AL-AMEEN COLLEGE OF LAW

PREPARATORY EXAMINATION Dec -2015

HINDU LAW

Ist sem 3 yrs LL.B and V sem 5 yrs B.A.LL.B

DURATION: 3 HRS MAX MARKS: 100

INSTRUCTIONS TO CANDIDATES:-

1. Answer Q.No.9 and any 5 of the following questions

2. Q.No.9 carries 20 marks and the remaining questions carry 16 marks

each.

3. Answer should be written either in English or Kannada completely.

04X16=64

Q.NO.1. Trace the history of the different schools of Hindu Law, pointing out

their distinguishing features.

Answer:-

INTRODUCTION

The Schools of Hindu Law came into being when different commentaries

appeared to interpret smritis with reference to different local customs in vogue in

different parts of India.

SCHOOL OF HINDU LAW

There are 2 schools of Hindu Law

1. Mitakshara School

2. Dayabhaga School

1. Mitakshara School:-

This school prevails in all parts of India. It is a running commentary

on code of Yajnavalkaya & was written by Vijanneshwara in 11th

century. It is of supreme authority thought out India except Bengal.

2. Dayabhaga School :-

This School prevail in Bengal. It is not a commentary on any one code, but

purports to be a digest of all the codes. It was written by Jimutavahana. It was

written 2 centuries after mitakshara. It is supreme authority in Bengal. Here also

Mitakshara is supreme but if there is no conflict between this schools.

The Mitakshara school is sub-divided into 4 main schools

I. Banaras School

II. Mithila School

III. Bombay School

IV. Madras School

V. Punjab school also recognizes the authority of mitakshara.

Mitakshara School

It is divided into 5 Schools, they materially differed on the law of adoption and

inheritance. All these Schools acknowledge the supreme authority of the

Mitakshara, but give preference to certain treaties and to commentaries which

contain certain passages of the Miitakshara.

I. Benaras School:-

Except in Mithila and Punjab this school prevails in the whole of Northern India

including Orissa.

The following commentaries are also held in high esteem in this school.

1.Mitakshara.

2. Viramitrodaya

3. Dattaka Mimansa

4. Nirnayasindu

5. Vivada Tandava

6. Subodhini &

7. Balam Bhatti

II. Mithila School

It prevails in Tirhoot & Bihar. The following are the

commentaries treated as authoritative in this school.

1.Mitakshara.

2. Vivada Ratnakar

3. Vivada Chintamani

4.Smriti sara &

5. Madana Parijata

III.Bombay School or Maharastra School

It prevails in almost the whole of the state of Bombay including

Gujarat, Kanara and the parts where the Marathi language is spoken as the local

language.

The following works are treated as authoriatative in this school

1.Mitakshara.

2.Vyavhar Mayukha

3. Viramitrodaya

4. Nirnayasindu

5. Vivada Tandava

6. Parasara Madhaviya

IV. Madras School:-

The whole Madras state is governed by the madras School of Hindu Law

This school was once sub-divided into Tamil, Karnataka and Andra school,

but there is no justification

The authorities accepted in this school are the following

1.Mitakshara.

2.Smriti Chandrika

3. Parasara Madhaviya

4.Saraswati Madhaviya

5. Viramitrodaya

6. Vyavhar Mayukha

7. Dattaka Chandrika

8.Daya Vibhaga

9. Vaiyayanti

10. Madhabi

11. Nirnay Sindu

12. Narada Rajya

13. Vivada Tandava

V.Punjab School

It prevails in East Punjab.

The following are authorities in this school

1.Mitakshara.

2. Viramitrodaya &

3. Punjab customs.

2.DAYABHAGA:-

It prevails in west Bengal, Assam with some variances. Dayabhaga is written

by Jimutvahana. The accepted authorities

1. Dayabhaga

2. Dayatatva

3. Daya-sangraha

4. Viramitrodaya

5. Dattaka Chandrika

Difference between Mitakshara & Dayabhaga

Mitakshara As regards to joint property

Dayabhaga

1 Right to property arises by birth,

hence the son is a co-owner with

the father in ancestral property,

now even daughter

Right to property by death (of the

last owner). Hence son has no right

to ancestral property during father’s

lifetime

2 Father has a restricted power of

alienation and son can claim

partition even against the father

Father has absolute power of

alienation and son cannot claim

partition or even maintenance

3 The interest of a member of the

joint family would on his death

passed to the other member by

survivorship (now it is abolished)

The interest of every person would

on his death, pas by inheritance to

his heirs, like widow or daughters.

As regards Alienation

5 Members of joint family cannot

dispose of their shares while

undivided

Any member of joint family may sell

or give away his share even when

undivided.

Inheritance

6 The principle of inheritance is

consanguinity (blood

relationship)

The principle of inheritance is

spiritual efficacy (offering pindas)

7 Doctrine of Factum Valet

The fact cannot be altered by

hundred texts . It is recognized to

a very limited extent

It is fully recognized.

Conclusion :

On the migration the family continues to be governed by the law of locality of

origin. The family carries with it the customs regulating succession and family

relation prevailing in the state from where it came. But the family has option of

adopting the law and usages of the state to which it has migrated.

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Q.NO.2.Discuss the important changes brought by the Hindu Marriage Act

1955 and marriage laws(Amendment) Act, 1976 to the Hindu Law.

Answer:-

Introduction

This act is a landmark in the history of social legislation

This enactment is exhaustive and it has brought important and dynamic changes in

Hindu matrimonial concept. It has not simply codified the Hindu law of marriage

but has introduced certain important changes in many respects.

The Hindu marriage contemplated by the Act hardly remains sacramental.

The Act has introduced some changes of far- reaching consequences which have

undermined the sacramental character of marriage and rendered it contractual in

nature to a great extent.

CHANGES BROUGHT ABOUT BY THE HINDU MARRIAGE ACT 1955.

The following changes were brought about by the Act in the law of marriage are

important,

1. Inter- caste marriage in not prohibited. According to Section 29 of the Act,

the marriage solemnized between the different caste or different religion is

valid.

2. Monogamy which is essentially the voluntary union for life of one man with

one women to the exclusion of all others, is not enforced by legislation-

Section 5(i) . any marriage solemnized after the commencement of this Act

is null and void if at the date of such marriage either party had a husband or

wife living

3. Bigamy has been made punishable as an offence under the Indian Penal

Code (sec 17).

4. The conditions and requirements of a valid Hindu marriage have been

considerably simplified (section 5 to 7).

• The sapinda prohibition has although been accepted yet the degree of

sapinda relationship has been curtailed.

• It has now been confined to fifth degree from the father and third

degree from the mother in upward line.

• Further, the Act has enumerated the list of prohibited degree of

relations, between whom a valid marriage could not take place.

• Several matrimonial reliefs has been provided by the act. Ex.

Divorce, judicial separation.

• Legitimacy has been conferred on such children who are born of void

and voidable marriage.

• Provision for alimony pendent lite, permanent alimony and

maintenance have been made.

• Wide discretionary powers have been conferred on the court to pass

suitable orders relating to the custody, maintenance and education of

minor children of the parties.

CHANGES BY VIRTUE OF MARRIAGE LAWS(AMENDMENT) ACT,

1976.

A few more changes have been brought by Act of 1976.

1. Section 13-B now provides for divorce by mutual consent of the parties.

2. Divorce on the ground of adultery has made easy. Now a single instance

of adultery on the part of the other spouse entitles the spouse to seek

divorce.

3. Divorce on the ground of incurable unsoundness of mind, incurable

leprosy or venereal disease, formerly the party seeking divorce could not

file petition for 3 years had elapsed. Now the party seeking divorce on

this ground need not wait for 3 years.

4. Section 21 –B has been added which provides for the continuance of the

trial (day to day) until conclusion of the case.

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Q.NO.3. Explain the general rules of succession of Hindu female dying intestate

under the Hindu Succession Act, 1956.

INTRODUCTION :-

The Hindu succession Act 1956 marks a new era in the history of social

legislation in India. It has attempted to bring some reforms in the system of

inheritance and succession.

RAU’S COMMITTEE was set up to codify Hindu law

Under this committee Hindu marriage act 1955, Hindu Minority and

Guardian ship Act 1956, Hindu adoption and Maintenance Act 1956 and Hindu

Succession Act 1956 was passed

Objects of the Hindu Succession Act 1956

1. It is was passed to meet the needs of a progressive society.

2. Removes inequality between male and women with respect of rights and

property and it evolves a list entitled to succeed

3. It is passed to codify and amend the Hindu law succession.

RULES OF SUCCESSION TO THE PROPERTY OF FEMALE;-

SECTION 15:- prescribes the general rules of succession of the property of a

female dying intestate, and section 16 lays down the order of succession.

Section 15(1):- 1. The property of a female Hindu dying intestate shall devolve

according to the rules set out in section 16-

a. Firstly, upon

the sons and daughters (including the children of any predeceased son

or daughter) and the husband.

b. Secondly, upon

the heirs of the husband.

c. Thirdly, upon

the mother and father.

d. Fourthly, upon

the heirs of the father; and

e. Lastly upon

the heirs of the mother.

2. Not withstanding anything contained in sub-section (1)

a. any property inherited by a female Hindu from her father or mother shall

devolve, in the absence of any son or daughter of the deceased (including the

children of any pre-deceased son or daughter) not upon the other heirs referred to

in sub-section (1) in the order specified therein, but upon the heirs of the father

and,

b. any property inherited by a female hindu from her husband or from her father-

in-law shall devolve, in the absence of any person or daughter of the deceased

(including the children of any pre-deceased son or daughter) not upon the other

heirs referred to in sub-section (1) in the order specified therein, but upon the heirs

of the husband.

ORDERS OF SUCCESSION – SECTION 16.

The order of succession among the heirs referred to in section 15 shall be, and the

distribution of the intestate’s property among those heirs shall take place,

according to the following rules, namely-

Rule 1- among the heirs specified in sub-section (1) of section 15 those in one

entry shall be preferred to those in any succeeding entry, and those included in the

same entry shall take simultaneously.

Rule 2- if any son or daughter of the intestate had pre-deceased the intestate

leaving his or her own children alive at the time of the intestate’s death, the

children of such son or daughter shall take between them the share which such son

or daughter shall have taken if living at the intestate’s death.

Rule 3- the devolution of the property of the intestate on the heirs referred to in

clauses (b) (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall

be in the same order and according to the same rules as would have applied if the

property had been father’s or the mother’s or the husband’s as the case may be and

such person had died intestate in respect thereof immediately after the intestate’s

death”.

Who are the heirs?

Sec 15(1) divides the heirs of a hindu female into 5 categories.

1). Heirs in the first entry:

a. Sons

b. Daughters.

c. Children of

predeceased son.

d. Children of

pre-deceased daughter.

e. Husband.

2). Heirs in the second entry:

The heirs of the husband of the female dying intestate come under second entry.

The heirs of the husband are:

a. Heirs of the

husband specified in class I of the schedule.

b. Heirs of the

husband specified in class II of the Schedule.

c. Agnates of

husband.

d. Cognates of the

husband.

3). Heirs in the third entry.

a. Mother- it does not include step-mother but includes natural as well

as adoptive mother.

b. father “father” does not include step-father of putative father. But

includes natural or adoptive father.

4. Heirs in the fourth entry-

Heirs of the father of the female dying intestate comes under this

entry. The heirs of the father are:

a) Heirs of the

father specified in class I of the schedule.

b) Heirs of the

father specified in class II of the schedule.

c) Agnates of the

father.

d) Cognates of the

father.

5. Heirs in the fifth entry-

Heirs of her mother come under this entry.

1) Sons,

daughters of the mother including sons and daughters of a pre-deceased son

and daughter, and husband.

2) Heirs of

husband of the mother.

3) Father and

mother of the mother.

4) Heirs of father

of the mother.

5) Heirs of

mother of the mother.

Section 15(2) is an exception to the general rule mentioned above

� Property inherited from her father or mother.

Property inherited from her father or mother shall devolve upon the heirs of father

provided the intestate died leaving no son or daughter or any children of any pre-

deceased son or daughter.

This excludes the heirs if alive, in the first entry, second entry, and the third entry.

Therefore it is excluded the husband who is in the first of entry and his heir in the

second entry.

Property inherited from her husband or her father-in-law.

Such property shall devolves upon the heirs of the husband, who came in as father,

or mother, or the heirs of the father or mother from inheriting such property.

Order of succession :-

The order of succession and manner of distribution among heirs of a female hindu

dying intestate are given in section 16 of the Act.

Rule-1:- heirs in the first entry of section 15(1) of the Act shall be preferred to

those in the second entry. In the absence of heirs in the first entry heirs in the

second entry shall be preferred to those in the third entry and so on. Where there

are more heirs than one, in the entry preferred, such heirs shall take

simultaneously.

Rule-2:- the children of pre-deceased son or daughter between them, get the share

which son or daughter would have taken if living at the intestate’s death i.e., the

division is per stripes.

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Q.NO.4. Explain the different types of guardians and their powers with

reference of Hindu Minority and Guardianship Act, 1956.

Introduction :-

This act has significantly made many changes in the position and status of the

mother as the natural guardian.

AGE OF MAJORITY:- SECTION 4:

It defines the word minor as a person who has not completed the age of eighteen

years.

GUARDIAN - A Guardian means a person have the care of the person of another

or of his property, or of both.

Section 4(b):- Guardina means a person having the care of the person of a minor,

or of his property or of both his person and property and includes.

1. Natural guardian.

2. A guardian appointed by the will of the minor’s father or mother

3. A guardian appointed or declared by a court ; and

4. A person, empowered to act as such by or under any enactment relating to

any court of wards.

KINDS OF GUARDIAN

Section 4:- of the Act mention four kinds of guardians, these are:-

1. A natural guardian.

2. A guardian appointed by the will or the minor’s father or mothers

(testamentary guardian)

3. A guardian appointed or declared by a court, and

4. A person empowered to act as such by or under any enactment relating to

any court of wards.

Besides this, there are other types of guardians such as.

5. De facto guardian and

6. Ad hoc guardian.

NATURAL GUARDIAN:-MEANING OF NATURAL GUARDIAN.

A natural guardian is one who becomes so by reason of the natural

relationship with the minor. In other words a natural guardian is a person having

the care of the person of a minor or of his property or of both, by virtue of his

natural relationship with the minor.

Section 6:- of the Hindu minority and guardian ship act, runs as follows,

The natural guardian of a Hindu minor, in respect of the minor’s person as well as

in respect of the minor’s property (excluding his or her undivided interest in joint

family property) are,

a. In case of a boy or an unmarried girl-the father, and after him, the mother;

provided that the custody of a minor who has not completed the age of 5

years shall ordinarily be with the mother.

b. In the case of an illegitimate boy or an illegitimate unmarried girl-the

mother, and after her, the father.

c. In the case of a married girl the husband.

Provided that no person shall be entitled to act as the natural guardian of

a minor under the provision of this section.

a. If he has ceased to be a Hindu, or

b. If he has completely and finally renounced the world by becoming a

hermit or an ascetic (sanyasi)

Who are natural guardians?

Among the Hindus, the father is the natural guardian of his children during their

minority and in the absence the mother during their minority. He may, in exercise

of his discretion as guardian entrust the custody and education of his children to

another, but the authority he thus confers is revocable authority.

The powers of the father to act as a natural guardian do not come to an end simply

because the child is being looked after by his aunt and is living with her.

The father is the natural guardian of the person and of the separate property of his

minor children.

Case law jijabai v. pathan khan.

Where the father was alive but had fallen out with the mother of the minor

daughter and was living separately for several years without taking any interest in

the affairs of the minor who was in the keeping and care of the mother, it was held

by the supreme court that in the peculiar circumstances, the father should be

treated non-existent and the mother could be considered as the natural guardian of

the minor’s person as well as property.

K.S. Mohan v. Sandhya Mohan [AIR 1993 MAD 59]

The Madras High Court has held that custody of a child below the age of five years

should be given to its mother and only in exceptional circumstances, the father

may claim the custody of that child.

STEP MOTHER AND STEP-MOTHER

There are not the natural guardians of the minor child.

ILLEGITIMATE BOY AND GIRL.

In case of a illegitimate boy or girl the mother is the natural guardian, and in

absence of the mother the father will be the natural guardian.

Married girl.

The husband would be the guardian, unless he has ceased to be a Hindu or he has

completely and finally renounced the world by becoming a hermit or an ascetic.

DISABILITIES TO BE A GUARDIAN.

According to section 6 the disability may arise.

1. Disability arising from apostasy.

Before the passing of the Act the right of a guardian was not affected by the

change of his religion.

The fact that a father had changed his religion was of itself no reason for depriving

him of the custody of his child.

If the father voluntarily abandoned his parental rights and entrusted the custody of

the child to another person the court may not restore back the custody of the child

to the father if such a course is detrimental to the interest of the child.

VIJAYA LAXMI V. INSPECTOR OF POLICE.

The Madras High court held that where father converted to Islam and married a

muslim girl, he creases to be natural guardian as a matter of legal right.

It would not be in the interest of child that such convert should be allowed to

continue as a natural guardian and exercise the power as such.

2. CIVIL DEATH:-

Any person who has completely and finally renounced the world by becoming a

hermit or an ascetic forfeits his right to continue as the natural guardian of his

minor child or wife.

3. MINORITY:-

A Minor shall be incompetent to act as guardian of the property of the minor.

So, in respect of the joint family property, even if the Karta is a minor, such

property is and remains under his protection.

4. AGAINST MINOR’S WELFARE:-

No person shall be entitled to the guardianship of the minor, if in the opinion of

the court his or her guardianship will not be for the welfare of the minor.

EFFECT OF REMARRIAGE BY WIDOW.

A Hindu widow does not, by her remarriage, lose her preferential rights of

guardianship over her minor children by the deceased husband whether such

marriage is permitted by custom or not.

NATURAL GUARDIAN OF AN ADOPTED SON:-

Section 7:- that the natural guardian of an adopted son, who is a minor, passes on

adoption to the adoptive father and after him to the adoptive mother. The natural

father and mother do not have any right, after adoption.

NATURAL GUARDIAN AFTER ADOPTION:-

After adoption the natural guardianship of the adopted child passes from his

natural father to his adoptive father.

Natural father after adoption can only be regarded as a defacto-guardian.

POWERS OF A NAUTRAL GUARDIAN.

SECTION 8:-

1. The natural guardian of hindu minor has power, subject to the powers

provision of this section, to do all acts which are necessary or reasonable

and proper for the benefit of the minor or for the realization, protection or

benefit of the minor’s estate:- but the guardian can in no case bind the

minor by a personal covenant.

2. The natural guardian shall not, without the previous permission of the

court

a. Mortgage or charge or transfer by sale, gift, exchange or otherwise

any part of the immovable property of the minor, or

b. Lease any part of such property for a term exceeding 5 years of for a

term extending more than one year beyond the date on which the

minor will attain majority.

3. Any disposal of immovable property by a natural guardian, in

contravention of sub-section (1) or sub-section (2) is voidable at the

instance of the minor of any person claiming under him.

4. No court shall grant permission to the natural guardian to do any of the

acts mention in sub-section (2) except in case of necessity or for an

evident advantage to the minor.

5. The guardians and wards Act. 1890 shall be applicable.

6. Court means city civil court

NECESSARY OR REASONABLE AND PROPER ACTS FOR THE

BENEFIT OF THE MINOR.

A natural guardian has the power to place such restraint on the minor in regard to

his upbringing, education and health as may be necessary or reasonable or proper

for the benefit of the minor.

MANIK CHAND V. RAM CHAND [AIR 1981 SC 519]

The Supreme Court clearly laid down that, the natural guardian has been

empowered to do all such acts which are necessary for the welfare and benefit of

the child.

POWER TO ENTER INTO CONTRACTS.

RUMAL V. SRINIVAS [AIR 1985 DEL. 153]

The Delhi High court has held that any contract executed by the guardian of the

minor can be specifically enforced by the minor or against the minor. Under the

law the natural guardian has been empowered to enter into the contract.

If the contract is in the welfare of the minor, it will be binding and will be

enforceable.

COMPROMISE BY NATURAL GUARDIAN:-

A guardian is competent to enter into a compromise on behalf of his ward.

ACKNOWLEDGMENT OF DEBT BY GUARDIAN:

A natural guardian of a minor as well as a guardian appointed by the court or has

power to acknowledge a debt or to pay interest on a debt so as to extend the period

of limitation provided the act is for the protection or benefit of the minor’s

property.

FAMILY ARRANGEMENT:-

The natural guardian has the power to enter into family settlement on behalf of the

minor provided it is the nature of a bona fide compromise of doubtful claims.

POWER OF ALIENATION:-

The natural guardian of a Hindu minor has power in the management of the estate

to sell or mortgage any part of the estate in case of necessity or for benefit of the

estate, provided the natural guardian has taken permission of th court prior to such

alienation.

Case law

JANARDHAN PILLAI V. B.A RADHAMMA [AIR 1986 KER. 303]

The court held that a sale of minor’s property effected by his natural guardian

without obtaining the specific sanction of the court under section 8(2) is an act

which is prohibited by law and is, therefore invalid.

CONTROL OVER THE POWERS OF NATURAL GUARDIAN.

PREVIOUS PERMISSION OF THE COURT:- SECTION 8(2)

The natural guardian without the previous sanction of the court shall do no

transaction by sale, gift, exchange or otherwise of any part of the immovable

property of the minor and lease of any part of such property for a term exceeding 5

years of for a term extending more than one year beyond the date on which the

minor will attain majority.

WHEN COURT TO GRANT PERMISSION:-

1. Necessity, or

2. An evident advantage to the minor.

EFFECT OF SUCH PERMISSION:-

An alienation made with the permission of the court, cannot be impeached by the

minor or any other person except in a case of fraud of underhand dealing.

EFFECT OF TRANSFER IN CONTRAVENTION OF THE ACT:-

If any transfer is made in contravention of the Act, it would be voidable at the

option of the minor.

PROCEDURE FOR OBTAINING PERMISSION.

1. Procedure and principles which will govern grant of permission by the court

to a natural or his testamentary guardian to transfer the immovable property

are prescribed by sub-section (4) (5) and (6) of the section 8 of this Act.

2. The order granting the permission shall recite the necessity or advantage, as

the case may be, describe the property with respect to which the act

permitted is to be done, and specify such condition, if any as the court may

see fit to attach to the permission; and it shall be recorded, dated and signed

by the judge, of the court with his own hand, or when from any cause he is

prevented from recording the order with his own hand, shall be taken down

in writing from his dictation and be dated and signed by him.

3. The court may, in its discretion, impose the following among their

conditions namely;-

a. The sale shall not be completed without the sanction of the court;

b. That a sale be made to the highest bidder by public auction before the

court or some person specially appointed by the court for that purpose as

a time and place to be specified by the court.

c. That the whole or any of the proceeds of the sale permitted shall be paid

into the court by the guardian, to be disbursed therefrom or be invested

by the court on prescribed securities or to be otherwise disposed of as the

court directs.

4. Before granting the permission to a guardian to do an act , the court may

cause notice of the application for the permission to be given to any relative

or friend of the ward who should, in its opinion, receive notice thereof, and

shall hear and record statement of any person who appears in opposition to

the application.”

2. TESTAMENTARY GUARDIAN

Are those guardians who are appointed by a will of the natural guardian, entitled to

act as a guardian for the minor. It becomes effective only after the death of the

testator.

Section 9

1. A Hindu father entitled to act as the natural guardian of his minor legitimate

children may, by will appoint a guardian for any of them in respect of the

minor’s property (other than the undivided interest referred to section 12) or

in respect of both.

2. An appointment made under sub-section (1) shall have no effect if the father

pre-deceases the mother, but shall revive, if the mother dies without

appointing by will, any person as guardian.

3. A Hindu widow, entitled to act as the natural guardian of her minor

legitimate children, and a Hindu mother entitled to act as the natural

guardian of her minor legitimate children by reason of the fact that the

father has become disentitled to act as such, may, by will appoint a guardian

for any of them in respect of the minor’s person or in respect of the minor’s

property (other than the undivided interest referred to in section 12) or in

respect of both)

4. A Hindu mother entitled to act as the natural guardian of her minor

illegitimate children may, by will, appoint a guardian for any of them in

respect of the minor’s person or in respect of the minor’s person or in both.

5. The guardian so appointed by will has the power to act as the minor’s

guardian, after the death of the minor’s father or mother, as the case may be,

and to exercise all the powers of a natural guardian under this Act to such

extent and subject to such restrictions, if any, as are specified in this Act and

in the will.

6. The right of the guardian so appointed by will shall, where the minor is a

girl, cease on her marriage.

Who may appoint?

The Act recognizes the right of the following persons to appoint guardian of the

person and separate property of a Hindu minor.

1. The father , natural and adoptive;

2. The mother, natural and adoptive;

3. The widowed mother, natural and adoptive.

WHO CAN APPLY FOR APPOINTMENT AS GUARDIAN.

1. The person desirous of being or claiming to be the guardian of the

minor or;

2. Any relative or friend of the minor; or

3. The collector of the district or other local area in which-

a. The minor ordinarily resides.

b. The minor holds property or

4. If the minor belongs to a class the collector who has authority with

respect to that class.

Powers of guardian appointed by the court.

The powers are the same as of the natural guardian or testamentary guardian.

3. DE-FACTO

GUARDIAN

A de-facto guardian of a minor, is neither a legal guardian, nor a testamentary

guardian nor a guardian appointed by the court, but he a person, who himself takes

over the management of the affairs of the minor, as if he was a natural guardian.

Some continuous course of conduct is necessary on his part.

A person having the care of properties of a minor but who is neither a natural

guardian, testamentary guardian nor a guardian appointed by the court is only a de

facto guardian and the restriction under section 11 will apply to his acts.

According to section 11 of the Act the de facto guardian is not recognized and he

cannot deal with the property of a minor.

4. AD HOC

GUARDIAN.

It means “for this purpose.” There must be some course of conduct in that capacity,

it implies some continuity of conduct, some management of the property beyond

the isolated act of alienation which is being challenged.

Even this type has no place in this Act.

REMEDIES OF GUARDIAN FOR CUSTODY OF A MINOR.

A guardian, who has been deprived of the custody of his ward, has the following

remedies open to him:-

1. Writ of habeas

corpus within the original civil jurisdiction of a High court.

2. Application to

a Magistrate under section 97 or sec 98 of the criminal procedure code 1973.

3. Regular suit

by guardian for custody of the ward.

4. Petition for the

restoration of the custody of his ward under section 25 of the guardians and

wards act, 1890.

RIGHTS AND LIABILITIES OF GUARDIAN.

1. Is entitled to

the custody of his ward and exclusive possession of his property.

2. He alone is

entitled to sue or be sued on behalf of the minor.

3. He can enter

into a compromise or can agree to refer the dispute to arbitration in order

to preserve the interest of the child.

4. The

compromise would be binding only when it fulfills the interest of the

minor and approved by the court.

5. The expensed

incurred by the guardian can be taken from the minor’s property.

6. He is liable for

breach of trust.

7. He is not

entitled for remuneration unless it has been specified in the will.

8. Manage

minor’s property prudently.

9. Render all

accounts to the minor.

10. If a minor

discharges the guardian once he attains the majority, the liability of the

guardian comes to an end.

Q.No.5. What is an adoption? Explain the powers of a male and female

Hindu in adoption as per the Hindu Adoption and Maintenance Act 1956.

INTRODUCTION :-

Manu defines an adopted son as follows:- “A son equal in caste and

affectionately diposed whom his mother or father (or both) give with water at time

of calamity is known as the Dattrima (Dattaka Son).

Thus adoption is the transplantation of son from the family in which he is born, to

another family where he is given by the natural parents by way of gift. The

adopted son is then taken as being born in the new family and acquired rights,

duties, and status there only and his ties with the old family comes to an end.

The powers of a male and female Hindu in adoption as per the Hindu Adoption

and Maintenance Act 1956.

Section 7 deals with adoption by a male

Section 8 deals with adoption by a female

Section 7 deals with adoption by a male:-

The capacity of a male to take in adoption.

Section 7 Any male Hindu

a. who is sound mind

b. who is not a minor has the capacity to take a son or daughter in

adoption.

Provided – if he has wife consent of the wife is needed

The consent of the wife is not needed

� if the wife has completely renounce the world

� has converted to another religion

� or unsound mind the consent of the wife is not needed

If the consent of the wife is not taken the adoption is invalid.

Case Law

GHISALAL VS. DHAPU BAI [AIR 2011 SC 644]

The supreme court has laid down that the consent of wife either should be in

writing or reflected by positive act voluntarily and willingly done by her.

If the person is having 1 or more wives consent of all the wives is necessary.

Consent of wife when not necessary;

The consent of the wife will not be necessary if the wife whose consent is sought

has,

1. Completely and finally renounced the world.

2. Ceased to be a Hindu

3. Has been declared by a court of competent jurisdiction to be of an unsound

mind.

Section 8 deals with adoption by a female

The capacity of a female to take in adoption.

Any female

a. who is of sound mind

b. who is not a minor

c. who is not married or

if married,

i. whose marriage has been dissolved

ii. whose husband is dead

iii. whose husband has completely and finally renounced the world.

iv. Whose husband has ceased to be a hindu.

v. Whose husband has been declared by a court of competent jurisdiction

to be of unsound mind.

Has the capacity to take a son or daughter in adoption. Consent of the husband is

necessary if husband is alive.

RIGHT OF MALE AND FEMALE TO ADOPT

Section 11 – other conditions for a valid adoption-

1. If the adoption is son , the father or mother should not have son, son’s son, or

son’s son’s son living (whether legitimate or adoption) living at the time of

adoption.

2. If the adoption is of a daughter , the father and mother must not have a Hindu

daughter or son’s Daughter (Whether legitimate blood relationship or by adoption)

living at the time of adoption.

3. If the adoption is by a male and the person to be adopted is a female the

adoptive father is at least 21 yrs older than the person to be adopted.

4. If the adoption is by a female and the person to be adopted is a male the

adoptive mother is at least 21 yrs older than the person to be adopted.

5. The child shall not be adopted by 2 or more persons

6. The child to be adopted must be actually given and taken from the place of

family to the adopted family.

CASE LAW.

GOLAK CHANDRA RATH VS. KRATIBAS [AIR 1979 ORI 205]

In this case the Orissa High court held that,

The condition under section 11 must be fulfilled in adoption otherwise adoption is

not valid.

WHO MAY GIVE IN ADOPTION:-

Section 9(1) prescribes the capacity of persons, who give the child in adoption to

another.

1. No person except the father or mother or the guardian of a child shall have the

capacity to give the child in adoption.

2. Subject to the provisions of sub-sec 4 , the father, or the mother, if alive, shall

have equal right to give a son or daughter in adoption.

3. Where both the father and mother are dead or have completely and finally

renounced the world, or have abandoned the child or have been declared by a court

of competent jurisdiction to be of unsound mind or where the parentage of the

child is not known, the guardian of a child may give the child in adoption with the

previous permission of the court to any person including the guardian himself.

4. Before granting permission to a guardian, the court shall be satisfied that the

adoption will be for the welfare of the child.

Who may be adopted?

Section 10:- No person shall be capable of being taken in adoption unless the

following conditions are fulfilled, namely,

i. He or she is a Hindu

ii. He or she has not already been adopted.

iii. He or she has not been married, unless there is a custom or

usage applicable to the parties which permits persons who are

married being taken in adoption.

iv. He or she has not completed the age of 15 yrs, unless there is a

custom or usage applicable to the parties which permits persons

who have completed the age of 15 yrs being taken in adoption.

Case law

ATLURI MANADAM . V. ANNE SAI BAPUJI [AIR 2011 SC 545]

In this case a person who was adopted when he was above the age of 15 yrs under

custom which permitted the adoption claimed the property of his adoptive father

on the ground that since the adoptive father died intestate, he being the adoptive

child was entitled to his property.

Adoption was made through a registered adoption deed that stated that the natural

parents of the claimant aged 18 had given him in adoption in presence of the

elders to Anne Seetharamaiah who was issueless in accordance with the Hindu

Adoption and Maintenance Act, 1956.

It also recited that the adoption was in accordance with the custom prevailing in

The court accepted the adoption as valid in view of the statutory exception made in

favour of custom to the contrary.

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Q.No.6. Define ‘Dependents’ under the Hindu Adoption and Maintenance

Act, 1956. How is the quantum of maintenance determined by the court?

INTRODUCTION

HINDU ADOPTIONS AND MAINTENANCE ACT 1956

The right of maintenance arises from the concept of an undivided family.

The head of the family is bound to maintain its members, their wives, and their

children.

What is maintenance?

It is right to get the necessities which are reasonable.

Section 3(b) of the Hindu Adoption and maintenance Act, 1956 defines

maintenance includes-

i) In all cases, provision for food, clothing, residence, education and medical

attendance and treatment

ii) In the case of an unmarried daughter, also the reasonable expenses of and

incident to her marriage.

“Dependents”:- “Dependants" means the following relatives of the deceased:

(i) his or her father;

(ii) his or her mother;

(iii) his widow, so long as she does not re-marry;

(iv) his or her son or the son of his predeceased son or the son of predeceased son

of his predeceased son, so long as he is a minor:

PROVIDED and to the extent that he is unable to obtain maintenance, in the case

of a grandson from his father's or mother's estate, and in the case of a great grand-

son, from the estate of his father or mother or father's father or father's mother;

(v) his or her unmarried daughter, or the unmarried daughter of his predeceased

son or the unmarried daughter of a predeceased son of his predeceased son, so long

as she remains unmarried:

PROVIDED and to the extent that she is unable to obtain maintenance, in the case

of a grand-daughter from her father's or mother's estate and in the case of a great-

grand-daughter from the estate of her father or mother or father's father or father's

mother;

(vi) his widowed daughter:

PROVIDED and to the extent that she is unable to obtain maintenance-

(a) from the estate of her husband, or

(b) from her son or daughter if any, or his or her estate; or

(c) from her father-in-law or his father or the estate of either of them;

(vii) any widow of his son or of a son of his predeceased son, so long as she does

not remarry:

PROVIDED and to the extent that she is unable to obtain maintenance from her

husband's estate, or from her son or daughter, if any, or his or her estate; or in the

case of a grandson's widow, also from her father-in-law's estate

(viii) his or her minor illegitimate son, so long as he remains a minor;

(ix) his or her illegitimate daughter, so long as she remains unmarried.

Q.NO.7.Who is a coparcener? What are his rights and liabilities in a

Mitakshara joint Family?

INTRODUCTION

A Hindu coparcenary is a much narrower body than a joint Hindu family. It

includes only those who acquire by birth an interest in the joint or as, it is called

“coparcenary property”, these being the sons, grandsons, and great-grandsons of

the joint property for the time being.

Now even the daughter is also a coparcener according to section 6 Hindu

succession (Amendment) Act 2005.

The essence of a coparcenary under the Mitakshara is community of interest

and unity of possession between all the members of the coparcenary.

Each coparcener is entitled to joint possession and, enjoyment of the common

property.

The essence of the coparcenary being unity of ownership, no individual

member of the family, while it remains undivided, can predicate of the joint and

undivided property that he has a certain definite share.

Thus, if a person inherits property from his father, grandfather or great

grandfather, his sons, grandsons and great grandsons and daughters of a

Mitakshara coparcener acquire an interest in it by birth and then they become with

him joint owners of the coparcenary property with a right to demand partition of

the same and all of them are coparceners and constitute a coparcenary.

STATE BANK OF INDIA V. GHAMANDI RAM [AIR 1969 SC 1330]

The Hon’ble Supreme court has laid down special feature of a Mitakshara

coparcenary given below.

1. The Male

descendants up to three generations from a common ancestor, who acquire

an interest by birth, constitute a coparcenary.

2. These

members of the coparcenary have right to demand partition.

3. So long

there is no partition, each of the coparceners has control over the entire

property along with others.

4. Their

ownership and right of joint possession are common, on account of co-

ownership.

5. There cannot

be any transfer of the coparcenary property unless the necessity of such

transfer is proved and all other members of the coparcenary give their

consent to this effect.

6. On the death

of any of the coparceners, hid share devolves on other coparceners by the

rule of survivorship not be succession.

Illustrations A

_____________________________________________________________

_

B C D1 D2

M N

E F O P

G H S T

In the above illustration, during the lifetime of A, the male holder in the

family, B, C the two sons of A, D1 and D2 the two daughters of A and E, F ,M,N

the grandsons and G,H,O,P the great-grandsons will constitute the coparcenary

along with A. In this case S and T are not coparceners because they are removed

from A beyond the three degrees. But as soon as A dies, S and T are also included

within the coparcenary.

FEATURES OF COPARCENARY

1. UNITY OF OWNERSHIP:-

The essential feature of a Mitakshara coparcenary property is unity of ownership

and community of interest. The ownership of coparcenary property is in the whole

body of the coparceners.

2. INDETERMINABILITY OF SHARES:-

In a Hindu undivided family governed by the Mitakshara law, no individual can

predicate, while it remains undivided, that he has a definite share in the property of

the family.

3.COMMUNITY OF INTEREST:-

No coparcener is entitled to any special interest in the coparcenary property, nor is

he or she entitled to exclusive possession of any party of the property.

4. DAUGHTER OF A COPARCENER MY ALSO BE A COPARCENER:-

The Hindu succession (Amendment)Act, 2005 – has made a daughter of a

Mitakshara coparcener, a coparcener by birth as if she were a son.

5. RIGHT BY BIRTH:-

The coparcenary property is a property in which the issue of the coparceners

acquire an interest by birth.

WHEN DOES A COPARCENARY COMES TO AN END

1. By partition

2. By the death of the last surviving coparcener.

RIGHTS OF COPARCENERS

1. Rights of common possession and common enjoyment:-

• There is community of interest and unity of possession between all

coparceners.

• No one is entitled to special interest in the coparcenary property.

2.Community of interest and right to savings

o No coparcener has got a defined share in coparcenary property, or in

the income of the property.

o While the property is undivided , no one can predicate that he has a

certain definite share in the property in the family.

1. RIGHT TO JOINT POSSESSION.

Each coparcener is entitled to joint possession and enjoyment of the family

property.

2. Right to enforce partition

Every coparcener whether major or minor is entitled to call for the partition

of his share, even against his father and brothers or the father and grand-

father.

3. RIGHT TO RESTRAIN UNAUTHORISED ACT.

A coparcener may restrain any unauthorized act of the other coparceners

property if such act interfere with the joint enjoyment thereof.

Ex. Erection of building , or wall or giving joint property in security.

4. RIGHT TO ASK FOR ACCOUNT

a coparcener may demand an account of the management of joint property

so that he may know the actual state of family funds.

5. RIGHT OF ALIENATION

A coparcener may alienate his undivided interest in the coparcenary by gift or

mortgage or sale with the consent of the other coparceners.

8. Right to set aside alienations.

• Every coparcener has a right to set aside alienation made by a father,

manager or any other coparcener beyond his authority.

9. RIGHT TO MAINTENANCE

• A coparceners wife and children are entitled to be maintained out of the

coparcenary funds;

10. RIGHT TO RENOUNCE INTEREST IN COPARCENARY PROPERTY.

A coparcener can renounce interest in coparcenary property in favour of all or any

one of the coparceners.

Q.NO.8. ANSWER ANY 2 OF THE FOLLOWING QUESTION

2x8=16

a) Void and voidable marriages

INTRODUCTION

VOID MARRIAGES:- Any marriage which is solemnized after the

commencement of the Act shall be null and void if it contravenes any one of the

conditions specified under sec 5 (i) (iV) & (V) when the petition presented by

either party.

The marriage will be null and void

Section 5(i) : when the spouse is living at the time of 2nd marriage

Section 5(iv):- if the parties to marriage are within prohibited degree relationship

Section 5(v):- if the parties to the marriage are sapindas.

CASE LAW;-

M.M.MALHOTRA VS. UNION OF INDIA

The supreme court has observed that the marriages covered under section 11

are void the very inception and have to be ignored as not existing in law at all.

VIODABLE MARRIAGES :-

Any marriage soleminized whether before or after the commencement of

this act shall be voidable and may be annulled by a decree of nullity on the

following grounds.

Section 12(1)(a)

a. Impotency:- The primary objet of marriage is procuring of issue and

physical capacity potency is an essential requirement.

Impotency is the permanent and incurable incapacity to consummate the

marriage

It may arise from some incurable mental or moral disability the other

spouse resulting in inability to consummate the marriage.

Medical examination of the parties is essential to annul the marriage on

the ground of impotency

CASE LAW

MOINA VS. AMARDEEP [AIR 1976 DEL 399]

The Delhi High court held that the petitioner would be entitled to a decree of

nullity of marriage if the marriage was not consummated due to impotence of the

respondent spouse.

Proof of Impotency

Even uncorroborated testimony of the petitioner is sufficient if it can be

believed. It can also be established by medical examination.

Where one of the parties of marriage is compelled to undergo medical

examination for established his potency it cannot be said that it is violative of his

personal liberty , right of privacy.

UNSOUNDNESS OF MIND

Marriage can be annulled when it contravenes section 5(ii) of the Act that is

neither the party shall suffer from unsoundness of mind at the time of marriage.

3 circumstances of unsoundness where

1. Is incapable of giving a valid consent

2. Though capable of giving a valid consent but suffering from mental disorder

to that extent to be unfit for marriage and procreation of children.

3. Has been subject to recurrent attacks of insanity.

Section 12(1) (b) refers that any marriage shall be voidable and may be

annulled if the marriage is in contravention of the condition specified in section

5(ii)

Section 12(1) (c) consent obtained by force or fraud:- it states that the marriage

is voidable on the ground that the consent of the petitioner or of the guardian

has been obtained by force of fraud.

Child Marriage Act has given minimum age for marriage to male is 21 and

female is 18.

CASE LAW

NAND KISHORE VS. SMT. MUNNI BAI [ AIR 1979 MP. 45]

The High court of Madhya Pradesh has held that the terms force and fraud

means those condition in which there is absence of real consent

It may be any practice

Previously married etc

Must older then the husband

Virginity of girl or boy etc

According to section 12(1) (c) a marriage brought about by force or fraud may

be declared invalid where:-

1. The force or fraud has been committed upon the petitioner himself or herself

2. Before the commencement of child marriage restraint act 1978 where the

guardian consent was much required if such consent is acquired by fraud or

force, it may be ceremony material fact etc of the respondent.

Exception :- No petition more than 1 yrs after the fraud or force marriage is

discovered.

The petitioner has with his/ her full consent has agreed to live together even

after discovering the fraud/force.

D. PREGANCY OF THE WIFE AT THE TIME OF MARRIAGE:-

The marriage can be annulled if the respondent was at the time of the marriage

pregnant by some person other than the petitioner.

CASE LAW

MAHENDRA VS. SUSHILA BAI [AIR 1965 SC 364]

In this case the baby was born to Sushila after 171 days from the date of

marriage (5month 21 days) and the child was fully developed healthy child.

In this case there was no evidence of the husband and wife to meet before

marriage and the wife admitted her pregnancy from before the solemnization of

marriage, when the husband had not met her.

Hence the husband was held entitled to the decree.

Limitation :- No petition shall be entertained

1. That the petitioner was at the time of marriage ignorant of the facts alleged

2. The petition is filed within one year of such commencement of this Act.

3. The marital intercourse with the consent of the petitioner has not taken

place.

Difference between void and voidable marriage.

VOID MARRIAGE VOIDABLE

MARRIAGE

1. It is totally null , void abinitio It is a marriage which is valid

for all purposes whatever

Unless it is annulled by the

district court on the petition of

the aggrieved party

2. In this marriage neither the party A fresh marriage during the

Is liable to the bigamy subsistence of a voidable

Marriage and before it is

Annulled by a decree of

Nulling will be considered a

Bigamous.

Legal impact of declaration of marriage void by a competent court

A void marriage is void from the very beginning. But a voidable marriage

remain valid and binding until a declaration of nullity is made by a competent

court.

Legitimacy of children of void and voidable marriage:-

Section 16 of the Hindu Marriage Act protects the interest of the children

begotten or conceived before the decree is made in the case of void and

voidable marriage under section 12 of the Act

Children are considered to be legitimate

CASE LAW

PERUMAL GOUNDER VS. POCHAYAPPA [AIR 1990 MAD 110]

If a person marries 2nd wife during the subsistence of 1st valid marriage the

children born of 2nd marriage would be legitimate under section 16 of the Act.

b) Gifts

GIFTS

Section 122 of transfer of property Act 1882, defines ‘Gift’

Gift is the transfer of certain existing movable or immovable property made

voluntarily and without consideration, by one person called the donor; to another

called the done, and accepted by or on behalf of the done.’

Under this Act, a gift of immovable property can only be effected by a registered

instrument signed by or on behalf of the donor and attested by atleast two

witnesses.

For movable property, the transfer may be effected by a registered instrument or by

a delivery of possession.

The essentials of a valid gift are that there must be a donor, a done, a proper object

of gift and a transaction involving certain formalities.

GIFT UNDER MITAKSHARA LAW-

Gift consists in the relinquishment (without consideration) of one’s own right (in

property) and creation of the right of another, and the creation of another man’s

right is completed on the other’s acceptance of the gift, but not otherwise.

Subject matter of gift-

The following property may validly be disposed of by gift even after the

commencement of the transfer of property Act 1882.

1. Separate or

self-acquired property of a Hindu, whether governed by Mitakshara or

Dayabhaga law.

2. Stridhana i.e.

woman’s absolute property.

3. Impartible

property, unless prohibited by custom or the term of the tenure.

4. Interest of a

coparcener under the dayabhaga law.

5. The whole of

the ancestral property by the father under the Dayabhaga law.

6. A small portion

of the property, inherited by hindu widow, may be gifted by her

daughter or her son-in-law at the time of marriage.

7. Movable

property inherited by a widow governed by mayukha law.

GIFT WHEN COMPLETED?

Though a gift is registered, it should accompanied by delivery of possession.

GIFT TO UNBORN PERSONS.

According to transfer of property act.

No gift is invalid by reason only that any person for whose benefit it may have

been made was not born at the time of the gift.

REVOCATION OF GIFT:-

A gift once completed cannot be revoked unless it was obtained by fraud or under

influence.

Gifts to trusts –

A trust of even immovable property could be created by oral declaration and

delivery of possession.

c) Pious Obligation.

DOCTRINE OF PIOUS OBLIGATION:-

The doctrine has its origin in Smritis. Non-payment of debt is a positive sin, that

evil consequences of which follow the undischarged debts even in the world

afterwards. An obligation is imposed upon the sons to pay their father’s debts.

Effects of judicial decision on the doctrine:-

Judicial decision has modified same aspects of Pious obligation. Obligation

of the son is not a personal obligation. His obligation is confined to the assests

received by him in his share of the joint family property. The obligation of son

exists whether the sons are major or minor, whether the father is alive or dead.

If the debts have been contracted by the father and they are no immoral or

irreligious the interest of the sons in the coparcenary property can always be made

liable for such debt.

The fundamental Rule:-

The hindu son is not liable for debts contracted by his father, which is

Ayavaharika i.e, illegal, dishonest or immoral.

When does the liability of the son arises?

• When the father’s debt is not immoral or illegal

• Both father and son is liable

• It does not depend whether the father is dead or alive

• Immediately when the father fails to pay the debts son’s liability arises.

• Son’s liability is limited only to the son’s interest in the coparcenary

property.

According to Mitakshara school of hindu law.

1. The son is under pious obligation to pay his father’s debt which is

“vyavharika” that is lawful and not avyavaharika” that is unlawfull,

illegal or immoral incurred before partition i.e, when they were joint.

2. The son is not liable for a debt contracted by father after partition.

Avyavaharika debts:-

There are many meaning to this word. Whether a debt is immoral or

not is to be judged with reference to the time when it originated and the rule

is not rigid but has to be applied with reference to the circumstances of each

case.

The sons, grandson and great grandson are not bound to pay

avyavahrika debt of the father.

CASE LAW

S.M.JAKATI VS. SM. BARKER [AIR 1959 SC 282]

The supreme court observed that it is the pious duty of the sons to discharge

their father’s debt not tainted with immorality or illegality.

Unlawful Debts (avyavahrika debt)

1. Debts due for spirituous liquors

2. Debts due for lust

3. Debts due for gambling

4. Unpaid fines

5. Unpaid tolls

6. Useless gifts or promises without consideration

7. Promises made under the influence of lust and wrath

8. Commercial debts

9. Any debts which is avyavaharika

10. Surety ship debts

SON’S LIABILITY CLASSIFIED

1.LIABILITY FOR THE DEBT CONTRACTED BEFORE PARTITION

The liability for the debt contracted before partition may be sub-divided

as shown in the above diagram into the following classes;

A. Debts incurred by father as manager of karta of the joint family for

family purposes.

The father , grand-father or great-grand father, as karta of a joint family, has

authority to contract debts for necessity or benefit of the family and whole

joint-family property including the interest of the sons, grandsons and great-

grandsons is liable for the payment of that debt only.

Thus the son, grandson or great-grand son are liable only to the extent of

their share in the coparcenary property.

This liability of the sons exists today even after the Hindu succession

(Amendment) Act 2005.

B. Debt incurred by the father for his personal benefit

If the debt is incurred by the father for his personal benefit, the son will be

liable of the payment of the debt provided the debt is not tainted will

illegality or immorality.

This liability is limited to the son’s interest in the coparcenary property and

the whole family property is not liable for the payment of the personal debts.

2. Liability for the debt contracted after the partition.

The sons after a partition with the father are under no legal liability to pay his

debts contracted after the partition.

The son is, however liable after partition for a debt contracted by the father before

partition but only to the extent of the share he has obtained on the partition.

FATHER’S POWER OF SALE TO SATISFY ANTECEDENT DEBTS:-

The Liability of a son to pay the debts of his father exists, whether the father is

alive or dead.

Thus, it is open for the father during his lifetime to effect a transfer of any joint-

family property including the interests of his sons in order to pay off the

“antecedent debt” provided it is not tainted with immorality.

For, when is such a case he alienates the property, which he may be taken to

exercise the power of alienation which the sons would have exercised in discharge

of their pious duty which they owed him; he is virtually alienating the property for

them and on their behalf, in discharge of the duty.

CASE LAW

PRASAD V. GOVINDASWAMI [AIR 1982 S.C.84]

The supreme court reiterated the well-established view that the father may

alienate the joint family property to pay off his antecedent untainted debts and

observed that he(the father) must act prudently and if consideration in inadequate

the sale will not be valid.

III. Answer any two of the following questions 2X10=20

1. A dies intestate leaving behind his two Widows “Y” and “X” and two

daughters “M” , “N” and one son “Z” and mother “K”. Distribute the

property among them.

Answer:-

The distribution of the property among the members will be divided into 1/5.

That is two wives Y and X will take 1 share,

Two daughters M and N each will take 1 share.

Son Z will take 1 share and

Mother K will take 1 share.

Here the property among the following members will be divided as per the rules

given under Hindu Succession Act 1956.

Section 8 to 13 deals with rules of succession in connection with th separate

property of a male Hindu dying intestate.

Section 8 :- divides the heirs of a male for the purpose of inheriting the property

into 4 classes. These are,

1.Relation mentioned in Class I of the Schedule

2. Relation mentioned in Class II of the schedule

3.Agnates of the deceased.

4. Cognates of the deceased.

Section 9:- states among the heirs specified in the schedule those in Class I shall

take simultaneously and to the exclusion of all other heirs.

� Son

� Daughter

� Widow

� Mother

� Son of pre-deceased son

� Daughter of a pre-deceased son

� Son of pre-deceased Daughter

� Daughter of a pre-deceased Daughter

� Widow of pre-deceased son

� Son of pre-deceased son of pre-deceased son

� Daughter of a pre-deceased son of pre-deceased son

� Widow of pre-deceased son of a pre-deceased son

� Son of pre-deceased Daughter of pre-deceased Daughter

� Daughter of a pre-deceased Daughter of a pre-deceased Daughter

� Daughter of a pre-deceased son of a pre-deceased Daughter

� Daughter of a pre-deceased Daughter of a pre-deceased son.

Distribution of property among heirs in Class-I of the schedule :- section 10

has given 4 rules regarding the distribution of property.

“The property of an intestate shall be divided among the heirs in class-I of the

schedule in accordance with the following rules:-

� Rule 1:- the Intestate’s widow or if there is more widows than one all the

widows together shall take one share.

Explanation:- widow is entitled to one share, if more than one widows that all

widows together are entitled to one share.

� Rule2:- the surviving sons and daughters and the mother of the intestate

shall each take one share.

� Explanation :- each surviving sons, daughters and mother get one share

each.

� Rule 3 :- the heirs in the branch of each pre-deceased son or each pre-

deceased daughter of the intestate shall take between them one share.

� Explanation:-the heirs of the deceased in the branches of predeceased sons

and pre-deceased daughters take not per-capita but per-stirpes.

Rule 4:- The distribution of the share referred to in Rule – 3

� Among the heirs in the branch of the pre-deceased son shall be so made that

his widow (or widows) and the surviving sons and daughters get equal

portion and the branch of his pre-deceased sons gets the same portion.

� Among the heirs in the branch of the pre-deceased daughter shall be so made

that the surviving sons and daughters get equal portions”.

� Explanation:- the heirs of pre-deceased son together shall get only one share

just as the branch of a pre-deceased son got only one share under Rule -3.

2. A Joint Hindu family consist of father ‘F’ and his son ‘S’. Partition

takes place between ‘F’ and ‘S’. Two years after partition another son

‘T’ is born to ‘F’. Now state who all coparceners are and what the

share of property of each person is.

Answer:-

In this problem F father and his son S and T are coparcener. All are having equal

shares in the property.

But in the problem the partition has already taken place between F and S and father

has taken his share and after two years “T” the son is born.

In this case the question regarding re-opening of partition.

The re-opening of thepartition can be at the instance of the following member only.

1.A son conceived at the time of partition, though not born before partition, can re-

open it if a share has not been reserved for him; on the other hand, if a son is

begotten as well as born after partition, and if a share has been allotted to the

father, such after born son is not entitled to have the partition re-opened and the

property redistributed on the ground that the partition has been completed by actual

division of the estate. He is only entitled to succeed to his father’s share and his

separate or self-acquired property to the exclusion of the divided sons;

In the above mentioned problem “F” has taken an share and hence son ‘T’ is

entitled to take the share of the father.

3. A Hindu widow inherits property from her husband in 2003 and adopts

a son in 2007. Can the adopted boy inherit the property?

Answer:

Section 8 of Hindu Adoption and Maintenance Act 1956 lays down the condition

in which a Hindu female can adopt.

Any female Hindu

a. Who is of sound mind

b. Who is not a minor

c. Who is not married, or

If married,-

i. Whose marriage has been dissolved.

ii. Whose husband is dead

iii. Has completely and finally renounced the world

iv. Has ceased to be a hindu

v. Has been declared by a court of competent jurisdiction to be of

unsound mind,

In the above mentioned problem section 8 recognizes the right of a Hindu widow

to adopt a son or daughter to herself.

The effect of adoption by a widow of a son or daughter will be to clothe the

adopted son or daughter with all the rights of a natural born son or daughter in the

adoptive family and to create all the ties of the child in the family.

Hence the child adopted by the widow is having all the rights to inherit the

properties of the father.

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