow got in lieu of maintenance was not one given purely as a matter of
concession, but the widow acquired a right in such property. We fully agree with the view taken by the
Kerala High Court in the aforesaid case.
51. In KunjiThomman v. Meenakshi,AIR1970Ker284 although the Kerala High Court reiterated its
previous view, on the facts of that particular case the High Court held that under the family settlement
the widow did not get any right to maintenance but was conferred a new right Which was not based on
her pre-existing right and on this ground the High Court felt that the widow would not get an absolute
interest in view of the explanation to Section14(1).
52. In Chellammal v. Nellammal, (1971) 1 Mad LJ 439 the facts were almost similar to the facts of the
present case. A single Judge of the Madras High Court held that the case was clearly covered by the
Explanation to Section 14(1) of the Act and the properties given to the widow in lieu of maintenance
became her absolute properties and would not be covered by Section 14(2) of the Act. This decision
appears to have been overruled by a later decision of the same High Court in S. KachapalayaGurukkal
v. V. SubramaniaGurukkal AIR 1972 Mad 279 which is the subject-matter of Civil Appeal No. 126 of
1972 and we shall discuss the Division Bench's decision when we refer to the authorities taking a
contrary view. We find ourselves in complete agreement with the view taken by the single Judge in
Chellammal v. Nellammal (supra), and we overrule the Division Bench decision in S.
KachapalayaGurukkal's case (supra).
53. Thus all the decisions discussed above proceed on the right premises and have correctly
appreciated the nature and incidents of a Hindu woman's right to maintenance. They have also
properly understood the import and applicability of Section 14(2) of the 1956 Act and have laid down
correct law on the subject.
54. We now deal with the authorities taking a contrary view, which in our opinion, does not appear to
be the correct view.
55. In Narayan Patra v. Tara Patrani,AIR1970Ori131 the Orissa High Court, following a decision of
the Andhra Pradesh High Court in G. Kondiah v. G. Subbarayudu, (1968) 2 Andh WR 455, held that
since the widows were given only a restricted estate their case squarely fell within the ambit of
Section 14(2) of the Act and ' their interest would not be enlarged. Reliance was also placed on a
Madras decision in ThathaGurunadham Chetty v. Thatha Navaneethamma,AIR1967Mad429 (supra).
It is obvious that the conclusions arrived at by the High Court are not warranted by the express
principles of Hindu Sastric Law. It is true that a widow's claim for maintenance does not ripen into a
full-fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can
amount to a right to property where it is charged. It cannot be said that where a property is given to a
widow in lieu of maintenance, it is given to her for the first time and not in lieu of a pre-existing right.
The claim to maintenance, as also the right to claim property in order to maintain herself, is an
inherent right conferred by the Hindu Law and therefore. any property given to her in lieu of
203
maintenance is merely in recognition of the claim or right which the widow possessed from before It
cannot be said that such a fight has been conferred on her for the first time by virtue of the document
concerned and before the existence of the document the widow had no vestige of a claim or right at all.
Once it is established that the instrument merely recognised the pre-existing right, the widow would
acquire absolute interest. Secondly, the Explanation to Section 14(1) merely mentions the various
modes by which a widow can acquire a property and the property given in lieu of maintenance is one
of the modes mentioned in the Explanation. Sub-section (2) is merely a proviso to Section 14(1) and it
cannot be interpreted in such a manner as to destroy the very consent of the right conferred on a Hindu
woman under Section14(1). Sub-section (2) is limited only to those cases where by virtue of certain
grant or disposition a right is conferred on the widow for the first time and the said right is restricted
by certain conditions. In other words, even if by a grant or disposition a property is conferred on a
Hindu male under certain conditions, the same are binding on the male. The effect of Sub-section (2)
is merely to equate male and female in respect of grant conferring a restricted estate. In these
circumstances we do not agree with the views expressed by the Orissa High Court.
56. The other High Courts which have taken a contrary view are mainly the Andhra Pradesh.
Allahabad and the Madras High Courts. In an earlier decision of the Patna High Court in Shiva Pujan
Rai. v. Jamuna Missir, ILR (1968) Pat 1118 the High Court seems to rally round the view taken by the
Madras High Court.
57. We shall take up the decisions of the Andhra Pradesh High Court. As already indicated above, the
earlier decision of the Andhra Pradesh High Court in GadamReddayya v. Varapula
VenkatarajuAIR1965AP66 took the same view which was taken later by the Bombay High Court and
held that in a case like the present, a Hindu female would set an absolute interest and her case would
not be covered by Sub-section (2) of Section 14 of the 1956 Act In GopisettiKondaiah v.
GundaSubbaravudu, ILR (1968) A P 621 another Division Bench of the same High Court appears to
have taken a contrary view. Jaganmohan Reddy, C. J., speaking for the Court observed as follows:
In so far as the right of a Hindu woman to maintenance is concerned, it is necessary at this stage
to point out one other basic concept. A Hindu woman has a right to be maintained by her husband or
from her husband's property or Hindu joint family property. But that is merely a right to receive
maintenance out of the properties without in any way conferring on her any right, title or interest
therein. It is not a definite right, but is capable of being made a charge on specific properties by
agreement, decree of Court or award, compromise or otherwise.... But this indefinite right, to be
maintained from out of the properties of a Hindu Joint family, does not, however, create in her a
proprietary right in the property.... But if a restricted estate is given by any such instrument, even if it
be in lieu of maintenance, which is inconsistent with an estate she would get under the Hindu Law.
Then Sub-section (2) of Section 14would operate to give her only a restricted estate.... But if it is the
latter, notwithstanding the fact that it was transferred in lieu of maintenance, if only a restricted estate
was conferred by the instrument, then she would only have the restricted estate.
While we fully agree with the first part of the observations made by the learned Chief Justice, as
he then was that one of the basic concepts of Hindu Law is that a Hindu woman has right to be
maintained by her husband or from her husband's property or the joint family property, we respectfully
disagree with his conclusion that even though this is the legal position yet the right to receive
maintenance does not confer on her any right, title or interest in the property It is true that the claim for
maintenance is not an enforceable right but it is undoubtedly a pre-existing right, even though no
charge is made on the properties which are liable for her maintenance We also do not agree with the
view of the learned Chief Justice that if the property is given to the widow in lieu of maintenance she
will get only a restricted estate. In our opinion, the High Court of Andhra Pradesh has proceeded on
wrong premises. Instead of acknowledging the right of a Hindu woman to maintenance as a right to a
right-or for that matter a pre-existing right and then considering the effect of the subsequent
transactions, the High Court has first presumed that the claim for maintenance is not a tangible right at
all and therefore, the question of a pre-existing right does not arise. This, as we have already pointed
out, is against the consistent view taken by a large number of Courts for a very long period.
Furthermore, this case does not appear to have noticed the previous Division Bench decision in
GedamReddayya's case (supra) taking the contrary view, and on this ground alone the authority of this
case is considerably weakened. At any rate, since we are satisfied that the claim of a Hindu woman for
204
maintenance is a pre-existing right any transaction which is in recognition or declaration of that right
clearly falls beyond the purview of Section 14(2) of the 1956 Act and therefore, this authority does not
lay down the correct law. We, therefore, do not approve of the view taken in this case and overrule the
same.
58. As regards the Madras High Court, the position appears to be almost the same. There also, while a
single Judge took the same view as the Bombay High Court and held that Section 14(2) was not
applicable, the Division Bench of the Court in an appeal against the order of another single Judge took
the contrary view. In S. KachapalayaGurukkal v. V. SubramaniaGurukkal, AIR 1972 Mad 279 the
Court seems to draw an artificial distinction between a claim of a widow for maintenance and a pre-
existing right possessed by her. According to the High Court, while a claim for maintenance
simpliciter was not a right at all the right to get a share in the husband's property under the Hindu
Women’s Rights to Property Act, 1937 was a pre-existing right. The Madras High Court appears to
have fallen into an error by misconceiving the scope and extent of a Hindu woman's right to
maintenance. Secondly, it appears to have interpreted the proviso in such a manner as to destroy the
effect of the main provision, namely, Section 14(1) and the explanation thereto, for which there can be
no warrant in law. The decision of Natesan, J., in Gurunadham v. Sundrarajulu
Chetty,AIR1967Mad429 (supra) which had been affirmed by this judgment also appears to have taken
the same view and had fallen into the same error Furthermore, the view of the learned Judge that on
the interpretation given and the view taken by the Bombay High Court which we have accepted.
Section 14 is intended to override lawful terms in contracts, bargains, bequests or gifts etc. is not
correct, because the scope and area of sub-section (2) of Section 14 is quite separate and defined. Such
a sub-section applies only to such transactions as confer new right, title or interest on the Hindu
females. In such cases the titles created under sub-section (2) are left intact and Section 14(1) does not
interfere with the titles so created under those instruments.
59. Thus, in short, these two decisions suffer from the following legal infirmities: (i) the Madras High
Court has not correctly or properly appreciated the nature and extent of the widow's right to
maintenance; and (ii) the distinction drawn by the Court regarding the share given to the widow under
the Hindu Women’s Rights to Property Act allotted to her before the passing of the Act in lieu of
maintenance is based on artificial grounds. In fact, the Act of 1937 did not legislate anything new. but
merely gave statutory recognition to the old Shastric Hindu Law by consolidating the same and
clarifying the right of the widow which she already possessed in matter of succession under the Hindu
Law This being the position, the Act of 1937 makes no difference so far as the legal status of a widow
in regard to her right to maintenance was concerned. The Act neither took away the right of
maintenance nor conferred the same: (iii) the Court appears to have given an extended meaning to sub-
section (2) of Section 14 of the 1956 Act which has been undoubtedly enlarged so as to set at naught
the express words in the Explanation to sub-section (1) of Section 14 which expressly exclude the
property given to a widow in lieu of maintenance or at a partition from the ambit of sub-section (2). In
other words, such a property, according to the Explanation, is a property in which the widow would
have undoubtedly a limited interest which by operation of law (i.e., force of Section 14(1)) would be
enlarged into an absolute interest if the widow is in possession of the property on the date when the
Act was passed: (iv) similarly the Court failed to notice that sub-section (2) of Section 14 would apply
only where a new right is created for the first time by virtue of a gift, will etc. or the like executed in
favour of the widow in respect of' which she had no prior interest in the property at all For instance, a
daughter is given a limited interest in presence of the widow. Here the daughter not being an heir in
presence of the widow (before the Hindu Succession Act came into force) she had no right or share in
the property, and if she was allotted some property under any instrument, a new and fresh right was
created in her favour for the first time which she never possessed. Such a case would be squarely
covered by Section 14(2) of the Act.
60. In Ram Jag Misir v. Director of Consolidation U.P.,AIR1975All151 the same view has been taken
as the Madras High Court. This case does not discuss the various aspects which have been pointed out
by us and proceeds purely on the basis that as the widow acquired a restrict-ed estate under the
compromise Section 14(2) would at once apply. It has not at all considered the decision of this Court
that a mere description of limited interest in a grant or compromise is not a restriction but may just as
well be merely a statement of the law as it stood when the grant was made. The Court has also not
205
considered the various incidents and characteristics of the widow's right to maintenance under the
Hindu Law.
61. Reliance was also placed by the learned Counsel for the respondents on a Division Bench decision
of the Patna High Court in Shiva Pujan Rai v. Jamuna Missir, ILR (1968) Pat 1118 where the High
Court held that the property Riven to a widow under a compromise in lieu of her maintenance was
covered by sub-section (2) of Section 14. This decision was really based on the peculiar findings of
fact arrived at by the Courts of fact The High Court in the first place held that on the facts there was
nothing to show that the widow acquired any interest independent of the compromise under which she
was given the property. In these circumstances, it may be that the widow was given a fresh or a new
title under the compromise in which case the matter would be clearly covered by Section 14(2) of the
1956 Act. Even if this case be treated as an authority for the proposition that any property allotted to a
widow under a compromise in lieu of maintenance would be covered by Section 14(2) of the Act, then
we dissent from this view, and for the reasons which we have already given we choose to prefer the
view taken by the Patna High Court in later case in Sumeshwar Mishra v. Swami Nath
Tiwari,AIR1970Pat348 (supra) which lays down the correct law on the subject.
62. Reliance was also placed on a Full Bench decision of the Jammu & Kashmir High Court in Ajab
Singh v. Ram Singh, AIR 1959 J & K 92. In this case also the various aspects which we have indicated
and the nature and extent of the Hindu women’s right to maintenance were not considered at all and
the Court proceeded by giving an extended meaning to the provisions of sub-section (2) of
Section 14 which in that case was sub-section (2) of Section 12 of the Jammu & Kashmir Hindu
Succession Act, 1956. It is true that the leading judgment was given by one of us (Fazal Ali, J.,) but I
must confess that the important question of law that has been argued before us in all its comprehensive
aspects was not presented before me in that case and even the counsel for the respondents did not
seriously contend that Sub section (2) of Section 14 was not applicable. For these reasons we are not
in a position to approve of the Full Bench decision of the Jammu and Kashmir High Court in Ajab
Singh's case which is hereby overruled.
63. Thus on a careful scrutiny and analysis of the authorities discussed above, the position seems to be
that the view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore, Punjab, Calcutta
and Kerala to the effect that the widow's claim to maintenance, even though granted to her subject to
certain restrictions, is covered by Section 14(1) and not by sub-section (2) is based on the following
premises!
(1) That the right of a Hindu widow to claim maintenance in undoubtedly a right against property
though not a right to property. Such a right can mature into a full-fledged one if it is charged
on the property either by an agreement or by a decree. Even otherwise, where a family
possesses property, the husband, or in case of his death his heirs are burdened with the
obligation to maintain the widow and, therefore, the widow's claim for maintenance is not an
empty formality but a pre-existing right.
(2) Section 14(2) which is in the nature of a proviso to Section 14(1) cannot be interpreted in a
way so as to destroy the concept and defeat the purpose which is sought to be effectuated by
Section 14(1) in conferring an absolute interest on the Hindu women and in doing away with
what was here to before known as the Hindu women’s estate. The proviso will apply only to
such cases which flow beyond the purview of the Explanation to Section 14(1).
(3) That the proviso would not apply to any grant or transfer in favour of the widow hedged in by
limitation or restrictions, where the grant is merely in recognition or declaration of a pre-
existing right, it will apply only to such a case where a new right which the female did not
possess at all is sought to be conferred on her under certain limitations or exceptions. In fact in
such a case even if a conditional grant is made to a male, he would be bound by the condition
imposed. The proviso wipes out the distinction between a male and a female in this respect.
64. The contrary view taken by the Madras, Orissa, Andhra Pradesh. Allahabad and Jammu &
Kashmir High Courts proceeds on the following grounds:
(1) That a widow's claim to maintenance is merely an inchoate or incomplete right having no
legal status, unless the widow gets a property in lieu of maintenance or unless a charge is created in a
particular property the claim for maintenance cannot be legally enforced. Thus, where under a grant,
compromise, transfer or a decree, a property is allotted to the widow in lieu of maintenance, it is not
206
the recognition of any pre-existing right but it amounts to conferment of a new right for the first time
which in fact did not exist before the said demise. This view is really based on the provisions of the
Hindu Women’s Rights to Property Act, 1937 under which the widow has got the right to get a share
of her son in lieu of partition and even otherwise she is entitled to her share in the joint Hindu family
property on partition. These High Courts, therefore, seem to be of the opinion that in view of the
provisions of the Hindu Women’s Rights to Property Act, the widow in claiming a share in the
property has a pre-examine right which is recognised by law, namely, the Act of 1937. The same,
however, cannot be said of a bare claim to maintenance which has not been recognised as a legal right
and which can mature into a legally enforceable right only under a grant or demise. This view suffers
from a serious fallacy, which is based on a misconception of the true position of a Hindu widow's
claim for maintenance It has been seen from the discussion regarding the widow's claim for
maintenance and her status in family that under the pure Sastric Hindu Law the widow is almost a co-
owner of the properties with her husband and even before the Act of 1937 she was entitled to the share
of a son on the death of her husband after partition according to some schools of Hindu Law. The Act
of 1937 did not introduce any new right but merely gave a statutory recognition to the old Sastric
Hindu Law on the subject. In this respect the Act of 1937 is very different from the Act of 1956, the
latter of which has made a revolutionary change in the Hindu Law and has changed the entire
complexion and concept of Hindu women’s estate. In these circumstances, therefore, if the widow's
claim for maintenance or right to get the share of a son existed before the Act of 1937, it is futile to
dub this right as flowing from the Act of 1937. The second fallacy in this view is that the Court failed
to consider that the claim for maintenance is an important right which is granted to the widow under
the Sastric Hindu Law which enjoins the husband to maintain his wife even if he has no property.
Where he has a property the widow has to be maintained from that property so much so that after the
death of her husband any one who inherits that property takes the property subject to the burden of
maintaining the widow. Even where the property is transferred for payment of family debts and the
transferee has the notice of the widow's claim for maintenance; he has to discharge the burden of
maintaining the widow from the property sold to him. Thus the nature and extent of the right of the
widow to claim maintenance is undoubtedly a pre-existing right and it is wrong to say that such a right
comes into existence only if the property is allotted to the widow in lieu of maintenance and not
otherwise.
65. Another reasoning given by the courts taking the contrary view is that sub-section (2) being in the
nature of a proviso to Section 14(1) all grants with conditions take the case out of Section 14(1). This,
as we have already pointed out, is based on a wrong interpretation of the scope and ambit of sub-
section (2) of Section 14.
66. Lastly, the contrary view is in direct conflict with the observations made by this Court in the cases
referred to above, where a grant in lieu of maintenance of the widow has been interpreted as being in
recognition of a pre-existing right so as to take away the case from the ambit of sub-section (2).
67. For these reasons and those given here to before, we choose to prefer the view taken by Palekar, J.,
in B.B.Patil v. Gangabai,AIR1972Bom16 (supra) which appears to be more in consonance with the
object and spirit of the 1956 Act. We, therefore, affirm and approve of the decisions of the Bombay
High Court in B. B. Patil v. Gangabai; of the Andhra Pradesh High Court in GadamReddayya
v. Varapula Venkataraiu,AIR1965AP66; of the Mysore High Court in H. Venkanagouda v.
Hanamanagouda, AIR 1972 Mys 286; of the Patna High Court in Sumeshwar Mishra v. Swami Nath
Tiwari,AIR1970Pat 348; of the Punjab High Court in Smt. Sharbati Devi v. Hiralal AIR 1964 Pun
114 and Calcutta High Court in Sasadhar Chandra Dey v. Smt. Tara Sundari Dasi,AIR1962Cal438
(supra) and disapprove the decisions of the Orissa High Court in Narayan Patra v.Tara
Patrani,AIR1970Ori131; Andhra Pradesh High Court in GopisettyKondaiah v.
GundaSubbarayudu, ILR (1968) A P 621; Madras High Court in S. KachapalayaGurukkal v. V.
SubramaniaGurukkal, AIR 1972 Mad 279 and Gurunadham v. Sundrarajulu,AIR1967Mad429; of the
Allahabad High Court in Ram Jag Missir v. Director of Consolidation, U.P.,AIR1975All151 and in
Ajab Singh v. Ram Singh, AIR 1959 J K 92 of the Jammu & Kashmir High Court.
68. Lastly strong reliance was placed by Mr. Natesan counsel for the respondents on a decision of this
Court in Smt. Naraini Devi v. Smt. Ramo Devi,[1976]3SCR55 to which one of us (Fazal Ali, J.,) was a
party. This case is no doubt directly in point and this Court by holding that where under an award an
207
interest is created in favour of a widow that she should be entitled to rent out the property for her
lifetime, it was held by this Court that this amounted to a restricted estate under Section 14(2) of the
1956 Act. Unfortunately the various aspects, namely, the nature and extent of the Hindu women’s
right to maintenance, the limited scope of sub-section (2) which is a proviso to sub-section (1) of
Section 14 and the effect of the Explanation etc., to which we have adverted in this judgment, were
neither brought to our notice nor were argued before us in that case. Secondly, the ground on which
this Court distinguished the earlier decision of this Court in Badri Pershad v. Smt. Kanso
Devi,[1970]2SCR95 (supra) was that in the aforesaid decision the Hindu widow had a share or interest
in the house of her husband under the Hindu Law as it was applicable then and, therefore, such a share
amounted to a pre-existing right. The attention of this Court, however, was not drawn to the language
of the Explanation to Section 14(1) where a property given to a widow at a partition or in lieu of
maintenance had been placed in the same category, and therefore, the reason given by this Court does
not appear to be sound. For the reasons that we have already given, after taking an overall view of the
situation, we are satisfied that the Division Bench decision of this Court in Naraini Devi's case (supra)
was not correctly decided and is, therefore, overruled.
69. Indeed, if the contrary view is accepted, it will, in my opinion, set at naught the legislative process
of a part of Hindu Law of the interstate succession and curb the social urges and aspirations of the
Hindu women, particularly in the International Year of Women, by reviving a highly detestable legacy
which was sought to be buried by the Parliament after independence so that the new legislation may
march with the times.
70. We would now like to summaries the legal conclusions which we have reached after an exhaustive
considerations of the authorities mentioned above on the question of law involved in this appeal as to
the interpretation of Section 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being
conceded as a matter of grace and generosity, but is a tangible right against property which
flows from the spiritual relationship between the husband and the wife and is recognised and
enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu
jurists stratify from Yajnavalkya to Manu. Such Weight may not be a right to property but it is
a right against property and the husband has a personal obligation to maintain his wife and if
he or the family has property, the female has the legal right to be maintained there from. If a
charge is created for the maintenance of a female, the said right becomes a legally enforceable
one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing
right so that any transfer declaring or recognising such a right does not confer any new title
but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and
must be liberally construed in favour of the females so as to advance the object of the 1956
Act and promote the socio-economic ends sought to be achieved by this long needed
legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without
interfering with the operation of Section 14(1) materially. The proviso should not be construed
in a manner so as to destroy the effect of the mean provision or the protection granted by
Section 14(1) or in a a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts etc. which create
independent and new titles in favour of the females for the first time End has no application
where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-
existing rights. In such cases a restricted estate in favour of a female is legally permissible and
Section 14(1)will not operate in this sphere. Where, however, an instrument merely declares or
recognises a pre-existing right, such as a claim to maintenance or partition or share to which
the female is entitled, the Sub-section has absolutely no application and the female's* limited
interest would auto metrically be enlarged into an absolute one by force of Section 14(1) and
the restrictions placed, if any, under the document would have to be ignored. Thus where a
property is allotted or transferred to a female in lieu of maintenance or a share at partition, the
instrument is taken out of the ambit of Sub-section (2) and would be governed by
Section 14(1) despite any restrictions placed on the powers of the transferee.
208
(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu
of maintenance" "or arrears of maintenance" etc. in the Explanation to Section 14(1) clearly
makes Sub-section (2) inapplicable to these categories which have been expressly excepted
from the operation of sub-section (2).
(6) The words "possessed by" used by the Legislature in Section 14(1) are of the widest possible
amplitude and include the state of owning a property even though the owner is not in actual or
physical possession of the same. Thus, where a widow gets a share in the property under a
preliminary decree before or at the time when the 1956 Act had been passed but had not been
given actual possession under a final decree the property would be deemed to be possessed by
her and by force of Section 14(1) she would get absolute interest in the property. It is equally
well settled that the possession of the widow, however, must be under some vestige of a claim,
right or title, because the section does not contemplate the possession of any rank trespasser
without any right or title.
(7) That the words "restricted estate" used in Section 14(2) are wider than limited interest as
indicated in Section 14(1) and they include not only limited interest, but also any other kind of
limitation that may be placed on the transferee.
71. Applying the principles enunciated above to the facts of the pre-sent case, we find-
(i) that the properties in suit were allotted to the appellant Tulasumma on July 30. 1949 under a
compromise certified by the Court;
(ii) that the appellant had taken only a life interest in the properties and there was a clear
restriction prohibiting her from alienating the properties.
(iii) that despite these restrictions, she continued to be in possession of the properties till 1956
when the Act of 1956 came into force; and
(iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an
absolute interest in the properties.
72. It is therefore, clear that the compromise by which the properties were allotted to the appellant
Tulasamma in lieu of her maintenance were merely in recognition of her right to maintenance which
was a pre-existing right and, therefore, the case of the appellant would be taken out of the ambit of
Section 14(2)and would fall squarely within Section 14(1) read with the Explanation thereto. Thus the
appellant would acquire an absolute interest when she was in possession of the properties at the time
when the 1956 Act came into force and any restrictions placed under the compromise would have to
be completely ignored. This being the position, the High Court was in error in holding that the
appellant Tulasamma would have only a limited interest and in setting aside the alienations made by
her. We are satisfied that the High Court decreed the suit of the plaintiffs on an erroneous view of the
law.
73. The result is that the appeal is allowed, the judgment and decree of the High Court are set aside,
the judgment of the District Judge, Nellore is hereby restored and the plaintiffs' suit is dismissed. In
the peculiar circumstances of this case and having regard to the serious divergence of judicial opinion
of the various Courts in India, we would make no order as to costs in this Court.
--------------------
209
9.
AIR 1978 SUPREME COURT 1239(From : Bombay)
Y.V. CHANDRACHUD, C.J.,
P.N. SHINGHAL AND
V.D. TULZAPURKAR. JJ.
GurupadKhandappaMagdum
v.
HirabaiKhandappaMagdum
Civil Appeal No.1828 of 1975 D/27-4-1978
CHANDRACHUD, C.J.: - It will be easier, with the help of the following pedigree, to understand the
point involved in this appeal :
KHANDAPPA SANGAPPA MAGDUM = HIRABAI (Plaintiff)
Gurupad Biyawwa Bhagirathibai Dhandubai Shivapad

(Deft1) (Deft. 3) Deft. 4)(Deft.5) (Deft.2)
Khandappa died on June 27, 1960 leaving him surviving his wife Hirabai, who is the plaintiff,
two sons Gurupad and Shivapad, who are defendants 1 and 2 respectively, and three daughters,
defendants 3 to 5.On November 6, 1962 Hirabai filed Special Civil Suit No.26 of 1963 in the court of
the Joint Civil Judge, Senior Division, Sangli for partition and separate possession of a 7/24th share in
two houses, land, two shops and movables on the basis that these properties belonged to the joint
family consisting of her husband, herself and their two sons if a partition were to take place during
Khandappa’s lifetime between himself and his two sons, the plaintiff would have got a 1/4th share in
the joint family properties, the other three getting a 1/4 th share each.Khandappa’s 1/4th share would
devolve upon his death on six sharers; the plaintiff and her five children, each having a 1/24 thshare
therein.Adding 1/4th and 1/24th the plaintiff claims a 7/24thshare in the joint family properties.That, in
short, is the plaintiffs case.
2. Defendants 2 to5 admitted the plaintiff’s claim, the suit having been contested by defendant 1.
Gurupad,only.He contended that the suit properties did not belong to the joint family, that they were
Khandappa’s self –acquisitions and that, on the date of Khanadappa’s death in 1960 there was no joint
family in existence.He alleged that Khandappa had effecteda partition of the suit properties between
himself and his two sons in December 1952 and December 1954 and that by a family arrangement
dated March 31, 1955 he had given direction for disposal of the share which was reserved by him for
himself in the earlier partitions.There was therefore, no question of a fresh partition.That, in short, is
the case of defendant 1.
3. The trial court by its judgment dated July 13, 1965 rejected defendant 1’s case that the properties
were Khandappa’s self-acquisitions and that he had partitioned them during this lifetime.Upon that
finding the plaintiff became indisputably entitled to a share in the joint family properties, but,
following the judgment of the Bombay High Court in Shiramabai v. Kalgonda, 66 Bom LR 351: (AIR
1964 Bom 263) the learned trial Judge limited that share to 1/24th refusing to add 1/4th and
1/24thtogether.As against that decree, defendant 1 filed first appeal No.524 of 1966 in the Bombay
High Court, while the plaintiff filed cross objections.By a judgment dated March 19, 1975 a Division
Bench of the High Court dismissed defendant is appeal and allowed the plaintiff’s cross-objections by
holding that the suit properties belonged to the joint family, that there was no prior partition and that
the plaintiff is entitled to a 7/24thshare.Defendant 1 has filed this appeal against the High Court’s
judgment by special leave.
4. Another Division Bench of the Bombay High Court in Rangubai Lalji v. Laxman Lalji, 68 Bom
LR 74: (AIR 1966 Bom 169) had already reconsidered and dissented from the earlier Division Bench
judgment in ShiramabaiBhimgonda, (AIR 1964 Bom 263).In these two cases, the judgement of the
Bench was delivered by the same learned Judge, Patel J. On further consideration the learned Judge
felt that Shiramabai was not fully argued and was incorrectly decided and that on a true view of law,
the widow’s share must be ascertained by adding the share to which she is entitled at a notional
210
partition during her husband’s lifetime and the share which she would get in her husband’s interest
upon his death.In the judgement under appeal, the High Court has based itself on the judgment in
Rangubai Lalji endorsing indirectly the view that Shiramabai was incorrectly decided.
5. Since the view of the High Court that the suit properties belonged to the joint family and that there
was no prior partition is well-founded and is not seriously disputed, the decision of this appeal rests
on the interpretation of Explanation 1 to Section6 of the Hindu Succession Act (30 of 1956).That
section reads thus:
6. When a male Hindu dies after the commencement of this Act, having at the time of his death an
interest in a mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the
Schedule or a male relative specified in that class who claims through such female relative, the
interest of the deceased in the mitakshara coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1: For the purposes of this section, the interest of a Hindu mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to him if a partition of
the property had taken place immediately before his death, irrespective of whether he was entitled to
claim partition or not.
Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the deceased or any of his
heirs to claim on intestacy a share in the interest referred to therein.”
7. The Hindu Succession Act came into force on June 17, 1956.Khandappa having died after the
commencement of that Act to wit in 1960, and since he had at the time of his death an interest in
mitakshara coparcenary property, the pre-conditions of S.6 are satisfied and that section is squarely
attracted.By the application of the normal rule prescribed by that section, Khandappa’s interest in the
coparcenary property would devolve by survivorship upon the surviving members of the coparcenary
and not in accordance with the provisions of the Act.But, since the widow and daughter are amongst
the female relatives specified in Class I of the Schedule to the Act and Khandappa died leaving behind
a widow and daughters, the proviso to Section6 comes into play and the normal rule is
excluded.Khandappa’s interest in the coparcenary property would therefore devolve, according to the
proviso, by intestate succession under the Act and not by survivorship.Testamentary succession is out
of question as the deceased had not made a testamentary disposition though, under the explanation to
Section30 of the Act, the interest of a male Hindu in Mitakshara coparcenary property is capable of
being disposed of by a will or other testamentary disposition.
8. There is thus no dispute that the normal rule providedfor by Section6 does not apply, that the
proviso to that section is attracted and that the decision of the appeal must turn on the meaning to be
given to Explanation 1 of Section6. The interpretation of that Explanation is the subject-matter of
acute controversy between the parties.
9. Before considering the implications of Explanation 1, it is necessary to remember that what
Section6 deals with is devolution of the interest which a male Hindu has in a Mitakshara coparcenary
property at the time of his death.Since Explanation 1 is intended to be explanatory of the provisions
contained in the section, what the Explanation provides has to be correlated to the subject-matter
which the section itself deals with.In the instant case the plaintiff’s suit, based as it is on the
provisions of Section6, is essentially a claim to obtain a share in the interest which her husband had at
the time of his death in the coparcenary property.Two things become necessary to determine for the
purpose of giving relief to the plaintiff: One, her share in her husband’s share and two, her husband’s
own share in the coparcenary property.The proviso to Section6 contains the formula for fixing the
share of the claimant while Explanation 1 contains a formula for deducing the share of the
deceased.The plaintiff’s share, by the application of the proviso, has to be determined according to the
terms of the testamentaryinstrument, if any, made by the deceased and since there is none in the
instant case, by the application of the rules of intestate succession contained in Sections 8,9 and 10 of
the Hindu Succession Act. The deceased Khandappa died leaving behind him two sons, three
daughters and a widow.The son, daughter and widow are mentioned as heirs in Class I of the
Schedule and therefore, by reasons of the provisions of Section 8(a) read with the 1st clause of
211
Section9, they take simultaneously and to the exclusion of other heirs.As between them the two sons,
the three daughters and the widow will take equally, each having one share in the deceased’s property
under Section10 read with Rules1 and 2 of that section.Thus, whatever be the share of the deceased in
the coparcenary property, since there are six sharers in that property each having an equal share the
plaintiff’s share therein will be 1/6th.
10. The next step, equally important though not equally easy to work out, is to find out the share which
the deceased had in the coparcenary property because after all, the plaintiff has a 1/6 th interest in that
share.Explanation 1 which contains the formula for determining the share of the deceased creates a
fiction by providing that the interest of a Hindu Mitakshara coparcener shall be deemed to be the
share in the property that would have been allotted to him if a partition of the property had taken place
immediately before his death.One must, therefore, imagine a state of affairs in which a little prior to
Khandappa’s death, a partition of the coparcenary property was effected between him and other
members of the coparcenary.Though the plaintiff, not being a coparcener, was not entitled to demand
partition yet, if a partition were to take place between her husband and his two sons, she would be
entitled to receive a share equal to that of a son (see Mulla’s Hindu Law, Fourteenth Edition, page
403, para 315).Ina partition between Khandappa and his two sons, there would be four sharers in the
coparcenary property, the fourth being Khandappa’s wife, the plaintiff, Khandappa would have
therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself
and his sons.
11. Two things are thus clear: One, that in a partition of the coparcenary property Khandappa would
have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4 th share is 1/6th, that is to
say, 1/24th.So far there is no difficulty.The question which poses a somewhat difficult problem is
whether the plaintiff’s share in the coparcenary property is only 1/24 th or whether it is 1/4th plus 1/24th
that is to say, 7/24th.The learned trial Judge, relying upon the decision in Shirambai (AIR 1964 Bom
263 which was later overruled by the Bombay High Court, accepted the former contention while the
High Court accepted the latter.The question is which of these two views is to be preferred.
12. We see no justification for limiting the plaintiff share to 1/24th ignoring the 1/4th share which she
wouldhave obtained had there been a partition during her husband’s lifetime between him and his two
sons.We think that in overlooking that 1/4th share, one unwittingly permits one’s imagination to
boggle under the oppression of the reality that there was in fact no partition between the plaintiff’s
husband and his sons. Whether a partition had actually taken place between the plaintiff’s husband
and his sons is beside the point for the purposes of Explanation 1.That Explanation compels the
assumption of a fiction that in fact ‘a partition of the property had taken place”, the point of time of
the partition being the one immediately before the death of the person in whose property the heirs
claim a share.
13. The fiction created by Explanation 1: has to be given its due and full effect as the fiction created
by Section 18-A (9) (b) of the Indian Income-tax Act 1922, was given by this Court in Commr.
ofIncome-tax. Delhi v. S. Teja Singh, 1959 Supp (1) SCR 394 : (AIR) 1959 SC 352).It was held in that
case that thefiction that the failure to send an estimate of tax on income under Section 18-A (3) is to
be deemed to be a failure to send a return, necessarily involves the fiction that a notice had been
issued to the assessee under Section22 and that he had failed to comply with it.In an important aspect,
the case before us is stronger in the matter of working out the fiction because in Teja Singh’s case, a
missing step had to be supplied which was not provided for by Section18-A (9) (b), namely , the
issuance of a notice under Section22 and the failure to comply with that notice. Section 18-A(9)(b)
stopped at creating the fiction that when a person fails to spend an estimate of taxon his income under
Section18-A (3) he shall be deemed to have failed to furnish a return of his income.The section did
not provide further that in the circumstances therein stated, a notice under Section22 is to be deemed
to have been issued and the notice shall be deemed not to have been complied with.These latter
assumptions in regard to the issuance of the notice under Section22 and its non-compliance had to be
made for the purpose of giving due and full effect to the fiction created by Section 18-A (9) (b).In our
case it is not necessary, for the purposes of working out the fiction, to assume and supply ...missing
link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings
Co. Ltd. V. Finsbury Borough Council, 1952 AC 109 (132).He said : If you are bidden to treat an
imaginary state of affairs as real, you must also imagine as real the consequences and incidents which,
212
if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it;
and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean
that having done so, you must cause or permit your imagination to boggle when it comes to the
inevitable corollaries of that state of affairs.
14. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in
the very nature of things, and as the very first step, to ascertain the share of the deceased in the
coparcenary property. For, by doing that alone can one determine the extent of the claimant’s
share.Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the
interest of a Hindu Mitakshara coparcener “shall be deemed to be” the share in the property that
would have been allotted to him if a partition of that property had taken place immediately before his
death.What is therefore required to be assumed is that a partition had in fact taken place between the
deceased and his coparceners immediately before his death.That assumption, once made, is
irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the
share of the deceased in the coparcenary property, one cannot go back on that assumption and
ascertain the share of the heir without reference to it.The assumption which the statute requires to be
made that a partition had in fact taken place must permeate the entire process of ascertainment of the
ultimate share of the heirs, through all its stages.To make the assumption at the initial stage for the
limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the
quantum of the share of the heirs is truly to permit one’s imagination to boggle.All the consequences
which flow from areal partition have to be logically worked out, which means that the share of the
heirs must be ascertained on the basis that they had separated from one another and had received a
share in the partition which had taken place during the lifetime of the deceased.The allotment of this
share is not a processual step devised merely for the purpose of working out some other conclusion.It
has to be treated and accepted as a concrete reality, something that cannot be recalled just asa share
allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of
this position is that the heir will get his or her share in the interest which thedeceased had in the
coparcenary property at the time of his death, in addition to the share which he or she received or
must be deemed to have received in the notional partition.
15. The interpretation which we are placing upon the provisions of Section 6, its proviso and
explanation I thereto will further the legislative intent in regard to the enlargement of the share of
female heirs, qualitatively and quantitatively.The Hindu Law of Inheritance (Amendment) Act, 1929
conferred heirship rights on the son’s daughter, daughter’s daughter and sister in all areas where the
Mitakshara law prevailed. Section 3 of the Hindu Women’s Right to Property Act, 1937, speaking
broadly, conferred upon the Hindu widow the right to a share in the joint family property a also a right
to demand partition like any male member of the family.The Hindu Succession Act, 1956 provides by
Section 14(1) that any property possessed by a female Hindu, whether acquired before or after the
commencement of the Act, shall be held by her as a full owner thereof and not as a limited
owner.Byrestrictingthe operation of the fiction created by Explanation-I in the manner suggested by
the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform
which has enabled the Hindu woman to acquire an equal status with male sin matters of property.Even
assuming that two interpretations of Explanation-I are reasonably possible, we must prefer that
interpretation which will further the intention of the legislature and remedy the injustice from which
the Hindu women have suffered over the years.
16. We are happy to find that the view which we have taken above has also been taken by the
Bombay High Court in Rangubai Lalji v.Laxman Lalji, (AIR 1966 Bom 169) in which Patel, J., very
fairly, pronounced his own earlier judgment to the contrary in Shiramabai v. Kalgonda, (AIR 1964
Bom 263) as incorrect.Recently, a Full Bench of that High Court in Sushilabai Ramachandra v.
NarayanraoGopalrao, AIR 1975 Bom 257, the Gujarat High Court in Vidyaben v. Jagdishchandra N.
Bhatt, AIR 1974 Guj 23 and the High Court of Orissa in Ananda v. Haribandhu, AIR 1967 Ori 194,
have taken the same view.The Full Bench of the Bombay High Court in Sushilabai has considered
exhaustively the various decisions bearing on the point and we endorse the analysis contained in the
judgment of Kantawala C.J., who has spoken for the Bench.
17. For these reasons we confirm the judgment of the High Court and dismiss the appeal with costs.
213
Appeal dismissed.
--------------
214
10.
AIR 1986 SUPREME COURT 1753(From : Allahabad)
R.S.PATHAK AND
SABYASACHI MUKHARJI, JJ.
Civil Appeals Nos. 1669-70 of 1974 (with SLP (Civil) No. 5327 of 1978) dt/- 16-7-1986.
Commissioner of Wealth-tax, Kanpur
v.
Chander Sen
SABYASACHI MUKHARJI, J.: - These appeals arise by special leave from the decision of the High
Court of Allahabad dated 17th August 1973. Two of these appeals are in respect of assessment years
(\1966-67 and 1967-68 arising out of the proceedings under the Wealth-tax Act, 1957.The connected
reference was under the Income-tax Act, 1961 and related to the assessment year 1968-69.A common
question of law arisen all these cases and these were disposed of by the High Court by a common
judgment.
2. One Rangi Lal and his son Chander Sen constituted a Hindu undivided family.This family had
some immovable property and the business carried on in the name of Khushi Ram RangiLal.On
October10, 1961, there was a partial partition in the family by which the business was divided
between the father and the son, and thereafter, it was carried on by a partnership consisting of the
two.The firm was assessed to income-tax as a registered firm and the two partners were separately
assessed in respect of their share of income.The house property of the family continued to remain
joint.On July 17, 1965, Rangilal died leaving behind his on. Chander Sen, and his grandsons i.e. the
sons of Chander Sen. His wife and mother predeceased him and he had no other issue except Chander
Sen. On his death there was a credit balance of Rs. 1,85,043/- in his account in the books of the
firm.For the assessment year 1966-67 (valuation date October 3, 1965), Chander Sen, who constituted
a joint family with his own sons, filed a return of his net wealth. The return included the property of
the family which on the death of Rangi Lal passed on to Chander Sen by survivorship and also the
assets of the business, which devolved upon Chander Sen on the death of his father.The sum of Rs.
1,85,043 standing to the credit of Rangi Lal was not included in the net wealth of the family of
Chander Sen (hereinafter referred to as ‘the assessee-family’) on the ground that this amount devolved
on Chander Sen in his individual capacity and was not the property of the assesse-family.The Wealth-
Tax Officer did not accept this contention and held that the sum of Rs. 1,85,043 also belonged to the
assessee-family.
3. At the close of the previous year ending on October 22, 1962, (sic) relating to the assessment year
1967-68, a sum of Rs.23,330/- was credited to the account of late Rangi Lal on account of interest
accruing on his credit balance. In the proceedings under the Income-tax Act for the assessment year
1967-68, the sum of Rs.23,330/- was claimed as deduction.It was alleged that interest was due to
Chander Sen in his individual capacity and was an allowable deduction in the computation of the
business income of the assessee-family.At the end of the year the credit balance in the account of
Rangi Lal stood at Rs.1,82,742/- which was transferred to the account of ChanderSen.In the wealth-
tax assessment for the assessment year 1967-68, it was claimed, as in the earlier year, that the credit
balance in the account of Rangi Lal belonged to Chander Sen in his individual capacity and not to the
assessee-family.The Income-tax Officer who completed the assessment disallowed the claim relating
to interest on the ground that it was a payment made by Chander Sen to himself.Likewise, in the
wealth-tax assessment the sum of Rs.1,82,742/- was included by the Wealth-tax Officer in the net
wealth of the assess-family.On appeal the Appellate Assistant Commissioner of Income-tax accepted
the assessee’s claim in full.He held that the capital in the name of Rangi Lal devolved on Chander Sen
in his individual capacity and as such was not to be included in the wealth of the assessee-family.He
also directed that in the income-tax assessment the sum of Rs.23,330/- on account of interest should
be allowed as deduction. The Revenue felt aggrieved and filed three appeals before the Income-tax
Appellate Tribunal, two against the assessments under the Wealth-tax Act for the assessment years
1966-67 and 1967-68 and one against the assessment under the Income-tax Act for the assessment
year 1967-68.The tribunal dismissed the Revenue’s appeals.
4. The following question was referred o the High Court for its opinion:
“Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that
215
the sum of Rs.1,85,043/- and Rs.1,82,742/- did not constitute the assets of the assessee-Hindu
undivided family is correct?”.
5. Similarly in the reference under the Income-tax Act. The following question was referred:
“Whether, on the facts and in the circumstances of the case, the interest of Rs.23.330 is allowable
deduction in the computation of the business profits of the assessee joint family?”.
6. The answer to the questions would depend upon whether the amount standing to the credit of late
Rangi Lal was inherited, after his death, by Chander Sen in his individual capacity or as a Karta of the
Assessee-joint family consisting of himself and his sons.
7.The amount in question represented the capital allotted to Rangi Lal on partial partition and
accumulated profits earned by him as his share in the firm.WhileRangi Lal was alive this amount
could not be said be belong to any joint Hindu family and qua Chander Sen and his sons, it was the
separate property of RangiLal.OnRangi Lal’s death the amount passed on to his son.Chander Sen, by
inheritance.The High court was of the opinion that under the Hindu court was of the opinion that
under the Hindu Law when a son inherited separate and self – acquired property of his father, it
assumed the character of joint Hindu family property in his hands qua the members of his own
family.But the High Court found that his principle has been modified by Section 3 of the Hindu
Succession Act, 1956. Section 8 of the said Act provides, inter alia, that the property of male Hindu
dying in testate devolved according to the provisions of that Chapter in the Act and indicates further
that it will devolve first upon the heirs being the relatives specified in Class-I of the Schedule.Heirs in
the schedule Class I includes and provides firstly son and thereafter daughter, widow and others.It is
not necessary in view of the facts of this case to deal with other clauses indicated in Section 8 or other
heirs mentioned in the schedule.In this case as the High Court noted that the son,Chander Sen was the
only heir and therefore the property was to pass to him only.
8. The High Court in the judgment under appeal relied on a bench decision of the said High Court
rendered previously.Inadvertently, in the judgment of the High Court, it had been mentioned that that
judgment was in Khudi Ram Laha v. Commissioner of income tax, U.P., (1968) 67 ITR 364 (All) but
that was a case which dealt with entirely different problem.The decision which the High Court had in
mind and on which in fact the High Court relied was adecision in the case of Commissioner of Income
tax UP v Ram Rakshpal Ashok Kumar, (1968) 67ITR 164. In the said decision the Allahabad high
court held that in view of the provisionsof the Hindu Succession Act 1956, the income from assets
inherited by a son from his father from whom hehad separated by partition could not be assessed as
the income of the Hinduundivided family of the son. The High Court relied on the commentary in
Mullah’s ‘Hindu Law’.ThirteenthEdition page 248.The high court also referredto certain passages
from Dr.Derret’s‘Introductionto Modern Hindu Law’,(paragraph411, at page 252) reliance was also
placed on certain observationof this court andthePrivyCouncilas well as on Mayne’s ‘Hindu Law’.
After discussion all these aspects the court came to the conclusion that the position of the Hindu law
was that partition took away by way ofcoparcenary the character of coparcener property which meant
that the share of another coparcener upon the division although the property obtainedby a coparcener;
by a partition continued to be coparcener property for him and his un-separated issue (sic) IN that case
what had happened was one Ram Rakshpal and his father. Durga Prasad constituted a Hindu
undivided family, which was assessed as such. Ram Rakshpalseparatedfrom his fatherby partition on
October 11,1948.ThereafterRamRakshpalstartedbusinessof his own incomewhereofwasassessed in the
hands of the assesseefamilyShri Durga Prasad alsostarted business of his own after partition in the
name and styleof M/s MurlidaharMathruaPrasadwhichwascarriedon byhimtill his death. Durga Prasad
died on March 29, 1958, leavingbehindhim his widow Jai Devi his married daughter, Vidya Wati and
Ram Rakshpal and Ram Rakshpals son, Ashok Kumar as his survivors, The assetsleft behind by
Durga Prasaddevolvedupon there of him in equal shares by successionunder the Hindusuccession
Act,1956,Vidy Wati took away her 1/3rdshare, while Jai Deviand Shri RamRakshpalcontinued the
aforesaid business inherited by them in partnershipwitheffectfrom April 1,1958,under a
partnershipdeed dated April23,1958.The said firm was grantedregistration for the assessment year
1958-59.The share ofprofitofShriRamRakshpalfortheassessmentyearunderreferencewasdeterminedat
Rs.4210/-The assesee family contended beforethe income to officer that this profit was the personal
income of Ram Rakshpa and could not be taxed in the hands of theHinduundividedfamilyof Ram
Rakhspal and held that Ram Rakshpal contributed his ancestral funds in the
216
spartnershipbusinessofMurlidharMahura Prasad and that hencetheincometherefrom was taxable in the
hands of the assessee family. The High Courtfinallyheld on thesefacts in CIT v. Ram
Rakshpal(supra)that the assets of the businessleftbyDurgaPrasadin the hands of Ram
RakshpalwouldbegovernedbySection 8 of the Hindu Succession Act,1956.
9. The high courtin the judgment under appeal was of the opinion thatthe facts of this casewere
identical with the facts in the case of Commissionerof income taxUP(supra) and the principles
applicablewould be the same. The High Court accordinglyansweredthe question in the affirmative and
in favour of the assesse so faras assessment of wealth tax isconcerned. The High
Courtalsoanswerednecessarilythe question on the income tax referencesaffirmatively and in favour of
the assesse.
10. The question here is whether the income or asset which a son inherits fromthis father when
separated by partition the same should be assessed as income of the Hinduundividedfamilyof son or
his individualincome. There is no dispute among the commentators onHindulaw;nor in the
decisionsofthe court that under theHinduLaw as itis thesonwouldinheritthe same asKarta of his
ownfamily. But the question, is what is the effect of Section 8 of the HinduSuccession Act 1956? The
Hindusuccession act 1956 laysdowngeneralrules of succession in the case of males. The first ruleis
that the property of a male Hindu dying in testate shall devolve accordingto the provisionsof chapter-
II and Class-I of the schedule providesthat if there is a male heir of Class-I thenupon the
heirsmentionedinClass-Iof the schedule Class-Iof the schedulereads as follows.
“Son: daughters widow, mother: son of a predeceased son; daughterof a predeceased son: son of
a predeceased daughter,daughterof a predeceased daughter; widow of a predeceasedson; son of
predeceasedson of apredeceasedson of a predeceasedson; widowof a predeceased son”.
11.The heirs mentioned in Class-I of the schedule are son, daughters etc. including the son of a
predeceased son but does not includespecificallythe grandson being a son of a son living.
Therefore,theshortquestion, is when the son as heir of class I of the scheduleinheritstheproperty,
doeshe do so in his individualcapacity or does he do so as Karta of his own undivided family.
12. Now the Allahabadhigh court has noted that the case of Commissioner of income tax, UP v Ram
Rakshpal Ashok Kumar(1968)(67) ITR 164) (supra) afterreferring to the relevantauthorities and
commentatorshadobservedat page 171 of he said report thatthere was no scope for consideration of a
wide there was no scope for consideration of a wide and generalnatureabouttheobjectsattempted to
beachievedby a piece of legislation when interpreting the clear words of theenactment.
Thelearnedjudgesobservedreferring to the observationsof Mulla’s Commentary on ‘Hindu Law’ and
the provisionsofSection6,of the Hindu Succession Act that in these of assets of h business left by
father in the hands of his son will be governed by Section 8 oftheActandhewouldbegoverned by
Section 8 of the Act and he would takein his individualcapacity. In thisconnectionreferencewas also
madebeforeus to Section 4 ofthe Hindu succession Act Section 4 of the said act provides
foroverridingeffectof Act save as otherwiseexpressly provide in the Act,any text, ruleor interpretation
of Hindu Lawor any custom or usage as part of that law in force immediately beforethe
commencement of this Act shall ceasetohaveeffect with respect to anymatterfor which
provisionismadein the Act and any other law in forceimmediatelybeforethe commencement of the Act
shall cease to apply to Hindu in so far it is inconsistent withany of the provisionscontained in the Act
Section 6 dealswithdevolutionofinterestin coparcenary propertyand it makes s itclearthat when a male
Hindu dies after thecommencementoftheActhavingat the time ofhisdeathandinterestin a Mitakshara
Coparcenary propertyhis interest in thepropertyshall devolve by survivorship upon
thesurvivingmembersofthe coparcenary and not in accordance with the Act. The proviso indicatesthat
if the deceasedhadlefthimsurvivinga female relativespecified in class I of the schedule ora male
relativespecifiedinthatclasswhoclaimsthroughsuchfemalerelativetheinterestof the
deceasedinMitaksharacoparcenary property shalldevolve by testamentary or in testatesuccession as
the case may beunder this Actand not by survivorship.
12 A. Section 19 of the saidAct deals with the mode ofsuccession of two or moreheirs. If two or
moreheir succeed togetherto the property of an in testate they shall take the property per capitaand not
per stripes and as tenants in commonandnotasjointtenants.
13. Section 30 stipulates that any Hindu may disposeof by willor other testamentarydispositionof by
will orothertestamentarydisposition any property, which is capable ofbeing so disposed of by
217
himinaccordancewith the provisions of the Indian Succession Act 1925.
14. It is clearthatunderthe Hindu law, the moment a son is born he gets a share in the
father’spropertyandbecomespart of the coparcenary, his right accretesto him not on the
deathofthefatheror inheritance from the fatherbut with thevery fact of his birth. Normally
thereforewheneverthe father getsapropertyfromwhateverthe father getsapropertyfrom whatever source
from the grandfatheror from any other source be itseparatedpropertyor not, his son should have a
share in that and it will become part of the jointHindu family of his sonand grandson andother
members who form joint Hindu family with him. Bu the questionis the positionaffectedbySection 8,
of the succession Act 1956, and if so, howthe basic argument is that Section 8 indicatestheheirsin
respect ofcertainpropertyand class I of the heirs includes the son but not the grandson. Itincludes
however, the son of thepredeceasedson. It is this position which has mainly induced the Allahabad
High Court in the two judgments, we have noticed, to take the view that the income from the assets
inherited by son from his father from whom he has separated by partition can be assessed as income
of the son individually.UnderSection 8 of the Hindu Succession Act, 1956 the property of the father
who dies in testate devolves on his son in his individual capacity and not as Karta of his own
family.On the other hand, the Gujarat High Court has taken the contrary view.
15. In Commissioner of income-tax, Gujarat-I v. Dr. Babubhai Mansukhbhai, (1977) 108 ITR 417 the
Gujarat High Court held that in the case of Hindus governed by the Mitakshara law, where a son
inherited the self-acquired property of his father, the son took it as the joint family property of himself
and his son and not his separate property.The correct status for the assessment to income-tax of the
son in respect of such property was as representing his Hindu undivided family. The Gujarat High
Court could not accept the view of the Allahabad High Court mentioned herein before. The Gujarat
High Court dealt with the relevant provisions of the Act including S.6 and referred to Mulla’s
Commentary and some other decisions.
Before we consider this question further, it will be necessary to refer to the view of the Madras
High Court.Before the Full Bench of Madras High Court in Addl. Commissioner of Income-tax,
Madras v. P.L. KaruppanChettiar, 114ITR 523: (AIR 1979 Mad 1), this question arose. There, on a
partition affected on March 22, 1954, in the Hindu undivided family consisting of P. his wife, their
sons. K. and their daughter-in-law, P was allotted certain properties as and for his share and got
separated.The partition was accepted by the Revenue under Section 25A of the Indian Income-tax
Act. 1922.K along with his wife and their subsequently born children constituted a Hindu undivided
family which was being assessed in that status.P died on September 9, 1963, leaving behind his
widow and divided son. K. who was the Karta of his Hindu undivided family, as his legal heirs and
under Section 8 of the Hindu Succession Act, 1956, the Madras High Court held, that these two
persons succeeded to the properties left by the deceased, P. and divided the properties among
themselves.In the assessment made on the Hindu undivided family of which K was the Karta, for the
assessment years 1966-67 to 1970-71, the Income-tax Officer included for assessment the income
received from the properties inherited by K from hisfather, P. The inclusion was confirmed by the
Appellate Assistant Commissioner but, on further appeal the Tribunal held that the properties did not
form part of the joint family properties and hence the income there from could not be assessed in the
hands of the family.On a reference to the High Court at the instance of the Revenue, it was held by the
Full bench that under the Hindu law, the property of a male Hindu devolved on his death on his sons
and grandsons as the grandsons also have an interest in the property.However, by reason of S.8 of the
Hindu Succession Act, 1956, the son’s son gets excluded and the son alone inherits the property to the
exclusion of his son.No interest would accrue to the grandson of P in the property left by him on his
death. As the effect of Section 8 was directly derogatory of the law established according to Hindu
law, the statutory provision must prevail in view of the unequivocal intention in the statute itself,
expressed in Section4(1) which says that to the extent to which provisions have been made in the Act,
those provisions shall override the established provisions in the texts of Hindu law.Accordingly, in
that case, K alone took the properties obtained by his father, P. in the partition between them and
irrespective of the question as to whether it as ancestral property in the hands of K or not, he would
exclude his son.Further, since the existing grandson at the time of the death of the grandfather had
been excluded, an after-born son of the son will also not get any interest which the son inherited from
the father.In respect of the property obtained by K on the death of his father, it is not possible to
218
visualize or envisage any Hindu undivided family. The High Court held that the Tribunal was
therefore, correct in holding that the properties inherited by K from his divided father constituted his
separate and individual properties and not the properties of the joint family consisting of himself his
wife, sons and daughter sand hence the income there from was not assessable in the hands of the
assesseHindu undivided family.This view is in consonance with the view of the Allahabad High Court
noted above.
16A. the Madhya Pradesh High Court had occasion to consider this aspect in ShrivallabhdasModan v.
Commissioner of Income-tax, M.P.I, 138 ITR 673: (1983 Tax LR 559) and the Court held that if there
was no coparcenary subsisting between a Hindu and his sons at the time of death of his father,
property received by him on his father’s death could not be so blended with the property which had
been allotted to his sons on a partition effected prior to the death of the father. Section 4 of the Hindu
Succession Act, 1956, clearly laid down that “have as expressly provided in the Act, any text, rule or
interpretation of Hindu law or any custom or usage as part of that law in force immediately before the
commencement of the Act should cease to have effect with respect to any matter for which provisions
was made in the Act”Section8 of the Hindu Succession Act, 1956 as noted before, laid down the
scheme of succession to the property of a Hindu dying in testate.The schedule classified the heirs on
whom such property should devolve.Those specified in Class-I took simultaneously to the exclusion
of all other heirs.A son’s son was not mentioned as an heir under Class-I of the schedule, and,
therefore, he could not get any right in the property of his grandfather under the provision.The right of
a son’s son on his grandfather’s property during the lifetimeof his father which existed under the
Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier
interpretation of Hindu law giving a right by birth in such property “ceased to have effect”.The Court
further observed that in construing a codification Act, the law which was in force earlier should be
ignored and the construction should be confined to the language used in the new Act.The High Court
felt that so construed, Section 8 of the Hindu Succession Act should be taken as a self-contained
provision laying down the scheme of devolution of the property of a Hindu dying in testate.Therefore,
the property which devolved on a Hindu on the death of his father intestate after the coming into force
of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch
including his sons.It followed the Full bench decision of the Madras High Court as well as the view of
the Allahabad High Court in the two cases noted above including the judgment under appeal.
17. The Andhra Pradesh High Court in the case of Commissioner of Wealth-tax, A.P.-II v.
Mukundgirji, 144 ITR 18: (1983 Tax LR 1370) had also to consider this aspect.It held that a perusal
of the Hindu Succession Act, 1956 would disclose that parliament wanted to make a clean break from
the old Hindu law in certain respect consistent with modern and egalitarian concepts.For the sake of
removal of any doubts, therefore, Section 4(1)(a) was inserted. The High Court was of the opinion
that it would, therefore, not be consistent with the spirit and object of the enactment to strain
provisions of the Act to accord with the prior notions and concept of Hindu law.That such a course
was not possible was made clear by the inclusion of females in Class-I of the Schedule and according
tothe Andhra Pradesh High Court, to hold that the property which devolved upon a Hindu under
Section 8 of the Act would be HUF property in his hands vis-à-vis his own sons would amount to
creating two classesamong the heirs mentioned in Class-I viz., the male heirs in whose hands it would
be joint family property vis-à-vis their sons; and female heir with respect to whom no suchconcept
could be applied or contemplated.The intention to depart from the pre-existing Hindu law was again
made clear by Section 19 of the Hindu Succession Act which stated that two or more heirs succeed
together to the property of an instate, they should take the property as tenants-in-common and not as
joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more
sons succeeding to their father’s property took as joint remnantsand not as tenants-in-common.The
Act, however, has Sen to provide expressly that they should take as tenants-in-common.Accordingly,
the property which devolved upon heirs mentioned in Class-I of the Schedule under Section 8
constituted the absolute properties and his sons have no right by birth in such properties.This decision,
however, is under appeal by certificate to his Court. The aforesaid reasoning of the High Court
appearing at pages 23to 26 of Justice Reddy’s view in 144 ITR 18 appears to be convincing.
18. We have noted the divergent views expressed on this aspect by the Allahabad High Court, Full
Bench of the Madras High Court, Madhya Pradesh and Andhra Pradesh High courts on one side and
219
the Gujarat High Court on the other.
19. It is necessary to bear in mind the preamble to the Hindu Succession Act, 1956.The Preamble
states that it was an Act to amend and codify the law relating to in testate succession among Hindus.
20. In view of the Preamble to the Act, i.e., that to modify where necessary and to codify the law,
in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and
does not include son’s son but does include son of a predeceased son, to say that when son inherits the
property in the situation contemplated by Section 8 he takes it as Karta of his own undivided
family.The Gujarat High Court’s view noted above, if accepted, would mean that though the son of a
predeceased son and not the son of a son who is intended to be excluded under Section 8 to in heir,
the latter would by applying the old Hindu law get a right by birth of the said property contrary to the
scheme outlined in Section 8. Furthermore, as noted by the Andhra Pradesh High Court the Act makes
it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu
law.It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the
Hindu Succession Act would be HUF property in his hand vis-à-vis his own son: that would amount
to creating two classes among the heirsmentioned in Class-I, the male heirs in whose hand it will be
joint Hindu family property and vis-à-vis son and female heirs with respect to when no such concept
could be applied or contemplated.It may be mentioned that heirs in Class-I of Schedule under Section
8 of the Act included widow, mother, daughter of predeceased son etc.
21. Before we conclude we may state that we have emoted the observations of Mulla’s Commentary
on ‘Hindu Law’, 15thed. dealing with Section 6 of the Hindu Succession Act a page 92426 as well as
Mayne’s on ‘Hindu Law’, 12thedition, pages 918-919.
22. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must
prevail. The Preamble to the Act reiterates that the Act is, inter alia, to ‘amend’ the law.With that
background the express language which excludes son’s son but included son of a predeceased son
cannot be ignored.
23. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court,
Madhya Pradesh High Court and the Andhra Pradesh High Court, appear to us to be correct.With
respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.
24. In the premise the judgment and order of the Allahabad High Court under appeal is affirmed and
the Appeals Nos. 1668-1669 of 1974 are dismissed with costs. Accordingly, Appeal No.1670 of 1974
in Income-tax Reference which must follow as a consequence in view of the findings that the sums
standing to the credit of RangyLal belong to Chander Sen in his individual capacity and not the joint
Hindu family, the interest of Rs. 23,330/- was an allowable deduction in respect of the income of the
family from the business.This appeal also fails and is dismissed with costs.
25. The Special Leave Petition No.5327 of 1978 must also fail and is dismissed. There will be no
order as to cost of this.
Order accordingly.
------------------
220
11.
AIR 1997 SUPREME COURT 1686(From : Madhya Pradesh)
N.P. SINGH AND S.B.MAJMUDAR. JJ.Civil Appeal No.3550 of 1984, dt. 13-12-1996.
Sunder Das
v.
Gajananrao
S.B. MAJMUDAR, J.: - This appeal on the grant of special leave to appeal under Article 136 of the
Constitution of India is directed against the judgment and order of a Division Bench of the High Court
of Madhya Pradeshin First Appeal No.2 of 1979, whereby the Division Bench dismissed the First
Appeal and confirmed with modification the decree passed by the trial Court against the appellants in
Civil Suit No.13A of 1978, in the Court of learned District Judge, Datia.The facts leading to this
appeal shortly dated are as under.
2. The appellants are the original defendants against whom respondents Nos. 1 to 3, original plaintiffs,
filed the aforesaid suit for a declaration that the registered Sale Deed dated 30thMay, 1959, executed
by their father, respondent No.4 in this appeal who was original defendant No.6 in the suit, in favour
ofthe present appellants is void and inoperative at law and for restoration of the possession of the suit
house bearing Municipal No.1153/1 situated in Rajgarh locality of Datia town in the State of Madhya
Pradesh. For the sake of convenience, we will refer to the appellants as original contesting defendants
and respondents 1 to 3 as plaintiffs in the latter part of this judgment.Respondent No.4, father of the
plaintiffs, was joined as defendant No.6 in the suit. The case of the plaintiffs is that their father
original defendant No.6 had executed registered Sale Deed dated 30th May, 1959, conveying the suit
house to the contesting defendants for a sum of Rs.1800/- and delivered possession of the said house
to them. According to the plaintiffs the suit house was their ancestral property in which they had got
undivided 3/4th interest.That third father, defendant No.6, had no right to transfer the suit house in
favour of the contesting defendants and consequently the said Sale Deed was not binding on them.
3. The said suit was contested by the contesting defendants on the ground that the house belonged
exclusively to their vendor defendant No.6 and plaintiffs had o interest therein.It was alternatively
contended that even assuming that the suit house was an ancestral house wherein the plaintiffs had
undivided interest defendant No.6, their vendor, had alienated the said house forfamily necessity and
his transaction was binding on the plaintiffs.Defendant No.6, father of the plaintiffs, on the other hand
supported the plaintiffs.
4. Learned Trial Judge after recording the evidence came to the conclusion that the suit house was an
ancestral property of the parties wherein the plaintiffs and 3/4 thundivided interest while their father
defendantNo.6 had 1/4thinterest and consequently the Sale Deed dated 30thmay, 1959, was viodable to
the extent of 3/4thshare of the plaintiffs. Accordingly, the learned Trial Judge directed the plaintiffs to
be placed in joint possession of the suit house along with the contesting defendants 1 to 5.Being
aggrieved by the aforesaid judgment and decree of the trial Judge the contesting defendants carried
the matter in First Appeal before the High Court.As stated earlier Division Bench of the High Court
was pleased to dismiss the same.However, the cross objections filed by the plaintiffs were allowed
and accordingly Trial Court’s decree was modified as under:
“The suit of the plaintiffs for possession is decree; the contesting defendants to deliver
possessionof the suit house to the plaintiffs: but the execution of the decree so far as it directs the
contesting defendants to deliver possession of the suit house to the plaintiffs shall remain stayed for a
period of six months from today and, if before the expiry of that period, the contesting defendants
bring a suit for general partition, then the stay should continue till the disposal of the suit; but if no
such suit is brought within the period, the stay of execution of the decree shall stand cancelled on the
expiry of the period of six months and the plaintiffs shall be entitled to obtain the possession of the
suit house.”
It is the aforesaid decree in favour of the plaintiffs as confirmed withmodification by the Division
Bench of the High Court that is brought on the anvil of scrutiny of this Court in the present
proceedings by the dissatisfied contesting defendants.
5. At the outset it may be stated that at the suggestion of the Court the contesting parties were given
time to explore any possibility of settlement.But we were informed that settlement was not
possible.However, in view of the fact that two of the plaintiffs were minors at the time when their
221
father executed the impugned Sale Deed and as the prices of the properties have naturally got
escalated over years the Court suggested to learned counsel for the appellants, contesting defendants,
that in cae they succeed in this appeal they may ex-gratia make payment of suitable amount to the
respondent-plaintiffs to avoid any possible heart burning to them.We are happy to note that the
suggestion of the Court was accepted by the appellants, contesting defendants.Appellant No. 1 Sunder
Das who was present in the Court has filed a written undertaking on affidavitto the effect that having
consulted Laxman, son of Tehalram, appellant No.2 in this appeal he was giving undertaking t this
Court that if the appeal filed on their behalf is allowed and the judgment and decree are set aside they
shall pay ex gratia an amount of Rs.2,00,000/- to the plaintiff respondents Gajanan Rao, Ravindra
Kumar and Govind Rao within three months from the date of the delivery of the judgment. We were
also informed by the learned counsel for the appellants that similar affidavits will be filed by the
remaining appellants within one week of the delivery of the judgment in case the appeal is ultimately
allowed and the suit of the plaintiffs is dismissed.They undertake to make payment of Rs.2,00,000/- to
the plaintiffs’ aforesaid ex gratia with a view to alleviate likely heart burning of the plaintiffs in such
an eventuality.We appreciate the good gesture made by the appellants.It is now time for us to deal
with the merits of the appeal.
6. We have heard the learned counsel for the contesting defendants as well as for the respondent-
plaintiffs in support of their respective cases.
7. Learned counsel for the contesting defendants submitted that both the Courts below had patently
erred in law a well as on facts in taking the view that the suit for challenging the impugned Sale Deed
was within limitation.According to the learned counsel the suit was barred by Article 109 of the
Limitation Act.On merits it was contended that the suit house belonged exclusively to the contesting
defendants’ vendor original defendant No.6, father of the plaintiffs and, therefore, the plaintiffs had
no right to challenge the said Sale Deed.It was alternatively contended that even assuming that the suit
property was ancestral property as plaintiffs’ father defendant No.6 was the ‘karta’ of the joint Hindu
family the Sale Deed executed by him was perfectly legal and valid and binding on the plaintiffs
unless it was shown that the Sale Deed was vitiated on the ground of it being executed for paying off
a debt incurred by their father for an illegal or immoral purpose.That there was no such case pleaded
by the plaintiffs.It was next contended that the said transaction was for legal necessity and for family
requirement as mentioned in the Sale Deed and these recitals were binding on defendant No.6.That
there was no cogent evidence led by the plaintiffs to rebut these recitals in the Sale Deed. That both
the Courts below were patently in error when they took the view that the transaction was not binding
on the plaintiffs.That the suit was purely a collusive suit got filed by defendant No.6 through his sons
after eleven and a half year of the transaction.That they stood by the transactionfor all these years,
allowed the contesting defendants to spend huge sums of money for re-construction and renovation of
the house and that this suit was filed merely to knock out more money from the contesting defendants
and to harass them.Hence it was liable to be dismissed even on merits.
8. On the other hand learned counsel Shri Khanduja for the respondent-plaintiffs submitted that both
the Courts on appreciation of evidence had come to a concurrent finding of fact that there was no
legal necessity for defendant No.6 to execute the Sale Deed.That defendant No.6 was not shown to
have incurred any debts or was in such a stringent economic condition that he was required to sell off
the suit house to the contesting defendants and, therefore, on the evidence on record the conclusion
reached by both the Courts below that defendant No.6, father of the plaintiffs, could not legally
alienate the undivided 3/4th interest of the plaintiffs in the suit house, remained well justified and
called for no interference in this appeal.
9. Having carefully considered the aforesaid rival contentions we find that the judgment and decree as
passed by trial Court and as confirmed with modification by the Division Bench of the High Court
cannot be sustained.However, before we proceed to consider the merits of the case we may in the first
instance deal with the question of limitation, for filing the present suit.Article 109 in the Schedule to
the Limitation Act,1963, provides for a period of limitation of twelve years for a Hindu governed by
Mitakshara Law who tiles a suit to set aside his father’s alienation of ancestral property and twelve
years’ period begins from the date when alienee takes possession of the property.In the present case
the contesting alienees took possession of the suit property on 30 thMay, 1959, when they got
registered Sale Deed in their favour.Counting 12 years from 30 thMay, 1959, limitation for filing the
222
suit or challenging the said alienation would expire by 29thMay, 1971.The present suit was filed on
20thMay, 1971.The present suit was filed on 20thAugust, 1970.Therefore, it was clearly within
limitation.However, the said suit underwent rough weather. It was originally filed in the Court of
Civil Judge Class II.Datia on the basis that the valuation for the purpose of jurisdiction of the Court
would be Rs.1800/- the consideration amount mentioned in the Sale Deed.In the first instance the said
Court took the view that the suit was within its pecuniary jurisdiction.However, the High Court took a
contrary view and held that the suit was within its pecuniary jurisdiction.However, the High Court
took a contrary view and held that the valuation of the suit should be equal to the market value of the
property on the date of the suit and hence ordered return of the plaint for presentation to the proper
Court and hat is how the suit was filed in the District Court on 26 thNovember, 1975, after valuing the
suit at Rs.42,700/-.The contention of learned counsel for the contesting defendants is that the
limitation for filing the suit will have to be seen from the date of filing of the second suit before the
competent Courtand if 26thNovember, 1975, being the date of filing of that suit is taken to be the date
in the light of which limitation question is to be decided then the period of limitation of 12 years from
the date of the Sale Deed dated 30thMay 1959, must be treated to have expired and the suit was,
therefore, beyond time.This contention was rightly not accepted by both the Courts below for the
simple reason that originally the suit was filed within limitation, but it was filed before a Court which
was found to be lacking in pecuniary jurisdiction and when itwas re-filed before a competent Court
the plaintiffs were entitled to the benefit of Section 14 of the Limitation Act enabling them to get
exclusion of the time from 20thAugust, 1970 to 22ndNovember, 1975, when the High Court took the
view that the suit should be returned for presentation to the proper Court. It is obvious that the
plaintiffs were prosecuting in good faith their suit before a Court which, from defect of pecuniary
jurisdiction, was unable to entertain it and if this period gets excluded the re-filed suit on
26thNovember, 1975, would remain within limitation of 12 years from the date of the
impugnedSaleDeed.The plea of bar of limitation as raised by the learned counsel for the contesting
defendants, therefore, stands rejected.
10. So far as the merits of the case are concerned certain salient facts which are well established on
record deserve to be noted.There is ample evidence on record to show that the suit house was the
ancestral house of the plaintiffs and defendant No.6.Evidence shows that originally the suit house was
occupied byplaintiff’s grandfather Mukundrao who had died 60 years prior to the filing of the suit.It is
also revealed from the evidence that suit house was occupied by plaintiffs’ father defendant No.6 and
also by latter’s uncle.They were staying together till defendant No.6’ uncle died.Even the recital in the
impugned Sale Deed to the effect that the Sale Deed was executed on account of family necessity
indicated that the suit house was treated as joint family property wherein obviously the plaintiffs
would have interest.Both the Courts below have held that the suit house was an ancestral property in
the hands of plaintiffs’ father, defendant No.6.This finding is well sustained on the record of the case
and calls for no interference in this appeal.We, therefore, reject the contention canvassed by learned
counsel for the appellants that the suit house was self-acquired property of defendant No.6.
11. Once it is held that the suit house was an ancestral property in the hands of plaintiff’s father,
defendant No.6, the plaintiffs could naturally have right by birth in the suit house.However, the moot
question is whether the alienation of the suit house by the impugned Sale Deed by the plaintiffs’
father, defendant No.6 to the contesting defendants was binding on the plaintiffs.So far as this
question is concerned it must be kept in view that plaintiffs’ father was the ‘karta’ of the joint Hindu
family.The evidence shows that at the relevant time he was working as upper Division Clerk in the
Civil Court at Chhatarpur. His monthly income was Rs.150/- in 1958-59 when the Sale Deed was
executed as seen from his deposition as D.W.1.He has clearly recited in the impugned Sale Deed in
favour of the contesting defendants that he was selling the suit house for Rs.1800/- on account of
family necessity.He revealed in hisdeposition before the Court that he had a family of seven persons
to be maintained out of his income of Rs.150/- per month as he had got his wife, three sons, namely,
the present plaintiffs and two young daughters.It is also revealed from his evidence that he was
staying at Chhatapur as he was serving as upper Division Clerk in the ChhatapurCourt.The suit house
was situated at Village Datia.According to defendant No.6he occasionally came to dtia to look after
the house.No attempt was made in his evidence to get out of the clear recitals in the Sale deed that he
had entered into the transaction for family necessity.It is also pertinent to note that out of the three
223
plaintiffs, plaintiff No.1 was major at the time of the Sale Deed.He has conspicuously remained
absent from the witness box an avoided inconvenient cross-examination which he might have faced.In
support of the plaintiffs only plaintiff No.3 P.W. 1 Govind Rao who was admittedly aged 8 years at
the time of the Sale Deed has been examined. He naturally could not have any personal knowledge
about what transpired in 1959, when his father who was serving in a Civil Court as upper Division
Clerk thought it fit to sell the ancestral house in village Datia to the defendant and whether the recital
made by him in the Sale Deed that the transaction was being executed for family necessity was right
or not.Nor defendant No.6, vendor father of the plaintiffs, had even whispered about the necessity for
inserting the recital in the Sale Deed that he was executing the same for family necessity.It has to be
kept in view thatdefendant No.6 being the father of the plaintiffs and ‘karta’ of the joint Hindu family
was legally entitled to alienate the suit house and also the interest of the minor plaintiffs in the said
house even for his own requirements unless it was shown that the transaction was tainted by any
immoral or illegal purpose.That is not the case of the plaintiffs.Nor have they suggested that their
father was addicted to any immoral conduct.Their only case is that their father had no right to alienate
their undivided interest in the suit house.We must keep in view the fact that defendant No.6, father of
the plaintiffs, was a worldly person who was presumed to know the ways of the word as he was
attached to the Civil Court as Upper Division Clerk at the at the relevant time.His evidence shows that
upto 1954, he had worked in the Civil Court as a Lower Division Clerk.Then he was promoted by the
High Court to the post of Upper Division Clerk in the year 1954, and he was transferred to Panna and
from panna he was transferred to Chhatarpur.He also deposed that he used to visit Datia in connection
with supervision of the suit house.Therefore, defendant No.6 father of the plaintiffs apart from being
the ‘karta’ of the joint Hindu family was well versed in the ways of the world and was not a novice or
a layman.With his open eyes he disposed of the suit house which appeared to be almost a ruin for
Rs.1800/-.It is easy to visualize that when defendant No.6, the vendor, was staying with his family at
Chhatarpur and when the ancestral house at DatiaVillage was in a ruinous condition and which would
almost be a burden to them he thought it fit in his wisdom to dispose it of for Rs.1800/- in favour of
the defendants and made an express recital in the Sale Deed that it was for family necessity that he
was disposing it off.As a Hindu father and ‘karta’ of the family he had every right to do so and in the
process could have legally disposed of the interest of his minor sons in the said property also for the
benefit of the family and necessity of the family. The plaintiffs have not been able to lead any cogent
evidence to rebut the clear recitals found in the Sale Deed to that effect. We may usefully remind
ourselves of what Mulla’s ‘Hindu Law’ 16thedition by S.T. Desai has to state in connection with
‘alienation by father’ at paragraph 256 of the said volume.It reads as under:
“256. Alienation by father-A Hindu father as such has special powers of alienating coparcenary
property which no other coparcener has.In the exercise of these powers –he may make a gift of
ancestral movable property to the extent mentioned in paragraph 225 and event of ancestral
immovable property to the extent mentioned in paragraph 226:he may sell or mortgage ancestral
property, whether movable or immovable, including the interest of his sons, grandsons and grandsons
therein for the payment of his own debt, provided the debt was an antecedent debt and was not
incurred for immoral or illegal purposes (para-graph 295).
Except as aforesaid, a father has no greater power over coparcenary property than any other
manager (o), that is to say, he cannot alienate coparcenary property except for legal necessity or for
thebenefit of the family, (paragraph 242)Thissectionmust be read withwhat is stated under paragraphs
213-215ante”.
Shri Khanduja learned counselappearingfortherespondentplaintiffs in this connectionsubmitted
that the defendants as alliances should haveproperlyinquiredas to why the
transactionwasbeingenteredinto by the father of theminorplaintiffs in their favour. It is difficult to
appreciate this submission. The evidencerecordclearly shows that contestingdefendants before
entering into the suit transactionhad taken all permissible into the suit transaction had taken all
permissibleprecautions and made inquiriesin; this connection. Contestingdefendantswitness No.
1.Tehalram stated inhisevidencethathewasinformedbydefendant No.6,thathis uncle hadexpired. His
debthas to be paid off Money lenders had also to be paid. Thathe tried to verify these facts. Thathe
went to the shop of Chretandasin the area. He alsoenquiredfrom grocer Mehamal and found out that
defendantNo.6was in debtsand therefore he came to the conclusion thatdefendantNo.6 wasin need of
224
moneyand accordingly he had sold his house to him. ShriKhanduja learned counsel appearing for the
plaintiffs submitted that defendant No.1, in this cross examination has statedthat defendant No.6
Hanumantraohadnotitleto the propertyandin order to help him he had purchased the housefrom him. It
is difficult to appreciate this contention. Theevidence of defendant No.1when read in its
correctperspectiveshowedthat he was informed by one Ganapatithat the property belonged to kingand
the king of Dauahadgivenit to theancestor of the plaintiffsMukundraotostaytherein and not
behavingtitleto the property might have belonged to the king it was being
occupiedbyplaintiffsancestorMukundrao and hisdescendantssincegenerationsasownersthereofand even
bydoctrine of adverse possessiontheywouldhaveperfectedtheir title. It may alsobe kept in
viewthattherewas nothing on the recordto suggest that the king of Datta hadever attempted to put
forwardanyclaimofownershipoverthesuitpropertyeven that apart it was notthe case of the
plaintiffsthemselvesthatthesuit property did not belongtotheirfather or their ancestors. On thecontrary
their case is that the suit house did belong to their father jointly with them. Therefore, it is too late in
the day for the learned counsel for the plaintiffsto submit that suithouse did notbelongto the plaintiffs
and their father or that at the timeof the sale plaintiff’sfatherhadno right, titleorinterestin the suit
house. Inour view the evidence on record clearly establishes that the defendants made all permissible
efforts to findout the legal necessitywhichprompteddefendant No.6to enter intothe said
transactionintheirfavour. It isof course istrue, as contended by ShriKhandujafortheplaintiffsthat the
effortsmade by the contesting defendants by relying upon theevidenceofMeghamal PW2 who is said
to havesoldgroceryon credit to defendantNo.6atthe relevant time remainedunsuccessful as therewould
have been no occasion for defendantas there would have been no occasionfor defendant No.6who was
staying with his familyat Chhatarpur to purchase at Datia grocery itemson a continuous basis on credit
from witness Meghamal. But evenleavingasidethe evidence of witness Meghamal which
wasnotacceptedbycourtsbelow we find that the evidence of the plaintiffsand defendantNo.6
clearlyestablishesthat the suithousewhichwas in a dilapidated andruinousconditionatDatia was found
to be a dead burden to the family andthereforeforfamilynecessityit was disposedby defendant No.6
father of theplaintiffs in 1959. The said transactionthereforeas the recitals in the sale deed themselves
rightly showed in thelight of surrounding circumstances wasatransactionforthebenefitof the
family.The said conclusionof ours gets furtherfortifiedfrom the well-
establishedfactsonrecordthatafterpurchasingthe suit housethe contesting defendants re-constructedit to
asubstantialextentbyspendingan amount of Rs.33000/- as held by a division benchof the high court
especiallywhen the suit house was purchasedfor an amount of Rs,.1800/- That shows thatitmustbe in a
totallydilapidated condition and the defendants appear to havepurchased only the site on which
theyput a substantiallynew construction to the originalpurchaseprice of Rs.1800/- The very fact that
defendant No.6 who was presumed to be well acclimatizedwith the court proceedings as he was an
upper divisionclerkinthecivilcourtatchhatarpur at the relevant time stoodby the transaction and the
recital in thesale deed for clevenand a half years and the furtherfact that hesaw to itthat his sons
challenged the transaction after such a long periodof time when defendantsin the meantimewent on
spending huge amountson the property and ultimatelycameforwardin the suit to supportthe plaintiffs
leaveno room for doubt thatthe suit was got filed bydefendant No.6 only with a view to knock out
more money from the contestingdefendantsand was clearly a collusive suit. On an overall
considerationof evidence on record,therefore we find ourselvesunabletoendorsetheconclusionsreached
by boththecourtsbelowthat the suit transaction was not bindingon the plaintiffs. The said finding is
against the weight of evidence and cannot be sustained Wethereforeholdthat the plaintiffs had made
out no caseforgetting anyrelieffrom the court in the presentproceedingsand their suit was
thereforeliable to be dismissed. Accordingly, this appealsucceeds and I allowed. The judgment
anddecree passed by the trial court and as confirmed with modification bythe high court are quashed
and set aside. Plaintiff’ssuitwillstand dismissed. However, inthefactsand circumstances of
thecasethere will be no order as to costs all throughout.
12. Before parting with the present proceedings however swemaymention that as noted earlier
appellant No.1, on his ownbehalf and on behalf of appellant No.2 hasgiven a writtenundertakingto this
court to pay exgratia Rs.200,000/- to the plaintiffrespondents. We
alsopermittheremainingcontestingdefendantsto file similarwritten undertakings withinone week from
today. These undertakingswillstandacceptedandaccordinglywhileallowingtheappellantdefendant to ex
225
gratia pay sum of Rs.200,000/- to the respondent plaintiffs within three months from today. The
saidamountbedepositedby the appellantsin the trial court withinthat time. The depositedamount of
Rs.200000/- will be permittedtobewithdrawnby the plaintiffs from the trialcourtondue identification.
Order accordingly.
226
12.
AIR 1998 SUPREME COURT 2401(From: Madhya Pradesh)
Dr. A.S. ANAND AND V N KHARE JJ,
Civil appeal No.4650 of 1997 D/-14-7-1998
Raghubar Singh
v.
Gulab Singh
Dr. A.S. Anand J.:
An answer to the questionwhether Smt.JanakDulari wife of Manraj Singh had any pre-existing
right in the suit land andwhether after the coming intoforce of the Hindu Succession Act 1956
(hereinafterreferredto as the Act)shebecame the full or absolute owner of thatland, woulddeterminethe
fate of this appeal by special leave.
2. The following table shows therelationship between the parties:-
(Table not given due to space constain-see from the original law reporter)
3. Manraj Singh son of Dhurandhar Singh and grandson of Hakimsingh son of the common ancestor
of the parties Subran Singh executedawill(Ex D-5) on 23.7.1946. He died on 27.8.1946. Manpher
Singh, son of Dashrath Singh, son of the common ancestor Subran Singh filed a suit for cancellation
of the will, in whichSmt Janaki Dulari widow of ManrajSingh and her grandson RaghuvirSingh(son
of Narbadia) wereboth made parties. Thatsuitended in a compromiseand a decreewas passed in terms
ofthecompromisedeed (Ex P 3) on 2.8.47 clause Nos. 1 and 2 of the compromisedecreeread as
follows:-
“1. That as till her life time as a Hindu widow per the terms of will dated 23.7.1946 executed by
Manraj in favour of Raghubar Singh, SmtJanakDulari will remain in ownership and possession.
2. That afterthedeathofdefendantJanakDulariPawai(Jagirdar) Britt, Pawai55/45,exceptland which
wasreceivedinpartitionby the father of ManrajSingh, Dhurandher Singh, all property movableand
immovable including the whole house will goto the heirs of ManrajSingh,defendantRaghubarsingh as
ownerand to hisheirsandlegal representatives.”
4. SmtJanakDulari continued to remain in possession of the suit property after the death of her
husbandManraj Singh on 27.8.1946. She died on 3.11.1969. The respondents(sons of Samsher Singh,
son ofDashrathSingh) herein after the death of SmtJanakDularifileda suit for possessionof the suit
land and mesne profitsinter alia, alleging that the land in suit was ancestral Pawai land of Manraj
Singh and on the death ofManraj Singh SmtJanakDulari as his widow came into possession of the
entireland. That Manraj Singh had no son and as his only issue, a daughter by name Narbadia,
according to the law then in force in Rewa State (where the suit lands are situated) could not inherit
from her father, he(Manraj Singh) executed a will on 23-6-46 gifting the entire property, movable and
immovable, to Raghubir Singh protecting the rights of his wife Smt. JanakDulari to enjoy theusufruct
from the land during her life time.It was also alleged that JanakDulari had no pre-existing right in the
suit land and that the compromise decree (Ex. P-3) had created only life interest in her and, therefore,
despite Section 14 of the Hindu Succession Act, 1956, Smt. JanakDulari, never became the full or
absolute owner of the suit property.According to plaintiff (respondents herein) they being the
reversioners were entitled to possession as owners of the land left by ManrajSingh.They also
questioned the validity of the sale deeds executed by Smt. JanakDulari in favour of defendant vendors
on the ground that sales had not been made for any legal necessity and, therefore, the vendees
acquired no valid title to the property purchased by them.The plaintiffs further questioned the right of
Raghubir Singh to the property left by Manraj Singh on various grounds.They also claimed certain
amounts by way of mesne profits but did not pursue that claim later on.
5. The suit was contested.The defence on the part of the appellants (defendants) was that Smt.
JanakDulari had an inherent right of maintenance out of the estate of Manraj Singh and that the
compromise decree (Ex. P-3) had conceded ownership of the land to her in recognition of that right.It
was claimed that Smt. JanakDulari had become an absolute owner of that land by virtue of Section
14(1) of the Act and was, therefore, fully competent to transfer that land through sale deeds Exs. D-13
and D-14 and that those alienations could not be challenged by the plaintiffs after her death.It was
further pleaded that after the death of Smt. JanakDulari, the land devolved on Raghubir Singh in
accordance with the terms of the will of Manraj Singh (Ex. D-5) and, therefore, the right of Raghubir
227
Singh over the suit property, as its owner was beyond doubt.The right of the plaintiffs to claim
ownership and possession of the suit land was denied.
6. The Trial Court framed a number of issues and ultimately after recording evidence dismissed the
suit. The Trial Court held that SmtJanakDulari had been given life interest in the property of her
husband through the will and that right was her pre-existing right and after the coming into force of
the Hindu Succession Act in 1956, Smt. JanakDulari acquired absolute right cover that property and
she had every right to sell that property. The court, further held that since Smt. JanakDulari had got an
absolute right over the suit property and she had every right to sell that property, the Trial Court,
further held that since Smt. JanakDulari and got an absolute right over the suit property in 1956, the
question of whether the transfer was made for any legal necessity or not was irrelevant.The trial court
held that the plaintiffs had failed to establish that they had any right or title over the suit
land.Aggrieved by the judgment and order of the Trial Court, the respondents-plaintiffs filed Civil
Appeal No.58 of 1978 which was heard by the First Additional District Judge.The appeal was allowed
and the judgment and decree of the Trial Court was set-aside and plaintiff’s suit was decreed in
respect of certain portions of the suit land.The defendants were directed to deliver vacant possession
of agricultural holdings measuring about 32 acres in village Baron, Tehsil Sirmaur, District Rewa to
the plaintiffs.Aggrieved by the judgment and decree of the First Additional District Judge in Civil
Appeal No.58 of 1978, the appellants filed a Second Appeal in the High Court of Madhya Pradesh. A
learned single Judge of the High Court partly allowed the appeal by setting aside plaintiffs suit in so
far as it related to Khasra numbers 549, 538/3525, 486 and 551/3527 but maintained the decree and
judgment made by the first appellate court in respect of remaining land.The High Court held that Smt.
Janaki Dulari had only been allowed to remain in possession and enjoy the property under the will
(Ex. D-5) and that same right had been reiterated by the compromise decree (Ex-P-3) as well, that the
said right was not in lieu of any pre-existing right of maintenance.The High Court, therefore, held that
Smt. Janaki Dulari never became full owner of the estate and that her case was governed by sub-
section (2) of Section 14 and not by sub-section (1) of Section 14 of the Act.It was also held that she
was not competent to transfer any portion of the suit land by sale and the transfers made by her
therefore, did not bind the plaintiffs after her death.The High Court accepted the plea of the plaintiff-
respondents that under the will the entire estate of the testator was to devolve on the legatee Raghuvir
Singh and that no proprietary rights were ever created in favour of Smt. JanakDulari by the will and
that she was only to remain in possession of the land and enjoy the usufruct of the property during her
life time.The High Court negated the interpretation placed by the appellants on the terms of the will
(Ex. D-5) as well as the compromise decree and rejected the plea that Smt. Janaki Dulari had acquired
the property of her deceased husband in lieu of her right of maintenance.According to the learned
single Judge of the High Court, since the Hindu Women’s Right of Property Act, 1937 was not in
force in Rewa State in the year 1946, when Manraj Singh died, Smt. JanakDulari acquired no pre-
existing right, which could mature into full ownership after the coming into force of the Act in
1956.In the words of the learned single Judge:
“I am, therefore, of opinion that JanakDulari was allowed to remain in possession and enjoy the
property under the Will Ex. D-5 and that the same right was reiterated by the compromise decree Ex.
P/3 and not in lieu of any pre-existing right of maintenance.That being so, she never became the full
owner of the estate and her case would be governed by sub-section (2) of Section 14 and not by sub-
section (1) thereof.She was, therefore, not competent to transfer the lands to the appellants and those
transfers, therefore, do not bind the plaintiffs after the death of Janaki Dulari”.
7. After holding that the Civil Court had jurisdiction to try the suit and that the challenge made on the
basis of Section 327 of the V.P. Abolition of Jagirs and Land Reforms Act, 1952 could not operate as
a bar, the learned single Judge held that in the absence of any allotment in the plaintiffs’ favour, they
could not lay any claim to the land comprised in four KhasraNos.namely 549, 538/3525, 486 and
551/3527.The second appeal was thus partly allowed and the judgment and decree of the Courts
below insofar as it related to Khasra Nos. 549, 538/3525, 486 and 551/3527 was set aside and the
plaintiff-respondents’ suit relating to those Khasra numbers was dismissed. The decree passed by the
first appellate Court regarding the remaining part of the suit land was maintained.This appeal by
special leave is directed against the judgment and order of the learned single Judge in Second Appeal
No. 402 of 1980 dated 20-1-1981.
228
8. We have heard learned counsel for the parties and examined the record. Before proceeding to
consider the submissions made by learned counsel for the parties at the bar, it would be appropriate to
first notice the relevant terms of the Will (Ex. D-5).
“Now as I have grown old and cannot look after the household affairs properly, my whole
property movable and immovable Pawai (Jagirdari) Britta, 55/45 Kothar (state owned) and 55/45
tenancy Khata No. 320 under 320 and under 320 areas 8.03. 6.14, 16.92 rental Rs.25 as six, Rs.5 as
nine and Rs.56 as six total area 31.09 Area total rental Rs.87 as 5 with house gold silver, gram,
Bullock, Cow, Buffalow, labourer, trees mango, Mahuwa, Bair, Bamur, Jamun, Kaitha, Imli etc. all
property in my possession I have given you on condition that you remain obedient to me and do
service and homage to me and to my wife and other members in my family till our death and after
death perform Gaya Barahe and remain in possession of property movable and immovable from
generation to generation and in case of need mortgage and sell it.But till myself along with my wife
are alive we shall have full control over all our property movable and immovable. After our demise,
you will have all power like ours in our property movable and immovable.I, therefore, execute this
gift deed so that it may remain intact and may be helpful in case of need.The witnesses have put their
signature below and stamp of Rs. 5/- No.4291 dated 23-7-1946 is attached Mitisawanbadi II Sambat
2003.”
9. Since there is some dispute about the correct translation of a material portion of the will, we re-
produce that portion of the Will in the vernacular, the language in which the will was written:
“Jab take ham apneydharampatniSametjiwithain tab takkuljaidad kula wa gair Mankula men
hamarapuraAdhikarkayamRahega bad Khatama ham logon kijindgi key tumharaAdhikar Kul Jaidad
Kula we gair mankula me hamareyBakshishnamahlikhdiyakisanadraheywakata par ham Awey.”
Clause (1) of the compromise decree (Ex.P.3) dated 2-8-1947 reads:-
“1. That as till her life time as Hindu widow as per terms of Will dated 23-7-1946 executed by
Manraj in favour of Raghubir Singh Smt. Janaki Dulari will remain in ownership and possession.”
10.The main issue on which learned counsel for the parties have addressed their arguments revolves
around the interpretation of Section 14 of the Act, which reads:
“14. (1) Any property possessed by a female Hindu, whether acquired before or after the
Explanation-In this sub-section “property” includes both movable and immovable property
acquired by a female Hindu by inheritance or device, or at a partition, or in lieu of maintenance or
under a will or any other instrument or under a decree or order of a Civil Court or under an award
where the terms of the gift, will or other instrument or the decree, order or award prescribed a
restricted estate in such property.”
11. According to the learned single Judge of the High Court, Smt. Janaki Dulari was only allowed to
remain in possession of and enjoy the property left under the will (Ex. D-5) during her life time and
that the same position was reiterated in the compromise decree (Ex. P-3) and therefore, she had only a
restricted estate in that property.It was also held that the property had not been bestowed on her in lieu
of any pre-existing right of maintenance and that her case was governed by Section 14(2) of the Act
and not by Section 14(1) of the Act.In taking this view, the High Court appears to have been mainly
influenced by the fact that Hindu Women’s Rights to Property Act, 1937 was not in force in Rewa
State in the year 1946, when Manraj Singh died and therefore Smt. JanakDulari could not be said to
have acquired any pre-existing right over the suit property in lieu of her right to maintenance, which
right could ripen into an absolute ownership after the coming into force of the Act in 1956 by virtue of
Section 14(1) of the Act.
12. Before considering the terms of the Will (Ex. D-5) and the compromise decree (Ex.P.3), we
consider it appropriate to first examine the question whether the right of maintenance, as a pre-
existing right of a Hindu widow, is traceable only to the statutory provisions of the Hindu Women’s
Rights to Property Act, 1937 (which admittedly was not in force in Rewa State in 1946 when Manraj
229
Singh died) as opined by the High Court or does in flow from Shastric Hindu Law on account of the
incidence of marriage itself and that right received protection by the Act in 1956 through Section
14(1) of the Act.
13.The first question, requiring an answer, therefore, is:
“What are the obligations of a Hindu husband towards the maintenance of his wife both during
his life time and after his death?”
14. According to the old Shastric Hindu Law, a marriage between two Hindus is a sacrament – a
religious ceremony, which results in the sacred and a holy union of man and wife, by virtue of which
the wife becomes a part and parcel of the body of the husband. She is, therefore, called Archangani.It
is on account of this status of a Hindu wife, under the Shastric Hindu law, that a husband was held to
be under a personal obligation to maintain his wife and where he died, possessed of properties,his
widow was entitled, to a right to be maintained out of those properties.The right of a Hindu widow to
be maintained out of the properties of her deceased husband is, thus, a spiritual and moral right, which
flows from the spiritual and temporal relationship of husband and wife, though the right is available
only so long as the wife continues to remain chaste and does not remarry.
15. Mulla in his classic work on “Hindu Law.”, 14thed., dealing with the characteristic of the right to
maintenance of a Hindu wife, observes: -
“A wife is entitled to be maintained by her husband, whether he possesses property or not. When
a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the
obligation of maintaining her in that style. The maintenance of a wife by her husband is a matter of
personal obligation arising from the very existence of the relationship, and quite independent of the
possession by the husband of any property, ancestral or self-acquired.” (Emphasis ours)
Mayne in his treatise on “Hindu Law and Usage” 11 ed., while tracing the history and origin of
th
the right to maintenance of a Hindu wife says:-

“The maintenance of a wife by her husband is, of course, a matter of personal obligation, which
attaches from the moment of marriage.” (Emphasis ours)
16. The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties
of her deceased husband received a statutory recognition with the coming into force of the Hindu
Women’s Rights to Property Act, 1937.The law on the subject was, thereafter, consolidated and
codified by the Hindu Married Women’s Right to Separate Maintenance and Residence Act, 1946 that
came into force on April 23, 1946. The right to maintenance of the Hindu widow, as a pre-existing
right, was thus recognized by the two statutes referred to above but it was not created for the first time
by any of those statutes.Her right to maintenance existed under the Shastric Hindu Law long before
statutory enactments came into force.After the attainment of independence the need for emancipation
of women from feudal bondage became even more imperative. There was growing agitation by Hindu
women for enlargement of their rights as provided by the Shastric Hindu Law in various spheres.It
was at this juncture that the Parliament stepped in and enacted various statutes like the Hindu
Marriage Act, 1956, The Hindu Adoptions and Maintenance Act, 1956, and the Hindu Succession
Act, 1956, providing for intestate succession.
17. The Hindu Succession Act, 1956 made far reaching changes in the structure of Hindu law by
removing the traditional limitations on the powers of a Hindu widow to deal with the property of her
deceased husband, in her possession in lieu of her right to maintenance and the Act made her an
absolute owner of the property, over which hitherto fore she had only a limited right.
18. A most elaborate discussion about the right of a female Hindu before and after the coming into
force of the Hindu Succession Act, 1956 and particularly the provisions of Section 14 of the Act, is
contained in a three Judge bench judgment of this Court in V. Tulasamma v. Sesha Reddy (Dead) by
L.Rs., (1977) 3 SCC 99 : (AIR 1977 SC 1944). Dealing with the provisions of the Hindu Succession
Act, 1956, this Court in V. Tulasamma v. Sesha Reddy (Dead) by L.Rs., (supra) observed:-
“The Act is a codifying enactment, and has made far-reaching changes in the structure of the
Hindu law of inheritance, and succession.The act confers upon Hindu females’ full rights of
inheritance and sweeps away the traditional limitations on her powers of disposition, which were
regarded under the Hindu law as inherent in her estate…”
19. Fazal Ali, J. in his exhaustive judgment, dealing with the question of the pre-existing right of a
Hindu widow lay down (AIR 1977 SC 1944 at p.1960):
230
“Thus on a careful consideration and detailed analysis of the authorities mentioned above and the
Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents
and characteristics of a Hindu woman’s right to maintenance:
(1) That a Hindu woman’s right to maintenance is a personal obligation so far as the husband is
concerned, and it is his duty to maintain her even if he has no property.If the husband has
property, then the right of the widow to maintenance becomes an equitable charge on his
property and any person who succeeds to the property carries with it the legal obligation to
maintain the widow:
(2) Though the widow’s right to maintenance is not a right to property, it is undoubtedly a pre-
existing right to property, i.e., it is a jus ad rem not jus in rem and it can be enforced by the
widow who can get a charge created for her maintenance on the property either by an
agreement or by obtaining a decree from the Civil Court.
(3) That the right of maintenance is matter of moment and is of such importance that even if the
joint property is sold and the purchaser has notice of the widow’s right to maintenance, the
purchaser is legally bound to provide for her maintenance.
(4) That the right to maintenance is undoubtedly a pre-existing right which existed in the Hindu
law long before the passing of the Act of 1937 or the Act of 1946 and is, therefore, a pre-
existing right. (Emphasis ours.)
(5) That the right to maintenance flows from the social a temporal relationship between the
husband and the wife by virtue of which the wife becomes a sort of co-owner in the property
of her husband, though her co-ownership is of a subordinatenature; and
(6) That where a Hindu widow is in possession of the property of her husband, she is entitled to
retain the possession in lieu of her maintenance unless the person who succeeds to the
property of purchases the same is in a position to make due arrangements for her
maintenance”.
20. Dealing with the scope of section 14 of the Act, the learned Judge opined that the provisions of the
section must be liberally construed in order to advance the object of the Act, which is “to enlarge the
limited interest possessed by a Hindu widow” in “consonance with the changing temper of the times”
and observed:-
“That the act of 1956 has made revolutionary and far-reaching changes in the Hindu society and
every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a
long-felt need and tried to do away with the invidious distinction between a Hindu male and female in
matters of intestate succession:
The learned Judge then interpreted section 14 thus:
“1. Section 14 (1) and the explanation thereto have been couched in the widest possible terms and
must be liberally construed in favour of the females so as to advance the object of the 1956 Act
and promote the socio-economic ends sought to be achieved by this long-needed legislation.
2. Sub-section (2) of section 14 is in the nature of a proviso and has a file of its own without
interfering with the operation of section 14 (1) materially.The proviso should not be construed
in a manner so as to destroy the effect of the main provision or the protection granted by
Section 14 (1) or in a way so as to become totally inconsistent with the main provision.
3. Sub-section (2) of section 14 applies to instruments, decrees, awards, gifts, etc. which creates
independent and new titles in favour of the females for the first time and has no application
where the instrument concerned merely seeks to confirm, endorse, declare or recognize pre-
existing rights.In such cases a restricted estate in favour of a female is legally permissible and
Section 14 (1) will not operate in this sphere.Where, however, an instrument merely declares or
recognizes a pre-existing right, such as a claim to maintenance or partition or share to which the
female is entitled, the sub-section has absolutely no application and the female’s limited interest
would automatically be enlarged into an absolute one by force of section 14 (1) and the
restrictions placed, if any, under the document would have to be ignored.Thus where a property
is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument
is taken out of the ambit of sub-section (2) and would be governed by section 14(1) despite any
restrictions placed on the powers of the transferee.
4. The use of express terms like “property acquired by a female Hindu at a partition,’ ‘or in lieu of
231
maintenance,’ or “arrears of maintenance’ etc. in the explanation to Section 14 (1) clearly
makes sub-section (2) inapplicable to these categories which have been expressly excepted
from the operation of sub-section (2).”
21.The judgment in Tulasamma’s case, (AIR 1977 SC 1944), has held the filed till date (see also with
advantage: Ram Kali (Smt.) v. ChoudhriAjit Shankar, (1997) 9 SCC 613 and BhoomireddyChenna
Reddy v. BhoospalliPeddaVerrapa (Dead) by L.Rs. (1997) 10 SCC 673 : (1997 AIR SCW 2188).
22. Thus, we find that there is enough authority for the proposition that the right to maintenance of a
Hindu female is a pre-existing right, which existed in the Hindu law long before the Act of 1937 or
the Act of 1946 came into force and is not a creation of those statutes, which only recognized that
position.In the words of Fazal Ali, J. in Tulasamm’s case (AIR 1977 SC 1944 at pp. 1977-78) (supra):
“The Hindu female’s right to maintenance is not an empty formality or an illusory claim being
conceded as a matter of grace and generosity, but is a tangible right against property which flows
from the spiritual relationship between the husband and the wife and is recognised and enjoined by
pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from
Yajnavalkya to Manu.Such a right may not be a right to property but it is a right against property and
the husband has a personal obligation to maintain his wife and if he or the family has property, the
female has the legal right to be maintained there from. If a charge is created for the maintenance of a
female, the said right becomes a legally enforceable one.At any rate, even without a charge the claim
for maintenance is doubtless a pre-existing right so that any transfer declaring or recognizing such a
right does not confer any new title but merely endorses or confirms the pre-existing rights.
23.Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and
temporal relationship between the husband and the wife and that right in the case of a widow is “a
pre-existing right,” which existed under the Shastric Hindu Law long before the passing of the 1937
or the 1946 Acts.Those acts merely recognized the position as it existed under the Shastric Hindu law
and gave it a “statutory” backing.Where a Hindu widow is in possession of the property of her
husband, she has a right to be maintained out of it and she is entitled to retain the possession of that
property in lieu of her right to maintenance.
24.Explaining the meaning of the expression “possessed” as used by the legislature in Section 14(1)
of the1956 Act in Tulasamma’s case AIR 1977 SC 1944 At p.1978) (Supra) this Court held:
“The words ‘possessed by’ used by the Legislature in Section 14(1) are of the widest possible
amplitude and include the state of owning a property even though the owner is not in actual or
physical possession of the same.Thus, where a widow gets a share in the property under a preliminary
decree before or at the time when the 1956 Act had been passed but had not been given actual
possession under a final decree, the property would be deemed to be possessed by her and by force of
Section 14(1) she would get absolute interest in the property.It is equally well settled that the
possession of the widow, however, must be under some vestige of a claim, right or title, because the
section does not contemplate the possession of any rank trespasser without any right or title.”
(Emphasis supplied).
25.It is by force of Section 14(1) of the Act, that the widow’s limited interest gets automatically
enlarged into an absolute right notwithstanding any restriction placed under the document or the
instrument.So far as sub-section (2) of Section 14 is concerned, it applies to instruments, decrees,
awards, gifts etc., which create an independent or a new title in favour of the female for the first
time.It has no application to cases where the instrument/document either declares or recognizes or
confirms her share in the property or her “pre-existing right to maintenance” out of that property.As
held in Tulasamma’s case (supra), sub-section (2) of Section 14 is in the nature of a proviso and has a
field of its own, without interfering with the operation of Section 14(1) of the Act.
26.Having examined the legal position, let us now advert to the salient facts of the present case.
27.The suit was filed by Manpher Singh against Smt. Janaki Dulari and Raghubar Singh, questioning
the validity of the Will executed by Manraj Singh on 23.6(7).1946 and seeking the cancellation of the
said will ended in a compromise decree dated 2-8-1947.Manraj Singh died on 27-8-1946. Smt. Janaki
Dulari died on 3-11-1969 and admittedly till her death she was in rightful possession of the suit
property which position was duly recognized in the compromise decree also. The case set up by the
plaintiff in the subsequent suit out of which the present appeal arises, as already noticed, was that
Smt. JanakDulari had a pre-existing right to the suit land but only a restricted right under the will and
232
that the compromise decree only created a life interest in her favourfor the first time and therefore
Smt. JanakDulari never became full or absolute owner of the property in dispute even after the
coming into force of the 1956 Act and as such after her death, the plaintiffs became entitled to
possession of the suit property, being reversioners of ManrajSingh.According to them her case was
governed by Section 14(2) of the Act. The case of the defendants on the other hand was that in the
will itself, it was recognized that Smt. JanakDulari would remain in possession of the suit property as
its owner and this position was accepted in the compromise decree as well and as such her “ownership
and possession” of suit property was protected by Section 14(1) of the Act.While dismissing the suit,
the Trial Court opined that Smt. JanakDulari had becomean absolute owner of the suit property by
virtue of Section 14(1) of the Hindu Succession Act and, therefore, she could legitimately alienate the
property in favour of the defendants and that plaintiffs could make no challenge to it after her death.
28.Learned counsel for the parties have reiterated the stand of their respective clients before us
also.With a view to appreciate the rival stand of the parties, it is appropriate to find out the intention
of the testator when he executed the will on 23.6.(7)1946 and the effect of the compromise decree.
29.We have referred to the relevant clauses of the will as also clauses 1 and 2 of the Compromise
Decree in an earlier part of this judgment.A careful reading of the will shows that the testator clearly
declared his intention to the effect that the “right and control” over the suit property shall vest in
Raghuvir Singh after the demise of the testator and his wife and that during the life time of either of
them, the “right, control and ownership” of the property would remain with the survivor.This position
emerges quite clearly from the vernacular portion of the will, which has been referred to in an earlier
part of this judgment.A free English translation of that vernacular portion would read:
“………. Till such time as myself and my wife remain alive and till then we shall have full right,
control and ownership of the entire property but after the death of both of us all those movable and
immovable properties which vest in myself and my wife would devolve on Raghuvir Singh like they
vest in us.” (Emphasis ours)
It is thus, clear from a reading of the above portion of the will, that Manraj Singh and
JanakDulari were to retain all their rights and control over the property as owners thereof till their
death and all those rights which they had over the suit property, were to later on devolve upon
Raghuvir Singh after their death.Raghuvir Singh was to acquire only such “rights” and “control” over
the suit property, which the testator and his wife Smt. JanakDulari themselves had in respect of the
suit property during their life time.It is an admitted case of the parties that Smt. JanakDulari had the
“possession and control” of the suit property after the death of her husband and in terms of the will
that right and control was by virtue of the recognition of her “ownership” of the suit property.Even if
it be assumed for the sake of argument, (though the intention of the testator was clearly otherwise)
that the “right” which Smt. JanakDulari had under the will, was to remain in possession of the
property during her life time only and enjoy the property as well as its usufruct only during her life
time, her limited estate ripened into full ownership by virtue of the coming into force of the Hindu
Succession Act.Admittedly she had continued to remain in possession of the property till her death in
1969, long after the coming into force of the Act in 1956.On a proper construction of the will, we hold
that the use of the expression “till myself along with my wife are alive we shall have full control over
all our property movable and immovable as owners,” unmistakably shows that the rights which Smt.
JanakDulari was declared to possess during her life time were the same as those of the testator himself
and that she was to remain in “full control over all the property movable and immovable” during her
life time as an owner of the property. After the death of her husband, she continued to remain in
possession of the suit property as its owner and she had full right and control over the same.Clause 1
of the Compromise Deed filed in the suit filed by Manpher Singh which reads:
As per terms of will dated 23-7-1946 executed by Manraj in favour of Raghubar Singh, Smt.
JanakDulari will remain in ownership and possession.” (Emphasis ours)
It lends support to the interpretation that we have placed on the will.It recognizes her right to
remain in “ownership and possession” of the suit property.The terms of the will and the compromise
decree thus unmistakably shows that Smt. JanakDulari had the “ownership and possession of the suit
property” till her death and (even if it be assumed to be her “limited estate,” for the sake of argument)
it ripened into full ownership by virtue of Section 14(1) of the Act.
30. The impugned judgment of the learned single Judge of the High Court suffers from a
233
misconception about the nature of the “pre-existing right” of a Hindu widow.The opinion of the
learned single Judge that there could be no “pre-existing rights” vested in Smt. JanakDulari because
of the non-applicability of the 1937 Act in Rewa State is clearly erroneous.Her right to maintenance
existed under the Shastric Hindu Law and was not created by the 1937 or 1946 Acts.Those Acts
merely gave statutory backing to her existing rights.
31.The High Court also fell in error in holding that the case of Smt. JanakDulari was covered by
Section 14(2) of the Act and not by Section 14(1) of the Act.The ‘will’ as already noticed declared
and the Compromise Decree recognized the right of Smt. JanakDulari as an “owner in Possession” of
the suit property with all the “rights and control” over it.The compromise decree did not create any
independent or new title in her favour for the first time.Sub-section (2) of Section 14 thus has no
application to her case.By virtue of sub-section (1) of Section 14 the limited interest (even if it be
assumed for the sake of argument that Smt. JanakDulari had only a limited interest in the property of
which she was in possession as an owner) automatically got enlarged into an absolute one, as her case
was clearly covered by Section 14(1) of the Act.
32. The impugned judgment of the High Court thus cannot be sustained. This appeal, therefore,
succeeds and is allowed.The judgment and decree of the High Court is set aside and that of the Trial
Court restored.The parties are however directed to bear their own costs.
Appeal allowed.
-------------------
234
13.
AIR 1998 ORISSA 196
P.K. MISRA, J.
Smt. Kamal Kumari Bohara
v.
HarekrishnaGhadei
Second Appeal No.37 of 1984, dt/- 7-1-1998.
JUDGMENT: - Defendant No.1 is the appellant against a confirming decision.Plaintiff-respondent

No.1 filed O.S. No. 182 of 1979 for declaration that the transfer of the disputed property is void and in
the alternative, to allow the plaintiff to re-purchase the disputed land.
2. Plaintiff is the son of one BhikariGhadei. Defendant No.1 is the alienee from Gurbari, widow of
BhikariGhadei and defendants 2 and 3 are the daughters.It is claimed that the disputed land is the
ancestral property of BhikariGhadei who expired in the year 1971.Thereafter, on 18-7-174 the
plaintiff’s mother Gurubari alienated the disputed property for Rs.100/- in favour ofdefendant No.1 of
by executing a sale deed for herself as well as on behalf of her minor son, the plaintiff. On receipt of
notice in the mutation case No. 5012/76, the plaintiff came to know about the illegal allegations by his
mother and thereafter filed that suit on 14-12-1979 claimingthat he is not bound by the sale deed (Ext
A)it was furtherclaimedthatthe sale deedand alternatively the disputedpropertywhichwashome stead
landshould be re-conveyed in favour of the plaintiff on refund of consideration.
3. Defendant No.1 in her written statement pleaded that Ext A the sale deed had been duly executed
for legal necessity and the plaintiff as well as defendants 2 and 3 are bound by the same.
4. The trial court decreed the suit on a finding that due execution of Ext A had not been proved and no
consideration had passed under Ext A and as such the documentwas void. It was also found that the
prayer for re purchasing the property was not maintainable in the absence of a prayer for partition of
the entire disputed land.
5. In the appeal by defendant No.1 the lower appellant court held that Ext A the sale deed was void
able in view of the provisions contained in section 8(2) of the Hindu Minority and Guardianship Act,
1956, in as much as no permission had been obtained by the mother guardian for alienating the
property of the minor it further found that the document had been duly executed and consideration
had been paid and there was legal necessity for the sale and as such the sale deed was valid so far as it
related to halfshare of plaintiff ‘s motherin the disputed property. However, applying the provisions
contained in Section 22 of Hindu Succession Act, 1956, the lower appellant court directed that the
plaintiff was entitled to re purchase the suit land on payment of Rs.100/-, which was the consideration
amount. The aforesaid decision of the lower appellant court is under challenge at the instance of
defendant No.1.
6.In this appeal, it is contended that the trial court having refused the prayer of the plaintiff for re
purchase of the land and in the absence of any independent appeal or cross objection by the plaintiff
against the said direction, the lower appellant court could not have passed a decree for re purchase of
half share representing the interest of plaintiff’s mother. It is further submitted that the appellant
court’s finding that Ext A was valid and binding in respect of the half interest of plaintiffs mother
having not been challenged is binding and since the relief for re purchase under section 22 of the
Hindu Succession Act had not been granted., defendant No.1’s right in respect of the
disputedpropertyshouldbeupheld, in this connectionitisalsosubmitted that section 22 of the
Hindusuccession Act does not apply tocompletedtransfer and at any rate in the absence of a
separatesuit to enforce the rightof pre-emption, such reliefcouldnot have been grantedby the lower
appellant court.
7. The finding of the lower appellant court that there was due execution of Ext A and the mother had
sold the property for herself as well as on behalf of the minor for legal necessity, is apparently a
finding of fact which has not been successfully challenged by the plaintiff respondent in any manner.
The question however, arise as to whetherthesaidtransactionis not binding on the minor as admittedly
permissionunder section 8 of the Hindu Minority and guardianship Act had not been obtained.The
learned counselfor the appellant has submitted that since mother was the Karta, she had every right to
alienate any property belonging to joint family for legal necessity. Admittedly Ghadeiwas the Karta,
235
and on his death in 1971. His interest in the property devolved upon various heirs as contemplated in
Section 6 of the Hindu Succession Act.Under section 19 of the Hindu Succession Act the persons
inheriting property under the Act hold the property as tenants in common and not as joint tenants,
besides, on the death of BhikaariGhadei the plaintiff though minor became the sole surviving
coparcener. Though Guruabari as motherwas the guardianof the minor, it cannotbe said that she was
the Karta of the joint family having the same rights of a regular Karta in a joint family regarding
alienation. Admittedly no permission had been taken under Section 8 of the Hindu minority and
Guardianship Act; therefore, the lower appellant court rightly concluded that the alienation so far as it
related to the interest of the minor son, was not binding on the plaintiff.
8. The next question is as to whether the plaintiff has the right to re purchase the interest of his
mother, which was also sold to defendant No.1 Section 22 of, the Hindu Succession Act, is definitely
attracted to such a situation. However, the counsel for the appellant that Section 22 has no application
to a completed transfer and at any rates a regular suit for pre-emption should have been filed contends
it. In the suit itself the plaintiff had prayed for re purchasing the property by applying the principles of
Section 4 of the Partition Act. Merely because there was no reference to section 22 of the Hindu
Succession Act it cannot be said that the suit was not one for pre-emption. Whether or not
theprovisions of Section 4 of the partition act wereattracted, the fact remains that there was a prayer
by the plaintiff for re-purchasing the property. The terms of Section 22 appear to be wider than the
provision contained in Section 4 of the Partition Act since admittedly the plaintiff and his mother had
succeeded the provisions contained in section 22 of the Hindu Succession Act were squarely
applicable. The decisions reported in 1987 (1) ILR 211. Bhasker Chandra Barik v Bishnu Chandra
Pradhan and 1985 (1) OLR 488, Muralidhar Das v Bansidhar, are not applicableto the facts of the
present case. In the aforesaidtwo cases, the main question was as to whether the rightunder section 22
of the Hindu Succession Act could be enforced even after a completed transaction by filing an
application. Differing fromtheviewexpressed earlier by this court, in the aforesaid two cases it was
holdthat by filing a mere application the right under Section 22 cannot be exercised in cases where
there was already suit has to be filed. As already indicated in the present suit there was a
specificprayerfor repurchasing the property and as such the principles laid down in the aforesaid two
decisions do not run contrary to the facts and circumstances of the present case.
The lower appellant court had directed that the plaintiff can re purchase the property; by paying
Rs.100/- the valuation, which is bases on the consideration, amount reflected in the sale deed has not
been challenged as such and need not be interfered with.
9. For the aforesaid reasons, I do not find any merit in this appeal, which is accordingly dismissed.
There will be no order as to costs.
Appeal dismissed
----------------------
236
14.
AIR 1999 HIMACHAL PRASESH 21
ARUN KUMAR GOEL, J.
Des Raj
v.
Mehar singh
RSANo.315 of 1990 D/-30.6.1997.
JUDGMENT-Plaintiffs had filed this appeal against the judgment passed by District judge Hamirpur
Whereby the dismissal of his suit for declaration etc., has been upheld.
2. Suit was filed by the plaintiff for declaration to the effect that sale deed registered on 20.6.1973 at
Hamirpur as well as Mutation No.244 dated 29.3.1975 in respect of land measuring 8 Kanal 19
Marlassituate in Tika Kangru. MaujaUgialtaTehsilanddistrict Hamirpurexecuted byjaswantsingh
defendant No.2father of theplaintiffin favour of Mehar Singh defendant No.1 is
nullandvoidaswellasinoperativebecause it was made withoutlegalnecessity,DefendantNo.2 was
allegedto be adrunkard and womanizer. According to the plaintiff there was no necessity much less
legal necessity for the sale having been effected besides this defendant No.2 was leaded to be a
personhavingsufficient means as well as having landed and house property. It was also pleaded that
the parties being Rajput are governed by custom in the matter relating to alienation of ancestral
property as in the present case and the sale in question was made by defendant No.2 for his illegal and
immoral needs.
3. This suit was contested and resisted by defendant No.1 who pleaded that he purchased the land
from defendant No.2 and on enquiry made by him from the latter it was informed that money is
required by him for development of land, performing marriage of his daughters, Defendant No.1
further pleaded that the suit has been got filed by vendor defendant No.2 who is spending the amount
on this litigation in respect of minor plaintiff and the latter was residing with his parents Defendant
No.2 was alsostatedto have constructed cow shed as also spentmoneyfor bringing the
landunderploughsandthusit was pleadedthatthesuit was notmaintainableandmeriteddismissal. In
replication filed by the plaintiff all the pleas raised in the written statement were controverted and
those averred in the plaint were reiterated.
4. On the aforesaid pleadings parties went to trial on the following issues: -
1. Whether the plaintiff and Jaswant defendant are governed by custom in matters of
alienation? If so, what that custom is?OPP
2. Whether the land in suit is ancestral qua the plaintiff and defendant Jawant? OPP
3. Whether the suit is collusive as alleged? OPD-1.
4. Whether the sale is for legal necessity and for consideration?OPD-1
5. Whether the sale is validas an act of good management? OPD-1
6. What is the effect of the elder son of vendor not filing the suit? OPD-1
Relief.
5.Trial court found issues Nos. 1 and 2 in favour of the plaintiff. Issue No.3 was found against
defendant No.1 whereas issues Nos. 4 and 5 were found in his favour issue No.6 was held to be
having no effect and consequently under issue No.7 the suit was dismissed. The matter having been
taken up in appeal against the judgment and decree passed bythe trial court. It met the same fate and it
isin this background that the present appeal has been filed.
6.On12.10.1990 this appeal was admitted on the following substantial question of law:
“Whether the findings recorded by the courts below that the sale made by defendant No.2 in favour of
defendant was for legal necessity are vitiated due to misreading the evidence and misinterpreting the
documentary evidence on record?
7. Actual date intimation was sent to respondent No.2 for 23.6.1997 but he did not appear as such the
matter was heard in his absence and learned counsel for the parties made their submissions.
8. ShriJ.R.Tharkur, learned counsel for the appellants submitted that the findings recorded by both
thecourts below regarding the sale impugned in the suit made vide Ex D-1 being for legal necessity
are not correct and according to him both the courts below have fallen into error while holding so.
According to Sh.Thakurthere was no legal evidence whichcouldbetranslated against his clientto show
that there was any necessity much less legal necessity compelling the sale of the lands in question by
237
defendant No.2 his father in favour of defendant No.1.In supportofhis this submission Shri J.R.
Thakur hasdrawn the attention of this court to the evidence on record.
9. On the other hand Shri R.K. Sharma While supporting the judgments of the courts below
submittedthat there is ample evidence on record to establish that after effecting sale defendant No.2
had constructed retaining wall toprotect his land as well as constructed /madeimprovement to his
house as also performed chawarkh (fourth death anniversary) of his step mother.According to Shri
R.K. Sharma as a prudent personhisclientmade enquires as to whyand for what reason defendant No.2
is affecting the sale in question and in response to this enquiryof his client. JaswantsSinghdefendant
informed defendant No.1 that it was for aforesaid necessitythat sale is beingaffected. Whether the
money actually was spent or not is no concern of his client, althoughhe pointed out that in the present
casethere is enoughevidence to show that money had in fact been spent on the aforesaid requirement
of the defendant No.1.
10. After having considered the respective submissions advanced by the learned counsel for the
partiesas well as after going through the evidence on record, one thing is certain that the sale in
question was affected on 20.6.1973. There is evidence on record to show that about 12/13 years ago
when the statements of witnesses were recorded, defendant No.2 did perform the marriage of one of
his daughters, raised construction of danga near his house as also had put up retaining walls in his
fields.This is the factual side of the matter.Shri J.R. Thakur in this behalf made an attempt to show
that so far performance of these acts by defendant No.2 is concerned, the money spent thereon was
not out of the sale proceed but defendant No.2 had otherwise enough amount keeping in view his
financial position as well as the income he was deriving from his agricultural pursuits.
11.So far evidence relating to the money having been spent on the development of the house,
marriage of his daughter as well as Chawarkh of his step mother is concerned, reference can usefully
be made to the statements of DW-1 Mehar Singh and DW-9 Mahantu.Similarly, documents Ex.D-3
agreement to sell dated 22-1-1973 endorsement on its back vide Ex.D-2 having been made by
defendant Jaswant Singh as well as execution of sale deed Ex.D-1 is concerned, all these documents
stand duly proved from the statements of defendants witnesses Nos.1 to 7. In addition to defendants’
evidence, plaintiffs’ witnesses having also admitted the performance of marriage, construction of
retaining wall near the house as well as performance of Chawarkh of his stepmother by Jaswant
Singh.Reference in this behalf can be usefully made to the statements of PW-2 Hari Singh.PW-3
Roop Singh, PW-4 Sohan Singh and PW-5 Jaswant Singh,that being so on the basis of evidence on
record, the findings recorded by the Courts below call for no interference at this stage. This is in
addition to the fact that these are concurrent findings of fact recorded by the Courts below which are
based on proper appreciation of evidence both oral as well as documentary.
12.Now coming to the legal aspect of the case, as to what constitutes legal necessity. In this behalf,
this Court cannot lose sight of the fact that the custom does not have to remain static with the
advancement in society.The customs also keep on varying with the time.While examining this aspect
of the matter, situation, which exists as on date, has to be considered. While considering the fact that
what was a necessary item of expenditure a few decades ago may to remain the same in the changing
society.In this behalf the approach does not have to pedantie and further the matter cannot be looked
into with some fixed notions.If this approach is adopted, there cannot be any human progress.That
being so the matter could not be approached from a narrow or limited point of view.Considering the
present case in the light of this position, there is enough evidence to show that the family of the
defendant No.2 was expanding, he had three daughters one of whom was married, besides his sons
and mother and above all he also required money for making additions/improvements to his house as
well as for providing retaining walls to his land to make improvements for generating income there
from.
13.Before getting the sale deed executed in his favour, defendant No.1 had enquired from defendant
No.2 as to why he wanted to affect the sale in question.This was all that the appellant did it as a
prudent person.Although there is evidence on record of this case to show that defendant No.2 spent
money aforesaid, even if he had not spent the money, it cannot be said that the legal necessity held out
by the vendor, defendant No.2 in the present case did not exist.The evidence of the plaintiff
establishes that the defendant did spend the money in the aforesaid pursuits although in the next
breath they have gone on record to say that firstly the money was not required by the defendant No.2
238
for the said purpose and secondly he otherwise had money, this in addition to the fact that all the
witnesses of the plaintiff in a parrot like manner have stated that defendant No.2 was a drunkard,
womanizer and indulged in gambling and therefore there was no necessity for him to have effected
the sale in question.From the evidenced of the plaintiff, it can safely be said that it does not inspire
confidence.Infact, the action of the defendant No.2 in having executed the sale deed vide Ex. D-1 in
favour of the plaintiff was an act of prudent management, which justified the legal necessity.
14.No other point has been urged in support of this appeal on behalf of the appellant.
15.As a result of the aforesaid discussion, it is evident that there is no merit in this appeal, which is
accordingly dismissed with costs, quantified at Rs.1000/-.
Appeal dismissed.
------------------------
239
15.
AIR 2001 SUPREME COURT 1155(From: Atna)
S.P. BHARUCHA, N. SANTOSH HEDGE
AND Y.K. SABHARWAL., J.J.
Civil Appeal Nos. 5450-5451 of 1997 dt/- 22-2-2001.
Commissioner of Income Tax, Bihar-II, Ranchi
v.
Smt. Sandhya Rani Dutta
BHARUCHA, J.: - These appeals arise from a judgment delivered by the High Court at Patna (Ranchi
Bench) on an income-tax reference at the instance of the Revenue.The three questions the High Court
was called upon to consider read thus:
“(i) Whether on the facts and in the circumstances of the case, female heirs of a Hindu governed by
the Dayabhaga School of Hindu Law dying intestate could form a joint Hindu Family by
means of agreement?
(iii) Whether female heirs of a Hindu governed by the Dayabhaga School of Hindu Law dying
intestate could impress upon their inherited property the character of joint family property?
(iii) Whether on the facts and in the circumstances of the case; one-third of the properties inherited
from her husband was assessable in the hands of the assessee in the status of individual?”
The High Court answered the first and second questions in the affirmative and in favour of the
assesse and the third question in the negative and against the Revenue.
2. The brief facts leading to the reference are these: One Har Govind Dutta, a Hindu governed by the
Dayabhaga School of Hindu Law, died intestate on 19 thJune, 1972, leaving behind his widow (the
assesse-respondent) and two daughters, Priya Dutta and KeyaDutta.That the assesse and the two
daughters inherited the self-acquired properties of the deceased in equal shares is not in
dispute.Theassesse and the two daughters entered into an agreement on 26 thJuly 1972. Thereby they
claimed to form an Hindu undivided family and the assesse threw her share of the inherited property
into the kitty of this Hindu undivided family. Accordingly, for the Assessment Years 1974-75 and
1975-76 the assesse did not disclose in her income-tax returns any income from her share of the
inherited property.
3.The Income Tax Officer rejected the assesse’s contention that her share of the inherited property
had been thrown into the kitty of an Hindu undivided family and he held that she was liable to
income-tax in respect of the income there from.Her appeal was rejected by the Appellate Assistant
Commissioner, she went up before the income Tax Appellate Tribunal, which reversed the view of the
taxing authorities.From out of the judgment of the Tribunal the questions aforestated were referred to
the High Court.The High Court, relying principally upon the judgment of this Court in Commissioner
of Wealth-Tax v. Gauri Shankar Bhar, (1972) 84 ITR 699 : 1972 Tax LR 979 came to the conclusion
that there was no bar to the constitution of an Hindu undivided family in respect of properties
inherited by the heirs, whether female or male, of a Hindu governed by the Dayabhaga School dying
intestate by throwing an ascertained share into the hotchpot by agreement.
4.The high Court was in error in its reading of the judgment of this Court in the case of Gauri Shankar
Bhar, (1972 Tax LR 979) (supra).This Court held, in view of the concession that each one of the heirs
of a deceased governed by the Dayabhaga School took a definite share in the property left by him, that
it was not necessary to decide whether a Dayabhaga Hindu family could be considered a Hindu
undivided family within the meaning of Section 3 of the Wealth Tax Act, 1957.It held that, on the
facts of the case, the heirs had taken the property of the deceased in separate shares, therefore, in law,
each of them was liable to pay wealth-tax as individuals.It could not be said that an individual who
inherited some property from someone became a Hindu undivided family merely because he was a
member of an Hindu undivided family. There is, therefore, nothing in the judgment in Gauri Shankar
Bhar’s case to support the view taken by the High Court.
5.In Gowli, Buddanna v. Commissioner of Income-tax, Mysore, (1966) 60 ITR 293: AIR 1966 SC
1523), this Court held that there might be a joint Hindu family consisting of a single male member
and the widows of deceased coparceners.The plea that there had to be atleast two male members to
form a Hindu undivided family as a taxable entity was found to have no force.Implicit in this is the
conclusion that atleast one male member is necessary for the purposes of the formation of an Hindu
240
undivided family.
6.In Surjit Lal Chhabda v. Commissioner of Income Tax, (1975) 101 ITR 776: AIR 1976 SC 109 :
1976 Tax LR 23 it was held by this Court that a joint Hindu family, with all its incidents, is a creature
of law and cannot be created by the act of parties, except to the extent to which a stranger may be
affiliated to the family by adoption.
7.This Court in Pushpa Devi v. Commissioner of Income-Tax, (1977) 109 ITR 730: AIR 1977 SC
2230 : 1977 Tax LR 1396 held that it was a fundamental notion governing a joint Hindu family that a
female member of the joint family cannot blend her separate property, even if she is the absolute
owner thereof, with joint family property.This judgment covered a case where there was already a
joint family in existence and held that, event so a female cannot blend her absolute property
therewith.The ratio applies as much when a female purport to create by agreement with other females
an Hindu undivided family and blends the property of her absolute ownership therewith.
8. The assesse respondent has not put in an appearance.Since a question of law was involved, we had
requested Mr. B. Sen to assist us, which he has very kindly done.He has drawn our attention to the
judgment of the Calcutta High Court in Commissioner of Wealth Tax v. Gouri Shankar Bhar, (1968)
68 ITR 345, which judgment was considered by this Court in Gauri Shankar Bhar’s case (1972 Tax
LR 979).Mr. Sen drew our attention to the observation therein that under the Dayabhaga School a
joint family amongst brothers was a creation not of law but of a desire to live jointly, it originated in
fact and not by legal fiction.He drew our attention also to the observation that a joint family could, in
relation to persons governed by the Dayabhaga School, come into existence only by an act of volition
on the part of the heirs, such as an agreement to live, mess and worship jointly.
9. The principal question that we are concerned with here is the capacity of Hindu females to form
among themselves a Hindu undivided family.No authorities to support this are brought to our notice,
indeed they cannot be for the concept appears to us to be alien to the Hindu personal law which
requires the presence of a male for the purposes of the constitution of an Hindu undivided family.
10.It is appropriate, however, to note the two judgments cited by the Tribunal in its order, which it
thought, supported the assessee’scase.The Tribunal stated that it had been observed by the Allahabad
High Court in Commissioner of Income-tax v. Sarvwan Kumar, (1945) 13 ITR 361: AIR 1945 All 286
that “there can be a Hindu undivided family consisting of female members only. “we have seen that
judgment and we find that is not the conclusion of the High Court.What is said was, “it follows that
on the disappearance of the last male member, the other members of the family, though not
coparceners, continue to be members of an undivided Hindu family.”What was held, therefore, was
that on the death of the sole male member of an Hindu undivided family, the ladies ho were members
thereof could continue with that status.The Tribunal also cited the judgment of this Court in
Commissioner of Income-tax, Madras v. VeerappaChettar, (1970) 76 ITR 467.The Tribunal rightly
noted that this Court had there held that so long as the property, which was originally of a joint Hindu
family remained in the hands of the widows of the members of the family and was not divided among
them, the joint family continued.The conclusion that the Tribunal drew from this was erroneous,
namely.“Thus according to the Supreme Court also only females can also form a joint Hindu family.”
11.In the present case, as aforestated, the assesse and her two daughters inherited in their individual
capacity a one-third share each in the estate of the deceased.We have no authority before us, which
can lead us to the conclusion that the assesse and her two daughters were capable of forming a joint
Hindu family or of throwing the interest of any one of them in the inherited property therein.As we
have stated, the concept of Hindu females forming a joint Hindu family by agreement amongst
themselves appears to us to be contrary to a basic tent of the Hindu personal law.
Accordingly, the questions are answered thus:
Question (I) – In the negative and in favour of the Revenue.
Question (ii) – in the negative and in favour of the Revenue.
Question (iii) – in the affirmative and in favour of the Revenue.
12.We repeat our gratitude to Mr. Sen for his assistance.
13.The appeals are allowed.
14.No order as to costs.
Appeals allowed.
241
-----------------------
242
16.
AIR 2001 KERALA 38
Mrs. D. SREEDEVI. J.
PuthlyadathJayamathyAvva
v.
K.J. Naga Kumar
S.A.No.223 of 1994 (B), 469 of 1992 (E), 958 of 1989 (e) and 327 of 1992 (e), dt. 5-10-2000.
JUDGMENT: - This Second Appeal is directed against the decree and judgment in A.S. 61/1990 of
the Subordinate Judge, SulthanBathery, which was filed against the judgment and decree in
O.S.65/1988 of the Munsiff’s Court, Kalpetta.
2. The appellants are defendants 1 and 3 to 6 and the respondents are the plaintiffs and 2 nddefendant.
3. The facts for the purpose of this appeal are as follows: The plaintiffs, who are respondents 1 and 2
herein, filed the above suit for partition.The plaintiffs are the children of deceased, Jinachandra
Gowder through his first wife and defendants 2 to 6 are the children through his second wife, who is
the first defendant, item No.1 of the plaint schedule property was allotted to Jinachandra Gowder as
per registered partition deed executed on 20-1-1958.Item Nos.2 and 3 were purchased by Jinachandra
Gowder utilising the income derived from item No.1.Item Nos. 4 and 5 were excluded from the
partition deed of the year 1958.Thus, the entire plaint schedules properties jointly being to the
plaintiffs and the defendants after the death of JinachandraGowder.The parties are governed by Hindu
MitaksharaLaw.On the allegation that after the death of Jinachandra Gowder the defendants are taking
income, the plaintiffs filed the above suit for partition and recovery of possession with mesne
profits.It is also alleged in the plaint that the defendants had already sold timber worth Rs.26, 000/-
from the plaint schedule property.So, they claimed 2/16 shares over the plaint schedule property and
also over the money obtained by sale of the timber.Jinachandra Gowder had deposited Rs.13, 870/ at
Varadoor Cooperative Bank.The plaintiffs also claim share over the aid money.
4. Defendants 1 to 3 filed written statement.They would contend that as per the registered partition
deed of 1958, the plaintiffs and the second defendant had taken their share from the joint family
property and virtually they were separated from the joint family.At the time of partition, there were
only four male members, including JinachandraGowder.As per the partition deed, the members got
themselves separated and hence the property allotted to the share of Jinachandra Gowder has become
his separate property and thereafter-5thdefendant was born to Jinachandra Gowder through his second
wife and thereby another joint family has come into existence.Item Nos.4 and 5 were set apart to the
share of the second defendant and the same was gifted to the 5 thdefendant.The plaint schedule items 1,
4 and 5 were managed by deceased JinachandraGowder.According to the defendants, since the
plaintiffs and second defendant were separated from the joint family, they are not entitled to get any
share as prayed for in the plaint.The allegation that Jinachandra Gowder had exclusive right for half
share over the plaint schedule property is not correct. After the death of Jinachandra Gowder, the first
defendant and her children are entitled to his share as per Section 6 of the Hindu Succession Act,
hereinafter referred as “Act XXX of 1956”.They also denied the allegation that the timber from the
property was sold for a consideration of Rs.26, 000/-.Even the deposit alleged in the plaint is also not
correct.
5. The trial Court framed six issues and examined P.W.1 and D.W.1 and marked Exhibits A1 to A3
and decreed the suit by a preliminary decree for partition.It was decreed that the scheduled properties
shall be divided into 16 shares and 2/16 shares shall be allotted to the plaintiffs jointly.They were also
allowed to realise mesne profits for the last four years prior to the date of suit and also for future
mesne profits that will be decided in the final decree proceedings.Aggrieved by the said decree and
judgment, the defendants 1 and 3 to 6 filed A.S.61/1990 before the Sub Court, SulthanBathery.The
learned Sub Judge dismissed the appeal, upholding the preliminary decree passed by the trial
Court.Hence, the Second Appeal by defendants 1 and 3 to 6.
6.Heard both sides.
7. Mr. Jyothi Prasad, the learned Counsel appearing for the appellants challenged the decree and
judgment on various grounds.According to him, the Court below ought to have held that the Act XXX
of 1956 (Central Act) shall prevail over the Kerala joint Hindu Family System (Abolition) Act, 1976,
hereinafter referred to as “Act XXX of 1976” (State Act) when the provision of the State enactment is
243
repugnant thereto and that the later provisions is void under Article 254 (1) of the Constitution of
India.It is also submitted that the lower Court erred in holding that Section 8 and not Section 6 of Act
XXX of 1956 apply to properties retained by father overlooking the direct express provisions in Para
1 of Section 6 of the Act XXX of 1956.
8.The questions of law that arise for consideration in this case are the following: -
(i) Whether the State enactment, Act XXX of 1976, can override the Central enactment, Act
XXX of 1956.
(ii) Whether the Act XXX of 1976 can override Section 6 of Act XXX of 1956 under the
provisions of Article 254 (I) of the Constitution of India.
 Whether a Hindu converted into Muslim can claim any right under Central Act XXX of 1956
or Kerala Act XXX of 1976.
 Whether the disrupted members can claim a right over the property of one of the disrupted
members after his disruption as it has become joint family property by birth of a male
member
9.Admittedly, the plaint schedule items 1, 4 and 5 originally belonged to the joint family of
JinachandraGowder.He had two wives.Plaintiffs 1 and 2 are the children through his first wife, who is
now no more.First defendant is his second wife. Defendants 2 to 6 are his children through the second
wife.Jinachandra Gowder passed away on 20-4-1984.While they were holding the property as
coparceners in a joint family property, they entered a partition in the year 1958.At that time, there
were only four male members.Item No.1 was allotted to JinachandraGowder.The other male members
were allotted properties.Thus, there was a disruption of the joint family.Jinachandra Gowder has taken
plaint schedule item No.1 as his separate property.Thereafter, 5thdefendant – another son–was born to
him through the first defendant and thus this property has become a joint family property between
Jinachandra Gowder and his son, the 5th defendant.Jinachandra Gowder has acquired item Nos. 2 and
3 with the income derived from item No.1, item nos. 4 and 5 were excluded from the partition.The
second defendant, who has right over item No.5, gifted the said property to the 5th defendant.Thus,
according to the plaintiffs, on the death of Jinachandra Gowder they had one half right over the plaint
schedule items 1 to 3 and the 5thdefendant has got the remaining one-half right.The plaintiffs would
allege that on the death of Jinachandra Gowder his right over the property devolved on the plaintiffs
and defendants equally under Section 8 of Act XXX of 1956.According to the appellants, the right
over the plaint schedule properties devolved on them alone on the death of Jinachandra Gowder as per
Section 6 of the Act XXX of 1956.They would contend that no share is due to the plaintiffs and
second defendant as they have separated from the coparcenary long back. The question for
consideration is whether the succession as per Section 8 of the Act XXX of 1956 or survivorship as
per Section 6 of the said Act is the principle to be adopted in this case.
10. The Act XXX of 1976 came into force in the year 1976.Section 4 of the said Act provides as
follows: -
“Joint tenancy to be replaced by tenancy in common: (1) All members of an undivided Hindu
family governed by the Mitakshara law holding any coparcenary property on the day this Act comes
into force shall, with effect from that day, be deemed to hold it as tenants-in-common, as if a partition
had taken place among all the members of that undivided Hindu family in respect of such property
and as if, each one of them is holding his or her share separately as full owner thereof.”
From the above section, it can be seen that on the date of commencement of the Act XXX of
1976, the status of coparcenary in a joint family property has been lost and the coparceners have
become tenants in common thereafter as if a statutory partition has taken place among all the
coparceners.Therefore, after the commencement of the Act XXX of 1976, the coparceners attained the
status as tenants in common, which means Jinachandra Gowder and the 5thdefendant get definite
shares in the property.The learned counsel for the appellants submitted that Act XXX of 1956 being
an enactment passed by the Parliament, it prevails over the provisions of the Act XXX of 1976, which
is only a law passed by the Legislature of the State.Article 254 of the Constitution reads as follows:
254 (1) If any provision of a law made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to enact, or to any provision of any
existing law with respect to one of the matters enumerated in the Concurrent list, then, subject to the
provisions of clause (2), the law made by Parliament, whether passed before or after the law made by
244
the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made
by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated
in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for consideration of the President and has received his assent,
prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law
with respect to the same matter including a law adding to, amending, varying or repealing the law so
made by the Legislature of the State”.
Clause (1) of Article 254 lays down a general rule.Clause (2) is an exception to clause (1) and the
proviso qualifies that exception.The question of repugnancy arises only in connection with the
subjects enumerated in the Concurrent List.The question of the Act XXX of 1956 prevailing over the
Act XXX of 1976 arises only if any of the provisions of the State law is repugnant to the provision of
law phased by the Parliament.Admittedly both the Union and the State have Concurrent powers in
respect of the subject.Clause (1) says that if a State law relating to a Concurrent subject is repugnant
to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union
law will prevail and the State law shall, to the extent of such repugnancy, be void.In this connection,
the following points should be noted.The first is that the State law does not become void as soon as
the Union Parliament legislate with respect to the same subject.There is nothing to prevent the State
Legislature to legislate with respect to a Concurrent subject merely because there is a Union law
relating to the same subject.Article 254(4) is attracted only if the State law is repugnant to the Union
Act, which means that the two cannot stand together:Clause (2) of Article 254 is an exception to
clause (1), viz., that if the President assents to a State law which has been reserved for consideration
under Article 200.It will prevail notwithstanding its repugnancy to an earlier law of the Union.Thus,
even if there is repugnancy, the law made by the Legislature of the State, if it was reserved for
consideration of the president and has received his assent, will prevail in the State.Thus, from the Act
XXX of 1976, it can be seen that it was reserved for the consideration of the President and the
President has given his assent on 10-8-1976.Therefore, the argument of the learned Counsel for the
appellants that the State enactment cannot override the Central enactment cannot be accepted as
correct.
11. The appellants rely on Section 6 of the Act XXX of 1956 to succeed to the estate of the deceased
Jinachandra Gowder, Section 6 relates to devolution of interet in coparcenary property.On the date of
death of Jinachandra Gowder, there was no coparcenary as the same has been abolished by the Act
XXX of 1976.Therefore, Section 6 of the Act XXX of 1956 is not applicable to the fact of this
case.By virtue of Section 4 of the Act XXX of 1976, the joint tenancy has been replaced by tenancy in
common.Thus, Jinanchandra Gowder and the 5th defendant have become tenants in common, each is
having one-half right over the properties, item Nos. 1 to 3 Section 8 of Act XXX of 1956 provides
that the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being the
relatives specified in Class I of the Schedule.Class 1 takes in son, daughter, widow, mother, son of a
predeceased son, daughter of a predeceased son, etc.The plaintiffs and defendants are admittedly the
children of Jinachandra Gowder, who come under Class 1 of the Schedule.Therefore, so far as the
one-half of the right of Jinachandra Gowder is concerned, the heirs in Class are equally entitled to the
property.The plaintiffs are, therefore, entitled to 2/16 shares and 1/16 share each by defendants 1 to 4
and 6 and the 5th defendant is entitled to 9/16 shares over the said properties.
12. The next question is whether a Hindu converted into Muslim can claim any right under the Act
XXX of 1956. The second plaintiff K.J. Vijayan, embraced Muslim faith and has become
Shamsudeen, according to the defendants, he being a Muslim is not entitled to inherit the property of
Hindu.This question was not pressed at the time of hearing.Therfore, the finding of the court below
that he is also entitled to share over the property is confirmed.
13.I do not find any reason to interfere with the concurrent findings entered by both the courts below.
The questions of law involved in this case have been correctly interpreted by the courts below.Hence,
this appeal is liable to be dismissed.
14. This appeal is directed against the decree and judgment in AS. 60/1990 of the Sub-Court,
245
SulthanBathery, which was filed against the decree and judgment in O.S.31 / 1988 of the Muniffs
Court. Kalpetta. The appellants in S.A. No. 223/1994 are the appellants in this appeal also. The
respondent therein is the second respondent in S.A. 223/1994. The appellants filed O.S. 31/ 1988 for
damages against the respondentShamsudeen (K.J. Vijayam) on the allegation that during the
pendency of the partition suit the defendant Shamsudeen plucked coffee and pepper from the plaint
schedule property. The appellants had taken out to them and the Commissioner assessed the damages
to the tune of Rs. 3,550/-. Therefore, the plaintiffs have filed the above suit for damages. The trial
Court dismissed the suit holding that the defendant being a co-owner, the plaintiffs cannot restrain
him from plucking coffee and pepper from the plaint schedule property. Aggrieved by the said decree
and judgment, the plaintiffs filed A.S. 60/1990 before the Sub Court,SulthanBathery. The learned Sub
Judge dismissed the appeal, confirming the judgment and decree of the trial Court. Aggrieved by the
said decree and judgment, the plaintiffs have filed this Second Appeal.
15.In view of my findings in S.A. 223/1994, the defendant being a co-owner, theplaintiffs are not
entitled to file a suit for damages if the defendant has taken any income from the property. Therefore,
this Second appeal is liable to be dismissed.
16. This appeal is directed against the decree and judgment in A.S. 36/1987 of the Sub Court.
SulthanBathery, which was filed against the decree and judgment in O.S. 321 / 1986 of the Munsiff’s
Court. Kalpetta. The first appellant is the second wifeofJinachandra Gowder and appellants 2 to 5 are
her children through Gowder. O.S. 321/ 1986 was a suit filed by the appellants for the eviction with
arrears. Jinachandra Gowder let out a building to the defendant therein on a monthly rent of Rs. 10/-.
The first defendant Ananda Krishnan had also executed a rent deed. He had sublet the building to
defendants 2 to 5 in that suit. The first defendant denied the lease deed executed by Jinachandra
Gowder. Defendants 2 and 3 contended that they are occupying the building under a rent deed
executed by Nagakumar, the son of Jinachandra Gowder. The trial Court framed five issues, examined
P.W.1. D.Ws. 1 and 2 and marked Exhibits A 1 to A6 and Exhibits missed the suit, holding that the
plaintiffs failed to prove lease arrangement. Aggrieved by the said judgment and decree, the plaintiffs
have filed A.S. 36 / 1987 before the Sub Court,SulthanBathery. The learned Sub Judge dismissed the
appeal confirming the judgment and decree of the trial court. Aggrieved by the said judgment and
decree, the plaintiffs have filed this Second Appeal.
17. The trial Court found that D.W. 2, who is the son of Jinachandra Gowder through another wife,
leased the property to respondents 2 and 3 and they have executed a Koolie chit in favour of D.W. 2
after the death of Jinachandra Gowder. Since the building was let out by D.W./ 2. In view of my
finding in S.A. 223/1994 that Nagakumar being a co-owner and he being the lessor, the appellants
cannot evict the tenants of Nagakumar. The Courts below correctly appreciated the evidence and
came to the conclusion that the appellants-plaintiffs are not entitled to get eviction. Therefore, this
Second Appeal is liable to be dismissed.
18.This Second Appeal is directed against the decree and judgment in A.S. 16/1989 of the Sub Court.
SulthanBathery, which was filed against the decree and judgment in O.S. 307/1984 of the Munsiffs
Court, Kalpetta. The appellants in S.A. 223/1994 filed O.S. 307 / 1984 against Nagakumar (first
plaintiff in O.S .65/ 88) it was filed
For a decree of permanent injunction to restrain the defendant from trespassing into the plaint
schedule properties on the allegation that Nagakumar having no right over the properties after the
death of Jinachandra Gowder is trying to trespass into the property and trying to cause obstruction to
the enjoyment of the plaintiffs. The defendant filed a written statement denying the plaintiffs’ right.
The trial Court dismissed the suit holding that the defendant as a co-sharer to the plaint schedule
properties. Aggrieved by the said decreed and judgment, the plaintiffs filed A.S. 16/ 1989 before the
Sub Court,SulthanBathery. The learned Sub-Judgment dismissed the appeal, confirming the
judgement of the trial Court. Aggrieved by the said decree and judgment, this Second Appeal is filed.
19.In view of my findings in S.A. 223/ 1994, this Second Appeal is liable to be dismissed.In the
result, all the above appeals are dismissed. No costs.
Appeals dismissed.
---------------------
246
17.
AIR 2002 SUPREME COURT 1(From : Punjab and Haryana)*
Umesh C. Banerjee and K.G. Balakrishnan, JJ.
Interlocutory Application No.1 in Civil Appeal No. 3663 of 1984, dt. 6-11-2001.
Bhagat Ram
v.
Teja Singh
K.G. BALAKRISHNAN, J.: - I.A.No.1 is allowed.
2. This appeal was finally heard and allowed on 31-3-1999 by a Bench consisting of one of us
(Hon.U.C. Banerjee. J.) and another learned Judge of this Court.That decision is reported in 1999 (4)
SCC 86 (Bhagat Ram (Dead) v. Teja Singh). (AIR 1999 SC 1944 : (1999) 237 ITR 364 : 1999 AIR
SCW 1626).
3. The only respondent in the appeal was Teja Singh.He was served with the notice issued from this
court but he did not choose to appear and defend the appeal.Teja Singh died on 1-12-1986.But no
steps were taken to implead the legal heir of Teja Singh.The original appellant Bhagat Ram also died
and his legal heirs/representatives were brought on record on 20-11-1985.When the appeal was heard
by this court on 31-3-1999, it was not brought to the notice of this court that Teja Singh had already
passed away on 1-12-1986.After the appeal was disposed of the legal heirs of Teja Singh filed an
application to get themselves impleaded in this appeal for an opportunity of hearing.
4.This Court, however, thought it expedient to offer an opportunity of hearing by reason of the factum
of the original respondent being not heard at the time of the disposal of the appeal and it is on this
score that we permitted Mr. Jaspal Singh.Learned Senior Counsel appearing for the newly added
respondent to put forth the submissions and address arguments before this Court.We did also allow
Mr. Rakesh Dweivedi, the learned Senior Counsel appearing in support of the appeal to address the
court.After hearing both sides, we, however, find that there is no reason to take a different view as
reflected in the earlier Order of this Court dated 31 st March, 1999.
5.The short facts necessary for proper understanding of the case are thus:-
One Kehar Singh was the owner of the land admeasuring 280 Kanals and 18 Marlas in the village
Antowall (now in Pakistan).He died prior to partition of India.Hiswidow,Smt. Kirpo and two
daughters Smt. Santi and Smt. Indro migrated to India.In lieu of the property owned by Kehar Singh
in Pakistan, his widow, Kirpo was allotted some land in India.Kirpo died on 25-12-1951 leaving
behind her two daughters Smt. Santi and SmtIndro.They inherited the property equally.Smt. Santi
died in 1960.The property left by her was thereafter mutated in the name of her surviving sister, Smt.
Indro.The original appellant, Bhagat Ram (deceased) who had entered into an agreement with Smt.
Indro on 12-3-1963 filed a suit for specific performance, which was decreed in his favour.The original
respondent in the appeal,Shri Teja Singh (deceased) is the brother of Smt. Santi’s pre-deceased
husband.He filed a suit alleging that, on the death of Smt. Santi in 1960, the property in question
devolved on him by virtue of clause (b) of sub-section (1) of section 15 of the Hindu Succession Act,
1956.The trial Court decreed the suit filed by Teja Singh.The appeal filed against the said decree was
dismissed. Bhagat Ram (deceased) then preferred the second appeal before the High court, which was
also dismissed.The High court held that the property held by Smt. Santi on her death devolved on Teja
Singh who was the brother of the pre-deceased husband of smt. Santi, however, on appeal, this Court
by its judgment dated 31-3-1999 held that the property held by Smt Santi was the property inherited
by her from her mother, therefore, clause (a) of sub-section (2) of Section 15is the relevant provision
which governed the succession and Teja Singh had no right in the property left by Smt. Santi and that
it would only devolve on her sister Smt. Indro.
6. The relevant section in the Hindu Succession Act, 1956 reads as follows:-
“15 General rules of succession in the case of female Hindus – (1) The property of a female
Hindu dying intestate shall devolve according to the rules set out in Section 16-
 firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband:
 secondly, upon the heirs of the husband;
 thirdly, upon the mother and father;
 fourthly, upon the heir of the father; and
247
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1):-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the
absence of any son or daughter of the deceased (including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein but upon
the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1), in the order specified
therein, but upon the heirs of the husband.”
7.The learned Senior Counsel for the respondents Mr. Jaspal Singh contended that Smt. Santi acquired
property from her mother Smt. Kirpo who died on 25-12-1951 and at that time Smt. Santi had only a
limited right over this property, but by virtue of Section 14(1) of the Hindu Succession Act, she
became the full owner of the property and, therefore, on her death, the property held by her would be
inherited by her legal heirs as per the rule set out in Section 15(1) of the Act.The learned Senior
Counsel further contended that prior to the Hindu SuccessionAct, Smt. Santi had only a limited right
but for Section 14(1) of the Act, it would have reverted to the reversioners and such a limited right
became a full right and, therefore, the property is to be treated as her own property.He also contended
that Section 15 of the Hindu Succession Act will have only prospective operation and, therefore, the
words used in Section 15(2)(a) viz., “any property inherited by a female Hindu” are to be construed as
property inherited by a female Hindu after the commencement of the Act.
8.We do not find any merit in the contention raised by the Counsel for the respondents.Admittedly,
Smt. Santi inherited the property was from her father or mother, in the absence of any son or daughter
of the deceased, including the children of any pre-deceased son or daughter.It would only devolve
upon the heirs of the father and, in this case, her sister Smt. Indro was the only legal heir of her
father.Deceased Smt. Santi admittedly inherited the property in question from her mother.It is not
necessary that such inheritance should have been after the commencement of the Act.The intent of the
Legislature is clear that the property, if originally belonged to the parents of the deceased female,
should go to the legal heirs of the father.So also under clause (b) of sub-section (2) of Section 15, the
property inherited by a female Hindu from her husband or her father-in-law, shall also under similar
circumstances, devolve upon the heirs of the husband.It is the source from which the property was
inherited by the female, which is more important for the purpose of devolution of her property.We do
not think that the fact that a female Hindu originally had a limited right and later, acquired the full
right, in any way, would alter the rules of succession given in sub-section (2) of section 15.
9.A question of similar nature was considered by this court in Bajya v. Smt. Gopikabai, AIR 1978 SC
793.In that case, the suit land originally belonged to G. Son of D.G died before the settlement of 1918
and thereafter, his land was held by his son, P who died in the year 1936.On P’s died the holding
devolved on P’s widow, S. S died on November 6, 1956, and thereupon dispute about the inheritance
to the land left behind by S arose between the parties.The plaintiff claimed that she being the daughter
of T, a sister of the last male holder, P was an heir under section 15 read with section 2 (ii) (4) (iv) of
the schedule referred to in Section 8 of the Hindu Succession Act, 1956, whereas the defendants
claimed as ‘Sapindas of the last male holder under MitaksharaLaw.Speaking for the Bench, Hon. R.S.
Sarkaria.J. held that the case would fall under clause (b) of sub-section (2) of section 15 because S
died issueless and intestate and the interest in the suit property was inherited by her from her husband
and the property would go to the heirs of the husband.
10.In State of Punjab v. Balwant Singhand others and Chand Singh v. Balwant Singhandanother,AIR
1991 SC 2301 also, a question of similar nature was considered.In that case, the female Hindu
inherited the property from her husband prior to Hindu Succession Act and she died after the Act.On
being informed that there was no heir entitled to succeed to her property, the Revenue authorities
effected mutation in favour of the State.There was no heir from her husband’s side entitled to succeed
to the property.Plaintiff, who was the grandson of the brother of the female Hindu claimed right over
the property of the deceased.The High Court held that the property inherited by female Hindu from
her husband became her absolute property in view of section 15(1). The above view was held to be
faulty and this court did not accept that.It was held that it is important to remember that female Hindu
248
being the full owner of the property becomes a fresh stock of descent.If she leaves behind any heir
either under sub-section (1) or under sub-section (2) of section 15, her property cannot be escalated.
11.In Smt. Amar Kaur v. Smt. Raman Kumari, AIR 1985 Punj and Har 86. A counter view was taken
by High Court of Punjab and Haryana.In this case, a widow inherited property from her husband in
1956.She had two daughters and the widow gifted the entire property in favour of her two
daughters.One of the daughters named Shankari died without leaving husband or descendent in
1972.Her property was mutated in favour of her other sister.At the time of death of Shankri, her
husband had already died leaving behind another wife and a son.They claimed right over the property
left by the deceased female Hindu.In paragraph 4 of the said judgment, it was held as under:
Smt. Shakari succeeded to life estate.Which stood enlarged in her full ownership under section
14 (1) of the Act.Since smaller estate merged into larger one, the lesser estate ceases to exist and a
new estate of full for the first time by Smt. Shankari.The estate ceases to exist and a new estate of full
ownership by fiction of law came to be held for the first time by Smt. Shankari.The estate which she
held under section 14 (1) of the Act, cannot be considered to be by virtue of inheritance from her
mother or father.In law it would be deemed that she became full owner of this property by virtue of
the Act.On these facts it is to be seen whether section 15 (1) of the Act will apply or section 15 (2) of
the act will apply section 15(2) of the act will apply only when inheritance is to the estate left by
father or mother, in the absence of which section 15 (1) of the act would apply”.
12.We do not think that the law laid down by the learned single judge in the above said decision is
correct.Even if the female Hindu who is having a limited ownership becomes full owner by virtue of
Section 14 (1) of the Act, the rules of succession given under sub-section (2) of Section 15 can be
applied. In fact, the Hindu Succession Bill, 1954 as originally introduced in the Rajya Sabha did not
contain any clause corresponding to sub-section (2) of Section 15.It came to be incorporated on the
recommendations of the Joint Committee of the two Houses of Parliament. The reason given by the
Joint Committee is found in clause 17 of the Bill. Which reads as follows :
“While revising the order of succession among the heirs to a Hindu female, the Joint Committee
have provided that, properties inherited by her from her father reverts to the family of the father in the
absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs
of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would
prevent properties passinginto the hands of persons to whom justice would demand they should not
pass.”
13.The source from which she inherits the property is always important and that would govern the
situation. Otherwise persons who are not even remotely related to the person who originally held the
property would acquire rights to inherit that property. That would defeat the intent and purpose of
sub-section (2) of Section 15, which gives a special pattern of succession.
14.This Court in its judgment dated 31-3-1999 held that clause(a) of sub-section (2) of Section 15 is
the appropriate rule to be applied for succession of the property left by the deceased Smt. Santi and
we find no reasons to take a different view. Thus, the appeal is allowed,the parties to bear their
respective costs. Revised decree be drafted showing the newly added respondents on the party array.
Appeal allowed
---------------------
249
18.
AIR 2002 SUPREME COURT 1279(From: Madras)
SYED SHAH MOHAMMED QUADRI and S.N. PHUKAN, JJ.
C.A.No. 2220 of 193, dt./ 26-2-202.
V. Muthusami
v.
Angammal
PHUKAN, J.:- The appellant in this appeal has impugned the judgment dated 5-3-1991 of the
Division Bench of the High Court of Judicature at Madras in A.S.No. 951 of 1977.
2. The facts, which are necessary for our purpose are summarized as below.The parties would be
referred to as arrayed in the suit:-
3. The suit land originally belonged to one AlagirisamiChettiar, who was said to have died during the
pendency of the appeal before the High Court.His son Arimuthu died in September 1940.Angammal
defendant No.1 is the third wife of Arimuthu and Gowrammal was the daughter of Arimuthu through
his deceased second wife.Gowrammal was married to one SubramaniaChettiar.Gowrammal died in
April 1953 and Subramania died in July 1971.Their son, Dhanapal, is the only surviving legal heir of
Alagirisami.
4. On 17-10-1937 Alagirisami executed a settlement deed (Ex. A-1) in favour of his wife Nagammal,
daughter Maruthammal and his son Arimuthu Chetty wherein it was provided that the settles would
get the properties absolutely after his lifetime.The properties were described as self-acquired
properties of Alagirisami excepting a small building.This document was cancelled by the deed dated
13-6-1945 (Ex. A-3) as all the settlees died by that time.As stated above Arimuthu died leaving his
third wife Angammal and his daughter Gowrammal through his deceased second wife.On 11-9-1940,
i.e., three days after the death of Arimuthu, Alagirisami executed a document (receipt, Ex. A-6) in
favour of Angammal, pursuant to the decision by the Panchayat, in token of having received a sum of
Rs.1200-2-0 and textile goods worth Rs.278-4-0 from Angammal, which she received from her late
husband and agreed to execute a settlement deed in her favour.Alagirisami agreed to pay interest of
Rs. 60/- per year to Angammal, failing which the above amount of Rs.1478-6-0 would be returned as
and when demanded by the Panchayat.However on 17-10-1940 a deed of settlement (Ex.A-2) was
executed between Alagirisamy his wife and daughter-in-law, Angammal, providing for payment of
Rs.5/- per month to Angammal with a chargeover the properties including the suit land of
Alagririsamy. It was also providedin the deed that in case of default Angammal would be entitle to
take possessions of the properties. The possession was not taken by Angammal, as there was no
default in payment. On 13.6.1945 Alagirisamy executed a separate settlement deed (Ex A-4) in favour
of Gowwrammal his grand-daughter and her husband Subramania creating a life interest in their
favour over his properties which included the suit land with a direction that duringhis lifetime and
during lifetime of Gowrammal and Subramania the properties should not be alienated and after their
life time the properties would go to their male issue and failing which to female issue. There was a
provision in the deed directing the settles to make monthly payment of Rs.2-8-0 to Angammal as
maintenance and the balance amount of maintenance of Rs.2-8-0 was to be paid by Marimuthu
Chetty, son of the sister of Alagirisamy by a separate settlement deed (Ex. B-29) which was executed
by Alagirisamy. On the 21st January 1946, a maintenance settlement deed (Ex. A-5) was executed by
Subramania and Gowrammal and their minor daughter Selvarani in favour of Angammal. This deed
was also executed as per direction of the Panchayat asthe earlier maintenance allowance give to
Angammal was not sufficient. By this deed only limited interest was created in favour of Angammal
and during her lifetime she was given the right to enjoy the income from the properties(suit land)
without any power of alienation and after her lifetime the properties would revert back to thesettlers.
On 8-5-1974 Dhanapal executed an agreement for sale (Ex. B-24) in respect of suit properties in
favour ofdefendant No.4 claiming himself to be the absolute owner. Subsequently, on 13-2-1975 a
sale agreement (Ex. B-1) for the suit land was entered into betweenthe plaintiff, Muthuswamy,
Angammal, and Dhanapal. On 21.2.1975 in pursuance of the earlier agreement for sale-dated 8.5.1974
(Ex. B-24) Dhanapal executed four sale deeds (Ex B 25 to B-28) for valuable consideration in favour
of defendants Nos. 3 to 6. After insurance of advocates notice the plaintiff, Muthuswamy, filed the
suit for specific performance of the agreement for sale deed dated 13.2.1975 (Ex. B-1) which was
250
numbered as O.S. No. 155 of 1975. In this suit plaintiff-Muthuswamy impleaded Angammal as
defendant No.1, Dhanapal as defendant No.2 and purchasers of the land as defendants Nos. 3 to 6
Subsequentlyon 28.2.1975 Angammal filed a separate suit (OS No 105 of 1975) originally numbered
as OS No/250 to 1975) for declaration of her right of enjoyment of the suit properties by being in
possession of the same till lifetime and also for injunction. In the said suit it was categorically pleaded
that defendant No.2 Dhanapal being the male issue and only heir of the settlers was entitled to suit
properties after her lifetime. In this suit, Muthuswamy was not a party.
5. Both the suits were dismissed by the trial Court. Appeal filed by Muthuswamy and Angammal
were heard together by the High Court and were dismissed by the impugned judgmentMuthuswamy
has filed the present appeal but no appeal has been filedbyAngammal. She accepted that she was a
limited owner.
6. The trial Court inter alia held that the sale deeds (Exs. B-25 to B-38) dated 21.2.1975) executed in
favour of defendants Nos. 3 to 6 were valid and they were bona fide purchasers for valuable
consideration in pursuance of the agreement or sale (Ex B 24) and that Angammal was not entitled to
the suit property. It was held that Angammal was not in possession of the suit land.
7. The main question which was considered by the High Court was whether Anagammal, defendant
No.1 had absolute title over the suit land, which she along with Dhanapal, defendant No.2 agreed to
sell under Ex. B-1 in favour of plaintiff- Muthuswamy, the High Court was of the view that recitals in
Exs. A –2 and A-6 would show that the source of Angammal’s right for maintenance sprang only
from the settlement created in the Panchayat and not under ‘old Hindu law’. The High Court also
noted that in other two documents Exs. A-1 and A-4 the suit properties were described as self-
acquired and exclusive properties belonging to Alagirisami and therefore, Angammal had no pre-
existing right of maintenance under the Hindu law. According to the High Court only Ex. A-5
purported to give Angammal for the first time a life interest in the suit properties. The high court after
taking into consideration other documentsand the fact that Arimuthu was living separately and doing
separate business held that Angammal had no pre-existing right of maintenance under the Hindu
customary law over the properties of Alagirisami and therefore, she was not entitled to get the benefit
of Section 14, of the Hindu Succession Act, 1956 (for short the Act). Though, the High Court found
that this Angammal was in possession of the suit land pursuant to Ex. A 5, it was held that this
possession was not in pursuant to pre-existing right of maintenance under the Hindu law.
8. Learned senior counsel for the appellant has urged the following points: -
(i) that Angammal in law had pre-existingright of maintenance which is enforceable in law;
(ii) that Angammal could proceed against the properties of her father-in-law over which charge
was created taking all properties of her husband, Arimuthu though he separated himself
from the joint family of Alagirisami, and
(iii) that her coming into possession of the suit land on 21.1.1946 under Ex. A-5 coupled with
the fact that she has pre-existing right of maintenance, by virtue of sub section(1) of
Section14 of the Act, she became full owner.
9. In this context learned senior counsel has relied on the decision of three learned Judges bench of
this court in V. Tulsamma and others v. V. Sesha Reddy, (1977 (3) SCC 99). Learned senior
counselplaced before us other decisions of this Court in which the ratio laid down in Tulasamma’s
case was followed. According to the learned senior counsel as Angammal acquired title over the suit
property Dhanapal, defendant No.2 had no right to execute the sale deeds dated 21.2.1975Ex.B- 25 to
B-28) in favour of defendants Nos. 3 to 6.
10. Per contra, learned senior counsel for defendants Nos. 3 to 6 has contended that Angammal had no
pre-existing right of maintenance against properties of her father in lawAlagirisami and the liability
undertaken by him under Ex. A-6 cannot be termed as pre-existing right of maintenance.Learned
senior counsel further submitted that under Ex A-4, Gowrammal and Subramania were given a limited
right of enjoyment of the property during their life time and therefore they could not have transferred
a better title toAngammal According to the learned senior counsel Angammal could not claim any
benefit under Section 14(1) of the Hindu Succession Act, 1956.
11. The point for our consideration is whether Angammal had any pre-existing right of maintenance
pursuant to which she came into possession of the suit land and whether she was entitled the benefit
under Section 14(1) of the Hindu Succession Act, 1956.
251
12. In Tulasamma’s case(supra) the court considered the real nature of the incidence of a Hindu
widow’s right of maintenance and also the scope and ambit of Section 14 of the Act. We quote below
the said section: -
“14. Property of female Hindu to be her absolute property–(1) Any property possessed by a
female Hindu, whether acquiredbefore or after the commencement of this Act, shall be held by her as
full owner thereof and not as a limited owner.
Explanation- In this sub-section, ‘property’ includes both movable and immovable property
whatsoever, and alsoany such property held by her asstridhanaimmediatelybefore the commencement
of this Act.
under a will or any other instrument or under a decree or order of a Civil Court or under an award
13. The Bench expressed the view that the Hindu female’s right to maintenanceis not an empty
formality or an illusory claim being conceded a matterof grace and generosity, but is a tangible right
against property which flows from the spiritual relationship between the husband and the wife and is
recognized and enjoined by the customary Hindu law and such a right may not be a right to property,
that is, jus in rem but it is a right against property, that is jus ad rem. The husband has a
personalobligation to maintainhis wife and if a charge is created for the maintenance of a female, the
said right becomes a legally enforceableone. It is also well settled that a widow is entitled to
maintenanceout of her deceased husband’s estate irrespective of whetherthat estate is in the hands of
his male issue or in the hands of his coparcener.
14. The bench considered the sub-section (1) of section 14 of the Act and held that this sub-section is
wide in its scope and ambit and any property possessed by a female Hindu, whether acquired before
or after the commencement of the Act, shall be held by her as full owner.With regard to the words
‘any property’ the Court was of the view that the words are large enough to cover both movable and
immovable property acquired by a female Hindu by inheritance or devise etc. from any person,
whether a relative or not.Regarding the word ‘possessed’ occurring in the sub-section (1) the court
took the view that it would mean the state of owning or having in one’s hand or power and it need not
be Actual or physical possession or personal occupation of the property but may be possession in law
and it can be even constructive possession provided she has not parted with her rights and is capable
of obtaining possession of the property.
15. Regarding sub-section (2) of section 14 of the Act it was held inter alia that this provision is in the
nature of proviso or exception to sub-section (1) and being in the nature of an exception it must be
construed strictly so as to impinge as little as possible on the broader sweep of the ameliorative
provision contained in sub-section (1). Further sub-section (2) cannot, therefore, be interpreted in a
manner, which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection
sought to be given to her by sub-section (1).According to the Court sub-section (2) must be confined
to cases where a property is acquired by a Hindu female for the first time as a grant, without any pre-
existing right under a gift, will, instrument, the terms of which prescribe a restricted estate in the
property and that is the legislative intendment.
16. The law laid down in Tulsamma’s case has been consistently followed by this Court.Let us now
examine the present case in the light of above law.
17. Arimuthu had personal obligation to maintain his wife-Angammal.After his death Angammal
could enforce her tangible right of maintenance over the estate left behind by her husband.After three
days of the death of her husband, the entire estate of her husband in the form of movable properties
were received by Alagirisamy for which he executed the receipt on September 11, 1940 – Ex. A-
6.Thereafter, on 17-10-1940, Alagirisamy and his wife executed the deed – Ex.A-2 in favour of
Angammal providing for payment of Rs.5 per month to her and a charge was created over the
properties including suit land of Alagirisamy.In the deed it was also provided that in case of default of
payment Angammal would be entitled to take possession of the land.Thus submission of learned
252
counsel for the defendant that Angammal is claiming maintenance over the properties of the father-in-
law-Alagirisamy-is not sustainable inasmuch as Angammal is claiming maintenance as of right
against the property,i.e.,jus-ad-rem left behind by her husband as property includes both movable and
immovable.The right of maintenance could be enforced by Angammal against the estate of her
husband in the hands of Algirisami, though Angammal was not in Actual physical possession of the
land, she was in legal possession as she never parted with the right of her maintenance and she could
enforce such right in law.The finding of the High court that by Ex.A-2 a contractual right was given to
Angammal as the deed was executed in view of the settlement arrived at the intervention of the
Panchayat is erroneous as Panchayat only helped the parties to come to a settlement in recognition of
her right to be maintained from the properties of her husband.
18. By the deed-Ex.A-4 executed on June 13, 1945 by Alagirisamy in favour of his grand-daughter –
Gowrammal and her husband – Subramania a life interest was created over the suit land in favour of
Gowrammal and Subramania and in the said deed a provision was made for payment of maintenance
to Angammal.In other words, Alagirisamy accepted the pre-existing right of maintenance of
Angammal given effect to by the deed – Ex.A-2 and thereafter the said right preserved by Ex. A-4.
Ex.A-5 is the deed of maintenance executed on January 21, 1946 by Subramania, Gowrammal and
their minor daughter in favour of Angammal by which she was given a right to enjoy the income from
the suit property during her lifetime, and thereafter would revert back to settlers.Learned senior
counsel for the defendant has contended that as Subramania and Gowrammal acquired only limited
interest under Ex. A-4 and they could not have transferred a better title.This contention is not
acceptable as even prior to the date Ex. A-2 was executed the right of maintenance of Angammal
continued and by this deed (Ex. A-5) also her pre-existing right of maintenance was recognized and a
charge was also created over the suit land in favor of Angammal.There is a dispute regarding Actual
physical possession of the suit land by Angammal but it is immaterial as she had legal possession,
which would be sufficient in view of the law laid down in Tulsamma’s case.
19. Let us now examine whether Angammal became the full owner of the suit property by virtue of
section 14 of the Act, sub-section (2) of section 14 of the Act confines to cases where properties are
acquired by a Hindu female for the first time as a grant, Angammal did not come for the first time into
possession of the suit property on the basis ofEx. A-5 and her possession in law continued from the
date Ex. A-2 was executed on 17-101940 and this possession was also confirmed by Ex. A-4 dated
June 13, 1945 and Ex. A-5 dated January, 21, 1946. Therefore, possession of Angammal was not by
virtue of sub-section (2) of section 14.As Angammal has come into possession of the suit land by
virtue of pre-existing right of maintenance out of the estate of her late husband, the present case is
covered by sub-section(1) of section 14 and therefore after coming into force of the Act she became
full owner over the suit land and as a full owner she had power to execute the agreement for sale
dated 13-2-1975 – Ex.B-1 in favour of the plaintiff.Therefore, plaintiff could enforce this agreement
of sale, which he did by filing the present suit.In view of the above position the suit should not have
been dismissed by the courts below on the ground of want of title in Angammal. Accordingly, we
hold that both the High court and the trial court erred in law in rejecting the claim of the plaintiff and
consequently the judgment of the trial court and the impugned judgment of the High court to that
extent are set aside.
20.Now the question is to what relief is plaintiff is entitled? It is entitled position of law that grant of a
decree for specific performance is a discretionary one.This court in K. Narendra v. Riviera
Apartments (P) Ltd., (1999 (5) SSC 77) held that section 20 of the Specific Relief Act, 1963 provides
that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant
such relief merely because it is lawful to do so, the discretion of the court is not arbitrary but sound
and reasonable, guided by judicial principles.It was further held that if performance of a contract
involves some hardship on the defendant which he did not foresee while non-performance involving
no such hardship o the plaintiff, is one of the circumstances in which the court may properly exercise
discretion not to decree specific performance and the doctrine of comparative hardship has been
statutorily recognized in India.
21. In Her Highness Maharani Shantidevi P. Gaikwad v. SavijibhaiHaribahi Patel and others, (2001
(5) SCC 101) a Bench of three learned Judges held as follows:
253
“The grant of decree for specific performance is a matter of discretion under section 20 of the
Specific Relief Act, 1963.The court is not bound to grant such relief merely because it is lawful to do
so but the discretion is not required to be exercised arbitrarily.It is to be exercised on sound and
settled judicial principles.One of the grounds on which the court may decline to decree specific
performance is where it would be inequitable to enforce specific performance.
22. Coming to the facts of the case in hand all the parties proceeded on the basis that Angammal was a
limited owner over the suit land and Dhanapal was the full owner and on that basis both the
agreements for sale-Ex.B-1 and Ex.B-24 were executed.All the courts have held that Ex.B-1 executed
by Angammal and Dhanapal in favour of the plaintiff was subsequent to the agreement for sale Ex.B-
2 executed by Dhanapal in favour of defendant Nos.3-6.The courts also held that defendant Nos.3 to 6
were bona fides purchasers for valuable consideration without notice of the agreement for sale Ex.B-
1.
23. Defendant Nos.3-6 purchased this suit land on February 21, 1975 and they are in possession of
suit land by investing a considerable sum for improvement.On these facts, we are of the opinion that a
decree for specific relief of the contract would involve hardship on the purchasers-defendant Nos.3-6
and no hardship would be caused to the plaintiff and he can be compensated by a decree of
compensation.We are also of the view that it will also be inequitable, on the facts and in the
circumstances of this case, to enforce specific performance of the agreement Ex.B-1.
24. At the time of execution of the agreement for sale, the plaintiff paid an advance of Rs. 3,000/.We
are of the opinion that the interest of justice would be met if we direct the defendant Nos.3-6 to pay a
sum of Rs.3,000/- to the plaintiff together with interest @ 12% from the date of the filing of the suit,
i.e., March 14, 1975 till the date of payment.Accordingly, we modify the judgment and the decree
under challenge.
25. In the result, the appeal is allowed by modifying the impugned judgments and decrees. The suit of
the plaintiff is decreed for a sum of Rs.3,000/- with interest @ 12% from 14-3-1975 till the date of
payment in lieu of specific performance.Defendants shall pay the amount within a period of six
months from today.Considering the facts and circumstances of the case, we direct the parties to bear
their own costs.
Appeal allowed.
-----------------
254
19.
AIR 2002 ORRISA 110
PRADIPTA RAY AND A. S. NAIDU J.J.
Harihar Sethi
v.
LadukishoreSethi
First appeal No.186 to 1998 D/13-12-2001.
A.S. Naidu J.: - 1. Defendants 2 and 3 in a suit for partition, have preferred this First Appeal being
aggrieved by the judgement and decree dated November 25, 1997 passed in T.S. No.42 of 1994 by the
Civil Judge (Senior Division), Chhatrapur.
2. Bereft of all unnecessary facts, the case of the parties flowing out of their pleadings is narrated
herein below:
Admittedly one Raghu Sethi was the common ancestor.He died long long back leaving his only
son Bir Sethi.At the time of his death, he owned and possessed a house situated on Patta No.1470 and
some landed properties appertaining to Patta No.783.After his death his only son Bira succeeded the
same.Bira during his life time, acquired some more properties.All the properties which were owned
and possessed by Bira are morefully described in Schedules A and B of the plaint.Bira expired
intestate on February 1, 1983 leaving behind his widow Chandramani (D-4), four sons, i.e., Plaintiff
No.1 and Defendant Nos. 1 to 3 and two married daughters (Defendants 5 and 6).It is alleged in the
plaint that the Plaintiff No.1 was serving as a Primary school teacher and in the year 1989, he became
separate from his brothers. It is averred in the plaint that some properties were purchased
subsequently, utilizing the joint family nucleus and the same are morefully described in schedule A-1
of the plaint.Said properties were purchased jointly in the names of Defendants 1 and 3 and wife of
Defendant No.3.It is alleged that after death of Bira, dissensions cropped up amongst the sons and
endeavour was made by the village gentry to amicably partition the properties but in vain.Defendants
1 to 3 created stumbling block and demanded partition of self acquired properties of plaintiff No.1 and
no amicable partition could be arrived at.Having no other way, the Plaintiff No.1 along with his two
sons filed T.S. No.52 of 1994 for partition of the properties morefully described in Schedules-A, A-1
and B of the plaint and for allotment of 1/7thshare in his favor.
3. After receiving notice of the suit, defendants appeared, and Defendants 1 to 4 filed a joint written
statement admitting the relationship of the parties as well as joint ownership of the properties,
morefully described in Schedules A and B of the plaint.It is asserted that after death of Bira, the eldest
son (D-1) who was serving in Postal Department, was constrained to remain outside the village and
plaintiff No.1 begin the second son, managed the joint family properties and virtually become the
Karta of the family.It is stated that out of the joint family nucleus, he has purchased landed property
morefully described in Schedule-C of the written statement in his name and in the name of his
wife.The said properties were jointly cultivated by the defendants and usufructs were enjoyed by the
joint family and as such, said properties were also liable for partition.It is also asserted that the
properties described in schedule A-1 of the plaint were purchased out of the amount procured after
selling Stridhan properties belonging to Defendants 2 and 3 and the said properties and are not to be
partitioned.On the basis of the aforesaid averments, the Defendants 1 to 4 claimed for partition of
entire landed properties described in Schedules A and B of the plaint and Schedule C of the written
statement.
Defendants 5 and 6 who are the married daughters of Bira chose not to contest and were set ex
parte.Defendants 7 to 10 are minor children of Defendant Nos. 2 and 3 and they also chose not to file
any written statement thorough their father-guardian, hence a Court-guardian was appointed for them
who filed a written statement simply denying the averments made in the plaint.Defendant No.11
claims to be the adopted son of BaishanabSethi, the brother of Raghu Sethi, who filed a written
statement, inter alia, admitting the averments made in the plaint that the ancestral properties
exclusively belonged to Raghu Sethi and he has no share.Defendant No.12 is the wife of plaintiff
No.1.She filed a separate written statement.Apart from supporting the plaintiff’s case, it was further
asserted that the properties morefully described in Schedule-C of the written statement are the self-
acquired separate properties of her husband and herself.Defendant No.13 is the wife of Defendant
No.3.In her written statement, she supported the plea taken by Defendants 1 to 4 and claimed that the
255
landed properties described in Schedule A-1 of the plaint are self-acquired properties of Defendant
Nos. 2 and 3 and herself and are not liable for partition not being the joint family properties.
4. After filing of the written statements, the plaintiffs amended the plaint and asserted that out of the
salary and other earnings, plaintiff No.1 had acquired the properties which are morefully described in
Schedule-C of the written statement.It is also asserted that his wife has also contributed substantial
amounts out of her Stridhan for purchasing the properties and both of them remained in exclusive
possession of the same and that the said properties are their self-acquired properties, not liable to be
partitioned.
5.On the basis of the pleadings, the learned Civil Judge framed only two issues:
(i) Whether the landed properties described in Schedule–C of written statement and A-1 of the
plaint are liable for partition?
(ii) To what relief the plaintiffs are entitled to?
6. To substantiate their case, the plaintiffs examined two witnesses and exhibited as many as 18
documents. Defendants examined four witnesses and exhibited six documents.
7. The trial Court after threadbare discussion of the evidence, both, oral and documentary and relying
upon several decisions cited before him, came to a categorical finding that in view of meager income
of the joint family, no presumption can be drawn that “C” Schedule properties valued more than
Rs.38,000/- could be purchased by aid of joint income and therefore, burden never shifted to the
plaintiff to establish that he had not purchased“C” schedule properties from the joint family income.
The trial Court was also satisfied from the materials available on records, that the plaintiff No.1
purchased “C” schedule property from his own earning.On the basis of the aforesaid observations, the
trial court arrived at a finding that “C” schedule properties could not be purchased from the joint
family income and therefore, it never acquired the character of joint family properties and are not
liable for partition.
The trial Court also came to the finding that there was no satisfactory surplus income of the joint
family nor any funds were available for purchase of properties morefully described in Schedule A–1
of the plaint and held that the said properties were acquired by the defendants 2 and 3 and the wife of
defendant No.3 out of their own income and are not liable for partition.
The trial court under issue No. 2 held that BiraSethi was in possession of the properties morefully
described in Schedules A and B of the plaint only and the same being the joint family property, are
liable for partition.It is further held that properties appertaining to Patta No.783 measuring an area of
Ac.3.299 belonged to Raghu Sethi, grandfather of the plaintiff No.1 and his brothers and sisters and is
the ancestral coparcenary property of Bira.
On the basis of the findings arrived at, the trial Court passed a preliminary decree in part
decreeing 8/35th share of plaintiff No.1 in the property described in Patta No.783 of Schedule–A of
the plaint and 1/7thshare in the rest of the property described in Schedules A and B of the plaint.
Defendants 2 and 3 alone have preferred the present First Appeal on the ground that the trial
Court erred in not holding that plaintiff No.1 being the person in management of the suit land, was the
“Karta” of the joint family and ordinarily when the properties were acquired by a Karta, burden lies
on him to establish that sufficient joint family nucleus was not available form out of which properties
could have been purchased.It is submitted that the learned Civil Judge has erred in not holding that the
properties described in Schedule–C of the written statement are joint family properties and are liable
to be partitioned amongst all the legal heirs of BiraSethi.
It is pertinent to mention here that the finding of the trial Court holding Schedule A-1 properties
as self-acquired properties has not been assailed before this Court and the same has become final.
8. Heard Mr. Rath, learned counsel for the appellants. He has strenuously placed before us the
averments made in the pleadings as well as the oral evidence adduced by both the parties and
submitted that as all the lands were irrigated, yielded crops and that in the absence of Defendant No.1,
who is the eldest member of the family, the plaintiff No.1 became Karta of the family and exercised
control over the income derived from the ancestral joint family property.While acting as such, he had
purchased a house site and constructed a building thereon and it should be presumed that the said
properties belonged to the joint family.In support of his submission, Mr. Rath has relied upon a
decision in the case of MallessappaBandeppa Desai v. Desai Mallappa alias Mallesappa, AIR 1961
SC 1268.
256
9. At the other hand, learned counsel for the respondent No.1 submitted that the plaintiff not being the
eldest son, can never be presumed to be the Karta of the family and as such, the initial onus lies on the
appellant to conclusively prove that the joint family property generated adequate and sufficient
surplus income which can form a nucleus for purchasing property morefully described in Schedule–
C.It is also submitted that the plaintiff was working as a teacher and drawing a handsome salary.He
has also other sources from which he earned considerable amount.His wife had also contributed
substantial amount out of her Stridhan amount to purchase the lands morefully described in Schedule–
C and last but not the least, he has incurred loans periodically from his G.P.F. for acquiring the lands
and constructing the building.It is emphatically submitted that the properties morefully described in
Schedule–C are his self-acquired properties and were purchased out of his income and cannot be
considered to be the joint family properties.
10. We have heard learned counsel for the parties at length.We have also carefully examined the
evidence, both, oral and documentary.Admittedly, the plaintiff No.1 was not the eldest son of the
family.Article 236 of the Mulla’s ‘Hindu Law’ defines “Karta” as follows:
“Art. 236: Manager – Property belonging to a joint family is ordinarily managed by the father or
other Senior member for the time being of the family.The manager of a joint family is called Karta.”
However, it is no more res integra that a senior member of the family may give up his right and a
junior member of the family can act as Karta with consent of all the other members.In the present
case, the defendants who purforth a claim that the plaintiff acted as Karta of the family, though he is
not the eldest member, have totally failed to prove the said fact by adducing cogent evidence.In the
absence of any evidence, it is not possible to accept the contention raised by the appellants that the
plaintiff, though he was not the senior member of the family, acted as the Karta.The decision cited by
the appellants do not apply to the facts of the present case.Law as enumerated under Articles 222 of
Mulla’s‘Hindu Law’ is well settled that a Hindu, even if be joint, may possess separate property.Such
property belongs exclusively to him.No other member of the coparcenary not even his male issue,
acquires any interest in it by birth, and on his death intestate, it passes by succession to his heirs, and
not by survivorship to the surviving coparceners.
Also there can be no presumption that the family, because it is joint, possesses joint properties.In
a suit for partition a party who claims that a particular item of property is joint family property, the
burden of proving that it is so, rests on the party asserting it.In the present case, it would be apparent
from the analysis of evidence that the defendants have totally failed to dislodge the burden and prove
that the properties described in Schedule–C of the written statement were acquired by utilizing surplus
income derived from joint family property.
11. Apart from the aforesaid fact, there is no averment, in the written statement that the joint family
property was of such nature that out of the income derived therefrom, after meeting all the necessary
requirements of the family, any amount became surplus which formed the nucleus for acquiring any
other property.Defendant No.2 who was been examined as D.W.2 has categorically deposed that he
and Defendant No.3 physically cultivated the landed property of the joint family along with his father
up to his death and after his death, he continued to cultivate the whole landed property.Surprisingly,
he did not breathe a word regarding the income or expenditure.In the cross examination, however, he
has stated that the yield from the joint family properties varied from 30 Bharans to 20 Bharans and at
times to 5 Bharans, depending upon monsoon.Thus, it can be safely concluded that after meeting
cultivation expenses and utilization of usufructs for family, consisting of 11 members, hardly anything
became surplus.This fact is also admitted by D.W. 2 in his evidence.Admittedly the land described in
Schedule A and B remained in exclusive possession of Defendants 2 and 3 since 1993.They have
totally failed to adduce any evidence that in fact, any amount become surplus and/or was utilized by
the plaintiff.
At the other hand, the plaintiff-respondent No.1 is admittedly serving as a teacher and was
drawing a substantial amount towards salary. He has also exhibited Exts. 6, 7 and 8 which reveal that
substantial amount was withdrawn by him as loan from G.P.F. Account.The properties under Ext-E
was purchased by plaintiff No.1 had also incurred loan from the G.P.F. Account.
12. A cumulative assessment of the evidence leads to an irresistible conclusion, that the properties
described in Schedule–C of the written statement are the self-acquired properties of the plaintiff
No.1.We, therefore, do not find any reason to vary with the finding arrived at by the trial
257
Court.Thereis no quarrel so far as the finding with regard to share of each of the parties as determined
by the trial Court under Issue No.2 and we find no reason to disagree with the said finding and
confirm the same.
13. In the result, the First Appeal fails and is dismissed accordingly.No costs.
PRADIPTA RAY, J.
14.I agree.
15. First appeal dismissed.
-------------------
20.
AIR2005SC2587, 2005(4)ALT28(SC), [2005]Supp(2)SCR160
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 4838 of 1999 - Decided On: 06.05.2005
Vellikannu
v.
R. Singaperumal
A.K. Mathur, J.
1. This appeal is directed against the judgment of the learned Single Judge of Judicature at Madras
whereby the learned Single Judge by his order dated 6th March, 1997 has allowed the Second Appeal
No. 773 of 1983 filed by the respondent-1st Defendant herein.
2. Brief facts which are necessary for disposal of this appeal are:
3. That an Original Suit No. 87/1978 was filed in the Court of the District Munsif, Melur by the
plaintiff-appellant (herein).
4. The schedule properties are the self-acquired properties of late RamasamiKonar and the first
defendant was the only son of RamasamiKonar and the plaintiff is the wife of the first defendant. Wife
of RamasamiKonar was already divorced and married with some other person and was residing
separately. It is alleged that the first defendant in the suit married the plaintiff- appellant and both were
residing as husband and wife. On 10th October, 1972 the first defendant murdered his father,
RamasamiKonar and was convicted under Section 302 IPC for life imprisonment. The conviction of
the first defendant was confirmed by the High Court but the High Court recommended the
Government to reduce the sentence to the period already undergone. The first defendant was released
in July, 1975. Since the first defendant murdered his father, he was not entitled to succeed to the estate
of his deceased father and as such the claim of the plaintiff was that she alone was entitled to all the
properties left by the deceased RamasamiKonar. According to the plaintiff, the first defendant must be
deemed to have predeceased as provided under Section 25 read with Section 27 of the Hindu
Succession Act. She claimed to be the widow of the first defendant and claimed to be the owner of all
the properties left by RamasamiKonar as coparcener. After the release of the first defendant from the
prison, first defendant lived with the plaintiff for some time but after some time she was driven out of
the house. Second defendant is already impleaded in the suit as tenant claiming under first defendant.
Plaintiff, therefore, prayed that she may be granted the relief of declaration as she is entitled to inherit
the entire estate of the deceased RamasamiKonar. As against this it was contended by the first
defendant that the suit was not maintainable as the plaintiff is not the legal heir of RamasamiKonar. It
was alleged that all the properties acquired by the Ramasami, were joint family properties and the first
defendant has acquired the same by survivorship. The Trial Court by Order dated 31 stMarch, 1980
held that all the properties are joint family properties of the deceased RamasamiKonar and first
defendant. The second defendant is a cultivating tenant. The first defendant having murdered his father
is not entitled to claim any right under Section 6 read with Sections 25 & 27 of the Act but as per
proviso to Section 6 of the Hindu Succession Act plaintiff is entitled to a decree for half share and
accordingly it was granted to the plaintiff. This matter was taken up in appeal by defendant No. 1. The
Lower Appellate Court also confirmed the finding of the Trial Court but modified the decree that it
may be treated as preliminary decree. The Lower Court also held that first defendant must be treated
as non- existent. The plaintiff became a Class-I heir under Schedule 1 of the Hindu Succession Act
and she was entitled to a share in the property. The appeal was dismissed.
5. Aggrieved against this, the first defendant preferred a second appeal before the High Court.
258
6. The High Court at the time of admission of the Second Appeal, framed following substantial
questions of law.
“1. Whether Ex.A-2 judgment in the Criminal case is conclusive on the question of exclusion
from inheritance in the present proceedings?and
2. Whether the exclusion from inheritance would cover enlargement of interest by survivorship,
in the light of Section 6 of Hindu Succession Act?”
7. So far as the question No. 1 is concerned, the High Court held that the judgment of the Criminal
Court can be taken into consideration. But the main question which was addressed by the High Court
was whether the plaintiff can inherit the properties from the estate of her deceased father-in-law,
RamasamiKonar and what is the effect of Section 25, Section 27 read with Section 6 and Section 8 of
the Hindu Succession Act.
8. It was not disputed that the properties of the RamasamiKonar were joint family properties in which
the defendant No. 1 was also one of the member and the parties are governed by the Mitakshara
School of Hindu Law.
9. The learned Single Judge of the High Court after hearing the parties and considering the relevant
law on the subject in detail, came to the conclusion that the view taken by both the Courts below
cannot be sustained. It was held by the learned Single Judge that plaintiff cannot claim as a widow of
the son of Ramasamy Konar. It was observed that plaintiff cannot claim one half share in the property
being coparcenary property under Proviso to Section 6 of the Hindu Succession Act. It was also
observed that she is entitled to half share so long as the deceased father and son had not partitioned the
property. The first defendant/ respondent No 1 herein cannot be said to have inherited any share from
the victim (Ramasamy Konar) and the Plaintiff can claim as a widow only if there is a succession to
the estate of the victim. If there is no succession, the deeming provision that the first defendant shall
be deemed to have died before the victim (his father) also will not apply and she cannot claim as a
widow of his pre-deceased son. It was also held that Section 6 of the Hindu Succession Act will also
not apply. The principle of justice, equity and public policy will apply and the plaintiff cannot be
treated as a fresh stock of descent and defendant No.1 shall be treated as a non-existent as if he never
existed. Therefore, the plaintiff also cannot claim as his widow. It was also observed that since
plaintiff claims as a widow of the defendant No. 1 and he is disqualified, same disqualification equally
applies to her for she cannot claim through murderer husband.
10. Learned single Judge allowed the appeal of the defendant No. 1/respondent No. 1 (herein) and
judgment and decree of the Courts below were set aside. The suit was dismissed. Hence the present
appeal.
11. Learned counsel for the appellant tried to persuade us that appellant being the sole female survivor
of the Joint Hindu Property as her husband stands disqualified, she under proviso to Section 6 of the
Act, is entitled to the whole of the estate as a sole survive member of the coparcenary property read
with Section 8 of the Act as a Class-I heir. As against this, learned counsel for the respondent-
defendant has submitted that this disqualification which was attached to the son equally applies in the
case of the wife as she is claiming the estate because of her marriage with the respondent and if he is
disqualified, then she is also equally disqualified to claim any property being a coparcener from the
estate of her deceased father in law.
12. In order to appreciate the rival contention, it would be relevant to reproduce provisions of the
Hindu Succession Act. Sections 6, 8, 25 and 27 of the Act which read as under:
“Section 6. Devolution of interest in coparcenary property- When a male Hindu dies after the
commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class-I of the
Schedule or a male relative specified in that class who claims through such female relative, the interest
of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship.
Explanation 1- For the purposes of this section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to him if a partition of
259
the property had taken place immediately before his death, irrespective of whether he was entitled to
Explanation 2- Nothing contained in; the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the deceased of any of his
“Section 8- General Rules of succession in the case of Males - The property of a male Hindu
dying intestate shall devolve according to the provisions of this Chapter :-
(a) firstly, upon the heirs, being the relatives specified in Class-I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in
Class-II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased;and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Section 25- Murderer disqualified- A person who commits murder or abets the commission of
murder shall be disqualified from inheriting the property of the person murdered, or any other property
in furtherance of the succession to which he or she committed or abetted the commission of the
murder.
Section 27- Succession when heir disqualified- If any person is disqualified from inheriting any
property under this Act, it shall devolve as if such person had died before the intestate.”
13. As per Section 6 of the Hindu Succession Act, if a male Hindu dies after commencement of this
Act, an interest in a Mitakshara coparcenary property shall devolve by survivorship upon the surviving
members of the coparcenary and not in accordance with the Act. So far as the present case is
concerned, the concurrent finding of the fact is that the deceased Ramasamy Konar was governed by
Mitakshara Law and the property was the coparcenary property. But he died interstate. Therefore, as
per Section 6, the property shall devolve by survivorship upon the surviving members of the
coparcenary and not by Section 6 of the Act and at the same time there is proviso to Section which
qualifies the main Section that if deceased left a surviving female relative specified in class I of the
Schedule or a male relative specified in that class who claims through such female, the interest of
deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as
the case may be and not by survivorship.
14. So far as the property in question is concerned, there is a finding of the Courts below that the
property is a coparcenary property and if that being so, if the defendant No. 1 had not murdered his
father then perhaps a thing would have taken a different shape. But what is the effect on the succession
of the property of the deceased father when son has murdered him. If he had not murdered his father
he would have along with his wife would have succeed in the matter. So far as the rights of
coparceners in the Mitakshara Law are concerned, son acquires by birth or adoption a vested interest
in all coparcenary property whether ancestral or not and whether acquired before or after his birth or
adoption, as the case may be, as a member of a joint family. This is the view which has been accepted
by all the Authors of the Hindu Law. The famous principles of Mulla, 15th edition (1982) at pages 284
and 285, the learned Author has stated thus:
“The essence of a coparcenary under the Mitakshara Law is unity of ownership. The ownership of
the coparcenary property is in the whole body of coparceners. According to the true notion of an
undivided family governed by the Mitakshara Law, no individual members of that family, whilst it
remains un-divided, can predicate, of the joint and undivided property, that he that particular member,
has a definite share, one third or one-fourth. His interest is a fluctuating interest, capable or being
enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a
partition that he becomes entitled to a definite share. The most appropriate term to describe the interest
of coparcener in coparcenary property is "undivided coparcenary interest". The nature and extent of
that interest is defined in Section 235. The rights of each coparcener until a partition takes place
consist in a common possession and common enjoyment of the coparcenary property. As observed by
the Privy Council of KatamaNatchiarv. The Rajah of Shivagunga, "there is community of interest and
unity of possession between all the members of the family, and upon the death of any one of them the
others may well take by survivorship that in which they had during the deceased's lifetime a common
interest and a common possession.”
260
15. Likewise, S.V. Gupta, author of Hindu Law, Vol. 1, 3rd edition (1981) at page 162, the learned
author deals with the rights of a coparcener. He says thus:-
“Until partition, coparcener is entitled to:-
(1) join possession and enjoyment of joint family property
(2) the right to take the joint family property by survivorship, and
(3) the right to demand partition of the joint family property”.
At page 164, the learned author deals with the right of survivorship. He says;
“while the family remains joint, its property continues to devolve upon the coparcener for the
time being by survivorship and not by succession. Consequently, on the death of a coparcener the
surviving coparceners take his undivided interest in the joint family property by survivorship. There is
community of interest and unity of possession between all the members of the family, and upon the
death of any of them, the others may well take by survivorship that in which they had during the
deceased’s life time a common interest and a common possession.”
The learned Author further says:-
A coparcener who is disqualified by reason of a disability (such as insanity) from taking a share
on partition may nevertheless take the whole property by survivorship.”
16. At page 165, the learned Author has further said thus:
“By survivorship a coparcener does not obtain the share of a deceased coparcener as his
representative; strictly speaking it does not pass to him the effect if merely to enlarge his share in what
he already owns in the aggregate. Surviving coparceners are not therefore, the legal representatives of
a deceased coparcener.”
17. In N.R. Raghavachariar's “Hindu Law Principles and Precedents” 8th edition (1987) at page 230
under the heading 'Rights of Coparceners’ it is said thus:-
“The following are the rights of a coparcener:- (1) Right by birth (2) Right by survivorship, (3)
Right to partition, (4) Right to joint possession and enjoyment, (5) Right to restrain unauthorized acts
(6) Right of alienation, (7) Right to accounts and (8) Right to make self-acquisition.”
While dealing with “Right by birth’ learned Author says thus:-
“Every coparcener gets an interest by birth in the coparcenary property. This right by birth relates
back to the date of conception. This, however, must not be held to negative the position that
coparcenary property may itself come into existence after the birth of the coparcener concerned.”
While dealing with Right of survivorship, it is said thus:-
“The system of a joint family with its incident of succession by survivorship is a peculiarity of the
Hindu Law. In such a family no member has any definite share and his death of somehow ceasing to
be a member of the family causes no change in the joint status of the family. Where a coparcener dies
without male issue his interest in the joint family property passes to the other coparceners by
survivorship and not be succession to his own heir. Even where a coparcener becomes afflicted with
Lunacy subsequent to his birth, he does not lose his status as a coparcener which he has acquired by
his birth, and although his lunacy may under the Hindu Law disqualify him from demanding a share in
a partition in his family. Yet where all the other coparceners die and he becomes the sole surviving
member of the coparcenary, he takes the whole joint family property by survivorship, and becomes a
fresh stock of descent to the exclusion of the daughter of the last pre-deceased coparcener, a case of
leprosy of the last surviving coparcener. The beneficial interest of each coparcener is liable to
fluctuation, increasing by the death of another coparcener and decreasing by the birth of a new
coparcener.”
18. Therefore, it is now settled that a member of coparceners acquires a right in the property by birth.
His share may fluctuate from time to time but his right by way of survivorship in coparcenaries
property in Mitakshara Law is a settled proposition.
19. In this connection, a reference may be made in the case of State Bank of India v. Ghamandi
Ram, [1969]3SCR681, it was held thus:-
“According to the Mitakshara School of Hindu Law all the property of a Hindu Joint Family is
held in collective ownership by all the coparceners in the quasi-corporate capacity. The textual
authority of the Mitakshara Lays down in express terms that the joint family property is held in trust
from the joint family members then living and thereafter to be both ( See Mitakshara, Chaper I, 1-27)
The incidents of Coparcenership under the Mitakshara Law are: first the lineal male descendants of a
261
person upto the third generation, acquire on birth ownership in the ancestral properties of such person;
Secondly that such descendants can at any time work out their rights by asking for partition; thirdly,
that till partition each member has got ownership extending over the entire property co-jointly with the
rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is
common fifthly that no alienation of the property is possible unless it before necessity, without the
concurrence of the coparceners, and sixthly; that the interest of a deceased member lapses on his death
to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by
act of parties except in so far that on adoption the adopted son becomes a co-parcener with his
adoptive father as regards the ancestral properties of the letter.”
20. The concept of coparcener as given in the Mitakshara School of Hindu Law as already mentioned
above, is that of a joint family property wherein all the members of the coparceners share equally. In
this connection a reference may be made to a decision of this Court in the case of State of
Maharashtra v. Narayan Rao Sham Rao Deshmukh and Ors., [1987]163ITR31(SC) in which Their
Lordships have held as follows:
“A Hindu coparcenary is however, a narrower body than the joint family. Only males who
acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or
coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a
coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be
definitely ascertained only when a partition takes place. When the family is joint, the extent of the
share of a coparcener cannot be definitely predicated since it is always capable of fluctuating.”
Therefore, in view of various decisions of this Court it appears that Defendant No.1 and the
plaintiff who was married to Defendant No.1 were members of joint Hindu family. If the defendant-
appellant had not incurred the disqualification, then they would have inherited the property as per
Mitakshara School of Hindu Law. But the question is that when the sole male survivor had incurred
the disqualification can he still claim the property by virtue ofMitakshara School of Hindu Law? If he
cannot get the property by way of survivorship, then the question is whether his wife who succeeds
through the husband can succeed to the property? Our answer to this question is in negative. In fact,
prior to the amendment of the Hindu Succession Act, Sections like 25 & 27 were not there but the
murderer of his own father was disqualified on the principle of justice, equity and good conscience
and as a measure of public policy. This position of law was enunciated by the Privy Council way back
in 1924 in the case of KenchavaKomSanyellappaHosmani and Anr. v.
GirimallappaChannappaSomasagar, AIR 1924 PC 209 wherein Their Lordships have held as follows:
“In their Lordships' view it was rightly held by the two Courts below that the murderer was
disqualified; and with regard to the question whether he is disqualified wholly or only as to the
beneficial interest which the Subordinate Judge discussed, founding upon the distinction between the
beneficial and legal estate which was made by the Subordinate Judge and by the High Court of Madras
in the case of VedanayagaMudaliar v. Vedammal,(1904)14 MLJ 297, their Lordships reject, as did the
High Court here, any such distinction. The theory of legal and equitable estates is no part of Hindu
law, and should not be introduced into discussion. The second question to be decided is whether the
title can be claimed through the murderer. If this were so, the defendants as the murderer's sisters,
would take precedence of the plaintiff, his cousin. In this matter also, their Lordships are of opinion
that the Courts below were right. The murderer should be treated as non- existent and not as one who
forms the stock for a fresh line of descent. It may be pointed out that this view was also taken in the
Madras case just cited.”
Their Lordships also explained the decision in the case of Gangu
v. Chandrabhagabai,(1908)10BOMLR149 and held as follows :
“It was contended that a different ruling was to be extracted from the decision of the Bombay
High Court in Gangu v. Chandrabnagabai. This is not so. In that case, the wife of a murderer was held
entitled to succeed to the estate of the murdered man but that was not because the wife deduced title
through her husband, but because of the principle of Hindu family law that a wife becomes a member
of her husband's gotra, an actual relation of her husband's relations in her own right, as it is called in
Hindu law a gotraja-sapinda. The decision therefore has no bearing on the present case.”
Therefore, the principle which has been enunciated by their Lordships is in no uncertain terms
totally disinherit the son who has murdered his father. Their Lordships have observed as follows:
262
“A murderer must for the purpose of the inheritance, be treated as if he were dead when the
inheritance opened and as not being a fresh stock of descent; the exclusion extends to the legal as well
as beneficial estate, so that neither he can himself succeed nor can the succession be claimed through
him.”
21. This Privy Council decision made reference to the decisions of the High Courts of Madras and
Bombay and their Lordships have approved the ratio contained in those decisions that a murderer
should be totally disinherited because of the felony committed by him. This decision of the Privy
Council was subsequently followed in the following cases :
i. AIR1942Mad277 (K. Stanumurthiayya and ors. v. K.Ramappa and ors.)
ii. AIR1953All759 (Nakchhed Singh and ors. v. Bijai Bahadur Singh and anr.)
iii. AIR1956All707 (Mata Badal Singh and ors. v. Bijay Bahadur Singh and ors.)
iv. AIR1982Bom68 (Minotiv. Sushil Mohansingh Malik and anr.).
22. This position of law was incorporated by way of Section 25 of the Hindu Succession Act, 1956 as
quoted above, which clearly enunciates that a person who commits murder or abates the commission
of murder shall be disqualified from inheriting the property of the person murdered, or any other
property in furtherance of the succession to which he or she committed or abetted the commission of
the murder. In fact, the objects and reasons also makes a reference to the Privy Council judgment
(supra). The objects and reasons for enacting Section 25 read as under :
“A murderer, even if not disqualified under Hindu Law from succeeding to the estate of the
person whom he has murdered, is so disqualified upon principles of justice, equity and good
conscience. The murdered is not to be regarded as the stock of a fresh line of descent but should be
regarded as non- existent when the succession opens.”
23. Therefore, once it is held that a person who has murdered his father or a person from whom he
wants to inherit, stands totally disqualified. Section 27 of the Hindu Succession Act makes it further
clear that if any person is disqualified from inheriting any property under this Act, it shall be deemed
as if such person had died before the intestate. That shows that a person who has murdered a person
through whom he wants to inherit the property stands disqualified on that account. That means he will
be deemed to have predeceased him. The effect of Section 25 read with Section 27 of the Hindu
Succession Act, 1956 is that a murderer is totally disqualified to succeed to the estate of deceased. The
framers of the Act in the objects and reasons have made a reference to the decision of the Privy
Council that the murderer is not to be regarded as the stock of a fresh line of descent but should be
regarded as non-existent. That means that a person who is guilty of committing the murder cannot be
treated to have any relationship whatsoever with deceased's estate.
24. Now, adverting to the facts of the present case, the effect of Sections 25 and 27 is that the
respondent No.1 cannot inherit any property of his father as he has murdered him on the principle of
justice, equity and good conscience and the fresh stock of his line of descent ceased to exist in that
case. Once the son is totally disinherited then his whole stock stands disinherited i.e. wife or son. The
defendant-respondent No.1 son himself is totally disqualified by virtue of Sections25 and 27 of the
Hindu Succession Act and as such the wife can have no better claim in the property of the deceased,
Ramasamy Konar.
25. Therefore, as a result of our above discussion, we are of opinion that the view taken by the learned
Single Judge of the High Court of Madras is correct that the plaintiff is not entitled to inherit the estate
of the deceased, Ramasamy Konar and the learned Single Judge has rightly set aside the orders of the
two courts below. Since we cannot decide this appeal without deciding the right of the respondent
No.1 as the right of the appellant flows therefrom as his wife i.e. the plaintiff. Therefore, it was
necessary for us to first decide whether the respondent No.1 could succeed or inherit the estate of his
deceased father. When son cannot succeed then the wife who succeeds to the property through the
husband cannot also lay a claim to the property of her father-in -law. The appeal is thus dismissed. No
order as to costs.
----------------------
263
21.
AIR 2010 Kant124
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Pushpalatha N.V.
v.
V. Padma
N. Kumar and A.N. Venugopala Gowda, JJ.
N. Kumar, J.
This is a plaintiff's appeal against the judgment and decree of the trial Court, granting her a decree
for partition holding that she is entitled to 1/20th share in A, B and E Schedule properties and not 1/5th
share in the suit properties as claimed by her.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The subject matter of the suit is five items of immovable properties. Two are urban properties and
three are landed properties, which are more particularly described in the Schedule as, A, B, C, D and
E schedule properties.
4. The case of the plaintiff is that her father, Sri D.N. Vasantha Kumar was the owner of all the suit
schedule properties having acquired the same under the registered partition deed dated 29.03.1967. He
died on 31.12.1984, intestate. He left behind him, his wife V. Padma - the first defendant herein, the
plaintiff and second defendant, the daughters and Defendants-3 and 4, sons, as the legal heirs. All the
children after his death have succeeded to his estate. They are all in joint possession of the suit
properties. The plaintiff is entitled to 1/5th share in all the suit properties. 'A' Schedule property is
earning a rent of Rs. 1000-00 currently and the entire amount is appropriated by the defendants and no
share is given to the plaintiff. Therefore, she is entitled to mesne profits to the extent of 1/5 th share
from the income of the said property. When she was not given her legitimate right in the: property,
she filed a suit for declaration that she is entitled to 1/5 th share in the suit properties for partition and
separate possession of her 1/5th share in the suit properties and also for mesne profits.
5. Defendants-1 to 4 after service of summons entered appearance and have filed a detailed written
statement contesting the claim of the plaintiff. They admit the relationship. They admit the death of
their father D.N. Vasanth Kumar on 31.12.1984 leaving behind the legal heirs as mentioned in the
plaint. They have denied the allegation that the suit properties exclusively belong to D.N. Vasanth
Kumar. They also deny the joint possession. Their specific case is that the suit properties belong to
Hindu Undivided family of which Late D.N. Vasanth Kumar was the Kartha and co-parcener and his
two sons, defendant-3 and 4 are the other two coparceners. The schedule properties are ancestral
properties acquired by late D.K. Nabhirajaiah; the father of D.N. Vasanth Kumar along with other
properties. In the family partition which is evidenced by a registered deed of partition dated
29.03.1967, late D.N. Vasanth Kumar received the schedule properties towards his branch of the
Hindu Undivided Family. Subsequent to the death of Sri D.N. Vasanth Kumar intestate on
31.12.1984, his legal heirs, i.e., the plaintiff and the defendants-1 to 4 have succeeded to his 1/3rd
share in the suit properties and the other 2/3rd share in the schedule properties belong to defendants-3
and 4, the other two coparceners. Presently, the possession of the schedule properties is with the first
defendant, the eldest in the family, but for the schedule 'D' property which has been lost under the
Land Reforms Act, 1961 to the tillers of the land. Therefore, they deny the claim of the plaintiff to be
entitled to 1/5th share in the joint family properties, but are ready to give the plaintiff the 1/20 th share,
to which she is entitled to in law.
6. In so far as the rental income from 'A' schedule property is concerned; two portions are rented out.
Eviction proceedings are initiated against the tenants. The first defendant is receiving the monthly rent
from the two shop premises and is appropriating the same towards her medicines and legal
expenditures for prosecuting the eviction proceedings against the tenants. The plaintiff on many
occasion has taken money from the first defendant for her personal and family needs which was never
been accounted by the first defendant and if accounted it would far exceed the plaintiff's share in the
shop rents which she is legally entitled to. Therefore, they sought for dismissal of the suit.
7. On the aforesaid pleadings, the trial Court framed the following issues:
(1) Whether the plaintiff proves that D.V. Vasanth Kumar died, intestate leaving schedule
properties to plaintiff and defendants 1 to 4 to succeed?
264
(2) Whether the plaintiff proves that she is entitled to 1/5 th share in the schedule properties?
(3) Whether the plaintiff proves that she is entitled for mesne profits?
(4) What reliefs the parties are entitled to?
(5) What decree or order?
8. The plaintiff in support of her claim examined herself as P.W-1 and she produced three documents,
which are marked as Ex. P-1 to 3. On behalf of defendants, Sri N.V. Tej Kumar, the third defendant
was examined as D.W-1. No documents are produced.
9. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that
there, was partition between Sri D.N. Vasanth Kumar and his brothers on 29.03.1967, in which
partition, the suit properties fell to the share of D.N. Vasanth Kumar. Therefore, the suit properties are
all ancestral properties/coparcenary properties. Schedule C and D properties, were lost under the Land
Reforms Act, which is not disputed. As the schedule properties are coparcenary properties, in view of
Section 6 of the Hindu Succession Act. D.N. Vasanth Kumar would have got 1/4 th share on partition
between him, his wife and two sons and that 1/4th share of D.N. Vasanth Kumar would devolve on all
the legal representatives equally and thus the plaintiff is entitled to 1/5 th share in the 1/4th share of her
father and not 1/5th share as claimed by the plaintiff. Therefore, it decreed the suit of the plaintiff
granting her 1/20th share in A, B and E Schedule properties. It also held that as the 'A' Schedule
property is reined out to tenants and a sum of Rs. 1,147-00 being the rent collected from the two
tenants, when admittedly no portion of the said amount is paid to the plaintiff, she is entitled to her
legitimate share in the rents also. However, a separate enquiry was ordered to determine mesne profits
payable. Thus it decreed the suit of the plaintiff partly. Aggrieved by the said judgment and decree of
the trial Court, the plaintiff is to appeal.
10. The said judgment was rendered on 17th January 2004. The Hindu Succession Act came to be
amended by the Parliament by the Hindu Succession Act, 2005 (Act 39 of 2005) which came into
force on 9thSeptember, 2005. By the aforesaid amendment Act, Section 6of the principal Act was
substituted by new Section 3, providing for devolution of interest in coparcenary property to a
daughter of a coparcener.
11. Sri L. Govindraj, the learned Counsel for the appellant relying on the aforesaid amended provision
of the Act, contended that, whether the schedule properties are the exclusive properties of the father or
not, even if it is held to be coparcenary property, as held by the trial Court, in view of the change in
law, the plaintiff-daughter becomes a coparcener by birth in her own right in the same manner as the
son and is entitled to same rights in the coparcenary properties, and therefore, the appellant is entitled
to 1/5th share in the schedule properties. Though the opening words states that 'On and from the
commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a coparcenary is
treated as coparcener, the effect of the said amendment is, the right is conferred on such daughter by
birth, anterior to the amendment Act. The Parliament expressly has stated in what cases such a
daughter is not entitled to a share by way of proviso. Admittedly, the suit properties are not alienated
or partitioned before 20thDecember, 2004. Therefore, the plaintiff-appellant is entitled to equal share
with the son, in the coparcenary property also.
12. Per contra, Sri R.B. Sadashivappa, the learned Counsel for the defendant-respondents contended
that as the opening words of the amended provision suggests this provision is not retrospective in
operation, but is prospective. On the death of the father, succession opened. The share to which each
member of the family is entitled to, is determined as on that date. Therefore, the right to a particular
share is vested in the sons on the date the succession opened. Such a vested right cannot be taken
away by mailing this provision retrospective. The Section read as a whole do not expressly state that
the said provision is retrospective. Even by implication, such an interpretation is not possible, as the
Parliament has expressly stated in the opening words that it is only ‘on and from the date of
commencement of the Hindu Succession (Amendment) Act, 2005’ such a right is conferred on the
daughter. Therefore, he submits that notwithstanding the change in law during the pendency of the
appeal, the benefit conferred on a daughter under the amended provision is not available to the
plaintiff herein, as the amended provision is not applicable to the pending proceedings before the
Court, as the right of the parties is to be determined in the light of the law which was in force on the
date of the institution of the suit, and the date on which succession opened.
265
13. In the light of the aforesaid contentions, the points that arise for, consideration in this appeal are as
under:
(1) What is the right of the daughter of a coparcener in a Joint Hindu Family governed by
Mitakshara Law in coparcenary property by virtue of the amendment?
(2) When Section 6 is not applicable to partitions already effected?
(3) What is the right of a married daughter in a coparcenary property?
(4) Whether the amended provision is prospective or retrospective in operation?
(5) Whether the amended provision applies to the pending proceedings before the Court?
(6) What happens to the vested right under repealed Section 6 of (a) other female members (b)
male members?
14. The answer to these questions depends on the interpretation to be placed on the amended Section
6. For a proper appreciation of the substituted Section 6 of the Act, four things are to be discerned and
considered. They are:
(a) What was the law before the amendment?
(b) What was the mischief and defect for which the earlier law did net provide for?
(c) What is the remedy the parliament intended by amending the law?
(d) The true reason for such remedy?
15. Then the Judges shall place such construction as shall suppress the mischief and advance the
remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and to add
force and life to cure the remedy, according to true intent of the makers of the Act.
16. In this background we have to see the law governing Hindu Joint Family, coparcenary,
survivorship and succession. The joint family system comes first in the historical order. The law of
inheritance is of later growth. When we talk about prior law, we have to keep in mind law prior to
1956 Act, and subsequent Law till 2005 amendment Act. To understand the law of inheritance, we
should know the meaning of the words “Mitakshara”, “coparcenary” and “Hindu Joint Family”.
MITAKSHARA
17. The term “School of law” as applied to different legal schools prevalent in different parts of India,
seems to have been first used by Mr. Colebrooke. An account of the origin and development of the
schools of Hindu Law was given by the Judicial Committee of the Privy Council in the case of
Collector of Madura v. Mootto Ramalinga. The remoter sources of the Hindu Law are common to all
the different schools. The process by which those schools have been developed seems to have been of
this kind. Works universally or very generally received became the subject of subsequent
commentaries. The commentator put his own glosses on the ancient text, and his authority having
been received in one and rejected in another part of India, schools with conflicting doctrine arose.
Mitakshara-a very modest title meaning a brief compendium -is a running commentary on the Code of
Yajnavalkya and a veritable digest of Smriti law. It was written in the latter part of the eleventh
century by Vijananeshwara, an ascetic. In Mitakshara which is more of a digest than a mere
commentary on a particular Smriti, we find the quintessence of the Smriti law and its precepts and
injunctions. The chief merit of the work consists in its comprehensive treatment of almost all
important topics of the law and the synthesising of various Smriti texts. The meaning of the doctrine
of sapinda relationship in the law of inheritance insisted upon by Vijnaneshvara whereby of blood
(propinquity) is to be preferred to community in the offering of religious ablations is the governing
factor whereby under the Mitakshara law the right to inherit arises. According to the Mitakshara law,
each son acquires at his birth an equal interest with his father in all ancestral property held by the
father and on the death of the father, the son takes the property, not as his heir, but by survivorship.
The position of the son or grandson in the Mitakshara Is somewhat similar to that of “sui heredes”
who under the Roman law are regarded as having a sort of dormant ownership in the estate of their
father ever during his lifetime. The succession was not so much a succession as coming into
enjoyment of what in a sense had already partly belonged to them. It is usual to subdivide the
Mitakshara School of Hindu law into four schools namely the Benares, the Mithila, the Bombay and
the Madras School. The variances between the subdivisions of the Mitakshara school are
comparatively few and slight. Except in respect of the Bombay school, tills division serves no useful
purpose, not does it rest upon any true or scientific basis. Mitakshara has for more than nine centuries
occupied a plane of ascendancy and authority unique and unrivalled in the annals of legal literature,
266
Vijnaneswara was one of the greatest of the juristheologians who contributed to the making of Hindu
law. The Mitakshara holds sovereign sway in the whole of India except Bengal.
CO-PARCENARY
18. A coparcener is one who shares (equally) with others in inheritance in the estate of a common
ancestor. Otherwise called parceners, are such as have equal portion in the inheritance of an ancestor,
or who come in equality to the lands of their ancestors. A person to whom an estate descends jointly
and who holds it as an entire estate. But sometimes, two or more persons together constituted the heir
and in this case they took the land as ‘parceners’ or ‘coparceners’, the latter expression being the more
common. In theory of law, coparceners together constituted a single heir; they be but one heir and yet
several persons. They were called parceners because, every coparcener had a common law light to
have a partition made.
19. A male member of a joint family and his sons, grandsons and great grandsons constitute a
coparcenary. In other words, three generations come to the holder in unbroken male descendant.
Coparcenary is a creature of law. It cannot be created by act of parties. By adoption, a stranger may be
introduced as a member thereof. It is a family unit. A Hindu coparcenary is, however, a narrower
body than the joint family, only males who acquire by birth an interest in the joint or coparcenary
property can be members of the coparcenary or coparceners. No female can be a coparcener.
20. The Supreme Court in the case of BhagwanDayal (since deceased) v. Mst. Reoti Devi (deceased)
reported in AIR 1962 SC 287, held as under:
“Coparcenary is a creature of Hindu Law and cannot be created by agreement of parties except
in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the
family as a subordinate corporate body. The said family unit, whether the larger one or the
subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down
by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any
other member or members can carry on business or acquire property, subject to the [initiations laid
down by the said law, for or on behalf of the family. Such business or property would be the business
or property of the family. The identity of the members of the family is not completely lost in the family.
One or more members of that family can start a business or acquire property without the aid of the
joint family property, but such business or acquisition would be his or their acquisition. The business
so started or property so acquired can be thrown into the common stock or blended with the joint
family property in which case the said property becomes the estate of the joint family. But he or they
need not do so, in which case the said property would be his or their self-acquisition, and succession
to such property would be governed not by the law of joint family but only by the law of inheritance.
In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint
family; for Hindu law does not recognise some of the members of a joint family belonging to different
branches, or even to a single branch, as a corporate unit Therefore, the rights inter se between the
members who have acquired the said property would be subject to the terms of the agreement
whereunder it was acquired. The concept of joint tenancy known to English law with the right of
survivorship is unknown to Hindu law except in regard to cases specifically recognized by it. The
acquisitions made by the members of different branches jointly cannot be impressed with the incidents
of joint family property. They can only be co-sharers or co-tenants, with the result that their
properties pass by inheritance & not by survivorship”.
21. The Supreme Court in the case of Sushil Kumar (Sunil) and Anr. v. Ram Prakash and Ors., (1988)
2 SCC 77, held as under:
“18. The coparcenary consists of only those persons who have taken by birth an interest in the
property of the holder and who can enforce a partition whenever they like it is a narrower body than
joint family. It commences with a common ancestor and includes a holder of joint property and only
those males in his male line who are not removed from him by more than three degrees. The reason
why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male
descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be
coparceners”.
HINDU JOINT FAMILY
22. The joint undivided family is a normal condition of a Hindu society. Joint Hindu Family consists
of all persons lineal descended from a common ancestors and includes all wives and unmarried
267
daughters. Undivided Hindu family is originally joint not only in estate but also in food and worship.
The existence of joint estate is not an essential requisite to constitute joint family and family which
does not own any property, may nevertheless be joint. Hindu Joint Family is by birth and joint family
property is only adjunct of the joint family. Joint or Undivided Hindu Family may consist of single
male member and widows of deceased male members. The property of a joint family does not cease
to be a joint family property belonging to any other family merely because the family is represented
by a single male member. It may consist of a male Hindu and his wife. It may even consist of two
joint members. However, there must be at least two members to constitute joint family. The general
principle is that a Hindu Family it presumed to be Joint unless the contrary is proved. A daughter
ceases to be a member of her father's family, on marriage and becomes member of her husband’s
family.
23. The Privy Council in the case of Kalyanji Vithaldas v. Commissioner of Income Tax, Bengal, AIR
1937 PC 36, explained the meaning of Hindu undivided family as under:
“The phrase “Hindu undivided family” is used in the statute with reference not to one school only
of Hindu law, but to all schools; and their Lordships think it a mistake in method to begirt by pasting
over the wider phrase of the Act the words "Hindu coparcenary", all the more that it is not possible to
say on the face of the Act that no female can be a member”.
24. The Apex Court in the case of Smt. Sitabai and Anr. v. Ramachandra, AIR 1970 SC 343 held
thus:
“Under the Hindu system of law a joint family may consist of a single male member and widows
of deceased male members and the property of a joint family does not cease to belong to a joint family
merely because the family is represented by a single coparcener who possesses rights which an
absolute owner of property may possess. The property which was the joint family property of the
Hindu undivided family does not cease to be so because of the "temporary reduction of the
coparcenary unit to a single individual". The character of the property, viz. That it was the joint
property of a Hindu undivided family remains the same. It is only by analysing the nature of the rights
of the members of the undivided family, both those in being and those yet to be born, that it can be
determined whether the family property can properly be described as 'joint property' of the undivided
family”.
25. The Supreme Court in the case of GowliBuddanna v. Commissioner of Income Tax, Mysore, AIR
1986 SC 1523 held thus:
“6. A Hindu joint family consists of all persons lineally descended from a common ancestor, and
includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body titan
the joint family: it includes only those persons who acquire by birth an interest in the joint or
coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint
property for the time being: Therefore, there may be a joint Hindu family consisting of a single male
member and widows of deceased coparceners”.
26. The Apex Court in the case of Bhagwati Prasad Sah and Ors. v. DulhinRameshwariKuer and
Anr., AIR 1952 SC 72, held as under:
“The general principle undoubtedly is that a Hindu family is presumed to be joint unless the
contrary is proved but where one of the coparceners separates himself from the other members of the
joint family and has his share in the joint property partitioned off for him there is no presumption that
the rest of the coparceners continued to be joint. It would be a question of fact to be determined in
each case upon the evidence relating to the intention of the parties whether there was a separation
amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the
party who asserts the existence of a particular state of things on the basis of which he claims relief”.
LAW PRIOR TO 1956
27. Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws which varied
from region to region and sometimes it varied in the same region on a caste basis. As the country is
vast and communications and social interactions in the past were difficult, it led to a diversity in the
law. Consequently, in matters of succession also, there were different schools, like Dayabhaga in
Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or
Nambudri in Kerala and Mitakshara in other parts of India with slight, variations. The multiplicity of
268
succession laws in India, diverse in their nature, owing to their varied origin made the property laws
even more complex.
28. The two systems of inheritance which is predominant amongst the Hindus in India are;Mitakshara
system and Dayabhaga system. Dayabhaga system prevails in Bengal, Mitakshara system in other
parts of India. The difference between the two systems arises from the fact that, while the doctrine of
religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding
principle under Mitakshara School. Sometimes, consanguinity has been regarded as the guiding
principle and at other times, religious efficacy.
29. Mitakshara recognises two modes of devolution of property, namely, survivorship and succession.
The rule of survivorship applies to joint family property; the rule of succession applies to property
held in absolute severalty by the last owner. Dayabhaga recognises only one mode of devolution,
namely, succession. It does not recognise the rule of survivorship even in the case of joint family
property. The reason is that while every member of a Mitakshara joint family has only an undivided
interest in the joint property, a member of a Dayabhaga joint family holds his share in quasi-severalty,
so that it passes on his death to his heirs as if he was absolutely seized thereof, and not to the
surviving coparceners as under Mitakshara law.
30. Under the Mitakshara law, on birth, the son acquires a tight and interest in the family property.
According to this school, a son, grandson and a great grandson constitute a class of coparceners, based
on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the
Mitakshara system, joint family property devolves by survivorship within the coparcenary. This
means that with every birth or death of a male in the family, the shore of every other surviving male
either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would
own one third of the property. If another son is born in the family, automatically the share of each
male is reduced to one fourth.
31. The rules of inheritance laid down in Mitakshara are followed by the Bombay, Madras, Benares
and Mithila Schools, all the schools being sub-divisions of Mitakshara School. However, the rules of
inheritance in force in the several states represented by these schools are not entirely the same. They
differ in certain aspects namely, the order of inheritance as laid down in Mitakshara is not strictly
followed in Bombay, Gujarat and the North Konkon. The order of succession to males in the Bombay
State is different from that in other parts of India where Mitakshara law prevails. The reason is that in
those places preference is given to the VyavaharaMayukha of Nilkanta Bhatta on few points, where it
differs from Mitakshara. The difference arises from the fact that the Bombay School recognises as
heirs certain females who are not recognised as heirs in other parts of India, in the Bombay State itself
there is a difference between the order of succession in cases governed by the Mayukha. In the
Bombay State, daughters do not take as joint tenants with benefits of survivorship, but they take as
tenants-in-common. Further, a daughter in that State does not take a limited estate in her father's
property, but takes the property absolutely. Thus if a Hindu governed by the Bombay School dies
leaving two daughters, each daughter takes an absolute interest in a moiety of her father's estate, and
holds it as her separate property, and on her death her share will pass to her own heirs as her
stridhana.
32. The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family
and joint property is recognised. Neither sons nor daughters become coparceners at birth nor do they
have rights in the family property during their father's life time. However, on his death, they inherit as
tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal
shares along with their brothers.
33. In the Marumakkattayam law, which prevailed in Kerala wherein the family was joint, a
household consisted of the mother and her children with joint rights in property. The lineage was
traced through the female line. Daughters and their children were thus an integral part of the
household and of the property ownership as the family was matrilineal.
34. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of
Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs, i.e., son's
daughter, daughter's daughter and sister, thereby creating a limited restriction on the rule of
survivorship. Another landmark legislation conferring ownership rights on woman was the Hindu
Women’s Right to Property Act (XVIII of) 1937. This Act brought about revolutionary changes in the
269
Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law
of partition, alienation of property, inheritance and adoption. The Act of 1937 enabled the widow to
succeed along with the son and to take a share equal to that of the son. But, the widow did not become
a coparcener even though she possessed a right akin to a coparcenary interest in the property and was
a member of the joint family. The widow was entitled only to a limited estate in the property of the
deceased with a right to claim partition. A daughter had virtually no inheritance rights.
35. The framers of the Indian Constitution took note of the adverse and discriminatory position of
women in society and took special care to ensure that the State took positive steps to give her equal
status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit
discrimination against women but in appropriate circumstances provide a free hand to the State to
provide protective discrimination in favour of women. These provisions are part of the Fundamental
Rights guaranteed by the Constitution. Part-IV of the Constitution contains the Directive Principles
which are no less fundamental in the governance of the State and inter-alia also provide that the State
shall endeavour to ensure equality between man and woman.
LAW AFTER 1956 ACT AND PRIOR TO 2005 AMENDMENT ACT
36. Sri Pandit Jawaharlal Nehru, the then Prime Minister of India expressed his unequivocal
commitment to carry out reforms to remove the disparities and disabilities suffered by Hindu women.
As a consequence, despite the resistance of the orthodox section of the Hindus, the Hindu Succession
Act, 1956 was enacted and came into force on 17thJune, 1956. It applies to all the Hindus including
Buddhists, Jains and Sikhs. It lays down a uniform and comprehensive system of inheritance and
applies to those governed both by the Mitakshara and the Dayabhaga Schools and also to those in
South India governed by the Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu
Law. Many changes were brought about giving women greater rights, yet in Section 6 the Mitakshara
Coparcenary was retained.
37. The provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N. Rau
Committee and piloted by Dr. Ambedkar, was for abolishing the Mitakshara coparcenary with its
concept of survivorship and the son’s right by birth in a joint family property and substituting it with
the principle of inheritance by succession. These proposals met with a storm of conservative
opposition. When Dr. Ambedkar was questioned as to how this happened in the Select Committee he
said: “It was not a compromise. My enemies combined with my enthusiastic supporters and my
enemies thought that they might damn the Bill by making it appear worse than it was”.
38. Therefore, the Hindu Succession Act, 1956 enacted by the Parliament conferred on women and in
particular to a daughter equal rights as that of the son. The limited ownership rights in the property
conferred under earlier laws blossomed into full ownership in respect of any property possessed by a
female Hindu whether acquired before or after the commencement of the Act by virtue of Section 14
of the Act. The explanation to Section 14(1) made it clear, the property referred to in Section 14
includes both movable and immovable property acquired by a female Hindu by inheritance or devise,
or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person,
whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by
purchase or by prescription, or in any other manner whatsoever, and also any such property held by
her as stridhana immediately before the commencement of the Act. Therefore, a Hindu woman with
the advent of the Act enjoyed the absolute ownership rights in the property possessed and acquired by
her and she was at liberty to exercise her right in the same as such absolute owner. In respect of the
property of a male Hindu dying intestate, equal rights were given to a female Hindu by treating her as
Class-I heir along with son of the deceased. However, the said enactment had no application to
coparcenary property. Prior to 1956 Act, the daughter in a Hindu Joint Family governed by
Mitakshara law was not considered a coparcener. Even after 1956 Act the position continued to be the
same. The Act of 1956 did not deal with devolution of interest in the coparcenary property. Section 6
made it clear that, when a male Hindu dies after the commencement of the Act, having at the time of
his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with the Act.
Therefore, the Act was not made applicable to coparcenary property. However, the proviso to the said
Section provided that, if a male Hindu dies leaving behind a surviving female relative specified in
Class-I of the Schedule or a male relative specified in that class who claims through such female
270
relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by
testamentary or intestate succession, as the case may be, under the Act and not by survivorship.
39. The inequality between a son and a daughter contained in the shastric and customary Mitakshara
law continued to persist. The concept of the Mitakshara coparcenary property retained under Section 6
of the Hindu Succession Act has not been amended ever since its enactment. It is a matter of some
satisfaction that, five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and
Karnataka took cognisance of the fact that a woman needs to be treated equally both in the economic
and the social spheres. In the year 1994, the States of Karnataka, Andhra Pradesh, Maharashtra, for
the first time brought in amendments to Section 6 conferring right on daughters in coparcenary
property and treating them as coparceners. As per the law of four of these states, (Kerala excluded), in
a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become
a coparcener in her own right in the same manner as the son. However, the said benefit was not
extended to the case of partitions anterior to the said law and to the married daughters. Kerala,
however, has gone one step further and abolished the right to claim any interest in any property of an
ancestor during his or her lifetime founded on the mere fact that he or she was born in the family. In
fact, it abolished the Joint Hindu family system altogether including the Mitakshara,
Marumakkattayam, Aliyasantana and Nambudri systems. Thus enacting that joint tenants be replaced
by tenants in common. However, the other states instead of abolishing the right by birth strengthened
it, while broadly removing the gender discrimination inherent in Mitakshara Coparcenary.
40. Social justice demands that a woman should be treated equally both in the economic and the social
sphere. The exclusion of daughters from participating in coparcenary property ownership merely by
reason of their sex is unjust. Improving their economic condition and social status by giving equal
rights by birth is a long felt social need. Undoubtedly a radical reform of the Mitakshara law of
coparcenary was needed to provide equal distribution of property not only with respect to the separate
or self-acquired property of the deceased male but also in respect of his undivided interest in the
coparcenary property.
41. Therefore, notwithstanding such conferment of coparcenary property rights in property by birth,
discrimination persisted between a married daughter and an unmarried daughter and the married
daughter and a married son. It led to heart burning. The law prior to amendment denied the daughter
the status of coparcener in a Joint Hindu Family and equal rights in the property with the son, and the
State tolerated this inequality for nearly 50 years. Article 13 of the Constitution declares that all laws
in force in the territory of India immediately before the commencement of this Constitution, in so far
as they are inconsistent with the provisions of Part-III fundamental rights shall, to the extent of such
inconsistency, is void. The Act was enacted after the commencement of the Constitution. Article
13(2) declares that the State shall not make any law which takes away or abridges the rights conferred
by this part and any law made in contravention of the said clause, shall to the extent of the
contravention, be void. It took nearly 50 years to realise this inequality and restore equality. It is in
this background the Parliament, took note of the events for the last 50 years after the enactment,
various pronouncements of the Apex Court while interpreting Articles 14, 15 and 16 and the attempts
made by successive Governments to eradicate gender bias and came up with the Hindu Succession
(Amendment) Act, 2005. That is the purpose of this amendment.
POINT No. 1
HINDU SUCCESSION (AMENDMENT) ACT 2005 (Act No. 39 of 2005)
42. The Hindu Succession (Amendment) Bili, 2005 was passed by the Rajya Sabha on 16 th August
2005, and by the Lok Sabha on 29th August 2005, and assented by the President of India on 5 th
September 2005. It came into force from 9thSeptember, 2005. The provisions introduced by way of
amendment has to be understood in the background of the law as it stood before, the mischief sought
to be remedied by the amendment, and also the objects and reasons set out in the amendment Act.
STATEMENT OF OBJECTS AND REASONS
43. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and
recognises the rule of devolution by survivorship among the members of the coparcenary. The
retention of the Mitakshara coparcenary property without including the females in it means that the
females cannot inherit in ancestral property as their male counterparts do. The law by excluding the
daughter from participating in the coparcenary ownership not only contributes to her discrimination
271
on the ground of gender but also had led to oppression and negation of her fundamental right of
equality guaranteed by the Constitution having regard to the need to render social justice to women,
the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes
in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala
Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to
remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving
equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.
44. Before we interpret this provision, it is necessary to keep in mind the principle of interpretation
which is relevant in interpreting this provision.
INTERPRETATION
The Apex Court in the case of Mahadfolal Kanodia v. Administrator General of West Bengal,
AIR 1960 SC 936, has laid down the principles to be applied as under:
(1) Statutory provisions which create or take away substantive rights are ordinarily prospective.
They can be retrospective if made so expressly or by necessary implication and the
retrospective operation must be limited only to the extent to which it has been so made either
expressly or by necessary implication.
(2) The intention of the legislature has to be gathered from the words used by it, giving them their
plain, normal grammatical meaning.
(3) If any provision of a. legislation, the purpose of which is to benefit a particular class of
persons is ambiguous so that it is capable of two meanings, the meaning which preserves the
benefits should be adopted.
(4) If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such
interpretation should be discarded and an interpretation which will give effect to the purpose
will be put on the words, if necessary, even by modification of the language used.
45. In Commissioner of Income Tax v. Indian Bank Limited, AIR 1965 SC 1473, the Supreme Court
reiterated:
“In our opinion, in construing the Act, we must adhere closely to the language of the Act. If there
is ambiguity in the terms of a provision, recourse must naturally be had to well established principles
of construction, but it is not permissible first to create an artificial ambiguity and then try to resolve
the ambiguity by resort to some general principles”.
15.3. The principles are so succinctly stated in American Jurisprudence (2 nd edition, Vol. 73, page
434, Pr. 366), quoted with approval in S.R. Bommai v. Union of India, AIR 1994 SC 1980.
“While it has been held that it is duty of the courts to interpret as statute as they find it without
reference to whether its provisions are expedient or inexpedient. It has also been recognised that
where a statute is ambiguous and subject to more than one interpretation, the expediency of one
construction or the other is properly considered. Indeed, where the arguments are nicely balanced,
expediency may trip the scales in favour of a particular construction. It is not the function of a court
in the interpretation of statutes, to vindicate the wisdom of the law. The mere fact that the statute
leads to unwise results is not sufficient to justify the Court in rejecting the plain meaning of
unambiguous words or in giving to a statute a meaning of which its language is not susceptible, or in
restricting the scope of a statute. By the same token an omission or failure to prove for contingencies,
which it may seem wise to have provided for specifically, does not justify any judicial addition to the
language of the statute. To the contrary, it is the duty of the Courts to interpret a statute as they find it
without reference to whether its provisions are wise or unwise, necessary or unnecessary, appropriate
or inappropriate, or well or ill conceived”.
15.4. Rule of interpretation are meant to ascertain the true intent and purpose of the enactment
and set right any anomaly, inconsistency or ambiguity, while giving effect to it The several rules of
interpretation when juxtapositioned may give an impression that they are inconsistent with each other.
Further, the same provision, when interpreted with reference to different Rules of interpretation may
lead to different results. This is because the Rules of interpretation are meant to set right different
types of defects. It is not possible to apply all rules of interpretation together, to a provision of law.
An appropriate rule of interpretation should he chosen as a tool depending upon the nature of the
defect in drafting which has to be set right. The Rules of interpretation are to be applied in interpreting
272
the statutes, only if there is ambiguity, inconsistency, absurdity or redundancy. Where the words are
clear the unambiguous, there is little need to open the tool kit of Interpretation.
46. Keeping in mind these principles, the substituted Section 6 is to be interpreted. Section 6 reads as
under:
“Section 6. Devolution of interest in coparcenary property-(1) On and from the commencement of
the Hindu Succession (Amendment) Act 2005, in a Joint Hindu family governed by the Mitakshara
Law, the daughter of a coparcener shall, -
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference
to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken
place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be
held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act, or any other law for the time being in force,
as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law,
shall devolve by testamentary or intestate succession, as the case may be under this Act and
not by survivorship, and. the coparcenary property shall be deemed to have been divided as
if a partition had taken place and, -
(a) the daughter is allotted the same share as is allotted to a son;
(b) the shore of the pre-deceased son or a pre-deceased daughter, as they would have got had
they been alive at the time of partition, shall be allotted to the surviving child of such
predeceased son or of such predeceased daughter; and
(c) the share of the predeceased child of a pre-deceased son or a predeceased daughter, as
such child would have got had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased
daughter, as the case may be.
Explanation-For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to him if a.
partition of the property had taken place immediately before his death irrespective of
whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall
recognise any right to proceed against a son, grandson or great-grandson for the recovery
of any debt due from his father, grandfather or great-grand-father solely on the ground of
the pious obligation under the Hindu law, of such son, grandson or great-grandson to
discharge any such debt;
Provided that in the case of any debt contracted before the commencement of the Hindu Succession
(Amendment) Act, 2005 nothing contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the son, grandson of great-grandson, as the case
may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule or pious obligation in the same manner and to
the same extent as it would have been enforceable as if the Hindu Succession (Amendment)
Act, 2005 had not been enacted.
Explanation- For the purposes of Clause (a), the expression "son", "grandson" or "great-
grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may
be, who was born or adopted prior to the commencement of the Hindu Succession
(Amendment) Act, 2005.
273
(5) Nothing contained in this section shall apply to a partition, which has been effected before the
20th day of December, 2004.
Explanation- For the purposes of this Section "partition" means any partition made by execution of
a deed of partition duly registered under the Registration Act 1908 (16 of 1908) or partition
effected by a decree of a court”.
47. The heading of the Section, “devolution of interest in coparcenary property” is retained. There is
no change. The word “coparcenary” and “Joint Hindu Family” was used in all schools of Hindu Law,
though the rights of coparceners and members of the Joint family differed. The un-amended Section 6
dealt with interest of a male Hindu in a Mitakshara coparcenary property, as a female Hindu was not
recognized as a coparcener at all The parliament intended to change the existing law and create and
confer such right on a daughter of a coparcener also. Therefore, they chose to make a declaration
signalling the change in the Jaw, as it existed till then and heralding a new era. The intention behind
the amendment is to confer such coparcenary right on the daughter of a coparcener, which was
hitherto not recognized both under the Shastric Hindu Law and the Act. The discrimination sought to
be removed was not existing in all Schools of Hindu Law. It was existing only in Mitakshara School.
Therefore, amended section makes it clear that the declaration made is confined only to “a Joint
Family governed by the Mitakshara law”. The equality to be restored was between son and daughter
only and not between male and female Hindu. Therefore, the Parliament consciously used the phrase
“the daughter of a coparcener” is the person on whom they are conferring the right and not on any
other female relative, who may be a member of Joint Hindu Family. This intention can be gathered
from the fact that in the unamended Section, the proviso conferred rights on a “female relative” and
not only on a “daughter of a coparcener”.
48. Then the next question, is What is the right that is created and conferred?
Two rights are conferred.
(a) The daughter of a coparcener by birth become a coparcener in her own right in the same manner
as the son. Equality in Status.
(b) The daughter of a coparcener would have the same rights in the coparcenary property, as she
would have had, if she had been a son. Equal rights in coparcenary property.
49. Thus, Gender discrimination between the son and daughter is removed, and bringing the law in
conformity with the Articles 14 and 15 of the Constitution which are fundamental rights.
50. The parliament took care to see that the daughter who is conferred rights in the coparcenary
property on par with the son, is also saddled with the liabilities in respect of the said coparcenary
property as that of a son, making it clear that the right in property conferred on her is not free from all
encumbrances on the said property. The rights and liabilities are to be shared equally by the son and
daughter, thus giving effect to the equality clause in letter and spirit.
51. With the change in the law, the legal concept of coparcenary underwent a radical change. The
coparcenary hitherto the monopoly of male lineal descendants, and consisting of only male member of
a Joint Hindu Family now has to accommodate a daughter, a female also. Therefore, a declaration is
made to the effect that any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener. The exclusive club of males "a Hindu Mitakshara coparceners
is now thrown open to the daughters also.
52. This declaration and conferment of right in coparcenary property, a salient and distinguishing
feature of a coparcenary property in Mitakshara, is the right by birth. Once daughter is conferred the
right of a coparcener, it follows that, she would get a right by birth in the coparcenary property. When
the amending act came into force in 2005, naturally the question and a doubt would arise, as to when
the daughter would get that right. The parliament realised this problem and did not want to leave any
one in doubt about its intention. It is expressly stated in the section itself that this "right is by birth",
leaving no scope for interpretation. This amendment is introduced by way of substitution. The result
is, this amended provision is there in the statute on the day it came into force i.e., 17-6-1956. From
that day till the amendment Act came into force on 9-9-2005, the daughter of the coparcener was not a
coparcener and she became a coparcener only from 9-9-2005. Though her status was so declared on 9-
9-2005, she has been given right in the coparcenary property from the date of her birth. It would result
in absurdity. Therefore, what the parliament did was to use the phrase, “on and from the
274
commencement of the Hindu Succession (Amendment) Act. 2005”, as the opening words of the
Section, thus removing the absurdity.
53. If the aforesaid opening words were not there in the amended section and it is inserted by way of
substitution, when the right is given to a daughter by birth, such a right would have accrued to her
prior to the date of the passing of the Act in 1956 itself. The intention of the Parliament was hot to
give her rights in a coparcenary property prior to the date of the Act as she had only a limited right in
the property, whether ancestral or self-acquired property of the father. Therefore, on a proper
interpretation it follows that when the status of a coparcener is conferred on the daughter on and from
the date of the commencement of the Amendment Act, as the right is given to her by birth, she must
have born after 17.6.1956, the day on which the Act came into force. It is only under the Act, her
limited estate blossomed into an absolute estate, and got equal rights with the son in the property of
her father and mother.
54. The Apex Court in the case of Eramma v. Veerupana, AIR 1966 SC 1879 had an occasion to
consider whether the Act is prospective or retrospective in operation. After analysing the various
provisions of the Act it was held that, there is nothing in the language of Section 8 to suggest that it
has retrospective operation. The words “The property of a male Hindu dying intestate” and the words
“shall devolve” occurring in the section make it very clear that the property whose devolution is
provided for by that section must be the property of a person who dies after the commencement of the
Hindu Succession Act.
55. Again after referring to Section 6 of the Act, it was held that, it is clear from the express language
of the section that it applies only to coparcenary property of the male Hindu holder who dies after the
commencement of the Act. It is manifest that the language of Section 8 must be construed in the
context of Section 6 of the Act. Accordingly, they held that the provisions of Section 8 of the Hindu
Succession Act are not retrospective in operation and where a male Hindu died before the Act came
into force i.e., where succession opened before the Act, Section 8 of the Act will have no application.
56. Therefore, it follows that the Act when it was enacted, the legislature had no intention of
conferring rights which are conferred for the first time on a female relative of a coparcener including a
daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision
of Section 6 also it cannot be made retrospective in the sense applicable to the daughters born before
the Act came into force. In the Act before amendment the daughter of a coparcener was not conferred
the status of a coparcener. Such a status is conferred only by the Amendment Act in 2005. After
conferring such status, right to coparcenary property is given from the date of her birth. Therefore, it
should necessarily follow such a date of birth should be after the Act came into force, i.e., 17.6.1956.
There was no intention either under the unamended Act or the Act after amendment to confer any
such right on a daughter of a coparcener who was born prior to 17.6.1956. Therefore, in this context
also the opening words of the amending section assumes importance. The status of a coparcener is
conferred on a daughter of a coparcener on and from the commencement of the Amendment Act,
2005. The right to property is conferred from the date of birth. But, both these rights are conferred
under the Act and. therefore, it necessarily follows the daughter of a coparcener who is born after the
Act came into force alone will be entitled to a right in the coparcenary property and not a daughter
who was born prior to 17.6.1956.
57. Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare
that, on and from the commencement of this Amendment Act in a Joint Hindu family governed by the
Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in
the same manner as the son and have the same rights in the coparcenary property as she would have
had if she had been a son. Therefore, the Mitakshara law in respect of coparcenary property and
coparcenary consisting of only male members came to an end. By such a declaration the Parliament
declared that from the date of the amendment Shastric and customary law of coparcenary governed by
Mitakshara school is no more applicable and it cease to exist. Thus, by virtue of the aforesaid
provision, a right is conferred on a daughter of a coparcener for the first time. The said right is
confirmed by birth. Therefore, though such a right was declared in the year 2005, the declaration that
the said right as a coparcener ensures to her benefit by birth makes the said provision retroactive.
Though on the date of the birth she did not have such right because of the law governing on that day
by amendment the law, such a right is conferred on her from the date of the Act of 1956. A historical
275
blunder depriving an equal right in spite of the constitutional mandate is now remedied and the lawful
right to which the daughter was entitled by virtue of the constitution is restored to her from the date of
her birth. This, the Parliament has done by using the express words that a daughter of a coparcener
shall by birth become a coparcener in her own right in the same manner as the son and have the same
rights in the coparcenary property as she would have had if she had been a son.
58. After so declaring that the daughter of the coparcener shall by birth become a coparcener and have
the same rights in the coparcenary property, the Parliament had in its mind the fall out of such
declaration on the bona fide transactions entered into between the coparceners and the third parties for
nearly four decades after coming into force of the Act, where coparcenary property was kept out of
the purview of the Act. Therefore, they added a proviso to exclude certain transactions from the
purview of the main Section.
WHY IS A PROVISO IS ADDED TO A SECTION?
59. The normal function of a proviso is to except something out of the enactment or to qualify
something enacted therein which but for the proviso would be within the purview of the enactment.
When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting
part of the section would have included the subject-matter of the proviso. As a general rule, a proviso
is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily,
a proviso is not interpreted as stating a general rule. The proper function of a proviso is that it
qualifies the generality of the main enactment by providing an exception and taking out as it were,
from the main enactment, a portion which, but for the proviso would fall within the main enactment.
Except as to cases dealt with by it, a proviso has no repercussion on the interpretation of the enacting
portion of the section so as to exclude something by implication which is embraced by clear words in
the enactment. The language of a proviso even if general is normally to be construed in relation to the
subject-matter covered by the section to which the proviso is appended. A proviso does not travel
beyond the provision to which it is a proviso. It is a cardinal rule of interpretation, that a proviso to a
particular provision of a statute only embraces the field which is covered by the main provision. It
carves out an exception to the main provision to which it has been enacted as a proviso and to no
other. The natural presumption is that but for the proviso, the enacting part of the section would have
included the subject-matter of the proviso the enacting part should be generally given such a
construction which would make the exceptions carved out by the proviso necessary and a construction
which would make the exceptions unnecessary and redundant should be avoided. This is so because,
the legislative device of exclusion is adopted only to exclude a part from the whole, which but for the
exclusion, continues to be a part of it and words of exclusion are presumed to have some meaning and
are not readily recognised as mere surplusage. The general rule in construing an enactment containing
a proviso is to construe them together without making either of them redundant or otiose. Even if the
enacting part is clear effort is to be made to give some meaning to the proviso and to justify its
necessity. Proviso, is used to remove special cases from the general enactment and provide for them
specially.
60. The proviso states that nothing contained in Sub-section (1) of Section 6 shall affect or invalidate
any disposition or alienation including any partition or testamentary disposition of property which had
taken place before 20th day of December, 2004. In order to properly appreciate what are the
transactions which are removed from the application of Sub-section (1) of Section 6, we have to know
the meaning of the word “disposition”, “alienation”, “partition” and “testamentary disposition” used
in this proviso.
61. The term “disposition” has been defined in Stroud’s Judicial Dictionary as a devise “intended to
comprehend a mode by which property can pass, whether by act of parties or by an act of the law” and
“includes transfer and change of property. The word ‘disposition’ means giving away or giving up by
a person of something which was his own. It is not a term of law. It has no precise meaning. Its
meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to
property means disposition made by deed or will and also disposition made by or under a decree of a
court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to
the effect of that document. The removal of a thing from one's self is, involved in a disposal. The
disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a
276
plan or arrangement for the disposal, distribution of something; definite settlement with regard to
some matter.
62. The word ‘alienation’ is derived from the word ‘alien’. It means to transfer or make over to
another; to convey or transfer the property of a thing from one person to another. Alienate means to
transfer property from one person to another. Alienation is to make alien, or to transfer from our
dominion into a foreign one, or to transfer anything into the power of another. “Alienee” means a
person to whom ownership is transferred. Alienation imports an actual transfer of title. Alienation
means transfer of ownership of property to another person. The word applies to absolute conveyance
of immovable property and imports an actual transfer of title. The act whereby one man transfers the
property and possession of lands, tenements, or other things, to another person; generally applied to
absolute conveyances of immovable property.
63. The word “alienation”is distinct and different from “partition”. The latter is not included in the
former. Therefore, for the purpose of this section, it is specifically mentioned that the alienation
includes partition.
64. The word “partition” has a different connotation in law. Partition is a division between co-owners
(whether coparceners, joint-tenants in common) of lands, tenements and hereditaments held by them,
the effect of such division being that the joint ownership is terminated and the shares of the parties
vested in them in severalty. In Sanskrit the word ‘vibhaga’ is used. It is the adjustment of diverse
rights regarding the whole by distributing them on particular portions of the aggregate. A partition by
a separation between joint owners or tenants in common of their respective interests in land, and
setting apart such interest, so that they may enjoy and possess the same in severalty. Partition is the
redistribution of pre-existing rights and not the acquisition of rights by a person for the first time.
Distribution neither gives a new title to property nor transfers a distinct right in the estate of the
deceased owner, but is simply declaratory as to the persons upon whom the law casts the succession
and the extent of their respective interests; while partition, in most if not all of its aspects, is an
adversary proceeding, in which a remedial right to the transfer of the property is asserted and resulting
in a decree which either ex proprio vigore or as executed, accomplishes such transfer.
65. When the word partition has been defined as explanation to sub-Section (5) of Section 6, the
meaning attributed to the said word is to be strictly construed. It states that for the purpose of this
Section, partition means, any partition made by execution of deed of partition duly registered under
the Registration Act, 1908 or partition effected by a decree of a Court. The meaning of the word
'partition' is very much restricted, narrow and to be confined only to Section 6, as expressly stated in
the explanation.
66. Chapter-III of the Act deals with testamentary succession. Section 30 of the Act provides that any
Hindu may dispose of by Will or other testamentary disposition any property, which is capable of
being so disposed of by him or by her in accordance with the provisions of the Indian Succession Act,
1925 or any other law for the time being in force and applicable to Hindu. Explanation to that Section
provides that the interest of a male Hindu in a Mitakshara coparcenary property shall notwithstanding
anything contained in the Act, or in any other law for the time being in force, be deemed to be
property capable of being disposed of by him or by her within the meaning of this Section.
67. In the light of the aforesaid words used in the proviso to sub-section (1) of Section 6 in is clear the
substituted Section has no application and it shall not affect or invalidate any disposition or alienation
or partition or testamentary disposition which has taken place before the 20 th day of December 2004.
In other words, if there is no disposition or alienation of a property belonging to a Joint Hindu Family,
the daughter who is conferred the status of a coparcener by virtue of which she gets a right by birth is
entitled to the same rights in the coparcenary property in the same manner as the son. The language
employed in the proviso is unambiguous and clear. The intention was to save disposition, alienation
including any partition or testamentary disposition of property which had taken place before the 20 th
day of December 2004.
68. Sub-section (2) of Section 6 further declares that any property to which a female Hindu becomes
entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership
and shall be regarded, notwithstanding anything contained in the Act, or any other law for the time
being in force in, as property capable of being disposed of by her by testamentary disposition. Thus,
equality is maintained after the daughter acquires right in the coparcenary property also, giving full
277
effect to the object of the amended law when it clarified the legal position that any reference to a
Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
69. Sub-section (3) of section deals with succession of property after the commencement of the Hindu
Succession Act, 2005, i.e., from 09.09.2005. Sub-section (3) of the amended Section provides that,
where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his
interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and
the coparcenary property shall be deemed to have been divided as if a partition had taken place.
Therefore, with the passing of the Amendment Act, 2005, the concept of survivorship is given a go by
once and for all.
70. The word used is, “Hindu”, implying both male and female. This provision deals with the interest
of a Hindu in the property of a Joint Hindu Family governed by Mitakshara Law. If the said prevision
is contrasted with Sections 8 and 14, which deals with male and female, the said Sections deals with
the self-acquired or separate property of a male Hindu and female. Whereas, sub-section (3) deals
with the Joint Hindu Family property. The Joint Hindu Family shall devolve by testamentary or
intestate succession, as the case may be under this Act arid not by survivorship. When this provision
is contrasted with Section 6 prior to amendment, which dealt with devolution of interest in a
coparcenary property in respect of a male Hindu, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
Therefore, by this substituted provision, the devolution of interest by survivorship is completely
abolished after coming into operation of 2005 Act. Section 30 of the Act provided for testamentary
succession. The explanation added to that Section made it clear that, the interest of a male Hindu in a
Mitakshara coparcenary property shall, notwithstanding anything contained in the Act or in any other
law for the time being in force, be deemed to be property capable of being disposed of by him or by
her within the meaning of the Section 30, i.e., he may dispose of his coparcenary interest also by way
of Will or other testamentary disposition. When the amended Section declared that, on and from the
commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed
by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own
right in the same manner as the son and have the same rights in the coparcenary property as she would
have had if she had been a son, the question which arise for consideration is, as Section 30 was not
applicable to a female Hindu coparcener in a Mitakshara law, how her interest in that property could
be disposed of and whether Section 30 is applicable to her. It is to clarify this, sub-section (2) of
Section 6 is introduced. It is declared that, any property to which a female Hindu becomes entitled by
virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be
regarded, notwithstanding anything contained in this Act, or any other law for the time being in force,
as property capable of being disposed of by her by testamentary disposition. Thus, the equality is
achieved with a male coparcener who is vested with the said power by virtue of explanation (1) to
Section 30 of the Act. Therefore, by substituted Section 6, the daughter of a coparcener in a Joint
Hindu Family governed by Mitakshara Law has been conferred the status of a coparcener by birth and
conferred same rights in the coparcenary properties as she would have had if she had been a son.
POINT NO. 2
PARTITION UNDER HINDU LAW
71. According to the true notion of an undivided Mitakshara family, no individual member of that
family whilst it remains undivided, can predicate of the joint property, he that particular member-has a
certain definite share, one-third or one-fourth. Partition, according to that law, consists in a numerical
division of the property, in other words, it consists in defining the shares of the coparceners in the
joint property. Once the shares are defined, whether by an agreement between the parties, or
otherwise, the partition is complete. After the shares are so defined, the parties may divide the
property by metes and bounds or they may continue to live together and enjoy the property in
common as before. The property ceases to be joint and immediately the shares are defined and
henceforth the parties hold the property as tenants-in-common. A disruption of joint family status by a
definite and unequivocal indication to separate implies separation in interest and in right although not
278
immediately followed by a de facto actual division of the subject-matter. This may at any time be
claimed by virtue of the separate right. From the time of such disruption, each member holds his
aliquot share as tenant-in-common irrespective of whether there is actual division of the properties by
metes and bounds. It is established law that actual physical division or partition by metes and bounds
is not an essential ingredient for the purpose of effecting severance of status. That is really a formality
in the process of partition. Partition is a severance of joint status, and as such it is a matter of
individual violation. All that is necessary, therefore, to constitute a partition is a definite and
unequivocal indication of his intention by a member of joint family to separate himself from the
family and enjoy his share in severalty. A partition may be effected without any instrument in writing.
An instrument of partition in respect of immovable property of the value of rupees 100 and upwards
requires registration under Section 17(1) of the Indian Registration Act, 1908. An unregistered deed
of partition is not admissible to prove the contents or the shares allotted. However, if it merely
acknowledges a prior partition it is admissible. An unregistered memorandum of partition can be
relied on for collateral purpose of proving intention to separate. But an agreement which by itself does
not create any right or interest in immovable property but only a right to obtain an instrument on
partition does not require registration. However, a memorandum of family settlement being not a
partition deed does not require registration. Partition does not, however, amount to a transfer of
property as partition means that the totality of the property of the family in which all the coparceners
jointly had subsisting title would be transformed into separate titles of the individual coparceners in
respect of several items of properties allotted to them respectively.
72. The institution of suit for partition by a member of a joint family as an unequivocal intimation of
his intention to separate, and there consequently is a severance of his joint status from the date when it
is instituted. A decree may be necessary for working out the results of the severance and for allotting
definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of
his right to separate, whether the obtains a consequential judgment or not. A suit must in substance be
a suit for partition with a desire on the part of the plaintiff to hold his share in severalty without being
subject to the obligation of the joint status.
73. These concepts of partition as well understood in Hindu Law has no application, while
interpreting amended Section 6 of the Act. The legislature has defined 'partition' for the purpose of
Section, which alone is to be taken into consideration while interpreting Section 6 of the Act.
PARTITION UNDER SECTION 6 OF THE ACT
74. In Section 6 the word ‘partition’ has been defined. It is a very narrow definition of partition. As
per the said definition a partition means,
(1) Partition made by execution of a deed of partition duly registered under the Registration Act,
1908 (16 of 1908).
(2) Partition effected by a decree of the Court.
Unless the partition is evidenced by a registered document and hat come into existence prior to
20th day of December 2004, the daughter who has now been conferred the status of a coparcener
cannot be denied the right to the coparcenary property which she has now acquired by birth. This
provision became necessitated because when the Tamil Nadu legislature introduced amendment in the
year 1994 conferring right on a daughter, the status of a coparcener and made it clear that such a right
is not available to a daughter in the joint family, if already partition has taken place, in order to
deprive the legitimate share of a daughter spurious documents came into existence to defeat the
operation of the amendment. This experience weighed with the Parliament while enacting this
provision. Therefore, they made it clear a plea of partition if it is not supported by a registered deed of
partition would not defeat the right of a daughter. Oral partitions, memorandum of partitions,
agreements, which can be fabricated, concocted, after this Amendment Act came into force by anti-
dating them and thus depriving the daughter of her legitimate right, had to be prevented. Therefore, in
that background it is made clear that unless a partition is by a registered instrument, the daughter's
right to the property is not taken away. In other words, if the partition is not evidenced by a registered
document, then, the daughter of a coparcener who has been conferred equal right in coparcenary
property with that of the son would be entitled to a share in the coparcenary property as that of the son
notwithstanding the fact that there was a partition of the coparcenary property as recognised under
Hindu law vis-a-vis, the law of partition.
279
75. The second mode recognized as per the definition of partition is, partition “effected by a decree of
a Court”. The word decree is defined under the Civil Procedure Code 1908. The definition reads as
under:
“decree” means the formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard to all or any of the matters
in controversy in the suit and may be either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order or dismissal for default.
76. It is a formal expression of an adjudication which so far as the Court expressing it conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in the suit. A
decree may be preliminary or final. In a partition suit, in a preliminary decree the Court declares the
rights of the parties 10 the property in dispute. In other words, the shares to which each members of a
joint family in the said joint, family property or coparcenary property is declared. The said decree is
appealable. When a trial Court decrees a suit and the decree is challenged by a competent appeal, the
appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or
reverses the decree on the merits, the trial Court decree is said in law to merge in the appellate decree,
and it is the appellate decree which rules. However, what the Court does in a preliminary decree is
only a declaration of shares. It does not effect a partition. A partition is effected when a final decree is
passed giving effect to the shares declared in the preliminary decree by allotting specific share to the
members of the family in the joint family property or the ancestral property or in both. Again, a final
decree passed in a suit for partition is appealable. Therefore, the decree passed by the trial Court
merges with the appellate decree and it is the final decree passed by the appellate Court which effects
a partition. Therefore, it is the final decree of partition which has attained finality by which a partition
is effected by a decree of Court. If a partition is effected by a decree of the Court, thereby meaning a
final decree passed by a Court has attained finality, then, the daughter of a coparcener who has been
conferred equal rights in the coparcenary property under Section 6, would not be entitled to a share in
the coparcenary property as that of the son. In this regard it is useful to refer to the two decisions of
the Supreme Court on the point.
Phoolchand and Anr. v. Gopal Lal, AIR (1967) SC 1470:
“We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the
passing of more than one preliminary decree if circumstances justify the same and that if may be
necessary to do so particularly in partition suits when after the preliminary decree some parties die
and shores of other parties are thereby augmented. We have already said that it is not disputed that in
partition suits the court can do so even after the preliminary decree is passed. It would in our opinion
be convenient to the court and advantageous to the parties, specifically in partition suits, to have
disputed rights finally settled and specification of shares in the preliminary decree varied before a
final decree is prepared. If this is done, there is a clear determination of the rights of parties to the
suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree
deciding these disputed rights: if so, there is no reason why a second preliminary decree correcting
the shares in a partition suit cannot be passed by the court So far therefore as partition suits are
concerned we have no doubt that if an event transpires after the preliminary decree which
necessitates a change in shares, the court can and should do so; and if there is a dispute in that
behalf, the order of the court deciding that dispute and making variation in shares specified in the
preliminary decree already passed in a decree in itself which would be liable to appeal. We should
however like to point out that what we are saying must be confined to partition suits, for we are not
concerned in the present appeal with other kinds of suits in which also preliminary and final decree
are passed. There is no prohibition in the Code of Civil Procedure against passing a second
preliminary decree in such circumstances and we do not see why we should rule out a second
preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does
not contemplate such a possibility. In any case if two views are possible - and obviously this is so
became the High Courts have differed on the question - we would prefer the view taken by the High
Courts which hold that a second preliminary decree can be passed, particularly in partition suits
where parties have died after the preliminary decree and shares specified in the preliminary decree
280
have to be adjusted We see no reason why in such a case if there is dispute, it should not be decided
by the Court which passed the preliminary decree, for to must not be forgotten that the suit is not over
till the final decree is passed and the Court has Jurisdiction to decide all disputes that may arise after
the preliminary decree particularly in a partition such due to deaths of some of the parties. Where
there can be more than one final decree does not arise in the present appeal and on that we express
no opinion. We therefore hold that in the circumstances of this case it was open to the Court to draw
up afresh preliminary decree as two of the parties had died after the preliminary decree and before
the final decree was passed. Further as there was dispute between the surviving parties as to
devolution of the shares of the parties who were dead and that dispute was decided by the trial Court
in the present case and therefore the preliminary decree already passed was mended, the decision
amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High
Court that in such circumstances a second preliminary decree can be passed in partition suits by
which the shares allotted in the preliminary decree already passed can be amended and if there is
dispute between surviving parties in that behalf and that dispute is decided for decision amounts to a
decree. We should however like to make it clear that this can only be done so long as the final decree
has not been passed. We therefore reject this contention of the appellant”.
S. Sai Reddy v. S. Narayana Reddy and Ors., (1991) 3 SCC 647:
“7. The crucial question, however, is as to when a partition can be said to have been effected for
the purposes of the amended provision. A partition of the joint Hindu family can be effected by
various modes, viz., by a family settlement, by a registered instrument of partition, by oral
arrangement by the parties, or by a decree of the court When a suit for partition is filed in a court, a
preliminary decree is passed determining shares of the members of the family. The final decree
follows, thereafter, allotting specific properties and directing the partition of the immovable
properties by metes and bounds. Unless and until the final decree is passed and the allottees of the
shares are put in possession of the respective property, the partition is not complete. The preliminary
decree which determines share does not bring about the final partition. For, pending the final decree
the shares themselves are liable to be varied on account of the intervening events. In the instant case,
there is no dispute that only a preliminary decree had been passed and before the final decree could
be passed the amending Act came into force as a result of which Clause (ii) of Section 29-A of the Act
became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of
varying shares of the parties like any supervening development Since the legislation is beneficial and
placed on the statute book with the avowed object of benefiting women which is a vulnerable section
of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason, also, we
cannot equate the concept of partition that the legislature has in mind in the present case with a mere
severance of the status of the joint family which can be effected by an expression of a mere desire by a
family member to do so. The partition that the legislature has in mind in the present case is
undoubtedly a partition completed in all respects and which has brought about an irreversible
situation. A preliminary decree which merely declares shares which are themselves liable to change
does not bring about any irreversible situation. Hence, we are of the view that unless a partition of
the property is effected by metes and. bounds, the daughters cannot be deprived of the benefits
conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits
conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of
oral partitions will spring up and nullity the beneficial effect of the legislation depriving a vast section
of women of its benefits”.
77. Therefore, it is clear that if on the date, i.e., 20 th December, 2004, there is no partition effected by
decree of the court thereby meaning a final decree for partition has not reached finality, then, the
daughter of a coparcener is entitled to equal share in the coparcenary property as that of a son and
Section 6 is applicable to such property. The legislative intention is clear. They wanted to give the
benefit of this section to a daughter. Such a right, they did not want it to be defeated by mere plea of
partition as well understood under Hindu law or merely because a suit for partition is filed or a decree
for partition has already been passed by a trial Court. On those grounds they did not want to deny the
daughter her legitimate share in the coparcenary property which ought to have been granted to her on
the day the Act came into force namely 17th June 1956.
281
78. A registered partition deed could not be prepared, antedated and registered after the coming into
force of the Act, similarly a final decree for partition cannot be created or manipulated, just to deny
the daughters their legitimate share in the coparcenary property, and a partition by registered
instrument and a final decree for partition that attained finality would reflect the bona fide conduct of
the parties in the normal circumstances. They did not want those transactions to be affected by the
substituted Section 6 of the Act. Therefore a partition effected in the aforesaid two manner before 20 th
December 2004 were kept away from the purview of Section 6. Except those two circumstances,
whatever may be the course of conduct of the parties, the daughter of a coparcener was conferred a
right in such property equal to that of a son.
79. Therefore, the concept of partition and severance of the status as under Hindu Law has no
application under the Act in view of the definition of partition by way of Explanation to Sub-section
(5) of Section 6 of the Act and it is only such partitions which are not affected by the effect of
amended Section 6 of the Act.
POINT No. 3
WHAT IS THE RIGHT OF A MARRIED DAUGHTER?
80. The bill prepared by the Law Commission contained a provision making the amended provision
not applicable to married daughters. That is precisely what is contained in the amendments carried out
to the Act by the legislatures of Karnataka, Andhra Pradesh, Maharashtra and Tamil Nadu. However,
in the bill passed by the Parliament we do not find the said provision. Rightly the said provision did
not find favour with the representatives of the people and is deleted from the original bill even before
it is presented to the Parliament. Therefore, the intention of the Parliament is clearly manifest from
this Act. Secondly, the marriage, has no relevance to the succession or inheritance of the property.
When a male Hindu marries, his right to succeed to a property or inherit a property is in no way
affected by the act of marriage. However, in the case of a daughter in a Hindu Family, a distinction
was sought to be made. After her marriage as she ceased to be a member of the Hindu Undivided
Family and becomes a member of the Hindu Undivided Family of her husband, she was denied the
right in the undivided family of her father. If she did not marry, her right was intact. The marriage had
the effect of denuding her right to property in the family by birth. It stands to no reason. Therefore,
the Parliament consciously has not used the word ‘married daughter’ in the entire Section as the case
in the earlier State Amendment where they added an explanation, to exclude the married daughter. It
is yet another indication and manifestation of legislative intent that they did not make any distinction
between a married daughter and an unmarried daughter in respect to their rights to the properties of
her father who is a coparcener in a Hindu Undivided Family governed by Mitakshara Law. It is settled
law that the intention of the Legislature is primarily to be gathered from the language used, which
means that attention should be paid to what has been said as also what has not been said. It is contrary
to all rules of construction to read words into an Act unless it is absolutely necessary to do so.
Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the
statute. Therefore, we cannot import by an interpretive process the word 'married daughters' in any
form and in any context to defeat her rights conferred under amended Section 6, when the legislative
intention is expressed clearly and unambiguously without leaving any scope for interpretation.
Thirdly, the language employed and the declaration made in Section 6 makes the legislative intent
explicit and clear, i.e., the daughter of a coparcener shall by birth become a coparcener in her own
right in the same manner as the son and have the same rights in the coparcenary property as she would
have it if she had been a son. It means whatever right the son possesses in a coparcenary property is
sought to be conferred on the daughter. The son would not lose his right in a coparcenary property
because of his marriage. It is that right which is conferred on the daughter and, therefore, when by
birth son acquires an interest in coparcenary property and retains the same, notwithstanding his
marriage, when the daughter is also conferred the same right, it means she acquires a right by birth in
the coparcenary property and she continues to hold the said right notwithstanding her marriage. The
daughter's marriage will not put an end to the right of the daughter to a coparcenary property which
she acquired by birth. If this is not the interpretation to be given to those words, then the Section
would be violative of Section 14 of the Constitution which declares that there cannot be any
discrimination between person and person on the basis of sex. There cannot be a distinction between a
son and a daughter under the constitutional scheme. Further, any other interpretation would mean
282
there will be a further discrimination between a married daughter and an unmarried daughter, which is
again opposed to the equality clause found in Article 14 of the Constitution. Then the whole object of
bringing about this amendment, by substituting the provision in the existing Act and declaring that the
daughter would get a right by birth in the same manner as son, would be defeated, if any interpretation
is to be placed making a distinction between a married daughter and an unmarried daughter or a
married son and a married daughter. That is not the legislative intent and purpose. On the contrary,
when such an attempt was made by the State Legislatures and the interpretation placed on the
aforesaid provision resulted in heart burning and also contrary to the constitutional mandate contained
in Article 14 of the Constitution, the Parliament taking note of these deficiencies and restrictions on
the right of a married daughter advisedly has framed this provision putting an end to any such
controversies and conferring the benefit of the amendment on the married daughters also.
81. The Supreme Court in the case of Savita Samvedi v. Union of India, 1996 SCC (L & S) 521, held
as under:
“A common saying, is worth pressing into service.A son is a son until he gets a wife. A daughter
is a daughter throughout her life.The eligibility of a married daughter must be placed on a par with
an unmarried daughter (for she must have been once in that state), so as to claim the
benefit.Otherwise, it would be unfair, gender-biased and unreasonable and liable to be struck down
under Article 14 of the Constitution. It suffers from twin vices of gender discrimination inter se among
the women on account of marriage and between a married daughter and a married son”.
EFFECT OF AMENDMENT ON KARNATAKA STATE AMENDMENT i.e., SUB-SECTION
(d) OF SECTION 6-A
82. Intestacy, succession, joint family and partition is at entry No.5 in Concurrent List, Schedule-VII
of the Constitution of India. Both the parliament and the State Legislatures are competent to pass law
in respect of the same. It is in pursuance of the power conferred under Article 245 of the Constitution
of India the Indian Parliament passed the Hindu Succession Act, 1956. Section 6 of the said Act dealt
with devolution of interest in coparcenary property. Section 6 made it clear the devolution of interest
in Mitakshara property is by survivorship upon the surviving members of the coparcenary and not in
accordance with the Act. No female member including daughter was a member of Mitakshara
coparcenary. Therefore, the said provision did not confer any right on the daughter.
83. The Hindu Succession (Karnataka Amendment) Act, 1990 was enacted by the Karnataka
Legislature inserting Section 6(A), (B) and (C) in the Hindu Succession Act, 1956, Central Act
30/1956 after Section 6. The State Act received the assent of the President on 28.7.1994 and it became
Karnataka Act 23/1994. By the aforesaid Amendment Act for the first time equal rights to daughters
in coparcenary property was conferred by the Karnataka State Legislature. The said law was
repugnant to Section 6. However, as the said Amendment Act received the assent of the President,
though the State Law was repugnant to the Central Law, State Law prevailed over the Central Law.
Sub-section (d) of Section 6(a) stipulated that the right conferred on a daughter in the coparcenary
property by birth shall not apply to a daughter married prior to or to a partition which had been
effected before the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990. The
said provisions became a part of the Act. Thereafter, the Parliament passed the Hindu Succession
(Amendment) Act, 2005. In the amended provisions no distinction is made between the married
daughter and unmarried daughter. Similarly, the word partition is intended to be confined only to a
partition evidenced by a registered deed of partition or partition effected by a decree of a Court. These
two provisions are repugnant to Sub-section (d) of Section 6-A. The question is whether both these
provisions can co-exist or intended to subsist. In order to answer this question it is necessary to refer
to Article 254 of the Constitution which reads as under:
“Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures
of States.
(1) If any provision of a law made by the legislature of State is repugnant to any provision of a
law made by Parliament which Parliament is competent to enact, or to any provision of an existing
law with respect to one of the matters enumerated in the Concurrent List, then, subject to the
provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by
the Legislature of such State, as the case may be, the existing law, shall prevail and the law made by
the Legislature of the State shall, to the extent of repugnancy, be void.
283
(2) Where a law made by the Legislature of State with respect to one of the matters enumerated in
the Concurrent List contains any provision repugnant to the previsions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the law so made by the legislature of
such State shall, if it has been reserved for the consideration of the President and has received his
assent, prevail in the State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law
with respect to the same matter including a law adding to, amending, varying or repealing the law so
made by the Legislature of the State”.
84. This Article was the subject matter of interpretation by the Apex Court on various occasions. In
the case of T. Barai v. Henry Ah Hoe, AIR 1983 SC 150, the Supreme Court held as under:
“There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes
provision firstly, as to what would happen in the case of conflict between a Central and State law with
regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict
Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and State
Law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State
law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then,
whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to
the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2)
engrafts an exception, viz., that if the President assents to a State law which has been reserved for his
consideration, it will prevail notwithstanding its repugnancy to an earlier law of the union, both laws
dealing with a concurrent subject. In such a case, the Central Act will give way to the State act only to
the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of
the President to State Act is inconsistent with a previous Union law relating to a concurrent subject
would be that the State Act will prevail in that State and override the provisions of the Central Act in
their applicability to that State only. The predominance of the state law may however be taken away if
Parliament legislates under the proviso to Clause (2). The proviso to Article 254(2) empowers the
Union Parliament to repeal or amend a repugnant State law even though it has become valid by
virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either
directly, or by itself enacting a law repugnant to the State law with respect to the same matter'. Even
though the subsequent law made by Parliament does not expressly repeal a State law, even then, the
State law will become void as soon as the subsequent law of parliament creating repugnancy is made.
A State low would be repugnant to the Union law when there is direct conflict between the two laws.
Such repugnancy may also arise where both laws operate in the same filed and the two cannot
possible stand together, the law made by parliament shall prevail over the State law under Article
254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a
later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act
stood implied repealed”.
85. In the case of ThirumurugaKirupanandaVariayaThavathiruSundaraSwamigal Medical
Educational and Charitable Trust v. State of Tamil Nadu, AIR 1996 SC 2384, the Apex Court held as
under:
“The fact that the State Act has received the assent of the President would be of no avail because
the repugnancy is with the Central Act which was enacted by Parliament after the enactment of the
State Act. In view of the proviso to Sub-article (2) of Article 254 parliament could add to, amend, vary
or repeal the State act In exercise of this power Parliament could repeal the State Act either expressly
or by implication”.
86. The Constitution Bench of the Apex Court in the decision rendered in the case of M. Karunanidhi
v. Union of India, 1979 (3) SCC 431 held as under:
“Before any, repugnancy can arise the following conditions must, be satisfied. 1. That there is a
clear and direct inconsistency between the Central Act, and the Sate Act. 2. That such an
inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two
acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is
reached where it is impossible to obey the one without disobeying the other”.
87. The Supreme Court in the case of M.P. Shikshak Congress v. R.P.F. Commissioner, Jabalpur,
AIR 1999 SC 443, held as under:
284
“...Under Article 254(1) of the Constitution. If any provision of a law made by the Legislature of
a State is repugnant to any provision of a law made by parliament, which Parliament is competent to
enact, then subject to the provisions of Clause (2), the law made by the parliament, whether passed
before or after the law made by the Legislature of such State, shall prevail and the law made by the
Legislature of the State shall, to the extent of the repugnancy, he void. The ordinary rule, therefore, is
that when both the State Legislature as well as Parliament are competent to enact a law on a given
subject. It is the law made by Parliament which will prevail. The exception which is carved out is
under Clause (2) of Article 254. Under this Clause (2) where a law made by the Legislature of a State
with respect to one of the matters enumerated in the concurrent list contains any provision repugnant
to the provisions of an earlier law made by Parliament, then the law so made by the Legislature of
such State shall, if it has been reserved for the consideration of the President and has received his
assent, prevail in the State. Provided that nothing in this clause shall prevent Parliament from
enacting at any time any law with respect to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislature of the State”.
88. Dealing with the question of implied repeal, the Supreme Court in the case of Kulwant Kaur v.
Gurdial Singh Mann, AIR 2001 SC 1273, held as under:
“On the doctrine of implied repeal, Mr. Mehta contended that procedural law must be having a
meaningful existence without being in conflict with a preliminary legislation. Undoubtedly, the
doctrine of implied repeal is not to be favoured but where a particular provision cannot co-exist or
intended to subsist in the event of there being the repugnancy between Central and State legislature
the Courts cannot but declare it to be soon the ground of repeal by implication. Uniformity of law,
being the basic characteristics of Indian jurisprudence cannot be termed to be at sufferance by reason
of a state Legislation which runs counter to the Central legislation. It is not necessary that one
legislation should be on the positive side whereas the other one in the negative. Such a stringent
requirement is not the requirement in order to bring home the issue of repugnancy, but all the same it
might result when both the legislations cover the same field. The observation find support from the
decision of this Court in ZaverbhaiAmaidas v. The State of Bombay, (1955) 1 SCR 799 : AIR 1954 SC
752 : 1954 Crl. L.J. 1822 wherein this Court observed (para 11):
It is true, as already pointed out, that on a question under Article 254(1) whether the Act of
Parliament prevails against a law of the State, no question of repeal arises; but the principle on
which, the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is
identical with that of the earlier, so that they cannot both stand together; then the earlier is repealed
by the later enactment, will be equally applicable to a question under Article 254(2) whether the
further legislation by Parliament is in respect of the same matter as that of the State law”.
89. Therefore, it is clear the proviso to Article 254(2) empowers the Union Parliament to repeal or
amend a repugnant State law even though it has become valid by virtue of the President’s assent
Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law
repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by
Parliament does not expressly repeal a State law, even then, the State law will become void as soon as
the subsequent law of parliament creating repugnancy is made. A State law would be repugnant to the
Union law when there is direct conflict between the two laws. The law made by parliament shall
prevail over the State law. Where a particular provision cannot co-exist or intended to subsist in the
event of there being repugnancy between the Central and the State Legislature, the Courts cannot but
declare it to be soon the ground of repeal by implication. If the subject matter of the later legislation is
identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by
the later enactment, which is the principle on which the rule of implied repeal rests.
90. Therefore, when the Parliamentary legislation which was subsequent in the Karnataka
Amendment conferred the status of a coparcener on the daughter of a coparcener and gave right by
birth in the coparcenary property and did not exclude the married daughters from such status and right
expressly or by necessary implication, the Central Act to that extent is repugnant to the State law.
Similarly, the word partition used in the State Law is too wide and the Central law defines the word
partition and giving it a narrow meaning for the purpose of Section 6. Again the said definition runs
repugnant to the State law. As the amended law is passed by the Parliament it prevails over the State
law and the law passed by the State stands impliedly repealed to the extent of repugnancy. As such,
285
the married daughter cannot be deprived of her right to a share in the coparcenary property by birth.
With the passing of the Amendment Act Section 6-A(d) stands repealed. Married daughter is entitled
to equal share with the son in the coparcenary properties.
91. Therefore, a married daughter is also a coparcener and is entitled to equal share with the son in the
coparcenary properties and her marriage in no way affects her right to equal share in the coparcenary
property. Even after marriage she continues to have the same right which she had before marriage, as
her right to coparcenary property flows from her birth as that of the son. To find out what is the right
of a daughter in a coparcenary property, find out what is the right of the son. Whatever rights the son
has in the coparcenary property, by virtue of the amendment the daughter also has such right. That is
the object behind the legislation, i.e., to achieve equality in the right of inheritance.
POINT NO. 4
RETROSPECTIVE OPERATION
92. Literally defined, a retrospective law is a law that looks backward or on things that are past and a
retroactive law is one that acts on things that, are past. In common use, as applied to statutes, the two
words are synonymous, and in this connection may be broadly defined as having reference to state of
things existing before the Act in question. A statute which operates upon acts and transactions which
have not occurred when the statute takes effect, that is, which regulates the future, is a prospective
statute. On the other hand, a retrospective or retroactive law is one which takes away or impairs
vested rights acquired under existing laws, or creates new obligations and imposes new duties, or
attaches new disabilities in respect of transactions already past.
93. The Parliament in India is endowed with plenary powers of legislation and it is competent to
legislate with prospective or retrospective effect. Retrospective legislation is one of the incidents of
plenary legislative powers. Under the Constitution there is only one restriction imposed upon the
power of retrospective legislation under Article 20. Every legislation is prima facie prospective unless
it is expressly or by necessary implication made to have retrospective operation.
94. The question whether a statute operates prospectively or retrospectively is one of the legislative
latent. If the terms of a statute are clear and unambiguous and it is manifest that the Legislature
intended the Act to operate retrospectively, it must unquestionably be so construed. If, however, the
terms of a statute do not of themselves make the intention certain or clear, the statute will be
presumed to operate prospectively. While considering the question of the retrospective operation of
the statute, the nature of the right affected must first be considered. All laws which affects substantive
rights or vested rights generally operate prospectively and there is a presumption against their
retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and
compulsive. The rule that a statute is not to have retrospective operation is only applicable where it is
doubtful from the language used whether or not it was intended to have such operation. Where
language of a statute plainly gives it a retrospective operation, the rule has no application, for, of
course, it is obviously competent, for the Legislature, if it pleases, in its wisdom to make the
provisions of an Act of Parliament retrospective. Where a section of a statute is amended, the original
ceases to exist and the new section supersedes it and becomes a part of the law just as if the
amendment had always been there. The amendment is retrospective in operation. Curative statutes are
obviously retroactive, and hence entitled, as a general rule, to retrospective operation. Being
retroactive in their very nature, they will not usually be given any prospective effect. Being subject to
a liberal construction, any doubt should be resolved in favour of retrospective operation. Nevertheless,
there are even limitations on the extent of the retroactive operation of curative acts. Obviously, they
cannot violate provisions of the constitution. Nor should they interfere with or destroy vested rights of
third parties. A retrospective statute contemplates the past and gives to a previous transaction some
different legal effect from that which it had under the law when it occurred or transpired. A
retrospective law is one which reaches back to and gives to a prior transaction some different legal
effect from that which it had under the law when it took place. If an Act provides that as at a past date
the law shall be taken to have been that which is not, that Act is deemed to be retrospective.
95. The Supreme Court in the case of B. Prabhakar Rao and Ors. etc. v. State of Andhra Pradesh and
Ors. etc., AIR 1988 SC 210, held as under:
“Is it not open to the Court to give retrospectively to a legislation to which the legislature plainly
and expressly refused to give retrospectively?”
286
“While it is a general rule of law that statutes are not to operate retrospectively, they may so
operate by express enhancement, by necessary implication from the language implied or where the
statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the
public against some evil or abuse or where the statute engrafts itself upon existing situations etc., etc.,
But, it would be incorrect to call a statute ‘retrospective’, “because a part of the requisites for its
action is drawn from a time antecedent to its passing”.
“We must further remember, quite apart from any question of retrospectively, that, unlike in the
United Kingdom here in India we have a written Constitution which confers justiciable fundamental
rights and so the very refusal to make an Act retrospective or the non-application of the Act with
reference to a date or to on event that took place before the enactment may, by itself create an
impermissible classification justifying the striking down of the non-retroactivity or non-application
clause, as offending the fundamental right to equality before the law and the equal protection of the
laws. That is the situation that we have here”.
“The operation of the ordinance or the Act limiting the field of operation and introducing a
classification which in order to be sustained must be shown to be reasonable and to have a nexus to
the object to be achieved besides not being arbitrary”.
96. In Bhagat Ram Sharma v. Union of India and Ors., AIR 1938 SC 740 it is held as under:
It is a matter of legislative practice to provide while enacting an amending law, that an existing
provision shall he deleted and a new provision substituted. Such deletion has the effect of repeal of
the existing provision. Such a law may also provide for the introduction of a new provision. There is
no real distinction between ‘repeal’ and an ‘amendment’.
97. Keeping in mind these legal principles we have to find out from the language used in substituted
Section 6 of the Act, the amendment is prospective or retrospective. The first indication is found in
Section 3 of the Amendment Act 39 of 2005. The words used read as follows:
“3. Substitution of new section for Section 6- for Section 6 of the Principal Act, the following
section shall be substituted”.
WHAT IS THE EFFECT OF SUBSTITUTION?
98. A Constitution Bench of the Apex Court in the case of Shamrao V. Parulekar and Ors. v. District
Magistrate Thana, Bombay and Ors., AIR 1952 SC 324, dealing with the scope of the substitution of
a provision by way of amendment, held as under:
“The construction of an Act which has been amended is now governed by technical rules and we
must first be clear regarding the proper canons of construction. The rule is that when a subsequent
Act amends an earlier one in such a way as to incorporate itself or apart of itself, into the earlier,
then the earlier Act, must thereafter be read and construed (except where that would lead to a
repugnancy, in consistency or absurdity) as if the altered words had been written into the earlier Act
with pen and ink and the old words scored out so that thereafter these is no need to refer to the
amending Act at all. This is the rule in England. It is the law in America. It is the law which the Privy
Council applied to India.”
99. In the case of Sha ChunnilalSohanraj v. T. Gurushantappa, 1972 (1) Mys. L.J 327, a Division
Bench of this Court held as under:
“An amending act is not regarded as an independent statute. The statute in its old form is
superseded by the statute in its amended form, the amended section of the statute taking the place of
the original section, for all intents and purposes as if the amendment had always been there. The
amendment should be considered as if embodied in the whole statute of which it has become a part
Unless a contrary intent is clearly indicated, the amended statute is regarded as if the original statute
had been repealed and the whole statute re-enacted with the amendment”.
100. Yet another Constitution Bench of the Apex Court in the case of Shyam Sunder and Ors. v. Ram
Kumar and Anr., AIR 2001 SC 2472 was dealing with the question, whether a substituted provision
necessarily means the amended provisions are retrospective in nature, after reviewing the entire case
law on the point held, a substituted Section in an Act is the product of an amending Act and all the
effects and consequences that follow in the case of an amending Act the same would also follow in
the case of a substituted Section in an Act. Further it was held, it is well settled that where an
amendment affects vested rights the amendment would operate prospectively unless it is expressly
made retrospective or its retrospective operation follows as a matter of necessary implication.
287
Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The
function of a declaratory statute is to supply an omission or explain previous statute and when such an
Act is passed, it comes into effect when the previous enactment was passed. The legislative power to
enact law includes the power to declare what was the previous law and when such a declaratory Act is
passed invariably it has been held to be retrospective. Mere absence of use of word ‘declaration’ in an
Act explaining what was the law before may not appear to be a declaratory Act but if the Court finds
an Act as declaratory or explanatory it has to be construed as retrospective. Further, they went on to
hold, that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear
up doubts as to meaning of the previous Act and such an Act comes into effect from the date of
passing of the previous Act.
101. Therefore, it is clear from the aforesaid Constitution Bench judgment of the Apex Court, a vested
right can be taken away by way of an amendment by the legislature by expressly saving so or by
implication. Secondly, a declaratory law is retrospective in operation because the object of such
declaratory law is to supply the omission. In the instant case, in 1956 when the Act was passed, the
daughters of a coparcener was not treated as coparcener nor any right in the coparcenary property by
birth was conferred on her. Now, by a declaration such a right is sought to be conferred. It is done by
way of substitution. In other words, the legislative intent is to supply the omission in the original Act.
The parliament has not kept any one in doubt about their intention. The effect is the Act as enacted in
1956 is to be read and construed as if the altered words/new section had been written into the earlier
Act with the pen and ink and the old Section/Words scored out, so that thereafter there is no need to
refer to the amending Act at all. The constitutional validity of the substituted section is not under
challenge. On the contrary the substituted section is in conformity with the constitutional provision.
The effect is old Section 6 is superseded by the new Section 6, the amended section taking the place
of the original section, for all intents and purposes as if the amendment had always been there. This is
the way the parliament has expressly made its intention clear to the effect the amendment is
retrospective.
102. Secondly though the opening words of the section declares that on and from the commencement
of the Hindu Succession (Amendment) Act, 2005, the daughter of a coparcener in a joint family
governed by the Mitakshara is conferred the status of coparcener, it is expressly stated that she
becomes a coparcener by birth. Conferment of the status is different from conferring the rights in the
coparcenary property. The right to coparcenary property is conferred from the date of birth, which
necessarily means from the date anterior to the date of conferment of status, and thus the Section is
made retroactive. By such express words the amended section is made retrospective.
103. Thirdly, the proviso to Section 6(1) makes the intention of the parliament manifestly clear. The
Parliament has expressly stated in the proviso to sub-section (1) of Section 6 the substituted provision
that the declaration of right in favour of a daughter as a coparcener though it takes effect by birth, i.e.,
anterior to the amendment, the same would not affect or invalidate any disposition or alienation
including any partition or testamentary disposition of property which had taken place before the 20 th
day of December 2004. The way this proviso is expressed makes it clear the substituted provision is
retrospective in operation. By substitution it is made clear that this provision is there in the principal
Act from 1956 itself. But, as the amendment came into force only in 2005, the question would arise
that what should happen to the transactions between 1956 and 2005. It is in this context the
Parliament has expressly stated though the right by birth is given from 1956, if the dispositions,
alienations including partitions, testamentary dispositions which had taken place subsequent to 1956
and before 20th December 2004 those transactions are not affected. This conferment of right by birth
would not invalidate any of the aforesaid disposition of property. Therefore, the intention is clear.
Though this provision is made retrospective, if third party interests have crept in or even the
coparceners on the assumption that it has become their separate property after the partition by way of
registered partition deed or effected by a decree of the Court has made improvements or alienated the
properties or parted with property by testamentary disposition, those transactions cannot be reopened.
It is clear that, declaration of right of the daughter of a coparcener and conferment of right by birth
shall not affect or invalidate any “disposition” or “alienation” including any partition or testamentary
disposition of property, which have taken place before the 20 th day of December 2004. The
amendment Act received the assent of the President of India on 5thSeptember, 2005, and came into
288
force from 9th September, 2005. If the amendment Act is prospective in operation the amended law
would not in any way invalidate any disposition, or alienation including any partition or testamentary
disposition which had taken place before 20th December 2004. Then the entire proviso would have
been redundant. If the proviso had not been introduced, all the dispositions, alienations including
partition and testamentary dispositions would have to be set aside or declared not effecting the interest
of the daughter of the coparcener who was not a party to such transactions. It. is because the
legislative intent was to give retrospective effect to the amended provision. Being conscious of the fall
out of the retrospective operation of this amended provision, the legislature stepped in and introduced
a proviso to protect the interest of third party who have acquired interest in those properties. This is
yet another clear manifestation of the intention of the legislature in making this provision
retrospective. Therefore, the substituted provision is retrospective in operation as is expressly declared
so in the Section itself. It is not prospective.
POINT No. 5
PENDING PROCEEDINGS
104. The Parliament was conscious from the day the Act came into force till the Amendment Act,
throughout the country there would be innumerable partition suits at various forums at various stages.
Suits may be pending in the trial Courts for partition and separate possession. In some cases, it is
possible decrees are passed and they are under challenge in regular appeals. Similarly, the said
decrees may be the subject matter of regular second appeals pending in the High Courts. The question
is, whether these amended provisions would have any effect on the pending litigation. If a suit is filed
for partition by any of the members of the family either seeking a partition in respect of coparcenary
property or a suit filed by a member of the joint family including a female heir in respect of
coparcenary property, on the death of a coparcener as provided under proviso to Section 6 of the
unamended provision, the female members would be entitled to equal share with the sons in the share
of the deceased coparcener. If the suit is between coparceners, then each of them would be entitled to
equal share and no female member of the joint family would be entitled to any share. By virtue of
these substituted provision once a daughter is given the status of a coparcener by birth even in respect
of suits between coparceners with the expanded definition of coparcenary she would be entitled to a
share equal to that of a son. If a daughter is claiming a share in her father's share in coparcenary
property, as a coparcener now with the substituted provision she would be entitled to an equal share in
the coparcenary property itself, in addition to an equal share in her father's property with others.
Though with the filing of the suit for partition there is a severance of joint family status, by such act
the joint family properties would not get partitioned. It is divided only when there is a final decree for
partition. The intention was to give a right to the daughter in respect of the properties which are the
subject matter of such litigation. To deny right to a daughter coparcener, partition has to be effected
by a decree of a Court before 20th December 2004. Therefore, they have consciously chosen the word,
“partition effected by a decree of the Court”. Then the property is not available for partition. The
daughter is not entitled to a share. In other words, they have made it applicable to all the pending
proceedings.
105. It is well understood in suits of partition, first there should be a preliminary decree, declaring the
rights of the parties, thereafter in terms of the declaration of the preliminary decree in final decree
proceedings the partition is effected by metes and bounds. Therefore, only in the case of a partition
effected by a decree of Court, when it attains finality, a daughter of a coparcener is deprived of the
benefit of the substituted provision. Therefore, this substituted provision applies to the pending
proceedings in the trial Court, the Appellate Court, the second Appellate Court where the preliminary
decree or a final decree is challenged. The language employed by the Parliament is clear,
unambiguous and it also clearly demonstrates the intention of the Parliament to make this provision
retrospective and give the benefit of the right of a coparcener which devolves by birth on daughters.
106. Whether the change in the law will also affect pending appeals or not was the question
considered by the Apex Court in the case of Lakshmi Narayan Guin and Ors. v. Niranjan Modak,
1985 (1) SCC 270 and the observations made at paragraph-9 are as under:
“9. That a change in the law during the pendency of an appeal has to be taken into account and
account and will govern the rights of the parties was laid down by the court in Ram Sarup v. Munshi,
(1963) 3 SCR 858 : AIR 1963 SC 553, which was followed by this Court in Mutta v. Godhu, (1970) 2
289
SCR 129 : AIR 1971 SC 89. We may point out that in Dayawati v. Inderjit, (1966) 3 275 : AIR 1966
SC 1423 at p. 1426, this Court observed:
“If the new law speaks in language, which expressly or by clear intendment, takes in even
pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so
expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court
of first instance....”
107. Again the Apex Court in case of United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. and
Ors., AIR 2000 SC 2957 has observed thus:
“It is well settled that it is the duty of a court whether it is trying original proceedings or hearing
an appeal, to take notice of the change in the law affecting pending actions and to give effect to the
same. If the law states that after its commencement, no suit shall be “disposed of or “no decree shall
be passed” or “no court shall exercise powers or jurisdiction”. The Act applied even to the pending
proceedings and has to be taken judicial notice by the Civil Court”.
108. In this background the explanation makes it clear mere passing of a decree for partition whether
by the trial Court or by the appellate Courts is not enough. Till a partition is effected by a decree of a
Court, thereby meaning till the decree for partition attained finality, the daughter cannot be deprived
of her legitimate right in the said property. Therefore, the substituted/amended Section applies to all
pending proceedings as the partition is not yet effected by a decree of the Court.
POINT No. 6
VESTED RIGHT OF (a) OTHER FEMALE RELATIVES
109. Section 6 prior to amendment dealt with devolution of interest of a male Hindu of a Mitakshara
coparcenary property after the commencement of the Hindu Succession Act, 1956. The reason being
only a male could be a member of a Mitakshara coparcenary. Therefore, the said Section did not refer
to a female. The proviso to Section 6 before amendment provided that when a Hindu male dies after
the commencement of the Act, having at the time of his death, an interest in a Mitakshara coparcenary
property, if he had left him surviving female relative specified in Class I of the Schedule or a male
relative specified in that class who claims through such female relative, the interest of the deceased in
the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case
may be under this Act and not by survivorship. The female relatives in Class I are, daughter, widow,
mother, daughter of predeceased son, widow of a predeceased son and widow of a predeceased son of
a predeceased son. Now, by Amendment Act of 2005, old Section 6 stands repealed, the amended
Section is substituted, conferring on the daughter of a coparcener, the right of a coparcener in a Joint
Hindu Family. Thus, a daughter's interest is taken care of. Therefore, new the question is, if a male
Hindu dies before the commencement of the Amended Act, the succession opens and what is the right
of the male and female relative. Under the substituted Section, no provision is made for female
relative other than the daughter. After the commencement of the substituted provision, how their
rights are to be determined? Do they have a right? If a right is accrued to them and vested in them,
what would be the effect of the substituted provision, viz-a-viz their right? Does it amount to taking
away their vested right.
110. It. is in this context when the substituted Section is silent, we have to resort to the General
Clauses Act, 1897.
111. Section 6 of the General Clauses Act, 1897 reads as under:
6. Effect of repeal. -Where this Act, or any [Central Acts] or Regulation made after the
commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless
a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered
thereunder; or
(c) affect any right, privilege, obligation or liability acquired accrued or incurred under any
enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed
against any enactment so repealed; or
290
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment as aforesaid.
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation
had been passed.
112. A power to make a law with respect to the topics committed to Parliament or State Legislatures
carries with it a power to repeal a law on those topics. Substitution of a provision results in repeal of
the earlier provision and its replacement by the new provision. Substitution thus combines repeal and
fresh enactment. Since repeal of a law takes effect from the date of repeal and the law repealed
remains in operation for the period before its repeal without assistance of any saving clause for
transactions past and closed, it can be retrospectively amended to affect such transactions even after
its repeal. Section 6 of the General Clauses Act applies to all types of repeals. The section applies
whether the repeal be express or implied, entire or partial or whether it be repeal simpliciter or repeal
accompanied by fresh legislation. The effect of Clauses (c) to (e) of Section 6, General Clauses Act is,
to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued
and liabilities incurred during its operation and permit continuance or institution of any legal
proceedings or recourse to any remedy which may have been available before the repeal for
enforcement of such rights and liabilities. The distinction between what is, and what is not a right
preserved by the provisions of Section 6, General Clauses Act is often one of great fineness. What is
unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere "hope or
expectation of", or liberty to apply for, acquiring a right. A distinction is drawn between a legal
proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right.
The former is saved whereas the latter is not. The question whether a right was acquired or a liability
incurred under a statute before its repeal will in each case depend on the construction of the statute
and the facts of the particular case. General savings of rights accrued, and liabilities incurred under a
repealed Act by force of Section 6, General Clauses Act, are subject to a contrary intention evinced by
the repealing Act. In case of a bare repeal, there is hardly any room for a contrary intention; but when
the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will
have to be looked into to determine whether and how far the new Act evinces a contrary intention
affecting the operation of Section 6, General Clauses Act. The line of enquiry would be, not whether
the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to
destroy them, for unless such an intention is manifested by the new Act, the rights and liabilities under
the repealed Act will continue to exist by force of Section 6, General Clause Act. It is the repealing
Act and not the Act repealed which is to manifest the contrary intention so as to exclude the operation
of Section 6. The silence of the repealing Act is consistent and not inconsistent with Section 6
applying.
113. The amended Section is silent about the rights of other female relatives of a Hindu male dying
before the commencement of the amended Act. There is nothing in the amended provision which
evinces a contrary intention affecting the operation of the proviso to the unamended Section 6. The
amended Section does not manifest an intention to destroy the rights conferred under the proviso to
the amended Section. Sub-section (3) of the amended provision provides only for devolution of the
interest on the death of a Hindu, after the amendment Act. In the case of a male, if he has left behind a
female relative, the proviso to Section 6 applies, as the amended provision makes no provision for
such a contingency. Therefore, the unamended Section remains in operation for the period before this
repeal.
114. However, while determining the share of the male Hindu who has died before the
commencement of the amended Act, i.e., 9.9.2005, who had an interest in a Mitakshara coparcenary
property, if he has left him surviving a female relative, his share is to be determined treating his
daughter also as a coparcener. Thereafter in the notional partition, the share to be allotted to him
devolves as per proviso to the unamended Section 6 of the Act. Thus, the vested right accrued to the
other female members is not affected by the amendment, as the said vested light is not taken away
expressly or by necessary implication by the Parliament. May be the extent of their share may be
diminished but it does not amount to taking away the vested right. That is the sacrifice the other
291
female members who are none other than the mother, grandmother, a grand-daughter, has to make in
favour of a daughter.
115. Therefore, in so far as other female members left behind by a male coparcener dying before the
commencement of the Amendment Act, succession to this property is governed by the unamended
Section 6 by virtue of Section 6 of the General Clauses Act.
(b) OTHER MALE MEMBERS
116. In a co-parcenary property, the co-parcener acquires right by birth. Once he is born, the right in a
coparcenary property vests in him. This is a vested right. But what is the extent of that vested right, is
not determined on the date of his birth. Though a co-parcenar gets a right in the coparcenary property
by birth but the share of such co-parcenary is not definite and it will be fluctuating with the births and
deaths of co-parcenars. Therefore, no co-parcener can say with definiteness what his share at any
point of time. The share to which a co-parcener is entitled to, is determined at a partition. On partition,
his share is ascertained, whereas on birth, the right vests in a coparcener. It is also well settled that in a
partition suit, even after a preliminary decree, depending upon the intervening circumstances like
births and deaths, the share allotted in a preliminary decree can be varied by the Court in the final
decree proceedings till the properties are partitioned by metes and bounds. The right to a share is a
vested right, but the extent of that share is not a vested right.
117. It is contended that once succession opens with the death of a coparcener, the share of the other
coparceners are also determined. Even though no partition by metes and bounds takes place
immediately, the said share cannot be altered, as it is a vested right. A vested right cannot be taken
away by amendment. In support of this contention, they relied on a decision of the Division Bench of
this Court in the case of M. Prithviraj and Ors. v. Smt. Leelamma N. and Ors., 2008 (4) KCCR 2333
where relying on a judgment of the Apex Court in the case of Sheela Devi and Ors. v. Lal Chand and
Anr., 2007 (2) Civil LJ 364 it was held, the amended provisions of the Hindu Succession Act, 2005
are not applicable to the facts of the case, since the succession had already opened in the year 1969 on
the demise of K. Doddananjundaiah. The aforesaid judgment does not lay down any law. As is clear
from the aforesaid observations the amended Act is not applicable to the facts of the case. The said
judgment was rendered following the judgment of the Apex Court in the case of Sheela Devi's case
where the Supreme Court held as under:
“12. The principle of law applicable in this case is that so long a property remains in the hands of
a single person, the same was to be treated as a separate property, and thus such a person would be
entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is
subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or
gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was
born or begotten (see C. Krishna Prasad v. CIT). But once a son is born, it becomes a coparcenary
property and he would acquire an interest therein”.
“21. The Act indisputably would prevail over old Hindu Law. We may notice that the Parliament,
with a view to confer right upon the female heirs, even in relation to the joint family property, enacted
Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra
Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005
would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to
succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso
heirs appended to sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal,
viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was, therefore,
obligatory on the part of the plaintiffs-respondents to show that apart from Lal Chand, Sohan Lal will
also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been
brought on records to show that be was born prior to coming into force of Hindu Succession Act,
1956”.
118. However, the Supreme Court after referring to the aforesaid judgment, in the case of Bhanwar
Singh v. Puran and Ors., (2008) 3 SCC 87 held as under:
“22. In that case, as noticed hereinbefore, Babu Ram had no son in the year 1922 but a son, Lal
Chand, was born to him in the year 1938 and another son, Sohan Lal, was born in 1956. It was in the
aforementioned situation, this Court held that a joint family revived on the birth of Lal Chand. This
Court, in that view of the matter also opined that as there was no proof as to whether the second son
292
was born after the coming into force of the Hindu Succession Act, it was held that his heirs were not
entitled to take the benefit of the coparcenary interest.
23. Sheela Devi, therefore, is not applicable to the fact of the present case”.
119. Therefore, the aforesaid judgments are purely on the facts of those cases and they were not really
interpreting the amended provisions. Neither the Apex Court nor the High Court, in the aforesaid
decisions were interpreting the amended section and they have not laid down any law. Therefore, the
aforesaid judgments are of no assistance.
120. Even before the commencement of the amended Section 6, if succession opened and a
coparcener acquires a specific share in the coparcenary property, which vests in him on the date the
succession opens, it is open to the legislature in exercise of its plenary power to take away such vested
right by making the law retrospective. It is only when the amended law is silent about its application
or ambiguous, when the Court is called upon to interpret such provision, the Court cannot place an
interpretation which would take away a vested right, especially to matters of succession. But, the said
Rule has no application when the legislature expressly or by necessary implication makes its intention
clear by making such amended law retrospective. It is settled principle of law the, legislature has the
power to take away a vested right by enacting the law and by expressing its intention in clear terms.
121. Under the unamended Section 6 when a male Hindu dies after the commencement of the Act, his
interest in the Mitakshara coparcenary property devolve by survivorship upon the surviving members
of the coparcenary. Prior to the amended Section surviving members of the coparcenary included only
male members and sons. By the amended Section 6 a daughter is conferred the status of a coparcener
and she would become a member of the coparcenary. To that extent the amended Section is
inconsistent with the unamended Section 6. Therefore, the amended Section as it evinces contrary
intention effecting the portion of unamended Section 6 and also confers on such daughters, the right to
property by birth, the rights which accrue to the male members of the co-parcener on the succession
being open prior to the amended Section is affected, their share get reduced.
122. The Parliament wanted to give the benefit of the law to the daughters from 1956 itself. By giving
such a right to the daughters even in pending matters all that happens is the shares of the sons would
get reduced. But, the vested right which they acquired by birth is not extinguished. It is a curative
legislation. This right ought to have been given to the daughters in the year 1958 itself when
daughters were given the constitutional right of equality. The legislature has the power to take away
such vested right by enacting a law and making its intention clear expressly or by necessary
implication. By enacting the amended Section, the legislative intent’s clear. Not only the law is made
retrospective but also affects such vested right of a male coparcener. Therefore, the contention that the
vested right of a coparcener which had accrued by the opening of the succession prior to the amended
Act cannot be taken away, is without any substance.
WIND OF CHANGE
123. The full development of personality and fundamental freedoms and equal participation by
women in political, social, economic and cultural life are concomitants for national development,
social and family stability and growth, culturally, socially and economically. How it is achieved. The
civilization, culture, custom, usage, religion and law are founded upon the community life for man’s
well-being. The man will obey the command of the community by consent. The law formulates the
principles to maintain the order in the society to avoid friction. Democracy brings about bloodless
revolution in the social order through rule of law. No right in an organised society can be absolute.
Enjoyment of one's right must be consistent with the enjoyment of the rights of others. In a free play
of social forces, it is not possible to bring about a voluntary harmony. The State has to step in to set
right the imbalance. The directive principles, though not enforceable, Article 38 obligates the State to
restructure social and economic democracy, enjoins to eliminate obstacles and prohibit discrimination
in inte state succession based on sex.
124. The public policy and constitutional philosophy envisaged under Articles 38, 39, 46 and 15(1)
and (3) and 14 is to accord social and economic democracy to women as assured in the preamble of
the Constitution They constitute core foundation for economic empowerment and social justice to
women for stability of political democracy. In other words, they frown upon gender discrimination
and aim at elimination of obstacles to enjoy social, economic, political and cultural rights on equal
footing. Law is a living organism and its utility depends on its vitality and ability to serve as
293
sustaining pillar of society. Contours of law in an evolving society must undergo change with march
of time. Justice to the individual is one of the highest interests of the common man unless it would
redefine the protection of the Constitution and the common law. If law is to adapt itself to the needs of
the changing society, it must be flexible and adaptable. Law is the manifestation of principles of
justice, equity and good conscience. Rules of law should establish a uniform pattern for harmonious
existence in a society where every individual would exercise his rights to his best advantage to
achieve excellence, subject to protective discrimination. Law is the foundation on which the potential
of the society stands.
125. After the advent of independence old human values assumed new complex; women need
emancipation; new social order need to be set up giving women equality and place of honour,
abolition of discrimination based on equal right to succession was the prime need of the hour and
temper of the times. Therefore, when women are discriminated only on the ground of sex in the matter
of intestate succession to the estate of the parent or husband, the Hindu Succession Act, revolutionised
the status of a Hindu female and used Section 14(1) as a tool to undo past injustice to elevate her to
equal status with dignity of person on par with man and removed all fetters of Hindu Women’s
limited estate which blossomed into full ownership. By legislation fiat the discrimination of intestate
succession meted out to women was done away with. Articles 14, 15 and 16 frowns upon
discrimination on any ground and enjoin the State to make special provisions in favour of women to
remedy past injustice and advance their socio economic and political status. Economic necessity is not
a sanctuary to abuse women’s person. Section 14, therefore, gives to every Hindu women full
ownership of the property, irrespective of the time when the acquisition was made, namely, whether it
was before or after the Act had come into force, provided she was in possession of the property. The
Act also gave effect to the equality clause in the Constitution by giving the women equal rights in the
property of a male Hindu dying intestate after the coming into force of the Act. Still inequality
persisted in so far as coparcenary property is concerned. The discrimination continued between the
son and the daughter in the matter of sharing the coparcenary property, it took nearly 50 years in free
India to remedy the situation. Realising this inequality which is a blot on the democratic polity, which
not only contributed to her discrimination on the ground of gender but also led to oppression and
negation of her fundamental right of equality guaranteed by the Constitution and having regard to the
need to render social justice to women, the Parliament has passed the Amendment Act, giving the
daughter equal status with the son and equal rights in the coparcenary property The Amendment Act
is curative, remedial in nature, and wants to undo the injustice done to her in the last 50 years. The
amendment not only intends to give equal rights to the daughter, it wants to give such rights from the
day the Act came into force, from which date such a legitimate right was denied to her. This is the
will of the people of this country, opinion of the healthy elements of the population, who believe in
the true spirit of the ancient culture of this country, which serves to inspire not only those of
conservative spirit but also those desire in a loyal and disinterested spirit to make radical alterations to
the organisation of existing society. This law is in conformity with the sense and needs and the mores
of the community. Whatever sacrifice the men have to make while giving effect to the law, has to be
made with a smile, as it is the command of the community by consent, a revolution in the social order,
through rule of law. It removes the blot on the Hindu society and the aspersions cast on Hindu men,
over centuries. It is worthwhile to remember the words of Manu. (Vernacular matter omitted ….ed.)
“Yatra NaryasthuPoojyanthe, RamantheThatraDevethaha”.
The deities smile on the family where the females are honoured (held in respect).
ON FACTS
126. Coming to the facts of this case, it is not in dispute that it is conceded by the defendants that the
schedule properties are coparcenary properties. The kartha of the Joint Hindu Family, D.N. Vasanth
Kumar died on 31.12.1984 intestate. There was no partition between him and his sons during his
lifetime. He left behind 2 sons and the two daughters including the plaintiff apart from the 1 st
defendant widow. By virtue of the Amendment Act, the plaintiff the daughter of a coparcener in a
Joint Hindu Family governed by the Mitakshara Law by birth becomes a coparcener in her own right
in the same manner as the son and have the same rights in the coparcenary property as she would have
had if she had been a son. There were 5 coparceners of the Hindu Undivided Family on the date prior
294
to the date of the death of her father. She acquired the right by birth in the coparcenary property.
Therefore, she would be entitled to equal share in the coparcenary property, i.e., 1/5 th share.
127. On the date of death of her father, the Amendment Act had not come into force. Therefore, the
unamended Section 6 of the Act was applicable. A notional partition is to be effected prior to the date
of the death of her father in which event her father, plaintiff, two sons, defendants 3 and 4 and her
sister defendant No. 2 would have 1/5th share each. By virtue of the proviso to Section 6 of the
unamended Section, the 1/5th share of Vasanth Kumar do not devolve by survivorship. It devolves by
the testamentary or intestate succession. Admittedly, he had not made any Will. He has left behind
female heirs. Therefore, in the 1/5th share to be allotted to Vasanth Kumar, the two sons, daughters
and wife would be entitled to equal share, i.e., each one of them would be entitled to 1/5 th share in the
1/5th share of Vasanth Kumar. As the amended provision has not made any provision for devolution of
interest of a Hindu male dying intestate leaving the female relative, Section 6 of the General Clauses
Act is attracted. The share to which the first defendant-wife would be entitled to is governed by the
unamended Section 6. Therefore, she would be entitled to 1/5th share in the 1/5th share of her husband,
i.e., she would be entitled to 1/25th share in the schedule properties. Similarly, the plaintiff, defendants
2 to 4 would be entitled to 6/24th share each.
128. It is submitted. on behalf of the defendants that they have sold the schedule property in favour of
Hotel Sriveeba (P) Ltd., a Company represented by the Director Sri S. Narayan on 26.11.2004. In
view of the proviso to Sub-section (1) of Section 6 of the substituted Section, the said sale is not in
any way affected by the amended provision and the sale deed would not get invalidated. If the
aforesaid alienation had taken place prior to the institution of the suit, the defendants were justified in
saying so. However, admittedly in this case the suit for partition is filed on 12.9.2001. The trial Court
partially decreed the suit of the plaintiff on 17.1.2004. In the suit on 10-10-2002 defendants 1 to 4
filed a memo (not to alienate) the suit property pending disposal of the suit. The present appeal is filed
before this Court on 10.3.2004. Though the aforesaid sale deed is executed prior to 24.12.2004, the
cut-off date stipulated in Section 8 to save dispositions and alienations from Section 6(1) of the
substituted Section, as the said alienation is made during the pendency of the proceedings, it is hit by
the doctrine of lispendence. Therefore, notwithstanding the aforesaid disposition/alienation before the
cut-off date, the said alienation would not take away the right of the plaintiff conferred on her under
the substituted Section. It binds only the parties to the said instrument. The right of the plaintiff in
respect of the said property is intact. Therefore, we do not see any substance in the said contention
also. The finding of the trial Court that properties C and D schedule are not available for partition is
not disputed and challenged in this appeal.
129. In that view of the matter, we pass the following order:
(i) The appeal is allowed.
(ii) The judgment and decree of the trial Court is set aside.
(iii) It is declared that the plaintiff is entitled to 6/25th share in the plaint A, B and E schedule
properties.
(iv) Plaintiff is also entitled to mesne profits. It is to be worked, upon by her in the final decree
proceedings.
(v) Parties to bear their own costs.
Appeal allowed.
-----------------
295
22.
Supreme Court of India, 2 March 2016
Uttam
v.
Saubhag Singh and others
Case No:Civil Appeal No. 2360 of 2016 (Arising Out of S. L. P. (Civil) No. 6036 of 2014)
Bench:R.F. Nariman, Kurian Joseph, JJ.
The Judgment was delivered by: R. F. Nariman, J.
1. Leave granted.
2. The present appeal is by the plaintiff who filed a suit for partition, being Suit No.5A of 1999 before
the Second Civil Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in which the first four
defendants happened to be his father (defendant No.3), and his father's three brothers i.e. defendant
Nos. 1,2 and 4. He claimed a 1/8th share in the suit property on the footing that the suit property was
ancestral property, and that, being a coparcener, he had a right by birth in the said property in
accordance with the Mitakshara Law. A joint written statement was filed by all four brothers,
including the plaintiff's father, claiming that the suit property was not ancestral property, and that an
earlier partition had taken place by which the plaintiff's father had become separate. The trial court, by
its order dated 20.12.2000 decreed the plaintiff's suit holding that it was admitted by DW.1 Mangilal
that the property was indeed ancestral property, and that, on the evidence, there was no earlier partition
of the said property, as pleaded by the defendants in their written statements.
3. The first Appellate Court, by its judgment dated 12.1.2005, confirmed the finding that the property
was ancestral and that no earlier partition between the brothers had in fact taken place. However, it
held that the plaintiff's grandfather, one Jagannath Singh having died in 1973, his widow Mainabai
being alive at the time of his death, the said Jagannath Singh's share would have to be distributed in
accordance with Section 8 of the Hindu Succession Act, 1956 as if the said Jagannath Singh had died
intestate, and that being the case, once Section 8 steps in, the joint family property has to be divided in
accordance with rules of intestacy and not survivorship. This being so, no joint family property
remained to be divided when the suit for partition was filed by the plaintiff, and that since the plaintiff
had no right while his father was alive, the father alone being a Class I heir (and consequently the
plaintiff not being a Class I heir), the plaintiff had no right to sue for partition, and therefore the suit
was dismissed and consequently the first appeal was allowed.
4. Following the same line of reasoning and several judgments of this Court, the High Court in second
Appeal dismissed the said appeal, holding: -
“15. Thus in view of the provisions contained in Sections 4,6, 8 and Schedule of the Act as well as the
law settled by the aforesaid judgments, it is clear that after coming into force of the Act grand-son has
no birth right in the properties of grand-father and he cannot claim partition during lifetime of his
father.
16. In the present case, it is undisputed that Jagannath had died in the year 1973, leaving behind
respondents No. 1 to 4 i.e. his four sons covered by Class I heirs of the schedule therefore, the
properties had devolved upon them when succession had opened on the death of Jagannath. It has
also been found proved that no partition had taken place between respondents No. 1 to 4. The
appellant who is the grand son of Jagannath is not entitled to claim partition during the lifetime of his
father Mohan Singh in the properties left behind by Jagannath since the appellant has no birth right in
the suit properties.
17. In view of the aforesaid, the substantial questions of law are answered against the appellant by
holding that the first appellate court has committed no error in dismissing the suit for partition filed
by the appellant referring to Section 8 of the Act and holding that during the lifetime of Mohan Singh,
the appellant has no right to get the suit property partitioned.”
5. It is this judgment that has been challenged before us in appeal.
6. Shri Sushil Kumar Jain, learned senior advocate appearing on behalf of the appellant, took us
through various provisions of the Hindu Succession Act, and through several judgments of this Court,
and contended that Section 6, prior to its amendment in 2005, would govern the facts of this case. He
296
conceded that as Jagannath Singh's widow was alive in 1973 at the time of his death, the case would
be governed by the proviso to Section 6, and that therefore the interest of the deceased in the
Mitakshara coparcenary property would devolve by intestate succession under Section 8 of the said
Act. However, he argued that it is only the interest of the deceased in such coparcenary property that
would devolve by intestate succession, leaving the joint family property otherwise intact. This being
the case, the plaintiff had every right to sue for partition while his father was still alive, inasmuch as,
being a coparcener and having a right of partition in the joint family property, which continued to
subsist as such after the death of Jagannath Singh, the plaintiff's right to sue had not been taken away.
He went on to argue that Section 8 of the Act would not bar such a suit as it would apply only at the
time of the death of Jagannath Singh i.e. the grandfather of the plaintiff in 1973 and not thereafter to
non suit the plaintiff, who as a living coparcener of joint family property, was entitled to a partition
before any other death in the joint family occurred. He also argued that the Hindu Succession Act only
abrogated the Hindu Law to the extent indicated, and that Sections 6 and 8 have to be read
harmoniously, as a result of which the status of joint family property which is recognized under
Section 6 cannot be said to be taken away upon the application of Section 8 on the death of the
plaintiff's grandfather in 1973.
7. Shri Niraj Sharma, learned counsel appearing on behalf of the respondents, countered these
submissions, and also referred to various provisions of theHindu Succession Act and various
judgments of this Court to buttress his submission that once Section 8 gets applied by reason of the
application of the proviso to Section 6, the joint family property ceases to be joint family property
thereafter, and can only be succeeded to by application of either Section 30 or Section 8, Section 30
applying in case a will had been made and Section 8 applying in case a member of the joint family
dies intestate. He, therefore, supported the judgment of the High Court and strongly relied upon two
judgments in particular, namely Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and
Others, (1986) 3 SCC 567 and Bhanwar Singh v. Puran, (2008) 3 SCC 87, to buttress his submission
that once Section 8 is applied to the facts of a given case, the property thereafter ceases to be joint
family property, and this being the case, no right to partition a property which is no longer joint family
property continues to subsist in any member of the coparcenary.
8. Having heard learned counsel for the parties, it is necessary to set out the relevant provisions of the
Hindu Succession Act, 1956. The Act, as its long title states, is an Act to amend and codify the law
relating to intestate succession among Hindus. Section 4 overrides the Hindu Law in force
immediately before the commencement of this Act insofar as it refers to any matter for which
provision is made by the Act. Section 4 reads as follows:
“4. Overriding effect of Act-Save as otherwise expressly provided in this Act, -
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force
immediately before the commencement of this Act, shall cease to have effect with respect to any matter
for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to
Hindus in so far as it is inconsistent with any of the provisions contained in this Act.”
Section 6 prior to its amendment in 2005 reads as follows:
“6. Devolution of interest in coparcenary property.-When a male Hindu dies after the commencement
of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by survivorship upon the surviving members of the coparcenary
and not in accordance with this Act : Provided that, if the deceased had left him surviving a female
relative specified in Class I of the Schedule or a male relative specified in that class who claims
through such female relative, the interest of the deceased in the Mitakshara coparcenary property
shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by
survivorship.
Explanation 1.-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall
be deemed to be the share in the property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective of whether he was entitled to
Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a
person who had separated himself from the coparcenary before the death of the deceased or any of his
297
It is common ground between the parties that since the present suit was filed only in 1998 and the
decree in the said suit was passed on 20.12.2000, that the amendment to Section 6, made in 2005,
would not govern the rights of the parties in the present case. This becomes clear from a reading of the
proviso (i) to Section 6 of the amended provision which states as follows: -
“Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken place
before the 20th day of December, 2004.”
The explanation to this Section also states thus:
“Explanation.-For the purposes of this section "partition" means any partition made by execution of a
deed of partition duly registered under theRegistration Act, 1908 (16 of 1908) or partition effected by
a decree of a court.”
From a reading of the aforesaid provision it becomes clear that a partition having been effected by a
court decree of 20.12.2000, which is prior to 9th September, 2005, (which is the date of
commencement of the Amending Act), would not be affected.
9. The next important Section from our point of view is Section 8, which reads as follows: -
“8. General rules of succession in the case of males-The property of a male Hindu dying intestate
shall devolve according to the provisions of this Chapter -
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II
of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.”
“THE SCHEDULE
Class I
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a
pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a
pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son;
widow of a pre-deceased son of a pre-deceased son, son of a pre-deceased daughter of a pre-deceased
daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-
deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased
son.”
10. Also of some importance are Sections 19 and 30 of the said Act which read as follows: -
“19. Mode of succession of two or more heirs- If two or more heirs succeed together to the property of
an intestate, they shall take the property,
(a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and
(b) as tenants-in-common and not as joint tenants.
30. Testamentary succession.- Any Hindu may dispose of by will or other testamentary disposition any
property, which is capable of being so disposed of by him or by her, in accordance with the provisions
of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and
applicable to Hindus.
Explanation-The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a
member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom,
kutumba or kavaru shall, notwithstanding anything contained in this Act, or in any other law for the
time being in force, be deemed to be property capable of being disposed of by him or by her within the
meaning of this section.”
11. Before analysing the provisions of the Act, it is necessary to refer to some of the judgments of this
Court which have dealt, in particular, with Section 6 before its amendment in 2005, and with Section
8. In G.K. Magdum v. H.K. Magdum, (1978) 3 S.C.R. 761, the effect of the old Section 6 was gone
into in some detail by this Court. A Hindu widow claimed partition and separate possession of a 7/24th
share in joint family property which consisted of her husband, herself and their two sons. If a partition
were to take place during her husband's lifetime between himself and his two sons, the widow would
have got a 1/4th share in such joint family property. The deceased husband's 1/4th share would then
devolve, upon his death, on six sharers, the plaintiff and her five children, each having a 1/24th share
298
therein. Adding 1/4th and 1/24th, the plaintiff claimed a 7/24th share in the joint family property. This
Court held: -
“The Hindu Succession Act came into force on June 17, 1956. Khandappa having died after the
commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in
Mitakshara coparcenary property, the pre-conditions of Section 6 are satisfied and that section is
squarely attracted. By the application of the normal rule prescribed by that section, Khandappa's
interest in the coparcenary property would devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with the provisions of the Act. But, since the widow and daughter
are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died
leaving behind a widow and daughters, the proviso to Section 6 comes into play and the normal rule is
excluded. Khandappa's interest in the coparcenary property would therefore devolve, according to the
proviso, by intestate succession under the Act and not by survivorship. Testamentary succession is out
of question as the deceased had not made a testamentary disposition though, under the explanation to
Section 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary property is capable of
being disposed of by a will or other testamentary disposition.
There is thus no dispute that the normal rule provided for by Section 6 does not apply, that the proviso
to that section is attracted and that the decision of the appeal must turn on the meaning to be given to
Explanation 1 of Section 6. The interpretation of that Explanation is the subject-matter of acute
controversy between the parties.”
12. This Court, in dealing with the proviso and explanation 1 of Section 6, held that the fiction created
by explanation 1 has to be given its full effect. That being the case, it was held: -
“13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in
the very nature of things, and as the very first step, to ascertain the share of the deceased in the
coparcenary property. For, by doing that alone can one determine the extent of the claimant's share.
Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a
Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been
allotted to him if a partition of that property had taken place immediately before his death. What is
therefore required to be assumed is that a partition had in fact taken place between the deceased and
his coparceners immediately before his death. That assumption, once made, is irrevocable. In other
words, the assumption having been made once for the purpose of ascertaining the share of the
deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share
of the heirs without reference to it. The assumption which the statute requires to be made that a
partition had in fact taken place must permeate the entire process of ascertainment of the ultimate
share of the heirs, through all its stages. To make the assumption at the initial stage for the limited
purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of
the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow
from a real partition have to be logically worked out, which means that the share of the heirs must be
ascertained on the basis that they had separated from one another and had received a share in the
partition which had taken place during the lifetime of the deceased. The allotment of this share is not a
processual step devised merely for the purpose of working out some other conclusion. It has to be
treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted
to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this
position is that the heir will get his or her share in the interest which the deceased had in the
coparcenary property at the time of his death, in addition to the share which he or she received or
must be deemed to have received in the notional partition.”
13. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Ors., (1985) 3 S.C.R. 358, this
Court distinguished the judgment in Magdum’s case in answering a completely different question that
was raised before it. The question raised before the Court in that case was as to whether a female
Hindu, who inherits a share of the joint family property on the death of her husband, ceases to be a
member of the family thereafter. This Court held that as there was a partition by operation of law on
application of explanation 1 of Section 6, and as such partition was not a voluntary act by the female
Hindu, the female Hindu does not cease to be a member of the joint family upon such partition being
effected.
14. In Shyama Devi (Smt) and Ors. v. Manju Shukla (Mrs) and Anr., (1994) 6 SCC 342, this Court
299
again considered the effect of the proviso and explanation 1 to Section 6, and followed the judgment
of this Court in Magdum’s case (supra). This Court went on to state that explanation 1 contains a
formula for determining the share of the deceased on the date of his death by the law effecting a
partition immediately before a male Hindu's death took place.
15. On application of the principles contained in the aforesaid decisions, it becomes clear that, on the
death of Jagannath Singh in 1973, the proviso to Section 6 would apply inasmuch as Jagannath Singh
had left behind his widow, who was a Class I female heir. Equally, upon the application of explanation
1 to the said Section, a partition must be said to have been effected by operation of law immediately
before his death. This being the case, it is clear that the plaintiff would be entitled to a share on this
partition taking place in 1973. We were informed, however, that the plaintiff was born only in 1977,
and that, for this reason, (his birth being after his grandfather’s death) obviously no such share could
be allotted to him. Also, his case in the suit filed by him is not that he is entitled to this share but that
he is entitled to a 1/8th share on dividing the joint family property between 8 co-sharers in 1998. What
has therefore to be seen is whether the application of Section 8, in 1973, on the death of Jagannath
Singh would make the joint family property in the hands of the father, uncles and the plaintiff no
longer joint family property after the devolution of Jagannath Singh's share, by application of Section
8, among his Class I heirs. This question would have to be answered with reference to some of the
judgments of this Court.
16. In Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others, (1986) 3 SCC
567, a partial partition having taken place in 1961 between a father and his son, their business was
divided and thereafter carried on by a partnership firm consisting of the two of them. The father died
in 1965, leaving behind him his son and two grandsons, and a credit balance in the account of the firm.
This Court had to answer as to whether credit balance left in the account of the firm could be said to be
joint family property after the father's share had been distributed among his Class I heirs in accordance
with Section 8 of the Act.
17. This Court examined the legal position and ultimately approved of the view of 4 High Courts,
namely, Allahabad, Madras, Madhya Pradesh and Andhra Pradesh, while stating that the Gujarat High
Court's view contrary to these High Courts, would not be correct in law. After setting out the various
views of the five High Courts mentioned, this Court held:
“It is necessary to bear in mind the preamble to the Hindu Succession Act, 1956. The preamble states
that it was an Act to amend and codify the law relating to intestate succession among Hindus.
In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our
opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not
include son's son but does include son of a predeceased son, to say that when son inherits the property
in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The
Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased
son and not the son of a son who is intended to he excluded under Section 8 to inherit, the latter would
by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined
in Section 8. Furthermore, as noted by the Andhra Pradesh High Court that the Act makes it clear by
Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It
would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu
Succession Act would be HUF in his hand vis-a-vis his own son; that would amount to creating two
classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu
family property and vis-a-vis son and female heirs with respect to whom no such concept could be
applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the
Act included widow, mother, daughter of predeceased son etc.
Before we conclude we may state that we have noted the observations of Mulla’s Commentary on
Hindu Law, 15thEdn. dealing with Section 6 of the Hindu Succession Act at pp. 924-26 as well as
Mayne’s on Hindu Law, 12thEdn., pp. 918-19.
The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail.
The preamble to the Act reiterates that the Act is, inter alia, to “amend” the law, with that background
the express language which excludes son’s son but includes son of a predeceased son cannot be
ignored.
In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, the
300
Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With
respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore." [at
paras 21-25]
18. In Yudhishter v. Ashok Kumar, (1987) 1 SCC 204, this Court followed the law laid down in
Chander Sen's case.
19. In Bhanwar Singh v. Puran, (2008) 3 SCC 87, this Court followed Chander Sen's case and the
various judgments following Chander Sen's case. This Court held: -
“The Act brought about a sea change in the matter of inheritance and succession amongst Hindus.
Section 4 of the Act contains a non obstante provision in terms whereof any text, rule or interpretation
of Hindu Law or any custom or usage as part of that law in force immediately before the
commencement of the Act, ceased to have effect with respect to any matter for which provision is made
therein save as otherwise expressly provided.
Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the
coparcenary property. Section 8 lays down the general rules of succession that the property of a male
dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the
Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs
but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in
the event of succession by two or more heirs, they will take the property per capita and not per stirpes,
as also tenants-in-common and not as joint tenants.
Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 of the Act,
therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4th share
in the property. Apart from the legal position, factually the same was also reflected in the record-of-
rights. A partition had taken place amongst the heirs of Bhima.
Although the learned first appellate court proceeded to consider the effect of Section 6 of the Act, in
our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it
had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the
Act, the properties ceased to be joint family property and all the heirs and legal representatives of
Bhima would succeed to his interest as tenants-in-common and not as joint tenants. In a case of this
nature, the joint coparcenary did not continue.”
20. Some other judgments were cited before us for the proposition that joint family property continues
as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the
joint family property continues as such, there being no hiatus merely by virtue of the fact there is a
sole surviving coparcener. Dharma ShamraoAgalawe v. Pandurang MiraguAgalawe (1988) 2 SCC
126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh(2013) 9 SCC
419, were cited for this purpose. None of these judgments would take the appellant any further in view
of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the
Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by
the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at
the time of his death an interest in Mitakshara coparcenary property, his interest in the
property will devolve by survivorship upon the surviving members of the coparcenary (vide
Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it
clear that notwithstanding anything contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property that can be disposed of by him by will or other
testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which
states that if such a male Hindu had died leaving behind a female relative specified in Class I
of the Schedule or a male relative specified in that Class who claims through such female
relative surviving him, then the interest of the deceased in the coparcenary property would
devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6
proviso, a partition is effected by operation of law immediately before his death. In this
partition, all the coparceners and the male Hindu's widow get a share in the joint family
301
property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu
leaving self-acquired property or by the application of Section 6 proviso, such property would
devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been
distributed in accordance with section 8 on principles of intestacy, the joint family property
ceases to be joint family property in the hands of the various persons who have succeeded to it
as they hold the property as tenants in common and not as joint tenants.
21. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973,
the joint family property which was ancestral property in the hands of Jagannath Singh and the other
coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral
property ceased to be joint family property on the date of death of Jagannath Singh, and the other
coparceners and his widow held the property as tenants in common and not as joint tenants. This being
the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint
family property, the suit for partition of such property would not be maintainable. The appeal is
consequently dismissed with no order as to costs.
Appeal dismissed.
***
23.
AIR 2019 SC 3098
U.U. LALIT AND INDU MALHOTRA JJ.
Arshnoor Singh
v.
Harpal Kaur
Civil Appeal No. 5124 of 2019. D/1-7-2019
Judgment of the Court was delivered by:
Indu Malhotra, J.(for herself and on behalf of U.U. Lalit J):-Leave granted.
2. The present Civil Appeal has been filed to challenge the Order dated 13.11.2018 passed in RSA
No. 1354 of 2014 by the Punjab & Haryana High Court at Chandigarh.
3. The background facts in which the present Civil Appeal has been filed are briefly stated as under:
3.1. Lal Singh was the owner of large tracts of agricultural land in Village Khangarh, District
Ferozepur, Punjab. The Appellant herein is the great-grandson of Lal Singh.
3.2. Lal Singh passed away in 1951, and his entire property was inherited by his only son Inder Singh.
In 1964, Inder Singh during his lifetime, effected a partition of the entire property vide decree dated
04.11.1964 passed in Civil Suit No. 182 of 4.11.1962 between his three sons viz. Gurcharan Singh,
Dharam Singh, and Swaran Singh in equal shares.Thereafter, the three sons transferred one-fourth
share in the entire property back to their father Inder Singh for his sustenance. As a consequence,
Inder Singh and his three sons held one-fourth share each in the property.Inder Singh expired on
15.04.1970, and his one-fourth share was inherited by his heirs i.e. his widow, three sons, and his
daughter.
3.3. The present matter pertains to the property which came to the share of one of his sons viz.
Dharam Singh (hereinafter referred to as the “suit property”), which was agricultural land comprised
of about 119 kanals 2 marlas, situated in Village Khangarh, District Feozepur, Punjab.
3.4. Dharam Singh had only one son viz. Arshnoor Singh - the Appellant herein. The Appellant was
born on 22.08.1985 to Dharam Singh through his 1st wife.
3.5. Dharam Singh purportedly sold the entire suit property to Respondent No. 1 viz. Harpal Kaur
vide two registered Sale Deeds dated 01.09.1999 for an ostensible sale consideration of Rs. 4,87,500/-
.The first Sale Deed bearing Wasika No. 1075 pertains to land admeasuring 59 kanals 11 marlas
situated in Khasra No. 35; the second Sale Deed bearing Wasika No. 1079 pertains to land
admeasuring 59 kanals 11 marlas in Khasra No. 36.
302
3.6. On 21.09.1999, the two Sale Deeds were sent by the Sub-Registrar to the Collector, Ferozepur for
action u/S. 47A of the Indian Stamp Act, 1999 as the Sale Deeds were undervalued.
Dharam Singh and Respondent No. 1 - Harpal Kaur appeared before the Collector. Dharam Singh
admitted that no consideration was exchanged in lieu of the two Sale Deeds, and the amount of Rs.
4,87,500/- was mentioned only for the purpose of registration.Respondent No. 1 - Harpal Kaur, the
purported vendee, admitted that no money was paid by her to Dharam Singh in exchange for the suit
property.
3.7. Subsequently, on 29.09.1999, Dharam Singh got married to Respondent No. 1.The Collector,
Ferozepur vide Order dated 24.01.2000, held that the two Sale Deeds executed by Dharam Singh in
favour of Respondent No. 1 were without any monetary transaction.
3.8. The Appellant became a major on 22.08.2003.On 23.11.2004, the Appellant filed a Suit for
Declaration against his father Dharam Singh as Defendant No. 1, and Harpal Kaur as Defendant No. 2
(Respondent No. 1 herein) for a declaration that the suit property was coparcenary property, and
hence the two Sale Deeds dated 01.09.1999 executed by his father Dharam Singh in favour of
Respondent No. 1 herein were illegal, null and void. The Appellant further prayed for a permanent
injunction restraining Respondent No. 1 from further alienating, transferring, or creating a charge on
the suit property.
3.9. During the pendency of the Suit, Respondent No. 1 entered into a transaction whereby she
purportedly sold the suit property jointly to Respondent Nos. 2 & 3 viz. Kulwant Singh and Jung
Bahadur vide a Sale Deed dated 30.10.2007.Respondent No. 1 filed an Application to Implead
Respondent Nos. 2 & 3 as co-defendants in the Suit. However, the said Application was disposed of
vide Order dated 25.09.2010, with liberty granted to Respondent No. 1/Defendant No. 2 to defend
their rights.
3.10. The Additional Civil Judge, Ferozepur vide Order dated 29.04.2011, decreed the Suit in favour
of the Appellant/Plaintiff.Dharam Singh in his deposition had stated that he executed the Sale Deeds
without any monetary consideration since Respondent No. 1 insisted on transfer of the suit property in
her name as a precondition for marriage.The Trial Court held that the suit property was ancestral
coparcenary property of Dharam Singh and the Appellant. Respondent No. 1 failed to prove that
Dharam Singh had sold the suit property to Respondent No. 1 for either legal necessity of the family,
or for the benefit of the estate. Consequently, the two Sale Deeds dated 01.09.1999 purportedly
executed by Dharam Singh in favour of Respondent No. 1/Defendant No. 2 were illegal, null and
void. The Appellant was held entitled to joint possession of the suit property with his father.
3.11. Respondent No. 1 along with the subsequent purchasers - Respondent Nos. 2 & 3 filed a
common Civil Appeal RBT No. 130 of 3.6.2011/7.9.2013 before the Additional District Judge,
Ferozepur.The ADJ vide Judgment & Order dated 13.01.2014 dismissed the Appeal. The Appellate
Court held that the two Sale Deeds dated 01.09.1999 were executed without any consideration as per
the admission of Dharam Singh, and Respondent No. 1 in their statements recorded by the Collector,
Ferozepur.In the absence of any legal necessity, or benefit to the estate of the joint Hindu family, the
Sale Deeds dated 01.09.1999 were illegal, null and void.
3.12. Aggrieved by the aforesaid Order, Respondent Nos. 1, 2 & 3 filed RSA No. 1354 of 2014 before
the Punjab & Haryana High Court.
3.13. During the pendency of the Regular Second Appeal before the High Court, Dharam Singh
expired on 05.01.2017.
3.14. The High Court vide the impugned Judgment & Order dated 13.11.2018, allowed the RSA filed
by the Respondents, and set aside the concurrent findings of the courts below.The High Court held
that (i) the Appellant had no locus to institute the Suit, since the coparcenary property ceased to exist
after Inder Singh partitioned the property between his 3 sons in 1964; (ii) the Appellant had no right
to challenge the Sale Deeds executed on 01.09.1999 on the ground that the sale consideration had not
been paid, since only the executant of the Sale Deeds viz. Dharam Singh (Defendant No. 1) could
have made such a challenge; and (iii) Jamabandis for the years 1957 - 58 till 1970 - 71 were not
produced by the Appellant.
3.15. Aggrieved by the impugned Judgment & Order dated 13.11.2018 passed by the High Court, the
Appellant has filed the present Civil Appeal.
303
4. We have heard learned Counsel for the parties, and perused the pleadings and written submissions
filed by the parties.
5. Mr. Manoj Swarup, Senior Counsel appearing on behalf of the Appellant, submitted that the suit
property was coparcenary property in which the Appellant had become a coparcener by birth.
6. It was further submitted that since the suit property was coparcenary property, Dharam Singh could
not have alienated it without legal necessity of the family, or benefit to the estate.
7. It was further submitted that the Sale Deed dated 30.10.2007 purportedly executed by Respondent
No. 1 in favour of Respondent Nos. 2 & 3, during the pendency of the Suit, was hit by lis pendens.
Hence, it was illegal, null and void.
8. Mr. Ritin Rai, Senior Counsel appearing for the Respondents submitted that the Civil Suit was filed
by the Appellant in collusion with his father Dharam Singh (Defendant No. 1), as Dharam Singh's
marriage with Respondent No. 1 had fallen apart, and had subsequently been dissolved through a
decree of divorce on 15.12.2010. It was contended that the Civil Suit was filed by the Appellant at the
behest of his father Dharam Singh.
9. It was further submitted that the suit property was not coparcenary property when the two Sale
Deeds were executed on 01.09.1999. Inder Singh's property ceased to be coparcenary property after it
was divided vide the decree dated 04.11.1964. Reliance was placed on the decision of this Court in
Uttam v. Saubhag Singh,1 wherein it was held that:“18. Some other judgments were cited before us
for the proposition that joint family property continues as such even with a sole surviving coparcener,
and if a son is born to such coparcener thereafter, the joint family property continues as such, there
being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma
ShamraoAgalawe v. Pandurang MiraguAgalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006)
8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose.
None of these judgments would take the appellant any further in view of the fact that in none of them
is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law,
therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the
amendment of 2005, could therefore be summarized as follows:(vi) On a conjoint reading of Sections
4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on
principles of intestacy, the joint family property ceases to be joint family property in the hands of the
various persons who have succeeded to it as they hold the property as tenants in common and not as
joint tenants.”
10. It was further submitted that the Appellant had no locus to file the Civil Suit on the ground that no
sale consideration was paid by Respondent No. 1 to Dharam Singh. The Appellant was not a party to
the Sale Deeds, and only the executant of the Sale Deeds viz. Dharam Singh, could have filed such a
suit.
11. The issues that arise for consideration before us are two-fold: (i) whether the suit property was
coparcenary property or self-acquired property of Dharam Singh; (ii) the validity of the Sale Deeds
executed on 01.09.1999 by Dharam Singh in favour of Respondent No. 1, and the subsequent Sale
Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3.
12. With respect to the first issue, it is the admitted position that Inder Singh had inherited the entire
suit property from his father Lal Singh upon his death. As per the Mutation Entry dated 16.01.1956
produced by Respondent No. 1, Lal Singh's death took place in 1951. Therefore, the succession in this
case opened in 1951 prior to the commencement of the Hindu Succession Act, 1956 when Inder Singh
succeeded to his father Lal's Singh's property in accordance with the old Hindu Mitakshara law.
12.1. Mulla in his commentary on Hindu Law (22nd Edition) has stated the position with respect to
succession under Mitakshara law as follows:Page 129
“A son, a grandson whose father is dead, and a great-grandson whose father and grandfather are both
dead, succeed simultaneously as single heir to the separate or self-acquired property of the deceased
with rights of survivorship.”Page 327
“All property inherited by a male Hindu from his father, father's father or father's father's father, is
ancestral property. The essential feature of ancestral property according to Mitakshara law is that the
sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights
attached to such property at the moment of their birth.A person inheriting property from his three
immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons, and
304
son's son's sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute
property.”(emphasis supplied)
12.2. In Shyam Narayan Prasad v. Krisha Prasad,2 this Court has recently held that:“12. It is settled
that the property inherited by a male Hindu from his father, father's father or father's father's father is
an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that
the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the
rights attached to such property at the moment of their birth. The share which a coparcener obtains on
partition of ancestral property is ancestral property as regards his male issue. After partition, the
property in the hands of the son will continue to be the ancestral property and the natural or adopted
son of that son will take interest in it and is entitled to it by survivorship.”(emphasis supplied)
12.3. Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal
ancestors upto three degrees above him, then his male legal heirs upto three degrees below him,
would get an equal right as coparceners in that property.
12.4. In Yudhishter v. Ashok Kumar,3 this Court held that:“11. This question has been considered by
this Court in Commissioner of Wealth Tax, Kanpur v. Chander Sen [1986] 161 ITR 370 (SC) where
one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he
gets a share in father's property and become part of the coparcenary. His right accrues to him not on
the death of the father or inheritance from the father but with the very fact of his birth. Normally,
therefore whenever the father gets a property from whatever source, from the grandfather or from any
other source, be it separated property or not, his son should have a share in that and it will become
part of the joint Hindu family of his son and grandson and other members who form joint Hindu
family with him. This Court observed that this position has been affected by Section 8 of the Hindu
Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation
contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his
individual capacity.”(emphasis supplied)
12.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change.
Post - 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property
becomes his self-acquired property, and does not remain coparcenary property.
12.6. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu
Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a
male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-à-vis his
male descendants upto three degrees below him. The nature of property will remain as coparcenary
property even after the commencement of the Hindu Succession Act, 1956.
12.7. In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the
property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had
effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property
inherited by Inder Singh's sons would remain as coparcenary property qua their male descendants
upto three degrees below them.
12.8. The judgment in Uttam v. Saubhag Singh (supra) relied upon by the Respondents is not
applicable to the facts of the present case. In Uttam, the appellant therein was claiming a share in the
coparcenary property of his grandfather, who had died in 1973 before the appellant was born. The
succession opened in 1973 after the Hindu Succession Act, 1956 came into force.The Court was
concerned with the share of the appellant's grandfather in the ancestral property, and the impact of
Section 8 of the Hindu Succession Act, 1956. In light of these facts, this Court held that after property
is distributed in accordance with Section 8 of the Hindu Succession Act, 1956, such property ceases to
be joint family property in the hands of the various persons who have succeeded to it. It was therefore
held that the appellant was not a coparcener vis-à-vis the share of his grandfather.
12.9. In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as
coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons
of Inder Singh by the court vide a decree of partition dated 04.11.1964. The shares allotted in partition
to the coparceners, continued to remain coparcenary property in their hands qua their male
descendants. As a consequence, the property allotted to Dharam Singh in partition continued to
remain coparcenary property qua the Appellant.
305
12.10. With respect to the devolution of a share acquired on partition, Mulla on Hindu Law (22nd
Edition) states the following:“§ 339. Devolution of share acquired on partition. - The effect of a
partition is to dissolve the coparcenary, with the result, that the separating members thenceforth hold
their respective shares as their separate property, and the share of each member will pass on his death
to his heirs. However, if a member while separating from his other coparceners continues joint with
his own male issue, the share allotted to him on partition, will in his hands, retain the character of a
coparcenary property as regards the male issue [§ 221, sub-§ (4)].”(emphasis supplied)
12.11. This Court in Valliammai Achi v. Nagappa Chettiar,4 held that:“10. … It is well settled that
the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards
his male issues. They take an interest in it by birth whether they are in existence at the time of
partition or are born subsequently: [see Hindu Law by Mulla, Thirteenth Edition p. 249, para
223(2)(4)]. If that is so and the character of the ancestral property does not change so far as sons are
concerned even after partition, we fail to see how that character can change merely because the father
makes a will by which he gives the residue of the joint family property (after making certain bequests)
to the son.”(emphasis supplied)
12.12. The suit property which came to the share of late Dharam Singh through partition, remained
coparcenary property qua his son - the Appellant herein, who became a coparcener in the suit property
on his birth i.e. on 22.08.1985.Dharam Singh purportedly executed the two Sale Deeds on 01.09.1999
in favour of Respondent No. 1 after the Appellant became a coparcener in the suit property.
13. The second issue which has arisen for consideration is whether the two Sale Deeds dated
01.09.1999 executed by Dharam Singh in favour of Respondent No. 1, were valid or not.
13.1. It is settled law that the power of a Karta to sell coparcenary property is subject to certain
restrictions viz. the sale should be for legal necessity or for the benefit of the estate.5 The onus for
establishing the existence of legal necessity is on the alienee.
14. In Rani v. Santa Bala Debnath,6 this Court held that:“10. Legal necessity to support the sale must
however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was
competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In
adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be
averted, and the benefit to be conferred upon the estate in the particular instance must be considered.
Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may
be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the
alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the
existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence
of the necessity.”(emphasis supplied)
14.2. In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a
legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of
the same.
14.3. Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh
had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the
benefit of the estate. In fact, it has come on record that the Sale Deeds were without any consideration
whatsoever.Dharam Singh had deposed before the Trial Court that he sold the suit property to
Respondent No. 1 without any consideration. Respondent No. 1 had also admitted before the
Collector, Ferozepur that the Sale Deeds were without consideration.Hence, the ground of legal
necessity or benefit of the estate falls through.
14.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null
and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant
was a coparcener, by the aforesaid alleged Sale Deeds.
15. Since Respondent No. 1 has not obtained a valid and legal title to the suit property through the
Sale Deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3
either.
16. The subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of
Respondent Nos. 2 & 3 is hit by the doctrine of lis pendens. The underlying principle of the doctrine
of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no
right or title in that property, the transferee will not have any title to the property.7 The Sale Deed
306
dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 being null and
void, is hereby cancelled.
17. The Plaintiff/Appellant being a male coparcener in the suit property, was vitally affected by the
purported sale of the suit property by his father Dharam Singh.
18. The Appellant therefore had the locus to file the Suit for a Declaration that the suit property being
coparcenary property, could not have been sold by his father Dharam Singh without legal necessity, or
for the benefit of the estate.
19. As a consequence, the Appellant was entitled to move the Court for a Declaration that the two
Sale Deeds dated 01.09.1999 executed by his father Dharam Singh in favour of Respondent No. 1
were illegal, null and void.
19.1. The very fact that the Sale Deeds dated 01.09.1999 were executed without any consideration,
would itself show that the suit property was sold without any legal necessity. Being coparcenary
property, it could not have been sold without legal necessity, or for the benefit of the estate.
19.2. The non-production of the Jamabandis would make no difference, as it did not affect the
title/ownership of the suit property.
20. In view of the aforesaid discussion on law, the judgment passed by the learned Single Judge of the
High Court vide the Impugned Order dated 13.11.2018, being contrary to law, is set aside.
21. The Sale Deeds dated 01.09.1999 bearing Wasika Nos. 1075 and 1079 executed by Dharam Singh
in favour of Respondent No. 1 are hereby cancelled and set aside.
22. Consequently, the subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in
favour of Respondent Nos. 2 & 3 during the pendency of proceedings is illegal, and hereby cancelled
and set aside.
23. The name of the Appellant is to be recorded in the Jamabandis as the owner of the suit property.
24. The Civil Appeal is allowed in the aforesaid terms. All pending Applications, if any, are
accordingly disposed of.
25. Ordered accordingly.
24.
(2018) 7 SCC 646
ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER JJ.
Shyam Narayan Prasad
v.
Krishna Prasad
Civil Appeal No. 5515 of 2011. D/2-7-2018
S. Abdul Nazeer, J. (for himself and on behalf of Abhay Manohar SapreJ):
S. Abdul Nazeer, J.- Defendant 1, Shyam Narayan Prasad is the appellant before us. In this appeal he
has questioned the legality and correctness of the judgment and decree dated 15-5-2006 passed by the
High Court of Sikkim in Krishna Prasad v. Shyam Narayan Prasad [Krishna Prasad v. Shyam Narayan
Prasad, 2006 SCC OnLineSikk3: AIR 2006 Sikk 25].
2. One Gopalji Prasad is the common male ancestor of the parties. The appellant and Laxmi Prasad,
5th respondent herein, are the sons of Gopalji Prasad. Respondents 1 to 3 are the sons of Laxmi
Prasad and Respondent 4 is the son of the first respondent. Respondents 1 to 4 are the plaintiffs in the
suit, being Civil Suit No. 10 of 2001, and the appellant and Respondents 5 and 6 are the defendants.
307
No relief has been claimed against Respondent 6 (Defendant 3 in the suit). For the sake of
convenience, parties are referred to by the ranking in the trial court.
3. The plaintiffs filed the aforesaid suit against the defendants for a declaration that the document
dated 30-1-1990 (Ext. P-2) executed between Defendants 1 and 2 is invalid and for certain other
reliefs. According to them, the family property was partitioned on 31-7-1987 between Gopalji and his
five sons, namely, Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr OnkarnathGupta and
Suresh Kumar. In the partition, Gopalji has retained some of the properties for his personal use till his
death. Laxmi Prasad got his share of property along with half portion of existing two-storeyed RCC
building situated at Singtam Bazar, East Sikkim, wherein presently a liquor shop is being run. Shyam
Narayan Prasad was allotted a shoe shop at Manihari which is run on a rented premises owned by
Gouri Shankar Prasad. He was also allotted other properties in the partition.
4. After the partition, the sons of Gopalji were put in possession of their share of the properties.
However, Laxmi Prasad (Defendant 2) in collusion with his brother Shyam Narayan Prasad
(Defendant 1) executed an agreement dated 30-1-1990 exchanging the liquor shop at Singtam Bazar,
East Sikkim with the shoe shop at Manihari. It is their contention that since the property is an
ancestral property, they also have a share in the property which had fallen to the share of Defendant 2
and that he has no legal right to exchange the property with Defendant 1. It was further contended that
the deed of exchange dated 30-1-1990 entered into between Defendants 1 and 2 is in relation to an
immovable property. Since the said document has not been registered, it has no legal effect.
5. Defendant 1 has filed the written statement stating that the suit properties are not ancestral
properties. He has denied the contention of the plaintiffs that the document dated 30-1-1990 is not a
valid document. It was further contended that the said document has already been given effect from
the date of its execution.
6. Defendant 2 has filed the written statement contending that for the alleged exchange deed,
Defendant 1 had approached him for exchanging only the business of liquor shop at Sikkim with that
of shoe shop at Gangtok for convenience and that he had signed the document in good faith believing
that the exchange deed was only for the two businesses, and further, admitted that exchange deed was
made and executed behind the back of the plaintiffs.
7. On the basis of the pleadings of the parties, the trial court has framed relevant issues. Parties have
led evidence in support of their respective contentions. On appreciation of the materials on record, the
trial court had come to the conclusion that the property in question is an ancestral property and that
the plaintiffs being the sons and grandson of Defendant 2, they have also equal share in the property
allotted to him in the partition. The suit was accordingly decreed.
8. The first defendant challenged the said judgment and decree by filing Appeal No. 2 of 2003 before
the District Judge, Sub-Division II, Sikkim at Gangtok. The District Judge by the judgment and
decree dated 19-11-2004 allowed the appeal, set aside the judgment and decree of the trial court and
dismissed the suit. The plaintiffs filed Second Appeal No. 1 of 2005 challenging the judgment and
decree of the District Judge before the High Court. The High Court has set aside the judgment and
decree of the District Judge and restored the judgment and decree of the trial court.
9. The contention of the learned counsel for Appellant-Defendant 1 is that the entire property of
Gopalji was the self-acquired property and he has divided the property amongst his five sons by a
deed of partition dated 1-3-1988. According to the deed of settlement dated 30-1-1990 between
Defendants 1 and 2, only the businesses were transferred and not the buildings. Therefore, the sons
and the grandson of Defendant 2 have no right to seek cancellation of the said deed. There is no
exchange of immovable property as contended by the plaintiffs. Therefore, the settlement deed does
not require registration. The parties have acted upon the said agreement. In the circumstances,
possession of the appellant is protected under Section 53-A of the Transfer of Property Act, 1882 (for
short “the TP Act”).
10. On the other hand, the learned advocate appearing for Respondents 1 to 4-plaintiffs submits that
the subject-matter of the deed of settlement dated 30-1-1990 is a joint family property. The recitals of
this document clearly show that there is a transfer of immovable property. The plaintiffs, being the
lineal descendants of Defendant 2, are the members of the coparcenary. They have a right and interest
over the property in question. The settlement deed dated 30-1-1990 has not been registered. Hence, it
is inadmissible in evidence. Defendant 1 has not pleaded in his written statement that he has taken the
308
possession of the property in part-performance of the contract. Therefore, it is not open for him to
claim the benefit of Section 53-A of the TP Act. The learned counsel prays for dismissal of the
appeal.
11. Having regard to the contentions urged, the first question for consideration is whether the property
allotted to Defendant 2 in the partition dated 31-7-1987 retained the character of a coparcenary
property. Admittedly, Gopalji Prasad and his five sons partitioned the property by a deed of partition
dated 31-7-1987. It is clear from the materials on record that Gopalji Prasad retained certain
properties in the partition. Certain properties had fallen to the share of Defendant 2 who is the father
of Plaintiffs 1 to 3 and grandfather of Plaintiff 4. Certain properties had fallen to the share of the first
defendant. The trial court has held that the properties are ancestral properties. The High Court has
confirmed [Krishna Prasad v. Shyam Narayan Prasad, 2006 SCC OnLineSikk3: AIR 2006 Sikk 25]
the finding of the trial court. We do not find any ground to disagree with this finding of the courts
below.
12. It is settled that the property inherited by a male Hindu from his father, father's father or father's
father's father is an ancestral property. The essential feature of ancestral property, according to
Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire
an interest and the rights attached to such property at the moment of their birth. The share which a
coparcener obtains on partition of ancestral property is ancestral property as regards his male issue.
After partition, the property in the hands of the son will continue to be the ancestral property and the
natural or adopted son of that son will take interest in it and is entitled to it by survivorship.
13. In C. Krishna Prasad v. CIT [C. Krishna Prasad v. CIT, (1975) 1 SCC 160: 1975 SCC (Tax) 16],
this Court was considering a similar question. In the said case, C. Krishna Prasad, the appellant along
with his father Krishnaswami Naidu and brother C. Krishna Kumar formed Hindu Undivided Family
up to 30-10-1958, when there was a partition between Krishnaswami Naidu and his two sons. A
question arose as to whether an unmarried male Hindu on partition of a joint Hindu family can be
assessed in the status of undivided family even though no other person besides him is a member of the
family. It was held that the share which a coparcener obtains on partition is ancestral property as
regards male issue. It was held as under: (SCC p. 163, para 8)“8. The share which a coparcener
obtains on partition of ancestral property is ancestral property as regards his male issue. They take an
interest in it by birth, whether they are in existence at the time of partition or are born subsequently.
Such share, however, is ancestral property only as regards his male issue. As regards other relations, it
is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by
succession (see p. 272 of Mulla's Principles of Hindu Law, 14th Edn.). A person who for the time
being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were
his separate property. He may sell or mortgage the property without legal necessity or he may make a
gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way
of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his
father before he was born or begotten….”(emphasis in original and supplied)
14. In M. Yogendra v. Leelamma N. [M. Yogendra v. Leelamma N., (2009) 15 SCC 184: (2009) 5
SCC (Civ) 602], it was held as under: (SCC p. 192, para 29)“29. It is now well settled in view of
several decisions of this Court that the property in the hands of a sole coparcener allotted to him in
partition shall be his separate property for the same shall revive only when a son is born to him. It is
one thing to say that the property remains a coparcenary property but it is another thing to say that it
revives. The distinction between the two is absolutely clear and unambiguous. In the case of former
any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in
the case of a coparcener any alienation made by the karta would be valid.”(emphasis supplied)
15. In Rohit Chauhan v. Surinder Singh [Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419 : (2013)
4 SCC (Civ) 377] , a contention was raised by Defendant 1 that after partition of the joint Hindu
family property, the land allotted to the share of Defendant 2 became his self-acquired property and he
was competent to transfer the property in the manner he desired. It was held that the property which
Defendant 2 got by virtue of partition decree amongst his father and brothers was although separate
property qua other relations but it attained the characteristics of coparcenary property the moment a
son was born to Defendant 2. It was held thus: (SCC pp. 424-25, para 14)“14. A person, who for the
time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of
309
the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property.
Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with
the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit
Chauhan, he was not competent to object to the alienation made by his father before he was born or
begotten. But, in the present case, it is an admitted position that the property which Defendant 2 got
on partition was an ancestral property and till the birth of the plaintiff he was the sole surviving
coparcener but the moment plaintiff was born, he got a share in the father's property and became a
coparcener. As observed earlier, in view of the settled legal position, the property in the hands of
Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and,
therefore, after his birth Defendant 2 could have alienated the property only as karta for legal
necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for
any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent
of entire coparcenary property are illegal, null and void. However, in respect of the property which
would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed,
the parties can work out their remedies in appropriate proceeding.”(emphasis supplied)
16. Therefore, the properties acquired by Defendant 2 in the partition dated 31-7-1987 although are
separate properties qua other relations but it is a coparcenary property insofar as his sons and
grandsons are concerned. In the instant case, there is a clear finding by the trial court that the
properties are ancestral properties which have been divided as per the deed of partition dated 31-7-
1987. The property which had fallen to the share of Defendant 2 retained the character of a
coparcenary property and the plaintiffs being his sons and grandson have a right in the said property.
Hence, it cannot be said that the suit filed by the plaintiffs was not maintainable.
17. This takes us to the next question as to whether the exchange deed at Ext. P-2 is admissible in
evidence or not. The transfer of ownership of their respective properties by Defendants 1 and 2 was
done through Ext. P-2, deed of exchange. It was contended by Defendant 1 that the exchange was
only of the businesses. However, a careful perusal of Ext. P-2 clearly shows that the RCC building is
also a subject-matter of the deed of exchange. The value of RCC building exceeds Rs 100 which is
not in dispute. Section 118 of the TP Act defines “exchange” as under: “118. “Exchange” defined. -
When two persons mutually transfer the ownership of one thing for the ownership of another, neither
thing or both things being money only, the transaction is called an “exchange”.A transfer of property
in completion of an exchange can be made only in manner provided for the transfer of such property
by sale.”
18. It is clear from this provision that where either of the properties in exchange are immovable or one
of them is immovable and the value of anyone is Rs 100 or more, the provision of Section 54 of the
TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange
is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs
100 and above, it can be made only by a registered instrument. In the instant case, the exchange deed
at Ext. P-2 has not been registered.
19. Section 49 of the Registration Act, 1908 provides for the effect of non-registration of the
document, which is as under: “49. Effect of non-registration of documents required to be registered. -
No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of
1882), to be registered shall- (a) affect any immovable property comprised therein, or(b) confer any
power to adopt, or(c) be received as evidence of any transaction affecting such property or conferring
such power,unless it has been registered:”
20. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of
creating and taking away the rights in respect of an immovable property must be registered and
Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and
deals with the documents that are required to be registered under Section 17 of the Registration Act.
Since, the deed of exchange has the effect of creating and taking away the rights in respect of an
immovable property, namely, RCC building, it requires registration under Section 17. Since the deed
of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an
immovable property.
21. In Roshan Singh v. Zile Singh [Roshan Singh v. Zile Singh, AIR 1988 SC 881: (1988) 2 SCR
1106], this Court was considering the admissibility of an unregistered partition deed. It was held thus:
310
(AIR p. 885, para 9)“9. … Section 17(1)(b) lays down that a document for which registration is
compulsory should, by its own force, operate or purport to operate to create or declare some right in
immovable property. … Two propositions must therefore flow:(1) A partition may be affected orally;
but if it is subsequently reduced into a form of a document and that document purports by itself to
effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not
registered, Section 49 of the Act will prevent its being admitted in evidence. Secondary evidence of
the factum of partition will not be admissible by reason of Section 91 of the Evidence Act,
1872.”(emphasis supplied)
22. It is clear from the above judgment that the best evidence of the contents of the document is the
document itself and as required under Section 91 of the Evidence Act the document itself has to be
produced to prove its contents. But having regard to Section 49 of the Registration Act, any document
which is not registered as required under law, would be inadmissible in evidence and cannot,
therefore, be produced and proved under Section 91 of the Evidence Act. Since Ext. P-2 is an
unregistered document, it is inadmissible in evidence and as such it can neither be proved under
Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore,
the High Court has rightly discarded the exchange deed at Ext. P-2.
23. The last contention of the learned counsel for the appellant is in relation to application of Section
53-A of the TP Act. It is well settled that the defendant who intends to avail the benefit of this
provision must plead that he has taken possession of the property in part-performance of the contract.
Perusal of the written statement of the first defendant shows that he has not raised such a plea.
Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to
enable courts to determine what is really at issue between the parties. No relief can be granted to a
party without the pleadings. Therefore, it is not open for the first defendant-appellant to claim the
benefit available under Section 53-A of the TP Act.
24. In the result, this appeal fails and it is accordingly dismissed. There will be no order as to costs.
25.
(2018) 3 SCC 343
Dr.A.K. SIKRI AND ASHOK BHUSHAN JJ.
311
Danamma
v.
Amar
Civil Appeal Nos. 188-89 of 2018. D/1-2-2018
Dr. A.K. Sikri, J. (for himself and on behalf of Ashok Bhushan J): The appellants herein, two in
number, are the daughters of one, GurulingappaSavadi, propositus of a Hindu Joint Family. Apart
from these two daughters, he had two sons, namely, Arunkumar and Vijay. GurulingappaSavadi died
in the year 2001 leaving behind the aforesaid two daughters, two sons and his widow, Sumitra. After
his death, Amar, s/o Arunkumar filed the suit for partition and a separate possession of the suit
property described at Schedules B to E in the plaint stating that the two sons and widow were in joint
possession of the aforesaid properties as coparceners and properties mentioned in Schedule B was
acquired out of the joint family nucleus in the name of GurulingappaSavadi. Case set up by him was
that the appellants herein were not the coparceners in the said joint family as they were born prior to
the enactment of the Hindu Succession Act, 1956 (hereinafter referred to as “the Act”). It was also
pleaded that they were married daughters and at the time of their marriage they had received gold and
money and had, hence, relinquished their share.
2. The appellants herein contested the suit by claiming that they were also entitled to share in the joint
family properties, being daughters of GurulingappaSavadi and for the reason that he had died after
coming into force of the 1950 Act.
3. The trial court, while decreeing the suit held that the appellants were not entitled to any share as
they were born prior to the enactment of the Act and, therefore, could not be considered as
coparceners. The trial court also rejected the alternate contention that the appellants had acquired
share in the said properties, in any case, after the amendment in the Act vide Amendment Act, 2005.
This view of the trial court has been upheld by the High Court in the impugned judgment dated 25-1-
2012 [Danamma v. Amar, 2012 SCC OnLine Kar 9178] thereby confirming the decree dated 9-8-
2007 passed in the suit filed for partition.
4. In the aforesaid backdrop, the question of law which arises for consideration in this appeal is as to
whether, the appellants, daughters of GurulingappaSavadi, could be denied their share on the ground
that they were born prior to the enactment of the Act and, therefore, cannot be treated as coparceners?
Alternate question is as to whether, with the passing of the Hindu Succession (Amendment) Act,
2005, the appellants would become coparcener “by birth” in their “own right in the same manner as
the son” and are, therefore, entitled to equal share as that of a son?
5. Though, we have mentioned the gist of the lis involved in this case along with brief factual
background in which it has arisen, some more facts which may be necessary for understanding the
genesis of issue involved may also be recapitulated. We may start with the genealogy of the parties, it
is as under:
6. Respondent 1 herein (the plaintiff) filed the suit on 1-7-2002 claiming 1/15th share in the suit
schedule properties. In the said suit, he mentioned the properties which needed partition.
7. The plaint Schedule C comprised of the house properties belonging to the joint family. The plaint
Schedule D comprised of the shop properties belonging to the joint family. The plaint Schedule E
comprised of the machineries and movable belonging to the joint family. The plaintiff averred that the
plaint schedule properties belonged to the joint family and that Defendant 1, the father of the plaintiff,
was neglecting the plaintiff and his siblings and sought partition of the suit schedule properties. The
plaintiff contended that all the suit schedule properties were the joint family properties. The plaintiff
contended in Para 5 of the plaint that the propositus, Guralingappa died 1 year prior to the filing of the
suit. In Para 7 of the plaint, the plaintiff contended that Defendant 1 had 1/3rd share and Defendants 5
and 8 had 1/3rd share each in the suit schedule properties. The plaintiff also contended that
Defendants 6 and 7 did not have any share in the suit schedule properties.
8. Defendant 1 (father of the plaintiff) and son of GuralingappaSavadi did not file any written
statement. Defendants 2, 3 and 4 filed their separate written statements supporting the claim of the
plaintiff. Defendant 5 (Respondent 5 herein and son of GuralingappaSavadi), however, contested the
suit. He, inter alia, contended that after the death of Guralingappa, an oral partition took place
between Defendant 1, Defendant 5 and others and in the said partition, Defendant 1 was allotted
312
certain properties and Defendant 5 was allotted certain other properties and Defendant 8, Sumitra,
wife of GuralingappaSavadi was allotted certain other properties. Defendant 5 further contended that
Defendants 6 and 7 were not allotted any properties in the said alleged oral partition.
9. Defendant 5 further contended that one of the properties, namely, CTS No. 774 and also certain
other properties were not joint family properties.
10. The appellants claimed that they were also entitled to their share in the property. After framing the
issues and recording the evidence, the trial court by its judgment and decree dated 9-8-2007 held that
the suit schedule properties were joint family properties except CTS No. 774 (one of the house
properties in Plaint C Schedule).
11. The trial court held that the plaintiff, Defendants 2 to 4 were entitled to 1/8th share in the joint
family properties. The trial court further noted that Defendant 8 (wife of GurulingappaSavadi) died
during the pendency of the suit intestate and her share devolved in favour of Defendants 1 and 5 only
and, therefore, Defendants 1 and 2 were entitled to ½ share in the said share. The trial court passed the
following order:“The suit of the plaintiff is decreed holding that the plaintiff is entitled for partition
and separate possession of his 1/8th share in the Suit ‘B’, ‘C’ and ‘D’ schedule properties (except
CTS No. 774) and also in respect of the machineries stated in the report of the Commissioner. The
Commissioner's Report, Ext. P-16 which contains the list of machineries to form part of the decree.
Defendants 2 to 4 are each entitled to 1/8th share and the 5th defendant is entitled for 4/8th share in
the abovesaid properties.”The trial court, thus, denied any share to the appellants.
12. Aggrieved by the said judgment and decree of the trial court, Defendants 6 and 7 filed an appeal
bearing RFA No. 322 of 2008 before the High Court seeking equal share as that of the sons of the
propositus, namely, Defendants 1 and 5.
13. The High Court by its impugned judgment and order dated 25-1-2012 [Danamma v. Amar, 2012
SCC OnLine Kar 9178] dismissed the appeal. Thereafter, on 4-3-2012 Defendants 6 and 7 filed a
review petition bearing No. 1533 of 2012 before the High Court [Danamma v. Amar, 2012 SCC
OnLine Kar 9179], which met the same fate.
14. We have heard the learned counsel for the parties. Whereas, the learned counsel for the appellants
reiterated his submissions which were made before the High Court as well and noted above, the
learned counsel for the respondents refuted those submissions by relying upon the reason given by the
High Court in the impugned judgment.
15. In the first instance, let us take note of the provisions of Section 6 of the Act, as it stood prior to its
amendment by the Amendment Act, 2005. This provision reads as under:“6. Devolution of interest
in coparcenary property. -When a male Hindu dies after the commencement of this Act, having at
the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall
devolve by survivorship upon the surviving members of the coparcenary and not in accordance with
this Act:Provided that, if the deceased had left him surviving a female relative specified in Class I of
the Schedule or a male relative specified in that class who claims through such female relative, the
interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.-For
the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the
share in the property that would have been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person
who had separated himself from the coparcenary before the death of the deceased or any of his heirs
to claim on intestacy a share in the interest referred to therein.”
16. No doubt, Explanation 1 to the aforesaid section states that the interest of the deceased in the
Mitakshara coparcenary property shall be deemed to be the share in the property that would have been
allotted to him if the partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not. This Explanation came up for
interpretation before this Court in Anar Devi v. Parmeshwari Devi [Anar Devi v. Parmeshwari Devi,
(2006) 8 SCC 656]. The Court quoted, with approval, the following passage from the authoritative
treatise of Mulla, Principles of Hindu Law, 17th Edn., Vol. II, p. 250 wherein the learned author made
following remarks while interpreting Explanation 1 to Section 6: (SCC pp. 658-59, paras 6-8)
313
“6. … ‘Explanation 1 defines the expression “the interest of the deceased in Mitakshara coparcenary
property” and incorporates into the subject the concept of a notional partition. It is essential to note
that this notional partition is for the purpose of enabling succession to and computation of an interest,
which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that
interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the
interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the
coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of
affairs as real requires that the consequences and incidents of the putative state of affairs must flow
from or accompany it as if the putative state of affairs had in fact existed and effect must be given to
the inevitable corollaries of that state of affairs.’
7. The learned author further stated that: ‘[T]he operation of the notional partition and its inevitable
corollaries and incidents is to be only for the purposes of this section, namely, devolution of interest
of the deceased in coparcenary property and would not bring about total disruption of the coparcenary
as if there had in fact been a regular partition and severance of status among all the surviving
coparceners.’
8. According to the learned author, at pp. 253-54, the undivided interest ‘of the deceased coparcener
for the purpose of giving effect to the rule laid down in the proviso, as already pointed out, is to be
ascertained on the footing of a notional partition as of the date of his death. The determination of that
share must depend on the number of persons who would have been entitled to a share in the
coparcenary property if a partition had in fact taken place immediately before his death and such
person would have to be ascertained according to the law of joint family and partition. The rules of
Hindu law on the subject in force at the time of the death of the coparcener must, therefore, govern the
question of ascertainment of the persons who would have been entitled to a share on the notional
partition’.”
17. Thereafter the Court spelled out the manner in which the statutory fiction is to be construed by
referring to certain judgments [Ed.: The reference is to State of Bombay v. Pandurang Vinayak
Chaphalkar, AIR 1953 SC 244 : 1953 Cri LJ 1094; East End Dwellings Co. Ltd. v. Finsbury Borough
Council, 1952 AC 109 (HL); Levy, In re, ex p Walton, (1881) LR 17 Ch D 746 (CA) and
GurupadKhandappaMagdum v. HirabaiKhandappaMagdum, (1978) 3 SCC 383] and summed up the
position as follows: (Anar Devi case [Anar Devi v. Parmeshwari Devi, (2006) 8 SCC 656] , SCC pp.
660-61, para 11) “11. Thus we hold that according to Section 6 of the Act when a coparcener dies
leaving behind any female relative specified in Class I of the Schedule to the Act or male relative
specified in that class claiming through such female relative, his undivided interest in the Mitakshara
coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his
heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under
which undivided interest of a deceased coparcener can be ascertained and i.e. that the interest of a
Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been
allotted to him if a partition of the property had taken place immediately before his death, irrespective
of whether he was entitled to claim partition or not. It means for the purposes of finding out undivided
interest of a deceased coparcener, a notional partition has to be assumed immediately before his death
and the same shall devolve upon his heirs by succession which would obviously include the surviving
coparcener who, apart from the devolution of the undivided interest of the deceased upon him by
succession, would also be entitled to claim his undivided interest in the coparcenary property which
he could have got in notional partition.”
18. This case clearly negates the view taken by the High Court in the impugned judgment.
19. That apart, we are of the view that amendment to the aforesaid section vide Amendment Act, 2005
clinches the issue, beyond any pale of doubt, in favour of the appellants. This amendment now confers
upon the daughter of the coparcener as well the status of coparcener in her own right in the same
manner as the son and gives same rights and liabilities in the coparcener properties as she would have
had if she had been a son. The amended provision reads as under:“6. Devolution of interest in
coparcenary property. -(1) On and from the commencement of the Hindu Succession (Amendment)
Act, 2005 (39 of 2005), in a Joint Hindu Family governed by the Mitakshara law, the daughter of a
coparcener shall- (a) by birth become a coparcener in her own right in the same manner as the son; (b)
have the same rights in the coparcenary property as she would have had if she had been a son; (c) be
314
subject to the same liabilities in respect of the said coparcenary property as that of a son,and any
reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a
coparcener:Provided that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of property which had
taken place before the 20th day of December 2004. (2) Any property to which a female Hindu
becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary
ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for
the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005
(39 of 2005), his interest in the property of a Joint Hindu Family governed by the Mitakshara law,
shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had
taken place and- (a) the daughter is allotted the same share as is allotted to a son;(b) the share of the
pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time
of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased
daughter; and(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as
the case may be.Explanation. -For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted to him if a
partition of the property had taken place immediately before his death, irrespective of whether he was
entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment)
Act, 2005 (39 of 2005), no court shall recognise any right to proceed against a son, grandson or great-
grandson for the recovery of any debt due from his father, grandfather or great grandfather solely on
the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to
discharge any such debt:Provided that in the case of any debt contracted before the commencement of
the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section
shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the
case may be; or(b) any alienation made in respect of or in satisfaction of, any such debt, and any such
right or alienation shall be enforceable under the rule of pious obligation in the same manner and to
the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005
(39 of 2005) had not been enacted. Explanation. - For the purposes of clause (a), the expression “son”,
“grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as
the case may be, who was born or adopted prior to the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005). (5) Nothing contained in this section shall apply to a partition,
which has been effected before the 20th day of December 2004. Explanation. - For the purposes of
this section “partition” means any partition made by execution of a deed of partition duly registered
under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.”
20. The effect of this amendment has been the subject-matter of pronouncements by various High
Courts, in particular, the issue as to whether the right would be conferred only upon the daughters
who are born after 9-9-2005 when the Act came into force or even to those daughters who were born
earlier. The Bombay High Court in Vaishali Satish Gonorkar v. Satish KeshaoraoGonorkar [Vaishali
Satish Gonorkar v. Satish KeshaoraoGonorkar, 2012 SCC OnLine Bom 116: AIR 2012 Bom 101] had
taken the view that the provision cannot be made applicable to all daughters born even prior to the
amendment, when the legislature itself specified the posterior date from which the Act would come
into force. This view was contrary to the view taken by the same High Court in Sadashiv Sakharam
Patil v. Chandrakant Gopal Desale [Sadashiv Sakharam Patil v. Chandrakant Gopal Desale, 2011
SCC OnLine Bom 1207: (2011) 5 Bom CR 726]. Matter was referred to the Full Bench and the
judgment of the Full Bench is reported as Badrinarayan Shankar Bhandari v. Omprakash Shankar
Bhandari [Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, 2014 SCC OnLine Bom
908: AIR 2014 Bom 151]. The Full Bench held that clause (a) of sub-section (1) of Section 6 would
be prospective in operation whereas clauses (b) and (c) and other parts of sub-section (1) as well as
sub-section (2) would be retroactive in operation. It held that amended Section 6 applied to daughters
born prior to 17-6-1956 (the date on which the Hindu Succession Act came into force) or thereafter
315
(between 17-6-1956 and 8-9-2005) provided they are alive on 9-9-2005 i.e. on the date when the
Amended Act, 2005 came into force. Orissa, Karnataka and Delhi High Court have also held to the
same effect. [Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik, 2008 SCC OnLine Ori 11: AIR 2008
Ori 133; Sugalabai v. Gundappa A. Maradi, 2007 SCC OnLine Kar 427: ILR 2007 Kar 4790 and
Rakhi Gupta v. Zahoor Ahmad, 2012 SCC OnLine Del 5941: (2013) 197 DLT 154].
21. The controversy now stands settled with the authoritative pronouncement in Prakash v. Phulavati
[Prakash v. Phulavati, (2016) 2 SCC 36: (2016) 1 SCC (Civ) 549] which has approved the view taken
by the aforesaid High Courts as well as Full Bench [Badrinarayan Shankar Bhandari v. Omprakash
Shankar Bhandari, 2014 SCC OnLine Bom 908: AIR 2014 Bom 151] of the Bombay High Court.
Following discussion from the said judgment is relevant:(Prakash case [Prakash v. Phulavati, (2016) 2
SCC 36: (2016) 1 SCC (Civ) 549], SCC pp. 48-49, paras 17-23)“17. The text of the amendment itself
clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the
commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after
the amendment for its applicability. In view of plain language of the statute, there is no scope for a
different interpretation than the one suggested by the text of the amendment. An amendment of a
substantive provision is always prospective unless either expressly or by necessary intendment it is
retrospective. [Shyam Sunder v. Ram Kumar [Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24] , SCC
paras 22 to 27] In the present case, there is neither any express provision for giving retrospective
effect to the amended provision nor necessary intendment to that effect. Requirement of partition
being registered can have no application to statutory notional partition on opening of succession as per
unamended provision, having regard to nature of such partition which is by operation of law. The
intent and effect of the amendment will be considered a little later. On this finding, the view of the
High Court cannot be sustained.
18. The contention of the respondents that the amendment should be read as retrospective being a
piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective
effect unless so provided for or so intended by the legislature. In the present case, the legislature has
expressly made the amendment applicable on and from its commencement and only if death of the
coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the
express language of the statute. The proviso keeping dispositions or alienations or partitions prior to
20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior
to the commencement of the Act. The proviso only means that the transactions not covered thereby
will not affect the extent of coparcenary property which may be available when the main provision is
applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of
Section 6(5) by being limited to a transaction of partition effected after 20-12-2004. Notional
partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under
the Explanation.
19. Interpretation of a provision depends on the text and the context. [RBI v. Peerless General Finance
& Investment Co. Ltd. [RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424],
SCC p. 450, para 33] Normal rule is to read the words of a statute in ordinary sense. In case of
ambiguity, rational meaning has to be given. [Kehar Singh v. State (UT of Delhi) [Kehar Singh v.
State (UT of Delhi), (1988) 3 SCC 609: 1988 SCC (Cri) 711] ] In case of apparent conflict,
harmonious meaning to advance the object and intention of legislature has to be given. [District
Mining Officer v. Tisco [District Mining Officer v. Tisco, (2001) 7 SCC 358]
20. There have been number of occasions when a proviso or an explanation came up for
interpretation. Depending on the text, context and the purpose, different rules of interpretation have
been applied. [S. Sundaram Pillai v. V.R. Pattabiraman [S. Sundaram Pillai v. V.R. Pattabiraman,
(1985) 1 SCC 591]
21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be
within the purview of the enactment but if the text, context or purpose so require a different rule may
apply. Similarly, an explanation is to explain the meaning of words of the section but if the language
or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are
useful servants but difficult masters. [KeshavjiRavji& Co. v. CIT [KeshavjiRavji& Co. v. CIT, (1990)
2 SCC 231: 1990 SCC (Tax) 268] Object of interpretation is to discover the intention of legislature.
316
22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6
clearly intend to exclude the transactions referred to therein which may have taken place prior to 20-
12-2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions
which were valid when effected. Object of giving finality to transactions prior to 20-12-2004 is not to
make the main provision retrospective in any manner. The object is that by fake transactions available
property at the introduction of the Bill is not taken away and remains available as and when right
conferred by the statute becomes available and is to be enforced. Main provision of the amendment in
Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled
principles governing such transactions relied upon by the appellants are not intended to be done away
with for period prior to 20-12-2004. In no case statutory notional partition even after 20-12-2004
could be covered by the Explanation or the proviso in question.
23. 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 law applicable
prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be
governed by the Explanation.”
22. The law relating to a Joint Hindu Family governed by the Mitakshara law has undergone
unprecedented changes. The said changes have been brought forward to address the growing need to
merit equal treatment to the nearest female relatives, namely, daughters of a coparcener. The section
stipulates that a daughter would be a coparcener from her birth, and would have the same rights and
liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary
property, which would be construed as property being capable of being disposed of by her either by a
will or any other testamentary disposition. These changes have been sought to be made on the
touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a
daughter was subjected. The fundamental changes brought forward about in the Hindu Succession
Act, 1956 by amending it in 2005, are perhaps a realisation of the immortal words of Roscoe Pound as
appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it
cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of
the need of stability and the need of change”.
23. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005,
the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner
as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu
Law was to treat them as coparceners since birth. The amended provision now statutorily recognises
the rights of coparceners of daughters as well since birth. The section uses the words in the same
manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener
have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a
coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become
coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a
consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as
explained above, and is well recognised. One of the incidents of coparcenary is the right of a
coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from
birth (now including daughters) as is evident from sub-sections (1)(a) and (b).
24. Reference to the decision of this Court, in SBI v. Ghamandi Ram [SBI v. Ghamandi Ram, (1969)
2 SCC 33: AIR 1969 SC 1330] is essential to understand the incidents of coparcenarship as was
always inherited in a Hindu Mitakshara coparcenary: (SCC pp. 36-37, para 5)“5. According to the
Mitakshara School of Hindu Law all the property of a Hindu Joint Family is held in collective
ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the
Mitakshara lays down in express terms that the joint family property is held in trust for the joint
family members then living and thereafter to be born (see Mitakshara, Chapter I, 1-27). The incidents
of coparcenarship under the Mitakshara law are: first, the lineal male descendants of a person up to
the third generation, acquire on birth ownership in the ancestral properties is common; secondly, that
such descendants can at any time work out their rights by asking for partition; thirdly, that till
partition each member has got ownership extending over the entire property, conjointly with the rest;
fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is
317
common; fifthly, that no alienation of the property is possible unless it be for necessity, without the
concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death
to the survivors.”(emphasis supplied)
25. Hence, it is clear that the right to partition has not been abrogated. The right is inherent and can be
availed of by any coparcener, now even a daughter who is a coparcener.
26. In the present case, no doubt, suit for partition was filed in the year 2002. However, during the
pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court
only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event
should have been kept in mind by the trial court as well as by the High Court. This Court in
GanduriKoteshwaramma v. ChakiriYanadi [GanduriKoteshwaramma v. ChakiriYanadi, (2011) 9 SCC
788 : (2011) 4 SCC (Civ) 880] held that the rights of daughters in coparcenary property as per the
amended Section 6 are not lost merely because a preliminary decree has been passed in a partition
suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final
decree. Where such situation arises, the preliminary decree would have to be amended taking into
account the change in the law by the amendment of 2005.
27. On facts, there is no dispute that the property which was the subject-matter of partition suit
belongs to joint family and GurulingappaSavadi was propositus of the said joint family property. In
view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as
well. Since,Savadi died leaving behind two sons, two daughters and a widow, both the appellants
would be entitled to 1/5th share each in the said property. The plaintiff (Respondent 1) is son of Arun
Kumar (Defendant 1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares
on partition i.e. between Defendant 1 Arun Kumar, his wife Defendant 2, his two daughters
Defendants 3 and 4 and son/plaintiff (Respondent 1). In this manner, Respondent 1-plaintiff would be
entitled to 1/25th share in the property.
28. The appeals are allowed in the aforesaid terms and decree of partition shall be drawn by the trial
court accordingly. No order as to costs.
318
26.
AIR 2019 SC 1506
U.U. LALIT AND M.R. SHAH JJ.
Babu Ram
v.
Santokh Singh
Civil Appeal No. 2553of 2019. D/7-3-2019
Dr.U.U. Lalit, J. (for himself and on behalf of M.R. ShahJ):Leave granted.
2. This appeal arises out of the final judgment and order dated 07.05.2018 passed by the High Court in
Babu Ram v. Santokh Singh and raises questions regarding scope and applicability of Section 22 of
the Hindu Succession Act, 1956 (hereinafter referred to as “the Act”), and particularly, whether
preferential right given to an heir of a Hindu under said Section 22 will be inapplicable if the property
in question is an agricultural land.
3. The facts leading to the filing of this appeal, in brief, are as under. (a) Two brothers, namely,
Santokh Singh, original plaintiff and Nathu Ram, original Defendant 1, sons of Lajpat s/o Rupa
inherited, among others, certain agricultural lands after the death of their father. According to Santokh
Singh, an arrangement was arrived at, in terms of which the brothers were to be in separate enjoyment
of certain specified pieces of land. Since Nathu Ram was not interested in continuing with said
arrangement he gave a legal notice to Santokh Singh and later executed a registered sale deed on
19.08.1991 in respect of his interest in the lands in favour of one Babu Ram, original Defendant 2 s/o
Kanshi Ram. (b) Soon thereafter, Civil Suit No. 194 of 1991 was filed by Santokh Singh in the Court
of Senior Sub-Judge, Hamirpur praying for permanent prohibitory injunction and declaration. It was
inter alia submitted that as a co-sharer, the plaintiff had a preferential right to acquire the land which
was sought to be transferred by Defendant 1 in favour of Defendant 2. The suit was contested and the
trial court by its judgment and order dated 04.05.1994 dismissed the said suit. (c) The plaintiff, being
aggrieved, filed Civil Appeal No. 86 of 1994 in the Court of District Judge, Hamirpur, which appeal
was partly allowed. The appellate court placed reliance on the decisions reported in P.
Srinivasamurthy v. P. Leelavathy and Bhagirathi Chhatoi v. AdikandaChhatoi and held that the
plaintiff had a preferential right under Section 22 of the Act to acquire the suit land measuring 19
kanals, half of the entire land entered in Khata No. 25 min, Khatoni No. 29 min, Khasra No. 1119
measuring 38 kanals 1 marla situated in Tika Badehra, Tappa Badohag, Tehsil Nadaun, District
Hamirpur (H.P.), on payment of sale consideration amounting to Rs. 60,000/-. It also held the transfer
of the suit land by Defendant 1 in favour of Defendant 2 to be illegal, null and void and hit by the
provisions of Section 22 of the Act. It directed Defendant 2 to transfer the suit land in the name of the
plaintiff on receipt of sale consideration amounting to Rs. 60,000/- within three months. (d) Defendant
2, being aggrieved, carried the matter further by filing Regular Second Appeal No. 457 of 2002 in the
High Court, which inter alia framed the following substantial question of law: “1. Whether Section 22
of the Hindu Succession Act excludes interest in agricultural land of an intestate and the preferential
right over “immovable property” as envisaged in the said provision is confined only to business and
such immovable property which does not include the agricultural land?” (e) Relying principally on the
decision of the Division Bench of the High Court in Roshan Lal v. Pritam Singh), the High Court
dismissed the said second appeal, which decision is presently under challenge by Defendant 2-
appellant.
4. The challenge before this Court is confined to the applicability of Section 22 of the Act to
agricultural lands and the factual facets of the matter are not in dispute. We have heard Mr. Sanchar
Anand, learned advocate for the appellant and Mr. Ranjan Mukherjee, learned advocate for heirs of
Respondent 1 - plaintiff. With the assistance of the learned counsel we have considered all the
relevant decisions on the point.
5. On a reference made under Section 213 of the Government of India Act, 1935 (hereinafter referred
to as ‘the 1935 Act’), the following questions were considered by the Federal Court “In the matter of
the Hindu Women’s Rights to Property Act, 1937, In re”: (SCC OnLine FC)“(1) Does either the
Hindu Women’s Rights to Property Act, 1937 (18 of 1937), which was passed by the Legislative
Assembly on 4th February, 1937, and by the Council of State on 6 th April 1937, and which received
319
the Governor-General’s assent on 14th April 1937, or the Hindu Women’s Rights to Property
(Amendment) Act, 1938 (11 of 1938), which was passed in all its stages after 1 stApril 1937, operate to
regulate- (a) succession to agricultural land?(b) devolution by survivorship of property other than
agricultural land? (2) Is the subject of devolution by survivorship of property other than agricultural
land included in any of the entries in the three Legislative Lists in the Seventh Schedule to the
Government of India Act, 1935?”
6. The observations of the Federal Court relevant for the present purposes were: (SCC OnLine FC)
“… After 1st April 1937, the Central Legislature was precluded from dealing with the subjects
enumerated in List II of the Seventh Schedule to the Constitution Act, so far as the Governors'
Provinces were concerned. Laws with respect to the “devolution of agricultural land” could be
enacted only by the Provincial Legislatures (List II Entry 21), and “wills, intestacy and succession,
save as regards agricultural land” appeared as List III Entry 7, the Concurrent List. Act 18, read with
the amending Act of 1938 (11 of 1938), endeavoured to improve the position of Hindu widows in two
classes of cases: (a) where by the operation of the principle of survivorship the widow is excluded
from enjoyment of the share of her husband in property which he held jointly with other coparceners;
and (b) where, even apart from the rule of survivorship, the widow is excluded from claiming any
share in her husband's estate by reason of the existence of sons, grandsons or great-grandsons of the
deceased who under the law take in preference to the widow. Provision is also made for securing a
share to a widow even in cases where her husband had pre-deceased the last male owner [Section
3(1), first proviso]. The Act purports to deal in quite general terms with the “property” or “separate
property” of a Hindu dying intestate, or his “interest in joint family property”; it does not distinguish
between agricultural land and other property and is therefore not limited in terms to the latter.”
7. The questions were answered by the Federal Court as under: - (SCC OnLine FC)“(1) The Hindu
Women’s Rights to Property Act, 1937, and the Hindu Women’s Rights to Property (Amendment)
Act, 1938- (a) do not operate to regulate succession to agricultural land in the Governors’ Provinces;
and(b) do operate to regulate devolution by survivorship of property other than agricultural land.(2)
The subject of devolution by survivorship of property other than agricultural land is included in entry
7 of List III, the Concurrent List.”
8. The relevant entries in the 1935 Act which were considered by the Federal Court underwent
significant changes when the Constitution of India was adopted. The following tabular chart would
show the distinction between the entries concerned: -
Seventh Schedule Government of India Act, 1935 Constitution of India
LIST I 54. Taxes on income other than 82. Taxes on income other than
agricultural income. agricultural income.
55. Taxes on the capital value 86. Taxes on the capital value
of the assets, exclusive of of the assets, exclusive of
agricultural land, of individuals agricultural land, of individuals
and companies; on the capital and companies; taxes on the
of companies. capital of companies.
56-A. Estate duty in respect of 87. Estate duty in respect of
property other than agricultural property other than agricultural
land. land.
56. Duties in respect of 88. Duties in respect of
succession to property other succession to property other
than agricultural land. than agricultural land.
LIST II 20. Agriculture, including 14. Agriculture, including
agricultural education and agricultural education and
research, protection against research, protection against
pests and prevention of plant pests and prevention of plant
diseases; improvement of diseases.
stocks and prevention of
animal diseases; veterinary
training and practice; pounds
and the prevention of cattle-
320
trespass.
21. Land, that is to say, rights 18. Land, that is to say, rights
in or over land, land tenures, in or over land, land tenures
including the relation of including the relation of
landlord and tenant and the landlord and tenant, and the
collection of rents; transfer, collection of rents; transfer and
alienation and devolution of alienation of agricultural land;
agricultural land; land land improvement and
improvement and agricultural agricultural loans; colonisation.
loans; colonisation; Courts of
Wards; encumbered and
attached estates; treasure trove.
27. Trade and commerce 30. Moneylending and money-

within the Province; markets lenders; relief of agricultural
and fairs; moneylending and indebtedness.
moneylenders.
41. Taxes on agricultural 46. Taxes on agricultural
income. income.
43. Duties in respect of 47. Duties in respect of
succession to agricultural land.
succession to agricultural land.
43-A. Estate duty in respect of
48. Estate duty in respect of
agricultural land. agricultural land.
LIST III 6. Marriage and divorce; 5. Marriage and divorce;
infants and minors; adoption. infants and minors; adoption;
7. Wills, intestacy- and wills, intestacy and succession;
succession, save as regards joint family and partition; all
agricultural land. matters in respect of which
parties in judicial proceedings
were immediately before the
commencement of this
Constitution subject to their
personal law.
8. Transfer of property other 6. Transfer of property other
than agricultural land; than agricultural land;
registration of deeds and registration of deeds and
documents. documents.
7. Contracts including
partnership, agency, contracts
of carriage, and other special
forms of contracts, but not
including contracts relating to
agricultural land.
9. The Act came into force on 17thJune, 1956. Section 22 has remained unchanged since the
enactment. While considering the effect of Section 22, Section 4(2) may also be required to be looked
into. However, Section 4(2), as originally enacted, has since then been omitted by the Hindu
Succession (Amendment) Act, 2005 (Act 39 of 2005). Before such omission, Section 4 as originally
enacted was as under: - “4. Over-riding effect of Act.- (1) Save as otherwise expressly provided in
this Act,- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law
in force immediately before the commencement of this Act shall cease to have effect with respect to
any matter for which provision is made in this Act; (b) any other law in force immediately before the
321
commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the
provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing
contained in this Act shall be deemed to affect the provisions of any law for the time being in force
providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or
for the devolution of tenancy rights in respect of such holdings.”
10. Section 22 of the Act is as under: - “22. Preferential right to acquire property in certain cases-
(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate,
or in any business carried on by him or her, whether solely or in conjunction with others, devolves
upon two or more heirs specified in Class I of the Schedule, and any one of such heirs proposes to
transfer his or her interest in the property or business, the other heirs shall have a preferential right to
acquire the interest proposed to be transferred. (2) The consideration for which any interest in the
property of the deceased may be transferred under this section shall, in the absence of any agreement
between the parties, be determined by the court on application being made to it in this behalf, and if
any person proposing to acquire the interest is not willing to acquire it for the consideration so
determined such person shall be liable to pay all costs of or incident to the application. (3) If there are
two or more heirs specified in Class I of the Schedule proposing to acquire any interest under this
section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation. - In this section, “court” means the court within the limits of whose jurisdiction the
immovable property is situate or the business is carried on, and includes any other court which the
State Government may, by notification in the Official Gazette, specify in this behalf.”
11. The first case wherein scope of Section 22 was considered, was Laxmi Debi v. Surendra Kumar
Panda by the High Court of Orissa. The submission that Section 22 of the Act would not cover
succession in respect of agricultural lands was rejected. The contention on the strength of judgment of
the Federal Court was also negated as under: (Laxmi Debi case, AIR pp. 4-5, para 14) “14. Mr. Jena
further contended that the Act, even if applies retrospectively, will not apply to agricultural lands, and
for this he relies upon the Federal Court decision in Hindu Women’s Rights to Property Act, 1937, In
re. That was a case which came up for decision by the Federal Court on a reference made by His
Excellency the Governor-General of India. Gwyer C. J., who delivered the judgment of the Court held
that the Hindu Women’s Rights to Property Act of 1937, and the Hindu Women’s Rights to Property
(Amendment) Act of 1938, do not operate to regulate succession to agricultural land in the Governors'
Provinces; and do operate to regulate devolution by survivorship of property to other than agricultural
lands. This decision, in view of the changed position in law, no longer holds good. The Federal Court
decision was based upon the law of legislative competency as it then stood, by the Government of
India Act, 1935. In Schedule 7, Government of India Act, 1935, this subject appears in the Concurrent
Legislative List (List III) as Item 7. Item 7 was in the following terms:7. Wills, intestacy; and
succession, save as regards agricultural land.” Now under the present Constitution of India the same
subject has been dealt with in the Concurrent List (List III) in Schedule 7 as Item 5. Item 5 runs as
follows: Marriage and divorce; infants and minors; adoption; wills, intestacy and succession, joint
family and partition, all matters in respect of which parties in judicial proceedings were immediately
before the commencement of this Constitution subject to their personal law. It is clear that Parliament
had omitted the phrase “save as regards agricultural land” from Item 5 of the Concurrent List in order
to have a uniform personal law for Hindus throughout India, and accordingly, it necessitated the
enlargement of Entry 5. We have no doubt, therefore, that in view of the change in law, the Act will
apply to agricultural lands also, and the decision in Hindu Women’s Rights to Property Act, 1937, In
re would no longer hold good.”
12. Before the Full Bench of the Punjab High Court in Amar Singh v. Baldev Singh challenge was
raised in the context of rights of a Hindu female under Section 14 of the Act. It was held inter alia that
Section 14 of the Act was “within the legislative field spanned in Entry 5 of List III, the concurrent
List”. However, a Division Bench of the same High Court in Jaswant v. Basanti Devi took a different
view while considering effect of Section 22 as regards agricultural lands. The discussion in that behalf
was as under: (SCC OnLine P&H paras 8-9) “8. Mr. Roop Chand, the learned counsel for the
respondent, stressed that the words immovable property used in Section 22 will include agricultural
lands. Undoubtedly, they do. But one cannot lose sight of the fact that when the Central Legislature
used these words it did so knowing fully well that it had no power to legislate regarding agricultural
322
lands excepting for the purposes of devolution. Section 22 does not provide for devolution of
agricultural lands. It merely gives a sort of right of pre-emption. In fact, as already pointed out, Entry
6 in List III, clearly takes out agricultural lands from the ambit of the Concurrent List. Agricultural
land is specifically dealt with in Entry 18 of List II. The only exception being in the case of
devolution. Therefore, it must be held that Section 22 does not embrace agricultural lands. 9. The last
argument of Mr. Roop Chand, the learned counsel for the respondent, was that Section 22 is ultra
vires the Constitution as the Central Legislature had no right to pass such a law regarding agricultural
lands. This argument cannot be accepted because it cannot be presumed that the legislature was
passing law regarding matters which it had no power to pass particularly when with regard to
immovable property other than agricultural land, it has the power to enact such a law. This view finds
support from the decision of the Federal Court in Hindu Women’s Rights to Property Act, 1937, In re,
wherein in a similar situation their Lordships of the Federal Court refused to strike down the
provisions of the Hindu Women’s Rights to Property Act, 1937, on the precise arguments.”
13. The High Court of Judicature at Allahabad, in Prema Devi v. Joint Director of Consolidation held:
(SCC OnLine All para 5) “5… we are of the opinion that the Hindu Succession Act, 1956, cannot be
made applicable to agricultural plots. This Act was passed by the Central Legislature in 1956 and the
only entry under which the Central Legislature had the jurisdiction to pass the Act, was Entry 5 in the
third list of the Seventh Schedule of the Constitution. This entry is as follows: - “5. Marriage and
divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all
matters in respect of which parties in judicial proceedings were immediately before the
commencement of this Constitution subject to their personal law.” This entry obviously relates only to
personal law and laws passed under this entry do not apply to any particular property. They merely
determine the personal law. In List II, Entry 18 is as follows: - “18. Land, that is to say, rights in or
over land, land tenures including the relation of landlord and tenant, and the collection of rents;
transfer and alienation of agricultural land; land improvement and agricultural loans; colonisation.”
This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws
relating to land and land tenures are therefore, within the exclusive jurisdiction of the State
Legislature. Even personal law can become applicable to land tenures if so provided in the State Law,
but it cannot override State legislation.
14. The decisions rendered by various High Courts show the divergent views in the matter. Some
High Courts have held that the provisions of Section 22 of the Act would apply to agricultural lands
and in the process have followed the reasoning that weighed with the Orissa High Court in Laxmi
Debi. On the other hand, some High Courts have held to the contrary and have followed the decisions
of the Punjab High Court in Jaswant and of the Allahabad High Court in Prema Devi9. It is the latter
line of cases which is relied upon by the learned counsel for the appellant in support of his
submissions. It must also be stated that wherever there was question of succession to tenancy rights in
respect of agricultural holdings, reference was made by some of the High Courts viz. the High Court
of Bombay in Tukaram Genba Jadhav v. Laxman Genba Jadhav to the effect of the then existing
provision under Section 4(2) of the Act. We are not going into the reasoning that weighed with
various High Courts in every case, but suffice it to say that the following chart may indicate how the
question was answered by some of the High Courts.
Sl. No. The provisions of the Act and Section 22 The Act was held to be
thereof applied to agricultural lands inapplicable to agricultural
lands.
1. Laxmi Debi v. Surendra Kumar Panda Jaswant v. Basanti Devi
2. Amar Singh v. Baldev Singh Prema Devi v. Joint Director of
Consolidation
3. Basavant Gouda v. Channabasawwa Nahar Hirasingh v. Dukalhin
4. Nidhi Swain v. KhatiDibya Jeewanram v. Lichmadevi
5. Venkatalakshmamma v. Lingamma Balkaur Singh v. Gurmail
Singh
6. Tukaram Genba Jadhav v. Laxman Genba SubramaniyaGounder v.
Jadhav EaswaraGounder
7. Bharat MachindraParekar v. Anjanabai
323
15. As regards the High Court of Himachal Pradesh, from which the present matter arises, the
Division Bench of the High Court in Roshan Lal v. Pritam Singh had considered all relevant decisions
on the point and concluded that the provisions of Section 22 of the Act would apply in relation to
succession to agricultural lands. The conclusion arrived at in the leading judgment with which the
other learned Judge concurred, was: - “56. Thus, “succession” falls within the scope of Entry 5 of
List-III and in case a narrow and pedantic or myopic view of interpretation is adopted by accepting
succession to an agricultural land, bringing it within the scope of “rights in and over land”, impliedly
no meaning would be attached to Entry 5 as each and every word of the list must be given effect to. If
there is no local law on the subject, then the special law will prevail which in the instant case is the
Succession Act. The scope, object and purpose of codifying Hindu Law is different. It is to achieve
the Constitutional mandate. There is no provincial law dealing with the subject. As such, the Central
Act must prevail.”
16. The view taken by the Division Bench was followed by the High Court in the present matter.
17. In the aforesaid background, we are called upon to decide the applicability of Section 22 of the
Act in respect of agricultural lands. Before we consider the issues in question, we must refer to the
decision of this Court in Vaijanath v. Guramma. In that case, matters pertaining to intestacy and
succession relating to joint family property including agricultural land, were dealt with by a State law
which had received the assent of the President. The following observations of this Court, are relevant
for the present purposes: (SCC p. 295, para 8) “8. There is no exclusion of agricultural lands from
Entry 5 which covers wills, intestacy and succession as also joint family and partition. Although Entry
6 of the Concurrent List refers to transfer of property other than agricultural land, agriculture as well
as land including transfer and alienation of agricultural land are placed under Entries 14 and 18 of the
State List. Therefore, it is quite apparent that the Legislature of the State of Hyderabad was competent
to enact a legislation which dealt with intestacy and succession relating to joint family property
including agricultural land. The language of the Hindu Women’s Rights to Property Act, 1937 as
enacted in the State of Hyderabad is as general as the original Act. The words property as well as
interest in joint family property are wide enough to cover agricultural lands also. Therefore, on an
interpretation of the Hindu Women’s Rights to Property Act, 1937 as enacted by the State of
Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment,
the Hindu Women’s Right to Property Act is a remedial Act seeking to mitigate hardships of a widow
regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to
receive a beneficial interpretation. The beneficial interpretation in the present context would clearly
cover agricultural lands under the word property. This Act also received the assent of the President
under Article 254(2) and, therefore, it will prevail.”
18. When the Federal Court was called upon to consider the matter, List II Entry 21 of the 1935 Act
had inter alia dealt with “transfer, alienation and devolution of agricultural land”. It was in the
exclusive domain of the provincial legislatures. The idea that the provincial legislatures were alone
entitled to deal with matters relating to “transfer, alienation and devolution of agricultural land” was
again made clear in Entry 7 of List III by expression “…succession, save as regards agricultural land”
which dealt with concurrent powers. The provincial legislature had thus exclusive competence with
regard to transfer, alienation and devolution of agricultural land. In the circumstances, the Federal
Court had answered the first question that the provisions of the Hindu Women’s Rights to Property
Act, 1937 and the Hindu Women’s Property (Amendment) Act, 1938 would not regulate succession
to agricultural lands in the provinces.
19. But the situation underwent considerable change after the Constitution of India was adopted: (i)
The subjects “transfer, alienation of agricultural land” are retained in the State List in the form of
Entry 18 but the subject “devolution” was taken out. (ii) As against earlier List III Entry 7 where the
subject, “succession” came with express qualification, “…save as regards agricultural land”, that
qualification is now conspicuously absent in comparable Entry 5 in the present List III. The
expression in Entry 5 today is “…intestacy and succession”. The changes indicated above as against
what was earlier available in List II Entry 21 and List III Entry 7 make the position very clear. The
present Entry 5 of List III shows “succession” in its fullest sense to be a topic in the Concurrent List.
The concept of succession will take within its fold testamentary as well as intestate succession. The
324
idea is, therefore, clear that when it comes to “transfer, alienation of agricultural land” which are
transfers inter vivos, the competence under List II Entry 18 is with the State Legislatures but when it
comes to “intestacy and succession” which are essentially transfers by operation of law as per law
applicable to the person upon whose death the succession is to open, both the Union as well as State
Legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254
of the Constitution of India the matter will have to be dealt with.
20. In the present case, it is nobody’s case that the matter relating to succession to an interest in
agricultural lands is in any way dealt with by any State legislation operating in the State of Himachal
Pradesh or that such legislation must prevail in accordance with the principles under Article 254 of
the Constitution of India. The field is occupied only by Section 22 of the Act insofar as the State of
Himachal Pradesh is concerned. The High Court was, therefore, absolutely right in holding that
Section 22 of the Act would operate in respect of succession to agricultural lands in the State.
21. Though, succession to an agricultural land is otherwise dealt with under Section 22 of the Act, the
provisions of Section 4(2) of the Act, before its omission, had made it clear that the provisions of the
Act would not apply in cases inter alia of devolution of tenancy rights in respect of agricultural
holdings. Thus, the effect of Section 4(2) of the Act before its deletion was quite clear that, though the
general field of succession including in respect of agricultural lands was dealt with under Section 22
of the Act, insofar as devolution of tenancy rights with respect to agricultural holdings were
concerned, the provisions of Section 22 would be inapplicable. The High Court of Bombay was,
therefore, absolutely right in its conclusion. However, with the deletion of Section 4(2) of the Act,
now there is no exception to the applicability of Section 22 of the Act. But we are not called upon to
consider that facet of the matter.
22. We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section
22 would apply in respect of succession to agricultural lands, the question still remains whether the
preferential right could be enjoyed by one or more of the heirs. Would that part also be within the
competence of Parliament? The “right in or over land, land tenures” are within the exclusive
competence of the State Legislatures under List II Entry 18 of the Constitution. Pre-emption laws
enacted by the State legislatures are examples where preferential rights have been conferred upon
certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether
conferring a preferential right by Section 22 would be consistent with the basic idea and principles is
the question.
23. We may consider the matter with the following three illustrations: - a) Three persons, unrelated to
each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of
his interest. The normal principle of pre-emption may apply in the matter and any of the other joint
holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate State
legislation.b) If those three persons were real brothers or sisters and had jointly purchased an
agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption
will have to be purely in accordance with the relevant provisions of the State legislation.c) But, if, the
very same three persons in Illustration (b) had inherited an agricultural holding and one of them was
desirous of disposing of his or her interest in the holding, the principles of Section 22 of the Act
would step in.
24. The reason is clear. The source of title or interest of any of the heirs in the third illustration, is
purely through the succession which is recognised in terms of the provisions of the Act. Since the
right or interest itself is conferred by the provisions of the Act, the manner in which the said right can
be exercised has also been specified in the very same legislation. Therefore, the content of preferential
right cannot be disassociated in the present case from the principles of succession. They are both part
of the same concept.
26. When Parliament thought of conferring the rights of succession in respect of various properties
including agricultural holdings, it put a qualification on the right to transfer to an outsider and gave
preferential rights to the other heirs with a designed object. Under the Shastrik Law, the interest of a
coparcener would devolve by principles of survivorship to which an exception was made by virtue of
Section 6 of the Act. If the conditions stipulated in Section 6 were satisfied, the devolution of such
interest of the deceased would not go by survivorship but in accordance with the provisions of the
Act. Since the right itself in certain cases was created for the first time by the provisions of the Act, it
325
was thought fit to put a qualification so that the properties belonging to the family would be held
within the family, to the extent possible and no outsider would easily be planted in the family
properties. In our view, it is with this objective that a preferential right was conferred upon the
remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he
received by way of succession under the Act.
27. We, therefore, conclude that the preferential right given to an heir of a Hindu under Section 22 of
the Act is applicable even if the property in question is an agricultural land. The High Court was right
in affirming the judgment and decree passed by the Court of District Judge, Hamirpur in Civil Appeal
No. 86 of 1994. In the end, we must also declare that various decisions of the High Courts, some of
which are referred to above, which have held contrary to what we have concluded, stand overruled.
28. The appeal is dismissed without any order as to costs.
326
27.
AIR 2019 SC 4676: (2019) 9 SCC 522
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR AND AJAY RASTOGI JJ.
SyedaNazira Khatoon
v.
Syed Zahiruddin Ahmed Baghdadi
Civil Appeal No. 4045of 2010. D/26-9-2019
Mohan M. Shantanagoudar, J. (for himself and on behalf N.V. Ramana andAjay Rastogi JJ):
Mohan M. Shantanagoudar, J.- The instant appeal arises out of a decision of the High Court of
Calcutta dated 1-10-2008 [Syed Zahiruddin Ahmed Bagdadi v. Board of Wakfs, 2008 SCC OnLine
Cal 674: (2009) 1 Cal LT 22] in the revisional application CO No. 936 of 2006, setting aside the order
dated 28-2-2006 passed by the Presiding Officer, Wakf Tribunal, West Bengal in Appeal No. 6 of
2005.
2. The brief facts giving rise to this appeal are as follows: One Syed Obaidullah Baghdadi Shah
founded a khankhah, a Mohammedan institution for imparting religious doctrine and rules of life. He
gradually became its first spiritual superior or sajjadanashin. One of his devotees, Abdur Rahim,
created a wakf in respect of certain properties by a registered deed of wakf dated 7-2-1913
(hereinafter “the wakf deed”). Written in Bangla/Bengali language, this deed provided that Syed
Obaidullah Baghdadi would be appointed as the sole mutawalli (hereinafter “original mutawalli”) of
the wakf. It also provided that the office of the mutawalli would devolve to “putropoutradikrome” of
the original mutawalli.
3. On the death of the original mutawalli, his disciple and son Syed Gyasuddin Ahmed Baghdadi
(hereinafter “Gyasuddin Ahmed”) became the sajjadanashin and mutawalli of the wakf estate. In
1977, when Gyasuddin Ahmed died, he was survived by his wife, six sons, and nine daughters.
According to his will, his eldest son Syed Badruddin Ahmed (hereinafter “last mutawalli”) was
authorised to act as the sajjadanashin for one of the dargahs in the wakf property. His name was also
recorded as the mutawalli of the wakf estate.
4. On 19-11-1992, Syed Badruddin Ahmed died, leaving behind his widow, Nazira Khatoon, and his
daughters, one of whom is the appellant herein. Crucially, he did not have any male issue. After his
death, Nazira Khatoon applied to the Board of Wakfs to be appointed as the mutawalli of the wakf
estate. Her claim was based on a trust deed dated 3-2-1984 executed by Syed Badruddin Ahmed, by
which he had appointed her to be the mutawalli of the wakf estate after his death (hereinafter “the
trust deed”).
5. By order dated 30-1-1995, the Commissioner of Wakfs allowed this application and appointed
Nazira Khatoon as the permanent mutawalli of the wakf estate. Her name was accordingly substituted
in place of her deceased husband's. However, a dispute ensued when Respondent 1 herein, who is the
grandson of Gyasuddin Ahmed and nephew of the last mutawalli, filed a writ petition, objecting to the
appointment of Nazira Khatoon. He alleged that her appointment went against the original wakf deed.
Consequently, the High Court directed the Wakf Board to decide the application submitted by Nazira
Khatoon again, after considering the objections of Respondent 1.
6. Upon consideration of arguments by both the parties, the Wakf Board passed a new resolution on
14-10-1999 observing that the wakf deed only provides for a male lineal descendant to be the
mutawalli of the wakf estate. It was observed that by appointing Nazira Khatoon as the mutawalli of
the estate, the Board committed an error, and her appointment based on the trust deed dated 3-2-1984
was in violation of the provisions of the original wakf deed. Thus, adhering to the line of succession
in the original wakf deed, the members of the Wakf Board cancelled the appointment of Nazira
Khatoon as the mutawalli of the estate. Instead, Respondent 1 was appointed as the mutawalli, being
the male lineal descendant of the original mutawalli.
7. This resolution was challenged by Nazira Khatoon in a writ application, which was transferred to
the Wakf Tribunal, West Bengal and numbered as Appeal No. 6 of 2005. After hearing both the
parties, the Presiding Officer allowed the appeal by judgment and order dated 28-2-2006. This was
done on the basis of the determination that the Wakf Board does not have the power to review its
327
earlier decision. Thus, it was held that the order cancelling Nazira Khatoon's initial appointment
amounted to a review, and was liable to be set aside.
8. Being aggrieved by this judgment and order of the Wakf Tribunal, Respondent 1 herein approached
the High Court of Calcutta by way of a revision application under Article 227 of the Constitution of
India. The High Court allowed this revision application by the impugned judgment dated 1-10-2008
[Syed Zahiruddin Ahmed Bagdadi v. Board of Wakfs, 2008 SCC OnLine Cal 674: (2009) 1 Cal LT
22], holding that the original wakf deed had to be given utmost importance. The term
“putropoutradikrome” in the wakf deed was interpreted to indicate that the office of mutawalli would
go to the sons and grandsons (through successive generations). In view of this, it was held that Nazira
Khatoon would not qualify to be the mutawalli of the said wakf estate.
9. Further, upon examination of judicial decisions and the role of the mutawalli in the Wakf Act,
1995, the Court concluded that a mutawalli does not have an independent authority to transfer his
right in the wakf to another person by creating a separate and independent instrument like a trust deed
to that effect. Given that the original wakf deed did not accord such a right of transfer to the
mutawalli, it was held that the trust deed created by the last mutawalli in favour of his wife could not
be given effect. Thus, Respondent 1 was held to be entitled to the office of the mutawalli of the wakf.
10. In view of this factual background, two questions arise for consideration before this Court. First,
whether the mutawalli can transfer his office to another person by creating a trust deed, despite the
existence of a wakf deed providing a line of succession to the office. Consequently, it is to be seen
whether the trust deed in favour of Nazira Khatoon is valid. Second, whether the female descendants
of the last mutawalli (including the appellant herein) fall within the purview of the term
“putropoutradikorme” as stated in the wakf deed, so as to qualify as a mutawalli of the wakf estate.
11. The counsel for the appellant argued that the transfer of the office of mutawalli is in accordance
with the wakf deed, which intends for female descendants to be included within the term
“putropoutradikorme”. In this regard, he relied on the Bangla-to-English translation of the wakf deed
given by the original translator appointed by this Court. According to this translation, the office of the
mutawalli would go from generation after generation (translated from putropoutradikorme) of the
original mutawalli. He also relied on Dev’s Bengali-to-English Dictionary to argue that
“putropoutradi” conjunctively means future generations, posterity, or descendants, and that the term is
therefore agnostic to whether such descendant is male or female. Thus, the wife of the last mutawalli,
Nazira Khatoon was eligible to be the mutawalli under the wakf deed, and consequently, the appellant
herein also has a right to be appointed as the mutawalli.
12. Per contra, the counsel for Respondent 1 submitted that the term “putropoutradi” should be
understood in light of the individual meaning of the word “putro”, which means son. Thus,
“putropoutradi” should be read to include male descendants only. He argued that the last mutawalli
was aware of this restriction on mutawalliship under the original wakf deed, and knowingly executed
the trust deed appointing his wife (Nazira Khatoon) as the mutawalli. Such appointment was wrongful
as it goes against the express terms of the wakf deed. The learned counsel further submitted that since
Nazira Khatoon died on 28-5-2009, during the pendency of her special leave petition before this
Court, the right to sue does not survive in her legal representatives under Order 22 of the Code of
Civil Procedure, 1908. Thus, the appellant herein (daughter of Nazira Khatoon) does not have a right
to sue in this appeal.
13. We have heard the arguments advanced by both sides and perused the material on record.
14. The first question to be considered is whether a mutawalli has the right to transfer his office to
another person, as was done by the last mutawalli, Syed Badruddin Ahmed through the creation of the
trust deed. In this regard, it would be useful to appreciate the role of the mutawalli of a wakf.
15. Under Mohammedan Law, when a wakf is created, all rights in the property pass from the wakif
or dedicator to the God. The mutawalli is only a manager of such property and does not have any
rights in it. This role envisaged for a mutawalli finds clear exposition in Ahmed G.H. Ariff v. CWT
[Ahmed G.H. Ariff v. CWT, (1969) 2 SCC 471], where a Three-Judge Bench of this Court observed
as follows: (SCC p. 476, para 6) “6. the moment a wakf is created, all rights of property pass out of
the Wakif and vest in the Almighty. Therefore, the Mutawalli has no right in the property belonging to
the wakf. He is not a trustee in the technical sense, his position being merely that of a superintendent
or a manager. A Mutawalli has no power, without the permission of the Court, to mortgage, sell or
328
exchange wakf property or any part thereof unless he is expressly empowered by the deed of wakf to
do so.”
16. Thus, it is well settled that a mutawalli only acts in a managerial capacity for the wakf. As regards
his power to transfer his office to another person, he cannot undertake such a transfer, unless such a
power is expressly given to him by the wakif in the wakf deed. The following excerpt from Mulla's
Principles of Mohammedan Law [Mulla's Principles of Mohammedan Law (21st Edn., 2017) at p.
298.], is relevant in this context: “S214: Office of mutawalli not transferable. -A mutawalli has no
power to transfer the office to another, unless such a power is expressly conferred upon him by the
founder…”
17. This view is also echoed by other scholars including Asaf A.A. Fyzee. [ Asaf A.A. Fyzee,
Outlines of Muhammadan Law (5th Edn., Tahir Mahmood) at p. 249.] We may also fruitfully refer to
two decisions of the High Court of Kerala in this regard. In BadagaraJumayathPalliDharas Committee
v. PeedikayalakathUmmerkutty Haji [BadagaraJumayathPalliDharas Committee v.
PeedikayalakathUmmerkutty Haji, 2001 SCC OnLine Ker 262: AIR 2002 Ker 56], the High Court
had to decide the validity of a similar agreement, by which the mutawalli had transferred his office to
a society. Adverting to the aforementioned excerpt from Mulla's Principles of Mohammedan Law
[Mulla's Principles of Mohammedan Law (21st Edn., 2017) at p. 298.], the Court observed that there
cannot be any transfer of mutawalliship and held the agreement of transfer to be invalid.
18. In Abdul Latheef K.A. v. K.P. Abdurahiman [Abdul Latheef K.A. v. K.P. Abdurahiman, 2013
SCC OnLine Ker 17890: (2014) 1 KLJ 329], the Kerala High Court had occasion to deal with the
validity of a transfer of the mutawalli’s office to a Committee, and held the same to be invalid. The
following observations from the decision are relevant: (SCC OnLine Ker para 24) “24. The upshot of
the discussions is that Muhammadan Law does not generally empower a mutawalli to transfer his
right during lifetime. There is a clear distinction in the matter of powers between the appropriator or
the waqif who himself becomes the first mutawalli and a mutawalli appointed by the waqif for
administering the wakf. Although the waqif may resign his office as first mutawalli and out of his
own residuary or general powers as waqif appoint his own successor, the mutawalli appointed by the
waqif or any other person succeeding such a mutawalli has no such unbridled power. All the leading
authorities on Muhammadan Law declare that a mutawalli cannot assign or transfer his office to
anyone or appoint another during his lifetime, unless he is clothed with powers which are so general
in nature.”
19. In light of these pronouncements and authoritative texts on Mohammedan Law, it is more than
clear that the mutawalli does not have a general power to assign or transfer his office to another
person, unless he is given such powers by the wakf deed itself. In the instant case, the wakf deed does
not give the mutawalli any such power to select another person as the future mutawalli on his demise,
by creating a trust deed or any other instrument to that effect. In the absence of such an authorization,
the transfer of the office of mutawalli by Syed Badruddin Ahmed by way of a trust deed in favour of
his wife, clearly went beyond the purview of his powers and the settled principles of Mohammedan
Law.
20. The succession of the office of mutawalli should be in accordance with the intention of the wakif
who created the wakf, and the same cannot be subverted through any other document contrary to the
intention of the wakif. Here, given that Nazira Khatoon was the wife of the last mutawalli and not a
direct descendant in the family, she would not have been entitled to the mutawalliship even if the
wakf deed were to be interpreted broadly to include female descendants. Thus, the creation of the trust
deed to alter the succession of the office of mutawalli in her favour, is tantamount to changing the
terms of the original wakf deed. It is a subversion of the intent underlying the wakf deed and is illegal,
as it goes beyond the powers vested with the mutawalli. The claim of late Nazira Khatoon to the
mutawalliship of the said wakf estate is therefore unsustainable.
21. The second question to be considered is whether the daughters of the last mutawalli and Nazira
Khatoon, including the appellant herein, would qualify to be the mutawalli under the express terms of
the wakf deed. For this, the term “putropoutradikorme” requires to be interpreted.
22. Different translations of the wakf deed have been produced before us. While the translation
adduced by the appellant at Annexure P-1 interprets “putropoutradikrome” to mean “through
329
successive generations or successors”, the translation adduced by Respondent 1 at Annexure R-1
interprets it as “sons and grandsons in succession”.
23. We are inclined to agree with the interpretation put forth by the learned counsel for the
respondent(s). Admittedly, the official translation before this Court indicates that the term
“putropoutradikrome” means future generations or descendants. This is also supported by the
dictionaries cited by the counsel for the appellant. However, it is to be noted that the same source also
shows that the word “putro” means son and grandson. In reading and interpreting the term
“putropoutradikrome”, the meaning of the individual words must also be considered and accounted
for. A combined reading of these terms lends support to the view that “putropoutradikrome” means
son and grandson, generation after generation, and therefore does not include any female descendants.
24. Following this meaning, it becomes clear that the original wakf deed did not envisage female
descendants to fall within the purview of these words and hold the office of mutawalli. Thus, Nazira
Khatoon or her daughters (including the appellant herein) cannot stake any claim to the mutawalliship
of the wakf estate. Instead, being the nephew of the last mutawalli, Respondent 1 herein is a male
lineal descendant of the original mutawalli, and is therefore entitled to hold the office of mutawalli as
per the wakf deed. While it is not in dispute that women can also hold the office of mutawalli under
Mohammedan Law, on the facts at hand, it is clear that the wakif intended to create the mutawalliship
only in favour of male descendants, from generation to generation.
25. In view of the foregoing discussion, we uphold the impugned decision of the High Court of
Calcutta dated 1-10-2008 [Syed Zahiruddin Ahmed Bagdadi v. Board of Wakfs, 2008 SCC OnLine
Cal 674: (2009) 1 Cal LT 22] in the revisional application CO No. 936 of 2006 affirming the
cancellation of the appointment of Nazira Khatoon as the permanent mutawalli of the wakf estate. The
instant appeal is dismissed accordingly.
330

BLJ4.3 Reading Material

Uploaded by

Copyright:

Available Formats

BLJ4.3 Reading Material

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

BLJ4.3 Reading Material

Uploaded by

Copyright:

Available Formats

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

BLJ4.3 LAW OF INTESTATE AND

B.A.LL.B.(Honours in Adjudication and Justicing)

Designed and Developed by:

Dr. Ashwini Kelkar

Dr. Ashwini Kelkar

A List of Printed Sources for in-depth Research on Family related Issues

Agarwala A.K. Hindu Law

Ahmad Aqil Mohammedan Law

Rao Kande Prasada The Law relating to Marriages of Christians

1 [1926] AIR Nag 81, SC 22 NagLR 5, FB.

1 [1949] AIR Nag128, SC [1948] Nag 775.

1 (1951) 54 Bom LR 55, SC [1952] AIR Bom 160.

1 Joseph R. Nolan et al., Black’s Law Dictionary, 6thed. 1990, p. 335.

1 (1863) 9 MIA 539.

1 (1902) 25 Mad. 149.

1 (1990) 186 ITR 475.

1 P.V. Kane, History of Dharmasastra, Vol. III, 3rded. 1993, p. 591.

1 Simone de Beauvoir, “The Second Sex”, (1972 rep.1987).

1 Gurupad v. Hirabai AIR 1978 SC 1239.

1 (1985) ASC 716.

1 Kamala v. Ochhavalal AIR 1965 Guj. 84.

1 AIR 1977 SC 1944, 1945.

1 Gurupad v. Hirabai AIR 1978 SC 1239.

1 Narada, 1, 2, 4, 5, SBE vol. 33, pp. 43-44.

1 Brihaspati, XI, 47, SBE, vol. 33, p. 328.

1 Manu, VIII, 158, SBE, vol. 25, p. 282.

1 Mitakshara, II, 48. Vide Bhattacharya, HINDU LAW, 2nded., p. 247.

1 AIR 1959 SC 282 : (1959) SCR 1384.

1 Manomi Babuasin v. Modun Mohun (1885) 13 IA 1, 17-18.

1 (1983) 144 ITR 18 (AP).

1 AIR 1986 SC 1753 : (1986) 3 SCC 567.

1 Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam AIR 1997 SC 3562.

1 Section 3 of the Child Labour (Prohibition and Regulation) Act 1986.

1. (1866) XI MIA 39.

1. AIR 1980 P&H 334.

1. Id., para 11.

1 AIR 2005 SC 785 : (2005) 2 SCC 388.

1 C. Civ. 1421 (France).

EQUAL PROPERTY RIGHTS OF DAUGHTER UNDER HINDU LAW: A SOCIO-

 Professor of Law and Vice-Chancellor, Maharashtra National Law University, Nagpur.

1 Ved Prakash Varma, PHILOSOPHICAL REFLECTIONS: ESSAYS ON SOCIO-ETHICAL PHILOSOPHY

1 Section 6, the Hindu Adoptions and Maintenance Act 1956.

1 2005 (2) SCC 388.

1 AIR 2016 SC 4599.

1 AIR 2018 Del 54.

1 Section 12(c), the Hindu Adoptions and Maintenance Act 1956.

1 AIR 2010 Kant 124, 147-148.

1 AIR 2014 Guj 185, 186.

1 AIR 2016 SC 769, 776-777.

1 AIR 2018 SC 721, 725.

1 Section 10(iv), the Hindu Adoptions and Maintenance Act 1956.

1 Manu, IX, 166, SBE, Vol. 25, p. 361.

1 Manu, IX, 47, SBE Vol. 25, p. 335.

1 Adurmoni v. Chaudhary (1878) 3 Cal 18.

1 AIR 1979 Bom 176.

1 AIR 2010 SC 2933, p. 2938.

1 AIR 1954 SC 176, p. 178.

1 AIR 1996 SC 1963: (1996) 4 SCC 76, pp. 101-102.

1 1994 (2) HLR 188 (MP).