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Family law-iProject work on

School of hindu law

Submitted to:

Dr. Shaiwal satyarthi

Faculty of law

Submitted by: Mohit madhav Roll no: 754

3rd semester (2nd year)

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Section ‘a’

TABLE OF CONTENTS

ACKNOWLEDGEMENT.................................................................... (III)RESEARCH METHODOLOGY........................................................... (IV)OBJECTIVE..................................................................................... (IV)Introduction.............................................................. (5-7)Applicability of Hindu law..................................... (8-15)Differences between two schools of Hindu law... (16-19)Case laws................................................................. (20-23)Conclusions.............................................................. (24-25)Bibliography........................................................................... (26)

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ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our teacher, Dr. Shaiwal Satyarthi Sir for his valuable suggestions towards the making of this project.Further to that, I would also like to express my gratitude towards our seniors who were a lot of help for the completion of this project.The contributions made by my classmates and friends are, definitely, worth mentioning. I would like to express my gratitude towards the library staff for their help also.

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Last, but far from the least, I would express my gratitude towards the Almighty for obvious reasons.

MOHIT MADHAV

RESEARCH METHODOLOGYFor the purpose of research, the researcher has followed the doctrinal method of research. The researcher has relied upon various secondary sources to look for information related to the information about the Schools of Hindu Law. The researcher has done his initial research keeping in mind the various frequently asked questions related to this topic.The researcher has referred to renowned authors on subjects relating to Family Law. The researcher has started his research by looking at the given topic critically. The researcher has

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further relied upon various primary sources of information like newspapers, law journals, editorials and articles to look for information related to various schools of Hindu law.

Aims and ObjectiveThe main aim of the research work is to know in detail about all schools of family law and also about the sub schools of two most important schools of Hindu law i.e., Mitakshara and Dayabhaga School of Hindu Law and the differences between the two Schools of Hindu law.

CHAPTER-1INTRODUCTION

Hindu law has two main schools: the Mitakshara school and Dayabhaga school. The Mitakshara (‘a concise work’) is a commentary on the code of Yajnavalkya and is written by Vijnaneshwar. The Dayabhaga is a digest of all the codes and is written by Jimutavahana.

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The Mitakshara is the orthodox school, whereas the Dayabhaga is a reformist school of Hindu Law.

The Dayabhaga prevails in Bengal and North-East States and it has no sub-schools. The Mitakshara prevails in rest of India and it has four sub-schools, the Benaras (Northern and North-west), the Bombay (Western), the Mithila (Bihar), and, the Dravida or Madras school (South India). Although the Dayabhaga prevails in Bengal, the Mitakshara is also regarded there, as a very high authority on questions in respect whereof there is no express conflict between the two. Likewise, the Dayabhaga is also referred to sometimes in a case governed by Mitakshara law, on points on which the latter is silent.Where a Hindu family migrates from Maharashtra (where the Mitakshara law prevails) to Bengal (where the Dayabhaga prevails), the presumption is that the family continues to be governed by the Mitakshara law unless it is shown that the family has abandoned the law of the province of its origin (i.e. Maharashtra) and adopted the law of the province where it has settled. Thus, the Hindu law is not a lex loci i.e. a local law, but it is , in every sense, a personal law.

In the modern Hindu Law, schools have relevance only the respect of the uncodified Hindu Law. They have lost all their relevance in regard to the codified Hindu Law.

Due to the emergence of various commentaries on SMIRITI and SRUTI, different schools of thoughts arose. The commentary in one part of the country varied from the commentary in the other parts of the country. School means rules and principles of Hindu Law which are divided into opinion. It is not codified. There are two Schools of Hindu Law:- a) Mitakshara

b) Dayabhaga.

Mitakshara School prevails throughout India except in Bengal. It is a running commentary on the code of Yajnavalkya (Yajnavalkya Smriti).

Mitakshara is an orthodox School whereas the Dayabhaga is Reformist School.

The Mitakshara and Dayabhaga Schools differed on important issues as regards the rules of inheritance. However, this branch of the law is now codified by the Hindu Succession Act, 1956, which has dissolved the differences between the two. Now, the main difference between them is on joint family system. Mitakshara- Rights in the joint family property is acquired by birth, and as a rule, females have no right of succession to the family property. The right to property passes by survivorship to the other male members of the family. Dayabhaga- Rights in the joint family property are acquired by inheritance or by will, and the share of a deceased male member goes to his widow in default of a closed heir. MITAKSHARA SCHOOL: The Mitakshara School exists throughout India except in the State of Bengal. The Yagnavalkya Smriti was commented on by Vijnaneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School. Mitakshara

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school is based on the code of Yagnavalkya commented by Vijnaneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity i.e. the nearest in blood relationship will get the property. Sapinda relationship is of blood. The right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the property. The system of devolution of property is by survivorship (But now it has been amended by 2005 Amendment Act). The share of co-parcener in the joint family property is not definite or ascertainable, as their shares are fluctuating with births and deaths of the co-parceners. The co-parcener has no absolute right to transfer his share in the joint family property, as his share is not definite or ascertainable. The widow of a deceased co-parcener cannot enforce partition of her husband’s share against his brothers. A woman could never become a co-parcener. But, the Hindu Succession (amendment) Act of 2005 empowered the women to become a co-parcener like a male in ancestral property. A major change enacted due to western influence.

Sub-Schools under the Mitakshara School: There are four Sub-Schools under the Mitakshara School:

i. Dravidian School of thought : (Madras school)

It exists in South India. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption. (‘Sapindas’ – blood relation). The main authority accepted by this school is Smriti Chandrika authored by Devananda Bhatta.

ii. Maharashtra School: (Bombay School of Thought)

It exists in Bombay (Mumbai) and Gujarat. The Bombay school has got an entire work of religious and Civil laws. The main authority accepted by this school is Vyavahara Mayukha authored by Nilakantha.

iii. Banaras School of Thought:

It extends of whole of northern India except in Punjab where its authority is modified by customary law in rural areas. The main authority accepted by this school is Viramitrodaya authored by Mitra Mishra.

iv. Mithila School of Thought:

It exists in Tirhut, North Bihar and Uttar Pradesh near the Jamuna (Yamuna) river areas. The main authority accepted by this school is Vivad Chintamani authored by Vachaspati Mishra and Vivad Ratnakara authored by Chandeshwar Thakur.

v. Punjab School:

It prevails in the part of the country called East Punjab. This School is chiefly governed by local customs. The main authority accepted by this school is Viramitrodaya authored by Mitra Mishra and local customs of Punjab. DAYABHAGA SCHOOL OF THOUGHT

It exists in Bengal and Assam only. The Yagna Valkya smriti and some other Smrities are commented on by Jimutavahana under the title Dayabhaga. It has no sub-school. It differs

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from Mistakshara School in many respects. Dayabhaga School is based mainly on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors. This school is followed in Bengal and some parts of Assam only.

The main features of this School are as follows: Sapinda relation is by pinda offerings.

The right to Hindu joint family property is not by birth but only on the death of the father.

The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after the death of the father.

Each brother has ownership over a definite fraction of the joint family property and so can transfer his share.

The widow has a right to succeed to husband’s share and enforce partition if there are no male descendants.

On the death of the husband the widow becomes a co-parcener with other brothers of the husband. She can enforce partition of her share.

Chapter-2Applicability of Hindu law

Application of Hindu Law

Persons subject to Hindu Law-

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Shastri Yagna Purushdasji v. Muldas Bhundardas Vaishya1- It is extremely difficult, though not impossible, to define the Hindu religion in the way the other religions are defined. It embraces numerous views and ways of life.

The term ‘Hindu’ is not to be found anywhere in the Dharmashastras. It is a foreign word. It is derived from the word ‘Sindhu’. Sindhu is the name of a river in Indian sub-continent. The word ‘Sindhu’ was mis-spelled as ‘Hindu’ by the Persians. The sub-continent came to be known as Hindustan and its people as Hindus. Thus etymologically, the word ‘Hindu’ does not signify a religion; it refers to a territory or nation.

Hindu law is a personal law. So, Hindu law should define ‘who is a Hindu’, and upon whom the Hindu law applies.

 

A portion of Hindu law has been codified by Parliament in four Acts-

i) The Hindu Marriage Act, 1955

ii) The Hindu Minority and Guardianship Act, 1955

iii) The Hindu Adoption and Maintenance Act, 1955

iv) The Succession Act, 1956

According to these Acts, a Hindu is a person who-

·   Is a Hindu by religion in any of its form or development

·   Is a Buddhist, Jain or Sikh by religion

·   Any person who domiciled in India, who is not a Muslim, Christian, Persi or Jew by religion

·   Hindus domiciled in the territories to which the Act extends

·   Followers of Hindu law

Followers of Hindu Law-

1 (1959) 61 BOM LR 1016

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i) Legitimate child of Hindu parents

ii) Illegitimate child of Hindu parents

iii) Children of one Hindu parent

iv) Converted- The law was that the conversion was not accepted. But later it was accepted but the converted person was given the lowest caste. All Hindu laws will be applicable upon him except the succession.

Requirement of conversion- (i) Unequivocal conduct, (ii) Bona fide intention, (iii) No ceremony is required and (iv) His motive is not important (Raman Nadar v. Snehapoo).

 

Persons not subject to Hindu Law-

i) Non-Hindu child of one Hindu parent

ii) Converts from Hindu religion

Abraham v. Abraham- Those who convert to Islam and other castes are not subject to Hindu Law.

 

Doctrine of factum valet-

It is a doctrine of Hindu law, which was originally enunciated by the author of the Dayabhaga, and also recognized by the followers of the Mitakshara, that ‘a fact cannot be altered by a hundred texts’. The text referred to are directory texts, as opposed to mandatory texts. The maxim, therefore, means that if a fact is accomplished, i.e., if an act is done and finally completed, although it may contravene a hundred directory texts, the fact will nevertheless stand, and the act done will be deemed to be legal and binding.

This doctrine came from Roman maxim ‘factum valet quod fieri non debuit’ which literally means that ‘what ought not to be done become valid when done’.

 

Sources of Hindu Law

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Founder of Mitakshara School Vijaneshwar said, ‘sources are the means of knowing law’.

Hindu law is based on tradition and analytical in nature. Law is part of Dharma. So the sources of Dharma are the sources of Hindu law. But in a secular point of view- it is a man-made institution of control.

Sources may be arranged in the following order-

i) Legislation

ii) Dharma Shastras

·    The Vedas

·    The Smritis

·    The Puranas

iii) Sadachar (Custom)

iv) Commentaries and Digests

v) Precedents

vi) Principles of justice, equity and good conscience.

These laws are applicable as long as they are consistent to the Constitution.

Krishna Sing v. Mathura Ahir- The ban which was upon the Sudras is abrogated, because it is inconsistent with the Fundamental Rights of the Constitution.

 

i) Legislation-

Main legislations are-

·   The Caste Disabilities Removal Act, 1850

·   The Hindu Widow Remarriage Act, 1856

·   The Majority Act, 1875

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·   Transfer of Property Act, 1882 (overrides the Hindu Law of Property).

·   The Disposition of Property Act, 1960

·   The Succession Act, 1956

·   The Child Marriage Restraint Act, 1929

·   The Special Marriage Act, 1954

 

ii) Dharmashastra-

The term ‘Shastra’ came from ‘shas’ which means ‘to teach’. Dharmashastra means ‘teacher of dharma’. It has two meanings-

a) Comprehensive- it includes Vedas, Smritis and Puranas

b) Limited- It includes only Smritis.

 

Dharma is divided into six-

i) Barna Dharma – It is Dharma of the castes. It provides the laws applicable to different castes.

ii) Ashrama Dharma – It means four stages of life: (a) Brahmacharya (b) Grihastha (c) Banaprashta (d) Sanyas.

iii) Barnashrama Dharma – It is the combination of the first two Dharmas.

iv) Guna Dharma – It means inherent nature of a thing.

v) Nimitto Dharma – It is the secondary Dharma in absence of primary Dharma.

vi) Sadharana Dharma – which is proper Dharma for a person in ordinary situation.

 

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Vedas- Synonym to Vedas is ‘Shruti’. ‘Shru’ means to hear. Hindus believe that the Vedas are heard from God and written. There are four Vedas- (a) Rig Veda (b) Yajur Veda (c) Sham Veda (d) Atharva Veda.

Each Veda has three parts-

i) Sanhita

ii) Brahmin – It describes what the duties are

iii) Upanishad – It describes the consequence to perform a duty.

 

Smriti- Derived from ‘Smri’ which means ‘to remember’. People remembered from the words of the sages, it is not from the God directly.

Smriti is divided into 2 parts-

i) Dharma sutra- it is mainly prose

ii) Dharma Shastra- it is mainly poetry (sloka).

Exact number of Smritis is unknown. Some authentic Smritis are-

Manu, Vaisistha, Brihaspati, Yagnavalkya, Vyas, Kotilya, Parashar, Katyana.

 

There are 3 rules in every Smriti-

i) Achar – Morality

ii) Vyavahar – Rules that the king or judge used to apply in settling disputes in the administration of justice.

iii) Prayaschit – Penal provisions for commission of a wrong. There are both substantive and procedural laws. It has 2 elements- (a) An inner intention to reform oneself, (b) A readiness for punishment for committing an offence.

 

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If there is conflict between 2 Smritis, there is difference in opinion. According to Brihaspati, Manu is above all Smritis. According to some, one has to choose among to conflicting Smritis. According to others, the more logical one will be accepted.

 

Purana- It is a book containing five matters-

i) Creation

ii) End of creation

iii) Dynasty

iv) Manavantar

v) History of ancient dynasties

There are 18 Puranas, 18 Upa-puranas and 18 Upapa Puranas.

If there is conflict between Purana and Smriti, Smriti shall prevail.

 

iii) Sadachar (Custom)-

Custom is one of the most important sources of Hindu Law. Where there is a conflict between a custom and the text of the Smritis, such custom will override the text.

Collector of Madura v. Mootoo Ramalinga (Ramnad’s case) – ‘Clear proof of usage will outweigh the written text of law.’

Customs are divided into-

(a) Local customs- are confined to a particular locality like a district, town or village.

(b) Class customs – are the customs of a caste or a sect of the community or the followers of a particular profession or occupation.

(c) Family customs – are confined to a particular family only, and do not apply to those who are not members of such family.

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Essentials of valid custom-

i) Ancientness – A custom must be minimum 100 years old.

ii) Certainty - Universality in observance is absolutely necessary.

iii) Reasonableness – It should be in accordance with rules of justice, equity and good conscience.

iv) Continuity – It must be continuous without interruption.

v) Public policy – It must not be against public policy.

vi) Uniformity – It must be uniformly performed.

If a custom meets the abovementioned requirements, it becomes binding.

 

iv) Commentary and Digests-

Commentary is the interpretation of the Smritis by the scholars. It also includes the customs and usages which the commentators found prevailing around them. Despite the fact such commentators have modified the original texts in order to bring them in line with the local customs and conditions, the commentaries are now considered to be more authoritative than the original texts themselves.

Collector of Madura v. Moottoo Ramalinga- “Clear proof of usage will outweigh the written text of the law.”

These commentaries gave rise to different schools known as the Mitakshara and Dayabhaga.

Collection of commentaries is called Digests.

Features of commentary and digest-

i) They have tried to make the subject simple and easy to understand.

ii) We find quotations of several works (texts)

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iii) Topics of Dharma have been widely classified by the digest

iv) They have included custom and usages prevailing during their time

v) Commentary and digests kept law abreast of life.

A lot of commentaries have been made on Manusmriti. These are called Manu Tika. Commentaries were started to be written down from 4-5 century and digests were from 12 century.

Authority of commentary and digest-

Atmaram v. Bajirao – If Commentary and digest conflict with Smriti or Purana, Commentary and digest shall prevail. 

v) Precedent

vi) Principles of Justice, Equity and Good conscience

Chapter-3Differences between two schools of hindu law

As per the Hindu customs there are two schools under which the widows were getting the property rights. In the Mitakshara School, the widows were not getting the right as a coparcener but getting the right of maintenance and residence if she had a son then he will get or inherit the property as one of the coparceners. But the scenario is opposite in the Dayabhaga School where women gets the right as coparcener.

STATUS OF HINDU WIDOW UNDER THE MITAKSHARA LAW

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In the Mitakshara law, this concept deals with the coparcener concept where the property rights are give only to the male descendents and those male who gets the property fall under the definition of coparcenaries although the definition of coparcenaries is narrower institution within the a joint family comprising only of the male members. Under the classical law, no female could be a member of coparcenaries and hence no right of ownership in the property.2 Another reason why the coparcener are limited to male and not to female was that the female member leaves the father house and assumes domestic and spiritual duties in their husband house and becomes Sapinda. But there also we can observe that, the female did not get the absolute rights in the property. The women as coparceners under Mitakshara, cannot be a coparcener’s3 (includes widow). Although under the Mitakshara law, the widow gets a Right of maintenance out of her husband’s property, yet she is not a coparcener with him.4 a widow of a deceased coparcener is not a coparcener and therefore cannot be treated as a Karta of a family, also the alienation made by her was not binding on the family members but bind her own share in the property.5 She may not be a Karta but able to assess for the purpose of income tax6 as the head of the joint family. It is a trite law that a female is not a coparcener in the mitakshara Hindu joint family but they are members of a joint family. As they have not acquired interest by birth and were not entitled to claim partition but some females were entitled to a share when partition took place by metes and bounds.

A HINDU WIDOW UNDER THE DAYABHAGA SCHOOL

In contrary to the Mitakshara, the Dayabhaga School have male as well as female as coparceners. There is no discrimination between the male and the female. But over here one exception is, if there are only female members left than they will be called as female heirs and cannot be said as coparcenaries.7 they might have absolute property rights, but then, they will only considered as coparceners when there is at least one male member because to constitute a coparcener under the Dayabhaga, male member is also required because if all women will remarry then there would be no existence of any family as they all will form a new family. As we are talking about the pre-1937 era in Dayabhaga in context of the female, being a coparcener. After the death of a deceased coparcener the female will represent the share of the deceased. In Dayabhaga, coparceners on the death of coparcener, the share of such coparceners in absence of application of the doctrine of survivorship will go by the inheritance; the widow will inherit the property.8 After the death of the husband, the wife i.e., the widow will inherit the fixed share in the property though the possession of that property

2 Dr. Basant K. Sharma, Hindu Law, Central Law Publications, chapter I, Sources and schools of hindu law,II Ancient Sources (d) Custom essential of valid customs, Page No. 7.3 Comm. Of Income Tax v. Govinda Ram Sugar Mills, AIR 1966 SC 240; Pushpa Devi v. Comm. Of Income Tax, AIR 1977 SC 2230.4 Sabitri v. FA Savi, AIR 1933 Pat 306.5 Kanji v. Permanand, AIR 1992 MP 208.6 Sushila Devi v. Income Tax Officer, AIR 1959 Cal 697.7 Mordern Hindu Law, Dr. Paras Diwan, Allahabad Law Agency, Harayana,Chapter XII, The Dayabhaga Joint Family, Coparcenary, Page No. 313.8 Dr. Basant K. Sharma, Hindu Law, Central Law Publications, chapter I, Sources and schools of Hindu law, V Dayabhaga Joint Family, Page No. 14.

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will be united in absence of a partition. In the absence of the partition they will form as coparcener with the other coparcenaries. Coparcener under the Dayabhaga law was a creation not of a law but of a desire to live jointly, it originated in fact and not by legal fiction.9 Thus, the coparcenaries come into existence by an act of violation on the part of heirs, such as an agreement to live, mess and worship jointly. In the case of I.T. Comm. v. Sandhya Rani10, a Hindu governed by the Dayabhaga School of law, died intestate leaving behind his widow and two daughters. By agreement, they claimed to be assessed as Hindu undivided family. But it was held by the Supreme Court that the female alone, in the absence of a male member, cannot form a Hindu undivided family by agreement. Subsequently any female coparcener can sell, mortgage or dispose of by gift or make will of her share, as they are the masters of their own wealth.

HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937

The law on property of a Hindu female at the time of Vedic society was very commendable where the female enjoys equal rights in the husband’s house. But after that time, the position of female was degraded the female rights to inherit from the patrimony was also disputed and in the joint family she only gets the maintenance and residence. Whatever Rights given to them were of custodianship, according to the Smritikaras she will only get limited ownership of the property and can enjoy it during the lifetime and when died then revert it back to them from where it was came. But in the British era, due to the social reforms the Hindu Women’s Right to Property Act, 1937 was passed so as to amend the law of all schools materially to confer greater rights on women.11 The Primary aim to confer the inheritance rights to the widow was to secure her maintenance rights through an act.12 Her maintenance rights were only recognised under the old Hindu law because she was excluded from the inheritance rights and from the share in the coparcener property. The act although does not apply to the agricultural land and hence a widow who cannot receive such share out of that property can still retained her maintenance right out of this property.

In modification of the previous decisions the Act of 1937 confers new rights to the widow. They basically recognised three widows: 1. Intestate’s widow,

2. son’s widow and

3. The widow of a predeceased son of a predeceased son.

If a Hindu male governed by any school of a Hindu law or by customary law dies intestate leaving behind separate property, then his property will be given to the widow or widows together as to the same share as a son.13

9 C.W.T v. Bishwanath, 1976 HLR 397 (SC) 400.10 1972 Tax LR 979 (SC).11 Mordern Hindu Law, Dr. Paras Diwan, Allahabad Law Agency, Harayana, chapter XVII. Woman’s Property, the Hindu Women’s Right to Property Act, Page No. 382.12 Dr. Basant K. Sharma, Hindu Law, Central Law Publications, chapter XI, Stridhan or Woman’s Property, I Hindu Woman’s Right to Property Act, 1937-Its effect, Page No. 288.13 Shastri Gopalchandra (2008), a Treatise on Hindu Law, Eighth Edition, New Delhi (India): Ashoka Law House

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When a Hindu governed by any school of Hindu law other than Dayabhaga School or by customary law dies, his widow shall have the same interest in the property as the husband himself had.

Also any interest devolving on a Hindu widow under the provisions of this section shall have limited interest which is known as a Hindu women’s estate, provided she shall have the same right of claiming partition as a male owner. Before the said act the widows were not entitled to inherit any property but were only entitled for the maintenance.14 Now, after the commencement of this act the Hindu male governed by the Mitakshara law died then his separate property and in Daybhaga his all the property, the widow will inherit along with the male issue. In the intestate’s separate property, the act provides to the widow for the equal share as that of her son and in default of son she will inherit the whole property. But she cannot alienate the property by will, gift or even a sale as she is having limited interest or ownership (not absolute like that of husband) in the property and only for the lifetime or if she remarries the property will revert back to the heirs of husband.

In the joint family property, she was given the same interest as the male member had. She had the right of claiming the partition as a male owner (by the virtue of new right, she is entitled to, as that of the same position like her husband in which manner he would have exercise his right) and this meant the abrogation of the right of the survivorship. The act confers on the widow a right to be a member of Hindu joint family, as she was put in the place of her husband and the husband interest in the coparcener property (though indefinite) would be conferred upon to his widow after his death. Although giving interest of husband does not mean that she becomes a coparcener although she continues to be a member of the joint Hindu family as she was before the act. Before the case of P. Lakshmi Perumallu v. P. Krishnavenamma15 there were many conflicts regarding the claiming of partition by a widow but this case has settled down all the conflicts among the various High Courts in India. This act of 1937 had also taken care of the rights of widow in respect of the Karta. The Karta has a right to deal with the joint family property including the interest of the widow. He was empowered to alienate the joint family property including the interest of the widow.16

If the widow died as after getting her share partitioned, on her death the succession would be traced to the husband heirs, on the reason that the property belongs to the separate property of the husband, if she died in joint status then property would pass through survivorship. As per the classical Hindu law, an unchaste widow is disqualified from inheriting the property of her deceased husband. But this act was totally silent on this matter since it is a very conflicting issue among the various high courts and hence, as the act was not mentioning anything related to it the old rule relating to the disqualification of the unchaste widow from the husband property is applicable17 even after the act of 1937.

Differences between the two 14Naresh Jha v. Rakesh, AIR 2004 Jhar 2.

15 AIR 1965 SC 825.16 Seethamma v. Veerana, AIR 1963 AP 199.17 Succession in Hindu Law: Analysis of the Hindu Succession Act, 1956, Raabia Abuzer Shams, Student of Chanakya National Law University, Patna. http://www.mightylaws.in/878/succession-hindu-law-analysis-hindu-succession-act-1956

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schools in Coparcenary:-

Mitakshara Dayabhagai) Right of a son by birth in the ancestral property equal to the interest of his father.

i) A son is entitled to his ancestral property only on the death of his father. The father is the absolute owner of his property in his lifetime.

ii) A son becomes coparcener right after his birth. His right is applicable to the property of his grandfather and grand-grandfather.

ii) A son becomes coparcener by death of his father. This right is not available within the property of his father, grandfather or grand-grandfather.

iii) Everyone is entitled to the property as a unit. Their shares are not defined. They have only the commodity of ownership. There is joint-tenancy.

iii) Everyone’s share is defined. There is tenancy-in-common.

iv) One cannot transfer his share to the third party.

iv) One can transfer his share.

v) The joint-property can be partitioned. In that case, it will be partitioned as it was in case of the father.

v) As the shares are defined, one can easily partition with his share.

Chapter-4Case laws

Benoy Krishna Tewary and Anr. Vs. State of West Bengal and Ors.

Family - Partition - Whether the suit properties were Mitakshara coparcenary properties as found by the trial Judge or were separate properties as held by the appellate Court? - Appeal filed under Section 100 of the Civil P.C - Held, properties were ancestral or Paitamahik, law was settled for about two thousand years that in those properties - With reference to Division Bench of the Oudh Chief Court in Pirthipal v. Rameshwar, a Karta may still be held to have represented as the Karta, even though he had not been described as such in the relevant document or transaction - Appeal allowed.

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The trial court having decreed the suit for partition on the finding that the suit-properties are Mitakshara coparcener properties and the appellate court having dismissed the suit on reversal of the finding, the only question involved in this second appeal is whether the suit properties are Mitakshara coparcenaries properties as found by the trial Judge or are separate properties as held by the appellate Court. There does not appear to be any misapprehension of the relevant laws either by the trial court or by the appellate court. But we are satisfied that there has been such serious misreading of the relevant portions of the plaint and the evidence by the appellate court as to have amounted to 'no-reading' at all warranting our intervention in second appeal under Section 100 of the Civil P.C., as it stood before the Amendment of 1976, governing this appeal.

Parties, though residing for generations in the Dayabhagi State of Bengal (now West Bengal), are still governed by the Mitakshara School of Hindu Law having migrated from a Mitakshara State. As is well-known, as the domicile of origin attaches to a person wherever he goes until he accepts a new domicile of choice, the original school of law also continues to govern a migrating Hindu family, wherever it goes, until it adopts another school of law operating at the place of its new settlement. Both the courts below have proceeded on the basis, and in our view rightly, that the parties having migrated from Uttar Pradesh to West Bengal are still governed by the Mitakshara School of Hindu Law, they not having adopted at any stage the Dayabhaga School of Hindu Law prevailing in West Bengal.

It is the categorical case of the plaintiffs in para 4 of the plaint that the suit properties are "Coparcenary ancestral properties" that they have acquired interest therein by "right by birth" (Janmadhikar Bale), by right of survivorship (Uttarjibi Sutre) and that the properties were "Paitamahik Sampathi". It should be noted that the Sanskrit word for ancestral is Paitamaha, meaning belonging to Pitamaha. This word Pitamaha, though ordinarily applied to the father's father, means in the plural number, all the paternal male ancestors of the father in the male line, how high so ever (Sarkar-Sastri's Hindu Law -- 8th Edition -- page 257).

These averments in the plaint have not been controverted by any of the principal defendants who all are members of the joint family. In view of these clear assertions, it is difficult to understand as to how the appellate court could find it to be the "plaintiff's positive case that the suit plots have been acquired by the plaintiff 1 with the aid from the ancestral properties that had come to his hand" and could transpose to and impose on the plaintiffs the onus to prove such acquisition. In the evidence also, the plaintiff 1, as PW-3, clearly stated that his 'grandfather and his forefathers acquired the suit properties" and that his "father had no capacity to acquire the suit properties". The appellate court has dismissed the suit on the ground that the plaintiff could not discharge the onus to prove "the plaintiff's positive ease" that the suit-properties are coparcenary as having been acquired by the plaintiffs with the aid of the joint family fund. That being not the case of the plaintiffs either in the plaint or in the evidence, and the positive and consistent case of the plaintiff being that the properties were acquired by their grandfather and his ancestors and that they have acquired interest therein by birth and by survivorship, the misreading by the appellate court of the pleading and the evidence palpably amounted to no consideration thereof and having thus vitiated the root of the matter and the entire process of reasoning of the appellate court, clearly warrants intervention under Section 100 of the Civil P.C., as it stood before the Amendment of 1976, by which this appeal is governed.

Once it is held, as was rightly held by the trial court, that the properties were ancestral or Paitamahik, the law is settled for about two thousand years that in those properties, the father

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and the sons acquire equal shares by birth -- "Tatra Syat Sadrisham Samwam Pituh Putrasya Chobhayo".

The appellate Court laid great stress on the fact that the suit properties are recorded in the R. S. Record only in the name of the plaintiff's father and not in the name of the coparceners and that, according to appellate court, militated against the coparcenary character of the properties. But it is undisputed that the plaintiffs father, being the senior most male member of the family, was the Karta of the undivided family and recording of the properties in the name of the Karta alone, is in no way inconsistent with the coparcenary character of the properties, even it the Karta is not expressly described as the Karta in the relevant records. We, therefore, allow the appeal, set aside the judgment and decree of the first appellate court and restore those of the trial court. No costs.

Vasant Atmaram & Anr. V. Dattobe Rajaram

Civil Procedure Code (Act V of 1908), Section 11 - Suit for partition of joint family property filed in British India by adopted son against coparceners not recognising his adoption--Court upholding adoption and decreeing suit--Another suit filed by adopted son against coparcencers in Court in former Kolhapur State for share of family property in Kolhapur--Kolhapur State merged with Indian Union pending suit--Coparceners raising issue in suit that adoption not valid under law enacted by State of Kolhapur--Whether decree passed by Court in British India operates as res judicata and bars trial of issue--Hindu law - Adoption--Whether an adoption can be partially valid and partially invalid-- Lex loci--Whether in matters of personal relations and status there is lex loci in India.

The plaintiff was adopted by the widow of a deceased copareneer(sic) in a joint Hindu family. The plaintiff's coparceners refused to recognise his adoption and the plaintiff in 1942 filed a suit against them in the Belgaum Court claiming his share in the joint family property situate in Belgaum which was then in British Indian territory. The Court upheld the plaintiff's adoption and decreed the suit in March 1944. In the meanwhile the plaintiff had filed another suit against the coparceners in June 1947 in the Kolhapur Court for his share in the joint family property situated in the then Kolhapur State. In this suit the coparceners sought to raise the issue that the plaintiff was not the validly adopted son of the deceased coparcener under the enactment in force in the State of Kolhapur. Pending that suit the State of Kolhapur merged with the Indian Union on March 1, 1949. On the question whether the decree passed by the Belgaum Court operated as res judicata and barred the trial of the issue.

Rutcheputty Dutt Iha, Bho Launauth Iha and Ors. (Sons Heirs and Legal representatives of Gunga Dutt Iha Deceased) Vs. Rajunder Narin Rae and Coower Mohainder Narain Rae (Sons and Representatives of Sree Narain Rae Deceased)

In this case their Lordships concur in recommending her Majesty to affirm the decision of the Court below, We would not have troubled the learned counsel for the Respondents, but that we were anxious the case should be fully investigated as it relates to property of a very large amount. On a full consideration, we feel no difficulty in assenting to the propriety of the decree of the Sudder Court on all points. The Appellant claims the Zemindary of Pergunna Haveelee Poorneah, situate in the province of Bengal. He claims to be entitled as the cousin on the mothers side, and claims against the defendant below, the father of the Respondents, who is related in the sixth degree on the fathers side. It is admitted that if the law on which

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the learned Judge Mr. Harrington proceeded, governs the succession, no valid objection can be taken to the decree of the Court below. That matter has been fully investigated; and although there was some doubt about it, the counsel for the Appellants do not feel strong enough to impeach the decree if it was rightly decided according to the law. Now was it so decided. Let us look in the first instance, to the point on which the parties put their case till they came to the Sudder Court. The Plaintiff does not state by what law his descent is to be regulated, but he claims as the heir-at-law of the deceased Rajah. The answer of the Defendants, whose representatives are the present Respondents, distinctly puts it on the ground that the Shasters of Tirhoot regulate the succession. They state that the case ought to be decided "according to the Shasters of Tirhoot which are in usage in the country, and particularly among the Brahmins of Mitheela who are ruled entirely thereby." Now when the Plaintiff comes to his (sic) it is equally clear that he puts his claim also on the Shatters of Tirhoot or the law of Mitheela, and there is not a word said about any other law to regulate the succession between the parties.

2. Then we find, that in pursuing his appeal to the Sudder Dawanny Adawlut, it is said that one small portion ought to be adjudged according to the law of Bengal. Now, is that right. Mr. Harrington who considered the question, is of opinion that the rule of succession ought to be the Mitheela law, according to which the parties have governed themselves, and he lays it down as a clear proposition of law, that in a case where a family migrates from one territory to another, if they preserve their ancient religious ceremonies, they also preserve the law of succession, and relies on the case of Rajunder Narain Chowdry v. Goculchund Goh, proceeding on the opinions of the Pundits, and which was in evidence in the Sudder Dewanny Adawlut. It is very true that the precise point decided by the Court in that case does not go to the full length of Mr. Harrington's judgment, for the family there had abandoned part of the religious observances and adopted those of Bengal; and there it is said that the law of that country must decide; there is a want of clearness, probably in consequence of the defect of translation; but the effect is, that if they had preserved their ancient religion, the law of succession would be according to the country from whence they migrated : that opinion is clearly adopted by the Court, and there is a note well deserving of attention which is not only the note of the Reporter, but as we learn, from the preface to the book, especially valuable as coming from the pen of Mr. H. Colebrooke. Now the note upon this subject says, " If the family had been shown to have continued in the observance of the natural law and usages, namely, those of Mitheela, the rule of inheritance as established in that province must have been followed." They treat that as a matter of clear law and not admitting of any doubt. The present case, therefore, must be considered, rather as an exception to that which is laid down as the law in that case, because there they had abandoned those usages and taken to those of Bengal, It appears highly reasonable in such circumstances that that should be the rule, for the law of succession of the Hindoos partakes greatly of their religious opinions, and is part of their system. It appears to their Lordships, that the opinion expressed by Mr. Harrington is the law to govern this case; and in respect to the application of that law to the state of this family, there appears no objection, Upon the whole view of the case, the law to decide, therefore, must be the Mitheela law; and according to that their Lordships cannot say that the case has been wrongly decided. It appears there was some little doubt as to the provision of the Mitheela law; the note to which I have referred, states that "the books of greatest authority in Mitheela on the subject of inheritance, are silent in regard to the sister's son; and the established opinion is, that the male descendant of the remote ancestor shall inherit, and not a descendant through females of a near ancestor." But that does not appear to have been perfectly decided; and therefore, probably this suit was brought to have that point cleared up, upon which the opinions of so many Pundits have been taken. It appears that the Mitheela

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law is against the claim of any relation on the mother's side till those on the father's side to the seventh degree have been exhausted. This being an appeal against the decision of the three Courts, it must of course be dismissed with costs.

Chapter-5Conclusion

From the Ancient to the Modern legislation on the Hindu widows we came to the conclusion that the initiative taken by the Britishers in the form of Women Rights on Property in 1937 was a very commendable decision, prior to that the society was very negative and brutal with the widows and the practice of sati pratha on them was altogether a brutal move but due to the social reformers initiatives there were new hopes for the widows for their rights. Firstly, not only the widows but daughters were also not getting the rights over the property of the family as they were having Rights of maintenance and residence. But for getting those rights also they were fighting. After that the 1937 Act, at least gave widows limited rights on the property during their life time. From the Succession Act of 1956, the widow under the category of class one heirs were preferred if a male member dies intestate. This provision came after repealing the 1937 Act. Finally, to remove all the gender disparity the Central Government on 2005 has took a good move by giving every widow or we can say every female an equal right in the property and

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also made them or became female coparcener. Also, it gave privilege to certain category of the widows who were prior disqualified to get the rights in the property if any member dies intestate.

A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts."18

According to the Mitakshara law as applied in all the States, no coparcerer can dispose of his undivided interest in coparcenary pro perty by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners." It is submitted by Mr. P.P. Rao, learned Counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against the alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary property. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a mate Hindu in a Mitakshara coparcenary property. The Legislature did not, therefore, deliberately providefor any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School 0f Hindu Law, is that a coparcener can dispose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest. Again, it may be noticed in this connection that under the proviso to section 6 of the Hindu Succession Act, of 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 the Act and not by survivorship. The devolution of interest in coparcenary property by survivorship has been altered to testamentary or intestate succession, as enjoined by the proviso to section 6 relating to a female relative or a male relative claiming through such female relative. The substantive provision of section 6, however, enjoins that the interest of a male Hindu in a coparcenary property will devolve by survivorship upon the surviving members of the coparcenary and in accordance with the provisions of the Act. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid. The High Court has noticed most of the above decisions and also legal position that a gift by a coparcener of his undivided interest in the coparcenary property without the consent

18 Mulla's Hindu Law,Fifteenth Edition, Article 258.

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of the other coparceners is void. The High Court has also noticed the provisions of sections 6 and 30 of the Hindu Succession Act.19

Doctrine of Survivorship

This doctrine has been explained earlier. The Dayabhaga School allows for devolving of properties only at the point of succession. Thus, there is no question of inheriting any property. It is due to the application of this concept that there exists no coparcenary between a grandfather and his grandson under the Dayabhaga School.

The application of this rule is also related because classical Hindu Law recognised the concepts of unobstructed heritage and obstructed heritage to property. By unobstructed heritage one means that between the lineal descendants the coparcenary never ends. Thus, if one of the chain members dies then the coparcenary shifts to the next lineal descendant. This phenomenon has been accepted under Mitakshara School. On the other hand, the Dayabhaga School recognizes only obstructed heritage.

There are two further differences between the two schools of law that the researcher wants to delve upon but they would be explained in the next part of the essay owing to the fact that they involve the role players such as the Karta.

BibliographyBooks:

Diwan Paras (2008), Modern Hindu law, Twentieth Edition, Allahabad Law Agency.

Shastri Gopalchandra (2008), a Treatise on Hindu Law, Eighth Edition, New Delhi: Ashoka Law House.

Subzwari’s (2008), Hindu Law (Ancient & Codified), Second Edition, Ashoka Grover & Sons.

Gupte’s, Hindu Law, As Amended by the Hindu Succession (Amendment) Act, 2005 (39 of 2005) (w.e.f. 09-09-2005), Premier Publishing Company.

Saxena Dr. Poonam Pradhan (2011), Family Law Lectures, Family Law-II, Third Edition, Nagpur: Lexis Nexis Butterworths Wadhwa.

19 G. Suryakantara v. G. Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012. In that case, it has been held that the law is not that a gift of an undivided share is void in the sense that it is a nullity, but only in the sense that it is not binding on the other coparceners.

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Articles:

Hindu Law Reform, V. Govindarajachari http://yabaluri.org/TRIVENI/CDWEB/HinduLawReform.htm Succession in Hindu Law:

Analysis of the Hindu Succession Act, 1956, Raabia Abuzer Shams, Student of Chanakya National Law University, Patna http://www.mightylaws.in/878/succession-hindu-law-analysis-hindu-succession-act-1956

Websites:

www.indiannow.org.com (visited on October 3, 2013)

www.shodhganga.inflibnet.ac.in (visited on October 3, 2013)

www.preservearticles.com ( visited on October 3, 2013)

www.britanica.com (visited on October 3, 2013)