Family Law II Succession Modified 5

8/3/2019 Family Law II Succession Modified 5

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Joint Family Property.

Mitakshara Joint Families.


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Joint Family Property.

Ancestral Property.

a) Property inherited from father,fathers father or fathers fathersfather.

b) Property inherited from maternalgrandfather, and

c) Property inherited from any otherrelation.


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Property inherited from maternalgrandfather.

Property inherited from any otherrelations.

Property obtained on partition.

Character of property afterseverance of status.


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Property received in gift

Gift by father of self-acquiredproperty.

Gift by Father of a small portion ofjoint family property.

Gift of joint family property by theKarta.


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Property jointly acquired bycoparceners.

Property thrown into common stock

and blended property.a) Mallesappa V.Mallappa AIR 1961 SC

1268.: Supreme Court held that the

conduct on which the plea ofblending is based must clearly andunequivocally show the intention of


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the owner of the separate property toconvert his property into an item of

joint family property. A mere

intention to benefit the members ofthe family by allowing them the useof the income from the separate

property may not necessarily beenough to justify an inference ofblending.


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a) Lakkireddi V. Lakkireddi AIR 1963SC 1601. : said that separateproperty or self acquired property

of coparcener may be impressedwith the character of joint familyproperty, if it is voluntarily thrown

by the owner into common stockwith the intention of abandoning hisseparate claim therein.

t lf i d t A


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eparate or elf-acquired property: Acoparcener can make separate acquisition

of property.

Gains of learning.

Salary and remuneration

Income of the joint family propertyalloted to member for hismaintenance.

Benefit of insurance policyGovernment grants


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Income from the separate property

Separate earnings or earnings byself-exertion

Property held by a sole survivingcoparcener.

Rights of coparceners.


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Karta.

Who can be the Karta?

Senior-most male member.

More than one Karta.Female members as Karta.

Position of the Karta.

Kartas Liabilities.


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Powers of Karta.

Powers of management

Right to income

Right to representation.

Power of Compromise.

Power to refer a dispute toarbitration

Power of acknowledgement.


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Kartas power to contract debt.

Loan on promissory note.

Power to enter into contracts.


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Alienation of Property.

Coparceners Power of Alienation.a) Involuntary alienation: undividedinterest in the property in the

execution proceedings. The limitationof this rule is such that such a decreecannot be executed against theinterest of the coparcener after his

death. But if interest has beenattached during his life-time, it canbe sold in court sale after his death.


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b) Voluntary alienation: once it wasaccepted that the undivided interest of acoparcener can be attached and sold in

execution of a money decree against him,it was the next logical step to extend theprinciple of voluntary alienation.

i) Sale and mortgage

ii) Gifts.

iii) Renunciation.


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Coparceners right to challengealienation

Existing Coparceners Right toChallenge.

Coparcener who was in the womb atthe time of alienation.

After-born coparcener.


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For eg. on 1.1.40, A a father, who has twosons, B and C made an alienation withoutany justifiable purpose or without theconsent of B and C. On 1.6.42, S anotherson is born to A. B and C die on 1.8.42, Scan challenge the alienation even after1.8.42.But if before S was born, B and Cconsented to the alienation, S has no right

to challenge it. In such a case, freshperiod of limitation does not start from thedate of his birth.


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Mode of challenge.

a) When alienation is void.

b) When alienation is voidable.


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Partition and Re-union

Properties which are not capable ofDivision

Dwelling house

The Partition Act.

Staircase, wells etc.


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Deductions and Provisions

Debts

MaintenanceMarriage

Performance of ceremonies.


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Persons who have a right to

Partition and a share on Partition.

Father

Son, grandson and great-grandson

Son born after partitionSon conceived at the time ofpartition but born after partition

Son begotten and born afterpartition:


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Two situations.

i) When the father has taken or reserved ashare for himself, the after born son

becomes a coparcener with his father.ii) when the father has not taken or

reserved a share for himself, the after-born son has a right to get the partitionre-opened and get the estate redistributedas it then stands.


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Adopted Son

Illegitimate son: a) The dasiputra, ora son born to a concubine exclusivelyand permanently kept by a Hindu,and b) an illegitimate son born of awoman who is not a dasi.

Their positions are as under:


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Dayabhaga Law

Minor Coparcener

AlieneeAbsent coparcener.


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Persons who have no right to partition but who areentitled to share if partition takes place.

Fathers wife

Mother

GrandmotherCoparceners widow

Daughters.


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How Partition is Effected.

Severence of Joint Status or Interest.

Expression of intention.

Presumption of non-partitionCommunication of intention to sever.

Partition under Sec.171 Income-tax

Act,1981.


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Mode of Partition.

Partition by suit

Partition by agreement

Oral PartitionUnilateral declaration

Partition by arbitration

Partition by conduct


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Automatic severance of status.

Registration of Partition

Parties to Partition


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Partial Partition

Partial Partition

a) Partial as to property

b) Partial as to coparcener.


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Reopening of Partition

Readjustment of assets.

Re-opening of Partition

a) Fraud

b) Son in womb

c) Adopted Son

d) Disqualified coparceners

e) Son conceived and born afterpartition.


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f) Absentee coparcener

g) Minor coparcener.


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Reunion

How effected: Intention of parties toreunite in estate and interest.

Can a minor reunite?: No he cant as nocapacity to contract.

Effect of Reunion: There has been acontroversy whether the effect of reunionis to restore the parties to the original

position or whether it merely establishesunity of possession, the severance ofstatus continuing.


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It is, now, an established view both underMitakshara and Dayabhaga schools thatafter reunion status quo ante is full

restored. A full bench of the Madras HighCourt held that reunited coparceners arenot tenants-in-common, but arecoparceners with right of survivorship,

inter se, and that the sons shall bedeemed to be coparceners with them.


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Succession Under Hindu Law.

Introduction: The Hindu SuccessionAct, 1956 lays down uniform law ofsuccession for all Hindus.

Testamentary Succession

Intestate Succession


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Definitions

Intestate: A person who dies withoutmaking will.Heir: A person who is entitled to inheritproperty after the death of the intestate is

known as heir.Descendants: offspring of a person.Immediate descendants of a person arehis sons and daughters.

Ascendants: Ancestors of a person.Immediate ascendants of a person are hisfather and mother.


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Collaterals: are descendants inparallel lines, from a commonancestors or ancestress. For eg,

brother is a collateral, so is sister.Agnates: When a person traces hisrelationship with another whollythrough the males, he or she is anagnates. For eg, brother, brotherson, sons son,etc.


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Cognates: Whenever in the relationship of aperson with another, a female (or more than onefemale) intervenes anywhere in the line, one is acognate to another. For eg, sisters son and

daughters, daughters sons and daughters,mothers mother and father, etc.

Full blood: When the father and mother of twoperson are the same, they are related to eachother by full blood. According to Sec.3(1)(e)(i) ,

Hindu Succession Act, two person are said to berelated to each other by full blood when they aredescended from common ancestors by the samewife.


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Half-blood: When two persons havethe same father but differentmothers, they are related to each

other by half blood.

Uterine blood: When two personshave the same mother but different

fathers, they are said to be related toeach other by uterine blood.


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Legitimate and illegitimaterelationship: A person who is bornwithin a lawful wedlock is legitimate

and he or she is related to him or herparents by legitimate relationship.

A person born outside the wedlock isillegitimate, and he or she is relatedto his or her parents by illegitimaterelationship.


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Heirs of a Hindu Male.

Class I Heirs

1. Son, Sons son, and Sons sonsson.

2. Daughter, sons daughter, sonssons daughter.

3. Daughters son and daughtersdaughter.


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4.Widow, sons widow, sons sonswidow.

5.Mother.


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Shares of Class I heir.

Sons, daughters and the mother ofthe propositus each takes one share.

Widow take one share.

Among the heir of the branches ofpredeceased son , son ofpredeceased son of a predeceased

son, and predeceased daughter, thedoctrine of representation applies.


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Meaning thereby heirs in eachbranch would take the same sharewhich their parent (son, grandson or

daughter) would have taken hadhe/she been alive when successionopened.

The heirs of each branch take percapita, but if there are more widowsthan one in the branch of the


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predeceased son, or a predeceasedgrandson, all the widows together ineach branch will take one share.

Rule 3: The heirs in the branch ofeach predeceased daughter of theintestate shall take between them

share.


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Rule 4. The distribution of the sharereferred to Rule 3-

among the heir in the branch of the

predeceased son, shall be so madethat his widow and the survivingsons and daughters get equalportions, and the branch of hispredeceased son get the sameportion.


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Class II Heirs and their Shares.

Category I

1. Father.

Category II

1. Sons Daughters son

2. Sons Daughters Daughter.

3. Brother

4. Sister.


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Category III

1. Daughters sons son

2. Daughters sons daughter3. Daughters daughters son

4. Daughters daughters daughter.


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Category IV

1. Brothers son,

2. Brothers daughter3. Sisters son,

4. Sisters daughter.


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Category V

1. Fathers father,

2. Fathers mother.

Category VI

1. Fathers widow2. Brothers widow.


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CategoryVII

1. Fathers brother

2. Fathers sister.

Category VIII

1. Mothers Father2. Mothers mother.


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Category IX

1. Mothers brother

2. Mothers sister.

Succession to a Mitakshara


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Succession to a Mitakshara

Coparceners Interest.

Section 6 of the Act has beenextensively amended by the HinduSuccession (Amendment)

Act,2005.This section has beencompletely reworded and old sectionhas been deleted. The old section

still favoured the sons due to theconcept of notional partition so tobring the daughters at par with sons,


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by virtue of this section thedaughters have been madecoparceners along with the sons. She

becomes a coparcener in her ownright in the same manner as son, shewould have same rights in the

coparcenary property as she wouldhave had if she had been a son andshe would be obviously be subject to


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same liabilities in respect of the saidcoparcenary property as that of ason. Further by virtue of this section

the interest of a coparcener would goby inheritance-intestate ortestamentary, and not by

survivorship.


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Where a Hindu dies after the commencement ofthe Hindu Succession (Amendment) Act, 2005,his interest in the property of a Joint Hindu familygoverned by the Mitakshara law, shall devolve bytestamentary or intestate succession, as the case

may be, under this Act and not by survivorship,and the coparcenary property shall be deemed tohave been divided as if a partition had takenplace and,- (a) the daughter is allotted the sameshare as is allotted to a son; (b) the share of thepre-deceased son or a pre-deceased daughter, asthey would have got had they been alive at thetime of partition, shall be allotted to the survivingchild of such pre-deceased son or of such pre-deceased daughter;


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and (c) the share of the pre-deceased child of a pre-deceased sonor of a pre-deceased daughter, as

such child would have got had he orshe been alive at the time of thepartition, shall be allotted to the child

of such pre-deceased child of thepre-deceased son or a pre-deceaseddaughter, as the case may be.


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Explanation.- For the purposes ofthis sub-section, the interest of aHindu Mitakshara coparcener shall be

deemed to be the share in theproperty that would have beenallotted to him if a partition of theproperty had taken place

immediately before his death,irrespective of whether he wasentitled to claim partition or not.


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What is the interest of the deceasedcoparcener when he dies?

It is a rule of the Mitakshara schoolthat immediately on the death of thecoparcener, his interest passes by

survivorship to other coparceners,with the result that on his death heleaves behind nothing. It is also a

rule of the Mitakshara that acoparceners interest in the jointfamily property can be specified and


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served only by partition. Thus, to knowwhat is the share of a deceasedMitakshara coparcener, Parliament was

left with no option but to import the fictionof notional partition.

That is what explanation 1 to Section 6: For the purpose of this section, the

interest of irrespective of whetherhe was entitled to claim partition or not.


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Notional or deemed partition.

The notional partition is not a realpartition. It neither effects aseverance of status nor does it

demarcate the interest of the othercoparceners or of those who areentitled to share on partition. It hasto be used to demarcate the interest

of the deceased coparcener, oncethat is done, rest should beforgotten.


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Share in notional partition.

Shares are to be alloted ( thoughnotionally) to all persons who wouldhave been entitled to a share on a

real partition. On the basis of thisallotment, we get the share of thedeceased coparcener demarcated. It

is this share which will go byinheritance.


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A Mitakshara joint family consists ofA, his two sons B and C and a son BSand a daughter BD of B. Suppose B

dies. Since he leaves behind BD, afemale in Class I, his interest willdevolve by succession. If partition

had taken place during Bs life-time,he would have got 1/6 share; on thebasis of per stripes rule, A will get


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1/3, C will get 1/3 and Bs branch will get1/3. In his branch it will go per capita.Since daughter does not take a share, on

partition B and BS will take 1/12 of1/3,i.e. 1/6 each. In notional partition, westart with the assumption that B is alive.After demarcating Bs share we forget

about partition and note that B is deadand his 1/6 interest as demarcated by thenotional partition will go by succession.


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(A, C or BS do not get any share. They continue toremain joint in the remaining 5/6).

The next step is to divide 1/6 among Bs heir inaccordance with the Hindu Succession Act, 1956.

A is his father who is in Class II, C is his brotherwho is also in Class II, and BS and BD are his sonand daughter who are in Class I. Thus, 1/6 of Bwill go to BS and BD who will take one shareeach i.e. each will take 1/12.


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B dies leaving behind a son BS, apredeceased daughters son, BDS, a fatherA and a brother C. He is a member of the

coparcenary headed by his father. BDS isnot a member of As joint family. Since Bdies leaving behind BDS, a male claimingthrough a female, his interest will devolve

by succession. In notional partition he willget 1/6 share. This 1/6 will go to BS andBDS, each taking 1/12.


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In Rajrani V. Chief SettlementCommr. AIR 1984 SC 1234 P aMitakshara coparcener, died leaving

behind his widow W, three sons, A,B, C and three daughters X,Y and Z.In notional partition P would get one-

fifth share. This will go in equalshares to W,A,B,C,X,Y and Z, eachtaking one-thirtyfifth. Ws share will


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be one-fifth plus one-thirtyfifth i.e8/35.

Succession to the property of a


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Succession to the property of a

Hindu Female.

Although Hindu Womans limitedestate has been abolished and, solong as the woman is alive, she has

absolute power over all types ofproperty ( she is also free to disposeit of by will), yet for the purpose of

intestate succession, the source ofproperty is still material.


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For the purpose of succession, theproperty of a Hindu female falls underthe following three heads:

1. Property inherited by a female from herfather or mother.

2. Property inherited by a female from herhusband or father-in-law, and

3. Property obtained by her from any othersource, by inheritance or otherwise.


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Heirs to property under III.

Entry (a):

1. Sons and daughters

2. Grandchildren

3. Husband

Shares of heirs in entry (a)

1. Son, daughter and husband eachtake one share.


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2. Among the heirs of the branches ofpredeceased son and predeceaseddaughter, the doctrine of

representation applies, i.e. thechildren of the predeceased daughterand children of predeceased son take

the same share which the daughteror son would have taken had she orhe been alive.


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3. Among heirs of a branch they takeper capita.

Entry (b) On the failure of heirs in

entry (a), the property will devolveon the heirs of entry. Entry (b) runsas under:

Upon the heir of the husband.


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Entry (c) In this entry there are onlytwo heirs: father and mother ofproposita.

Mother does not include step mother.

Father does not include a putativefather or stepfather.

Natural or adoptive father isincluded.


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Entry (d) Upon the failure of heirs inEntry (c), the property of theintestate female devolves upon the

heirs of father.Entry (e) Upon the failure if heirs inEntry (d) the property will devolve

upon the heirs of the mother.

Sons Pious Obligation to Pay


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Son s Pious Obligation to Pay

Fathers Debt.

This concept has been done awaywith by virtue of Amendment Act of2005. According to Sec.6(4) of the

Act no court shall recognize any rightto proceed against a son, grandson,or great grandson for the recovery of

any debt due from father,grandfather, great grandfather solelyon the ground of pious obligation


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under the Hindu Law though if anydebt was contracted before this Actcame into force, i.e before 9th Sep.

2005 a creditors right would not beaffected to proceed against the son,grandson or great grandson or any

alienation would also not affectedwhich was made in satisfactionthereof.


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Nature of the Liability.

Debts occupy a very importanceplace in the Hindu System of law.This is one of the areas of Hindu Law

which illustrate one of thefundamental principles of the HinduJurisprudence, viz moral obligations

take precedence over legal rights.The Hindu sages have repeatedly


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enjoined that one must pay onesdebts.

Brihaspati ordained: one who does

not repay his debts will be bornhereafter in the creditors house as aslave, a servant, a woman or

quadruped.


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According to Narada: if a veryreligious and devoted person diedindebted, the whole of the merit of

his sacrifices and devotions willbelong to the creditor.

But the Hindu Sages said that if a

Hindu dies indebted, his sons willrepay his debts.


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Debt must not be avyavaharika.

Since the liability of the son is pious,the character of the fathers debt ismaterial. The sons are liable for the

fathers pre-partition debts and notthe post-partition debts, providedthe debts are not avyavaharika, i.etaken for immoral or illegal purpose,

or to use the apt expression ofDerett, private, untained, pre-partition debts.

Debts that need not be paid by the


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p y

Son.

debts due to spiritous liqour

debts due for lust

debts due to gambling

unpaid fines

unpaid tolls

debts due for anything idlepromised or promised withoutconsideration or anything promised


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under influence of wrath.

suretyship

Commercial debts.

debts that are not avyavaharika.


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Antecedent Debt.

Antecedent debt as antecedent infact as well as in timei.e not a partof the transaction impeached.

Two conditions are necessary:

a) the debt must be prior in timeand

b) the debt must be prior in fact.


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In one of the case Gujarat HighCourt said that if father sellsproperties to discharge a mortgage

debt which is not avayavahrika,though not justified for legalnecessity or benefit, the son can get

the sale set aside provided he meetsthe liabilities arising there under.


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Disqualification of Succession.

Disease, deformity and unchastity.

Remarriage.

Conversion

Murderer.

Succession under Marumakkattayam


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Succession under Marumakkattayamand Aliyasantana Laws.

The Marumakkattayam andAliyansantana laws are a body ofcustom and usage. The outstanding

feature of the Marumakkatayam andAliyasantana law is that theinheritance is through nephews and

nieces, in other words, it is basedon martriarchate.


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Like the joint family and coparceneryof the Mitakshara school, theMarumakkattayam and Aliyastana

systems have their unit, tarwad.Mitakshara joint family is based onpatriarchal system while the tarwad

of Marumakkattayam is based onmatriarchal system.


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Tarwad is the name given to thejoint family consisting of males andfemales, all descended in the female

line from the common ancestress.A tarwad may consist of two or morebranches known as tavazhies, each

tawazhi or branch consisting of oneof the female members of the tarwadand her descendants in the female


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line.

The senior most male member in theMarumakkattayam tarwad is known

as the karnavaran and the seniormost female member is called thekarnavathi.


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The law of succession ofMarumakkatayam and Aliyasantanahad been changed by legislative

enactments.The general rules of succession tothe property of a male belonging to

Marumakkatayam and Aliyasantanasystem are as follows:

Male dying intestate, his


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property shall devolve:

Firstly, upon heirs, being relativesspecified in class I of the schedule,and

Secondly, if there is no heir of class I, upon heirs in Class II of theschedule

Thirdly, if there is no heir of any oftwo classes, upon his relativeswhether agnates or cognates.

Female dying intestate shall


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devolve on the following:

Firstly upon the sons and daughtersand the mother

Secondly upon the father and the

husbandThirdly upon the heirs of the mother,

Fourthly upon the heirs of the father

and

Lastly, upon the heirs of the husband

Family Law II Succession Modified 5

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