Family Law II Exam Notes

http://www.scribd.com/doc/33115992/2-Hindu-Law-of-Coparcenary-and-Its-Composition  basic concept of coparcenary..

http://punjabrevenue.nic.in/hsuccact(1).htm#Distributionofpropertyamong1 ( Hindu Succession Act, 1956 ) Not sure if it includes 2005 Amendment

http://www.lawyersclubindia.com/articles/Concept-of-Karta-in-Joint-Hindu-Family-4678.asp ( Powers of Karta in a Hindu Joint Family )


(A) HINDU LAW OF JOINT FAMILY

1. Joint Hindu Family and Hindu Coparcenary
The Mitakshara joint family is a unique contribution of Hindu law which has no parallel in any ancient or modern system of law. Whatever the sceptic may say about the future of the HJF, it has been and still continues to be, the fundamental aspect of life of Hindus. In Hindu law, there is a presumption that every family is a joint Hindu Family

The males in a joint hindu family upto four generations from a common male ancestor are known as coparceners and they acquire a right by birth in the joint hindu family property. The group of males is known as coparcenary.

(a) Concept of HJF and coparcenary under Mitakshara and Dayabhaga law and their incidents.
(b) Judicial and Legislative Trends

(1) Commissioner of IT vs Gomedalli Lakshminarayan, AIR 1935 Bom 412
Property in the hands of sole surviving coparcerner could be taxed as tht of HUF - prsnt case JF consisted of Son, his wife and his mother - thus the son ws the sole surving coparcener - issue -> whtr property in the hands of sole surviving coparcener shld be taxed as his individual property or tht of HUF - A HUF is taxed as a unit, the individual members thereof are nt liable to be chargd in respect of wht thry recieve as their share of Jt income - contended tht HUF must consist of 2 male members i.e. thr shld be co parcerners, court however obsrvd -SC in its recent decision held nothing in the scheme of Wealth Tax Act to suggest tht a HUF as assessable unit must consist of atleast two male members ( Narendranath vs Commr Wealth Tax, AIR 1970, SC 14) - JF status of a family does nt automatically come to an end merely because fr the time being thr is only 1 male member - here a sharp distinction bw the expression HUF & Coparcenary (consisting of male members ) - futhr contended tht assessee ws sole surviving coparcener & thr4 free to deal with property any way he liked, so hence no HUF - court hwevr obsrvd tht under Hindu law coparcener hs wider powers to deal with the proprty but subject to rights of female members eg. maintenance, marriage, expenses, adoption by widow, etc - court noted tht large tax exemption is allowed in case of HUF, mere liberal allowance is presumably given becoz whole family income wud nt go to one individual but a small portion only for each member, also incase of single male member maintaince of females might absorb a large share of income
Comments - Even in cases of JF which consists no male member and thr are only widows, even on the death of the sole surviving coparcener, the JF does nt come to an end so long as it is possible in nature or in law(i.e. adoption) to add a male member to it (Sitabai vs Ramachandra AIR 1970 SC 343) - Paras Diwan -> whr thr is a jt family consisting on female members and male member, the male member can treat the property almost as his separate property, as long as another male member doesn't come into existence, it assumes character of self accquired property, subj to rights of maintanence of female members - but fr purpose of tax such a family will be called HUF


(2) Moro Vishwanath vs Ganesh Vithal (1873) 10 Bom 444
A partition can be demanded by one or more than 4 degrees removed frm the acquirer or original owner of the property sought to be divided but tht it cannot be demanded by one more than 4 degrees removed frm last owner, however remote, he may be frm the original owner throf. Becoz coparcenary extends to 4 degrees frm last owner (extinction of coparcenary).
Plaintiff's & defendants are descendants of one Udhav, the original acquirer & common ancestor of the property in dispute. Former r beyond & latter within 4th degrre from Udhav. Ganesh(plaintiff), the great grandson of Udhav who ws removed more than 4 degrees frm Udhav, demanded partition of the JF property frm Moro(defendant). -> appellants contention ws that partition in any case could nt be demanded by descendants of a common ancestor more than 4 degrees removed, of property originally descended frm him - thus issue ws whthr a person remvd more than 4 degrees frm original acquirer of the property cn demand paritition of the JFP? - It ws urged tht 'law of partition' is inseparably connected with 'law of inheritance' which is clearly founded on the spiritual benefit which certain persons according to the religious ideas of Hindus are supposed to be capable of conferring on the deceased by the gift of funeral cake; tht this capacity of benefitting the deceased does nt extend beyond the 4th in descent. Many says Chap IX, 186 "but the 5th hs no concern with the gift of the funeral cake"; tht this is made clearer by Kulluka in his commentary and tht 5th cannot inherit during the lifetime of the 4th in descent, no neither cn he claim any partition frm the latter - to this it ws replied tht authorities quoted do nt support contention of appellants - doctrine of ancestral property vesting by birth in one's son, grandson & grt grnd son, ws overlooked by the othr side; tht if A died, leaving two or more sons, & the same thing happened regularly fr several generations, all the descendants of A living in the state of union as in this case the authorities quoted did nt prevent any such descendants below the 4th demanding a partition of the JFP; they only went so far as to lay down tht if A died, leaving B a son, E a grnd son, & G a grt grnd son, & J who stnds 5th in descent fr A cannot demand a partition of A's property, becoz A hd nt vested in him by birth any interest in such property - furthr d text which apparently limits the right to partition of the 4th in descent refers only to cases of reunited coparceners & nt to undivided one's (as in presnt case)
Court gave some illustrations - (i) A orginal owner of prop in dispute, 3 lineal descendants B(son), C(grndson), D(grt gndson) and D hd two sons E & F (grt grt grndsons). No partition of the family property hs taken place & D, E & F r living in a state of union. Cn E & F compel D to make over to them their share of the ancestral property? According to the law prevailing they can, sons being equally interested with their fathr in ancestral property. In the same way supp B & C die, leaving A & D members of an undivided family after which A dies whrupon the whole of his property devolves upon D, who thraftr hs 2 sons E & F. They or either of them, can likewise sue thr father D fr partition of the said property, it being ancestral. (ii) A is the original owner of the property in dispute. His 3 lineal descendants include B(son), C (grndson) & C's two sons; D & D1(grt grndsons) . Nw supp B & C die leaving A, D & D1 members of an undivided family aftr which A dies, whrupon the whole of his property devolves upon D & D1 jointly & tht D thraftr hs two sons E & F, leaving whom D dies. A suit against partition of JF property wd be perfectly open to E & F or even to G (son of E) & F, if E died befr the suit - it wud be a suit against D1 by a deceased brother's sons or son and grndson, but E & F r both 5th & 6th in descent frm the original owner of the property whereas D & D1 r only 4th. Suppose however tht A dies after D leaving a grt grndson D1 & two sons of D i.e. E & F, in this case E & F could nt sue D1 fr partition of property descending frm A, becoz it is inherited by D1 alone, since E & F being sons of a grt grndson are xcluded by D1, A's surviving grt grndson, the right of representation extending nt farther frm grt grndson
Court obsrvd:- The rule then is nt tht a partition cannot be demanded by by 1 more than 4 degrees removed frm the acquirer or original owner of the property but tht it cannot be demanded by one more than 4 degrees removed frm the last owner, however remote, he may be frm the original owner thereof.


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2. Property in Hindu Law

Kinds and Sources of property;
Coparcenary and separate property;
Gift from paternal ancestor and property inherited from maternal ancestor

-> Gift or will by father of self accq prop to Son :- Two imp principles of Hindu Law (1) Every Hindu hs full power of disposal over his separate property (2) When separate or self-acquired propery of a Hindu devolves on his son by inheritance or by partition, the son takes it as ancestral property in which his son has an interest by birth - difficulty arises when father makes a gift(or will) of his separate property becoz in tht case the property does nt pass by inheritance and thus the question is whtr such property is 'ancestral property' or 'separate property' in the hands of donee(son).


(3) Muhammad Husain Khan vs Babu Kishva Nandan Sahai, AIR 1937 PC 233 ( Prop inherited frm Maternal Grnd father)
Property inherited frm maternal grandfather cannot be said to be ancestral. The ancestral estate in which under the Hindu law, a son acquires jointly with his father an interest by birth, must be confined to the property descended to the father frm the male ancestor in the male line
facts:- one Ganesh Prasad inherited certain village property frm his maternal grndfthr, under a will made by Ganesh the said property ws to go to his son, Bindeshri Prasad for his life and on his death, it ws to vest in his widow Giri Bala - in the excution of a decree fr money obtained by a creditor against Bindeshri Prasad, the said property ws sold in court auction. Bindeshri filed a suit claiming possession of the property on the grnd tht the sale ws vitiated by fraud, during the pendency of the proceeding, Bindeshri & his widow Giri Bala ws brought on record - widow asked fr leave to amend the plaint on the grnd tht her husband got the estate only fr his life & tht on the latter's death his life interest came to an end, & the devise(will) in her favor became operative, making her the absolute owner of the property - she accordingly prayed tht even if the sale is held to be binding upon her husband, it shld declared to be inoperative as against her rights of ownership in the property - the validity of the will executed by Ganesh is challenged by the appellant on the grnd tht the testator hd no authority to dispose of the property as it belonged to a Hindu coparcenary consisting of Ganesh & his son - Court obsrvd - word ancestral ordinarily means an ascendant in the maternal as well as paternal line - but the ancestral estate in which under Hindu law a son acquires jointly with his father an interest by birth, must be confined to the property descended to the father frm his male ancestor in the male line - as shown it is the property of paternal grndfthr or pitamaha in which jt interest is thr - court furthr obsrvd - primary reason fr this is the Hindu society ws patriarchal in nature which means that fr mother's father the primary heir wud be the son & hence any inheritance by the daughter's son wud be obstructed heritage - thus estate inherited frm maternal grndfather is obstructed heritage - thus estate inherited frm maternal grndfthr is 'separate property' & one hs full power of disposition over it, so a device(will) made by person over his separate property is fully operative
Present case, the estate which ws inherited by Ganesh Prasad frm his maternal grndfathr cannot in their Lordships' opinion be held to be ancestral property in which his son hd an interest jointly with him - Ganesh Prasad consequently hd full power of disposal ovr tht estate, and devise made by him in favor of his dauter-inlaw Giri Bala cud nt be challngd by his son or any othr person - on the death of her husb, the devise in her favor became operational & she became absolute owner of that property; & the sale of tht property in execution proceedings against her husband cud nt adversely affect her title
Venkayamma v Venkatanarayanamma(1902) 25 Mad 678 - wrongly decided case - two bros inherited certain property frm maternal grndfathr one of them died, without a male issue & his widow claimed his share by inheritance while othr brother claimed by survivorship - Privy C held tht it ws jt family property and passed by survivorship to brothr
Maktul vs Manbari (AIR 1958 SC 241) - SC held tht property inherited by a person frm his maternal grndfather is nt ancestral qua his descendants


(4) C.N. Arunachala Mudaliar vs C.A. Muruganatha Mudaliar, AIR 1953 SC 495 (Gift or will by father of self accq prop to Son)
Mitakshara father is nt only competent to sell his self acquired property to a stranger without the concurrence of his sons but he can make a gift of such property to one of his own sons to the detriment of another; and he can make even an unequal distribution amongst his heirs. in view of this settled position of law, it is nt possible to hold tht such property bequeathed or gifted to a son must neccesarily & under all circumstances rank an ancestral property in the hands of the donee in which his sons wud acquire co-ordinate interest
Case in issue - father - self acquired property by gift inter vivos or by will to one of his sons the son will take it as ancestral property and son's son will have interest in it or not? The will in this case recites the testator is aged 65yrs & his properties are all his own which he acquired frm no nucleus of ancestral funds - his 3 sons r to enjoy the properties mentioned in the will, allotted to them with absolute rights & with powers of alienation such as gift, xchange, sale etc frm son to grndsons heriditarily. SC after considering the texts & various decisions of the HCs said tht the answer to the ques primarily depends upon the INTENTION OF THE FATHER. Court held that
(i) when a person recvs a gift, he rcvs it nt becoz he hs any legal rite but becoz his father chose to bestow a favor on him which he cud hv bestowed on any othr person as well - expression 'obtained thrgh favor of father which occurs in Placitum 28, S.4 of Mitakshara is very significant. When he makes a gift of separate property he has an absolute discretion (ii) futhr Mitakshara hs placed fathers gift under a separate catergory and hs declared them exempt frm partition. It ws contended tht such gifted property must be held partible as it does nt come within the defn of self acquisition, as such gift cant be said to be acquired by son w/o detriment to fathr's estate, it cannot be regarded as self acquired property & consequently cannot be exempt frm partition, court rejecting this argument said tht the father's gift being itself an exception, provisions in Placitum 28 cannot be read as requiring tht gift must also be w/o detriment, fr it wud be a palpable contradiction to say tht thr cud be any gift by a father out of estate w/o any detriment to estate. (iii) as Mitakshara father hs complete disposition of self accq prop, it must follow as a neccessary consequence tht fathr is quite competent to provide expressly when he makes a gift, either the donee wud take it exclusively fr himself or the gift wud be fr the benefit of his branch of family - thus the question primarily depends upon the intention of the father (iv) Intention is to be gathered frm the terms of the deed, incase father hs nt expressed his intention clearly then the intention is to be gathered frm the language of the deed & the surrounding circumstances, thus if it is shown tht so called gift ws nt a gift but an integral part of a scheme of partition then the donee-son will take the property as JF property, on the othr hand if the father hs expressed a clear intention in the deed tht the son wil take it as his separate property, the son will take it accordingly. (v) Present case will expressly vests son with absolute rights no ref made to son's son, thus father did nt intend son to take gift as ancestral property (vi) property gifted by father to son cud nt become ancestral property in the hands of the donee simply by reason donee got it frm father as ancestor , theory of equal ownership nt applicable to father's gifts as father hs a predominant interest in his self acquired property

(5) Smt. Dipo vs Wassan Singh, AIR 1983 SC 846
The property held by sole surviving coparcener may constitute his 'separate property' and on his death it will devolve by succession on his heirs, and any custom giving preference to collateral would be void. The character of the property varies, depending upon who the claimant is.
2 brothers inherited property frm their father, a partition took place between them, one brothr X hd a daughter and a son, his son took X's properties by survivorship on X's death, but the son died without leaving any male descendants, thrfr his sister (X's daughter) claimed the properties by succession. However sons of othr brother Y raised a dispute tht they were the rightful owners of X's property, they contended tht property in the hands of X's son were ancestral property and in Punjab, a female cannot own ancestral property.

(6) Commissioner of Wealth Tax vs Chander Sen, AIR 1986 SC 1753
Son inheriting the separate property frm his father, grnd father or grt grnd fathr, under HSA,1956 wud take it as his exclusive or absolute property, with no rights of his male descendants over it. Son does not inherit the property as Karta of his branch but does it in his individual capacity as the son of the intestate, nt as the representative of his male issue.
Question in this case ws whtr income/asset which a son inherits frm his fathr dying intestate (w/o making a will) when separated by partition (i.e. the separate property of father), the same shld be assessed as income of HUF of son or of his own individual income.
Facts:- family comprised of fathr, his son & grndsons, partial partition effectd & the fathr & the sons carried on their respective businesses, on father's death, the son inherited his separate properities by suvivorship. Son(Chander Sen) ws nw the Karta of his family comprising two sons, in the karta's capacity he filed a return of his net wealth & showed the JF income(incl the one tht he hd got by survivorship) but did nt include in it, property inherited frm his father on grnds tht it ws his separate property


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3. Karta

Position of Karta in HJF is sui-generis. He occupies a very important position. His position is so unique that there is no office or institution in any other system of the world that is comparable with it. The Judicial Committee of the Privy Council in Hunoomanpersaud Panday vs Mussumat Babooee Munraj Koonweree (1856 ) 6 Moore's I.A. 393 had discussed the extent of Karta's power in relation to HJF property.
(a) Who can be a Karta
(b) Position of a Karta
(c) Powers,duties and liabilities of karta

(7) M/s Nopany Investments (P) Ltd vs Santokh Singh (HUF), 2007 (13) JT 448
Ordinarily, the right to act as Karta of the HUF is vested in the senior most male member but in his absence, the junior members can also act as Karta in exceptional circumstances.
Issue ws whtr a younger coparcener cud file the suit fr eviction - in the capacity of Karta of a HUF when admittedly an elder member of the aforesaid HUF ws alive.
Court obsrvd in Sunil Kumar vs Ram Prakash (1988) 2 SCC 77, it ws laid down tht, in general, the father of a family, if alive, and in his absence the senior member of the family wud be entitled to manage the jt family property.
In Trivbhovan Das vs Gujarat Revenue Tribunal (1991) 3 SCC 442, the court obsrvd tht a younger member of the JF can deal with the JF property as manager in the following circumstances (i) senior member or the Karta is nt available (ii) whr the Karta relinquishes his right expressly or by neccessary implication (iii) in the absence of the manager in exceptional & extra ordinary circumstances such as distress or calamity affecting the whole family & for supporting the family (iv) in the absence of the father (a) whose whrabouts were nt known (b) who was away in a remote place due to compelling circumstances & his return within a reasonable time ws unlikely or nt anticipated
Books on Principles of Hindu law by Mulla and Shri SV Gupta on "Hindu law" wherein it hs been observed tht ordinarily, the right to act as the Karta of HUF is vested in the senior most male member but in his absence, the Jr members can also act as Karta
Present case Dhuman Raj Singh, the senior most member of the HUF ws settled in UK, nt in position to handle JFP -thrfr power of attorney to Jasraj Singh, further more no protest frm Dhuman Raj Singh or by any member of the HUF to the filing of the suit by Jasraj Singh - thrfr nt open to tenant to raise question of maintainability of the suit at the instance of Jasraj Singh


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4. Alienation of Joint Hindu Family Property

Ordinarily, neither karta nor any other coparcenar singly possesses full power of alienation over the joint family or over his interest in the joint family property. It is now settled that karta can alienate the joint Hindu family property in exceptional circumstances, i.e. legal neccessity and benefit of estate.

(a) Alienation by karta - sale, mortgage, gifts and wills
(b) Alienation by father
(c) Alienee's rights duties and remedies
(d) Pious obligations of the son

(8) Hunoomanpersaud Panday vs Mussumat Babooee Munraj Koonweree (1854-1857 ) 6 Moore's I.A. 393 [legal neccessity]
Case is a guide to all those who hd limtd powers of disposal over any property. The power of the guardian/manager/karta fr an infant heir to charge an estate, which is nt his own, is a ltd & qualified power. Burden of proof is on the alienee/transferee/lender to show tht he acted bona fide & tht thr ws neccessity
Facts:- A certain mortgage executed by a widow in her character of the guardian of her infant son ws challenged by the son on becoming major on thr grnd tht it is inalienable by the act of the guardian, and so he is nt liable fr it - the said mortgage ws made fr the payment of arrears of revenue due to the govt - thus it ws fr the benefit of the minors estate to prevent a sequestration & probable confiscation due to non-payment of govt revenue
PC obsrvd & decided :- 5 propositions (i) the power of the guardian/manager fr an infant heir(or the power of karta) to charge an estate which is nt his own, is under the Hindu law, a ltd & qualified power, it can only be exercised rightly in the case of legal neccessity or for the benefit of estate (ii) incase a guardian/mngr makes alienation as a prudent man, in order to benefit the estate, the bonafide lender or alienee is nt affected by the previous mismanagement of estate, provided the lender or alienee ws nt a party to mismanagement. In othr words he shldn't hv acted malafide. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it in the particular instance, is the thing to be regarded (iii) if alienee acts bonafide & makes proper enquiries, the real existence of an alleged sufficient & reasonably credited neccessity is nt a condition precedent to the validity of alienation. In othr words, the alienee's position is nt affected by the fact tht if the minor's property were properly & better managed, the danger or neccessity wud hv nt arisen (v) The alienee is nt bound to see as to the actual application of money fr the legal neccessity - he is nt an administrator of fund (vi) Guardian/mngr under a legal obligation to make an alienation as a prudent man, but the mere creation of a charge on the minor's property fr securing properly a debt cannot be viewed as imprudent management becoz money to be secured on any 'estate' is likely to be obtained on easier terms than a loan which rests on mere 'personal security'
In othr words whenever an alienation is challenged it is fr the alienee to show tht thr ws neccessity - it is becoz when one deals with a person whom one knws or is supposed to knw to be a person of qualified powers, its one duty to satisfy oneself tht such a person hs power to make alienations - however what he is reqd to prove is - either thr ws actual need or tht he made proper enquires as to the existence of the need & acted honestly - reasonable enquiry proved then immaterial whtr actual need ws thr or nt or tht he ws decieved
In present case, thr ws no suggestion tht the debt of infant's father ws contracted fr illegal or immoral purposes, during her mngmnt the widow(guardian/mngr) with the object of saving the estate, of paying the debt of her predecessors executed the mortgage bond. No greater benefit cud be conferred upon an estate than to save it frm extinction by sequestration, the payment of arrears of revenue due to the govt by mortgage bond ws in the nature of salvage expenditure. Thrfr alienation will be binding on the son - moreovr a bond of this nature does nt extinguish the title of the infant, it follows then, as a matter of justice & equity tht the mortgage bond is valid & of effect.


(9) Sunil Kumar vs Ram Prakash (1988) 2 SCC 77
Right to challenge alienation does not extend to right to obstruct alienation - A coparcener cannot move court to grant relief by injunction (temporary or permanent) restraining the Karta frm alienating the coparcenary property fr a permitted purpose as ascertained by the Karta - An injunction cannot be granted when a party cud obtain an efficacious relief by any othr usual mode of proceeding (except in case of breach of trust) - The coparcener hs adequate remedy to impeach the alienation made by the Karta


(10) Dev Kishan vs Ram Kishan, AIR 2002 Raj 370
For alienation to be valid under legal neccessity thr must be existence of lawful purpose - thus a debt incurred fr the marriage of a minor child cannot have said to be fr lawful purpose, as a child marriage is restrained by law & is opposed to public policy.
Facts case - father excuted mortgage, a sub mortgage and sale of 2 houses (JFP) worth around Rs 8000-9000 fr a consideration of Rs 400-900 fr the alleged neccessity of marriage of his 3 minor children who were in age grp 8 - 12 yrs, court held tht whr the marriage of the minor ws performed in violation of the provisions of the Child Marriage Restraint Act, the debt having been incurred fr tht unlawful purpose, cannot be regrded as a lawful alienation - opposed to public policy - similar views Bom HC in Rambhau Ganjaram & Orrisa HC in Maheshwar Das vs Sakhi Dei - Calcutta HC Hansraj Bhuteria - appl made on behalf of minor fr marriage of his minor sister with a minor boy, court shld nt sanction such expenditure
Court did nt found the view taken by Allahabad HC in Parasram vs Smt Naraini Devi and tht by Punjab & Haryana HC in Rulia vs Jagdish to be correct - latter case Karta effected sale of ancestral land to make provision fr the marriage of his son who ws nearing age when he cud hv been lawfully married, sale ws a valid sale fr neccessity
Present case - court also reasoned tht members of the family were earning & tht thr ws no need to sell the family property to raise the money - also property ws grossly undervalued & if thr ws need for money trnsfrs shld hv been effected fr an adequate consideration

(11) Balmukand vs Kamla Wati, AIR 1964 SC 1385
When the alienation of JFP by the Karta ws nt fr any legal neccessity or benefit to estate, the said alienation is voidable at the instance of the coparceners

(12) Guramma Bhratar Chanbasappa Deshmukh vs Mallappa Chanbasappa, AIR 1964 SC 510
(gift of immovable property by a father coparcener in favor of his daughter)
Various judicial decisions & hindu texts recognize the validity of a gift of a reasonable extent of JFP(immovable) to a daughter out of love & affection under varying circumstances. This right of daughter hs crystallized into a moral obligation - but a gift of immovable property, even to a small extent & out of love & affection, to a relative/stranger, is nt permitted by Hindu law - tht is so when pious purpose is said to include religious & charitable purposes.


(13) R Kuppayee vs Raja Gounder (2004) 1 SCC 510
Father can make a gift of ancestral immovable property to his daughter within reasonable limits. he can make such a gift at the time of her marriage or even long after her marriage - a gift of 1/26th share of the total holding of the family cannot be held to be either unreasonable or excessive under any circumstances


(14) Arvind & Abasaheb Ganesh Kulkarni vs Anna & Dhanpal Parisa Chougule, AIR 1980 SC 645
Whr ancestral property is sold fr the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact tht a small part of the consideration is nt accounted fr will nt invaliate the sale - thus fr an alienation to be valid it hs to be seen tht the consideration recvd is adequate & tht it hs been properly utilized i.e. thr ws legal neccessity or benefit to the estate

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5. Partition

Partition means bringing the joint status to an end. On partition, the JF ceases to be joint and nuclear families or different joint families come into existence. There are members of the joint family who can ask for partition and are entitled to a share also. There is another catergory of the members of the joint family who have no right to partition but if partition takes place, they are entitled to share.
A reunion can be made only between the parties to parition.
(a) What is parition
(b) Subject matter of partition
(c) Parition how effected
(d) Persons who have a right to claim partition and who are entitle to a share
(e) Rules relating to division of property

(15) A Raghavamma vs A Chenchamma, AIR 1964 SC 136
A will containing a declaration of intention to separate will nt result in severence of status unless it is brought to the notice of the Karta & othr coparceners - an uncommunicated expression of intention at best can amount to a desire to partition, it cannot amt to severance of status, further the declaration of the intention in order to be effective must be communicated during the lifetime of the one who expresses it. under Hindu law, presumption is always in favor of JF. The burden to prove the partition lies on the plaintiff & this burden ws nt discharged in the present case. Even if the "Will" may be presumed to contain the intention of the executant to separate, partition cannot be effective unless such an intention is known to other coparceners.

(16) Puttrangamma vs MS Ranganna, AIR 1968 SC 1018
Once thr is a communication, the intention to separate cannot be withdrawn, for eg, when a letter ws posted & the letter withdrawn frm the post office, but the news of the contents of the letter somehow reached other coparceners, partition ws complete and irrevocable.
Facts:- Karta with his 3 bros - hospital - letter :intent to partition :- younger bros son snatched notice, attempted to tear it, but ws prevented frm doing so, after notice registered at the post office, family members intervened, tried to bring about an amicable settlement. At this the Karta withdrew the notice. However no agreement cud be reached subsequently. The Karta signed a vakalatnama & instructed his lawyer to institute a suit fr partition. karta however died on the same day when the suit ws instituted

(17) Kakumanu Pedasubhayya vs Kakumanu Akkamma, AIR 1968 SC 1042
A partition of the JFP through the filing of a suit by the next friend can be validly effected. The court hs to be convinced in such cases tht the partition wud be in the interests of the minor & nt effecting a partition wud adversely effect his interests. In the case of a minor coparcener, the effective date fr severance of status wud be the date of institution of the suit, provided the court actually effects a partition. If minor dies during pendency of the suit, the same can be continued by legal representative of minor.


(18) Namdev Vyankat Ghadge vs Chanadrakant Ganpat Ghadge (2003) 4 SCC 71
The adopted child shall nt divest any person of any estate, which vested in him or her before the adoption. if the property by inheritance goes to a collateral & the adopted son is adopted after the death of the collateral, the adoption cannot divest the property which hs vested in the heir of the collateral.


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(B) THE HINDU SUCCESSION ACT, 1956

The law of inheritance comprises rules which govern devolution of property, on the death of a person, upon other persons solely on account of their relationship to the former. The HSA came into force on 17th June 1956. It ammends and codifies the law relating to intestate succession among Hindus and brings about some fundamental and radical changes in the law of succession. The act lays down a uniform and comprehensive system of inheritance and applies inter alia to persons governed by Mitakshara and Dayabhaga schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayam, Alyasanatana and Nambudro systems of Hindu Law. The act was last amended in 2005, and has brought in major changes in the classical concept of coparcenary as also in the class I heirs to the property of a male intestate.


7. Succession to property of a male intestate
(a) General introduction and the application of the Hindu Succession Act, 1956
(b) Devolution of Mitakshara property under the Act
(c) General principles of inheritance
(d) Disqualifications of heirs

(19) Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum, AIR 1978 SC 1239
The explanation to S6, i.e. legal fiction shld be given its due & full effect. The assumption which the statute requires to be made is 'that a partition hd in fact taken place' between the deceased & coparceners immediately befr the death. This interpretation will further the legislative intention with regard to the enlargement of the share of the female heirs, qualitatively & quanitatively. S6 is a measure to ameliorate or improve the lot of Hindu women.

(20) Vellikannu vs R Singaperumal (2005) 6 SCC 622 (Effect of disqualification on Succession)
If a person hd murdered his father or a person frm whom he wants to inherit, he stands totally disqualified. Once he(son) is totally disinherited then his whole stock stands disinherited i.e. wife or son. When the 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.

(21) S Narayanan vs Meenakshi, AIR 2006 Ker 143
Questions of law in this case (i) whthr suit fr partition at the instance of the daughter of the deceased could be defeated by invoking S23 of the HSA by legal rep of a deceased son of the intestate? (ii) whtr S23 wud be applicable in a case whr the deceased intestate hs left behind him only one male issue & whtr it is neccessary tht thr must be more than one male issues to invoke S23? (iii) Whtr protection in favr of the male heir u/s 23 wud be available if he inducts a 3rd party in the dwelling house or any portion throf? (iv) Whtr omission of S23 by the HS(A)A, 2005 wud hv any impact on a suit fr partition or appeal thrfrm pending on the date of the commencement of the amendment act?
Ans(i) Trial court held in view of S23 plaintiff cannot claim partition (ii) SC in Narshimaha Murthy vs Smt Susheelabai considered the scope & objective of S23 & held tht the object is to protect fragmentation or disintegration of the family dwelling house at the instance of the female heir to the prejudice of the male heirs (iii) SC in Narshimaha Murthy's case held tht if strangers r inducted into the dwelling house it must be held tht male heir hs lost his animus possedendi (iv) SC -> right to claim benefit of S23 is personal to the male heir of the deceased Hindu intestate. Such a right is nt heritable or alienable, thrfr it cannot be said tht cessation of such personal right during the pendency of a suit fr parition wud nt entitle the female heir to claim partition taking note of the subsequent events. Whenever personal right of a male heir u/s 23 comes to and end the right of the female heir to claim partition cannot be defeated. The effect of such ommision wud be retroactive

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8. Succession to the property of the female Intestate
(a) Hindu women's estate
(b) Law relating to inheritance

(22) Vaddeboyina Tulasamma vs Vaddeboyina Sesha Reddi, AIR 1977 SC 1944
Exapansive interpretation of S14(1) & restrictive interpretation of S14(2) - It will depend on the facts of each case whthr the same is covered by S14(1) or (2). The question is such cases will be mostly one of construction of the instrument and ascertainment of the intention therein expressed. S14(2) is merely a proviso to S14(1). - The property 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 thus covered by S14(1) & nt S14(2) even if the instrument, decree, etc allotting the property prescribes a restricted estate in the property. S14(2) must be confined to cases whr property is acquired fr the 1st time as a 'new grant' w/o any pre-existing recognized right.

(23) Jagannathan Pillai vs Kunjithapadam Pillai, AIR 1987 SC 1493
It is futile to contend tht the female shall be in possession of property 'before' the coming into operation of the HSA. If the property is itself is acquired after the commencement of the Act, thr cud be no question of property being either in physical or contructive possession of female befr the coming into operation of the Act, all that is reqd to be shown by her is tht she hd acquired the property & tht she ws possessed of property at the time when her title ws called into question. - if reconveyance takes place befr or aftr 1956, the female wud certainly be deemed to be in possession of property, with the result S14 will apply. By reversal of the original transaction, her rights wud hv to be ascertained as if she became possessed of the property fr the first time, after the commencement of the act.

(24) Bhagat Ram vs Teja Singh, AIR 2002 SC 1
Succession to Property of a Female Hindu (originally inherited from her mother)
S15(2) uses the words 'any property inherited by a female Hindu frm her 'father or mother'. Thus property inherited by a female Hindu frm her father & mother is carved out from a female Hindu dying intestate. in other words any property of female Hindu, if inherited by her from her father or mother wud nt fall u/s 15(1) and it shld goto legal heirs of her father u/s 15(2)(a) - It is the source frm which the property ws inherited by the female, which is more important fr the purpose of devolution of her property. Even if the female Hindu who is having a ltd ownership becomes full owner by virtue of S14(1) of the Act, the rules of succession given u/s 15(2)(a) can be applied.

(25) Omprakash vs Radhacharan, 2009(7) SCALE 51
A woman's self acquired property covered by S15(1) & nt S15(2) - Law views the man's estate and the woman's estate through different spectacles: her autonomy over her property is less complete than his. There is no dispute tht the properties of the deceased female were 'self acquired', nt inherited frm her parents. In case of 'self-acquired property' S15(1) will apply & nt S15(2). thus even though the intestate ws driven out of matrimonial house by her in-laws and she stayed(till death) with her parents and acquired property through self exertion, in view of the scheme of succession laid down u/s 15(1), the 'heirs of husband' being in the earlier category than the 'father or mother/or their heirs', will inherit her property. Further she hd nt made a Will: the only way to defeat the rights of the 'heirs of husband.'


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(C) MUSLIM LAW

9. Law relating to Gifts
(a) Meaning and essentials of a valid gift
(b) Gift of Mushaa
(c) Gift made during Marz-ul-Maut

26. Mussa Miya walad Mahammed Shaffi vs Kadar Bax, AIR 1928 PC 108
A gift by maternal grnd father to a minor w/o delivery of possession to the existing and competent guardian of his property (i.e. father) is invalid under Muslim law

27. Valia Peedikakkandi Katheessa Umma vs Pathakkalan Narayanath Kunhamu, AIR 1964 SCC 275
A gift made by the husb to his minor wife by a registered deed but accepted on her behalf by minor wife's mother is valid. A gift can be made through the mother or even a stranger ( under whose care the minor is living) in the absence of the guardians of minor i.e. father/grnd father or their executors.

28. Hayatuddin vs Abdul Gani, AIR 1976 Bom 23 (Delivery of possession in Mushaa)
In this case, validity of the 'gift of undivided property' in absence of partition of the property gifted(Mushaa) ws in issue. A gift of an undivided share(mushaa) in property which is capable of division is irregular & nt void. The gift being irregular, and not void, it may be perfected & rendered valid by subsequent partition & delivery to donee of the share given to him. If possession is once taken the gift is validated. - The declaration in the gift deed tht possession ws handed over to the donee, the notices issued & intimation to the tenants orally & subsequently by notices were sufficient evidence to show tht the donors hv done everything tht ws possible in the circumstances to hand over possession.

29. Abdul Hafiz Beg vs Sahebbi, AIR 1975 Bom 165
In a Marz-ul-Maut, what is reqd to be proved upon the preponderance of probabilities is whtr the gift ws made by the ailing person while under the 'apprhension of the death' & further whtr in such ailing he met his death. - Once the subjective apprehension of death, its possibility or preponderance is established & thr is evidence of accelerated dissipation of the life itself leading unto death due to malady or affliction the dispositions made by such person are treated as if it were an outcry against the denomic fear of death itself and thus basically a non-juristic actioon. Once the subjective apprehension of death, its possibility or preponderance is estb & thr is evidence of accelerated dissipation of the life itself leading unto death due to malady or affliction the dispositions made by such person are treated as if it were an outcry against the denomic fear of death itself and thus basically a non-juristic action.


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10. Law relating to Wills
(a) Capacity to make Will
(b) Subject matter of Will
(c) To whom Will can be made
(d) Abatement of legacies

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11. Law relating to Inheritance
(a) General rules of inheritance of Sunnis and Shias
(b) Classification of heirs
(c) Entitlement of primary heirs