Family Law Notes

Deepali Ma’am
Section 8: Capacity of a female to adopt a child.
The legal ground relating to any female (married or unmarried) is:
Has the capacity
 In case of an unmarried female:
The age gap must be 21 years between the adaptive child and
the mother.
Must be sane and a major(adult)
She can also adopt a child without taking consent from anyone
 For married female
The consent of the husband is needed for the wife to adopt a
child otherwise she has no personal legal capacity.
There is a silent subclause: Even if the consent of the husband is
still the married female does not have any capacity to adopt a
child
The succession of property is generally done by the children
after the father and then the wife is allowed. Giving wife the
right to adopt may also cause legal conflicts and the father may
later not bear the expenses of the child. Other members of the
family can also deny from taking care of the child.
Lankdmark case law: Dashrath V Pandu MahLJ

Personal law amendment act 2010: Happened because

joint family system started degrading and the nuclear
family culture was started. The husband and wife take
mutual care of the child.
 For divorce:
Another subclause: The married female no need to take the
consent of the husband if the husband has finally and fully
renounced from world (Samadhi), has changed his religion
from Hindu to some another religion or there is the
existence of the husband but he is not in sane mind.
 The status of both husband and wife become single after
divorce and if the wife asks for maintenance, then the
husband would be paying the maintenance of the wife. He
has nothing to do with the child.
 Widow:
A widow is allowed to adopt a child without the consent of
anyone.
There a doctrine of Relation Back: For the property of the
husband to be succeeded the, she can adopt a child in the
name of the husband. That is why a widow’s power is
coextensive. It is also written in Personal law Amendment
act 2010.
Balusu Gurulingaswami V Balusu Ramalaxmi ILRMAD
Pg 398: If she is adopting a child then no need to take
consent of the relatives of the dead husband she can adopt a
child.
Consent of Co-widow: If the husband had 2 or more wives
(According to the concept of the polygamy) then the widow
needs to take the consent of the other widow. This is
important because there is equal right of all the widows on
the property of the dead.
Landmark case law Vijayalakshmi vs BT Shankar AIR
2001Supreme Court:

Section 9: Capacity of a person to give a child in adoption:

Father mother and the guardian have a capacity to give a
child in adoption.
 In case of unmarried daughter:
Without the consent of the husband the wife cannot give the
child for adoption.
The law is silent here as there is no reason for this. Anf the
law is silent in the case of a son.
 In the matters of Divorce:
Even after divorce (Judicial separation) the husband is the al
facto guardian of the daughter still. The dissolution of
 marriage happened between the husband and the wife and not
between the father and the daughter.

 3rd Legal Guideline: A wife is not needed to take consent

from her husband if the husband has finally and completely
renounces from the world, Changed his religion from Hindu
or if he is not of sane right.
According to the law, mother and father both have equal
powers when a child is to be given for adoption.
 De-facto Guardian: The guardianship can change according
to the facts. For example, if the grandparents are the de-facto
guardian then they are old and they can’t take care of the
child then,
The court provides the order to do the same, and the court has
to keep in mind about the:
Welfare of the child.
Happiness and consent of the child
No payment or consideration is taken for to and fro of the
child.( the property they are offering keeping in mind for the
welfare of the child is not considered payment)
Section 10: Capacity of a person to be adopted:
The child or the person should be Hindu by religion.
The child must be of sound mind
Amendment of Personal Law Act
JJ care and protection act
CARA
Orphaned, surrendered, abandoned, LGBTQ or insane any type of a
child can be adopted.
A married person cannot be adopted but if there is a customory need
of the family , then the child can be adopted.
The child must be below the age of 15 years but if customs and
usages are applicable then a bigger child can also be adopted.
If a child has been adopted already then the child cannot be adopted
again until and unless the court gets involved.
Landmark Case law: Kumar Sursan v state of Bihar AIR 2006,
PATHC pg 24
Landmark Case law: Nath ji Krishna JI V Hari, AIR 1871
Bombay HCR pg 67: A person of any age and a married person can
be taken into adoption.
Landmark case law of Devgonda Raygonda Patil V Shamgonda
Raygonda Patil AIR 1992 POM pg 189: A lunatic person or an
insane person can also be taken for adoption,

Section 11: There are 4 guidelines in this section:

If a person adopts a son then he cannot have a son, grandson or son’s
son’s son .
If a person adopts a daughter, then there shouldn’t be a daughter,
son’s daughter or daughter’s daughter’s daughter.
Datta homhom(Customs of Hindu for a child to be of theHindu
religion): It is a custom Hindu religion that to prove the validy of
marriage the is not needed.
Section 12: Effects of adoption:
Natural Father and mother : natural child.
Unmarried father and mother later remarried has the relationship of
stepfather and stepmother.

If any property belongss to the child the adoptive father and mother
has to take care of the child.
Prohibited decree: Section 5 of HMA.
Possible type questions:
 What do you mean by adoption? And explain briefly the
essential features of adoption according to section 6 of
HAMA. (Section 1 to 10)
 What are the effects of adoption and the norms behind valid
adoption. (11-21)
 Explain briefly the concept of acknowledgement of paternity
under muslim law.
 Concept of Intercountry adoption.
Landmark case law lakshmikant pandey v union of India.
Inter Country adoption: It is the adoption of Indian children by a
foreign person or parents. To overcome this process there is no law or
a set of rules and regulations. This is not under any sprecifies act or
rules and regulations.
Under Intern Country adoption:
HAMA: doesn’t provide any outline relating to the Inter country
adoption.
Two acts fullfil the welfare of the child:
Guardians and Wards act 1890: Welfare principles stringent to the
guardians only.
But how does it relate to inter country adoption?
The guidelines are just for the welfare of a child and parents.
Therefore, the welfare principles stand for all the parents.
What will be the final citizenship of the child after being transfered.
The landmark cases are only related to the transferring of the child
CARA: Laxmikant Pandey V union Of India 1984 :
Has said that CARA is the mediator and holds all the information
about the child that has been transferred. There are many loopholes as
the citizenship can’t be counted. This can also increase in Human
trafficking laundering of child. Intercountry adoption has been on a
block in the recent times. But if a person wants to adopt from foreign
countries then CARA steps in and they lay guidelines and through
them . Although the guidelines are irregular as they do not reveal the
information of where the kid goes. There were guidelines given by the
APEX court:
 Only the government agencies should be entrusted with the task
of scrutinizing of applications in the matters of inter country
adoption.
Scrutinizing of application: purpose and objectives of adopting a child
from registered agencies.
 What are the applications to be verified?
Family background of the family members.
Financial status, mainly father but both can also be taken.
Health status: Parents heath status in the former report and then the
child’s health status.
Why is the child’s health report required?
If the child suffers from any life endangering disease an it is not
taken in a verified way and the child dies then a bond that is signed
for property is also taken into consideration.
According to HAMA, the child should be under 15 years, but here
the child must have completed the age of 3 years so that there is no
manipulation regarding the welfare rules, the guardianship of the
child is verified as to where he grew up for 3 years. The
geographical region also effects the bodily habits of the child.
Example: if a child is from a warm country but he/she is taken to a
very cold country then he/she would not be able to survive.
If the relationship of the parenthood, country, culture etc is not
suited then CARA can cancel the adoption and take back the child.
  A progress report of the child from his living conditions to
mental health of the child with a recent photograph, time to time
updated by the foreign nationals to CARA because CARA’s AI
will make predictions of a rough picture of the child’s facial
identity in the future years. This is done in order to make out if
the child is healthy or not. It also prevents the parents from
selling the child, the child is healthy and living.
This process should be done by the parents for the next 3 years
in 3 to 6 months of interval.
CARA also random visits the parents from India’s Child fund. If
they find any malpractices have been done with the child, then they
can cancel the adoption at the moment only.
NOTE: There is no provision for already grown-up children
whose facial features have already been developed.
 The foreign nationals shall deposit or enter into a bond with
certain amounts. The amount is fixed by CARA according to the
financial status of the parents and according to the welfare of the
child, the child’s feeding and maintenance is also deposited by
the parents depending on CARA.
 The entire proceeding on the application should be confidential
and as soon as the order is made on the applications then the
papers and the documents should be sealed.
JJ Care and protection Act in relation with Inter Country
adoption:
Relating to the citizenship of the child the act is again silent.
The objective of this act is to provide welfare principles. It is an
umbrella act which covers not just an adoptive child but also involves
any child with parents without parents, juvenile etc.
Initiation of CARA (Central Adoption Resource agency) : If a child
is adopted by a foreign couple from India
Laxmikant Pandey V UOI AIR 1984, SCC 469: The religion of the
child also adds to their personality. India is divided into 4 regions and
the geographical conditions also indicate the region a person belongs
from. If a foreign national wants to adopt from India , if they want to
to be a specific child from a specific region then, RIPA steps in.
Rasik lal Chagan lal Mehta AIR 1982 Gujarat High Court pg.
193: A German couple wanted to adopt a child from Gujarat. The
court of law was about to certify the adoption. The inclusion of
consideration in the process was kept confidential. Later on, a
problem arose in Germany ad later the couple went down for child
laundering.
Why would one want to adopt a child from a rural area in Gujarat
being a German couple: Desperation for a child but as said by CARA
there were no documents relating to health of the parents and other
important details of the parents.
There are 2 departments:
EFFA: Enlisted foreign adoption agency which is present in every
country. EFFA does not filter out any applications.
RIPA: Regional Indian Placement agency.
Process Of CARA: If a foreign couple wants to adopt a foreign child
then they would need to apply in the EFFA of their country and then
it is passed to RIPA: Regional Indian Placement agency in every
capital of every state in India. They the community members who
belong from the RIPA agency search the child in need. RIPA
basically, identifies the child as according to the suitability. RIPA
searches amongst the registered agencies.
Now RIPA moves to the court to get the no objection certificate by
CARA, and to fulfil the formalities of guardianship. CARA is linked
with every court of law.

Module 2
Hindu Minority and Guardian ship Act
Under this act wherever needed it will be linked with HAMA.
Wherever there is a minor child obviously the parents are the
guardians without any legal principles. It was enforced in 1956, along
with HAMA.
The objective of this act are: To establish the principles of adoptive
parents as natural parents of the child. Special rights and duties of the
same were also enacted.
There are rights and duties about 2 parties only: The minor and the
guardian. The rights and duties of a guardian towards a child to fulfil
the welfare principles.
Minor: Below the age of 18 years the child will be considered as
a minor. In the case of this act a Hindu.
Guardian: The protector who fulfils all the welfare principles of a
child of the fooding, bedding and in some cases till marriage.
If the child is the successor of any property may it be movable or
immovable then it is the guardian’s responsibility to protect the
minor’s property. The guardian has no power to misuse any kind of
property without consent of the minor, but the minor’s consent is not
valid. So, they take care of the property till the minor becomes a
major.
Applicability: It prioritises Hindus and it is specifically for a Hindu
father, Hindu mother and any individual who belongs to Hindu.
A person who is Hindu by religion or who belongs to the 5 subsets of
Hinduism. It also belongs to a person who has converted his religion
to Hinduism or has reconverted into the same.
It applies to both legitimate and illegitimate child.
Guardians are of 4 kinds:
Natural Guardian
Appointed guardian: Appointed by will and consent of natural
guardian. (Testamentary guardianship)
Legal Guardian: Appointed by the court of law.
De facto guardian (Dejure): A person empowered to act as a
guardian by fact, a guardian acting under any type of enactment of
law.
Landmark case law of Hanuman Prashad V Banooee 1856 MIA
Pg 393 (Defacto) can also be used in HAMA and others.
Case law of DN Ramchandra V Annapurni AIR 1964 KER Pg
269
adjoined by
RatanV bisan AIR BOM HC Pg 190
Section 6: Parameter of natural guardians:
Natural parents of the child.
Note: After the completion of the adoption process the child will
be considered as a natural child under adoption.

According to HMGA father is the first natural guardian and the

mother is known as the second guardian
The mother will be considered as the first guardian if the father has
finally and completely renounced from the world, died or if he has
converted to some other religion. There is never a dissolution of
relationship between a father and a child.
Unsoundness of mind won’t stop the father from being the first
parent. So, in these cases if the mother is not able to take care of the
child and then she decides to five the child for adoption then the court
will declare the father unsound and hence his consent won’t be
required.
In the case of legitimate child both are the natural guardians of a child
but in the case of an illegitimate child the mother is the first guardian
and the natural guardian.
In the case of an illegitimate unmarried daughter: If the mother is
incapable of taking care of the child then she won’t require any
consent to give her for adoption.
In case of a male and female both illegitimate child the mother will be
natural guardian of the child.
Geeta Hariharan V RBI AIR 1999 SC 1149:

In the case where a single male adopts and later marries. But when
after sometime he dies, then the stepmother would become the de
facto guardian.
If there is a divorce and the child is below 3 years of age then
according to HAMA the child is given in the custody of the mother
but in HGMA the child should be below 5 years of age. For example
husband and wife, live separately and the child is under 5 years of age
, then irrespective of the purpose of them living separately and if this
separation becomes as long of a period as 25 to 25 years, and all the
care takings of the child are looked after by the mother then the
mother holds the natural as well as the de facto guardianship of the
child whereas the father remains the natural guardian only.
Jija Bai V pathan Khan AIR 1971 SC 315: The court of law
decided that the mother will be regarded as the natural guardian.
Pushpa Singh V Inderjit singh AIR 1990 SCC 609: If the father
changes his religion then the mother will be regarded as the natural
guardian.
Essakkayal Nader V sreedharan Babu AIR 1992 KER 200: If the
father has not converted his religion and is living seperately then in
this case the father will be called as a natural guardian.
According to this law looking at the parameter of maintenance the
husband has to pay for all the expenses of the wife as he would have
to pay for maintenance.
If the father dies and the mother remains and then the mother changes
her religion then she won’t be considered as the natural guardian.
Philips Alfred v Gonzaves: Conversion to christianity
Conversion of religion by the mother will not be regarded as the
natural guardian of the child.
Sheela V Soli 1981 Bombay High Court Pg 175:
Angurvaala V Debabrata 1949 Cal HC: The step father and the step
mother has no right to give the child for [Link] cannot take
immediate custod of the child and can be giuardians only after taking
perm ission from court.
Section 7:
Natural Guardian of an adopted son.
Section 8: Powers of the natural guardian:
The first grund-norm: Without the permission of the court of law,
the natural guardian has no power to miautilize or use the property of
a minor by selling, mortgaging, leasing, renting or gifting of the same.
Lease and rent difference: In the matters of rent there is a rent
agreement that has to be filled by both the parties. After the fulfilment
of the terms and conditions the owner and the tenant bot come in a
legal agreement and then the rent is paid monthly whereas in the
matters of lease, there are two parties leaser and leasie which is for a
certain period of time and is paid in a [Link] is a bond signed
here and the bond is renewable.
The second grundnorm: With the permission of the court of law and
with the consent of the minor the guardian can give the property on
lease for a certain period of 5 years.
Third Grundnorm: After the competition of 5 years the lease cannot
be renewed if the minor turns into a major in the commencing years.
So the guardian is left with the remaining years of the minor to
become into a major as the remaining years for the lease to be
wrapped in. So if the child is 15 years of age then the lease would
have to be wrapped in 4 years of time.
Fourth Grundnorm: The person who is aquainted by the coil and
consent of the natural guardian. This is called a testamentary
guardian. The father is the only one who has the power to do so.
If the father is dead, completely has renounced from the world, if the
father seized to be a Hindu
In the case of illegitimate child, the mother has the only power to
appoint the testamentary guardian.
Powers of the testamentary guardian: The testamentary guardian has
no right to mis-utilize or use the property of a minor by selling,
mortgaging, leasing, renting or gifting of the same.
Legal Guardian: The person who is appointed by the court of law.
To become the Natural guardian the guardian will have to go through
the process of HAMA.
Note:De facto guadian is also called a guardianship of affinity
Affinity amounts to: blood related, relative or somehow attached.
Manik Chand V Ram Chandra AIR 1980 SCC PG 22: Power of
natural guardian: Welfare of the minor is the main powers of the
natural guardian, for the benefit of the minor leasing of property
should not exceed 5 years
Nathuram V Changan AIR 1914, BOM 562: The father utilized the
property of the minor to utilize the property of the minor, Thus the
parent do not have any power to utilize or alienate the property.
Baby Sarojam V Vijay Krishnan Nair AIR 1992, KER 277: The
mother was unsound minded, the father for the welfare of the child
handed the custody of his child to the maternal grandmother.
Narayan Laxchman V Uday Kumar AIR 1994, BOM 152:
Bombay high court outrightly said the property of the minor should
remain untouched forever.
If the father and the mother are well off enough to look after the
welfare of the child then they can’t utilize the property in the matters
of the welfare of the child.
Bhagvati V murlidhar AIR 1943 PC 106: If the court of law finds
out that the guardian is unfit for the guardianship of the child then the
court law has the power to remove the guardian.
Landmark Case of Shobha V Jhanki AIR 1997 HP 145: The court
decided that the mother will be called as the natural guardian only and
she has the power to appoint the testamentary guardian also.
Landmark case Parasnam V State of UP AIR 1966 ALL 479:
Guardianship by Affinity: The guardian of a married woman is the
husband, if he dies then her father and mother-in-law, and if they also
die then the natural father becomes the guardian.

Dr. Sneha Lata Mathur V Mahendra Narain AIR 1980 RAJ 64

The husband and wife ere were divorced and the age of the child was
5 years old. The mother gave her child for custody and went to USA
for higher studies, then the father complained that the child is being
downgraded and he should be given to the father’s custody.
Module 4:
Act relating to the module
Hindu succession and amendment Act 2005
Indian Succession act 1925
Caste disabilities and removal act 1850
Hindu will’s act 1870
Hindu transfer and Bequest act 1914
Hindu disposition of Property act 1916
In case of a Hindu Joint family system is referrd to the members used
to stay in one room. Just to extend the family a person opts for the
institution of marriage, blood relationship: The member of a hindu
joint family system who are linked with the joint family system. The
member who joined a family through marriage adoption or blood-
related system can also be called as the Joint family
Types of family:
Joint family: A joint family is an extended family. Conditions related
to property wise means undivided family.
Nuclear family:
Matrilocal family: The husband leaves his own house and transfers
to the wife’s house.
Patrilocal Family: After the marriage the wife comes to the
husband’s home
Bilineal Family: Both the matrilocal and patrilocal are included
where both sides live together
Matriarchal Family: Female dominated family
Patriarchal Family: Male dominated Family.
Karta and co- parcener:
The concept Karta deals with the person who manages and deals with
the family. The person whoever heads and leads the family is called
the Karta of the family. There is no required qualification for [Link] is
not necessary for the Karta of the family to be a senior member of the
family though father is an eligible candidate. The person becoming
the Karta must have had inherited the property of the family.
Co-Parcener: 4 generations of the family are known as the co-
parcener of the family, great grandfather, grandfather, father and son
are the co-parcener of the family.
Damoder Mishra v Snamali Mishra AIR 1967 ORI 71:
According to this the difference between a co-parcener and karta is
defined, while bringing out the difference the hc never said that only a
co-parcener can be nominated as a Karta.
In the life time of the co-parcener then only the person who is able to
manage the family is known as the Karta.

Landmark case of Raghunandan V Brajkishore33 IA 530 :

According to this case law the definition or the meaning of a joint
family has been defined by a case law as it consists of all the people
descended from a common
Surjeet Lal V commissioner of Income Tax AIR 1976 SC 109:
According to this case law the joint family system has been explained
that it is the constitution of member or a group of people who are
united by the sapinda and through marriage, blood relationship or
adoption.
Essential features of joint family system, There is no limitation of the
no. of members in the joint family.
Common ancestor is essential and obligated to recommend a family
as a joint family. The existence of a common ancestor in the family is
not necessary.
A member can loose the status to be as a member of joint family
system, in case of conversion to any other religion, by marrying a
non- Hindu, by being given in adoption to another family, in case of
an unmarried daughter.
A joint family is a creature of law: As such there is no specific act to
manage the Hindu joint family system.
Members of the joint family do not hold the equal rights in case of
joint family property.
Joint family is not a corporation. (Read Partnership act and contract
act). To extend and create a joint family there is no registration
required and hence a family is not a corporation.
A joint family is not a juristic person, this is not a legal body.
Till partition the existence of the joint family system stays.
Members of the joint family: A Hindu joint family consists of the
members of the family who are connected in the male line and the
wives, widow of the family, unmarried daughter and sisters,
collaterals of the person, dependents of a person, adopted members of
the family.
Landmark case of Narendra nath V Commissioner of Wealth Tax
1970 SC Pg 14: The court of law described the difference between
Hindu undivided family and the course of law inclusive of Income
Tax act and Well tax act for a Hindu undivided business.
CIT V Darshan Parekh AIR 1968 SC Pg 1125:
The court of law led down that nay business which is related to Hindu
undivided family will be assessed according to income tax act
whenever it is needed.
Krishna Prashad V CIT AIR 1975 SC 498: According to this the
court of law decides that on the ground of partition of the family the
family cannot be considered as a joint family.
Rights of Hindu Joint Family:
 Right to residence
 Right to maintenance
 Right of Joint possession of the property and employment
 Right to call for an account
 Right to demand for partition of family.
 Types of Property:
 Ancestral property: Inherited by a Hindu male by from his
ancestors
Coparcenary property: the property which belongs to and which can
lead upto 4 generation of a person.
In this case only the right of ownership deals with the co-parceners
Seperate Property: The property which is owned by a person from
his own skill and income.
Self-acquired property: If a person acquires the ancestral property
then the property is known as self-acquired property.
Difference between Ancestral Property and Co-parcenary property is
that if the property after the death of the great grand father is acquired
by the grandfather and after his death by the father then the father
acquires the inheritance of the property.
Joint Property: This property belongs to two or more person jointly
including the right of ownership between those 2 or 3 people.
Obstructed property (Apratibandhya )
Unobstructed Property (Sapratibandhya)
Concept of Karta:
As per different books, according to descretive research in the first
way , where male has been given more preference, the person who
manages and heads the family is known as the Karta. But after 2005
Ammendment Act of Hindu Succession Act, both male and female
can be the Karta of the family. The third way of defining the same is
the oldest member of the family.
Case of Shreemaa V Krishna Venamma 1957 AP 434:
According to this case law only the senior most male member has
been recommended as the Karta of the family.
Commisioner of Income Tax V Govind Ram Sugar Mills AIR
1966 SC Pg 24
After the amendment of Hindu succession act 2005 the female is also
included in the category of a karta and a co parcener.
Landmark case of Lal Barani V Bhooth Nath AIR 1974 CAL HC
109
The person by seniority of the member so of the family is given the
position of the karta of the family.
As long as the father is alive, he the Karta of the family. There is no
voting system in the family neither in the case of the Karta nor in the
case of the Co-partioner.
Ladmark Case law of Nemichand V Herachand 2000 HANDR
Law Review Pg 250:
Not only the senior co-partioner will be recommended as the Karta of
the family but the junior most member of the family capable of
managing the same can also be recommeneded as the Karta of the
family.
Sharda Prashad V Umeshwer Prashad 1963, ILR 274
Even a minor has been considered as the Karta of the family and is
represented through the guardian of the minor.
Damoder Mishra v Snamali Mishra AIR 1967 ORI 71:
According to his the difference between a co-parcener and karta is
defined, while bringing out the difference the hc never said that only a
co-partioner can be nominated as a Karta.
In the life time of the co-parcener then only the person who is able to
manage the family is known as the Karta.
 Powers of Karta:
 Power to manage the joint family business.
 Right to income and expenditure.
 Power to represent in the matters of social, religious and legal
issue
Bhagwaan das V roshan lal 1981 HLR Pg 194
If a minor has to represent himself in the court of law then the
Karta also has the power to represent himself in the court of law.
  Power to contract debts of the family.: If the Karta is in the need
of some bill or bond or promisory note or a bi;; of exchange or a
contract then the karta has the power to do so.
 Power to refer the dispute to the arbitrator.
Jagan Nath V Mannulal 1894 ALL PG 231.
The recommended the order to the arbitrator and award is
binding in all the members of the family inclusing the minors.
Power to enter into any type of compromise: If there is any kind
of dispute between the members of the joint family relating to
property or any other thing then he has the power to enter into
compromise
Power of alienation of the family: If the property has to be sold
or mortgaged then the Karta has the power to do so.
 Maintenance and marriage : Unmarried daughter and
Unmarried sister, including the dependants such as parents and
childres.
Position of Karta: It is determined by the birth of a person
Not appointed by any member
No consent is needed from other co-partioner to be a karta if the
family.
The position is counted as the senior most member of the family
Position is called as sui generic (creature of law)
Head of family -Acts on behalf of other members.
Not considered as partner , principal or agent relationship with other
members of the family but is known as custodial interest of the
family.
No salary,[Link] is paid for the position.
Position of the Karta must be trustworthy and confident.
In case of misappropriation of Joint family property the Karta can be
allegated and enquired by the other members of the family. He has the
right to proper utilization of the property but if he mis utilizes the
property then the family can also go to the court.
Vaikuntham V Avudiappa AIR 1937 MAD Pg 127: If there is mis
appropriation of the property by the Karta then other members has the
power to go against him in the court of law.
Power of partition: When there will be equal division of the property
then there should be equal sharing.
Liability to account:
Sole Co- Partitioner: If the death of another 3 generation happens
then also the sole generation left becomes the sole co-partitioner.
Note: Any female who joins the joint family, cannot start the joint
family as a co-partitioner.
Section 6 of the Hindu Succession Act states that the daughter of a
co-partitioner. Before 2005 ammendment there were no rights to a
daughter to even
In the concept of coparcenery the coparcener can also make another
co partitionery group.
Any
In case of a fathers separate property it has to be divided equally
among the coparceners
The
Commissioner of income tax v mills air 1966 SC pg 240:
Females can also be known as the [Link] case was raised in
1966 and the male was the only eligible candidate, was modified and
revised in 2005 giving females the right of coparcenary.
Surjeet Lal V Commissioner of Income Tax AIR 1976 SC 109:
The apex court led down the meaning of coparcenary as a part of
Hindu joint family system and a person have an interest in the joint
family system and acquired by birth.
By Birth: Blood relationship
It is a concept which gives rise to the sapinda relationship.
State Bank Of India V Ghamandi Ram AIR 1969 SC: It gives
more emphasis on the essential towards the concept of coparcenary.
 This is a 4 generation rule.
 It is a concept which is created by law.
 Only the male were known as coparceners until the amendment
act of 2005.
 The male line before the amendment act of 2005 was always
preferred.
 Interest by birth
 Unity of possession and community of interest. (All the
coparceners have equal rights over the property)
If the coparcenery property is being used for the benefit of the
joint family then every coparcener has the right to enjoy the
property.
Shambhu V Phul AIR 1971 SC 1337: The apex cpurt led down
that if the property is used for the benefit of coparceners then the
consent of all the other coparvceners will have to provide
consent and will have the possessionship of the property.
 Benefit to each and every member is in equal way.
 Doctrine of Survivorship: Holder of the coparcenary property
dies then the next alive group will be the property holders.
 This is deleted according to Hindu Successful Act .because it
rises by blood relationships and hence it was changed that if a
person dies then who will be the immediate successor of the
property. The list giving the name of relative shows that after a
man dies then the property goes to the child, if no children are
there then the property will be of the spouse. Thus doctrine of
escheat.
Commissioner of gift tax V NS Chettiar air 1971 SC 410:
 [Link] son to be a coparcener: The child can only be the
coparcener of the mothers property and of the fathers separate
property.
[Link] person to be coparcener: Eseentiality of a coparcener
proves that he can be a coparcener but in Hindu Succession person
is a disqualified member because, a guardian is always appointed
for minors but an insane person in the same way an insane cannot
manage the property in the same way and hence can become a
coparcener but not the owners.
[Link] son as a coparcener: cannot be a coparcener as the
rights are defined by birth but were amended
4. Coparcenary in a coparcenary
 Can demand for partition: Each and every person in the
coparcenary group has the right to demand for partition.
 Alienation of Undivided interest: Transfer of the property,
leasing, transfer, mortgaging , until these divisions do not
happen then the consent of all other coparceners is to be taken.
Rights Of a Coparcener:
 Right of common possession and common enjoyment on the
property.
Naren Bhai V Ranchor 1902 BOM HC Pg 131
 Right by birth in the property: It arises automatically by the
birth of a person.
 Right to ask for the accounts.
Ganpat V Anna Ji 1954 23 BOM Pg 144.
 Right to joint possession: Joint possessionship over the
property.
Right of alienation:
Right to Claim Partition
 Right to maintenance
Right to challenge the improper alienation of the property.
Ram Chandra v Balla Singh AIR 1986 all 193
Right of renunciation
Right to restraint the unauthorized use of the property.
Sheo Prashad V leela Singh 1874 Beng LR pg 188

Q: Create a difference between mitakshara and Dayabhag family:

Doctrine of survivorship and doctrine of

Q: Concept of Coparcenary and describe briefly the rights and

essentials of a coparcener.
Power of aliientaion by Karta:
He can take the benefits and use the property in 3 terms:
Apatkale: Emergency
Kutumbartha: For family.
Dharamartha: to fulfil religious duties.
Palani appa v devsikmony 1917 PC 68: Benefit of the property
Power of alienation by a coparcener:
Power of anhilation in a sole surviving copartioner.
A sole surviving copartioner can self acquire and succeed the
property.
Guramma V Mallappa Case.
Module 10
Concept of joint family system:
 1. In case of this system there is no limitation in the number of
members.
2. In case of joint family it is very wide in its ambit.
3. There is no limitation to the number of generations in a joint
family.
4. In a joint family the member can be added by birth, by marriage
and by adoption.
5. In case of a joint family system , the existence of the property is
not mandatory to give the status as a joint family.
6. In a joint family both the male and females can fprm a joint
family.
7. The members of the joint family may not posses equal rights on
the joint stock.
8. Disqualification is immaterial in the case of a joint family that is
an illegitimate child can also be a member of such family.
9. Death and birth of a members
Coparcenary
1. In this case there is a limitation of upto 3 generations of a
person.
2. It is a part of joint family system.
3. There is a limitation of upto 3 generations of a person to consist
the coparcenary group.
4. In case of coparcenary the members cannot be added by
marriage.
5. Without coparcenary property the existence of coparcenary
concept is not possible.
6. After the amendment of Hindu Succession Act 2005 , a daughter
of a coparcener, a female can also be considered as a
coparcener.
7. In case of the coparcenary property every coparcener have a
unity of possession and community of interest in the
coparcenary property.
8. In this case only the qualified coparcener can be considered by
birth.
 9. If every coparcener dies in a coparcenery group then the concept
of coparcenery comes to an end

Mitakshara:
1. Mitakshara is is a commentary which is based on the core of
yagmavalkya which was written by Vighneshwara.
2. Applicable all over the states of IndiA
3. The coparcenary consists of a common ancestor with its 3
generation
4. . Sons sons son sons sons sons acquire the right by birth.
5. 3 generations of a person are both with the property
6. The coparceners can at anytime demand partition of his own
share relating to Hindu undivided interest.
7. The coparcener did not assign any reason while demanding the
prtition.
8. There is unity of ownership over the property.
9. It was written in the 11th century

Dayabhag:
[Link] was written by Jimutvahan AND IT CONSIDERED TO
BE DIGEST OF ALL CORES.
[Link] applicable in the states of west Bengal, Bihar and some parts
of Assam.
[Link] comes into existence after the death of the last
member.
[Link] do not have the right to acquire the property by birth.
5. It is not applicable in the case of Dayabhag Coparcenery.
[Link] demand to share the partition is not applicable in the case of
Dayabhag family.
5. Not Applicable
6. There is exclusiveness of possessionship of the Joint Family
property.
7. It was initiated in the 14th century.

Concept of Partition: It is a process in which the joint famiy comes

to an end and the members of the family are separated with proper
division of the property of Hindu undivided family.
In other words this process is the conversion of a joint family to a
nuclear family and a person can start a joint family system with his
own share of the property, which he has received at the time of
partition or with his separate property.
B. Bassamma V KB Sadya Jathappa AIR 1984, Karnataka HC Pg
237.
Karnataka HC laid down that when the shares of a coparcener are
cristalized and severance of status takes place then the joint family
system comes to end and this concept is called as the concept of
partition.
Case of APPROBIER V RAMMASUHA AIR 1886, MIA 75:
The court of law defined the concept of partition as uncodified and is
the allotment of specific part of the property between the co- sharers.
Kaveri V Ganga Ratna AIR 1956, MLJ , pg 98:
This definition was defined according to vighneshwara, the court led
down that the partition of the property and the fluctuating interest of
the coparcenery property in case of a joint family estate then this is
known as the joint family estate.
Disruption of an undivided coparcenery: Girjanandini V
Brijendra AIR 1967 HC Pg 1124.
In case of partition of a joint family estate, no consent of other
members nor a decree of a court or any other writing is necessary.
Under the supervision of Karta the property is divided into equal
share among each member of the family.
It gives equal rights to a daughter in case of ancestral property in
accordance with HUF according to HAS , 2005.
Indivisibility of Property. They are separate to
partition
 Separate property of a person
 Property which is related to the nature
 Impartible Estate.
Examples: pond, animals, passage, staircases of the house by nature,
well.
 Ornaments jewellery of a coparcener.
 Family idols
 Place of worship
 Property devoted for any type of property devoted for Charitable
or religious beliefs.
Case Law: Setu Ram V Meruswamiwar 45 IA 1 (1946)
Provisions to be made before partition:
Expenses of marriage in case of unmarried daughter and sister of a
family. Unmarried sister karta is liable and unmarried sister father is
liable.
Miantenance of the members of the joint family.
Orivisions for the performance of certain rights and religious rituals.
Types of Partition:
1. Partition by mere declaration: Being the Karta as the owner
and manager of the Hindu Joint family, he declares each and
every joint family member about the shares and division of the
property. This declaration is verbal in nature.
2. Partition by suit in court of law:
 If any kind of dispute regarding the partition of the
property, then the Karta can approach the court of law for
the division
 If any demands of a family member is not accepted by
Karta then that family member has a right to file a suit
against this person.
3. Partition by arbitration: A person appointed by the court of
law who is known as arbitrator and under whose supervision the
division of the property is divided between all the members of
the HUF.
4. Partition by notice: The Karta notifies the family members
about the partition of the property to reach on time. This is a
written message, it may be telegram, post or email.
5. Partition in conversion of religion: If a member converts his
religion, then their right to demand stays and it is the duty of the
Karta/father/coparcener to give him his share.
6. Partition under special marriage act 1954: If a party
soleminizes his or her marriage under the Special marriage act,
then Karta also has the duty to give them their share without any
dispute.
7. Partition by an agreement: Partition on the basis of agreement .
8. Example: Karta of the family taken into consideration a stock
property of HUF , and that property has been under an agreement
then the Karta of the family will have to wind up the agreement
and then perform the partition accordingly.
Landmark Case of Prem nath kaushik V Rajendra Nath
DEL 121: The court of law decides that a partition by agreement
can be settled down by the rules regulation and norms of an
agreement.
 9. Partition by father: The property that is divided by the
father (separate property) is divided between his own
children
10. Partition by willpeople.: If a person has framed his property
through a will then he gets the ownership but if there are 2 or
more wills then the division of the property will be done
accordingly and specifically among the specified.
11. Partition by Conduct: If the Karta cannot express , physically
or mentally unable to conduct the duties of karta and then uses
expressions to do the same, then this is a valid way.
Neelkanth V Ramchandra AIR1991 BOM 10:
Abdul Saddar V Mhd. Saleel AIR pg 198:
The partition is a concept of metes and bounds that is actual
division of the property who are the surviving members of the
HUF.
[Link] by renouncing the interest in the joint family:
If a person renounces his/her own share then that is divided
among all the members of the family otherwise with the
decision of the karta the property can be kept for the
maintenance pof the old age parents.
Alluri V Dhantarluri 1956, IA Pg 397:
According to this case law if a co-partioner renounces his own
share then it will move to other members of the family for
proper division.
It can be also used for the maintenance of aged parents.
Concept of Partial Partition: Paertition can be partial or total.
The person desiring in the name of the coparcener the person
can take the property.
Prem Nath Kaushik V Rajendra Nath AIR 1946 del:
As to the property: The coparceners with their mutual consent can
continue to be joined with their leftover property.
Ramalinga V Narayan AIR 1922 PC PG 201.
As to the person dividing: The division happens according to the
person who is diving the partition the whole family doesnot divide
Sengoda V Muthu AIR 1922 ILR MADH 567
People entitled to demand for the partition:
1. Father: The father has the right for the partition of the property
between his own sons and a unmarried daughter. The marriage
expenses of the daughter which has the duty to bear by the
father if the partition takes place between the father and his sons
then a part of property is kept for the expenses of the marriage
of the unmarried daughter by the father.
Case law: Kavita Guad V Sudarshan Reddy AIR 2004 AP, PG
326:
The court of law decided that when a father wishes to make a
partition to make his own separate property between his children
then a share for the unmarried daughter has to be kept with the
father to bear the marriage expenses.
If a son is born after the division of the property then what and
how the property will be provided to the kid.
Then the share of the kid is taken from the father’s separate
property. Fathers separate property or self-acquired property is
used.
Kinds of Streedhan:
1) Adhyangni: Any gift made before the sacred fire during the
marriage.
2) Adhyavahanika: any gift given to a female at the time of bridal
procession.
3) Pritidatta: Any gift given to a bride out of love and affection by
father in law and mother law after marriage.
4) Padvannadanika: Any gift which is given by the elders to a bride
after touching the feet and paying respect to them.
5) Anvadheyaka: Any gift made to a female by the relatives of
husband or her own father’s side is also known as streedhan of a
female.
6) Adhivedanika: any gift given to a bride for the marriage of her
husband with another female.
7) Shulk: Own earning, earnings from any of her talent. A female’s
earnings from any type of skill such as a dancer, singer( even a
prostitute) any land given by the land lord to the maid.
8) Bnadhu dadda: any gift given by the friends and relatives of
both the families.
9) Vritti:Money which is provided in the name of maintenance and
any assets that she has aquired from the amount of maintenance.
Sources of Streedhan:
Gifts from relatives:Under Mitakshara It is a property given to
aunmarried married or widow by any of her relations
But in Dayabhag a husband’s gift of immovable property is only
take into consideration as streedhan.
Gifts from a stranger: Any gift given to a female by a stranger at
the time of marriage and during her widowhood.
Properties which she has inherited: at the time of the death of her
own father.: Any property inherited by the female under schedule 1
and 2 of Hindu maintenance act.
Share on Partition: If she receives a share relating to the
coparcenery property then it would be her own property. If a
female receives a share of property at the time of partition between
father and her children, if that the partition is between widow
mother and children.
Power of a female over streedhan property:
1) Power of Management: Being the absolute owner over streedhan
property, the female has the power to decide over the
management of the property.
Sitaji v Brijendra AIR 1954 SC 601: Being a female as an absolute
owner the management of the property lies with the female.
Power of spending and income: She has the soul power of
generating leasing and renting of the property.
Ram Sumran Prashad V Shyama Kumari AIR 1922 PC PG 356
Power of alienation: Being the absolute owner she has the power to
utilize the property under any legal necessities, fulfilment of legal
necessities, marriage of daughter, funeral rights of her husband and
benefit of the estate.
Hnauman Prashad V Bahoi 1856 MIA 393:
Power of Surrender and Renounce: She can renounce her property
prepare its own will and surrender too
Devi Prashad V Gopal Bhagat ILR 1913 cal hc Kolakata High
Court.
Power pf Reversioners: After her death all the legal heir can
succeed her property as It reverts back. According to Hindu
Succession Act 1956/ Ammedment of 2005,
Hindu Succession Act 1956 was imposed on 17th June 1956, the
main objective of this act is to bring down a uniform law relating to
interstate succession relating to mitakshara and dayabhag family
and for all Hindus.
Law of Succession are those provisions which is related to a legal
heir of a person who succeeds the property of a desceased person
according to Hindu succession act 1956 / Ammedment act 2005
and law of inheritance deals with rules relating to devolution of
property on the death of a person.
Supplemental Acts:
Cast disabilities removal act 1850
Hindu Wills Act 1870
Hindu Transfer and Bequest Act 1914
Hindu disposition of property 1916
Indian Succession Act 1925
Hindu female’s right to property Act 1937.
Applicability to the act: Applies to all Hindus and also on people
who are Hindu by birth or conversion.
Also applies to a person who follows buddhism Sikhism and
Jainism by religion. Doenot apply to muslim Christians or parsies.
There are 30 sections in this act:
Describe briefly the changes relating to Hindu Succession
Ammednment Act 2005.
Scope of an illegitimate child has been drawn down from Vasanti
Devi V Ravi Prakash Jaiswal 2007, SCR PG 444 which lies with
the mother.
Section 5:
Section 6:
 That in a father’s property there will be equal division of
property between his son and a daughter.
 A female who joined by marriage in a mitakshara joint family
system has no right to be a coparcener of a Hindu undivided
family. Her only right is to get maintenance.
 In a mitakshara joint family a daughter of a coparcener then
the daughter also has the full right ot be coparcener of HUF.
 At the time of partition of the property the son and the
daughter, married and unmarried have the equal share on the
property.
Landmark case of Prakash V Phoolwati AIR 2016 SC PG 769
(MCQ): According to this case law the coparcenery rights are
applicable to a living daughter of a living coparcener.
Landmark case of Shreya Vidyarthi V ashok Vidyarthi AIR
2016, SC PG 139.: According to this case law Supreme Court
lead down that a Hindu widow cannot be called as a
coparcener of a HUF of her deceased husband she can only
be a Karta of HUF.
Section 8: Gneral rules relating to general principles of
succession in a male , who will get the successive powers if
no will is made :
Legal Heirs relating to Class 1: His children and if no one is
there in class 1 then relatives of class 2 heirs will be favoured
and if them also not there then agnets of the deceased
example brother, brother’s son.
If no one is dependent on the agnonts then it will depend on
the cognants and then if them also not there then the male
cognants agnents.
Landmark Case of Commissioner of wealth tax V
Chandra Sen AIR 1986 sc Supreme Court , 1752.: When a
Hindu inherits a property from his father then according to
section he takes that property in the name of seperate
property.
Section 10 : MCQ. Distribution of property among legal heirs
of class 1.
If a person has more than one widow , one son and one
daughter then the property will be divided as then all the
widows will take one-one share and the surviving son and
daughter and the mother
Widow under surviving son and daughter take qual
share.
Section 14 vvi: If a female dies without making any will
then who has succeeding powers?
Landmark Case law Santosh V Saraswati Bai AIR 2006
Kar Hc: If a female dies without will then the the
succession of her property will lie with her own son and
daughter.
The property is divided in 3 parts:
 Inherited from her own father and mother: The kids will be
most appropriate legal hiers if them not there then the
property will return to the father and if father no there then
will go the agnets of father. It will not go to Husband. If no
agnants then cognants.
If she inherits a property from her inlaws:
Relating to property between husband and wife.

Changes relating to Hindu succession ammenment act 2005:

The provisions relating to application of prevention of
fragmentation of agricultural holdings and fixation of sealings for
the dissolution of tenancy rights has been omitted.
Provisions dealing with dissolution of coparcennery rights under
mitakshara school for substitution with a new law.
Daughter is given same rights in coparcenery property and imposed
with same liabilities as obligated on a son.
4: The coparcenery right is given to a daughter from 9 September
2005.
5: The daughter’s right to claim partition is recognised but it is
limited to coparcenery property which has not been partitioned
alienated and disposed before 20th December 2004
On this day the bill was submitted to the parliament.
6: Daughter’s coparcenery share is liable to fluctuate with the birth
of a coparcener in the family.
7:The daughter also has the same right to make a testamentary
desposition of her own coparcenery share.
8:The ammenment act 2005 introduced the mode of partition of
coparcenery property to be only by registered date or by approval
of the court of law.
9: Daughter as a coparcener has the right to be given the same
coparcenery right which is to be given to a son.
Notional partition which was introduced by hindu succession act
1956 was omitted according to 2005 ammendment.
For the concept of dwelling: Ancestral dwelling houses was only
the right of sons, untill 2005 where both male and female are given
equal rights.
10: Relating to widow: If a widow is living among her inlaws
ad while the division of property happens then the property of the
dead husband would be given to the widow. Doctrine of
survivorship was removed.
If a widow remarries then if she has a son, then she can ask for the
property for the property of the inlws.
Shabnam Ashmi V Union Off India Muslim law
of adoption: Adoption is not allowed in muslims
but Shabnam was able to adopt . A secular law
pertains over a personal law . Although it has
its own reprucussions.

Sample questions:
Q: What is meant by the term adoption? Describe brief;y the
concept according to HAMA 1956. (10 marks)
Intro: Concept of adoption, definition , general meaning,
according to Act meaning, historical background.
Start with section 6 and eligibility criteria to
Effects of adoption till section 11.
Qualifications relating to female to adopt a
child MCQ.
Mention Sections and Case laws.
Q2: Describe briefly the concept of
acknowledgement of paternity according to
Muslim Law.
Introduction: explain kinds of Nikah, irregular,
void and valid.
Linked with void marriage and 2 case laws told
by ma’am .
Legitimate and illegitimate child: hizanat who
should have the custody of an illegitimate child
in Muslim Child? : answer no one and
eventually child comes under mother.
Q: Describe briefly the concept of Inter country
adoption according to CARA.
Answer: Introduction:
Role of Inter Country Adoption, current
scenario . document submission and
scrutinized, transfer of child to parents, and
adoption from orphanage.
Ashok kumar Pandey V Union of India
Q: Describe briefly the concept minority and
guardianship . Describe briefly the types of
guardian with it’s powers and duties.
Introduction: definition of minor, guardian,
types of guardian explain,
Powers and duties of natural guardian de facto
guardian legal and testamentary guardian.
Case laws on every point.
Q: Describe briefly the welfare principles of a
child on national and international level:
Focus on National level
HMGA, JJ CARE AND PROTECTION ACT,
Guardianship and Wards act.
Q: What do you mean by surrogacy and
describe different types of surrogacy? Why
commercial Surrogacy is banned and altruistic
surrogacy is there?
Q: Bring out a difference between Hindu Joint
Family system and coparcenery.
Q: Describe briefly the concept of Karta and
explain the rights and duties of A Karta.
Concept of Karta, HUF : ROLE OF KARTA , role
of a male and female karta, role of a widow,
rights and duties of a karta. Indtroduction,
definition and general meaning case laws.
Q: Describe briefly the concept of coprcener.
Explain the essential features, rights and
duties of a coparcener. Role of a female
copartioner according to HUF.
Mention section 6 of Hindu Succession Act
2005 in role of female coparcener.
Q: Describe briefly the concept of partition.
Describe different types of partition.
Description of reopening of partition and
effects of partition.
Definition of partition, partition- meaning and
definition case laws
Types of partition , reopening of partition ,
effects of partition
Q: What do you mean by the concept of
Streedhan. Describe briefly the types of
Streedhan in Sanskrit and English. Decribe the
powers of a female on streedhan property.
Q: Describe briefly the changes relating to
Hindu Succession Act 2005n.
Q: Describe briefly the difference between
dayabhag and MiTAKSHARA Coparcenery
Q; Describe briefly the difference between
Hindu Law and Muslim Law.
Start with property directly.
Answer:
Hindu:
 Property relating to a Hindu person is totally in a
codified way for example HAMA 1956, Hindu
Succesion Act 1956, Indian Succession Act 1925.
 The concept of Joint Family system exists under
Hindu Law.
 The concept of caprcenery exists under Hindu
law
 The concept of partition and the kinds of
partition exists under HUF for the proper division
of the property.
 The successive power of the property is taken
from the conditions relating to Hindu Succession
Act 1956/2005.
 The streedhan and the concept of female’s
property deals with the conditions relating to
section 14 of Hindu Succession act.
Note:14 15 16 deal with femake property
 The concept of adopting a child is take from
the conditions relating to the Hindu adoption
and maintenance act 1956 Is applicable.
  The concept, types and the conditions of
guardian for a Hindu minor is take fro Hindu
minority and guardianship act 1956.
 The concept of Karta exists only under HUF
with its rights and duties.
 The concept of trading family(Joint family
business) exists under HUF.
 A person’s right over the property arises by
birth of the person.
 There are different types of property according
to HUF like coparcenery, ancestral, separate,
acquired.
 A person can execute a will or legal document
according to the provision of Indian Succession
Act 1925.

Muslim:
 Law relating to the property of a Muslim person
is totally in an uncodified way. Subtle conditions
are being applicable and taken from Shariat Act
1937 and Wakf Board.
 The concept of Joint family system does not exist
in Muslim law.
 There is no concept of coparcenery under Muslim
law. Division of property is uncodified
 No Concept of partition exists relating to division
of the property exists according to a Muslim
person’s property.
 The successive power over the Muslim person’s
property is in an uncodified way and the
devolution of the property depends on the
concept of Muslim person.
  No condition of Streedhan exists under Muslim
law, only the conditions relting to right of a
female property deals with Shariat Act 1937
wherever needed.
 No concept of adoption isthere in case of Muslim
Law only acknowledgement of paternity is
applicable to inherit a muslim person’s property
by the child.
 The custody of a child according to Muslim law is
dealt with the concept of Hizzanat, or the
custody of an illegitimate child by a mother.
 No concept of Karta under Muslim Law.
 No concept of trading family.
 Untill and unless the father dies the children has
no right to inherit the person’sproperty. No
concept relating to right by birth existant.
 No types of property existant.
 For the proper ownership of the property/
inheritance of the property a person has to
frame Vasyiat Nama, according to Muslim
uncodified [Link] person can inherit the
property relating to the concept of Marz-ull -
maut ( Death bed illness).

Q; What do you mean by a will? Different types

of will. Describe the norms for execution of a
will.
Q: Difference between Sunni law and Shia law
relating to inheritance of property.
Q: What do you mean by sousal property.
Describe briefly the division of property
relating to husband and wife after the death of
the spouses or dissolution of the marriage.
 Sinha Shipra
Strengths of the act: The act is first of its own kind, restricting itself
to one particular field. It is a criminal legislation making it more safe,
while at the same time judicial irregularities and conflicts exist,
gender irregularities exists. There is a huge gap to be filled and hence
this act is the pioneer to walk towards the same. There is no case law
for ART.

Surrogacy Regulation Act:

The ambit of the act is restrictive and the preamble of the act talks
about two boards, National and state whereas in ART many more
other aspects were included. It talks about establishment of regulation.
In India surrogacy was a 2 billion dollar industry, while ART was
unknown to the citizens, this amounted to the coming out of the
surrogacy.
Commissioning couples may intend to go for ART which includes
other means of getting a baby whereas intending couple are the couple
who only go for surrogacy.
The intention of the surrogate, should be with an intention to hand
over the child after the birth. The act actually prohibits the
commercial surrogacy but allows altruistic surrogacy. Under which no
extra money is given to her in return of her consent. Only basic
medical expenses and insurance are provided.
Single woman are not allowed which cannot be said for male
individuals. Intending couples or a male can only obtain surrogacy in
India and no one else.
Immoral trafficking prevention act 1956.
Section 4:
Surrogacy is allowed only when:
The intending couples should be proven infertile.
Surrogacy is altruistic in nature.
Not for the production of children in order to avoid any form of
exploitation.
The child is not supposed to be related to his mother and hence
making altruistic surrogacy is allowed in India. Traditional surrogacy
is not allowed in India. Gestational surrogacy is also not allowed in
India. Only altruistic surrogacy is allowed in India.
Note: Surrogacy is not a necessity. The woman can go through
different other ways of being pregnant if the man is impotent,
whereas
In the case of a woman being infertile surrogacy is a need.
A surrogacy clinic needs to be registered under national registry.
Appropriate authority: Section 2C definition.
In the cases related to Andaman and Nicobar the high court that has
been appointed is the Calcutta High Court.

The national authoritiy’s composition is supposed to be bigger

compared to the appropriate authority which are generally hired in the
cases of a state or a district. (Mentioned in Section 17.)
Under section 25(f) the state board is a subordinate to the national
board in case of national board superceeding the states.
Going through the fact that there are 2 different jursdictions for the
state and the nation. Then the composition is also different.
Inheritance Under Islamic Law:
Hadith: It is the word of prophet. (Mohammad)
Quran: It is the word of Allah to his prophet. (Teacher)
Note: The first teacher is Abraham himself. Jesus is also a
prophet. Jesus is the son of the god and not god himself. Prophet
Mohammad is separate from Allah.
Succession causes conflict between these two cultures.
There is no concept of coparcenery is existent in the Islamic Law.
The partition is not to be determined by the court, how much-ever
each member gets of the property is all mentioned in the scriptures of
Islam.:
Islam already has inclusion of women in the partition of the property.
Islam came in India 712 AD/ Seventh Century.
Joint Family practices separated Islam from other religions. Joint
family and its concept is not mentioned in Islam, but this idea of joint
family came into existence through customs as it adapted to the joint
family structure.
Janm-satwada: Right by Birth exists in Mitakshara while in Dayabhag
it does not exist.
Note:Maintenance rights are created by law rather than customs.
Sunnat was written between 6th centry AD.
No division of property is there as the fact that property will be
divided, and into how much shares is known by the Heirs but they do
not which part of the property will be theirs. No actual ownership is
created as the property is not divided.
In the case of Hindu undivided family, if an heir asks for his share
then the it results in the partition of whole family whereas in the case
of Islam the shares are predetermines and only the a part of the
property is delivered.
If one of the heir mortgages a part of the property, then this undivided
share is used as the security in order to take loan from the bank. The
property of other heirs remains their [Link] consent of other
hiers is not required because the share is already allocated.
The person who holds the mortgage property, he or she will be the
mortgage heir, and that part of the property only will be used against
the mortgage heir . The liability will only be against the mortgage hier
and not the other heirs.
The co-heirs cannot come in any kid of partnership and firm.
Fiduciary and Partnership:
In Fiduciary a relationship of trust exists, where the agents such as
spoken trust exists whereas in partnership there is a full-fledged
business contract and work.
So even if the Heirs work together they can never come in a
partnership and can only lay access to a fiduciary relationship.
Partnership and trade form is not established but in certain places such
as Andhra Pradesh this may be allowed because it becomes a
customary practice.
Specs Successionis: It is an inherent right, it exists by the virtue of
you being a Heir of the family.
Some Heirs come in a contract where they agree to disclaim his share
in the property when it dissolves on them after his death. Basically
renouncing the right to inheritence.
In the matters of alienation and transfer of property:
Whenever transfer of ownership of the property then there is the
transfer of the property.
In the case of Muslims there is no concept of right by birth, there is a
concept of right after death.
Rule of estoppel was applied: One cannot back out from their word
and this rule has also been used by some high courts.
Razia Begum V Anwar Begum (1958) SCR 1111
Ghulam Abbas V Qayyum Ali, AIR 1973 SC 554
Shemmal V Hassan Khani Rawther.
 Comparative study between Hindu and Islamic School:
There is no right by birth in Muslim Law and the right comes after
the death of a person in the family.
Only joint and single property is available and no concept of
Ancestral property exists unlike Hindu law where the concept of
ancestral property exists.
The property is not specified in this case as to which part of the
property is to be inherited unlike Hindu law where the devision and
the part is pre decided.
Unlike Hindus where streedhan is taken up by all the members of
the family the same in Islamic law is only the property of the
woman.

Same as in Islamic Joint Family, Hindu Joint families can also not
come in partnership.
In both Hindu and Islamic law the inherited property of a daughter
or an heir respectively is hers only and the in laws after her
marriage have no rights upon it.
Note: Surrogacy is allowed in all religions as it is a secular law.

Sunni Law:
Spouse:
  If the deceased is a male then widow will inherit 1/4 th of the
state. If the widow is childless.
 If there is a child present then the widow will inherit 1/8 th of the
state.

Polygamy:
Since polygamy is believed to be permissible under Islamic law,
there is a provision that if the deceased died leaving behind two or
more lawfully wedded wives they will have to divide among them
equally the share of a single wife.
This provision is expected to act as a deterent for women against
marrying an already married man. Notably the husband in this case
is not permitted to make a will I favour of his wives or any of them
to enhance their share.

In case the deceased is a woman, the husband would always inherit as

class 1 hier then he would inherit half of the property of woman in
absence of children and one fourth of the property in presence of
children. They are the fir’st person to inherit in the event of death.
When is the Puranic Rule applicable?
Competing heirs of equal division: They are heirs who fall among the
same line and gender. Husband and wife do not fall under competing
heirs because they do not compete with each other.

Mother: Class 1 heir, of all 12 sharers present 8 are women. So

mother is second in line and she is the class 1 [Link] recieves 1/3rd
of the property if the deceased did not leave any children behind . In
presence of the children she will take 1/6th of the property.
Note: Debt will be the first thing that will be paid after the death
of a person then in case zakath has not been paid then that will be
paid.
So, if the deceased is male then 1/4th of the property will be inherited
by his wife then 1/3rd of the remaining property will be inherited by
mother.
Inheritance in Islamic law is determined by death.
If the deceased has not left behind any child or eligible lower
decendant but there are / is spouse and the father of the deceased, the
mother takes 1/3rd of the estate minus the fixed share of the spouse.
Exception: No spouse or no children but father is there along with
two or more siblings of the deceased then there will be equal division
then the share of the mother will be reduced to 1/6 th of the property
and Puranic rule will be applicable. In this case the share of the father
increases from that of the mother. It does not matter whether the son
and the daughter has died then also the rule will be same.
Preference is given to female members first in Islamic law as there no
maintenance.

Grand Mother:
The share of the grandmother is seen as class 1 heir as 1/6 th .
Irrespective of the case where the grandmother is maternal or paternal
they will inherit the property of the deceased.
Maternal Grandmother: When the mother is not dead then the
grandmother would not inherit any part of the property and if she is
dead the mother would inherit her part of the property. Irrespective of
the fact that father is present or not, then only the maternal
grandmother won’t inherit the property. Mother’s father that is the
maternal grandfather does not find a place in Class :1 or Class :2 heir.
He inherits as Class: 3 Heir as a distinct kindred.
Paternal Grandmother: In case of paternal grandmother both the
Parents should be dead.
If there is more than one grandmother they would jointly hold 1/6 th of
the property that 1/6th would be divided equally among them. In case
both the parents are dead then the division would be 1/6 th for both the
sides and will be equally divided among the separate classification
both.
Q: A muslim male has left behind hundred acres of land with a debt
of 12 percent of the property , he however paid zakath during his
lifetime. His wives and 2 children and his maternal grandmother have
survived him,
Note: If the Zakath is not paid then the Zakath should be taken as not
paid. And if the question does not mention about Zaktha then Zakath
shall be taken the lowest 5 percent and should range upto 25 percent.

Father:
Q. Why is the grandmother a more of a priority than father when it
comes to partition?
It is because the concept of maintenance does not exist and hence, the
degree of dependence of a grandmother is more.
Father: Class 1: Presence of children of the deceased amd his share
will be 1/6th : Share is fixed as the children are second preference and
mother is third.
Note: Father can be class 1 heir or class 2 heir also.
Father: Class 2: When the child of the deceased is absent.: There is no
fixed heir, the remaining all of the share goes to father.
In absence of any class 1 Heir the father will inherit the entire estate
of the deceased as a class 2 heir (Residuary) which is why first
preference is given to father as class 2 heir.
Grand Father or Grandfather’s father( Great Grandfather):
Great Grandfather can also inherit in case of absence of father or
grandfather.
It does not matter if paternal or maternal, the division of the property
would be same as the grandmothers 1/6th and 1/6th separately to both
the side.
In case of presence of children: 1/6th – Class 1- Dead Father
Absence of children:1/6th is not fixed – Class 2: dead father- After the
allotment of share to the spouse and mother of the deceased the
remaining goes to the father.
If there is no property left then there will be no division.
Children:
When only daughters are present:
Only one daughter: The daughter would inherit half of the property of
the deceased. She inherits as Class I heir .
When 2 or more daughters are there:
They inherit as class 1 heir but the share changes from half to 2/3 rd of
the property will be divided equally.
Son + Duaghter:
Class 2 – Residuary
After all the sharer have received their property.
Quranic Rule – 1:2 shares.
Quran is the word of allah and Sunnat is the word of the prophet, so
quran superceeds sunnat.

Only sons:
No daughters class 2
Remaining property after the class 1 sharers have received.
Equally divided among sons.
Grand Children:
Only paternal grand children will be considered.
Only grand daughter:
Class 1 heir absence of children( father and mother of the grand
children).
Nearer relatives will over seed the distant ones.
Grand son + Grand Daughter:
Residuary Capacity- After all the sharers of the Class 1 heir have
received their property then the grandchildren would inherit it.
Quranic Rule of 1:2 is also to be applied.
Great Grand Son/ Great Grand Daughter also applicable as the Great
Grand Father.
Only Grandsons:
Class 2 heirs residuary property and equally divided with a necessity
of absence of children.
Exception: If the deceased has left behind a single daughter, but no
son or grandson and there are grand daughters, one or more than
grand daughters but, no sons or grandsons, then they also take a 1/6 th
share in the estate which is the remainder of the share of 2 or more
daughters which is 1/2 of the property of the deceased.
Siblings:
Full Blood relations exclude half blood relations.
Siblings can only inherit in the absence of children or eligible lower
decendants, and father and his substitutes.
Deceased has no children left behind and father is also not alive then
share for uterine brothers and sisters:
They will inherit as class 1 heirs and their share is 1/6th.
If there are 2 or more then the share of 1/3 rd of the property and equal
division will take place.
Quranic rule is not applicable because of parents and uterine brothers
and sisters are a exception.
Applicaple in presence of full or half blood siblings wont affect the
fact that above mentioned relations will inherit as class 1 heir.
Half Blood and Full Blood Brothers and sisters:
Sisters:
No brother but full or half blood sisters: They inherit as class 1 heirs
the share will be same as that of daughter which is ½ for one sister or
2/3 if 2 or more sisters.
When both of them are present( full and half blood):
Class 2 heirs residuary and the quranic rule is applicable. 1:2.
Only brothers full or half blood):
Class 2:
Residuary
2 or more than 2- equally divided.
Exception 1: In the case of siblings even in the absence of brothers if
there are daughters or grand daughters of the deceased taking their
fixed shares as Class 1 Heir and after allotting their fixed fractional
share there is a residue. It may go to a sister who will inherit as Class
2 heir.
Exception 2: If there is only one full blood sister inheriting as a class
1 heir and there is also a half blood sister but no full blood or half
blood brother, the latter (half-blood in presence of full blood) also
takes 1/6th share as remainder of 2 or more than 2 full blood sister’s
share.
Class 1: Wife ,Mother, Daughter, full blood sister, Grand mother
Maternal, Grand Mother Paternal, Uterine Sister, - 8 women
Father, Husband, Paternal grandfather, Uterine Brother, Great Grand
Father paternal - 4 male
Remote Heirs: These are not class 3 heirs and are different from
distant kindered.
 Happens in case there is no father or his substitute. ( Paternal
grandfather and paternal great grand father.
 Also happens when there are no siblings either full or half.
 Relationship which specifies the same:
 Nephew and grand nephew: Subject to nearer excluding the
farther.
 Paternal uncles of the deceased or their sons or grandsons.
 Paternal Grand uncles of the deceased or their sons or
grandsons.
 In case of remote heirs uterine blood is not included.
 Female relations do not fall under the remote heir category.
 Full blood will exclude half blood
 Uterine blood not included
 Females of the Paternal side is automatically excluded
 Neices inherit as class 3 heirs.
In cases of certain Muslim countries, they exclude the remote heirs
and rather they increase the share of daughters as nearer exclude
the remoter ones. instead. India has a problem with the same as it
has not done this.
Adjustment of the shares: Short notes in end term
Doctorine of Aul: ( Increase): As the sum total of payable
fractional shares may not sometimes amount to 1, in such a case
these are to be proportionately reduced by applying an arithmetical
formula, known as Aul under which Aul shares are adapted to a
common denominator which is then replaced with the sum of new
numerators.
For example:
If the share of 3 people is ½, ½ and 1/6 then find LCM which is 6
in the case so noe
Numerator becomes= 3+3+1=7 which is greater than 6
The property should be 1 as to divide the property among the
sharers but the numerator is bigger than 6.
So we replace the denominator with 7 (Found numerator)
So now
3/7,3/7,1/7 will be found, now when all 3 are added it will become
1.

Doctrine of Radd: (Return) : If the sum total of the

fractional shares of all eligible heirs of class 1 is less
than 1 and there is no eligible class 2 heir, to take
the residue it is to be distributed among them, in
proportion by applying the same formula known in
this case as Radd( Return).
For example there are 3 sharers: 1/6,1/6,1/2:
The commin numerator=1+1+3= 5
So, 1/5,1/5, 3/5 which when added becomes 1
Note: In the case of Aul the shares increase on
individual level and in radd the individual share
decreases.
Under the judicial interpretation of the law the
spouse also a class 1 heir is not entitled to the
benefit of the rule of return, so if the wife is the only
one alive, among all the heirs of class 1 and class 2.
The estate minus her share in it . Then the share of
the wife will be ¼ and the remaining goes to class 3
heirs. This is not applicable in most of the countries
which follow sunni, although in india it is still followed
and it does not support the women of the family.
Class 3 Distant Kindered zau il arhum Uterine Heirs:
In absence of class 1 and class 2 heirs only will be
class 3 heir inherit. This is subject to the rule of wife
written just above in note.
 Decendants of the deceased in the female line of
descent:
Daughter’s children:
Son’s daughter’s children and decendants . (Per nati)
Daughter’s grand children.
 Assendants of the deceased in the female line
descent:
Mother’s father
Maternal grandmother’s father.
Paternal grandmother’s father
Descendants of siblings not covered in class 2:
Full of half blood brother’s daughter (niece) or her
descendants
Uterine brother’s children or their descendants.
Full, half, or uterine sister’s children or their
descendants:
Parent’s Siblings or their descendants not covered in
class 2 heirs:
Paternal Cousin Uncle’s daughter and her
descendants
Paternal Cousin aunts and their descendants
Maternal uncles and aunts or their descendants.
Shia Law of Inheritence:
Classification of the heirs:
Spouse:
The share of the spouse in this case is same as sunni.
Parents:
Siblings or their descendants:
Both uncles and aunts or their descendants